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Howell v. Miller

United States District Court, N.D. Ohio, Western Division

August 28, 2017

James T. Howell, Petitioner,
v.
Michelle Miller, Respondent.

          MEMORANDUM OPINION AND ORDER

          JACK ZOUHARY, U.S. DISTRICT JUDGE

         Introduction

         Petitioner pro se James Howell filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, asserting nine grounds for relief (Doc. 1). The case was referred to Magistrate Judge Kathleen Burke for a Report and Recommendation (R&R). The State, through Respondent Warden Michelle Miller, filed a Return of Writ (Doc. 10), and Howell filed a Traverse (Doc. 14). Judge Burke recommended this Court dismiss the Petition in part and deny the Petition in part (Doc. 16), and Howell timely objected (Doc. 17). This Court has reviewed de novo the portions of the R&R to which Howell objected. See U.S.C. § 636(b)(1); Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir. 1981).

         Background

         Howell does not object to the factual background outlined in both the R&R and the Ohio court of appeals decision, which is presumed accurate. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Therefore, this Court adopts those facts (Doc. 16 at 2-10).

         Discussion

         The Petition raises nine grounds for relief, but Howell abandoned grounds four, five, seven, and nine in his Traverse (Doc. 14 at 16, 18, 22). The R&R recommends this Court dismiss the Petition with respect to those grounds, as well as portions of grounds six and eight (Doc. 16). With respect to the remaining grounds, it recommends this Court deny the Petition on the merits (id.). Howell objects generally that the R&R “was illogically reached through formal & material fallacy” (Doc. 17 at 2). His specific objections are addressed below.

         Ground One: Expert Witness

         Howell argues his appellate counsel was ineffective for failing to raise -- on direct appeal --the issue of whether his trial counsel was ineffective for not obtaining an expert witness. The R&R concluded that the Ohio court of appeals decision rejecting Howell's argument reasonably applied the Strickland standard, which requires Howell to prove: (1) “that [appellate] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment”; and (2) “there is a reasonable probability that, but for [appellate] counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Kelly v. Lazaroff, 846 F.3d 819, 831-32 (6th Cir. 2017).

         Howell raised this appellate ineffective-assistance argument in his Rule 26(b) application, and the Ohio court of appeals denied his claim on the merits. This Court's review is therefore limited to determining whether the decision by the Ohio court of appeals was contrary to or an unreasonable application of Supreme Court precedent. Id. at 831.

         Howell does not -- and cannot -- argue that the state court applied the wrong standard (Strickland) or that its conclusion is contrary to a Supreme Court decision made under materially indistinguishable facts. Thus, he must show the state court's application of Strickland to the facts of his case was unreasonable. Id. His burden of proof on that issue is “extremely high.” Id. Indeed, it is not enough to show merely that the court misapplied the law; rather, the court's decision “must have been ‘objectively unreasonable.'” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)). In other words, all “fairminded jurists” would have to agree the state court's decision was wrong. Harrington v. Richter, 562 U.S. 86, 101 (2011). This is a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Kelly, 846 F.3d at 832 (quoting Burt v. Titlow, 134 S.Ct. 10, 13 (2013)). Howell has not met that burden.

         Indeed, Howell does not even discuss his appellate counsel's performance; rather his claim for appellate ineffectiveness appears to rely solely on an inference that, if his trial counsel was ineffective for failing to obtain an expert, his appellate counsel must have been ineffective for failing to raise the issue on appeal. Howell thus focuses his argument solely on the merits of his underlying claim for ineffective assistance of trial counsel.

         But because that issue -- ineffectiveness of trial counsel -- was not presented on direct appeal, it is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Accordingly, this Court cannot grant relief unless it first finds Howell has demonstrated both cause for failing to raise the issue on direct appeal and resulting prejudice. See Kelly, 846 F.3d at 829.

         Although ineffectiveness of appellate counsel can satisfy the cause-and-prejudice standard, “appellate counsel [cannot] be ineffective for failing to raise a meritless claim.” Id. at 827. Thus, if Howell's underlying claim (trial counsel ineffectiveness) fails, so too does his argument for avoiding procedural default based on his appellate counsel's failure to raise the issue. For that reason, both the state court and the R&R rejected Howell's claim; each determined Howell's underlying ...


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