Howard v. DeWine

Filing 13

Order Adopting Report and Recommendation (re 10 ) in its entirety and denies Howard's Petition for Writ of Habeas Corpus (ECF No. 1). The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 5/5/2016. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CURTIS T. HOWARD, Pro Se,
Petitioner
v.
MIKE DEWINE, Warden,
Respondent

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Case No.: 5:14 CV 2587

JUDGE SOLOMON OLIVER, JR.

ORDER

On November 24, 2014, pro se Petitioner Curtis T. Howard (“Petitioner” or “Howard”) filed
a Petition for Writ of Habeas Corpus (“Petition”) (Pet., ECF No. 1), pursuant to 28 U.S.C. § 2254
in the above-captioned case, challenging the constitutionality of his state court conviction and
sentence for one count of felonious assault. Petitioner was sentenced to eight years’ imprisonment.
He argues that his Petition should be granted based upon the following grounds:
Ground One:

The trial court Erred in allowing testimony as to other acts and
evidence, denying Appellant Due Process and Equal Protection under
the U.S. Constitution and of Ohio.

Ground Two:

The trial court Erred in its instructions as pertains to Other Acts and
Prior Convictions, said instructions are Plain Error.

Ground Three:

The trial court Erred when it failed to give a Jury Instruction of
Aggravated Assault, an inferior offense of Felonious Assault.

(Pet. at 5-7). Pursuant to Local Rule 72.2, this court referred the case to Magistrate Judge James R.
Knepp, II (“Magistrate Judge” or “Judge Knepp”), on December 23, 2014, for preparation of a
Report and Recommendation (“R&R”).

On March 12, 2015, Respondent Mike DeWine

(“Respondent”) filed a Return of Writ, arguing the following: (1) Ground One of Howard’s Petition

is not cognizable; (2) Ground Two of Howard’s Petition is procedurally defaulted; and (3) Ground
Three of Howard’s Petition is meritless and not cognizable. (ECF No. 5 at 7-19.) Howard filed a
Traverse on April 28, 2015. (ECF No. 9.)
On April 6, 2016, Judge Knepp submitted an R&R, recommending that this court deny the
Petition. (R&R at 15, ECF No. 10.) Specifically, Judge Knepp determined that the court should
dismiss Howard’s first ground for relief because he has not demonstrated that the trial court acted
contrary to, or unreasonably applied, federal law when it permitted the admission of other acts
evidence. (Id. at 11.) The Magistrate Judge further concluded that Howard failed to demonstrate
that he was subjected to a fundamentally unfair process. (Id. at 11-12.) In denying Howard’s
second ground for relief as procedurally defaulted, Judge Knepp explained that the Ninth District
Court of Appeals enforced the Ohio contemporaneous objection rule, Ohio Crim. R. 30(a), by
analyzing the allegation of improper jury instruction regarding other acts evidence under plain error
review. Thus, Judge Knepp concluded that the court of appeals’s enforcement of Ohio’s
contemporaneous objection rule “constitute[d] an independent state ground barring federal review
absent a showing of the cause for waiver and resulting prejudice,” and that Howard failed to show
any such cause or prejudice. (R&R at 10 (quoting Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.
2001).) With respect to Howard’s third ground for relief, Judge Knepp concluded that, based on the
record, the Ninth District Court of Appeals correctly concluded that the trial court did not err in
declining to instruct the jury on aggravated assault, and noted that the Constitution does not require
courts to instruct on lesser-included offenses in non-capital cases, such as Howard’s case. (R&R
at 13-14.) Accordingly, Judge Knepp determined that Howard’s third ground for relief “falls beyond
the authority of a habeas court.” (R&R at 14.)

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On April 28, 2016, Petitioner filed an Objection to the Report and Recommendation (ECF
No. 12). With respect to Ground One, Howard disagrees with Judge Knepp’s finding that he was
not entitled to relief based on the trial court’s admission of other acts evidence. According to
Howard, Judge Knepp misinterpreted his argument. (Obj. at 2.) Howard claims that, properly
framed, he argues that the prosecution’s request to use other acts evidence “was for the expressed
purpose of causing the jury to be prejudiced and/or impartial to his assertion of his affirmative
defense of self defense.” (Id.) The court is not persuaded. Petitioner points to no evidence in the
record suggesting that the trial court granted the state’s request to use other acts evidence for the
“expressed purpose of causing the jury to be prejudiced,” as Howard claims. (Id.) (emphasis added.)
To the extent that Howard argues, consistent with the dissent in State v. Howard, 9th Dist., Summit
Cty No. 26897, 2014-Ohio-1334, that the other acts evidence was offered to show that Howard acted
in conformity with his character to cut people and then claim self-defense, the court agrees with the
Magistrate Judge’s careful reasoning set forth in the R&R on the issue. Thus, Petitioner’s first
objection is overruled.
Petitioner next objects to the Magistrate Judge’s conclusion that his third ground for relief
is not cognizable. However, Howard merely reiterates the arguments set forth in his Traverse.
(Compare Obj. at 3-4, ECF No. 12 with Traverse at 11-18, ECF No. 9.) The Magistrate Judge
thoroughly addressed Petitioner’s arguments in the R&R, and the court finds the reasoning welltaken. Accordingly, Petitioner’s second objection is overruled.
The court finds that, after careful de novo review of the R&R and all other relevant
documents, the Magistrate Judge’s conclusions are fully supported by the record and controlling
case law. Accordingly, the court adopts as its own Judge Knepp’s R&R (ECF No. 10) in its entirety

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and hereby denies Howard’s Petition for Writ of Habeas Corpus (Pet., ECF No. 1). The court also
certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken
in good faith, and that there is no basis on which to issue a certificate of appealability. Fed. R. App.
P. 22(b); 28 U.S.C. § 2253(c) (2015).
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

May 5, 2016

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