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Delafuente v. Richard

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

December 20, 2019

RHONDA RICHARD, Warden, Madison Correctional Facility, Respondent.

          Michael R. Barrett Judge.



         This matter is before the Court on the Report and Recommendation of the Magistrate Judge (Doc. 21, “R&R”), Petitioner's pro se objections (Doc. 22), the Supplemental Report and Recommendation of the Magistrate Judge (Doc. 24, “Supplemental R&R”), and Petitioner's pro se supplemental objections (Doc. 25). The Court will dismiss the petition.

         I. BACKGROUND

         Petitioner was charged and convicted by a jury of two counts of felonious assault and sentenced to six years in prison. State v. Delaffuente, [1] Nos. CA2015-03-040, CA2015-03-042, 2015-Ohio-4917, ¶ 2 (Ohio Ct. App. Nov. 30, 2015). He appealed the decision, raising a single assignment of error: that “the trial court erred by refusing to present the issue of self-defense to the jury.” Id. at ¶ 4. Ohio's Twelfth District Court of Appeals (the “Twelfth District”) affirmed and the Supreme Court of Ohio declined review. State v. Delaffuente, 145 Ohio St.3d 1425, 2016-Ohio-1173, 47 N.E.3d 168 (2016).

         Petitioner's subsequent § 2254 petition raised four grounds for relief, which the Magistrate Judge (absent objection by Petitioner) construed to assert a single ground for relief-denial of Fifth Amendment due process in the failure to have the jury consider self-defense-with four arguments in support. (Doc. 21, PAGEID 788-89). The Twelfth District had concluded that there was insufficient evidence to move forward with a self-defense jury instruction, and the Magistrate Judge found that this conclusion was not unreasonable. (Id. at PAGEID 793-94). In his objections to the R&R, Petitioner cited to particular portions of the record demonstrating, in his view, that the Twelfth District's conclusion was erroneous. (Doc. 22, PAGEID 797). Petitioner also argued that a defendant is not required to admit the use of deadly force for a jury to consider self-defense and that the credibility of the testimony related to self-defense was an issue for the jury. (Id. at PAGE ID 798). In his Supplemental R&R, the Magistrate Judge was unpersuaded by the portions of the record cited by Petitioner. He concluded that Petitioner's professions throughout the record that he did not employ deadly force (leaving aside whether a self-defense instruction required his admission that he did) supported his initial recommendation. (Doc. 24, PAGEID 840-41). He also concluded that presentation of self-defense to the jury was warranted only “if the evidence, if believed by the jury, [was] sufficient to establish [self-defense] by a preponderance of the evidence.” (Id. at 841).[2]

         Petitioner's objections to the Supplemental R&R raise three issues. He challenges the sufficiency of evidence for his felonious assault convictions, because he argues that he was not at fault in the underlying altercation or in violation of any duty to retreat. (Doc. 25, PAGEID 843). He next argues that he had no burden of production or persuasion on the issue of self-defense, where the altercation occurred at his home. (Id.). Finally, he argues that State v. Fox, 36 Ohio App.3d 78, 520 N.E.2d 1390 (Ohio Ct. App. 1987), supports the proposition that his lack of intent to use deadly force did not preclude him from a self-defense instruction.


         When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any issue for review: “[a] general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object.” Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, governs review of § 2254 petitions and imposes a ”highly deferential standard for evaluating state-court rulings[.]” Henderickson v. Warden Lebanon Corr. Inst., No. 2:10-cv-1084, 2011 WL 5282677, at *5 (S.D. Ohio Nov. 2, 2011), rec. adopted, 2012 WL 113435 (S.D. Ohio Jan. 13, 2012) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997)). Relief under § 2254 is limited to cases in which a state court's judgment:

(1) resulted in a decision that was contrary to, [3] or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Unreasonable application is distinct from incorrect application; the former demands “a substantially higher threshold” in order to warrant relief. Henderickson, 2011 WL 5282677, at *5 (quoting Schriro v. Landrigan, 550 U.S., 465, 473 (2007)). While state-law issues generally do not implicate federal habeas relief, it could be warranted if the state law error “rise[s] for some other reason to the level of a denial of rights protected the United States Constitution.” Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983)).

         III. ...

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