Case v. Warden, Warren Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition be dismissed with prejudice and Petitioner be denied a certificate of appealability and leave to appeal in forma pauperis. Objections to R&R due by 5/30/2014. Signed by Magistrate Judge Michael R Merz on 5/13/2014. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JOHN FREDERICK CASE, II,
- vs -
Case No. 1:13-cv-245
District Judge Sandra S. Beckwith
Magistrate Judge Michael R. Merz
WARDEN, WARREN CORRECTIONAL
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 11) to
the Magistrate Judge’s Report and Recommendations recommending dismissal of the Petition
(Doc. No. 10, the “Report”). Judge Beckwith has recommitted the case for reconsideration in
light of the Objections (Doc. No. 12).
Petitioner Case pleads only one ground for relief, i.e., that his conviction on two counts
felonious assault with a firearm specification are not supported by sufficient evidence. The
Report concluded that this claim was procedurally defaulted for lack of fair presentation, that the
default could not be excused by ineffective assistance of appellate counsel, and that, in the
alternative, the claim was without merit. Case objects to all three conclusions.
The Objections concede that a habeas petitioner must present the same claim in habeas
which he presented and exhausted in the state courts (Objections, Doc. No. 11, PageID 522-23,
citing Wong v. Money, 142 313, 322 (6th Cir. 1998)). But Case says that is what he did. He
acknowledges that his state court appellate argument claimed the State’s evidence was
insufficient because he proved he had acted in self-defense (Objections, Doc. No. 11, PageID
523). But, he asserts, his federal court argument is the same:
Here in federal court Mr. Case is making the same argument. To
be sure, he is doing a better job of it here by bothering to be
particular about how the state failed – what it failed to prove. His
point continues to be that the evidence he presented showed he
acted in self-defense in turn demonstrated [sic] that he could not
have acted “knowingly” to harm Randall Deray Wiley. Stated
slightly differently, the state court argument focused on the
evidence showing he acted in self defense, while his argument here
bothers to expressly close the loop on that argument – noting that
the evidence that he acted in self defense shows that he did not
knowingly cause or attempt to cause Mr. Wiley harm. His conduct
was to [sic] intended to protect himself, end the danger to himself,
not to harm anyone.
Id. at 523-24.
This argument is not persuasive. Case was convicted of two counts of felonious assault,
one under Ohio Revised Code § 2903.11(A)(2) and one under 2903.11(A)(1) with each count
carrying a firearm specification. The elements of the first of those offenses is that the defendant
(1) knowingly (2) caused or attempted to cause (3) physical harm to another (4) by use of a
deadly weapon. The elements of the second offense are that the defendant (1) knowingly (2)
caused serious physical harm to another. Under the Due Process Clause of the Fourteenth
Amendment, the State must prove each of these elements beyond a reasonable doubt. In re
Winship, 397 U.S. 358 (1970). It is elementary that failure on any one of the elements is fatal to
the State’s case on that charge. As pointed out in the Report, a defendant could attack a
conviction for felonious assault by attacking the sufficiency of the evidence on any one of the
elements (Report, Doc. No. 10, PageID 516). For example, a defendant might claim the State
had not shown any physical harm or that a deadly weapon was used.
Case now claims that what he attacked on direct appeal was the mens rea element of
“knowingly,” which is required for each of the two counts of conviction. He says he did so by
claiming self-defense. After stating boilerplate law on sufficiency of the evidence, Case’s entire
argument on his insufficiency claim reads:
Mr. Case presented substantial evidence that he acted in selfdefense; as self-defense is an affirmative defense, Mr. Case was
required to prove it by a preponderance of the evidence. R.C.
Section 2901.05(A); State v. Willford (Ohio 1990), 49 Ohio St.3d
247, 551 N.B.2d 1279. In order to prove self-defense, Mr. Case
was required to prove 1) that he was not at fault in creating the
violent situation; 2) that he had a bona fide belief that he was in
imminent danger of death or great bodily harm; and 3) that his only
means of escape was the use of force. Mr. Case also needed to
demonstrate the he retreated or avoided danger if at all possible.
State v. Thomas (Ohio 1997), 77 Ohio St.3d 323, 673 N.E.2d
1339, 1997 Ohio 269. Finally, generally the aggressor or instigator
of the fight cannot rely on self-defense. State v. Melchior (Ohio
1978), 56 Ohio St.2d 15, 381 N.E.2d 195.
Mr. Case was convicted of felonious assault, but the jury's verdict
was simply not sustained by sufficient evidence. Mr. Case testified
that Mr. Riley threatened him with the firearm; he had to wrestle
the gun from Mr. Riley; Mr. Riley then continued to attack him;
and being in fear for his life, he shot Mr. Riley to keep him from
attacking him again. (T.p. 246-252). This was a clear case of selfdefense. No reasonable trier of fact could find beyond a reasonable
doubt that Mr. Case was guilty. Mr. Case's conviction was not
sustained by sufficient evidence, and such conviction should be
(Brief of Defendant-Appellant, Return of Writ, Doc. No. 7-1, Ex. 14, PageID 86-87.) No
mention is made of the word “knowingly” or any mens rea argument. Instead, the argument
amounts to saying that the evidence of self-defense was so compelling that a jury could not
constitutionally fail to accept it.
Under Ohio law, the defense of self-defense is not a negation of evidence of culpable
mental state. Instead, it is an affirmative defense on which the defendant has the burden of proof
by a preponderance, as Case admitted on direct appeal. See Ohio Revised Code § 2901.05.
Allocating the burden of production and proof in that way is constitutional. Martin v. Ohio, 480
U.S. 228 (1987). As noted in the Report, for the First District Court of Appeals to understand
that Case was arguing self-defense as a method of showing the State had not proven he acted
knowingly, they would have had to go far outside the briefs; indeed, Case does not tell us where
the First District could have found that argument in the state court record.
circumstances, there has not been fair presentation. Baldwin v. Reese, 541 U.S. 27 (2004). To
put it another way, “insufficient evidence” is a bit less general than a blanket claim of lack of due
process, but it is not specific enough to convert a self-defense argument into a mens rea
Cause and Prejudice
Case argued in his Reply that any procedural default by lack of fair presentation was
excused by ineffective assistance of appellate counsel in fairly presenting the insufficiency
The Report concluded this excuse was barred by Case’s failure to present an
ineffective assistance of appellate counsel claim to the state courts (Report, Doc. No. 10, PageID
516, citing Edwards v. Carpenter, 529 U.S. 446 (2000)).
Case objects, relying on Corral v. United States, 2014 U.S. App. LEXIS 6644 (6th Cir.
Apr. 9, 2014)(unpublished). Corral was an appeal from denial of a § 2255 motion to vacate a
federal criminal conviction. The defendant had raised ineffective assistance of appellate counsel
in the district court along with his substantive claims which was entirely appropriate, because
ineffective assistance of appellate counsel claims in federal proceedings are required to be
litigated in the first instance in the district court on a § 2255 motion – that is the proper forum.
Procedure in habeas corpus under § 2254 is entirely different. As the Supreme Court held in
Edwards, a case which came to it from Ohio, ineffective assistance of appellate counsel claims in
Ohio must be raised in an application to reopen the direct appeal under Ohio R. App. P. 26(B).
Case has never filed such an application and thus is barred from relying on ineffective assistance
of appellate counsel to excuse his fair presentation default.
The Report concluded, in the alternative, that there was ample evidence on which to
convict and the Petition should therefore be denied on the merits as well as for procedural default
(Report, Doc. No. 10, PageID 517-18). In his Objections, Case insists that the Court should
focus only on whether the evidence is sufficient to show he acted knowingly, eschewing
discussion of evidence on other elements (Objections, Doc. No. 11, PageID 528).
Magistrate Judge agrees. But that is what the Report already did.
As the Report notes, Case testified and admitted that he fired the gun. He never claimed
in the state courts and does not claim now that he fired the gun accidentally. A jury could
certainly infer from the fact that he admitted firing the gun and did not claim to have done so
accidentally or negligently that he had done so knowingly. Apart from Case’s admission, the
victim testified Case fired the gun. That alone would have been sufficient for conviction. How
is it not? Apart from Case’s and Riley’s testimony, Antwon Harris watched Case fire the gun
after Harris told him not to. All three of these pieces of testimony are noted in the Report (Doc.
No. 10, PageID 517). Instead of arguing about what is insufficient about this evidence, the
Objections cite to other cases in which other courts have found evidence to be insufficient.
There is literally nothing lacking in the proof that Case acted knowingly in firing the gun.
Based on the foregoing analysis, it is again respectfully recommended that the Petition be
dismissed with prejudice and Petitioner be denied a certificate of appealability and leave to
appeal in forma pauperis.
May 13, 2014.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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