Cunningham v. Warden Lebanon Correctional Institution

Filing 8

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 10/7/2013. Signed by Magistrate Judge Michael R Merz on 9/18/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHARLES CUNNINGHAM,
Petitioner,

:
:

Case No. 3:13-cv-129

:

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-vs:
ERNIE MOORE, Warden,
Lebanon Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Charles Cunningham brought action pursuant to 28 U.S.C. ' 2254 for a writ of
habeas corpus; Petitioner seeks release from confinement imposed as part of the judgment of a
State court in a criminal action. Upon initial review under Rule 4 of the Rules Governing § 2254
cases, the Magistrate Judge ordered Respondent to answer the Petition and Respondent did so on
August 16, 2013 (Doc. Nos. 6, 7). In the Order for Answer, the Court set a date for Petitioner to
file a reply of 21 days after the Answer was filed. That time expired on September 9, 2013, but
no reply has been filed as of the date of this Report.
Cunningham pleads the following Grounds for Relief:
Ground One: Ineffective assistance of counsel in violation of the
5th, 6th, and 14th Amendments.
Supporting Facts: Counsel failed to object to replaying of the
911 tape, in violation of earlier Court ruling. Trial counsel did not
communicate with the Petitioner, preventing investigation of
known facts, and failed numerous other duties owed the Client, in
violation of the U.S. Constitution.
1

Ground Two: Insufficient Evidence in violation of the 5th and
14th Amendments.
Supporting Facts: Prior calculation was not proven. Petitioner
had no gunshot residue on his person to show he faired [sic] a
weapon. He even went to the hospital with the victim’s family.
No eyewitness testimony, except for another suspect, who testified
to avoid conviction himself. This violates the 5th and 14th
Amendments of the U.S. Constitution.
Ground Three: Ineffective Assistance of Appellate Counsel in
violation of the 5th, 6th, and 14th Amendments.
Supporting Facts:
Appellate Counsel rendered ineffective
assistance of appellate counsel by failing to raise specific challenge
to prior calculation and design, based on the Court’s own
statement. Also the allied offenses requiring merger. Also distinct
claims of ineffective assistance of trial counsel in violation of the
5th, 6th, and 14th Amendments.
Ground Four: Batson violation, in violation of the 5th and 14th
Amendments.
Supporting Facts: The State purposely challenged and removed
the only African-American juror in a Trial of an AfricanAmerican, which resulted in a Trial with an all-white jury, in
violation of the 5th and 14th Amendments of the U.S. Constitution.
Ground Five: Cumulative effect of all errors.
Fourteenth Amendments.

Fifth and

Supporting Facts: The combined effect of all constitutional
errors rendered the resulting conviction and sentence a violation of
Due Process and a Fair Trial under the 5th and 14th Amendments of
the U.S. Constitution.
Ground Six: Erroneous evidentiary rulings. Fifth and Fourteenth
Amendments.
Supporting Facts: The trial court improperly removed a juror
after the trial began, improperly denied a suppression motion, and
improperly allowed numerous voice mails, 911 tapes, and even
prior 911 calls, and denied a motion to dismiss counsel as
ineffective. These violations deprived this Petitioner of a fair trial
and the Due Process of law guaranteed under the 5th and 14th
Amendments of the U.S. Constitution.
2

(Petition, Doc. No. 1.)

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Cunningham asserts his trial attorney was ineffective in
various ways. Respondent asserts this Ground for Relief is procedurally defaulted because,
although it was raised in the court of appeals, Cunningham abandoned it when he appealed
further to the Ohio Supreme Court (Answer, Doc. No. 7, PageID 4382).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.), cert. denied sub nom, Eley v. Houk,
__ U.S. __, 131 S.Ct. 822 (2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
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 decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
3

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
In his Petition, Cunningham claims that he exhausted this claim (Doc. No. 1, PageID 7).
Cunningham’s Memorandum in Support of Jurisdiction in the Ohio Supreme Court is Exhibit 41
in the state court record (Doc. No. 6-1, beginning at PageID 361). The only Proposition of Law
about ineffective assistance of trial counsel relates to lack of questioning a juror “regarding
alleged disabilities.” Id. at PageID 362. 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). Cunningham’s First Ground for Relief should be dismissed with
prejudice as procedurally defaulted.

Ground Two: Insufficient Evidence

In his Second Ground for Relief, Cunningham asserts there was insufficient evidence to
convict him of various elements of the crimes of which he was convicted.
As to the sub-claim that there was insufficient evidence on the element of prior
calculation and design, Respondent urges that it is procedurally defaulted on the same basis as
the First Ground for Relief.

Upon examining Cunningham’s Memorandum in Support of

Jurisdiction, the Court finds that he stated a general proposition about insufficient evidence,
Proposition of Law 4, he makes no argument about the element of prior calculation and design.
This sub-claim is therefore procedurally defaulted because the claim that there was insufficient
evidence of prior calculation and design was not pursued before the Ohio Supreme Court.
Alternatively, the sub-claim is without merit as are the remaining portions of Ground
Two.

Because Cunningham’s habeas petition was filed after the effective date of the

4

Antiterrorism and Effective Death Penalty Act, he can succeed on any constitutional claim
actually decided by the state courts only if he can show that the decision was an objectively
unreasonable application of clearly established law set forth in holdings 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, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94
(2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848, 852
(6th Cir. 2012).

In a sufficiency of the evidence habeas corpus case, deference must be given

first to the trier-of-fact's verdict under Jackson v. Virginia, 443 U.S. 307 (1979), and then to the
appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541
F.3d 652, 656 (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 court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. [766], ___,
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 Second District Court of Appeals decided this claim on the merits as Cunningham’s
Fifth Assignment of Error. It wrote:
[*P77] Fifth Assignment of Error:
[*P78]

"CUNNINGHAM'S

CONVICTIONS
5

WERE

NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND THE
MANIFEST WEIGHT OF THE EVIDENCE DOES NOT
SUPPORT
CUNNINGHAM'S
CONVICTIONS."
[*P79] A sufficiency of the evidence argument challenges whether
the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or to sustain the verdict
as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
1997 Ohio 52, 678 N.E.2d 541 (1997). The proper test to apply to
such an inquiry is the one set forth in paragraph two of the syllabus
of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991):
An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond
a reasonable doubt. The relevant inquiry is whether, after
viewing 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.

[*P80] [Omitted – deals with claim of manifest weight of the
evidence, which is not a federal constitutional claim.]
[*P81] Defendant was convicted of one count of aggravated
murder in violation of R.C. 2903.01(A), two counts of felonious
assault in violation of R.C. 2903.11(A)(2), two counts of murder in
violation of R.C. 2903.02(A), two counts of felony murder in
violation of R.C. 2903.02(B) and 2903.11(A)(2), two counts of
having weapons while under disability in violation of R.C.
2923.13(A)(3), and one count of tampering with evidence in
violation of R.C. 2921.12(A)(1). We will briefly summarize the
elements the State needed to prove beyond a reasonable doubt in
order to secure convictions on the counts set forth in the
indictment.
[*P82] R.C. 2903.01(A) provides: No person shall purposely, and
with prior calculation and design, cause the death of another or the
unlawful
termination
of
another's
pregnancy."
[*P83] R.C. 2903.02(A) provides: No person shall purposely cause
the death of another or the unlawful termination of another's
pregnancy."
6

[*P84] R.C. 2903.11(A)(2) provides: No person shall knowingly
do either of the following: (2) Cause or attempt to cause physical
harm to another or to another's unborn by means of a deadly
weapon or dangerous ordnance."
[*P85] R.C. 2903.02(B) provides: No person shall cause the death
of another as a proximate result of the offender's committing or
attempting to commit an offense of violence that is a felony of the
first or second degree and that is not a violation of section 2903.03
or 2903.04 of the Revised Code."
[*P86] R.C. 2923.13 provides, in part:
(A) Unless relieved from disability as provided in section
2923.14 of the Revised Code, no person shall knowingly
acquire, have, carry, or use any firearm or dangerous
ordnance, if any of the following apply:

*

*

*

(3) The person is under indictment for or has been convicted
of any felony offense involving the illegal possession, use,
sale, administration, distribution, or trafficking in any drug of
abuse or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult,
would have been a felony offense involving the illegal
possession, use, sale, administration, distribution, or
trafficking in any drug of abuse.

[*P87] R.C. 2921.12(A)(1) provides:
(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 * * *.

[*P88] A review of the evidence at trial establishes that the State
presented evidence adequate to permit any rational trier of fact to
find that the essential elements of the crimes proven beyond a
7

reasonable doubt. Robinson was in the car with Defendant on the
night of the murders. (Id. at 2572-2573.) Robinson testified that
Defendant followed Serna and Shook and then blocked Shook's
vehicle with Defendant's SUV. (Id. at 2570, 2669.) After
Defendant cut them off with his SUV, Defendant got out of his
vehicle in a rage. (Id. at 2571.) Robinson witnessed Defendant
punch Serna in the stomach and then shoot Serna and Shook. (Id.
at 2572-73.) Defendant then pointed the gun at Robinson and told
him to "get the hell out of here." (Id. at 2572-73.) As Robinson
drove away in Defendant's SUV, he noticed Defendant approach
Carson on the sidewalk and walk off with him. (Id. at 2573-2574.)
[*P89] Carson corroborated Robinson's testimony by testifying
that he got out of Shook's vehicle and started walking when he
heard gunshots and a scream. (Id. at 2674.) He turned around and
saw Shook coming through the two trucks towards her driver's side
seat. Then he heard more gunshots and saw Shook fall face first on
the pavement. (Id. at 2674-76.) Carson then saw Defendant coming
through the trucks and it looked like Defendant was stuffing
something in the back of his pants. (Id. at 2676-2678.) At that
point, Defendant then told Carson to walk with him and they
proceeded to walk towards the south end of Springfield. (Id. at
2678.) While they were walking, Defendant told Carson, "You
didn't see anything. Don't say anything." (Id. at 2679.)
[*P90] The surveillance video from near the scene of the crimes
was played for Carson while he was on the witness stand at trial.
He identified himself and Defendant on the video walking. (Id. at
2681-82.) Carson testified that they were walking side by side
because he was not sure if Defendant would shoot again. (Id. at
2683-84.)
[*P91] Further, the jurors heard the 911 call that Shook placed
around the time of the murders. On the 911 tape, the jury could
hear a woman screaming for help and saying, "Get off of her." (Id.
at 1652.) Amy Morris and Keisha Serna were able to identify the
voices on the 911 call. (Id. at 2372-75; 2968-2972.) They stated
that Shook was the one calling 911 dispatchers, and they both
identified Serna in the background screaming repeatedly for
Defendant to stop. (Id. at 2372-2375, 2972.) They also identified
Defendant as the person on the 911 call who said, "I'm not playing
man." (Id. at 2373, 2375, 2972.) The gunshots themselves can be
heard on the 911 tape. No one at trial identified Robinson's voice
on the 911 call.

8

[*P92] Donna Rose, a forensic scientist in the Trace Unit at the
Bureau of Criminal Identification and Investigation, stated that she
examined two samples from Defendant and was able to detect a
particle that was highly indicative of gunshot residue on one of
Defendant's samples. (Id. at 2739-2745.) These samples were from
Defendant's right and left hands. (Id.) The samples were collected
by Detective Hicks on October 4, 2008 around 7:00 or 8:00 a.m.
while Cunningham was at Miami Valley Hospital with Serna's
family. (Id. at 2764-2765.)
[*P93] Further, several witnesses testified to threats that Defendant
made to Serna throughout the evening and early morning of
October 3rd and 4th, 2008. Caitlin Smith saw an altercation
between Defendant and Serna while she was standing outside of
G.Z. Petes. During the altercation, she heard Defendant threaten
Serna by saying, "Bitch, if I can't have my family, you can't have
anything." (Tr. 1725-1726.) At Burger King, Defendant argued
with Serna and Shook and hit Shook's vehicle. (Id. at 2568, 2665.)
The manager heard Defendant say he was going to "hurt 'em." (Id.
at 2482-2484.) Another Burger King employee, Robert Farmer,
heard Defendant say, "I'll kill everybody in the truck." (Id. at
2502.)
[*P94] Serna also made statements to Marcus Douthy the night of
the murders about Defendant, and she sounded panicked. She was
yelling and almost crying when she stated, "[Defendant's]
following me baby. he's following me, he's crazy, he's crazy * * *
." (Id. at 2440.) During this conversation, Douthy heard Shook in
the background saying, "What's he doing?", and then the phone
went dead. (Id. at 2443-2444.)
[*P95] Damon Burks, who resided with Defendant for a short
period of time around the time of the murders, testified that on the
morning of the shootings Defendant spoke with him on the
telephone. Defendant said, "I messed up, I messed up." (Id. at
2758.)
[*P96] Moreover, just two and one-half days before the murders,
Defendant left Serna a voicemail in which he said he wished he
could choke her and make her listen and pay attention to him. (Id.
at 2349-2355; 2369-2371.) Shortly before Serna and Shook were
killed, Defendant left Serna two voicemails in which he stated his
frustration that Serna would not answer his calls to her. (Id. at
2349-55; 2365-68.) Defendant called Serna's phone eleven times

9

between 2:17 a.m. and 2:46 a.m. the morning of the murders. (Id.
at 2895-2900.)
[*P97] Finally, a deputy clerk with the Clark County Common
Pleas Clerk of Courts stated that Defendant had two prior
convictions. (Id. at 2393-2395.) These convictions were for
aggravated assault and possession of crack. (Id. at 2394-2395.)
Officer Douglas Hobbs confirmed that the person he arrested for
the possession of crack charge was in fact Defendant. (Id. at 24012403.) The deputy clerk further testified that neither of the files
pertaining to the two convictions contained a court order relieving
Defendant from his disability to carry firearms. (Id. at 2397.)
[*P98] Based on a review of the testimony and evidence presented
at trial, and viewing the evidence in a light most favorable to the
prosecution, we conclude that any rational trier of fact could have
found the essential elements of the crimes proven beyond a
reasonable doubt.
[*P99] Further, the evidence summarized above is competent,
credible evidence of Defendant's guilt. Based on this record, we
cannot find that Defendant's convictions are against the manifest
weight of the evidence.
[*P100] Despite the overwhelming evidence of his guilt presented
at trial, Defendant argues that he should not have been convicted of
any of the offenses set forth in the indictment because the State
failed to prove, beyond a reasonable doubt, that Defendant shot
Serna and Shook and that he had possession of a gun to do so.
Defendant bases his argument on his own testimony that Robinson
committed the murders and that Robinson lacked credibility. The
credibility of the witnesses and the weight to be given to their
testimony are matters for the trier of facts to resolve. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
[*P101] In State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 Ohio App. LEXIS 3709, 1997 WL 476684, *4 (Aug. 22,
1997), we observed:
Because the factfinder * * * has the opportunity to see
and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence
requires that substantial deference be extended to the
factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of
10

particular witnesses is within the peculiar competence of
the factfinder, who has seen and heard the witness.

[*P102] This court will not substitute its judgment for that of the
trier of facts on the issue of witness credibility unless it is patently
apparent that the trier of facts lost its way in arriving at its verdict.
State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 Ohio
App. LEXIS 4873, 1997 WL 691510 (Oct. 24, 1997). Based on our
review of the record before us, we cannot find that the jury lost its
way in arriving at its verdict.
[*P103] Defendant also argues that even if he committed the
murders of Shook and Serna, "the State did not prove beyond a
reasonable doubt that those murders were conducted with prior
calculation and design. The jury acquitted Cunningham of the
aggravated murder of Shook — meaning they did not find that her
death was the result of prior calculation and design." In short,
Defendant appears to argue that the jury's not guilty verdict on the
count charging Defendant with aggravated murder of Shook is
inconsistent with the guilty verdict on the count charging
Defendant with aggravated murder of Serna. We do not agree.
[*P104] In State v. Hawkins, 2d Dist. Montgomery No. 21691,
2007 Ohio 2979, at ¶ 23-24, we wrote:
Courts in Ohio have held on numerous occasions that an
inconsistency in a verdict cannot arise from inconsistent
responses to different counts. State v. Brown (1984), 12
Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889, syllabus;
State v. Hayes, 166 Ohio App.3d 791, 2006 Ohio 2359,
853 N.E.2d 368, at ¶35. Instead, an inconsistency only
arises when a jury gives inconsistent responses to the
same count. State v. Washington (1998), 126 Ohio App.3d
264, 276, 710 N.E.2d 307. The Ohio Supreme Court has
explained that "each count in an indictment charges a
distinct offense and is independent of all other counts.
Following that reasoning, the court found that a jury's
decision as to one count is independent of and unaffected
by the jury's finding on another count." Id. See, also,
Browning v. State (1929), 120 Ohio St. 62, 7 Ohio Law
Abs. 140, 165 N.E.2d 566, paragraph three of the
syllabus.

Moreover, in the context of inconsistent verdicts of conviction and
11

acquittal, the United States Supreme Court has provided, "'The
most that can be said in such cases is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their
real conclusions, but that does not show that they were not
convinced of the defendant's guilt. We interpret the acquittal as no
more than their assumption of a power which they had no right to
exercise, but to which they were disposed through lenity.'" Dunn v.
United States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed.
356, quoting Steckler v. United States (C.A.2, 1925), 7 F.2d 59, 60.
In United States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83
L.Ed.2d 461, the Court reiterated its holding in Dunn, explaining
that inconsistencies between verdicts on separate counts do not
necessarily mean that a jury made a mistake. Even if an
inconsistency was found to be an error working against a
defendant, the Court stated that review is unwarranted, for "an
individualized assessment of the reason for the inconsistency
would be based either on pure speculation, or would require
inquiries into the jury's deliberations that courts generally will not
undertake." Id. at 66.

[*P105] The aggravated murders of Serna and Shook were set
forth in separate counts of the indictment. Further, it is not
necessarily inconsistent for a jury to find that Defendant had the
requisite, prior calculation and design in murdering Serna, who he
had threatened a number of times leading up to the morning of the
murder, while he did not have the prior calculation and design to
murder Shook. Therefore, we decline to find that a not guilty
finding on Count 5 of the indictment is inconsistent with or
precludes a finding of guilty on Count 1 of the indictment.
[*P106] The fifth assignment of error is overruled.
State v. Cunningham, 2012 Ohio 2794, 2012 Ohio App. LEXIS 2443 (2nd Dist. June 22, 2012).
In reaching its conclusion that there was sufficient evidence, the Second District applied
the same standard the Supreme Court adopted in Jackson v. Virginia, supra. Reviewing the
Second District’s decision under the deferential AEDPA standard, this Court agrees that there
was sufficient evidence presented to the jury to convict Cunningham of each of the crimes with
which he was charged. Ground Two should be dismissed with prejudice.

12

Ground Three: Ineffective Assistance of Appellate Counsel

In his Third Ground for Relief, Cunningham claims he received ineffective assistance of
appellate counsel in three respects:

(1) failing to raise a specific challenge to the prior

calculation and design element; (2) failure to raise claims that certain offenses required merger
under the Ohio multiple counts statute, Ohio Revised Code § 2941.25; (3) failure to raise “other
distinct claims of ineffective assistance of trial counsel.”
As Respondent points out, a habeas petitioner may only raise claims which he has
exhausted in the state courts. Cunningham raised ineffective assistance of appellate counsel
claims in the proper manner prescribed by Ohio law, to wit, by filing an application to reopen the
direct appeal under Ohio R. App. P. 26(B). The Second District Court of Appeals considered
this application on the merits, but rejected it. As with Cunningham’s insufficient evidence claim,
this Court must defer to the state court’s decision unless it was an objectively unreasonable
application of clearly established federal law.
In rejecting Cunningham’s 26(B) application on the merits, the Second District first noted
that the appropriate federal standard is provided by Strickland v. Washington, 466 U.S. 668
(1984). It found Cunningham’s first proposed assignment of error was without merit because
appellate counsel had raised a claim that there was insufficient evidence to prove prior
calculation and design. State v. Cunningham, Case No. 10-CA-57, PageID 456 (Ohio App. 2nd
Dist. Dec. 5, 2012)(unreported, copy at Doc. No. 6-1, PageID 454 et seq.)

It found

Cunningham’s second proposed assignment of error regarding the Double Jeopardy Clause was
without merit because the trial court had made appropriate mergers of offenses before
sentencing. Id. at PageID 457.

13

Regarding Cunningham’s claim that his appellate counsel failed to argue that it was error
for the trial court not to grant his request for new counsel, the Second District reviewed the
history of Cunningham’s relationship with counsel in the trial court and concluded the proposed
assignment would have been without merit so it was not ineffective assistance of appellate
counsel to fail to raise it. Id. at PageID 458-460.
The Second District applied the correct federal standard and Cunningham has not shown
that the application was in any way objectively unreasonable. The Third Ground for Relief is
without merit and should be dismissed with prejudice.

Ground Four: Batson Violation

In his Fourth Ground for Relief, Cunningham asserts that he was denied due process of
law and equal protection when the only African-American in the venire was excused by the
prosecution.
As Respondent points out, this claim was raised on direct appeal but was not pursued on
appeal to the Ohio Supreme Court. It is therefore procedurally defaulted on the same basis as
Ground One and should be dismissed with prejudice.

Ground Five: Cumulative Error

In his Fifth Ground for Relief, Cunningham asserts that the accumulation of all the
constitutional errors made at trial makes his conviction and sentence unconstitutional.
Federal habeas corpus is available only to correct federal constitutional violations. 28

14

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v.
Florida, 463 U.S. 939 (1983).

However, "post-AEDPA, not even constitutional errors that

would not individually support habeas relief can be cumulated to support habeas relief."
Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), quoting Hoffner v. Bradshaw, 622
F.3d 487, 513 (6th Cir. 2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). In
other words, constitutional errors which in themselves might be harmless error cannot be
accumulated to justify habeas relief.
Ground Five should be dismissed for failure to state a claim upon which habeas corpus
relief can be granted.

Ground Six: Improper Removal of a Juror and Evidentiary Rulings; Denial of Motion to
Suppress

In his Sixth Ground for Relief, Cunningham asserts the trial judge improperly removed a
juror after trial began, improperly denied his motion to suppress, and made a number of
prejudicial evidentiary rulings.
As to the removal of a juror claim, Respondent asserts this claim was never fairly
presented to the state courts as a federal constitutional claim (Answer, Doc. No. 7, PageID 438990). As Respondent notes, Cunningham argued this claim in the court of appeals solely as a
matter of state and repeated the same arguments when he was pro se before the Ohio Supreme
Court.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which provides them with an opportunity

15

to remedy the asserted constitutional violation, including presenting both the legal and factual
basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik,
986 F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other
grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792
(6th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process.
Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009). If a petitioner’s claims in federal habeas rest
on different theories than those presented to the state courts, they are procedurally defaulted.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425
(6th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d
594, 607, 619 (6th Cir. 2001)(“relatedness” of a claim will not save it). Because Cunningham did
not fairly present the juror removal claim as a federal constitutional claim in the Ohio courts, he
has procedurally defaulted that claim.
With respect to his motion to suppress claim, that claim was made in the state courts only
under the Fourth Amendment, whereas here Cunningham asserts violations of the Fifth and
Fourteenth Amendments. That subclaim is also procedurally defaulted.
Cunningham’s subclaim relating to admission of evidence, to the extent it claims
violations of Ohio evidence law, is not cognizable in federal habeas corpus. "[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). To the extent Cunningham is claiming that admission of the objected-to evidence denied
him a fair trial, he has procedurally defaulted that claim by abandoning it in his appeal to the
Ohio Supreme Court.

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With respect to the subclaim that counsel should have been dismissed as ineffective, the
Court finds that claim was found to be without merit by the Second District when Cunningham
pled it as an omitted assignment of error in his 26(B) application. For the reasons given above
with respect to the ineffective assistance of appellate counsel claim, the Second District’s
decision that the claim lacked merit is not an objectively unreasonable application of Strickland
v. Washington and its progeny.

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 18, 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
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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
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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