United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
MICHAEL H. WATSON United States District Judge
April 16, 2018, the Magistrate Judge issued a Report and
Recommendation ("R&R") recommending that the
Petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 be dismissed. R&R, ECF No. 10. Petitioner
filed an Objection to the Magistrate Judge's Report and
Recommendation. Obj., ECF No. 11. Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection, ECF No. 11, is OVERRULED. The R&R, ECF No. 10,
is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Court DECLINES to issue a certificate of appealabililty.
case involves Petitioner's underlying criminal
convictions after a jury trial in the Franklin County Court
of Common Pleas on felony murder and two counts of child
endangering. Petitioner asserts that the evidence is
constitutionally insufficient to sustain his conviction on
felony murder (claim one); that he was denied a fair trial
because the trial court failed to issue a jury instruction on
the lesser-included offense of involuntary manslaughter
(claim two); and that he was denied the effective assistance
of trial counsel (claim three). The Magistrate Judge
recommended dismissal of the latter claim as procedurally
defaulted and dismissal of Petitioner's remaining claims
as without merit.
objects to the Magistrate Judge's recommendations. He
maintains that the State failed to prove that he proximately
caused Iszacc Crockett's death, as the child actually
died as a result of complications or an error in medical care
while he remained in a comatose state as a result of his
injuries during his ten-month hospital stay. Petitioner
argues that the state appellate court's decision is based
on an unreasonable determination of the facts and that his
conviction on felony murder is unconstitutionally based on
mere speculation and an impermissible stacking of inferences.
Petitioner also contends that the appellate court
unreasonably determined that the evidence did not warrant a
lesser-included jury instruction on involuntary manslaughter
and that he thereby was denied a fundamentally fair trial.
Finally, Petitioner objects to the recommendation of
dismissal of his claim for denial of effective assistance of
counsel as procedurally defaulted based on his failure to
raise the issue in the Ohio Supreme Court. Petitioner now
argues that, in view of the Supreme Court's decisions in
Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino
v. Thaler, 569 U.S. 413 (2013), and under Gunner v.
Welch, 749 F.3d 511, 514 (6th Cir. 2014), the denial of
the effective assistance of appellate counsel in the filing
of his appeal to the Ohio Supreme Court may establish cause
for this procedural default.
arguments are not persuasive. For the reasons already
articulated in detail by the state appellate court and in the
Magistrate Judge's R&R, Petitioner's claim that
his conviction on felony murder can only be supported by the
stacking of impermissible inferences and mere speculation
lacks plausibility. As discussed, numerous experts testified
that the child died as a result of the abusive head trauma
suffered during the time that he was in the sole care of the
Petitioner and disputed the accuracy of Dr. Young's sole
alternative possible explanation for the child's
injuries. The injuries the child sustained caused him to be
hospitalized and in a coma with no voluntary movement for
several months, during which time his feeding tube became
dislodged from his stomach, and he died. In view of these
facts, the state appellate court did not unreasonably
conclude that Petitioner's actions were the direct and
proximate cause of death. "On habeas review, the
relevant question is whether the state court's decision
finding that sufficient evidence was presented to show
proximate cause fell below the 'threshold of bare
rationality.'" Bell-Cook v. Bergh, No.
2:13-cv-12963, 2013 WL 3873171, at *5 (E.D. Mich. July 25,
2013) (quoting Coleman v. Johnson, 566 U.S. 650, 656
(2012)). Additionally, the Court agrees with the decision of
the United States District Court for the Northern District of
Ohio in Spates v. Harris, No. 1:16-cv-1262, 2017 WL
7792506, at *13 (N.D. Ohio Sept. 13, 2017), concluding that
this Court defers to the state court's interpretation of
Ohio law on "the theories of natural consequences and
intervening causes and their application!.]" (citing
Bradshaw v. Richey, 546 U.S. 74, 76 (2005)).
and because the United States Supreme Court has not held that
Petitioner is constitutionally entitled to a jury instruction
on a lesser included offense, Petitioner's second claim
does not provide him relief. See Howard v. Dewine,
No. 5:14-cv-2587, 2016 WL 2637757, at *8 (N.D. Ohio April 6,
2016). Further, and despite Petitioner's argument to the
contrary, the record does not support his claim that the lack
of a jury instruction on the lesser-included offense of
involuntary manslaughter violated due process. See
Henderson v. Kibbe, 431 U.S. 135, 154 (1977) (citing
Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Petitioner fails to establish cause for his procedural
default. The right to counsel extends to the first appeal of
right and no further. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). Under the rule of Coleman v.
Thompson, 501 U.S. 722 (1991), attorney error in
proceedings wherein there is no right to counsel-such as in
the filing of a motion for a discretionary appeal with the
Ohio Supreme Court-cannot serve as cause for a procedural
default. See Tomlinson v. Bradshaw, No.
5:13-cv-1808, 2015 WL 106060, at *3 (N.D. Ohio Jan. 7, 2015)
(attorney error in the filing of a discretionary appeal to
the Ohio Supreme Court where there is no Sixth Amendment
right to counsel cannot constitute cause for a procedural
default) (citation omitted). Martinez and
Trevino announced a "narrow exception" to
Coleman's general rule, holding that
"[inadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial." Martinez, 566 U.S. at 9.
However, the Supreme Court has explicitly declined to extend
the holding in Martinez to claims of the denial of
the effective assistance of appellate counsel, see Davila
v. Davis, - U.S. -, -, 137 S.Ct. 2058, 2063 (2017), and
the Martinez exception therefore does not apply
here. In Gunner, which Petitioner references, the
Sixth Circuit held "that an Ohio habeas petitioner could
assert as cause his direct-appeal appellate counsel's
failure to advise him of the time limit for filing for
post-conviction relief pursuant to Ohio Rev. Code §
2953.21." McCiain v. Keily, 631 F. App*x422,
429 (6th Cir. 2015) (citing Gunner, 749 F.3d at
515-16, 520). But these circumstances do not exist here.
for these reasons and the reasons set forth in the Magistrate
Judge's R&R, Petitioner's Objection, ECF No. 11,
is OVERRULED. The R&R, ECF No. 10, is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, -
-U.S.------.------, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C.
§ 2253(c)(1) (requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal).
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner "has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement
to proceed further.'" Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
the dismissal of Petitioner's claims as procedurally
defaulted and without merit. The Court ...