Bray v. Warden Lebanon Correctional Institution

Filing 4

REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus filed by Micah Bray that Petitioner be dismissed with prejudice. The Court should deny Petitioner a certificate of appealability and should certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 10/15/2012. Signed by Magistrate Judge Michael R Merz on 9/28/2012. (gh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

MICAH BRAY,
:
Petitioner,

Case No. 3:12-cv-303
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsWARDEN, Lebanon Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS
Petitioner Micah Bray brought this habeas corpus action pro se under 28 U.S.C. § 2254 to
obtain relief from his conviction in the Clark County Common Pleas Court on counts of possessing
a weapon under disability, illegal possession of a firearm in a liquor permit premises, carrying a
concealed weapon, and tampering with evidence. Bray pled guilty to having weapons under
disability, was convicted by a jury on the remaining counts, and sentenced to fourteen years
imprisonment. The jury acquitted Bray on charges of murder, attempted murder, and felonious
assault.
The case is before the Court for initial review pursuant to Rule 4 of the Rules Governing §
2254 Cases which provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.
1

Petitioner pleads the following grounds for relief:
Ground One: Insufficient evidence – 5th and 14th Amendments
Supporting Facts: None of the Statutory Requirements for
Tampering with Evidence were proven, much less proven beyond a
reasonable doubt. No evidence was adduced that the Petitioner had
in his possession or disposed of the gun after the altercation, which
violates Due Process under the 5th and 14th Amendments of the
U.S. Constitution.
Ground Two: Allied offenses punished by maximum consecutive
sentences violating 5th Amendment Double Jeopardy and Due
Process Clauses.
Supporting facts: The imposition, as in this case, of Maximum
Consecutive Sentences for the violation of multiple Statutes, by a
single action violates the Double Jeopardy Clause of the 5th
Amendment, and results in a violation of Due Process under the 5th
and 14th Amendments.
Ground Three: Ineffective Assistance of counsel, 5th, 6th, 14th
Amendments.
Supporting facts: Counsel gave the Petitioner erroneous legal
advice to enter a guilty plea to a charge before Trial that he was not
guilty of and would not have entered such a plea had it not been for
that advice, violating the 6th Amendment right to Effective
Counsel, which violates the 5th and 14th Amendment Fair Trial and
Due Process Clauses.
Ground Four: Defective indictment 5th and 14th Amendments
Supporting facts: The Grand Jury Indictment did not contain the
Jury Foreperson's signature in all appropriate places, and as such,
did not comport with all Statutory Regulations. This violates Due
Process under the 5th and 14th Amendments.
Ground Five: When law changes, making action no longer
criminal, Petitioner should benefit. 5th and 14th Amendments.
Supporting facts: During pendency of Appeal, the law changed
concerning Possession of a Firearm in a Liquor Permit Premises,
2

2923.121, a charge for which this Petitioner received a 3-year
sentence, making it legal to possess a firearm in such an
establishment. The Court of Appeals would not grant relief,
violating the Petitioner’s rights under the 5th and 14th Amendments.
Ground Six:
sentence.

Erroneous evidentiary rulings in imposition of

Supporting facts: The Court, in imposing maximum consecutive
sentences, relied on facts which were found to be false by the Jury,
and nonexistent [sic]. The use of these improper enhancement
factors violate [sic] Due Process under the 5th and 14th
Amendments.
(Amended Petition, Doc. No. 3, PageID 20-26.)
Petitioner was convicted December 22, 2009, and sentenced January 10, 2010. Id. ¶¶ 2a,
2b. He appealed to the Clark County Court of Appeals which affirmed the conviction and sentence.
State v. Bray, 2011-Ohio-4660, 2011 Ohio App. LEXIS 3857 (Ohio App. 2nd Dist. Sept. 16, 2011).
The Ohio Supreme Court declined to take jurisdiction over a subsequent appeal. State v. Bray,
131 Ohio St. 3d 1539 (2012).
Petitioner advises the Court that all six of his claims are exhausted by having been raised
on direct appeal. He further notes that he has not filed any other collateral attacks on the
judgment besides the instant Amended Petition.

Analysis

Ground One: Insufficient Proof of Tampering with Evidence

In his First Ground for Relief, Mr. Bray asserts he was convicted of tampering with

3

evidence insufficient proof. This was part of his first assignment of error on direct appeal. The
court of appeals decided this claim as follows:
Bray argues that because no firearm was ever recovered from
himself, Lewis, nor Upshaw, his conviction for tampering with
evidence is not supported by sufficient evidence. Bray testified that
after the shooting, he retrieved two live .38 caliber shells from the
area where the struggle occurred. Bray further testified that he could
not locate the handgun after it discharged during the struggle, nor
did he remove it from the scene. Bray contends that the only
evidence of tampering is the absence of the handgun from the scene
of the shooting.
R.C. 2921.12(A)(1) describes the offense of tampering with
evidence as follows:
"(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
"(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation ***."
In State v. Spears, 178 Ohio App.3d 580, 2008 Ohio 5181, 899
N.E.2d 188, we held that because there was no properly admissible
evidence to support the inference that the defendant tampered with
evidence by disposing of the gun, his conviction for tampering with
evidence was based on insufficient evidence, and therefore, contrary
to law. In the instant case, Bray's conviction for tampering with
evidence was supported by sufficient evidence, in addition to the
mere absence of the handgun from the scene of the shooting.
Howard testified that after going outside after he had been shot, he
heard two gunshots fired by an individual he believed to be Bray.
Richard Howard, another member of the club testified that he
encountered Bray outside after the shooting carrying a "balled up
shirt" with both hands, the inference being that Bray had wrapped
up the handgun in the shirt. Moreover, Bray testified that he
removed two live .38 caliber shells from the scene which were in his
handgun before the struggle with Lewis began. Accordingly,
sufficient evidence was adduced at trial which supported Bray's
conviction for tampering with evidence.
State v. Bray, supra, ¶¶40-44.
4

When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
An allegation that a verdict was entered upon 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 re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved 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 v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991). Of course,
it is state law which determines the elements of offenses; but once the state has adopted the
elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
5

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier of
fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. 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 disagrees with
the state court. The federal court instead may do so only if the state
6

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. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
The court of appeals applied the following standard to this claim: “In reviewing a claim of
insufficient evidence, the relevant inquiry is whether, after reviewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Bray, supra at ¶ 39, citing State v. Britton,
181 Ohio App.3d 415 (Ohio App. 2nd Dist. 2009). That is clearly the correct standard to apply
under Jackson v. Virginia.
Although Bray denied removing the handgun from the scene, he admitted to the jury that
he had removed two live rounds of .38 caliber ammunition which had been in his gun prior to his
firing it. The ammunition was potential evidence if it matched the round or rounds which hit the
victim. Bray admitted removing it from the scene. While he apparently did not admit that his
purpose in doing so was to make it unavailable as evidence, it is the rare case in which a defendant
admits his criminal purpose; such purposes must almost always be inferred from the
circumstances. The fact that Bray eventually admitted removing the ammunition did not make
him retroactively not guilty. Although there was evidence which supports the inference that Bray
also removed the gun, that was not necessary for conviction of tampering as tampering with the
ammunition was sufficient.
The court of appeals’ decision was not an objectively unreasonable application of Jackson
v. Virginia. Ground One should therefore be dismissed with prejudice.

7

Ground Two: Double Jeopardy

In his Second Ground for Relief, Bray contends his receiving maximum consecutive
sentences for the violation of multiple statutes by a single act violates the Double Jeopardy Clause.
In that court of appeals, he did not plead this claim as a double jeopardy violation, but rather as a
violation of Ohio’s allied offense statute, Ohio Revised Code § 2941.25. This Court cannot
reexamine the state court’s decision of state law questions.
As noted in the court of appeals’ opinion, however, Ohio Revised Code § 2941.25 was
adopted to protect double jeopardy rights and Petitioner’s Double Jeopardy claim is preserved by
his allied offenses claim in the state courts.
The Double Jeopardy Clause of the United States Constitution affords a defendant three basic
protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165(1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the
States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
The test for whether two offenses constitute the same offense for Double Jeopardy purposes
is “whether each offense contains an element not contained in the other.” United States v. Dixon,
509 U.S. 688 (1993); Blockburger v. United States, 284 U.S. 299 (1932). Where two offenses are
the same for Blockburger purposes, multiple punishments can be imposed if the legislature clearly
intended to do so. Albernaz v. United States, 450 U.S. 333, 344 (1981); Missouri v. Hunter, 459

8

U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); and Garrett v. United States,
471 U.S. 773, 779 (1985).
Each of the weapons offenses of which Bray was convicted contains at least one element not
present in the others. Having a weapon under disability requires proof of having the weapon plus
the prior felony conviction or other disabling event. Carrying a concealed weapon requires proof
of possession of the weapon, but also that it was concealed. The liquor permit premises charge
requires proof of possession of a weapon plus the element of having it inside a liquor permit
premises. Since there is a separate require element for each of these offenses, conviction on all
three does not violate the Double Jeopardy Clause. While the court of appeals did not directly
consider any double jeopardy argument because none was made, its final decision is neither
contrary to nor an objectively unreasonable application of Blockburger or Dixon.

Ground Three: Ineffective Assistance of Counsel

In his Third Ground for Relief, Bray claims he received ineffective assistance of trial counsel
when his attorney advised him to plead no contest to the weapons under disability claim. The
court of appeals considered this is the fifth assignment of error and decided it as follows:
In his final assignment, Bray argues that he was afforded ineffective
assistance when his counsel advised him to plead no contest to the
charge of having a weapon while under disability.
"We review the alleged instances of ineffective assistance of trial
counsel under the two prong analysis set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
and adopted by the Supreme Court of Ohio in State v. Bradley
(1989), 42 Ohio St.3d 136, 538 N.E.2d 373, * * * . Pursuant to those
cases, trial counsel is entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance.
9

Strickland, 466 U.S. at 688. To reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness
and that his errors were serious enough to create a reasonable
probability that, but for the errors, the result of the trial would have
been different. Id. Hindsight is not permitted to distort the
assessment of what was reasonable in light of counsel's perspective
at the time, and a debatable decision concerning trial strategy cannot
form the basis of a finding of ineffective assistance of counsel."
(Internal citation omitted). State v. Mitchell, Montgomery App. No.
21957, 2008 Ohio 493, ¶ 31.
An appellant is not deprived of effective assistance of counsel when
counsel chooses, for strategic reasons, not to pursue every possible
trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319, 528
N.E.2d 523. The test for a claim of ineffective assistance of counsel
is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674. A
reviewing court may not second-guess decisions of counsel which
can be considered matters of trial strategy. State v. Smith (1985), 17
Ohio St.3d 98, 17 Ohio B. 219, 477 N.E.2d 1128. Debatable
strategic and tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it looks as if a
better strategy had been available. State v. Cook (1992), 65 Ohio
St.3d 516, 524, 605 N.E.2d 70.
In the instant case, the crux of Bray's argument regarding his claim
for ineffective assistance revolves around the tactical decision made
by his counsel prior to trial when he advised Bray to plead no
contest to the weapons under disability charge. Tactical decisions
and trial strategy cannot form the basis of a claim for ineffective
assistance. We note that had Bray allowed the weapon under
disability charge to go to trial, the fact of Bray's prior conviction
which formed the basis of the disability charge would have been
admissible at trial. It is not unreasonable to conclude that Bray's
counsel advised him to plead in order to keep the prior conviction
from the jury. Bray has failed to establish that he was prejudiced by
his counsel's advice. "Reviewing courts must indulge in a strong
presumption that counsel's conduct was not improper, and reject
post-trial scrutiny of an act or omission that was a matter of trial
tactics merely because it failed to avoid a conviction." State v. Reid,
Montgomery App. No. 23409, 2010 Ohio 1686.
Bray's final assignment of error is overruled.
10

State v. Bray, supra., ¶¶ 57-61.
The decision to forego a jury trial on a weapons under disability claim which is linked to
much more serious charges it not in any way unusual or a questionable tactic. Proving the
disability usually means allowing the jury to hear about a prior conviction, perhaps more than one.
It is well known that this makes it difficult rhetorically for a defendant to retain with a jury the
presumption of innocence to which he is entitled. The court of appeals’ decision is not an
objectively unreasonable application of Strickland v. Washington. The Third Ground for Relief
should therefore be dismissed with prejudice.

Fourth Ground for Relief: Defective Indictment

In his Fourth Ground for Relief, Bray asserts his indictment was not signed in all the
appropriate places by the grand jury foreperson in violation of Ohio statutory requirements. The
court of appeals expressly found that the indictment was signed as required under Ohio law and
this Court cannot reexamine that decision, which is purely a matter of state law. Petitioner’s
Fourth Ground for Relief does not state claim cognizable in habeas corpus because the United
States Constitution does not require indictment by a grand jury for prosecution of felony offenses.
Hurtado v. California, 110 U.S. 516 (1884); Branzburg v. Hayes,408 U.S. 665, 687-88 n. 25
(1972); Gerstein v. Pugh, 420 U.S. 103 (1975). The Fourth Ground for Relief should therefore be
dismissed with prejudice.

11

Ground Five: Change in the Law

Bray claims that while his case was pending on appeal, Ohio changed the law and began to
permit carrying a weapon inside a liquor permit premises. Therefore, he argues, the conduct for
which he received a three-year sentence is no longer criminal.
While Bray claims the court of appeals would not grant relief on this basis, his claim for relief
on this ground is not reflected in the court of appeals’ opinion. The most recent amendment to
Ohio Revised Code § 2923.121 became effective September 30, 2011. So far as the Court can tell
from examining the statute, it did not make legal any conduct for which Petitioner was convicted.
But even if it had, state legislatures are not constitutionally required to give repealing statutes
retroactive effect so as to require the release from prison those person whose behavior was
criminal when it was committed.
The Fifth Ground for Relief is without merit and should be dismissed with prejudice.

Ground Six: Erroneous Evidentiary Rulings in Sentencing

In his Sixth Ground for Relief, Petitioner asserts the trial court made findings of fact contrary
to what the jury had decided. The Petition does not state what facts the trial judge found that were
somehow contrary to the jury’s findings. Typically, juries do not make findings of fact unless
specifically required to do so. Here the jury returned general verdicts of not guilty of murder,
attempted murder, and felonious assault, apparently accepting Bray’s defense of self-defense.
The court of appeals dealt with this claim in part of its decision of the second assignment of
error. It held that the trial judge was not required to make any explicit findings of fact in imposing
12

sentence after the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio St. 3d 1 (2006). It
expressly found that all of the sentences imposed on Bray were within the statutory maxima for the
offenses of which he was convicted and that, given his extensive prior criminal record, the
sentence was not an abuse of discretion. The United States Constitution does not require any
explicit findings before imposing maximum or consecutive sentences. See Oregon v. Ice, 555
U.S. 160 (2009). Petitioner’s Sixth Ground for Relief is without merit and should therefore be
dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petitioner herein be
dismissed with prejudice. Because reasonable jurists would not disagree, the Court should deny
Petitioner a certificate of appealability and should certify to the Sixth Circuit that any appeal would
be objectively frivolous and should not be permitted to proceed in forma pauperis.
September 28, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
13

shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

14