United States District Court, S.D. Ohio, Western Division, Cincinnati
ORDER ADOPTING REPORT AND RECOMMENDATIONS
J. DLOTT UNITED STATES DISTRICT JUDGE
habeas corpus case, brought pro se by Petitioner Ian
Miller, is before the Court for consideration of
Petitioner's Objections (ECF No. 14) to the Magistrate
Judge's Report and Recommendations which recommended
dismissal of the Petition with prejudice (“Report, ECF
required by Fed.R.Civ.P. 72(b) the Court has reviewed de
novo every part of the Report to which objection has
been made. Based on that review, the Court makes the
One: Unconstitutionality of the Felony Murder Rule
First Ground for Relief, Petitioner 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).
First District Court of Appeals decided this claim on the
merits on direct appeal. Instead of presenting the same
argument in this Court, Petitioner argued in his Traverse
that the trial judge should have given jury instructions on
the lesser included offenses of voluntary or involuntary
manslaughter (Traverse, ECF No. 9, PageID 1194-99). The
Magistrate Judge found that this claim was procedurally
defaulted because it was not presented on direct appeal
(Report, ECF No. 11, PageID 1243-46).
Objections, Petitioner argues that his claim in Ground One is
not that the trial judge should have given the
lesser-included instruction, but that “the Trial Court
abused its discretion when it failed to view the evidence to
make a determination if a lesser included offense instruction
was warranted.” (Objections, ECF No. 14, PageID 1263).
Petitioner concedes that this claim also was not raised on
direct appeal, but asserts that failure is excused by
“Appellate Counsel's ignorance or oversight of the
[relevant] Ohio Supreme Court rulings[.]” Id.
at PageID 1264, citing State v. Franklin, 97 Ohio
St.3d 1, 2002-Ohio-5034 (2002);State v. Shane, 63
Ohio St.3d 630 (1992); and State v. Wilkins, 64 Ohio
St. 2d 382 (1980).
order to rely on ineffective assistance of appellate counsel
to excuse failure to present a claim on direct appeal, a
habeas petitioner must first present the ineffective
assistance of appellate counsel claim to the state courts in
the manner those courts have prescribed. Edwards v.
Carpenter, 529 U.S. 446 (2000). Petitioner concedes that
when he filed his Application for Reopening his direct appeal
under Ohio R. App. P. 26(B), he did not include this claim.
He seeks to excuse that omission by claiming that he
reasonably believed the claims he did raise were strong
enough that the First District Court of Appeals would appoint
him counsel who would then raise all the issues he has
brought to this Court in habeas (Objections, ECF No. 14,
in the text of Ohio R. App. P. 26(B) or the case law
interpreting it would give rise to a reasonable belief that
the process would work the way Petitioner supposed it would.
Under that Rule, if an appellant presents a genuine issue as
to whether he has a colorable claim of ineffective assistance
of appellate counsel, then the appeals court reopens the
appeal and an attorney is appointed if the appellant is
indigent. State v. Spivey, 84 Ohio St.3d 24 (1998).
There is nothing in the rule that speaks to having an
appointed attorney broaden the 26(B) application or
withholding ineffective assistance of appellate counsel
claims until that happens.
First District decided the ineffective assistance of
appellate counsel claims Petitioner actually made on the
merits and found they were without merit. State v.
Miller, Case No. C-140101 (1st Dist. Hamilton
Jan. 3, 2016) (unreported; copy at State Court Record, ECF
No. 4, PageID 122, et seq.) Ohio law does not permit a second
26(B) application to raise claims omitted from the first such
application. State v. Richardson, 74 Ohio St.3d 235
(1996). Indeed, “there is no right to file successive
applications for reopening” under App. R. 26(B).
State v. Twyford, 106 Ohio St.3d 176,
2005-Ohio-4380, ¶ 16 (2005), quoting State v.
Williams, 99 Ohio St.3d 179, 2003-Ohio-3079, ¶ 12
Once the issue of ineffective assistance has been raised and
adjudicated, res judicata bars its relitigation,
State v. Cheren, 73 Ohio St.3d 137 (1995), following
State v. Perry, 10 Ohio St. 2d 175 (1967).
state court decides on the merits a federal constitutional
claim later presented to a federal habeas court, the federal
court must defer to the state court decision unless that
decision is contrary to or an objectively unreasonable
application of clearly established precedent of the United
States Supreme Court. 28 U.S.C. § 2254(d)(1);
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770,
785 (2011); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693- 94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000). The First District decided the merits of
Petitioner's actually presented ineffective assistance of
appellate counsel claims and its decision is not an
objectively unreasonable application of the relevant Supreme
Court precedent, Strickland v. Washington, 466 U.S.
668 (1984). Therefore, Petitioner cannot rely on ineffective
assistance of appellate counsel to excuse his failure to
present his First Ground for Relief to the Ohio courts on
direct appeal and Ground One is therefore procedurally
Two: Denial of Equal Protection
Second Ground for Relief, Miller argues his convictions
violate the Equal Protection Clause of the Fourteenth
Amendment1 because the felony murder statute and the
involuntary manslaughter statute prohibit the same conduct.
The First District Decided this claim was without merit
because the two criminal statutes in question do not prohibit
identical conduct or require identical proof. State v.
Miller, Case No. C-140101 (1st Dist. Hamilton
May 22, 2015) (unreported; copy at State Court Record, ECF
No. 4, PageID 81). In his Traverse, Petitioner conceded this
was a correct reading of those two statutes, but argued the
First District's decision nonetheless violated
Jackson v. Virginia, 443 U.S. 307 (1979), and In
re Winship, 397 U.S. 358 (1970).
Report concluded neither these two cases nor other authority
requires a trial judge “to make a reasonable view of
the evidence in the light most favorable to the
Petitioner” in deciding whether to instruct on a lesser
included offense. It also concluded this claim was barred by