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Miller v. Noble

United States District Court, S.D. Ohio, Western Division, Cincinnati

June 15, 2018

IAN MILLER, Petitioner,
v.
JEFFREY NOBLE, Warden, London Correctional Institution Respondent.

          Susan J. Dlott District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is 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).

         Procedural History

         The 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).

         Miller 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.

         Miller 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 same activity.
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 Amendment.
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. Constitution.
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.)

         Analysis

         Ground One: Unconstitutionality of the Felony Murder Rule

         In his 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)

         Respondent 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.

         Miller 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.)

         In his 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 1194-99).

         Examination 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 corpus.

         The 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.

         The 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. 140, ...

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