KENNETH S. McHARGH, Magistrate Judge.
The petitioner James Myers
(Doc. 1.) The respondent has filed a Return of Writ. (Doc. 7.) The petitioner did not file a Traverse.
The court of appeals set forth the following factual and procedural background:
State v. Myers, No. CA-25737, 2012 WL 1419104 (Ohio Ct. App. Apr. 25, 2012).
Myers filed a timely appeal of his convictions, and raised the following three assignments of error on direct appeal:
Myers, 2012 WL 1419104. at *2, *5, *7. The court of appeals affirmed the judgment of the trial court. Myers, 2012 WL 1419104, at *9.
Myers next filed a timely notice of appeal to the Supreme Court of Ohio, and set for the following three propositions of law:
(Doc. 7, at 6.) On Sept. 5, 2012, the state supreme court denied jurisdiction and dismissed the appeal as not involving any substantial constitutional question. State v. Myers, 132 Ohio St.3d 1516, 974 N.E.2d 113 (2012).
Myers filed a timely petition for a writ of habeas corpus.
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim which was adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided the following guidance:
Williams v. Taylor, 529 U.S. 362, 412-13 (2002). See also Lorraine v. Coyle, 291 F.3d 416, 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).
A state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U.S. 634, 640 (2003).
A state court decision is not unreasonable simply because the federal court considers the state decision to be erroneous or incorrect. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Williams, 529 U.S. at 410-12; Lorraine, 291 F.3d at 422.
The respondent contends that the first, and part of the third, grounds of the petition are procedurally defaulted. (Doc. 7, at 10-13.)
A habeas claim may be procedurally defaulted in two distinct ways. First, by failing to comply with state procedural rules. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). Second, by failing to raise a claim in state court, and to pursue the claim through the state's ordinary review process. Williams, 460 F.3d at 806 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)).
A habeas petitioner cannot obtain relief unless he has completely exhausted his available state remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (citing Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.), cert. denied, 534 U.S. 977 (2001)). To satisfy the exhaustion requirement, a habeas petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. The exhaustion requirement is satisfied when the highest court in the state has been given a full and fair opportunity to rule on the petitioner's claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (citing Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990)). A petitioner cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. Coleman, 501 U.S. at 731-732; Buell, 274 F.3d at 349.
Where a state court has failed to address a prisoner's federal claim(s) because the prisoner failed to meet a state procedural requirement, the state judgment rests on independent and adequate state procedural grounds, barring federal habeas relief. Coleman, 501 U.S. at 729-730; Wainwright v. Sykes, 433 U.S. 72 (1977); Morales v. Coyle, 98 F.Supp.2d 849, 860 (N.D. Ohio 2000), aff'd, 507 F.3d 916 (6th Cir. 2007). Thus, where a state prisoner has procedurally defaulted his federal claims in state court, habeas review of those claims is barred "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Buell, 274 F.3d at 348 (quoting Coleman, 501 U.S. at 750); Davie v. Mitchell, 324 F.Supp.2d 862, 870 (N.D. Ohio 2004), aff'd, 547 F.3d 297 (6th Cir. 2008), cert. denied, 558 U.S. 996 (2009).
The court considers four factors to determine whether a claim has been procedurally defaulted: (1) the court must determine whether there is a state procedural rule that is applicable to the petitioner's claim, and whether the petitioner failed to comply with the rule; (2) the court must decide whether the state courts actually enforced the procedural sanction; (3) the court must decide whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of the federal claim; and, (4) the petitioner must demonstrate that there was cause for her not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Buell, 274 F.3d at 348 (citing Maupin, 785 F.2d at 138); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin).
Any claims that Myers could have asserted in his direct appeal, but did not, are defaulted under the Ohio doctrine of res judicata. Coleman, 244 F.3d at 538; State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996) (syllabus); State v. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104, 105-106 (1967) (syllabus, ¶9). The Ohio rule of res judicata satisfies the first three factors in Maupin. Jacobs, 265 F.3d at 417. The fourth factor is that the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. "Cause" for a procedural default is ordinarily shown by "some objective factor external to the defense" which impeded the petitioner's efforts to comply with the state's procedural rule. Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
The first ground of the petition is: "The trial court committed reversible error or an abuse of discretion in admitting evidence of the Wisconsin conviction over defense objections." The respondent argues that Myers procedurally defaulted this claim because he failed to fairly present it to the state courts as a federal constitutional claim. (Doc. 7, at 12-13.)
The claim was presented on direct appeal as follows:
(Doc. 7, at 5; Myers, 2012 WL 1419104, at *2.) This claim is presented simply as an allegedly erroneous evidentiary ruling, without raising any federal constitutional issues, and consequently the court of appeals addressed it as an issue of state law. Myers, 2012 WL 1419104, at *2-*4.
The "clearly established rule" is that alleged errors of state law, "especially rulings regarding the admission or exclusion of evidence," are not within the purview of a federal habeas court. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). See also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.), cert. denied, 540 U.S. 930 (2003). This court must presume that the Ohio state courts correctly interpreted Ohio evidence law in their evidentiary rulings. Small v. Brigano, No. 04-3328, 2005 WL 1432898, at *5 (6th Cir. June 17, 2005).
Even assuming, for the sake of argument, that the evidentiary ruling was erroneous, Myers would not be entitled to habeas relief on this claim. Alleged state court errors of evidentiary rulings do not rise to the level of constitutional claims warranting habeas relief "unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment." Broom v. Mitchell, 441 F.3d 392, 406 (6th Cir. 2006), cert. denied, 549 U.S. 1255 (2007). See also Bugh, 329 F.3d at 512. Courts have defined the category of errors that are fundamentally unfair very narrowly. Bugh, 329 F.3d at 512. Myers has not made a convincing argument that his case qualifies.
Moreover, in Bugh, the Sixth Circuit found that there was no clearly established Supreme Court precedent which holds that a state violates due process by admitting other bad acts evidence. Bugh, 329 F.3d at 512. "While the Supreme Court has addressed whether prior acts testimony is permissible under the Federal Rules of Evidence
In addition, because this claim was not fairly presented to the state court of appeals as a federal claim, this court does not have jurisdiction to grant the petition on the basis of it. Baldwin v. Reese, 541 U.S. 27 (2004); Jacobs, 265 F.3d at 415; McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001). To "fairly present" the claim to the state courts, a habeas petitioner must present his claim as a federal constitutional issue, not as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
Myers has failed to demonstrate that the state court rulings on the evidentiary issue are contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. The petition should not be granted on the basis of the first ground.
The third ground of the petition is "Trial counsel provided ineffective assistance of counsel which was prejudicial to the defendant." Myers presents the following in support of his claim:
(Doc. 1, at [7]-[8].)
The respondent contends that, although Myers raised a claim of ineffective assistance on appeal, he argued the claim on a different basis. The respondent points out that Myers did not raise a DNA issue on appeal. The only argument in his petition which was raised in the state courts was that trial counsel was not prepared for trial, and failed to engage in an investigation which would have revealed "appropriate and adequate rebuttal evidence of the complaining witness." (Doc. 7, at 13; see generally Myers, 2012 WL 1419104, at *8-*9.)
The Sixth Circuit has held that "the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also Brandon v. Stone, No. 06-5284, 2007 WL 786330, at *1 (6th Cir. March 15, 2007) (citing Williams v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004)). Those aspects of the ineffective assistance claim which Myers did not raise on direct appeal have not been exhausted.
Myers cannot return to state court to exhaust this claim because the Ohio Supreme Court has ruled that arguments that could have been raised in an initial appeal (and were not) will be barred from consideration on appeal following remand, under the doctrine of res judicata. State v. Hutton, 100 Ohio St.3d 176, 182, 797 N.E.2d 948, 956 (2003); State v. Gillard, 78 Ohio St.3d 548, 549, 679 N.E.2d 276 (1997), cert. denied, 523 U.S. 1108 (1998). State law no longer would permit Myers to raise this particular claim, hence it is defaulted. See Williams, 460 F.3d at 806; Adams v. Bradshaw, 484 F.Supp.2d 753, 769 (N.D. Ohio 2007).
The court will address the argument which exhausted in the state courts.
The state court of appeals ruled on the exhausted portion of Myer's ineffective assistance claim as follows:
Myers, 2012 WL 1419104, at *7-*9. The state court identified the controlling U.S. Supreme Court precedent, thus the court's inquiry relates to whether the state court decision applied that precedent unreasonably.
Under the Sixth Amendment to the U.S. Constitution, "the right to counsel is the right to effective assistance of counsel." Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012); Joshua v. DeWitt, 341 F.3d 430, 437 (6th Cir. 2003) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The Sixth Circuit discussed the general standard for ineffective assistance of counsel in Monzo v. Edwards:
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (internal citations omitted). See generally Strickland v. Washington, 466 U.S. 668, 689 (1984) (two-part test).
In the habeas context, this court considers petitioner's ineffective assistance claim "within the more limited assessment of whether the state court's application of Strickland to the facts of this case was objectively unreasonable." Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir. 2000).
The Supreme Court has recently affirmed in several cases that this court must approach the state court's rulings in a highly deferential manner. The Supreme Court stated in Harrington v. Richter that the "pivotal question" of whether the state court's application of Strickland standard was unreasonable is different from simply deciding whether counsel's performance fell below Strickland's standard. Harrington v. Richter, 562 U.S. 86, 101 (2011). The focus on habeas review is "not whether counsel's actions were reasonable," rather, the question is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105.
The Court in Richter instructed that the petitioner must show that the ruling of the state court "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103; see also Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 2376 (2012) (quoting Richter). The Court acknowledged that, under the AEDPA, this standard was "difficult to meet," however, it was "meant to be" so. Id. at 102; see also Montgomery, 654 F.3d at 676.
Reviewing the state court's ruling in accordance with the guidance set forth by the U.S. Supreme Court in Richter, the court finds that Myers has failed to demonstrate that the state court's application of Strickland was unreasonable. Myers has failed to establish that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The petition should not be granted on the basis of the third ground.
The second ground of the petition is based on the following: "The trial court denied the defendant the opportunity to confront the witnesses against him." Myers characterized the issue thus: "Petitioner contends that the trial court's decision to limit cross-examination of the complaining witness denied him the opportunity to [confront] the witnesses against him." (Doc. 1, at 6.)
The Confrontation Clause of the Sixth Amendment provides an accused with the right to be confronted with the witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004); Pointer v. Texas, 380 U.S. 400, 406 (1965). A central purpose of the Confrontation Clause is to allow the defendant the opportunity to cross-examine the witnesses against him. Vasquez v. Kirkland, 572 F.3d 1029, 1035-1036 (9th Cir. 2009), cert. denied, 558 U.S. 1126 (2010) (citing Davis v. Alaska, 415 U.S. 308, 315-316 (1974)); Drake v. Woods, 547 F.Supp.2d 253, 264 (S.D. N.Y. 2008). The Confrontation Clause only guarantees the opportunity for cross-examination, and the right to confront one's accusers normally is satisfied if defense counsel receives wide latitude at trial to question witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987); see also Nevada v. Jackson, 133 S.Ct. 1990, 1994 (2013); Ross v. District Attorney of County of Allegheny, 672 F.3d 198, 207 (3d Cir. 2012).
The state court of appeals addressed the standard under the Sixth Amendment, in part, as follows:
Myers, 2012 WL 1419104, at *5.
On appeal, Myers argued that the trial court erred in refusing to allow him to cross-examine the victim regarding evidence that she "had made false allegations against men in her life on two previous occasions." Myers, 2012 WL 1419104, at *5. The court allowed Myers to ask questions concerning one of these instances, involving a 2008 domestic violence matter, a criminal case which was subsequently dismissed. Id. at *5-*6.
The trial court, however, did not permit inquiry into a domestic violence accusation which allegedly arose during the victim's 1999 divorce proceedings. Myers had learned of this information through a newspaper article. The state had argued that the 1999 case was irrelevant because no charges were filed. The court of appeals noted:
Myers, 2012 WL 1419104, at *6.
After reviewing several relevant cases, the court of appeals ruled on Myers' claim as follows:
Myers, 2012 WL 1419104, at *7 (citations omitted).
Myers was able to cross-examine the victim at trial. See, e.g., Myers, 2012 WL 1419104, at *4 ("The victim testified in great detail about the events" of the crime); and *6 (court allowed questions concerning 2008 matter). The Confrontation Clause only "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam); see also Drake, 547 F.Supp.2d at 264 (same). The Supreme Court has found that the Confrontation Clause does not prevent a trial judge from imposing "reasonable limits" on cross-examination. Vasquez, 572 F.3d at 1036 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Thus, "trial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679; see also Washington v. Renico, 455 F.3d 722, 729 (6th Cir. 2006), cert. denied, 549 U.S. 1306 (2007); Drake, 547 F.Supp.2d at 264.
The court does not find that the state court's determination in this matter was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The petition should not be granted on the basis of the second ground.
It is recommended that the petition for a writ of habeas corpus be denied.
