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Delafuente v. Richard

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

February 12, 2018

LUIS DELAFUENTE, Petitioner,
v.
RHONDA RICHARD, Warden, Madison Correctional Institution Respondent.

          District Judge Michael R. Barrett

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 22) to the Magistrate Judge's recommendation that the case be dismissed with prejudice (Report, ECF No. 21). District Judge Barrett has recommitted the case for reconsideration in light of the Objections (Order, ECF No. 23).

         Delafuente begins his Objections by claiming his right to a de novo determination by the assigned District Judge of any finding or recommendation by a Magistrate Judge to which objection is made. That is certainly correct as Fed.R.Civ.P. 72(b)(3) provides. However, the same Rule allows a District Judge to return the case to the Magistrate Judge with instructions before a final de novo review. That is what Judge Barrett has done in the Recommittal Order.

         Petitioner also correctly points out that the Sixth Circuit has held it is clearly established Supreme Court precedent that self-defense is a right that a criminal defendant has the right to raise. The Report recognizes this constitutional proposition (Report, ECF No. 21, PageID 789, quoting Taylor v. Withrow, 288 F.3d 846 (6th Cir. 2002)). However, the Taylor Court did not suggest that the Supreme Court had clearly established all of the procedural parameters of self-defense. Indeed, the Supreme Court has expressly held that Ohio Revised Code § 2901.05, which makes self-defense an affirmative defense, is constitutional. Martin v. Ohio, 480 U.S. 228, 232 (1987). Under Ohio law, that means the burden of production - producing enough evidence to put self-defense in issue - and the burden of persuasion - producing enough evidence to persuade the jury by a preponderance of the evidence that one acted in self-defense - are both on the defendant claiming self-defense.

         In addition, the definition of what self-defense consists of is also a matter of state law. That is, at some point in the future the Supreme Court could “constitutionalize” self-defense by defining it as a matter of constitutional law, but it has not done so as yet.

         Under Ohio law to be entitled to a jury instruction on self-defense, a defendant must produce sufficient evidence from which a jury could find, by a preponderance of the evidence, that

(1) the defendant was not at fault in creating the situation giving rise to the affray, (2) the defendant had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force, and (3) the defendant did not violate any duty to retreat or avoid the danger.

State v. Robbins, 58 Ohio St. 2d 74 (1979)(paragraph two of the syllabus).

         Delafuente expends some effort in his Objections discussing the first and third elements of the definition, but the Twelfth District did not reject his defense because he had created the situation (element one) or failed to retreat (element three). Instead, it found his failure was on the second element, because “as the record reveals, Delaffuente [sic] and all of Delaffuente's [sic] various defense witnesses testified Delaffuente [sic] never had a knife or used a knife that morning.” State v. Delaffuente [sic], 2015 Ohio App. LEXIS 4776, 2015 WL 7709866, ¶ 12 (12th Dist. Nov. 30, 2015).

         The Report criticized Delafuente's filings for not providing record references, as was required by Magistrate Judge Litkovitz's Order for Answer. In his Objections, Delafuente purports to cure that defect by citing two excerpts from his own direct testimony, ECF No. 3, PageID 614-15 and 609-20. (ECF 232, PageID 797.) Most of this testimony is about how the fight started over his ejecting Rene Cervantes and Tim Hull over whether more alcohol was going to be provided. At one point he describes how his wife Claudia had been cut and he saw a small knife in Rene Cervantes hand that he tried to get a hold of. (ECF No. 3, PageID 616-17.) At PageID 618, when asked directly if the knife stayed in Rene's hand, he testified “I believe so.” Later on the same page his attorney asked “Do you ever get the knife?” and he answered “I - honestly, I can't recall that part, but I remember on the same struggling, going back and forth, . . . I got hit right here and the second time in here. That's when my bleeding start [sic]. By holding the hand, then I believe I have the cut on my hand. That's how my belief, although I cannot say that's accurate.”

         The testimony continues as follows:

Q. And I understand that, but - but you never got the knife ...

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