Smith v. Warden Chillicothe Correctional Institution

Filing 13

OPINION and ORDER adopting and affirming 11 the Report and Recommendation - this action is hereby dismissed. Signed by Judge Michael H. Watson on 9/30/13. (jk1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN F. SMITH,
CASE NO. 2:11-CV-00844
JUDGE WATSON
MAGISTRATE JUDGE ABEL

Petitioner,

v.
ROBIN KNAB, WARDEN,

Respondent.
OPINION AND ORDER

On June 28,

2013, the Magistrate Judge issued a Report and

Recommendation recommending that the instant petition for a writ of habeas

corpus be dismissed. Petitioner has filed objections to the Magistrate Judge's
Report and Recommendation. For the reasons that follow, Petitioner's Objection,

Doc. No. 12, is OVERRULED. The Report and Recommendation is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.
This case involves Petitioner's convictions after a jury trial on felonious
assault and involuntary manslaughter.

The charges arose when Petitioner

assaulted Bryan Biser, hitting him in the head with a closed fist. Biser, who was
diabetic, died four days later. Petitioner asserts in these proceedings that he was
denied effective assistance of counsel because his attorney failed to investigate,
present evidence, and rebut testimony of the State's witnesses by showing that
he did not cause the victim's death and that Biser died because he failed to
properly care for his diabetes.

The state courts rejected Petitioner's claim, presented in post conviction
proceedings, as barred under Ohio's doctrine of res judicata based on
Petitioner's failure to raise the claim on direct appeal.

The Magistrate Judge

nonetheless addressed the merits of Petitioner's claim, because Petitioner
supported his claim with evidence outside the record, but concluded that
Petitioner's claim lacked merit. Petitioner objects to this recommendation.
Petitioner asserts that his attorney performed in an inadequate manner
under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). He
argues that the state courts unreasonably applied federal law in denying his
claim, as "no reasonable trial attorney would have failed to investigate and failed
to present an expert witness to testify at Smith's trial regarding the victim's
metabolic state and mismanaged diabetes." Objection, PageiD #1218.

In

support of this claim, Petitioner submits an affidavit from Dr. Elena Christofides,
who concluded that Biser's death was the result of his poor management of his
diabetes. She testified his blood glucose level at the time of the assault would
have interfered with his brain function, regardless of the head injury caused by
the assault, and he overdosed on his insulin. Objection, PageiD# 1222. Further,
Dr. Christofides concluded that the timing of Biser's death was inconsistent with a
finding that his head injury was the proximate cause of his death.

Petitioner

asserts that he was prejudiced by his attorney's failure to call such an expert
witness to testify regarding the cause of death and argues Christofides testimony
would have exonerated him.
Case No. 2:11-cv-844

Page 2 of 8

Additionally, Petitioner objects to certain factual findings of the state
appellate court. Specifically, Petitioner refers to the following language of the
state appellate court's decision, indicating "[t]he defense expert was handicapped
in making her analysis due to a lack of medical records and history of the victims
case .... [S]he could not testify as an expert with any degree of medical certainty
or probability as to the cause of death. Also, defense counsel reasonably would
not want to risk a failure to qualify this witness to testify as an expert. That could
greatly prejudice his case before the jury."

Exhibit 27 to Return of Writ.

Petitioner contends that these findings are unreasonable in view of the record
presented, Objection, PageiD #1225-26, as Christofides reviewed the same or
additional evidence as Dr. Cox and concluded as to Biser's cause of death to a
reasonable degree of medical certainty.

See Petitioner's Reply, Doc. No. 10,

Exhibits 2-3. Finally, Petitioner argues that the Court should not give deference

to defense counsel's failure to present expert testimony because defense
counsel failed to investigate.

In short, Petitioner again asserts that, had his

attorney presented such expert testimony regarding the cause of death, there is
a reasonable probability that he would have been acquitted.
Pursuant to 28 U.S.C. § 636(b}, this Court has conducted a de novo
review.

Upon review of the entire record, and for the reasons already well

detailed in the Magistrate Judge's Report and Recommendation, this Court is not
persuaded that Petitioner is entitled to relief. The standard of review in federal
habeas corpus proceedings provides that this Court cannot grant relief unless the
Case No. 2:11-cv-844

Page 3 of 8

state court's decision contravened or unreasonably applied federal law, or its
decision was based on an unreasonable determination of the facts in light of the
evidence presented. 28 U.S.C. § 2254(d), (e). Under this standard of review,
"[a] state court's determination that a claim lacks merit precludes federal habeas
relief so long as '"fairminded jurists could disagree' on the correctness of the
state court's decision." Harrington v. Richter, -U.S.--, 131 S.Ct. 770, 786
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004 )). Such are
the circumstances here.
As discussed by the Magistrate Judge, evidence indicated Biser had been
self-treating his diabetes without any known difficulties for an unknown period of
time, and he appeared to be healthy and functioning normally until the time of the
assault.

Dr. Trent, the deputy coroner, found that the cause of death was

homicide due to blunt force craniocerebral injuries.

Dr. Glenn Roush, a

radiologiest, testified that Biser's April 19, 2005 CAT scan showed a skull fracture
and recent brain injury. He had "never seen anyone with this sort of injury be
able to function." Dr. William Cox, a forensic neuropathologist, testified that the
cause of death was diabetic ketoacidosis and that the contusions to the frontal
lobes of Biser's brain affected his cognitive ability and substantially contributed to
his death because it clearly would have affected his ability to take care of himself.
The state court's conclusion rejecting Petitioner's claim is supported by
substantial evidence.
Petitioner's Objection, Doc. No. 12, therefore is OVERRULED.
Case No. 2:11-cv-844

Page 4 of 8

Petitioner also seeks a certificate of appealability and requests to proceed
in forma pauperis on appeal. When a claim has been denied on the merits, a
certificate of appealability may issue only if the petitioner "has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This
standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v.
McDaniel, 529 U.S. 473, 484. To make a substantial showing of the denial of a
constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been
resolved in a different manner or that the issues
presented were " 'adequate to deserve encouragement
to proceed further.' " Barefoot, 463 U.S., at 893, and n.

4....
/d. Petitioner meets this standard here. Petitioner's request for a certificate of
appealability is GRANTED. The following issue is certified for appeal:
Was Petitioner denied effective assistance of counsel
under the test set forth in Strickland?
Because the filing fee assessment procedures prescribed by the Prison
Litigation Reform Act are not applicable to appeals taken in habeas corpus
matters, see Kincade v. Sparkman, 117 F.3d 949 (6th Cir.1997), the issue is
simply whether petitioner can afford the $455.00 filing fee for an appeal.
Federal Rule of Appellate Procedure 24(a) provides:
(a) Leave to Proceed In Forma Pauperis.
( 1) Motion in the District Court. Except as stated in Rule
24(a)(3), a party to a district-court action who desires to

Case No. 2:11-cv-844

Page 5 of 8

appeal in forma pauperis must file a motion in the
district court. The party must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms the party's inability to pay or to give
security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
appeal.
(2) Action on the Motion. If the district court grants the
motion, the party may proceed on appeal without
prepaying or giving security for fees and costs, unless a
statute provides otherwise. If the district court denies
the motion, it must state its reasons in writing.
(3) Prior Approval. A party who was permitted to
proceed in forma pauperis in the district-court action, or
who was determined to be financially unable to obtain
an adequate defense in a criminal case, may proceed
on appeal in forma pauperis without further
authorization, unless:
(A) the district court--before or after the notice of appeal
is filed--certifies that the appeal is not taken in good
faith or finds that the party is not otherwise entitled to
proceed in forma pauperis and states in writing its
reasons for the certification or finding; or
(B) a statute provides otherwise.
(4) Notice of District Court's Denial. The district clerk
must immediately notify the parties and the court of
appeals when the district court does any of the
following:
(A) denies a motion to proceed on appeal in forma
pauperis;
(B) certifies that the appeal is not taken in good faith; or

Case No. 2:11-cv-844

Page 6 of 8

(C) finds that the party is not otherwise entitled to
proceed in forma pauperis.
(5) Motion in the Court of Appeals. A party may file a
motion to proceed on appeal in forma pauperis in the
court of appeals within 30 days after service of the
notice prescribed in Rule 24(a)(4). The motion must
include a copy of the affidavit filed in the district court
and the district court's statement of reasons for its
action. If no affidavit was filed in the district court, the
party must include the affidavit prescribed by Rule
24(a)(1 ).
(b) Leave to Proceed In Forma Pauperis on Appeal or
Review of an Administrative-Agency Proceeding. When
an appeal or review of a proceeding before an
administrative agency, board, commission, or officer
(including for the purpose of this rule the United States
Tax Court) proceeds directly in a court of appeals, a
party may file in the court of appeals a motion for leave
to proceed on appeal in forma pauperis with an affidavit
prescribed by Rule 24(a)(1 ).
(c) Leave to Use Original Record. A party allowed to
proceed on appeal in forma pauperis may request that
the appeal be heard on the original record without
reproducing any part.

Petitioner is incarcerated but was not previously in this case granted
pauper status and has not submitted an affidavit of indigency in support of his
request. Therefore, Petitioner's request to proceed in forma pauperis is DENIED
without prejudice to renewal pending submission of an affidavit from the prison
where Petitioner is incarcerated of his prison trust account statement.
The Report and Recommendation is ADOPTED and AFFIRMED.

This

action is hereby DISMISSED.

Case No. 2:11-cv-844

Page 7 of 8

Petitioner's request for a certificate of appealability is GRANTED.
IT IS SO ORDERED.

MfCHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:11-cv-844

Page 8 of 8