Evans v. Moore
Filing
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MEMROANDUM OPINION Adopting Report and Recommendation. Petition for writ of habeas corpus denied.. Judge David A. Katz on 7/5/12. (G,C)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY EVANS,
Plaintiff,
Case No. 3:10 CV 2408
-vsMEMORANDUM OPINION
ERNIE L. MOORE,
Defendant.
KATZ, J.
This petition for a Writ of Habeas Corpus is currently before the Court on Petitioner
Timothy Evans’ objection to Magistrate Judge James R. Knepp, II’s Report and Recommendation
(“R&R”). Pursuant to Local Rule 72.2(b)(2), the Magistrate recommended that this Court deny the
Petition. (Doc. 7). Petitioner objected to the R&R claiming violation of his Fourteenth Amendment
due process rights. (Doc. 8). In accordance with 28 U.S.C. § 636(b)(1)(B)-(C) (2012), U.S. v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001), and Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981),
this Court reviews the Magistrate’s R&R de novo. For the reasons stated herein, the Court adopts
the R&R in full.
I. Procedural Background
The Court hereby adopts the Magistrate Judge’s description of the factual and procedural
background as described in the R&R as follows:
State Court Proceedings
In 2006, Petitioner was indicted by a Cuyahoga County Grand Jury on one count of
aggravated robbery, in violation of Ohio Rev. Code § 2911.01. Petitioner entered a
plea of not guilty, waived a jury trial and the case proceeded to a trial before the court.
(Ex. 1, Doc. 5-2, at 1).
On August 29, 2006, the court found Petitioner guilty of one count of robbery, in
violation of 2911.02(A)(2). (Ex. 4, Doc. 5-2, at 4). The trial court sentenced Petitioner
on October 23, 2006, to two years incarceration. (Ex. 5, Doc. 5-2, at 5).
On November 22, 2006, Petitioner, with the assistance of counsel, filed a notice of
appeal. (Ex. 6, Doc. 5-2, at 6). Petitioner raised the following assignment of error:
By finding Mr. Evans guilty of a crime for which he had not been
indicted and which was not a lesser included offense of the crime
charged in the indictment, the trial court denied Mr. Evans his right to
be indicted by a grand jury.
(Ex. 7, Doc. 5-2, at 23).
The state did not file a brief in opposition. On January 17, 2008, the Eighth District
Court of Appeals, applying the test for lesser-included offenses set forth in State v.
Deem, 40 Ohio St. 3d 205, 533 N.E.2d 294 (1988), determined robbery is not a lesser
include offense of aggravated robbery, because robbery includes an element that
aggravated robbery does not – inflicting, attempting to inflict, or threatening to inflict
physical harm – and this element was not presented to the grand jury. The court
therefore reversed the judgment of the trial court and remanded the case back to the
trial court to vacate Petitioner’s conviction. Ohio v. Evans, 2008 WL 152121 (Ex. 8,
Doc. 5-2, at 39-46).
On February 15, 2008, the state filed a notice of appeal with the Ohio Supreme Court.
(Ex.9, Doc. 5-2, at 52-54). In its memorandum in support of jurisdiction, the state
raised the following proposition of law:
Because an offense should be considered a lesser-included offense
after analyzing the facts and circumstances of each case, rather than
from simply analyzing the statutory elements in a vacuum, robbery
under R.C. 2911.02(A)(2) may be considered a lesser included offense
of aggravated robbery under R.C. 2911.01(A)(1).
(Ex. 10, Doc. 5-2, at 73).
The Ohio Supreme Court accepted the appeal. On July 7, 2009, the Ohio Supreme
Court reversed the judgment of the state appellate court and reinstated the conviction.
Ohio v. Evans, 122 Ohio St. 3d 381 (2009) (Ex. 14, Doc. 5-2, at 151). Petitioner,
through counsel, filed a motion for reconsideration with the Ohio Supreme Court (Ex.
15, Doc. 5-2, at 144-50), which was denied (Ex.16, Doc. 5-2, at 151).
Federal Habeas Corpus
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On October 22, 2010, Petitioner, through counsel, filed the pending Petition, asserting
a single ground:
Petitioner was denied due process of law under the Fourteenth
Amendment to the United States Constitution when the Ohio Supreme
Court retroactively applied a new test for lesser-included offenses.
(Doc. 1, at 5).
(R&R pp. 2-3).
The matter was referred to the Magistrate, who recommended that the Petition be denied.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act provides that a Writ of Habeas Corpus
should not be granted for any claim adjudicated on its merits in State court absent one of two
circumstances. First, a court may grant a Writ of Habeas Corpus if the state adjudication of the
claim “resulted in a decision contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).
Alternatively, a court may grant the writ if the State adjudication of the claim “resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in State court proceedings.” Id. at (d)(2).
A state court’s holding is “contrary to” clearly established federal law when it “‘applies a
rule that contradicts the governing law set forth in [Supreme Court] cases’ or if it ‘confronts a set
of facts that are materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [its] precedent.’” Mitchell v. Esparza, 540 U.S. 12,
15-16 (2003) (per curiam) (citing Williams v. Taylor, 529 U.S. 362, 406 (2000)). The
unreasonableness of the application of federal law is determined from an objective standard as a
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Writ of Habeas Corpus should not be granted merely because the “state-court decision applied
clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 365.
Alternatively, a state court’s decision unreasonably applies Supreme Court holdings “if the
state court identifies the correct governing legal principle from the Supreme Court but
unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S.
510, 520 (2003).
III. Discussion
Petitioner asserts that the Ohio Supreme Court denied him Fourteenth Amendment due
process by retroactively applying a new test for lesser included offenses when reinstating his
conviction for robbery under OHIO REV. CODE ANN. § 2911.02(A)(2). (Doc. 1-1, at. 4). The
Magistrate recommended that this Court deny the Petition, accepting the Ohio Supreme Court’s
reasoning that the new articulation of Ohio’s lesser included offense test clarified, but did not
change, the test. See Ohio v. Evans, 911 N.E.2d 889 (Ohio 2009) (removing “ever” from the
second prong of Ohio’s lesser included offense test). Moreover, the Magistrate found that even if
the Ohio Supreme Court did change the law, Petitioner’s due process rights were not violated
because Petitioner had fair warning that his actions were proscribed under Ohio law. Petitioner
objects, reasserting the argument that the Ohio Supreme Court’s Evans decision changed the lesser
included offense test, that it was retroactively applied to Petitioner’s case, and that Petitioner did
not have notice to defend against a robbery charge.
Petitioner’s objections are not persuasive, and the Court adopts the Magistrate’s R&R.
Under Ohio law, “when the indictment or information charges an offense . . . or if other offenses
are included within the offense charged, the jury may find the defendant not guilty of the degree
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charged but guilty of [a] . . . lesser included offense.” OHIO REV. CODE ANN. § 2945.74. In Ohio
v. Deem, the Ohio Supreme Court established the test to determine whether a crime is a lesserincluded offense. The test provides:
An offense may be a lesser included offense of another if (i) the offense carries a lesser
penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be
committed without the lesser offense, as statutorily defined, also being committed; and
(iii) some element of the greater offense is not required to prove the commission of the
lesser offense.
533 N.E.2d at 298.
In the instant matter, the focus of the Ohio Supreme Court’s analysis–and the focus of
Petitioner’s objection–is the second prong. The Ohio Supreme Court explained its second prong
analysis as follows:
The second step of the Deem test requires a court to examine the statutory elements
of the two offenses. Here, we consider whether aggravated robbery as defined in R.C.
2911.0l(A)(I) can ever be committed without also committing robbery as defined in
R.C. 2911.02(A)(2).
R.C. 2911.01(A)(1) defines one way to commit the crime of aggravated robbery:
"(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
"(1) Have a deadly weapon on or about the offender's person or under the offender's
control and either display the weapon, brandish it, indicate that the offender possesses
it, or use it."
R.C. 2911.02(A)(2) defines one way to commit the crime of robbery:
“(A) No person, in attempting or committing a theft offense or in fleeing immediately
after the·attempt or offense, shall do any of the following:
***
“(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another.”
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Thus, in determining whether robbery is a lesser included offense of aggravated
robbery, we are called on to consider whether displaying, brandishing, indicating
possession, or using a deadly weapon in the attempted commission of a theft offense
is also a threat to inflict physical harm as defined in R.C. 2911.02(A)(2). While these
elements are not identically phrased, we have recognized: “This test is not a word
game to be performed by rote by matching the words chosen by the legislature to
define criminal offenses. Some offenses, such as aggravated murder and murder, lend
themselves to such a simple matching test; others do not. * * * We would also note
that the elements of the offenses are ‘matched’ only in part (iii) of the test to determine
if ‘some element’ of the greater offense is not found in the lesser offense. The proper
overall focus is on the nature and circumstances of the offenses as defined, rather than
on the precise words used to define them.” State v. Thomas, 40 Ohio St.3d 213 at 216217, 533 N.E.2d 286. Thus, the test does not require identical language to define the
two offenses, but focuses upon whether the words used in the statute defining the
greater offense will put the offender on notice that an indictment for that offense could
also result in the prosecution of the lesser included offense.
***
[T]o establish aggravated robbery, the state carries the burden to prove that Evans had
a deadly weapon and indicated his possession of it; and to establish robbery, the state
must prove a threat to inflict physical harm on the victim. Indicating possession of a
deadly weapon constitutes an implied threat to inflict physical harm because it
intimidates a victim and is designed to compel relinquishment of property without
consent. Therefore, an element-to-element comparison reveals an equivalence between
indicating possession of a deadly weapon in order to compel compliance with a
demand for property and an implied threat to inflict physical harm. Thus, aggravated
robbery as statutorily defined in this case cannot be committed without also
committing the offense of robbery. Accordingly, robbery as defined in
R.C.2911.02(A)(2) is a lesser included offense of aggravated robbery as defined in
R.C. 29111 .01(A)(l).
Evans, 911 N.E.2d at 893-94, 895.
The Ohio Supreme Court rejected Petitioner’s reliance on the word “ever” to postulate an
implausible scenario that could conceivably circumvent the second prong of Deem. Moreover, the
Ohio Supreme Court modified Deem by removing the word “ever” so as to prevent any further
mistaken beliefs that such implausible scenarios circumvent the test:
Despite making the statement to Stewart “I have a gun” as he tried to take her purse,
[Petitioner] now argues that a person can indicate possession of a deadly weapon
without implying a threat to inflict physical harm for example, by purchasing a
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hunting knife in a hardware or sporting goods store as he simultaneously shoplifts a
bag of nails by placing them in his pocket. This argument is not well taken. In State
v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N .E.2d 154, ¶ 24, we rejected
similarly implausible examples advanced in the context of an allied offense analysis,
stating that they “lapse into the strict textual comparison” that this court has previously
rejected. Having previously rejected such strict textual comparison in the context
of the Deem lesser included offense analysis, emphasizing that a court should
focus “on the nature and circumstances of the offenses as defined, rather than on
the precise words used to define them,” we now reject the implausible scenario
advanced by Evans in this case. Thomas, 40 Ohio St.3d at 217, 533 N.E.2d 286.
Moreover, to ensure that such implausible scenarios will not derail a proper lesser
included offense analysis, we further clarify the second part of the Deem test to delete
the word “ever.” This clarification does not modify the Deem test, but rather
eliminates the implausible scenarios advanced by parties to suggest the remote
possibility that one offense could conceivably be committed without the other also
being committed. Deem requires a comparison of the elements of the respective
offenses in the abstract to determine whether one element is the functional equivalent
of the other. If so, and if the other parts of the test are met, one offense is a lesser
included offense of the other.
Id. at 894-95 (emphasis added).
Thus, Petitioner’s argument that the Ohio Supreme Court retroactively applied new law to
his case is not persuasive. As explained by the court, and as further articulated by the Magistrate,
the focus of Deem is on “‘the nature and circumstances of the offenses as defined, rather than on
the precise words used to define them.’” Id. at 895 (citing Thomas, 533 N.E.2d at 291). As such,
Deem never allowed a defendant to escape conviction for a lesser included offense by offering
implausible scenarios such as those offered by Petitioner. To the extent courts or criminal
defendants mistakenly engaged in strict textual comparisons or relied on the word “ever” to
contrive such scenarios, the Ohio Supreme Court clarified Deem by removing the word “ever”
from the second prong. This action reasserted the test’s ever-present purpose and effect, it did not
articulate a new law.
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Even if this Court were to find that the Ohio Supreme Court did retroactively apply a
substantively new test to Petitioner’s charge, such a retroactive application would only offend due
process and the principle of fair warning “only where it is ‘unexpected and indefensible by
reference to the law which has been expressed prior to the conduct in issue.’” Rogers v.
Tennessee, 532 U.S. 451, 462 (2001) (citing Bouie v. City of Columbia, 378 U.S. 347, 354
(1964)). The Ohio Supreme Court considered this precise issue in its decision:
We also reject Evans's contention that our application of this holding to his case will
deprive him of a constitutional right to due process. The United States Supreme Court
has held that a judicial alteration of criminal law violates the principle of fair warning
and must not be given retroactive effect only when it is “‘unexpected and indefensible’
by reference to the law which had been expressed prior to the conduct in issue.”
Rogers v. Tennessee (2001), 532 U.S. 451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697,
quoting Hall, General Principles of Criminal Law (2d Ed.1960), 61.
Despite this assertion by Evans, our decision in State v. Merriweather (1980), 64 Ohio
St.2d 57, 18 O.O.3d 259, 413 N.E.2d 790, holding that robbery was not a lesser
included offense of aggravated robbery under an earlier version of R.C. 2911.01(A)(l),
does not render our holding today either unexpected or indefensible by reference to
law expressed prior to the commission of Evans's offense. Merriweather involved a
different statute that required the state to prove only that the offender had a deadly
weapon or dangerous ordnance on or about his person or under his control while
attempting or committing a theft offense. 1972 Am.Sub.H.B. No. 511, 134 Ohio Laws,
Part II, 1922. In contrast, the current version requires the state to prove that the
offender possessed a deadly weapon or dangerous ordnance and that he either
displayed it, brandished it, indicated that he possessed it, or used it in attempting or
committing a theft offense. Therefore, Merriweather does not apply here. Furthermore,
we adopted the Deem test for lesser included offenses, which forms the basis for our
decision today, in 1988 - well before Evans's 2005 offense. Therefore, applying our
holding to Evans does not violate due process.
Evans, 911 N.E.2d at 896-97. As correctly explained by the Magistrate, the Ohio Supreme
Court’s ruling was not unreasonable and therefore does not warrant Habeas relief. Williams, 529
U.S. at 409-11.
IV. Conclusion
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For the reasons stated herein, this Court adopts the Magistrate’s Report &
Recommendation. The Petition for a Writ of Habeas Corpus is denied. Further, the Court denies
a Certificate of Appealability.
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE
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