Stenson v. Warden, Warren Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/11/2017. Signed by Magistrate Judge Michael R. Merz on 12/28/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ERIC STENSON,
Petitioner,

:

- vs -

Case No. 1:15-cv-810
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN,
Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. Mr. Stenson filed his Petition on December 21, 2015 (ECF No. 1). On Magistrate Judge
Bowman’s Order for Answer (ECF No. 3), the Respondent has filed the State Court Record
(ECF No. 6) and a Return of Writ (ECF No. 7). Mr. Stenson then filed a timely Traverse (ECF
No. 9). The case was later transferred to the undersigned as part of the ongoing process of
balancing the magistrate judge workload in the Western Division (ECF No. 10).
Mr. Stenson pleads the following grounds for relief:
Ground One: The Jury Verdict was not supported by sufficient
evidence and violated Petitioner’s Due Process and equal
protection rights under Ohio and Federal Constitution.
Supporting Facts:
Beyond obstruse [sic] and ambiguous
testimonies and faulty identification, there was no pure evidence
provided that gave Petitioner nexus to any crime he was charged
with committing.

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Ground Two: The jury finding was against the manifest weight
of the evidence and violated Petitioner’s right to Due process and
Equal protection of the law under the Ohio and Federal
Constitution.
Supporting Facts: The jury was provided insufficient evidence
and therefore clearly lost its way due to the adroit presentation in
which the prosecution chose to paint a picture based upon a bunch
of crimes allegedly committed in more than one venue.
Ground Three: Petitioner’s due process and equal protection
rights under the Fourteenth Amendment were violated with the
inclusion of other crimes in another venue without proper
jurisdiction.
Supporting Facts: The trial court had no jurisdiction to try a
matter for which it did not have venue.
Ground Four: Petitioner received ineffective assistance of
counsel guaranteed by the Sixth Amendment of the Constitution of
the United States.
Supporting Facts: Trial counsel’s performance was deficient and
prejudiced Petitioner when trial counsel allowed the trial court
without objection to try Petitioner in a matter for which the trial
court did not have venue.
(Petition, ECF No. 1.)

Procedural History

On March 26, 2014, a Butler County grand jury indicted Stenson on seven counts of
robbery allegedly occurring on six different dates and at seven different places and times in both
Butler and Hamilton counties. The jury returned a verdict of guilty on counts two through five
and seven, but were unable to return a verdict on counts one and six (State Court Record, ECF
No. 6, PageID 37-38). Counts one and six were then dismissed and Stenson was sentenced to an

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aggregate sentence of eighteen years imprisonment.
Stenson appealed to the Twelfth District Court of Appeals, but his counsel filed an
Anders brief which Stenson supplemented pro se. In it he raised what appear to be the same
issues raised here: insufficiency of the evidence, verdict against the manifest weight of the
evidence, the venue issue, and a claim of ineffective assistance of trial counsel. The court
considered all the arguments and dismissed the appeal as wholly frivolous. State v. Stenson, Case
No. CA2014-07-155, 2015-Ohio-3101, 2015 Ohio App. LEXIS 3023 (12th Dist. Aug. 3, 2015),
appellate jurisdiction declined, 144 Ohio St. 3d 1409 (2015).
While the appeal was pending, Stenson filed in the trial court a pro se motion to dismiss
for lack of jurisdiction. After the trial court had not acted for about five months, he filed in the
Ohio Supreme Court a petition for writ of mandamus to compel a decision on that motion. The
Ohio Supreme Court dismissed the petition on motion of the State and Stenson then filed his
Petition for Writ of Habeas Corpus in this Court.

Analysis

Ground One: Insufficiency of Evidence

In his First Ground for Relief, Petitioner asserts he was convicted on insufficient
evidence.
Stenson pleads this claim as arising under the Due Process and Equal Protection Clauses

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of both the federal and Ohio Constitutions. Federal habeas corpus is available only to correct
federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v.
Florida, 463 U.S. 939 (1983).

Therefore this Court cannot consider whether Stenson’s

conviction violates any clause of the Ohio Constitution. The Court is also unaware of any
possible Equal Protection Clause claim that would “fit” with insufficiency of the evidence.
On the other hand, an allegation that a verdict was entered upon 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 re Winship, 397 U.S. 358 (1970);
Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th
Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the
crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency
challenge should be assessed against the elements of the crime, not against the elements set forth
in an erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193
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L. Ed. 2d 639 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

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We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)(per curiam).
Because the Twelfth District dismissed the entire appeal as “wholly frivolous,” it did not
provide an analysis of the sufficiency of the evidence. In lieu of such a summary, Respondent
provides a summary of the testimony relied on by the prosecution (Return of Writ, ECF No. 7,
PageID 708-14). If the summary is accurate, it certainly describes sufficient evidence to convict,
including video recordings of Stenson himself. Petitioner does not even attempt to show that
Respondent’ summary is inaccurate (Traverse, ECF No. 9, PageID 718-19). He says there is no
“pure” evidence, without explaining what that means. He claims the identifications are faulty,
but he does not say why.

What is faulty with the video identification or the in-court

identification? There was certainly sufficient evidence when viewed most favorably to the
prosecution, to support the jury’s verdict.
On top of deference to the jury, this Court is also bound to defer, absent a showing to the
contrary, to the determination made by the Twelfth District. Even though there is no analysis of
the evidence, the Twelfth District’s decision must be treated as made on the merits. Harrington
v. Richter, 562 U.S. 86, 103 (2011). Given the evidence summarized by the Respondent, the

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Twelfth District’s decision on this assignment of error is entitled to AEDPA deference – it is not
an objectively unreasonable application of Jackson, supra. Therefore Ground One should be
dismissed with prejudice.

Ground Two: Manifest Weight of the Evidence

In his Second Ground for Relief, Stenson asserts his convictions are against the manifest
weight of the evidence. Respondent argues this claim is not cognizable in habeas corpus and
Petitioner concedes that is so (Traverse, ECF No. 9, PageID 719). The Sixth Circuit has also
decided weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener,
534 F.2d 1232 (6th Cir. 1986).
Ground Two should therefore be dismissed without prejudice for failure to state a claim
upon which relief can be granted.

Ground Three: Improper Venue – Lack of Jurisdiction

In his Third Ground for Relief, Mr. Stenson claims he was denied due process and equal
protection when he was tried in Butler County for some offenses which allegedly occurred in
Hamilton County.
As Respondent points out, venue is not an element of Ohio crimes. State v. Jackson, 141
Ohio St. 3d 171 (2014). Therefore failure of the prosecution to present evidence on this issue
would not cause the evidence to be insufficient under Jackson v. Virginia, supra.
The Sixth Amendment to the United States Constitution guarantees a defendant a “speedy
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and public trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law. . . .” In general, Ohio
has designated the “districts” in which felony cases are to be tried by giving general felony
jurisdiction to Common Pleas Courts and providing one such court for every county. Ohio
Revised Code § 2901.12(A) provides generally that trial will be held in the “territory of which
the offense or any element of the offense was committed.” However, Ohio Revised Code §
2901.12(H) provides that when an offender commits offenses in different jurisdictions “as part of
a course of criminal conduct. . . ,” the offender may be tried for all the offenses in any of the
jurisdictions.
Ohio Revised Code § 2901.12(H) is not unconstitutional as it was applied here to Mr.
Stenson to be tried in Butler County for offenses that happened both there and in Hamilton
County as part of the same course of criminal conduct. There is no unfairness in recognizing the
substantial judicial economies available from permitting trial of all the offenses from one course
of conduct in one trial.
Most of what Mr. Stenson has written in his Traverse about challenging jurisdiction is not
relevant because it is not a jurisdictional question that is being dealt with, but a venue question.
Ohio law vests jurisdiction over felony offenses in the Common Pleas Courts, then allocates
felony trials among those courts with the venue statute. The federal Constitution requires only
that trials be in the “State and district” where the offenses occurred and that the “district” be
specified beforehand by law.
Mr. Stenson complains that if each of these offenses had been tried in the county where it
occurred, offenses in the other county would have been “other acts” not admissible to show guilt
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by inference from bad character. That result is unclear under Ohio evidence law, as other acts
are admissible to show identity or modus operandi. But regardless of the result under Ohio
evidence law, the federal Constitution does not prohibit introduction of other acts testimony.
Bugh v. Mitchell, 329 F.3d 496, 500 (6th Cir. 2003).
Particularly troubling to the Court is Mr. Stenson’s argument about racial composition of
possible juries in Butler and Hamilton Counties.

He is correct that Butler County is

“overwhelmingly white.” (Traverse, ECF No. 9, PageID 723.) As of July 1, 2015, Butler County
was 86.0% white.1 But as of the same date and from the same official source, Hamilton County
was only 26.2% black or African-American and therefore hardly “overwhelmingly black” as
Stenson asserts. Id. But no criminal defendant charged with committing a number of crimes in
two contiguous counties has a constitutional right to have the case tried in the county which has
more potential jurors of his own ethnicity. Stenson’s Third Ground for Relief is without merit.

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Mr. Stenson claims he suffered ineffective assistance of
trial counsel. As he acknowledges, the governing standard for ineffective assistance of counsel
is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
1

Per the United States Census Bureau at www.census.gov.

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was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S. 111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
As evidence of counsel’s deficient performance, Mr. Stenson cites his failure to object to
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the trial in Butler County of offenses that occurred both there and in Hamilton County (Traverse,
ECF No. 9, PageID 723-25). But it cannot be deficient performance to fail to raise a completely
meritless (or as the Twelfth District put it “wholly frivolous”) objection.
Since there was no deficient performance, the prejudice prong of Strickland does not
require analysis. The Court is, however, surprised that one of the prejudicial consequences cited
is that direct appeal was to the Twelfth District Court of Appeals rather than the First. Having
heard many habeas corpus cases arising from both courts, this Court has never heard any
petitioner express a strong preference for the First over the Twelfth. Having reviewed many
decisions of those two courts, the undersigned cannot imagine why a criminal defendant would
expect a more favorable result from one or the other of those courts.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

December 28, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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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 mail. .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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