Whitman v. Gray
Filing
50
Opinion and Order signed by Judge James S. Gwin on 9/8/2021. The Court OVERRULES Petitioners objections, ADOPTS the reasoning of the Report and Recommendation in part and the conclusions in full, and DENIES Whitmans habeas corpus petition. Moreover, the Court ISSUES a certificate of appealability for Grounds One and Three. The Court DECLINES to issue a certificate of appealability for all other grounds re 46 1 48 41 (S,KM)
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 1 of 10. PageID #: 2220
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
RICHARD STANTON
WHITMAN,
Petitioner,
v.
WARDEN DAVID W. GRAY,
Respondent.
:
:
:
:
:
:
:
:
:
:
:
:
CASE NO. 5:19-cv-01818
OPINION & ORDER
[Resolving Doc. 1]
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Petitioner Richard Stanton Whitman is presently serving a 21-year to life sentence for
murder with a firearm specification and for having a weapon while under a disability. 1
Under 28 U.S.C. § 2254, Whitman filed a pro se petition for a writ of habeas corpus. 2
Warden Gray filed a return. 3 Petitioner Williams filed a traverse. 4 After an automatic
referral, 5 Magistrate Judge Parker filed a Report and Recommendation, recommending that
this Court deny Whitman’s petition. 6
Petitioner objected to most of the Report and
Recommendation. 7 This Court reviews the objected-to portions de novo. 8
1
Doc. 8-1 at 37–48.
Doc. 1.
3
Doc. 8.
4
Doc. 25.
5
Local Rule. 72.2.
6
Doc. 41.
7
Doc. 48.
8
28 U.S.C. § 636(b)(1)(C).
2
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 2 of 10. PageID #: 2221
Case No. 5:19-cv-01818
GWIN, J.
For the following reasons, the Court OVERRULES Petitioner’s objections, ADOPTS
the reasoning of the Report and Recommendation in part 9 and the conclusions in full, and
DENIES Whitman’s habeas corpus petition.
I.
Background
Petitioner Whitman shot and killed David Eadie. Despite Whitman’s claim that he
acted in self-defense, an Ohio jury found him guilty of murder with a firearm specification
and found him guilty of having a weapon while under a disability. 10
Previously, Whitman unsuccessfully challenged his conviction in state court through
direct and collateral appeal. 11
Now, Whitman challenges his conviction in federal court under 28 U.S.C. § 2254. In
his habeas corpus petition, Whitman raises ten grounds for relief. 12 Magistrate Judge Parker
addressed each of these grounds in a Report and Recommendation. 13
Petitioner Whitman objects to Magistrate Judge Parker’s Report and Recommendation
as to Grounds One, Two, Three, Six, Nine, and Ten. 14 This Court addresses each of
Whitman’s objected-to grounds in turn.
II.
Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 15 governs
federal courts’ review of a state prisoner’s habeas corpus petition. Under AEDPA, federal
9
In evaluating Petitioner’s Ground One claim, this Court applied the “substantial and
injurious effect” standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
10
Doc. 41 at 3.
11
Id. at 3–18.
12
Doc. 1.
13
Doc. 41.
14
Doc. 48.
15
Pub. L. No. 104–132, 110 Stat. 1214 (1996).
-2-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 3 of 10. PageID #: 2222
Case No. 5:19-cv-01818
GWIN, J.
courts may only consider claims that a petitioner is in custody in violation of the United
States’ Constitution, laws, or treaties. 16
Further, AEDPA prohibits federal courts from granting a habeas petition for any claim
the state court adjudicated on the merits unless the state court’s decision:
(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 upon
an unreasonable determination of facts in light of the evidence presented in
the State court proceeding. 17
Before reviewing a habeas petition claim on the merits, federal courts generally
consider whether the claim was procedurally defaulted in the state courts. Procedural default
may occur in two ways. First, a claim is procedurally defaulted if the habeas petitioner failed
to comply with state procedural rules while presenting his claim to the appropriate state
court, and the state court enforced that rule and declined to reach the merits of Petitioner’s
claims. 18
Most often, however, procedural default occurs because a petitioner does not raise a
claim while in state court proceedings and the state’s res judicata rules cause the claim’s
forfeiture. 19 Under Ohio res judicata rules, if a petitioner “failed to raise a claim on direct
appeal, which could have been raised on direct appeal, the claim is procedurally
defaulted.” 20
To overcome procedural default, a petitioner must show: (1) cause for the default and
actual prejudice resulting from the alleged federal law violation, or (2) that there will be a
16
28 U.S.C. § 2254(a).
See 28 U.S.C. § 2254(d); see also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).
18
Williams v. Anderson, 460 F.3d 789, 805–806 (6th Cir. 2006).
19
Id. at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982)).
20
Id.
17
-3-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 4 of 10. PageID #: 2223
Case No. 5:19-cv-01818
GWIN, J.
fundamental miscarriage of justice if the court does not consider the claim. 21 “Cause” is a
legitimate excuse for the default, and “prejudice” is actual harm caused by the alleged
constitutional violation. 22 If a petitioner fails to show cause for their procedural default, a
court need not consider prejudice. 23 Finally, “a fundamental miscarriage of justice” is the
conviction of one who is “actually innocent.” 24
III.
Discussion
A. Petitioner Whitman’s Ground One Is Not Cognizable.
In Ground One, Petitioner Whitman claims that the trial court’s refusal to instruct
the jury on the Ohio Castle Doctrine violated his federal due process rights. 25 Further,
Whitman argues it was a structural, rather than harmless, constitutional error. 26
In a federal habeas action, errors in state-law jury instructions are generally not
reviewable 27 because a federal habeas court does not act as an appeal court for state court
decisions on state law questions. 28 Therefore, to the extent that Whitman challenges the
Ohio courts’ decisions regarding the Ohio Castle Doctrine jury instructions, his claim is not
reviewable in a federal habeas action. 29
A state court ruling on an issue of jury instructions may, however, rise to the level of
a due process violation if it, “subverts the presumption of innocence or relieves the state of
21
Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (citing Coleman v. Thompson,
501 U.S. 722, 749–750 (1991)).
22
Castro v. Harris, No. 1:18-CV-1167, 2018 WL 3829101, at *3 (N.D. Ohio Aug. 13, 2018).
23
See Smith v. Murray, 477 U.S. 527, 532 (1986).
24
Lundgren, 440 F.3d at 764 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
25
Doc. 1 at 5–6; Doc. 48 at 3–37.
Id.
Lampley v. Bunting, No. 1:13-CV-1102, 2013 WL 5670947, at *11 (N.D. Ohio Oct. 15,
2013) (citing Wood v. Marshall, 790 F.2d 548, 551 (6th Cir. 1986)).
28
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
26
27
29
Doc. 25 at 11–12, 49, 58–60.
-4-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 5 of 10. PageID #: 2224
Case No. 5:19-cv-01818
GWIN, J.
its burden to prove every element of a crime beyond a reasonable doubt.” 30 This limited
exception does not apply here.
At trial, Ohio and Whitman disagreed whether Whitman created the fight with the
victim and whether Whitman reasonably believed that shooting the victim was his only
choice to avoid great bodily harm or death. 31 The Ohio trial judge gave Whitman’s
requested self-defense jury instruction but did not give a Castle Doctrine instruction
because Whitman was only temporarily at his sister’s residence. 32 Whether Ohio’s Castle
Doctrine instruction applied is a quintessential state law question and the trial court’s
decision is not a due process violation.
Any error in not instructing the jury on the Castle Doctrine did not have a
substantial and injurious effect or influence in determining the jury’s verdict.
B. Petitioner Whitman’s Ground Two Is Procedurally Defaulted.
In Ground Two, Petitioner Whitman claims that the trial court erred when it admitted
certain prior bad act evidence in violation of the Ohio and Federal Rules of Evidence. 33
While Whitman raised this evidentiary issue in his direct appeal to the Ohio Court of
Appeals, 34 he omitted it from his memorandum in support of jurisdiction to the Ohio
Supreme Court. 35
Therefore, Whitman’s claim is procedurally defaulted. 36
Moreover,
Brown v. Jess, No. 19-CV-1010-BBC, 2021 WL 681097, at *4 (W.D. Wis. Feb. 22, 2021)
(citing In re Winship, 397 U.S. 358, 364 (1970)). See Wood, 790 F.2d at 551 (“The petitioner must
30
show more than that the instructions are undesirable, erroneous, or universally condemned.”).
31
Doc. 8-1 at 158.
32
Id. at 155–157.
33
Doc. 1 at 7.
34
Doc. 8-1 at 161–163.
35
Id. at 174–187.
36
Williams, 460 F.3d at 806 ((holding a claim procedurally defaulted where the petitioner
raised it before the Ohio Court of Appeals but not the Ohio Supreme Court while pursuing direct
review) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999))).
-5-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 6 of 10. PageID #: 2225
Case No. 5:19-cv-01818
GWIN, J.
Whitman cannot establish cause to overcome the default. It is insufficient that Whitman was
acting pro se and may have received incorrect legal advice from another inmate. 37
C. Petitioner Whitman’s Ground Three Is Procedurally Defaulted.
In Ground Three, Petitioner Whitman claims that his trial counsel was ineffective for
failing to investigate evidence that police altered the crime scene by moving the victim. 38
Though Whitman could have raised this ineffective-assistance-of-trial-counsel claim
on direct appeal, he failed to do so. 39 Therefore, Whitman procedurally defaulted the claim.
To establish cause to overcome his procedural default, Whitman points to the
Martinez/Trevino framework. 40 In Trevino, 41 the Supreme Court held that:
[W]here . . . [a] state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have
a meaningful opportunity to raise a claim of ineffective assistance of trial
counsel on direct appeal, our holding in Martinez applies[.] 42
In Martinez, 43 the Court held that:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.
But “Martinez does not apply [to Ohio habeas petitioners] because Ohio permits
ineffective-assistance-of-trial-counsel claims on direct appeal” making the exception
Doc. 1 at 7–8; See Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995) (holding a
petitioner’s pro se status and ignorance of their rights do not constitute cause excusing procedural
default).
38
Doc. 1 at 8–9.
39
On collateral appeal, the Ohio Court of Appeals applied res judicata as an alternative
ground for denying relief. Doc. 8-1 at 354.
40
Doc. 48 at 50.
41
Trevino v. Thaler, 569 U.S. 413, 429 (2013).
42
Id. (citing Martinez v. Ryan, 566 U.S. 1, 17 (2012)).
43
Martinez v. Ryan, 566 U.S. 1, 17 (2012).
37
-6-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 7 of 10. PageID #: 2226
Case No. 5:19-cv-01818
GWIN, J.
inapplicable. 44 In Ohio, defendants receive access to court-appointed or privately retained
counsel for the direct appeal from their conviction. Martinez does not apply to Ohio’s
scheme.
Further, Trevino does not apply in this case. Whitman argues that he could not have
raised this ineffective-assistance-of-trial-counsel claim on direct appeal because it would
require evidence outside the trial record. 45 It is true that where there is insufficient evidence
for a direct appeal court to determine whether trial counsel’s assistance was ineffective, the
claim is not procedurally defaulted. 46
In his traverse, however, Whitman admits that the state played a trial bodycam video
showing police moving the victim’s body. 47 Further, photographs of the body at the scene
were introduced at trial. 48 Relying on the video and photographs in the trial record, Whitman
could have argued on direct appeal that his trial counsel was ineffective for failing to
investigate police crime scene tampering.
Accordingly, the Martinez/Trevino framework is inapplicable and does not excuse
Whitman’s procedural default.
44
45
46
Williams v. Mitchell, 729 F.3d 606, 615 (6th Cir. 2015).
Doc. 48 at 50.
White v. Warden, Ross Corr. Inst., 940 F.3d 270, 274–277 (6th Cir. 2019) (Ohio Court of
Appeals deemed direct appeal an inappropriate forum for an ineffective-assistance claim based on
trial counsel’s pending criminal indictment because the record lacked sufficient evidence); State v.
Cooperrider, 448 N.E.2d 452, 454 (Ohio 1983) (holding direct appeal was an inappropriate forum
for an ineffective-assistance claim where the allegations of ineffectiveness are based on facts not
appearing in the record).
47
Doc. 25 at 76 (“When Whitman saw the video being played at trial showing the police
moving Eadie after declaring him D.O.A. and how much the states theory had been based on Eadies
[sic] location and position after he had been moved Whitman tried to get his trial counsel to address
that issue, trial counsel ignored Whitman’s pleas.”).
48
Doc. 8-2 at 244–245.
-7-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 8 of 10. PageID #: 2227
Case No. 5:19-cv-01818
GWIN, J.
Likewise, an ineffective-assistance-of-appellate counsel claim cannot constitute cause
to excuse his procedural default as that claim would also be procedurally defaulted. 49
D. Petitioner Whitman’s Ground Six Is Procedurally Defaulted.
In Ground Six, Whitman claims that his appellate counsel was ineffective for failing
to communicate with Whitman and raise certain claims. 50
This claim is procedurally defaulted because Whitman failed to fairly present it at
each stage of Ohio’s review process. 51 While Whitman moved to replace appellate counsel
and “restrict” counsel, 52 Whitman did not raise these arguments in his memorandum to the
Ohio Supreme Court when asking it to accept jurisdiction. 53 Nor did Whitman raise these
arguments in his subsequent post-conviction proceedings. 54
Whitman has not established cause to excuse this procedural default. 55
E.
Petitioner Whitman’s Ground Nine Is Not Cognizable.
In Ground Nine, Petitioner Whitman claims that Ohio Revised Code § 2901.05
should apply retroactively to him. 56
49
Doc. 1; Doc 25.
Doc. 1 at 13–14.
51
Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).
52
Doc. 41 at 61.
53
Doc. 8-1 at 174–187.
54
Id. at 235–246, 285–296, 341–345, 359–367.
55
Doc. 1 at 13–15; Doc. 48 at 51–52. See Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)
(declining to extend the Martinez/Trevino exception regarding procedural default to claims of
ineffective assistance of appellate counsel).
56
Doc. 1 at 18.
50
-8-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 9 of 10. PageID #: 2228
Case No. 5:19-cv-01818
GWIN, J.
The retroactivity of a state statute is a matter of state law and is not reviewable on
federal habeas review. 57 The Ohio Court of Appeals’ ruling that the changes in Ohio Revised
Code § 2901.05 are not retroactive, thus, does not raise a cognizable claim. 58
Whitman responds that his conviction had not yet become final at the time Ohio
Revised Code § 2901.05 was revised. But the revised statute went into effect on March 28,
2019 and Whitman’s conviction became final on November 7, 2018, when the Ohio
Supreme Court declined to accept jurisdiction over his appeal. 59
F.
Petitioner Whitman’s Ground Ten Is Not Cognizable.
In Ground Ten, Petitioner Whitman claims that the cumulative errors in the trial jury
instructions denied him a fair trial and violated his due process rights. 60
In the Sixth Circuit, cumulative error claims are not cognizable on federal habeas
review. 61 In his objection, Whitman does not, and cannot, establish otherwise.
IV.
Conclusion
For the foregoing reasons, the Court OVERRULES Petitioner’s objections, ADOPTS
the reasoning of the Report and Recommendation in part and the conclusions in full, and
DENIES Whitman’s habeas corpus petition.
Moreover, the Court ISSUES a certificate of appealability for Grounds One and
Three. 62 The Court DECLINES to issue a certificate of appealability for all other grounds. 63
Chapman v. Tim LeMaster, 302 F.3d 1189, 1198 (10th Cir. 2002); Messenger v.
McQuiggin, No. 2:09-cv-13860, 2010 U.S. Dist. LEXIS 69871 at *21 (E.D. Mich. June 15, 2010).
57
58
59
60
61
Doc. 8-1 at 587–588.
Id. at 234.
Doc. 1 at 20.
Williams, 460 F.3d at 816 (“[T]he law of this Circuit is that cumulative error claims are not
cognizable on habeas because the Supreme Court has not spoken on this issue.”).
62
28 U.S.C. § 2253(c)(2); 28 U.S.C. § 2254(c)(3).
63
28 U.S.C. § 2253(c)(1)(A).
-9-
Case: 5:19-cv-01818-JG Doc #: 50 Filed: 09/08/21 10 of 10. PageID #: 2229
Case No. 5:19-cv-01818
GWIN, J.
IT IS SO ORDERED.
Dated: September 8, 2021
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
- 10 -
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?