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Lawshea v. Wainwright

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

February 28, 2018

ERICK M. LAWSHEA, Petitioner,



          William H. Baughman, Jr. United States Magistrate Judge.


         Before me[1] is the petition of Erick M. Lawshea for a writ of habeas corpus under 28 U.S.C. § 2254.[2] Lawshea was convicted by a Cuyahoga County Court of Common Pleas jury in 2014 for robbery, aggravated robbery, and a firearm specification, [3] and is serving a nine year sentence.[4] He is currently incarcerated at the Warren Correctional Institution in Warren, Ohio.[5]

         In his petition, Lawshea raises four grounds for habeas relief.[6] The State has filed a return of the writ arguing that the petition should be denied because Lawshea's due process and insufficient evidence claims lack merit.[7] Lawshea has not filed a traverse.

         For the reasons that follow, I will recommend Lawshea's petition be dismissed in part and denied in part.


         A. Underlying facts, conviction, and sentence

         The facts that follow come from the decision of the Ohio appeals court.[8]

Lawshea was convicted for robbery, aggravated robbery, and a firearm specification.[9]

         These convictions arose out of an incident where Lawshea robbed Kenneth Lott at gunpoint while Lott was waiting in his car.[10]

         The State's witnesses, which included Lott and several police officers, provided the account of the incident and the subsequent investigation that led to Lawshea's arrest and convictions.[11]

         Lott testified that he received a call on his cell phone from a number that he did not recognize, but when he answered the call, he recognized the voice of the caller as someone he knew as “E.J.” The caller identified himself as “E.J.” and asked him for a ride to a local Speedway.[12] Lott stated that he had given “E.J.” a ride in the past and that, because it was a cold night, he “had no problem with doing it, ” that “E.J.” was the brother of a friend of his named Shantell and that he later learned that “E.J.” was Lawshea's nickname.[13]

         Lott testified that Lawshea asked him to pick him up in the rear parking lot of the apartments located at the intersection of Spring and Jennings road.[14] Lott stated that when he arrived at the parking lot, it was very dark.[15] He turned off the vehicle and, a few minutes later, Lawshea opened the front passenger side door causing the vehicle's dome light to come on.[16] Lott then stated that Lawshea entered his vehicle.[17] Lawshea then made a move toward the door, then turned back around toward Lott with a long barreled revolver in his hand that he pointed at Lott's abdomen and said, “[G]ive that s*** up. I ain't F***ing playing. * ** [I]f you make a move, I'm going to pop you're a**.”[18] Lott further testified that Lawshea then took the vehicle's keys out of the ignition and Lott's cell phone.[19]

         Lott testified that while Lawshea was threatening him, he looked up and saw a second man wearing black jeans and a hoodie approaching the driver's side of the vehicle.[20] The second man opened the front driver-side door and searched Lott's pockets taking $150 from his wallet.[21] Lott stated that he did not recognize the man in the hoodie.[22]

         It is important to note that Lott first identified the person that robbed him as “Shantell's brother C.J.” Shantell is the sister of Lawshea.[23] But, Lawshea's nickname is “E.J.” and not “C.J.”[24] After Lott realized his mistake, he informed the police of his error.[25]

Lawshea's sister Shantell testified that on one occasion in January 2014, she was smoking marijuana, watching television, and talking with Lott at her apartment when Lott touched her vagina.[26] She testified that she got upset, told Lott to stop, and that they exchanged a few words back and forth before Lott left her apartment.[27] According to Shantell's testimony, Lott and Lawshea got into a fight over the incident.[28]

         With respect to his relationship with Shantell, Lott testified that he met Shantell through a prior girlfriend, and that he had been over her house a few times and “helped her out.”[29] Lott stated that he had known Shantell for “[a] little over a year, ” but had not talked with her for several months before the incident.[30]

         Lott testified that the day after the incident, he went over to Shantell's seeking information on her “so called brother, ” “E.J.”[31] He testified that Shantell told him that “E.J.” was “not her real brother” but a “play friend” and that she did not “know his last name or anything like that.”[32]

         Detectives presented a photo array to Lott which included a picture of Lawshea.[33]Lott indicated with “100 percent certainty” that the Lawshea was one of the individuals who robbed him.[34]

         The jury found Lawshea guilty of robbery, aggravated robbery, and a firearm specification.[35] On August 18, 2014, the trial court then sentenced Lawshea to a total of eight years in prison and added a year in prison for violating post-release control.[36]

         B. Direct Appeal

         1. Ohio Court of Appeals

         On September 9, 2014, Lawshea, through counsel, filed a timely[37] notice of appeal with the Ohio appeals court.[38] In his brief, Lawshea filed three assignments of error:

1. The trial court erred in denying defendant-appellant's motion for acquittal when the evidence is not sufficient to support conviction [sic].
2. Defendant-appellant was denied his right to a fair trial and his right to due process due to poor police investigation into another person originally named as the perpetrator.
3. The verdict of the jury, finding Erick Lawshea guilty of aggravated robbery and robbery, is against the manifest weight of the evidence.[39]

         The state filed a brief in response.[40] On June 15, 2015, the Ohio appeals court overruled all three assignments of error and affirmed the decision of the trial court.[41]

         2. The Supreme Court of Ohio

         On July 29, 2015, Lawshea, pro se, filed a timely[42] notice of appeal with the Ohio Supreme Court.[43] In his brief in support of jurisdiction, he raised three propositions of law:

1. When the essential elements of the charges against a criminal defendant are not proven beyond a reasonable doubt due to insufficient evidence, a trial court should grant the defendant's motion for acquittal. The failure to do so results in a violation of his constitutional rights under the 5th and 14th amendments of the U.S. Constitution and the equivalent Articles and Sections of the Ohio Constitution.
2. When the evidence presented in a criminal trial is not enough to sustain the conviction due to being against the manifest weight of the evidence, the defendant's constitutional rights under the 5th and 14th amendments are violated as well as his rights under the equivalent Articles and Sections of the Ohio Constitution.
3. When the police conduct poor investigation of the alleged crime especially when another person is clearly a suspect in the crime, this deprives a criminal defendant of a fair trial and the due process of law guaranteed him by the 5th and 14th amendments of the U.S. constitution and the equivalent Articles and Sections of the Ohio Constitution.[44]

         According to the record, the State did not file a response. On October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal.[45]

         3. Petition for post-conviction relief

         On May 12, 2016, Lawshea, pro se, filed a motion for sentencing to correct a flawed and improper postrelease control notification.[46] Thereafter, through counsel, Lawshea filed a motion to vacate the judicial sanction sentence further arguing that the post release control was not properly imposed at the sentencing hearing.[47] The court denied the motion on August 10, 2016.[48] On August 31, 2016, Lawshea, pro se, filed a timely appeal to the Eighth District Court of Appeals.[49] On October 4, 2016, the Court of Appeals sua sponte dismissed the appeal because Lawshea failed to file a brief.[50]

         C. Petition for writ of habeas corpus

         On February 5, 2017, Lawshea, pro se, timely filed[51] a federal petition for habeas relief.[52] As noted above, he raises four grounds for relief:

GROUND ONE: The trial court erred in denying defendant-appellant's motion [sic] acquittal. Supporting facts, the evidence is not sufficient to support conviction.
GROUND TWO: Petitioner was denied right to fair trial. Supporting facts, based on the record will show police by their poor investigation, had originally named another as the perpetrator.
GROUND THREE: Petitioner was denied due process of law. Supporting facts, based on the record will show police, by their poor investigation, had originally named another as the perpetrator.
GROUND FOUR: The jury verdict is against the manifest weight of the evidence. Supporting facts, based on lack of any credible evidence beyond “any” reasonable doubt.[53]


         A. Preliminary observations

         Before proceeding further, I make the following preliminary observations:

1. There is no dispute that Lawshea is currently in state custody as the result of his conviction and sentence by an Ohio court, and that he was so incarcerated at the time he filed this petition. Thus, he meets the “in custody” requirement of the federal habeas statute vesting this Court with jurisdiction over the petition.[54]
2. There is also no dispute, as detailed above, that this petition was timely filed under the applicable statute.[55]
3. The record indicates that this is not the first time Lawshea filed for habeas relief. Judge Polster dismissed the first action without prejudice and stated that the “[p]etitioner may file a motion to reopen his case upon exhaustion of state remedies.”[56] Therefore, this is not a second successive petition because the first petition was not considered[57]
4. Moreover, it appears that these claims have been totally exhausted in Ohio courts by virtue of having been presented through one full round of Ohio's established appellate review procedure.[58]
5. Finally, Lawshea is not represented by counsel, he has not requested the appointment of counsel, [59] nor has he requested an evidentiary hearing to develop the factual bases of his claims.[60]

         B. Standards of review

         1. AEDPA review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [61] codified at 28 U.S.C. § 2254, strictly circumscribes a federal court's ability to grant a writ of habeas corpus.[62] Pursuant to AEDPA, a federal court shall not grant a habeas petition with respect to any claim adjudicated on the merits in state court unless the state adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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 [s]tate court proceeding.[63]

         The Supreme Court teaches that this standard for review is indeed both “highly deferential” to state court determinations, [64] and “difficult to meet, ”[65] thus, preventing petitioner and federal court alike “from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”[66]

         a. “Contrary to” or “unreasonable application of” clearly established federal law

         Under § 2254(d)(1), “clearly established Federal law” includes only Supreme Court holdings and does not include dicta.[67] In this context, there are two ways that a state court decision can be “contrary to” clearly established federal law:[68] (1) in circumstances where the state court applies a rule that contradicts the governing law set forth in a Supreme Court case, [69] or (2) where the state court confronts a set of facts that are materially indistinguishable from a Supreme Court decision, but nonetheless arrives at a different result.[70] A state court's decision does not rise to the level of being “contrary to” clearly established federal law simply because that court did not cite the Supreme Court.[71] The state court need not even be aware of the relevant Supreme Court precedent, so long as neither its reasoning nor its result contradicts it.[72] Under the “contrary to” clause, if materially indistinguishable facts confront the state court, and it nevertheless decides the case differently than the Supreme Court has previously, a writ will issue.[73] When no such Supreme Court holding exists the federal habeas court must deny the petition.

         A state court decision constitutes an “unreasonable application” of clearly established federal law when it correctly identifies the governing legal rule, but applies it unreasonably to the facts of the petitioner's case.[74] Whether the state court unreasonably applied the governing legal principle from a Supreme Court decision turns on whether the state court's application was objectively unreasonable.[75] A state court's application that is “merely wrong, ” even in the case of clear error, is insufficient.[76] To show that a state court decision is an unreasonable application, a petitioner must show that the state court ruling on the claim being presented to the federal court “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”[77] Under the “unreasonable application” clause, the federal habeas court must grant the writ if the State court adopted the correct governing legal principle from a Supreme Court decision, but unreasonably applied that principle to the facts of the petitioner's case.

          b. “Unreasonable determination” of the facts

         The Supreme Court has recognized that § 2254(d)(2) demands that a federal habeas court accord the state trial courts substantial deference:[78] Under § 2254(e)(1), “a determination of a factual issue made by a [s]tate court shall be presumed to be correct.”[79]A federal court may not characterize a state court factual determination as unreasonable “merely because [it] would have reached a different conclusion in the first instance.”[80] While such deference to state court determinations does not amount to an “abandonment or abdication of judicial review” or “by definition preclude relief, ”[81] it is indeed a difficult standard to meet. “The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judges.”[82]

         2. Fair presentment

         The standard of review outlined by 28 U.S.C. § 2254(d) applies by its own terms only to habeas claims “adjudicated on the merits in State court proceedings.[83] When a federal habeas claim was fairly presented to but not adjudicated on the merits by the state courts, the federal habeas court must evaluate that claim under the pre-AEDPA standard, reviewing de novo questions of law and mixed questions of law and fact.[84]

         The requirement of fair presentment initially involves the issue of exhaustion, since the fair presentment doctrine, like the exhaustion requirement itself, is rooted in important federal-state comity concerns.[85] If the petitioner does not present the same claim on the same theory to the state court as is presented to the federal habeas court, state courts do not have a fair opportunity to resolve the matter on the grounds asserted by the petitioner before the federal court review the state court decision under the AEDPA.[86]

         In the Sixth Circuit, a petitioner may fairly present his federal claim to the state court in a number of different ways:

(a) by relying on federal cases employing constitutional analysis;
(b) by relying on state court cases employing federal constitutional analysis;
(c) by phrasing the claim in terms of constitutional law or terms sufficiently particular as to allege a denial of a specific constitutional rights;
(d) by alleging facts well within the mainstream of constitutional law.[87]
But, as the Sixth Circuit has emphasen “self-evident” from the “ramifications” of the state-law claim.[88] “The bottom line is that [there is a lack of fair presentment where] the state courts were not called upon to apply the legal principles governing the constitutional claim now being presented to the federal courts.”[89]

         Where the petitioner did not presenized, fair presentment is not established by showing that the claim presented to the state court was “somewhat similar” to the federal constitutional claim, or that both claims arose out of the same set of facts, or even that a federal claim should have bet the federal claim but instead a state-law claim, the federal claim is not exhausted. But, when any attempt now to return to state court to exhaust the federal issue would fail as untimely or as barred by res judicata, the federal claim is procedurally defaulted.[90]

         3. Noncognizable claims

         The federal habeas statute, by its own terms, restricts the writ to state prisoners in custody in violation of federal law.[91] Accordingly, to the extent a petitioner claims that his custody is a violation of state law, the petitioner has failed to state a claim upon which federal habeas relief may be granted.[92] In such circumstances, a claim for federal habeas relief based solely on the ground ...

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