United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
a habeas corpus action brought pro se by Petitioner
Ian Miller under 28 U.S.C. § 2254 to obtain relief from
his conviction in the Hamilton County Common Pleas Court for
murder with a firearm specification (Petition, ECF No. 1,
PageID 1). Upon conviction by a jury, he was sentenced to
life imprisonment with parole eligibility at eighteen years.
Id. Upon Order for Answer by Magistrate Judge
Stephanie Bowman (ECF No. 2), Respondent has filed the State
Court Record (ECF No. 4) and a Return of Writ (ECF No. 5).
Petitioner then filed a Reply (ECF No. 9), making the case
ripe for decision. The reference in the case has recently
been transferred to the undersigned to help balance the
Magistrate Judge workload in the Western Division of this
Court (ECF No. 10).
Hamilton County grand jury indicted Miller
on two counts of murder, one in violation of Ohio Revised
Code § 2903.02(A) (purposeful murder), and one in
violation of Ohio Revised Code § 2903.02(B)(felony
murder), each with a firearm specification. He was acquitted
of purposeful murder but convicted of felony murder, and was
sentenced as set forth above. He appealed to the First
District Court of Appeals which affirmed the convictions.
State v. Miller, No. C-140101 (1st Dist.
May 22, 2015) (unreported; copy at State Court Record, ECF
No. 4, PageID 77, et seq.), appellate jurisdiction declined,
Ohio Sup. Ct. No. 2015-1108 (2015).
filed an application to reopen his direct appeal to raise
claims of ineffective assistance of appellate counsel.
Id. at PageID 117. The First District denied the
application on the merits. Id. at PageID 122, et
seq. Miller was again unsuccessful at obtaining Supreme Court
review. Id. at PageID 135.
then filed his Petition in this Court, pleading the following
Grounds for Relief:
Ground One: I was deprived of my
constitutional right to due process and to a fair trial as
guaranteed by the Fifth and Fourteenth Amendments to the U.S.
Constitution by the application of Ohio's felony murder
rule to this case.
Supporting Facts: The Ohio felony murder
rule as applied in this case deprived me of Due Process and
Equal Protection. I was convicted under the theory that I
committed a felonious assault and the victim died as a
result. This permitted the State of Ohio to convict me of
murder without providing a scintilla of evidence that I
intended to kill my victim. Because I was convicted of Murder
without any evidence of intent, my conviction violates Due
Process and Equal Protection.
Ground Two: I was denied due process and
equal protection in violation of the Fifth and Fourteenth
Amendments to the U.S. Constitution because the Felony Murder
statute and the involuntary manslaughter statute prohibit the
Supporting Facts: The Ohio Court of Appeals
unreasonably failed to apply existing precedent on equal
protection to the facts of this case. Both Ohio's felony
murder statute and its involuntary manslaughter prohibit
identical activity, require identical proof, and yet imposed
different penalties. The felony murder rule has no rational
basis to any legitimate statutory objective and it treats
similarly situated people differently and accordingly it
violates the Equal Protection Clause of the Fourteenth
Ground Three: There was insufficient
evidence to sustain the conviction in this case and the
conviction was against the manifest weight of the evidence.
Supporting Facts: My Due Process Rights were
violated because the State of Ohio failed to present any
evidence that I committed felonious assault. Further, there
was no evidence that I met the statutory requirements for
felonious assault and because I failed to meet those
requirements this offense could not be used as the predicate
felony to invoke the felony murder rule. Because the State
failed to present proof beyond a reasonable doubt of each and
every fact necessary to commit felonious assault, my
conviction is a miscarriage of justice.
Ground Four: I received the ineffective
assistance of appellate counsel for his failure to raise on
appeal the ineffective assistance of trial counsel in
violation of the Sixth Fourteenth Amendments to the U.S.
Supporting Facts: Trial counsel was
ineffective for failing to argue that the Defendant saw what
appeared to be a gun in Marcus Lane's hand. Evidence
presented at trial indicated that the victim had a cell phone
that the Defendant reasonably believed to be a firearm -
evidence that a reasonably competent attorney would have
emphasized in a self-defense case. This incident also
occurred on the 4th of July and the simultaneous sound of
fireworks also influenced Petitioner's judgment and his
reasonable belief that he was being confronted with a
firearm. Trial counsel was ineffective in failing to make
these arguments to the jury and appellate counsel was
ineffective in failing to present trial counsel's
ineffectiveness on appeal.
(Petition, ECF No. 1, PageID 5, 6, 8, 9-10.)
One: Unconstitutionality of the Felony Murder Rule
First Ground for Relief, Miller argues that he was
unconstitutionally convicted of murder under the felony
murder rule which allowed the State to prove only the
mens rea element of the underlying felony (felonious
assault which requires that the offender have acted
knowingly) instead of the mens rea - purposely --
required for a straight murder conviction (Traverse, ECF No.
9, PageID 1195)
defends on the merits, arguing that the First District
interpreted the statutes in question in accordance with state
law and found that Miller's conviction under the felony
murder statute was not unconstitutional.
presented this claim as his Third Assignment of Error on
direct appeal which the First District decided as follows:
In his third assignment of error, Miller argues that the
state's use of felonious assault as the predicate felony
for his felony-murder conviction violated his due-process
rights as guaranteed by the Ohio and United States
Constitutions. But the legislature has “narrowly
defined” the scope of the offense of felony murder and
“related it to the legitimate purpose of punishing the
taking of human life while committing a separate offense of
violence.” State v. Pickett, 1st Dist.
Hamilton No. C-000424, 2001 Ohio App. LEXIS 5549 (Dec. 14,
2001). Moreover, the offense as statutorily defined
“does not arbitrarily relieve the state from proving
criminal intent, nor does it eliminate the role of the jury
as the trier of fact.” Id. And Miller has
failed to cite any Ohio or federal case law that supports his
argument that Ohio's failure to adopt a "merger
doctrine" raises constitutional concerns. See State
v. Mays, 2d Dist. Montgomery No. 24168, 2012-Ohio-838,
¶¶12-13. Therefore, Miller's conviction under
the felony-murder rule of R.C. 2903.02(B), where the
predicate offense was the felonious assault of the murder
victim, did not deprive him, of due process. Thus, we
overrule the third assignment of error.
State v. Miller, supra, (Judgment Entry of May 22,
2015, State Court Record, ECF No. 4, PageID 80-81.)
Traverse, Petitioner does not argue his First Ground for
Relief as it was presented to the First District in his Third
Assignment of Error. Instead he argues at some length that
the trial court should have given jury instructions on the
lesser included offense of voluntary manslaughter or
involuntary manslaughter (Traverse, ECF No. 9, PageID
of Miller's Brief on Appeal shows that he did not raise
as an assignment of error the failure to the trial judge to
charge on lesser included offenses (Appellant's Brief,
State Court Record, ECF No. 4, PageID 40-62.) Because this
claim was not presented to the Court of Appeals, Miller has
forfeited his right to have it heard on the merits in habeas
procedural default doctrine in habeas corpus is described by
the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate and
independent state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause of the default and actual prejudice as a result of the
alleged violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not
raise on federal habeas a federal constitutional rights claim
he could not raise in state court because of procedural
default. Engle v. Isaac, 456 U.S. 107, 110 (1982);
Wainwright v. Sykes, 433 U.S. 72 (1977). Absent
cause and prejudice, a federal habeas petitioner who fails to
comply with a State's rules of procedure waives his right
to federal habeas corpus review. Boyle v. Million,
201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485
(1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87.
Sixth Circuit Court of Appeals requires a four-part analysis
of procedural default. Guilmette v. Howes, 624 F.3d
286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th
Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48
(6th Cir. 1998), citing Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir.
2001); Jacobs v. Mohr, 265 F.3d 407, 417
(6th Cir. 2001).
First the court must determine that there is a state
procedural rule that is applicable to the petitioner's
claim and that the petitioner failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts
actually enforced the state procedural sanction, citing
County Court of Ulster County v. Allen, 442 U.S.