PATRICIA A. GAUGHAN, District Judge.
This matter is before the Court upon the Report and Recommendation of Magistrate Judge James R. Knepp, II (Doc. 12) recommending that this Court dismiss Petitioner's Petition for Writ of Habeas Corpus (Doc. 1). Petitioner has filed Objections to the Report and Recommendation. For the reasons set forth below, the Report and Recommendation is ACCEPTED.
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that the district court reviews de novo those portions of a report of a magistrate judge to which a specific objection is made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). The judge may accept, reject, or modify any proposed finding or recommendation.
Petitioner and a co-defendant were charged in a ten-count indictment based on an incident that took place on February 22, 2012, on Garfield Road in East Cleveland. During the incident, Dena'Jua Delaney ("Bubbles")
Petitioner filed his federal habeas petition on March 5, 2015, alleging the following claims for relief:
The Magistrate Judge recommended that all of Petitioner's claims be denied. Petitioner, through counsel, now objects to the Magistrate Judge's recommendation. The Court will address Petitioner's objections in turn.
The Magistrate Judge found that the state appellate court's conclusion that Petitioner's convictions were supported by legally sufficient evidence was not unreasonable. Petitioner objects to this conclusion, arguing that no rational jury could have "accepted the eyewitness testimony, chosen to reject that provided by the medical examiner, and concluded that Robinson was guilty." (Doc. 14, at 9).
In addressing this issue, the Magistrate Judge stated:
This Court finds this analysis persuasive and adopts it as its own. Petitioner's objection on the basis that "the guilty verdict was simply irrational" is overruled.
Petitioner also objects that the Magistrate Judge misapplied Ohio law in ruling on the sufficiency of the evidence on his felonious assault conviction. Petitioner points out that both he and the State agreed that the State had to prove that the victims were in the "line of fire" to obtain a conviction for felonious assault. The Magistrate Judge found that the state appellate court's conclusion that there was sufficient evidence to support the felonious assault convictions was not unreasonable. In doing so, he stated that "all five victims were within the
Petitioner's objection is not well-taken. In addressing this issue, the state appellate court adopted the reasoning in State v. Ivory, 2004 WL 1274383 (Ohio Ct. App., June 10, 2004), to determine what constitutes being "in the line of fire" in a drive-by shooting situation.
Id., at *2 (emphasis added). In other words, anyone within the "target range" in a drive-by shooting is "in the line of fire" for purposes of a felonious assault charge. Thus, the Magistrate Judge did not misapply Ohio law in holding that there was sufficient evidence to support Petitioner's conviction for felonious assault because the victims were within the target range.
Petitioner argues that his claims before this Court should receive de novo review because the state appellate court affirmed his conviction on a theory of culpability that the State did not present to the jury. Specifically, Petitioner claims that the state appellate court violated his due process rights when it upheld his felony murder conviction after concluding that the "jury didn't have to believe that Robinson's shot actually killed Bubbles to convict him of the felony murder count." (Doc. 14, at 10) (quoting Ohio v. Robinson, Cuyahoga App. No. 99290, 2013-Ohio-4375, ¶ 57). As discussed in the next section, the Court agrees with the Magistrate Judge that the state appellate court did not violate his due process rights in upholding his conviction; thus, the Magistrate Judge did not err in holding that Petitioner's claims were subject to AEDPA deference.
In Ground 3, Petitioner claims that the state appellate court violated his due process rights because it affirmed his felony murder conviction on the basis that (1) he committed felonious assault and (2) his felonious assault proximately caused Bubbles's death, even if it was through crossfire. Petitioner argues that the State's only theory at trial was that Petitioner shot Bubbles and that the appellate court violated his rights by affirming on a crossfire theory, which the State did not present to the jury.
As the Magistrate Judge correctly noted, the appellate court only addressed the crossfire theory as an alternative argument after determining that the evidence presented at trial was sufficient for the jury to conclude that Petitioner shot Bubbles. (R&R at 31). Only after first concluding that the eyewitness testimony was sufficient for the jury to conclude that "Robinson shot and killed Bubbles" did the appellate court then turn to the alternative crossfire theory: "
(Doc. 14, at 10-11).
The problem with Petitioner's argument is that his challenge to the appellate court's primary rationale is an argument about the manifest weight of the evidence. Indeed, the appellate court recognized this in rejecting Petitioner's argument that the evidence could only support the conclusion that he did not shoot Bubbles:
Robinson, 2013 WL 5517978, at 9. As Respondent argued in his return of writ-and Petitioner did not dispute-a manifest weight argument is not cognizable in a habeas proceeding because it is purely a matter of state law. See Estelle v. Williams, 502 U.S. 62, 67 (1976) ("federal habeas corpus relief does not lie for errors of state law"); Ross v. Pineda, 2011 WL 1337102, at *3 (S. D. Ohio April 7, 2011) ("Whether a conviction is against the manifest weight of the evidence is purely a question of Ohio law."); see also Tibbs v. Florida, 457 U.S. 31, 47 (1982); State v. Thompkins, 78 Ohio St.3d 380, 389 (1997) (finding that sufficiency of the evidence and weight of the evidence are not synonymous legal concepts). Thus, because the state appellate court did not deprive Petitioner of any constitutional right by affirming his conviction over his manifest weight of the evidence challenge, Ground 3 is dismissed.
As the Magistrate Judge noted, Petitioner's final two grounds are interrelated. In Ground 4, he claims that the prosecutor engaged in misconduct during closing argument, and in Ground 5, he claims that trial counsel was ineffective for failing to object to the prosecutor's improper statements. The Magistrate Judge found-and Petitioner does not dispute-that the prosecutorial misconduct claim is procedurally defaulted. Petitioner argues, however, that counsel's ineffective assistance in failing to object constitutes cause and prejudice to excuse the default. He further argues that his ineffective assistance of counsel claim is entitled to de novo review because the state appellate court misapplied the Strickland prejudice standard in addressing this claim. In his Objections, Petitioner asserts that the Magistrate Judge erroneously applied AEDPA's deferential standard to the claim.
Petitioner's objection is not well-taken because the Magistrate Judge clearly applied de novo review to the ineffective assistance claim.
(R&R at 37-38) (emphasis added). After analyzing the record, he stated: "the undersigned cannot conclude that there is a `reasonable probability' that, but for the failure to object, `the result of the proceeding would have been different.'" (Id. at 39). He then noted that "
Finally, Petitioner objects to the Magistrate Judge's conclusion that counsel's failure to object to the prosecutor's statements during closing argument did not constitute ineffective assistance of counsel. According to Petitioner, "the most important piece of exculpatory evidence in this case" was the medical examiner's (Dr. McCollom) testimony that Bubbles was shot in the face at close range, which he believes makes it impossible for him to have been her shooter. (See Doc. 11, at 26). He argues that the prosecutor improperly attacked this evidence during the State's final summation by arguing "that Dr. McCollulm's testimony was somehow invalid because it was really the ballistics expert who was qualified to offer an opinion on this subject." In his Objections, he highlights the following statements by the prosecutor:
(Tr. 1052-53)
(Tr. 1064). Petitioner contends that the prosecutor's statements "insinuated, without evidentiary support, that: 1) Dr. McCollom was not qualified to offer her scientific opinion; 2) Chappell (the firearms' expert) would have been qualified to offer an opinion on the distance between the firearm and a shooting victim; and, most critically, 3) Chappell's testimony would have contradicted Dr. McCollom's testimony." (Doc. 14, at 15).
In concluding that trial counsel's failure to object to the prosecutor's statements during closing argument did not meet the Strickland prejudice prong, the Magistrate Judge noted that the comments Petitioner objects to take up less than two transcript pages of the state's twenty-page closing argument, the trial court instructed the jury before and after closing arguments that such arguments are not evidence, and the prosecutor himself reminded the jury that his argument was not evidence. The Magistrate Judge also rejected the Petitioner's argument that the closing argument was the only reason the jury had for disbelieving Dr. McCollom because the jury had the testimony of several eyewitnesses who testified that Bubbles did not fall until after Petitioner shot and that no one else was shooting at the time of her death. Based on these facts, he could not conclude that there was a "reasonable probability" that, but for counsel's failure to object, "the result of the proceeding would have been different." (R&R at 39) (quoting Strickland, 466 U.S. at 694).
This Court finds the Magistrate Judge's analysis persuasive and adopts it herein. The trial court instructed the jury at the beginning of the trial and immediately before closing arguments that "[o]pening statements and closing arguments do not constitute evidence in this case and they shall not be considered as evidence by the jury." (Tr.at 208, 962). It further instructed the jury at the end of the trial that its own "recollection controls. . . . If any reference by the Court or counsel to matters of evidence does not coincide with your own recollection, it's your own recollection that should control your deliberations, okay." (Id. at 1069). Jurors are presumed to follow their instructions. United States v. Harvey, 653 F.3d 388, 396 (6th Cir. 2011) (citing United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001)). Aside from arguing that "the jury would have had no basis to disregard" Dr. McCollom's testimony absent the prosecutor's statements, Petitioner offers nothing to rebut the presumption that the jury followed the instruction not to take closing arguments as evidence. (Doc. 14, at 16). But, as discussed above, the jury had before it sufficient evidence from eyewitness testimony to conclude that Petitioner shot Bubbles-this evidence was a basis to reject Dr. McCollom's testimony. Moreover, the prosecutor's statement did not affirmatively misstate any evidence in the record; rather, he posed a rhetorical question, presumably with the expectation that the jury would draw an inference favorable to the State as to the answer. The jury would know that he was asking them to draw an inference and that his question was not factual evidence. See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000) ("The jury would know that [prosecutor's] comments [speculating about the evidence] were inferences, and they would not be confused into believing that these comments were factual evidence."). Given that the prosecutor's comments were but a few lines in an otherwise lengthy trial (the trial record is over 1000 pages long), the Court agrees with the Magistrate Judge that, had trial counsel objected to the prosecutor's comments, there is not a reasonable probability that the result of the proceeding would have been different.
For these reasons, Ground 5 (Petitioner's independent ineffective assistance of counsel claim) is dismissed. Moreover, because Petitioner cannot overcome his procedural default, Ground 4 (Petitioner's prosecutorial misconduct claim) is dismissed.
For the reasons stated above and in the Report and Recommendation, the Report and Recommendation of Magistrate Judge Knepp recommending dismissal of Petitioner's pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is ACCEPTED. Magistrate Judge Knepp correctly determined that Petitioner is not entitled to a writ of habeas corpus. Further, for the reasons stated herein and in the Report and Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.
