Hively v. Warden Marion Correctional Institution
Filing
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REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS denying 1 Petition for Writ of Habeas Corpus and dismissing this action. Objections to R&R due by 2/20/2018. Signed by Magistrate Judge Kimberly A. Jolson on 2/5/2018. (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
BRUCE A. HIVELY,
CASE NO. 2:17-CV-222
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson
Petitioner,
v.
WARDEN, MARION
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,
Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate
Judge RECOMMENDS that the Petition be DENIED and this action be DISMISSED.
I.
FACTS AND PROCEDURAL HISTORY
The Ohio Fourth District Court of Appeals summarized the facts and procedural history
of the case as follows:
On April 10, 2013, Bruce A. Hively (“Hively”) was indicted on
one count of Murder, a first degree felony, in violation of R.C.
2903.02(A), one count of Aggravated Murder, a first degree
felony, in violation of R.C. 2903.01(A), and one count of
Tampering with Evidence, a third degree felony, in violation of
R.C. 2921.12(A)(2). The charges stemmed from the death of
Charles T. Addis (“Addis”) that occurred on April 4, 2013. Hively
shot and killed Addis after an altercation involving Hively, Addis,
Addis’s older brother Aaron Addis, and Addis’s friend Anthony
Kyle Knepper (“Knepper”).
At trial, the state presented a total of 11 witnesses including Aaron
Addis and Knepper. The evidence admitted at trial included two
cell phone recorded videos taken by Knepper that captured a
portion of the April 4, 2013 altercation and the moment the
shooting occurred. The state also admitted a video of an interview
between Hively and two agents of the Bureau of Criminal
Identification and Investigation (“BCI”).
The record reveals the following facts. During the afternoon of
April 4, 2013, Hively was on his way home after checking
property he owned in the area when he drove past Dickey Chapel
Church on Elliot Road in Gallia County. As he drove by the
church, he noticed three men, Addis, Knepper, and Aaron Addis in
the church parking lot. Hively stopped at the intersection of
Hannan Trace Road, which ran perpendicular to Elliot Road. The
church parking is located to the right of Elliot Road as one
approaches Hannan Trace Road. Hively was worried that the men
saw him leaving. In his interview with Agent Trout, Hively stated
that the men had a history of threatening and harassing him. Hively
believed that when three of “them” were siting at the church, they
were up to no good. In the interview Hively declared that he was
“tired of this,” so he decided to turn around.
According to Knepper’s testimony, Hively’s vehicle was stopped
for “about two or three minutes,” before Hively turned his vehicle
around and headed back on Elliot Road. Hively stopped his vehicle
on the side of Elliot Road nearest the church parking lot. Between
the church parking lot and Elliot Road is a small embankment that
slopes towards the road. Hively rolled his window down and yelled
at the men. At trial both Knepper and Aaron Addis testified that
Hively rolled down his window and waved his pistol out the
window. They also testified that Hively said that he had all three of
them now, and asked which one wants to go first.
At some point, Knepper took out his phone and began to record the
altercation. The recording provides both video and audio coverage.
On two separate occasions during the recording, only audio is
provided because the phone’s video had been obstructed. Aaron
Addis remained sitting inside his vehicle parked at the top of the
embankment for the entirety of the altercation except when the
shooting occurred. Aaron Addis’s voice was heard on the
recording only a few times. The voices most predominantly
featured on the recording were those of Hively and Knepper.
The first recording began with Hively getting out of his vehicle as
Knepper and Addis walk down the embankment towards him.
Without transcribing the entire video, it is clearly shown that the
three men each issued their own threats and taunts. Both Addis and
Knepper come face to face with Hively, with Hively holding up his
fists each time. Addis told Hively to “Let’s step out here,” pointing
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to an area away from the vehicle. Hively can be heard saying to
Knepper: “I slapped you once boy.” Knepper stated to Hively that
he would knock his lights out; Knepper also made reference to a 12
gauge and that he had “ * * * killed fucking bigger pieces of shit
than your fucking ass.” After approximately seventy seconds of
constant back and forth yelling and taunting, the situation slightly
calmed down. The video recording became obstructed for the rest
of the first video because Knepper put his phone, with the camera
still recording, in his pocket. Hively explained his suspicions
regarding the thefts of his property. Addis and Knepper maintained
that they had nothing to do with it. Aaron Addis can be heard
telling Hively that he was tired of him (Hively) coming up there
and running his mouth. The last statement on the first video is from
Knepper stating: “Don’t be pulling a god damn gun.”
The second video began by showing Addis and Hively standing a
few feet away from one another with Knepper on the left side of
Addis. Hively was standing just outside the driver’s seat of the
vehicle with the door open. The open door was somewhat between
Hively and Knepper but not between Hively and Addis. Knepper
and Addis then talked about Hively holding a gun behind his back.
Knepper insisted the gun was in Hively’s right hand tucked behind
his back. Hively asked where the gun was and shows his left empty
hand. Then the following exchange between Hively and Addis
occurs, briefly on video:
Hively: “What was you going for?”
Addis: “What?”
Hively: “Dick sucker, what was you going for?”
Then Knepper turned the video away from Hively and Addis and
back towards the embankment. Seconds pass when the audio
captured two gunshots. The audio on the recording then became
primarily the emotional outbursts of Knepper and Aaron Addis.
However, the recording briefly displayed Addis on the ground,
writhing in pain, with Hively standing over top of him. Hively still
had the gun pointed at Addis. As the video again turned away from
Hivley and Addis, another gunshot can be heard. The video ended
as Knepper and Aaron Addis run from the scene, retreating to a
nearby cemetery.
Sometime after these events, Amanda Nibert (“Nibert”), a
corrections officer for the Gallia County Sheriff’s office, who was
heading home on Hannan Trace Road, turned onto Elliott Road
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and saw a man motionless on the road beside Hively’s white Kia.
Nibert saw Hively in the church parking lot. Nibert testified that
Hively had blood running down his left wrist and a red mark on his
left cheekbone. Nibert asked Hively if he needed help, to which
Hively responded that three boys had jumped him, he warned them
to leave him alone and that he would shoot them. Hively also told
Nibert that “Charlie had a knife and had cut his left wrist and that
they stomped him with their boots.” Nibert called 911 and advised
them of the situation. Nibert also testified that Knepper and Aaron
Addis returned to the scene. Nibert informed them that the sheriff
had been called and that there did not need to be any more trouble.
The state also questioned Nibert about the cell phone reception in
the area:
[Prosecutor]: Okay. And um, to your knowledge is cell phone
reception kind of sparse throughout that area?
[Nibert]: Yes.
[Prosecutor]: And uh, have you ever went to that church parking
lot to use the cell phone reception?
[Nibert]: Yes.
[Prosecutor]: Okay. And explain to me why you would go there?
[Nibert]: Um, just if you want to send a text message. There are
only a few places that you can. It either has to be at the top of my
driveway, my window or the church.
BCI Agent Shane Hanshaw processed the scene of the shooting.
He located four spent shell casings. One casing was found in front
of the vehicle. A second was found near the driver side door. The
third and fourth casings were found near Addis’s body. Agent
Hanshaw also found a small knife in the open position near the
upper torso of the back of Addis’s body. It is also notable that on
cross-examination, Agent Hanshaw testified that he took “several”
swabs of blood evidence from the front driver’s side interior door
of Hively’s car. Agent Hanshaw released those swabs to the
Sherriff’s office. Agent Hanshaw testified that it was not his
decision to determine what evidence would be submitted to BCI
for testing.
Later in the trial, the state called Deputy Nathan Harvey to testify.
On cross-examination, defense counsel asked about the blood
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swabs from the interior of the driver side door. Deputy Harvey
stated that the swabs were not submitted to the lab for testing.
Deputy Harvey explained that the swabs were not submitted
because the lab has a limit on the number of items that can be
submitted. The swabs were not submitted “Based on the fact that
he [Hively] admitted to cutting his own hand ...” and they were “ *
* * not as important as other items.”
BCI Agents Mike Trout and John Jenkins interviewed Hively after
the shooting. Before speaking with the BCI agents, Hively signed a
waiver of his Miranda rights. Video footage of the interview was
shown during the trial. During the interview, Hively told Agent
Trout about his history with Addis, Knepper and Aaron Addis.
Hively stated that Addis did not like him because Hively had
complained about Addis’s riding his four wheeler down the street.
Hively stated that when the boys were at the church they “were up
to no good.” Worried that the men had seen him when he initially
drove by the church, Hively stated that he turned his car around
and told the men that they should not be up there.
During the interview, Hively asked Agent Trout if he had found his
knife. Hively explained that he used the knife in his fist to make
his fist solid. When Knepper and Addis came down the
embankment, Hively stated that he placed the gun in the passenger
seat before exiting the vehicle. At this point, Hively explained that
he was “gonna whoop Charlie and get it over with.” Hively
maintained that he grabbed his gun and came up firing in response
to Knepper pushing Hively back against the car and Addis kicking
him in the face. Hively admitted to emptying the clip; but insisted
that he was pushed back into his car.
Prior to interviewing Hively, Agent Trout viewed the video
captured on Knepper’s cell phone. Agent Trout testified at trial
that: “I didn’t see anything, um, in uh, Mr. Hively’s hand. I didn’t
see the knife that was in his hand that he referenced.” Towards the
end of the interview, Agent Trout revealed to Hively that Knepper
was in fact recording video of the incident. Hively admitted that at
one point he held the gun down to his side, but he put the gun back
in the car. After a few more questions, Hively admitted that he cut
himself with his knife and that he placed the knife near Addis.
Hively stated that he did that so “ * * * there was no question of
me that they done that to me.” Although Agent Trout questioned
Hively’s story relating to being pushed back into the car, Hively
maintained that the gun was in the car; he was pushed back into the
car; and he grabbed the gun and fired at Addis.
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The physician who performed the autopsy on Addis identified,
both at trial and on his reports, several gunshot wounds. The
wounds included two graze gunshot wounds involving the nose
and right eyebrow, a gunshot wound with an entry and exit wound
on the chin, two distant range gunshot wounds of the chest, both of
which lacerated Addis’s heart, and an intermediate range wound of
the left wrist. The coroner explained that a distance range wound is
a range greater than twenty-four inches. The coroner testified the
intermediate wrist wound had a range of six to twenty-four inches.
He concluded: “no fewer than four [gunshots] caused the injuries
on [Addis]. He also stated that it “may have been as many as five
or six, depending on if the gunshot wound through the wrist then
re-entered either in the chest or one of the graze injuries of the um,
face.”
The jury found Hively not guilty of the first count of Murder,
guilty of the second count of Aggravated Murder with a gun
specification and guilty of count three, Tampering with Evidence.
The trial court sentenced Hively to thirty years imprisonment for
count two, and additional three years for the gun specification to be
served consecutively, and thirty months imprisonment for count
three to be served concurrently. Hively then filed this timely
appeal.
State v. Hively, No. 13CA15, 2015 WL 3745609, at *1–4 (Ohio Ct. App. June 8, 2015).
Petitioner asserted on appeal that the trial court erred by denying his request for a “castle
doctrine jury instruction” and that his aggravated murder conviction was against the manifest
weight of the evidence. The appellate court affirmed, id., and, on October 28, 2015, the Supreme
Court of Ohio declined to accept jurisdiction of the appeal. State v. Hively, 143 Ohio St.3d 1501
(Ohio 2015).
On August 25, 2015, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (Doc. 6-1, PageID# 200). Petitioner asserted that he was denied the
effective assistance of appellate counsel because his attorney failed to raise on appeal the
following claims: inconsistent jury verdicts, improper denial of his motion for a change of
venue, and denial of the effective assistance of trial counsel based on his attorney’s failure to
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introduce photographs of the injuries he sustained during the incident that resulted in Addis’s
death, failure to introduce into evidence prior police reports, failure to introduce a written
statement from the State Fire Marshal about three arsons that had been committed by the
victim’s family and friends after his arrest but prior to trial, and failure to object to the trial
court’s acceptance of a guilty verdict on aggravated murder after the jury found him not guilty of
murder. On November 25, 2015, the appellate court denied the Rule 26(B) application. (Id.,
PageID# 213). On March 9, 2016, the Supreme Court of Ohio declined to accept jurisdiction of
that appeal. State v. Hively, 145 Ohio St.3d 1411 (Ohio 2016).
Petitioner then filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He asserts that he was denied the effective assistance of trial counsel (claim one); that
he was denied a fair trial when the trial court refused to grant his motion for a change of venue
(claim two); that he was denied due process based on inconsistent jury verdicts (claim three);
that the evidence is constitutionally insufficient to sustain his conviction on aggravated murder
and that his conviction on aggravated murder was against the manifest weight of the evidence
(claim four); and that he was denied a fair trial because the trial court refused to issue a “castle
doctrine” jury instruction (claim five).
Respondent argues that Petitioner’s claims are
procedurally defaulted or are otherwise meritless.
II.
STANDARD OF REVIEW
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth the standards governing this Court’s review of statecourt determinations. The United States Supreme Court has described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and has emphasized that courts must not “lightly conclude that a State’s criminal justice system
7
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 state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
Further, the factual findings of the state appellate 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.
28 U.S.C. § 2254(e)(1)
Thus, “[u]nder AEDPA, 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 has 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
8
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 the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
In addition to the high standard a federal habeas petitioner must overcome on the merits,
he must also clear certain procedural hurdles. 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 the prisoner fails to do so, but still has an avenue open to present the
claims, then the 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)). Where a petitioner has failed to exhaust 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).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State has a fair chance to correct any errors made in the
course of the trial or the appeal before a federal court intervenes in the state criminal process.
This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts
before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal law claims being asserted. That means
9
that if the claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal court do
so. As the Supreme Court found in Wainwright v. Sykes, “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—
that is, they are “procedurally defaulted.” 33 U.S. 72, 87 (1977).
III.
DISCUSSION
As noted, Respondent argues that all of Petitioner’s claims are procedurally defaulted or
meritless.
A. Claims One, Two, and Three (Procedural Default) 1
In claim one, Petitioner asserts that he was unconstitutionally denied assistance of trial
counsel; and, in claim two, he claims that he was denied a fair trial when the trial court refused to
grant his motion for a change of venue. His third claim asserts that the jury verdict in this case
was unconstitutionally inconsistent. The record shows that Petitioner raised none of these claims
on direct appeal. (See Doc. 6-1. Exs. 6, 11). Respondent thus argues, among other things, that
these claims are procedurally defaulted. Petitioner seems to respond that he raised these claims
in his timely 26(B) application and, because the state court reviewed the claims via that
application, the claims are not procedurally defaulted.
The Sixth Circuit, however, has rejected Petitioner’s argument.
See, e.g., Davie v.
Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). To be clear, the basis of Petitioner’s 26(B)
application was ineffective assistance of appellate counsel because “[b]y its very nature, a Rule
26(B) application is a claim of ineffective assistance of appellate counsel.”
1
Id. at 312.
Respondent makes additional arguments why claims one, two, and three fail. However, because the Court finds
the claims procedurally defaulted, the additional arguments will not be considered.
10
Importantly, “bringing an ineffective assistance of appellate counsel claim does not preserve an
underlying claim for federal review because the two claims are analytically distinct.” Davie v.
Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) (quotation marks and citation omitted). Accordingly,
claims one, two, and three were only underlying the appellate counsel claim in Petitioner’s 26(B)
application. And the Sixth Circuit expressly noted in Davie that while “any review of an
ineffective assistance of counsel claim will likely include some sort of determination that the
substantive claims underlying the assignment of error,” a “Rule 26(B) application does not,
given the comity and federalism concerns implicated in habeas cases, justify reaching the merits
of that claim.” Id. at 313. Thus, Petitioner’s 26(B) application did not sufficiently preserve these
claims, and the Court thus must determine whether the claims are procedurally defaulted.
1. The Maupin Factors
As explained above, where a petitioner has failed to exhaust claims but would find those
claims barred if later presented to the state courts, “there is a procedural default for purposes of
federal habeas,” and a petition is subject to dismissal. Coleman, 501 U.S. at 735 n.1. Courts in
the Sixth Circuit engage in a four-part test to determine whether procedural default bars a habeas
petitioner’s claim. 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
11
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.
Here, Petitioner failed to present claim one, claim two, or claim three to the state
appellate courts on direct appeal. And, importantly, he may now no longer present these claims
to the state courts by virtue of the application of Ohio’s doctrine of res judicata. See State v.
Perry, 10 Ohio St.2d 175 (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, 2 Ohio St.3d 112
(1982); State v. Ishmail, 67 Ohio St.2d 16 (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. Additionally, 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 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, and the Maupin factors are satisfied.
2. Cause and Prejudice
Petitioner may, however, 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
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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)). It is Petitioner’s burden to show cause and prejudice.
Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). A petitioner’s pro se status, ignorance of
the law, or ignorance of procedural requirements are insufficient bases to excuse a procedural
default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in order to establish
cause, a petitioner “must present a substantial reason that is external to himself and cannot be
fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007).
a. Ineffective Assistance of Counsel
Although not entirely clear, it seems that Petitioner asserts the denial of the effective
assistance of counsel as cause for his procedural default. Because his ineffective assistance of
trial counsel claim is procedurally defaulted, he may not use that claim as a vehicle to overcome
the default itself.
See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (holding that an
ineffective assistance of counsel claim asserted as cause for the procedural default of another
claim can itself be procedurally defaulted).
As for his ineffective assistance of appellate counsel claim, the state appellate court
considered this argument in the context of Petitioner’s 26(B) application and found it meritless.
Entry Denying Application to Reopen Direct Appeal (Doc. 6-1, PageID# 225–28). Relevant
here, the Sixth Circuit, unlike some other courts, has not applied AEDPA deference in this
situation. “An argument that ineffective assistance of counsel should excuse a procedural default
is treated differently than a free-standing claim of ineffective assistance of counsel. The latter
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must meet the higher AEDPA standard of review, while the former need not.”
Hall v.
Vasbinder, 563 F.3d 222, 236–37 (6th Cir. 2009) (citations omitted). Consequently, the Court
reviews the assertion of ineffective assistance of appellate counsel de novo.
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). The United States Supreme Court set forth the legal principles governing
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). A
petitioner who claims the ineffective assistance of counsel must demonstrate that his counsel’s
performance was deficient and that he suffered prejudice as a result. Id. at 687; Hale v. Davis,
512 F. App’x. 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by counsel
by demonstrating ‘that counsel’s representation fell below an objective standard of
reasonableness.’” Poole v. MacLaren, 547 F. App’x 749, 754 (6th Cir. 2013) (quoting Davis v.
Lafler, 658 F.3d 525, 536 (6th Cir. 2011) and citing Strickland, 466 U.S. at 687). 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.” Strickland, 466 U.S. at 689.
The Strickland test applies to appellate counsel. Smith v. Robbins,
528 U.S. 259, 285, (2000); Burger v. Kemp, 483 U.S. 776
(1987). . . . Counsel’s failure to raise an issue on appeal amounts to
ineffective assistance only if a reasonable probability exists that
inclusion of the issue would have changed the result of the appeal.
Id. citing Wilson.... The attorney need not advance every
argument, regardless of merit, urged by the appellant. Jones v.
Barnes, 463 U.S. 745, 751–752 (1983) (“Experienced advocates
since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” 463 U.S.
751–52).
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Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D.
Ohio Mar. 6, 2013). Factors to be considered in determining whether a defendant has been
denied the effective assistance of appellate counsel include:
(1) Were the omitted issues “significant and obvious”?
(2) Was there arguably contrary authority on the omitted issues?
(3) Were the omitted issues clearly stronger than those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court’s rulings subject to deference on appeal?
(6) Did appellate counsel testify in a collateral proceeding as to his
appeal strategy and, if so, were the justifications reasonable?
(7) What was appellate counsel’s level of experience and expertise?
(8) Did the petitioner and appellate counsel meet and go over
possible issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments of
error?
(11) Was the decision to omit an issue an unreasonable one which
only an incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999) (citations omitted).
After reviewing de novo the state appellate court’s analysis of this issue, the Court agrees
with its conclusion. Petitioner cannot satisfy Strickland’s standards, and, consequently, cannot
excuse his procedural default based on ineffective assistance of appellate counsel.
b. Actual Innocence
The last potential escape hatch for Petitioner is a claim of actual innocence. The United
States Supreme Court has held that such a claim may be raised “to avoid a procedural bar to the
15
consideration of the merits of [the petitioner’s] constitutional claims.” Schlup v. Delo, 513 U.S.
298, 326–27 (1995). “[I]n an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.” Murray, 477 U.S. at
496. In Schlup, the Supreme Court held that a credible showing of actual innocence was
sufficient to authorize a federal court in reaching the merits of an otherwise procedurally-barred
habeas petition. Schlup, 513 U.S. at 317. The actual innocence exception allows a petitioner to
pursue his constitutional claims if it is “more likely than not” that new evidence—not previously
presented at trial—would allow no reasonable juror to find him guilty beyond a reasonable
doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). After an independent review of the record,
the Court concludes that Petitioner does not meet these standards here.
B. Claims Four and Five (Merits)
The Court considers claims four and five on the merits.
1. Claim Four
In claim four, Petitioner asserts that the evidence is constitutionally insufficient to sustain
his conviction on aggravated murder, and that this conviction is against the manifest weight of
the evidence.
The latter issue does not provide a basis for federal habeas corpus relief. A federal court
may issue a writ of habeas corpus on behalf of a person in custody pursuant to the decision of a
state court only if his custody is in violation of the Constitution or laws of the United States. 28
U.S.C. § 2254(a). Thus, “[a] federal court may not issue the writ on the basis of a perceived
error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). A manifest weight of the evidence
claim is an alleged error of state law that is not cognizable in this Court. Under Ohio law,
16
“[w]eight of the evidence concerns ‘the inclination of the greater amount of credible evidence,
offered in a trial, to support one side of the issue rather than the other....’” State v. Thompson, 78
Ohio St.3d 380, 386 (1997) (citations omitted). “When a court of appeals reverses a judgment of
a trial court on the basis that the verdict is against the weight of the evidence, the appellate court
sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting
testimony.”
Id.
A federal habeas court, however, may not “reweigh the evidence or re-
determine the credibility of the witnesses whose demeanor has been observed by the trial court”
because, in habeas proceedings, “[i]t is the province of the factfinder to weigh the probative
value of the evidence and resolve any conflicts in testimony.” Matthews v. Abramajtys, 319 F.3d
780, 788 (6th Cir. 2003) (citations omitted). Because this 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 conviction was against the manifest weight of the evidence
cannot be considered by this Court.
Further, Respondent contends that Petitioner has procedurally defaulted his claim that the
evidence is constitutionally insufficient to sustain his conviction on aggravated murder by failing
to raise the issue in the state appellate court, where Petitioner argued solely that this conviction
was against the manifest weight of the evidence. See Appellant’s Brief, (Doc. 6-1, PageID# 110,
118-121) 2. However, the United States Court of Appeals for the Sixth Circuit has held that a
claim of insufficiency of the evidence may be preserved for federal habeas corpus review even if
it is raised in the state courts solely in the context of a claim that the conviction is against the
2
Petitioner did present a claim of insufficiency of the evidence to the Ohio Supreme Court; however, the Ohio
Supreme Court does not ordinarily consider claims that were not raised in the appellate court below. See Glenn v.
Bobby, No. 1:13-cv-128, 2013 WL 3421888, at *10 (N.D. Ohio July 8, 2013) (“[U]nder Ohio law a criminal
constitutional question cannot ordinarily be raised in the Ohio Supreme Court unless it is first presented in the court
below.”) (citing State v. Jester, 32 Ohio St.3d 147, 154 (1987)).
17
manifest weight of the evidence. See Nash v. Eberlin, 258 F. App’x 761, 2007 WL 4438008, at
*3 (6th Cir. 2007). The Sixth Circuit reasoned:
[T]he sufficiency of the evidence issue was adequately passed
upon by the Ohio courts because the determination by the Ohio
Court of Appeals that the conviction was supported by the manifest
weight of the evidence necessarily implies a finding that there was
sufficient evidence. The Ohio Court of Appeals, for instance, has
explained that “‘[b]ecause sufficiency is required to take a case to
the jury, a finding that a conviction is supported by the weight of
the evidence must necessarily include a finding of sufficiency.’
Thus, a determination that a conviction is supported by the weight
evidence will also be dispositive of the issue of sufficiency.” State
v. Lee, 158 Ohio App.3d 129, 814 N.E.2d 112, 115 (2004)
(citations omitted). Therefore, the district court properly
entertained Nash’s sufficiency of the evidence claim because it has
been effectively presented to the Ohio courts and was decided by
the Ohio Court of Appeals.
Id. at 765; see also Bryant v. Turner, No. 2:15-cv-02929, at *4–5 (S.D. Ohio Oct. 12, 2016)
(citing Taylor v. Brunsman, No. 3:12CV800, 2014 WL 4113320, at *14 (N.D. Ohio Aug. 20,
2014) (“[W]hen a federal pro se habeas litigant makes a manifest weight of the evidence claim,
after presentment and adjudication in the Ohio courts, a rule of lenient construction of pro se
pleadings applies to construe the manifest weight claim as a sufficiency of the evidence claim....
because under Ohio law a finding that a conviction is supported by the manifest weight of the
evidence necessarily means that it has the support of sufficient evidence.”) (footnotes omitted)
(citing Nash, 258 F. App’x at 761); Johnson v. Warden, Lebanon Corr. Inst., No. 1:13-cv-82,
2014 WL 4829592, at *24 (S.D. Ohio Sept. 29, 2014) (same) (citing Nash, 258 F. App’x. at 764–
65; Taylor v. Brunsman, No. 3:12cv800, 2014 WL 4113320, at *1, *14 (N.D. Ohio Aug. 20,
2014); Crawford v. Moore, No. 3:14cv22, 2014 WL 293868, at *8 (S.D. Ohio Jan. 27, 2014)
(Merz, M.J.) (Report & Recommendation) (and cases cited therein), adopted, 2014 WL 2200685
(S.D. Ohio May 27, 2014) (Rose, J.); Jones v. Cook, No. 2:12cv125, 2012 WL 5467528, at *8
18
(S.D. Ohio Nov. 9, 2012) (Abel, M.J.) (Report & Recommendation) (and cases cited therein),
adopted, 2012 WL 6472953 (S.D. Ohio Dec. 13, 2012) (Watson, J.)). This Court therefore will
consider the merits of Petitioner’s claim that the evidence is constitutionally insufficient to
sustain his aggravated murder conviction.
The state appellate court rejected Petitioner’s claim that his aggravated murder conviction
was against the manifest weight of the evidence in relevant part as follows:
Hively argues that the manifest weight of the evidence supported
the conclusion that the shooting in this case was a spontaneous,
tragic eruption of events and did not support a conviction for
Aggravated Murder. Hively adds that BCI Agent Trout
summarized it best by stating, in his interview with Hively, that the
incident occurred because Hively reached a breaking point with the
boys and shot Addis. Hively explains that while it may be murder,
it is not aggravated murder. It is Hively’s contention that he did not
shoot Addis with prior calculation and design.
Hively’s argument here focuses on the prior calculation and design
element of the charge of Aggravated Murder. Admittedly, Hively
lists three things upon which the jury could have found evidence of
prior calculation and design: 1) Hively knew Charles Addis 2)
Hively believed Charles Addis was causing trouble on his
property, and 3) Hively shot Charles Addis four times with a
handgun. Hively, however, points out that the jury overlooked
more evidence which supports that Hively did not meet the prior
calculation and design element. This evidence was 1) this event
was an unplanned encounter 2) the location was not chosen by
Hively 3) it was broad daylight 4) two witnesses were present for
the entire incident 5) Knepper had a cell phone in his hand 6)
Hively believed he was taking photos with said cell phone 7)
Addis and Knepper were aggressively yelling at Hively 8) Hively
remained near his car when Addis and Knepper approached him 9)
the incident was not drawn out and lastly 10) Hively did not leave
the scene of the shooting.
***
Hively was convicted of Aggravated Murder, in violation of R.C.
2903.01(A), which states: “No person shall purposely, and with
prior calculation and design, cause the death of another * * *.” “No
bright-line test exists that ‘emphatically distinguishes between the
19
presence or absence of ‘prior calculation and design.’ Instead, each
case turns on the particular facts and evidence presented at trial.’”
State v. Maxwell, 139 Ohio St.3d 12, 9 N.E.3d 930, 2014–Ohio–
1019 quoting State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d 82
(1997). “The apparent intention of the General Assembly in
employing [the phrase ‘prior calculation and design’] was to
require more than the few moments of deliberation permitted in
common law interpretations of the former murder statute, and to
require a scheme designed to implement the calculated decision to
kill. Thus, instantaneous deliberation is not sufficient to constitute
‘prior calculation and design.’” State v. Cotton, 56 Ohio St.2d 8, 10
O.O.3d 4, 381 N.E.2d 190 (1978).
In State v. Jenkins, 48 Ohio App.2d at 102, 2 O.O.3d at 75, 355
N.E.2d at 828, the court of appeals found three factors important in
determining whether prior calculation and design exists: (1) Did
the accused and victim know each other, and if so, was that
relationship strained? (2) Did the accused give thought or
preparation to choosing the murder weapon or murder site? and (3)
Was the act drawn out or ‘an almost instantaneous eruption of
events’?” Taylor at 19.
In contrast, Ohio courts have, at times, upheld findings of prior
calculation and design in short, explosive situations. Id. For
example, in State v. Robbins, 58 Ohio St.2d 74, 12 O.O.3d 84, 388
N.E.2d 755 (1979), appellant-defendant and decedent were
drinking at appellant’s apartment when appellant asked decedent to
go pick up some food. Id. at 74. When decedent returned after
using appellant’s money to buy just alcohol, an argument ensued.
Id. at 75. Appellant-defendant struck decedent, went back into his
apartment and retrieved a sword from under his bed. Appellantdefendant went outside his apartment and stabbed the decedent. Id.
The Ohio Supreme Court stated that the evidence established: “ * *
* that appellant used extreme aggression against a helpless victim,
then leaving the victim in the hallway and returning to his
apartment to secure the weapon which he used to stab the victim to
death instants later.” Id. at 78–9. The Court found the evidence to
be sufficient to support the jury’s finding of prior calculation and
design. Id. at 79.
A different scenario is presented in State v. Davis, 8 Ohio App.3d
205, 8 OBR 276, 456 N.E.2d 1256 (1982), the Eighth District
Court of Appeals overturned a jury’s conviction of aggravated
murder on the basis that the facts did not support the finding of
prior calculation and design. In Davis, the appellant-defendant was
refused entry into a bar because he did not have his identification.
20
Id. at 206. The bar doorman and appellant-defendant got into a
verbal argument. Id. The bar owner and another patron joined in
the confrontation and it evolved into physical confrontation. Id.
Appellant-defendant fired three shots from a gun he had in his
pocket at the time, injuring the doorman and causing the death of
the bar owner. Id. The Court concluded:
We agree with defendant’s contention that the evidence does not
support a finding that defendant killed the owner of the bar with
prior calculation and design. Defendant did not go to the bar with
the intent of shooting either of these two men. Rather, defendant
went to the bar “to have a good time” but was refused admittance.
After defendant demanded entrance, verbal threats grew into a
physical confrontation between defendant and the three persons
within the bar. Defendant did not reach for his gun in his pocket
until he was outnumbered and getting the worse of their treatment.
No evidence was presented which demonstrated a previous
strained relationship between defendant and the doorman or the bar
owner. The mere fact that defendant was carrying a gun on this
occasion but was not carrying a gun on some earlier visit to a
different bar is not sufficient to demonstrate a prior calculation and
design to kill someone at this bar. Id. at 207.
. . . It is certain that Hively had prior history with Addis, Knepper
and Aaron Addis. Hively admitted to having slapped Knepper
before and discussed with Agent Trout that he suspected the boys
of being involved with past thefts on his property. It is also clear,
that Hively intended to have a confrontation, at the very least
verbally, with the three men when he turned his car around and
headed back their way. Knepper and Aaron Addis both testified
that Hively showed his gun to the boys at the beginning of the
incident. Knepper makes reference to the gun in the beginning of
the cell phone video.
The cell phone video captures various moments where Hively
would be in the face of Addis or Knepper and even a moment
when the confrontation seemed to deescalate. The second half of
the video though shows Hively had returned to his car. Now,
something was in his right hand behind his back. Hively raised and
showed his empty left hand while Knepper continued to tell Hively
to show him the gun. Apparently, Hively was holding his gun
behind his back at that point. Hively and Addis look at each other
and have the following conversation:
Hively: “What was you going for?”
21
Addis: “What?”
Hively: “Dick sucker, what was you going for?”
Knepper’s recording turns back towards the church, causing
Hively and Addis to be out of view for about two seconds. The
audio of the video recording captures two gunshots. Knepper
directs the camera back and reveals Hively standing over Addis,
still pointing a gun at him as he lays on the ground writhing in
pain. Hively fires another shot at Addis. The coroner who
performed the autopsy testified that Addis had been shot four
times.
In the interview with Agent Trout, Hively stated that he was not
going to back down and that he wanted to whip Addis. A history
existed between the parties involved in this confrontation. Hively
wanted, at the very least, a verbal confrontation with Addis,
Knepper, and Aaron Addis. Although the interaction was heated at
times, no spontaneous eruption of events occurred until Hively
pulled his gun from behind his back and shot Addis twice. Then
after Addis lay on the ground, Hively shoots Addis at least two
more times. The jury duly charged with deciding this case found
that Hively acted with the required prior calculation and design.
Considering these facts, we do not find that the jury clearly lost its
way in convicting Hively of Aggravated Murder. Additionally we
do not find that the evidence “weighs heavily against the
conviction.” Davis, 2013–Ohio–1504, at ¶ 15. Therefore, the
second assignment of error is overruled.
State v. Hively, 2015 WL 3745609, at *7–8. 3
3
Judge Harsha issued a dissenting opinion, as follows:
HARSHA, J., dissenting.
I conclude the jury lost its way when it found the state had proved the element of prior calculation
and design beyond a reasonable doubt. The record reveals that a “plan” to murder Addis did not
develop until the confrontation escalated. Although Hively may have been willing to kill Addis
prior to shooting him, there is little concrete evidence that Hively had already decided to murder
one of the three men when he stopped at the church. Rather, the confrontation was a chance
occurrence, not at a location Hively chose. It occurred during broad daylight, in front of two
witnesses, who Hively supposedly believed were involved in the theft that sparked the incident,
yet they remained unharmed. Hively knew one of the witnesses had a cell phone and thought he
was taking pictures. And the decedent and one of the eyewitnesses were aggressively confronting
Hively.
Based upon this evidence I conclude the jury lost its way and created a manifest miscarriage of
justice when it failed to find Hively not guilty of aggravated murder, but guilty of murder.
State v. Hively, 2015 WL 3745609, at *10.
22
A claim of insufficient evidence states a claim under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307
(1979). In order for a conviction to be constitutionally sound, every element of the crime must
have been proven beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.... This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); see also
State v. Jenks, 61 Ohio St.3d 259 (1991) (applying rule).
Of course, it is state law that
determines the elements of an offense. Once the state has adopted the elements of the offense,
the state must then prove each of those elements beyond a reasonable doubt. In re Winship, 397
U.S. at 364.
Moreover, AEDPA requires two levels of deference to state decisions addressing a claim
of sufficiency of the evidence: one to the trier of fact’s verdict under Jackson v. Virginia, and a
second to the appellate court’s consideration of that verdict. Tucker v. Palmer, 541 F.3d 652 (6th
Cir. 2008).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, “it is the responsibility
of the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury’s verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury.”
Cavazos v. Smith, 565 U.S. 1, ––––, 132 S.Ct. 2, 181 L.Ed.2d 311,
313 (2011) (per curiam). And second, on habeas review, “a federal
court may not overturn a state court decision rejecting a sufficiency
of the evidence challenge simply because the federal court
23
disagrees with the state court. The federal court instead may do so
only if the state court decision was ‘objectively unreasonable.’”
Ibid. (quoting Renico v. Lett, 559 U.S. ––––, ––––, 130 S.Ct. 1855,
176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam); see also Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009).
Here, the state appellate court carefully analyzed the evidence both supporting and
undermining the conclusion that Petitioner acted with the required prior calculation and design.
In the final analysis, the court noted: the history between the parties; Petitioner’s desire to have a
confrontation with the victim; at times, throughout the confrontation, the situation deescalated;
“no spontaneous eruption of events occurred until Petitioner pulled his gun from behind his back
and shot Addis twice”; and “after Addis lay on the ground, [Petitioner shot] Addis at least two
more times.” State v. Hively, 2015 WL 3745609, at *8. Based on all of this, the court found that
“the jury [had not] clearly lost its way in convicting [Petitioner] of Aggravated Murder.” Id.
Applying the double deference this Court must, the state appellate court did not err.
2. Claim Five
In claim five, Petitioner asserts that he was denied a fair trial because the trial court
refused to issue a jury instruction on the “castle doctrine” supporting his claim of self-defense.
The state appellate court rejected this claim, reasoning in relevant part:
Hively argues that the trial court erred when it denied his request
for a castle doctrine jury instruction. Hively contends that his
statements provide sufficient evidence to warrant the castle
doctrine jury instruction. Hively states that after he was shoved
back into his car and kicked in the face, he reached for his handgun
that was in the car to repel the attack. Hively argues that sufficient
evidence was provided to show that he was an occupant of his own
vehicle, entitling him to the instruction regarding the castle
doctrine. Hively contends that the trial court’s denial of his request
prejudiced him by “saddling him with a duty to retreat that Ohio
24
law has eliminated for a person lawfully occupying his own motor
vehicle.”
A trial court generally has broad discretion in deciding how to
fashion jury instructions. State v. Hamilton, 4th Dist. Scioto No.
09CA3330, 2011–Ohio–2783, ¶ 69. However, “a trial court must
fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.” State v. Comen, 50 Ohio
St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.
“Additionally, a trial court may not omit a requested instruction, if
such instruction is ‘a correct, pertinent statement of the law and [is]
appropriate to the facts * * *.’” [Alteration sic.] Hamilton at ¶ 69,
quoting Smith v. Redecker, 4th Dist. Athens No. 08CA33, 2010–
Ohio–505, ¶ 51, in turn quoting State v. Lessin, 67 Ohio St.3d 487,
493, 620 N.E.2d 72 (1993).
“‘In determining whether to give a requested jury instruction, a
trial court may inquire into the sufficiency of the evidence to
support the requested instruction.’” Hamilton at ¶ 70, quoting
Redecker at ¶ 52; see also Lessin at 494. Therefore, a trial court is
vested with discretion “to determine whether the evidence is
sufficient to require a jury instruction * * *.” State v. Mitts, 81
Ohio St.3d 223, 228, 690 N.E.2d 522 (1998); see also State v.
Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443 (1989), paragraph two
of the syllabus. “‘If, however, the evidence does not warrant an
instruction a trial court is not obligated to give the requested
instruction.’” Hamilton at ¶ 70, quoting Redecker at ¶ 52. Thus,
“‘we must determine whether the trial court abused its discretion
by finding that the evidence was insufficient to support the
requested charge.’” Id. The term abuse of discretion implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
To establish a claim of self-defense, a defendant generally must
show by a preponderance of the evidence that (1) he or she was not
at fault in creating the situation giving rise to the event, (2) he or
she had reasonable grounds to believe and an honest belief that he
or she was in imminent danger of death or great bodily harm and
that the only means of escape from such danger was by the use of
force, and (3) he or she did not violate any duty to retreat or avoid
the danger. State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013–
Ohio–42, ¶ 17.
Here, Hively requested the jury instruction pursuant to R.C.
2901.05(B)(1). This instruction, also referred to as the “Castle
25
Doctrine,” relieves the defendant’s burden to prove the foregoing
three elements. “Under R.C. 2901.05(B), a defendant is rebuttably
presumed to have acted in self-defense ‘when using defensive
force that is intended or likely to cause death or great bodily harm
to another if the person against whom the defensive force is used is
in the process of unlawfully and without privilege to do so
entering, or has unlawfully and without privilege to do so entered,
the residence or vehicle occupied by the person using the defensive
force.’”
State v. Bundy, 4th Dist. Pike No. 11CA818, 2012–Ohio–3934, ¶
38.
This rebuttable presumption means that the defendant no longer
carries the initial burden to produce evidence that (1) the defendant
was not at fault in creating the violent situation, (2) the defendant
had a bona fide belief that she was in imminent danger of death or
great bodily harm and that her only means of escape was the use of
force, and (3) that the defendant did not violate any duty to retreat
or avoid the danger. Instead, the rebuttable presumption, by
definition, presumes the existence of these facts. Id.
For the presumption to apply, a defendant must establish that (1)
the person against whom the defendant used defensive force was in
the process of unlawfully entering, or had unlawfully entered, the
residence or vehicle that the defendant occupied, (2) the defendant
was in the vehicle lawfully, and (3) the victim did not have a right
to be in the vehicle. If the presumption applies, the state may rebut
it. R.C. 2901.05(B)(3); State v. Wilson, 8th Dist. No. 97350, 2012–
Ohio–1952, 2012 WL 1567202, ¶ 43 (construing complementary
statute, R.C. 2901.09(B), the no-duty-to-retreat statute); State v.
Petrone, 5th Dist. No.2011CA67, 2012–Ohio–911, ¶ 73
(recognizing that state may rebut presumption by showing that
defendant was at fault and did not have a bona fide belief that
defendant was in imminent danger and that the only means of
escape was use of force).
The trial court denied Hively’s request for the Castle Doctrine jury
instruction stating: “Although the defendant was originally in his
vehicle when he pulled up to the scene, he then exited the vehicle.
Furthermore there is no evidence that the victim tried to enter the
vehicle at any time, much less while the defendant was in the
vehicle. However, the Court is going to give an instruction on self
defense as agreed upon by the parties.”
26
R.C. 2901.05(B)(1) contemplates a scenario of a home or car
invasion. State v. Nye, 3rd Dist. Seneca No. 13–13–05, 2013–
Ohio–3783, 997 N.E.2d 552, ¶ 29. The rebuttable presumption in
R.C. 2901.05(B)(1) does not apply when the person using
defensive force in not occupying his/her vehicle. State v. Miller,
12th Dist. Warren No. CA2009–10–138, 2010–Ohio–3821, ¶ 38;
Patrone, 2012–Ohio–911 at ¶ 73.
Here, the altercation and shooting took place outside Hively’s
vehicle. Moments before the shooting it is clear that Hively was
standing beside his vehicle’s open door, with Addis approximately
a few feet away. All the spent shell casings were found outside
Hively’s vehicle. There is no doubt that Knepper and Addis were
threatening and taunting Hively throughout this altercation.
However, while it remains Hively’s story that he was shoved back
into his car, no other evidence supports the conclusion that
Knepper or Addis attempted to enter Hively’s vehicle. Therefore,
we cannot find that the trial court abused its discretion when it
denied Hively’s request for the R.C. 2901.05 instruction.
Accordingly, Hively’s first assignment of error is overruled.
State v. Hively, 2015 WL 3745609, at *5–7.
“[A]lleged errors in jury instructions are generally considered matters of state law and are
not cognizable in federal habeas review.” Bushner v. Larose, No. 5:14-cv-00385, 2017 WL
1199160, at *10 (N.D. Ohio Mar. 31, 2017) (citing Sutton v. Lazaroff, No. 3:13-cv-2304, 2015
WL 5178022, at *16 (N.D. Ohio Sept. 4, 2015).
Alleged errors in jury instructions normally do not rise to the level
of federal constitutional violations. See Engle v. Isaac, 456 U.S.
107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486
(6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th
Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). When
the evidence presented does not support a requested jury
instruction and that determination is based upon a state court’s
interpretation and application of state law, an asserted error
relating to the jury instruction is not cognizable in federal habeas
corpus unless the failure amounted to a fundamental miscarriage of
justice. See Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990).
Waller v. Tibbals, No. 3:15-cv-310, 2016 WL 3906234, at *10 (S.D. Ohio July 19, 2016)
(concluding that Petitioner’s claim regarding the trial court’s failure to issue a castle doctrine
27
jury instruction is not cognizable in federal habeas corpus proceedings). (Petitioner has failed to
establish that the state appellate court contravened or unreasonably applied clearly established
federal law as determined by the United States Supreme Court, or based its decision on an
unreasonable determination of the facts in light of the evidence presented so as to warrant relief.
28 U.S.C. 2254(d).) Put simply, this claim involves the application of state law and does not
provide a basis for relief. See id.
IV.
RECOMMENDED DISPOSITION
Therefore, the Magistrate Judge RECOMMENDS that the Petition be DENIED, and
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 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).
28
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: February 5, 2018
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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