United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOCS. 16, 17]
S. GWIN, UNITED STATES DISTRICT JUDGE.
Kirby petitions the Court for a writ of habeas corpus under
28 U.S.C. § 2254.
October 2006, a man raped a woman and attacked her with a box
cutter.Although she was unable to identify her
assailant, Petitioner Kirby's DNA was later found inside
October 2012, an Ohio grand jury indicted Petitioner Kirby
for kidnapping, rape, and felonious assault. At trial, the
prosecution presented DNA evidence and the victim's
description of the attack. Additionally, another woman
testified that Kirby raped her in the same place around the
same date and attacked her with a box cutter. The trial court
admitted this as modus operandi evidence to
establish Kirby's identity as the attacker.
2013, an Ohio jury convicted Petitioner Kirby of rape,
kidnapping, and felonious assault. The trial court then
sentenced Kirby to fifty-one years
imprisonment.The Ohio Court of Appeals later vacated
this sentence, holding that the trial court erred when it did
not merge the kidnapping and rape and kidnapping and
felonious assault sentences. The trial court resentenced Kirby
for rape and felonious assault only-again for fifty-one
now brings a habeas petition under 28 U.S.C.
2254. Magistrate Judge Knepp issued a report
and recommendation (“R&R”) that recommended
the Court deny Kirby's petition. Kirby
following reasons, the Court OVERRULES
Petitioner's objections, ADOPTS the
R&R, and DENIES Petitioner's request
for a writ of habeas corpus.
Petitioner has objected, the Court reviews the R&R de
novo. To succeed in his petition, Kirby must
show that that his conviction resulted from an unreasonable
application of clearly established federal law or an
unreasonable determination of the facts. This standard
argues that: (i) there was insufficient evidence to support
his conviction, (ii) the trial court improperly allowed
evidence of prior bad acts, (iii) the trial court improperly
imposed consecutive sentences, and (iv) Kirby's trial
counsel was constitutionally ineffective.
Petitioner's Sufficiency of the Evidence Claim Is
prisoner must first exhaust their state remedies before
seeking federal habeas review. Exhaustion requires the
petitioner to fairly present the claim to one full round of
state appellate review. When a petitioner does not do so, and
may no longer do so under state procedure, the claim is
Kirby failed to challenge the sufficiency of the evidence in
the state courts, his claim is procedurally defaulted.
counters that his appellate counsel was constitutionally
ineffective for failing to bring a sufficiency challenge,
that, if true, would justify the default. Petitioner
Kirby must show that: (i) his counsel's performance was
so deficient that he was no longer acting as counsel at all
and (ii) this deficiency caused prejudice. Kirby falls
short of this demanding standard.
mark of effective appellate advocacy is not scattershot
arguments raising every conceivable issue, but surgical
precision. Here, a sufficiency of the evidence
challenge was a losing argument. Under Ohio law, the question
is whether the evidence viewed in the light most favorable to
the prosecution would convince the average mind of the
trial, the victim testified that a man had raped and
assaulted her-and police found Kirby's DNA inside the
victim. And another woman testified that Kirby had raped and
assaulted near the same time, in the same locale, and in
startlingly similar fashion. Given this evidence, appellate
counsel reasonably omitted a sufficiency challenge. Because
Kirby had adequately effective counsel, his sufficiency
challenge remains defaulted.
Petitioner's Double Jeopardy Claim Fails
also argues that the trial court violated the Double Jeopardy
Clause by sentencing him for both kidnapping and felonious
assault. Kirby's grievance is imagined. At
resentencing, the trial court sentenced Kirby only for rape
and felonious ...