Carmen v. Warden, London Correctional Institution

Filing 18

ORDER adopting Report and Recommendations re 10 and 14 Report and Recommendation dismissing 1 Petition. Signed by Judge Michael R. Barrett on 3/23/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHARLES CARMEN,

Case No.: 1:14cv886

Petitioner,

Barrett, J.
Merz, M.J.

v.
TERRY TIBBALS, Warden,
Respondent.
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s Report and Recommendation
(“R&R”) (Doc. 10), Petitioner Charles Carmen’s Objection to the Report and Recommendation
(“First

Objections”)

(Doc.

11),

the

Magistrate

Judge’s

Supplemental

Report

and

Recommendation (“Supplemental R&R”) (Doc. 14), and Petitioner’s Objection to the
Supplemental Report and Recommendation (“Second Objections”) (Doc. 17). This matter is
now ripe for disposition.
I.

STANDARDS OF REVIEW
A. Objections
When objections to a magistrate judge’s report and recommendation are received on a

dispositive matter, the assigned district judge “must determine de novo any part of the magistrate
judge's disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 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). General objections are insufficient to preserve any issues for review: “[a] general

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objection to the entirety of the Magistrate [Judge]’s report has the same effects as would a failure
to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
When objections to an order of a magistrate judge are received on a non-dispositive
matter, the district judge must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72.
B. 28 U.S.C. § 2254
Under 28 U.S.C. § 2254(a), a district court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treatises of the United
States.” Generally that means that an application for writ of habeas corpus shall not be granted
with respect to any claim adjudicated on the merits in the State court unless the petitioner
properly has exhausted his administrative remedies and the adjudication either:
(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.
28 U.S.C. § 2254(b), (d). “This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the benefit of
the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington v. Richter, 562
U.S. 86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner
carries the burden of proof. Cullen, 563 U.S. at 181.
II.

PROCEDURAL HISTORY/FACTUAL BACKGROUND
The Magistrate Judge explained the procedural history of this case at length, but by way

of brief background, Petitioner was indicted on one count of attempted murder, two counts of
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felonious assault, and one count of having weapons under disability. Following a bench trial on
August 21, 2012, Petitioner was convicted of all charges. He was sentenced to a total of 14 years
in prison. The First District Court of Appeals affirmed his conviction and the Supreme Court of
Ohio declined to accept jurisdiction.
In order to address the objections raised by Petitioner, a brief factual background is
necessary. On January 16, 2012, the victim approached Petitioner to confront him about an
alleged debt. The discussion became tense when Petitioner refused to pay the debt. Petitioner
attempted to walk away from the victim, but the victim would not let Petitioner leave. Sometime
thereafter, Petitioner drew a handgun and shot the victim at close range. Petitioner continued to
shoot at the victim as he fell to the ground.
There were two witnesses to the shooting – an unrelated bystander and the victim’s
girlfriend. When police arrived, officers found .25 caliber casings, interviewed the eyewitnesses,
and acquired photographs depicting Petitioner from a nearby convenience store’s surveillance
camera.
Police arrested Petitioner the next day.

During the interview following his arrest,

Petitioner admitted to shooting the victim, but asserted he believed the victim often carried a gun
and thus, feared the victim would shoot Petitioner during the verbal altercation. At trial, the
eyewitnesses testified that the victim yelled and threatened Petitioner, but did not raise his hand
or display any weapon prior to being shot by Petitioner.
III.

ANALYSIS
The R&R and Supplemental R&R address two separate issues. The first is Petitioner’s

Motion to Correct the Record. (Doc. 8). In addition, Petitioner brings this Petition pro se
pleading the following ground for relief:

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Ground One: There was insufficient evidence for a reasonable trier of fact to find
me guilty beyond a reasonable doubt.

A. Motion to Correct the Record
Upon review, the Magistrate Judge recommended one of Petitioner’s requested changes
to the record should be made. Petitioner objects, arguing his six additional requested changes to
the record should be made.
The bulk of Petitioner’s requested changes are factual in nature. Findings of fact by the
state court are presumed to be correct unless rebutted by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Aside from his first requested change wherein the date of the offense was
wrong, all of Petitioner’s changes are substantive in nature. Importantly, he fails to show his
requested corrections are supported by clear and convincing evidence.

Accordingly, upon

review, the Court finds no error in the Magistrate Judge’s decision to deny Petitioner’s motion is
it relates to the additional requested changes.
B. Sufficiency of the Evidence
The Magistrate Judge recommends dismissing the Petition with prejudice, concluding
that the Petition fails on the merits. Petitioner’s objections related to sufficiency of the evidence
center around his attempted murder conviction, and specifically, whether he established a selfdefense claim. In support, Petitioner provides the following:
Supporting Facts: A reasonable trier of fact would have found that I
properly established the right to self-defense and that I was therefore not
guilty of these charges. The state court of appeals unreasonably applied
the facts to the applicable federal standard for insufficient evidence. There
was no evidence submitted that I acted with the intent or purpose to do
anything but defend myself and the children who were with me.
(Doc. 1, PageID 5).

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As the Magistrate Judge explained, an allegation regarding insufficient evidence states a
claim under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Jackson v. Virginia, 443 U.S. 307 (1979). In such habeas cases, deference is given
to the trier of fact’s verdict. Id. Deference is also given to the appellate court’s consideration of
that verdict. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008).
Petitioner appears to possess a fundamental misunderstanding of what is necessary to
establish an affirmative defense claim. A defendant, in this case Petitioner, bears the burden of
proving a self-defense claim. Ohio Rev. Code § 2901.05. To do so, a defendant must establish:
1) he was not at fault in creating the situation; 2) he had a bona fide belief he was in imminent
danger of death or great bodily harm and that his only means of escape was the use of force; and
3) that the defendant did not violate a duty to retreat or avoid the danger. State v. Williford, 49
Ohio St.3d 247, 249 (Ohio 1990).
Petitioner focuses on the portion of the R&R wherein the Magistrate Judge states, “[i]t is
undisputed that Carmen was not at fault for creating the situation in which the shooting took
place.” (Doc. 11, PageID 481) (citing Doc. 10, PageID 471). He then argues, as a result, there
was insufficient evidence to convict him of attempted murder. Petitioner misses the mark. In
order to prove he acted in self-defense, he must establish all three of the elements set forth in
Williford. The state court found that Petitioner had not proven he was in imminent danger of
death or great bodily harm. In addition, the state court found Petitioner used excessive force.
Accordingly, the state court found that Petitioner did not establish the second and third elements
necessary to prove a self-defense claim, and Petitioner does not argue otherwise. Upon review
of the record, the Magistrate Judge correctly concluded that there was ample evidence in which
the state court have found Petitioner did not meet his burden of proof. (Doc. 10, PageID 472).

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Having reviewed the issues presented, the undersigned agrees with the recommendations
set forth in the R&R and the Supplemental R&R.

Moreover, the Court agrees with the

Magistrate Judge’s conclusion that because reasonable jurists would not disagree with the
conclusions reached, Petitioner should be denied a certificate of appealability.
IV.

CONCLUSION
Consistent with the foregoing, it is ORDERED:
1. Petitioners Objections (Docs. 11, 17) are OVERRULED;
2. The recommendations in the R&R (Doc. 10) and Supplemental R&R (Doc. 14) are
ADOPTED;
3. The Petition (Doc. 1) is hereby DISMISSED WITH PREJUDICE.
4. Because reasonable jurists would not disagree with this conclusion, Petitioner is
DENIED a certificate of appealability and the Court CERTIFIES to the Sixth
Circuit that any appeal would be objectively frivolous.
IT IS SO ORDERED.
_________________________________
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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