United States District Court, S.D. Ohio, Western Division, Dayton
ROBERT E. BOWER, Petitioner,
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
Herbert Rice District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
habeas corpus case is before the Court on Petitioner's
Objections (ECF No. 14) to the Magistrate Judge's Report
and Recommendations (“Report, ” ECF No. 11),
recommending the Petition be dismissed with prejudice.
District Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 15).
Petition in this case pleaded three Grounds for Relief.
Ground One Mr. Bower asserted he was deprived of due process
and equal protection of the laws when the Ohio courts did not
follow the Ohio law for sentencing first-time offenders in
his case. The Report recommended this Ground be dismissed as
procedurally defaulted because it was never presented to the
Ohio courts (ECF No. 11, PageID 526).
Bower objects that he raised this claim in his Traverse
(Objections, ECF No. 14, PageID 537). But presenting a claim
in a traverse in federal court is not equivalent to
presenting it to the state courts and neither the Traverse
nor the Objections cite any place in the record where this
claim was made in the Ohio courts.
Traverse does argue that Bower is a first-time offender and
therefore his sentence to more than minimum of the range for
his offenses provided in the statues both violated Ohio law
and is “excessive” under the Eighth and
Fourteenth Amendments. The first part of this claim is an
Ohio law claim which a federal habeas court cannot consider.
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). "[I]t is not the
province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas
review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States." Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
second part of this claim is made under the federal
Constitution, but is procedurally defaulted because it was
never presented to the state courts. It is also without
merit. Bower was sentenced to eight years imprisonment on
convictions of rape and kidnapping. The sentence was within
the range for such crimes in Ohio and was much less severe
than crimes for which the Supreme Court has upheld much more
severe sentences over excessive punishment claims. See
Harmelin v. Michigan, 501 U.S. 957, 1000 (1991).
Bower seeks to excuse his procedural default of this claim by
asserting he received ineffective assistance of appellate
counsel when his appellate attorney did not present it
(Objections, ECF No. 14, PageID 538). Bower refers to the
Third District Court of Appeals decision of May 18, 2015, as
somehow holding that he received ineffective assistance of
appellate counsel which would excuse this procedural default.
The opinion in question is State v. Bower, Case No.
17-14-14, 2015 Ohio App. LEXIS 1803 (3d Dist. May 18, 2015).
The Magistrate Judge has read that opinion carefully and can
find no place in it where the appeals court faults Mr.
Bower's attorney for not making constitutional arguments.
In addition, in order to rely on ineffective assistance of
appellate counsel to excuse procedural default, a habeas
litigant must first raise the ineffective assistance of
appellate counsel claim in state court. Edwards v.
Carpenter, 529 U.S. 446 (2000). Although Bower did file
an application to reopen his direct appeal under Ohio R. App.
P. 26(B)(State Court Record, ECF No. 7, Ex. 21), he did not
make any claim there that his appellate attorney provided
ineffective assistance by not arguing his punishment was
excessive. Instead, he reargued admission of evidence claims
which had been raised by his appellate attorney.
Bower also argues that he is entitled to the actual innocence
exception to procedural default (Objections, ECF No. 14,
PageID 538-42). While he claims he has presented the new
evidence of actual innocence required by that doctrine, he
does not actually point to any such evidence. As the Report
notes, citing Souter v. Jones, 395 F.3d 577
(6th Cir. 2005), such evidence must be “new
reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence -- that was not presented at trial."
Id. at 590, citing Schlup v. Delo, 513 U.S.
298, 324 (1995). Despite Mr. Bower's repeated use of the
phrase “actual innocence, ” he has supplied this
Court with no new evidence whatsoever.
Two: Insufficient Evidence
Second Ground for Relief, Mr. Bower asserts his conviction is
not supported by sufficient evidence. The Report found this
claim also was procedurally defaulted because it was not
raised on direct appeal (Report, ECF No. 11, PageID 528-29).
Alternatively on the merits the Report found that Bower
admitted in his Traverse that the victim testified he orally
penetrated her and that his DNA was found in her vaginal
area, although he offers an alternative but not innocent
explanation of how it got there.
Objections, Bower argues at length about whether cunnilingus
is rape and that evidence of penetration is needed for a rape
conviction (ECF No. 14, PageID 541-45). None of this argument
about the weight of the evidence is relevant. Contrary to Mr.
Bower's assertion, a habeas court does not “sit as
a 13th juror [and is] to decide if the lower court
or Jury lost their way.” That is the test for a
conviction that is against the manifest weight of the
evidence under state law and does not constitute a federal
constitutional claim. A weight of the evidence claim is not a
federal constitutional claim. Johnson v. Havener,
534 F.2d 1232 (6th Cir. 1986).
Three: Ineffective ...