Opinion
5:20-CV-01809-CEF
01-08-2024
TERRENCE L. ROBINSON-BEY, Petitioner, v. WARDEN ED. SHELDON, Respondent
CARMEN E. HENDERSON MAGISTRATE JUDGE
OPINION AND ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION
CHARLES ESQUE FLEMING UNITED STATES DISTRICT JUDGE
I. PROCEDURAL BACKGROUND
Petitioner Terrence L. Robinson-Bey (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C.§ 2254. Petitioner is an Ohio prisoner who is currently serving an aggregate prison term of eighteen years for abduction, felonious assault, having weapons while under disability, and repeat violent offender and firearm specifications. (ECF No. 1, PageID #1; ECF No. 5-1, PageID #125). He now asserts five grounds for relief. (See generally ECF No. 1). Respondent Warden Ed Sheldon (“Respondent”) filed a return of writ on January 29, 2021. (ECF No. 5). Petitioner filed a reply on February 29, 2021. (ECF No. 7). Respondent filed a sur-reply on March 8, 2021. (ECF No. 8). Petitioner filed a response to the sur-reply on April 1, 2021. (ECF No. 9). On July 11, 2023, Magistrate Judge Carmen Henderson filed a Report and Recommendation (“R&R”). (ECF No. 10). Petitioner objected to the R&R on July, 24, 2023. (ECF No. 11).
II. LEGAL STANDARD
Under the Federal Magistrates Act, a district court must conduct a de novo review of those portions of the report and recommendation to which the parties have objected. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). Absent objection, a district court may adopt a report and recommendation without further review. See Peretz v. United States, 501 U.S. 923, 939 (1991); Thomas v. Arn, 474 U.S. 140, 141-42 (1985).
III. ANALYSIS
A. Ground One - Not Cognizable
In Ground One, Petitioner alleges that the accidental introduction of his criminal history into evidence at trial constituted a “dereliction of duty” in violation of the parties' agreement to stipulate to a prior offense of violence, absent the name or nature of the offense. (ECF No. 1, PageID #5). The Magistrate Judge found that Ground One is not cognizable because Petitioner failed to allege any violations of his constitutional rights as required for habeas review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (ECF No. 10, PageID #1165). Under AEDPA, an application for a writ of habeas corpus shall not be granted for any claim adjudicated on the merits in State court proceedings unless the claim resulted in a decision contrary to or involved an unreasonable application of clearly established Federal law. 28 U.S.C.§ 2254(d)(1). A petitioner's claim is not cognizable on habeas review if it “presents no federal issue at all.” Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991).
In his objection, Petitioner purports to raise a Fourteenth Amendment claim for a violation of his constitutional right to equal protection. (ECF No. 11, PageID #1181). Petitioner's objection fails because he failed to articulate a valid federal claim. Although Petitioner claims that his right to equal protection was violated, he has failed to establish which elements of equal protection were violated to support this claim. Petitioner has not demonstrated how the introduction of evidence of his prior convictions violated his right to equal protection, outside of a conclusory statement that it did. Thus, the Court agrees that this claim as stated is not cognizable.
B. Ground Two - Procedurally Defaulted
In Ground Two, Petitioner alleges that his conviction for abduction violates his constitutional right to due process and right to jury unanimity. (ECF No. 1, PageID #7). Specifically, Petitioner argues that the jury was improperly instructed that they could find him guilty of abduction, in violation of Ohio Rev. Code § 2905.02(A)(1) or (A)(2) and the jury returned a guilty verdict that failed to cite which subsection he was found to have violated. (Id.).
The Ohio Court of Appeals reviewed and rejected Petitioner's claim in Ground Two under plain error analysis. (ECF No. 10, PageID #1165). The Magistrate Judge recommends Ground Two be dismissed because it is procedurally defaulted. (Id.). After de novo review of the record, the Court agrees. A claim will be considered procedurally defaulted when: (1) the petitioner failed to comply with a state procedural rule, (2) the state courts enforced the procedural rule, and (3) the procedural rule is an “adequate and independent” state ground that forecloses review of a federal constitutional claim. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). If the latter three criteria are met, federal habeas review is precluded unless the petitioner can demonstrate cause for not following the state procedural rule and prejudice resulting from the alleged constitutional error. Id.
Petitioner's second ground for relief is procedurally defaulted. When a court makes a ruling admitting evidence, Rule 103 of the Ohio Rules of Evidence requires parties to make “a timely objection... stating the specific ground of objection.” Ohio Rule Evid. 103(A)(1). Petitioner failed to object to the trial court's jury instructions regarding abduction. (ECF No. 10, PageID #1165-66; See State v. Robinson-Bey, No. 28740, 127 N.E.3d 417, 428 (Ohio Ct. App. Dec. 26, 2018). Instead, Petitioner first raised this issue on direct appeal. (Id.). As a result, the Ohio Court of Appeals reviewed the issue under plain error analysis and rejected Petitioner's claim. (Id.).
Petitioner's failure to make a timely objection at trial is an adequate and independent ground to foreclose habeas review. Wogenstahl v. Mitchell, 668 F.3d 307, 336 (6th Cir. 2012) (“[F]ailure to adhere to the ‘firmly-established Ohio contemporaneous objection rule' is ‘an independent and adequate state ground' of decision.”) (citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006)); see also Hand v. Houk, 871 F.3d 390, 417 (6th Cir. 2017) (same). As a result, any issue regarding these instructions is procedurally defaulted.
Petitioner has not demonstrated cause for not following the procedural rule or prejudice resulting from a constitutional violation. In his objection, Petitioner states that he “never committed an abduction”; he alleges this is supported by the victim describing two different weapons, allegedly calling Petitioner for a ride before calling her boyfriend, and asking to be taken to her family's house rather than the hospital. (ECF No. 11, PageID #1182). He further argues that the abduction verdict is “non-responsive and contrary to law” and the record, alleging that the trial judge made an independent finding that Petitioner was guilty, in violation of Petitioner's Fifth Amendment due process right. (Id.). None of this demonstrates cause for why Petitioner failed to object to the abduction jury instruction at trial, nor does it demonstrate actual prejudice. Having failed to show cause for his failure to object or actual prejudice, Petitioner cannot now obtain habeas review of his procedurally defaulted claim in Ground Two.
C. Ground Three - Not Cognizable
In Ground Three, Petitioner alleges that the trial court erred in failing to give a lesser included offense instruction for negligent assault, in violation of his constructional right to equal protection. (ECF No. 1, PageID #8). The Magistrate Judge found Petitioner's claim in Ground Three not cognizable because Petitioner failed to demonstrate how the trial court's refusal to instruct on a lesser included offense resulted in a miscarriage of justice or violated his constitutional right to a fair court proceeding. (ECF No. 10, PageID #1168). The Magistrate Judge relied on the Sixth Circuit's holding that failure to instruct on lesser included offenses in noncapital cases is not such a fundamental defect that inherently results in a miscarriage of justice or the denial of the constitutional right to a fair trial. Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc), cert. denied, 496 U.S. 929 (1990) (failure to instruct on a lesser included offense in a non-capital case may be cognizable on federal habeas review 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.”). The Sixth Circuit has found that such a circumstance would only occur in the “most unusual circumstances.” Id. at 795.
Petitioner alleges that the trial court refused the lesser instruction based on “false testimony of record, and a statement made by petitioner under duress of being falsely charged with kidnap[ping].” (ECF No. 1, PageID #8). He further alleges that the victim testified that she never saw a weapon pointed or aimed at her, nor deliberately discharged at her. (Id.). He argues that “negligent mishandling is conceivable.” This argument does not demonstrate a circumstance so unusual that Petitioner's conviction is a miscarriage of justice or is the result of being denied a fair trial.
In his objection, Petitioner further fails to demonstrate how he was denied a fair trial or suffered a miscarriage of justice. Petitioner only states that felonious assault cannot be committed without committing negligent assault and the knowing element of felonious assault is not required to prove negligent assault. (ECF No. 11, at PageID #1182). Petitioner claims that it was not proven at trial that he intentionally pointed or aimed a weapon to shoot someone. (Id. at PageID #1183). Petitioner has not shown that the denial of his request for a lesser-included-offense instruction was arbitrary, unsupportable, and resulted in a miscarriage of justice or the denial of a fair trial. As a result, Ground Three is not cognizable.
D. Ground Four - Procedurally Defaulted
As to Ground Four, Petitioner only states that there was an “unsupported irregularity in proceedings.” (ECF No. 1, PageID #10). Petitioner makes no assertion or allegation in support of Ground Four in his petition. (See generally, ECF No. 1). In his appeal to the Ohio Court of Appeals, Petitioner argued that the Repeat Violent Offender (“RVO”) specification must be reversed because the trial court spoke with the jury before it reached a decision on the RVO specification. (ECF No. 5-1, PageID #256). Petitioner argued that this constituted an impermissible irregularity in the court's deliberative process. (Id.). The Magistrate Judge found that Ground Four is procedurally defaulted because Petitioner failed to make this claim in his appeal to the Supreme Court of Ohio. (ECF No. 10, PageID #1168). “A petitioner satisfies the exhaustion requirement once the state supreme court provides him with an opportunity to review his claims on the merits and the state supreme court has had a full and fair opportunity to rule on the claims.” Dickerson v. Mitchell, 336 F.Supp.2d 770, 786 (N.D. Ohio 2004). Petitioner admitted that he did not move for relief on his claim for an irregularity in the proceedings in his appeal to the Supreme Court of Ohio. (ECF No. 5-1, PageID #256). Therefore, he failed to exhaust his claim in Ground Four. Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the state courts] cannot be considered in a federal habeas corpus petition.”). In his objection, Petitioner states that although he did not object to the alleged improper communication at trial, an irregularity in the deliberative process is a structural error that can be raised for the first time on appeal. (ECF No. 11, PageID #1183). To be clear, the default is not that Petitioner failed to raise this issue on direct appeal. The default is Petitioner's failure to raise the issue before the Supreme Court of Ohio.
Petitioner has not demonstrated cause for not raising this issue in his appeal to the Ohio Supreme Court and prejudice therefrom. He also has not demonstrated that this Court's failure to review the claim would result in a fundamental miscarriage of justice. (See generally, ECF Nos. 1, 11). Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (“Federal Courts will not consider the merits of procedurally defaulted claims, unless the petitioner demonstrated cause for the default and prejudice resulting therefrom, or that failing to review the claim would result in a fundamental miscarriage of justice.”) (citing Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). As a result, Ground Four is not subject to federal habeas review.
E. Ground Five - Procedurally Defaulted/Meritless
Petitioner's fifth claim for relief is that there was insufficient evidence to convict him of felonious assault for two reasons: 1) insufficient evidence as to the operability of the firearm, and 2) insufficient evidence as to mens rea. (ECF No. 1, PageID #10). The Magistrate Judge found that Petitioner's insufficient evidence claim is procedurally defaulted to the extent it challenged the firearm's operability and is meritless as it relates to the knowledge element of felonious assault. (ECF No. 10, PageID #1169-70). After de novo review of the record, the Court agrees.
1. Firearm Operability
Petitioner failed to raise the operability of the firearm in his appeal to the Supreme Court of Ohio. (See ECF No. 5-1, PageID #337). Therefore, Ground Five is procedurally defaulted on the issue of firearm operability. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (“”Under Ohio law, the failure to raise on appeal a claim that appears on the face of the record constitutes a procedural default under the State's doctrine of res judicata.”); see also Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987). Additionally, Petitioner has not demonstrated cause for not raising this issue in his appeal to the Ohio Supreme Court and prejudice therefrom; nor has he demonstrated that this Court's failure to review the claim would result in a fundamental miscarriage of justice. (See generally, ECF Nos. 1, 11); Williams, 460 F.3d at 806.
2. Mens Rea
Petitioner argues that the state failed to prove the knowledge element of felonious assault. (ECF No. 1, PageID #10). He goes on to assert “the victim did not see weapon discharge, victim describe two different weapons during allege[d] abduction, State did not offer evidence weapon was operable, did not examine projectile of one of two describe[d] guns.” (Id.). The appellate court correctly used the standard of review in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) to review Petitioner's sufficiency of the evidence claim. (See ECF No. 5-1, PageID #210). “An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.” Jenks, 61 Ohio at 273. The Jenks standard of review follows the federal standard of review. See Jackson v. Virginia, 443 U.S. 307 (1979).
Petitioner claims that there was no evidence that he knowingly discharged the firearm that led to his conviction of felonious assault. (ECF No. 5-1, PageID #241, 76). However, after consideration of the facts presented, and viewing the evidence in the light most favorable to the prosecution, the court of appeals determined that a reasonable juror could have found that Petitioner knowingly shot the victim. (Id. at 319). In his petition, Petitioner does not demonstrate how the state court of appeals' sufficiency of the evidence finding was objectively unreasonable. See Coleman v. Johnson, 566 U.S. 650, 651 (2012). In his objection, Petitioner merely restates his previous argument, stating that the state's only evidence of guilt was the evidence of his previous convictions. (ECF No. 11, PageID #1183). He fails to explain how the evidence at trial - including facts of the incident, victim testimony, and finding a firearm in his vehicle - is insufficient evidence of his guilt. Therefore, Ground Five is meritless as to the knowledge element of felonious assault.
IV. CONCLUSION
Accordingly, the Court ADOPTS Magistrate Judge Henderson's R&R, incorporates it fully herein by reference, and DISMISSES the Petition. The Court finds, after de novo review, that Petitioner's claims are not cognizable, procedurally defaulted, or meritless for the reasons stated. The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision cannot be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.