Crockett v. Warden Madison Correctional Institution

Filing 13

OPINION and ORDER adopting and affirming 10 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/9/18. (jk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JONNIE CROCKETT, III,
Case No. 2:16-CV'852

Petitioner,

Judge Michaei H. Watson
Magistrate Judge Chelsey M. Vascura

V.

WARDEN, MADISON
CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER

On April 16, 2018, the Magistrate Judge issued a Report and
Recommendation ("R&R") recommending that the Petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 be dismissed. R&R, EOF No. 10.
Petitioner filed an Objection to the Magistrate Judge's Report and

Recommendation. Obj., EOF No. 11. Pursuant to 28 U.S.C. § 636(b), this Court
has conducted a de novo review. For the reasons that follow. Petitioner's

Objection. EOF No. 11, Is OVERRULED. The R&R, EOF No. 10, Is ADOPTED

and AFFIRMED. This action Is hereby DISMISSED.

The Court DECLINES to Issue a certificate of appealabllllty.
This case Involves Petitioner's underlying criminal convictions after a jury
trial In the Franklin County Court of Common Pleas on felony murder and two
counts of child endangering. Petitioner asserts that the evidence Is

constitutionally Insufficient to sustain his conviction on felony murder (claim one);

that he was denied a fair thai because the thai court faiied to issue a jury

instruction on the iesser-inciuded offense of invoiuntary mansiaughter (claim

two); and that he was denied the effective assistance of thai counsel (claim
three). The Magistrate Judge recommended dismissal of the latter claim as
proceduraiiy defaulted and dismissal of Petitioner's remaining claims as without
merit.

Petitioner objects to the Magistrate Judge's recommendations. He
maintains that the State faiied to prove that he proximateiy caused iszacc

Crockett's death, as the child actually died as a result of complications or an error

in medical care while he remained in a comatose state as a result of his injuries
during his ten-month hospital stay. Petitioner argues that the state appellate
court's decision is based on an unreasonable determination of the facts and that

his conviction on felony murder is unconstitutionally based on mere speculation
and an impermissible stacking of inferences. Petitioner also contends that the

appellate court unreasonably determined that the evidence did not warrant a
lesser-included jury instruction on involuntary mansiaughter and that he thereby
was denied a fundamentally fair trial. Finally, Petitioner objects to the
recommendation of dismissal of his claim for denial of effective assistance of

counsel as proceduraiiy defaulted based on his failure to raise the issue in the
Ohio Supreme Court. Petitioner now argues that, in view of the Supreme Court's

decisions in Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S.

413 (2013), and under Gunner v. Welch, 749 F.3d 511, 514 (6th Cir. 2014), the
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denial of the effective assistance of appellate counsel in the filing of his appeal to
the Ohio Supreme Court may establish cause for this procedural default.
Petitioner's arguments are not persuasive. For the reasons already
articulated in detail by the state appellate court and in the Magistrate Judge's
R&R, Petitioner's claim that his conviction on felony murder can only be
supported by the stacking of impermissible inferences and mere speculation

lacks plausibility. As discussed, numerous experts testified that the child died as
a result of the abusive head trauma suffered during the time that he was in the

sole care of the Petitioner and disputed the accuracy of Dr. Young's sole
alternative possible explanation for the child's injuries. The injuries the child
sustained caused him to be hospitalized and in a coma with no voluntary

movement for several months, during which time his feeding tube became
dislodged from his stomach, and he died. In view of these facts, the state
appellate court did not unreasonably conclude that Petitioner's actions were the

direct and proximate cause of death. "On habeas review, the relevant question is
whether the state court's decision finding that sufficient evidence was presented
to show proximate cause fell below the 'threshold of bare rationality.'" Bell-Cook

V. Bergh, No. 2:13-cv-12963, 2013 WL 3873171, at *5 (E.D. Mich. July 25, 2013)
(quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)). Additionally, the Court
agrees with the decision of the United States District Court for the Northern

District of Ohio in Spates v. Harris, No. 1:16-cv-1262, 2017 WL 7792506, at *13

(N.D. Ohio Sept. 13, 2017), concluding that this Court defers to the state court's
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interpretation of Ohio iaw on "the theories of naturai consequences and
intervening causes and their appiication[.]" {citing Bradshaw v. Richey, 546 U.S.
74. 76 (2005)).
Aiso, and because the United States Supreme Court has not heid that

Petitioner is constitutionaiiy entitied to a jury instruction on a iesser inciuded
offense, Petitioner's second ciaim does not provide him relief. See Howard v.

Dewine, No. 5:14-cv-2587, 2016 WL 2637757, at *8 (N.D. Ohio April 6, 2016).
Further, and despite Petitioner's argument to the contrary, the record does not

support his ciaim that the lack of a jury instruction on the iesser-inciuded offense
of involuntary manslaughter violated due process. See Henderson v. Kibbe, 431
U.S. 135,154 (1977) (citing Cupp v. Naughten, 414 U.S. 141,147 (1973)).
Moreover, Petitioner fails to establish cause for his procedural default. The
right to counsel extends to the first appeal of right and no further. Pennsylvania
V. FInley, 481 U.S. 551, 555 (1987). Under the rule of Coleman v. Thompson,

501 U.S. 722 (1991), attomey error in proceedings wherein there is no right to
counsel—^such as in the filing of a motion for a discretionary appeal with the Ohio
Supreme Court—cannot serve as cause for a procedural default. See Tomllnson

V. Bradshaw, No. 5:13-cv-1808,2015 WL 106060, at *3 (N.D. Ohio Jan. 7, 2015)

(attomey error in the filing of a discretionary appeal to the Ohio Supreme Court
where there is no Sixth Amendment right to counsel cannot constitute cause for a

procedural default) (citation omitted). Martinez and Trevino announced a "narrow
exception" to Coieman's general rule, holding that "[ijnadequate assistance of
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counsel at Inltlai-review collateral proceedings may establish cause for a

prisoner's procedural default of a claim of ineffective assistance at trial."
Martinez, 566 U.S. at 9. However, the Supreme Court has explicitly declined to

extend the holding in Martinez to claims of the denial of the effective assistance
of appellate counsel, see Davila v. Davis, — U.S. —, —, 137 S. Ct. 2058, 2063
(2017), and the Martinez exception therefore does not apply here. In Gunner,
which Petitioner references, the Sixth Circuit held "that an Ohio habeas petitioner
could assert as cause his direct-appeal appellate counsel's failure to advise him
of the time limit for filing for post-conviction relief pursuant to Ohio Rev. Code

§ 2953.21." McCiain v. Keiiy, 631 F. App'x 422,429 (6th Cir. 2015) (citing

Gunner, 749 F.3d at 515-16, 520). But these circumstances do not exist here.
Thus, for these reasons and the reasons set forth in the Magistrate
Judge's R&R, Petitioner's Objection, EOF No. 11, is OVERRULED. The R&R,
EOF No. 10, is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases In the
United States District Courts, the Court now considers whether to issue a

certificate of appealability. "In contrast to an ordinary civil litigant, a state

prisoner who seeks a writ of habeas corpus in federal court holds no automatic
right to appeal from an adverse decision by a district court." Jordan v. Fisher, —

-U.S.

.

, 135 S. Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)

(requiring a habeas petitioner to obtain a certificate of appealability in order to
appeal).
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When a claim has been denied on the merits, a certificate of appealability

may issue only ifthe petitioner "has made a substantial showing of the deniai of a
constitutionai right." 28 U.S.C. § 2253(c)(2). To make a substantiai showing of
the deniai of a constitutional right, a petitioner must show "that reasonable jurists
could debate whether (or, for that matter, agree that) the petition shouid have
been resoived in a different manner or that the issues presented were 'adequate
to deserve encouragement to proceed further.'" Slack v. McDanlel, 529 U.S.

473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
When a ciaim has been denied on procedurai grounds, a certificate of
appealability may issue if the petitioner estabiishes that jurists of reason would
find it debatabie whether the petition states a vaiid ciaim of the denial of a

constitutional right and that jurists of reason wouid find it debatable whether the
district court was correct in its procedurai ruiing. Id.
The Court is not persuaded that reasonabie jurists would debate the

dismissal of Petitioner's claims as procedurally defauited and without merit. The

Court therefore DECLINES to issue a certificate of appealabiiity.
The Cierk is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.

MICHAEL H. WATSON

United States District Judge

Case No. 2:16-cv-852

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