REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, and petitioner's reply. (Docs. 1, 9, 13).
I. FACTUAL BACKGROUND
The Ohio Court of Appeals, Twelfth Appellate District, provided the following summary of the facts that led to petitioner's conviction and sentence:
(Doc. 9, Ex. 11, pp. 1-3).
II. PROCEDURAL HISTORY
State Trial and Appellate Court Proceedings
On April 16, 2008, the Butler County, Ohio grand jury returned an indictment charging petitioner with one count of aggravated robbery, in violation of Ohio Rev. Code § 2911.01(A)(1); one count of aggravated burglary, in violation of Ohio Rev. Code § 2911.11(A)(1); one count of felonious assault, in violation of Ohio Rev. Code § 2903.11(A)(2); and one count of grand theft, in violation of Ohio Rev. Code § 2913.02. (Doc. 9, Ex. 1). The counts of aggravated robbery, aggravated burglary and felonious assault all included firearm specifications. Petitioner entered a not guilty plea to all charges.
On September 5, 2008, after a jury trial, petitioner was found guilty of all charges. (Doc. 9, Ex. 2). Petitioner filed a motion for a new trial on December 3, 2008. (Doc. 9, Ex. 3). On December 30, 2008, the trial court denied petitioner's motion. (Doc. 9, Ex. 5). On the same day, petitioner was sentenced to six years for the aggravated robbery conviction, plus an additional three years for the firearm specification; five years for the felonious assault conviction, plus three years for the firearm specification; and four years for the grand theft conviction. (Doc. 9, Ex. 6).
Through different counsel, petitioner filed a notice of appeal to the Ohio Court of Appeals on January 27, 2009. (Doc. 9, Ex. 7). Petitioner raised five assignments of error for review and argument:
(Doc. 9, Ex. 8). On November 9, 2009, the Ohio Court of Appeals affirmed the judgment of the trial court. (Doc. 9, Ex. 11).
Ohio Supreme Court
On December 23, 2009, petitioner filed a pro se notice of appeal to the Ohio Supreme Court. (Doc. 9, Ex. 12). In his memorandum in support of jurisdiction, petitioner raised four propositions of law:
(Doc. 9, Ex. 13). On March 10, 2010, the Ohio Supreme Court denied leave to appeal and dismissed the appeal "as not involving any substantial constitutional question." (Doc. 9, Ex. 14).
State Post-Conviction Petition
On February 3, 2010, petitioner filed a pro se application to reopen his direct appeal, pursuant to Ohio App. R. 26(B). (Doc. 9, Ex. 15). Therein, petitioner argued that his appellate attorney was ineffective for failing to raise the following assignments of error:
(Doc. 9, Ex. 15, p. 2). On June 24, 2010, the Ohio Court of Appeals denied petitioner's application to reopen. (Doc. 9, Ex. 17).
Petitioner did not appeal the denial of his application to reopen to the Ohio Supreme Court.
Federal Habeas Corpus
Petitioner commenced the instant federal habeas corpus action on April 13, 2011. (Doc. 1). Petitioner raises nine grounds for relief in his petition:
Respondent opposes the petition. (Doc. 9). In the return of writ, respondent contends that Grounds One through Four are not cognizable in federal habeas corpus; that Grounds Five through Eight are procedurally defaulted; and Ground Nine is meritless. Id. at 11-12.
III. THE PETITION SHOULD BE DENIED
In this federal habeas case, the applicable standard of review governing the adjudication of the constitutional claims that were raised to and decided by the Ohio courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:
28 U.S.C. § 2254(d).
"A decision is `contrary to' clearly established federal law when `the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an `unreasonable application' of clearly established federal law when `the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit recently explained in Otte:
Id. (emphasis in original).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings" and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S.Ct. at 786. In other words, to obtain federal habeas relief under that provision, the state prisoner must show that the state court ruling on the claim presented "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
The Supreme Court recently made it clear that in assessing the merits of a constitutional claim under § 2254(d), the federal habeas court must apply the Supreme Court precedents that controlled at the time of the last state-court adjudication on the merits, as opposed to when the conviction became "final." Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011); cf. Otte, 654 F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim addressed by the state courts, the federal habeas court must "look to Supreme Court cases already decided at the time the state court made its decision"). In Greene, 132 S.Ct. at 44, the Court explained:
Decisions by lower courts are relevant "to the extent [they] have already reviewed and interpreted the relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court." Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010), cert. denied, 132 S.Ct. 127 (2011)). The writ may issue only if the application of clearly-established federal law is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
A. Ground One is not cognizable on federal habeas corpus.
In Ground One, petitioner contends that his Fifth, Sixth and Fourteenth Amendment rights were violated because his indictment was defective. Petitioner bases his argument on the fact that the indictment did not include a mens rea element for the count of Aggravated Robbery. (Doc. 1, p. 6).
In addressing petitioner's defective indictment claim, the Ohio Court of Appeals overruled his assignment of error as follows:
(Doc. 9, Ex. 11, p. 3). In State v. Lester, 916 N.E.2d 1038 (Ohio 2009), the Ohio Supreme Court held that "the state is not required to charge a mens rea for [the element of displaying, brandishing, indicating possession of, or using a deadly weapon] of the crime of aggravated robbery under R.C. 2911.01(A)(1)." Lester, 916 N.E.2d at 1044. In any event, petitioner's claim attacking only the manner in which he was charged with a crime does not trigger federal constitutional concerns subject to review in this federal habeas proceeding.
It is well-settled that there is not even a federal constitutional right to an indictment in state criminal proceedings. Hurtado v. California, 110 U.S. 516, 537-38 (1884); see also Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984) ("The law is well settled that the federal guarantee of a grand jury indictment has not been applied to the states. . . . It is also well settled in this Circuit that the Constitution does not require any particular state indictment rule."); Watson v. Jago, 558 F.2d 330, 337 (6th Cir. 1977); Fears v. Miller, No. 1:09-cv-698, 2009 WL 6315341, at *9 (N.D. Ohio Dec. 1, 2009) (Report & Recommendation), adopted, 2010 WL 1258096 (N.D. Ohio Mar. 30, 2010); Harsh v. Warden, Chillicothe Corr. Inst., No. 1:08-cv-433, 2009 WL 3378246, at *1, *20 (S.D. Ohio Oct. 15, 2009) (Beckwith, J.; Black, M.J.). As long as "sufficient notice of the charges is given in some . . . manner" so that the accused may adequately prepare a defense, the Fourteenth Amendment's Due Process Clause is satisfied. Koontz, 731 F.2d at 369; Watson, 558 F.2d at 338; see also Williams v. Haviland, 467 F.3d 527, 535 (6th Cir. 2006).
In this case, the undersigned is convinced that the indictment provided petitioner with sufficient notice of the charges against him to satisfy due process concerns. Accordingly, petitioner is not entitled to habeas relief based on Ground One of the petition.
B. Grounds Two through Four are procedurally defaulted and waived.
In Ground Two, petitioner argues that the trial court improperly admitted evidence when the court "repeatedly allowed a tape of the victim's testimony to be played during deliberation causing prejudice to the petitioner in violation of a fair trial and Du[e] Process." (Doc. 1, p. 8). In Ground Three, he contends that the prosecution's introduction of "evidence and witness testimony not put into the discovery violating Crim. R. 16.1 and 14th Amendment Due Process," constituted prosecutorial misconduct. Id. at 9. In Ground Four, petitioner argues that the trial court violated his due process rights by refusing to grant his motion for a new trial without a hearing. Id. at 11.
As an initial matter, to the extent that petitioner argues that a violations of state law justify habeas corpus relief, his contention is without merit because this Court is without jurisdiction to review issues of state law on federal habeas corpus review. This Court may grant a writ of habeas corpus only if petitioner, pursuant to the judgment of a State court, "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The federal courts may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir.1988). See also Hicks v. Collins, 384 F.3d 204, 220 (6th Cir. 2004) (alleged violation of Ohio Criminal Rule 16(B)(1)(a)(ii) not cognizable on habeas review).
Petitioner has waived any claim of constitutional error because he failed to fairly present his constitutional claims to the state courts. "Federal courts do not have jurisdiction to consider a claim in a habeas petition that was not `fairly presented' to the state courts." Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to the state's highest court in order to satisfy the fair presentation requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). Moreover, it is well-settled that in order to satisfy the "fair presentation" requirement, a habeas corpus petitioner must present both the factual and legal underpinnings of his claims to the state courts. Fulcher, 444 F.3d at 798; McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987).
A set of four guidelines has been developed for determining whether a claim was presented in such a way as to alert the state courts of the claim's federal nature. McMeans, 228 F.3d at 681. Under those guidelines, the fair presentation requirement is satisfied if the petitioner raised the federal issue in the state courts by (1) relying on federal cases employing constitutional analysis; (2) relying on state cases employing constitutional analysis in similar factual contexts; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. Id. (citing Franklin, 811 F.2d at 326).
In this case, petitioner failed to present the claims in Grounds Two through Four as constitutional issues on direct appeal. Instead, petitioner argued that the alleged errors each amounted to an abuse of discretion under state law. (See Doc. 9, Ex. 8). Petitioner did not rely on federal or state cases employing constitutional analysis, nor can the Court conclude that petitioner phrased his claim in terms of constitutional law or alleged facts well within the mainstream of constitutional law.
Petitioner did raise the claims in Grounds Two through Four in his memorandum in support of jurisdiction on further appeal to the Ohio Supreme Court. (See Doc. 9, Ex. 12). However, petitioner was unable to satisfy the "fair presentation" requirement at that late juncture because the Ohio Supreme Court lacked jurisdiction to consider the constitutional issue, which had not been raised to or considered by the intermediate appellate court. See Ohio Const. art. IV, § 2(B)(2); State v. Jones, 211 N.E.2d 198 (Ohio 1965); see also Rigdon v. Ohio Adult Parole Authority, No. 1:08-cv-716, 2010 WL 3910236, at *9 (S.D. Ohio July 7, 2010) (Wehrman, J.) (citing Leroy, 757 F.2d at 99; Fornash v. Marshall, 686 F.2d 1179, 1185 n.7 (6th Cir. 1982)), adopted, 2010 WL 3910230 (S.D. Ohio Oct. 4, 2010) (Dlott, J.); Harsh v. Warden, Chillicothe Corr. Inst., No. 1:08-cv-433, 2009 WL 3378246, at *1, *9 n.8 (S.D. Ohio Oct. 15, 2009) (Beckwith, J.; Black, M.J.) (and cases cited therein).
Because petitioner failed to provide the state's highest court with an opportunity to correct the alleged violations of his constitutional rights, he procedurally defaulted and has waived the claims raised in Grounds Two through Four absent a showing of cause and prejudice for the default in the state courts, or that a fundamental miscarriage of justice will occur if the claim is not considered herein. See, e.g., Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262. No such showing has been made in this case. Therefore, petitioner's claims in Grounds Two through Four are waived and barred from review in this federal habeas proceeding.
C. Grounds Five through Eight are Procedurally Defaulted and Ground Nine is Without Merit.
In Grounds Five through Eight, petitioner alleges that the prosecution improperly withheld exculpatory evidence; that trial counsel provided ineffective assistance of counsel; that the prosecution's comments insinuating that petitioner was involved in a gang constituted prosecutorial misconduct; and that insufficient evidence was offered to support his conviction. (Doc. 1, pp. 16-18). In Ground Nine, petitioner contends that appellate counsel provided ineffective assistance by failing to raise the underlying claims raised in Grounds Five through Eight on appeal. Id. at 16.
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state defendant with federal constitutional claims must fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to the state's highest court in order to satisfy the fair presentation requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). If the petitioner fails to fairly present his constitutional claims through the requisite levels of state appellate review to the state's highest court or commits some other procedural default that prevents a merit-based review of the federal claims by the state's highest court, he may have waived the claims for purposes of federal habeas review. See O'Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).
It is well-settled under the procedural default doctrine that the default of a federal claim in the state court may preclude federal habeas review if the state court judgment rests on a state-law ground that is both "independent" of the merits of the federal claim and an "adequate" basis for the state court's decision. See Harris, 489 U.S. at 260-62. The Supreme Court has stated:
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner fails to comply with a state procedural rule that required him to have done something at trial to preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit applies a four-part test to determine if a claim is procedurally defaulted:
In the usual case, the adequate and independent state ground doctrine will not apply to bar consideration of a federal claim on habeas corpus review unless the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. Harris, 489 U.S. at 263; see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000).
In addition, the rule precluding federal habeas corpus review of claims rejected by the state courts on state procedural grounds applies only in cases where the state rule relied on by the courts is deemed "adequate" or, in other words, involves a "firmly established and regularly followed state practice" at the time that it was applied. Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Richey v. Mitchell, 395 F.3d 660, 679 (6th Cir.) (citing White v. Schotten, 201 F.3d 743, 751 (6th Cir. 2000)), rev'd on other grounds, 546 U.S. 74 (2005) (per curiam); Warner v. United States, 975 F.2d 1207, 1213 (6th Cir. 1992); see also Rideau v. Russell, 342 F. App'x 998, 1002 (6th Cir. 2009). To be considered regularly followed, a procedural rule need not be applied in every relevant case, but rather "[i]n the vast majority of cases." Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989); see also Byrd v. Collins, 209 F.3d 486, 521 (6th Cir. 2000).
Finally, the state court's adequate and independent finding of procedural default will preclude habeas corpus review of the petitioner's federal claims unless the petitioner can show "cause" for the default and "actual prejudice" as a result of the alleged violations of federal law, or that failure to consider the federal claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262; see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the instant case, petitioner failed to present the claims raised in Grounds Five through Eight on direct appeal to the Ohio Court of Appeals. Thus, petitioner procedurally defaulted the claims asserted in these grounds for relief. Ohio law provides that an issue not raised on direct appeal is barred by the doctrine of res judicata. See State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967) (syllabus); State v. Combs, 652 N.E.2d 205, 209 (Ohio Ct. App. 1994) (holding that res judicata stops post-conviction relief for claims that could have been raised on direct appeal). The Sixth Circuit Court of Appeals has consistently recognized that under Ohio law an issue that is not raised by a petitioner on direct appeal is subsequently barred from review based on the doctrine of res judicata. See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (recognizing procedural default of a claim in habeas petition where appellant never raised the claim on direct appeal to the Ohio Court of Appeals and the Ohio Supreme Court); Rust, 17 F.3d at 160-61 (finding adequate and independent state procedural rule where new claims raised in his second motion for leave to file a delayed direct appeal were barred by the Ohio Court of Appeals as res judicata because the petitioner had opportunity to raise constitutional claims during delayed direct appeal but failed to do so); Leroy, 757 F.2d at 100 (holding as adequate and independent state grounds the procedural default of claims raised for the first time in a petition for writ of habeas corpus on the basis of res judicata where petitioner failed to raise those claims in his direct appeal to the Ohio Court of Appeals and to the Ohio Supreme Court).
Although petitioner raised the underlying trial error claims in Grounds Five through Eight in connection with his Rule 26(B) application to reopen his direct appeal by asserting appellate counsel was ineffective for failing to bring the underlying claims as assignments of error, his Rule 26(B) application did not preserve the merits of those claims for habeas review. See Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). "[B]ringing an ineffective assistance claim in state court based on counsel's failure to raise an underlying claim does not preserve the underlying claim for federal habeas review because `the two claims are analytically distinct.'" Id. at 312 (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)). Consequently, by failing to raise the underlying trial error claims asserted in Grounds Five through Eight on direct appeal to the state courts, petitioner has waived the claims absent a showing of cause for his default and actual prejudice as a result of the alleged errors, or that the failure to consider the claims will result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750. See also Murray, 477 U.S. at 485; Isaac, 456 U.S. at 129; Sykes, 433 U.S. at 87.
In Ground Nine, petitioner argues that appellate counsel was ineffective for failing to raise the underlying claims asserted in Grounds Five through Eight. (Doc. 1, p. 16). Ineffective assistance of counsel can provide cause for a procedural default unless the ineffective assistance of appellate counsel claim was itself procedurally defaulted.
In denying petitioner's application to reopen his appeal, the Ohio Court of Appeals ruled as follows:
(Doc. 9, Ex. 17, pp. 2-4).
i. Ground Five
In Ground Five, petitioner contends that the prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). (Doc. 1, p. 18). Specifically, petitioner argues that the "[p]rosecutor did not reveal that the gun in which the entire case centers around was found in possession of another African/American in a completely different jurisdiction with no relationship to the petitioner and most likely is the real perpetrator." Id.
To establish a Brady violation, the petitioner has the burden of demonstrating that (1) the prosecution suppressed evidence, either willfully or inadvertently; (2) the evidence is favorable to the accused, either because it is exculpatory or because it is impeaching; and (3) the suppressed evidence is material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Brady, 373 U.S. at 87; Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000).
Evidence is "material" within the meaning of Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see also Strickler, 527 U.S. at 280 (citing Kyles v. Whitley, 514 U.S. 419 (1995)). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome" of the trial. Bagley, 473 U.S. at 682. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976). This standard for determining materiality focuses on the defendant's guilt or innocence, rather than on the impact of the undisclosed evidence on the defendant's ability to prepare for trial. United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991) (citing Agurs, 427 U.S. at 112 n.20).
In this case, petitioner has failed to demonstrate that the evidence allegedly withheld by the prosecution was favorable to his case or that it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed. Petitioner has not shown how the fact that another individual was found in possession of the gun over a year after it was stolen was exculpatory, nor is the undersigned convinced that the evidence was material in light of the victim's eyewitness testimony that petitioner was the one who initially took it. Therefore, petitioner's underlying Brady claim is without merit.
Because the Ohio Court of Appeals reasonably determined that the underlying Brady claim was without merit, the court was not unreasonable in finding that petitioner's appellate counsel was not ineffective for failing to raise the meritless claim. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) ("if the underlying substantive claims have no merit, the applicant cannot demonstrate that counsel was ineffective for failing to raise those claims on appeal."); Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003) ("appellate counsel cannot be ineffective for failure to raise an issue that lacks merit.") (citation omitted). Accordingly, petitioner has not established cause for his procedural default of the underlying Brady claim alleged in Ground Five on habeas review, or that the state appellate court's rejection of petitioner's ineffective assistance of appellate counsel claim (raised as an independent claim in Ground Nine of the petition) was contrary to or an unreasonable application of federal law under § 2254(d).
In Ground Six, petitioner contends that trial counsel rendered ineffective assistance of counsel. He argues that "[t]rial counsel admitted he was inexperienced, failed to object to improper comments, failed to make Rule 29 motion for acquittal, failed to investigate exculpatory evidence, failed to object to a picture of a gun as evidence or to investigate what happened to the real gun." (Doc. 1, p. 18). Through counsel, petitioner also argues that "trial counsel did not effectively expose the identification issue, rendering ineffective assistance." (Doc. 13, p. 2).
In order to demonstrate that trial counsel's performance was constitutionally ineffective, petitioner must show: (1) his counsel made such serious errors that he was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) his counsel's deficient performance prejudiced the defense by undermining the reliability of the result. Strickland, 466 U.S. at 687. Under the first prong of the Strickland test, petitioner must demonstrate that his counsel's representation fell below an objective standard of reasonableness based on all the circumstances surrounding the case. Id. at 688. "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington, 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 689). Under the prejudice prong of the Strickland test, petitioner must show "a reasonable probability that, but for his counsel's unprofessional errors, the result of the criminal proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding." Id. (citing Strickland, 466 U.S. at 694). A court may dispose of an ineffective assistance of counsel claim by finding that petitioner made an insufficient showing on either ground. 466 U.S. at 697.
Petitioner's ineffective assistance of trial counsel claims are without merit. First, as to petitioner's contention that his trial counsel was inexperienced, this claim alone does not suffice to state a claim of ineffective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 665 (1984) (finding that a petitioner must point to specific errors in counsel's performance) overruled on other grounds by Sawyer v. Smith, 497 U.S. 227 (1990).
With regard to his claim that counsel was ineffective for failing to object to improper comments, petitioner does not specify which comments trial counsel should have objected to. However, in Ground Seven of the petition, petitioner contends that the prosecutor improperly insinuated that petitioner was involved in gang activity. As discussed below in addressing Ground Seven, the prosecution never insinuated that petitioner was involved in gang activity. Therefore, counsel was not ineffective for failing to raise the meritless objection.
As to petitioner's claim that trial counsel was ineffective for failure to make Rule 29 motion for acquittal, the record also belies this claim. Counsel made a Rule 29 motion during a bench conference at the close of the prosecution's case. (See Doc. 9, Transcript p. 190). Trial counsel also renewed the motion prior to closing statements. Id. at 267. Therefore, petitioner's claim is without merit.
Petitioner next argues that trial counsel was ineffective for failure to investigate exculpatory evidence. Although petitioner does not indicate what evidence counsel should have investigated in the petition, in his application to reopen his appeal petitioner also argued that trial counsel was ineffective because counsel "[f]ailed to investigate exculpatory evidence which would have proved the appellant not guilty." (Doc. 9, Ex. 15, p. 3). According to petitioner, the victim told the police that the suspect had neck and hand tattoos. Petitioner claimed that he had receipts which proved that he did not have his tattoos at the time of the incident. Id.
The undersigned agrees with the Ohio Court of Appeals, that petitioner's claim is without merit. The state appellate court found that petitioner's claim was either not supported by the record or referred to matters outside the record. On federal habeas review the Court is limited to the record before the state court. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). In this case, the victim's testimony includes no mention of the suspect having tattoos. (See Doc.9, Transcript pp. 62, 101-102, 146-47), nor does the record otherwise support petitioner's claim that the victim described the assailant as having tattoos. Holly Adams, testified that she observed petitioner at one of the victim's yard sales and indicated that he had a tattoo on his neck. Id. at 119-20, 131. However, Adams' testimony was only relevant in establishing that petitioner was present at a yard sale prior to the incident. This was a point petitioner did not contest and, therefore, would not have altered the outcome of the trial. See id. at 275, 232, 237, 243.
Petitioner also contends that trial counsel was ineffective for failing "to object to a picture of a gun as evidence or investigate what happened to the real gun." (Doc. 1, p. 18). Petitioner does not indicate on what ground the attorney would have objected to the picture, nor advanced any argument as to how he was prejudiced by the picture or trial counsel's failure to investigate the location of the gun. Accordingly, his claim is without merit.
Finally, petitioner argues that trial counsel was ineffective for failing to properly raise the issue of misidentification at trial. Petitioner contends that "trial counsel never highlighted to the jury that although the victim properly identified the petitioner as the person that was at her house on two occasions, she mistakenly identified him as the same person that assaulted her later." (Doc. 13, p. 4). Petitioner argues that counsel undermined his defense by "question[ing] the victim in a way that suggested that the defense was that the petitioner never attended the yard or porch sale." Id. Noting that he testified that he was present at the yard sales, petitioner contends that questioning the victim in that manner helped support the state's case. Id.
Petitioner's argument is unavailing. Trial counsel argued that the case against petitioner was "a case of mistaken identity." (Doc. 9, Transcript p. 27). In addition to presenting testimony that petitioner was at a family birthday party at the time of the incident, counsel emphasized that the only evidence linking petitioner to the assault came from the victim, Ms. Eldridge. Id. at 281. The remaining witness testimony, counsel argued, pertained to tangential matters including Ms. Adams' testimony that she saw petitioner at one of Ms. Eldridge's yard sales. See id. at 282. Counsel presented the defense that Ms. Eldridge's identification of petitioner was the result of having seen petitioner in an initial photo lineup. He argued that despite the fact that petitioner was wearing clothing that conformed to the victim's description of the assailant in the photograph, that the victim did not initially identify petitioner as the attacker. Id. at 285-86. Counsel contended that in identifying petitioner in a second photo lineup two weeks later, the victim simply recognized petitioner from the first photo lineup.
After review of the record, the Court finds that the Ohio Court of Appeals reasonably determined that petitioner's ineffective assistance of counsel claims were without merit. Counsel did not provide ineffective assistance under the Strickland standard, nor does the record permit the conclusion that the alleged errors altered the outcome of the proceeding in light of the victim's eyewitness testimony.
Because the underlying ineffective assistance of counsel claims are without merit, the Ohio Court of Appeals reasonably determined that appellate counsel was not ineffective for failing to raise these errors on appeal. Accordingly, petitioner has not established cause for his procedural default of the underlying ineffective assistance of trial counsel claims raised in Ground Six, or that the state appellate court's rejection of petitioner's ineffective assistance of appellate counsel claim was contrary to or an unreasonable application of federal law under § 2254(d).
iii. Ground Seven
In Ground Seven, petitioner claims that the prosecutor improperly made comments insinuating that petitioner was involved in a gang. He contends that such comments rose to the level of a due process violation "since these comments were specifically aimed at prejudicing the petitioner in the eyes of the jury and it was not proven he if at all was involved or associated with this alleged gang." (Doc. 1, p. 17).
The undersigned finds Ground Seven without merit. As respondent has pointed out in the return of writ, the prosecution did not insinuate that petitioner was involved in gang activity. (See Doc. 9, pp. 52-53). During trial, Detective Weissinger testified that the victim provided him with a license plate of a vehicle believed to have been driven by the assailant. Weissenger testified that the plate number was registered to a white Dodge Caravan belonging to Jennifer Daily. He further testified that he believed Jennifer Daily's son, Joshua Daily, was a good suspect based on his criminal record, trafficking in drugs and gang membership:
(Doc. 9, Transcript pp. 148-50). The prosecution made no other comment either directly or implicitly suggesting that petitioner was involved in gang activities. Accordingly, the undersigned finds that the record does not support petitioner's claim that the prosecution impermissibly insinuated that petitioner was involved in a gang. Therefore, Ground Seven is without merit.
Because petitioner's underlying prosecutorial misconduct claim is without merit, the Ohio Court of Appeals reasonably determined that appellate counsel was not ineffective for failing to raise the error on appeal. Accordingly, petitioner has not established cause for his procedural default of the underlying prosecutorial misconduct claim raised in Ground Seven, or that the state appellate court's rejection of petitioner's ineffective assistance of appellate counsel claim was contrary to or an unreasonable application of federal law under § 2254(d).
iv. Ground Eight
In Ground Eight, petitioner contends that there was insufficient evidence to support his convictions. (Doc. 1, p. 17). Petitioner bases his sufficiency of evidence ground for relief on the fact that "[t]he alleged victim could not identify the petitioner in a `Drive by' ID, a Photo line-up or at any time prior to trial when the petitioner was sitting in the Defendant's chair." (Doc. 1, p. 17). He further contends that no actual evidence exists to support his conviction and that the lead detective failed to investigate "another good suspect." Id.
The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970). In analyzing claims of insufficient evidence, the Court must determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). This standard reserves to the trier of fact the responsibility to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to the ultimate facts. Id. at 318-319.
On habeas corpus review, the Court "does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). "The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim." Id. at 189-99. In addition, circumstantial evidence may be sufficient to support a conviction and such evidence need not remove every reasonable hypothesis except that of guilt. See Jackson, 443 U.S. at 326; Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995); Jamison v. Collins, 100 F.Supp.2d 647, 705 (S.D. Ohio 2000), aff'd, 291 F.3d 380 (6th Cir. 2002).
After review of the record in this case, the Court finds that petitioner's sufficiency of the evidence claim is without merit. Contrary to petitioner's claim that no actual evidence was offered against him, the victim directly testified that petitioner was the individual who entered her home, took the gun from her and struck her in the head multiple times. (Doc. 9, Transcript pp. 53-60). The victim testified that she recognized petitioner from prior yard sales and recalled that during one sale, petitioner conversed with her father about a firearm owned by her husband. Id. at 42. She stated that upon returning to her home on the day of the incident, that petitioner inquired if the gun was still for sale or if she had any other firearms she would sell. Id. at 45. The victim further testified that the only reason she agreed to show petitioner the stolen firearm in the first place was because of her prior interactions with him. Id. at 46-47.
Although, as petitioner argues, the victim was unable to identify petitioner in an initial photo line-up, she subsequently identified petitioner on three occasions. First, she identified petitioner in a second photo line-up, testifying that at that time she was 95% sure that he was the man who assaulted her. Id. at 70-71. Second, the victim testified that she recognized petitioner at a preliminary hearing when petitioner sat two benches in front of her. She testified that petitioner turned around to look at her and grinned at her twice. She also indicated that petitioner was with a female who also was with him at the first yard sale. Id. at 74-75. Finally, the victim identified petitioner at trial, stating that she was 100% sure that he was the individual who assaulted her. Id. at 75.
Viewing the evidence in the light most favorable to the prosecution, the Court finds that sufficient evidence existed to support petitioner's convictions. Although petitioner offered testimony to suggest that he was at a birthday party with his family at the time of the incident, the jury apparently credited the testimony offered by the prosecution. As noted above, it is not the province of this Court to reweigh the evidence or re-determine the credibility of witnesses. After a careful review of the record, the undersigned is convinced that a rational fact finder could find have found the essential elements of the crime beyond a reasonable doubt.
Because petitioner's underlying sufficiency of evidence claim is without merit, the Ohio Court of Appeals reasonably determined that appellate counsel was not ineffective for failing to raise the error on appeal. Accordingly, petitioner has not established cause for his procedural default of the underlying sufficiency of evidence claim raised in Ground Eight, or that the state appellate court's rejection of petitioner's ineffective assistance of appellate counsel claim was contrary to or an unreasonable application of federal law under § 2254(d).
Accordingly, in sum, the Court concludes that Ground One of the petition is not cognizable in federal habeas corpus. Petitioner has procedurally defaulted his claims for relief in Grounds Two, Three and Four by failing to fairly present the constitutional claims to the Ohio courts. Because petitioner has not demonstrated "cause" for his procedural defaults or that a fundamental miscarriage of justice will occur if his claims are not considered by this Court, the undersigned concludes that petitioner has waived his claims for federal habeas relief. Petitioner has also procedurally defaulted Grounds Five, Six, Seven and Eight by failing to present the independent claims on direct appeal or on further review with the Ohio Supreme Court. Finally, petitioner's freestanding ineffective assistance of appellate counsel claim asserted in Ground Nine is without merit and does not constitute cause for the procedural default of Grounds Five through Eight. Therefore, it is
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be
2. A certificate of appealability should not issue with respect to the claims alleged in Grounds Two, Three, Four, Five, Six, Seven and Eight, which this Court has concluded are waived and thus barred from review on a procedural ground, because "jurists of reason would not find it debatable as to whether this Court is correct in its procedural ruling" under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
3. A certificate of appealability should not issue with respect to any other claims alleged in the petition because petitioner has failed to make a substantial showing of the denial of a constitutional right based on these claims. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
4. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
Pursuant to Fed. R. Civ. P. 72(b),
(Doc. 9, Motion for New Trial and Disposition Hearing Transcript p. 12).