Fikes v. Warden Warren Correctional Institution

Filing 22

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 16 Report and Recommendation. The Court DENIES Petitioner's Petition 1 WITH PREJUDICE. The Court further DENIES 21 Petitioner's Motion for Expansion of the Record. The Court FINDS that a certificate of appealability should not issue with respect to Petitioner's grounds for relief and CERTIFIES that an appeal of this Order would not be taken in good faith, therefore denying Petitioner leave to proceed on appeal in forma pauperis. Signed by Judge S Arthur Spiegel on 2/8/2012. (km1) (Additional attachment(s) added on 2/8/2012: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOSHUA FIKES,
Petitioner,
v.
WARDEN, WARREN CORRECTIONAL
INSTITUTION,
Respondent.

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NO. 1:10-CV-00021

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 16) and Petitioner’s Objections
(doc. 20).

Also before the Court is Petitioner’s Motion for

Expansion of the Record (doc. 21).

For the reasons indicated

herein, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report
and Recommendation and DENIES Petitioner’s Petition for Writ of
Habeas Corpus (doc. 1), with prejudice.

The Court further DENIES

Petitioner’s Motion for Expansion of the Record (doc. 21).
Petitioner filed his pro se Petition for a Writ of Habeas
Corpus on January 15, 2010, challenging his convictions in the
Hamilton County, Ohio Court of Common Pleas for one count of murder
with specifications and having weapons while under disability, for
which he was sentenced to consecutive terms of imprisonment of
fifteen years to life for his murder conviction and four years for
having weapons while under disability (doc. 16).

In addition,

Petitioner received a sentence of three years for the firearm

specifications, to be served prior to and consecutive with his
other sentences (Id.).
Petitioner raises six grounds for habeas relief: 1)
denial of effective assistance of trial counsel when counsel
instructed Petitioner to testify only in accordance with his adult
record, 2) denial of a fundamentally fair trial when the trial
court erroneously instructed the jury as to Petitioner’s selfdefense claim, 3) denial of a right to trial by jury, 4) denial of
effective assistance of trial counsel when counsel failed to object
to a witness’ inadmissible opinion testimony on self-defense, 5)
denial of effective assistance of trial counsel when trial counsel
failed to object to prosecutorial misconduct, and 6) denial of due
process of law because of the prosecutor’s knowing use of perjured
testimony. (Id.).
I. The Magistrate Judge’s Report and Recommendation
The

Magistrate

Judge

thoroughly

reviewed

all

of

Petitioner’s grounds for relief (doc. 16). The Magistrate Judge
found the first ground for relief lacking merit, the third ground
for relief not cognizable in habeas corpus, and grounds two, four,
five, and six procedurally defaulted (Id.).
A. Ground One
The Magistrate Judge found Petitioner’s first ground for
relief without merit (Id.). Petitioner claims he was denied the
effective assistance of trial counsel when counsel instructed him
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to testify only in accordance with his adult record, therefore
opening the door for impeachment testimony concerning Petitioner’s
juvenile record (Id.). Petitioner further claims that if not for
the alleged ineffectiveness of counsel the outcome of the case
would have been different (Id.). He argued that trial counsel’s
mistake was fatal to his case, as the success of his self-defense
claim was dependent on his credibility (Id.). The Magistrate Judge
concluded that counsel was not deficient in his representation and
Petitioner failed to show prejudice as required by Strickland. (Id.
citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). The
Magistrate Judge determined that trial counsel made a strategic
decision to directly address Petitioner’s lifestyle as a drug
dealer and establishing Petitioner’s history of selling drugs was
necessary to support trial counsel’s assertion that the incident
was the result of the territorial nature of selling drugs (doc.
16). Therefore, the Magistrate Judge found that trial counsel’s
performance was guided by sound trial strategy (Id.). Additionally,
the Magistrate Judge concluded that because the trial counsel had
relied heavily on referencing Petitioner’s history of selling
drugs,

the

outcome

of

the

trial

would

not

have

changed

had

Petitioner’s juvenile drug convictions not come to light (Id.).
Thus,

Petitioner failed to show he was prejudiced by counsel’s

deficient performance as required by Strickland (Id.).

3

B.

Ground Three
Petitioner’s third ground for relief is that the Ohio

Court of Appeals invaded the province of the jury when the court
“weighed

the

evidence,

made

credibility

determinations,

and

concluded that the jury would have rejected [Petitioner’s] selfdefense claim” (doc. 16). He argues that the decision violated his
Sixth Amendment right to have a jury decide his guilt or innocence
(doc. 16). The Sixth Circuit has held that “habeas corpus is not
the proper means by which prisoners should challenge errors or
deficiencies in state post-conviction proceedings.” (Id. citing
Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001)). Additionally,
a ground for relief that challenges the correctness of a state
judicial proceeding and does not dispute the detention itself is
not cognizable. See Kirby, 794 F.2d at 247-48. Accordingly, the
Magistrate Judge held that ground three should be denied as it is
not cognizable on federal habeas review (doc. 16).
C.

Grounds Two, Four, Five, and Six
The Magistrate Judge determined that grounds two, four,

five, and six are procedurally defaulted because Petitioner failed
to raise the underlying claims alleged in these grounds on direct
appeal to the Ohio Court of Appeals (Id.).

A federal habeas court

may hold claims procedurally defaulted if it is clear the state
court would hold the claim procedurally barred. (Id. citing Harris
v. Reed, 489 U.S. 255, 263 (1989)).
4

Claims not raised on direct

appeal are barred by the doctrine of res judicata under Ohio law.
(Id. citing State v. Perry, 226 N.E.2d 104, 105-06 (Ohio 1967)).
The Magistrate Judge found that Petitioner’s claims of ineffective
appellate counsel did not preserve the merits of the underlying
claims for habeas review. Petitioner therefore waived the claims in
grounds two, four, five, and six absent a showing of cause and
actual prejudice or that failure to consider the claims would
result in a “fundamental miscarriage of justice.”

(Id. citing

Coleman v. Thompson, 501 U.S. 722, 750 (1991). In order for
ineffective assistance of counsel to serve as cause to excuse a
procedural default, Petitioner must show his appellate counsel’s
failure to raise the claims rose to the level of a constitutional
violation

under

Strickland

by

demonstrating

a

reasonable

probability that inclusion of the issue would have changed the
result of the appeal. (Id. citing McFarland v. Yukins, 356 F.3d
688, 699 (6th Cir. 2004)).
The Magistrate Judge found Petitioner’s second ground for
relief to be procedurally defaulted without cause (doc. 16). In his
second ground for relief, Petitioner asserted that he was denied
his right to a fair trial under the Due Process Clause of the
Fourteenth Amendment because of the trial court’s jury instruction
that “one has no duty to retreat in one’s home” (Id. citing doc.
1).

The Ohio appellate court found Petitioner’s appellate counsel

was not ineffective for failing to raise the jury instruction claim

5

because the error was not prejudicial (Id. citing doc. 7).

The

Magistrate determined that this state court decision was not
contrary to or an unreasonable application of federal law as
required by 28 U.S.C. § 2254(d), and Petitioner therefore failed to
establish cause for his procedural default of the underlying trial
error claim alleged in Ground Two (doc. 16).
In his fourth ground for relief, Petitioner asserts he
was denied effective assistance of trial counsel due to counsel’s
failure to object to Detective Randolph’s testimony regarding the
use of excessive force (Id. citing doc. 1).

The Magistrate Judge

determined that Ohio courts could reasonably conclude that trial
counsel’s alleged ineffectiveness in failing to object would not
have altered the outcome of Petitioner’s trial (Id.). Furthermore,
the Magistrate Judge determined the state courts would not be
unreasonable in determining appellate counsel was not ineffective
for failing to raise this claim (Id.).

Therefore, the Magistrate

Judge found that Petitioner failed to establish cause for the
procedural default of the underlying error alleged in ground four
(doc. 16).
Petitioner’s fifth ground for relief claims he was denied
the effective assistance of trial counsel because of counsel’s
failure to challenge instances of alleged prosecutorial misconduct
(doc. 16).

The

Magistrate Judge determined two of the four

alleged instances of misconduct were procedurally defaulted by

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Petitioner without cause or prejudice.

The Ohio Court of Appeals

found the other two allegations of misconduct did not deny the
Petitioner a fair trial, and the Magistrate Judge determined the
allegations did not deprive Petitioner of due process (Id.).
Therefore,

the

Petitioner

failed

to

establish

cause

for

his

procedural default of the underlying trial errors alleged in ground
five (Id.).
Petitioner’s

sixth

ground

for

relief

alleges

a

Due

Process Clause violation based on the prosecutor’s knowing use of
perjured testimony (doc. 16).

The Magistrate Judge found this

argument without merit because Petitioner failed to demonstrate a
reasonable probability that inclusion of the perjured testimony
claim would have changed the result of his appeal.

The Magistrate

Judge found there was no significant difference between the actual
statement and the witness’s recollection of the statement in his
testimony.

In addition, the actual statement was played during

trial (doc. 16).

Therefore, the Petitioner failed to establish

cause for his procedural default of the underlying trial error
alleged in ground six(Id.).
Finally, the Magistrate Judge concluded that Petitioner
did not demonstrate that a fundamental miscarriage of justice will
occur if his procedurally-defaulted claims for relief are not
considered (doc. 16).

The Magistrate Judge therefore recommended

that Petitioner’s petition for writ of habeas corpus be denied with

7

prejudice.
II.

Petitioner’s Objections to the Magistrate Judge’s Report and
Recommendation.
Petitioner objects to the Magistrate Judge’s Report and

Recommendation on grounds one, two, five, and six (doc. 20). As for
ground one, Petitioner objects to the Magistrate Judge’s finding
that the state court’s determination of his ineffective assistance
of trial counsel claim was not an unreasonable application of
Strickland (Id.).
defense

claim

Petitioner contends that because his self-

was

dependent

upon

his

credibility,

it

was

unreasonable for his attorney to advise him to testify only in
accordance with his adult record, thereby leaving the door open for
the

prosecution

to

impeach

his

credibility

with

a

juvenile

conviction (Id.). Petitioner argues it is “quite possible” that the
jury rejected his self-defense claims on credibility grounds (Id.).
Petitioner claims that the Magistrate Judge failed to conduct any
analysis regarding how trial counsel’s instructions caused him to
appear dishonest to the jury (Id.).
As for ground two, Petitioner argues the erroneous jury
instruction

had

a

substantial

and

injurious

influence

in

determining the jury’s verdict and resulted in actual prejudice
(doc. 20).

Petitioner claims that the jury instruction gave the

jurors latitude to believe Petitioner had not proven the first
element of his self-defense claim (Id.).

Petitioner argues that

the state court’s reasoning improperly invaded the province of the
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jury by finding the error was not demonstrably prejudicial (Id.).
As for ground five, Petitioner argues two instances of
prosecutorial misconduct were in fact presented to the state courts
and therefore his ineffective assistance of trial counsel and
ineffective

assistance

of

appellate

counsel

claims

are

not

procedurally defaulted (doc. 20).
As for ground six, Petitioner objects to the Magistrate
Judge’s finding that Petitioner was not prejudiced by the alleged
error in Detective Randolph’s testimony and that his appellate
counsel was not ineffective for failing to raise the claim (doc.
20).

Petitioner

argues

that

he

sustained

his

burden

of

demonstrating that the detective’s testimony was indisputably false
and material to the issue of guilt or innocence (Id.).
III. Analysis
The Court finds Petitioner’s objections lacking in
merit.

Although Petitioner skillfully stated his objections (doc.

20), the Magistrate Judge’s original Report and Recommendation
(doc. 16) offered an incredibly thorough review of the record and
the applicable law. This review has convinced the Court that
Petitioner is not entitled to the habeas relief he seeks in his
Petition.
First, in regards to ground one, Petitioner argues that
the Magistrate Judge failed to conduct any analysis regarding how
trial counsel’s instructions caused him to appear dishonest to the

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jury (doc. 20). However, the Magistrate Judge expressly noted that
in light of the other evidence presented in this case, “it is
highly unlikely that evidence of Petitioner’s juvenile record and
his failure to initially disclose the conviction had a prejudicial
impact on the jury’s verdict” (doc. 16).

The Court agrees with

this determination.
As for ground two, the Court agrees with the Magistrate
Judge’s conclusion that the Ohio appellate court finding regarding
the jury instruction claim was not contrary to federal law under
Section 2254(d)(doc. 16).

The Court agrees that the Ohio Court of

Appeals reasonably determined the underlying jury instruction was
not prejudicial (Id.).

Therefore, the underlying claim alleged in

ground two is procedurally defaulted.
As for ground five, the Court agrees the two instances of
prosecutorial

misconduct

are

procedurally

defaulted

(Id.).

Petitioner waived his ineffective assistance of appellate counsel
claim based on trial counsel’s failure to challenge the alleged
instances of prosecutorial misconduct because he failed to fairly
present these claims to the Ohio courts.
Finally, the Court agrees with the Magistrate Judge’s
analysis of ground six (doc. 16).

Since the actual statement was

played during trial, Petitioner cannot demonstrate that he was
prejudiced by the alleged error.

Accordingly, Petitioner has not

demonstrated a reasonable probability that his appeal would have

10

been successful if the alleged error was raised on appeal.
IV. Petitioner’s Motion for Expansion of the Record
Petitioner

seeks

to

expand

the

record

to

include

documents relating to Petitioner’s statement to the police (doc.
21). Under Rule 7 of the Rules Governing § 2254 Cases, the judge
may direct the parties to expand the record if the petition is not
dismissed.

Since the Court is dismissing the petition with

prejudice, the Petitioner’s motion is DENIED.

Furthermore, the

proposed documents would not alter the Court’s conclusion that
ground six is procedurally defaulted without cause. The Court has
determined that additional materials would not alter the merits of
Petitioner’s argument on ground six.

The Court agrees with the

Magistrate Judge that there is no discernable difference between
the detective’s testimony and Petitioner’s comments during his
interview (doc. 16).

In addition, Petitioner’s actual statement

was played during his trial, so Petitioner cannot demonstrate he
was prejudiced by the alleged inaccurate testimony (doc. 16).
Therefore, the Court finds Petitioner’s Motion for Expansion of the
Record lacking in merit.
V.

Conclusion
Having

reviewed

this

matter,

the

Court

finds

the

Magistrate Judge’s Reports and Recommendations well-taken in all
respects. The Court therefore ADOPTS and AFFIRMS the Magistrate
Judge’s Reports and Recommendations (doc. 16).
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As such the Court

DENIES Petitioner’s Petition (doc. 1) with prejudice.

The Court

further DENIES Petitioner’s Motion for Expansion of the Record
(doc. 21).
The

Court

further

FINDS

that

a

certificate

of

appealability should not issue with respect to the underlying trial
errors alleged in Grounds Two, Four, Five, and Six, which this
Court has concluded are waived and thus barred from review on a
procedural ground, because under the first prong of the applicable
two-part standard established in Slack v. McDaniel, 529 U.S. 473,
484-85 (2000), “jurists of reason” would not find it debatable
whether this Court is correct in its procedural ruling.

The Court

similarly finds that a certificate of appealability should not
issue with respect to any other claims alleged in Petition because
Petitioner has failed to make a substantial showing of the denial
of a constitutional right based on these claims.

28 U.S.C. §

2253(c); Fed R. App. P. 22(b).
Finally, the Court CERTIFIES pursuant to 28 U.S.C. §
1915(a)(3) that an appeal of this Order would not be taken in good
faith, and therefore the Court DENIES Petitioner leave to proceed
on appeal in forma pauperis upon a showing of financial necessity.
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th
Cir. 1997).
SO ORDERED.
Dated: February 8, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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