Young v. Warden Warren Correctional Institution

Filing 10

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 10/18/2013. Signed by Magistrate Judge Michael R Merz on 9/30/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RODNEY T. YOUNG,
:
Petitioner,

Case No. 3:13-cv-044
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsWARDEN, Warren Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS
This is habeas corpus case brought pro se by Petitioner Rodney T. Young to obtain relief
from his convictions in the Montgomery County Common Pleas Court on charges of murder,
felonious assault, carrying a concealed weapon, illegal possession of a firearm in a liquor permit
establishment, having weapons under disability, and firearms specifications (Petition, Doc. No.
1, ¶ 5, PageID 1).
Young pleads the following grounds for relief:
Ground One: Petitioner was denied the effective assistance of
counsel on appeal.
Supporting facts: Appellate counsel failed to raise ineffectiveness
of trial counsel, thus denying petitioner his rights to the 6th and 14th
Amendments of the U.S. Constitution, and failed to challenge the
sufficiency of the State’s evidence, and failed to challenge the
erroneous jury instruction, and failed to raise issue regarding
suppression of purported eyewitness identification.
Ground 2: Petitioner was denied effective assistance of his trial
counsel.

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Supporting facts: Trial counsel called on a witness without first
interviewing him, and by calling this witness, trial counsel
prejudiced the defense as this witness appeared not credible due to
his conflicting testimony. Also, trial counsel failed when he did not
present to the jury that there was no intent or purpose to cause
harm to those who was struck by gunfire that was inadvertent.
(Petition, Doc. No. 1, PageID 5-6.) On the Court’s Order, the Warden has filed the state court
record (Doc. No. 5) and a Return of Writ (Doc. No. 6). With the filing of Young’s Reply (Doc.
No. 9), the case is ripe for decision.

Procedural History

Young was indicted by the Montgomery County Grand Jury on eighteen felony counts
arising from a shooting which occurred inside a bar in Dayton on December 12, 2008. Young
was convicted on all counts and sentenced to eighty-nine years to life. On direct appeal he raised
two assignments of error:
1. The trial court committed reversible error in sentencing
appellant individually for allied crimes of similar import that
should have been merged at sentencing.
2. The trial court erred in sentencing separately for one firearm
specification on murder, proximate cause and for six firearm
specifications on felonious assault.

(Appellant’s Brief, Doc. No. 5-1, PageID 130). The Second District sustained part of the first
assignment of error and all of the second assignment; it remanded the case for resentencing.
State v. Young, 2011 Ohio 747, 2011 Ohio App. LEXIS 646 (2nd Dist. Feb. 18, 2011). Young
took no appeal to the Ohio Supreme Court. He also filed no direct appeal from his re-sentencing
in the Common Pleas Court. However, in May 2011 he filed an Application to reopen his direct

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appeal under Ohio R. App. P. 26(B). The Second District denied that Application on January 4,
2012. State v. Young, Case No. 23642 (2nd Dist. Jan. 4, 2012)(unreported; copy at Doc. No. 5,
PageID 1372 et seq.) It noted that the omitted assignments of error which Young believed
should have been raised were (1) ineffective assistance of trial counsel for calling Gary Sumlin
as a witness without first interviewing him, (2) legal insufficiency of the evidence, (3) failure to
challenge the jury instruction on mens rea, and (4) the trial court’s refusal to suppress
identification.

Id., PageID 1372-1375.

The Ohio Supreme Court declined to review that

decision. Id. at PageID 1403.

Ground One: Ineffective Assistance of Appellate Counsel

In his First Ground for Relief, Young claims he received ineffective assistance of
appellate counsel when his appellate attorney failed to raise four assignments of error. Young
presented these claims to the Second District Court of Appeals in his Application to Reopen
under Ohio R. App. P. 26(B). That court decided the claims on the merits, holding:
When seeking to reopen a direct appeal, a defendant “bears the
burden of establishing that there [is] a ‘genuine issue’ as to
whether he has a ‘colorable claim’ of ineffective assistance of
counsel on appeal.” State v. Hughbanks, 101 Ohio St.3d 52, 2004Ohio-6, quoting State v. Spivey, 84 Ohio St.3d 24, 25, 1998-Ohio704.4
In his application, Young first contends his appellate counsel
provided ineffective assistance by failing to argue ineffective
assistance of trial counsel. In particular, Young claims his trial
counsel provided ineffective assistance by calling defense witness
Gary Sumlin to testify without having interviewed him. The
record reflects that Sumlin testified as an eyewitness to a shooting
that occurred inside a bar. On direct examination, Sumlin
identified someone other than Young as the shooter. On crossexamination, however, Sumlin admitted having told police that he
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did not see who fired the gun and, alternatively, that two different
people had done the shooting. In rebuttal, the State called a
detective who testified that Sumlin told him Young was the only
shooter.
Young argues that his trial counsel provided ineffective assistance
by calling Sumlin as a witness without first interviewing him to
find out what he would say. Young asserts that Sumlin’s testimony
lacked credibility and harmed his defense. As a result, he contends
his appellate counsel provided ineffective assistance by failing to
raise defense counsel’s deficient representation as an issue on
appeal.
Upon review, we see no grounds for reopening the appeal based on
defense counsel calling Sumlin as a witness. The record reflects
that defense counsel had arranged a pre-trial interview with
Sumlin, who failed to keep the appointment. The record further
indicates that Young himself wanted Sumlin to testify despite the
lack of an interview with defense counsel. We note, too, that
defense counsel attempted to defuse Sumlin’s credibility problem
by allowing him to explain his multiple stories to the police.
Finally, the record reflects that other defense witnesses testified
that Young did not shoot a gun inside the bar. Given that the jury
disbelieved these witnesses, we see no likelihood that the outcome
would have been different if Sumlin had not testified.
Young also alleges ineffective assistance of appellate counsel
based on counsel’s failure to challenge the legal sufficiency of the
State’s evidence. This argument concerns Young’s felonious
assault convictions for shooting and wounding three victims. In
support of his argument, Young notes that the victims did not
testify at trial. Therefore, he reasons that the State failed to provide
legally sufficient evidence to support the felonious assault
convictions. As the state properly notes, however, other witnesses
testified about Young firing a gun inside the bar and about the
wounds suffered by the victims. Testimony from the victims
themselves was not required for the State to obtain convictions.
Young next alleges ineffective assistance of appellate counsel
based on counsel’s failure to challenge the jury instructions.
Specifically, Young contends the jury instructions misstated the
culpable mental state for murder as “knowingly” rather than
“purposefully.” This argument lacks merit. Young was convicted
of felony murder under R.C. 2903.02(B), not purposeful murder
under R.C. 2903.02(A). Therefore, the trial court was not required
to instruct the jury about a “purposeful” mental state.
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Finally, in his motion for leave to amend his application for
reopening, Young seeks to add a claim of ineffective assistance of
appellate counsel “for failure to raise suppression of
identification.” Young contends he was identified in photo arrays
only because his face had been “placed all over the news for
months on top of months[.]” This argument lacks any potential
merit, however, because police began showing witnesses photo
spreads the morning after the shooting, not months later.
State v. Young, Case No. 23642 (2nd Dist. Jan. 4, 2012)(unreported; copy at Doc. No. 5, PageID
1372-75).
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). In deciding Young’s claim
of ineffective assistance of appellate counsel, the Second District applied Ohio cases which
embody the federal standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).
Young has failed to show that the Second District’s decision was an objectively unreasonable
application of Strickland.
Young argues first that it was ineffective assistance of trial counsel to fail to interview
Sumlin before trial and ineffective assistance of appellate counsel to fail to make this an
assignment of error on appeal. As the Second District found, Sumlin was an eyewitness to the
shooting and his testimony on direct examination was that Young was not the shooter. On cross,
the prosecutor was able to get Sumlin to admit conflicting prior statements. Sumlin’s consequent
lack of credibility is alleged to have hurt the defense. However, as the Second District pointed
out, trial counsel had arranged an interview with Sumlin who failed to keep the appointment. In
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addition, Young wanted Sumlin to testify and defense counsel was successful in getting Sumlin
to explain his different stories, albeit not convincingly (PageID 1373-1374).
There was no ineffective assistance of trial counsel here. A defense attorney can hardly
be blamed for calling an eyewitness requested by his client who testifies the client was not the
shooter. Young has in any event failed to demonstrate prejudice: there is no evidence that, if
Sumlin had shown for the scheduled interview, that defense counsel would have been able to
elicit from him the conflicting testimony he eventually gave. Without knowing in advance how
successful the prosecutor would be on cross, any defense counsel who failed to call Sumlin
would have been ineffective.
Young makes no other arguments in his Reply which attempt to show the Second
District’s decision was an objectively unreasonable application of Strickland. In fact, he does
not address any of the other omitted assignments of error (See Reply, Doc. No. 9, PageID 27382740).
The First Ground for Relief is without merit and should be dismissed with prejudice.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Young reiterates his claim regarding the calling of Gary
Sumlin as a witness for the defense. He also alleges trial counsel was ineffective when he did
not argue to the jury that there was no intent to harm those struck by the gunfire.
The Warden asserts Ground Two is procedurally defaulted because it was never
presented to the Ohio courts. Young makes no response to this defense in his Reply and it is
well-taken. A federal habeas petitioner cannot obtain a ruling on the merits of a constitutional

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claim which he has completely failed to present to the state courts.

Failure to raise a

constitutional issue at all on direct appeal is subject to the cause and prejudice standard of
Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied,
474 U.S. 831 (1985). Failure to present an issue to the state supreme court on discretionary
review constitutes procedural default.

O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999)(citations omitted). “Even if the state court failed to reject a claim on a procedural ground,
the petitioner is also in procedural default ‘by failing to raise a claim in state court, and pursue
that claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d 423,
437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006), quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 846-47 (1999).
Alternatively, Ground Two is without merit. The first sub-claim relating to calling Gary
Sumlin as a defense witness is dealt with under Ground One. The second sub-claim is also dealt
with inferentially by the Second District’s decision on the 26(B) Application where it held it was
not ineffective assistance of appellate counsel to fail to object to the jury instruction which told
the jury that the required mental state was that Young acted knowingly rather than purposefully.
As the court noted, Young was convicted of felony murder – murder as the result of committing
another felony, in this case, felonious assault – in violation of Ohio Revised Code § 2903.02(B),
which does not require that the offender have acted purposefully.
Young comments in his Reply regarding this Ground for Relief that “many courts appear
to be ignoring the meaning of insufficiency of evidence. In Petitioner’s case, there isno real
evidence proving Petitioner was the shooter.” (Reply, Doc. No. 9, PageID 2740.) On direct
appeal, the court of appeals found the evidence showed that Young fired “multiple gunshots

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inside a bar. The shots struck six people, killing one of them.” State v. Young, 2011 Ohio 747, ¶
40, 2011 Ohio App. LEXIS 646 (2nd Dist. Feb. 18, 2011). Federal habeas courts are bound by
findings of fact of the state courts unless the petitioner demonstrates by clear and convincing
evidence that the factual conclusion is unreasonable, which Young has not done.
The Second Ground for Relief should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous.

September 30, 2013.
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(d), this period is 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)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
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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).

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