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Hunter v. Warden, Ross Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

June 15, 2017

PETER A. HUNTER, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          JUDGE MICHAEL H. WATSON

          REPORT AND RECOMMENDATION

          Norah McCann King United States Magistrate Judge

         On May 10, 2017, the Court overruled Petitioner's Objection (Doc. 9) and affirmed the Report and Recommendation (Doc. 8), in which the Magistrate Judge recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) (“Petition”) be dismissed without prejudice as unexhausted unless Petitioner notifies the Court that he wishes to delete his unexhausted claim of constitutional insufficiency of the evidence and proceed only on his remaining, exhausted, claims. Opinion and Order (Doc. 10). Petitioner asks that the Court reconsider that decision. Motion for Reconsideration and Motion for Stay and Abeyance (Doc. 11). Respondent opposes that request. Respondent's Opposition to Petitioner's Motion for Reconsideration and Motion for Stay and Abeyance (Doc. 12). For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner's Motion for Reconsideration and Motion for Stay and Abeyance (Doc. 11) be GRANTED but that the Petition and this action be DISMISSED.

         Motion for Reconsideration and Motion for Stay and Abeyance

          One of the claims asserted in this action is the claim that the evidence was constitutionally insufficient to sustain Petitioner's convictions. As previously discussed in the earlier opinions of the Court, Petitioner raised an insufficiency-of-evidence claim on direct appeal but he did not pursue an appeal to the Ohio Supreme Court from the appellate court's decision affirming the judgment of conviction. However, Petitioner may still pursue a delayed appeal. See Ohio S.Ct.R. 7.01(A)(4). It was for that reason that the Court previously concluded that this claim remains unexhausted. See Report and Recommendation (Doc. 8); Opinion and Order (Doc. 10).

         Petitioner now seeks reconsideration of the Court's conclusion in that regard, representing that he does not intend to raise in these proceedings the same insufficiency-of-evidence claim that he raised in his direct appeal. Rather, Petitioner states, the claim raised in these proceedings is the claim that he raised in his application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Petitioner insists that he has therefore exhausted his state court remedies in connection with this particular claim (although he complains that the state appellate court did not address his arguments in support of that claim). Petitioner also asks, should the Court remain convinced that the claim is unexhausted, that these proceedings be stayed pending exhaustion of this claim in the Ohio Supreme Court.

         Petitioner was convicted on charges of aggravated robbery, with firearm specifications, and on one count of having a weapon while under a disability, with a repeat violent offender specification. The first claim presented in the Petition alleges that the evidence was constitutionally insufficient to sustain Petitioner's convictions, because Jessica Devore - who identified Petitioner as one of the perpetrators - lied and her testimony was not credible, and because the State failed to establish that Petitioner had robbed Danny Lowe, who had been shot and seriously wounded during the incident. Petition (Doc. 3, PageID# 42). In this respect, Petitioner argues that the money that he (and Derrick Wade, who was arrested at the same time as Petitioner) took did not belong to Lowe who, Petitioner states, still had $800.00 in his possession even after the robbery had taken place. Id. (PageID# 58). Even if the money had belonged to Devore and Lowe, Petitioner argues, the two counts of aggravated robbery with firearm specifications should have been merged.

         In his direct appeal, Petitioner challenged Devore's credibility and her testimony that Petitioner had a firearm on his person; he also argued that the State failed to establish that the firearm was operable. See State v. Hunter, No. 14AP-163, 2014 WL 5335355, at *5 (Ohio App. 10th Dist. Oct. 21, 2014). In his Rule 26(B) proceedings, Petitioner argued that his appellate attorney was ineffective because he failed to raise on appeal a claim of insufficiency of evidence based on the same facts alleged in the Petition. See Application for Reopening (Doc. 6-1, PageID# 210-11).

         It therefore appears that the insufficiency-of-evidence claim raised in these proceedings is not precisely the same as the insufficiency-of-evidence claim raised in Petitioner's direct appeal. The claim presented before this Court is therefore not unexhausted. Even if it were, “[t]he Supreme Court has held that the exhaustion requirement. . . is not jurisdictional, and that a court ‘should determine whether the interests of comity and federalism will be better served by addressing the merits [of an unexhausted claim] forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits' of the claim.” Granger v. Hurt, 215 Fed.App. 485, 492 (6th Cir. 2007)(citing Granberry v. Greer, 481 U.S. 129, 134 (1987)). This Court concludes that the interests of comity and federalism would be best served by addressing the merits of Petitioner's claim rather than by dismissing this action for failure to exhaust. Moreover, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). As discussed below, the claim of insufficiency of evidence as presented in the Petition plainly lacks merit.

         Under all these circumstances, it is RECOMMENDED that Petitioner's Motion for Reconsideration and Motion for Stay and Abeyance (Doc. 11) be GRANTED and that the Court consider the merits of Petitioner's claims.

         Standard of Review

         Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United State Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court” and emphasized that courts must not “lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Burt v. Titlow, __U.S.__, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

         The AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated on the merits in State court proceedings” unless the state court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Further, under the AEDPA, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

         Accordingly, “a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals for the Sixth Circuit has summarized these standards as follows:

A state court's decision is “contrary to” Supreme Court precedent if (1) “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[, ]” or (2) “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an “unreasonable application” under 28 U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.

Id. at 748-49. The burden of satisfying the AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).

         Claim One

         Petitioner asserts in his first claim that the evidence was constitutionally insufficient to sustain his convictions on two counts of aggravated robbery with a firearm specification. The state appellate court rejected this claim in relevant part as follows:

Sufficiency of the evidence is a legal standard that tests whether the evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law, not fact. Id. In determining whether the evidence is legally sufficient to support a conviction, “‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'” State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the evidence in a light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution's evidence is to be believed, but whether, if believed, the evidence supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence); State v. Bankston, 10th Dist. No. 08AP- 668, 2009-Ohio-754, ¶ 4 (noting that “in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime”).
***
As is relevant here, R.C. 2911.01(A) provides in part:
No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;
(2) Have a dangerous ordnance on or about the offender's person or under the offender's control;
(3) Inflict, or attempt to inflict, serious physical harm on another.
To be convicted of an accompanying firearm specification, a defendant must have had a firearm on or about his person or under his control while committing the aggravated robbery and either displayed, brandished or indicated that he possessed the weapon or used the firearm to facilitate the aggravated robbery. R.C. 2941.145. As is relevant to this case, R.C. 2923.13(A)(2) prohibits a person from knowingly acquiring, having, carrying or using any firearm or dangerous ordnance if “[t]he person is under indictment for or has been convicted of any felony offense of violence.” In arguing that his convictions must be reversed, appellant challenges Devore's credibility and her testimony that appellant had a firearm on his person, even though he was unarmed at the time of his arrest. Additionally, appellant argues that, even if Devore is to be believed, there is no evidence that the firearm appellant allegedly had was operable. We find these arguments unpersuasive.
“‘Although a defendant may be charged in an indictment as a principal, the court may instruct the jury on complicity where evidence at trial reasonably supports a finding that the defendant was an aider or abettor.'” State v. Gonzalez, 10th Dist. No. 10AP- 628, 2011-Ohio-1193, ¶ 24, quoting State v. Blackburn, 5th Dist. No. 06 CA 37, 2007-Ohio-4282, ¶ 41, citing State v. Tucker, 8th Dist. No. 88231, 2007-Ohio-1710, ¶ 15. Here, the trial court instructed the jury that appellant could be convicted of the charged offenses as an aider or abettor. The complicity statute, R.C. 2923.03(A), provides in pertinent part that “[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * *: (2)[a]id or abet another in committing the offense.” To aid and abet means “‘to assist or facilitate the commission of a crime, or to promote its accomplishment.'” State v. Johnson, 93 Ohio St.3d 240, 243 (2001), quoting Black's Law Dictionary (7th Ed.Rev.1999). In State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971), the court stated that a common purpose among two people “to commit crime need ...

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