JAMES R. KNEPP, II, Magistrate Judge.
Pro se petitioner Richard Barrow ("Petitioner"), a prisoner in state custody, filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). (Doc. 1). Respondent Alan Lazaroff, Warden of the Mansfield Correctional Institution, ("Respondent") filed an Answer (Doc. 8) and Petitioner filed a Reply (Doc. 12). Respondent filed a Sur-reply. (Doc. 17). The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Non-document entry dated August 23, 2016). For the reasons discussed below, the undersigned recommends the Petition be denied.
For the purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, erroneous factual findings by the state court. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530.
The Ohio Eighth District Court of Appeals, Cuyahoga County, set forth the following findings of fact:
State v. Barrow, 2015 WL 628358 (Ohio Ct. App.) ("Barrow I").
On August 21, 2013, a Cuyahoga County Grand Jury issued an indictment charging Petitioner with one count of attempted murder in violation of Ohio Revised Code §§ 2923.02/ 2903.02(A), with one and three year firearm specifications; two counts of felonious assault in violation of Ohio Revised Code §§ 2903.11(A)(1) & (2), with one and three year firearm specifications; and one count of having a weapon under disability in violation of Ohio Revised Code § 2923.13(A)(3). (Ex. 1, Doc. 8-1, at 4-6). Through counsel, Petitioner pleaded not guilty to the charges. (Ex. 2, Doc. 8-1, at 7). At the State's request, the indictment was amended to delete both firearm specifications from the attempted murder charge, and delete the one-year specification from the felonious assault charges. Id. Petitioner then withdrew his not guilty plea, and pleaded guilty to amended counts one and two. Id. The trial court accepted his guilty plea, and found him guilty. Id. Counts three and four were nolled. Id.
Prior to sentencing, Petitioner, pro se, moved to withdraw his guilty plea and disqualify his counsel. (Exs. 3 & 4, Doc. 8-1, at 8-10). The State opposed the motions. (Ex. 5, Doc. 8-1, at 12). After a hearing, the court granted Petitioner's motions and appointed new counsel. (Ex. 6, Doc. 8-1, at 37). Petitioner waived his right to a jury on count four — having a weapon under disability, and proceeded to trial on the remaining three counts. (Ex. 7, Doc. 8-1, at 38). A Cuyahoga County jury found him guilty on all counts. (Ex. 8, Doc. 8-1, at 39). At Petitioner's April 30, 2014 sentencing hearing, the trial court merged the felonious assault and attempted murder courts as allied offenses of similar import, as well as the firearm specifications. (Ex. 10, Doc. 8-1, at 41). Petitioner was ordered to serve an aggregate term of nine years imprisonment. Id.
Represented by new counsel, Petitioner filed a timely notice of appeal to the Eighth District Court of Appeals. (Ex. 11, Doc. 8-1, at 43). In his brief, Petitioner raised two assignments of error:
(Ex. 12, Doc. 8-1, at 48). The State filed a brief in response. (Ex. 13, Doc. 8-1, at 72). On February 12, 2015, the Court of Appeals affirmed the judgment of the trial court. (Ex. 14, Doc. 8-1, at 102); Barrow I, 2015 WL 628358.
Petitioner, pro se, filed a timely notice of appeal to the Ohio Supreme Court. (Ex. 15, Doc. 8-1, at 104). In his memorandum in support of jurisdiction, Petitioner raised one proposition of law:
(Ex. 16, Doc. 8-1, at 118). On June 24, 2015, the Ohio Supreme Court declined jurisdiction and dismissed the appeal. (Ex. 17, Doc. 8-1, at 136).
On November 10, 2014, while his direct appeal was pending, Petitioner, pro se, filed a petition for post-conviction relief. (Ex. 18, Doc. 8-1, at 137). In it, he raised two grounds for relief:
Id. at 152-53. On March 12, 2015, the trial court denied Petitioner's post-conviction petition. (Ex. 19, Doc. 8-1, at 162). Petitioner did not appeal this decision.
On April 27, 2015, Petitioner, pro se, filed an Ohio Appellate Rule 26(B) application for reopening. (Ex. 20, Doc. 8-1, at 171). In it, he alleged his appellate counsel was ineffective for failing to raise two assignments of error on direct appeal:
(Ex. 21, Doc. 8-1, at 173, 176). The State filed a memorandum in opposition. (Ex. 21, Doc. 8-1, at 201). On November 2, 2015, the Eighth District Court of Appeals denied the application. (Ex. 22, Doc. 8-1, at 211); State v. Barrow, 2015 WL 6796756 (Ohio Ct. App.) ("Barrow II"). Petitioner did not appeal to the Ohio Supreme Court.
On June 29, 2015, Petitioner, pro se, filed a Motion for Leave to File Motion for New Trial. (Ex. 23, Doc. 8-1, at 220). The trial court denied the Motion. (Ex. 24, Doc. 8-1, at 232). Petitioner filed a timely notice of appeal to the Eighth District Court of Appeals. (Ex. 25, Doc. 8-1, at 233). Petitioner filed a brief in support asserting one assignment of error:
(Ex. 27, Doc. 8-1, at 244). The State filed a brief in opposition. (Ex. 28, Doc. 8-1, at 268). On May 5, 2016, the Eighth District Court of Appeals affirmed the judgment of the trial court. (Ex. 29, Doc. 8-1, at 279). Petitioner did not appeal to the Ohio Supreme Court.
Petitioner filed a pro se Petition with the United States District Court on August 18, 2016. (Doc. 1). In it, Petitioner raises four grounds for relief:
(Doc. 1, at 2-9)
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "dictates a highly deferential standard for evaluating state-court rulings which demands that state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005). An application for habeas corpus cannot be granted for a person in custody pursuant to a state conviction unless the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d). Thus, a court may grant habeas relief if the state court arrives at a conclusion that is contrary to a decision of the Supreme Court on a question of law, or if the state court decides a case differently than did the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).
The appropriate measure of whether a state court decision unreasonably applied clearly established federal law is whether that state adjudication was "objectively unreasonable" and not merely erroneous or incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 102 (2011). To obtain "habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
Respondent contends Grounds Two, Three, and Four are procedurally defaulted due to Petitioner's failure to present them to all levels of Ohio courts. (Doc. 8, at 11). Respondent further asserts Ground One is meritless and the Petition should be denied. Id. at 19. Petitioner contends he can overcome any default by a showing of cause and prejudice, and his remaining claim has merit. (Doc. 12, at 1). For the reasons outlined below, the undersigned recommends the Petition be denied because Ground Two through Four are procedurally defaulted, and Ground One is meritless.
Before seeking a writ of habeas corpus in federal court, a petitioner must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). This requirement is designed to give state courts the initial opportunity to pass upon and, if necessary, correct errors of federal law in a state prisoner's conviction or sentence. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971). The purpose of exhaustion "is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court." Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
To properly exhaust state remedies, the petitioner must "fairly present" a claim in each of the appropriate state courts, including a state supreme court, in a procedurally appropriate manner. O'Sullivan, 526 U.S. at 845. In Ohio, this requires direct and delayed appeals to the Ohio Court of Appeals and the Supreme Court of Ohio. See Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970).
"It is not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted). The legal and factual "substance" of the federal claim must have been presented to the state courts. Id. The claim to the state courts must be presented as a federal constitutional claim, not merely as an issue arising under state law. Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987); Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
The failure to properly present a federal ground to the state courts constitutes procedural default or waiver barring federal habeas corpus review. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). When the petitioner fails to fairly present to the state courts the claim on which he seeks relief in federal court, and the opportunity to raise that claim in state court has passed, the petitioner has procedurally defaulted that claim. O'Sullivan, 526 U.S. at 853-54.
If the State argues a petitioner has procedurally defaulted his claims, the court must conduct a four-step analysis to determine whether the petitioner has indeed defaulted and, if so, whether the procedural default may be excused:
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986).
Demonstrating "cause" requires a petitioner to "show that `some objective factor external to the defense' prevented the petitioner's compliance with a state procedural rule." Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Demonstrating prejudice requires a petitioner to show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." U.S. v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
A procedural default will also be excused if the petitioner demonstrates that not excusing the default "will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court has held that such an inquiry requires a petitioner "supplement[ ] a constitutional claim with a `colorable showing of factual innocence.' "McCleskey v. Zant, 499 U.S. 467, 495 (1991) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Maintaining this exception to the rule against reviewing procedurally defaulted claims serves as "an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty". Id. (quoting Stone v. Powell, 428 U.S. 465, 492-93 (1976)).
In Grounds Two and Three, Petitioner asserts ineffective assistance of trial counsel, and prosecutorial misconduct. (Doc. 1, at 6-7). These claims are based on the trial record. Under Ohio law, claims based on the trial record must be raised on direct appeal, otherwise, res judicata bars their litigation in subsequent state proceedings. Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000). Here, Petitioner failed to raise these claims on direct appeal to the Eighth District Court of Appeals. See Ex. 12, Doc. 8-1, at 48 (raising claims regarding sufficiency, and manifest weight, of the evidence). To the Ohio Supreme Court, Petitioner only raised a single issue regarding sufficiency of the evidence. See Ex. 16, Doc. 8-1, at 118. By not raising the issues in Grounds Two and Three on direct appeal, Petitioner failed to complete one round of state appellate review as required for consideration of his constitutional claims in this Court. See Caver v. Straub, 349 F.3d. 340, 346 (6th Cir. 2003). Because they were based on the trial record, any attempt to raise them now would be barred by res judicata. Seymour, 224 F. 3d at 555. Therefore, these claims are procedurally defaulted.
In his Rule 26(B) application to reopen, Petitioner raised the ineffective assistance of trial counsel issue contained in Ground Three. See Ex. 20, Doc. 8-1, at 173, 176. However, as noted above, such claims must be raised on direct appeal, otherwise, res judicata bars their litigation in subsequent state proceedings. Seymour, 224 F.3d at 555. A Rule 26(B) application is not as broad as a direct appeal. The only claims which may be raised on a Rule 26(B) are those surrounding ineffective assistance of appellate counsel. A Rule 26(B) application is therefore not a mechanism for "bootstrapping underlying constitutional claims that were omitted from the direct appeal in the first place." Stojetz v. Ishee, 389 F. Supp. 2d. 858, 899 (S.D. Ohio 2005). Thus, Petitioner is unable to use his Rule 26(B) application to preserve his underlying prosecutorial misconduct and trial counsel issues here.
In sum, the undersigned finds Grounds Two and Three are procedurally defaulted. These claims may therefore not be considered by this court unless Petitioner can show cause and prejudice or a miscarriage of justice.
Here, Petitioner has not argued cause and prejudice to overcome the procedural default of Grounds Two and Three. Petitioner has not provided cause to overcome his failure to raise these claims on direct appeal, but presents an argument for cause to overcome the default of the ineffective assistance of appellate counsel claim itself. As noted above, an ineffective assistance of appellate counsel claim does not preserve the underlying claims. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir.2008) ("bringing an ineffective assistance claim in state court based on counsel's failure to raise an underlying claim does not preserve the underlying claim for federal habeas review"). Moreover, while a fairly presented and valid claim of ineffective assistance of appellate counsel can serve as cause to overcome a procedural default, Goldberg v. Money, 692 F.3d 534, 537 (6th Cir. 2012) (citing Edwards v. Carpenter, 529 U.S. 446, 456 (2000)), as discussed below, Petitioner has not shown prejudice to overcome the default of his claim. Therefore, the noticefiling issue of his Supreme Court appeal outlined below can only serve as cause to explain the procedural default in Ground Four — not Grounds Two and Three. And, because the undersigned finds no prejudice below, the notice-filing issue cannot serve as prejudice here.
In his fourth ground for relief, Petitioner contends his appellate counsel was ineffective for failing to "rais[e] errors that could have [affected] the outcome of the appeal or at least not caused them to be procedurally defaulted." (Doc. 1, at 9).
Petitioner properly raised the issue presented in Ground Four—ineffective assistance of appellate counsel—in his Rule 26(B) application for reopening. See Ex. 21, Doc. 8-1, at 173, 176. However, Petitioner failed to appeal the Eighth District Court of Appeals' denial of this claim to the Ohio Supreme Court. Again, as outlined above, Petitioner failed to complete a full round of state appellate review on the issue by not presenting it to the Ohio Supreme Court. See Caver, 349 F.3d. at 346; O'Sullivan, 526 U.S. at 845. Thus, the undersigned finds Ground Four is also procedurally defaulted.
Petitioner asserts he can overcome the procedural default of Ground Four by demonstrating cause and prejudice.
As cause, Petitioner argues Ground Four was not presented to the highest court in Ohio in an appeal of his Rule 26(B) application because the Eighth District Court of Appeals failed to notify him of its November 2, 2015 ruling. (Doc. 12, at 3-4). Thus, Petitioner argues, he did not submit an appeal to the Ohio Supreme Court because, by the time he realized the Eighth District Court of Appeals rendered a decision, the 45-day deadline had passed. Id. at 3. In support, Petitioner submits prison mail logs (Doc. 11-1, at 4) and notarized correspondence with the clerk of the Eighth District Court of Appeals (Doc. 11-1, at 1-2).
The Sixth Circuit has concluded such a lack of notice may serve as cause to overcome a procedural default. In Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007), neither Petitioner nor his attorney received formal notice of the state court's order denying his post-conviction appeal. The Sixth Circuit found this procedural error was outside Petitioner's control, and established cause to excuse the procedural default resulting from Petitioner's failure to timely appeal denial of the petition. Id. As noted above, demonstrating "cause" requires a petitioner to "show that `some objective factor external to the defense' prevented the petitioner's compliance with a state procedural rule." Bonilla, 370 F.3d at 498 (quoting Murray, 477 U.S. at 488). In light of the circumstances and evidence presented in support, the undersigned finds Petitioner has demonstrated cause to overcome the procedural default of Ground Four.
Next, the Court turns to whether Petitioner has shown prejudice from the default. For the following reasons, the undersigned concludes that Petitioner has not met his burden and recommends Ground Four be denied as procedurally defaulted.
In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984)). It is important to note that the test applies to appellate counsel. Id; Smith v. Robbins, 528 U.S. 259, 285 (2000); Parks v. Bobby, 545 F. App'x 478, 481 (6th Cir. 2013); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland . . . there is no inequity in requiring him to bear the risk of attorney error that results in a procedural default."). An appellate attorney need not advance every argument, regardless of merit, urged by the appellant. Jones v. Barnes, 463 U.S. 745, 751-52 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues."). "In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner must show errors so serious that counsel was scarcely functioning as counsel at all and that those errors undermine the reliability of the defendant's convictions." McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir. 2000).
Importantly, the failure to raise an underlying claim in an appeal which would have been unsuccessful is not ineffective assistance of appellate counsel. Meek v. Bergh, 526 F. App'x 530, 534 (6th Cir. 2013). "Counsel's performance is strongly presumed to be effective." McFarland v. Yukins, 356 F.3d 688,710 (6th Cir. 2004) (quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000)). To prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show that appellate counsel "ignored issues [which] are clearly stronger than those presented." Smith, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). Establishing prejudice for ineffective assistance of counsel likewise establishes prejudice for purposes of cause and prejudice. Joseph v. Coyle, 469 F.3d 441, 462 (6th. Cir. 2006). Therefore, if Petitioner cannot show prejudice from the underlying ineffective assistance of counsel claim, he cannot show prejudice for the purpose of cause and prejudice to overcome a default. Id.
In his Rule 26(B) application, Petitioner asserted his appellate counsel was deficient for failing to raise two issues:
(Ex. 21, Doc. 8-1, at 173, 176).
In its denial of Petitioner's Rule 26(B) application, the Eighth District Court of Appeals rejected Petitioner's claims:
Barrow II, 2015 WL 6796756; (Ex. 22, Doc. 8-1, at 216).
The appellate court found Petitioner's first assignment of error — prosecutorial misconduct — was without merit. Id. at ¶ 9. The court found the prosecutor properly introduced evidence of the stolen firearm, and the "or else" threat made by Petitioner before the assault. Id. In analyzing the statement's admissibility under Evidence Rule 404(B), the court determined the evidence spoke to motive — an essential element of attempted murder. Id. Thus, the court found no error in the statement's admission and found appellate counsel could have rejected Petitioner's argument "in the exercise of professional judgment". As noted above, there is a strong deference to the professional judgment of appellate counsel and what arguments he or she chooses to pursue or abandon. See Jones, 463 U.S. at 751-52 ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.").
The record here fails to establish appellate counsel was ineffective for failing to raise a prosecutorial misconduct issue. Further, the Ohio court's determination on the issue was not an unreasonable application of federal law. Thus, the undersigned finds Petitioner has failed to establish he was prejudiced by the omission.
The court also found Petitioner's second assignment of error — trial counsel's failure to object to allegedly prejudicial statements — lacked merit. Barrow II, 2015 WL 6796756 at ¶ 10. The prejudicial statements at trial surround a witness referring to Petitioner as a "pimp" during her testimony. Id. As the court pointed out, trial counsel objected to that witness being called, and also objected during her testimony. Id. Perhaps most striking, appellate counsel actually incorporated these arguments into the manifest weight of the evidence argument in his appellate brief. Id.; (Ex. 11, Doc. 8-1, at 64-65). As it did with the first assignment of error, the court again determined it would not second-guess appellate counsel's professional judgment. Barrow II, 2015 WL 6796756 at ¶ 10.
Again, the record here fails to establish appellate counsel was ineffective. In this case, appellate counsel did raise the issue — albeit not to Petitioner's satisfaction. For these reasons, the undersigned finds Petitioner has also failed to establish he was prejudiced by this omission.
In sum, the undersigned finds Ground Four is procedurally defaulted, and Petitioner has cause to overcome the default. However, Petitioner has failed to show he was prejudiced by appellate counsel's failure to raise these claims on direct appeal. As such, the undersigned recommends Ground Four of the Petition be denied.
In Ground One, Petitioner argues the evidence presented by the State was insufficient to establish, beyond a reasonable doubt, that he was guilty of attempted murder pursuant to Ohio Revised Code § 2903.02(A). (Doc. 1, at 5). Respondent asserts this ground for relief is without merit, and the State court's determination on the issue is entitled to AEDPA deference. (Doc. 8, at 19). For the reasons outlined below, the undersigned finds Ground One is meritless, and recommends this portion of the Petition be denied.
The standard for sufficiency of evidence is: "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Consistent with the deference given to the trier of fact's resolution of conflicts in evidence, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume— even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. In applying this standard, the federal court is bound by the substantive elements of the criminal offense as defined by state law. Id. at 324 n.16. Furthermore, a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
As such, the reviewing court is not permitted to reweigh evidence or in any way substitute its own opinion for that of the trier of fact. United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)). "[T]he Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993) (emphasis in original). Due process is satisfied as long as such evidence is enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a reasonable speculation that the petitioner is guilty of the charged crime. Newman v. Metrish, 543 F.3d 793, 796-97 (6th Cir. 2008).
Further, it is important to note the double deference applicable; first, the deference accorded to the trier of fact's verdict by Jackson; and second, the deference to the state court's consideration of the verdict under AEDPA. See Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008); see also Brown, 567 F.3d at 205 (finding even if a rational trier of fact could not have found petitioner guilty, the habeas court must defer to the state appellate court's sufficiency determination so long as it is reasonable). "[T]he Jackson v. Virginia standard is so demanding that `[a] defendant who challenges the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.'" Davis, 658 F.3d at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)); see also Cavazos v. Smith, 565 U.S. 1, 4 (2011) ("Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.").
Here, Petitioner challenges the sufficiency of the evidence to support his attempted murder conviction under Ohio Revised Code §§ 2923.02/2903.02(A). (Doc. 1, at 5). Under Ohio law, a person "attempts" a crime when he "purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, [] engage in conduct that, if successful, would constitute or result in the offense." O.R.C. § 2923.02(A). A person commits the offense of murder in Ohio when he "purposely cause[s] the death of another. . . ." O.R.C. § 2903.02(A).
The Eighth District Court of Appeals addressed the sufficiency of the evidence underlying Petitioner's attempted murder conviction as follows:
Barrow I, 2015 WL 628358.
Petitioner argues the trial testimony does not support the allegation he purposely engaged in conduct which, if successful, would cause the death of another. (Doc. 12, at 4). Specifically, he points to testimony the victim grabbed Petitioner before he shot the victim in the shoulder — away from vital areas. Id. at 5; Barrow I, 2015 WL 628358 at ¶ 15. Petitioner argues the gun was used "for protection and to cause fear, not to kill". (Doc. 12, at 5). Upon review of the evidence presented and the applicable law, the undersigned recommends the court find the appellate court's decision that there was sufficient evidence to uphold Petitioner's attempted murder conviction was not unreasonable.
In its ruling, the appellate court conducted a fact-specific inquiry and found the State proved every essential element of attempted murder beyond a reasonable doubt. See Barrow I, 2015 WL 628358 at ¶ 17. Specifically, the court addressed Petitioner's assertion that he lacked intent required to kill the victim because he shot him in the shoulder. Id. at ¶ 16. The court found that a firearm is an inherently dangerous weapon from which the intent to kill may be reasonably inferred. Id. (citing State v Robinson, 161 Ohio St. 213, 218-219, 118 N.E.2d 517 (1954); State v. Brown, 8th Dist. Cuyahoga No. 92814, 2010-Ohio-661, ¶ 52 (death is the natural and probable consequence of shooting a gun at someone)). Further, the court emphasized Petitioner's intent by noting the State presented evidence that "a week before the shooting, [Petitioner] threatened the victim's family by brandishing a firearm and telling them to return his missing property `or else.'" Id.
Taking the evidence in the light most favorable to the prosecution, this is sufficient evidence from which a jury could conclude Petitioner "purposely or knowingly . . . engage[d] in conduct that, if successful, would constitute or result in the offense" O.R.C. § 2923.02(A) — the "offense" being the purposeful taking of a human life. O.R.C. § 2903.02(A). And, to the extent Petitioner is challenging the state appellate court's determination as to the evidence necessary to satisfy the elements of attempted murder under Ohio law, this Court is bound by the state court's interpretation of state law. Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002) ("`What is essential to establish an element, like the question whether a given element is necessary, is a question of state law.'") (quoting Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)).
Ultimately, a rational trier of fact could find Petitioner guilty beyond a reasonable doubt of attempted murder based on the evidence presented at trial and the state appellate court's application of the law to these facts so holding is not unreasonable. Here, Petitioner has failed to demonstrate with clear and convincing evidence that the appellate court's rejection of his sufficiency challenge was contrary to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d). Therefore, the undersigned recommends denying Ground One as meritless.
Following review, and for the reasons stated above, the Court recommends the Petition be denied.
