Hively v. Warden Marion Correctional Institution

Filing 14

OPINION AND ORDER adopting Report and Recommendations re 10 Report and Recommendations.. Signed by Judge James L. Graham on 3/26/2018. (ds)(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.

OPINION AND ORDER
On February 5, 2018, the Magistrate Judge issued a Report and Recommendation
recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
denied and that this action be dismissed. (ECF No. 10.) Petitioner has filed an Objection to the
Magistrate Judge’s Report and Recommendation. (ECF No. 13.) Pursuant to 28 U.S.C. §
636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s
Objection (ECF No. 13) is OVERRULED. The Report and Recommendation (ECF No. 10) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner’s request for a certificate of appealability is DENIED.
Petitioner is serving an aggregate term of incarceration of thirty-three years on his
convictions after a jury trial in the Gallia County Court of Common Pleas on aggravated murder
with a firearm specification and tampering with evidence. The Ohio Fourth District Court of
Appeals affirmed Petitioner’s convictions and sentence, State v. Hively, No. 13CA15, 2015 WL
3745609 (Ohio App. 4th Dist. June 8, 2015), and the Ohio Supreme Court declined to accept
jurisdiction of the appeal.

State v. Hively, 143 Ohio St.3d 1501 (2015).

Petitioner

unsuccessfully pursued an application to reopen the appeal pursuant to Ohio Appellate Rule

26(B). He now asserts that he was denied the effective assistance of trial counsel (claim one);
that he was denied a fair trial because 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 for murder
and aggravated murder (claim three); that the evidence is constitutionally insufficient to sustain
his conviction on aggravated murder and that this conviction was against the manifest weight of
the evidence (claim four); and that he was denied a fair trial because the trial court refused to
give a “castle doctrine” jury instruction (claim five).

The Magistrate Judge recommended

dismissal of Petitioner’s claims as being procedurally defaulted or without merit.
Petitioner filed timely objections to the recommendations of the Magistrate Judge. He
again argues that he has properly preserved his claims for review. Petitioner complains that the
Magistrate Judge did not address his claim of the denial of the effective assistance of appellate
counsel so as to make a determination of whether he stablished cause for his procedural defaults.
Petitioner again argues that he has presented meritorious claims for relief. He raises all of the
same arguments he previously presented. He maintains that this case constitutes a manifest
miscarriage of justice.
Upon careful review of the entire record, the Court finds Petitioner’s objections to be
unpersuasive. Petitioner waived claims one (ineffective assistance of trial counsel), two (failure
to grant a change of venue) and three (the allegedly inconsistent jury verdict of guilty of
aggravated murder but not guilty of murder) by failing to raise these issues on direct appeal. He
also waived claim two, in which he asserts that he was denied a fair trial because the trial court
refused to grant a change of venue, because he failed to request a change of venue at the time of
trial. The appellate court noted in Rule 26(B) proceedings that the issue therefore would be
considered for plain error only. See Entry Denying Application to Reopen Direct Appeal (ECF

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No. 6-1, PageID# 221-23.) 1 In addition to being procedurally defaulted, Petitioner’s third claim
that his murder conviction must be overturned as inconsistent with the jury’s verdict of not guilty
on the lesser included offense of murder does not provide him a basis for relief:
“[I]nconsistent verdicts are generally held not to be reviewable.”
United States v. Lawrence, 555 F.3d 254, 262 (6th Cir.2009). As
the Supreme Court has made clear, “[t]he fact that [verdict]
inconsistency may be the result of lenity, coupled with the
Government's inability to invoke review, suggests that inconsistent
verdicts should not be reviewable.” United States v. Powell, 469
U.S. 57, 66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Rather, “a
defendant's protection against an inconsistent verdict lies in an
independent review of the sufficiency of the evidence.” United
States v. Ruiz, 386 Fed.Appx. 530, 533 (6th Cir.2010); see also
Powell, 469 U.S. at 67, 105 S.Ct. 471 (“[A] criminal defendant
already is afforded protection against jury irrationality or error by
the independent review of the sufficiency of the evidence
undertaken by the trial and appellate courts.”).
United States v. Stetler, 526 F. App’x 631, 635 (6th Cir. 2013); see also Jones v. Lazaroff, No.
16-3044, 2017 WL 3122015, at *2-3 (6th Cir. 2017).
The ineffective assistance of trial counsel cannot constitute cause for this procedural
default, because Petitioner never presented this same claim to the state courts. Edwards v.
Carpenter, 529 U.S. 446, 452 (2000) (An ineffective assistance of counsel claim generally must
be presented to the state courts before it may be used to establish cause for a procedural default)
(quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)).
Petitioner likewise has failed to establish the alleged ineffective assistance of appellate
counsel as cause for the procedural default of his claim of the ineffective assistance of trial
counsel. In considering Petitioner’s Rule 26(B) motion, the state appellate court thoroughly
analyzed Petitioner’s claim of ineffective assistance of appellate counsel. See Entry Denying

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The appellate court also indicated that the record did not support Petitioner’s allegation that the jury was biased or
that pre-trial publicity prevented him from obtaining a fair trial. Entry Denying Application to Reopen Direct
Appeal (ECF No. 6-1, PageID# 221-23.)

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Application to Reopen Direct Appeal (ECF No. 6-1, PageID# 218-220, 224-28.) That court
explained its conclusion that appellate counsel was not ineffective in failing to raise allegations
of ineffective assistance of trial counsel on appeal, including: (1) trial counsel’s failure to show a
photograph of petitioner’s injuries to the jury (noting that the prosecution introduced such a
photograph at trial); (2) trial counsel’s failure to introduce prior police reports concerning
petitioner and the victim and his two companions (noting that the jury heard the tape recording of
petitioner’s interview with police concerning petitioner’s prior history with the three men); (3)
trial counsel’s failure to introduce the report of the state fire marshal concerning arsons on
petitioner’s property committed by the victim’s family and friends following petitioner’s arrest
(noting that defense counsel was aware of this evidence and opposed the prosecution’s motion in
limine, which was granted by the trial court, and that it was not shown how this later evidence
was relevant to the murder charge); and (4) that trial counsel was ineffective in failing to object
to the inconsistent verdict of not guilty of murder after the jury returned a verdict of guilty of
aggravated murder (noting on plain error review that because the alleged inconsistency did not
warrant vacating the aggravated murder verdict under Ohio law, appellate counsel was not
ineffective in failing to raise this issue).
The Magistrate Judge reviewed de novo the state appellate court’s analysis of Petitioner’s
ineffective assistance of appellate counsel claim and agreed with the conclusion of that court that
Petitioner cannot satisfy the standards for ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). (ECF No. 10, pp. 14-15). This Court has conducted its own
de novo review of the record and the state appellate court’s analysis. The Court agrees with the
analysis of the state appellate court, and concludes that there is no evidence in the record
sufficient to establish under Strickland that appellate counsel was ineffective or that Petitioner

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was prejudiced by appellate counsel’s failure to raise on appeal the alleged ineffective assistance
of trial counsel. Petitioner cannot excuse his procedural default based on ineffective assistance
of appellate counsel. The Court also agrees with the conclusion of the Magistrate Judge that
Petitioner has not satisfied the standards for avoiding the procedural bar through a claim of
actual innocence. See ECF No. 10, pp. 15-16.
Petitioner’s remaining claims were addressed by the Magistrate Judge on the merits. This
Court agrees with the conclusions of the Magistrate Judge that petitioner’s claims that his
convictions are against the manifest weight of the evidence and that he was denied a fair trial
based on the trial court’s failure to issue “castle doctrine” jury instructions do not provide him a
basis for federal habeas corpus relief. See Williams v. Jenkins, No. 1:15cv00567, 2016 WL
2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258 F. App’x 761, 765, n. 4
(6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9,
2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)) (“Whether
a conviction is against the manifest weight of the evidence is purely a question of Ohio law.”);
see also Waller v. Tibbals, No. 3:15-cv-310, 2016 WL 3906234, at *10 (S.D. Ohio July 19,
2016) (failure to issue a castle doctrine jury instruction is not cognizable in federal habeas corpus
proceedings). For the reasons indicated in the decision of the state appellate court, this Court is
not persuaded that the appellate court contravened or unreasonably applied Jackson v. Virginia,
443 U.S. 307 (1979), or based its decision on an unreasonable determination of the facts, in
denying his claim of insufficiency of the evidence. 28 U.S.C. § 2254(d); Tucker v. Palmer, 541
F.3d 652 (6th Cir. 2008) (Jackson claims are subject to two layers of deference in § 2254
proceedings).

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For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 13) is OVERRULED.
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 further.’ ” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been
denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes
that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id.
This Court is not persuaded that reasonable jurists would debate the dismissal of
Petitioner’s claims as procedurally defaulted or without merit. Therefore, Petitioner’s request for
a certificate of appealability is DENIED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in
good faith, and that an application to proceed in forma pauperis on appeal should be DENIED.

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The Clerk is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.
Date: March 26, 2018
_____s/James L. Graham____
JAMES L. GRAHAM
United States District Judge

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