Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burke v. Turner

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

November 7, 2017

STEVEN D. BURKE, Petitioner,
v.
WARDEN, NEIL TURNER, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this petition be DENIED and that this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

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

On January 23, 2013, the Franklin County Grand Jury indicted Burke on one count of felonious assault with specification, in violation of R.C. 2903.11, a felony of the second degree, and one count of having a weapon while under disability, in violation of R.C. 2923.13, a felony of the third degree.
Jamacan Sizemore (“Sizemore”) testified that shortly after noon on January 8, 2013, he was working on cars in the parking lot of an apartment complex near 870 Wedgewood Avenue, in Columbus, Ohio. Sizemore testified that he heard someone say “what's up now?” and he turned and saw Burke, whom he had known for approximately 17 years, standing within 5 feet of a “little silver car.” (Tr. 91, 96.) Burke had a handgun and shot Sizemore 6 times. Burke then jumped into the passenger seat of the car and left. (Tr. 87-98.) Witnesses, Christopher Thornton and Juanita Stewart, testified that after the shooting, the gunman ran or “speed walked” a short distance to the silver car and “hopped in and took off.” (Tr. 335, 372.)
Burke argued that due to prior injuries, he was physically unable to commit the crime and “run” from the scene. His mother, Sharon Ross, and sister, Tamirra Burke, testified that he walked with a limp and used a cane and/or a walker at the time of the shooting. (Tr. 483-87, 500-06.)
At first, Sizemore did not cooperate with the police. (Tr. 104-10.) However, eventually he identified Burke as the assailant, and later testified that he had “no doubt” Burke was the shooter because he saw him and looked “dead in his face” as Burke pulled out a gun and shot him. (Tr. 92-98, 108-10.)
Paul Dille testified that he drove Burke to the area of the shooting, and that Burke pulled a gun out of his waistband and exited Dille's car when Burke saw Sizemore. Burke did not have a cane and was not walking with a limp that day. Dille says he heard the shots but did not actually see the shooting. Burke got back into the car quickly, pointed his gun at Dille and told him to “go.” (Tr. 430.) Dille complied and drove Burke away. Another witness, Dylan Roller, testified that Dille was very upset shortly after the shooting, and that Burke told Dille to get rid of the car. (Tr. 282-84.)
The jury convicted Burke of felonious assault with a gun specification. The court convicted Burke of having a weapon while under a disability. He was sentenced to 10 years in prison.
II. ASSIGNMENT OF ERROR
Burke appeals, assigning the following errors:
I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THEREBY DEPRIVING HIM OF THE RIGHT TO A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

State v. Burke, No. 15AP-54, 2016 WL 853181, at *1-2 (Ohio Ct. App. Mar. 3, 2016). On March 3, 2016, the appellate court affirmed the judgment of the trial court. Id. On June 29, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Burke, 146 Ohio St.3d 1430 (Ohio 2016). On April 22, 2016, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (Doc. 11-1, PageID# 180). The appellate court denied the Rule 26(B) application due to Petitioner's failure to include a sworn statement as required by App. R. 26(B)(2)(d). (PageID# 197). On October 13, 2016, the appellate court denied Petitioner's application for reconsideration. (PageID# 211). Petitioner did not file an appeal to the Supreme Court of Ohio.

         On November 10, 2016, Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient to sustain his convictions (claim one); that he was denied the effective assistance of trial counsel because his attorney failed to present evidence establishing that Petitioner was physically incapable of committing the crimes charged due to his physical health and vision and failed to obtain a key witness for the defense (claim two); and that he was denied due process by use of an unduly suggestive photographic identification procedure (claim three). It is the position of the Respondent that claims one and two are without merit and that claim three is unexhausted or procedurally defaulted.

         II. DISCUSSION

         A. Procedural Default (Claim Three)

         1. Standard

         Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). However, where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, “there is a procedural default for purposes of federal habeas[.]” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), abrogated on different grounds by Martinez v. Ryan, 566 U.S. 1 (2012). In other words, “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

         To determine whether procedural default bars a habeas petitioner's claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Third, the court must determine whether the forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner” may still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he was actually prejudiced by the alleged constitutional error. Id.

         If, after considering all four factors of the Maupin test, a court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless “review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). 2. Application In claim three, Petitioner asserts that the prosecution's use of an unduly suggestive photographic identification procedure violated his due process rights. Although somewhat confusing, Respondent argues that this claim is procedurally defaulted. (See Doc. 11 at 15 (arguing procedural default); but see Id. at 8-14 (arguing claim three is unexhausted and for dismissal of the claim on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.