Williams v. Kelly
Filing
23
Memorandum Opinion and Order: This matter is before the Court upon the Report and Recommendation of Magistrate Judge McHargh (Doc. 20 ) recommending denial of Petitioner's pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S. C. § 2254. Both petitioner and respondent have filed objections to the Report and Recommendation. (Doc. Nos. 21 , 22 .) For the reasons stated below, the Report and Recommendation is ACCEPTED and the petition is dismissed. Judge Patricia A. Gaughan on 3/8/12. (LC,S) re 20
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CAMERON D. WILLIAMS,
Petitioner,
vs.
BENNIE KELLY, WARDEN,
Respondent.
)
)
)
)
)
)
)
)
)
CASE NO. 5: 10 CV 2029
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge McHargh (Doc. 20) recommending denial of Petitioner’s pending Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent have filed
objections to the Report and Recommendation. (Doc. Nos. 21, 22.) For the reasons stated
below, the Report and Recommendation is ACCEPTED and the petition is dismissed.1
Standard of Review
1
Petitioner filed a motion for leave to file a supplemental traverse in connection with
the briefing before the Magistrate Judge. (See Doc. 19.) Although the Magistrate Judge
inadvertently failed to rule on this motion, the Court has considered petitioner’s supplemental
brief.
1
Under Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636, the district court reviews de novo the
portion of a report of a magistrate judge to which a specific objection is made. The judge
may accept, reject, or modify any proposed finding or recommendation.
Background
Petitioner is incarcerated at the Trumbull County, Ohio Correctional Institution. The
background facts as to petitioner’s incarceration were set forth by the Ohio Court of Appeals
in State v. Williams, Case No. 24169, 2009 WL 1856743, at *5 (Ohio App. June 30, 2009).
Tamara Hughes was divorced from petitioner in 2005. Petitioner knew that Hughes “had onagain, off-again relationships with both [petitioner] and Polk.” Petitioner knew of Hughes’
on-going sexual relationship with Polk. Petitioner “and Polk had made verbal threats to one
another over the phone for 2 years, while Hughes maintained a relationship with both men.”
Petitioner was also “familiar with the car that Polk drove.”
Petitioner explained to police that he “had obtained a gun for the purpose of robbing
people to obtain “weed” and crack (cocaine).” On the morning of July 28, 2007, while high
from “smokin’ weed,” petitioner went to Hughes’ apartment to talk. He recognized Polk’s car
in front of Hughes’ apartment. Petitioner told police that he knew Polk was in the apartment
and went upstairs “praying” that Polk was not in bed with Hughes.
Petitioner entered the apartment to confront Polk and Hughes. He stated that he was
willing to go with any “flow” that happened. Petitioner entered Hughes’ bedroom and was
mad when he saw Polk in “his” bed. Petitioner stated that he leaned over the bed and placed
his the gun to Polk’s head and pulled the trigger. The gun “clicked” without firing, so
petitioner fired 3-4 more times. Petitioner stated that Hughes and Polk awakened after the
2
gun misfired, that he pushed Hughes out of the way, and that petitioner kept firing as Polk
rose from the bed and started to approach petitioner. Petitioner told police that he “snapped”
when he saw Polk’s car and “passed out” and “lost it” upon seeing Polk in bed with Hughes
and that he forced Hughes to get dressed and leave with him.
Hughes testified that she awakened on the morning of July 28, 2007, to find petitioner
leaning over her bed. She testified that she jumped up, grabbed petitioner’s arm, and saw his
gun. Hughes tried to calm petitioner, but petitioner responded, “No, bitch, I told you.”
Hughes testified that petitioner began firing the gun and that she saw Polk on the floor.
Petitioner told Hughes:
Come on, bitch, get your shit. You gonna get me out of here. You ain’t gonna
let them catch me. Get your shit on. Let’s go, or I’m gonna take your life too.
Now, look at that N*****. He dead. Dead. Now what?
Hughes testified that after petitioner took her from the apartment she speculated that Polk
might still be alive. Petitioner responded, “I want that N***** dead.” Hughes testified that
petitioner made her drive the two of them away and cautioned her to obey all traffic laws so
as not to call attention to them. Petitioner threatened to “blow [her] head off” if the police
approached their vehicle. State v. Williams, 2009 WL 1856743, at *6.
Petitioner was charged with three counts of aggravated murder with capital offense
specifications, kidnapping, and other crimes. The matter proceeded to trial. During the
course of the trial, petitioner requested jury instructions on the lesser included offenses of
murder and voluntary manslaughter. The trial court granted the request for a jury instruction
on the offense of murder in relation to the first charge of aggravated murder, denied the
request as to the other two charges of aggravated murder, and denied petitioner’s request for
3
an instruction on voluntary manslaughter. Following trial, the jury found petitioner guilty of
all charges except the jury found petitioner guilty in count one of the lesser included offense
of murder rather that aggravated murder. Thus, the jury found petitioner guilty of one count
of murder; two counts of aggravated murder, plus two capital offense specifications and a
firearm specification for each count; kidnapping plus a firearm specification; aggravated
burglary plus a firearm specification; violating a protective order while committing a felony
plus a firearm specification; escape while under detention for a felony of the third, fourth, or
fifth degree; having weapons while under a disability; and carrying a concealed weapon.
The matter proceeded to the mitigation phase. The jury found, as to both counts of
aggravated murder, that the aggravating circumstances did not outweigh the mitigating factors
by proof beyond a reasonable doubt and found that “the sentence of life imprisonment without
parole eligibility for thirty full years should be imposed.”
Petitioner appealed his conviction and sentence, raising five assignments of error: (1)
the trial court abused its discretion in refusing to allow the jury to consider the charge of
voluntary manslaughter; (2) the trial court erred in failing to preserve for the record the reason
petitioner’s initial trial counsel was removed from the case; (3) petitioner’s counsel rendered
ineffective assistance in failing to challenge prior convictions admitted at trial; (4) petitioner’s
conviction for violating a protective order was not supported by sufficient evidence; and (5)
the trial court erred in sentencing petitioner on the kidnapping charge for a felony of the first
degree rather than for a felony of the second degree. The state court of appeals sustained
petitioner’s fourth assignment of error only. On remand, the trial court vacated and dismissed
the jury’s guilty verdict on the charge of violating a protection order due to insufficient
4
evidence.
Petitioner filed a pro se appeal of the state court of appeals decision to the Ohio
Supreme Court, which denied leave to appeal and dismissed the appeal as not involving any
substantial constitutional question. As noted by the Magistrate Judge in the Report and
Recommendation, petitioner pursued other relief and post-conviction relief before filing the
present pro se petition for a writ of habeas corpus.
The habeas petitioner raises six grounds: (1) the trial court abused its discretion in
refusing to allow the jury to consider the charge of voluntary manslaughter; (2) appellate
counsel was ineffective in failing to raise on appeal the trial court’s refusal to allow the jury
to consider the charge of murder regarding counts 2 and 3 of the indictment; (3) the trial court
committed reversible error when it failed to preserve for the record the reason petitioner’s
initial trial counsel was removed from the case; (4) appellate counsel was ineffective for
failing to object to the incompleteness of the record and the removal of petitioner’s initial trial
counsel during the arraignments; (5) appellate counsel was ineffective for failing to raise the
issue that trial counsel did not object to admission of false evidence; and (6) appellate counsel
was ineffective for failing to raise the issue that petitioner’s trial counsel failed to object or
inquire into the fact that Hughes was released unharmed.
The Magistrate Judge found none of petitioner’s asserted grounds sufficient to support
a writ of habeas corpus. The Magistrate Judge found petitioner’s first and third grounds
insufficient because petitioner failed to establish that the state court actions challenged in
these grounds were contrary to or involved an unreasonable application of clearly established
federal law as determined by the Supreme Court. The Magistrate Judge found petitioner’s
5
second, fourth, and fifth grounds procedurally defaulted and found that petitioner “has
dismissed his request for relief on the sixth ground.” (R&R at 23.)
Discussion
Petitioner and respondent have both filed objections to the Report and
Recommendation. Respondent objects to the Magistrate Judge’s determination as to the first
ground in that the Magistrate Judge’s analysis does not go far enough. Petitioner objects to
the Magistrate Judge’s determinations on all grounds except the sixth.
Objections as to Ground One – Jury Instruction on Voluntary Manslaughter
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court found that the
constitution requires state defendants in capital cases to be afforded the protection of
instructions on lesser included offenses when the instructions are supported by the evidence.
The state court of appeals in petitioner’s case affirmed the trial court’s refusal to instruct the
jury on voluntary manslaughter. The court of appeals held that the trial court’s decision was
not an abuse of discretion “[b]ecause reasonably sufficient evidence of provocation was not
presented” at trial. Williams, 2009 WL 1856743, at *7. In this regard, the Ohio Court of
Appeals found:
The record indicates insufficient evidence of provocation which was
reasonably sufficient to arouse the passions of an ordinary person beyond the
power of his or her control. William and Hughes were not married. Williams
admitted that he knew of Hughes’ years-long sexual relationship with Polk, so
that seeing the two of theme in bed together could not have aroused in him the
shock which accompanies initial revelation. In addition, Williams recognized
Polk’s vehicle outside of Hughes’ apartment during the early morning hours.
Armed with that knowledge, and with a loaded gun, Williams broke into the
apartment and went directly to Hughes’ bedroom to confront Hughes and Polk,
and to go with the “flow” of whatever might happen.
While Williams may have been angry that the woman he loved was with
6
another man, there is insufficient evidence to indicate that Williams was under
the influence of sudden passion or rage when he shot and killed Polk.
Knowing that Polk was inside Hughes’ apartment, Williams paced around the
outside of Hughes’ apartment, going first to the front door and then to the back
door. He ripped the screen of the kitchen window to facilitate his entry into
the apartment with the intent of confronting Hughes and Polk. When he got to
the bedroom and saw Polk, he put the gun to Polk’s head and fired. The gun,
however, misfired, giving Williams time to reflect on the situation. Instead,
Williams then deliberately pulled the slide back on the gun to chamber a
round. Pushing Hughes out of the way to protect her, Williams fired multiple
shots towards Polk until he ceased his approach. The Ohio Supreme Court has
recognized multiple shots or stabs as indicative of purpose to kill. Williams
then used Hughes to facilitate his escape. He further voiced his desire that
Polk be dead and not merely wounded. This evidence tends to prove
Williams’ purpose to kill Polk rather than that his will was reasonably
overborne by sudden rage to any provocation by the victim.
Williams, 2009 WL 1856743, at *6-7 (citations omitted.)
The Magistrate Judge found this determination by the state court of appeals was not an
unreasonable application of Beck and therefore found petitioner’s first asserted ground in
petitioner’s habeas petition insufficient.
Petitioner objects to the Magistrate Judge’s determination, arguing that whether the
evidence warranted an instruction on voluntary manslaughter “should have been made by the
jury” not the trial judge. Petitioner appears to argue that, contrary to the determination of the
state court of appeals, there was sufficient evidence of provocation at trial to warrant a jury
instruction on voluntary manslaughter. Petitioner asserts:
[Petitioner] admitted that he knew of Hughes’ past sexual relationship with
Polk. Not an on-going sexual relationship. Williams had no knowledge that
Polk was still involved with Hughes.
The statement Hughes made to the detectives contradicts her testimony. Page
4 of Hughes statement to detectives Hughes asked Cree (her daughter) if
[petitioner] had been calling Penny’s (her daughter) cell phone. Cree said Yes.
Penny called Hughes and Hughes told Penny to have [petitioner] call her
(Hughes) but, [petitioner] never called.
7
The fireman expert’s testimony contradicts [petitioner’s] assertion that he put
the gun to Polk’s head and pulled the trigger. The gun “clicked” without
firing, so he pulled the slide back on the gun to chamber a round and fired 3-4
more times. The firearm expert proved the gun could not make a “click noise”
and supports the fact that [petitioner’s] statement that he attempted to shoot
Mr. Polk was not true.
(Obj. at 1-2.)
The Court does not find petitioner’s objection to have merit. The Court agrees with
the Magistrate Judge that the state court did not incorrectly or unreasonably apply Beck in
refusing to grant petitioner’s request for a jury instruction on voluntary manslaughter. The
trial judge reasonably determined that there was insufficient evidence of provocation to
support the requested instruction.
Respondent does not object to Magistrate Judge’s determination that the state court’s
decision does not contradict the governing federal law in Beck. However, respondent
“objects” to the Magistrate Judge’s determination in the R&R on the basis that “ground one is
meritless for the additional reason that the failure to instruct on voluntary manslaughter
cannot be a constitutional violation” because petitioner was not sentenced to death.2 (Resp.
Obj. at 5) (emphasis added). In Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990), the
Sixth Circuit held that the failure to instruct on a lesser included offense in a non-capital case
cannot amount to a constitutional violation. Respondent cites cases from other circuits for the
2
The Magistrate Judge treated petitioner’s case as a capital case for purposes of Beck.
The Magistrate Judge stated: “Although Williams was not sentenced to death, there can be
little question that this case was tried as a capital case. The indictment contained multiple
capital specifications. The prosecutor asked the jury to impose the death penalty. Although
the jury chose not to impose a death sentence, there is no question that at the time that the jury
was instructed, Williams faced a possible sentence of death. Therefore, this is not a “noncapital case,” insofar as the jury instructions are concerned.” (R&R at 12.)
8
proposition that, where a defendant receives a life sentence instead of death, the defendant’s
case may be treated as a non-capital case for purposes of deciding whether Beck applies. (See
Resp. Obj. at 2-3.) However, as respondent concedes, the Sixth Circuit has not decided this
issue. Respondent asserts: “The Sixth Circuit may not be clear on how it would treat this
issue where the case is tried as a capital case but the sentence is not death.” (Resp. Obj. at 3.)
Given this, respondent’s objection to the Report and Recommendation is overruled.
Respondent has not demonstrated that the Magistrate Judge’s treatment of petitioner’s case as
a capital case for purposes of Beck is error. Furthermore, as stated above, the Magistrate
Judge properly determined that petitioner’s constitutional rights were not violated by the state
court’s refusal to instruct on voluntary manslaughter. It is not necessary for the Court to
determine whether petitioner’s case should be treated as a capital or non-capital case for
purposes of Beck.
Petitioner’s Objection as to Ground Three
In ground three, petitioner challenges the trial judge’s conduct in removing his initial
trial counsel from his case without failing to preserve on the record the reasons for his
counsel’s removal. The Magistrate Judge considered petitioner’s arguments as to why this
conduct of the trial court violated petitioner’s constitutional rights and found that petitioner
had not shown that the state court’s conduct was contrary to or involved an unreasonable
application of clearly established federal law as determined by the United States Supreme
Court. (R&R at 18-22.) The Magistrate Judge noted that indigent defendants do not have a
constitutional right to counsel of their choice and found that petitioner failed to demonstrate
that he suffered any prejudice from the fact that his initial trial counsel was removed from the
9
case “where counsel withdrew prior to the arraignment at which [petitioner] entered his not
guilty plea.” (R&R at 21.)3
In his objections, petitioner asserts that “[t]he trial judge . . . violated Petitioner’s
constitution[al] right under Suttles v. Wilson, [Nos. 06-3585, 06-3652, 2008 WL 2967659 (6th
Cir. August 4, 2008)] and Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). . . by failing to place
the reasons counsel was removed on the record, as it was apparent that Defense counsel’s
wife being part of the prosecution team seeking the death penalty created a substantial
conflict with Petitioner’s defense.” (Pet. Obj. at 4.)
Petitioner’s objection lacks merit. Suttles held that a petitioner was entitled to a writ
of habeas corpus where the petitioner alleged that his appellate counsel was ineffective for
failing to raise a conflict of interest of his trial counsel in representing the government’s chief
witness against petitioner in an unrelated felony case at the same time counsel was
representing petitioner. The court found that this conflict of interest fell below an objective
standard of reasonableness and constituted ineffective assistance of counsel and that, pursuant
to Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), petitioner was entitled to a presumption of
prejudice as a result of counsel’s conflict. Suttles, 2008 WL 2967659, at *3. In addition, the
court held that the trial court “had the duty to inquire into the nature of the conflict at such
time as it became aware of the potential for conflict of interest” and that the “[f]ailure of the
3
As the Magistrate Judge noted, petitioner argued that his original appointed counsel
was removed by the trial court for reasons that were not placed on the record, that petitioner
claimed he desired to continue with his original counsel, and that he learned from his
subsequently appointed counsel that his first attorney had been removed for a potential
conflict of interest because he was married to a prosecutor who worked in the unit that was
prosecuting petitioner’s case. (R&R at 18-19.)
10
trial court to conduct such an inquiry mandates a reversal if the defendant can show the
conflict adversely affected his counsel’s performance.” Id.
Suttles is not applicable here. In contrast to the facts in Suttles, petitioner’s initial
counsel who had a potential conflict of interest was removed from petitioner’s case at an early
stage (prior to petitioner’s arraignment). Therefore, unlike in Suttles, petitioner was not
represented at trial by counsel with a conflict of interest. Moreover, unlike in Suttles,
petitioner identifies no prejudice that petitioner suffered or could have suffered as a result of
his original counsel’s conflict of interest.4
In sum, the Court agrees with the finding of the Magistrate Judge that petitioner has
failed to demonstrate that the trial court’s conduct (in failing to preserve for the record the
reasons petitioner’s original counsel was removed from his case) was contrary to or involved
an unreasonable application of clearly established federal law.
Petitioner’s Objection as to Grounds Two, Four, and Five
Petitioner finally objects to the Magistrate Judge’s determination that petitioner’s
second, fourth, and fifth grounds (asserting ineffective assistance of petitioner’s appellate
counsel) have been procedurally defaulted. The Magistrate Judge found these grounds
procedurally defaulted because, although petitioner raised the claims asserted in the grounds
with the Ohio Court of Appeals through the filing of a motion to reopen an appeal, petitioner
failed to seek timely review of the Ohio Court of Appeals decision denying his motion with
the Ohio Supreme Court. Thus, petitioner failed to present his second, fourth, and fifth
grounds to the Ohio Supreme Court, rendering the claims procedurally defaulted. (R&R at
4
Indeed, petitioner has stated that he wanted his original counsel to remain on his case.
11
16-18.)
Petitioner objects that his claims should not be considered procedurally defaulted
because the Ninth District Court of Appeals failed to provide him timely notice of its decision
denying his motion to reopen his appeal and thereby deprived him “of his constitutional right
to timely appeal the appellate decision.” (Pet. Obj. at 3-4.) Petitioner asserts that “the court’s
docket sheet clearly shows the clerk entered Petitioner’s Judgement [sic] entry on the docket
sheet of a different case” and, “[a]s such,” he was not notified of “the Judgement Entry” in his
case in sufficient time to file a timely appeal. (Obj. at 3.) However, petitioner does not
submit evidence that the court of appeals decision in his case was not timely entered on the
docket in his case. The online docket of the Ninth District Court of Appeals in petitioner’s
case properly reflects the court of appeals decision on petitioner’s motion to reopen his
appeal. Petitioner has not demonstrated a basis to excuse his procedural default.
Conclusion
For all of the reasons stated above, none of the objections asserted by respondent or
petitioner warrant modification to the determination of the Magistrate Judge. Accordingly,
the Report and Recommendation of the Magistrate Judge is hereby accepted, and the pending
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is dismissed.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 3/8/12
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?