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Rogers v. Warden

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

April 30, 2018

ALTERIK ROGERS, Petitioner,
v.
WARDEN, BeCI, Respondent.

          ALGENON L. MARBLEY JUDGE.

          REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers Chief United States Magistrate Judge.

         Petitioner, 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 DISMISSED.

         Facts and Procedural History

         The 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 separately.
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 2015).

         On 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);[1]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.

         Standard of Review

         Petitioner 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)).

         The factual findings of the state appellate court are presumed to be correct.

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 follows:

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).

         “In 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

         In 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 law.”).

         Under 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 Court.

         Petitioner 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.

         Even 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 proceedings.

         Further, the record reflects that constitutionally sufficient evidence supported Petitioner's conviction. The state appellate court rejected ...


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