Opinion
Case No. 3:04CV7183.
January 25, 2005
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a petition under 28 U.S.C. § 2254 for writ of habeas corpus filed by Jerry Comer ("Petitioner"). For the following reasons, the undersigned recommends that this Court DISMISS the instant petition for writ of habeas corpus.
On December 17, 2004, the instant matter was transferred to Judge Peter C. Economus for all further proceedings and referred to the undersigned for a report and recommendation. ECF Dkt. #20.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Pat Hurley ("Respondent") is the Warden of the Ross Correctional Institution in Chillicothe, Ohio, and maintains custody of Petitioner, inmate #381-352 pursuant to a judgment entry issued by the Lucas County Court of Common Pleas on Petitioner's convictions for murder and aggravated robbery. ECF Dkt. #12, Exhibit C.
A. State Trial Court Proceedings
Petitioner was indicted by the January 1999 Term of the Lucas County Grand Jury on one count of aggravated murder in violation of Ohio Revised Code § 2903.01(B) with a firearm specification, and one count of aggravated robbery in violation of Ohio Revised Code § 2911.01(A)(1) with a firearm specification. ECF Dkt. #12, Exhibit A.
Upon arraignment, Petitioner entered a plea of not guilty and on July 26, 1999, the cause came on for trial by jury. ECF Dkt. #12, Exhibit V. At the conclusion of the trial, Comer was found not guilty of the aggravated murder, but found guilty of the lesser included offense of murder. ECF Dkt. #12, Exhibit B. Petitioner was also found guilty of aggravated robbery. Id. However, the jury found that Petitioner did not have a firearm on about his person or under his control while committing the offense of murder. Id. On August 10, 1999, Petitioner was sentenced to consecutive terms of incarceration of fifteen (15) years to life on the murder conviction and seven (7) years on the aggravated robbery conviction. ECF Dkt. #12, Exhibit C.
B. Direct Appeal
Petitioner, through counsel, timely appealed his conviction to the Ohio Court of Appeals for the Sixth District ("Ohio Court of Appeals") and raised the following assignment of error:
1. The trial court's instruction on complicity was plain error as it permitted the jury to convict without proof the defendant possessed the requisite intent.
ECF Dkt. #12, Exhibit D. On April 25, 2000, the State filed a brief in response. ECF Dkt. #12, Exhibit E. On May 9, 2000, Petitioner filed a reply brief. ECF Dkt. #12, Exhibit F. On September 22, 2000, the Ohio Court of Appeals issued an opinion affirming the judgment of the trial court. ECF Dkt. #12, Exhibit G.
Thereafter, Petitioner, though counsel, appealed to the Supreme Court of Ohio and raised the following five propositions of law in his memorandum in support of jurisdiction:
1. When a trial court gives a complicity instruction, it must instruct the jury that a defendant is not guilty of complicity unless he or she acts "with the kind of culpability required for the commission of an offense." R.C. 2923.03(A)(2).
2. A reviewing court may consider the jury's verdicts on the different counts when making the plain-error determination about the effect of an error on the outcome of a specific count.
3. A defendant's right to due process is violated when a trial court gives an instruction that permits the jury to find the defendant guilty without finding that the defendant has committed each element of the offense beyond a reasonable doubt.
4. Trial counsel is ineffective when he fails to object to a complicity instruction that directs the jury to find a defendant guilty without a finding that the defendant acted "with the kind of culpability required for the commission of an offense." R.C. 2923.03(A)(2).
5. A criminal defendant's constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution are violated when appellate counsel fails to raise obvious, reversible errors on direct appeal.
ECF Dkt. #12, Exhibit H. On December 6, 2000, the State filed a memorandum in response. ECF Dkt. #12, Exhibit I. On February 7, 2001, the Supreme Court of Ohio declined jurisdiction to hear the case and dismissed the appeal as not involving any substantial constitutional question. ECF Dkt. #12, Exhibit J.
Petitioner did not petition the United States Supreme Court for a writ of certiorari. See record.
C. Petitioner's Rule 26(B) Application for Reopening
Meanwhile, on December 21, 2000, Petitioner, through counsel, filed an application for reopening (also known as a Murnahan application) pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, and raised the following claim:
1. The trial court erred in sentencing Mr. Comer to consecutive and non-minimum prison terms without making the necessary findings on the record of the sentencing hearing.
ECF Dkt. #12, Exhibit K. On January 29, 2001, the court granted Petitioner's motion for reopening. ECF Dkt. #12, Exhibit L. On January 25, 2002, after briefs were filed, the Ohio Court of Appeals issued a decision affirming the trial court's judgment and findings. ECF Dkt. #12, Exhibit M.
Petitioner then filed a motion to certify a conflict pursuant to Rule 25 of the Ohio Rules of Appellate Procedure, seeking certification on the following question:
When a trial court sentences an individual to non-minimum, consecutive or maximum sentences, must the trial court make the requisite findings from the bench at the sentencing hearing or is it sufficient to make the findings for the first time in the sentencing entry? R.C. 2929.13(B); R.C. 2929.14(B); R.C. 2929.19(B).
ECF Dkt. #12, Exhibit N. On February 22, 2002, the Ohio Court of Appeals granted Petitioner's motion, in part, and certified the following question:
When a trial court sentences an individual to non-minimum, consecutive or maximum sentences, must the trial court make the requisite findings from the bench at the sentencing hearing or is it sufficient to make the findings for the first time in the sentencing entry?
ECF Dkt. #12, Exhibit O.
Petitioner then filed a notice of appeal and brief in the Supreme Court of Ohio, in which he raised the following two propositions of law:
1. Before a trial court sentences an individual to non-minimum, consecutive or maximum sentences, the trial court must make the requisite findings from the bench at the sentencing hearing.
2. An unpublished, adverse, non-binding intermediate appeals court decision does not relieve appellate counsel of her duty to raise an issue based on the language of the Ohio Revised Code.
ECF Dkt. #12, Exhibit P. On October 8, 2002, the State filed a merit brief. ECF Dkt. #12, Exhibit Q. On October 28, 2002, Petitioner filed a reply brief. ECF Dkt. #12, Exhibit R. On August 27, 2003, the Supreme Court of Ohio reversed the judgment of the Ohio Court of Appeals and remanded Petitioner's case to the trial court for the purposes of resentencing. ECF Dkt. #12, Exhibit S.
Accordingly, on October 27, 2003, the trial court resentenced Petitioner to the same term of incarceration as originally imposed. ECF Dkt. #12, Exhibit T.
D. Federal Habeas Corpus
On March 31, 2004, Petitioner, through counsel, filed a petition for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254. ECF Dkt. #1. Petitioner raises the following four grounds for relief:
1. The trial court violated Petitioner's fundamental right to due process and a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution by failing to give complete and accurate jury instructions on the element of complicity.
2. Petitioner was denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment to the United States Constitution when counsel failed to object to a complicity instruction that permits the jury to find the defendant guilty without finding that the defendant has committed each element of the offense beyond a reasonable doubt.
3. Petitioner's constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when appellate counsel failed to raise obvious, reversible error upon direct appeal.
4. Petitioner was denied his right to effectively appeal his conviction in violation of the Sixth and Fourteenth Amendments to the United States Constitution when the reviewing court refused to consider the jury's verdict on other counts when determining the error on a specific count.
ECF Dkt. #1, at 7-8. On June 3, 2004, Respondent filed an answer/return of writ. ECF Dkt. #10. Finally, on August 9, 2004, Petitioner filed a traverse to Respondent's answer/return of writ. ECF Dkt. #18.
II. STANDARD OF REVIEW
A. Procedural Barriers to Review
Since Petitioner filed his habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), standards apply. See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert. denied, 522 U.S. 1112 (1998). Under Section 2254, a state prisoner is entitled to relief if he is held in custody in violation of the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d). However, a petitioner must overcome several procedural barriers before a reviewing court will review the merits of the petition for writ of habeas corpus. As Justice O'Connor points out in Daniels v. United States, "Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim." Daniels v. United States, 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993).
There is a one-year period of limitations for applicants in custody pursuant to a judgment of a State court in which to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(b). In the case at bar, Respondent concedes that Petitioner has filed the instant matter within the applicable statute of limitations, and as such, the undersigned shall not address the issue of timeliness.
First, as a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27 (2004). The exhaustion requirement is satisfied "once the federal claim has been fairly presented to the state courts." Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must present it "to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific constitutional rights were violated. Id. (citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984)).
Unless an exception applies, a petition must be dismissed for lack of exhaustion if it contains at least one issue which was not presented to the state courts so long as a remedy is still available for the petitioner to pursue in the state courts. Rose v. Lundy, 455 U.S. 509, 518-20, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). The Supreme Court has held that "the petitioner has the burden . . . of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist." Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991).
The procedural default doctrine also serves to bar review of federal claims that a state court has declined to address because of the petitioner's noncompliance with a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, "the state judgment rests on independent and adequate state procedural grounds." Coleman v. Thompson, 501 U.S. 722, 730 (1991). However, when the last explained state court decision rests upon procedural default as an "alternative ground," a federal district court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a petitioner's claim, federal courts must rely upon the presumption that there is no independent and adequate state grounds for a state court decision absent a clear statement to the contrary. See Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit Court of Appeals established a four-pronged test to determine whether a claim has been procedurally defaulted. Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). Under Maupin, a reviewing court must decide:
(1) whether the petitioner failed to comply with an applicable state procedural rule;
(2) whether the state courts actually enforced the state procedural sanction;
(3) whether the state procedural bar is an "adequate and independent" state ground on which the state can foreclose federal review; and
(4) if the above are met, whether the petitioner has demonstrated "cause" and "prejudice."Id. at 138.
As set forth in the Maupin analysis, a claim that is procedurally defaulted in state court will not be reviewable by a federal habeas court unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 751 (1991). "Cause" is a legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged constitutional violation. See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing court need not address the issue of prejudice. See Smith v. Murray, 477 U.S. 527 (1986).
B. Standard of Review for Merits of a Claim
If a habeas petitioner overcomes the procedural obstacles as described in the foregoing section, AEDPA sets forth the standard of review for the merits of a petition for the writ of habeas corpus. AEDPA provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, 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) (emphasis added).
Under the "contrary to" clause, federal courts may only grant the petitioner's writ if the state court's decision contradicts Supreme Court precedent on a question of law or if, in a case with facts materially indistinguishable from a Supreme Court case previously decided, the state court reaches an outcome different from that required by the Supreme Court's decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The "unreasonable application" clause permits a federal court to grant habeas relief only if the state court unreasonably applies a correct legal principle to the facts of the case. Id. at 411. The Supreme Court has cautioned that a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
III. ANALYSIS
All of Petitioners claims stem from the general assertion that the trial court improperly instructed the jury on complicity. Respondent argues that Petitioner has procedurally defaulted each of his grounds for relief. The undersigned will address each ground for relief in turn.
A. Petitioner's First, Second and Third Grounds for Relief
In his first ground for relief, Petitioner asserts that the trial court violated his due process rights and his right to a fair trial by failing to instruct the jury on the requisite intent for complicity. ECF Dkt. #1, at 7. The trial court charged the jury with an instruction on complicity, as follows:
One further thing I need to instruct you on is that the defendant may be convicted of either or both of these crimes if you find the State proved beyond a reasonable doubt that the defendant was a complicitor. A person who aids and abets another in the commission of a crime is regarded as if he were the principle [sic] offender and is just as guilty as if he personally performed every act constituting the offense. When two or more persons have a common purpose to commit a crime and one does one part and a second performs another, those acting together are equally guilty of the crime. However, I should indicate to you that specific intent of one person to kill another is not transferable to an accomplice.
The complicity instruction, therefore, would apply to the offense of murder and would apply to the offense of aggravated robbery as well as the firearm specification. I've used the word aid. Aid means to help, assist [sic] strengthen. Abet means to encourage counsel [sic] incite or assist.
Trial Transcript, ECF Dkt. #16, at 542-43. After the jury retired to deliberate, they came back to the courtroom twice to ask the court a question regarding the definition of complicity. Id. at 548-56. The trial court provided further instructions and examples that emphasized the fact that Petitioner could not be found guilty of aggravated murder as a complicitor. Id. The trial court never stated, however, that in order to be convicted as a complicitor on each charged offense, Petitioner was required to act with the kind of culpability required for the commission of the charged offenses. Id. Petitioner contends that as a result of the trial court's instruction on complicity, the jury was allowed to convict Petitioner of murder and aggravated robbery without considering his mental state. ECF Dkt. #1, at 7.
Respondent asserts that Petitioner has procedurally defaulted this claim under the contemporaneous objection rule in Ohio because he failed to object to the complicity instruction at trial as required under Ohio law. ECF Dkt. #10 at 13. At trial, Petitioner failed to make a contemporaneous objection to the jury instruction on complicity given by the trial court. Rule 30(A) of the Ohio Rules of Criminal Procedure states:
On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.
Ohio Crim. R. 30(A). Petitioner failed to make a timely objection to the complicity instruction and did not comply with Criminal Rule 30(A), thereby waiving his objection to the jury instruction. Therefore, Respondent posits that since Petitioner failed to object at trial to these instructions, he has waived his rights to raise this issue.
Petitioner did raise this claim before the Ohio Court of Appeals. ECF Dkt. #12, Exhibit D, at 10. However, the Ohio Court of Appeals found that Petitioner had waived review of this claim because he failed to object to the jury instruction at trial as required by Ohio law. ECF Dkt. #12, Exhibit G, at 7-8. Thus, the Ohio Court of Appeals reviewed this claim under the plain error doctrine pursuant to Rule 52(B) of the Ohio Rules of Criminal Procedure, which states that "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Ohio R. Crim. P. 52(B). The court concluded that plain error did not exist in Petitioner's case. Id. at 11-13.
Turning to whether this Court can review Petitioner's first ground for relief, we must apply the standard formulated in Maupin. Under the first prong of the Maupin standard, Petitioner clearly violated a state procedural rule because he did not object to the jury instruction on complicity at trial as required by Criminal Rule 30(A). Prong two is also satisfied because the Ohio Court of Appeals actually enforced this procedural sanction against Petitioner by only applying a plain error standard of review for this claim. See, e.g., Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). The third prong of Maupin is met as the Sixth Circuit Court of Appeals has held that Ohio's contemporaneous objection rule constitutes an adequate and independent state ground that bars federal habeas review absent a showing of cause and prejudice. Hinkle v. Randle, 271 F.3d 239, 244-245 (6th Cir. 2001) (citing Scott v. Mitchell, 209 F.3d 854, 867-68 (6th Cir. 2000)).
Based on the foregoing, the only way for Petitioner to escape the procedural default of this claim is to demonstrate cause for his noncompliance with Ohio law and actual prejudice arising from the alleged constitutional violation, or by a showing of a fundamental miscarriage of justice. Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991), and Coe v. Bell, 161 F.3d 320, 329 (6th Cir. 1998)). Petitioner has the burden of showing cause and prejudice to overcome a procedural default. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999).
In his traverse, Petitioner asserts ineffective assistance of trial counsel as cause for his default of this claim, arguing that trial counsel's performance was deficient when counsel failed to object to the complicity instruction. Petitioner argues:
By acquitting Mr. Comer of the firearm specification, the jury found that the State had not proven beyond a reasonable doubt that Petitioner used the firearm that killed the victim. The state appeals court held that the evidence at trial did not support a finding that Mr. Comer was convicted as a principal offender on the charge of aggravated robbery, but the State's theory was that Mr. Comer was the principal offender, not a complicitor. T.p. 464. Because the judge erroneously instructed the jury that it could find appellant guilty of murder and aggravated robbery if he merely assisted the principal offender, the jury was unable to fairly and accurately consider whether Mr. Comer acted with the required mens rea.
ECF Dkt. #18, at 15. Petitioner contends that had counsel objected to the jury instruction, resulting in a correct instruction on complicity, there is a reasonable probability that the outcome of Petitioner's trial would have been different. Therefore, Petitioner argues that his default of this claim should be excused. Id.
Anticipating this argument, Respondent contends that Petitioner cannot assert ineffective assistance of trial counsel as cause for his default because Petitioner failed to assert an ineffective assistance of trial counsel claim on his direct appeal to the Ohio Court of Appeals. ECF Dkt. #10, at 14. In essence, Respondent argues that Petitioner has procedurally defaulted his ineffective assistance of trial counsel claim, and as a result, he cannot now assert ineffective assistance of trial counsel as cause for his procedural default.
Attorney error does not constitute cause to excuse a procedural default unless counsel's performance was constitutionally deficient. Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard requires a defendant to show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant. Id. at 688, 694. However, in order for an ineffective assistance of counsel claim to constitute sufficient cause to excuse the default of another claim, the petitioner must be able to demonstrate that the ineffectiveness claim was not itself defaulted. Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Although an ineffective assistance of counsel claim can itself be procedurally defaulted, the procedural default may be excused "if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim." Id. at 453. Consequently, the undersigned must first determine whether Petitioner has procedurally defaulted his ineffective assistance of trial counsel claim, which is contained in his second ground for relief, before considering whether ineffective assistance of trial counsel can serve as cause for his default of his first ground for relief.
In his second ground for relief, Petitioner asserts that he was denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment to the United States Constitution, when counsel failed to object to the complicity instruction. ECF Dkt. #1, at 7. Petitioner argues that the trial court erroneously instructed the jury on complicity, and that trial counsel should have objected to the jury instruction at trial. Id. Thus, Petitioner claims that trial counsel's performance fell below an objective standard of reasonableness when counsel failed to object to the complicity instruction. Id. In addition, Petitioner avers that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the trial would have been different. Id.
Respondent notes that Petitioner did not raise his ineffective assistance of counsel claim in his direct appeal to the Ohio Court of Appeals, and instead raised this claim for the first time in his appeal to the Supreme Court of Ohio. ECF Dkt. #10, at 14-15. As a result, Respondent asserts that Petitioner has procedurally defaulted his ineffective assistance of trial counsel claim. Id.
As outlined above, in order to determine whether Petitioner has procedurally defaulted his second ground for relief, we must apply the standard set forth in Maupin. With this in mind, it is well-established that the Supreme Court of Ohio will not consider constitutional claims that were not raised and preserved in the Ohio Court of Appeals. Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th Cir. 1982), cert. denied, 460 U.S. 1042 (1983); see also State v. Issa, 93 Ohio St. 3d 49, 56, 752 N.E.2d 904, 915 (Ohio 2001). Thus, the first prong of the Maupin standard is satisfied because Petitioner, who was represented by new counsel on appeal, failed to raise a claim for ineffective assistance of trial counsel on appeal to the Ohio Court of Appeals, in violation of Ohio's long-standing waiver rule.
Next, under the second prong of the Maupin analysis, the undersigned notes that Petitioner raised his ineffective assistance of trial counsel claim for the first time in his appeal to the Supreme Court of Ohio. ECF Dkt. #12, Exhibit H. The Supreme Court of Ohio dismissed the appeal without explanation. ECF Dkt. #12, Exhibit J. However, a federal court may "look through" an unexplained order to the last reasoned state court judgment and presume that the Supreme Court of Ohio's unexplained order rests on the same grounds as the reasoned judgment. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991) (per curiam). The last reasoned opinion, that of the Ohio Court of Appeals, did not address Petitioner's ineffective assistance of counsel claim because Petitioner did not raise this issue in his appeal. ECF Dkt. #12, Exhibit G. "Where a state supreme court issued an unexplained order dismissing claims that were never addressed in judgments by lower state courts, this Court may invoke an applicable state procedural bar on behalf of the state supreme court." Eskridge v. Konteh, 88 Fed. Appx. 831, unreported, 2004 U.S. App. LEXIS 1767, *16 (6th Cir. February 3, 2004).
The Sixth Circuit applied such a bar in Simpson v. Sparkman, 94 F.3d 199, 202-03 (6th Cir. 1996), in which the court stated:
Addressing the difficulty of interpreting unexplained state court orders, the Supreme Court has held that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim [are presumed to] rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991). However, because there are no state court decisions rejecting petitioner's due process claim, this presumption is also unavailable.
Thus, we are left to our own devices in interpreting the Kentucky Court of Appeals' denial of petitioner's request for a writ of habeas corpus. Even though the Kentucky Court of Appeals was silent as to its reasons for denying petitioner a writ of habeas corpus on his due process claim, we will not assume that the court did not observe the applicable procedural bar. Instead, we will assume that had the state court addressed petitioner's due process claim, it would not have ignored its own procedural rules and would have enforced the procedural bar. See Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993).94 F.3d 199, 202-03.
Considering the foregoing, the undersigned assumes that, had the Supreme Court of Ohio addressed Petitioner's ineffective assistance of counsel claim, it would not have ignored its own procedural rules. Thus, invoking the procedural bar of waiver on behalf of the Supreme Court of Ohio, the undersigned concludes that the Supreme Court of Ohio would have declined to rule on the merits of Petitioner's ineffective assistance of trial counsel claim due to waiver. Accordingly, the second prong of the Maupin analysis is satisfied.
The third prong of the Maupin analysis is also satisfied because waiver of a claim is an adequate and independent state ground baring habeas review in this Court. E.g., Cone v. Bell, 359 F.3d 785, 790 (6th Cir. 2004). Therefore, Petitioner has defaulted his ineffective assistance of trial counsel claim and the only way for Petitioner to escape his default is to demonstrate cause for his noncompliance with Ohio law and actual prejudice arising from the alleged constitutional violation, or by a showing of a fundamental miscarriage of justice. Simpson, 238 F.3d at 406. Petitioner has the burden of showing cause and prejudice to overcome a procedural default. Lucas, 179 F.3d at 418.
In his traverse, Petitioner asserts ineffective assistance of appellate counsel as cause for his default of his ineffective assistance of trial counsel claim. ECF Dkt. #18, at 19. Petitioner argues that his appellate counsel's performance was deficient when counsel failed to raise ineffective assistance of trial counsel on appeal to the Ohio Court of Appeals. ECF Dkt. #18, at 15. Petitioner contends that there is a reasonable probability that, but for counsel's deficient performance, the outcome of Petitioner's appeal would have been different. Therefore, Petitioner argues that the default of his ineffective assistance of trial counsel claim should be excused. Id.
In opposition, Respondent argues that Petitioner cannot assert ineffective assistance of appellate counsel as cause for his failure to raise ineffective assistance of trial counsel on his direct appeal to the Ohio Court of Appeals because Petitioner has procedurally defaulted his ineffective assistance of appellate counsel claim. ECF Dkt. #10, at 16. Again, Respondent contends that since Petitioner has procedurally defaulted his ineffective assistance of appellate counsel claim itself, he cannot now assert this claim as cause for his procedural default.
Ineffective assistance of appellate counsel, if it rises to the level of a federal constitutional violation, can serve as cause to excuse the procedural default of claims brought in a habeas corpus proceeding. Buell v. Mitchell, 274 F.3d 337, 351-52 (6th Cir. 2001) ("[The petitioner's] ineffective assistance of appellate counsel claims can serve as cause for the procedural default of his other claims only if [the petitioner] can demonstrate that his appellate counsel was constitutionally ineffective. To do so, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced the defense."). However, as discussed above, a petitioner may not assert ineffective assistance of counsel as a cause to excuse procedural default if the ineffective assistance of counsel claim itself has been procedurally defaulted. Hicks v. Collins, 384 F.3d 204, 211 (6th Cir. 2004). In addition, if petitioner's ineffective assistance of appellate counsel claim lacks merit, it cannot constitute cause to excuse his default. Munson v. Kapture, 01-CV-71956, 2003 U.S. Dist. LEXIS 5832, *13-14 (E.D. Mich. March 26, 2003) (citing Sherrill v. Hargett, 184 F.3d 1172, 1176 (10th Cir. 1999)). Thus, the undersigned must first determine whether Petitioner has procedurally defaulted his ineffective assistance of appellate counsel claim, and whether this claim has merit, before considering whether Petitioner can assert ineffective assistance of appellate counsel as cause for his default on his ineffective assistance of trial counsel claim.
In his third ground for relief, Petitioner asserts that he was denied the effective assistance of appellate counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, when counsel failed to raise meritorious issues on direct appeal to the Ohio Court of Appeals. ECF Dkt. #1, at 8; ECF Dkt. #18, at 16. Specifically, Petitioner contends that appellate counsel's performance fell below an objective standard of reasonableness when counsel failed to expressly argue that the complicity instructions violated the Petitioner's federal constitutional rights and when counsel failed to raise an ineffective assistance of trial counsel claim. Id. Petitioner avers that there is a reasonable probability that, had counsel raised these issues, the results of the appeal would have been different. Id.
In its answer/return of writ, Respondent notes that the Supreme Court of Ohio did not address Petitioner's ineffective assistance of appellate counsel claim on direct review, and that Petitioner did not raise this claim in his application to reopen his appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure (known as a Murnahan application). Respondent argues that Petitioner waived his ineffective assistance of appellate counsel claim because he did not raise it in his Rule 26(B) application. Accordingly, Respondent contends that Petitioner has procedurally defaulted his third ground for relief.
However, Petitioner argues that he properly presented this issue for the first time in his direct appeal to the Supreme Court of Ohio. Indeed, Petitioner contends that there is no procedural rule requiring that a claim for ineffective assistance of appellate counsel be raised for the first time in a Rule 26(B) application rather than on direct appeal to the Supreme Court of Ohio. Thus, Petitioner avers that he has not defaulted his ineffective assistance of appellate counsel claim.
Under the first prong of the Maupin analysis, this Court must consider whether there is a procedural rule in Ohio requiring that a claim of ineffective assistance of appellate counsel be raised for the first time in a Rule 26(B) motion, and not on direct appeal to the Supreme Court of Ohio. Respondent has not cited to any Ohio rule or case requiring that such a claim to be brought in a Rule 26(B) application. To the contrary, in State v. Murnahan, the Supreme Court of Ohio held that claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Supreme Court of Ohio, but that such claims are not cognizable in post-conviction proceedings pursuant to Ohio Revised Code § 2953.21. State v. Murnahan, 63 Ohio St. 3d 60, syllabus, 584 N.E.2d 1204 (1992); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Based on this language, the undersigned finds that there is no state procedural rule that a claim for ineffective assistance of appellate counsel must be raised in a Rule 26(B) application or it is waived, and as such, Petitioner fairly presented his ineffective assistance of appellate counsel claim to the state courts. Accordingly, Petitioner has not procedurally defaulted his ineffective assistance of appellate counsel claim.
The undersigned notes, however, that the state courts did not address Petitioner's ineffective assistance of appellate counsel claim. As a result, there is no state court decision to evaluate under § 2254(d). In these circumstances, the Sixth Circuit has provided that the reviewing federal court must conduct an independent, de novo review of that state court's decision under 28 U.S.C. § 2254(d). Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (citing Wiggins v. Smith, 539 U.S. 510, 534-35 (2003)).
A claim for ineffective assistance of appellate counsel is governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hence, to prevail on this claim, Petitioner must show deficient performance and resulting prejudice. Id. at 688, 694. To establish deficient performance, a petitioner must show that counsel's performance fell below an objective standard of reasonable representation. Id. at 688. To establish prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.; Williams v. Taylor, 529 U.S. 362, 390-391 (2000).
In his ineffective assistance of appellate counsel claim, Petitioner first asserts that his appellate counsel was ineffective because counsel did not expressly argue that the complicity instruction violated Petitioner's federal constitutional rights. In general, errors in instructions of a trial court to a jury in a state criminal trial do not rise to the level of a constitutional error unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law. Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981). Indeed, neither a violation of state law nor a state court's decision applying purely state law may be reviewed by a federal habeas court since any such errors in that regard are not of a constitutional magnitude. Watters v. Hubbard, 725 F.2d 381, 383 (6th Cir. 1984). Here, aside from the naked assertion that his appellate counsel should have presented this claim as a federal constitutional claim, there is no evidence that counsel rendered ineffective assistance by presenting this claim as an issue of state law only, since such errors generally concern state-court determinations on state-law questions. Based on the foregoing, the undersigned concludes that Petitioner has failed to establish that his appellate counsel's performance was deficient for failing to present the challenge to the complicity instruction as a federal constitutional claim.
Furthermore, even assuming arguendo that counsel's performance was deficient for not arguing that the complicity instruction violated Petitioner's federal constitutional rights, Petitioner has failed to show prejudice by demonstrating that there is a reasonable probability that but for counsel's deficient performance, the result of the appeal would have been different. Strickland, 466 U.S. at 694. As outlined above, errors in instructions of a trial court to a jury are not constitutional errors unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law. Long, 663 F.2d at 23. The undersigned will address each of Petitioner's convictions in turn.
The Ohio Court of Appeals addressed Petitioner's challenge to the jury instruction and noted:
[Comer] concedes that the trial court properly instructed the jury on all of the elements of the charged offenses. Thus, if [Comer] was convicted as the principal offender as to the charged offenses, [Comer] has no cause to complain. Petitioner has failed to establish that the instruction on complicity was so unfair that it denied him a fair trial and due process of law. ECF Dkt. #12, Exhibit G, at 8. With regard to the murder conviction, the Ohio Court of Appeals concluded that the evidence demonstrated, beyond a reasonable doubt, that Petitioner evinced a specific intent to commit murder and as such, he could have been convicted as the principal offender on the lesser included offense of murder. Id. at 11. In light of this holding, Petitioner has failed to demonstrate a reasonable probability that the results of the appeal with regard to his murder conviction would have been different had his counsel presented the challenge to the complicity instruction as a federal constitutional claim because the Ohio Court of Appeals determined that there was sufficient evidence to convict Petitioner as the principal offender on the offense of murder.
With regard to the aggravated robbery conviction, the Ohio Court of Appeals determined that the evidence offered at trial did not support a finding that Petitioner was convicted as a principal offender on the charge of aggravated robbery because there was no evidence to establish beyond a reasonable doubt that Petitioner possessed, brandished or displayed a weapon during the alleged robbery. Id. at 12-13. As such, the Ohio Court of Appeals assumed that Petitioner was convicted as a complicitor on the aggravated robbery charge, and with this in mind, noted that the trial court charged the jury with the culpability required for the commission of an aggravated robbery but failed to mention culpability when instructing the jury on aiding and abetting in the commission of an aggravated robbery. Id. at 13. However, the Ohio Court of Appeals noted that Petitioner was charged as the principal offender and that the culpable mental state for aggravated robbery was provided. The Ohio Court of Appeals concluded that even though the better practice would have been for the trial court to repeat the requisite culpability in the complicity instruction, viewing the jury instructions as a whole, the trial court's instructions were an adequate statement of the law and allowed the jury to apply the law to the facts. Id.
As noted by the Ohio Court of Appeals, the trial court did instruct the jury on the culpable mental state for aggravated robbery. Simply because the trial court did not restate the culpable mental state for aggravated robbery when it instructed the jury on aiding and abetting does not render the entire trial unfair. The jury was adequately instructed on the applicable law, and it cannot be said that the failure to repeat the same culpability requirements for aggravated robbery somehow deprived petitioner of a fair trial and to due process of law. Therefore, Petitioner has failed to demonstrate a reasonable probability that the results of the appeal with regard to his aggravated robbery conviction would have been different had his counsel presented the challenge to the complicity instruction as a federal constitutional claim.
Based on the foregoing, the undersigned finds that Petitioner's claim that his appellate counsel was constitutionally ineffective for failing to present his challenge to the complicity instruction as a federal claim to be without merit.
Next, Petitioner asserts that his appellate counsel was constitutionally ineffective when counsel failed to raise the issue of trial counsel's ineffectiveness. As outlined above, Petitioner contends that his trial counsel was ineffective for failing to object to the jury instruction on complicity. Thus, Petitioner argues that appellate counsel's performance was deficient because counsel failed to raise an ineffective assistance of trial counsel claim on direct appeal. Petitioner avers that there is a reasonable probability that had appellate counsel raised the issue of trial counsel's ineffectiveness, the outcome of the appeal would have been different.
The undersigned finds this argument unpersuasive. "Appellate counsel `need not advance every argument, regardless of merit, urged by the appellant.'" Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998), cert. denied, 528 U.S. 913 (1999) (quoting Evitts v. Lucey, 469 U.S. 387, 394 (1985)). There is no constitutional right to have every nonfrivolous issue raised on appeal, see Jones v. Barnes, 463 U.S. 745, 750-54, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983), and "tactical choices regarding issues raised on appeal are properly left to the sound professional judgment of counsel." Workman, 178 F.3d at 771.
As noted by the Ohio Court of Appeals, "[Comer] concedes that the trial court properly instructed the jury on all of the elements of the charged offenses." ECF Dkt. #12, Exhibit G, at 8. Thus, it cannot be said that trial counsel's performance was deficient for failing to object to the instruction on complicity simply because the trial court did not repeat the requisite culpability for the two offenses because the jury was still instructed on the culpability requirement for each individual offense. Thus, since there is no showing of ineffective assistance of trial counsel, appellate counsel's performance was not deficient for failing to raise a meritless issue on appeal.
Moreover, even assuming arguendo that appellate counsel's performance was deficient for failing to assert a claim of ineffective assistance of trial counsel, Petitioner has failed to establish that he suffered any prejudice. Appellate counsel's failure to raise ineffective assistance of trial counsel is without consequence because the Ohio Court of Appeals concluded that the jury instructions were adequate and that Petitioner was neither prejudiced nor prevented from having a fair trial. Accordingly, the undersigned concludes that Petitioner's claim that his appellate counsel was constitutionally ineffective for failing to raise a claim for ineffective assistance of trial counsel is without merit.
Based on the foregoing, the undersigned finds Petitioner's claim for ineffective assistance of appellate counsel claim to be without merit. Accordingly, the undersigned recommends that this Court dismiss Petitioner's third ground for relief.
Turning to the remaining issues, since Petitioner's claim of ineffective assistance of appellate counsel is without merit, it cannot constitute cause to excuse his procedural default of his ineffective assistance of trial counsel claim. Munson, 2003 U.S. Dist. LEXIS 5832, *13-14. Therefore, the undersigned finds that Petitioner has procedurally defaulted his ineffective assistance of trial counsel claim, which is contained in Petitioner's second ground for relief. Accordingly, the undersigned recommends that this Court dismiss Petitioner's second ground for relief.
Finally, under Carpenter, since Petitioner has procedurally defaulted his ineffective assistance of trial counsel claim, he cannot now assert ineffective assistance of trial counsel to excuse the default of his claim that the trial court's instruction to the jury on complicity violated his due process rights and right to a fair trial. Carpenter, 529 U.S. at 452. As a result, the undersigned concludes that Petitioner has procedurally defaulted his claim that the complicity instruction violated his due process rights and right to a fair trial, which is contained in his first ground for relief. Accordingly, the undersigned recommends that this Court dismiss Petitioner's first ground for relief.
D. Petitioner's Fourth Ground for Relief
In his Fourth Ground for Relief, Petitioner asserts that he was denied his right to effectively appeal his conviction in violation of the Sixth and Fourteenth Amendments when the reviewing court refused to consider the jury's verdict on other counts when determining the error on a specific count. ECF Dkt. #1, at 8. However, in his traverse, Petitioner states that he "withdraws Ground Four as an independent claim" and instead notes that the facts behind this ground for relief support his other grounds for relief. ECF Dkt. #10, at 17. Accordingly, the undersigned recommends that the Court dismiss Petitioner's fourth ground for relief.
IV. CONCLUSION
For the foregoing reasons, the undersigned concluded that Petitioner's first three grounds for relief are not well taken. In addition, Petitioner has withdrawn his fourth ground for relief. Accordingly, the undersigned recommends that the Court DISMISS in its entirety the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 with prejudice.