Parson v. Warden, Lebanon Correctional Institution

Filing 2

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 C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/22/2014. Signed by Magistrate Judge Michael R Merz on 12/3/2014. (kpf1)(This document has been sent by the Clerks Office 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
WESTERN DIVISION AT DAYTON
TYREE S. PARSON,
Petitioner,

:

- vs -

Case No. 3:14-cv-414
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

ERNIE MOORE, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part: “[i]f 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.”
Parson avers that he was convicted in the Montgomery County Common Pleas of murder
and having weapons under disability (Petition, Doc. No. 1, PageID 4, ¶ 5).1 Parson appealed to
the Second District Court of Appeals which affirmed his conviction. State v. Parson, 2013Ohio-1069, 2013 Ohio App. LEXIS 946 (2nd Dist. Mar. 22, 2013). Parson failed to file a timely
appeal and the Ohio Supreme Court denied his motion for leave to file a delayed appeal. State v.
Parson, 137 Ohio St. 3d 1421 (2013).
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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.)” The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.

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Parson then timely filed the instant habeas corpus petition, pleading two grounds for
relief:
Ground One: Insufficiency of evidence. Evidence presented did
not support the charged indictment.
Ground Two: Verdict of Murder was clearly against the manifest
weight of the evidence.

(Petition, Doc. No. 1-1, PageID 8, 10.) In lieu of any statement of supporting facts as called for
by the required § 2254 petition form, Parson says he “will submit Brief/Memorandum in Support
upon receipt of court record and transcripts.” Id.

ANALYSIS

Procedural Default

The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
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(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
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. 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.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
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Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In this case, Parson procedurally defaulted on both of the claims made in the Petition
when he failed to file a timely direct appeal to the Ohio Supreme Court. Ohio has an applicable
procedural rule: appeals from the Ohio intermediate appellate courts to the Supreme Court of
Ohio must be filed within forty-five days of final judgment in the court of appeals. The fortyfive day time limit on appeal to Ohio Supreme Court prescribed by S. Ct. Prac. R. 7.01(A)(1) is
an adequate and independent state ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th
Cir. 2004)(citations omitted).

Lack of counsel at that stage, lack of a trial transcript,

unfamiliarity with the English language, and short time for legal research in prison do not
establish cause to excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S. 478, 494-95
(1986). Where a state court is entirely silent as to its reasons for denying requested relief, as
when the Ohio Supreme Court denies leave to file a delayed appeal by form entry as it did here,
the federal courts assume that the state court would have enforced any applicable procedural bar.
Bonilla, 370 F.3d at 497, citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
Accordingly, Parson’s claims are barred by his procedural default in not timely appealing
to the Supreme Court of Ohio. On this basis, the Petition should be dismissed with prejudice. In
the alternative to this procedural default analysis above, the Magistrate Judge also offers the
following merits analysis.

Ground One: Insufficient Evidence

In his First Ground for Relief, Parson claims he was convicted on insufficient evidence.
An allegation that a verdict was entered upon insufficient evidence states a claim under the Due

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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, 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 (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 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
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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 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).
Judge Hall, writing for the Second District Court of Appeals, found the following facts
had been testified to at trial:
[*P3] The present appeal stems from the fatal shooting of Dequan
Smith. The shooting occurred outside of a Dayton-area apartment
on the night of August 13, 2011. Just before the shooting, Joanna
Glover and Jerome Bogle were sitting in a parked car near the
apartment waiting to pick up Smith and Danny Parson, the
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appellant's cousin. When Danny Parson reached the car, he
attempted to open the rear door. Smith also approached the car
with the appellant following him on foot. A short time earlier,
Smith and the appellant had been overheard arguing.
[*P4] Glover testified at trial that while she was talking to Bogle
she heard gunfire and felt a bullet strike the parked car. (Trial Tr.
at 497). She looked up and saw the appellant holding a chrome
semi-automatic handgun by his side. (Id. at 497-499). Glover did
not actually see the appellant shoot Smith because she was not
looking, but she did not see anyone else present with a gun. (Id. at
513-514). According to Glover, Smith got into the back seat and
announced that he had been "hit." (Id. at 502). Bogle and Glover
proceeded to drive to the hospital, but Smith died on the way. (Id.
at 505).
[*P5] Bogle also testified at trial. He recalled sitting and talking
to Glover as Danny Parson and Smith walked up to his car. (Id. at
752, 755). According to Bogle, the appellant then came around a
corner and fired a shot that struck Smith. (Id. at 755-757, 761-762).
On cross examination, Bogle stated that he was looking at Smith
and did not see a "flash" from the gun. (Id. at 784, 787).
[*P6] The State also presented testimony from Danny Parson. He
testified that he heard a shot as he and Smith were trying to get into
Bogle's car. (Id. at 620-621). Parson turned and saw Smith holding
his side. (Id. at 622). Parson also saw the appellant walking away
from the front of Bogle's car immediately after the shot. (Id. at
624). The appellant was only ten to twelve feet away at the time.
(Id. at 708). Parson did not see the appellant pull or shoot a gun.
(Id. at 623). Nor did he see the appellant holding a gun. (Id. at 731732).
[*P7] The appellant's former girlfriend, Sheila Elam, testified
about speaking to the appellant on the telephone after the shooting.
When she asked him what had happened, the appellant responded
"that he had shot and killed somebody." (Id. at 459). According to
Elam, the appellant told her he was "laying low." (Id. at 459).
Police apprehended the appellant in September 2011 after
receiving a tip concerning his whereabouts.

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State v. Parson, 2013-Ohio-1069, 2013 Ohio App. LEXIS 946 (2nd Dist. Mar. 22, 2013).
[*P9] In his first two assignments of error, the appellant argues
that his murder conviction is based on legally insufficient evidence
and is against the manifest weight of the evidence. In support, he
contends no one actually saw him shoot Smith and no one testified
that he shot Smith. As a result, he reasons that the murder
conviction cannot stand.
[*P10] When a defendant challenges the sufficiency of the
evidence, he is arguing that the State presented inadequate
evidence on an element of the offense to sustain the verdict as a
matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741
N.E.2d 594 (2d Dist.2000). "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." State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus.
[*P11] Our analysis is different when reviewing a manifestweight argument. When a conviction is challenged on appeal as
being against the weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact "clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered." State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997 Ohio 52, 678 N.E.2d
541. A judgment should be reversed as being against the manifest

weight of the evidence "only in the exceptional case in which
the evidence weighs heavily against the conviction." State v.
Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d
717 (1st Dist.1983).

[*P12] With the foregoing standards in mind, we conclude that
the appellant's murder conviction is supported by legally sufficient
evidence and is not against the weight of the evidence. Although
Glover did not see the appellant shoot Smith, she looked up
immediately after hearing the shot and saw the appellant standing
nearby holding a handgun by his side. Glover did not see anyone
else present with a gun. As for Bogle, he did testify that the
appellant shot Smith.[FN 1 In his brief, the appellant claims Bogle
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admitted that did [sic] not see anyone shoot Smith. The appellant
cites testimony from page 761 of the trial transcript in support.
(Appellant’s brief at 4). We don’t interpret that testimony so
narrowly. Moreover, at page 784, Bogle said, “He [Smith] turned
around, and faced him [the defendant], and boom, there it was.” A
similar statement appears on page 785.] Based on Bogle's crossexamination testimony, however, it is not explicitly clear whether
he actually saw the shot or whether he inferred that the appellant
was the shooter. As set forth above, Bogle acknowledged that he
was looking at Smith and did not see any gunfire "flash" (which he
presumably would have if he had been looking at the appellant
because the shooting occurred at night). Finally, Danny Parson
testified that he saw the appellant walking away from the front of
Bogle's car immediately after the shot.
Id.
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. 86, 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).
Based on the facts as found by the Second District, its conclusion is neither contrary to
nor an objectively unreasonable application of Jackson v. Virginia. The court applied Ohio
precedent – State v. Jenks -- that embodies the federal standard and reasonably applied that
standard to the facts it found. We are therefore bound under the AEDPA to defer to that
decision. The First Ground for Relief is therefore without merit.

Ground Two: Manifest Weight of the Evidence

In his Second Ground for Relief, Parson claims his conviction is against the manifest
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weight of the evidence. Ohio appellants often combine these two claims on appeal, as Parson did
here. However, the manifest weight claims does not state a claim under the United States
Constitution: there is no constitutional prohibition against convictions against the manifest
weight of the evidence. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (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).

A weight of the evidence claim is not a federal constitutional claim. Johnson v.

Havener, 534 F.2d 1232 (6th Cir. 1986). Therefore 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 and therefore should not be permitted to
proceed in forma pauperis.

December 3, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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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
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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