The opinion of the court was delivered by: Sandra S. Beckwith Senior United States District Judge
Before the Court are Petitioner's objections to the Report and Recommendation of the Magistrate Judge. (Doc. 19) The Magistrate Judge recommends that this Court deny the petition for a writ of habeas corpus, and grant Petitioner a certificate of appealability. (Doc. 18) For the following reasons, the Court agrees with the Magistrate Judge's recommendations.
Petitioner Mary Rosemond was indicted by the Hamilton County, Ohio grand jury on charges of aggravated murder and aggravated robbery, with firearm specifications. The charges stemmed from the robbery and shooting of a taxicab driver in whose vehicle Rosemond and two companions were riding.
During voir dire prior to the start of Rosemond's trial, the prosecutor exercised three peremptory challenges to remove three African-American prospective jurors. Rosemond's trial counsel challenged these peremptory strikes under Batson.*fn1 The trial court heard the parties' arguments on each challenge at sidebar conferences "off the record." (See Doc. 9, TR at 189 (PAGEID 411), 204 (PAGEID 426), and 220 (PAGEID 442).) No transcripts or recordings of the sidebar conferences are apparently available, as none have been included in the record. However, after the jury was selected, sworn and dismissed for the day, the trial court summarized on the record what had transpired during the sidebar conferences.
The prosecutor's first peremptory challenge was to Juror No. 9. The prosecutor summarized his reasons for excusing Juror No. 9 by stating: "... he not only was a pastor but also had worked with people charged with crimes in an effort to try to rehabilitate them." (TR at 263) Rosemond's counsel responded by reminding the court that the prosecutor exercised all three peremptory challenges to remove three African-American jurors. A Caucasian juror, No. 8, was also a pastor and was not challenged. This juror answered the prosecutor's questions in similar fashion to Juror No. 9, agreeing with the prosecutor that he could be completely impartial. The trial court responded to this argument by stating that when the state exercised its first peremptory, the court had "no way of knowing whether [Juror No. 8] would be challenged or not at that time." (TR at 264)
The state's second peremptory was for Juror No. 10. The prosecutor stated that the juror's stepfather suffered from PTSD, a condition that Rosemond also had and which she intended to raise during her trial. Juror No. 10 had a background in psychology, and a prior criminal conviction. The prosecutor noted that two African-Americans had been seated as jurors, and that Rosemond had dismissed two African-Americans and two Caucasians, all of whom said they could be fair and impartial. Rosemond's counsel responded by simply noting his exceptions to the peremptory challenges. (TR at 266-267)
The third juror peremptorily challenged by the prosecution was Juror No. 17. The prosecutor stated that this juror was also a pastor who "in his professional employment or affiliation with the church has been employed in a position to help to try to rehabilitate people." (TR at 268) When initially seated in the jury box, the juror had not been able to quickly recall why he had raised his hand in response to an earlier question posed to the broader panel. The prosecutor expressed concern about this juror's ability to recall the evidence and testimony if the trial extended beyond one week. The trial court then confirmed that these statements accurately reflected the sidebar discussions, and Rosemond's counsel renewed his previously stated objections. The trial proceeded, and the jury found Rosemond guilty of a lesser murder charge and of aggravated burglary. She was sentenced to an aggregate term of 28 years to life.
With new appellate counsel, Rosemond appealed her conviction and raised two assignments of error relating to evidentiary rulings made during trial. No assignment of error was raised concerning the Batson challenges. The Ohio Court of Appeals affirmed her conviction and sentence, and the Ohio Supreme Court denied review for want of a substantial constitutional question.
On February 28, 2008, Rosemond filed a motion to reopen her appeal under Ohio Rule 26(B), seeking to raise ineffective assistance of appellate counsel on three claimed errors: failing to appeal the Batson ruling; failing to raise a Blakely challenge to her maximum consecutive sentence; and failing to raise trial counsel's failure to object to the Blakely error. (Doc. 9, Exhibit 19) On January 13, 2009, the Hamilton County Court of Appeals denied her application to reopen. With regard to the Batson issue, the court held:
Implicit in the trial court's rejection of Rosemond's objections was its determination that Rosemond had failed to prove purposeful discrimination by the prosecution in the exercise of its challenges. Based upon the record of the proceedings below, we cannot say that this determination was clearly erroneous. Therefore, we cannot say that Rosemond's appellate counsel was ineffective in failing to present this claim in her direct appeal. (Doc. 9, Exhibit 20) Rosemond unsuccessfully sought review of that decision by the Ohio Supreme Court, and then filed her habeas petition in this Court, raising one ground for relief: "Appellate counsel for Ms. Rosemond rendered ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments, Evitts v. Lucey, 469 U.S. 387 (1985), and Strickland v. Washington, 466 U.S. 668 (1984), when he failed to raise on appeal a meritorious Batson issue."
A federal court may issue a writ of habeas corpus to correct an error in a state proceeding that resulted in petitioner's confinement, if that proceeding was rendered fundamentally unfair by a violation of the Constitution or laws of the United States. Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); 28 U.S.C. §2254(a).
To establish ineffective assistance of counsel, Rosemond must show that her attorney's performance was deficient, and that deficiency caused her prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of counsel's performance is highly deferential. Id. at 689-90. The Strickland analysis applies to claims of ineffective assistance of appellate counsel. In that context, deference is accorded to counsel's decision about which trial errors will be raised on appeal. As the Magistrate Judge notes, to prevail on this claim, Rosemond "must show that appellate counsel ignored issues [which] are clearly stronger than those presented." Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009). To demonstrate prejudice, Rosemond must show a reasonable probability that an appeal of the trial court's denial of her Batson challenge would have changed the result. "A reasonable probability is a probability sufficient to undermine ...