Buchanan v. Bunting

Filing 19

Memorandum Opinion: Petitioner's objections to the Report and Recommendation are overruled and the Report and Recommendation is accepted. The petition for writ of habeas corpus is denied and the case is dismissed. Further, the Court certi fies 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). (Related Doc # 15 ). Judge Sara Lioi on 11/30/2016. (P,J) Modified text on 11/30/2016 (H,KR).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAMONT MAURICE BUCHANAN,

PETITIONER,
vs.
JASON BUNTING, Warden,

RESPONDENT.

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CASE NO. 5:14-cv-1656

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation of a magistrate judge1
recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254.
(Doc. No. 15 [“R&R”].) Petitioner filed objections. (Doc. No. 18 [“Obj.”].) Respondent filed
neither his own objections nor any response to petitioner’s objections. Pursuant to Fed. R. Civ. P.
72(b)(3), the Court has conducted its de novo review of the matters raised in the objections. For
the reasons discussed below, the objections are overruled and the R&R is accepted.
I. BACKGROUND
Petitioner was indicted by a grand jury on one count of aggravated burglary in violation
of Ohio Rev. Code § 2911.11 and one count of aggravated robbery in violation of Ohio Rev.
Code § 2911.01, both with firearm specifications, plus one count of having weapons under a
disability in violation of Ohio Rev. Code § 2923.13. (Doc. No. 9 [“Answer”] at 75-77.2) On

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Magistrate Judge Greg White, who issued the R&R, has since retired.

All page number references are to the page identification number generated by the Court’s electronic docketing
system.

April 27, 2012, following a jury trial in the Stark County Court of Common Pleas, he was
convicted on counts one and two and all specifications. On May 10, 2012, having further been
found guilty by the court of having weapons while under a disability,3 he was sentenced to an
aggregate term of twelve (12) years of imprisonment, with post-release control. (Id. at 90-95.)
Represented by new counsel, petitioner filed a direct appeal.4 (Id. at 96.) On March 22,
2013, the Fifth District Court of Appeals affirmed the trial court’s judgment (Id. at 187) and, on
July 24, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal.5 (Id. at 234.)
On May 16, 2014, proceeding pro se, petitioner applied to reopen his direct appeal (id. at
235), but the application was denied on June 30, 2014, without addressing the merits, due to
untimeliness (id. at 260).6

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Buchanan waived his right to a jury trial on count three. (Answer at 88.)

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Petitioner asserted three assignments of error:
1.

The trial court abused its discretion in giving a flight instruction to the jury when the
evidence adduced at trial did not substantiate the instruction.

2.

The appellant was denied his right to a fair trial due to prosecutorial misconduct.

3.

The trial court’s finding of guilty was against the manifest weight of the evidence and
was not supported by sufficient evidence.

(Answer at 101.)
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Before the Ohio Supreme Court, representing himself, petitioner raised three propositions of law:
I.

When a trial court gives a jury instruction “on flight” to which [the evidence adduced at
the trial] did not substantiate, the court abuses its discretion and the defendant is deprived
both: due process of law and a fundamentally fair trial. See: People v. Green, (1980), 27
Ca. 3d 1; and, State v. Craft (1977), 52 Ohio App. 2d 1, 7.

II.

A criminal defendant’s right to a fair trial is constitutionally implicated where, as here,
prosecutorial misconduct so infected the trial in unfair prejudice so as to amount to a
denial of due process. See: Berger v. United States, (1935), 295 U.S. 78.

III.

A finding of guilt not supported by the manifest weight of the evidence must fail as a
matter of law and fact. See: Tibbs v Florida (1982), 457 U.S. 31, 41-43; Jackson v.
Virginia (1979), 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560; and, State v. Jenkins
(1991), 61 Ohio St. 3d 250.

(Answer at 191-92.)
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According to documents attached to his traverse, a subsequent attempt to appeal this denial was rejected by the
Ohio Supreme Court as untimely and the documents were returned to petitioner. (Doc. No. 11 [“Traverse”] at 798.)

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The instant pro se petition was filed on July 28, 2014. (Doc. No. 1 [“Petition”].)
Petitioner raised five grounds for relief:
GROUND ONE: Trial court conviction lacked sufficiency and manifest weight in
light of the evidence
Supporting Facts: Evidence was presented to support self-defense rather than the
charges alleged as this petitioner himself suffered numerous stab wounds from the
alleged victim who simply manufactured the robbery story to cover his own
illegal actions including drug dealing. Any credibility of the alleged victim’s
should be zero due to numerous inconsistencies and the self serving need to lie.
The victim’s children slept through the alleged robbery. Such an improper
conviction violates the 5th and 14th Amendments guarantee of a fair trial and the
due process of law.
GROUND TWO: Improper flight instruction
Supporting Facts: The trial court deprived this petitioner of a fair trial and the due
process of law under the 5th and 14th Amendments when it gave the jury a flight
instruction when the evidence adduced at trial did not in any way support such an
instruction since no actual flight whatsoever occurred.
GROUND THREE: Prosecutorial misconduct
Supporting Facts: The prosecutor, in closing arguments, misstated evidence,
improperly vouched for witnesses, implied that the defense attorney intentionally
mislead [sic] the jury and improperly commented on the alleged victim’s children
sleeping through the alleged attack all of which deprived this appellant of a fair
trial and the due process of law under the 5th and 14th Amendments.
GROUND FOUR: Ineffective assistance of appellate counsel
Supporting Facts: Appellate counsel, who was appointed by the State, failed to
raise numerous substantial claims of ineffective assistance of trial counsel which
had they been raised would have changed the outcome of the appeal in favor of
the petitioner in violation of the 5th, 6th and 14th Amendments.
GROUND FIVE: Ineffective assistance of trial counsel
Supporting Facts: Based upon the pending 26b application and the facts contained
therein. Pending in Post-conviction petition 26b.
(Petition at 6, 8, 9, 11, 17.) The R&R recommends denial of the petition.
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II. DISCUSSION
A.

The Standard of Review
Under 28 U.S.C. § 636(b)(1)(C), “[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.”) (citations omitted). “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.” Id.; see
also 28 U.S.C. § 636(b)(1)(C).
B.

De Novo Review
The R&R recommends that grounds two through five be dismissed as procedurally

defaulted. It further recommends that ground one be dismissed on the merits because there is
nothing unreasonable about the state court’s determination that sufficient evidence existed to
support petitioner’s convictions.
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1.

Procedural Default – Grounds Two through Five

Before a federal court will review the merits of a habeas petition, certain procedural
barriers must be cleared, notably, exhaustion and procedural default. Here, exhaustion does not
appear to be an issue. Rather, the R&R concludes that several grounds are procedurally
defaulted.
Procedural default and its attendant “cause and prejudice” standard are both “grounded in
concerns of comity and federalism.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546,
115 l. Ed. 2d 640 (1991). This doctrine bars federal court review of claims that a state court has
declined to address due to failure of the petitioner to comply with a state procedural requirement
unless petitioner can establish cause for the failure and a resulting prejudice, or if failure to
review would result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S.
446, 451, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000).
Ground Two
The R&R states that petitioner never “fairly presented” as a federal claim the jury
instruction challenge included in ground two. Although petitioner attempted to present it to the
Ohio Supreme Court, he had failed to raise it on direct appeal, so that court would not consider
it. And even when he did raise it before the Ohio Supreme Court, he argued only that the trial
court abused its discretion in giving the instruction; he did not raise it as a federal claim.
Notably, petitioner does not deny the failure to present this claim on direct appeal.
Rather, he objects on the basis that he is “actually innocent” and, therefore, any default should be
excused, because conviction of an actually innocent person could be nothing but a violation of
due process. (Obj. at 912.) He further claims that, on direct appeal, his appointed counsel
discussed several federal cases addressing due process and, therefore, this “qualifies as meeting
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the fair presentation requirement to avoid procedural default.” (Id.) Finally, petitioner argues that
the R&R completely ignores the fact that the state court of appeals found it was error, albeit
harmless, to have given the flight instruction; he concludes that this amounted to “tipping the
scales of justice in favor of the state and convicting an innocent man,” which, in his view, surely
must be error. (Id. at 913.)
Petitioner’s objections are not convincing. He points to no error in the R&R’s analysis
and cites no law supporting his arguments. Rather, he simply insists that it should be enough that
he is “innocent.” Ground Two is procedurally defaulted and the Court overrules petitioner’s
objections to the contrary.
Ground Three
In ground three, petitioner claims that it was prosecutorial misconduct for the prosecuting
attorney, during closing argument, to make misstatements of fact and to improperly vouch for the
credibility of witnesses. As noted by the R&R, because there was no contemporaneous objection
at trial, the state court reviewed the matter under the plain error standard, and found no error.
The Sixth Circuit has long held that Ohio’s “contemporaneous-objection rule is an
adequate and independent state ground barring federal habeas review,” and that “plain-error
review is not inconsistent with [ ] procedural default.” Awkal v. Mitchell, 613 F.3d 629, 649 (6th
Cir. 2010) (citations omitted).
By way of objection, petitioner concedes that his trial counsel did not contemporaneously
object (Obj. at 913), but argues that this amounted to ineffective assistance of counsel sufficient
to establish cause for any procedural default. But, as pointed out by the R&R, the “cause”
standard of procedural default requires a showing of “some objective factor external to the
defense counsel’s efforts[.]” (R&R at 899, quoting Wogenstahl v. Mitchell, 668 F.3d 307, 321
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(6th Cir. 2012) (quoting McClesky v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 113 L. Ed. 2d
517 (1991)).
Petitioner does not refute this reasoning, but merely argues that the prosecuting attorney
had a “sworn duty” to uphold the law, even if the defense attorney does not object. (Obj. at 91314.) In his view, this deprived him of his right to a fair trial, and “in combination with actual
innocence …, should constitute cause to excuse any perceived procedural default as a
fundamental miscarriage of justice has occurred[.]” (Id. at 914.) No matter what petitioner’s view
may be as to what “should” constitute cause, he supplies no authority suggesting that his view of
the law is accurate.
Petitioner’s objection does not overcome the procedural default. His objection is
overruled.
Grounds Four and Five
These grounds address ineffective assistance of counsel. Petitioner attempted to raise
these two grounds for the first time in his Rule 26(B) application. They were rejected as untimely
by the state court. Courts have routinely found the timeliness requirement of Rule 26 to be an
adequate and independent ground upon which to foreclose federal habeas review. (See R&R at
899, citing cases.) Due to petitioner’s failure to timely raise these claims, no state court has
examined them, and, as properly noted by the R&R, they are procedurally default.
Petitioner’s primary objection is that “it is difficult to understand how the blatant
violation of [his] 6th amendment rights can be ignored” and why the procedural default would
not be “excused by an untimely filing of the claim pro-se.” (Obj. at 915.) He claims “a
fundamental miscarriage of justice[.]” (Id.) He also objects to the R&R’s refusal to credit his
claim of “actual innocence” as “cause” for his procedural default. Petitioner relies upon the fact
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that he himself was stabbed by the person he allegedly robbed, apparently believing that this
somehow would establish his actual innocence of the crimes of which he was convicted. There is
no merit in that assertion, as one can certainly be both a perpetrator and a victim at the same
time.
Petitioner also argues, without any supporting citation to the record, that “the sentencing
Judge himself said that he believed the alleged victim should have himself been charged for his
stabbing the petitioner so many times.” (Id. at 916.) Petitioner then asserts that, despite so
finding, the judge was “reluctant to take such [ ] drastic actions [i.e., setting aside the conviction]
for fear of repercussions at re-election time.” (Id.) There is no basis other than petitioner’s
subjective belief to support these assertions. Even if it were true that the sentencing judge made
such a comment, petitioner does not explain how or why this would “serve to excuse the
perceived default[.]” (Id.)
In fact, the Court’s own review of the sentencing transcript reveals that the judge
specifically noted that petitioner and his family improperly “focus[ed] on the conduct of the
victim” and made much “of the fact [of] the stabbing 14 times, … [and] all kinds of issues, none
of which dealt with [petitioner’s] conduct going into that home and having a gun and committing
the offense. What happened thereafter is on the alleged victim in this case, whether or not he
should have been charged.” (Answer at 776, emphasis added.) The sentencing judge stated that
none of those matters were before the jury or before him. In other words, the victim’s own
conduct was not relevant at trial or at sentencing, and it remains so on habeas review.
Petitioner’s objections with respect to grounds four and five are overruled.

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2.

Merits Review – Ground One

The R&R correctly noted that an application for writ of habeas corpus cannot be granted
unless a claim adjudicated on the merits in state court “(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.” (R&R at 901 (quoting 24 U.S.C. § 2254(d)).)
In ground one, petitioner challenges the sufficiency and weight of the evidence against
him, the latter not being cognizable on federal habeas review, and the former entitled to “double
deference” by habeas courts. (Id. at 901-02, citing cases.)
The R&R quoted at length the analysis by the state appellate court of this same
insufficiency claim, and found no error. (See id. at 905-07.) The R&R notes that petitioner is
essentially arguing only that “the jury should have believed his version of the events or that his
version is more plausible.” (Id. at 907.) Finding nothing “unreasonable” about the state court’s
determination that sufficient evidence existed to support petitioner’s convictions, the R&R found
ground one to be without merit.
In objection, petitioner does little more than attack the R&R’s “boilerplate recitation of
the applicable law[.]” (Obj. at 916-17.) But, boilerplate or not, it is that law that must guide this
Court’s analysis.
Petitioner does no more than argue that his version is “what happened”7 and that his
conviction “is a fundamental miscarriage of justice[.]” (Id. at 917.) He criticizes the R&R for its

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He asserts: “This petitioner went to the alleged victim’s house to simply purchase a small quantity of recreational
marijuana. An argument broke out and the alleged victim stabbed this petitioner numerous times. To cover up the

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failure to mention the police reports that he added to his traverse. Without citation, he claims the
police reports prove that witnesses were lying and, without those lies, he could not have been
convicted. True or not, a habeas court does not sit to reweigh the evidence or to judge the
credibility of witnesses. Rather, this Court must apply § 2254(d) to determine whether its
requirements have been met. That review is narrow. Other than disagreeing with the outcome of
the R&R on this issue, petitioner points to no particular error.
The objections regarding ground one are overruled.

III. CONCLUSION
For the reasons discussed above, petitioner’s objections to the R&R are overruled and the
R&R is accepted. 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: November 30, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

brutal attack, the alleged victim and his pregnant girlfriend concocted the phony robbery story.” (Obj. at 917.) This
is a version of the facts that, apparently, the jury did not believe.

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