Williams v. Warden Mansfield Correctional Institution

Filing 12

REPORT AND RECOMMENDATION re 2 Petition for Writ of Habeas Corpus filed by Shashawn Williams. Objections to R&R due by 4/24/2014. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/7/2014. (Copy mailed via regular U.S. mail and certified mail, receipt no. 7009 2820 0003 5796 3546.) (sln1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SASHAWN WILLIAMS,
CASE NO. 2:13-CV-113
Judge Michael H. Watson
Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,
v.
WARDEN, Mansfield Correctional
Institution,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent’s Return
of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus be DENIED
and that this action be DISMISSED.
I.FACTS AND PROCEDURAL HISTORY
The Ohio Court of Appeals for the Tenth District summarized the facts and procedural
history of this case as follows:
Appellant was indicted on the following: (1) four counts of
aggravated robbery, with firearm specifications, pertaining to a
July 8, 2008 incident at Grandad's Pizza; (2) one count of
aggravated robbery, and a firearm specification, for a July 22,
2008 incident at a CVS Pharmacy; (3) nine counts of aggravated
robbery, with firearm specifications, for a July 28, 2008 incident at
a Pizza Hut; (4) one count of receiving stolen property regarding a
credit card stolen from Spencer Morgan during the incident at
Grandad's Pizza; and (5) one count of receiving stolen property
regarding credit cards stolen from Scott Ackerman and Melissa
Otero during the Pizza Hut incident. Appellant pleaded not guilty
to the charges, and a jury trial ensued.

1

At trial, the parties stipulated that an armed robbery occurred on
July 8, 2008, when three men entered Grandad's Pizza and stole
money from the business and money, credit cards, and cell phones
from four people present. According to the stipulation, one credit
card, stolen from Morgan, was used at a bar shortly after the
robbery. In addition, the parties stipulated that on July 22, 2008,
two armed men entered a CVS Pharmacy and stole drugs and
money. Lastly, the parties stipulated that on July 28, 2008, two
armed men entered a Pizza Hut and stole money from the
restaurant, and cell phones, credit cards, and money from eight
people present.
Marcellus Henry was one of the armed perpetrators in each of the
aggravated robberies, and he testified as follows. On July 8, 2008,
Henry, appellant, Toris Richardson, and three other men agreed to
rob Grandad's Pizza. Appellant provided guns and the car for the
robbery. Afterward, appellant was given a portion of the stolen
money because he provided the guns and the car. Additionally,
appellant and Richardson were given the stolen credit cards.
Next, appellant came up with a plan to steal drugs from a
pharmacy, and Richardson and Henry agreed to the plan. After
scouting for a pharmacy to rob, they decided on a CVS Pharmacy.
Richardson recruited Odulex Leger to assist them. On July 22,
2008, appellant drove Richardson to the pharmacy, and they met
Henry and Leger. Appellant and Richardson stayed in the car
watching for police while Henry and Leger went inside with guns,
which appellant provided. After the robbery, everyone met at
appellant's house, where Leger and Henry split the money stolen
from the pharmacy, and appellant and Richardson kept the drugs.
On July 28, 2008, Henry and Leger decided to rob a Pizza Hut.
They went to the restaurant in appellant's car with the guns they
previously obtained from appellant. After the robbery, Leger and
Henry went to Richardson's apartment, where the stolen items
were split among Henry, Leger, Richardson, and appellant,
although appellant was not present. Richardson left to go pick up
appellant at a bar, and Leger and Henry remained. The police later
arrived and arrested Leger and Henry.
Henry had no “doubt in [his] mind” that appellant “knew what was
going on” with the robbery-ring they were participating in. (Tr.
Vol.I, 114.) Henry, Richardson, and appellant were not working,
and they were “supporting” themselves with the robbery proceeds.
(Tr. Vol.I, 116.)

2

Leger testified that appellant and Richardson lived in the same
apartment complex and were very close friends. He also confirmed
his involvement in the aggravated robberies at the CVS Pharmacy
and Pizza Hut.
Richardson testified that he planned robberies and recruited others
to execute them, and he said that appellant helped him with
robberies in 2008. He admitted to participating in the CVS
Pharmacy robbery with appellant, Henry, and Leger. He also
testified that Henry came up with the idea to rob Grandad's Pizza.
He claimed that he gave Henry a gun for the robbery, but Henry
used his own car. He said that appellant received no proceeds from
the robbery because he was not involved in it.
Richardson also testified that, on July 28, 2008, Henry and Leger
approached him with the idea of committing a robbery. Richardson
contacted appellant about allowing Henry and Leger to use his car,
and appellant agreed. At one point, Richardson testified that
appellant “knew in advance that [Henry and Leger] were using the
car for a robbery.” (Tr. Vol.II, 284.) But, other times, Richardson
indicated that appellant only knew that Henry and Leger were
using the car to search for a place to rob and that appellant was
never contacted when the men decided to rob a Pizza Hut while on
that search.
Henry and Leger returned to Richardson's apartment after the
robbery at the Pizza Hut, and the stolen money was divided among
Henry, Leger, Richardson, and appellant, although appellant was
not there at the time. Richardson said that he received a share for
supplying guns for the robbery and that appellant received a share
for supplying guns and the car.
Richardson also received credit cards stolen during the incident,
and he called appellant, who was at a strip club, and asked him if
he knew of anyone who would take the credit cards. Appellant
said, “yeah, just come on down here.” (Tr. Vol.II, 289.)
Richardson, joined by two women, picked appellant up. Later, the
police stopped the vehicle those individuals were in, and
Richardson was arrested for driving without a license and for being
in possession of the credit cards stolen during the Pizza Hut
incident. Lastly, Richardson testified that he did not give appellant
his share of the money or the credit cards stolen during the Pizza
Hut incident because he was arrested before he had an opportunity
to do so.

3

Columbus Police Officer Kareem Kashmiry stopped the vehicle
Richardson was driving and he confirmed at trial that Richardson
was in possession of credit cards stolen during the Pizza Hut
incident. Detective Brian Boesch verified that those credit cards
belonged to Ackerman and Otero.
Before deliberations, the trial court instructed the jury that
appellant “may be convicted of all counts and specifications as an
aider and abettor.” (Tr. Vol.II, 518.) The jury found appellant
guilty of all charges, but it failed to find that the receiving stolen
property offense, pertaining to Morgan, involved a credit card. The
trial court sentenced appellant to prison and informed him that for
his receiving stolen property convictions, the “period of postrelease control could be for as much as three years” and that the
aggravated robbery convictions carry mandatory post-release
control for a period of five years. (Tr. Vol.III, 8.) The court also
noted that the parole board could send appellant back to prison if
he violated post-release control.
Appellant signed a notice of imprisonment on the date he was
sentenced. The form indicated that the “Court hereby notifies”
appellant that if he violates a post-release control condition, the
parole board may impose a prison term for up to nine months “and
the maximum cumulative prison term so imposed for all violations
during the period of post-release control cannot exceed one-half of
the stated prison term originally imposed.” And, in its sentencing
entry, the court stated that it notified appellant that he would
receive a period of post-release control for five years and that “if
he violates post-release control his sentence will be extended
administratively in accordance with State law.”
Appellant appeals, raising the following assignments of error:
[I.] The state's evidence is not sufficient to sustain Mr. Williams’
convictions for aggravated robbery and receiving stolen property
in Counts 6 through 16 of the Indictment.
[II.] Mr. Williams' convictions for aggravated robbery are against
the manifest weight of the evidence

State v. Williams, No. 10-AP-1042, 2011 WL 4033855, at *1-3 (Ohio App. 10th Dist. Sept. 13,
2011). On September 13, 2011, the Ohio Court of Appeals sustained in part Petitioner’s first

4

assignment of error as it relates to his fifteenth count of receiving stolen property,1 but otherwise
affirmed Petitioner’s convictions and sentence, and remanded the case to the trial court for resentencing. Id. On February 1, 2012, the Ohio Supreme Court dismissed Petitioner’s
subsequent appeal. State v. Williams, 131 Ohio St.3d 1439 (2012). On December 22, 2011, the
Franklin County Court of Common Pleas re-sentenced Petitioner pursuant to the remand of the
state appellate court to an aggregate term of twenty-one years.
On April 4, 2012, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). On July 12, 2012, however, the appellate court denied that application as
untimely. Exhibits 14, 16 to Return of Writ. Petitioner apparently did not file an appeal to the
Ohio Supreme Court.
On February 7, 2013, Petitioner filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.2 He alleges that he is in the custody of the Respondent in
violation of the Constitution of the United States asserting the evidence is constitutionally
insufficient to sustain his convictions on robbery and receiving stolen property. It is the position
of the Respondent that these claims lack merit.

1

The appellate court stated as follows:
[A]ppellant challenges his conviction for receiving stolen property pertaining to
Morgan's stolen credit card. The trial court treated the conviction as a felony and
sentenced appellant to 12 months imprisonment for it. Appellant contends that the
offense is a first-degree misdemeanor, which carries a maximum penalty of 180 days
in jail, because the jury failed to make a specific finding that the stolen property was
a credit card. Plaintiff-appellee, the state of Ohio, concedes that the trial court must
be required to enter a judgment convicting and sentencing the receiving stolen
property offense as a first-degree misdemeanor. We agree, based on State v. Pelfrey,
112 Ohio St.3d 422, 2007–Ohio–256. For all these reasons, we overrule in part and
sustain in part appellant's first assignment of error.

2

Petitioner executed the petition on January 28, 2013. PageID #16.
5

II.MERITS
A.

Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective

Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court
determinations. The United State Supreme Court recently described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)); see
also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential
standard for evaluating state-court rulings, and demands that state-court decisions be given the
benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e)(1) provides:
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.
28 U.S.C. § 2254(e)(1).
Under AEDPA, a writ of habeas corpus should be denied unless
the state court decision was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable
determination of the facts in light of the evidence presented to the
state courts.

6

Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513
(6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision
was “contrary to, or involved an unreasonable application of, clearly established federal law”);
28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable
determination of the facts in light of the evidence presented in the State court proceeding”). The
United States Court of Appeals for the Sixth Circuit recently explained these standards as
follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2)
“the state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
123 S.Ct. 2527 (2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at
409 and Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166 (2003)); see also Harrington, 131
S.Ct. at 786 (“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
7

decision.” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim
of “unreasonable application” under § 2254(d)(1), courts must focus on the reasonableness of the
result, not on the reasonableness of the state court’s analysis. Holder v. Palmer, 588 F.3d 328,
341 (6th Cir. 2009) (“‘[O]ur focus on the ‘unreasonable application’ test under Section 2254(d)
should be on the ultimate legal conclusion that the state court reached and not whether the state
court considered and discussed every angle of the evidence.’” (quoting Neal v. Puckett, 286 F.3d
230, 246 (5th Cir. 2002) (en banc)); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir.
2013) (considering evidence in the state court record that was “not expressly considered by the
state court in its opinion” to evaluate the reasonableness of state court's decision). Relatedly, in
evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a
court must review the state court's decision based solely on the record that was before it at the
time it rendered its decision. Pinholster, 131 S.Ct. at 1398. Put simply, “review under §
2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.
B.

Claims One and Two
Petitioner challenges his aggravated robbery and receiving stolen property convictions

related to robbery of Pizza Hut, and as charged in Counts six through fourteen and sixteen of the
Indictment against him. The state appellate court rejected this claim as follows:
[A]ppellant argues that his convictions are based on insufficient
evidence. Sufficiency of the evidence is a legal standard that
tests whether the evidence introduced at trial is legally sufficient
to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386,
1997–Ohio–52. We examine the evidence in the light most
favorable to the state and conclude whether any rational trier of
fact could have found that the state proved beyond a reasonable
doubt the essential elements of the crime. State v. Jenks (1991),
61 Ohio St.3d 259, paragraph two of the syllabus; State v.
Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, ¶ 78. We will
not disturb the verdict unless we determine that reasonable minds
could not arrive at the conclusion reached by the trier of fact.
8

Jenks at 273. In determining whether a conviction is based on
sufficient evidence, we do not assess whether the evidence is to
be believed, but whether, if believed, the evidence against a
defendant would support a conviction. See Jenks, paragraph two
of the syllabus; Yarbrough at ¶ 79 (noting that courts do not
evaluate witness credibility when reviewing a sufficiency of the
evidence claim).
First, appellant challenges his aggravated robbery convictions for
the July 28, 2008 incident at Pizza Hut, in which Henry and
Ledger robbed the business and individuals. Aggravated robbery
occurs when someone uses a deadly weapon while committing or
attempting to commit a theft offense. R.C. [§] 2911.01. The
prosecution alleged that appellant was guilty of the aggravated
robberies at the Pizza Hut under a complicity theory because he
aided and abetted Henry and Leger in their commission of those
crimes. To prove aggravated robbery by aiding and abetting, the
prosecution must show that “the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in
the commission of the crime, and that the defendant shared the
criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d
240, 245, 2001–Ohio–1336. Participation “‘in criminal intent
may be inferred from presence, companionship and conduct
before and after the offense is committed.’” Id., quoting State v.
Pruett (1971), 28 Ohio App.2d 29, 34. “‘Mere approval or
acquiescence, without expressed concurrence or the doing of
something to contribute to an unlawful act, is not an aiding or
abetting of the act.’” State v. Philpot, 10th Dist. No. 03AP–758,
2004–Ohio–5063, ¶ 26 (citations omitted).
Appellant claims that he did not share in Henry and Leger's intent
to commit the aggravated robberies, but, instead, only acquiesced
to them using his car to find a place to rob. Richardson testified,
however, that appellant knew that Henry and Leger were going to
use his car to commit the aggravated robberies. Although
appellant challenges the credibility of Richardson's testimony
about that knowledge, questions of credibility are irrelevant to
the issue of whether there is sufficient evidence to support a
conviction. See State v. Preston–Glenn, 10th Dist. No. 09AP–92,
2009–Ohio–6771, ¶ 38.
Nevertheless, contrary to appellant's contentions, when he
permitted Henry and Leger to use his car, he demonstrated his
encouragement and support in the execution of the aggravated
robberies from the earliest stage of events. In fact, he provided
this permission after having already given Henry and Leger guns.
9

Also, the participants reserved some of the proceeds from the
crimes for him, due to his involvement, and he agreed to assist
Richardson with passing along credit cards stolen during the
incident.
Consequently, the evidence, construed in a light most favorable
to the state, establishes that appellant aided and abetted Henry
and Leger in committing aggravated robberies at the Pizza Hut.
Therefore, there is sufficient evidence to support appellant's
convictions for those robberies.
Next, appellant challenges his conviction for receiving stolen
property based on the credit cards stolen from Ackerman and
Otero during the Pizza Hut robberies. R.C. [§] 2913.51(A)
defines receiving stolen property and states that “[n]o person
shall receive, retain, or dispose of property of another knowing or
having reasonable cause to believe that the property has been
obtained through commission of a theft offense.”
Richardson obtained the credit cards stolen during the Pizza Hut
robberies because of his involvement in that incident. Although
appellant agreed to help Richardson pass the credit cards along to
others, Richardson was arrested before he had an opportunity to
relinquish them. Therefore, appellant argues that his receiving
stolen property conviction cannot stand because he never
obtained the credit cards. Appellant was prosecuted under
principles of complicity, however. We apply those principles, as
stated in Johnson, to determine whether appellant aided and
abetted Richardson in receiving the stolen credit cards.
Appellant played a crucial role in Richardson's receipt of the
credit cards through his assistance with the implementation of the
Pizza Hut robberies, which yielded the credit cards. And
appellant agreed to participate in those crimes with knowledge
that Richardson took proceeds from robberies he was involved in.
Accordingly, the evidence, construed in a light most favorable to
the state, establishes that appellant aided and abetted Richardson
in receiving the credit cards stolen from Ackerman and Otero
during the Pizza Hut robberies. Therefore, there is sufficient
evidence to support appellant's conviction for receiving stolen
property based on those stolen credit cards.
State v. Williams, 2011 WL 4033855, at *3-5.

10

Petitioner raises the same arguments here as he did before the state appellate court. He
argues that no evidence reflects his involvement in the Pizza Hut robbery or receipt of the credit
cards obtained from that incident. In support of this argument, Petitioner contends that he was
not present at the time of the robbery, not involved in the planning of the robbery, and that the
only evidence linking him to the crime constitutes the offenders’ use of his car. Petitioner
further contends that the firearms they used, which were his, were provided some time before the
date of the robbery, and therefore do not serve to link him to those crimes. Petitioner has
included portions of the trial testimony in support of his claim.
A criminal defendant may be convicted consistent with the United States Constitution
only if the evidence adduced at trial is sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine
whether the evidence was sufficient to support a conviction, this Court must view the evidence
in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing
Jackson, 443 U.S. at 319). The prosecution is not affirmatively required to “rule out every
hypothesis except that of guilty.” Id. (quoting Jackson, 443 U.S. at 326). “[A] reviewing court
‘faced with a record that supports conflicting inferences must presume even if it does not appear
on the record that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.’” Id. (quoting Jackson, at 326).
Further, this Court must afford a “double layer” of deference to state court
determinations about the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference is due to the jury's finding of guilt because the standard,
established by Jackson v. Virginia, is 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

11

elements of the crime beyond a reasonable doubt.” Even if a de novo review of the evidence
leads to the conclusion that no rational trier of fact could have so found, a federal habeas court
“must still defer to the state appellate court’s sufficiency determination as long as it is not
unreasonable.” Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).
Here, for the reasons addressed by the state appellate court, when viewing all of the
evidence in the light most favorable to the prosecution, as this Court is required to do, the
evidence is constitutionally sufficient to sustain Petitioner’s convictions. Testimony of codefendants indicated that Petitioner provided his car and guns for use in the robbery, and that in
payment, he was to receive proceeds from the robbery, including the credit cards stolen on that
date. These facts, under Ohio law, are sufficient to establish he aided and abetted in the July
2008 Pizza Hut robbery and receiving stolen property from the proceeds of that offense. The
fact that police arrested the co-defendants before they gave Petitioner payment for his assistance
in that crime, or that Petitioner did not know that the Pizza Hut would be the specific target of on
the date of the robbery does not indicate, under the standard set forth in Jackson, that the
evidence is constitutionally inadequate on these charges.
Petitioner’s claims lack merit.
III.RECOMMENDED DISPOSITION
WHEREUPON, the Magistrate Judge RECOMMENDS that the petition for a writ of
habeas corpus be DENIED and that this action be DISMISSED.
IV.PROCEDURE ON OBJECTIONS
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

12

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).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

Date: April 7, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

13