Opinion
CASE NO. 1:99CV528
February 3, 2004
MEMORANDUM OPINION AND ORDER
I. Introduction
This case involves the petition for a writ of habeas corpus brought by Daniel T. Eads under 28 U.S.C. § 2254. The State of Ohio has custody of Eads at the North Central Correctional Institution, in Marion, Ohio where respondent John Morgan serves as warden. The parties have consented to the jurisdiction of the Magistrate Judge.
ECF #30.
Eads's amended petition asserts eight grounds for relief. This memorandum opinion and order addresses grounds one and four through eight. The Court has previously addressed grounds two and three in a separate memorandum opinion and order.
ECF #37.
Ground for relief one claims prosecutorial misconduct. Grounds for relief four, six, and seven assert ineffective assistance of trial counsel. Ground for relief five argues that the State failed to prove every element of the offense charged, murder, beyond a reasonable doubt. Ground for relief eight presents a claim that the trial court denied Eads a fair trial by failing to allocate the burden of proof applicable to mitigating circumstances for voluntary manslaughter. A careful reading of the amended petition discloses that this is in effect an ineffective assistance of appellate counsel claim.
ECF #31, at 17-18.
Morgan argues that Eads has procedurally defaulted on grounds for relief four through eight. As to the first claim for relief, Morgan contends that unconstitutional prosecutorial misconduct did not occur at trial.
The Court concludes that Eads has procedurally defaulted on grounds for relief four through eight. The petition must, therefore, be dismissed with prejudice as to those grounds. The Court further concludes that ground for relief one lacks merit. The petition, therefore, will be denied as to that ground.
II. Background
Eads filed a pro se petition for writ of habeas corpus in this Court raising twenty grounds for relief. The Court thereafter appointed counsel for Eads. Appointed counsel, with leave of court, filed an amended petition that reduced the grounds for relief from twenty to eight. The grounds for relief addressed by this memorandum opinion and order are as follows:
Ground for Relief One: Petitioner Eads was denied a fair trial in violation of the Fourteenth Amendment Due Process Clause due to the prosecutor's inflammatory comments during closing argument.
Ground for Relief Four: Petitioner Eads was denied the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution due to trial counsel's failure to properly and timely object to obvious errors and instances of prosecutorial misconduct.
Ground for Relief Five: The State failed to prove beyond a reasonable doubt the element of purposely under R.C. § 2903.02 thereby denying Petitioner Eads the right to have every element of the case proven beyond a reasonable doubt in violation of the Fourteenth Amendment to the United States Constitution.
Ground for Relief Six: Petitioner Eads was denied the effective assistance of trial counsel when trial counsel failed to subpoena witnesses on behalf of Petitioner Eads in violation of Petitioner Eads' right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution.
Ground for Relief Seven: Petitioner Eads was denied effective assistance of counsel when trial counsel failed to protect Petitioner Eads' access to a viable mitigation circumstance under the voluntary manslaughter statute thereby violating the Sixth and Fourteenth Amendments to the United States Constitution.
Ground for Relief Eight: The trial court denied Petitioner Eads a fair trial by failing clearly to allocate the burden of proof applicable to the mitigating circumstances of voluntary manslaughter in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
ECF #1.
ECF #25.
ECF #31.
The following procedural history relates to those grounds. The Cuyahoga County Grand Jury indicted Eads on one count of murder. A jury found Eads guilty. The trial court sentenced Eads to 15 years to life.
ECF #11, Ex.A.
ECF #11, Ex.B.
ECF #11, Ex. C.
Eads appealed his conviction to the Eighth District Court of Appeals. In that appeal, he asserted assignments of error that correspond to ground for relief one in the current petition — prosecutorial misconduct during closing argument. That court affirmed Eads's conviction.
ECF #11, Ex.F.
ECF #11, Ex.G, at iv.
ECF #11, Ex.J.
Eads then appealed his conviction to the Supreme Court of Ohio. His memorandum in support of jurisdiction contained a proposition of law corresponding to ground for relief one here. The Supreme Court dismissed Eads's appeal for want of a substantial constitutional question.
ECF #11, Ex.K.
ECF #11, Ex. L, at 2.
ECF #11, Ex.N.
Eads next filed a pro se application to reopen his appeal under Ohio Rule of Appellate Procedure 26(B). In his motion to reopen, Eads asserted that his trial counsel was ineffective and that the state failed to prove each element of the offense beyond a reasonable doubt. The two claims correspond to grounds for relief four and five in his amended petition for habeas corpus. The court of appeals denied the motion.
See ECF #11, Ex. O.
ECF #11, Ex. O.
On appeal to the Supreme Court of Ohio, Eads asserted propositions of law mirroring grounds for relief four and five here. The Supreme Court affirmed the denial of the motion.
ECF #11, Ex.T, at viii, ix.
ECF #11, Ex. W.
Finally, Eads filed a pro se petition for postconviction relief under Ohio Revised Code § 2953.21. His first and third claims for relief in that petition mirror grounds for relief six and seven in the amended federal petition. The trial court issued a journal entry denying the petition. and thereafter issued findings of fact and conclusions of law explaining its decision.
ECF #11, Ex. Al.
ECF #11, Ex.Al, at 3, 4-5.
ECF #11, Ex. Cl.
ECF #11, Ex. Jl.
Eads untimely filed a notice of appeal to the court of appeals. That court dismissed the appeal as untimely. The Supreme Court of Ohio then dismissed the appeal from the appellate court's judgment for want of a substantial constitutional question.
ECF #11, Ex. Pl.
ECF #11, Ex. Ql.
ECF #11, Ex. Wl.
III. Analysis
A. The defense of procedural defaultAs previously stated, Morgan has asserted the defense of procedural default. The Court concludes that Eads has procedurally defaulted on grounds for relief four through eight for the reasons that follow.
1. Legal standards for procedural default
A procedural default in the state courts that bars federal court consideration of a habeas claim occurs when the petitioner raises a federal constitutional claim in the state courts, and those courts reject that claim for failure to comply with state procedural rules. In Maupin v. Smith, the Sixth Circuit implemented a four-part test to determine whether a habeas corpus petitioner has procedurally defaulted his federal claims in state court:
• Is there a procedural rule that is applicable to the petitioner's claim, and further, did the petitioner fail to follow that rule?
• Did the state court enforce the procedural rule?
• Is the state procedural rule an adequate and independent state ground to foreclose federal relief?
• Once procedural default has been found, has the petitioner shown cause for his failure to follow the procedural rule and demonstrate how he was prejudiced by the constitutional error?
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
A procedural default can also occur if a petitioner fails to fairly present his federal constitutional claims in the state court. Fair presentment requires that the petitioner prosecute his federal constitutional claims on "one complete round" of appeal in the state courts. If the petitioner fails to do so, and cannot return to state court to present those claims, then he has procedurally defaulted. 2. Eads procedurally defaulted on grounds for relief four and five .
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Id. at 848.
In ground for relief four, Eads claims ineffective assistance of trial counsel for failure to object to certain alleged acts of prosecutorial misconduct. The fifth ground for relief asserts that the state failed to prove every element of the crime beyond a reasonable doubt.
Eads presented both of these claims to the state courts only once — in his motion to reopen his direct appeal under Ohio Rule of Appellate Procedure 26(B). The court of appeals denied the motion as untimely. Alternatively, it denied the motion as to the claims corresponding to the fourth and fifth grounds for relief here because they failed to state a claim of ineffective assistance of appellate counsel. The Supreme Court of Ohio affirmed the denial of the motion.
ECF #11, Ex. O, at 1-3.
ECF #11, Ex. O, at 3.
ECF #11, Ex. W.
Under the four-part Maupin test, Eads procedurally defaulted on the fourth and fifth grounds for relief. Ground for relief four asserting ineffective assistance of trial counsel and ground for relief five claiming insufficiency of the evidence could not be asserted on the motion to reopen. By its express terms Appellate Rule 26(B)(1) limits the motion to reopen to claims of ineffective assistance of appellate counsel.
Because Eads had the same counsel at trial and on direct appeal, he could have properly asserted the claim of ineffective assistance of trial counsel in his petition fo rpostconviction relief. He failed to do so, however.
Ground for relief five, based on insufficiency of the evidence, could have been raised either on direct appeal, the motion to reopen in connection with a claim of ineffective assistance of appellate counsel, or in the postconviction petition as part of an ineffective assistance of trial counsel claim. Eads took advantage of none of these opportunities. In his motion to reopen, he asserted the claim as a "stand-alone," proposed assignment of error. The court of appeals properly refused to consider the claim as outside the scope of Appellate Rule 26(B).
Under part one of the Maupin test, Eads failed to follow the state rules for asserting his ineffective assistance of trial counsel and insufficiency of the evidence claims. He improperly sought to present those claims in a motion to reopen a direct appeal.
Under part two of the test, the state courts did enforce the procedural rule limiting motions to reopen to claims of ineffective assistance of appellate counsel.
No serious question exists under part three of the Maupin test. A state procedural rale provides an adequate ground to foreclose federal relief if "it is regularly or consistently applied by the state court" and an independent ground "if it does not depend on a federal constitutional ruling."
White v. Schotten, 201 F.3d 743, 751 (6th Cir. 2000).
The procedural rales limiting the scope of motions to reopen is independent because it does not depend on a federal constitutional ruling. The rale is likewise adequate. Eads does not argue that the Ohio courts entertain claims other than ineffective assistance of appellate counsel under Appellate Rule 26(B).
Finally, part four of the Maupin test is satisfied because no cause exists for Eads's default. Despite the appellate court's ruling denying the motion to reopen, Eads could have asserted the ineffective assistance of trial counsel claim in his petition for postconviction relief. He failed to do so, however. Furthermore, he could have reasserted his insufficiency of the evidence claim as part of an ineffective assistance of trial counsel claim in his postconviction petition. He did not do so. Eads offers no explanation for his failure to resurrect these claims in the postconviction petition. Absent a showing of cause, the Court need not consider prejudice. 3. Ends procedurally defaulted on grounds for relief six and seven
Lewis v. Randle, 36 Fed.Appx. 817, 819 (6th Cir. 2002).
Grounds for relief six and seven assert claims of ineffective assistance of trial counsel. Eads first presented those claims in his petition for postconviction relief. This was appropriate because Eads had the same counsel at trial and on direct appeal.
State v. Hutton, 100 Ohio St.3d 176, 182, 797 N.E.2d 948, 956-67 (2003).
The trial court denied Eads's petition. The court of appeals dismissed the appeal from that denial as untimely. The Supreme Court of Ohio dismissed the appeal from the appellate court's judgment for want of a substantial constitutional question.
ECF #11, Ex. C1.
ECF #11, Ex. Q1.
ECF #11, Ex. W1.
Applying the first part of the Maupin test, Eads failed to follow Ohio Appellate Rule 4(A), which requires the filing of a notice of appeal within 30 days of the entry of judgment.
Under the second part of the test, the state appellate court enforced Appellate Rule 4(A) by dismissing Eads's appeal as untimely.
Moving to the third part of the test, Appellate Rule 4(A) is an independent ground because its application does not depend upon a federal constitutional ruling. It is also an adequate ground in that Ohio appellate courts consistently dismiss untimely appeals. Indeed, the courts have no discretion because the failure to file a timely notice of appeal deprives the court of appeals of jurisdiction. A delayed appeal under Ohio Appellate Rule 5(A) is not available in an appeal of a postconviction relief determination.
Chinnock v. Rothschild, Case No. 83099, 2003 WL 22976600 at #3 (Ohio Ct.App. 2003).
State v. Nichols, 11 Ohio St.3d 40, 40-41, 463 N.E.3d 375, 375-76 (1984).
Nor can Eads prevail on the fourth part of the Maupin test. In the state courts, he claimed that his notice of appeal was timely filed because he gave the notice of appeal to prison officials by the date it was due, consistent with the Ohio Supreme Court's holding in State v. Williamson. Williamson held that a pro se petitioner who delivers a notice of appeal to prison officials by the due date has timely filed the notice.
State v. Williamson, 10 Ohio St.2d 195, 226 N.E.2d 375 (1967).
Eads cites Williamson as cause for his failure to comply with Ohio Rule of Appellate Procedure 4(A). Williamson, however, had been overruled by the Ohio Supreme Court in State ex rel. Tyler v. Alexander by the time Eads appealed the denial of his postconviction petition. There the Ohio Supreme Court refused to equate delivery of the notice of appeal to prison officials with delivery to the clerk of courts. Although the Tyler decision did not mention the Williamson decision by name, its holding regarding timely filing of a notice of appeal is in direct conflict with Williamson. Further, since Tyler, various Ohio Courts of Appeals have concluded that Tyler effectively overruled Williamson. Finally, the Sixth Circuit also acknowledged that Tyler "expressly rejected" what the court characterized as the "prison mail rule".
State ex rel. Tyler v. Alexander, 52 Ohio St.3d 84, 555 N.E.2d 966 (1990).
State v. Hansbro, Case No. 2001-CA-88, 2002 WL 1332297, at **4-5 (Ohio Ct.App. June 14, 2002); State v. Cutler, Case No. 93-JE-9, 2000 WL 1617820, at **1-2 (Ohio Ct.App. Oct. 27, 2000); State v. Vroman, Case No. 96CA2258, 1997 WL 193168, at *2 (Ohio Ct.App. Apr. 15, 1997).
Vroman v. Brigano, 346 F.3d 598, (6th Cir. 2003).
Eads's reliance on the "prison mail rule" cannot constitute cause for his failure to file a timely notice of appeal in accordance with the procedural rule set forth in Ohio Rule of Appellate Procedure 4(A). The Ohio Supreme Court, the Ohio courts of appeals, and the Sixth Circuit have explicitly rejected the "prison mail rule." Therefore, under step four of the Maupin analysis, Bads's reliance on Williamson does not constitute cause for his failure to follow Ohio Rule of Appellate Procedure 4(A). Absent a showing of cause, the Court need not consider prejudice. 4. Eads procedurally defaulted on ground for relief eight .
Lewis, 36 Fed.Appx. at 819.
Ground for relief eight asserts ineffective assistance of appellate counsel for failure to assign as error the trial court's failure to properly allocate the burden of proof applicable to mitigating circumstances for voluntary manslaughter.
ECF #31, at 17-18.
Under the circumstances of this case, the proper vehicle for raising this claim in the state courts was as part of the application to reopen the appeal under Ohio Appellate Rule 26(B). However, this claim does not appear in the laundry list of ineffective assistance of appellate counsel claims presented in the application.
ECF #11, Ex.T, at 21-22.
It appears, therefore, that Eads has failed to present this ineffective assistance of appellate counsel argument in the state courts and has not satisfied the fair presentment requirement that a federal constitutional claim must be prosecuted through "one complete round" in the state courts before being asserted in a federal habeas petition. Because Eads cannot return to the state court to present that claim, he has procedurally defaulted.
Boerckel, 526 U.S. at 845.
Id. at 848.
B. The merits of ground one for relief — prosecutorial misconduct in closing argument
1. Introduction
In his first ground for relief Eads claims that he was denied due process because the prosecutor made inflammatory comments during closing arguments. Eads unsuccessfully pressed this claim on direct appeal to the Ohio Court of Appeals and the Supreme Court of Ohio. He, therefore, fairly presented this claim in the state courts, and this Court will proceed to address that claim on the merits. 2. The state court decision
The court of appeals gave the following recitation of the facts supporting Eads's conviction and of the remarks of the prosecutor during closing argument that serve as the basis for Eads's claim.
Appellant and the victim, Marc Jones, were neighbors in a two family home. Appellant purchased a boat, and was attempting to back the boat into the driveway. Jones called the police because of the noise Eads was making. After the police had come and gone, Eads went to the Jones' door to discuss the situation, and a loud argument ensued on the front porch.
Eads testified that Jones lunged at him, pushing him to the ground on all fours. Jones was on top of Eads strangling him, while Eads was trying to crawl away. Eads said he believed he was going to die, so he found a fishing knife in his pocket and stabbed Jones several times. Appellant's wife witnessed the incident from across the street. Her testimony corroborated the appellant's story.
Four other neighbors watched the fight, and testified that Jones pushed Eads down on his knees, but Eads got up very quickly. At no other time did they see Eads on the ground. The two men were facing each other when the witnesses saw Marc Jones fall to the ground.
The victim's wife was standing on the porch during the fight. She testified that Dan Eads threw the first punch. Her husband then pushed Eads to his knees, but Eads got right back up. Eads stabbed Marc Jones in the arm, while both men were standing. She did not see what happened next, because she went to call the police.
The coroner testified that the victim had three knife wounds to his chest and abdominal area, one stab wound to the back and one to his arm. The evidence showed that the victim's blood was on the front of the defendant's shirt, but not on the back. Police officers testified they observed no physical injuries to the appellant.
The police officers also stated they smelled a moderate amount of alcohol on defendant's breath when he was arrested that night. Eads testified that he only had two beers at lunch time.
During closing arguments, the prosecutor made several remarks that were objected to by the defense, including: that defendant put on a phony act on the stand; the defense staged an incident at the jury view where the jury saw defendant embracing his wife; and that defendant was not sorry Marc Jones was dead. The objections to these remarks were overruled.
The prosecutor called the defendant a "little, selfish, arrogant, coward." An objection to this comment was sustained, but the judge did not give a special curative instruction to the jury, as requested by the defense.
Several remarks of which appellant now complains were not objected to, including: a statement concerning the credibility of Mrs. Eads; a statement that the defense was full of "red herrings"; that defendant was drinking all day; and the following remark regarding self-defense:
Mr. Haffey asked all of you to put yourselves in his shoes and see whether or not he had an honest belief (of serious bodily harm or death). That isn't correct. That honest belief has to be reasonable. I mean, I can be delusional, I can be like that under the influence of alcohol. I could think that what I am doing is the right thing to do, and I can be honest. But is that reasonable? I will submit, that if he went there drunk, and that if he didn't know what he was doing, that isn't a defense. But would any reasonable person think that they were in danger for their life on that porch when he pulled out the knife and started stabbing Marc Jones? He has to prove that.
The judge instructed the jury that closing arguments are not evidence and to reject any opinion stated by the lawyers in regards to the credibility of witnesses or the guilt or innocence of the defendant.
ECF #11, Ex. J, at 2-4.
The court of appeals conceded that several of the prosecutor's remarks were improper. Specifically, it found improper the prosecutor's statement of his opinion on the credibility of Eads and his wife, his characterization of the defense and the defendant in derogatory terms, and allusions to facts not in evidence. The court also determined that the prosecutor had incorrectly stated the law regarding self-defense in the closing argument. It nevertheless concluded that the misconduct was not prejudicial because, based on the evidence properly admitted at trial, the jury would have found Eads guilty beyond a reasonable doubt absent the misconduct. In reaching this conclusion, the court considered that the trial judge had properly instructed the jury on the law of self-defense. and had admonished the jury that closing arguments are not evidence. 3. The applicable legal standard a. AEDPA: The Anti-Terrorism and Effective Death Penalty Act
ECF #11, Ex. J, at 5.
ECF #11, Ex. J, at 5.
ECF #11, Ex. J, at 5.
ECF #11, Ex. J, at 5.
ECF #11, Ex.J, at 5-6.
ECF #11, Ex.J, at 7.
The Antiterrorism and Effective Death Penalty Act of 1996. ("AEDPA") increased the deference that federal courts must give to the decisions of state courts in habeas corpus cases. That Act's provisions apply to all habeas corpus petitions brought after its effective date, April 24, 1996. The AEDPA, therefore, applies to Eads's petition, which he filed on March 8, 1999.
Pub.L. No. 104-132, 110 Stat. 1214 (1996).
Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
The AEDPA amended the standard of review in 28 U.S.C. § 2254(d) to prohibit habeas corpus relief unless the decision of the state court either diverges from federal law as determined by the Supreme Court of the United States or rests on an unreasonable determination of the facts from the evidence of record:
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.
The Supreme Court provided guidance on the application of this standard in Williams v. Taylor. If the petitioner challenges the state court's application of the law, the inquiry under § 2254(d)(1) begins with consideration of whether clearly established Federal law, as determined by the Supreme Court, controls the issue presented by the habeas corpus petition. This depends on the existence of a holding of the Supreme Court, as opposed to dicta, controlling the issue at the time of the relevant state-court decision. If a controlling holding does exist, the analysis continues. If no such holding exists, then the court must deny the petition.
Williams v. Taylor, 529 U.S. 362 (2000).
Id. at 412.
Under the "contrary to" clause in § 2254(d)(1), the writ will issue if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided the case differently than the Supreme Court on a set of materially indistinguishable facts. Justice O'Connor in the majority opinion explained the proper analysis under the "contrary to" prong of subsection (d)(1) in the following terms:
Id.
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. *** A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.
Id. at 406.
Where the state court correctly identified the controlling Supreme Court authority but had to apply it to facts materially different from those faced by the Court in establishing the controlling authority, the "unreasonable application" clause of § 2254(d)(1) comes into play. Under the "unreasonable application" clause, the federal habeas court must grant the writ if the state court adopted the correct governing legal principle from the decisions of the Supreme Court but unreasonably applied that principle to the facts of the petitioner's case. Whether the state court unreasonably applied the principle turns on whether the state court's application of clearly established federal law was objectively unreasonable. b. Clearly established federal law
Id. at 407, 408.
Id. at 413.
Id. at 409.
The Supreme Court set forth the clearly established federal law governing claims of prosecutorial misconduct during closing argument in the 1986 case of Darden v. Wainwright. In that decision, the Court characterized the relevant inquiry as "whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" In considering whether the prosecutor's remarks in that case violated due process, the Darden majority cited several factors.
Darden v. Wainwright, 477 U.S. 168 (1986).
Id. at 181, quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
• Were the prosecutor's comments in response to inappropriate remarks by defense counsel? The court emphasized that this factor went "not to excuse improper comments, but to determine their effect on the trial as a whole".
Id. at 182.
• Did the trial court give curative instructions?
• What was the weight of the evidence against the defendant?
Id.
In the AEDPA context, the Sixth Circuit has reduced the law as set out in Darden into a two-step approach. First, the court must determine whether the prosecutor's remarks were improper. If it finds the remarks improper, then it must apply a four-factor test:
Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002).
Id.
(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant;
(2) whether the conduct or remarks were isolated or extensive;
(3) whether the remarks were deliberately or accidentally made; and
(4) whether the evidence against the defendant was strong.
Id., quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001).
The Ohio Court of Appeals did not cite to the Darden case or to any United States Supreme Court authority in rejecting Eads' s prosecutorial misconduct claim. However, as the Sixth Circuit recently stated in Lopez v. Wilson, "the state court decision need not cite Supreme Court precedent, or even reflect awareness of Supreme Court cases, `so long as neither the reasoning nor result of the state-court decision contradicts them.'" 4. Legal standard applied
Lopez v. Wilson, ___ F.3d ___, 2004 WL 65135 (6th Cir. 2004).
Id. at *4, quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
Applying the two-step approach adopted by the Sixth Circuit for assessing claims of prosecutorial misconduct in closing argument in habeas cases, the remarks complained of were improper. As the state court of appeals concluded, "[t]he prosecutor impermissibly stated his opinion on the credibility of the defendant and his wife, characterized the defense and the defendant in derogatory terms, and alluded to matters not supported by the evidence". Furthermore, he "incorrectly stated the law in regards to self-defense".
ECF #11, Ex.J, at 5.
ECF #11, Ex.J, at 5.
The analysis must move, therefore, to the second step. In determining whether the remarks misled the jury or prejudiced the defendant, the state court was entitled to consider curative instructions given by the trial judge. With respect to comments about credibility, derogatory remarks, and references to matters not supported by the evidence, the trial judge gave the jury the instruction that closing arguments are not evidence. The prosecutor's remarks about the elements of self-defense were for the most part accurate. The court of appeals explained the prosecutor's error in the following terms:
ECF #11, Ex. J, at 7.
A person claiming self-defense must have reasonable grounds for an honest belief of serious bodily harm. It is erroneous to state there is a reasonable person standard, because the standard is what is reasonable to the slayer. Only the last two sentences of the prosecutor's comments are incorrect.
ECF #11, Ex. J, at 5-6.
The court of appeals, accordingly, concluded that the curative instructions prevented whatever prejudice the improper remarks may have caused.
The state court of appeals did not comment on whether the remarks were isolated or extensive or whether the remarks were deliberately or accidentally made. For purposes of this analysis, the Court will assume arguendo that these factors of the test can be resolved in favor of Eads. The analysis turns, therefore, to the fourth part of the test — the weight of the evidence of Eads's guilt. The state court of appeals expressly found that "it is clear beyond a reasonable doubt that the jury would have found defendant guilty had there been no misconduct on the part of the prosecution". This Court's review of the record supports that conclusion.
ECF #11, Ex.J, at 5.
There was a great deal of evidence presented against Eads to support his conviction. The jury convicted Eads of murder in violation of Ohio Revised Code § 2903.02. The statute provides that "[n]o person shall purposely cause the death of another." The evidence overwhelmingly proved that Eads killed the victim purposely.
Dr. Ward Reeves testified that Eads and Jones were fighting, and at the end of the fight, the victim fell down on the porch. Dr. Reeves then went across the street to help the victim and saw that he had been stabbed.
Tr. 92-95.
Tr. 100.
Tim Cole, Sally Cole, and Susan Jones all recounted the fight between Eads and the victim. Tim Cole testified that he saw Eads leave the scene with a "red shining object" after the fight was finished. He further testified that he told his brother that someone was stabbed. Sally Cole testified that Eads was close to the victim before the victim fell down on the porch. After seeing the fight, she went across the street with Dr. Reeves to help Jones. Sally Cole then testified that Jones had no radial pulse, that Jones was stabbed and bloodied, and that he stopped breathing on the porch. Susan Jones testified that she saw Eads draw a knife from his jacket pocket. and initially stab Jones in the wrist.
Tr. 121 (Tim Cole); Tr. 180-188 (Sally Cole); Tr. 228-231 (Susan Jones).
Tr. 122.
Tr. 122.
Tr. 145.
Tr. 154.
Tr. 156.
Tr. 234.
Tr. 234.
The evidence against Eads was cumulative and incriminating. Several witnesses testified to his attack on Jones using a deadly weapon. In Ohio, purpose may be presumed by the jury if the "participants were aware that an inherently dangerous instrumentality was to be employed" in committing the felony. Further, testimony establishes that Eads's actions caused the death of another, Marc Jones. The weight of the evidence against Eads is great.
State v. Lockett, 49 Ohio St.2d 48, 59, 358 N.E.2d 1062, 1070, 1071 (1976), overruled on other grounds by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1 140 (1977).
Even if some of the factors in the four-part test tip in favor of Eads, that is not necessarily sufficient to provide a basis for habeas relief. In Macias v. Makowski, the Sixth Circuit reviewed claims of prosecutorial misconduct during closing argument using the same analytical framework applicable here. The court concluded that two of the four factors (the statements were misleading and were deliberate) resolved in favor of the petitioner but that the two other factors (the statements were isolated and the evidence of guilt strong) did not. The Sixth Circuit affirmed the denial of the writ with the caveat "the relevant question is not whether the state court's decision was wrong, but whether it was an unreasonable application of clearly established federal law".
Macias, 241 F.3d 447.
Id. at 454.
Similarly in this case, this Court cannot conclude that the state court's findings that the remarks complained of were not prejudicial and that the weight of the evidence of guilt was overwhelming constitute an objectively unreasonable application of the clearly established federal law. Eads's ground one for relief, therefore, must be denied.
IV. Conclusion
Based on the foregoing, grounds for relief four through eight in the amended petition are dismissed with prejudice because Eads procedurally defaulted on those grounds. Ground for relief one is denied with prejudice as without merit.
Grounds for relief two and three remain outstanding pending a response by the Supreme Court of Ohio to this Court's order of certification. Because this memorandum opinion and order does not dispose of all of the claims asserted in the amended petition, it is not a final order or judgment under 28 U.S.C. § 1291.
ECF #38.