Anaya v. Smith

Filing 10

Memorandum Opinion: To the extent Doc. No. 9 can even be construed as "objections," they are overruled. The Court accepts the well-reasoned R&R (Doc. No. 8 ), the petition for writ of habeas corpus is denied, and the case is dismi ssed. Further, the Court certifies 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. Section 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 1/28/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANNY ANAYA,
PETITIONER,
vs.
KEITH SMITH, Warden,
RESPONDENT.

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CASE NO. 3:11CV779
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate
Judge Kathleen B. Burke recommending denial of this petition for writ of habeas corpus filed
under 28 U.S.C. § 2254. (Doc. No. 8.)1 Petitioner Danny Anaya (“petitioner” or “Anaya”) filed
objections. (Doc. No. 9.) Respondent filed neither his own objections nor any response to
petitioner’s objections. For the reasons discussed below, the objections are overruled, the R&R is
accepted, and the petition for writ of habeas corpus is denied and dismissed.
DISCUSSION
A.

Background2
Petitioner Anaya was indicted on one count of aggravated murder relating to the

death of his wife, Rhonda, who had filed for divorce. He was evaluated and found competent to
stand trial. At his arraignment, Anaya entered pleas of not guilty and not guilty by reason of
insanity (“NGRI”). The court granted him one week to file a written NGRI plea; however, after
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Petitioner Anaya is represented by counsel.

All the factual details relating to the victim’s death were reviewed by the Ohio court of appeals in a decision issued
on December 10, 2010. (See Return of Writ, Doc. No. 6-28 at 2116-21.) These facts are accepted as true by the
Court and need not be repeated in full herein.

his counsel was granted leave to withdraw and new counsel were appointed, no NGRI plea was
ever filed.
During the jury trial, Anaya testified that he killed his wife but had not planned or
intended to kill her. After the close of the evidence, the judge instructed the jury regarding
aggravated murder, murder, and voluntary manslaughter. Anaya was found guilty of murder and
was sentenced to an indefinite term of fifteen years to life in prison.
Represented by new counsel, Anaya timely appealed3 and, on April 18, 2008, his
single assignment of error was overruled. (Doc. No. 6-14.) He failed to timely appeal to the Ohio
Supreme Court, but, on his pro se motion, the court allowed leave to file a delayed appeal. 4 On
February 18, 2009, the Ohio Supreme Court dismissed the appeal as not involving any
substantial constitutional question. (Doc. No. 6-19.)
In a post-conviction proceeding filed on December 14, 2009, where he was
represented by counsel, Anaya asserted that his sentencing entry was void because it had not set
forth the basis for conviction as required by Ohio law. (Doc. No. 6-20.) After briefing, the trial
court issued a nunc pro tunc order to comply with Ohio Criminal Rule 32(C). (Doc. No. 6-22.)

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Anaya raised a single assignment of error:
1. Danny was denied effective assistance of counsel in violation of his rights guaranteed under
Article I, Section 10 of the Ohio Constitution and the Sixth Amendment of the United States
Constitution.
A. Counsel failed to adequately delineate the case for voluntary manslaughter.
B. Counsel failed to find an independent forensic psychiatric expert to
determine Danny’s competency or sanity at the time of the offense.
C. Counsel was ineffective for failing to plead not guilty by reason of insanity.

(Doc. No. 6-12 at 1869.)
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Proceeding pro se, Anaya raised a single proposition of law that was identical to the single three-part assignment of
error he had raised on direct appeal. (See Doc. No. 6-17.)

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Anaya, through counsel, then filed another direct appeal.5 Although the State
challenged his right to a second appeal, the court of appeals considered the appeal on the merits
and, on December 10, 2010, overruled all the assignments of error and affirmed the trial court.
(Doc. No. 6-28.)
Anaya, through counsel, filed a timely appeal to the Ohio Supreme Court.6 On
March 16, 2011, the Ohio Supreme Court dismissed the appeal as not involving any substantial
constitutional question. (Doc. No. 6-32.)
While this second appeal was pending in the state courts, on April 13, 2010,
Anaya, through counsel, filed a petition for writ of habeas corpus in this court, where it was

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Anaya raised six assignments of error:
I. Mr. Anaya was denied his right under the Ohio Constitution and under the United States
Constitution to effective assistance of counsel, in that counsel failed to adequately present to the
jury the case for voluntary manslaughter.
II. Mr. Anaya was denied his right under the Ohio Constitution and under the United States
Constitution to effective assistance of counsel, in that counsel failed to find an independent
forensic psychiatric expert to determine Danny’s competency or sanity at the time of the offense.
III. Mr. Anaya was denied his right under the Ohio Constitution and under the United States
Constitution to effective assistance of counsel, in that counsel refused to enter a written plea of not
guilty by reason of insanity as demanded by Mr. Anaya.
IV. Mr. Anaya was denied his right under the Ohio Constitution and under the United States
Constitution to effective assistance of counsel, in that counsel failed to handle the self-defense
affirmative defense in a reasonable manner, failed to properly investigate the DNA evidence,
failed to request 16(B)(l)(g) discovery, and allowed a misleading instruction to the jury as to
voluntary manslaughter.
V. The trial court erred in its jury instruction as to voluntary manslaughter, by implying that the
conviction must be for murder if the mens rea was purposeful and that the inferior degree murder
offense of voluntary manslaughter applied only if the mens rea was knowingly [sic] and not
purposeful.
VI. Mr. Anaya was denied his right under the Ohio Constitution and under the United States
Constitution to counsel of his choice, in that the trial court allowed the State of Ohio to unlawfully
and without due process freeze the assets of Mr. Anaya, such that he could not retain counsel of
his choice.

(Doc. No. 6-25.)
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Anaya raised as propositions of the law the same six issues he had raised as assignments of error in his second
appeal. (Doc. No. 6-30.)

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assigned to Judge Dan Aaron Polster. On April 21, 2011, Anaya filed an unopposed motion to
voluntarily dismiss the petition, and the motion was granted on April 27, 2011. (Doc. No. 6-36.)
On April 21, 2011, the same day he had filed his motion to dismiss his first
petition, Anaya, through counsel, filed the instant petition, which was assigned to the
undersigned judge. In this petition, he raises the following grounds for relief:
GROUND ONE: Mr. Anaya was denied his right under the United States
Constitution to Effective Assistance of Counsel.
Supporting Facts: Counsel failed to adequately present to the jury the case for
voluntary manslaughter. Counsel failed to find an independent forensic
psychiatric expert to determine Danny’s competency or sanity at the time of the
offense. Counsel refused to enter a written plea of not guilty by reason of insanity
as demanded by Mr. Anaya. Counsel failed to handle the self-defense affirmative
defense in a reasonable manner, failed to properly investigate the DNA evidence,
failed to request 16(B)(1)(g) discovery, and allowed a misleading instruction to
the jury as to voluntary manslaughter.
GROUND TWO: The Trial Court erred in its jury instruction as to voluntary
manslaughter, by implying that the conviction must be for murder if the mens rea
was purposeful and that the inferior degree murder offense of voluntary
manslaughter applied only if the mens rea was knowingly [sic] and not
purposeful.
Supporting Facts: The Trial Court erred in its jury instruction as to voluntary
manslaughter, by implying that the conviction must be for murder if the mens rea
was purposeful and that the inferior degree murder offense of voluntary
manslaughter applied only if the mens rea was knowingly and not purposeful.
GROUND THREE: Mr. Anaya was denied his right under the Ohio Constitution
and under the United States Constitution to Counsel of his choice, in that the Trial
Court allowed the State of Ohio to unlawfully and without due process freeze the
assets of Mr. Anaya, such that he could not retain counsel of his choice.
Supporting Facts: Law enforcement seized $1775 in cash & gold rings during
the search, which could have been used by Anaya to retain counsel of his choice.
These items were of no evidentiary value; of 131 exhibits introduced at trial, none
of these items were introduced as evidence. Anaya filed a Defendant’s Motion to
Release Certain Exhibits Being Held as Evidence, seeking release of this
property, arguing that “the items requested have no evidentiary value to the State
of Ohio.” The Trial Court denied this request for no reason. No finding of
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probable cause to believe that this evidence was subject to forfeiture, let alone had
any evidentiary value, was provided. This is a simple grabbing by the government
of $1775.10 in case, and three gold rings as assets, for no reason. This resulted in
creating indigency and in depriving Anaya of counsel of his choice.
(Doc. No. 1.)
B.

Standard of Review
Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at
*1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is
dispositive of a claim or defense of a party shall be subject to de novo review by the district court
in light of specific objections filed by any party.”). “An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). See also Fed. R. Civ. P. 72(b)(3) (“[t]he district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to”); LR 72.3(b) (any objecting party shall file “written objections which shall
specifically identify the portions of the proposed findings, recommendations, or report to which
objection is made and the basis for such objections”). After review, the district judge “may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In conducting its de novo review in a habeas context, this Court must be mindful
of AEDPA, which provides:
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
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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.
28 U.S.C. § 2254(d). “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas
court may grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
In addition, “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant [for a writ of habeas corpus] shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).

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C.

The R&R and the “Objections”
At 8:08 AM on February 6, 2013, in a thoroughly-written and well-reasoned 36-

page R&R (Doc. No. 8) the magistrate judge concluded that the second ground for relief is
procedurally defaulted and that grounds one and three must be rejected on the merits.
Four hours later, at 12:21 PM on February 6, 2013, petitioner, through counsel,
filed “objections.” (Doc. No. 9.) With the exception of the argument for ground two, which
contains some limited original material relating to the concept of procedural default,7 the
remainder of the arguments set forth in the objections are verbatim to those made in the traverse.
(Doc. No. 7.)
For ground one, petitioner asserts:
Magistrate Judge Burke recommends that Ground One be denied.
As to Mr. Anaya’s claim that counsel was ineffective in presenting the
case for voluntary manslaughter to the jury, Magistrate Judge Burke deemed the
State appellate assessment of trial counsel’s performance to not be objectively
unreasonable, such that deference was due the State decision, a very deferential
view that suggests discomfort with the conclusions but insufficient discomfort to
suggest habeas relief. As to Anaya’s second issue--failure to retain an independent
psychiatric expert--Magistrate Judge Burke deems that decision a “reasonable
strategic choice.” As to the third issue of failing to file an NGRI plea, Magistrate
Judge Burke viewed this as a strategic choice and as such concluded that the
decision was reasonable, or at least not unreasonable. As to the fourth issue raised
by Anaya, namely failure to handle the affirmative defense of self-defense
reasonably, Magistrate Judge Burke found the State assessment reasonable. As to
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The R&R concluded that ground two was procedurally defaulted because Anaya had not contemporaneously
objected to the jury instruction on voluntary manslaughter (a state procedural rule), causing the state court of appeals
to review his challenge to the instruction only for plain error. The R&R correctly noted that the Sixth Circuit has
repeatedly held that a plain error review “constitutes enforcement of Ohio’s contemporaneous objection rule.” (Doc.
No. 8 at 3502, quoting Williams v. Bagley, 380 F.3d 932, 968-69 (6th Cir. 2004).) By way of objection, Anaya
argues that, although the state court “mention[ed] a ‘plain error’ analysis . . .” (Doc. No. 9 at 3527), it “did not ever
address the ‘plain error’ question[ ]” but, instead, “simply addressed the claimed error itself . . . .” (Id. at 3528.)
Anaya asks this Court to deem ground two not procedurally defaulted and to address the merits of the claim as set
forth in his traverse. (See Doc. No. 7.) Even if this Court were to conclude that ground two is not procedurally
defaulted, which it does not (for the reasons ably set forth in the R&R), the arguments in the traverse are based
entirely on state law, without reference to any constitutional violation. Even the arguments made by Anaya before
the Ohio Court of Appeals were not based on any federal constitutional claim. (See Doc. No. 6, beginning at 2049.)

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Anaya’s claim that the DNA evidence was not properly investigated, Magistrate
Judge Burke considered that the performance might have been poor but noted that
the additional evidence would have been cumulative and hence the performance
issues might have not been prejudicial. As to the issue of the failure to request
additional discovery, Magistrate Burke disagrees with Anaya’s proposed analysis.
As to the issue of the misleading jury instructions being enabled by trial counsel,
Magistrate Burke ultimately decided that there was no error because of the State
court decision that there was no error as a matter of State law, even if not
precisely stated as such.
Mr. Anaya, in short form, disagrees with the analysis. A habeas petition
asking a Strickland question necessarily invokes subjective interpretation, and this
analysis is contextual. No legal issues are disputed in most cases of this type.
Rather, simple disagreement as to the conclusions to be reached, namely whether
defense counsel was off his game “enough” and whether the mess of a trial
actually impacted the jury.
Admittedly, every defense attorney (and every prosecutor) could probably
find countless “errors” in every trial; the question is thus whether there were
enough errors to have constitutional significance and the severity of the errors.
Admittedly, as well, every decision by defense counsel and by a prosecutor has an
impact on a jury but a jury ultimat6ely [sic] considers a lot in rendering its
decision. Thus, the question is whether the case establishes a likelihood of
specific errors overwhelming the jury.
But, in that context, the analysis will always be subjective, even if the
standard is supposedly “objective,” as the standard is impossible to truly meet.
“Objective” is really a matter of degree. A weighing of the arguments. In these
Objections, Mr. Anaya disagrees with Magistrate Judge Burke’s weighing of the
issues, which is not surprising as Mr. Anaya has litigated this case with that
objection remaining firm for many years. He seeks herein review by this
Honorable Court with hope that his position will be deemed correct. Further
analysis, as shortened from the Traverse, follows.
(Doc. No. 9 at 3530-31.) Petitioner then proceeds with about 16½ pages of argument copied
verbatim from his traverse (but for, by the Court’s count, six isolated paragraphs that were
eliminated).
With respect to ground three, petitioner inserts an introductory paragraph
reviewing the R&R’s conclusion and then, as for ground one, copies his traverse verbatim.

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Under the standard of review cited above, petitioner’s filing (in which he
expresses general disagreement with the Magistrate Judge’s recommendations and then simply
restates what he presented previously) does not constitute actual “objections” requiring de novo
review. The Court has carefully examined the R&R and finds no error in its conclusions.
CONCLUSION
To the extent Doc. No. 9 can even be construed as “objections,” they are
overruled. The Court accepts the well-reasoned R&R, the petition for writ of habeas corpus is
denied, and the case is dismissed. Further, the Court certifies 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.

Dated: January 28, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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