Bushner v. LaRose

Filing 15

Memorandum of Opinion and Order For the reasons set forth herein, Petitioner's objections (ECF No. 14 ) are overruled and the Report and Recommendation (ECF No. 12 ) of the Magistrate Judge is hereby adopted with the modification noted herein. Raymond Bushner's Petition for a Writ of Habeas Corpus (ECF No. 1 ) is dismissed. 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 Benita Y. Pearson on 3/31/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RAYMOND BUSHNER,
Petitioner,
v.
CHRISTOPHER LAROSE,
Respondent.

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CASE NO. 5:14CV00385

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 14]

Petitioner Raymond Bushner, an Ohio prisoner proceeding pro se, filed a Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging one (1) ground for
relief which challenges the constitutional sufficiency of his conviction for felonious assault with
a firearm specification, domestic violence, having weapons while under a disability with a
firearm specification, tampering with evidence with a firearm specification, and intimidation of a
crime victim or witness in Summit County, Ohio Court of Common Pleas Case No. CR-2011-123301. The case was referred to Magistrate Judge James R. Knepp II for a Report and
Recommendation. The magistrate judge subsequently issued a Report (ECF No. 12)
recommending that the petition be dismissed. ECF No. 12 at PageID #: 317. Petitioner filed
objections (ECF No. 14) to the magistrate judge's Report. Based upon the record before it, the
Court overrules the objections, adopts the Report and Recommendation with modification, and
dismisses the petition.

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I. Facts
On direct appeal, Ohio’s Ninth District Court of Appeals established the factual
background of Petitioner’s trial and convictions as follows:
{¶ 2} Bushner and seven other people were involved in an affray that
took place at the apartment of Cory Prettyman. Bushner had been
staying at the apartment for a brief period of time at Prettyman's
invitation. On October 30, 2011, Bushner and Prettyman fought and
several other individuals, one of whom brought a gun, were notified
of the fight and came to the apartment. The witness accounts of what
then happened varied, but the end result was that Bushner shot one of
the unarmed individuals who came to the apartment and then fled.
{¶ 3} A grand jury indicted Bushner on counts of felonious assault,
domestic violence, having weapons while under disability, tampering
with evidence, and intimidation of a crime victim or witness. The
felonious assault, having weapons while under disability, and
tampering with evidence counts also included attendant firearm
specifications. The matter proceeded to a jury trial, and the jury found
Bushner guilty on all of the counts and specifications. The trial court
then sentenced Bushner to 18 years in prison and ordered his sentence
to run consecutively with a related case for a total of 18 years, 6
months in prison.
State v. Bushner, No. 26532, 2012 WL 6628876, at *1 (Ohio App. 9th Dist. Dec. 19, 2012) (ECF
No. 4-1 at PageID #: 130-31). In a habeas corpus proceeding instituted by a person in custody
pursuant to the judgment of a state court, factual determinations made by the state courts are
presumed correct. 28 U.S.C. § 2254(e)(1).
The Court adopts the procedural background as outlined by the magistrate judge in his
Report. ECF No. 12 at PageID #: 309-12.

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II. Standards of Review
A. Standard of Review for Magistrate Judge’s Report and Recommendation
Where objections have been made to a magistrate judge’s Report and Recommendation,
the district court’s standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.
Id.
Near verbatim regurgitation of the arguments made in earlier filings are not true
objections. When an “objection” merely states disagreement with the magistrate judge’s
suggested resolution, it is not an objection for the purposes of this review. Cvijetinovic v.
Eberlin, 617 F. Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other grounds, 617 F.3d 833 (6th
Cir. 2010). Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See
Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party
who files objections to a magistrate [judge]’s report in order to preserve the right to appeal must
be mindful of the purpose of such objections: to provide the district court ‘with the opportunity
to consider the specific contentions of the parties and to correct any errors immediately.’” Id.
(citing United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)). The Supreme Court
upheld this rule in Thomas v. Arn, 474 U.S. 140, 144 (1985), a habeas corpus case.
Accordingly, this Court has conducted a de novo review of the portions of the magistrate
judge’s Report to which Petitioner has properly objected.

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B. Standard of Review for Habeas Petitions
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to all
federal habeas petitions filed after the Act’s effective date. Stewart v. Erwin, 503 F.3d 488, 493
(6th Cir. 2007). The AEDPA was enacted “to reduce delays in the execution of state and federal
criminal sentences, and ‘to further the principles of comity, finality, and federalism.’” Woodford
v. Garceau, 538 U.S. 202, 206 (citing Williams v. Taylor, 529 U.S. 420, 436 (2000)). Consistent
with this goal, when reviewing an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a state court, a determination of a factual issue made by a state court
shall be presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774–76 (6th Cir.
2008). The petitioner has the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir.
2013).
A federal court may not grant habeas relief on any claim that was adjudicated on the
merits in any state court unless the adjudication of the claim either (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); Wilkins, 512 F.3d at 774–76.
It is now a well-established rule of law that the AEDPA established the standards that
federal courts must apply when considering petitions for a writ of habeas corpus. See Harris v.
Stovall, 212 F.3d 940, 942 (6th Cir. 2000) (“Federal habeas review of the state court's decision is

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governed by the standards established by the AEDPA.”). In Williams v. Taylor, 529 U.S. 362
(2000), the Supreme Court dictated the standard of review that a federal habeas court must apply
under § 2254(d). Harris, 212 F.3d at 942. The Supreme Court held that:
A decision is “contrary to” clearly established federal law when “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.”[ ]
A state court's adjudication only results in an “unreasonable
application” of clearly established federal law when “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.”
Otte v. Houk, 654 F.3d 594, 599-600 (6th Cir. 2011) (quoting Williams, 529 U.S. at 412-13)
(internal citations omitted).
III. Law & Analysis
Petitioner raises the following ground for relief:
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN
ERROR BY REFUSING TO GIVE PROPER SELF-DEFENSE
INSTRUCTIONS UNDER OHIO’S CASTLE DOCTRINE, R.C.
2901.09(B), VIOLATING PETITIONER’S RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
ECF No. 1 at PageID #: 5.
The magistrate judge recommends that the Court dismiss the petition on two grounds.
First, the magistrate judge recommends that the petition should be dismissed because of
procedural default. The magistrate judge found that: (1) Petitioner procedurally defaulted on his
claim by not contemporaneously objecting to the state trial court’s jury instruction (ECF No. 12

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at PageID #: 315-16); (2) pursuant to, White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), Petitioner
“has not shown cause and prejudice that would excuse th[e] procedural default” (ECF No. 12 at
PageID #: 316); and (3) pursuant to Coleman v. Thompson, 501 U.S. 722 (1991), Petitioner “has
not demonstrated the failure to consider his claims will result in a fundamental miscarriage of
justice” (ECF No. 12 at PageID #: 316). The magistrate judge also recommends that, even if
Petitioner had not procedurally defaulted on his claim, the Petition should be dismissed because
Petitioner’s claim does not meet the threshold requirements of 28 U.S.C. § 2254(d). ECF No. 12
at PageID #: 316. Petitioner raises four (4) objections to the magistrate judge’s
recommendations.
A. Objection Number One
In his first objection, Petitioner avers that the magistrate judge “incorrectly ruled that
Petitioner’s counsel did not object to the jury instructions at the trial proceedings.” ECF No. 14
at PageID #: 320. Petitioner asserts that the magistrate judge “parroted the findings of the State
Appellate Court [] which were erroneous with regard to this issue.” Id. at PageID #: 321.
Petitioner also contends that the magistrate judge “ignored the facts from the record as presented
by the Petitioner” when the magistrate judge “wrongly stated, ‘It is undisputed that [Petitioner]
did not contemporaneously object to the trial court’s jury instruction. His failure to make such an
objection bars the issue from review.’” Id. See also ECF No. 12 at PageID #: 315.
In support of his first objection, Petitioner provides the Court with a verbatim
regurgitation of the arguments made in his Traverse (ECF No. 10). Compare ECF No. 10 at
PageID #: 286-89 (Petitioner’s argument in Traverse), with ECF No. 14 at PageID #: 321-23

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(Petitioner’s argument in Objection). See also ECF No. 10 at PageID #: 321 (referring to the
inclusion of arguments made in Petitioner’s Traverse and apologizing “for any redundancy
suffered by the Court”). The Court finds that, in his first objection, Petitioner merely states
disagreement with the magistrate judge’s recommendation and restates the arguments made in
his Traverse. This is not a true objection. Accordingly, Petitioner has not properly objected to
the magistrate judge’s Report and his first objection is overruled.
Assuming arguendo, however, that Petitioner’s first objection is properly before the
Court, the objection is overruled for the reasons discussed below.
(1) State Court’s Finding of No Contemporaneous Objection at Trial
The magistrate judge found that it is “undisputed that [Petitioner] did not
contemporaneously object to the trial court’s jury instruction.” ECF No. 12 at PageID #: 315
(emphasis added). For that reason, the magistrate judge recommends that Petitioner’s “failure to
make such an objection bars the [erroneous jury instruction] issue from review.” Id.
On collateral review before the Court, Petitioner, proceeding pro se, objects to the
magistrate judge’s finding and raises anew the argument that his trial counsel “argued for the
proper jury instruction and objected to its possible exclusion, omission, or alteration” by
“outlining the facts contained in the record warranting the proper instruction” when “[t]he issue
of self defense instructions was being discussed.” ECF No. 14 at Page ID #: 321-24; ECF No. 10
at PageID #: 286-89. For this argument to succeed, Petitioner must overcome the rebuttable
presumption that the state court’s factual finding —that Petitioner did not contemporaneously
object to the trial court’s jury instruction—is correct. Petitioner must overcome this rebuttable

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presumption by clear and convincing evidence that counsel for Petitioner did, in fact, object to
the alleged erroneous jury instruction. 28 U.S.C. §2254(e)(1); Moore, 708 F.3d at 775.
The sole strength of Petitioner’s first objection is the magistrate judge’s characterization
of whether Petitioner contemporaneously objected to the jury instruction as “undisputed.” See
ECF No. 12 at PageID #: 315 (emphasis added). Clearly, Petitioner disputes whether an
objection was made. See ECF No. 14 at PageID #: 321 (wherein Petitioner makes repeat
reference to the “erroneous finding” of the state appellate court); Id. at PageID #: 323 (“Trial
counsel did properly object . . .”). While the magistrate judge’s use of undisputed is akin to a
scrivener’s error, the evidence in the record is indeed undisputed. 1
The Ohio Ninth District Court of Appeals found: “{¶ 13} Bushner acknowledges that he
did not object to the [trial] court’s jury instructions . . .” . State v. Bushner, 2012 WL 6628876,
at *4 (ECF No. 4-1 at PageID #: 135). Because the court found that Petitioner did not object to
the trial court’s jury instruction, the Ohio Ninth District Court of Appeals limited “any review of
the alleged [jury instruction] error to a review for plain error.” Id. The transcript from
Petitioner’s state court trial reveals that the trial court instructed the jury on Ohio’s Castle
Doctrine, Ohio Rev. Code § 2901.09(B), and counsel for Petitioner did not contemporaneously
object.

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To the extent such scrivener’s error exists, the Report and Recommendation is
modified. ECF No. 12 at PageID #: 315.
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[TRIAL] COURT:

A person who is lawfully in that person’s
residence has no duty to retreat before using
force in self-defense.2

...
[TRIAL] COURT:

And at this point, then counsel, for the record
here, are there any objections, corrections, or
additions? If there are, you come up to side
bar and we'll deal with it.

[STATE:]

Not from the State, Your Honor. Thank you.

[DEFENSE:]

Not from the defense, Your Honor. Thank
you.

ECF No. 4-1 at PageID #: 262, 268. Moreover, Petitioner —acting with the representation of
appellate counsel—did not raise the disputed objection on direct review before Ohio’s Ninth
District Court of Appeals. In Petitioner’s recitation of the facts on direct review, Petitioner does
not argue that he objected to the trial court’s jury instruction. Id. at PageID #: 72-75. In his
arguments on direct review in support of Assignment of Error Number Two, Petitioner did not
state that he objected to the trial court’s jury instruction. Id. at PageID #: 81-87. Moreover, the
Court finds it informative that, with representation by appellate counsel, Petitioner raised several
ineffective assistance of counsel claims none of which concern the disputed objection. See Id. at
PageID #: 68.

2

Compare Ohio Rev. Code § 2901.09(B):
For purposes of any section of the Revised Code that sets forth a
criminal offense, a person who lawfully is in that person's residence
has no duty to retreat before using force in self-defense, defense of
another, or defense of that person's residence[.]
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Based on the Court’s de novo review of the record, the Court finds that Petitioner has not
shown clear and convincing evidence that counsel for Petitioner objected to the alleged erroneous
jury instruction.3 Accordingly, the Court finds that Petitioner has not overcome the presumption
that Ohio’s Ninth District Court of Appeals was correct in its factual finding that Petitioner did
not contemporaneously object to the jury instruction during his state trial proceedings.
(2) Cause and Prejudice to Excuse Procedural Default
The magistrate judge found that: (1) Ohio’s contemporaneous objection rule is applicable
to Petitioner’s claim; (2) Petitioner did not comply with that rule; and (3) pursuant to White, 431
F.3d at 525, “Ohio’s contemporaneous objection rule is an independent and adequate ground to
foreclose relief absent a showing of cause and prejudice.” ECF No. 12 at PageID #: 313, 315-16.
The magistrate judge also found that Petitioner had not shown cause and prejudice to excuse his
procedural default. Id. Petitioner appears to object to the magistrate judge’s finding that he did
not show cause and prejudice.
In procedural default cases, the cause standard requires the petitioner
to show that some objective factor external to the defense impeded
counsel's efforts to raise the claim in state court.[] Objective factors
that constitute cause include interference by officials[] that makes
compliance with the [s]tate's procedural rule impracticable, and
showing that the factual or legal basis for a claim was not reasonably
available to counsel.[] In addition, constitutionally ineffective
assistance of counsel ... is cause.[] Attorney error short of ineffective
assistance of counsel, however, does not constitute cause and will not
excuse a procedural default.[] Once the petitioner has established

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Petitioner may believe that defense counsel objected during a colloquy that
occurred during the charge conference or some other discussion before the trial judge.
Nevertheless, the record is clear that before the jury departed to deliberate, the trial judge
inquired and Defense counsel raised no objection to the final jury instruction.
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cause, he must show actual prejudice resulting from the errors of
which he complains.
McCleskey, 499 U.S. at 493-94 (internal citations and quotations omitted). The Sixth Circuit has
incorporated the “cause and prejudice” standard into the four-step analysis that the Court must
undergo to determine whether a habeas claim is precluded by a petitioner’s failure to observe a
state procedural rule. See White, 431 F.3d at 524 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986)).
Petitioner argues anew on collateral review that, even if the Court finds the jury
instruction objection was not contemporaneously raised, Petitioner’s procedural default should be
excused because:
Petitioner attempted to exhaust issues of ineffective assistance of
appellate counsel [but] the failure of the Clerk to provide proper
notice [of the Court’s decision] to Petitioner . . . prevented Petitioner
. . . from meeting the deadline for timely filing [of the Notice of
Appeal and the Memorandum in Support of Jurisdiction, which
resulted in the denial of the filing of his appeal, and] is cause to
excuse the procedural default.
ECF No. 14 at PageID #: 322-23; ECF No. 10 at PageID #: 288-89. Petitioner also argues that
his unexhausted claim of ineffective assistance of trial counsel would have been cause to excuse
the procedural default. In his Traverse, Petitioner states:
If Petitioner’s trial counsel had failed to object and preserve the issue
for appeal, as Respondent claims, this is would surely fall under
ineffective assistance of counsel. [But,] Petitioner believing that his
trial counsel filed the proper objection, discovered the possibility of
counsel’s error in the decision in his direct appeal[.]
ECF No. 10 at PageID #: 289.

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The Court finds Petitioner’s arguments unavailing. First, Petitioner’s arguments
regarding ineffective assistance of appellate counsel contradict his assertion that his appellate
counsel “[put forth] sound legal argument.” ECF No. 14 at PageID #: 326; ECF No. 10 at
PageID #: 289. Petitioner cannot, on the one hand, argue ineffective assistance of trial counsel
for not contemporaneously raising the jury instruction objection and, on the other hand, argue
that appellate counsel effectively argued his appeal absent that ground for relief. The Ohio Ninth
District Court of Appeals addressed each assignment of error raised in Petitioner’s state court
appeal in accordance with the “sound legal argument” put forth by Petitioner’s appellate counsel.
State v. Bushner, No. 26532, 2012 WL 6628876, at *1-*9 (ECF No. 4-1 at PageID #: 130-44).
The Court noted earlier that Petitioner, acting with the representation of appellate counsel, raised
ineffective assistance of trial counsel claims in his state court appeal on direct review. Petitioner
did not, however, seek relief on the ineffective assistance of trial counsel ground now alleged in
his Petition as cause to excuse procedural default. See Amended Brief of Appellant in Case No.
26532, ECF No. 4-1 at PageID #: 68 (Assignment of Error Four and Six).
Moreover, Petitioner’s argument has nothing to do with the procedural rule at issue in his
state court trial— Ohio’s contemporaneous objection rule. Petitioner does not argue that some
objective factor external to the defense impeded counsel's efforts to object to the jury instructions
in state court (e.g., there was no interference by officials that made compliance with Ohio’s
contemporaneous objection rule impracticable, no showing that the factual or legal basis for
Petitioner’s objection to the alleged erroneous jury instruction claim was not reasonably available
to counsel). See McCleskey, 499 U.S. at 493-94.

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Accordingly, the Court finds that Petitioner’s ineffective assistance of counsel arguments
do not support a finding of cause to excuse Petitioner’s procedural default. Contra Maples v.
Thomas, 565 U.S. 266, 290 (2012) (finding cause to excuse petitioner’s procedural default
where, “through no fault of his own, [petitioner] lacked the assistance of any authorized attorney
during the [time period] allowed for noticing an appeal from a trial court's denial of post[]conviction relief” ); Maples v. Stegall, 340 F.3d 433, 439 (6th Cir. 2003) (“Where a pro se
prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the
normal course of events. . . the [prison mailbox rule] is sufficient to excuse a procedural default
based upon a late filing.”). Because Petitioner has failed to show cause, the Court need not
consider any argument for a showing of prejudice to excuse procedural default.
(3) Appellate Counsel’s Arguments on Direct Review
Petitioner also objects to the magistrate judge’s finding that Petitioner did not
contemporaneously object to the alleged erroneous jury instructions on grounds that Respondent
concedes that counsel for Petitioner raised a “proper objection.” ECF No. 14 at PageID #: 322;
ECF No. 10 at Page ID#: 287 (“The State recognized [Petitioner’s] argument as that of reversible
error related to a proper objection.”).
In his state appeal on direct review, Petitioner raised the following challenge to his
conviction and sentence:
ASSIGNMENT OF ERROR TWO: THE TRIAL COURT
COMMITTED REVERSIBLE AND PLAIN ERROR BY
REFUSING TO GIVE PROPER SELF-DEFENSE JURY
INSTRUCTIONS UNDER THE CASTLE DOCTRINE R.C.
2901.09.

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See Amended Brief of Appellant in Case No. 26532, ECF No. 4-1 at PageID #: 68, 80-87. See
also State v. Bushner, 2012 WL 6628876, at *3-*5 (ECF No. 4-1 at Page ID #: 135-38).
Respondent was merely describing to the Court the nature of Petitioner’s stated ground
for relief when it stated:
A review of his appellate brief reveals that in his Second Assignment
of Error, [Petitioner] argued a state law ground that the trial court
committed reversible and plain error by failing to comply with O.R.C.
§29091.09 and give the proper self-defense jury instruction for Ohio’s
statutory “Castle Doctrine” pursuant to State v. Lewis,
2012-Ohio-3684.
See Respondent’s Return of Writ, ECF No. 4 at PageID #: 28. Moreover, Petitioner’s argument
is not supported by the record. The record is clear that the plain error standard of review for
Assignment of Error Number Two was applied because counsel advanced the plain error
standard of review (Amended Brief of Appellant in Case No. 26532, ECF No. 4-1 at PageID #:
81), and because Ohio’s Ninth District Court of Appeals found that, under Ohio law, “failure to
object to an allegedly erroneous jury instruction limits any review to the alleged error to a review
for plain error.” State v. Bushner, 2012 WL 6628876, at *4 (ECF No. 4-1 at Page ID #: 135-38).
Accordingly, and for the additional reasons discussed above, Petitioner’s first objection is
overruled.
B. Objection Number Two
Petitioner objects to the magistrate judge recommending that the Petition be dismissed on
grounds that Petitioner’s claims that “improper jury instructions prevent[ed] him from receiving
a fair trial” was not a cognizable “constitutional issue [under 28 U.S.C.] § 2254(d).” ECF No. 14

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at PageID #: 324. As grounds for this second objection, Petitioner states, among other things,
that the magistrate judge’s recommendation was incorrect because:
There can be no doubt that the improper jury instructions rise to the
level of substantive, prejudicial constitutional error. The Petitioner’s
assertion rested on extensive supporting case law or [t]he Supreme
Court of the United States and [t]he Supreme Court of Ohio or cases
that interpreted the same.
Id. at PageID #: 324-25.
The Court’s de novo review of the record sheds an unfavorable light on Petitioner’s
assertion. In his state court appeal on direct review, Petitioner raised the following challenge to
his conviction and sentence:
ASSIGNMENT OF ERROR TWO: THE TRIAL COURT
COMMITTED REVERSIBLE AND PLAIN ERROR BY
REFUSING TO GIVE PROPER SELF-DEFENSE JURY
INSTRUCTIONS UNDER THE CASTLE DOCTRINE R.C.
2901.09.
See Amended Brief of Appellant in Case No. 26532, ECF No. 4-1 at PageID #: 68, 80-87. See
also State v. Bushner, 2012 WL 6628876, at *3-*5 (ECF No. 4-1 at Page ID #: 135-38). On
federal collateral review, Petitioner raises the following ground for relief:
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN
ERROR BY REFUSING TO GIVE PROPER SELF-DEFENSE
INSTRUCTIONS UNDER OHIO’S CASTLE DOCTRINE, R.C.
2901.09(B), VIOLATING PETITIONER’S RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
ECF No. 1 at PageID: #5 (emphasis added). To be certain, Petitioner added the text
“VIOLATING PETITIONER’S RIGHT TO DUE PROCESS AND A FAIR TRIAL” in his
Petition for a Writ of Habeas Corpus. A comparison of the text of these two statements is

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enough, on its own, to raise the Court’s suspicion as to the true nature of Petitioner’s sole ground
for relief.
The federal courts do not have jurisdiction to consider a claim in a
habeas petition that was not “fairly presented” to the state courts.[] A
claim may only be considered “fairly presented” if the petitioner
asserted both the factual and legal basis for his claim to the state
courts.[] This court has noted four actions a defendant can take which
are significant to the determination whether a claim has been “fairly
presented”: (1) reliance upon federal cases employing constitutional
analysis; (2) reliance upon state cases employing federal
constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial
of a specific constitutional right; or (4) alleging facts well within the
mainstream of constitutional law.[] General allegations of the denial
of rights to a “fair trial” and “due process” do not “fairly present”
claims that specific constitutional rights were violated.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (internal citations omitted).
The record is replete with evidence that Petitioner’s state court appeal as to Assignment
of Error Number Two has not met the standard dictated by the Sixth Circuit in McMeans.
Petitioner cites, for example, State v. Williford, 551 N.E.2d 1279, 1283 (Ohio 1990) (holding that
“where the trial court fails to give a complete or correct jury instruction on the elements of the
offense charged and the defenses thereto which are raised by the evidence, the error is preserved
for appeal when the defendant objects in accordance with the second paragraph of Crim. R.
30(A)”). Petitioner argues that Williford “employ[s] constitutional analysis in like fact
situations.” ECF No. 14 at PageID #: 326. Petitioner also argues that Williford cites Carter v.
Kentucky, 450 U.S. 288 (1981), for the proposition that “a trial judge is constitutionally obligated
to [provide a proper] instruction 'upon proper request' by the defendant." ECF No. 14 at PageID
#: 327 (citing Williford, 551 N.E.2d at 1283 n.1). But, in Williford, the court was concerned with
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making a factual distinction between the holding in Williford and the court’s reliance on Carter
in another case in which jury instructions had been proffered—as opposed to the facts in
Williford where jury instructions were not proffered. Moreover, this factual distinction appeared
in a footnote. See Williford, 551 N.E.2d at 1283 n.1. Therefore, Williford did not rely on Carter
to employ constitutional analysis but, instead, to make a factual distinction in a footnote.
Petitioner also argues that Williford relied on Lockett v. Ohio, 438 U.S. 586 (1978). Here,
again, Petitioner is misinformed. Lockett appears in the text of Williford as part of a citation
sentence to denote that the Supreme Court of Ohio proceeding in State v. Locket, 358 N.E. 2d
1062 (Ohio 1976) was “reversed on other grounds” by the United States Supreme Court in
Lockett v. Ohio, 438 U.S. 586 (1978). Lockett was not cited for any constitutional analysis or
proposition. The Court finds unavailing Petitioner’s effort to object to the magistrate judge’s
recommendation by piecing together a list of every possible, alleged connection—however
remote or non-existent—between his state court appeal and federal law or constitutional grounds.
The connections simply do not exist.
For this reason, the magistrate judge correctly found that Petitioner does not meet the
requirements of 28 U.S.C. 2254(d). When it adjudicated Assignment of Error Number Two, the
state court did not arrive at a conclusion opposite to that reached by the United States Supreme
Court on a question of law nor did the state court decide Petitioner’s case differently than the
United States Supreme Court has on a set of materially indistinguishable facts. See Engle v.
Isaac, 456 U.S. 107 (1982) (alleged errors in jury instructions are generally considered matters of
state law). Moreover, Petitioner does not argue that the state court identified the correct

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governing legal principle from a United States Supreme Court decision but unreasonably applied
that principle to the facts of the prisoner's case. The Ohio courts decided Petitioner’s case under
the state laws of Ohio.
If a district court finds the AEDPA standard of review dispositive of a petitioner’s claims,
the claim is not cognizable and the petitioner’s claims may be dismissed. See Fry v. Pliler, 551
U.S. 112, 119 (2007) (“the [] AEDPA,[] sets forth a precondition to the grant of habeas relief ”);
Horn v. Banks, 536 U.S. 266, 272 (2002) (explaining that “it is of course a necessary prerequisite
to federal habeas relief that a prisoner satisfy the AEDPA standard of review set forth in 28
U.S.C. § 2254(d)”). Accordingly, the magistrate judge correctly found that the Petition has not
established a cognizable claim pursuant to 28 U.S.C. 2254(d) and petitioner’s fourth objection is
overruled.
C. Objection Number Three
Petitioner objects to the magistrate judge’s “finding that Petitioner’s issues were not put
forth as constitutional issues in state court proceedings.” ECF No. 14 at PageID #: 325. In
support of his objection, Petitioner provides the Court with a verbatim regurgitation of the
arguments made in his Traverse (ECF No. 10). Compare ECF No. 10 at PageID #: 288-92
(Petitioner’s argument in Traverse), with ECF No. 14 at PageID #: 321-23 (Petitioner’s argument
in Objection). See also ECF No. 10 at PageID #: 325-27 (referring to verbatim arguments
previously made in Petitioner’s Traverse and stating “Petitioner put forth his argument as
follows”). Again, Petitioner merely states disagreement with the magistrate judge’s
recommendation and restates the arguments made in his Traverse. This is not a true objection. In

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addition, Petitioner’s third objection is a mere restatement of his second objection. Accordingly,
Petitioner’s third objection is overruled.
D. Objection Number Four
Lastly, Petitioner objects to the magistrate judge’s “failure to recognize that Petitioner has
suffered a manifest injustice by the deprivation of a fair trial.” ECF No. 14 at PageID #: 327. As
grounds for his objection, Petitioner states that the trial court gave improper jury instructions
because: (1) “[t]he jury instructions stated that Petitioner had a duty to retreat in his own
residence from a gun-wielding assailant and his accomplice prior to acting in defense of self and
others”; and (2) “[t]he trial court []failed to instruct the jury that it was to take into consideration
the conduct of the assailants as it related to Petitioner’s using force in self defense and the
defense of others and his dwelling.” Id. at PageID #: 328-29. Petitioner alleges that he “suffered
a manifest injustice as a result of the trial court’s egregiously improper instructions, those of both
omission and commission.” Id. at PageID #: 330.
Although the magistrate judge found that Petitioner “has not demonstrated the failure to
consider his claims will result in fundamental miscarriage of justice” (ECF No. 12 at PageID #:
316), Petitioner appears to argue manifest injustice on state law grounds. See ECF No. 14 at
PageID #: 328. However, because Petitioner used the phrasing “manifest miscarriage of justice”
(ECF No. 10 at PageID #: 288) and “manifest of justice” (Id. at PageID #: 293) in his Traverse,
the Court will construe Petitioner’s fourth objection as an objection to the magistrate judge’s
finding that no “fundamental miscarriage of justice” will result from the Court’s failure to
consider Petitioner’s claim.

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In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Maples, 340 F.3d at 438. “The fundamental miscarriage of justice
test is met only in the extraordinary case where a constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Hargrave-Thomas v. Yukins, 374 F.3d 383, 389
(6th Cir. 2004) (citing Schlup v. Delo, 513 U.S. 298, 326-27 (1995)) (internal quotations
omitted). “To be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup, 513 U.S. at 324.
Moreover, alleged errors in jury instructions are generally considered matters of state law
and are not cognizable in federal habeas review. Sutton v. Lazaroff, No. 3:13 CV 2304, 2015
WL 5178022, at *16 (N.D. Ohio Sept. 4, 2015) (Katz, J.) (citing cases including Engle v. Isaac,
456 U.S. 107 (1982) (holding that since respondents simply challenged the correctness of jury
instructions under Ohio law, they alleged no deprivation of federal rights and may not obtain
habeas relief)). However, the Sixth Circuit has held that an asserted error relating to state jury
instructions may be cognizable upon federal habeas corpus review only when the error resulted in
a fundamental miscarriage of justice. Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990). See
also Marshall v. Tyszkiewicz, 221 F.3d 1335, 1335 (6th Cir. 2000) (finding that review of

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petitioner’s claim was “not warranted under the [] fundamental miscarriage of justice
[exception], because [petitioner did] not assert actual innocence, nor [did] he support his
allegation of constitutional error with new reliable evidence that he is actually innocent”).
In his Traverse, Petitioner asserts that he is “innocent of the crimes for which he was
convicted” (ECF No. 10 at PageID #: 282, 290, 302) but Petitioner does not support his assertion
with new reliable evidence that he is actually innocent. Notably, Petitioner does not assert actual
innocence in his fourth objection. Therefore, the Court finds that the magistrate judge correctly
found that Petitioner has not demonstrated that the failure to consider his claims will result in
fundamental miscarriage of justice. Accordingly, Petitioner’s fourth objection is overruled.
IV. Conclusion
Petitioner’s objections (ECF No. 14) are overruled and the Report and Recommendation
(ECF No. 12) of the magistrate judge is hereby adopted with the modification noted herein.
Raymond Bushner’s Petition for a Writ of Habeas Corpus (ECF No. 1) is dismissed. 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.

March 31, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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