Opinion
Case No. 2:10-cv-1084
01-13-2012
Ronald Henderickson, Petitioner, v. Warden Lebanon Correctional Institution, Respondent.
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
OPINION AND ORDER
On November 2, 2011, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus filed under 28 U.S.C. §2254 be dismissed (#10). On November 16, 2011, petitioner filed his objections to the Report and Recommendation. As required by 28 U.S.C. §636(b)(1), the Court will make an independent review of the question of whether any of petitioner's claims warrant relief. For the following reasons, petitioner's objections will be OVERRULED. The Report and Recommendation will be ADOPTED and AFFIRMED in its entirety and this action will be DISMISSED.
STANDARD OF REVIEW
When objections are received to a Magistrate Judge's Report and Recommendation on a dispositive matter, the assigned District Judge "shall make a de novo determination ... of any portion of the Magistrate Judge's disposition to which specific written objection has been made Fed.R.Civ.P. 72(b). After review, the District Judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the Magistrate Judge with instructions." Id.; see also 28 U.S.C. §636(b)(1)(B). General objections are insufficient to preserve any issues for review "[a] general objection to the entirety of the Magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v. Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted).
When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
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.
As the Supreme Court has explained, "an unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Harbison v. Bell, 408 F.3d 823, 829 (6th Cir. 2005). Indeed, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application must be "objectively unreasonable." Id., at 409, 120 S.Ct. 1495. This distinction creates "a substantially higher threshold" for obtaining relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
FACTUAL BACKGROUND
The Report and Recommendation recites the pertinent facts of this case as they appear in the Court of Appeals' decision affirming petitioner's conviction. See State v. Hendrickson, 2009 WL 2682158 (Ohio App. 4th Dist. August, 24, 2009); Exhibit 9 to Return of Writ. Petitioner does not argue that any of these facts are stated inaccurately, so the Court adopts them as correctly setting forth the factual backdrop for petitioner's claims.
CLAIM ONE
Petitioner's first claim is that his Sixth Amendment right to counsel was violated when he proceeded to trial based on erroneous information provided by his trial counsel. According to petitioner, his trial counsel led him to believe that the maximum penalty he was facing if he went to trial was twenty years to life imprisonment. Petitioner asserts that he could have accepted a plea deal that would have resulted in a prison term of fifteen years. He claims that he did not pursue this deal because he believed that his maximum sentence was twenty years to life. Instead, he received a sentence of thirty years to life.
The Magistrate Judge concluded that, because petitioner had not demonstrated the existence of a fifteen-year plea deal, he had failed to meet the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). In his objections, petitioner raises two issues with respect to the Magistrate Judge's conclusions relating to Claim One. Petitioner states these issues as follows.
1. Whether the magistrate erred in finding there was insufficient evidence on the record to establish Defendant's counsel was ineffective due to him misinforming Defendant of the possible penalty he faced? More specifically, whether the statement of Defendant, defense counsel, and the prosecutor regarding a possible fifteen year plea deal is sufficient to prove counsel's advice was ineffective in advising against that offer?
2. Whether the magistrate erred in determining counsel's advice regarding a plea cannot be effective unless the plea deal is confirmed by the prosecutor? More specifically, whether statements by Defendant and defense counsel are sufficient to prove the existence of a plea or if statements by the government are required to corroborate the plea before finding defense counsel's advice regarding the plea was ineffective?
For purposes of petitioner's habeas claim, it is well established that the right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, supra, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177 (6th Cir.1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.
To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 697. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697.
In the context of a plea bargain, Strickland requires that a petitioner show (1) deficient performance due to counsel's mistaken encouragement to reject a plea bargain and (2) actual prejudice: that but for counsel's mistaken advice, a reasonable probability exists that the petitioner would have accepted the plea offer. Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001); Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Despite the petitioner's framing of the issues relating to this claim, the focus of his objection is his belief that a plea deal involving a fifteen-year sentence was offered by the prosecution and that he rejected this offer based on his trial counsel's erroneous advice. That is, the crux of petitioner's argument with respect to Claim One is directed to the Magistrate Judge's conclusion that the petitioner had not met his burden with respect to the prejudice prong of the Strickland test. In making this argument, the petitioner relies heavily on the on-the-record exchange involving the trial court, trial counsel and the prosecutor. Specifically, petitioner places significant weight on the following statements made by trial counsel explaining that he misadvised the petitioner.
JUDGE: You advised him it was twenty to life?
Mr. Hodge: Twenty to life, yes sir. I advised him of that and he turned down a flat fifteen. He turned down (inaudible) voluntary manslaughter. I'm sorry. A straight murder charge offer at a different time. (Inaudible) and that is an egregious error on my part.
Mr. Warren: Just for the record, we talked about some possibilities. We never offered a flat fifteen.
Mr. Hodge: Well we had further discussions more recently where essentially (inaudible) from the Prosecutor was likely to be
accepted. All I'm saying is he without being properly advised did not authorize me to do that. I don't know what to say here. I don't know what to say.
***
Mr. Hodge: I can only apologize. It's just an egregious error on my part.
The Magistrate Judge concluded, as had the state appellate court, that this exchange was not evidence that a fifteen -year plea deal was offered. The Magistrate Judge then found that petitioner could not demonstrate actual prejudice under Strickland from failing to accept a plea deal that was never offered. Consequently, the Magistrate Judge concluded that the state court's decision was neither contrary to nor an unreasonable application of clearly established federal law. In his objection, petitioner insists that the above-quoted exchange is evidence that a fifteen-year plea deal was offered and that a reasonable probability exists that he would have entered a guilty plea but for his counsel's advice.
Petitioner does not cite any authority directed specifically to the issue of prejudice under circumstances similar to those presented here. The Court is aware that the Sixth Circuit has found prejudice resulting from erroneous advice or a failure to inform when a plea bargain has been offered. See Cooper v. Lafler, 376 Fed.Appx. 563 (6th Cir. 2010); Smith v. United States, 348 F.3d 545 (6th Cir. 2003); see also Griffin v. United States, 330 F.3d 733 (6th Cir. 2003). On the other hand, the Sixth Circuit has found no prejudice to exist in similar instances where there was no plea offer to accept. See Moss v. United States, 323 F.3d 445, 467 (6th Cir. 2003); Goldsby v. United States, 152 Fed.Appx. 431 (6th Cir. 2005). Other courts also have declined to find prejudice when no evidence of a plea deal exists. See Will v. Cain, 348 Fed.Appx. 35 (5th Cir. 2009) (reversing district court finding of prejudice when no evidence supported district court's finding of a plea deal); U.S. v. Welch, No. 07 C 4333 (02 CR 818), 2009 WL 1543715 (N.D. Ill. June 2, 2009). Consequently, the Court must consider whether the on-the-record exchange is evidence of the existence of a plea agreement as petitioner contends. The Court concludes that it is not.
There is no question that plea agreements are contractual in nature. United States v. Robison, 924 F.2d 612 (6th Cir. 1991). Consequently, courts use "traditional contract law principles in interpreting and enforcing" plea agreements. United States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011); see also United States v. Munoz, 430 Fed.Appx. 495, 498 (6th Cir. 2011); United States v. Harris, 473 F.3d 222, 225 (6th Cir. 2006). Under Ohio law, the essential elements of contract formation are offer, acceptance and consideration. Shapnick v. LCA-Vision, Inc., No. 1:03-CV-71, 2005 WL 1364633, at *4 (S.D. Ohio June 8, 2005). Here, the prosecutor stated on the record that a plea deal involving a "flat fifteen" year sentence was never offered. In response, petitioner's trial counsel did not challenge that statement. Instead, trial counsel asserted that "further discussions" were had "more recently." Despite petitioner's vehement arguments to the contrary, this exchange is not evidence that the plea deal at the heart of petitioner's first claim existed. Rather, the exchange confirms only that discussions occurred but that an offer of fifteen years had not been made. Consequently, the Magistrate Judge did not err in concluding that petitioner had failed to demonstrate prejudice as required under Strickland. Further, because petitioner has not demonstrated the existence of a plea arrangement, the Court need not consider petitioner's further argument that he would have accepted the plea deal.
CLAIM TWO
Petitioner's second claim is that he was deprived of his right to present a full defense because the trial court denied a self-defense instruction. In response, the respondent addressed both this issue and the issue of the omission of jury instructions on voluntary manslaughter - an issue petitioner had raised on direct appeal. As a result, in his reply, petitioner addressed the issue of his request for an instruction on voluntary manslaughter. The Magistrate Judge, noting that no prejudice to petitioner would result, considered both issues relating to jury instructions. Petitioner characterizes his objections to the Magistrate Judge's conclusions with respect to the omission of jury instructions as raising the following issues:
Whether the magistrate erred in finding Petitioner was not entitled to a jury instruction on self-defense when the evidence was undisputed that Petitioner was stabbed by the victim first, and acted in self-defense when stabbing the victim, which ultimately lead to her death?
Whether the magistrate erred in finding Petitioner was not entitled to a jury instruction on manslaughter when the state and defense agreed that Petitioner's actions were too emotional to be self-defense? Further, whether the facts of the case supported Petitioner's position that this murder was the result of a fit of rage or passion?
With respect to the issue of a trial court's failure to instruct on self-defense, the Sixth Circuit has held:
the right of a defendant in a criminal trial to assert self-defense is one of those fundamental rights, and that failure to instruct a jury on self-defense when the instruction has been requested and there is sufficient evidence to support such a charge violates a criminal defendant's rights under the due process clause. It is indisputably federal law as announced by the Supreme Court that a defendant in a criminal trial has the right to "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Harrington v. Jackson, 1 Fed.Appx. 367, 2001 U.S.App. LEXIS 532 (6th Cir. January 10, 2001). A necessary corollary of this holding is the rule that a defendant in a criminal trial has the right, under appropriate circumstances, to have the jury instructed on his or her defense, for the right to present a defense would be meaningless were a trial court completely free to ignore that defense when giving instructions.Taylor v. Withrow, 288 F.3d 846, 851-852 (6th Cir. 2002).
Under Ohio law, a defendant must establish three elements to prove self-defense: (1) that he was not at fault in creating the situation giving rise to the affray; (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of force; and (3) that he must not have violated any duty to retreat or avoid the danger. Horton v. Warden, Trumbull County Correctional Inst., 767 F.Supp.2d 833, 838 (N.D. Ohio 2011)(citing State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195, 199 (1978)); see also State v. Williford, 49 Ohio St.3d 247 (1990); State v. Robbins, 58 Ohio St.2d 74 (1979). In Ohio, a defendant may use as much force as is reasonably necessary to repel the attack. State v. Jackson, 22 Ohio St.3d 281 (1986); see also State v. Darby, No. 10AP-416, 2011 WL 3359652 at *9 (Ohio App. 10th Dist. August 4, 2011); State v. Prescott, 190 Ohio App.3d 702 (6th Dist. 2010); see generally Rice v. Moore, 633 F.Supp.2d 541, 558 (S.D. Ohio 2008). However, if a defendant "fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." Jackson, 22 Ohio St.3d at 284.
Further, a trial court does not err in failing to instruct the jury on self-defense where the evidence is insufficient to support the instruction. State v. Palmer, 80 Ohio St.3d 543 (1997). In determining whether a defendant has introduced sufficient evidence to successfully raise self-defense, a reviewing court must evaluate the evidence, "'which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue.'" Id. quoting Melchior, supra.
In his objection relating to the omission of the self-defense instruction, petitioner argues that the Magistrate Judge improperly found that petitioner was at fault for creating the situation which led to the stabbing. The primary focus of petitioner's argument with respect to the self-defense instruction, however, is that the Magistrate Judge improperly concluded that petitioner had failed to provide evidence that his use of deadly force was warranted under the circumstances and proportionate to the threat. According to petitioner, whether the circumstances of the attack supported a self-defense claim was an issue more appropriately determined by the jury.
Initially, the Court notes that petitioner's assertion that the Magistrate Judge found that petitioner's fault in creating the situation negated a self-defense instruction is based on a misreading of the Magistrate Judge's conclusions. The Magistrate Judge, while noting the state appellate court's reversal of the trial court's finding of fault, confined his consideration of the self-defense instruction issue to the force reasonably necessary to repel the victim's attack. Turning to petitioner's objection relating to the use of deadly force, a fair characterization of petitioner's argument is that whether the circumstances warranted the particular use of force at issue is always a jury question. Taking his argument one step further, what petitioner appears to be contending is that a court must instruct on self-defense when requested to allow the jury to make this determination. This simply is not a correct interpretation of the law.
As stated above, a defendant is privileged to use that force which is reasonably necessary to repel the attack. Petitioner argues that his stabbing the victim fourteen times after disarming her - including the infliction of six fatal wounds - was reasonably necessary to repel her attack which had resulted in petitioner's suffering two small stab wounds not requiring stitches. However, as petitioner consistently has failed to do both in the state courts and here, he has provided no evidence to support this argument. Rather, petitioner simply relies on his assertion that whether the circumstances warrant a finding of self-defense is always a jury question. Not only has petitioner failed to present such evidence, the evidence presented at trial suggests that his victim posed very little threat to him after she initially inflicted two minor stab wounds. In fact, the only evidence petitioner presented - brief testimony of a struggle where the victim pushed petitioner backward prior to his pushing and pulling her -demonstrates that he was free of any threat to his life or serious bodily injury when he proceeded to stab his victim. No reasonable jury could determine otherwise.
Under this circumstance, the Court has no choice but to conclude that there was insufficient evidence to support a self-defense instruction. As a result, the Magistrate Judge did not err in concluding that the trial court's failure to give an instruction on self-defense was consistent with controlling federal authority and based on a reasonable determination of the facts in light of the evidence that was presented. Consequently, petitioner's objection with respect to this portion of Claim Two will be overruled.
With respect to the issue of voluntary manslaughter, petitioner argues that because he presented facts indicating that he "acted in a fit of rage," the Magistrate Judge erroneously concluded that the trial court did not err by failing to instruct on this issue. Again, as with the self-defense instruction, petitioner argues that his intent was an issue for the jury to determine. According to petitioner, the number of stab wounds "directly illustrates" his emotion and passion and negates any conclusion of a purposeful killing. Petitioner argues that the state "attempts to have it both ways" -arguing that his actions were too violent to support a self-defense claim but not so violent as to demonstrate passion. In short, petitioner contends that because of the trial court's failure to instruct on voluntary manslaughter, he was denied his right to a fair trial.
Voluntary manslaughter is an inferior offense and not a lesser included offense of murder, under Ohio law, but "the test for whether a judge should give a jury instruction on voluntary manslaughter when a defendant is charged with aggravated murder is the same test to be applied as when an instruction on a lesser-included offense is sought." State v. Shane, 63 Ohio St.3d 630, 632 (1992). Accordingly, a defendant charged with aggravated murder is entitled to an instruction on voluntary manslaughter when the evidence presented at trial would reasonably support both an acquittal on the charged crime of aggravated murder and a conviction of voluntary manslaughter. State v. Conway, 108 Ohio St.3d 214, 238 (2006)(citing Shane). R.C. 2903.03 defines voluntary manslaughter and states that "[n]o person, while under the influence of sudden passion or in a sudden fit of rage * * * shall knowingly cause the death of another...." "Before giving a voluntary-manslaughter instruction in a murder case, the trial court must determine 'whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction.' " Id. at 238-239 (quoting Shane, syllabus paragraph one). "For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control." Shane, 63 Ohio St.3d at 635.
If petitioner merely were claiming that he is entitled to relief because the trial court erred under state law governing the giving of inferior offense instructions, he would be raising issues of state law only that are not cognizable in this federal habeas corpus proceeding. A federal court may review a state prisoner's habeas corpus petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not "on the basis of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); see also Smith v. Sowders, 848 F.2d 735, 738 (6th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 169, 102 L.Ed.2d 139 (1988); Allen v. Morris, 845 F.2d 610, 614 (6th Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). Petitioner, appears to be suggesting something beyond this, however. Petitioner seems to argue that constitutional issues are implicated because the trial court's failure to instruct on voluntary manslaughter rendered his trial fundamentally unfair. The Court does not agree.
In Bagby v. Sowders, 894 F.2d 792 (6th Cir. 1990), the Sixth Circuit interpreted the United States Supreme Court holding in Beck v. Alabama, 447 U.S. 625 (1980) to mean that "the Constitution does not require a lesser-included offense instruction in noncapital cases." Mason v. Brunsman, No. 1:07-CV-1020, 2009 WL 2169035 at *22 (S.D. Ohio July 16, 2009)(quoting Campbell v. Coyle, 260 F.3d 531 (6th Cir. 2001)). At the same time, the Sixth Circuit recognized that a claim regarding the failure to instruct on a lesser-included offense might be cognizable in habeas where "a fundamental miscarriage of justice is found to have resulted from the arbitrary and unsupportable denial of a lesser included offense instruction in clear defiance of state law." Bagby, 894 F.2d at 795. The Court in Bagby stressed, however, that this would occur only in the "most unusual circumstances, " including "where the failure to give such an instruction likely resulted in the conviction of an innocent person." Mason, 2009 WL 2169035 at *22 (citing Bagby, 894 F.2d at 795).
Here, the Court cannot conclude that this case presents the unusual case contemplated by Bagby where the trial court's failure to give an inferior offense instruction amounted to a fundamental miscarriage of justice that likely resulted in the conviction of an innocent person. See Bagby, 894 F.2d at 795. As the Magistrate Judge concluded, Petitioner failed to provide sufficient evidence that he was acting out of rage or passion to support an instruction on voluntary manslaughter. The entirety of the evidence offered at trial on this issue was synopsized accurately by the state appellate court as follows:
Hendrickson's testimony was that [sic] acted out of fear, not passion or rage. He consistently testified that he was "fearful" for his life and "scared" he might die; he "panicked" and reacted to protect himself. Moreover, Hendrickson never testified that he acted under a sudden fit of rage. Hendrickson argues that their violent struggle supports a finding of rage. However, we find that his vague description of a "struggle" consisting of "pushing and pulling" where he does not even remember stabbing Blankenship 14 times does not satisfy his burden to produce evidence showing that he in fact stabbed her with emotions of "anger, hatred, jealously, and/or furious resentment in rage," especially where his testimony makes no mention of such emotions. Likewise, Hendrickson did not satisfy his burden to produce evidence showing that he acted under a sudden passion. Other than one fleeting reference to "I guess, and in passion" there is no other evidence that Hendrickson actually stabbed her under a sudden passion sufficient to warrant a voluntary manslaughter instruction.State v. Hendrickson, No. 08CA12, 2009 WL 2682158 at *14 (Ohio App. 4th Dist. August 24, 2009); Exhibit 9 to Return of Writ. Consequently, petitioner's objection to the Magistrate Judge's conclusions regarding this portion of petitioner's second claim is also without merit and will be overruled.
For the reasons stated above, the petitioner's objections are OVERRULED. The Magistrate Judge's Report and Recommendation (#10) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
James L. Graham
United States District Judge