MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits. Mr. Stenson filed his Petition on December 21, 2015 (ECF No. 1). On Magistrate Judge Bowman's Order for Answer (ECF No. 3), the Respondent has filed the State Court Record (ECF No. 6) and a Return of Writ (ECF No. 7). Mr. Stenson then filed a timely Traverse (ECF No. 9). The case was later transferred to the undersigned as part of the ongoing process of balancing the magistrate judge workload in the Western Division (ECF No. 10).
Mr. Stenson pleads the following grounds for relief:
(Petition, ECF No. 1.)
On March 26, 2014, a Butler County grand jury indicted Stenson on seven counts of robbery allegedly occurring on six different dates and at seven different places and times in both Butler and Hamilton counties. The jury returned a verdict of guilty on counts two through five and seven, but were unable to return a verdict on counts one and six (State Court Record, ECF No. 6, PageID 37-38). Counts one and six were then dismissed and Stenson was sentenced to an aggregate sentence of eighteen years imprisonment.
Stenson appealed to the Twelfth District Court of Appeals, but his counsel filed an Anders brief which Stenson supplemented pro se. In it he raised what appear to be the same issues raised here: insufficiency of the evidence, verdict against the manifest weight of the evidence, the venue issue, and a claim of ineffective assistance of trial counsel. The court considered all the arguments and dismissed the appeal as wholly frivolous. State v. Stenson, Case No. CA2014-07-155, 2015-Ohio-3101, 2015 Ohio App. LEXIS 3023 (12
While the appeal was pending, Stenson filed in the trial court a pro se motion to dismiss for lack of jurisdiction. After the trial court had not acted for about five months, he filed in the Ohio Supreme Court a petition for writ of mandamus to compel a decision on that motion. The Ohio Supreme Court dismissed the petition on motion of the State and Stenson then filed his Petition for Writ of Habeas Corpus in this Court.
In his First Ground for Relief, Petitioner asserts he was convicted on insufficient evidence.
Stenson pleads this claim as arising under the Due Process and Equal Protection Clauses of both the federal and Ohio Constitutions. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). Therefore this Court cannot consider whether Stenson's conviction violates any clause of the Ohio Constitution. The Court is also unaware of any possible Equal Protection Clause claim that would "fit" with insufficiency of the evidence.
On the other hand, an allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6
In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:
Brown v. Konteh, 567 F.3d 191, 205 (6
Coleman v. Johnson, 566 U.S. ___, ___, 132 S.Ct. 2060, 2062 (2012)(per curiam).
Because the Twelfth District dismissed the entire appeal as "wholly frivolous," it did not provide an analysis of the sufficiency of the evidence. In lieu of such a summary, Respondent provides a summary of the testimony relied on by the prosecution (Return of Writ, ECF No. 7, PageID 708-14). If the summary is accurate, it certainly describes sufficient evidence to convict, including video recordings of Stenson himself. Petitioner does not even attempt to show that Respondent' summary is inaccurate (Traverse, ECF No. 9, PageID 718-19). He says there is no "pure" evidence, without explaining what that means. He claims the identifications are faulty, but he does not say why. What is faulty with the video identification or the in-court identification? There was certainly sufficient evidence when viewed most favorably to the prosecution, to support the jury's verdict.
On top of deference to the jury, this Court is also bound to defer, absent a showing to the contrary, to the determination made by the Twelfth District. Even though there is no analysis of the evidence, the Twelfth District's decision must be treated as made on the merits. Harrington v. Richter, 562 U.S. 86, 103 (2011). Given the evidence summarized by the Respondent, the Twelfth District's decision on this assignment of error is entitled to AEDPA deference — it is not an objectively unreasonable application of Jackson, supra. Therefore Ground One should be dismissed with prejudice.
In his Second Ground for Relief, Stenson asserts his convictions are against the manifest weight of the evidence. Respondent argues this claim is not cognizable in habeas corpus and Petitioner concedes that is so (Traverse, ECF No. 9, PageID 719). The Sixth Circuit has also decided weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6
Ground Two should therefore be dismissed without prejudice for failure to state a claim upon which relief can be granted.
In his Third Ground for Relief, Mr. Stenson claims he was denied due process and equal protection when he was tried in Butler County for some offenses which allegedly occurred in Hamilton County.
As Respondent points out, venue is not an element of Ohio crimes. State v. Jackson, 141 Ohio St.3d 171 (2014). Therefore failure of the prosecution to present evidence on this issue would not cause the evidence to be insufficient under Jackson v. Virginia, supra.
The Sixth Amendment to the United States Constitution guarantees a defendant a "speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law...." In general, Ohio has designated the "districts" in which felony cases are to be tried by giving general felony jurisdiction to Common Pleas Courts and providing one such court for every county. Ohio Revised Code § 2901.12(A) provides generally that trial will be held in the "territory of which the offense or any element of the offense was committed." However, Ohio Revised Code § 2901.12(H) provides that when an offender commits offenses in different jurisdictions "as part of a course of criminal conduct ...," the offender may be tried for all the offenses in any of the jurisdictions.
Ohio Revised Code § 2901.12(H) is not unconstitutional as it was applied here to Mr. Stenson to be tried in Butler County for offenses that happened both there and in Hamilton County as part of the same course of criminal conduct. There is no unfairness in recognizing the substantial judicial economies available from permitting trial of all the offenses from one course of conduct in one trial.
Most of what Mr. Stenson has written in his Traverse about challenging jurisdiction is not relevant because it is not a jurisdictional question that is being dealt with, but a venue question. Ohio law vests jurisdiction over felony offenses in the Common Pleas Courts, then allocates felony trials among those courts with the venue statute. The federal Constitution requires only that trials be in the "State and district" where the offenses occurred and that the "district" be specified beforehand by law.
Mr. Stenson complains that if each of these offenses had been tried in the county where it occurred, offenses in the other county would have been "other acts" not admissible to show guilt by inference from bad character. That result is unclear under Ohio evidence law, as other acts are admissible to show identity or modus operandi. But regardless of the result under Ohio evidence law, the federal Constitution does not prohibit introduction of other acts testimony. Bugh v. Mitchell, 329 F.3d 496, 500 (6
Particularly troubling to the Court is Mr. Stenson's argument about racial composition of possible juries in Butler and Hamilton Counties. He is correct that Butler County is "overwhelmingly white." (Traverse, ECF No. 9, PageID 723.) As of July 1, 2015, Butler County was 86.0% white.
In his Fourth Ground for Relief, Mr. Stenson claims he suffered ineffective assistance of trial counsel. As he acknowledges, the governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S. 111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
466 U.S. at 689.
As to the second prong, the Supreme Court held:
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6
As evidence of counsel's deficient performance, Mr. Stenson cites his failure to object to the trial in Butler County of offenses that occurred both there and in Hamilton County (Traverse, ECF No. 9, PageID 723-25). But it cannot be deficient performance to fail to raise a completely meritless (or as the Twelfth District put it "wholly frivolous") objection.
Since there was no deficient performance, the prejudice prong of Strickland does not require analysis. The Court is, however, surprised that one of the prejudicial consequences cited is that direct appeal was to the Twelfth District Court of Appeals rather than the First. Having heard many habeas corpus cases arising from both courts, this Court has never heard any petitioner express a strong preference for the First over the Twelfth. Having reviewed many decisions of those two courts, the undersigned cannot imagine why a criminal defendant would expect a more favorable result from one or the other of those courts.
Based on the foregoing analysis, it is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. .Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
