ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
This case involves Petitioner's October 29, 2010 conviction after a jury trial in the Fairfield County Court of Common Pleas on felonious assault arising from an altercation between Petitioner and his son.
State v. Childers, No. 10-CA-61, 2011 WL 6916399, at *1-2 (Ohio 5th App. Dist. Dec. 27, 2011). On December 27, 2011, the appellate court affirmed the judgment of the trial court. Id. On May 9, 2012, the Ohio Supreme Court dismissed Petitioner's appeal. State v. Childers, 131 Ohio St.3d 1540 (Ohio 2012). On October 9, 2012, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Childers v. Ohio, 133 S.Ct. 471 (2012).
On October 4, 2013, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that the trial court unconstitutionally imposed more than a minimum and consecutive sentence (claim one); he was denied a fair trial due to improper admission of evidence (claim two); that the evidence is constitutionally insufficient to sustain his conviction and against the manifest weight of the evidence (claim three); and that he was denied effective assistance of trial counsel because his attorney failed to file pre-trial motions in limine (claim four).
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he or she can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth Circuit requires the district courts to engage in the following inquiry:
Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if "the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner" may still obtain review of his claims on the merits if he establishes: (1) a substantial reason to excuse the default and (2) that he was actually prejudiced by the alleged constitutional error. Id. `Cause' under this test "must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some factor external to the defense [that] impeded [ ] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753. This "cause and prejudice" analysis also applies to failure to raise or preserve issues for review at the appellate level or failure to appeal at all. Id at 750.
Nevertheless, "`[i]n appropriate cases' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration.'" Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 (1892)). Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a review of their claims if they can demonstrate that a court's refusal to consider a claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001) (same). The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).
In claim one, Petitioner asserts that the trial court improperly imposed a sentence of seven years incarceration consecutive to any other sentences pending without making required factual findings. Relatedly, he contends the court imposed three years of mandatory post-release control without addressing the issue at sentencing, in violation of case law of the United States Supreme Court. Petition, ECF 1, PageID# 7-10. In claim four, Petitioner asserts that he was denied the effective assistance of trial counsel. Petitioner failed to raise these claims on direct appeal, where he was represented by new counsel. This failure constitutes a clear procedural default based on the rule in Ohio that errors which appear on the face of the record must be raised on direct appeal or will be deemed forfeited. If petitioner were to attempt to raise his claims by any other means, they would be barred by Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175.
The procedural rule barring petitioner's claims for relief constitutes an adequate and independent state ground for denying relief. The requirement that all available claims be asserted in the first appellate proceeding serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. Further, Ohio's res judicata rule is adequate and independent under the third part of the Maupin test. The doctrine of res judicata is stated in unmistakable terms in numerous Ohio decisions. Ohio courts have consistently refused to review claims on the merits under that doctrine. See State v. Cole; State v. Ishmail; State v. Perry.
In claim three, Petitioner asserts that the evidence is constitutionally insufficient to sustain his convictions, which are against the manifest weight of the evidence. ECF 1, PageID# 17-19. Petitioner presented this claim on direct appeal; however, he failed again to raise the claim in the Ohio Supreme Court and he may now no longer do so under Ohio's doctrine of res judicata. He has thereby waived his claim of insufficiency of the evidence and his claim that his convictions are against the manifest weight of the evidence.
Petitioner still may obtain review of his claims on the merits if he can establish cause for his procedural defaults as well as actual prejudice from the alleged constitutional violations. The Supreme Court has said that "the 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." Murray, 477 U.S. at 488; see also Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003) (same) (citing Coleman, 501 U.S. at 753).
Petitioner asserts that res judicata does not apply, because his claims constituted plain error. Reply, ECF 18, PageID# 1074-75, 1077. Alternatively, he argues that the Court should excuse any procedural default because the State provides him no avenue for relief and due to confusing procedural rules. PageID# 1076. These arguments are not persuasive. The state courts did not conduct a plain error review, and Petitioner's claims are not waived on that basis. Instead, as discussed, his claims are waived due to his failure to raise the claims in the state appellate and Ohio Supreme Court, thus depriving the state courts of the opportunity to correct the alleged constitutional violations. Ohio provides a clear avenue for raising on-the-record claims of the alleged violation of federal law, and that is through the process of direct appeal. The state courts appointed counsel to represent Petitioner on direct appeal, where he was able to raise claims that he believed warranted relief. Petitioner further had a remedy for raising a claim of the denial of effective assistance of appellate counsel regarding any errors that he contends should have been raised on direct appeal, but were not. Rule 26(B), Ohio Rules of Criminal Procedure. Petitioner has failed to establish cause and prejudice for his procedural default on this basis.
Petitioner asserts that this case involves a manifest miscarriage of justice and that he is actually innocent such that this Court may address the merits of any claims he has procedurally defaulted. See Reply, ECF 18. The United States Supreme Court has held that a claim of actual innocence may be raised "to avoid a procedural bar to the consideration of the merits of [the petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in Schlup is "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue her constitutional claims if it is "more likely than not" that new evidence— not previously presented at trial— would allow no reasonable juror to find her guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained the exception thoroughly in Souter:
Souter, 395 F.3d at 589-90 (footnote omitted). Petitioner does not meet these standards. The Court's independent review of the petition and record fails to reveal that any "new facts" have arisen that undermine the result of Petitioner's trial. Petitioner cannot, therefore, establish a claim for actual innocence sufficient to avoid his procedural default.
Claims one, three and four are procedurally defaulted.
In claim two, Petitioner asserts that he was denied a fair trial due to the improper admission of voicemails,
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets forth standards governing this Court's review of state-court determinations. The United State Supreme Court recently described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt." (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e)(1) provides:
"Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law"); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). The United States Court of Appeals for the Sixth Circuit recently explained these standards as follows:
Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with the petitioner. Cullen v. Pinholster, 570 U.S. 170, ___, 131 S.Ct. 1388, 1398 (2011).
"In order for a federal court to find a state court's application of [Supreme Court precedent] unreasonable, . . . [t]he state court's application must have been objectively unreasonable," not merely "incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520-21, (2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 131 S.Ct. at 786 ("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." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of "unreasonable application" under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ("`[O]ur focus on the `unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not whether the state court considered and discussed every angle of the evidence.'" (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was "not expressly considered by the state court in its opinion" to evaluate the reasonableness of state court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the record that was before it at the time it rendered its decision. Pinholster, 131 S.Ct. at 1398. Put simply, "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 1399.
Petitioner argues that his claims warrant relief and that he has rebutted the presumption of correctness of the factual findings of the state appellate court. He asserts that the state appellate court unreasonably determined the facts in light of the evidence presented. However, Petitioner refers to no part of the record supporting this allegation, and fails to meet his burden of establishing by clear and convincing evidence that this is the case.
Petitioner argues that the state trial court improperly admitted evidence in violation of Rule 901 and 404(B) of the Ohio Rules of Evidence. This issue involves the application of state law and evidentiary rules, and does not provide a basis for relief. A federal court may review a state prisoner's habeas petition only on the grounds that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). "`[E]rrors in application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus.'" Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (quoting Walker v. Engle, 703 F.2d 959, 962 (6th Cir.1983) (other citations omitted)). The Court "must defer to a state court's interpretation of its own rules of evidence and procedure when assessing a habeas petition." Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (internal quotation omitted). Claims of state law error are not cognizable in federal habeas corpus "unless such error amounts to a fundamental miscarriage of justice or a violation of the right to due process in violation of the United States Constitution." Cristini v. McKee, 526 F.3d 388, 897 (6th Cir. 2008). The record fails to reflect such circumstances here.
Additionally, as to the admission of other acts, the United States Supreme Court has declined to hold that similar "other acts" evidence under Rule 404(B) is so extremely unfair that its admission violates fundamental conceptions of justice. Dowling v. United States, 493 U.S. 342, 352-53, (1990). "There is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence." Bugh, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, this claim cannot provide a basis for relief.
Petitioner argues that admission of DNA evidence violated his rights under the Confrontation Clause. The state appellate court denied this claim in relevant part as follows:
At trial, the trial court stated on the record:
State v. Childers, 2011 WL 6916399, at *4-5.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to physically confront and cross examine adverse witnesses at all stages of the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court abrogated its holding in Ohio v. Roberts, 448 U.S. 56 (1980), and re-defined the test for determining whether admission of hearsay statements violates the Confrontation Clause. The Supreme Court in Crawford held that testimonial statements of a witness who does not appear at trial are inadmissible unless the witness was unavailable to testify and the defense had a prior opportunity to cross examine the witness. Under Crawford, "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination." Id. at 1366. The Supreme Court, however, left untouched application of Roberts to cases involving nontestimonial hearsay:
Coy v. Renico, 414 F.Supp.2d 744, 773 (E.D.Mich.2006) (quoting United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005)); Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir. 2004).
The Supreme Court declined to define a comprehensive definition of the term "testimonial," but indicated, at a minimum, the term includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Crawford, 541 U.S. at 68. A casual remark to an acquaintance, business records, and statements made in furtherance of a conspiracy do not constitute testimonial statements within the protection of the Sixth Amendment. Id. at 51-55.
To determine whether a statement is testimonial, the Court "must decide whether it has `a primary purpose of creating an out-of-court substitute for trial testimony.'" Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S.Ct. 2705, 2720 (2011) (Sotomayor, J. concurring) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). Under the "primary purpose" test, statements "are testimonial when the circumstances objectively indicate" that their primary purpose "is to establish or prove past events potentially relevant to later criminal prosecution." Ohio v. Clark, ___ U.S. ___, ___, 135 S.Ct. 2173, 2179-80 (2015) (citing Harmon v. Indiana, 547 U.S. 813, 822 (2006)).
In the Sixth Circuit, the test for determining whether a statement is deemed testimonial within the meaning of Crawford is:
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).
Further, "admission of a testimonial statement in and of itself is not enough to trigger a violation of the Confrontation Clause. . . . [T]he statement must be used as hearsay-in other words, it must be offered for the truth of the matter asserted." United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005). A violation of the Confrontation Clause is subject to harmless error review. United States v. Pugh, 405 F.3d at 400 (citing Jordan v. Hurley, 397 F.3d 360, 363 (6th Cir. 2005)).
Petitioner challenges admission of DNA evidence indicating that police recovered Luke Childers' blood from Petitioner's his car, corroborating Luke's testimony that Petitioner intentionally hit him with the car on the night at issue. Petitioner argues that, under the Supreme Court's decision in Melendez-Diaz, without the live testimony of each person involved in the chain of custody with respect to the blood obtained, admission of the DNA results violated the Confrontation Clause.
In Melendez-Diaz, the Supreme Court held that admission of affidavits indicating the results of forensic analysis establishing that material seized by police and connected to the defendant constituted cocaine, without testimony of the person who obtained those results, constituted testimonial evidence within the meaning of Crawford. As such, the Court determined that admission of the evidence violated the defendant's right to cross-examine witnesses under the Sixth Amendment. In so holding, the Supreme Court stated:
Id. at 2536.
Similarly, in Bullcoming, the United States Supreme Court held that a blood alcohol breath test report indicating the defendant's blood alcohol content in a prosecution for driving while under the influence of alcohol constituted a testimonial statement within the Sixth Amendment. The Court concluded that the defendant had a right to cross-examine the analyst who conducted the breath test, absent unavailability of the witness and a prior opportunity for cross-examination. In Bullcoming, the prosecution failed to present the witness who had conducted the blood-alcohol test. Instead, the prosecution introduced the evidence through another analyst who had no involvement in the specific test but qualified as an expert in the blood alcohol testing machine. Id. at 2713.
None of these cases, however, involves the issue at hand, namely whether each individual who handled the blood sample in this case must testify at trial in order to establish that it was the same blood recovered from Petitioner's car that tested positive for Luke's DNA. More particularly, these cases do not go to the heart of Petitioner's argument that admission of the report showing the chain of custody, listing the individuals names without their associated testimony, violated the Confrontation Clause. Both parties argue that a footnote in Melendez-Diaz supports their position on whether relief is warranted. Read in its context, the language referred to indicates in relevant part as follows:
Melendez-Diaz, 129 S.Ct. at
This Court is not persuaded that this language stands for the proposition that testimony of each witness involved in the chain of custody of evidence obtained by police, who are testifying for the sole purpose of establishing the chain of custody, constitutes "testimonial" evidence, as that term has been defined by the United States Supreme Court under its interpretation of the Confrontation Clause. Other federal courts have reached this same conclusion. See United States v. Ortega, 750 F.3d1020, 1025-26 (8th Cir. 2014) ("chain of custody alone does not implicate the Confrontation Clause") (quoting United States v. Johnson, 688 F.3d 494, 505 (8th Cir. 2012).
For example, in Whorton v. Klee, No. 10-cv-13902, 2012 WL 5844196 (E.D. Mich. Oct. 26, 2012), the court rejected the argument that Confrontation Clause concerns required in-court testimony the processor of a fingerprint, in addition to the witness who conducted the fingerprint comparison, reasoning as follows:
Id. at *29.
Again, Petitioner asserts that government failed to present witness testimony affirmatively establishing the chain of custody of the DNA sample and offered only a report identifying the individuals who handled the blood. He maintains that the report constitutes hearsay and that its admission of this document violation his rights under the Confrontation Clause. The state appellate court determined that Petitioner's right to confrontation had not been violated because he had the opportunity to cross-examine the witness who prepared the report. Based on the analysis above, this Court concludes that the state appellate court did not unreasonably apply clearly established federal law as determined by the United States Supreme Court, or base its decision on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
Claim two is without merit.
If any party objects to this Report and Recommendation, that party may, within fourteen (14) 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 parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
