Comer v. Warden Ohio State Penitentiary

Filing 13

ORDER REPORT AND RECOMMENDATIONS denying re 8 motion for order to complete the record pursuant to rule 5 of the rules governing section 2254. It is recommended that this action be dismissed. Objections to R&R due by 5/9/2013 Signed by Magistrate Judge Norah McCann King on 4/19/13. (rew) Modified text on 4/22/2013 (rew).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT S. COMER,
CASE NO. 2:13-CV-0003
JUDGE GEORGE C. SMITH
Magistrate Judge Norah McCann King

Petitioner,
v.
WARDEN, Ohio State Penitentiary,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 2, Respondent’s Return
of Writ, Doc. No. 7, and the exhibits of the parties. Petitioner’s Motion to Complete the Record,
Doc. No. 8, is DENIED, as moot, since Respondent has filed the transcripts requested by that
motion.

See Notice, Doc. No. 12.

For the reasons that follow, the Magistrate Judge

RECOMMENDS that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The Ohio Fourth District Court of Appeals summarized the facts and procedural history
of this case as follows:
On the evening of December 1, 2009, a number of people came
together at the Lennex home on Shaffer Road in a part of Gallia
County that borders right on Jackson County. Gathered at the
Lennex home that evening, in anticipation of deer hunting the next
day, were Edith Lennex, her sons Dustin and Cody, and Dustin's
two children Aaleyah and Dominic. Also, Kristen Gandee, a family
friend, had driven from Columbus with Alfred Bury and Joe
Wheeler. At some point appellant, a next-door neighbor, visited the
home. The evidence adduced at trial was replete with references
that described appellant and the Lennex brothers as good friends,
or even “best” friends.FN1

1 

FN1. Kristen Gandee described appellant's and Dustin Lennex's
relationship as being “like brothers.”
At approximately 9:00 PM, Gandee and a few others went to
McDonald's to purchase food for themselves and others at the
Lennex home. Upon their return, Cody Lennex and Joe Wheeler
took approximately twenty cheeseburgers into the home while
Gandee and Bury stayed in the car and talked. Inside the Lennex
home, some of the younger members of the crowd were “rapping”
to a Karaoke machine. Appellant supposedly “rapped” something
of a sexual nature about Cody's girlfriend that promptly led to a
fight. Both Edith and Dustin Lennex intervened to stop the fight
between appellant and Cody.
Appellant stormed out of the Lennex home and slammed a screen
door behind him. That screen door was apparently damaged and an
angry Dustin Lennex pursued appellant into the yard. Appellant
went to his home but, rather than follow him, Gandee motioned
Dustin to her car and asked if anything had transpired that should
worry her. Dustin answered in the negative and assured her that
“we do this all the time.”
In the meantime, appellant entered his home in a rage—“put his
fist in the wall” and overturned a coffee table. His cousin, Todd
Dixon, was in the room attempting to text his father and heard
appellant scream that he was going to shoot “them MF'ers.”
Appellant grabbed a weapon, went outside and fired a “warning
shot” into the air. Cody Lennex had already gone outside with his
rifle and positioned himself to see the front door of appellant's
home. Cody warned appellant that if he fired another shot, Cody
would shoot him. Appellant then fired in Cody's direction. Cody
returned fire and grazed appellant's “butt cheek.” He also,
apparently, wounded Todd Dixon as well. FN2
FN2. The record indicates that Todd Dixon was not at the Lennex
home that evening and was not involved in the fracas that took
place. He explained he has not been to his cousins' place since the
shooting and declared he “won't [ever] return.”
At this point, Dustin Lennex re-inserted himself into the fracas and
began to walk toward appellant's home. The evidence adduced at
trial shows that Dustin was unarmed, approached appellant's house
trailer with his arms extended out on each side and asked him if
appellant was going “going to shoot a motherfucker.” FN3
Apparently, appellant was prepared to do just that. He went to his
home and shut the door. When Dustin stepped on appellant's
2 

porch, appellant fired a shot at him from the home's interior.
Although some witnesses testified that they could hear Dustin
gasping for air, the Gallia County Coroner, as well as the assistant
Deputy Coroner of Montgomery County who performed the
autopsy, explained that shrapnel from the gunshot pierced the
victim's aorta and he died very quickly thereafter.FN4
FN3. We quote Kristen Gandee at this point, but Cody Lennex
testified that his brother simply said “shoot me MF'er.”
FN4. Dr. Dan Whitley, the Gallia County Coroner, and Dr. Kent
Harshbarger, Deputy Montgomery County Coroner, both
confirmed that the alcohol content in Dustin Lennex's blood
exceeded the legal limit. Lennex also had “THC” in his
bloodstream, which indicated that he had used marijuana.
The Gallia County Grand Jury returned an indictment that charged
appellant with murder. At his jury trial appellant agreed that he and
the Lennex brothers are friends, but stated that his cousin (Todd
Dixon) lied about his reaction when he returned to the family
house trailer. Appellant also denied that he intended to shoot to kill
anyone and that he most certainly did not want “Dustin to die.”
Appellant explained that he shot his friend because he and his
cousin had already been shot and that he feared for his life.
The jury returned a verdict of guilty with a firearm specification.
The trial court sentenced appellant to serve an indefinite term of
imprisonment of fifteen years to life on the murder charge,
together with a three year term on the firearm specification, each to
be served consecutively to one another. Although no immediate
appeal was taken, this Court granted appellant leave to file delayed
appeal and the matter is properly before us for review.
State v. Comer, No. 10CA15, 2012 WL 1831167, at *1-2 (Ohio App. 4th Dist. May 14, 2012). In
his delayed appeal, Petitioner raised the following assignments of error:
THE TRIAL COURT VIOLATED ROBERT COMER'S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE
ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A
JUDGMENT ENTRY, CONVICTING ROBERT OF MURDER
AND THE ATTACHED FIREARM SPECIFICATION.
THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR
AND DENIED ROBERT COMER DUE PROCESS OF LAW

3 

WHEN IT FAILED TO PROVIDE THE JURY WITH A PROPER
JURY INSTRUCTION IN ACCORDANCE WITH R.C. 2901.09.
THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR
AND DENIED ROBERT COMER DUE PROCESS OF LAW
WHEN IT FAILED TO PROVIDE THE JURY WITH AN
AUGMENTED JURY INSTRUCTION IN ACCORDANCE
WITH R.C. 2901.09.
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
OF COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
State v. Comer, 2012 WL 1831167, at *1. On May 14, 2012, the appellate court affirmed the
judgment of the trial court. Id. On October 10, 2012, the Ohio Supreme Court dismissed
Petitioner’s subsequent appeal. State v. Comer, 133 Ohio St.3d 1411 (2012).
On January 3, 2012, Petitioner filed his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging that the “Gallia County, Ohio, Court of Appeals unreasonably and
contrarily applied Strickland v. Washington, 466 U.S. 668 (1984) when it ruled that defense
counsel performed effectively.”
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner alleges that he was denied the effective assistance of counsel because his
attorney failed to make a proper motion for judgment of acquittal under Crim.R. 29, failed to
object to improper jury instructions as related to O.R.C. 2901.05(B), failed to request a no-retreat
instruction in accordance with O.R.C. 2901.09(B), and failed to request a jury instruction on
what it means to be at fault in creating the situation that gave rise to the death of another
individual. Petitioner contends that defense counsel’s failures, individually and collectively,
prejudiced the outcome of his trial. Petition, PageID 18.

4 

The state appellate court rejected Petitioner’s claim of ineffective assistance of counsel.
Portions of the appellate court’s decision denying Petitioner’s claims of insufficiency of evidence
and denial of a fair trial based on the trial court’s jury instructions are relevant to this Court’s
consideration of Petitioner’s claim(s) of ineffective assistance of counsel and are therefore
included here:
Before we address the merits of the assignments, we first observe
that they are all based on appellant's claim that he shot the victim
in self-defense. Self-defense is an affirmative defense that must be
proven by a preponderance of the evidence. R.C. 2901.05(A); State
v. Clark, Fulton App. No. No. F–10–025, 2011–Ohio–6310, at ¶
21; State v. Warmus, Cuyahoga App. No. 96026, 2011–Ohio–
5827, at ¶ 8. To prove self-defense, an accused must show three
elements: (1) that the defendant was not at fault in creating the
violent situation, (2) that the defendant had a bona fide belief that
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 any duty to retreat. See State v. Goff, 128
Ohio St.3d 169, 942 N.E.2d 1075, 2010–Ohio–6317, at ¶ 36; State
v. Thomas (1997), 77 Ohio St.3d 323, 326, 673 N.E.2d 1339.
This duty of retreat, however, does not apply to one's own home.
The maxim that a man's home is “his castle” has deep roots in
English law. 4 Blackstone, Commentaries on the Laws of England
(Rev. Ed.1979) 223, Chapter 16. That maxim has long been a
cherished part of American law as well. See e.g. State v.
Batchelder (N.H.Super.Ct.1832), 5 N.H. 549; Snowden v. Warder
(PA.1831), 3 Rawle 101; State v. Norris (N.C.Super.Ct.1796), 2 N
.C. 429. It is also a bulwark of Ohio law. See e.g. State v. Smith
(1997), 80 Ohio St.3d 89, 110, 684 N.E.2d 668; State v. Thomas
(1997), 77 Ohio St.3d 323, 327, 673 N.E.2d 1339.
The Ohio General Assembly has codified the castle doctrine in
R.C. 2901.09(B). The statute states, inter alia, that “a person who
lawfully is in that person's residence has no duty to retreat before
using force in self-defense.” Ohio courts have also extended the
definition of “residence” to an attached porch. See State v. Nappier
(1995), 105 Ohio App.3d 713, 721, 664 N.E.2d 1330; State v. Cole
(Jan. 22, 1997), Hamilton App. No. C–950900; State v. Copeland
(Apr. 13, 1993), Franklin App. No. 92AP–1486. With these
principles in mind, we now turn our attention to the issues raised in
the individual assignments of error.
5 

***

[On the sufficiency of evidence]: R.C. 2903.02(A) states that no
person shall purposely cause the death of another. Here, no
question exists that appellant shot and killed Dustin Lennex.
Appellant also does not argue that his actions were not purposeful.
Abundant testimony was adduced at trial from which the jury
could conclude that appellant's actions were done purposely. Thus,
sufficient evidence supports the conviction. The gist of appellant's
argument is not that the prosecution lacked sufficient evidence for
a conviction, but that his self-defense evidence rendered the
prosecution's evidence insufficient. We disagree. In Hancock,
supra at ¶ 37, the Ohio Supreme Court stated that proof of an
affirmative defense does not detract from proof that an accused
committed a crime beyond a reasonable doubt. Although Hancock
involved an insanity defense rather than self-defense, our Tenth
District colleagues arrived at the same conclusion with regard to
self-defense. See e.g. State v.. Hogg, Franklin App. No. 11AP–50,
2011–Ohio–6454, at ¶ 15. We find Hogg persuasive. Whatever
evidence may have been adduced regarding self-defense in this
case, it does not detract from the evidence that appellant purposely
caused the death of Dustin Lennex. Moreover, we again point out
adequate evidence was adduced at trial for the jury to find the
appellant guilty of murder with a firearm specification.
Accordingly, we hereby overrule appellant's first assignment of
error.
***
[On Petitioner’s claim regarding improper jury instructions]:
Because appellant's second and third assignments of error both
assert that the trial court erred in the instructions it gave to the jury,
we consider them together. At the outset, we point out that
appellant did not object to the jury instructions. Further, after
instructions, the court asked both the prosecution and defense if
they wanted “corrections, deletions or additions.” Both counsel
answered in the negative. Thus, appellant has waived all but
Crim.R. 52(B) plain error. See State v. Cunningham, 105 Ohio
St.3d 197, 2004–Ohio–7007, 824 N.E.2d 504, at ¶ 56; also see
State v. Dickess, 174 Ohio App.3d 658, 884 N.E.2d 92, 2008–
Ohio–39 at ¶ 43. Generally, notice of plain error should be taken
“with utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice.” State v. Gardner, 118
Ohio St.3d 420, 2008–Ohio–2787, 889 N.E.2d 995, ¶ 78; also see
6 

State v. Patterson, Washington App. No. 05CA16, 2006–Ohio–
1902, ¶ 13. Plain error exists when it affects a substantial rights.
State v. Chambers, Adams App. No. 10CA902, 2011–Ohio–4352,
at ¶ 42. Plain error is one that affects a substantial right when, but
for the error, the outcome of the trial would have clearly been
otherwise. Id.; State v. Litreal, 170 Ohio App.3d 670, 868 N.E.2d
1018, 2006–Ohio–5416, at ¶ 11.

. . . [A]ppellant argues that the trial court erroneously suggested to
the jury that appellant had a duty to retreat, even in his home.
Before we address that argument, however, as the prosecution
vaguely suggests in its brief, we consider whether a “Castle
Doctrine” instruction was warranted. As noted above, a selfdefense instruction is warranted only if a defendant was not at fault
in creating the situation. Goff, supra at ¶ 36; Thomas, at 326. Here,
the evidence adduced at trial was uncontroverted that appellant
fired the first shot in this fracas. When asked on cross-examination
if either Dustin or Cody Lennex followed him to his house trailer
after the fracas in the Lennex home, appellant replied negatively.
When asked if he believed that his fight with Cody was over when
he left the Lennex residence and returned to his residence,
appellant replied “yeah.”

Appellant went home, loaded his shotgun and went outside to fire a
“warning shot” into the air. It appears that appellant created the
deadly situation, or at least seriously escalated it, and was not
entitled to a self-defense, or “Castle Doctrine” instruction. Be that
as it may, we find no error, let alone plain error, in the trial court's
instruction. The instructions appellant cites are as follows:
“Now the defendant claims to have acted in self-defense.
To establish a claim of self defense the defendant must
prove by the greater weight of the evidence that A: He was
not at fault in creating the situation giving rise to the death
and B: He had reasonable grounds to believe and an honest
belief even if mistaken that was in imminent or immediate
danger of great, or death or great bodily harm and that his
only means of retreat, escape of withdrawal from such
danger was by the use of force and C: He had not violated
any duty to retreat, escape or withdraw to avoid the danger.
Now the defendant is presumed to have acted in selfdefense or defense of another when using defensive force
that was intended or likely to cause death or great bodily
harm to another if the person against whom the defensive
7 

force was used was in the process of entering or had
entered unlawfully and without privilege to do so the
residence occupied by the defendant. Now the claims the
presumption that the defendant acted in self defense or
defense of another when using defensive force that was
intended or likely to cause death or great bodily harm to
another does not apply. * * * Now dwelling means a
building of any kind ... A building includes but is not
limited to an attached porch ... Now the defendant had a
duty to retreat. If the, if he A: was at fault in creating the
situation giving rise to the death or B: did not have a
reasonable ground, or did not have grounds to believe and
an honest belief that he was imminent or immediate danger
of death or great bodily harm ...” (Emphasis added.)1
This excerpt spans approximately two pages of the trial transcript.
Although we agree that the language may be a bit confusing, we
are not convinced that it constitutes prejudicial error and we
certainly do not believe that rises to the level of plain error. Our
understanding of appellant's argument is that he objects to the third
underlined portion of the above excerpt stating that he “had a duty
to retreat.” FN5 Had that instruction included a qualifier stating
that appellant was outside his home at the time, then it would have
been a correct statement of the law. At the same time, had it
included a qualifier that appellant was inside his home, it was

1
 The instructions continued:

Now the defendant no longer had a duty to retreat if 1: he retreated, escaped or withdrew from
the situation or reasonably indicated his intention to retreat, escape or withdraw from the
situation and no longer participate in it and 2: he then had reasonable grounds to believe and an
honest belief that he was in imminent or immediate danger of death or great bodily harm and 3:
the only reasonable means of escape from that danger was by the use of deadly force even
though he was mistaken as to the existence of that danger. Now reasonableness, words alone
do not justify the use of deadly force or force. Resort to such force is not justified by abusive
language, verbal threats or other words no matter how provocative. Now in deciding whether
the defendant had reasonable grounds to believe and an honest belief that he was in imminent
or immediate danger of death or great bodily harm or bodily harm you must put yourself in the
position of the defendant with his characteristics, his knowledge or lack of knowledge and
under the circumstances and conditions that surrounded him at the time. You must consider the
conduct of Dustin Lennex and decide whether his acts and words caused the defendant
reasonably and honestly to believe that he was about to be killed or receive great bodily harm
or receive bodily harm.
Trial Transcript, PageID #1494-96.

8 

erroneous. Did the instruction constitute error without either
qualifier? We think not for the following reasons.

FN5. It is, of course, possible that the trial court's court reporter
mistakenly inserted a period rather than simply omitting any
punctuation mark and continuing the sentence. Transcribed
conversations may not always correctly illustrate a speaker's
inflections or intent in linking words and phrases.
First, a trial court's jury instructions must be considered in their
totality. State v. Rodriguez, Wood App. No. WD–08–011, 2009–
Ohio–4059, at ¶ 31; State v. Doyle, Pickaway App. No. 04CA23,
2005–Ohio–4072, at ¶ 50. Second, the first two italicized portions
of the jury instructions are correct statements of the law and
directed the jury that appellant was presumed to have acted in selfdefense if the victim had unlawfully entered the premises
(including the porch of the trailer). In light of the trial court's
correct statement of the law, balanced against the somewhat
confusing, but not necessarily incorrect, statement of the law, we
are not persuaded that plain error exists.FN6 This is particularly
true in light of our discussion that it is questionable whether a selfdefense instruction was warranted under the facts and
circumstances of this case.
FN6. In view of appellant's own testimony, it appears that the
confrontation was over when he returned to his house trailer and
that it escalated into a deadly confrontation only when he exited
his house trailer and fired a warning shot into the air.
Appellant maintains in his third assignment of error that the trial
court should have “augmented” its instructions to emphasize the
provisions of R.C. 2901.05 that appellant had no duty to retreat
inside his own home. However, defense counsel did not request
any such instruction and, to be frank, we see little difference
between his argument here and his argument in his second
assignment of error.
We note that because appellant did not request an “augmented”
jury instruction, the failure to give one is measured under the plain
error standard. We also agree, as noted above, that the trial court's
stray comment that appellant had a “duty to retreat” may or may
not have been misleading to the jury. However, we are not
persuaded that but for the absence of an augmented instruction, the
outcome of the trial would have been otherwise. Chambers, at ¶
42. Id.; Litreal, supra at ¶ 11.
9 

In the case sub judice, appellant fired the first shot between [him]
and the two Lennex brothers. That first shot also occurred after
appellant retreated to his family's house trailer and re-emerged to
fire the first “warning” shot, thereby precipitating the events that
next occurred. With that in mind, we find no merit to appellant's
second or third assignments or error and they are hereby overruled.
[A]ppellant argues that he received constitutionally ineffective
representation from trial counsel. Appellant raises a number of
issues to support that argument, but we find none persuasive.
Criminal defendants have a constitutional right to counsel, and this
right includes the right to effective assistance from trial counsel.
McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441,
25 L.Ed.2d 763; In re C.C., Lawrence App. No. 10CA44, 2011–
Ohio–1879, at ¶ 10. To establish ineffective assistance of counsel,
a defendant must show (1) his counsel's performance was
deficient, and (2) such deficient performance prejudiced the
defense and deprived him of a fair trial. Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also
see State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009–
Ohio–6179, at ¶ 200. Both prongs of the Strickland test need not
be analyzed, however, if a claim can be resolved under one prong.
State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52;
also see State v. Saultz, Ross App. No. 09CA3133, 2011–Ohio–
2018, at ¶ 19. In short, if it can be shown that an error, assuming
arguendo that such an error did in fact exist, did not prejudice an
appellant, an ineffective assistance claim can be resolved on that
basis alone. To establish the existence of prejudice, a defendant
must demonstrate that a reasonable probability exists that, but for
his counsel's alleged error, the result of the trial would have been
different. See State v. White (1998), 82 Ohio St.3d 16, 23, 693
N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373, at paragraph three of the syllabus.
Appellant's second and third arguments are that counsel was
ineffective for those reasons he raises in his second and third
assignments of error. However, in light of the fact that we found no
merit to those arguments, we do not find any constitutionally
ineffective assistance of counsel.
In particular, appellant's first argument is that trial counsel failed to
request a Crim.R. 29(A) judgment of acquittal at the conclusion of
the prosecution's case-in-chief. This argument is somewhat
perplexing, however, as the record reveals that counsel made such
10 

a motion. To the extent that appellant claims that counsel was
ineffective for not making the motion in light of his self-defense
claim, as we noted in resolving appellant's first assignment of
error, whatever claim appellant had to self-defense was irrelevant
to the prosecution's evidence concerning whether he committed
murder in violation of R.C. 2903.02(A).
Appellant's fourth argument is that trial counsel failed to “object to
the State's elicitation of prior bad-act testimony.” To begin, we do
not believe that the incident to which appellant cites was an
attempt to elicit “prior bad-act testimony.” The prosecution simply
asked Cody Lennex why he went outside with his gun after
appellant left his residence and Cody explained “[b]ecause me and
[appellant] got into an argument before when he was drunk he's
threatened to bring a gun back and shoot me.” The prosecution did
not seek “prior bad-acts” concerning appellant but, rather, sought
to explain why Cody went outside with a firearm. This was also
cumulative of the evidence that the boys (Lennex and Comer)
fought frequently and why the victim explained to Gandee that the
confrontation between his younger brother and appellant was not
important. In any event, appellant has not persuaded us that the
outcome of his trial would have been different had defense counsel
lodged an objection to the question and answer.
In his final argument, appellant argues that the cumulative total of
his counsel's alleged errors deprived him of a fair trial. However, if
a reviewing court finds no prior instances of error, the cumulative
error doctrine has no application. See State v. Hairston, Scioto
App. No. 06CA3089, 2007–Ohio–3707, at ¶ 41; State v. Bennett,
Scioto App. No. 05CA2997, 2006–Ohio–2757, at ¶ 50. In the case
sub judice, in view of the fact that we have found no merit in any
of appellant's assignments of error, the cumulative error doctrine
does not apply. Thus, we find no merit to appellant's fourth
assignment of error and it is hereby overruled.
State v. Comer, 2012 WL 1831167, at *4-7.
The factual findings of the state appellate court are presumed to be correct.
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.

11 

28 U.S.C. § 2254(e)(l). Further, a federal habeas court may not grant relief unless the state
court's decision was contrary to or an unreasonable application of clearly established federal law,
or based on an unreasonable determination of the facts in light of the evidence that was
presented.
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(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(d). “The focus. . . is on whether the state court's application of clearly
established federal law is objectively unreasonable. . . .

[A]n unreasonable application is

different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). To obtain habeas
corpus relief, a petitioner must show that the state court's decision was “so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Bobby v. Dixon, -- U.S. -- , 132 S.Ct. 26 (201l)
(quoting Harrington v. Richter, 562 U.S. --, 131 S.Ct. 770, 786–87 (2011)). This bar is “difficult
to meet” because “habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.” Harrington v.
Richter, 131 S.Ct at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens,
J., concurring). In short, “[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
12 

decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner has failed
to meet this standard.
The United States Supreme Court has emphasized that the right to counsel guaranteed by
the Sixth Amendment is the “right to effective assistance of counsel.” Strickland v. Washington,
466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate the following:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that 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.
Id. at 687. “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, ––
U.S. ––, ––, 130 S.Ct. 1473, 1485 (2010). “Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the more difficult, since both standards are
‘highly deferential.’” Harrington v. Richter, 131 S.Ct at 778 (quoting Strickland, 466 U.S. at
689). When both Strickland and § 2254(d) “’apply in tandem,’ review is ‘doubly’” deferential.
Premo v. Moore, --U.S. --, 131 S.Ct. 733, 740 (2011)(quoting Knowles v. Mirzayance, 556 U.S.
111, 123 (2009).
Given the difficulties inherent in the analysis of whether an attorney's performance was
constitutionally deficient, “a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 687.
Nevertheless, “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Id. at 692. A habeas corpus petitioner must therefore establish prejudice in order to prevail on a
13 

claim of ineffective assistance of counsel. Id. at 693. To do so, a petitioner must demonstrate that
there is a reasonable probability that, but for counsel's errors, the result of the proceedings would
have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Because a petitioner must satisfy both prongs of the Strickland
test to demonstrate the ineffective assistance of counsel, should a court determine that the
petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.
In the case presently before the Court, Petitioner does not dispute the factual findings of
the state appellate court. He does, however, indicate that additional facts, as set forth in his
Traverse and in the supplemental transcript of Petitioner’s statement to police, are required for
consideration of his claim of ineffective assistance of counsel. Petitioner insists that he acted in
self defense and, in pursuing this argument, refers, inter alia, to testimony indicating that Cody
Lennex had shot Petitioner in the buttock as Petitioner was running toward his house and that
Dustin Lennex, the decedent, had chased Petitioner to his front porch, yelling, “[C]ome on
motherfucker. . . shoot me!” Petitioner states that he was inside his home and Dustin was on the
front porch when Petitioner fired at Dustin. See Traverse.
Petitioner’s preliminary arguments involve Ohio’s “Castle Doctrine,” as defined in
O.R.C. § 2901.05(B).2 Under that doctrine, a person is presumed to have acted in self defense

2

  Ohio Revised Code 2901.05 provides in relevant part:
(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense
or defense of another when using defensive force that is intended or likely to cause death or great
bodily harm to another if the person against whom the defensive force is used is in the process of
unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do
so entered, the residence or vehicle occupied by the person using the defensive force.
(2)(a) The presumption set forth in division (B)(1) of this section does not apply if the person
against whom the defensive force is used has a right to be in, or is a lawful resident of, the
residence or vehicle.

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when using deadly force against another who is in the process of unlawfully entering that
person’s residence. Petitioner argues that he was entitled to a judgment of acquittal on this
ground because the prosecution failed to rebut the presumption that he acted in self defense.
Petitioner also argues that he was denied the effective assistance of counsel because his attorney
failed to make this argument when moving for judgment of acquittal. In a related argument,
Petitioner contends that he was denied the effective assistance of counsel when his attorney
failed to request an instruction on the Castle Doctrine and an instruction indicating that he had no
legal duty to retreat. According to Petitioner, the evidence was uncontroverted that he shot and
killed Dustin while the latter was “pounding on the front door” and Petitioner was inside his
home.

PageID #1609.

Petitioner also contends that, had defense counsel requested jury

instructions on the issue of fault in starting the fray, see Traverse, PageID #1616, the outcome of
the proceedings would have been different.

Petitioner specifically argues that, had such

instructions been given, the jury could have reasonably concluded that Cody Lennex started the
altercation after objecting to Petitioner’s rap. PageID #1617. Petitioner claims that his attorney
should have asked the trial court to instruct the jury that the doctrine of self defense does not
require “a showing that [Petitioner] played no part [in creating] the situation. . . ,” but rather “that
he had not engaged in such wrongful conduct toward his assailant that the assailant was
provoked to attack [Petitioner].” PageID #1617. In making this argument, Petitioner refers to the
prosecution’s closing argument, which placed the entire blame for the events of that evening on
Petitioner. PageID #1619. Petitioner also contends that the trial court improperly instructed the

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who
uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and
without privilege to be, in that residence or vehicle.
(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and
may be rebutted by a preponderance of the evidence.

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jury that they could consider only the conduct of Dustin Lennex, the victim, in determining
whether Petitioner had reasonable grounds to believe that he was in imminent danger of death or
great bodily harm. Finally, Petitioner argues that the cumulative errors of his defense counsel
denied him a fundamentally fair trial. PageID #1621.
None of these arguments is persuasive. The state appellate court rejected Petitioner’s
claim that a Castle Doctrine instruction was warranted and this Court must defer to a state court’s
interpretation of its own laws. See Johnson v. Motley, No. 07-351-DCR, 2008 WL 2758212, at
*4 (E.D. Ky. June 10, 2008)(citing Vroman v.. Brigano, 346 F.3d 598, 604 (6th Cir.
2003)(federal courts are obligated to accept as valid a state court's interpretation of state law)).
Moreover, the record supports the appellate court’s conclusion that Petitioner was not
entitled to a jury instruction or judgment of acquittal under the Castle Doctrine. It was Petitioner
himself who testified that the initial fracas was over when he left the Lennex home and returned
to his home. Trial Transcript, PageID #1231-32. Cody Lennex did not follow Petitioner
outside, PageID #504, and Dustin Lennex did not follow Petitioner at that time. PageID #1233.
Petitioner returned to his home, loaded his gun, went outside and fired into the air. PageID
#1241-43. He did this while looking at Dustin Lennex, who was approximately ten to fifteen
feet away. Id. Todd Dixon testified that, when Petitioner returned to his residence to get his
gun, he was cursing, he punched the wall, and he stated that he was going to shoot “those m—fers” PageID #472. Although Petitioner denied firing a second shot before going back inside his
home, other witnesses testified that he fired a second shot and five spent yellow shell casings
were taken from the scene of the crime. PageID #1283. Cody Lennex, who described himself as
Petitioner’s best friend, took his gun outside after Petitioner fired into the air and warned
Petitioner that he would shoot if Petitioner fired again. PageID #966. Petitioner ran back to his

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home, shooting as he re-entered the residence. Id. at 959, 966. Dustin Lennex was standing
approximately fifteen feet from Petitioner at the time.

PageID #960.

Cody then shot at

Petitioner. Dustin Lennex ran to the front porch of Petitioner’s home, taunting Petitioner to
shoot him. PageID #967. Dustin had his arms out, palms upward, when Petitioner shot and
killed him. PageID #968. There was no testimony at trial that the victim was attempting to enter
Petitioner’s home at the time he was shot. To the contrary, Cody testified that Dustin Lennex
was three or four feet from Petitioner’s front door when Petitioner killed him. PageID # 978.
Petitioner initially testified that someone was attempting to come through his front (screen) door
when he fired but, on cross examination, he acknowledged that he never saw the victim touch the
front door. PageID #1271, 1278. Cody Lennex testified that Petitioner fired at him yet again
after shooting Dustin. PageID # 968. There was uncontroverted evidence that Dustin Lennex
was unarmed. The transcript of Petitioner’s initial statement to police, referred to by Petitioner
in support of his claim, does not assist him because there were inconsistencies in that statement
and he denied firing more than one shot.
In sum, in light of this record, this Court is not persuaded that Petitioner has established
prejudice, as that term is defined in Strickland, based on his defense counsel’s failure to request
additional jury instructions, failure to request a jury instruction on the Castle Doctrine, or failure
to make a proper motion for judgment of acquittal. The trial court could have granted a motion
for judgment of acquittal, assuming that such a judgment was warranted by the evidence,
regardless of whether defense counsel made an argument under the Castle Doctrine. Further,
Petitioner has failed to establish that the jury instructions now requested by him were required
under Ohio law or that those actually issued by the trial court were improper.
Petitioner’s claims of ineffective assistance of trial counsel are without merit.

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In short,

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be
DISMISSED. Petitioner’s Motion to Complete the Record, Doc. 8, is DENIED, as moot, since
Respondent has now filed the transcripts requested by that motion.
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
April 19, 2013

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