Opinion
5:21-CV-02015-CEF
04-25-2024
JONATHAN CLEVANT McGOWAN, Sr., Petitioner, v. WILLIAM COOL, WARDEN Respondent.
CHARLES ESQUE FLEMING, JUDGE.
REPORT & RECOMMENDATION
Jennifer Dowdell Armstrong, U.S. Magistrate Judge.
I. INTRODUCTION
Petitioner, Jonathan Clevant McGowan, Sr. (“Mr. McGowan”), seeks a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). Mr. McGowan is serving a sentence of 52 years after being convicted on (1) three first-degree felony counts of attempted murder with firearm and repeat violent offender specifications; (2) three second-degree counts of felonious assault with firearm and repeat violent offender specifications; (3) two third-degree felony counts of domestic violence; (4) one third-degree felony count of having weapons while under disability; (5) one third-degree felony count of discharge of a firearm on or near prohibited premises; (6) one fourth-degree felony count of improperly handling firearms in a motor vehicle; and (7) one first-degree misdemeanor count of endangering children.
Mr. McGowan asserts two grounds for relief. Respondent, Warden William Cool (“Warden”), filed an answer/return of writ on April 1, 2022. (ECF No. 9). Mr. McGowan filed a traverse on October 20, 2022. (ECF No. 11). This matter was referred to me on September 2, 2022 under Local Rule 72.2 to prepare a report and recommendation on Mr. McGowan's petition. (See ECF non-document entry dated September 2, 2022). For the reasons set forth below, I recommend that Mr. McGowan's petition be DENIED. I further recommend that the Court not grant Mr. McGowan a certificate of appealability.
II. RELEVANT FACTUAL BACKGROUND
For purposes of habeas corpus review of state court decisions, a state court's findings of fact are presumed correct and can be contravened only if the habeas petitioner shows, by clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio Court of Appeals for the Fifth Appellate District summarized the facts as follows:
{¶4} Thaddaeus Rosser, Lakisha McGowan's brother, testified, Lakisha and Appellant were married on February 23, 2010. Lakisha and Appellant had a son, Jonathan McGowan, Jr., together prior to their marriage. Rosser indicated, in January, 2018, Lakisha and Appellant were separated and were living apart. Lakisha was living on Evans Street in Akron, Ohio. Rosser planned to drive Lakisha and Jonathan, Jr. to South Carolina on Sunday, January 14, 2018, “[t]o get her to a safer place.” Trial Tr., Vol. II at 163. His sister had rented a U-Haul with a trailer in order to transport her SUV. They intended to depart Akron at 5 a.m. on January 14th, but overslept.
{¶5} Rosser, who was driving the U-Haul, proceeded south on Interstate 77. Jonathan, Jr. sat between Rosser and Lakisha on the cabin bench seat. As they approached the Hall of Fame Bridge, Rosser heard at least four loud “booms”. The driver's side window shattered after the first or first couple of booms, and subsequently the window completely broke. Rosser was unable to determine what other vehicles were on the highway at the time. Pieces of glass and mirror struck Rosser in the face and hand. Rosser heard Jonathan, Jr. screaming. Rosser maneuvered the U-Haul off the highway and pulled into a gas station.
{¶6} Rosser examined the U-Haul to determine what had occurred. He observed holes in the rear view mirror and the driver's side door. While Rosser was examining the vehicle, Lakisha called the police. Rosser did not receive medical attention. Paramedics tended to Jonathan, Jr., and he was subsequently transported to the hospital.
{¶7} On cross-examination, Rosser testified he advised Trooper Daley he had seen a red and silver pick-up truck travel past the U-Haul following the incident. Rosser acknowledged he did not see the individual who shot at them.
{¶8} Ohio State Highway Patrol Trooper Justin Daley was assigned to investigate the January 14, 2018 shooting incident on Interstate 77 South, near mile post 110. When he arrived at the Canton Post, he spoke with the responding officers. Trooper Daley briefly spoke with Rosser, Lakisha, and Jonathan, Jr., then examined the U-Haul. The trooper observed bullet holes in the driver's door area, the left rear view mirror, and inside the passenger compartment. After his initial view of the U-Haul, Trooper Daley interviewed Rosser and Lakisha. He returned to the vehicle, photographed it from all sides and began to process it. Trooper Daley determined four separate rounds hit the U-Haul and the transported vehicle. Specifically, one shot through the side mirror, one shot through the driver's side door, one shot through the driver's headrest, and one shot through the passenger compartment. A .380 caliber bullet was recovered from the cargo area, which was taken into evidence for testing.
{¶9} Trooper Daley learned Appellant had been arrested on unrelated charges and was being held in the Summit County Jail. The trooper interviewed Appellant there on January 17, 2018. Prior to commencing the interview, Trooper Daley informed Appellant he was not under arrest for the U-Haul shooting and was free to leave the interview at any time. Trooper Daley did not advise Appellant of his Miranda rights. Although an audiotape of the interview was played at the suppression hearing, the state did not play the audiotape at trial. Trooper Daley did not testify as to the substance of the interview, but merely stated he met with Appellant on January 17, 2018.
{¶10} As part of his investigation, Trooper Daley obtained and listened to recordings of phone calls to and from Appellant while he was in the Summit County Jail. Calls between Appellant and Adam McGowan (“McGowan”), his brother, as well as calls between Appellant and Angela Briere, his girlfriend at the time, were played for the jury. During his calls with Briere, Appellant made numerous references to sandwiches, such as the one he had eaten that morning, the fact he was hot because he had eaten too many sandwiches, and also whether Briere had disposed of the “moldy sandwich”. Trooper Daley explained the term “sandwich” is slang for firearm. The trooper also learned Briere, at Appellant's request, had given the gun Appellant used during the U-Haul shooting to McGowan. With this information, Trooper Daley obtained a warrant to search McGowan's residence.
{¶11} On January 29, 2018, law enforcement officers, including Trooper Daley, executed the search warrant at McGowan's apartment in Cuyahoga Falls, Ohio. Officers discovered a silver gray, hinged lid lockbox, containing a black Taurus .380 caliber handgun, a silver Phoenix Arms pistol, .380 caliber ammunition, and .22 caliber long rifle bullets. Trooper Daley personally delivered the Taurus handgun to the Ohio Bureau of Criminal Investigation (“BCI”).
{¶12} Adam McGowan testified Briere had delivered the lockbox containing the guns and ammunition to his apartment sometime in January, 2018. At the time, McGowan was unaware of the contents of the box. McGowan subsequently learned of the contents and informed Appellant he had thrown the black gun into the gorge. McGowan acknowledged he did not actually dispose of the gun, explaining after he
learned what Appellant had done, he wanted “nothing to do with this mess.” Tr. II at 318.
{¶13} Angela Briere testified, in January, 2018, she and Appellant were in a relationship, which began in mid-November, 2017. Briere was aware Appellant and his wife, Lakisha, were married, but separated, at the time. On January 13, 2018, Briere and Appellant were hanging out with one of Lakisha's brothers, Antonio Rosser, and his girlfriend, who is also the mother of his children. At the end of the evening, Briere, Appellant, and Rosser drove Rosser's girlfriend to Lakisha's daughter's house. A U-Haul truck with a trailer attached was parked in front of the house. Appellant became visibly upset and began to cry when he observed the U-Haul. Briere explained Appellant was upset because he knew Lakisha was leaving Ohio with their son.
{¶14} Briere and Appellant dropped off Rosser at Rosser and Lakisha's sister's house after midnight. Briere and Appellant drove around and returned to Appellant's residence sometime between 2 and 3 a.m. Briere went to sleep for approximately two hours. Appellant woke Briere around 5 a.m., stating he wanted to see if the U-Haul was still at Lakisha's daughter's house.
{¶15} Briere and Appellant entered a black 2017 Chevrolet Colorado, which Appellant was borrowing from his mechanic. Briere drove while Appellant sat in the passenger's seat. As Briere and Appellant traveled I-77 North toward Lakisha's daughter's house, Appellant observed the U-Haul and trailer traveling southbound on I-77. Appellant yelled at Briere to get off at the next exit and follow the U-Haul. She complied and eventually caught up with the U-Haul near Canton. After following the U-Haul for a short period of time, Appellant instructed Briere to get next to the vehicle so he could see who was driving. As Briere drove alongside the U-Haul, Appellant rolled down the passenger side window and fired five shots at the U-Haul. Briere recalled Appellant used a black handgun which he had removed from his waist. Briere immediately exited the highway, explaining she “began to panic”. She stopped at a gas station to take a break.
{¶16} Thereafter, Briere and Appellant proceeded to Appellant's friend Steve's house in Springfield Township, where they spent the majority of the day. Appellant contacted his mechanic in order to get back his car, a white Cavalier, and return the Colorado. Appellant removed “a big purse” from the back of the Colorado, which, according to Briere, contained three guns including the black handgun used in the U-Haul shooting. Appellant left the purse at Steve's house. After Briere and Appellant left Steve's house, they travelled to a Steak 'n Shake restaurant in Tallmadge. They were arrested later that evening by Tallmadge police.
{¶17} Briere was held at the Tallmadge Police Department for a couple of hours. When she was released, she returned to Steve's house. McGowan picked up Briere and brought her to his apartment. Briere gathered the purse prior to leaving Steve's house. Upon arriving at McGowan's apartment, Briere and McGowan opened the purse, and found one of the three guns was missing. They returned to Steve's house
and retrieved the third gun. McGowan subsequently placed the three weapons in a lockbox.
{¶18} Briere acknowledged she and Appellant talked about the guns during their phone conversations while he was in Summit County Jail. Appellant instructed her to sell one of the guns and use the money from the sale to get his vehicle out of impound. Briere sold the gun, but after getting Appellant's vehicle out of impound, she left the area. She contacted Trooper Daley approximately a week and a half after the incident.
{¶19} Michael Roberts, a forensic scientist in the firearms department of the BCI, testified he received one fired bullet, a Taurus .380 auto caliber semiautomatic pistol, and three unfired cartridges related to the instant matter. Roberts examined the pistol and found it to be operable. Roberts also examined the fired bullet which Trooper Daley extracted from the U-Haul. Roberts opined the bullet was fired from the black Taurus pistol which was recovered from Adam McGowan's residence.(ECF No. 9-2, Exhibit 15); State v. McGowan, No. 2018CA00075, 2019 WL 2613460, 2019-Ohio-2554 (5th Dist. June 25, 2019).
III. PROCEDURAL HISTORY
A. State Court Conviction
On February 20, 2018, Mr. McGowan was indicted in the Stark County Court of Common Pleas on: (1) three first-degree felony counts of attempted murder in violation of R.C. § 2923.02(A); (2) three second-degree felony counts of felonious assault in violation of R.C. § 2903.11(A)(2); (3) two third-degree felony counts of domestic violence in violation of R.C. § 2919.25(A); (4) one third-degree felony count of having weapons under disability in violation of R.C. §§ 2923.13(A)(2) and/or (A)(3); (5) one third-degree felony count of discharge of a firearm on or near prohibited premises in violation of R.C. §§ 2923.162(A)(3)(C)(1) and/or (C)(2); (6) one fourth-degree felony count of menacing by stalking in violation of R.C. §§ 2903.21(A)(1)(B)(2)(b) and/or (B)(2)(e); (7) one fourthdegree felony count of improperly handling firearms in a motor vehicle in violation of R.C. § 2923.16(A); and (8) one first-degree misdemeanor count of endangering children in violation of R.C. 2919.22(A). (ECF No. 9-2, Exhibit 1). The attempted murder and felonious assault charges also carried repeat violent offender and firearm specifications. Id. Mr. McGowan pled not guilty to all charges.
On March 20, 2018, Mr. McGowan, through counsel, filed a motion to suppress statements he made to police on January 14, 2018 while he was being held in the Summit County Jail on unrelated charges, arguing that he was not advised of all of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to questioning. (ECF No. 9-2, Exhibit 3). On April 27, 2018, the trial court denied Mr. McGowan's motion to suppress, holding that Mr. McGowan was not in custody at the time of the interrogation and that the police were not required to advise him of his rights prior to questioning. (ECF No. 9-2, Exhibit 6).
Before trial, the trial court dismissed the menacing by stalking charge at the request of the State. (ECF No. 9-2, Exhibit 8). Also prior to trial Mr. McGowan agreed to have the repeat violent offender specifications tried to the judge rather than the jury. On May 2, 2018, the jury convicted Mr. McGowan on all remaining counts except menacing by stalking. (ECF No. 9-2, Exhibit 7). The jury also convicted Mr. McGowan of the firearm specifications accompanying the attempted murder and felonious assault charges. Id. On May 7, 2018, the trial court found Mr. McGowan guilty of the repeat violent offender specifications as well. (ECF No. 9-2, Exhibit 10). On May 7, 2018, the trial court sentenced Mr. McGowan to a total of 52 years in prison. Id.
B. Direct Appeal
On June 18, 2018, Mr. McGowan, through counsel, timely filed a notice of appeal to the Fifth District Court of Appeals. (ECF No. 9-2, Exhibit 11). Mr. McGowan attached to his notice of appeal an “affidavit of truth” from Lakisha Rosser/McGowan, one of the alleged victims, stating that she knew he had not committed the crimes he had been convicted of. (ECF No. 9-2, Exhibit 12).
On November 30, 2018, Mr. McGowan filed his appellate brief, raising the following assignments of error:
1. The trial court erred in denying appellant's motion to suppress the jailhouse interrogation and appellant was prejudiced by the statement's admission at trial.
2. The court erred by not allowing appellant to address his disputes with trial counsel for the record.
3. Insufficient evidence was presented at trial to each element of the crimes alleged and the court erred in denying appellant's Rule 29 motion and submitting the case to the jury.
4. The manifest weight of the evidence at trial supported acquittal and the jury fundamentally lost its way in returning guilty verdicts.(ECF No. 9-2, Exhibit 13).
On June 25, 2019, the Fifth Appellate District affirmed Mr. McGowan's conviction. (ECF No. 9-2, Exhibit 15). On August 9, 2019, Mr. McGowan, acting pro se, filed a notice of appeal to the Ohio Supreme Court. (ECF No. 9-2, Exhibit 16). In his memorandum in support of jurisdiction, Mr. McGowan raised the following propositions of law:
1. The trial court erred in denying appellant's motion to suppress the jailhouse interrogation and appellant was prejudiced by the statement's admission at trial.
2. The court erred by not allowing appellant to address his disputes with trial counsel for the record.
3. Insufficient evidence was presented at trial to each element of the crimes alleged and the court erred in denying appellant's Rule 29 motion and submitting the case to the jury.
4. In evaluating the manifest weight of the evidence, the appellate court sits as the thirteenth juror, reviewing the evidence, the possible inferences from that evidence, and determines if, in resolving the conflicts in the evidence, the jury lost its way and created a manifest miscarriage of justice that can only be remedies through the issuance of a new trial. State v. Ellis, 2015-Ohio-2120, 36 N.E.3d 722, ¶ 35 (5th Dist.) quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.2d 172, 175, 485 N.E.2d 717 (1983). A new trial is a proper remedy when the evidence weighs heavily against conviction. State v. Meisenhelder, 2002-Ohio-1449 (5th Dist. Licking)(ECF No. 9-2, Exhibit 17). On October 15, 2019, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (ECF No. 9-2, Exhibit 19).
C. Petition to Vacate or Set Aside Judgment
On June 14, 2019, Mr. McGowan, acting pro se, filed a petition to vacate or set aside his conviction pursuant to R.C. § 2953.21. (ECF No. 9-2, Exhibit 20). In the petition, Mr. McGowan argued that: (1) he received the ineffective assistance of trial counsel because trial counsel failed to move to suppress the firearm allegedly used in the incident on the basis that the serial number on the weapon did not match the serial number listed on a return of inventory form; (2) the prosecution failed to turn over evidence favorable to Mr. McGowan in violation of its obligation under Brady v. Maryland, 373 U.S. 83 (1963); and (3) Mr. McGowan's Sixth Amendment right to confront his accusers was violated because the victims did not testify at trial. Id.
On October 9, 2019, the trial court denied Mr. McGowan's petition. (ECF No. 9-2, Exhibit 23). On November 8, 2019, Mr. McGowan, acting pro se, timely filed a notice of appeal to the Fifth Appellate District. (ECF No. 9-2, Exhibit 28). On December 9, 2019, Mr. McGowan filed his appellate brief. The version of Mr. McGowan's appellate brief in the record is illegible with respect to Mr. McGowan's assignments of error. (ECF No. 9-2, Exhibit 29). The Warden represents that Mr. McGowan raised the following assignments of error, which Mr. McGowan does not dispute:
Mr. McGowan's assignments of error are presented verbatim.
1. Ineffective assistance of counsel. Appellant was prejudiced by the admission of the firearm.
2. Brady material: The violation of appellant's due process clause and prejudice with the hold of information that favorable to the appellant.
3. Violation of appellant VI Amendment right. not allowing appellant to confront all victims nor call witnesses in his favor. that the violation of appellant confrontation clause of the Sixth Amendment.(ECF No. 9, PageID # 67). On March 31, 2020, the Fifth Appellate District affirmed the denial of Mr. McGowan's petition. (ECF No. 9-2, Exhibit 31). On July 27, 2020, Mr. McGowan, acting pro se, filed a notice of appeal to the Ohio Supreme Court. (ECF No. 9-2, Exhibit 32). Mr. McGowan also filed a motion for leave to file a delayed appeal, which the Ohio Supreme Court granted on August 10, 2020. (ECF No. 9-2, Exhibits 33-34). In his memorandum in support of jurisdiction, Mr. McGowan raised the following propositions of law:
1. Ineffective assistance of counsel. A representation in which the lawyer cannot devote full effort to the defendant, due to a conflict of interest, the Supreme Court has held that ineffective assistance of counsel denies the defendant's Sixth amendment right and due-process of law.
2. Brady material-significant information or evidence that is favorable to a criminal defendant's case and that the prosecution has a duty to disclose, the prosecution's withholding of such information violates the defendant's due-process rights. Brady v. Maryland, 373 U.S. 83 (1963).
3. Violation of Appellant Amendment VI (1791) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where in the crime shall have been committed which district shall have been previously ascertained by law, and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.(ECF No. 9-2, Exhibit 36). On October 27, 2020, the Ohio Supreme Court declined to accept jurisdiction of Mr. McGowan's appeal. (ECF No. 9-2, Exhibit 37).
Mr. McGowan's propositions of law are presented verbatim.
D. Federal Habeas Action
On October 21, 2021, Mr. McGowan, acting pro se, filed his 28 U.S.C. § 2254 habeas petition. (ECF No. 1). Mr. McGowan's habeas petition raises two grounds for relief:
1. The court erred by not allowing Appellant to address his disputes with trial counsel for the record.
2. Insufficient evidence was presented at trial to each element of the crimes alleged and the court erred in denying Appellant's Rule 29 motion.Id. The Warden filed an answer/return of writ on April 1, 2022. (ECF No. 9). Mr. McGowan filed a traverse on October 20, 2022. (ECF No. 11).
IV. STANDARDS OF REVIEW AND GOVERNING LAW
A. Jurisdiction
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A state prisoner may file a § 2254 petition in the “district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The Stark County Court of Common Pleas sentenced Mr. McGowan, and the Court takes judicial notice that Stark County is within this Court's geographic jurisdiction. Accordingly, this Court has jurisdiction over Mr. McGowan's § 2254 petition.
B. Exhaustion and Procedural Default
Under AEDPA, state prisoners must exhaust all possible state remedies, or have no remaining state remedies, before a federal court can review a petition for a writ of habeas corpus on the merits. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). This entails giving the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In other words, “the highest court in the state in which the petitioner was convicted [must have] been given a full and fair opportunity to rule on the petitioner's claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement, however, “refers only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a pursuit is clearly futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
Procedural default is a related but “distinct” concept from exhaustion. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain consideration of a federal constitutional claim by state courts because he failed to: (1) comply with a state procedural rule that prevented the state courts from reaching the merits of the petitioner's claim; or (2) fairly raise that claim before the state courts while state remedies were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle, 456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a procedural default, the federal court again looks to the last explained state-court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). A claim is fairly presented when it has been asserted as a federal constitutional issue at every stage of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.
The Sixth Circuit has developed a four-part test to determine whether a procedural default precludes a federal court from reaching a petitioner's claim: (1) whether there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with; (2) whether the state court “actually enforced” the state procedural rule; (3) whether the rule is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal claim; and (4) whether the petitioner can demonstrate cause for his failure to follow the procedural rule and actual prejudice from the alleged constitutional error. Barton v. Warden, Southern Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015) (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). These factors are commonly known as the “Maupin” factors.
As the fourth Maupin factor indicates, if a procedural default has occurred, the default can be excused and will not preclude consideration of a claim on federal habeas review if the petitioner can demonstrate: (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law;” or (2) “failure to consider the claim will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A “fundamental miscarriage of justice” can occur only when the procedurally defaulted claim -supported by new reliable evidence not presented at trial - would establish that the petitioner was “actually innocent” of the offense. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
C. Cognizable Federal Claim
Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18, 2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions.”).
A federal habeas court does not function as an additional state appellate court; it does not review state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead, “federal courts must defer to a state court's interpretation of its own rules of evidence and procedure” in considering a habeas petition. Id. (quotation omitted). Moreover, “the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).
D. AEDPA Standard of Review
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.(Id.)
To determine whether relief should be granted, the Court must use the “look-through” methodology and look to the “last explained state-court judgment” on the petitioner's federal claim. Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We think that a presumption which gives them no effect-which simply ‘looks through' them to the last reasoned decision-most nearly reflects the role they are ordinarily intended to play.”); Wilson v. Sellers, 138 S.Ct. 1188, 1193 (2018) (“We conclude that federal habeas law employs a ‘look through' presumption.”).
“A decision is ‘contrary to' clearly established federal law when ‘the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.'” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “The unreasonable application clause requires the state court decision to be more than incorrect or erroneous”-it must be “objectively unreasonable.” Id.
Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for a prior state court decision rejecting a claim, the federal court may overturn the state court's decision only if it was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing the record might disagree” about the finding in question, “on habeas review that does not suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).
For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents” and “goes no further.” Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.
V. ANALYSIS
A. Ground One: Failure to Permit Mr. McGowan from Addressing his Disputes with Trial Counsel
In his first ground for relief, Mr. McGowan asserts that the court erred by not allowing him to address his disputes with trial counsel for the record. Mr. McGowan's claim appears to have two components: (1) that he received the ineffective assistance of trial counsel in violation of his Sixth Amendment rights; and (2) that the trial court was biased against him in violation of his due process rights. I will address each argument in turn.
1. Ineffective Assistance of Trial Counsel
A petitioner claiming ineffective assistance of counsel must show that: (1) counsel's representation “fell below an objective standard of reasonableness,” such that he was not performing as counsel guaranteed under the Sixth Amendment; and (2) counsel's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the first prong, the petitioner must overcome the “strong[] presum[ption] that counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. For prejudice, the petitioner must show that there was a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Strickland standard is “extremely deferential.” Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir. 2017). “[T]he goal is not to ensure that a criminal defendant be afforded perfect counsel, but rather ‘to ensure that the adversarial testing process works to produce a just result under the standards governing decision.'” Id. at 830 (quoting Strickland, 466 U.S. at 687).
Mr. McGowan argues that his trial counsel was ineffective in a number of respects, including: (1) failing to file a motion to dismiss or suppression motion based on the fact that the serial number on the gun presented at trial differed from the serial number indicated on the return of inventory form filled out by the officer after it was seized; (2) failing to call witnesses on his behalf, including one of the victims, whom Mr. McGowan believes would have absolved him of the crime; (3) suppressing evidence favorable to the defense; (4) assisting the prosecution by permitting the State's witnesses to be called out of order; (5) failing to allow Mr. McGowan to view all of the transcripts of phone calls used against him at trial; and (6) refusing to submit additional exhibits to the jury.
As the Warden notes in his return of writ, Mr. McGowan did not raise all of these issues during his state court appeal. Instead, Mr. McGowan argued only that his trial counsel was ineffective because trial counsel: (1) failed to give Mr. McGowan full access to the recorded jail phone calls; (2) failed to call witnesses on his behalf; and (3) did not call the victims so that he would have an opportunity to confront his accusers. Because Mr. McGowan did not raise the other bases for his claim in state court he has not “fairly presented” them. See Maze v. Lester, 564 Fed.Appx. 172, 178 (6th Cir. 2014) (“In the specific context of ineffective assistance of counsel claims, ‘to the extent that an ineffective assistance of counsel claim is based upon a different allegedly ineffective action than the claim presented to the state courts, the claim has not been fairly presented to the state courts.'”) (quoting Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003)). And, because the time for Mr. McGowan to do so has long since expired, he has procedurally defaulted on those claims as well. See Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (“if an unexhausted claim would be procedurally barred under state law, that claim is procedurally defaulted for purposes of federal habeas review”).
Mr. McGowan's procedural default can be excluded if he demonstrates either cause and prejudice or that a failure to consider his claim on the merits would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. However, Mr. McGowan has not argued either prong in his petition or his traverse, and I therefore recommend that the Court dismiss Mr. McGowan's Strickland claim to the extent it is premised on arguments that Mr. McGowan did not present to the Ohio appellate courts.
With respect to the arguments that Mr. McGowan did present on direct appeal, the Fifth Appellate District rejected them on the merits after conducting a Strickland analysis. Where the state court reaches the merits of an ineffective assistance of counsel claim, federal habeas courts provide AEDPA deference to that adjudication under § 2254(d). Perkins v. McKee, 411 Fed.Appx. 822, 828 (6th Cir. 2011). The Sixth Circuit has emphasized the double layer of deference that federal courts must give state courts in reviewing federal ineffective assistance of counsel claims under AEDPA:
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. .. An ineffectiveassistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. . Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Id. (quoting Harrington, 131 S.Ct. 770, 786-88).
In rejecting Mr. McGowan's Strickland claim, the Fifth Appellate District held as follows:
{¶29} In order to prevail on a claim of ineffective assistance of counsel, a defendant “must satisfy a two-prong test.” State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio-2811, ¶ 14, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong, a defendant must “demonstrate that his trial counsel's performance was deficient.” Id. If a defendant “can show deficient performance, he must next demonstrate that he was prejudiced by the deficient performance.” Id. A defendant's “failure to make either showing defeats a claim of ineffective assistance of counsel.” Id., citing State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland at 697, 104 S.Ct. 2052.
{¶30} In order to demonstrate deficient performance by counsel, a defendant “must show that his counsel committed errors which were so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at ¶ 15 (Quotations omitted). Further, a defendant “must overcome the strong presumption that defense counsel's conduct falls within a wide range of reasonable professional assistance.” Id., citing Strickland at 689. In order to show prejudice, a defendant “must establish there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the trial would have been different.” Id., citing Strickland at 689.
{¶31} Appellant points to three occasions during trial when the trial court refused to provide him with an opportunity to demonstrate the breakdown of the attorney-client relationship.
{¶32} The first occasion occurred during Trooper Daley's direct examination. Trial Tr., Vol. II at 331-335. The state introduced phone calls to and from Appellant while
he was in Summit County Jail and was about to play them for the jury. Attorney April Bible, counsel for Appellant, informed the court, outside the presence of the jury, Appellant wished to address the court directly. Attorney Bible indicated Appellant was dissatisfied with her explanation of why a particular jail call was admissible. The trial court allowed Appellant to speak. Appellant claimed he did not have full access to all of the jail calls. As the discussion progressed, it became clear the state had, in fact, given defense counsel all of the jail calls, both in full and in redacted form. One jail call was not summarized in the police report Appellant reviewed. Attorney Bible indicated she had given Appellant the opportunity to listen to all of the calls. Appellant clearly chose not to listen to all of the calls. Satisfied, the trial court returned the jury to the courtroom and the state continued its examination of Trooper Daley. Appellant, however, was “not finished talking” and advised the trial court of this fact.
{¶33} The second occasion ensued at the close of the state's case. Trial Tr., Vol. III at 488-4489. Appellant questioned the trial court regarding an answer Angela Briere gave during her testimony, which he claimed was a blatant lie. Appellant stated he felt the jury should know the truth about where Briere and he dropped Antonio Rosser off the evening before the shooting. The trial court informed Appellant defense counsel could argue that fact during closing arguments. Appellant then complained defense counsel was not calling Antonio Rosser as a witness. The trial court did not respond to Appellant.
{¶34} The third occasion transpired after the admission of the evidence. Trial Tr., Vol. III at 506-511. Appellant questioned why he was not permitted to confront two of his accusers, Lakisha and their son. The trial court indicated it could not discuss evidence with him. Appellant persisted. The trial court told Appellant it did not want to hear anything further. Appellant proceeded to talk with the deputies. The trial court admonished him.
{¶35} Upon review, we find the trial court did not violate Appellant's right to a fair trial. The trial court did not “ignore” Appellant. The trial court gave Appellant its attention, but adhered to its judicial role. We find the trial court properly maintained control over the courtroom and refused to allow Appellant to interfere with the judicial process. With respect to Appellant's claim he was denied the effective assistance of counsel, we find, assuming, arguendo, counsel's performance fell below an objective standard of reasonable representation, Appellant has failed to establish a reasonable probability, but for counsel's errors, the results of the proceedings would have been different. As discussed, infra, the state presented substantial evidence of Appellant's guilt.(ECF No. 9-2, Exhibit 15).
Applying the doubly-deferential standard under AEDPA, the Fifth Appellate District did not err in rejecting Mr. McGowan's ineffective assistance claim. With respect to the recordings of the jailhouse phone calls, the Fifth Appellate District reasonably determined that trial counsel made all of the jailhouse phone calls available to Mr. McGowan. Moreover, with respect to counsel's cross-examination and decision not to call witnesses, Mr. McGowan “bears the burden of overcoming the ‘presumption that the challenged conduct might be considered sound trial strategy.'” Smith v. Woods, 505 Fed.Appx. 560, 565 (6th Cir. 2012) (quoting Hanna v. Ishee, 694 F.3d 596, 612 (6th Cir. 2012)); see also Group v. Robinson, 158 F.Supp.3d 632, 656 (N.D. Ohio 2016) (“decisions about whether to engage in crossexamination, and if so to what extent and in what manner, are . . . strategic in nature and generally will not support an ineffective assistance claim”) (quotations omitted); Johnson v. Wainwright, No. 1:17-cv-2143, 2019 WL 7284990, at *15 (N.D. Ohio Aug. 8, 2019), report and recommendation adopted, 2019 WL 5616318 (N.D. Ohio Oct. 31, 2019) (“Questions about the effectiveness of counsel's cross-examination are ‘strategic' questions and, in that context, effectively insulated from review.”) (citing Hurley v. United States, 10 Fed.Appx. 257, 260 (6th Cir. 2001). Mr. McGowan has not overcome that heavy burden here.
Regardless, even assuming the performance of Mr. McGowan's trial counsel was deficient, the Fifth Appellate District did not act contrary to or unreasonably apply controlling law in concluding that Mr. McGowan he failed to demonstrate prejudice, meaning a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As discussed in greater detail below in connection with Mr. McGowan's sufficiency of the evidence claim, the evidence against him was strong, and included testimony from witnesses who claimed Mr. McGowan performed the shooting, evidence linking him to the gun used in the shooting, and jailhouse phone calls where Mr. McGowan discussed getting rid of the weapon. In light of the evidence against him, Mr. McGowan has not demonstrated a reasonably probability that the outcome would have been different had his counsel not committed the alleged errors.
Finally, Mr. McGowan asserts that his trial counsel's performance was so poor that he was constructively denied counsel under United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme Court held that certain levels of performance by counsel are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658. Thus, under Cronic, prejudice is presumed where (1) a defendant “is denied counsel at a critical stage of his trial”; or (2) “entirely fails to subject the prosecution's case to meaningful adversarial testing.” Id. at 659. However, Mr. McGowan was not denied counsel at any stage of the proceeding, and I conclude that his trial counsel did not entirely fail to subject the prosecution's case to meaningful testing. Accordingly, Mr. McGowan's argument that prejudice should be presumed in this case is without merit. I therefore recommend that the Court deny Mr. McGowan's first ground for relief to the extent it is based on his trial counsel's alleged ineffectiveness.
2. Judicial Bias
Mr. McGowan also appears to assert that his due process rights were violated because the trial court was biased against him. In particular, Mr. McGowan argues that the trial court did not permit him to explain the issues he was having with his trial counsel and did not permit him to fully inquire as to why he was not allowed to view all the evidence against him, confront the victims, or call them as witnesses on his behalf.
“The due process clause of the Fourteenth Amendment guarantees a criminal defendant, as any litigant, the right to a fair trial in a fair tribunal.” Alley, 307 F.3d at 386; see also Gordon v. Lafler, 710 Fed.Appx. 654, 663 (6th Cir. 2017) (stating that the due process clause “establishes a ‘constitutional floor,' which requires that the parties be given ‘a fair trial in a fair tribunal' with no actual bias against the defendant or interest in the outcome of his particular case.”) (quoting Bracy v. Gramley, 520 U.S. 899, 904-05 (1997)). “So central is this right that failure to have a trial before such an impartial adjudicator can never be a harmless error.” Gordon, 710 Fed.Appx. at 663. Although “trial by an impartial judge is a core right,” however, a court “must consider the judge's alleged bias in light of his or her role in the courtroom.” Id. “During a jury trial, ‘the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct.'” Id. (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)).
The Sixth Circuit “has looked to the Supreme Court's decision in Liteky v. United States, 510 U.S. 540, 552 [(1994)], to provide the standard for deciding judicial bias claims.” Alley, 307 F.3d at 386. In Liteky, the Supreme Court held that “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” 510 U.S. at 555. Rather, such remarks support a bias claim “if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. Remarks that demonstrate “impatience, dissatisfaction, annoyance, and even anger . . . are within the bounds of what imperfect men and women . . . sometimes display.” Id. at 555-56. Moreover, “a judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune” from judicial bias claims. Id. at 556. Similarly, “judicial rulings almost never constitute a valid basis for a finding of judicial bias.” Hurick v. Woods, 672 Fed.Appx. 520, 534 (6th Cir. 2016) (citing Liteky, 510 U.S. at 555).
“The Sixth Circuit has directed that on habeas review, courts have ‘narrow authority' to review judicial bias claims.” Reese v. Ohio, No. 3:21-CV-993, 2023 WL 5611611, at *9 (N.D. Ohio May 16, 2023), report and recommendation adopted, 2023 WL 5607633 (N.D. Ohio Aug. 30, 2023) (quoting Allen v. Hawley, 74 Fed.Appx. 457, 461 (6th Cir. 2003)). “Habeas review should not be granted unless the state court applied U.S. Supreme Court guidelines for judicial bias claims in an ‘unreasonable' fashion ‘that is to say, inordinate, illogical, and ultimately, irrational.'” Id. (quoting Allen, 74 Fed.Appx. at 461).
As noted above, the Fifth Appellate District rejected Mr. McGowan's judicial bias claim on the merits, concluding that the trial court “did not ‘ignore'” Mr. McGowan, but rather “adhered to its judicial role” and “properly maintained control over the courtroom and refused to allow [Mr. McGowan] to interfere with the judicial process.” (ECF No. 9-2, Exhibit 15, ¶ 35). Applying AEDPA deference, the Fifth Appellate District did not act contrary to or unreasonably apply governing law in holding that Mr. McGowan's due process rights were not violated. Rather, the Fifth Appellate District reasonably determined that the actions of which Mr. McGowan complains were simply the trial court's ordinary efforts at courtroom administration. Accordingly, I recommend that the Court deny Mr. McGowan's first ground for relief to the extent it is based on the trial court's alleged bias against him.
B. Ground Two: Sufficiency of the Evidence
In his second ground for relief, Mr. McGowan asserts that the evidence was insufficient to convict him of the charges. In particular, Mr. McGowan argues that: the State's witnesses perjured themselves; the State tampered with recordings of his phone calls from jail; his vehicle was never seen on the highways videos played for the jury; one of the victims wrote an affidavit stating that Mr. McGowan did not commit the crimes; the testimony of two of the main witnesses against him was conflicting; and the police never performed a reconstruction to confirm how the crime was committed.
In his traverse, Mr. McGowan also appears to argue for the first time that the prosecution improperly vouched for the honesty of Trooper Daley, who testified that he made a mistake in recording the serial number of the gun on the return of inventory form. Mr. McGowan also argues that the prosecution knowingly permitted witnesses to perjure themselves without correcting their testimony and failed to turn over favorable evidence that demonstrating that the witnesses were committing perjury. To the extent that Mr. McGowan is seeking to assert a stand-alone claim under Brady v. Maryland, 373 U.S. 83 (1963), or a claim for improper vouching or prosecutorial misconduct, his claims fail, as it is well-settled that arguments raised for the first time in a traverse are waived. See Banks v. Tibbals, No. 1:11CV495, 2014 WL 132271, at *16 (N.D. Ohio Jan. 14, 2014) (“It is well-established that new arguments raised for the first time in a traverse, rather than the habeas petition itself, are not properly before the Court and will not be considered”); Franklin v. Marquis, No. 5:17-cv-2002, 2019 WL 11816553, at *20 n.12 (N.D. Ohio Oct. 31, 2019), report and recommendation adopted, 2021 WL 861614 (“The law is quite clear that arguments presented for the first time in a traverse are waived.”).
Challenges to a state court conviction based on the sufficiency of the evidence are properly cognizable in a federal habeas corpus petition. See Jackson v. Virginia, 443 U.S. 307, 321 (1979). In reviewing the sufficiency of the evidence, “the 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.” Id. at 319. The reviewing court may not “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
Review of sufficiency of the evidence challenges involves “a double layer of deference[.]” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). “First, [a court] must view the evidence in the light most favorable to the prosecution, and determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Mathis v. Colson, 528 Fed.Appx. 470, 476 (6th Cir. 2013) (quoting Jackson, 443 U.S. at 319). “Second, ‘even were [a court] to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [a court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable.'” Id. (quoting Brown, 567 F.3d at 205). Under the Jackson standard, a habeas petitioner “who challenges the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Here, the Fifth Appellate District addressed Mr. McGowan's sufficiency of the evidence claim on the merits, rejecting it as follows along with his manifest weight of the evidence claim:
During his direct appeal, Mr. McGowan asserted both a sufficiency of the evidence claim and a claim that the verdict was against the manifest weight of the evidence. Manifest weight of the evidence claims are not cognizable in a federal habeas proceeding, see Cannon v. Bobby, No. 1:21-CV-1846-JRA, 2024 WL 1054450, at *8 (N.D. Ohio Jan. 26, 2024), report and recommendation adopted, 2024 WL 1051630 (N.D. Ohio Mar. 11, 2024), and Mr. McGowan has not asserted a manifest weight of the evidence claim here.
{¶37} In his third assignment of error, Appellant contends his convictions were not based upon sufficient evidence and the trial court erred in denying his Crim. R 29 motion for acquittal. Appellant asserts the state's case established Trooper Daley failed to thoroughly investigate the U-Haul shooting and merely targeted Appellant, dismissing all other possible leads; and the state's main witness, Angela Briere, lacked credibility and her testimony contradicted the testimony of Thaddaeus Rosser. In his fourth assignment of error, Appellant challenges his convictions as against the manifest weight of the evidence. Appellant argues “[t]here was a dearth of evidence at trial corroborating the State's case.” Brief of Appellant at 16-17.
{¶38} Criminal Rule 29(A) provides a court must order the entry of a judgment of acquittal on a charged offense if the evidence is insufficient to sustain a conviction on the offense. Crim. R. 29(A). However, “a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a motion for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d Dist. Seneca No. 13-10-18, 2011-Ohio-3005, 2011 WL 2448972, ¶ 43, citing State v. Miley, 114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist. 1996).
{¶39} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Accordingly, the question of whether the offered evidence is sufficient to sustain a verdict is a question of law. State v. Perkins,
3d Dist. Hancock No. 5-13-01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citing Thompkins at 386, 678 N.E.2d 541.
{¶40} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury ‘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, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶41} “The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the witnesses.
{¶42} As set forth in our Statement of the Case and Facts, supra, the testimony at trial revealed Appellant and his girlfriend were driving northbound on Interstate 77 when Appellant observed the U-Haul travelling in the opposite direction. Appellant yelled at Briere to exit the highway and follow the U-Haul. When Briere had the U-Haul in sight, Appellant instructed her to pull alongside of it. Appellant rolled down the passenger window, removed a black handgun from his waist, and fired, what Briere believed to be, five shots at the U-Haul. Briere subsequently brought the black handgun and two others owned by Appellant to McGowan's apartment. Trooper Daley recovered the gun during his search of McGowan's apartment. BCI testing established the bullet extracted from the U-Haul was fired from the black Taurus pistol recovered from McGowan's residence. During the jail house calls between Appellant and Briere, the two discussed disposing of the black handgun, selling another gun, and the circumstances around the U-Haul shooting.
{¶43} The jury was free to accept or reject any and all of the evidence offered by the parties and assess the credibility of the witnesses. “While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render [a] defendant's conviction against the manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP-739, 2000 WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. Id.
{¶44} Our review of the entire record reveals no significant inconsistencies or other conflicts in the state's evidence which would demonstrate such a lack of credibility of any individual witness that caused the jury to lose its way in reaching its verdict. Based upon the foregoing, we find Appellant's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence.(ECF No. 9-2, Exhibit 15).
Applying the first layer of the “double layer of deference,” White, 602 F.3d at 710, I agree that a rational trier of fact could have found the essential elements of the relevant offenses beyond a reasonable doubt. As the Fifth Appellate District noted, the verdict was supported by, among other things: (1) testimony from Ms. Briere that Mr. McGowan committed the shooting; (2) testimony that a bullet extracted from the U-Haul was fired from a gun linked to Mr. McGowan; and (3) jailhouse recordings indicating that Mr. McGowan discussed the shooting and the disposal of the firearm with Ms. Briere. While Mr. McGowan argues that Ms. Briere's testimony was perjured, it was the province of the jury to evaluate her credibility. See Tyler v. Mitchell, 416 F.3d 500, 505 (6th Cir. 2005) (rejecting insufficiency of the evidence claim premised on witness credibility, “which is clearly the province of the jury and not this court”); Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (holding that challenges to witness credibility go to quality, not sufficiency of evidence). A rational trier of fact therefore could have found Mr. McGowan guilty of the charged offenses beyond a reasonable doubt.
And even if I had concluded (which I do not) that a rational trier of fact could not have found Mr. McGowan guilty beyond a reasonable doubt, on habeas review I must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. White, 602 F.3d at 710. Applying the second layer of the “double layer of deference,” I do not find the state appellate court's sufficiency determination unreasonable for the reasons set forth above.
VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
A. Legal Standard
As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. The statute further provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a “substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that “[a] ‘substantial showing' requires the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.'” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C. § 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule 11 requirement that the court either grant or deny the certificate of appealability at the time of its final adverse order, a recommendation regarding the certificate of appealability issue is included here.
B. Analysis
Mr. McGowan has not made a substantial showing of a denial of a constitutional right for the reasons set forth above. Because jurists of reason would not find these conclusions debatable, I recommend that no certificate of appealability issue in this case.
VII. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Court DENY Mr. McGowan's petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend that the Court not grant him a certificate of appealability.
NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report made pursuant to Fed.R.Civ.P. 72(b) within fourteen (14) days after being served with a copy thereof, and failure to file timely objections within the fourteen (14) day period shall constitute a waiver of subsequent review, absent a showing of good cause for such failure. Such party shall file with the Clerk of Court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. Any party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. The District Judge to whom the case was assigned shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge need conduct a new hearing only in such District Judge's discretion or where required by law, and may consider the record developed before the Magistrate Judge, making a determination on the basis of the record. The District Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Id. (emphasis added).
Failure to file objections within the specified time may result in the forfeiture or waiver of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the United States Court of Appeals, depending on how or whether the party responds to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific and not merely indicate a general objection to the entirety of the report and recommendation; a general objection has the same effect as would a failure to object. Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge without specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates Act.'” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific objections may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).