United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE.
REPORT AND RECOMMENDATION
Elizabeth A. Preston Deavers Chief United States Magistrate
a state prisoner, brings the instant 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
Traverse, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge
RECOMMENDS that this action be
and Procedural History
Ohio Seventh District Court of Appeals summarized the facts
and procedural history of the case as follows:
On January 4, 2014 at approximately 6:30 in the evening
multiple shots were fired at the driver's side of a Jeep
Cherokee driven by Robert Washington in the Pleasant Heights
section of Steubenville, Ohio. Tr. 112, 116. Washington
stated he had just left Pleasant Food Mart, drove up Maxwell
Street towards State Street, and upon turning left onto
Lawson Avenue multiple shots were fired at his vehicle by
Appellant, Washington's former neighbor. Tr. 118, 130,
139. According to Washington, Appellant parked his white
Acura on State Street, exited the vehicle, stood on the curb
of the street, and fired the shots towards Washington's
vehicle. Tr. 138- 139. Washington immediately drove to his
house on Lawson Avenue and called the police.
The vehicle was riddled with 8 bullet holes, all on the
driver's side. One bullet traveled through the vehicle,
bruised Washington's left thigh, and landed in his jacket
pocket along with glass from the windows. Fortunately,
Washington sustained no other injuries.
Two witnesses at the scene testified that after firing
multiple shots, the gunman got into a white car parked on
State Street and sped off down the alley between Lawson
Avenue and Maxwell Street. Tr. 185, 190. Neither witness
could identify the shooter. Tr. 187, 193.
As a result of this incident, Appellant was questioned. He
gave multiple accounts of his whereabouts during the
shooting. A gunshot residue test was performed on his hands
and his clothing was taken into evidence.
Thereafter, he was indicted on one count of felonious assault
in violation R.C. 2903.11(A)(2), a second-degree felony, and
one count of having a weapon while under disability in
violation of R.C. 2923.13(A)(3), a third-degree felony. The
felonious assault charge contained an attendant firearm
specification, a violation of R.C. 2941.145. There was a
third charge in the indictment, Menacing by Stalking.
However, it was severed at the request of Appellant and tried
The trial on the remaining two charges occurred on June 4,
2014. The jury found Appellant guilty of the two charges and
the firearm specification. Sentencing occurred on July 2,
2014; Appellant was sentenced to an aggregate term of 14
years. 7/2/14 J.E. He received an 8 year sentence for the
felonious assault conviction, a mandatory 3 year sentence for
the firearm specification, and a 3 year sentence for the
weapons under disability conviction. All sentences were
ordered to be served consecutive to each other. 7/2/14 J.E.
Appellant timely appealed his conviction and sentence.
State v. Rogers, 34 N.E.3d 521 (Ohio 7th
App. Dist. 2015). Petitioner asserted that his convictions on
felonious assault and having a weapon while under a
disability were against the manifest weight of the evidence,
that the trial court violated Ohio law when it imposed a
maximum consecutive sentence, that he was denied the
effective assistance of counsel, and that the “true
copy” of a prior felony drug conviction from New Jersey
failed to establish that he was under disability during the
commission of the felonious assault. Id. at 522. On
June 1, 2015, the appellate court affirmed the judgment of
the trial court, but reversed his conviction on having a
weapon while under disability and vacated his sentence on
that charge. Id. at 530. On September 30, 2015, the
Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Rogers, 143 Ohio St.3d 1481 (Ohio
August 17, 2016, Petitioner filed this pro se
Petition. He asserts that his conviction on having a
weapon while under disability was against the manifest weight
of the evidence (claim one);that he was denied the effective
assistance of trial counsel (claim two); and that the trial
court improperly admitted evidence of his prior conviction
(claim three). It is the position of the Respondent that
Petitioner's claims lack merit.
seeks habeas relief under 28 U.S.C. § 2254. The
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) sets forth standards governing this
Court's review of state court determinations. The AEDPA
is “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state
court;” federal 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)).
factual findings of the state appellate court are presumed to
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). Moreover, “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)); 28 U.S.C.
§ 2254(d)(1), (2). The United States Court of Appeals
for the Sixth Circuit has explained these standards as
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.
Coley, 706 F.3d at 748-49. The burden of satisfying
the standards of § 2254 rests with the petitioner.
Cullen v. Pinholster, 563 U.S.170, 181 (2011).
order for a federal court to find a state court's
application of [Supreme Court precedent] unreasonable, . . .
[t]he state court's application must have been
objectively unreasonable, ” not merely “incorrect
or erroneous.” Wiggins v. Smith, 539 U.S. 510,
520-21, (2003) (internal quotation marks omitted)(citing
Williams v. Taylor, 529. U.S. at 409, and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see
also Harrington v. Richter, 131 S.Ct. at 786 (“A
state court's determination that a claim lacks merit
precludes federal habeas relief so long as
“‘fairminded jurists could disagree' on the
correctness of the state court's decision.”)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus
on the reasonableness of the result, not on the
reasonableness of the state court's analysis. Holder
v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(“‘[O]ur focus on the ‘unreasonable
application' test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and
not whether the state court considered and discussed every
angle of the evidence.' ” (quoting Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002)(en banc)));
see also Nicely v. Mills, 521 Fed.Appx. 398, 403
(6th Cir. 2013) (considering evidence in the state court
record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of
state court's decision). Relatedly, in evaluating the
reasonableness of a state court's ultimate legal
conclusion under § 2254(d)(1), a court must review the
state court's decision based only on the record that was
before it at the time it rendered its decision.
Pinholster, 563 U.S. at 181. Put simply,
“review under § 2254(d)(1) focuses on what a state
court knew and did.” Id. at 182.
claim one, Petitioner asserts that his conviction on
felonious assault was against the manifest weight of the
evidence. This claim fails to provide a basis for federal
habeas corpus relief. See Taylor v. Warden, Lebanon
Correctional Institution, No. 2:16-cv-237, 2017 WL
1163858, at *10 (S.D. Ohio March 29, 2017)(citing
Williams v. Jenkins, No. 1:15cv00567, 2016 WL
2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v.
Eberlin, 258 Fed.Appx. 761, 765, n. 4 (6th Cir. 2007));
Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at
*5 (N.D. Ohio Feb. 9, 2017)(citing Ross v. Pineda,
No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D.
Ohio))(“Whether a conviction is against the manifest
weight of the evidence is purely a question of Ohio
Ohio law, a claim that a verdict was against the manifest
weight of the evidence- as opposed to one based upon
insufficient evidence-requires the appellate court to act as
a “thirteenth juror” and review the entire
record, weigh the evidence, and consider the credibility of
witnesses to determine whether “the jury clearly lost
its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial
ordered.” State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida,
457 U.S. 31 (1982). Since a federal habeas court does not
function as an additional state appellate court, vested with
the authority to conduct such an exhaustive review,
petitioner's claim that his convictions were against the
manifest weight of the evidence cannot be considered by this
requests the Court to construe this claim as a constitutional
challenge to the sufficiency of the evidence under
Jackson v. Virginia, 443 U.S. 307 (1979). However,
Petitioner failed to raise this same issue in the state
appellate court. In order to satisfy the exhaustion
requirement in habeas corpus, a petitioner must fairly
present the substance of each constitutional claim to the
state courts as a federal constitutional claim. Anderson
v. Harless, 459 U.S. 4, 6 (1982); Picard v.
Connor, 404 U.S. 270, 275 (1971). Although the fair
presentment requirement is a rule of comity, not
jurisdiction, see Castille v. Peoples, 489 U.S. 346,
349 (1989); O'Sullivan v. Boerckel, 526 U.S.
838, 844-45 (1999), it is rooted in principles of comity and
federalism designed to allow state courts the opportunity to
correct the State's alleged violation of a federal
constitutional right that threatens to invalidate a state
criminal judgment. In the Sixth Circuit, a petitioner can
satisfy the fair presentment requirement in any one of four
ways: (1) reliance upon federal cases employing
constitutional analysis; (2) reliance upon state cases
employing federal constitutional analysis; (3) phrasing the
claim in terms of constitutional law or in terms sufficiently
particular to allege a denial of a specific constitutional
right; or (4) alleging facts well within the mainstream of
constitutional law. McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000). Further, general allegations of the
denial of a constitutional right, such as the right to a fair
trial or to due process, are insufficient to satisfy the
“fair presentment” requirement. Id.
liberally construing his pleadings, the record does not
indicate that Petitioner raised a claim that the evidence was
constitutionally insufficient to sustain his convictions in
the state appellate court. He argued instead only that his
convictions were against the manifest weight of the evidence.
He referred to state law in support of that claim. He did not
reference Jackson v. Virginia, 443 U.S. at 307, the
seminal case on insufficiency of the evidence or any federal
cases in support of his claim, nor did he refer to state
cases relying on federal law regarding the law on
insufficiency of the evidence. Petitioner likewise did not
refer to the United States Constitution or the Due Process
Clause in support of his claim. See Merit Brief of
Appellant (ECF No. 8-1, PageID# 113, 130-33.) This Court
therefore simply cannot conclude that Petitioner preserved
for federal habeas corpus review a claim that the evidence
was constitutionally insufficient to sustain his conviction
by raising a claim that his conviction was against the
manifest weight of the evidence. See Morris v.
Hudson, No. 5:06-cv-2446, 2007 WL 4276665, at 2-3 (N.D.
Ohio Nov. 30, 2007) (citations omitted). Moreover, Petitioner
has failed to establish cause for such failure. Therefore,
Petitioner has waived such claim for review in these
the record reflects that constitutionally sufficient evidence
supported Petitioner's conviction. The state appellate
court rejected ...