THOMAS M. PARKER, Magistrate Judge.
This is state prisoner's habeas case under 28 U.S.C. § 2254.
Magistrate Judge Parker, to whom this case was referred under Local Rule 72.2(b), has prepared a Report and Recommendation recommending that I deny habeas relief. (Doc. 24). The petitioner, David Gipson, has not filed an objection, despite the Magistrate Judge's warning that a failure to file such objections within fourteen days after entry of the R&R "may waive the right to appeal the District Court's order." (Id., PageID 858).
Nevertheless, I have conducted a de novo review of the R&R and find it well-taken in all respects.
It is, therefore,
ORDERED THAT:
3. No certificate of appealability will issue.
So ordered.
Currently before me is the petition of David Trumen Gipson, Ohio Inmate #A717309, for a writ of habeas corpus under 28 U.S.C. § 2254.
On July 8, 2015, an Ohio jury found Gipson guilty of two counts of domestic violence and one count of theft.
Gipson's petition raises six grounds for relief.
On April 16, 2015, an Allen County, Ohio grand jury indicted Gipson on two counts of domestic violence in violation of Ohio Rev. Code § 2919.25(A) and (D)(3) and one count of theft from a person in a protected class in violation of Ohio Rev. Code § 2913.02(A)(3) and (B)(3); ECF Doc. 15-1 at 39-40. Gipson, represented by counsel, entered a not guilty plea. ECF Doc. 15-1 at 50-51.
The case proceeded to trial. The jury found Gipson guilty of all charges. ECF Doc. 15-1 at 44. The trial court imposed an aggregate prison sentence of 54 months. ECF Doc. 15-1 at 57.
Gipson filed a pro se notice of appeal (ECF Doc. 15-1 at 60) and his attorney also filed a notice of appeal. ECF Doc. 15-1 at 71. Through the same counsel who represented him at trial, Gipson filed an appellate brief raising the following assignments of error on direct appeal:
ECF Doc. 15-1 at 84-85. The court of appeals affirmed the trial court's judgment on March 14, 2016. ECF Doc. 15-1 at 177. Gipson's deadline to appeal to the Ohio Supreme Court was April 28, 2016
On July 1, 2016, Gipson filed a pro se motion for leave to pursue a delayed appeal in the Ohio Supreme Court. ECF Doc. 15-1 at 204. On August 31, 2016, the Ohio Supreme Court denied the motion and dismissed the case. ECF Doc. 15-1 at 234. Gipson took no further action on his direct appeal.
On January 25, 2017, Gipson filed a pro se petition to vacate or set aside sentence and requested an evidentiary hearing. ECF Doc. 15-1 at 235. Gipson claimed that his speedy trial rights were violated and that his convictions were against the manifest weight of the evidence. ECF Doc. 15-1 at 236-237. The trial court denied Gipson's petition on January 26, 2017. ECF Doc. 15-1 at 242. Gipson did not appeal the trial court's decision.
Between May 15, 2017 and December 26, 2017, Gipson filed five pro se motions for judicial release. ECF Doc. 15-1 at 252, 260, 264, 268, 274. Gipson also filed a motion for modification of sentence. ECF Doc. 15-1 at 280. The trial court issued a judgment entry on June 28, 2017 denying Gipson's motion for modification of sentence. ECF Doc. 15-1 at 281. The court held that Gipson's argument was barred by res judicata because he did not raise it during trial or on appeal. Gipson did not appeal.
On February 2, 2017, Gipson filed a pro se Ohio App. R. 26(B) application to reopen his direct appeal. ECF Doc. 15-1 at 243. Gipson claimed that his attorney failed to introduce evidence and raise issues at trial. ECF Doc. 15-1 at 243. He also argued that his request for dismissal for lack of speedy trial was denied; that a pellet gun admitted in evidence at trial was not relevant to the charges against him; and that his convictions were against the manifest weight of evidence. ECF Doc. 15-1 at 244. Gipson then argued that the following issues were not considered on appeal due to ineffective assistance of appellate counsel:
ECF Doc. 15-1 at 245-246.
On March 17, 2017, the state court of appeals denied Gipson's application to reopen as untimely and because it did not set forth any genuine issues as to whether Gipson was deprived of effective assistance of counsel on appeal. ECF Doc. 15-1 at 250. Gipson filed no appeal.
On September 25, 2017,
ECF Doc. 1 at 6.
We begin with the factual determinations from the Ohio courts. Factual findings of state courts are presumed correct unless a petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013). The Ohio Court of Appeals made the following findings of fact:
State v. Gipson, 3rd Dist. Allen No. 1-15-51, 2016-Ohio-994.
Warden Schweitzer moves to dismiss Gipson's petition for failing to meet the requirements under Rule 2 of the Rules Governing 2254 cases, which provides in relevant part:
Warden Schweitzer argues that Gipson's petition is not sufficient and cannot be rationally interpreted. Warden Schweitzer cites sentences from each of Gipson's grounds arguing that they are incomprehensible. The warden also cites Mayle v. Felix, 545 U.S. 644, 656, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) in which the Supreme Court noted that
Mayle evaluated whether a later-filed ground related back to the original filing of the habeas petition. Here, the court need not consider whether grounds relate back to the original filing and the court has already ordered a responsive pleading. Although Gipson's claims are difficult to understand, at this stage — after the responsive pleading has been filed — I recommend that the court decline to dismiss the petition pursuant to Rule 2(c), particularly when it is clear that all of Gipson's claims for relief have been procedurally defaulted.
Warden Schweitzer argues that Gipson failed to exhaust the grounds stated in his petition by failing to present them on direct appeal to the Ohio Supreme Court. Under AEDPA, state prisoners must exhaust all possible state remedies, or have no remaining state remedies, before a federal court can review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). This entails giving 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 v. Boerckel, 526 U.S. 838, 845 (1999). In other words, "the highest court in the state in which the petitioner was convicted [must have] been given a full and fair opportunity to rule on the petitioner's claims." Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement, however, "refers only to remedies still available at the time of the federal petition." Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). It "does not require pursuit of a state remedy where such a pursuit is clearly futile." Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
A petitioner may procedurally default a claim by failing to "fairly present" the claim in state court and pursue that claim through the state's "ordinary appellate review procedures," if, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim. Williams, 460 F.3d at 806 (quoting O'Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003) ("Issues not presented at each and every level [of the state courts] cannot be considered in a federal habeas corpus petition."). Under these circumstances, although the exhaustion requirement is technically satisfied because a petitioner no longer has any state-court remedies available, the petitioner's failure to have the federal claims fully considered in the state courts constitutes a procedural default of those claims, barring federal habeas review. Williams, 460 F.3d at 806 ("[When] state court remedies are no longer available to a petitioner because he or she failed to use them within the required time period, procedural default and not exhaustion bars federal court review."); see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("Because the exhaustion requirement `refers only to remedies still available at the time of the federal petition,' . . ., it is satisfied `if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law' . . . ." (internal citations omitted)).
Furthermore, to "fairly present" a claim to a state court, a petitioner must assert both its legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228 F.3d 674, 681 (6
There is a second type of procedural default that is related to but "distinct" from exhaustion. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain consideration of a federal constitutional claim by state courts because he failed to: (1) comply with a state procedural rule that prevented the state courts from reaching the merits of the petitioner's claim; or (2) fairly raise that claim in the state courts while state remedies were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle, 456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining procedural default, the federal court again looks to the last explained state-court judgment. Ylst, 501 U.S. at 805; Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).
When a state court declines to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement, federal habeas review is barred as long as the state judgment rested on "independent and adequate" state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be independent, a state procedural rule and the state courts' application of the rule must not rely in any part on federal law. Id. at 732-33. To be adequate, a state procedural rule must be "`firmly established' and `regularly followed'" by the state courts at the time it was applied. Beard v. Kindler, 558 U.S. 53, 60-61 (2009).
A preliminary finding that a claim has been procedurally defaulted does not end the court's analysis of the issue. In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit outlined the now-familiar evaluation district courts must make when the state argues that a habeas claim is defaulted because of a prisoner's failure to observe a state procedural rule:
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin, 785 F.2d at 138) (further citations omitted).
Here, Gipson arguably raised portions of his habeas claims in his direct appeal to the Ohio Court of Appeals. However, he failed to file a timely appeal seeking further review in the Ohio Supreme Court. Gipson did seek leave to pursue a delayed appeal in the Ohio Supreme Court, but that request was denied. In so ruling, the Ohio Supreme Court enforced an adequate and independent state procedural rule which deprived Gipson of further review. Thus, all of Gipson's habeas claims were procedurally defaulted because he did not obtain rulings on the merits of those claims by the highest state court. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004), citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
Gipson also filed a Rule 26(B) motion to reopen his appeal (in which he attempted to assert some of the issues he has raised in his habeas petition). But the court of appeals found that it was untimely and that it did not raise any genuine issues related to whether Gipson was deprived of effective assistance of counsel on appeal. ECF Doc. 16 at 250. Thus, the court of appeals also enforced an adequate and independent state procedural rule in finding that Gipson's motion was untimely. And, Gipson did not appeal that ruling to the Ohio Supreme Court. Any claims he attempted to raise in his Rule 26(B) application to reopen appeal were also procedurally defaulted. See Parker v. Bagley, 543 F.3d 859, 862 (6th Cir. 2008).
Warden Schweitzer argues that Gipson's habeas claims have been procedurally defaulted on several other grounds. For example, he points out that Gipson failed to raise some of them in his direct appeal to the Ohio Court of Appeals and asserts that they are barred by the doctrine of res judicata. ECF Doc. 15 at 82-83. He also argues that some of Gipson's grounds may be barred by Ohio's firmly-established contemporaneous objection rule. ECF Doc. 15 at 83. I concur that there are several grounds for finding Gipson's habeas claims to have been procedurally defaulted. Unless he can demonstrate cause to excuse his default and actual prejudice, his petition should be dismissed as procedurally defaulted.
A petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice that resulted from the alleged violation of federal law, or that there will be a "fundamental miscarriage of justice" if the claim is not considered. Coleman, 501 U.S. at 750. "`[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot be fairly attributed to him." Id. "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. "A fundamental miscarriage of justice results from the conviction of one who is `actually innocent.'" Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Gipson's arguments are difficult to understand. However, it does not appear that he argues that he was prevented from filing timely appeals to the Ohio Supreme Court. In other words, he does not argue that some reason, external to himself, caused him to procedurally default his claims. Nor has he shown actual prejudice. As explained further below, his claims lack merit. He cannot, therefore, overcome the procedural default of his habeas claims. None of his arguments was raised in both the Ohio Court of Appeals and the Ohio Supreme Court. In order to obtain federal habeas review, it was necessary that each claim was fully and fairly presented at each level of the state direct review process. By not raising each argument at both the initial and supreme court levels, Gipson procedurally defaulted them.
Gipson appears to assert that he procedurally defaulted his claims due to ineffective assistance of counsel. ECF Doc. 7 at 6. In Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L. Ed. 2d 518 (2000), the United States Supreme Court decided whether a federal habeas court is barred from finding ineffective assistance of counsel to be "cause" for the procedural default of another claim when the ineffective assistance claim is itself procedurally barred. Id. at 1591. The Supreme Court held that "cause" to excuse a procedural default could be established in certain circumstances by counsel's ineffectiveness in failing to preserve the claim for review in state court. Id. However, the ineffective assistance of counsel claim must first be exhausted in state court. Id. If the ineffective assistance of counsel claim is also procedurally defaulted, the prisoner may rely upon ineffective assistance of counsel if, and only if, he satisfies the cause and prejudice standard with respect to that claim as well. Id. at 1591-1592.
Gipson cannot rely on an ineffective assistance of trial counsel claim to establish cause for his failure to exhaust his state court remedies and/or to file timely appeals with the Ohio Supreme Court because he did not raise that issue on direct appeal. To the extent that Gipson presented his argument that trial counsel was ineffective, the state courts did not recognize the issue. He did not present this issue in his direct appeal, and his motion to reopen his direct appeal pursuant to Ohio App. R. 26(B) was untimely. Gipson attempted to assert ineffective assistance of trial counsel in his untimely application to reopen. However, only claims of ineffective assistance of appellate counsel are cognizable under Ohio App. R. 26. See Woodley v. Ohio, No. 3:13 CV 1552, 2014 U.S. Dist. LEXIS 17784. Ineffective assistance of counsel cannot serve as "cause" in this case because that issue, like Gipson's other arguments, was procedurally defaulted.
Further, Gipson has made no manifest injustice argument by claiming he is actually innocent, and he has presented no new, reliable evidence that would substantiate such a claim. In short, Gipson failed to exhaust his claims in state court and they are now procedurally defaulted. I recommend that the court dismiss all of Gipson's claims as having been procedurally defaulted.
Though not necessary, in order to be of greatest assistance to the court, I will proceed to consider the merits of some of Gipson's arguments. Federal courts considering habeas petitions are not required to reach a final conclusion on a procedural default issue before addressing the merits. Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003); Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015). If the Court prefers to rule on the merits, I have set forth an evaluation below.
As noted above, AEDPA governs Gipson's petition for writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). AEDPA, which amended 28 U.S.C. § 2254, was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and `to further the principles of comity, finality, and federalism.'" Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). AEDPA "recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Burt v. Titlow, 134 S.Ct. 10, 15 (2013). It therefore "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Id.
One of AEDPA's most significant limitations on district courts' authority to grant writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either:
28 U.S.C. § 2254(d).
A state court has adjudicated a claim "on the merits," and AEDPA deference applies, regardless of whether the state court provided little or no reasoning at all for its decision. Harrington v. Richter, 562 U.S. 86, 99 (2011).
"Clearly established Federal law" for purposes of § 2254(d)(1) "is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes "only the holdings, as opposed to the dicta, of [Supreme Court] decisions." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). The state court decision need not refer to relevant Supreme Court cases or even demonstrate an awareness of them; it is sufficient that the result and reasoning are consistent with Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). And a state court does not act contrary to clearly established law when the precedent of the Supreme Court is ambiguous or nonexistent. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).
A state court decision is contrary to "clearly established Federal law" under § 2254(d)(1) only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). And "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A state court decision is an "unreasonable determination of the facts" under § 2254(d)(2) only if the court made a "clear factual error." Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). The petitioner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." Burt, 134 S. Ct. at 15; see also Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). This requirement mirrors the "presumption of correctness" AEDPA affords state court factual determinations, which only can be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Supreme Court has cautioned, "`a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Burt, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
The Supreme Court repeatedly has emphasized that § 2254(d), as amended by AEDPA, is an intentionally demanding standard, affording great deference to state court adjudications of federal claims. The Court has admonished that a reviewing court may not "treat[] the reasonableness question as a test of its confidence in the result it would reach under de novo review," and that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington, 562 U.S. at 102; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."). Rather, § 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems" and does not function as a "substitute for ordinary error correction through appeal." Harrington, 562 U.S. at 102-03 (internal quotation marks omitted). Thus, a petitioner "must show that the state court's ruling . . . 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. This is a very high standard, which the Court readily acknowledges: "If this standard is difficult to meet, that is because it is meant to be." Id. at 102.
Gipson argues that he was denied effective assistance of counsel in the trial court by trial counsel's "failures and inability to adequately advocate petitioner's defense. Absence of such skill and knowledge to bolster petitioner's defensive position deprived the confidence of the fairness of litigation as should be found by due process of law ..." Gipson's traverse further argues:
ECF Doc. 7 at 4.
To prevail on his ineffective assistance claims, Gipson must show that the state court's conclusion was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984). Strickland established the well-known twopronged test for ineffective assistance of counsel claims: the petitioner must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. at 687. Gipson cannot satisfy either Strickland prong.
The proper standard for attorney performance is "reasonably effective assistance." Id. To succeed, Gipson must demonstrate that his attorney's "representation fell below an objective standard of reasonableness." Id. at 688. The prejudice prong requires demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Furthermore, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689.
Gipson lists a string of his attorney's decisions that he contends were errors. ECF Doc. 7 at 5-6. But each of these decisions, if even applicable to Gipson's case, appears to be an issue of trial strategy that does not constitute a deficiency on counsel's part.
For example, Gipson argues that trial counsel erred by failing to argue prosecutorial misconduct (because the state presented no expert witness testimony to prove the requisite mens rea elements for the charged offenses). Gipson cites no case law to support this argument and it is likely that none exists. It would be unusual for the state to call an expert witness to prove the element of mens rea in a case involving domestic violence and theft from the elderly, particularly when Gipson's sanity was not an issue in the case. Gipson has failed to show any breach of duty by his attorney in regard to this argument.
Gipson also argues that his counsel "failed to make proper showing of contest involving the state's contentions about the nature of if the evidence provided by the court was sufficient to be held as manifest weight of the evidence and escape the true adversarial debate." It is unclear what Gipson is really arguing. But his trial counsel, who also represented him on appeal, raised a manifest weight/sufficiency of the evidence claim as his third assignment of error on direct appeal. The state court of appeals considered the assignment of error and issued a thorough decision rejecting it. The state court of appeals found that there was more than enough evidence to support Gipson's convictions. I concur with this finding. ECF Doc. 15-1 at 184-198. But even if I had disagreed with the court of appeals' findings, I could not say that the Ohio Court of Appeals was "objectively unreasonable" in concluding that a rational trier of fact could have found Gipson guilty beyond a reasonable doubt.
Federal habeas review is available for insufficient evidence arguments. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). States have the power to determine the elements of criminal offenses, See Engle v. Isaac, 456 U.S. 107 (1982); Jackson, 443 U.S. at 324, but the Due Process Clause prohibits states from convicting "without proving the elements of that crime beyond a reasonable doubt." Fiore v. White, 531 U.S. 225, 228-229 (2001).
A habeas court must determine "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." Jackson, 443 U.S. at 319. (Emphasis in original). "[T]he Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence decision, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993).
Because both Jackson and AEDPA apply to Gipson's sufficiency claim, federal habeas review requires deference at two levels. "First, deference should be given to the trier of fact's verdict, as contemplated by Jackson; second, deference should be given to the [state court's] consideration of the trier-of-fact's verdict, as dictated by AEDPA." Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). The Sixth Circuit has explained:
Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010). The Sixth Circuit has observed 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)).
It is well settled that claims regarding the manifest weight of the evidence are grounded in state law and are not cognizable on federal habeas review. See, e.g., Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983). Federal habeas review is available for insufficiency of the evidence arguments but, as already noted, the state court of appeals considered this argument and issued a thorough decision rejecting it. I concur with the state court's decision. Gipson has not argued or identified any incorrect application of binding U.S. Supreme Court precedent concerning the appellate review of his claims. Moreover, Gipson cannot successfully base his ineffective assistance of counsel ground on his counsel's failure to raise insufficiency of the evidence as an issue on appeal because he raised this issue. Thus, in addition to being procedurally defaulted, Ground One lacks merit. I recommend that Ground One be dismissed.
Gipson's Ground Two claim asserts that he was denied effective assistance of appellate counsel. ECF Doc. 1 at 6. Gipson argues that appellate counsel failed to "advocate petitioner's grounds and contentions ... probe, identify and investigate obvious errors." He argues that he was denied "fair and full" appellate review. Unfortunately, Gipson has not identified any specific assignments of error that his appellate counsel failed to raise. His traverse sheds little light on this claim. There, he states:
Smith v. Robbins, 528 U.S. 259 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate counsel, the court must assess the strength of the appellate claims that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6
Gipson has not identified any issues that appellate counsel should have raised. He argues that appellate counsel was incompetent and that his cumulative errors deprived Gipson of effective counsel. But without alleging specific issues that counsel failed to raise, the court is unable to determine whether those issues would have prevailed or that they were stronger than the ones presented. I concur with Warden Schweitzer's argument that the court is not obligated to recharacterize and find arguments Gipson might or should have made. Because Gipson has not identified issues that his appellate counsel should have raised on appeal, his Ground Two claim lacks merit. In addition to being procedurally defaulted, Gipson's Ground Two claim should be dismissed for lack of merit.
Gipson's Ground Three claim, asserts that he was denied a fair trial due to cumulative trial errors including an erroneous jury instruction being the catalyst of improper burden shift. ECF Doc. 1 at 6. Gipson's traverse argues that the state was permitted to produce a "bad character" reference at trial. He argues that he was required to prove his innocence and that an improper instruction regarding intent was given without proof being provided. ECF Doc. 7 at 10.
Gipson's Ground Three claim cites no specific errors for the court to consider individually. And, on habeas review, a claim that the cumulative effect of errors rendered a petitioner's trial fundamentally unfair is not cognizable. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir.2005)), cert. denied sub nom Sheppard v. Robinson, U.S. ___, 567 U.S. 910, 132 S.Ct. 2751, 183 L. Ed. 2d 623 (2012).
Regarding Gipson's contention that improper jury instructions were given,
Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L. Ed. 2d 203 (1977). Here, Gipson has not identified the jury instruction he claims was given in error. However, it appears that he is complaining about a jury instruction related to the mens rea of his conviction(s). He argues that there was no evidence of his mens rea. However, as noted above, the court of appeals considered his evidence sufficiency/manifest weight argument and rejected it. The court of appeals found that there was more than enough evidence to support each of the elements of Gipson's convictions, which necessarily included proof of the intent element of the offenses. Gipson also has not identified any U.S. Supreme Court precedent that he contends the Ohio Court of Appeals misapplied. Thus, in addition to being procedurally defaulted, Gipson's Ground Three claim should be dismissed for lack of merit.
Gipson's Ground Four claim is particularly difficult to understand. He argues that his Constitutional right was abused by "suppression and preclusion methodology" that incorporated evidence now shown to be against the manifest weight of the evidence. And unlike Grounds One through Three, Gipson's traverse does not argue this claim. It does not appear that Gipson either moved to suppress any of the state's evidence or was denied the chance to offer any evidence of his own. ECF Doc. 15-1 at 50-51. The court of appeals rejected his manifest weight of the evidence argument (ECF Doc. 15-1 at 184-198), a claim which is not even cognizable on habeas review. See, e.g., Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983). Accordingly, in addition to being procedurally defaulted, Gipson's Ground Four claim should be dismissed for lack of merit.
Gipson's Ground Five claim relates to a jury instruction showing that he was abused. ECF Doc. 1 at 6. It appears that this ground was included in Gipson's petition by error. On the last page of Gipson's traverse, he states: "Please remove Issues #5 from my ground sheet because the guy who was helping me wrote the wrong thing down." ECF Doc. 7-3 at 1. It does not appear that this claim relates to Gipson's case; by Gipson's admission, it was included in his petition in error. Gipson's Ground Five claim should be dismissed as meritless and as procedurally defaulted.
Gipson's Ground Six claim is also difficult to understand. The claim seems to list a variety of arguments, some of which Gipson has raised in other claims. This claim refers to the exclusionary rule, to obligation to produce exculpatory evidence, prosecution misconduct, abuse of discretion by the trial judge, and distorted appellate review affirming an unjust conviction of the petitioner. ECF Doc. 1 at 6. However, none of these topics has been more specifically argued. And Gipson's traverse does not shed any additional light on this ground. As noted above, the court is not obligated to provide argument for a habeas petitioner. And in the absence of additional argument, the undersigned is unable to construe this claim to have raised a specific argument that can be addressed on habeas review. I recommend that this ground be dismissed as procedurally defaulted.
As amended by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. The statute further provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a "substantial showing" of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that "`[a] substantial showing requires the applicant to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.'"" Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)); accord Slack v. McDaniel, 529 U.S. 473, 483-484 (2000). The statute requires that certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks the requirement of § 2253(c)(3) that any grant of a certificate of appealability "state the specific issue or issues that satisfy the showing required by § 2253(c)(2)," Rule 11(a). In light of the Rule 11 requirement that the Court either grant or deny the certificate of appealability at the time of its final adverse order, a recommendation regarding the certificate of appealability issue is included here.
Where, as here, a petition is to be dismissed on a procedural basis, the inquiry under § 2253(c) is two-fold. In such cases, a certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 485 (emphasis added). As the Court explained, "[w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted." Id. at 486.
If the Court accepts the foregoing recommendations concerning procedural default and that Gipson's claims lack merit, Gipson would not be able to show that the court's rulings are reasonably debatable. As noted above, Gipson's failure to fairly present his arguments to the highest state court in accordance with the procedural requirements of Ohio law cannot reasonably be debated. Nor has Gipson asserted any meritorious claims in his petition.
Because Gipson's claims for relief are procedurally defaulted and lack merit, I recommend that the court DENY his claims under 28 U.S.C. § 2254 and DISMISS his petition. I further recommend that Gipson not be granted a certificate of appealability.
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this document. Failure to file objections within the specified time may waive the right to appeal the District Court's order. See U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).
Williams, 460 F.3d at 806 (citing Newton v. Million, 349 F.3d 873, 877 (6
