Robinson v. Lazaroff

Filing 15

Memorandum of Opinion and Order: The Report and Recommendation of Magistrate Judge Knepp recommending dismissal of Petitioner's pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is ACCEPTED. Magi strate Judge Knepp correctly determined that Petitioner is not entitled to a writ of habeas corpus. Further, for the reasons stated herein and in the Report and Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 1/26/17. (LC,S) re 12

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Robert Robinson,
Petitioner,
Vs.
Alan J. Lazaroff, Warden,

Respondent.

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CASE NO. 1:15 CV 426
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This matter is before the Court upon the Report and Recommendation of Magistrate
Judge James R. Knepp, II (Doc. 12) recommending that this Court dismiss Petitioner’s
Petition for Writ of Habeas Corpus (Doc. 1). Petitioner has filed Objections to the Report and
Recommendation. For the reasons set forth below, the Report and Recommendation is
ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides that the district court reviews de novo those portions of a report of a

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magistrate judge to which a specific objection is made. Thomas v. Arn, 474 U.S. 140, 149-52
(1985). The judge may accept, reject, or modify any proposed finding or recommendation.
Discussion
Petitioner and a co-defendant were charged in a ten-count indictment based on an
incident that took place on February 22, 2012, on Garfield Road in East Cleveland. During
the incident, Dena’Jua Delaney (“Bubbles”)1 was fatally shot. Petitioner was charged with
aggravated murder and two counts of murder involving one victim (Counts 1-3), six counts of
felonious assault involving six different named victims (Counts 4-9), and discharging a
firearm on or near prohibited premises (Count 10). All counts included one, three, and fiveyear firearm specifications. Petitioner pleaded not guilty to the charges, and the State
voluntarily dismissed the aggravated murder charge prior to trial. The matter proceeded to a
jury trial. The trial court granted a motion for acquittal on Count 9, and the jury found
Petitioner guilty on Counts 2, 4, 5, 6, 7, 8, and 10, and guilty of the one and three-year
firearms specifications on each charge, but not guilty of the five-year specifications. It found
him not guilty on Count 3, purposely causing the death of Bubbles. The Court sentenced
Petitioner to life in prison with the possibility of parole after fifteen years, consecutive to a
term of three years on the firearm specification, two years each on the felonious assault
convictions, three years for Count 10, and an additional consecutive three years for the
merged firearm specifications. The R&R sets forth the factual and procedural background of
this case in detail, and the Court adopts that discussion as if rewritten herein. (R&R at 1-11).

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The state appellate opinion referred to Delaney as “Bubbles.” To avoid confusion,
Magistrate Judge Knepp did so as well. For the same reason, this Court will refer
to her as Bubbles.
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Petitioner filed his federal habeas petition on March 5, 2015, alleging the following
claims for relief:
Ground 1 - Petitioner’s convictions for felony murder under O.R.C.
2903.02(B) and F-1 discharging a weapon on or near prohibited places under
O.R.C. 2923.162(A)(3) are not supported by legally sufficient evidence as
required by the Fifth and Fourteenth Amendments to the United States
Constitution.
Ground 2 - Petitioner’s convictions for felonious assault are not supported by
legally sufficient evidence as required by the Fifth and Fourteenth
Amendments to the United States Constitution.
Ground 3 - Petitioner’s due process rights under the Fourteenth Amendment
and his Sixth Amendment right to a fair trial were violated when the State
court affirmed his conviction in whole or in part on a legal theory never
presented to the jury.
Ground 4 - Petitioner’s due process rights to a fair trial under the Fourteenth
Amendment were violated by prosecutorial misconduct during closing
argument.
Ground 5 - Petitioner was denied effective assistance of counsel in violation of
the Sixth and Fourteenth Amendments to the United States Constitution.2
The Magistrate Judge recommended that all of Petitioner’s claims be denied. Petitioner,
through counsel, now objects to the Magistrate Judge’s recommendation. The Court will
address Petitioner’s objections in turn.
A. Objection to Magistrate Judge’s finding that Robinson’s convictions were
supported by sufficient evidence.
The Magistrate Judge found that the state appellate court’s conclusion that Petitioner’s
convictions were supported by legally sufficient evidence was not unreasonable. Petitioner
objects to this conclusion, arguing that no rational jury could have “accepted the eyewitness

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In his petition, Petitioner withdrew an additional claim for relief. (Doc. 11, at 8
n.4).
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testimony, chosen to reject that provided by the medical examiner, and concluded that
Robinson was guilty.” (Doc. 14, at 9).
In addressing this issue, the Magistrate Judge stated:
[A]s the appellate court found, “several witnesses testified that they
saw Bubbles ‘go down’ after Robinson fired his gun. And these witnesses
testified that there was no shooting from the crowd directed toward the car
until after Bubbles went down.” Robinson, 2013 WL 5517978, at *5. The state
presented evidence in the form of testimony from Paul Small and Antonio
Delaney that Bubbles fell to the ground after Petitioner shot his gun (Tr. 635,
615-16). Other witnesses, including Latima Brown, Devin Delaney, Darylisa
Crenshaw, also testified that Bubbles was still standing after the shots from the
passenger, but was on the ground after the driver shot. (Tr. 285-86, 427-28,
407-08). Several witnesses also testified that no other shots were fired before
Bubbles fell. (Tr. 290-82, 408-10, 432-33, 593-95, 604). Additionally, forensic
scientist Andrew Chappell testified that the bullet found near Bubbles was
capable of being fired from the type of firearm used by Robinson. (Tr. 690).
Taking the evidence in the light most favorable to the prosecution, this is
sufficient evidence from which a jury could conclude Petitioner “cause[d] the
death of” Bubbles “as a proximate result of . . . committing or attempting to
commit” felonious assault on Bubbles. Ohio Rev. Code § 2903.02(B). This is
so despite the evidence cited by Petitioner to the contrary.
Petitioner raises valid questions and a persuasive argument as to the
evidence; however, inconsistencies are not enough to overturn the
determinations made by the state court. Petitioner’s argument is ultimately
based on the weight assigned to various testimonial evidence and it is not the
undersigned’s role to weigh that evidence in the first instance. Here, the jury
opted to believe the testimony of eyewitnesses over the contradictory
testimony from the medical examiner and it is not the place of this Court to
overturn such determinations. See Cavazos, 132 S. Ct. at 6-7; Jackson, 443
U.S. at 326 (“[A] federal habeas corpus court faced with a record of historical
facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.”). A
rational trier of fact could find Petitioner guilty beyond a reasonable doubt of
felony murder based on the evidence presented and the state appellate court’s
application of the law to these facts was objectively reasonable.
This Court finds this analysis persuasive and adopts it as its own. Petitioner’s objection on the
basis that “the guilty verdict was simply irrational” is overruled.

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Petitioner also objects that the Magistrate Judge misapplied Ohio law in ruling on the
sufficiency of the evidence on his felonious assault conviction. Petitioner points out that both
he and the State agreed that the State had to prove that the victims were in the “line of fire” to
obtain a conviction for felonious assault. The Magistrate Judge found that the state appellate
court’s conclusion that there was sufficient evidence to support the felonious assault
convictions was not unreasonable. In doing so, he stated that “all five victims were within the
target range of the shots fired by either Petitioner or Logan.” (R&R at 26) (emphasis added).
Petitioner argues that this was a misapplication of the “line of fire” standard.
Petitioner’s objection is not well-taken. In addressing this issue, the state appellate
court adopted the reasoning in State v. Ivory, 2004 WL 1274383 (Ohio Ct. App., June 10,
2004), to determine what constitutes being “in the line of fire” in a drive-by shooting
situation.3 The court in Ivory held:
When, as here, the targets are considerably farther away [than a target standing
within point-blank range], and aiming is made more difficult because the
shooter is in a moving vehicle, it can reasonably be inferred that the shooter is
intending to shoot within a much wider target range. Hence, anyone standing
within that wider target range can be an intended target, regardless of
whether the shooter hits the mark.
Id., at *2 (emphasis added). In other words, anyone within the “target range” in a drive-by
shooting is “in the line of fire” for purposes of a felonious assault charge. Thus, the
Magistrate Judge did not misapply Ohio law in holding that there was sufficient evidence to
support Petitioner’s conviction for felonious assault because the victims were within the
target range.

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As the Magistrate Judge noted, this Court is bound by the state court’s
interpretation of state law.
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B. Objection to Magistrate Judge’s conclusion that the State Court’s decision is
entitled to double deference.
Petitioner argues that his claims before this Court should receive de novo review
because the state appellate court affirmed his conviction on a theory of culpability that the
State did not present to the jury. Specifically, Petitioner claims that the state appellate court
violated his due process rights when it upheld his felony murder conviction after concluding
that the “jury didn’t have to believe that Robinson’s shot actually killed Bubbles to convict
him of the felony murder count.” (Doc. 14, at 10) (quoting Ohio v. Robinson, Cuyahoga App.
No. 99290, 2013-Ohio-4375, ¶ 57). As discussed in the next section, the Court agrees with the
Magistrate Judge that the state appellate court did not violate his due process rights in
upholding his conviction; thus, the Magistrate Judge did not err in holding that Petitioner’s
claims were subject to AEDPA deference.
C. Objection to Magistrate Judge’s conclusion that the Eighth District’s reliance on a
prosecution theory neither pleaded, nor argued, nor proved to the jury to uphold
his conviction did not constitute a violation of his rights under the due process
clause.
In Ground 3, Petitioner claims that the state appellate court violated his due process
rights because it affirmed his felony murder conviction on the basis that (1) he committed
felonious assault and (2) his felonious assault proximately caused Bubbles’s death, even if it
was through crossfire. Petitioner argues that the State’s only theory at trial was that Petitioner
shot Bubbles and that the appellate court violated his rights by affirming on a crossfire theory,
which the State did not present to the jury.
As the Magistrate Judge correctly noted, the appellate court only addressed the
crossfire theory as an alternative argument after determining that the evidence presented at

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trial was sufficient for the jury to conclude that Petitioner shot Bubbles. (R&R at 31). Only
after first concluding that the eyewitness testimony was sufficient for the jury to conclude that
“Robinson shot and killed Bubbles” did the appellate court then turn to the alternative
crossfire theory: “Moreover, we find [Petitioner’s] challenge to his murder conviction flawed
for another reason.” State v. Robinson, 2013 WL 5517978, at **9-10 (Ohio Ct. App. 8th Dist.
Oct. 3, 2013). In his Objections, Petitioner essentially ignores the appellate court’s primary
rationale for upholding his conviction, stating:
It is clear from the record that the evidence did not prove that Robert Robinson
shot Delaney....[G]iven that there was no evidence that Robinson actually shot
Delaney, and in fact, credible evidence demonstrating that he could not have
shot her, the Eighth District resorted to a cross-fire theory and upheld the
conviction.
(Doc. 14, at 10-11).
The problem with Petitioner’s argument is that his challenge to the appellate court’s
primary rationale is an argument about the manifest weight of the evidence. Indeed, the
appellate court recognized this in rejecting Petitioner’s argument that the evidence could only
support the conclusion that he did not shoot Bubbles:
Robinson’s manifest weight of the evidence challenge is premised on the
notion that Dr. McCollom’s testimony regarding the existence of stippling and
the corresponding distance of the shooter was infallible. The jury, however,
was free to disbelieve Dr. McCollom’s testimony. Further, Robinson’s
argument ignores the very function of the jury, namely, to resolve conflicts in
the evidence. The jury heard from several witnesses whose testimony could
reasonably be construed to mean one thing: Robinson shot and killed Bubbles.
It is well settled that the credibility of the witnesses and the weight to be given
to their testimony are matters for the trier of facts primarily to resolve.
Robinson, 2013 WL 5517978, at 9. As Respondent argued in his return of writ–and Petitioner
did not dispute–a manifest weight argument is not cognizable in a habeas proceeding because

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it is purely a matter of state law. See Estelle v. Williams, 502 U.S. 62, 67 (1976) (“federal
habeas corpus relief does not lie for errors of state law”); Ross v. Pineda, 2011 WL 1337102,
at *3 (S. D. Ohio April 7, 2011) (“Whether a conviction is against the manifest weight of the
evidence is purely a question of Ohio law.”); see also Tibbs v. Florida, 457 U.S. 31, 47
(1982); State v. Thompkins, 78 Ohio St. 3d 380, 389 (1997) (finding that sufficiency of the
evidence and weight of the evidence are not synonymous legal concepts). Thus, because the
state appellate court did not deprive Petitioner of any constitutional right by affirming his
conviction over his manifest weight of the evidence challenge, Ground 3 is dismissed.
D. Objection to Magistrate Judge’s refusal to address Petitioner’s argument that
his ineffective assistance of counsel claim is entitled to de novo review.
As the Magistrate Judge noted, Petitioner’s final two grounds are interrelated. In
Ground 4, he claims that the prosecutor engaged in misconduct during closing argument, and
in Ground 5, he claims that trial counsel was ineffective for failing to object to the
prosecutor’s improper statements. The Magistrate Judge found–and Petitioner does not
dispute–that the prosecutorial misconduct claim is procedurally defaulted. Petitioner argues,
however, that counsel’s ineffective assistance in failing to object constitutes cause and
prejudice to excuse the default. He further argues that his ineffective assistance of counsel
claim is entitled to de novo review because the state appellate court misapplied the Strickland
prejudice standard in addressing this claim. In his Objections, Petitioner asserts that the
Magistrate Judge erroneously applied AEDPA’s deferential standard to the claim.
Petitioner’s objection is not well-taken because the Magistrate Judge clearly applied

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de novo review to the ineffective assistance claim.4 In fact, the record contains multiple places
where he specifically stated that he was reviewing the claim de novo:
“An argument that ineffective assistance of counsel should excuse a procedural
default is treated differently than a free-standing claim of ineffective assistance
of counsel. The latter must meet the higher AEDPA standard of review, while
the former need not.” Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2000).
Thus, review of this claim is de novo. Id.; Hale v. Burt, 645 F. App’x 409, 416
(6th Cir. 2016). To establish ineffective assistance of trial counsel, Petitioner
must show: 1) his counsel’s performance “fell below an objective standard of
reasonableness”, and 2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687–688 (1984)....
Even if the court here assumes arguendo the prosecutor’s remarks were
improper, the pertinent prejudice question is whether Petitioner can establish
that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
(R&R at 37-38) (emphasis added). After analyzing the record, he stated: “the undersigned
cannot conclude that there is a ‘reasonable probability’ that, but for the failure to object, ‘the
result of the proceeding would have been different.’” (Id. at 39). He then noted that
“although review here is de novo in determining cause and prejudice,” the state appellate
court “came to a similar conclusion.” (Id.) (emphasis added). In addressing Petitioner’s freestanding ineffective assistance claim, the Magistrate Judge stated: “Because Petitioner cannot
show ineffective assistance of counsel satisfies the prejudice necessary to overcome the
procedural default for his prosecutorial misconduct claim on de novo review, his ineffective
assistance of counsel claim on the same basis also fails.” (Id. at 40) (emphasis added). Finally,
he explained that he did not need to reach Petitioner’s argument that the state court

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In doing so, the Magistrate Judge applied the correct prejudice standard under
Strickland.
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misapplied the Strickland standard because he had already found, under a de novo review,
that ineffective assistance of counsel could not overcome the procedural default on the
prosecutorial misconduct claim. (Id. at 40, n. 11).
E. Objection to Magistrate’s rejection of Petitioner’s IAC and Prosecutorial
Misconduct Claims.
Finally, Petitioner objects to the Magistrate Judge’s conclusion that counsel’s failure
to object to the prosecutor’s statements during closing argument did not constitute ineffective
assistance of counsel. According to Petitioner, “the most important piece of exculpatory
evidence in this case” was the medical examiner’s (Dr. McCollom) testimony that Bubbles
was shot in the face at close range, which he believes makes it impossible for him to have
been her shooter. (See Doc. 11, at 26). He argues that the prosecutor improperly attacked this
evidence during the State’s final summation by arguing “that Dr. McCollulm’s testimony was
somehow invalid because it was really the ballistics expert who was qualified to offer an
opinion on this subject.” In his Objections, he highlights the following statements by the
prosecutor:
But right after [Dr. McCollom], we had a ballistics expert up here and
testifying, right. A guy, Mr. Schlachet says, is a terrific expert, well qualified.
Well, ask him the question, right? Ask him the question about the distance of
this gunshot residue. Why don’t you?
(Tr. 1052-53)
[The defense] want to wrap their arms around [Dr. McCollom] because she
said this bit about fluid distance of gunshot residue and get the ballistics expert
up here, ask Andy [Chappell] some questions. You know, ask Andy some
questions about that . . . .
(Tr. 1064). Petitioner contends that the prosecutor’s statements “insinuated, without
evidentiary support, that: 1) Dr. McCollom was not qualified to offer her scientific opinion; 2)
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Chappell (the firearms’ expert) would have been qualified to offer an opinion on the distance
between the firearm and a shooting victim; and, most critically, 3) Chappell’s testimony
would have contradicted Dr. McCollom’s testimony.” (Doc. 14, at 15).
In concluding that trial counsel’s failure to object to the prosecutor’s statements
during closing argument did not meet the Strickland prejudice prong, the Magistrate Judge
noted that the comments Petitioner objects to take up less than two transcript pages of the
state’s twenty-page closing argument, the trial court instructed the jury before and after
closing arguments that such arguments are not evidence, and the prosecutor himself reminded
the jury that his argument was not evidence. The Magistrate Judge also rejected the
Petitioner’s argument that the closing argument was the only reason the jury had for
disbelieving Dr. McCollom because the jury had the testimony of several eyewitnesses who
testified that Bubbles did not fall until after Petitioner shot and that no one else was shooting
at the time of her death. Based on these facts, he could not conclude that there was a
“reasonable probability” that, but for counsel’s failure to object, “the result of the proceeding
would have been different.” (R&R at 39) (quoting Strickland, 466 U.S. at 694).
This Court finds the Magistrate Judge’s analysis persuasive and adopts it herein. The
trial court instructed the jury at the beginning of the trial and immediately before closing
arguments that “[o]pening statements and closing arguments do not constitute evidence in this
case and they shall not be considered as evidence by the jury.” (Tr.at 208, 962). It further
instructed the jury at the end of the trial that its own “recollection controls....If any reference
by the Court or counsel to matters of evidence does not coincide with your own recollection,
it’s your own recollection that should control your deliberations, okay.” (Id. at 1069). Jurors

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are presumed to follow their instructions. United States v. Harvey, 653 F.3d 388, 396 (6th Cir.
2011) (citing United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001)). Aside from
arguing that “the jury would have had no basis to disregard” Dr. McCollom’s testimony
absent the prosecutor’s statements, Petitioner offers nothing to rebut the presumption that the
jury followed the instruction not to take closing arguments as evidence. (Doc. 14, at 16). But,
as discussed above, the jury had before it sufficient evidence from eyewitness testimony to
conclude that Petitioner shot Bubbles–this evidence was a basis to reject Dr. McCollom’s
testimony. Moreover, the prosecutor’s statement did not affirmatively misstate any evidence
in the record; rather, he posed a rhetorical question, presumably with the expectation that the
jury would draw an inference favorable to the State as to the answer. The jury would know
that he was asking them to draw an inference and that his question was not factual evidence.
See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000) (“The jury would know that
[prosecutor’s] comments [speculating about the evidence] were inferences, and they would
not be confused into believing that these comments were factual evidence.”). Given that the
prosecutor’s comments were but a few lines in an otherwise lengthy trial (the trial record is
over 1000 pages long), the Court agrees with the Magistrate Judge that, had trial counsel
objected to the prosecutor’s comments, there is not a reasonable probability that the result of
the proceeding would have been different.
For these reasons, Ground 5 (Petitioner’s independent ineffective assistance of counsel
claim) is dismissed. Moreover, because Petitioner cannot overcome his procedural default,
Ground 4 (Petitioner’s prosecutorial misconduct claim) is dismissed.

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Conclusion
For the reasons stated above and in the Report and Recommendation, the Report and
Recommendation of Magistrate Judge Knepp recommending dismissal of Petitioner’s
pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is
ACCEPTED. Magistrate Judge Knepp correctly determined that Petitioner is not entitled to a
writ of habeas corpus. Further, for the reasons stated herein and in the Report and
Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from
this decision could not be taken in good faith, and that there is no basis upon which to issue a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 1/26/17

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