Opinion
Case No. 1:04-cv-634.
August 16, 2006.
DECISION AND ORDER
This is a habeas corpus action pursuant to 28 U.S.C. § 2254, brought pro se by Petitioner Marvin Murrell. The parties have unanimously consented to plenary magistrate judge jurisdiction and Judge Barrett has referred the case on that basis.
Petitioner was convicted on one count of possession of cocaine in the Hamilton County Court of Common Pleas and sentenced to eight years confinement. He challenges that conviction and sentence on the following grounds:
Ground One: Trial court overruled motion for new trial, motion for judgement of acquittal after verdict.
Supporting Facts: Testimony offer[ed] as newly discovered evidence (a confession of the crime) which should have lead to the exoneration of the movant that was totally ignored by the trial court. Confession made in open court after jury verdict. Trial court unlawfully withheld confession of witness from jury (trier of the facts). A confession exists may itself be regarded as newly discovered evidence and warrants a new trial.
Ground Two: Insufficient evidence, judgment contrary to the manifest weight of evidence, denial of acquittal.
Supporting Facts: Due process of USCA Const. Amend 14 and Ohio Const required that prosecution prove every element of criminal offense beyond a reasonable doubt. A conviction based upon insufficient evidence offends due process and must be reversed and a new trial granted where the conviction is contrary to the manifest weight of evidence. A conviction for knowingly possessing a controlled substance is unlawful and denies due process of law without proven knowledge.
Ground Three: Prosecutorial Misconduct; committed prejudicial misconduct during argument to jury.
Supporting Facts: During closing remarks prosecutor lead [sic] jury to believe Cornell Allen who confessed to the crime did not exist, made comments that defense witnesses were lying, characterized Petitioner [as] "big time drug dealer," inject[ed] bad acts not involved with this case, failed to pursue justice for all concerned, made statements unsupported by evidence, allued [sic] to large sums of money could be used to influence witnesses.
Ground Four — This ground for relief has been withdrawn. (See Order Adopting in Part Report and Recommendations, Doc. No. 15.)
(Petition, Doc. No. 1, at 4-5).
Petitioner and Respondent are in agreement on the procedural course this matter followed in the state courts; they likewise agree that the Petition was filed within the applicable one-year statute of limitations and that Petitioner has exhausted his available state court remedies for the three grounds for relief which are before this Court.
Ground One: Denial of New Trial
In his first ground for relief, Petitioner claims that the state trial court erred in refusing to grant his motion for new trial. The relevant facts are that one Cornell Allen had given an audio-taped statement to Mr. Murrell's trial counsel about two weeks after Petitioner was arrested. Trial counsel had issued subpoenas for Allen each time the case was set for trial and Allen had appeared on at least one of those occasions, but the State obtained a continuance. When the case was actually tried, however, Allen did not appear and trial counsel could not find him. The defense, however, did not seek a continuance to find Allen, allegedly because they believed it would be futile, nor did defense counsel attempt to introduce the audiotape in evidence, allegedly believing it would have been inadmissible hearsay. However, an affidavit was obtained post-verdict (but within the very short time allowed by Ohio law for a motion for new trial) and Allen actually testified at a hearing on the motion for new trial. Allen's testimony, if believed, would have exonerated Petitioner.
Petitioner raised denial of his motion for new trial on direct appeal. The Hamilton County Court of Appeals ruled on the question as follows:
{¶ 10} In his first assignment of error, Murrell asserts that the trial court erred by denying the motion for a new trial.1 We are unpersuaded.
{¶ 11} Crim.R. 33(A)(6) permits a defendant who is convicted of a criminal offense to move for a new trial on the ground of newly discovered evidence, if the defendant can show that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since trial, (3) is such as could not in the exercise of due diligence, have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.2 It is within the discretion of the trial court whether to grant the motion.3
{¶ 12} A review of the record clearly demonstrates that Allen's testimony was not newly discovered since the trial. Indeed, Murrell's trial counsel transcribed his interview with Allen just twelve days after Murrell's arrest. At best, it appears that Allen's whereabouts were newly discovered since the trial. Furthermore, Allen was subpoenaed for trial by Murrell but failed to appear, and the record discloses that no request for a continuance was made to secure Allen's appearance.
{¶ 13} While Murrell's trial counsel took issue with the court's rejection of Allen's "confession" for the reasons that it was cumulative and contradictory, we note that the jury was informed of Allen's alleged activity through the testimony of Walter Williams and Dwight Nared, and that it had obviously declined to lend it any credence.
{¶ 14} For the forgoing reasons, we cannot say that the trial court's denial of the motion for a new trial demonstrated an unreasonable, arbitrary, or unconscionable attitude.4 The first assignment of error is overruled.State v. Murrell, 2003 Ohio App. LEXIS 1956, **7-10 (Ohio App. 1st Dist. April 25, 2003) (footnotes omitted).
Respondent defends against this Ground for Relief on the merits, asserting that the quoted decision of the First District Court of Appeals is not an unreasonable application of clearly established federal law.
Under 28 U.S.C. § 2254(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.
There is some question whether the First District Court of Appeals decided Petitioner's first claim on the merits of any federal question. No federal law is cited in this portion of the Court of Appeals' decision; that court relies entirely on state law in deciding that no new trial was required. In his Brief on appeal, Petitioner cited only state case law, although he concludes his argument with a conclusory citation to the federal and Ohio Due Process Clauses (Return of Writ, Ex. 9, at 4-7).
However, Respondent has not asserted this claim was not fairly presented to the state courts, but instead argues that the state court decision implicitly decides any federal questions and is not an unreasonable application of clearly established federal law. A state court decision can constitute an "adjudication on the merits" entitled to deference under 28 U.S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim or to relevant federal case law. In order to avoid being contrary to Supreme Court precedent, a state court decision need not cite the controlling precedent or even be aware of it "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3; 123 S. Ct. 362; 154 L. Ed. 2d 263 (2002) (per curiam).
Respondent identifies the relevant Supreme Court precedent as Taylor v. Illinois, 484 U.S. 400 (1988). In that case the Supreme Court upheld a state court ruling excluding the testimony of a surprise witness, i.e., someone who was attempted to be added to the defense witness list after trial had begun but before the case was submitted to the jury. In Taylor the Supreme Court recognized that the right of a criminal defendant to offer evidence is dependent on a defendant's complying with appropriate rules of procedure for presenting that evidence, including in Taylor that the witness be identified in a timely manner. In Herrera v. Collins, 506 U.S. 390 (1993), the Court upheld against a due process challenge a Texas sixty-day time limit on new trial motions based on newly-discovered evidence.
The limitations on new trial motions upheld by the First District Court of Appeals in this case are that the evidence must truly be newly-discovered. It upheld the trial judge's decision that the evidence was not newly-discovered because Petitioner's counsel had known about it within two weeks of Petitioner's arrest. That holding is completely consistent with the general law on what constitutes newly-discovered evidence, a rule laid down in Berry v. State, 10 Georgia 511 (1851) and universally applied in all American jurisdictions. See LaFave, Israel, King, Criminal Procedure § 24.11(d). It is certainly no violation of the Due Process Clause or the Sixth Amendment to require that evidence supporting a new trial motion be in fact newly-discovered.
As additional reasons for denying the motion for new trial, the Common Pleas Court relied on Petitioner's counsel's failure to ask for a continuance and failure to offer the tape recording of Allen's statement. Neither of those limitations offends due process. Defense counsel gave as his reason for not asking for a continuance that he could not find Allen, but Allen had been found before and was found again shortly after trial.
The audiotape was available at the time of trial and would have been admissible under Ohio R. Evid. 804(B)(3): it was a statement so far against Allen's interest as to subject him to eight years in prison, the same sentence Petitioner received. Defense counsel told the trial judge that he had asked an associate, Mr. Spierling, to research the matter and Spierling had concluded the tape was not admissible. Neither the trial judge, the appellate court, nor this Court has been told how Mr. Spierling reached that conclusion.
In any event, the defense theory that the cocaine belonged to Allen was presented to the jury by two persons, Walter Williams and Dwight Nared, who claimed to know. While Allen's confession would have made their testimony stronger, Petitioner was not denied an opportunity to present his theory to the jury.
When all of these facts are considered, the Court cannot say that it was a denial of due process to deny the motion for new trial. The Court of Appeals decision upholding that denial is therefore not an unreasonable application of clearly established federal law. Petitioner's first ground for relief is denied with prejudice.
Ground Two: Insufficient Evidence
In his second ground for relief, Petitioner argues that the verdict was against the manifest weight of the evidence and was also constitutionally insufficient to convict.
In State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d 541 (1997), the Ohio Supreme Court reaffirmed the important distinction between appellate review for insufficiency of the evidence and review for manifest weight. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "'thirteenth juror'" and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.").78 Ohio St. 3d at 387. As the Ohio Supreme Court acknowledges, sufficiency of the evidence is a federal constitutional requirement; a conviction based on insufficient evidence must be permanently set aside. Jackson v. Virginia, supra. There can be no retrial because of the Double Jeopardy Clause.
On the other hand, a reversal of a conviction as against the manifest weight of the evidence is essentially a way for an Ohio court of appeals to grant a new trial when it concludes the jury has lost its way. There is no federal constitutional right involved; reversal of a verdict as against the manifest weight of the evidence is a purely state law matter. Because of this, a federal habeas corpus court cannot review that decision on the merits; we are limited to deciding whether a conviction violates federal constitutional rights. 28 U.S.C. § 2254(a); 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). Therefore, the manifest weight portion of the second ground for relief is denied without prejudice.
An allegation that a verdict was entered upon insufficient evidence does state a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307(1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.Jackson v. Virginia, 443 U.S. at 319. This rule was adopted as a matter of Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.
{¶ 17} R.C. 2925.11(A) provides that "[n]o person shall knowingly * * * possess * * * a controlled substance." Murrell argues that the state did not sufficiently prove the elements of knowledge and possession beyond a reasonable doubt.
{¶ 18) Our review of the record convinces us that the state adduced sufficient evidence to support the conviction. RC. 2901.22(B) provides that "[a] person has knowledge of circumstances when he is aware that such circumstances probably exist." With respect to the possession element, R.C. 2925.01(K) provides that "possess or possession means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." Possession can be actual or constructive. Constructive possession is present when the accused is able to exercise dominion or control over the contraband.8 Furthermore, "readily usable drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession."9
{¶ 19} Here, the following state's evidence sufficiently demonstrated that Murrell probably had known that the cocaine was in the trunk of the Lincoln and that he had constructively possessed the cocaine: (1) Murrell so frequently used William's automobile, and had the key on his personal key chain, that the vehicle was essentially at Murrell's disposal; (2) mail addressed to Murrell, as well as some personal papers, was found in the trunk of the car; (3) a bundle of cash in the amount of $1000 was found in the trunk along with the cocaine; and (4) the money found in the trunk was secured with a black rubber band hi the same fashion as the cash found in the paper bag behind the driver's seat that Murrell admitted to owning. Although this evidence was circumstantial, we note that circumstantial evidence has the same probative value as direct evidence.10State v. Murrell, 2003 Ohio App. LEXIS 1956 ** 11-13 (Ohio App. 1st Dist. 2003) (footnotes omitted). Here, as with the first ground for relief, the question is whether this is a reasonable application of the federal law clearly established in Jackson v. Virginia, supra.
Respondent argues the evidence at some length. He notes that the cocaine in question was found in the trunk of a car which, although titled in someone else's name, was essentially at Petitioner's disposal. The cocaine accompanied $1,000 in cash which was bundled in the same way as $8,000 in cash found behind the driver's seat and which Petitioner claimed was his own. Numerous personal papers belonging to Petitioner were also found in the car, including items in the trunk addressed by the mailers to Petitioner. Keys to the car were found on a key chain with Petitioner's house and apartment keys.
Petitioner notes that all of this evidence is circumstantial: no one saw him put the bag with the cocaine in the trunk nor did he admit owning it. Petitioner argues that therefore the State's case rests on an inference which is prohibited by Ohio Revised Code § 2925.01. That statute precludes a finding of possession of a controlled substance which is "inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." Petitioner argues that this statute is a codification of the rule adopted by the Ohio Supreme Court in State v. Haynes, 25 Ohio St. 2d 264, 267 N.E. 2d 787 (1971). In that case, the Ohio Supreme Court held that possession for sale could not be inferred solely from finding drugs in the living area of a house in which the defendant in that case had not been present for a week and which he jointly occupied with three other persons.
Neither the statute nor Haynes prevents the evidence in this case from being sufficient. In the first place, the statute speaks about "premises," not an automobile. Haynes itself involved a much larger space than an automobile to which at least four persons had access, three of them more recently than the defendant Haynes. In this case there is much more circumstantial evidence of possession than in Haynes and the Ohio statute does not require direct (i.e., eyewitness) proof of possession.
Because the circumstantial evidence of possession is sufficient for a reasonable jury to conclude beyond a reasonable doubt that Petitioner knew of the cocaine in the trunk, Petitioner's claim that the verdict is not supported by sufficient evidence is without merit and is denied with prejudice; the Court of Appeals' conclusion was a reasonable application of Jackson v. Virginia.
Ground Three: Prosecutorial Misconduct
In his third ground for relief, Petitioner asserts that the prosecutor in his case engaged in misconduct in his closing argument to the jury. Respondent asserts that this ground for relief is procedurally defaulted in its entirety.The standard for evaluating a procedural default defense is 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, 749 (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 (1977); Engle v. Isaac, 456 U.S. 107 (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); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Engle v. Isaac, 456 U.S. 107 (1982); Wainright v. Sykes, 433 U.S. 72, 87 (1977). Wainright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. 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 (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.
The first prong of the Maupin analysis is satisfied by the existence of the contemporaneous objection rule in Ohio practice. Ohio does indeed follow this rule, to wit, that parties must preserve errors for appeal by calling them to the attention of the trial court at a time when the error could have been avoided or corrected. State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1969), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162, 694 N.E.2d 932 (1998)
As to the second prong, Petitioner's third ground for relief was presented to the First District Court of Appeals as Petitioner's fifth assignment of error. The Court expressly held "[b]ecause Murrell's trial counsel did. not object to the prosecutor's remarks, we review the alleged misconduct for plain error." This constituted a finding of procedural default by failure to make a contemporaneous objection. A state appellate court's review for plain error is enforcement, not waiver, of a procedural default. Hinkle v. Randle, 271 F. 3rd 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F. 3rd 542, 557 (6th Cir. 2000) (plain error review does not constitute a waiver of procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
The contemporaneous objection rule is an adequate and independent state rule of law, satisfying the third prong of Maupin. Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Cott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).
Petitioner's response to this argument in his addendum to his Traverse (Doc. No. 23) is that the Court of Appeals' ruling on this assignment of error is not independent of federal law because the court relied on state cases which expressly adopt federal law, e.g., State v. Slagle, 65 Ohio St. 3d 597, 605 N.E. 2d 916 (1992), which adopts the analysis in Smith v. Phillips, 455 U.S. 209 (1982). The key point here, however, is that the Court of Appeals did not rely on federal law in making its decision about the contemporaneous objection rule. That rule is purely a matter of state law without any admixture of federal elements. Although the federal courts follow a similar rule, the state rule has not been limited by federal constitutional principles. In other words, the Court of Appeals did not have to decide any federal questions to decide that Petitioner had forfeited this assignment of error because of the lack of contemporaneous objection.
A habeas petitioner faced with a procedural default in state court can overcome that default if he can show cause and prejudice. However, Petitioner does not argue any such cause and prejudice. One claim which he might have made was that his counsel rendered ineffective assistance when he failed to make the contemporaneous objection. In appropriate circumstances, ineffective assistance of counsel can constitute cause to excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1985); Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996) However, the same case holds that the exhaustion doctrine "generally requires that a claim of ineffective assistance of counsel be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default in federal habeas proceedings." 477 U.S. at 489; see also Ewing v. McMackin, 799 F.2d 1143, 1149-50 (6th Cir. 1986). The ineffective assistance claim cannot be presented as cause if it was procedurally defaulted in the state courts, unless one of the standard excuses for procedural default exists, to wit, miscarriage of justice or cause and prejudice. Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000) , overruling Carpenter v. Mohr, C-2-96-447 (S.D. Ohio, 1997), aff'd., 163 F.3d 938 (6th Cir. 1998). Here the Petitioner has dismissed with prejudice the fourth ground for relief, his claim that his trial counsel was ineffective.
Therefore the third ground for relief is procedurally defaulted.