Taylor v. Warden Lebanon Correctional Institution

Filing 9

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that this case be DISMISSED. Objections to R&R due by 4/12/2017. Signed by Magistrate Judge Norah McCann King on 3/29/2017. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WIL W. TAYLOR,
Petitioner,
Case No. 2:16-cv-237
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

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 (ECF No. 1), Respondent’s
Return of Writ (ECF No. 7), and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On November 4, 2010, appellant was indicted on two counts of
felonious assault in violation of R.C. 2903.11(A)(2). Both counts
carried specifications under R.C. 2941.145 for use of firearm and
under R.C. 2941.146 for discharging a firearm from a motor
vehicle.
The matter came for trial before a jury in June 2012. The state's
case was largely based on the testimony of Christion Chavis, the
driver of a vehicle into which appellant was alleged to have fired
several gunshots. Chavis, 20 years old at the time of trial, testified
that he and appellant attended high school together, and appellant
and his friends often harassed him at school. At one point,
appellant attempted to steal a chain necklace from Chavis. The
chain broke during the ensuing fight, but Chavis was able to

retrieve it. Although Chavis was offended and angered by
appellant's actions, he did not want to retaliate.
Chavis was also the subject of telephone and computer harassment
from appellant and his friends. Appellant left Chavis threatening
messages on his Facebook page and tagged him in videos of
appellant and his friends posing with guns. In late January 2010,
appellant called Chavis and threatened that he “was going to get
[him]” and “shoot [him].” (Tr. 117–18.) Chavis testified that he did
not know why appellant did not like him, other than that appellant
may have been jealous of Chavis because Chavis had been voted
“best dressed” in high school. (Tr. 132.)
On February 6, 2010, Chavis and his friend, Malik Price, went to
Eastland Lanes around 9:00 p.m. While the two were bowling,
appellant arrived with a group of 8–10 other young men. Chavis
testified that all the men, including appellant, were “throwing up
gang signs and pointing * * * at [Chavis].” (Tr. 105 .) Chavis
interpreted these actions to mean that the group “was out to get me
or something.” (Tr. 106.) Chavis and Price eventually left the
bowling alley in Chavis's car, intending to make the 5–10 minute
drive to Chavis's home.
Enroute to his house, Chavis noticed a car with five occupants
following him. Chavis recognized three of the men in the car—
appellant, Daventa Penn, and a man known to him only as Kenta.
Appellant was seated in the front passenger seat; Penn was seated
directly behind appellant. Both appellant and Penn had their
windows rolled down. Chavis maneuvered into the right turn lane
in an effort to elude the other car. The other car then pulled into the
left lane and eventually stopped beside Chavis at a traffic light.
Chavis estimated the distance between the two cars as “a couple
feet away.” (Tr. 116.) Chavis testified that he saw appellant
“hang[] out [of] the car with [a] gun” and then fire several shots at
Chavis's car. (Tr. 113.) Chavis was close enough to appellant to get
a “good look” at him. (Tr. 116.) Chavis averred that appellant was
talking when he “got out the car, hanging out the car,” but he could
not understand what appellant was saying because the windows in
Chavis's car were rolled up. (Tr. 152.)
Chavis also testified that appellant was “grabbing for something,
getting ready to hang out the car.” (Tr. 154.) He stated that
appellant was hanging out of the car window “from his—his chest
up, far enough for him to aim * * * a gun and shoot right next to
me.” (Tr. 164.) According to Chavis, he was “looking down the
barrel of a gun.” (Tr. 169.) However, Chavis also testified that
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appellant initially hung out of the car window without the gun,
then grabbed for something inside the car. When Chavis saw this
movement, he ducked down because he thought appellant was
retrieving a gun. Chavis testified that he did not actually see
Chavis shoot the gun at his car; however, he assumed appellant
fired the shots because he was the only one who grabbed for
something. After the shooting ended, Chavis sat up and saw the car
drive off with appellant hanging out of the door with the gun in his
hand. Neither Chavis nor Price was hit by any of the bullets.
Chavis testified that he did not call the police from the scene of the
shooting because he was afraid that appellant and his friends would
return and shoot at him again. Instead, he drove home and asked
his mother to call the police. While he waited for the police, he
observed that several of his car windows were heavily damaged
from the gunshots and that several bullets and shell casings were
scattered throughout the car. At trial, Chavis identified appellant as
the shooter.
In addition to Chavis's testimony, the state presented testimony
from three members of the Columbus Police Department. Officer
Stephen Asch testified that he was on patrol shortly after midnight
on February 7, 2010 when he received a dispatch that a car had
been “shot up” near the Speedway gas station at the intersection of
Winchester Pike and Refugee Road. (Tr. 31.) Officer Asch
responded to the scene and encountered Chavis, alone. Chavis
reported that a vehicle with four or five male occupants pulled up
next to him while he was stopped at a traffic light on Refugee
Road. According to Officer Asch, Chavis said that appellant, one
of the passengers in the vehicle, fired three shots into Chavis's
vehicle, and then turned left onto Winchester Pike. Officer Asch
did not interview anyone else and did not find any bullets or shell
casings at the scene.
Detective Delbert Chapman testified that he interviewed Chavis at
his home at approximately 1:30 a.m. on February 7, 2010. During
that interview, Chavis reported the details of the shooting and
identified appellant as the shooter. He told Detective Chapman he
believed the impetus for the shooting was the fact that the two had
been engaged in an ongoing dispute over a chain necklace.
According to Detective Chapman, Chavis also stated that prior to
the February 7, 2010 incident, appellant had threatened to shoot
Chavis's car with a .22–caliber revolver.
Detective Chapman took photographs of Chavis's car as part of his
investigation. These photographs, identified at trial by Detective
3

Chapman as state's exhibit Nos. 1–8, depict Chavis's car after the
alleged shooting. The front driver's side window and the right rear
passenger window are completely blown out. Detective Chapman
testified that there is a “very good possibility” that bullets pierced
the glass in these windows and the glass later “crumble[d]” at the
scene or during Chavis's drive home. (Tr. 66.) The glass in the left
rear passenger window contains a hole but otherwise remains
intact. According to Detective Chapman, the hole in the left rear
passenger window indicates that a gunshot had been fired through
the window. He further testified that he examined the vehicle's
interior, which revealed no bullets, bullet fragments, or bullet
strikes. He explained that there was a “strong possibility” that
bullets entered the vehicle through a window, crossed through the
interior of the vehicle, and exited through another window. (Tr.
55.)
Detective Chapman further testified that he drove to the Speedway
station after concluding the interview with Chavis. There, a clerk
who was working at the time of the incident reported that she did
not hear any gunshots and did not hear or see anything related to
the incident.
Detective James Howe testified that he interviewed Price while
Detective Chapman interviewed Chavis. According to Detective
Howe, the Price interview generated no viable suspects and
produced nothing useful to the investigation “other than a shooting
occurred.” (Tr. 93.) Detective Howe stated that Price did not
provide a specific name for the shooter and did not mention
appellant's name.
Appellant presented no evidence in his defense, and the jury
returned verdicts finding him guilty of all counts charged in the
indictment.
Following a sentencing hearing on September 6, 2012, the trial
court sentenced appellant to two years for each of the felonious
assault convictions, to be served concurrently, three years for each
of the firearm specifications, to be served consecutively to each
other and to the term imposed on the felonious assault convictions,
and five years for each of the discharging a firearm from a motor
vehicle specifications, to be served concurrently to each other but
consecutive to the terms imposed on the felonious assault
convictions and the firearm specifications. In sum, the trial court
imposed a prison sentence of 13 years.
Appellant appeals, assigning the following three errors:
4

[I.] THE FELONIOUS ASSAULT CONVICTIONS AND
SPECIFICATIONS MUST BE REVERSED BECAUSE THEY
WERE OBTAINED THROUGH INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION.
[II.] THE FELONIOUS ASSAULT CONVICTIONS MUST BE
REVERSED BECAUSE THEY WERE OBTAINED AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
[III.] THE TRIAL COURT ERRED
CONSECUTIVE
SENTENCES
FOR
SPECIFICATION.

IN IMPOSING
THE
GUN

State v. Taylor, No. 12AP-870, 2013 WL 4678049, at *1-3 (Ohio App. 10th Dist. Aug. 27, 2013).
On August 27, 2013, the appellate court affirmed the judgment of the trial court. Id. On
December 24, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Taylor, 137 Ohio St.3d 1443 (2013).
Petitioner also pursued post conviction relief. He alleged that he had been denied the
effective assistance of counsel during plea negotiations. Petition for Post-Conviction Relief
pursuant to R.C. 2953.21 ( ECF No. 7-1). The trial court denied that petition without a hearing,
and the state appellate court affirmed that judgment. State v. Taylor, No. 14AP-166, 2014 WL
4071498, at *2 (Ohio App. 10th Dist. Aug. 19, 2014). On March 11, 2015, the Ohio Supreme
Court declined to accept jurisdiction of the appeal. State v. Taylor, 141 Ohio St.3d 1490 (2015).
On March 16, 2016, Petitioner filed this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He alleges that he was denied the effective assistance of trial counsel because his
attorney failed to object to certain testimony, failed to request a jury instruction on the lesser
included offense, and failed to argue that the evidence did not support a conviction for the driveby shooting specification (claim one); that his convictions were against the manifest weight of
the evidence (claim two); and that the trial court erred in imposing consecutive terms of
5

incarceration on the firearm specifications (claim three). Respondent contends that Petitioner’s
claims are without merit.
Standard of Review
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this case. The United State
Supreme Court has 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, ––U.S.––, 134 S. Ct.
10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559
U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted).
A federal court may not grant habeas relief with respect to a “claim that was adjudicated
on the merits in State court proceedings” unless the state court decision either:
(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). Further, the factual findings of the state 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.
6

28 U.S.C. § 2254(e)(1). Accordingly, “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.” Coley v. Bagley, 706 F.3d 741,
748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). 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 these standards rests with the petitioner.
Cullen v. Pinholster, 563 U.S.170, 181 (2011).
Claim One
In claim one, Petitioner alleges that he was denied the effective assistance of trial counsel
because his attorney failed to object to “prejudicial testimony,” failed to object to the statements
of Malik Price as presented through Detective Howe, failed to request a jury instruction on the
lesser offense, and failed to argue that the evidence did not support a conviction on the drive by
shooting specification. Liberally construing the Petition, the Court will presume that these are
the same issues that Petitioner raised in his direct appeal.

7

The state appellate court rejected Petitioner’s claim of ineffective assistance of trial
counsel as follows:
Under his first assignment of error, appellant contends his trial
counsel was ineffective in: (1) failing to object to impermissible
“other acts” evidence; (2) eliciting testimony relating to appellant's
alleged gang activity; (3) failing to object to impermissible hearsay
testimony; (4) failing to request a jury instruction on aggravated
menacing; and (5) failing to argue that the evidence did not support
a conviction on the discharging a firearm from a motor vehicle
specification. Appellant further contends he was prejudiced by his
trial counsel's conduct, and that the cumulative effect of the errors
and omissions denied him a fair trial.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Initially, the defendant must
demonstrate that counsel's performance was deficient. Id. at 687.
To meet that requirement, the defendant must show that counsel
made errors so serious that counsel was not functioning as
“counsel” guaranteed by the Sixth Amendment. Id. A defendant
may prove counsel's conduct was deficient by identifying acts or
omissions that were not the result of reasonable professional
judgment. Id. at 690. The court must then determine whether, in
light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance. Id.
If a defendant successfully establishes that counsel's assistance was
ineffective, he or she must next prove the second prong of the
Strickland test—that counsel's deficient performance was
prejudicial. Id. at 687. To establish the second prong, the defendant
must demonstrate that counsel's errors were so serious as to
deprive him or her of a fair trial, a trial whose result is reliable. Id.
A defendant meets this standard with a showing “that there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
Appellant first contends his counsel was ineffective in failing to
object to impermissible “other acts” evidence. Chavis testified that
he had on-going problems with appellant during high school. In
response to the prosecutor's question about what type of problems
he had with appellant, Chavis averred, “[s]hootings, fighting,
harassment.” (Tr. 101.) Appellant contends that Chavis's reference
to “shootings” constitutes “other acts” evidence establishing his
8

propensity to shoot at Chavis, i.e., that because appellant
previously shot at Chavis, he likely shot at him again.
Initially, we note that counsel’s failure to make objections is within
the realm of trial strategy. State v. Burney, 10th Dist. No. 06AP–
990, 2007–Ohio–7137, ¶ 66, citing State v. McCroskey, 9th Dist.
No. 96CA0026 (Apr. 2, 1997). “[C]ompetent counsel may
reasonably hesitate to object in the jury's presence because
objections tend to disrupt the flow of a trial, and are considered
technical and bothersome to the jury.” State v. Tolliver, 9th Dist.
No. 03CA0017, 2003–Ohio–5050, ¶ 19, citing State v. Campbell,
69 Ohio St.3d 38, 53 (1994). Accordingly, the failure to object,
standing alone, is insufficient to establish ineffective assistance of
counsel. Burney at ¶ 66, citing State v. Conway, 108 Ohio St.3d
214, 2006–Ohio–791, ¶ 168.
Moreover, Chavis's testimony did not constitute “other acts”
evidence proscribed by Evid.R. 404(B). Evid.R. 404(B) provides
that “[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
In State v. Smith, 49 Ohio St.3d 137 (1990), the Supreme Court of
Ohio explained that: “Evid.R. 404(B) is essentially an extension of
Evid.R. 404(A) which is intended to preclude a prejudicial attack
on a defendant's character. Generally, extrinsic acts may not be
used to prove the inference that the accused acted in conformity
with his other acts or that he has a propensity to act in such a
manner. However, Evid.R. 404(B) permits ‘other acts' evidence for
‘other purposes' including but not limited to certain enumerated
issues.” Id. at 140.
Chavis's allusion to “shootings” does not constitute prior “other
acts” evidence. The evidence at trial demonstrates that Chavis used
the term “shootings” in reference to the crime for which appellant
was being tried. No evidence was presented that appellant shot at
Chavis prior to the incident on February 7, 2010. Chavis testified
in detail about his prior encounters with appellant. Those
encounters can best be characterized as “fighting” and
“harassment,” the other two words Chavis used to illustrate his
problems with appellant. Thus, the only reasonable interpretation
of Chavis's testimony regarding “shootings” is that he was
referring to the shooting that occurred on February 7, 2010.

9

This interpretation is further supported by Chavis's response to a
question posed during cross-examination. Defense counsel asked
Chavis, “Now, you say you have a history with [appellant], correct,
as far as before this shooting?” (Tr. 123.) Chavis responded, “No.
This is my first—.” (Tr. 123.) However, before Chavis could
complete his answer, defense counsel clarified that he was asking
about the fight over the chain that Chavis had testified about
earlier. Defense counsel stated, “No. I mean, you said something
about a fight before this. Before the alleged shooting, there was a
fight that happened between you and [appellant]?” (Tr. 123.) This
exchange arguably suggests that Chavis was confused about the
question, and, had he been permitted to complete his response,
would have testified that there had been no previous shooting by
appellant.
Because Chavis was not referring to “other acts” but was actually
referring to the act for which appellant was on trial, there was no
basis for defense counsel to object. “‘Evid.R. 404(B) does not
apply if the acts in question are intrinsic as opposed to extrinsic,
i.e. the acts are part of the events in question or form part of the
immediate background of the alleged act which forms the basis for
the crime charged.’” State v. Crew, 2d Dist. No.2009 CA 45,
2010–Ohio–3110, ¶ 99, quoting State v. Bogan, 8th Dist. No.
72278 (Aug. 6, 1998). Since defense counsel had no basis upon
which to object, his failure to do so could not constitute ineffective
assistance.
Appellant next asserts his trial counsel was ineffective because he
raised the issue of appellant's alleged gang affiliation in his
opening statement and during his cross-examination of Detective
Chapman. Appellant contends that these references unfairly
prejudiced him, allowing the jury to infer guilt from his alleged
gang activity.
In his opening statement to the jury, defense counsel averred:
[J]ust to give you a little background information on this, my client
and this particular Mr. Chavis went to high school together. Okay?
They've known each other since high school. They've had some
issues with each other since high school. It was something about
some type of fight or something that broke out between Mr. Taylor
and Mr. Chavis while at school, so this thing has been brewing
here for a while.
I don't know if you guys are familiar with kind of the younger guys
with some of the stuff in the hip hop community. One of the things
10

you do that's very disrespectful that they do to each other is try to
take someone's chain. There was a [sic] issue in here of whether
someone's chain was either taken or tried to be taken. And within
that community, it's very disrespectful, and it really, really, really
sets things off, just like a gang war or something if you take
someone's chain. It's respectful if you can get it, and it's very
disrespectful if yours is taken away from you.
(Tr. 24–25.)
During cross-examination of Detective Chapman concerning an
informational summary he prepared in conjunction with his
interview of Chavis, the following colloquy occurred:
Q. Now, in here Mr. Chavis was pretty—pretty descriptive of Mr.
Taylor. He states he was an Elaine Crip?
A. That's what he said, yes.
Q. Any investigation into any of that? Do you work with the gang
unit?
A. In this case, this is kind of how I've found out. When this
originally happened, I was looking for William Taylor, not Wil
Taylor. So I had trouble finding pictures. So I contacted our gang
unit, and I contacted our high school resource, since this problem
stemmed from school, and that's how I came up with Wil Taylor's
name, and that's why it took a couple days.
***
Q. But what I'm saying, do you work with the gang unit?
A. I don't work with them. I mean, I call—yeah.
(Tr. 70–71.)
“‘The extent and scope of cross-examination clearly fall within the
ambit of trial strategy, and debatable trial tactics do not establish
ineffective assistance of counsel.’” State v. Abdullah, 10th Dist.
No. 05AP–1316, 2006–Ohio–5412, ¶ 35, quoting State v. Leonard,
104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 146. “ ‘[A]n appellate
court reviewing an ineffective assistance of counsel claim must not
scrutinize trial counsel's strategic decision to engage, or not
engage, in a particular line of questioning on cross-examination.’”

11

Abdullah at ¶ 35, quoting State v. Dorsey, 10th Dist. No. 04AP–
737, 2005–Ohio–2334, ¶ 22.
This court will not second-guess what appears to have been a
tactical decision made by defense counsel to foreclose the sting of
appellant's alleged gang affiliation by mentioning it in opening
statement and raising it during cross-examination when defense
counsel reasonably could anticipate its admission at trial. Such
anticipation proved to be correct, as Chavis testified on direct
examination that appellant was “throwing up gang signs” at the
bowling alley. (Tr. 105.) “[T]he choice to raise damaging evidence
first is an acceptable trial strategy that a defendant can use to
enhance his credibility.” State v. Smith, 9th Dist. No. 23542, 2007–
Ohio–5119, ¶ 15. Although appellant did not testify in his own
defense, the record indicates that appellant may have initially
wished to testify, but ultimately chose not to do so.
Further, “‘[g]ang affiliation can be relevant in cases in which the
interrelationship between people is a central issue.’” State v.
Humberto, 196 Ohio App.3d 230, 2011–Ohio–3080, ¶ 35 (10th
Dist.), quoting State v. Drummond, 111 Ohio St.3d 14, 2006–
Ohio–5084, ¶ 112. “Gang evidence also may be relevant when it is
necessary to ‘provide[ ] the jury with crucial background
information in considering the evidence.’” Humberto at ¶ 35,
quoting Drummond at ¶ 112. One of the strategies employed by
defense counsel was that Chavis concocted the story about the
shooting as retribution for appellant attempting to steal his chain.
To aid the jury in understanding why Chavis would seek revenge
over what may appear to be a trivial matter, defense counsel
needed to clarify the importance of chain-stealing in the hip hop
community. To that end, counsel explained in his opening
statement that stealing someone's chain is egregious enough to
ignite a gang war. Counsel then elicited testimony about
appellant's gang affiliation and that Chavis was angered by
appellant's attempt to steal his chain. The disrespect associated
with stealing someone's chain, along with appellant's gang
affiliation, demonstrated the extent of the on-going dispute
between Chavis and appellant. Counsel argued that the dispute
over the theft of the chain provided Chavis a motive to seek
revenge against appellant. This strategy reasonably required
defense counsel to discuss and question appellant's alleged gang
affiliation.
Finally, as to appellant's argument regarding defense counsel's
opening statement, we observe that the trial court expressly
instructed the jury that opening statements and closing arguments
12

of counsel are not evidence but only designed to assist the jury. A
jury is presumed to follow the court's instructions. State v.
Hancock, 108 Ohio St.3d 57, 2006–Ohio–160, ¶ 86.
For these reasons, we find that defense counsel did not provide
ineffective assistance by raising the issue of appellant's alleged
gang affiliation.
Appellant next argues that defense counsel was deficient in failing
to object to hearsay statements made by Detective Howe. Detective
Howe testified that Price told him that a shooting had occurred.
Appellant argues that Detective Howe's statement about what Price
told him constitutes inadmissible hearsay pursuant to Evid.R.
801(D)(1) because Price did not testify at trial and thus was not
subject to cross-examination about his interview with Detective
Howe. Noting defense counsel's theory that no shooting occurred
and that Chavis fabricated the story in retaliation for the chainstealing incident, appellant maintains that the challenged testimony
prejudiced him because it corroborated Chavis's testimony that
there was a shooting.
Assuming arguendo that the challenged testimony is hearsay,
counsel's failure to object reasonably may have been strategic.
Detective Howe testified that Price did not identify the shooter and
did not even mention appellant's name. Defense counsel may have
welcomed this evidence and reasoned that objecting to it would be
counterproductive.
Further, the challenged statement dovetailed with defense counsel's
alternative theory of the case, i.e., that if a shooting had actually
occurred, appellant was not the shooter. Defense counsel
questioned Chavis about Devanta Penn, the man seated directly
behind appellant in the car from which the shots were fired.
Counsel elicited testimony that Penn did not like Chavis, that he
had harassed him prior to the night of the shooting, that he was one
of the men pointing at him in the bowling alley, and that he had his
car window rolled down when the shooting occurred. Counsel also
elicited testimony that Chavis feared that all of the men in the car,
including Penn, were “going to do something to [me].” (Tr. 155.)
Counsel also elicited testimony from Chavis that he did not
actually see appellant fire gunshots into his car. Defense counsel's
questions about Penn, coupled with his cross-examination of
Chavis, were arguably designed to offer the jury another possible
shooter, thus creating reasonable doubt as to appellant's guilt.
Defense counsel's failure to object did not constitute ineffective
assistance.
13

Next, appellant argues that trial counsel was ineffective in failing
to request a jury instruction on aggravated menacing as a lesserincluded offense of felonious assault. Appellant was charged with
two counts of felonious assault in violation of R.C. 2903.11(A)(2),
which provided, in pertinent part, that “[n]o person shall
knowingly * * * [c]ause or attempt to cause physical harm to
another * * * by means of a deadly weapon.” R.C. 2903.21(A)
proscribes aggravated menacing, stating, as relevant here, that
“[n]o person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property
of the other person.”
In support of his contention that he was entitled to an aggravated
menacing instruction, appellant argues that based on the evidence,
the jury could have reasonably concluded that neither Chavis nor
Price were in the car at the time of the shooting because they were
not wounded by the shots. Appellant further contends that based on
Detective Chapman's testimony that Chavis told him that appellant
had previously threatened to shoot Chavis's car with a .22 revolver,
the jury could have reasonably concluded that appellant intended
only to shoot Chavis's car, not Chavis.
“[A]ggravated menacing is not a lesser-included offense of
felonious assault.” State v. Easley, 10th Dist. No. 07AP–578,
2008–Ohio–468, ¶ 66. See also State v. Thompson, 10th Dist. No.
97APA04–489 (Mar. 24, 1998) (finding that aggravated menacing
“contains the additional element of causing apprehension, which is
not contained in the crime of felonious assault. As statutorily
defined, felonious assault can be committed without committing
aggravated menacing. Therefore, aggravated menacing is not a
lesser included offense of felonious assault”).
Appellant relies on Easley for the proposition that aggravated
menacing is a lesser-included offense of felonious assault.
However, Easley actually states that “aggravated menacing is a
lesser offense of felonious assault in that it is an inferior offense.”
Id. at ¶ 66. Appellant does not argue that aggravated menacing is
an inferior degree offense.
However, even if an instruction on aggravated menacing as a lesser
or lesser-included offense of felonious assault would have been
appropriate based on the facts of the case, “[f]ailure to request
instruction on lesser included offense is matter of trial strategy and
does not establish ineffective assistance of counsel.” State v.
Griffie, 74 Ohio St.3d 332, 333 (1996). Appellant must
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demonstrate that failure to make the request resulted from a reason
other than trial strategy. State v. Ryan, 10th Dist. No. 08AP–481,
2009–Ohio–3235, ¶ 79, citing Griffie. Appellant does not suggest
that defense counsel's decision not to request a jury instruction on
lesser or lesser-included offenses was anything other than trial
strategy. “Although there is risk involved in not requesting an
instruction on a lesser-included offense when the evidence
supports it, the pay-off can also be substantial, that is, acquittal if
the strategy prevails.” State v. Colvin, 9th Dist. No. 26063, 2012–
Ohio–4914, ¶ 15.
In light of the evidence presented at trial, defense counsel
reasonably could have been pursuing a valid “all or nothing”
strategy. Defense counsel theorized that the shooting never
occurred, or, if it did, appellant was not the shooter. A request for
an aggravated menacing instruction would have been inconsistent
with that strategy. See State v. Golden, 10th Dist. No. 01AP–367
(Dec. 20, 2001) (“Here, where seeking a lesser-included
instruction would have been inconsistent with the defense theory,
the failure of counsel to request such an instruction did not
constitute ineffective assistance of counsel.”). Appellant has not
demonstrated that his trial counsel was ineffective by failing to
request a jury instruction on aggravated menacing.
Appellant's final argument under his first assignment of error is
that trial counsel was ineffective in failing to argue that the
evidence at trial was insufficient to support a conviction on the
specifications under R.C. 2941.146. R.C. 2941.146(A) contains a
firearm specification that adds a five-year prison term when a
defendant commits a felony that includes the element of purposely
or knowingly causing or attempting to cause the death of or
physical harm to another, if the crime “was committed by
discharging a firearm from a motor vehicle other than a
manufactured home.”
At the close of the state's case, defense counsel moved for
dismissal of the case based upon “the lack of evidence.” (Tr. 201.)
Because counsel's general Crim.R. 29 motion arguably
encompassed the R.C. 2941.146 specifications, appellant's
contention that counsel failed to argue that the evidence was
insufficient to support the convictions on the specifications is
without merit.
Furthermore, appellant's reliance on State v. Swidas, 133 Ohio
St.3d 460, 2012–Ohio–4638, is misplaced. In Swidas, the Supreme
Court of Ohio held that “R.C. 2941.146 is not applicable when a
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person fires a weapon while standing completely outside a motor
vehicle.” Id. at ¶ 1. Contrary to appellant's assertion, Chavis did
not testify that appellant completely exited the car before firing the
gun into Chavis's car. Chavis testified that appellant fired the shots
while leaning out of the car window, and that neither appellant nor
any of the other occupants of the car ever exited it. Thus, there was
sufficient evidence to convict appellant on the two R.C. 2941.146
specifications, and counsel's performance would not have been
deficient even if he had not argued insufficiency of the evidence.
Having concluded that appellant has not shown that his trial
counsel's performance was deficient with respect to any of the
issues raised in this assignment of error, we need not address the
prejudice prong of the Strickland test. Appellant's first assignment
of error is overruled.
State v. Taylor, 2013 WL 4678049, at *3-9.
“In all criminal prosecutions,” the Sixth Amendment affords “the accused. . .the right. . .
to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). As the state appellate court noted, the United States Supreme Court has set
forth the legal principals governing claims of ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668 (1984), requires a petitioner claiming ineffective assistance of counsel
to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a
result. Id. at 687; Hale v. Davis, 512 Fed.Appx. 516, 520 (6th Cir. 2013). A petitioner can
demonstrate the deficient performance by counsel by demonstrating “that counsel's
representation fell below an objective standard of reasonableness.” Id. To make such a showing,
a petitioner must overcome the strong presumption that his counsel rendered adequate assistance.
and made all significant decisions in the exercise of reasonable professional judgment. Id. at
689. See also Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009).

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In the action presently before the Court, and for the reasons discussed by the state
appellate court, the Court agrees that Petitioner has failed to establish the denial of the effective
assistance of trial counsel under the two-prong Strickland test. The record does not reflect the
admission of any otherwise inadmissible “other acts” evidence, and many of the alleged errors
about which Petitioner complains appear to have constituted matters of a trial strategy that was
not unreasonable in view of the evidence presented. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.”
Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (quoting Strickland, 466 U.S. at 690).
Furthermore, the record fails to reflect that Petitioner can establish prejudice from counsel’s
failure to request a judgment of acquittal or failure to request a lesser offense jury instruction on
aggravated menacing.
A petitioner’s claim of ineffective assistance of counsel is difficult to establish in an
action under § 2254 when the state courts have rejected the merits of that claim:
As previously discussed, . . . an ineffective-assistance-of-counsel
claim is governed by the test articulated in Strickland, where
“counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” 466 U.S. at 690, 104 S.Ct.
2052. By itself, this is a deferential standard that is challenging for
a claimant to meet. Where the claimant is a state habeas petitioner
whose claims are subject to AEDPA, that standard is raised even
higher, as the petitioner must show that the state court's application
of Strickland was itself unreasonable. This amounts to a “doubly
deferential standard of review that gives both the state court and
the defense attorney the benefit of the doubt.” Burt v. Titlow, –––
U.S. ––––, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013) (internal
quotation omitted) (emphasis added). Stated differently, AEDPA
requires us to “take a highly deferential look at counsel's
performance through the deferential lens of § 2254(d).” Cullen v.
Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557
(2011) (internal quotations omitted).

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Kelly v. Lazaroff, 846 F.3d 819, 831-32 (6th Cir. 2017). Having considered Petitioner’s claim of
ineffective assistance of trial counsel by reference to these standards, this Court concludes that
Petitioner is not entitled to relief on this claim.
Claim one is without merit.
Claim Two
In claim two, Petitioner alleges that his convictions were against the manifest weight of
the evidence, because the testimony of prosecution witness Chavis was contradictory and not
credible. This claim fails to provide a basis for federal habeas corpus relief. See Williams v.
Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v.
Eberlin, 258 Fed.Appx. 761, 765, n. 4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016
WL 525561, at *5 (N.D. Ohio Feb. 9, 2017)(citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL
1337102, at *3 (S.D. Ohio)(“Whether a conviction is against the manifest weight of the evidence
is purely a question of Ohio law.”).
Under Ohio law, a claim that a verdict was against the manifest weight of the evidence –
as opposed to one based upon insufficient evidence – requires the appellate court to act as a
“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility
of witnesses to determine whether “the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida, 457 U.S. 31
(1982). Since a federal habeas court does not function as an additional state appellate court,
vested with the authority to conduct such an exhaustive review, petitioner's claim that his
convictions were against the manifest weight of the evidence cannot be considered by this Court.
Claim two is without merit.

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Claim Three
In claim three, Petitioner alleges that the trial court improperly imposed consecutive
terms of incarceration on the firearm specifications, because only one weapon was involved.
This claim presents an issue regarding the alleged violation of state law and does not provide a
basis for federal habeas corpus relief. A federal court may review a state prisoner's habeas
petition only on the ground that the challenged confinement is in violation of the Constitution,
laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of
habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41
(1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir.1988). Further, this Court defers to a
State’s interpretation of its own laws. See Calhoun v. Tibbals, No. 2:15-cv-03026, 2017 WL
914737, at *9 (S.D. Ohio March 8, 2017)(citing Machin v. Wainwright, 758 F.2d 1431, 1433
(11th Cir. 1985); Beavers v. Franklin County Adult Probation, No. 2:13-cv-00404, 2016 WL
5660275, at *1 (S.D. Ohio Sept. 29, 2016)(citation omitted).
Petitioner did not raise this claim as an issue of federal constitutional magnitude in the
state appellate court. In order to satisfy the exhaustion requirement in habeas corpus, a petitioner
must fairly present the substance of each claim to the state courts as a federal constitutional
claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971).
Although this fair presentment requirement is a rule of comity, not jurisdiction, see Castille v.
Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is
nevertheless rooted in principles of federalism designed to allow state courts the opportunity to
correct the State's alleged violation of a federal constitutional right that threatens to invalidate a
state criminal judgment.

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In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one
of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional
right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of a constitutional
right, such as the right to a fair trial or to due process, are insufficient to satisfy the “fair
presentment” requirement. Id.
In presenting this claim to the state appellate court, Petitioner argued only that the trial
court had violated state law in imposing consecutive terms of incarceration on the firearm
specifications. He did not present any argument regarding the application of federal law to this
claim, nor did he cite Ohio cases employing a federal constitutional analysis in support of this
claim. See Brief of Defendant-Appellant (ECF No. 7-1, PageID# 102). Moreover, the state
appellate court addressed the claim only in terms of an alleged violation of state law:
[A]ppellant argues that the trial court erred in imposing
consecutive sentences on the firearm specifications. We disagree.
Former R.C. 2929.14(D)(1)(b) provided that the trial court could
impose only one prison term for firearm specifications
accompanying felonies arising out of the same act or transaction.
However, former R.C. 2929.14(D)(1)(g) provided an exception to
that principle:
If an offender is convicted of * * * two or more felonies, if one or
more of those felonies is * * * felonious assault, and if the offender
is * * * convicted of * * * a specification of the type described
under division (D)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose on the
offender the prison term specified under division (D)(1)(a) of this
section for each of the two most serious specifications of which the
offender is convicted * * * and, in its discretion, also may impose

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on the offender the prison term specified under that division for
any or all of the remaining specifications.
In this case, appellant was convicted of two counts of felonious
assault, and in connection with each he was convicted of a division
(D)(1)(a) firearm specification (three-year firearm specification
pursuant to R.C. 2941.145). Thus, pursuant to former R.C.
2929.14(B)(1)(g), the trial court was required to impose a prison
term for each of the “two most serious specifications” of which
appellant was convicted, i.e., the three-year firearm specifications
accompanying the felonious assault counts. Further, former R.C.
2929.14(E)(1)(a) required the three-year firearm terms to be served
consecutively. See State v. Worth, 10th Dist. No. 10AP–1125,
2012–Ohio–1661. Accordingly, appellant's third assignment of
error is overruled.
State v. Taylor, 2013 WL 4678049, at *11. Thus, this Court finds that Petitioner failed to present
this claim to the state courts as a federal constitutional claim and, further, this Court concludes
that Petitioner has not established cause for his failure in that regard. Petitioner has therefore
waived this Court’s review of any such federal claim in these proceedings.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

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

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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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
March 29, 2017

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