Fields v. Lazaroff
Filing
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Memorandum Opinion adopting the report and recommendation of the magistrate judge. (Doc. No. 9 .) Because Fields's sole ground for relief is procedurally barred, the petition for a writ of habeas corpus (Doc. No. 1 ) is dismissed. Furth er, for the reasons set forth above, the Court certifies, pursuant to 28 U.S.C. Section 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.C.S. Section 2253; Fed. R. App. P. 22(b). Judge Sara Lioi on 1/22/2019. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTONIO FIELDS,
PETITIONER,
vs.
ALAN LAZAROFF, Warden,
RESPONDENT.
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CASE NO. 1:15CV2644
JUDGE SARA LIOI
MEMORANDUM OPINION
Before the Court is the Report and Recommendation of Magistrate Judge Kathleen B.
Burke (Doc. No. 9 [“R&R”]) recommending dismissal of this petition for writ of habeas corpus
filed under 28 U.S.C. § 2254. Pro se petitioner Antonio Fields (“Fields”) filed objections to the
R&R. (Doc. No. 11 [“Obj.”].)
In accordance with 28 U.S.C. § 636(b)(1) and United States v. Curtis, 237 F.3d 598, 60203 (6th Cir. 2001), this Court has made a de novo determination of the magistrate judge’s R&R.
For the reasons stated below, the Court overrules Fields’s objections, adopts the R&R in its
entirety, and dismisses Fields’s petition for a writ of habeas corpus.
I.
BACKGROUND
Fields filed his habeas petition to challenge his 2013 conviction for aggravated burglary,
in connection with a 2010 encounter at the home of Fields’s girlfriend that turned into a violent
domestic disturbance requiring the intervention of law enforcement. In addition to aggravated
burglary, a jury convicted Fields of multiple counts of kidnapping and aggravated robbery, with
repeat violent offender specifications, along with one count each of assault and obstructing
official business. In her R&R, the magistrate judge summarized the factual predicate for these
offenses, as determined by the state appellate court, as well as Fields’s efforts to appeal his
convictions in the state courts. Fields has demonstrated no error in this summary and, as such,
the Court will not reiterate those background facts herein. The magistrate judge further set forth
the proper legal standard for habeas review, including the procedural requirements a petitioner
must meet in order to have his claims reviewed in federal court. Fields takes no issue with these
portions of the R&R, and the Court will accept them, as if rewritten herein.
In his federal habeas petition, Fields raises the solitary ground for relief that his appellate
counsel was ineffective for failing to challenge the sufficiency of the evidence supporting his
conviction for aggravated burglary. (Doc. No. 1 (Petition) at 17.1) As a basis for this ground,
Fields offers the following:
The state prosecutor failed as a matter of law, to prove beyond a reasonable doubt
that the [p]etitioner committed the crime of aggravated burglary per [Ohio]
Revised Code [§] 2911.11(A). The record in [p]etitioner’s case reflects, that
[p]etitioner did not trespass into the residence by force, stealth, or deception with
purpose to commit any criminal offense. The record supports the fact the
[p]etitioner is always welcomed to the residence, and is even free to come and go
as he pleases. The incidents which occurred in the residence i.e. kidnappings,
assault, etc. is merely incidental; resulting in the escalating argument between
[Fields’s girlfriend] and [p]etitioner.
(Id., all punctuation in original.)
The magistrate judge found this ground to be procedural defaulted “because, although
[Fields] raised his claim of ineffective assistance of appellate counsel in his Rule 26(B)
Application [to Reopen Direct Appeal], he never appealed the Ohio Court of Appeal’s denial of
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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his Application to the Ohio Supreme Court[,]”2 and the time for filing such an appeal has passed.
(R&R at 258.) Moreover, the magistrate judge concluded that Fields failed to overcome this
procedural bar to federal habeas review. While acknowledging the default, Fields argued that the
default should be excused because he was prevented from appealing due to a mailing error that
directed a copy of the state appellate court’s order to his appellate attorney even though Fields
was proceeding pro se. Without adequate notice of the ruling, Fields claimed that he was unable
to file a timely appeal with the Ohio Supreme Court. The magistrate judge found that, even if
such an explanation adequately demonstrated “cause” for the default, Fields’s argument still
failed because he was unable to also demonstrate “actual prejudice” resulting from the alleged
violation of federal law. (R&R at 259.) Fields challenges this determination.
II.
LAW AND DISCUSSION
It is well settled that a state prisoner cannot receive federal habeas review of a claim that
has been procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000)
(When a petitioner’s claim is denied in state court “due to a state procedural rule that prevents
the state courts from reaching the merits of the petitioner’s claim, that claim is procedurally
defaulted and may not be considered by the federal court on habeas review.”) Where a
petitioner’s claim is procedurally defaulted, he may obtain habeas review of the claim “only by
showing that there was cause for the default and prejudice resulting from the default, or that a
miscarriage of justice will result from enforcing the procedural default in the petitioner’s case.”
Id.
As the magistrate judge observed, the state appellate court denied the application, “stating that Fields failed to
show that his appellate counsel was ineffective for not raising a sufficiency argument as to his aggravated burglary
conviction and failing to show that there was a reasonable probability that such an argument would have been
successful.” (R&R at 254.)
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Again, Fields does not take issue with the determination in the R&R that his claim is
procedurally defaulted because he failed to file a timely appeal of the state appellate court’s
denial of his application. Rather, he objects to the conclusion in the R&R that he has failed to
show actual prejudice resulting from a violation of federal law. (Obj. at 265.) According to
Fields, “the actual prejudice is a lack of effective assistance of counsel, and denial of due
process.”3 (Id. at 268.) He argues that it was his counsel’s duty to “highlight the most meritorious
issues [on appeal] and eliminate the sure losers.” (Id.) By failing to raise the sufficiency of the
evidence supporting the aggravated burglary conviction, Fields maintains that his counsel denied
him the right to be heard on a “‘dead bang’ winner” of an argument on appeal. (Id. at 265-69.)
Fields’s argument is fatally flawed because he cannot meet the standard for
demonstrating ineffective assistance of counsel. Under that standard, a petitioner must
demonstrate that counsel’s performance was deficient, and that this deficient performance caused
prejudice to the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). To demonstrate that counsel’s performance was deficient, a petitioner must
show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the [petitioner] by the Sixth Amendment.” Id. To establish that the deficient
performance caused prejudice to the petitioner, he must show that the counsel’s errors were so
serious that the petitioner was deprived a fair trial. Id. Essentially, a petitioner must establish
“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.
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Fields also complains that he was not afforded an opportunity to demonstrate actual prejudice by way of a traverse
because respondent failed to serve him with a copy of the return of writ. (Obj. at 267-68.) It is unclear from the
docket whether respondent properly served Fields with a copy of the return. However, Fields did receive a copy of
the R&R and was given a full opportunity to attempt to demonstrate actual prejudice in his objections.
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However, a petitioner’s disagreements with the strategies or tactics of counsel are not
enough to support an ineffective assistance of counsel claim. See id. at 689. “The Supreme Court
has made clear that a criminal defendant has no constitutional right to demand that appellate
counsel raise every possible colorable issue on appeal.” Lee v. Haas, 197 F. Supp. 3d 960, 973
(E.D. Mich. 2016) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987
(1983)). “[W]innowing out weaker arguments on appeal and focusing on those most likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy,” Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986), and a
failure to raise a claim will not amount to ineffectiveness so long as counsel “exercise[d]
reasonable professional judgment.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Further,
even if the rejected claim is non-frivolous, the required showing of prejudice cannot be made if
the claim lacks merit. Burton v. Renico, 391 F.3d 764, 774 (6th Cir. 2005).
In his objections, Fields argues, once again, that state appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence supporting his aggravated burglary
conviction because the evidence at trial showed that Fields had permission to enter his
girlfriend’s home. (Obj. at 270 [“By having the high privilege of going in and out of the
residence whenever he pleases, Fields was not a trespasser, [and] the state has failed to prove
these essential elements of the offense.”].) He claims that, once he was lawfully inside, the
potential for an aggravated burglary offense evaporated, and, when his interactions with his
girlfriend eventually turned violent, he committed the separate offense of assault. (Id. at 271.)
In rejecting this same argument, the state appellate court aptly observed that Fields’s
view of the law and facts failed to take into consideration the fact that a criminal trespass,
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necessary for an aggravated burglary conviction, occurs when someone, without privilege to do
so, “knowingly enter[s] or remain[s]” on the premises. (Doc. No. 8-1 (Journal Entry) at 225.)
See Ohio Rev. Code § 2911.21(A). Even if an individual enters a structure with the privilege to
do so, his presence on the premises may turn into a criminal trespass if he remains after being
asked to leave. See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000) (holding that “for
purposes of defining the offense of aggravated burglary pursuant to R.C. [§] 2911.11, a
defendant may form the purpose to commit a criminal offense at any point during the course of a
trespass”) (emphasis added); see also State v. Steffen, 509 N.E.2d 383, 389 (Ohio 1987) (finding
that “even assuming lawful initial entry, the jury was justified in inferring from the evidence that
appellant’s privilege to remain in [the victim’s parents’] home terminated the moment he
commenced his assault on her”).
Here, the state appellate court found that Fields’s girlfriend and her sister each asked
Fields to leave after his behavior turned violent, but Fields refused to leave. State v. Fields, No.
13CA010453, 2014 WL 6865582, at *5 (Ohio Ct. App. Dec. 8, 2014). The Court is bound by
this factual determination, and such a finding would support a jury verdict that Fields committed
a criminal trespass when he assaulted his girlfriend and did not leave.4 See, e.g., State v. Murray,
No. 2003-L-045, 2005 WL 820540, at *8 (Ohio Ct. App. Apr. 8, 2005) (In affirming a
conviction for aggravated burglary, the court noted that “even if appellant had valid permission
to enter, such permission was implicitly revoked upon his act of violence against the victim.”)
Because Fields’s argument relative to Ohio criminal trespass law is without any merit, he cannot
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A federal habeas court is bound by factual determinations by the state appellate unless the petitioner can
demonstrate by clear and convincing evidence that the state court’s findings were incorrect. See 28 U.S.C. §
2254(e)(1); Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008). Fields has not even attempted to meet this
demanding standard, and the state appellate court’s findings are presumed correct.
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establish either prong of the Strickland standard from his counsel’s failure to raise this frivolous
argument. See Goff v. Bagley, 601 F.3d 445, 469 (6th Cir. 2010) (appellate counsel was not
ineffective for failing to raise a patently frivolous argument).
Of course, even if Fields could meet the Strickland standard for ineffectiveness, it still
would not be sufficient to overcome the procedural bar to federal review because “actual
prejudice to excuse a habeas petitioner’s procedural default requires more than the prejudice
prong under Strickland.” Jones v. Bell, 801 F.3d 556, 563 (6th Cir. 2015). “In fact, [the court]
do[es] not presume actual prejudice even when the counsel’s error resulted in Strickland
prejudice.” Id. Instead, to satisfy this burden, a habeas petition must demonstrate with “a
reasonable probability that, but for his counsel’s unreasonable failure to raise this issue on
appeal, he would have prevailed.” Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir. 2013)
(quotation marks and citations omitted). Furthermore, a petitioner “must shoulder the burden of
showing, not merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed.
2d 816 (1982). “The ‘most important aspect to this inquiry is the strength of the case against the
defendant” and whether a trial without errors would still have resulted in conviction.’” Jones,
801 F.3d at 563 (quoting Ambrose v. Booker, 684 F.3d 638, 652 (6th Cir. 2012)).
Fields’s objection does not demonstrate that prejudice occurred to the point that his entire
trial was affected and that he experienced actual and substantial disadvantage. Indeed, his only
argument relative to actual prejudice rests on his mistaken belief that appellate counsel was
ineffective for failing to raise a meritless argument relative to the elements of aggravated
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burglary. Fields has also failed to demonstrate that an alleged constitutional error probably
resulted in the conviction of one who is actually innocent of the underlying offense. Dretke v.
Haley, 541 U.S. 386, 388, 124 S. Ct. 1847, 158 L. Ed. 2d 659 (2004); see Hodges v. Colson, 727
F.3d 517, 530 (6th Cir. 2013) (discussing “miscarriage of justice” exception). “‘Actual
innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). Fields makes no such showing here,
and, in fact, admits that once inside his girlfriend’s residence, he assaulted her and was asked to
leave. (Obj. at 271.) Therefore, the default is not excused.
III.
CONCLUSION
Because Fields’s sole ground for relief is procedurally barred, the petition for a writ of
habeas corpus (Doc. No. 1) is DISMISSED. Further, for the reasons set forth above, 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.C.S. § 2253; Fed. R. App. P. 22(b).
IT IS SO ORDERED.
Dated: January 22, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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