Shabazz v. Welch

Filing 27

Memorandum Opinion and Order For the reasons stated in the Order, the Court agrees with the determinations of the Magistrate Judge. Magistrate Judge McHargh correctly determined that petitioner is not entitled to a writ of habeas corpus.Accor dingly, the Report and Recommendation of Magistrate Judge McHargh recommending denial of petitioners pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is accepted. Petitioners Petition for a Writ of Habeas Corpus is denied. Related documents 1 , 25 . Signed by Judge Patricia A. Gaughan on 8/13/2012. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMIL ABDUL SHABAZZ,
Petitioner,
vs.
ROBERT WELCH, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

CASE NO. 1: 10 CV 1598
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This matter is before the Court upon the Report and Recommendation of Magistrate
Judge McHargh (Doc. 25) recommending denial of Petitioner’s pending Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed objections to the R&R.
(Doc. 26.) For the reasons stated below, the Report and Recommendation is ACCEPTED.
The petition for a writ of habeas corpus is denied.
Standard of Review
Pursuant to Fed. R. Civ. P. 72(b), the district court reviews de novo “any part of [a]
magistrate’s judge disposition that has been properly objected to.” “The district judge may
accept, reject, or modify the recommended disposition; receive further evidence or return the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(3). “When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s
notes (citation omitted).
Background
1

The background facts are fully set forth by the Magistrate Judge in his Report and
Recommendation. Petitioner was convicted of murder with a three-year firearm specification
after a jury trial in the Cuyahoga County, Ohio Court of Common Pleas in connection with
the shooting death of Gregory Rodgers. Petitioner timely appealed his conviction to the Ohio
Court of Appeals, which affirmed petitioner’s conviction. Petitioner subsequently filed a
timely petition for leave to appeal to the Ohio Supreme Court, which denied leave and
dismissed petitioner’s appeal as not involving any substantial constitutional question.
Petitioner then pursued post-conviction relief in state court, which was also denied.
Petitioner filed the present petition for a writ a habeas corpus in this Court, asserting
four grounds for relief, specifically:
1. Ineffective assistance of Appellate Counsel when he failed to raise the issue
that the [the] trial court deprived Petitioner Shabazz of his Sixth Amendment
right to effective assistance of trial counsel when it failed to make an adequate
and timely inquiry into Petitioner Shabazz[’s] complaints of trial counsel.
2. Petitioner was not afforded effective assistance of counsel when trial
counsel failed to inquire concerning prospective jurors bias towards members
of the muslim faith.
3. The court err[ed] in denying Petitioner[’]s motion for Acquittal where the
evidence is not sufficient to support [the] conviction.
4. Appellant [sic] counsel was ineffective for his failure to pursue trial
counsel[’]s Deficient Performance in which key evidence was withheld from
Petitioner Shabazz during pre-trials and trial, and for not subpoenaing key
witnesses for the Petitioner which would change the outcome of the case,
violated Petitioner Shabazz[’s] Sixth and Fourteenth amendment right[s] to
effective assistance of counsel, and a right to a fair trial without any bias or
prejudice.
(Doc. 1.)
Discussion

2

Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, a
writ of habeas corpus may be issued only if “the state court adjudication resulted in a
decision that (1) ‘was contrary to . . . clearly established Federal law, as determined by the
Supreme Court of the United States,’ or (2) ‘involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme Court of the United States.’”
Williams v. Taylor, 529 U.S. 362, 412 (2002).
The Magistrate Judge considered petitioner’s claims and found that none of them were
sufficient to support the issuance of the writ because petitioner failed to demonstrate that the
state court determinations were contrary to, or involved an unreasonable application of,
clearly established federal law.
The Magistrate Judge first rejected the third ground asserted in petitioner’s habeas
petition that the state trial court erred in denying petitioner’s motion for acquittal because
there was insufficient evidence to support his conviction. The Magistrate Judge found that
the trial court’s determination that the evidence was sufficient to support the conviction and
its decision to deny petitioner’s motion for acquittal were not contrary to federal law. The
Magistrate Judge noted that two eyewitnesses testified that they saw petitioner shoot the
victim in the head with a firearm at close range and, in addition, a forensic pathologist
established that the victim’s cause of death was a gunshot wound to the head at close range.
As he did in his brief before the Magistrate Judge, petitioner attacks the credibility of the
state’s two eye witnesses in his objections to the R&R, claiming that both of the witnesses
lied under oath and have extensive criminal histories. However, as the Magistrate Judge
correctly noted in his R&R, the relevant inquiry in determining whether there is sufficient

3

evidence to support a conviction is “whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). The court may not weigh the credibility of witnesses on habeas review, as that is the
responsibility of the trier of fact. Dover v. Warden, Belmont Corr. Ins., Case No. 08CV2130,
2009 WL 1940728, at *14 (N.D. Ohio July 2, 2009).
The Court agrees with the determination of the Magistrate Judge that petitioner has
failed to demonstrate that the state court’s decision denying petitioner’s motion for acquittal
was an “unreasonable application” of clearly established federal law. Accordingly,
petitioner’s objections as to the sufficiency of the evidence are unpersuasive.
The Magistrate Judge also rejected petitioner’s claims of ineffective assistance of his
trial and appellate counsel. As the Magistrate Judge correctly noted in his R&R, the state
court applied the correct standard, established in Strickland v. Washington, 466 U.S. 668
(1984), in assessing petitioner’s ineffective assistance of counsel claims.1
The Magistrate Judge found that the state court’s application of Strickland to petitioner’s
claims of ineffective of ineffective assistance of counsel was not objectively unreasonable.
The state court found that “trial counsel was not ineffective in choosing not to inquire about
the prospective jurors’ feelings about members of the Muslim faith.” (R&R at 20) In
1

In Strickland, the Supreme Court established a two-part standard for determining
whether counsel’s assistance is ineffective. The defendant must show that counsel’s
performance fell below an objective standard of reasonableness and that counsel’s errors were
so serious as to prejudice the defendant. Strickland, 466 U.S. at 689-692. Under this test,
review of counsel’s performance is “highly deferential” and requires that courts “indulge a
strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
4

addition, the state court found that petitioner’s appellate counsel was not ineffective for
failing to raise the issues identified by petitioner on appeal. (See id. at 22-23.)
The Court agrees with the Magistrate Judge that petitioner has failed to demonstrate
that the state appellate court’s rulings rejecting petitioner’s ineffective assistance of counsel
claims were objectively unreasonable applications of federal law. Accordingly, petitioner’s
objections to the R&R asserting ineffective assistance of counsel are overruled.
Conclusion
In sum, the Court agrees with the determinations of the Magistrate Judge. Magistrate
Judge McHargh correctly determined that petitioner is not entitled to a writ of habeas corpus.
Accordingly, the Report and Recommendation of Magistrate Judge McHargh recommending
denial of petitioner’s pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 is accepted. Petitioner’s Petition for a Writ of Habeas Corpus is denied.
IT IS SO ORDERED.

Date:

8/13/12

/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge

5