Miller v. Warden, London Correctional Institution

Filing 15

ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS: The Report is ADOPTED and the Petition is ordereddismissed with prejudice. Signed by Judge Susan J. Dlott on 8/3/2018. (jlw)(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
IAN MILLER,
Petitioner,

:

- vs -

Case No. 1:17-cv-536
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

JEFFREY NOBLE, Warden,
London Correctional Institution
:
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Ian Miller, is before the Court for
consideration of Petitioner’s Objections (ECF No. 14) to the Magistrate Judge’s Report and
Recommendations which recommended dismissal of the Petition with prejudice (“Report, ECF
No. 11).
As required by Fed. R. Civ. P. 72(b) the Court has reviewed de novo every part of the
Report to which objection has been made. Based on that review, the Court makes the following
rulings.

Ground One: Unconstitutionality of the Felony Murder Rule

In his First Ground for Relief, Petitioner argues that he was unconstitutionally convicted
of murder under the felony murder rule which allowed the State to prove only the mens rea element
of the underlying felony (felonious assault which requires that the offender have acted knowingly)

1

instead of the mens rea – purposely -- required for a straight murder conviction (Traverse, ECF
No. 9, PageID 1195).
The First District Court of Appeals decided this claim on the merits on direct appeal.
Instead of presenting the same argument in this Court, Petitioner argued in his Traverse that the
trial judge should have given jury instructions on the lesser included offenses of voluntary or
involuntary manslaughter (Traverse, ECF No. 9, PageID 1194-99). The Magistrate Judge found
that this claim was procedurally defaulted because it was not presented on direct appeal (Report,
ECF No. 11, PageID 1243-46).
In his Objections, Petitioner argues that his claim in Ground One is not that the trial judge
should have given the lesser-included instruction, but that “the Trial Court abused its discretion
when it failed to view the evidence to make a determination if a lesser included offense instruction
was warranted.” (Objections, ECF No. 14, PageID 1263). Petitioner concedes that this claim also
was not raised on direct appeal, but asserts that failure is excused by “Appellate Counsel’s
ignorance or oversight of the [relevant] Ohio Supreme Court rulings[.]” Id. at PageID 1264, citing
State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5034 (2002);State v. Shane, 63 Ohio St. 3d 630
(1992); and State v. Wilkins, 64 Ohio St. 2d 382 (1980).
In order to rely on ineffective assistance of appellate counsel to excuse failure to present a
claim on direct appeal, a habeas petitioner must first present the ineffective assistance of appellate
counsel claim to the state courts in the manner those courts have prescribed. Edwards v.
Carpenter, 529 U.S. 446 (2000). Petitioner concedes that when he filed his Application for
Reopening his direct appeal under Ohio R. App. P. 26(B), he did not include this claim. He seeks
to excuse that omission by claiming that he reasonably believed the claims he did raise were strong
enough that the First District Court of Appeals would appoint him counsel who would then raise

2

all the issues he has brought to this Court in habeas (Objections, ECF No. 14, PageID 1255-56).
Nothing in the text of Ohio R. App. P. 26(B) or the case law interpreting it would give rise
to a reasonable belief that the process would work the way Petitioner supposed it would. Under
that Rule, if an appellant presents a genuine issue as to whether he has a colorable claim of
ineffective assistance of appellate counsel, then the appeals court reopens the appeal and an
attorney is appointed if the appellant is indigent. State v. Spivey, 84 Ohio St. 3d 24 (1998). There
is nothing in the rule that speaks to having an appointed attorney broaden the 26(B) application or
withholding ineffective assistance of appellate counsel claims until that happens.
The First District decided the ineffective assistance of appellate counsel claims Petitioner
actually made on the merits and found they were without merit. State v. Miller, Case No. C140101 (1st Dist. Hamilton Jan. 3, 2016) (unreported; copy at State Court Record, ECF No. 4,
PageID 122, et seq.) Ohio law does not permit a second 26(B) application to raise claims omitted
from the first such application. State v. Richardson, 74 Ohio St. 3d 235 (1996). Indeed, “there is
no right to file successive applications for reopening” under App. R. 26(B). State v. Twyford, 106
Ohio St. 3d 176, 2005-Ohio-4380, ¶ 16 (2005), quoting State v. Williams, 99 Ohio St. 3d 179,
2003-Ohio-3079, ¶ 12 Once the issue of ineffective assistance has been raised and adjudicated, res
judicata bars its relitigation, State v. Cheren, 73 Ohio St. 3d 137 (1995), following State v. Perry,
10 Ohio St. 2d 175 (1967).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

3

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The First District decided the
merits of Petitioner’s actually presented ineffective assistance of appellate counsel claims and its
decision is not an objectively unreasonable application of the relevant Supreme Court precedent,
Strickland v. Washington, 466 U.S. 668 (1984). Therefore, Petitioner cannot rely on ineffective
assistance of appellate counsel to excuse his failure to present his First Ground for Relief to the
Ohio courts on direct appeal and Ground One is therefore procedurally defaulted.

Ground Two: Denial of Equal Protection

In his Second Ground for Relief, Miller argues his convictions violate the Equal Protection
Clause of the Fourteenth Amendment1 because the felony murder statute and the involuntary
manslaughter statute prohibit the same conduct. The First District Decided this claim was without
merit because the two criminal statutes in question do not prohibit identical conduct or require
identical proof. State v. Miller, Case No. C-140101 (1st Dist. Hamilton May 22, 2015) (unreported;
copy at State Court Record, ECF No. 4, PageID 81). In his Traverse, Petitioner conceded this was
a correct reading of those two statutes, but argued the First District’s decision nonetheless violated
Jackson v. Virginia, 443 U.S. 307 (1979), and In re Winship, 397 U.S. 358 (1970).
The Report concluded neither these two cases nor other authority requires a trial judge “to
make a reasonable view of the evidence in the light most favorable to the Petitioner” in deciding
whether to instruct on a lesser included offense. It also concluded this claim was barred by
procedural default to the extent it raised a claim of failure to instruct on the lesser included offense.
The Objections provide no additional authority for the proposition that a trial judge is
obliged constitutionally to review the evidence in a light most favorable to a defendant in deciding

4

whether to instruct on a lesser included offense. Thus, the Court finds no error in the Magistrate
Judge’s recommendation on this Ground for Relief.

Ground Three: Insufficient Evidence of Felonious Assault

In his Third Ground for Relief, Miller asserts there was insufficient evidence to convict
him of felonious assault. The Magistrate Judge found this Ground procedurally defaulted because
it had only been presented to the First District as a manifest weight of the evidence claim, which
is not a claim cognizable under the Fourteenth Amendment. (Report, ECF No. 11, PageID 1253).
Additionally, Petitioner’s claims made under this heading of a Brady violation and admission of
other bad acts evidence had never been presented to the state courts and were therefore defaulted.
Alternatively, the Magistrate Judge found the claim was without merit because the fact found by
the First District on the manifest weight assignment of error were sufficient to support the felonious
assault conviction. Id.
In his Objections, Petitioner again attempts to excuse his failure to present these issues on
appeal as attributable to ineffective assistance of appellate counsel and his failure to submit them
as omitted assignments of error in his 26(B) Application on the theory offered as to Ground One
(Objections, ECF No. 14, PageID 1269). He then makes arguments on the merits of his Brady and
other bad acts claims. Id. at PageID 1271-72 But this Court cannot decide on the merits claims
which have been procedurally defaulted in the state courts.

5

Ground Four: Ineffective Assistance of Appellate Counsel

In his Fourth Ground for Relief, Miller asserts he received ineffective assistance of
appellate counsel when his appellate attorney failed to argue his trial attorney provided ineffective
assistance for failing to argue that: (1) Miller saw what appeared to be a gun in the victim’s hand;
and (2) the incident occurred on the Fourth of July “and the simultaneous sound of fireworks also
influenced Petitioner’s judgment and his reasonable belief that he was being confronted with a
firearm.” (Petition, ECF No. 1, PageID 10). The Magistrate Judge concluded the First District’s
rejection of this claim in denying the 26(B) Application was not an unreasonable application of
Strickland. The Magistrate Judge wrote:
Miller makes no argument in his Traverse as to why this decision is
an unreasonable application of Strickland. The Magistrate Judge
concludes it was completely reasonable. It would not have helped
Miller’s cause to have appellate counsel complain of a supposedly
omitted argument that was, in fact, not omitted. And the second
omitted argument was one that could not have properly been made
because Miller did not testify about reacting to fireworks.
(Report, ECF No. 11, PageID 1256). The Report also concluded the other claims Petitioner raised
in his Traverse were procedurally defaulted because they had never been presented to the state
courts. Id. at PageID 1256-58.
In his Objections, Miller attempts to overcome his procedural defaults by asserting
ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Again, based
on Edwards, supra, those claims must first be presented to the state courts before they can be relied
on as excusing cause. Miller’s 26(B) Application has already been discussed. He never filed a
petition for post-conviction relief to show ineffective assistance of trial counsel.

6

Conclusion

Upon de novo review, the Court finds the Report includes no clearly erroneous findings of
fact and no errors of law. Accordingly, the Report is ADOPTED and the Petition is ordered
dismissed with prejudice. 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 and therefore should not be permitted to proceed in
forma pauperis.

____s/Susan J. Dlott____________
Susan J. Dlott
United States District Judge

7