TERENCE P. KEMP, Magistrate Judge.
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on that petition, the exhibit thereto, respondent's return of writ, the exhibits attached to the return, and petitioner's traverse. For the reasons that follow, the Magistrate Judge
On September 29, 1997, a Franklin County, Ohio grand jury returned an eight-count indictment against petitioner, charging three counts of aggravated murder, one count of attempted aggravated murder, one count of aggravated burglary, two counts of aggravated robbery, and one count of kidnapping. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 1. Each count included a firearm specification, and the aggravated murder counts included additional death penalty specifications. Id. In preparation for the trial, petitioner had the assistance of a publicly-funded investigator. State v. Clinkscale, 2011-Ohio-6385, ¶ 3 (Ohio Ct. App., Franklin Cty. 2011). On October 2, 1998, Petitioner proceeded to trial, and on October 16, 1998, the jury returned verdicts finding Petitioner not guilty of Count One of the Indictment and guilty on all other counts. Id., Exhibit 2. In a judgment entry dated November 4, 1998, the Court sentenced petitioner to imprisonment for life without parole plus fifty-three years. Id., Exhibit 2.
Petitioner appealed and his convictions and sentence were affirmed by the Tenth District Court of Appeals. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 3. The Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Id., Exhibit 4. Petitioner also filed a motion for leave to file a motion for a new trial, which the trial court denied. Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir. 2004). The Ohio Court of Appeals affirmed the trial court and the Ohio Supreme Court denied petitioner's petition for review. Id.
On April 25, 2001, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 5. The District Court denied petitioner's petition for writ of habeas corpus and dismissed the case. Id. On July 8, 2004, the Court of Appeals reversed and granted petitioner a new trial. Id., Exhibits 5 & 6.
On September 11, 2006, petitioner's retrial began. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 7. Once again, he had the assistance of a publicly-funded investigator. State v. Clinkscale, 2011-Ohio-6385, at ¶ 4. The jury returned a verdict of guilty for all seven counts that were retried. Id., Exhibits 7 & 8. The court imposed a sentence of imprisonment for a total of 53 years to life. Id., Exhibits 7 & 8. Petitioner's convictions and sentence were affirmed on direct appeal, but the Ohio Supreme Court reversed, vacated the retrial, and remanded the case to the trial court. Id., Exhibits 9 & 10.
On August 11, 2010, before the third trial and following the Ohio Supreme Court's remand, petitioner filed a motion requesting investigatory fees in an amount not to exceed $1,500. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 11. He sought those fees in order to retain an investigator to interview witnesses. Id., Exhibit 11. On the same day, the trial Court approved funds in the amount of zero dollars. Id., Exhibit 12. On September 24, 2010, petitioner filed a notice of alibi, and on October 7, 2010 he amended his notice of alibi to provide additional details. Id., Exhibits 13 & 14.
On October 22, 2010, Petitioner's third trial commenced. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 16. Petitioner was found guilty of the seven counts that were retried. Id., Exhibit 16. On November 5, 2010, petitioner filed a motion for a new trial. Id., Exhibit 15. On November 8, 2010, following oral arguments, the court denied the motion for a new trial. Id., Tr. Vol. VIII, p. 1472. Following the court's ruling, the court sentenced petitioner to a total term of forty-eight years to life imprisonment. Id., Exhibit 16.
On December 2, 2010, petitioner, through counsel, appealed this decision to the Franklin County, Ohio, Tenth Appellate District. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 17. Petitioner raised seven assignments of error as follows:
Id., Exhibit 18. The State filed a brief in response, and petitioner filed a reply. Id., Exhibits 19 & 20. On December 13, 2011, the Court of Appeals of Ohio, Tenth Appellate District, overruled petitioner's seven assignments of error and affirmed the trial court judgment. Id., Exhibit 21.
On January 18, 2012, petitioner, through the same counsel, appealed the Court of Appeals of Ohio decision to the Ohio Supreme Court. Resp.'s Answer/Return of Writ (Doc. 8), Exhibits 22 & 23. In his memorandum of support, he raised four propositions of law, as follows:
Id., Exhibit 23. The State filed a memorandum in opposition to jurisdiction. Id., Exhibit 24. On April 4, 2012, the Ohio Supreme Court declined jurisdiction and dismissed the appeal as not involving any substantial constitutional question. Id., Exhibit 25.
While the direct appeal from petitioner's conviction and sentence was pending, he also filed a petition to vacate or set aside judgment of conviction or sentence pursuant to ORC 2953.21. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 26. He filed the petition on July 6, 2011, alleging four grounds for relief, as follows:
Id., Exhibit 26. On August 16, 2011, the State filed an answer and motion to dismiss the post-conviction petition. Id., Exhibit 27. On October 13, 2011, the trial court dismissed the petition as having no basis in law or fact, stated that it was doing so without an evidentiary hearing because petitioner had not presented sufficient credible evidence to warrant a hearing, and stated, "[f]urthermore, res judicata bars any claim that could have been raised at trial or on direct appeal." Id., Exhibit 28.
On November 10, 2011, petitioner, through counsel, appealed the denial of his post-conviction petition. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 29. In his supporting memorandum, he raised two assignments of error, as follows:
Id., Exhibit 30. On February, 6, 2012, the State filed a brief in response. Id., Exhibit 31. On June 26, 2012, the Court of Appeals of Ohio, Tenth District, affirmed the judgment of the trial court. Id., Exhibit 32.
On August 6, 2012, petitioner, proceeding pro se, filed a notice of appeal to the Ohio Supreme Court. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 33. In his memorandum in support of jurisdiction, petitioner set forth two propositions of law, as follows:
Id., Exhibit 34. On August 29, 2012, the State filed a memorandum in opposition to jurisdiction. Id., Exhibit 35. On November 7, 2012, the Ohio Supreme Court declined jurisdiction to hear the case and dismissed the appeal as not involving any substantial constitutional question. Id., Exhibit 36.
The facts of the underlying offense are stated in the state court of appeals' opinion deciding the direct appeal to the third trial. This is how the state court of appeals described the evidence at trial:
State v. Clinkscale, 2011-Ohio-6385 (Ohio Ct. App., Franklin Cty 2011).
Petitioner filed his habeas corpus petition in this Court on November 6, 2013. In his petition, he raised the following grounds for relief, stated here exactly as they appear in the petition:
Petition for Writ of Habeas Corpus (Doc. 2).
Respondent filed an answer/return of writ (doc. 8), and petitioner filed a reply (or traverse) (doc. 13). Respondent does not argue that the petition is untimely or that petitioner has failed to exhaust. Respondent argues that one of petitioner's grounds has been procedurally defaulted and argues the remaining four grounds on the merits.
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v. Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008). AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam); see also Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (footnote omitted).
When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
In applying this statute, the Supreme Court has held that "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a Petitioner must show the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 786-87 (2011). This bar is "difficult to meet" because "habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)). In short, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
In situations where the state courts have not adjudicated the merits of a claim, a federal habeas court should review a Petitioner's claim de novo. Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005) ("Where the state court has not addressed or resolved claims based on federal law, most courts, including this one, have held that the decision is not an `adjudication on the merits.' Thus, a federal habeas court reviews such unaddressed claims de novo.") (citing McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003)); see also Pennington v. Jones, 2006 WL 322474, at *2 (E.D. Mich. Feb. 10, 2006) (unpublished) (reviewing habeas Petitioner's claim de novo where he raised it for the first time in his petition).
In situations where the state courts adjudicate the merits of a claim but fail to articulate their reasoning or in situations where "the state court decision does not squarely address the federal constitutional issue in question, but its analysis bears `some similarity' to the requisite constitutional analysis," a modified AEDPA standard of review is applied. Hargrave v. McKee, 248 F. App'x 718, 725 (6th Cir. 2007) (quoting Filiaggi v. Bagley, 445 F.3d 851, 854 (6th Cir. 2006)) (internal quotation marks and additional citations omitted). "This standard of review requires the court to conduct a careful review of the record and applicable law, but nonetheless bars the court from reversing unless the state court's decision is contrary to or an unreasonable application of federal law." Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005).
Questions of state law are not reviewable in a federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.' . . . Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.") (citations and internal quotation marks omitted). Petitioner instead must show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68, 112 S.Ct. 475 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Accordingly, the Sixth Circuit has held that "[e]rrors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
Petitioner's first ground for relief is that he was denied his right to due process and a fair trial when the trial court denied his request for funds for a private investigator to locate a specific witness with knowledge to support the petitioner's alibi defense. Questions of state law are not reviewable in a federal habeas action. See Estelle, 502 U.S. at 67-68. Accordingly, the question before the Court is whether, as petitioner contends, the trial court's decision violated his constitutional rights to due process and a fair trial. Specifically, the question is whether the guarantees of the Fifth, Sixth, and Fourteenth Amendment required the trial court to provide funds to petitioner so that he could hire an investigator to locate alibi witness Brian Fortner.
As respondent has pointed out, the seminal Supreme Court case regarding the rights of indigent defendants to have publicly funded services other than counsel is Ake v. Oklahoma, 470 U.S. 68, 83 (1985). In Ake, the Court discussed the general principles governing indigent defendants' constitutional rights to prepare an effective defense:
Ake v. Oklahoma, 470 U.S. 68, 77 (1985). The Court then set forth three factors that are relevant to the determination: (1) the private interest that will be affected if the safeguard is to be provided; (2) the governmental interest that will be affected if the safeguard is provided; and (3) the probable value of the additional procedural safeguards sought and risk of erroneous deprivation of the affected interest if the safeguards are not provided. Id. The specific question before the Court in Ake was "whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question." Id. at 70. The Court answered that question in the affirmative. Id. at 83.
The Court of Appeals has applied the holding of Ake to non-psychiatric experts. See Terry v. Rees, 985 F.2d 283, 284 (6th Cir. 1993) (stating that Ake's reasoning extended to providing access to a pathologist where that was necessary to presenting an effective defense, but ultimately holding that the failure to provide access to a pathologist was harmless error in that case). Other circuit courts have done the same. See, e.g., Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) ("We must first decide whether the rule of Ake should be applied at all in the present context, where the expert in question is not a psychiatrist, and the death penalty is not a possibility. We think the answer is yes. There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given."); Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir. 1987) ("We nonetheless assume, for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a sufficient showing of need.")
However, even when Ake has been extended to non-psychiatric experts, funding for the expert is not required in every instance. Mason v. Mitchell, 320 F.3d 604, 615-16 (6th Cir. 2003). For instance, in Mason v. Mitchell, the Court of Appeals upheld the district court's denial of the petitioner's petition for habeas corpus, and in doing so, it held that the Ohio Supreme Court did not act in an objectively unreasonable manner when it ruled that the denial of public funds for various experts and one "investigation expert" did not deny the petitioner's constitutional or statutory rights. Id. (citing State v. Mason, 1998-Ohio-370, 82 Ohio St.3d 144, 149 (Ohio 1998)). The Court of Appeals noted that the Supreme Court of Ohio understood Ake to "require that a criminal defendant be provided [nonpsychiatric] expert assistance when necessary to present an adequate defense," and stated that its understanding of Ake was consistent with the principles articulated in Ake. Mason, 320 F.3d at 615 (citing State v. Mason, 1998-Ohio-370)). The Court of Appeals also concluded that the Supreme Court of Ohio was not objectively unreasonable in its application of Ake when it determined that trial courts have discretion in evaluating the probative value of the safeguard sought and the risk of an erroneous deprivation of the affected interest if the safeguard is not provided. Mason, 320 F.3d at 616 (citations omitted).
Here the Ohio Court of Appeals held as follows:
State v. Clinkscale, 2011-Ohio-6385. While the Ohio Court of Appeals did not specifically address the federal constitutional due process requirements, it relied heavily upon State v. Mason, which, as discussed above, specifically address the federal constitutional due process requirements. While the language that the decision quoted was discussing Ohio statutory requirements, the Mason decision did so in the larger context of the federal and state constitutional due process concerns. Where, as here, petitioner presented a constitutional claim to the state court and the court's inquiry bore some similarity to the requisite constitutional analysis, modified AEDPA deference is appropriate. See, e.g., Hargrave v. McKee, 248 F. App'x 718, 725 (6th Cir. 2007); see also Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005); Bey v. Bagley, 500 F.3d 514, 520 (6th Cir. 2007) (citations omitted). "This standard of review requires the court to conduct a careful review of the record and applicable law, but nonetheless bars the court from reversing unless the state court's decision is contrary to or an unreasonable application of federal law." Maldonado, 416 F.3d at 476 (citations omitted).
The Ohio Court of Appeals decision here relies in large part upon the fact that publicly-funded investigators were provided to petitioner in his previous trials. In connection with his first trial, the trial court approved funds for an investigator to gather evidence, including to verify and corroborate petitioner's claimed alibi. Clinkscale v. Carter, 375 F.3d 430, 434 (6th Cir. 2004). That investigator interviewed petitioner and three other potential witnesses, one of whom was Brian Fortner. Id. The investigator prepared a report that provided that "Fortner confirmed that [petitioner] spent the evening with him at Fortner's home, that [Rhonda] Clark came over during the football game and that [petitioner] and Clark retired to an upstairs bedroom after the game." Id. The testimony of Fortner and other alibi witnesses was excluded because the notice of alibi was not filed seven days prior to trial as required by the Rule 12.1. Id. at 435. Petitioner's first conviction was overturned on federal habeas corpus review because the Court of Appeals determined that counsel was ineffective for failing to timely file an alibi notice. The Court stated "[a]t least where — as here — alibi is a critical aspect of a defendant's defense, there is nothing reasonable about failing to file an alibi notice within the time prescribed by the applicable rules . . . ." Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004).
In preparation for the second trial, petitioner had the assistance of a publiclyfunded investigator once again. State v. Clinkscale, 2011-Ohio-6385, at ¶ 4. During that trial, two of petitioner's three original alibi witnesses testified: his father testified in support of his alibi, and Rhonda Parker [previously Rhonda Clark] testified for the prosecution, stating that petitioner asked her to lie about his whereabouts the morning of the attack. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 9, ¶ 5. The conviction resulting from that trial was ultimately vacated by the Supreme Court of Ohio because the trial court made an error in replacing a juror during deliberations and in failing to record the proceedings dismissing the juror. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 10.
On August 11, 2010, before his third trial, petitioner filed a motion for investigatory fees, stating that "[t]here are several witnesses that need to be interviewed and likely will be called at trial." Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 11. The trial court effectively denied that motion on the same day by granting the motion in the amount of $0. Resp.'s Answer/Return of Writ (Doc. 8), Exhibit 12. On October 22, 2010, Petitioner's third trial commenced. Petitioner's father testified in support of his alibi — in particular, testifying to petitioner's arrival at his home in Youngstown at 5:45 a.m. on September 8, 1997. Trial Tr. (Doc. 8-8) at 1141:12-1142:22. Rhonda Parker again testified that petitioner asked her to lie about his whereabouts the morning of the attack. Trial Tr. (Doc. 8-7) at 989:18-993:2. Brian Fortner was not called as a witness. In the prosecution's closing argument, counsel for the prosecution stated, "Did you hear anything about Brian Fortner? He was the front end of the alibi, and he was a very important alibi witness because he hadn't been to Columbus. He may not have even known there had been a murder, that Todne was shot. He was cleared. He was clean. He was pristine. He came to that meeting at the parents, but where is he today?" Trial Tr. (Doc. 8-9) at 1351:16-22. Defense counsel objected and the Court sustained the objection. Id. at 1351:23-1352:1.
In support of his habeas petition, petitioner has provided an affidavit of Brian Fortner that states that he has been willing to testify on petitioner's behalf and that if he testified, he would state that petitioner came to his house on September 7, 1997 in the early evening, that petitioner and Fortner and their girlfriends watched a game on television, that petitioner and Rhonda Parker went upstairs prior to the end of the game and that petitioner did not leave the house until the next morning when he went to see his father. Affidavit (Doc. 2-1).
Following a careful review of the record and applicable law, it appears that the Ohio Court of Appeals decision here was not "contrary to or an unreasonable application of federal law." Bey, 500 F.3d at 520 (citations omitted). The Ohio Court of Appeals ruled that petitioner's motion failed to make a showing that there was a need to locate Brian Fortner, but rather claimed generally, that "[t]here are several witnesses that need to be interviewed and likely will be called at trial." Following two trials at which petitioner had the benefit of two publicly-funded investigators and where the alibi witnesses (including Brian Fortner) had been interviewed by an investigator, and absent a particularized showing of need, it was not unreasonable for the court to conclude that it was unnecessary to fund another investigator to interview several witnesses.
While there were various post-trial explanations for the motion, they were made after the motion was decided. Following trial, while the jury was deliberating, the Court brought up the motion for investigator funds that it had denied and explained its reasoning for denying the motion. Trial Tr. (Doc. 8-9) at 1406:17-1407:18. In response, counsel for petitioner explained the rationale for the motion as follows:
Trial Tr. (Doc. 8-9) at 1407:19-1408:11. This explanation was not in the context of a pending motion.
In addition, petitioner moved for a new trial, because, among other reasons, the trial court did not give the defense expense money to hire an investigator to locate alibi witness Brian Fortner. The trail court permitted oral argument on that motion. Trial Tr. (Doc. 8-10) at 1447:6-13. The trial court ruled as follows:
Trial Tr. (Doc. 8-10) at 1472:15-1473:5. There the trial court once again noted that petitioner failed to show any particularized need for an investigator at the time the motion was filed. Accordingly, the Ohio Court of Appeals' decision that no particularized need for investigator funds was demonstrated at the time of the motion and that, therefore, the trial court did not abuse its discretion is not contrary to or an unreasonable application of federal law following Ake. See, e.g., Mason, 320 F.3d at 615 (citing State v. Mason, 1998-Ohio-370)).
The Ohio Court of Appeals goes on to note that even if the motion had specifically requested investigator funds in order to locate Brian Fortner, which the motion did not do, counsel for defense could have located Brian Fortner without the assistance of an investigator, and, anyway, the jury could have rejected Fortner's testimony in light of the testimony of Rhonda Parker who testified that petitioner asked her to falsely testify about his whereabouts. However, this Court need not consider this alternative argument because the primary rationale provided by the Ohio Court of Appeals was not an unreasonable application of federal law.
Accordingly, Ground One fails to set forth a basis for granting habeas relief to petitioner.
In his second claim for relief, petitioner presents a claim for ineffective assistance of counsel, arguing that his counsel failed to locate and call petitioner's alibi witness, Brian Fortner, to testify at trial. Petitioner raised this claim in his post-conviction motion for relief pursuant to section 2953.21.
While this claim will be considered on the merits, it is worth addressing the issue of res judicata before proceeding. "In Ohio, res judicata has long been held to bar consideration of constitutional claims in post-conviction proceedings brought under Ohio Rev. Code Ann. section 2953.21 when those claims have already been or could have been fully litigated either before judgment or on direct appeal from that judgment." Monzo v. Edwards, 281 F.3d 568, 576-77 (6th Cir. 2002) (citations omitted). Ineffective assistance of trial counsel claims are barred by res judicata "when a defendant who is represented by new counsel on direct appeal fails to raise the issue of ineffective assistance of trial counsel, and the issue could fairly have been determined without resort to evidence outside the record." Id. at 577 (citation omitted). However, here petitioner did present evidence outside the record, and the state courts did not rely upon res judicata as a procedural bar to petitioner's claim. Rather, while both the trial court and the appellate court mention the doctrine of res judicata, each decided the issue on the merits. Respondent also concedes that this ground for relief is entitled to review on the merits and has not been procedurally defaulted. Return of Writ (Doc. 8) at 25. Accordingly, this ground for relief will be considered on the merits.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). The court in Strickland announced the now familiar two-prong test to determine if there was ineffective assistance of counsel, which would result in reversible error:
Strickland, 466 U.S. at 687.
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [. . .]." Id. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
The United States Supreme Court has recently cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). The Court observed that while "`[s]urmounting Strickland's high bar is never . . . easy.' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult . . . ." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010) and citing Strickland, 466 U.S. at 689). The Court instructed that the standards created under Strickland and § 2254(d) are both "`highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The last reasoned decision of the state court regarding this ground was the Ohio Court of Appeals decision affirming the trial court's denial of petitioner's petition to vacate or set aside the judgment of conviction or sentence. The Ohio Court of Appeals addressed that ground for relief as follows:
State v. Clinkscale, 2012-Ohio-2868 appeal not allowed, 2012-Ohio-5149, 133 Ohio St.3d 1466, 977 N.E.2d 694 (Ohio Ct. App. 2012). In so ruling, the Ohio Court of Appeals applied the Strickland standard, see Clinkscale, 2012-Ohio-2868 at ¶ 22, and concluded that petitioner failed to show that counsel's performance was constitutionally deficient by failing to provide evidence that counsel's efforts to locate Brian Fortner and call him as a witness were unreasonably deficient. The Ohio Court of Appeals makes an objectively reasonable argument that counsel satisfied Strickland's deferential standard in trying to locate Brian Fortner. Petitioner is, therefore, not entitled to habeas relief based on the ineffective assistance of counsel claim articulated in Ground Two of petitioner's habeas petition.
In Ground Three, petitioner presents an additional claim for ineffective assistance of counsel, arguing that his counsel failed to state the specific necessity for the additional investigative funds when presenting the motion for such funds to the court. Respondent argues that this claim has been procedurally defaulted.
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. Procedural default can be a fairly complicated doctrine, involving a number of court-made rules and exceptions, but the basic premise is simple and is reflected in the language Congress has used in 28 U.S.C. § 2254.
Under § 2254, a federal court may grant relief to a state prisoner only if that person is being held in custody in violation of the Constitution or law of the United States—that is, that the prisoner's conviction or sentence was unlawful under federal law. In order for a federal court to decide any claims on their merits, "the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). That is so because § 2254(b) states that an application for a writ of habeas corpus filed by someone in petitioner's position "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State. . . ."
One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to [petitioner's] failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case—that is, they are "procedurally defaulted."
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then 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. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Here, respondent argues that petitioner did not present this particular claim for ineffective assistance of counsel on direct appeal, nor did he present it in his postconviction motion for relief pursuant to section 2953.21. Petitioner argues that this claim is interrelated with Ground Two and "can be viewed with the same analysis insofar as counsel would have adequately disposed of his duty to Petitioner in locating and calling Brian Fortner to testify had he properly specified the necessity for the private investigator in his pretrial motion." Traverse (Doc. 13) at 6. While petitioner is correct that Ground Three could have been argued as a part of Ground Two, the problem remains that petitioner did not argue that counsel was ineffective for failing to make a showing of need for the investigative funds, nor did petitioner demonstrate that counsel's performance was constitutionally defective for failing to do so. To fairly present a federal claim, a petitioner must "assert[] both the factual and legal basis for his claim to the state courts." McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002) (holding that petitioner's claims in federal habeas were procedurally defaulted because they rested on different theories than those presented to the state courts) (citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998)) opinion corrected on denial of reh'g, 307 F.3d 459 (6th Cir. 2002). In petitioner's original post-conviction motion pursuant to section 2953.21, he argues that "[c]ounsel was rendered ineffective by the trial court's unwillingness to provide a small amount for an investigator," post-trial mot. (Doc. 8-2) at page 148 of 348, and when he appealed the court's denial of that motion, he argued that "counsel did not investigate the whereabouts of Brian Fortner." Appellant's Br. (Doc. 8-2) at page 225 of 348. Accordingly, the state courts did not have the opportunity to consider whether counsel's failure to state the specific necessity for the additional investigative funds constituted an unconstitutional failure on counsel's part to locate alibi witness Brian Fortner.
As discussed briefly in the preceding section, "[i]n Ohio, res judicata has long been held to bar consideration of constitutional claims in post-conviction proceedings brought under Ohio Rev.Code Ann. section 2953.21 when those claims have already been or could have been fully litigated either before judgment or on direct appeal from that judgment." Monzo v. Edwards, 281 F.3d 568, 576-77 (6th Cir. 2002) (citations omitted). Ineffective assistance of trial counsel claims are barred by res judicata "when a defendant who is represented by new counsel on direct appeal fails to raise the issue of ineffective assistance of trial counsel, and the issue could fairly have been determined without resort to evidence outside the record." Id. at 577 (citation omitted).
Turning to the four factors of the Maupin test, the state courts were never given the opportunity to enforce res judicata as to this claim because the claim was never presented to the state courts. It might have been raised on direct appeal, or, to the extent that this claim might involve evidence not readily apparent from the face of the record, it would be properly raised in a petition for post-conviction relief pursuant to O.R.C. § 2953.21. However, it does not appear from the record that petitioner ever presented such an issue in his post-conviction petition. Further, any attempt now to present such claim to the state courts in an untimely and successive petition would most certainly be barred.
Petitioner's fourth ground for relief is that petitioner was denied his right to due process and a fair trial pursuant to the Fifth, Sixth, and Fourteenth Amendments when the trial court failed to allow complete and necessary cross-examination of the state's witness, Rhonda Clark, who is now named Rhonda Parker. Rhonda Parker was originally going to be one of petitioner's alibi witnesses, but she never testified for petitioner, and instead, she testified for the State. She testified that petitioner had asked her to say that she was with him on the night of the murder even though she was not. Trial Tr. (Doc. 8-7) at 989:18-991:18. According to her trial testimony, she originally agreed to testify falsely on petitioner's behalf because she thought he was innocent, and she told an investigator for the defense the story that petitioner had told her to say; however, when a police officer came to question her later, she told the police officer that petitioner wasn't with her at the time of the murder because she did not yet know him at that time. Trial Tr. (Doc. 8-7) at 990:20-997:20. The question here is whether petitioner had a constitutional right to cross examine Rhonda Parker as to her husband's indictment and prosecution in order to ask follow up questions about whether she changed her story in order to obtain some benefit for her husband. This issue was presented to the Ohio Court of Appeals in petitioner's direct appeal, and the Ohio Court of Appeals addressed that claim on the merits.
"The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him.'" Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). The primary purpose of this right is to provide an accused with the opportunity to cross-examine witnesses. Id. at 315. The Supreme Court has described the importance of cross-examination as follows:
Davis, 415 U.S. at 316-17 (footnote omitted).
In cases "involving trial court restrictions on the scope of cross-examination, the [Supreme] Court has recognized that Confrontation Clause questions will arise because such restrictions may `effectively . . . emasculate the right of cross-examination itself.'" Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (ellipsis in original) (quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968)). However, judges constitutionally retain wide latitude "to impose reasonable limits on . . . 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." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The confrontation does not protect all cross-examination questions, but rather, "the Constitution guarantees only `an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 594 (6th Cir. 2012) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (emphasis in original)).
In this case, the trial court limited the cross-examination because it determined that the line of questioning was speculative and would be prejudicial, and because adequate cross-examination was allowed into the question of Rhonda Parker's motive for testifying:
State v. Clinkscale, 2011-Ohio-6385. This decision cited indirectly to federal case law by citing to a state court decision and noting that the decision at issue was citing the Supreme Court decision Delaware v. Van Arsdall. Accordingly, it appears that the state court addressed the federal claims on the merits. However, the result would be the same under a modified AEDPA standard of review.
The Court of Appeals has set forth the interests that must be balanced in determining whether a court has met the requirements of the Confrontation Clause:
Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 595 (6th Cir. 2012). In addition, the Lewis decision, cited by the Court of Appeals in Jones v. Warden, states that when a trial court has placed limits on cross-examination directed toward a witness's motive to testify, a court must take two additional steps:
Lewis, 307 F.3d at 421 (quoting Boggs, 226 F.3d at 739 (citations omitted)).
Here, the Ohio Court of Appeals concluded that the jury had enough information. It concluded that the probative value of the excluded line of questioning was low. Specifically, the court found that the line of questioning was speculative and that petitioner had failed to offer any specific information at trial regarding the federal prosecution of Mr. Parker and its relation to Rhonda Parker's testimony in petitioner's trial. The Ohio Court of Appeals also noted that petitioner was permitted to cross-examine Rhonda Parker as to any benefit she received from changing her story. On direct examination, Rhonda Parker was asked whether she was receiving a benefit for testifying, and she testified that she was not receiving any benefit other than a $7 food voucher and her mileage for traveling to trial. Trial Tr. (Doc. 8-7) at 999:2-20. The trial court interpreted the questions about whether Rhonda Parker received any benefit to include whether she indirectly received a benefit by way of some sort of leniency for her husband. The trial court also permitted counsel for petitioner to inquire further into benefits she received, but counsel for petitioner did not pursue that line of questioning apart from the attempts to question her about her husband's indictment and prosecution. In addition, counsel for petitioner did question Rhonda Parker about why she changed her story and she admitted that she and her husband wanted to avoid contact with the police. Trial Tr. (Doc. 8-7) at 1006:21-1008:9. Lastly, the Ohio Court of Appeals concluded that the questioning specific to Mr. Parker would be prejudicial and cause confusion. After a careful review of the record and applicable law, it appears that the state court's application of federal law is not objectively unreasonable here, and petitioner is, therefore, not entitled to habeas relief based on Ground Four of petitioner's habeas petition.
Lastly, petitioner's fifth ground for relief is that he was denied his rights under the Fifth, Sixth, and Fourteenth Amendments because there was insufficient evidence presented to sustain his convictions.
A challenge to the sufficiency of the evidence, when made in a habeas corpus petition subject to the AEDPA, must meet an exacting standard. As this Court explained in Lynch v. Hudson, 2011 WL 4537890, *81-82 (S.D. Ohio September 28, 2011):
Here, the Ohio Court of Appeals addressed this claim on its merits. In doing so, it first noted and rejected specific arguments made by petitioner, concluding that they all went to the credibility of the witnesses and not to the sufficiency of the evidence given by those witnesses. Following its conclusion that petitioner had not raised a proper sufficiency challenge, the court summarized a portion of the evidence that it concluded connected petitioner to the crimes. The Ohio Court of Appeals set forth its reasoning as follows:
State v. Clinkscale, 2011-Ohio-6385. While the Ohio Court of Appeals did not cite to any federal court decisions when it analyzed petitioner's sufficiency of the evidence claim, it cited to State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 76 (Ohio 2002), which specifically quotes the Supreme Court decision in Jackson v. Virginia, discussed above, to set forth the federal constitutional due process requirements for sufficiency of the evidence. Furthermore, the state court of appeals identified the controlling legal principle as set out by the United States Supreme Court.
This Court's independent review of the trial transcript confirms that the state court's summary of the evidence is generally accurate. First, Todne Williams testified in detail about petitioner's role in the crimes at issue, including her testimony about petitioner arriving at her house at about 11:00 p.m. on September 7, 1997 with his friend Darry Woods, about hearing a "gun sound" like a loud "pop," about petitioner running upstairs to where she was seconds after the gunshot and demanding money with a smoking 9 millimeter gun in his hand; about petitioner carrying her husband's safe outside; and about petitioner subsequently forcing her to go downstairs to where her husband had been shot and shooting her three times. Trial Tr. (Doc. 8-3) at 101:11-107:5; 119:14-24; 121:9-123:17; 124:2-25; 125:13-134:5. In addition, there was testimony about forensic evidence at the scene including DNA on a hat found at the scene that was consistent with petitioner's DNA and petitioner's fingerprints on a game controller and booklet. While the forensic evidence did not necessarily place petitioner at the scene of the crime, it was consistent with petitioner being at the scene of the crime. Furthermore, as discussed above, Rhonda Parker testified that petitioner asked her to create a false alibi. Given this evidence, this Court must determine whether the state court unreasonably determined that there was enough evidence to permit a jury to find, beyond a reasonable doubt, that petitioner committed the crimes of which the jury convicted him. The state court's decision on the sufficiency of the evidence question is not unreasonable, and a proper application of federal law to the facts of this case.
A reasonable juror could have concluded, based on the testimony of Todne Williams, that petitioner was guilty. As discussed above, it is not for the Court to evaluate the credibility of Todne Williams, but rather whether her testimony provided sufficient evidence to permit the jury to find, beyond a reasonable doubt, that petitioner committed the crimes of which he was convicted. While the additional forensic evidence could have been considered corroborating physical evidence, in fact no additional corroboration of Todne Williams' testimony was needed in order to satisfy the constitutional minimum: "[t]he fact that no physical evidence linked [the defendant] to the scene is not dispositive of whether [he] was at the scene." Hilliard v. Hudson, 599 F.Supp.2d 921, 932 (N.D. Ohio 2009); see also Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) ("It is true that the testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction.")
Brown v. Davis is particularly instructive. There, as the Court of Appeals noted, the defendant had been convicted of rape almost exclusively on the testimony of one eyewitness, whose credibility was substantially undercut by the fact that she knew the person she eventually named as her attacker but she did not provide his name to police when first questioned and that she had given another name to police before ultimately identifying the defendant as her assailant. Also, as the Court noted, "it may seem foolhardy and irrational for an undisguised man who is well known by the victim to attack her in a lighted room . . . ." Id. at 1147. The Court also noted the studies showing that eyewitness identifications can be unreliable and stated that it was "painfully aware of miscarriages of justice caused by wrongful identification." Id. at 1146. Nevertheless, because the only question before the Court was the constitutional sufficiency of the evidence, and because the jury could rationally have believed the victim's testimony, the Court denied relief, stating that "[t]he defense had every opportunity to cross-examine and impeach the victim's credibility. The issue of credibility, the demeanor of the parties, and the weighing of the evidence were properly for the jury." Id. at 1147. Because that question — and not "whether [the reviewing court] believes the evidence at the state trial established guilt beyond a reasonable doubt"—is the crux of the sufficiency of the evidence inquiry, the petitioner's claim was foreclosed. Id.
The same is true here. The Ohio Court of Appeals decision was not contrary to federal law, nor was it an unreasonable application of federal law. Petitioner's Fifth Ground for relief is therefore without merit.
For the foregoing reasons, the Court
In addition, petitioner's request for discovery and an evidentiary hearing is
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The record does not reflect that petitioner could meet these requirements.
