Berry v. Jones
Filing
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Memorandum Opinion and Order Adopting Report and Recommendation 24 denying 1 Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 8/8/2016. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DONNY L. BERRY,
Petitioner,
Vs.
WARDEN, Southern Ohio
Correctional Facility,
Respondents.
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CASE NO. 3:14CV2518
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Donny L. Berry’s Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1).
For the following reasons, the Court accepts and adopts the Magistrate Judge’s Report
and Recommendation, and denies Petitioner’s Petition.
FACTS
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
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Petitioner was convicted in 2011 for Aggravated Murder; Involuntary
Manslaughter; Conspiracy to Traffic Cocaine and Marijuana; and Tampering With
Evidence, in the Defiance County (Ohio) Court of Common Pleas. Petitioner was
sentenced to an aggregate sentence of thirty years to life in prison on January 3, 2012.
Petitioner appealed his conviction and the Court of Appeals affirmed the judgment of the
trial court on June 10, 2013. Petitioner appealed to the Supreme Court of Ohio and the
Supreme Court declined jurisdiction on November 20, 2013.
On February 22, 2013, Petitioner filed a Post-Conviction Petition. The trial court
granted the state’s Motion to Dismiss on the basis of res judicata. Petitioner appealed
the trial court’s ruling. On February 3, 2104, the Court of Appeals affirmed the judgment
of the trial court. Petitioner appealed that judgment to the Supreme Court of Ohio. The
Supreme Court declined jurisdiction on June 11, 2014.
On August 20, 2013, while his direct Appeal and the appeal of his PostConviction Petition were pending, Petitioner filed a Rule 26(B) Application to Re-Open.
On November 25, 2013, the Court of Appeals denied the Application. Petitioner
appealed that denial to the Supreme Court of Ohio. The Supreme Court declined
jurisdiction on March 12, 2014. On November 14, 2014, Petitioner filed a Petition for
Writ of Habeas Corpus asserting eleven Grounds for Relief.
On December 8, 2014, the matter was referred to the Magistrate Judge for the
preparation of a Report and Recommendation. The Magistrate Judge issued his Report
and Recommendation on April 29, 2016. On May 12, 2016, Petitioner filed Objections
to Report and Recommendation of Magistrate Judge.
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STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28
U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.” Further, a federal court may
grant habeas relief if the state court arrives at a decision opposite to that reached by the
Supreme Court of the United States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of
whether or not a state court decision unreasonably applied clearly established federal
law is whether that state adjudication was “objectively unreasonable” and not merely
erroneous or incorrect. Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules
Governing §2254 states:
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. A judge of the
court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
ANALYSIS
In the Objections, Petitioner concedes that Grounds Three, Five, Seven, Eight,
Nine and Eleven have either been procedurally defaulted or cannot establish that the
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claim error was substantially injurious. Therefore, the Court will only address Grounds
One, Two, Four, Six and Ten.
GROUND ONE: The state court’s determination that appellant was not
denied the effective assistance of appellate counsel when counsel failed to
raise on appeal various meritorious issues violating appellant’s Sixth
Amendment right to the effective assistance of counsel as guaranteed
by the United States Constitution was contrary to or an unreasonable
application of federal law and Strickland v. Washington which resulted
in a decision that was based on an unreasonable determination of the
facts.
The Magistrate Judge correctly points out that in the habeas context, the Court
considers Petitioner’s ineffective assistance claim “within the more limited assessment
of whether the state court’s application of Strickland to the facts of this case was
objectively unreasonable.” Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir. 2000).
The Supreme Court has affirmed that this Court must approach the state court’s rulings
in a highly deferential manner. The Court stated in Harrington v. Richter that the
“pivotal question” of whether the state court’s application of Strickland standard was
unreasonable is different from simply deciding whether counsel’s performance fell below
Strickland’s standard. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 785
(2011).
Here, Petitioner challenges appellate counsel’s decision to omit the suppression
issue in the Appeal. In ruling on Petitioner’s Rule 26(B) Application, the Court of
Appeals found that appellate counsel could not be found ineffective for the decision to
not argue the trial court’s ruling on the Motion to Suppress. Richter instructed that the
petitioner must show that the ruling of the state court “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
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possibility for fairminded disagreement.” Richter, 562 U.S. at 103. The Magistrate
Judge concluded that Petitioner failed to show that the Court of Appeals’ ruling was
lacking in justification. The Court agrees that the Court of Appeals ruling that appellate
counsel could not be found ineffective in his tactical decision to forgo pursuing the
argument further on appeal was reasonable. Therefore, Ground One is without merit.
GROUND TWO: The trial court erred and abused its discretion in denying
appellant’s motion to dismiss and or suppress as statements were
obtained from appellant on April 15th, 2011, were obtained in violation
of appellant’s Fifth Amendment right against self-incrimination and is
contrary to or an unreasonable application [of] Miranda v. Arizona and
its [progeny].
In the Report and Recommendation, the Magistrate Judge determined that
Petitioner failed to raise the Miranda v. Arizona, 384 U.S. 436 (1966) violation on direct
appeal. Petitioner agrees, but argues that cause and prejudice have been established
for the failure. A habeas petitioner cannot obtain relief unless he has completely
exhausted his available state remedies. Coleman v. Thompson, 501 U.S. 722, 731
(1991); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (citing Coleman v. Mitchell,
244 F.3d 533, 538 (6th Cir.), cert. denied, 534 U.S. 977 (2001)).
“Cause” for a procedural default is ordinarily shown by “some objective factor
external to the defense” which impeded the petitioner's efforts to comply with the
state's procedural rule. Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986)). In his Objections, Petitioner claims that trial counsel’s
ineffectiveness to raise the issue and appellate counsel’s failure to raise the same claim
satisfies the “cause” requirement for excusing the procedural default.
Ineffective assistance of counsel can serve as cause to overcome procedural
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default. Smith v. Ohio, Dept. of Rehab. and Corr., 463 F.3d 426, 432 (6th Cir. 2006)
(citing Deitz v. Money, 391 F.3d 804, 809 (6th Cir. 2004)); Hinkle v. Randle, 271 F.3d
239, 244 (6th Cir. 2001). The Court agrees with the Magistrate Judge’s determination
that attorney error cannot serve as cause for procedural default unless the performance
of petitioner’s counsel was constitutionally ineffective under the standard established in
Strickland v. Washington, 466 U.S. 668 (1984). Petitioner has the burden to establish
the cause and prejudice necessary to overcome the default.
To make out an ineffective assistance of counsel claim, the petitioner must
demonstrate both inadequate performance by counsel and prejudice resulting from that
inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result.” Id. at 686. Indeed, under the test set
forth in Strickland, the defendant must establish deficient performance and prejudice:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction ... resulted
from a breakdown in the adversary process that renders the result unreliable.
Id. at 687.
In this case, the Magistrate Judge determined that Petitioner cannot show
ineffective assistance of his appellate counsel for failing to raise the issue on appeal
because the underlying claim lacks merit. Moore v. Mitchell, 708 F.3d 760, 777-778
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(6th Cir. 2013), cert. denied, 134 S.Ct. 693 (2013). The Court agrees that given the
Court of Appeals’ ruling that appellate counsel could not be found ineffective in his
tactical decision, the Court cannot find a reasonable probability that this issue would
have changed the result of the appeal had it been raised by appellate counsel.
Petitioner has failed to establish that appellate counsel was ineffective and cannot show
cause and prejudice to excuse the procedural default. Ground Two is procedurally
defaulted.
GROUND FOUR: The petitioner[’s] Fifth, Sixth, and Fourteenth
Amendment rights as guaranteed by the United States Constitution were
violated by the state agents knowingly circumventing petitioner[’s] right to
counsel and using illegally obtained incriminating statements against
petitioner at trial. This was contrary to [or] an unreasonable
application of Maine v. Moulton and its progeny.
The Magistrate Judge determined that Ground Four was not fairly presented to
the Ohio Court of Appeals and is now defaulted. In his Objections, Petitioner
specifically objects to the denial of the writ for Ground Four, but then does not challenge
the finding of the Magistrate Judge. Petitioner has failed to show cause and prejudice
for the default. The Court agrees with the Magistrate Judge that Ground Four is
defaulted.
GROUND SIX: Petitioner was deprived of his Sixth Amendment right to
effective assistance of counsel as guaranteed by the United States
Constitution due to appointed counsel[’s] failure to present exculpatory
evidence, impeach key witnesses, subpoena crucial witnesses, improper
inducement of a guilty plea, and [inadequate] representation before
during and after petitioner[’s] trial, filing frivolous motions which prejudiced
the petitioner[’s] right to a speedy trial, failure to object to the hearsay
testimony of Doug Engel, Dave Richardson, and Tobey Delaney, which
was contrary to clearly establish[ed] federal law and or an unreasonable
application of Strickland v. Washington.
The Magistrate Judge determined that the Court of Appeals applied the correct
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standard under Strickland for ineffective assistance of counsel. In reviewing the record,
it is clear that the Court of Appeals thoroughly examined Petitioner’s claim and found no
errors by counsel and no prejudice to Petitioner. Reviewing the Court of Appeals’ ruling
in accordance with the guidance set forth by the U.S. Supreme Court in Richter, the
Court finds that Petitioner has failed to demonstrate that the state court ruling lacked
justification or the application of Strickland was unreasonable. Therefore, Ground Six is
denied.
GROUND TEN: The state court’s determination in denying
defendant/appellant’[s] motion for acquittal and the evidence was
insufficient to support the jury’s conviction of defendant/appellant for the
crime of aggravated murder, in violation of [Ohio Rev. Code §] 2903.01,
Count I of the indictment depriving the petitioner of his Fifth and
Fourteenth Amendment right to due process of law.
Again, the Magistrate Judge determined that the Court of Appeals reviewed this
claim using the correct governing legal principle, to wit; the sufficiency of evidence
standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). A sufficiency of the
evidence claim is reviewed by determining whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319;
see also Cavazos v. Smith, 132 S.Ct. 2, 6 (2011) (per curiam); Bagby v. Sowders, 894
F.2d 792, 794 (6th Cir.) (en banc), cert. denied, 496 U.S. 929 (1990).
The Supreme Court recently emphasized that “it is the responsibility of the
jury — not the court — to decide what conclusions should be drawn from evidence
admitted at trial.” Cavazos, 132 S.Ct. at 4. The Court stressed that Jackson
“unambiguously instructs that a reviewing court ‘faced with a record of historical
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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.’” Cavazos,
132 S.Ct. at 6 (quoting Jackson, 443 U.S. at 326).
Here, the Court of Appeals reviewed all the testimony and provided a lengthy
recitation of the evidence. After reviewing the record, the Magistrate Judge determined
that the Court of Appeals’ decision that reasonable minds could find that each
element had been proven and that Petitioner had committed Aggravated Murder, was
reasonable. The Court agrees with the Magistrate Judge that the Court of Appeals
decision is a reasonable application of Jackson v. Virginia, and a rational trier of fact
could have agreed with the jury’s assessment of the evidence. Therefore, Ground Ten
is denied.
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation, and denies Petitioner’s Petition
Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody as time
barred.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
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Date:8/8/2016
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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