Horton v. Warden, Madison Correctional Institution

Filing 18

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS denying 3 Petition for Writ of Habeas Corpus. Objections to R&R due by 11/30/2017. Signed by Magistrate Judge Kimberly A. Jolson on 11/16/2017. (ew)(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
RUFUS HORTON,
CASE NO. 2:17-CV-0036
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

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

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, and
the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS
that the Petition be DENIED and that this action be DISMISSED.
I.

BACKGROUND
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

the case as follows:
On August 30, 2012, appellant was indicted on one count of
aggravated murder, in violation of R.C. 2903.01, with a firearm
specification pursuant to R.C. 2941.145, and one count of having a
weapon while under disability, in violation of R.C. 2923.13. The
charges arose from the shooting death of Charles Rogers on
August 18, 2012.
Appellant waived his right to a jury trial on the charge of having a
weapon while under disability. The case proceeded to trial before a
jury on the aggravated murder and associated firearm specification
charge, at which the following evidence was presented.
Lindsay Jennings testified that she began dating appellant’s
brother, Markee Horton, in August 2012. On August 18, 2012,
Markee drove to Jennings’ home in a red Mustang. He told

Jennings he was angry because he had just been robbed and asked
her to drive him to his mother’s house.
At Markee’s mother’s house, Jennings observed appellant give
Markee a handgun. Appellant and Markee had a conversation, but
Jennings could not understand what they were saying. Markee
returned to the red Mustang and placed the gun appellant had given
him on the floor of the car. Appellant got into a black car and
drove away.
Markee instructed Jennings to drive to a house located on North
22nd Street. Rogers and a woman were seated on the front porch; a
black car was parked in front of the house. Appellant exited the
black car and ran to the porch carrying a black handgun. Markee
exited the red Mustang carrying the gun appellant had given him
and walked up to the porch. Jennings heard appellant say “[a]in’t
nobody going to steal nothing from my brother. You don’t take
from my family.” (Tr. Vol.I, 138.) Jennings testified that appellant
pointed the gun at Rogers’ head and pulled the trigger; however,
the “gun didn’t go off.” (Tr. Vol.I, 139.) When the gun failed to
fire, Rogers ran away; Markee chased him down the street.
Jennings heard a gunshot and saw Rogers fall to the ground.
Although Jennings did not see Markee pull the trigger, she saw
Markee pointing a gun at Rogers. She admitted she did not know
where appellant was at the time the shot was fired.
After the shooting, Markee got back in the red Mustang. According
to Jennings, Markee was “upset and scared” and told her “Bitch,
drive. I just shot this man.” (Tr. Vol.I, 148.) Jennings drove
Markee to her home; Markee put the gun “somewhere in
[Jennings’] backyard.” (Tr. Vol.I, 152.)
Several days after the shooting, Markee had Jennings drive him to
Krumm Park “so he could get rid of the gun.” (Tr. Vol.I, 155.)
Markee removed the clip from the gun and threw it and the gun
into a pond on the park grounds. According to Jennings, the gun
Markee threw into the pond was the same one appellant provided
Markee on August 18, 2012.
Markee stayed at Jennings’ home for a few weeks after the
shooting. Following his departure, Jennings told the police about
the shooting and provided a diagram depicting where Markee had
disposed of the gun and the clip.
Christina Ross testified that, on August 18, 2012, she dropped off
her niece at a house located next door to Rogers’ house. Ross
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observed Rogers and his girlfriend on the front porch of Rogers’
house. As Ross was about to drive away, a red Mustang “cut in
front of me and went into the alley, and then a black car pulled
directly in front of me, so I couldn’t move.” (Tr. Vol.II, 360.) One
man exited the red Mustang while another man exited the black
car; both men carried guns. The men walked up to Rogers’ porch
and began arguing with him. The man who drove the red Mustang
punched Rogers. Rogers then jumped off the porch and began
running down the street. The man who punched Rogers jumped off
the porch, “aimed a gun at Charlie, like at his leg part, and tried to
fire it, but it didn’t go off.” (Tr. Vol.II, 373.)
At the same time, the man from the black car “aimed it, and he
shot the gun at Charlie.” (Tr. Vol.II, 374.) Ross observed Rogers
fall to the ground. She then drove around the block, parked her
vehicle, and ran back to the area to check on her niece and Rogers.
When she returned, the men involved in the shooting were gone.
Ross later spoke with police officers about the incident. At trial,
Ross was unable to identify appellant as one of the individuals
involved in the shooting.
Columbus Police Officer Ryan Lee testified that he and his partner
were dispatched to the scene of the shooting. Officer Lee observed
“a male laying face down on the sidewalk approximately three to
four houses south of 199.” (Tr. Vol.I, 82.) He approached the
victim and “started talking to him to try and assess if he had a
pulse, * * * and he was not moving.” (Tr. Vol.I, 83.) Officer Lee
observed that the victim was breathing and that he had a “small
spot of blood in his back.” (Tr. Vol.I, 83.) When Officer Lee rolled
the victim over, he noticed a gunshot wound to the victim’s chest
area. After emergency medical personnel transported the man to a
nearby hospital, Officer Lee discovered “a spent projectile bullet
on the sidewalk directly where I had rolled the victim over.” (Tr.
Vol.I, 86.)
Columbus Police Sergeant Joan Schlabach, a member of the crime
scene search unit, testified that an unfired .25–caliber cartridge and
a spent shell casing from a 9 mm weapon were recovered from the
crime scene.
The parties entered into a stipulation that, if called to testify, Dr.
Kenneth Gerston, an employee of the Franklin County Coroner’s
Office, would testify that Rogers suffered a single fatal gunshot
wound to his back. The parties further stipulated that, if called to
testify, Columbus Police Lieutenant Larry Yates would testify that
the Columbus Police underwater search and rescue unit searched
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the pond at Krumm Park on September 17, 2012, and found a
firearm and clip in the pond using the diagram provided by
Jennings.
Columbus Police Detective Mark Hardy testified that he compared
a Hi–Point 9 mm Luger pistol recovered from the pond at Krumm
Park to a spent 9 mm Luger casing found at the scene of the
shooting. Detective Hardy averred that this comparison revealed
“sufficient number of matching characteristics that were
individual, so I could say that this casing was fired by the same
weapon as this test casing.” (Tr. Vol.II, 344.) Detective Hardy thus
opined that the gun recovered from the pond at Krumm Park was
the same gun that fired the 9 mm shell casing recovered from the
shooting scene.
John C. Briggs, Jr., testified that in June 2013 he was incarcerated
at the Franklin County jail on federal charges of drug possession
and possession of a firearm and shared a cell with appellant.
According to Briggs, appellant averred that he had been charged
with murder, and he read Briggs the discovery materials associated
with his case. Appellant said his brother, Markee, “got ripped off
for some pills” by an individual named Charlie. (Tr. Vol .I, 227.)
After learning about the pill theft, Markee went back to his
mother’s house and “got [appellant], * * * and then from there,
they went to Charlie’s house.” (Tr. Vol.I, 228.) Appellant averred
that Markee and his girlfriend were in a red Mustang, while
appellant was in a black car. Both appellant and Markee had guns;
appellant had a 9 mm, while Markee had a .25 caliber.
Appellant further related that when he and Markee arrived at
Charlie’s house, they “got in a scuffle” with Charlie. (Tr. Vol.I,
230.) Markee “went to fire at Charlie, but the gun didn’t go off. So
Charlie took off running, and that’s when [appellant] pulled his
gun. He shot at Charlie, and he didn’t think he hit him, but he seen
a red spot in the back of his shirt.” (Tr. Vol.I, 230.) When appellant
“found out [Charlie] was dead * * * he said, That’s what that bitch
gets.” (Tr. Vol.I, 230.)
Briggs testified that appellant first blamed the shooting on Markee.
However, he later “broke down” and “bragg[ed]” that he shot
Charlie. (Tr. Vol.I, 231.) Appellant told Briggs that, after the
shooting, he and Markee left the scene in separate cars. Appellant
later met up with Markee and gave him the gun he used to shoot
Charlie. Markee then “took the gun, took it to Krumm Park, [and]
threw it in the pond.” (Tr. Vol.I, 234.) Appellant told Briggs that
when he was first interviewed by police, he told them “Chuffus
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[appellant’s nephew] did it”; however, he later “put it on his
brother, Markee.” (Tr. Vol.I, 235.)
Briggs testified that he did not provide the information about his
conversation with appellant in an effort to help himself in his
federal prosecution. He specifically averred that he was not
promised that he would “get out of [his] prison sentence [or] get
probation or the case would go away.” (Tr. Vol.I, 236.) He
acknowledged, however, that he was told by the prosecutor in the
instant case that the United States Attorney’s Office would be
notified that Briggs had been a cooperating witness and that such
information would be relayed to the judge presiding over his
federal case.
At the conclusion of trial, the jury returned guilty verdicts on the
lesser-included offense of murder and the associated firearm
specification. The trial court found appellant guilty of having a
weapon while under disability. On November 4, 2014, the trial
court issued a judgment sentencing appellant to consecutive
sentences of 15 years to life on the murder conviction, 3 years on
the firearm specification, and 12 months on the conviction for
having a weapon while under disability.
In a timely appeal, appellant sets forth the following five
assignments of error for this court’s review:
[I.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE.
[II.] THE CONVICTION OF APPELLANT FOR MURDER,
[WEAPON
UNDER
DISABILITY],
AND
GUN
SPECIFICATION, IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
[III.] A PROSECUTOR ENGAGES IN MISCONDUCT DURING
REBUTTAL WHEN HE MAKES PERSONAL PROMISES TO
THE JURY ABOUT THE AVAILABILITY OF EVIDENCE.
[IV.] THE TRIAL COURT IN A MURDER CASE COMMITS
ERROR WHEN IT FAILS TO REQUIRE UNANIMOUS
VERDICTS ON THE ELEMENTS OF PRIOR CALCULATION
AND DESIGN AND AIDING AND ABETTING, UPON
REQUEST BY THE DEFENSE.
[V.] A TRIAL COURT IN A [WEAPON UNDER DISABILITY]
CASE WITH A GUN SPECIFICATION COMMITS ERROR
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WHEN IT FAILS TO MERGE THE TWO CONVICTIONS
WHEN THE UNDERLYING FACTS SUPPORT IT.
State v. Horton, No. 14AP-997, 2015 WL 5771839, at *1–4 (Ohio Ct. App. 2015).
September 30, 2015, the appellate court affirmed.

Id.

On

Petitioner sought review from the

Supreme Court of Ohio, raising one proposition of law:
It is a violation of criminal defendant’s Constitutional due process rights not to
require unanimous verdicts on whether that defendant was a principal offender or
aider and abettor in a case involving co-defendants.
(Doc. 14-1, PageID# 227). The Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Horton, 144 Ohio St.3d 1507 (Ohio 2016).
While his case was pending before the Supreme Court of Ohio, Petitioner moved to
reopen his appeal, pursuant to Ohio Appellate Rule 26(B), before the state appellate court. (Doc.
14-1, PageID# 249). Petitioner asserted that his appellate counsel performed in a constitutionally
ineffective manner by failing to raise a claim of prosecutorial misconduct for failure to correct
allegedly false testimony by a state’s witness, and a claim that the trial court committed
prejudicial error in refusing to answer a jury question during deliberations. See Memorandum
Decision (PageID# 290). The appellate court denied the Rule 26(B) application. (Id.) Petitioner
did not appeal this decision.
On August 6, 2015, Petitioner filed a petition for post-conviction relief in the state court.
(PageID# 297). He asserted that his attorney had a conflict of interest and that he was denied the
effective assistance of counsel during plea negotiations. On November 21, 2015, the trial court
denied the post-conviction petition. (PageID# 326). Petitioner again did not appeal to the
Supreme Court of Ohio.
On January 23, 2017, Petitioner filed this case. He asserts that he was denied a fair trial
because the trial court refused to admit certain defense exhibits relating to John Briggs (claim
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one); that the evidence is constitutionally insufficient to sustain his convictions (claim two); and
that he was denied a fair trial due to prosecutorial misconduct (claim three).
II.

DISCUSSION

Respondent argues that Petitioner’s claims are procedurally defaulted and, in the alternative,
without merit. (Doc. 14). The undersigned agrees that the claims are procedurally defaulted.
A. Procedural Default
1. Standard
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
must first 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)).
However, where a petitioner has failed to exhaust his claims but would find those claims barred
if later presented to the state courts, “there is a procedural default for purposes of federal
habeas[.]” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), abrogated on different grounds
by Martinez v. Ryan, 566 U.S. 1 (2012). In other words, “contentions of federal law which were
not resolved on the merits in the state proceeding due to respondent’s failure to raise them there
as required by state procedure” also cannot be resolved on their merits in a federal habeas case.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

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To determine whether procedural default bars a habeas petitioner’s claim, courts in the
Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);
see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part
analysis of Maupin). 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. Second,
the court must determine whether the state courts actually enforced the state procedural sanction.
Third, the court must determine whether the forfeiture is an adequate and independent state
ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,
785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied
with and that the rule [has] an adequate and independent state ground, then the petitioner” may
still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause
sufficient to excuse the default and (2) that he was actually prejudiced by the alleged
constitutional error. Id.
If, after considering all four factors of the Maupin test, a court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on the merits
unless “review is needed to prevent a fundamental miscarriage of justice, such as when the
petitioner submits new evidence showing that a constitutional violation has probably resulted in
a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.
2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).
2. Application
Here, Petitioner arguably raised all of his claims on direct appeal before the state
appellate court; however, he failed to raise any of these claims in his appeal to the Supreme
Court of Ohio. There, he asserted only that it was a violation of a criminal defendant’s right to

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due process not to require unanimous verdicts on whether he was the principal offender or an
aider and abettor in a case involving co-defendants. Memorandum in Support of Jurisdiction
(Doc. 14-1, PageID# 227). In Ohio, “one complete round” of the State’s established appellate
review process means a defendant must timely and fairly present his claim to the trial court,
court of appeals, and the Supreme Court of Ohio in direct review. Caver v. Straub, 349 F.3d
340, 346 (6th Cir. 2003) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Thus, by
failing to ask the Supreme Court of Ohio to review his claims, Petitioner failed to exhaust the
claims he now brings in this federal habeas action. Moreover, because Petitioner did not raise
his claims on direct appeal, Ohio’s doctrine of res judicata now bars his ability to raise such
claims in the state courts. See State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967) (holding that
claims must be raised on direct appeal, if possible, or they will be barred by the doctrine of res
judicata); see also State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982); State v. Ishmail, 423 N.E.2d
1068, 1070 (Ohio 1981).
Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to
review the merits of procedurally barred claims. See Cole, 443 N.E.2d at 170–71; Ishmail, 423
N.E.2d at 1070. Further, the Sixth Circuit has held that Ohio’s doctrine of res judicata is an
independent and adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440
F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001);
Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22
(6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Finally, with respect to
the last Maupin factor, the independence prong, the Court concludes that Ohio’s doctrine of res
judicata in this context does not rely on or otherwise implicate federal law. Accordingly, the

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Court is satisfied from its own review of relevant case law that res judicata rule articulated in
Perry is an adequate and independent ground for denying relief here.
As explained, however, Petitioner may still secure review of these claims on the merits if
he demonstrates cause for his failure to follow the state procedural rules, as well as actual
prejudice from the constitutional violations that he alleges. “‘[C]ause’ under the cause and
prejudice test must be something external to the petitioner, something that cannot fairly be
attributed to him[,] ‘ . . . some objective factor external to the defense [that] impeded . . . efforts
to comply with the State’s procedural rule.’” Coleman v. Thompson, 501 U.S. 722, 753 (1991)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). But Petitioner has not argued, nor does
the record reflect, that his procedural default can be excused by any explanation that would be
sufficient under Murray v. Carrier. Moreover, Petitioner has not alleged that a manifest injustice
led to his conviction. Schlup v. Delo, 513 U.S. 298, 326–32 (1995). Accordingly, Petitioner’s
claims are procedurally defaulted.
III.

CONCLUSION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the Petition be

DENIED and that this action be DISMISSED.
Procedure on Objections
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Response to objections must be filed within fourteen days after being served with a copy
thereof. Fed. R. Civ. P. 72(b).

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The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (“[F]ailure to object to the magistrate judge’s
recommendations constituted a waiver of [the] ability to appeal the district court’s ruling”);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived
appeal of district court’s denial of pretrial motion by failing to timely object to magistrate
judge’s report and recommendation). Even when timely objections are filed, appellate review of
issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.
2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues of
contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted). 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.
IT IS SO ORDERED.
Date: November 16, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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