Ellis v. Warden Ross Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS that the 3 Petition for Writ of Habeas Corpus filed by Barnell E Ellis be denied on grounds of procedural default & that this case be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/20/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BARNELL E. ELLIS,
Petitioner,

Case No. 2:13-cv-682

v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, Barnell E. Ellis, a prisoner at the Ross Correctional Institution located in
Chillicothe, Ohio, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254.
The case is now before the Court on the petition, return of writ, Petitioner’s reply, and the
exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS
that petitioner’s claim be DENIED.
I. PROCEDURAL HISTORY
On November 2, 2010, Petitioner was indicted by a Franklin County, Ohio grand
jury on charges of murder, carrying a concealed weapon, tampering with evidence, and
attempted murder, with specifications. He waived a jury trial on the carrying a concealed
weapon and tampering with evidence charges, and was tried by a jury on the remaining
two counts. On April 12, 2011, the jury found him not guilty on one count and hung on the
other. A bench trial on the other counts followed, and a judge found Petitioner guilty of

carrying a concealed weapon and entered a judgment of acquittal on the tampering with
evidence charge.
In September, 2011, Petitioner was retried by a jury on the murder charge, and
found guilty. In a judgment entry filed on October 11, 2011, the trial judge sentenced
Petitioner to a term of fifteen years to life for murder, with an additional three years
consecutive due to use of a firearm, and eighteen months on the CCW charge, which was
run concurrently with the sentence on the murder charge. Return of Writ, Exhibit 4.
Petitioner filed a timely notice of appeal to the Tenth Appellate District Court of
Appeals. In his brief, he raised a single assignment of error:

THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR
TRIAL, THE RIGHT TO PRESENT A DEFENSE, AND DUE PROCESS OF
LAW WHEN THE TRIAL COURT GAVE CONFUSING AND MISLEADING
INSTRUCTIONS ON THE LAW OF SELF-DEFENSE. THIS ERROR WAS
FURTHER COMPOUNDED BY THE PROSECUTOR’S ERRONEOUS AND
MISLEADING MISSTATEMENTS TO THE JURORS ON THE LAW OF
SELF-DEFENSE SINCE THE ERRONEOUS AND MISLEADING
MISSTATEMENTS WOULD HAVE CAUSED THE JURY TO REJECT THE
LAWFUL AND VALID CLAIM OF SELF-DEFENSE PRESENTED BY THE
DEFENDANT.

In an opinion issued on August 9, 2012, the court of appeals overruled Petitioner’s
assignment of error and affirmed the judgment of the trial court. State v. Ellis, 2012 WL
3224129 (Franklin Co. App. Aug. 9, 2012). On September 24, 2012, Petitioner filed a notice
of appeal with the Ohio Supreme Court from his direct appeal. He set forth a single
proposition of law:

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It is confusing and misleading to instruct the jurors, in a case of selfdefense involving deadly force, that a defendant forfeits his right to
act in self-defense if he cannot prove that he was not at fault in
creating the situation giving rise to the affray and did not violate any
duty to avoid the danger. A court must instruct the jurors with
respect to what constitutes being at fault and describe in detail the
legal duties one must abide by in avoiding the danger. In order to be
at fault in a manner that forfeits the right to engage in self-defense, the
actor, with the intent to cause death or great bodily harm, must have
provoked the other person to the use of deadly force by actions
indicating that the use of deadly force was justifiable. A person has
the right to self-defense against thel (sic) unjustifiable use of deadly
force.
On January 23, 2013, the Ohio Supreme Court declined to accept the appeal for
review. State v. Ellis, 134 Ohio St.3d 1419 (January 23, 2013). This timely petition followed.
II. THE FACTS
The facts of this case were summarized by the state court of appeals, in its Opinion
of August 9, 2012, as follows.
Barnell E. Ellis, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas, in which the court found him
guilty, pursuant to a bench trial, of carrying a concealed weapon which is a
violation of R.C. 2923.12 and a fourth-degree felony, and guilty, pursuant to
a jury verdict, of murder with gun specification which is a violation of R.C.
2903.02 and an unclassified felony.
Appellant met Cassandra Dunlap in September 2010. According to
appellant, the two began a romantic relationship although Cassandra denied
such. Appellant also had a girlfriend or fiancée, Kimberly Tilley, at the time.
Appellant and Cassandra smoked marijuana together, along with
Cassandra's brother, Armond Paul Dunlap, Jr. (“J.R.”). In October 2010,
appellant asked Cassandra if he could borrow J.R.'s scales. Appellant picked
up the scales from J.R. on Friday, October 22, 2010, and J.R. told appellant he
wanted the scales back by Saturday. Appellant did not return the scales on
Saturday. On that same Saturday, according to appellant, Cassandra began
calling appellant. Appellant was with Tilley, so he did not answer the calls.
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Eventually, appellant answered a call from a phone number he did not
recognize. The caller threatened appellant, and appellant heard Cassandra
in the background start threatening him. Appellant changed his cell phone
number that day and began carrying a gun.
On October 24, 2010, J.R. and Cassandra drove to a neighborhood
store to buy cigarettes. Around the same time, appellant walked to the same
store. He met a woman along the way, Karen Mundel, and walked with her
the rest of the way. When they arrived at the store, appellant saw J.R.'s car
in the parking lot. Appellant entered the store, and Cassandra began asking
appellant about J.R.'s scales. Although J.R. told appellant that it would be
okay if appellant returned the scales later, Cassandra and appellant began
arguing, prompting appellant to announce he was “strapped,” according to
a store employee, which meant he was carrying a gun.
Cassandra and J.R. left the store, and appellant followed them.
Outside the store, appellant continued to follow Cassandra and J.R. and
appellant and Cassandra continued to argue. Appellant testified that J.R.
walked to his car, rummaged inside it, and then returned to the group,
although Cassandra denied such. Cassandra testified that appellant and J.R.
started to argue regarding something offensive appellant said to J.R. When
Mundel exited the store, the four of them walked toward the back of the
building with Cassandra, J.R., and appellant still arguing. According to
appellant, although J.R. told appellant to call him to arrange the return of the
scales, when appellant tried to input J.R.'s phone number into his cell phone,
Cassandra took his phone and told him he would get it back after he
returned the scales, all of which Cassandra denied. Appellant testified that
he then began walking away, at which point Cassandra told J.R. that she had
given appellant some birthday money belonging to J.R.'s son, causing J.R. to
become angry. Cassandra denied she ever said anything to J.R. about
birthday money. Appellant testified that J.R. punched him, and the two
engaged in a short physical altercation. Cassandra testified it was appellant
who swung at J.R. first. Appellant testified that J.R. then reached into his
sweatshirt pocket, and, believing J.R. was reaching for a gun, appellant shot
J.R. eight times. Mundel ran away, and appellant ran to his mother's home,
while Cassandra searched J.R.'s pockets looking for car keys. No gun was
found in J.R.'s possession. Cassandra testified her brother has never owned
a gun. Later that day, appellant turned himself in to police.
State v. Ellis, supra, at *1.

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III. PETITIONER’S HABEAS CLAIM
Petitioner filed his habeas corpus petition in this Court on July 19, 2013. In his
petition (Doc. 3) he raises only a single ground for relief, worded identically to the claim
he raised in the Ohio courts on direct appeal. As noted above, the focus of that claim is on
the correctness of the jury instructions on self-defense. Respondent argues that Petitioner’s
claim was procedurally defaulted because his counsel failed to object to the jury
instructions at trial, and the Tenth District Court of Appeals reviewed the claim for plain
error. In his reply, Petitioner argues that his claim was not procedurally defaulted because
the state court of appeals opinion is contrary to law and because he has fully exhausted his
state court remedies.
A. THE LAW OF PROCEDURAL DEFAULT
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the state
courts to protect the constitutional rights of criminal defendants, and in order to prevent
needless friction between the state and federal courts, a state criminal defendant with
federal constitutional claims is required to present those claims to the state courts for
consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue open to
him by which he may present his claims, then his petition is subject to dismissal for failure
to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing
Picard v. Connor, 404 U.S. 270, 275-78 (1971)). But if a Petitioner did not properly present
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his claim to the state courts and, because of the application of state rules of procedure, he
can no longer do so, he has waived (or procedurally defaulted) that claim for purposes of
federal habeas corpus review.

The only way he can overcome that default is to

demonstrate cause for his failure to have presented the claim correctly to the state courts,
and to show that he was prejudiced by the state courts’ refusal to consider his claim on its
merits. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues
that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must
determine that there is a state procedural rule that is applicable to the petitioner's claim and
that the petitioner failed to comply with the rule.” Id. Second, the Court must determine
whether the state courts actually enforced the state procedural sanction. Id. Third, it must
be decided whether the state procedural forfeiture is an adequate and independent state
ground upon which the state can rely to foreclose review of a federal constitutional claim.
Id. Finally, if the Court has determined that a state procedural rule was not complied with,
and that the rule was an adequate and independent state ground, then the petitioner must
demonstrate that there was cause for him not to follow the procedural rule, and that he was
actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice”
analysis applies to failures to raise or preserve issues for review at the appellate level.
Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
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B. APPLICATION TO THE FACTS
The Tenth District Court of Appeals began its review of Petitioner’s sole assignment
of error in this fashion:
We first note that appellant failed to object to the jury instructions
regarding self-defense at trial. Generally, the failure to object at trial or to
request a specific instruction waives all but plain error with respect to the
jury instructions. State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus. Crim.R.
52(B) provides that the court may consider errors affecting substantial rights
even though they were not brought to the attention of the trial court. “ ‘Plain
error is an obvious error * * * that affects a substantial right.’ “ State v.
Yarbrough, 95 Ohio St.3d 227, 244, 2002–Ohio–2126, ¶ 108, quoting State v.
Keith, 79 Ohio St.3d 514, 518 (1997). An alleged error constitutes plain error
only if the error is obvious and, but for the error, the outcome of the trial
clearly would have been different. Id. “ ‘[N]otice of plain error is taken with
utmost caution only under exceptional circumstances and only when
necessary to prevent a manifest miscarriage of justice.’ “ State v. Hairston,
10th Dist. No. 01AP–252 (Sept. 28, 2001), quoting State v. Lumpkin, 10th Dist.
No. 91AP–567 (Feb. 25, 1992).

State v. Ellis, supra, at *4. The court went on to examine whether the giving of the
challenged instructions constituted an abuse of discretion. Since, in Ohio, “[w]hether jury
instructions correctly state the law is a question of law that an appellate court reviews de
novo,” State v. Calderon, 2007 WL 259251, *11 (Franklin Co. App. Jan. 30, 2007), it is evident
that in Petitioner’s case, the state court performed only a plain error review.
The effect of failing to object to a jury instruction at trial and obtaining only plain
error review on appeal has been addressed on numerous occasions both by the United
States Court of Appeals for the Sixth Circuit, in decisions binding on this Court, and by this
Court itself.

Beginning with the Court of Appeals, in cases such as Gulertekin v.

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Tinnelman-Cooper, 340 F.3d 415, 423 (6th Cir. 2003), that court has held that “the fact that it
[the state court] found the procedural problem (defense counsel's failure to object)
paramount, and examined only whether this holding would constitute plain error (or
manifest injustice), is sufficient to foreclose federal court review on habeas.” The petitioner
in that case, like Petitioner here, did not object at trial to certain jury instructions given by
the trial judge, and the Ohio Tenth District Court of Appeals (the same one which reviewed
Petitioner’s case) began its analysis of that petitioner’s appeal with the same statement it
made here - that the failure to object to jury instructions is a waiver of the issue for
purposes of appeal and is reviewed only for plain error. Consequently, even though the
state court of appeals then discussed the issue of whether the jury instructions were correct,
by doing so it did not fail to enforce the waiver which occurred when counsel did not object
to those instructions at trial. The Gulertekin court also found that the other prerequisites
for procedural default had been satisfied; that is, that Ohio’s rule requiring an objection to
jury instructions at trial and the waiver, for appeal purposes, which stems from not making
such an objection, is an “adequate and independent ground” for the state court’s decision
and represents a rule that is regularly followed and enforced. Petitioner’s case cannot be
distinguished from Gulertekin, and this Court must reach the same result.
As noted, this is not the first time that this Court has confronted the same issue. Just
a few examples will suffice to show that this Court consistently declines to consider the
merits of challenges to jury instructions when the petitioner’s counsel failed to object at
trial and when the state appellate courts review the claim only for plain error. Cooper v.
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Warden, Lebanon Corr. Inst., 2012 WL 5511320, *11 (S.D. Ohio Nov. 14, 2012), adopted and
affirmed 2013 WL 506447 (S.D. Ohio Feb. 11, 2013) is one such case; there, this Court held
that the “failure to contemporaneously object to the jury instructions, ... constitutes a
procedural default.” The same result was reached in Coleman v. Bradshaw, 2013 WL
3367092 (S.D. Ohio July 5, 2013), and it would be easy for the Court to list many more
similar decisions. In short, the law is clear that when an Ohio criminal defendant fails to
object to jury instructions at trial, he may not raise that claim on appeal other than to ask
for a “plain error” review, and he may not raise the claim at all in a subsequent federal
habeas corpus petition.
There are exceptions to this rule. As the Court noted above, if a petitioner has a
good reason for not having preserved his claim for review, that may excuse the failure.
Petitioner has not offered any reason here. Even if he did - such as by arguing that his trial
attorney should have objected to the jury instructions - this Court could consider such a
claim only if it was presented first to the state courts. Petitioner has never made such a
claim there, nor could he do so now due to the passage of time. See Edwards v. Carpenter,
529 U.S. 446, 453 (2000)(“In order to constitute cause, an ineffective assistance of counsel
claim generally must “ ‘be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default.’ ”), quoting Murray v. Carrier, 477
U.S. 478, 479 (1986).
The only other way the Court can review an otherwise defaulted claim is if the
Petitioner makes a showing of actual innocence. That is very hard to do. “It is important
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to note in this regard that ‘actual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). The possibility that a state
trial judge gave inaccurate jury instructions (although the state court of appeals concluded
that the instructions were exactly the ones required to be given) is not evidence that
Petitioner is innocent, and he does not appear to dispute that he shot and killed the victim,
but simply that he did so in self-defense. As one court has observed, a “[p]etitioner's claim
that he acted in self-defense amounts to a claim of legal innocence, as opposed to factual
innocence, and would thus not excuse his default.” Daniels v. Rivard, 2014 WL 502080, *4
(E.D. Mich. Feb. 7, 2014).
Consequently, there is no way for Petitioner to avoid the fact that the claim he
would like this Court to review was not properly preserved for review by the state courts.
His counsel did not object to the jury instructions at trial. Although he raised this claim in
the Tenth District Court of Appeals, that court did not review his claim directly; rather, it
simply looked to see if the trial judge committed “plain error.” When that is what
happened in state court, as the Court of Appeals said in Gulertekin, federal court review of
the claim is “foreclose[d].” Id. at 423. No amount of argument about the merits of the
claim, or whether the state court rulings violated Petitioner’s federal constitutional rights,
can change that.
IV. RECOMMENDED DISPOSITION
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that the
petition be DENIED on grounds of procedural default and that this case be
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DISMISSED.
V. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen 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).
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.

/s/ Terence P. Kemp
United States Magistrate Judge
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