Hobbs v. Warden Ross Correctional Institution

Filing 20

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 15 in that this case is DISMISSED. The Court GRANTS Petitioner's Request for a Certificate of Appealability. Signed by Judge James L. Graham on 9/18/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRANDON L. HOBBS,
CASE NO. 2:16-CV-940
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.

OPINION AND ORDER
On July 21, 2017, the Magistrate Judge issued an Order and Report and
Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 be dismissed. (Doc. 15.) Both the Petitioner and the Respondent have filed
objections to the Magistrate Judge’s Report and Recommendation. (Docs. 16, 19.) Pursuant to
28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow,
Respondent’s Objection (Doc. 16) and Petitioner’s First Objection (Doc. 18) are
OVERRULED. The Order and Report and Recommendation (Doc. 15) is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.
The Court GRANTS Petitioner’s request for a certificate of appealability.
Petitioner challenges his convictions after a jury trial in the Franklin County Court of
Common Pleas on murder, carrying a concealed weapon, and having a weapon while under
disability. As his sole claim for relief, Petitioner asserts that he was denied the effective
assistance of trial counsel based on his attorney’s failure to object to admission of testimony
regarding Petitioner’s history of drug dealing and involvement with firearms and evidence of his
prior convictions; failure to request a curative instruction; and what he contends was his

attorney’s elicitation of prejudicial testimony regarding Petitioner’s involvement with drugs and
firearms. The Magistrate Judge recommended dismissal of this claim on the merits.
Respondent’s Objection
Respondent objects to this Court’s review of the merits of any claim regarding improper
jury instructions apart from review of the claim in the context in which it was raised, i.e., as a
basis for Petitioner’s claim of the denial of the effective assistance of trial counsel. Respondent
does not otherwise object to the Magistrate Judge’s recommendation of dismissal on the merits
of Petitioner’s claim of the denial of the effective assistance of trial counsel under the two-prong
test of Strickland v. Washington, 466 U.S. 668 (1984).
However, the Court addresses the claim in the context of Petitioner’s assertion of the
denial of the effective assistance of trial counsel.
Respondent’s Objection is OVERRULED.
Petitioner’s Objection
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claim on
the merits. Petitioner maintains that his attorney acted in a constitutionally unreasonable manner
by failing to object and eliciting prejudicial evidence during direct and cross-examination of
prosecution witnesses, and when Petitioner testified on his own behalf that he had a prior
criminal record, had been selling drugs since age 17, and used and kept firearms. Petitioner
complains that the Ohio Court of Appeals’ decision rejecting his claim, and Magistrate Judge’s
recommendation of dismissal, minimized the highly inflammatory nature of evidence
complained of, and what he purports to have counsel’s ignorance of its inadmissibility under
Ohio law. Petitioner disputes the characterization of counsel’s actions as one of reasonable trial
strategy. Petitioner again refers to White v. McAninch, 235 F.3d 988 (6th Cir. 2000), in support.

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Petitioner argues that defense counsel could have prevented the admission of inflammatory
evidence regarding his involvement in guns and drugs, as well as his prior juvenile conviction,
had he presented the trial judge with relevant legal citations, or requested a mistrial after Melody
Gaston testified that she had seen Petitioner with guns in the past and had purchased drugs from
him. Trial Transcript, Vol. II (Doc. 9-2, PageID# 622-24.)

Petitioner asserts that he suffered

further prejudice due to counsel’s failure to request a limiting instruction. He alternatively
requests to the Court to remand the case to the Magistrate Judge for a recommendation on the
prejudice prong of Strickland.
However, the Court has carefully reviewed the entire record and all of the arguments of
counsel. Nonetheless, this Court remains unpersuaded that Petitioner can establish he is entitled
to relief. “[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). Additionally,
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). Accordingly, “[w]hen analyzing a
Strickland claim under § 2254(d). . . the key question “ ‘is whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard.’ ” Hale v. Davis, 512
Fed.Appx. 516, 520 (6th Cir. 2013) (citing Foust v. Houk, 655 F.3d 524, 533–34 (6th Cir. 2011)
(quoting Richter, 131 S.Ct. at 788).
Despite Petitioner’s argument to the contrary, and for the reasons that have already been
addressed, the Court is not persuaded that the record reflects that the state appellate court
unreasonably determined that defense counsel exercised a reasonable trial strategy and that
Petitioner is not entitled to relief. This Court concludes that Petitioner is not entitled to relief on
this claim. Therefore, Petitioner’s First Objection (Doc. 19) is OVERRULED.
The Order and Report and Recommendation (Doc. 15) is ADOPTED and AFFIRMED.
This action is hereby DISMISSED.
Petitioner seeks 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.) When a claim has been denied on the merits, a
certificate of appealability may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of
the denial of a constitutional right, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed

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further.’ ” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893, n. 4 (1983)).
The Court is persuaded that Petitioner has met this standard here. Therefore, the Court
GRANTS the request for a certificate of appealability.
The Court certifies the following issue for appeal:
Was Petitioner denied the effective assistance of trial counsel?
IT IS SO ORDERED.
Date: September 18, 2017

______s/ James L. Graham_______
JAMES L. GRAHAM
United States District Judge

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