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Fisher v. Hurley

January 22, 2007

MICHAEL A. FISHER, PETITIONER,
v.
PAT HURLEY, RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Kemp

JUDGE MARBLEY

REPORT AND RECOMMENDATION

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 as amended, respondent's return of writ and supplemental return of writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

I. FACTS

The Ohio Tenth District Court of Appeals summarized the facts of this case as follows:

No serious doubt exists that appellant shot Keith Wilson. The case was tried on a defense theory that appellant shot in self-defense or in the defense of a third man, Carl Boehner.

***

Keith Wilson was the second witness to testify at trial....

When Keith Wilson testified in front of the jury, he acknowledged that he had stopped the vehicle being driven by his girlfriend when he saw Carl Boehner, a friend of appellant's. Wilson was angry with Boehner because Boehner had handed a gun to appellant during a confrontation between Wilson and appellant a few days earlier. The gun apparently had been shot at Wilson five times as Wilson and his girlfriend were leaving the confrontation.

On the day Mr. Wilson was shot by appellant, Wilson had gotten out of the car in which he was riding and struck Boehner in the eye, knocking Boehner to the ground. Wilson testified that he (Wilson) then yelled into the apartment where appellant was located, following which appellant stepped outside and shot him (Wilson) five times. Wilson denied having a gun with him at the time he was shot.

The prosecution elicited a partial criminal record from Mr. Wilson, including convictions for retail fraud in Michigan in 1992 and aggravated assault in Franklin County, Ohio in 1999. Mr. Wilson acknowledged still being on probation on the aggravated assault charge.

***

On cross-examination, Mr. Wilson acknowledged having a problem with alcohol use and drug abuse. He also admitted having been in fights while on probation. He admitted lying to police about striking Mr. Boehner. Mr. Wilson further admitted trying to avoid testifying against appellant.

***

The trial court allowed inquiry about Mr. Wilson's being on probation and about his illegal conduct involving other assaults. The trial court ... limited inquiry about a separate indictment involving Mr. Wilson and one Dana Howard.

***

In short, Keith Wilson's motive to paint himself as being as innocent as possible was demonstrated. However, that motive does not mean that appellant was acting in self-defense when he shot Mr. Wilson.

***

No evidence demonstrated the existence of the mitigating conditions which distinguishes aggravated assault from felonious assault-namely, the existence of sudden passion or sudden fit of rage. Keith Wilson claimed a cold-blooded shooting. Appellant claimed a shooting out of fear of further harm to Mr. Boehner. No one claimed rage or passion.

***

The testimony about the prior altercation between appellant and Keith Wilson was offered to demonstrate why Wilson stopped and assaulted Carl Boehner. The testimony was not offered as the basis for an argument that appellant shot at Mr. Wilson before appellant shot at him again. Indeed, appellant acknowledged shooting Wilson.

Exhibit 5 to Return of Writ.

II. PROCEDURAL HISTORY

Petitioner was indicted by the January 7, 2000, term of the Franklin County grand jury on felonious assault, in violation of O.R.C. §2903.11 with a firearm specification. Exhibit 1 to Return of Writ. While represented by counsel, petitioner proceeded to jury trial, and on March 23, 2001, was found guilty, as charged. Exhibit 2 to Return of Writ. On May 10, 2001, petitioner was sentenced to an aggregate term of nine years. Id. Represented by new counsel, petitioner filed a timely appeal of his convictions to the Tenth District Court of Appeals. He raised the following assignments of error:

1. The trial court erred when it declined to charge the jury as to the lesser included offense of aggravated assault along with the "defense of another" as requested by the defense.

2. The court erred in allowing jurors to submit questions to witnesses, thus compromising their impartiality and thereby denying defendant his right to a fair trial.

3. The failure of defense counsel to object to the absence of a limiting instruction as to the jury's use of prior acts evidence amounted to ineffective assistance of counsel and denied defendant of a [sic] fair trial.

4. The court erred in refusing to allow the defense to impeach the State's witness by use of evidence of a pending indictment and probation status to show bias and interest in the case.

Exhibit 3 to Return of Writ. On December 20, 2001, the appellate court affirmed the judgment of the trial court. Exhibit 5 to Return of Writ. Still represented by counsel, petitioner filed a motion to certify a conflict to the Ohio Supreme Court. The motion was granted, and the following issue was certified for appeal:

Is the practice of a trial court of allowing members of a jury to submit questions to the court and attorneys for possible submission to witnesses per se prejudicial to a criminal defendant?

Exhibits 6 and 7 to Return of Writ. On June 11, 2003, the Ohio Supreme Court affirmed the judgment of the state appellate court. Exhibit 13 to Return of Writ. On March 27, 2006, petitioner filed motion for delayed appeal with the Ohio Supreme Court of the remaining assignments of error denied on direct appeal. Exhibit 26 to Return of Writ. On May 10, 2006, the Ohio Supreme Court denied petitioner's motion for delayed appeal. Exhibit 28 to Return of Writ.

On September 22, 2004, petitioner filed a pro se petition for post conviction relief with the state trial court in which he asserted various allegations of ineffective assistance of trial counsel, that "newly discovered evidence" established his innocence, and that he was denied a fair trial due to improper jury instructions. Exhibit 14 to Return of Writ. On November 19, 2004, the trial court denied the petition as untimely. Exhibit 19 to Return of Writ. Petitioner filed a timely appeal of the trial court's decision to the state appellate court. He asserted the following assignments of error:

1. Was appellant unavoidably prevented from discovering the facts upon which he relied to file a petition for post conviction relief?

2. Did trial counsel provide effective assistance at trial?

3. Did jury instructions containing inference relieve prosecution of its burden of proof?

Exhibit 20 to Return of Writ. On August 9, 2005, the state appellate court affirmed the judgment of the trial court. Exhibit 22 to Return of Writ. Petitioner filed a timely appeal to the Ohio Supreme Court, in which he raised the same propositions of law. Exhibit 23 to Return of Writ. On December 14, 2005, the Ohio Supreme Court summarily dismissed the appeal. Exhibit 25 to Return of Writ. On July 15, 2004, petitioner filed the instant pro se petition for a writ of habeas corpus. He initially asserted in his motion accompanying the initial petition that he was in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds, repeated here verbatim:

1. Trial court erred when it declined to charge jury with lesser included offense creating structural defect of trial in violation of petitioner's fourteenth amendment rights to due process of law.

2. Trial Court erred in allowing jurors to submit questions to witnesses thereby becoming advocates, thus compromising their impartiality and denying petitioner his rights to a fair trial, in violation of his fourteenth amendment rights to due process of law.

3. Trial Court erred in refusing to allow defense to impeach a state's witness through the use of evidence of pending indictment of witness thereby creating a denial of petitioner's rights to due process of law.

4. [I]neffective assistance of trial counsel in failing to request limiting instruction in violation of petitioner's Sixth Amendment rights under the U.S. Constitution.

On September 30, 2004, proceedings in this action were stayed pursuant to petitioner's request pending his exhaustion of state court remedies. Doc. No. 5. On October 21, 2005, proceedings were reactivated upon petitioner's notification that he had exhausted his state court remedies, and the petition was amended to include his previously unexhausted claim of ineffective assistance of counsel. See Doc. No. 18. On March 29, 2006, proceedings again were stayed so that petitioner could exhaust state court remedies as to his claims. ...


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