The opinion of the court was delivered by: Dlott, J. Black, M.J.
ORDER AND REPORT AND RECOMMENDATION
This case is before the Court on petitioner's motion to strike and/or withdraw Grounds Three and Four of the petition for writ of habeas corpus "without prejudice." (Doc. 7). Petitioner, without explanation, requests that Grounds Three and Four of the petition be withdrawn and that the Court grant a writ of habeas corpus on the basis of the claims raised in Grounds One and Two of the petition. Id. For the reasons that follow, the motion must be denied.
Ground Four of the petition alleges that petitioner's "convictions were obtained against the manifest weight of the evidence because there was no physical evidence tying him to the crimes and because the state witnesses were not credible as no one testified to actually witnessing defendant shoot his gun." (Doc. 1 at 10). The motion to withdraw this Ground Four of the petition without prejudice to refiling must be denied, however, because the claim raised therein is not cognizable in habeas corpus, and, therefore, any refiling of the claim would be futile and would unnecessarily require the expenditure of additional judicial resources to address such non-cognizable claim.
Stated simply, a "manifest weight of evidence" claim, which is based on a state law concept that is "both quantitatively and qualitatively different" from a constitutional due process sufficiency of evidence standard,*fn1 merely raises an issue of state law only that is not cognizable in a federal habeas corpus proceeding such as this. See 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984).
That is, the Due Process Clause does not provide relief for defendants whose convictions are against the manifest weight of the evidence, but only for those who have been convicted without proof sufficient to allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.), cert. denied, 464 U.S. 962 (1983).
In the context of a claim alleging a violation of due process, "sufficiency of the evidence" refers to the due process requirement that there be enough evidence introduced in favor of the prosecution for a rational trier of fact to find each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
However, under Ohio law, a claim that a verdict was against the manifest weight of the evidence -- as opposed to one based upon insufficient evidence -- requires the appellate court to act as a "thirteenth juror" and to review the entire record, weigh the evidence, and consider the credibility of witnesses to determine whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720 (1st Dist. Ohio 1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982).
Since a federal habeas court does not function as an additional state appellate court, vested with the authority to conduct such an exhaustive review, petitioner's claim that his convictions were against the manifest weight of the evidence cannot be considered by this Court.
Therefore, petitioner's motion to withdraw Ground Four of the petition without prejudice to refiling is DENIED, and the undersigned hereby RECOMMENDS that Ground Four be denied on the merits as non-cognizable.
Ground Three of the petition alleges that petitioner was denied adequate and effective assistance of appellate counsel. (Doc. 1 at 7). If the Court were to grant the motion to withdraw Ground Three "without prejudice," any attempt to refile this claim in a subsequent petition would be barred by the one year statute of limitations governing habeas corpus petitions. See 28 U.S.C. § 2244(d), as amended by § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.*fn2 In addition, any subsequent petition would be subject to dismissal or transfer to the United States Court of Appeals for the Sixth Circuit on the ground that it constitutes a "successive petition" which the district court lacks jurisdiction to consider under 28 U.S.C. § 2244(b). Therefore, the granting of petitioner's motion may have consequences unintended by petitioner when he moved to withdraw Ground Three of the petition.
If the Court were to deny the motion to withdraw Ground Three, then petitioner's ineffective assistance of appellate counsel claim, as well as the entire petition, would be subject to dismissal because of petitioner's failure to exhaust this claim in state court.
In Ohio, claims of ineffective assistance of appellate counsel claims are raised in applications under Ohio R. App. P. 26(B). Petitioner has not filed a Rule 26(B) application, and the time for filing a timely application expired on February 15, 2005. Petitioner may still file an untimely Rule 26(B) application if he "shows good cause for filing at a later time." Therefore, petitioner still has a state remedy to exhaust his claim for ineffective assistance of counsel.
In view of this unexhausted claim, the petition is considered "mixed" with some claims exhausted and some unexhausted. Yet, this federal court may not adjudicate a mixed habeas corpus petition. See 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).*fn3
Before the enactment of the AEDPA, district courts were directed to dismiss mixed petitions without prejudice and allow the petitioner to return to state court to present the unexhausted claims to that court in the first instance. Rose, 455 U.S. at 522. However, the petition in the instant case was filed after the enactment of the AEDPA, which imposes a one-year statute of limitations on the filing of federal petitions. See 28 U.S.C. § 2244(d)(1). Thus, if petitioner's timely-filed habeas petition is dismissed on exhaustion grounds and petitioner subsequently returns to federal court to present his claims in ...