Opinion
CASE NO. 2:13-CV-1243
02-25-2015
HOWARD BODDIE, JR., Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
JUDGE ALGENON L. MARBLEY
ORDER and REPORT AND RECOMMENDATION
Petitioner Howard Boddie, Jr., brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent's Return of Writ, Petitioner's Reply and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Petitioner's Motion for Leave to Supplement Traverse, with the arguments submitted therein in support of his claims, see ECF 15, is GRANTED. His request for judicial notice see id., is DENIED.
I. Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
Appellant was indicted on one count of having a weapon while under disability. The charge is a third-degree felony. He pleaded not guilty to the charge, and the trial court appointed an attorney to represent him because he was
indigent. Before trial, however, appellant complained about his attorney's performance. The trial court refused to appoint another attorney, and appellant kept his attorney rather than represent himself.
At trial, Karen Monroe testified as follows. Monroe dated appellant, and they shared an apartment. On February 23, 2008, Monroe saw appellant in the apartment with a gun, and she left because she was scared. When she returned later that day, appellant pointed his gun at her and started shooting. Monroe called the police. Appellant jumped out a window and landed on the roof of the porch. The police arrested appellant and took him to jail. Appellant told Monroe in a letter from jail that " '[a]fter we get these charges dismissed, we never have to worry about that weapon again.' " (Tr. 98-99.) He also previously admitted to being convicted of aggravated burglary in the 1980s. Lastly, Monroe identified state's exhibit A as appellant's gun.
Columbus Police Officer Troy Hammel responded to Monroe's call for help, and he testified that bullet casings were inside her apartment. He also said that he found appellant on the roof of the porch and that a gun was four to six feet away from appellant. Hammel identified state's exhibit A as that gun. Columbus Police Officer Phillip Jackson testified that there were multiple bullet holes on the walls where the shooting occurred. Mark Hardy, a forensic scientist with the Columbus Police Department, tested the gun and bullet casings that were recovered after the shooting. He testified that the gun was operable and that the bullet casings were fired from that gun.
Lisa Beck is employed with the Identification Bureau at the Franklin County Sheriff's Department, and she testified as follows. Beck has been in her position for nine years, and she has compared "[t]housands" of fingerprints as part of her job. (Tr. 240.) The prosecutor asked Beck to discuss the different ways fingerprints are collected, and defense counsel objected. The parties had a discussion off the record, and Beck continued with her testimony. The prosecutor asked Beck to compare appellant's fingerprints, which were taken in court, with the fingerprint of a Howard Boddie, Jr., taken in August 1987. Beck said the fingerprints matched.
Beck noted that appellant was fingerprinted in August 1987 after he was incarcerated in the county jail for an aggravated burglary arrest. Beck said that the fingerprint was on a record containing appellant's physical characteristics and military history. She indicated that her employer, the identification bureau, creates a record for each county jail inmate, and she said that the records are never destroyed. Beck identified state's exhibit E as a copy of the 1987 record, and she said that the exhibit was "true and accurate." (Tr. 241.) The trial court admitted the exhibit into evidence with no objection from defense counsel. The prosecutor also moved to admit a certified copy of a judgment entry indicating that a person named Howard Boddie, Jr., was convicted of aggravated burglary in May 1988, and the trial court admitted the entry into evidence.
On cross-examination, Beck acknowledged that she has never been declared a fingerprint expert. She noted, however, that she took classes on fingerprint comparison and that she previously compared fingerprints while testifying in court. Defense counsel subsequently argued that Beck was not qualified to compare the fingerprints taken in court with the 1987 fingerprint. The trial court concluded, however, that Beck "had enough training" to make that comparison. (Tr. 266.)
At the close of the evidence, defense counsel moved for an acquittal pursuant to Crim.R. 29(A). As above, defense counsel challenged Beck's fingerprint comparison. The trial court concluded that the jury was permitted to consider Beck's testimony, however, and it denied the motion for acquittal. Defense counsel also criticized Beck's fingerprint comparison during closing argument. Afterward, the jury found appellant guilty of having a weapon while under disability.
II. ASSIGNMENTS OF ERROR
Appellant appeals, and his counsel assigns the following as error:
[I.] HOWARD BODDIE JR. WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO LISA BECK GIVING HER EXPERT OPINION ON THE IDENTIFICATION AND COMPARISON OF FINGERPRINTS WHEN SHE WAS NOT AN EXPERT ON FINGERPRINT COMPARISON.On November 27, 2012, the appellate court dismissed Petitioner's appeal. State v. Boddie, No. 12AP-74, 2012 WL 5945946 (Ohio App. 10th Dist. Nov. 27, 2012). On March 13, 2013, the Ohio Supreme Court denied the appeal. State v. Boddie, 134 Ohio St. 3d 1488 (Ohio March 13, 2013).
[II.] HOWARD BODDIE JR. WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE ADMISSION OF STATE'S EXHIBIT "E" OR ANY DISCUSSION REGARDING THE ORIGINAL DOCUMENT P[UR]PORTING TO CONTAIN AN ORIGINAL PRINT OF APPELLANT AS NEITHER THE ORIGINAL DOCUMENT OR THE COPY WERE PRODUCED BY A RECORDS CUSTODIAN OR WERE SELF-AUTHENTICATING.
[III.] THE TRIAL COURT VIOLATED HOWARD BODDIE, JR.'S R[I]GHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR HAVING WEAPONS WHILE UNDER DISABILITY WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
[IV.] THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S RULE 29 MOTION AS THERE WAS NOT SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT.
This court also granted appellant leave to file a supplemental brief, pro se, in which he asserts the following assignment of error:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO INVESTIGATE VARIOUS REPORTS IN CONJUNCTION TO PLAINTIFF'S WITNESS KAREN MONROE AND OTHER PERTINENT INVESTIGATIONS[ .]
On December 20, 2013, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied effective assistance of counsel because his attorney failed to object to admission of fingerprint evidence and conduct adequate pre-trial investigation, including locating and calling defense witnesses, challenging his constructive possession of the firearm and determining the validity of his prior felony conviction underlying the charge (claim ones, two and five); that his conviction is against the manifest weight of the evidence (claim three); that the evidence is constitutionally insufficient to sustain his conviction (claim four). Petitioner has attached various letters and documents in support of his allegations. See Reply, ECF 14, PageID# 676-699. It is the position of the Respondent that Petitioner's claims are procedurally defaulted or without merit.
Petitioner also has pending a § 2254 petition challenging his related criminal convictions on charges involving domestic violence and abduction arising out of a separate criminal case. See Boddie v. Warden, Case No. 2:14-cv-226 (S.D. Ohio).
II. Procedural Default
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required fairly to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 ;Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "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." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided 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. Id. Finally, if the Court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis also applies to failure to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
In claim five, Petitioner asserts that he was denied the effective assistance of trial counsel because his attorney failed to challenge his possession of the firearm or his prior criminal conviction, locate and call defense witnesses, or establish the incapacity of the alleged victim by Petitioner's power of attorney. Petitioner appears to have raised these claims in his supplemental appellate brief. See Exhibit 10 to Return of Writ, ECF 9-1. He did not, however, present these claims to the Ohio Supreme Court. Exhibit 18 to Return of Writ, ECF 9-1, PageID# 226-27. He may now no longer do so by operation of Ohio's doctrine of res judicata. State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16, 423 (1981); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). The state courts were never given the opportunity to enforce this procedural rule. The Court therefore deems the first and second parts of Maupin to have been met with respect to petitioner's fifth claim.
Petitioner contends that he presented this claim to the Ohio Supreme Court., or by the submission of his supplemental appellate brief. See Motion for Leave to Supplement Traverse, ECF 15, PageID# 702-03. However, the record does not indicate that Petitioner raised the claim in the Ohio Supreme Court. He would not have done so by the attachment of his pro se supplemental brief in the Ohio Court of Appeals.
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The Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). The doctrine of res judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently refused, in reliance on that doctrine, to review the merits of claims. See State v. Cole; State v. Ishmail. Further, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. The third part of the Maupin test has therefore been met.
Petitioner may still obtain review of this claim on the merits, if he establishes cause for his procedural default, as well as actual prejudice from the alleged constitutional violation. Petitioner has not done so here.
Petitioner argues that he did not waive claim five because he exercised due diligence in presenting this claim to the state courts, and because "fraud and scare tactics" were used by the prosecution to obtain Karen Monroe's testimony against him. Additionally, he argues that the record fails to reflect a plain statement indicating that the state courts plainly dismissed his claim on the basis of his procedural default. Reply, ECF 14, PageID# 665-66.
His arguments are not persuasive. The record does not support Petitioner's contention that he exercised diligence in presenting his allegations in claim five to the state courts, in view of his failure to raise the claim in the Ohio Supreme Court. Regardless, the record reflects that Petitioner did not present claim five to the Ohio Supreme Court, as he must do in order to avoid the waiver of this claim in these proceedings. As previously discussed, the Ohio Supreme Court could not have indicated the basis for Petitioner's default, as it had no opportunity to do so. Petitioner thus has waived claim five for review.
Petitioner nonetheless may obtain review of the merits of his claim if the record reflects that this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333. To establish a credible claim of actual innocence, petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Lenoir v. Warden, Southern Ohio Correctional Facility, 886 F.Supp.2d 718, 729 (S.D. Ohio 2012) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)); see also Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 427 (6th Cir. 2003). The Court is satisfied from its independent review of the record that this is not such a case.
III. Merits .
A. Standard of Review
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 (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 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Renico v. Lett, 559 U.S. 766 (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-In applying this statute, the Supreme Court has held that "[t]he focus ... is on whether the state court's application of clearly established federal law is objectively unreasonable ... an unreasonable application is different from an incorrect one." To obtain habeas corpus relief, a petitioner must show the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, --- U.S. ----, ----, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 562 U.S. ----, ----, 131 S.Ct. 770, 786-87 (2011). This bar is "difficult to meet" because "habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. at 786 ( quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979) (Stevens, J., concurring in judgment)). In short, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
(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
B. Claims One and Two: Ineffective Assistance of Counsel
In claim one, Petitioner asserts that he was denied effective assistance of counsel because his attorney failed to object to testimony by a non-expert regarding fingerprint evidence used to establish his prior felony conviction. In claim two, Petitioner asserts that he was denied effective assistance of counsel because his attorney failed to object to admission of "Exhibit E," allegedly containing a photocopy of Petitioner's fingerprint. The state appellate court addressed these claims as follows:
[A]ppellant argues that his defense counsel rendered ineffective assistance. We disagree.
The United States Supreme Court established a two-pronged test for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel's performance was outside the range of professionally competent assistance and, therefore, deficient. Id. at 687. Second, the defendant must show that counsel's deficient performance prejudiced the defense and deprived the defendant of a fair trial. Id. A defendant establishes prejudice if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Appellant first claims that defense counsel failed to challenge Beck's opinion that the 1987 fingerprint matches
the fingerprints he provided in court. But defense counsel made multiple arguments to the trial court that Beck was not qualified to provide that opinion, and he objected when the prosecutor began to lay a foundation for Beck to testify about her opinion. In addition, defense counsel cross-examined Beck on her opinion, and he criticized it during closing argument. Therefore, we reject appellant's contention that defense counsel did not challenge Beck's opinion.State v. Boddie, 2012 WL 5945946, at *2-4.
Next, appellant asserts that defense counsel was ineffective for failing to object to state's exhibit E on grounds that it was not authenticated. An exhibit must be authenticated before it is admitted into evidence. State v. Griffin, 10th Dist. No. 10AP902, 2011-Ohio-4250, ¶ 64. An exhibit is authenticated when the record establishes that it "is what its proponent claims." Evid.R. 901(A). "[T]he threshold standard for authenticating evidence pursuant to Evid.R. 901(A) is low, and 'does not require conclusive proof of authenticity * * *.' " (Emphasis sic.) State ex rel. Montgomery v. Villa, 101 Ohio App.3d 478, 485 (10th Dist. 1995), quoting State v. Easter, 75 Ohio App.3d 22, 25 (4th Dist. 1991). Here, the prosecution submitted state's exhibit E as a copy of Howard Boddie, Jr.'s record from county jail, and Beck authenticated the exhibit when she testified that it was a true and accurate copy of the inmate's record, which was created and maintained by her employer, the identification bureau, as part of its regular duties. See Evid.R. 901(B)(7). Consequently, defense counsel was not deficient for declining to challenge the authenticity of state's exhibit E.
Appellant also claims that state's exhibit E was inadmissible because it was a photocopy. Under Evid.R. 1003, however, the trial court is permitted to admit photocopied records into evidence. Therefore, defense counsel need not have objected to state's exhibit E on grounds that it was a photocopy. Lastly, appellant argues that defense counsel should have objected to the exhibit because it contained information about his military record. According to appellant, the jury might have determined that he had a propensity to use guns because of his military background. But it was reasonable for defense counsel to have concluded instead that the jury would look favorably on appellant for his military service.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). The court in Strickland announced the now familiar two-prong test to determine if there was ineffective assistance of counsel, which would result in reversible error:
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, 466 U.S. at 687.
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [ ... ]." Id. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
The United States Supreme Court has recently cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington v. Richter, 562 U.S. 86, ----, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). The Court observed that while " '[s]urmounting Strickland's high bar is never ... easy.' ... [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult ...." Id. ( quoting Padilla v. Kentucky, 559 U .S. 356, ----, 130 S.Ct. 1473, 1485 (2010)(and citing Strickland, 466 U.S. at 689). The Court instructed that the standards created under Strickland and § 2254(d) are both "'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he 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. Here, the record reflects that Petitioner has failed to meet this test.
As discussed by the state appellate court, defense counsel challenged the reliability and veracity testimony of prosecution witness Lisa Beck. Counsel challenged her testimony that Petitioner's fingerprint taken in court matched that of a photocopy of one obtained in August 1987, at the time of a prior arrest. Defense counsel established Beck's lack of expertise and her inexperience in the area of fingerprint identifications. He suggested, during cross examination, that it was an outdated method of identification and no longer commonly used by authorities to identify the perpetrator of a crime. Trial Transcript, Vol. II, ECF 14, PageID# 529-540. Beck acknowledged that she had only taken approximately thirty seconds to conclude that the prints contained sufficient similarities to reflect a positive match. She also acknowledged that she had testified on fingerprint evidence only six or seven times in nine years and three times under circumstances similar to those presented in this case. She did not keep abreast of new developments in the field and had not renewed her proficiency by examination since her certification. Further, the state appellate court determined that the trial court properly admitted Exhibit E into evidence, and that there was no error. This Court is bound by that determination. A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure, Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988), and defers to a state court's interpretation of its own rules of evidence and procedure. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir.1985)). Further, this Court is bound by the state court's ruling that, under the Ohio Rules of Evidence, the photocopy was properly admitted and authenticated. Counsel could not have been ineffective for raising those challenges. Therefore, Petitioner has failed to establish the denial of the effective assistance of counsel under the two-prong test of Strickland.
C. Claim Three: Manifest Weight of the Evidence
Petitioner claims that his conviction is against the manifest weight of the evidence. This Court has consistently held that a claim that a jury's verdict was against the manifest weight of the evidence cannot be considered on its merits in an action for habeas corpus relief filed under 28 U.S.C. § 2254. That is because § 2254 permits federal courts to grant relief to a state prisoner only if there is a showing that the person is being held in custody in violation of the Constitution or laws of the United States. Neither the Constitution nor the laws of the United States require reversal of a jury's verdict if it is against the manifest weight of the evidence; such a claim is based entirely on Ohio law. As the Court explained in Norris v. Warden, NCI, No. 2:08-CV-732, 2010 WL 582623, *9-10 (S.D. Ohio Feb.11, 2010), adopted and affirmed 2010 WL 883847 (S.D. Ohio Mar.9, 2010):
Petitioner's contention ... that his convictions are against the manifest weight of the evidence fails to present an issue appropriate for federal habeas corpus review. The Due Process Clause does not provide relief for defendants whose convictions are against the manifest weight of the evidence, but only for those who have been convicted without enough proof to allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.1983).... [U]nder Ohio law, a claim that a verdict was against the manifest weight of the evidence-as opposed to one based upon insufficient evidence-requires the appellate court to act as a "thirteenth juror" and review the entire record, weight the evidence, and consider the credibility of witnesses to determine whether "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. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Since a federal habeas court does not function as an additional state appellate court, vested with the authority to conduct such an exhaustive review, any claim that petitioner's conviction was against the manifest weight of the evidence cannot be considered by this Court.Id. Thus, claim three does not raise an issue regarding federal law and should be dismissed.
D. Claim Four: Insufficiency of the Evidence
Petitioner claims that the evidence is constitutionally insufficient to sustain his conviction. An allegation that a verdict was entered upon insufficient evidence states 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, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699, 2007 WL 3005746 (S.D. Ohio 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St.3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"), two levels of deference to state decisions are required:
"In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts
differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008).
We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, "it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1, ----, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) ( per curiam ). And second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was
'objectively unreasonable.' " Ibid. (quoting Renico v. Lett, 559 U.S. ----, ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)).Coleman v. Johnson, 566 U.S. ----, ----, 132 S.Ct. 2060, 2062 (2012) (per curiam).
Petitioner raised his claim as a violation of Rule 29 of the Ohio Rules of Criminal Procedure, but the state appellate court considered the claim as one of the insufficiency of the evidence. Petitioner thereby presented his federal claim to the state appellate court, and Respondent does not argue otherwise.
The Court of Appeals decided the claim as follows:
We next address appellant's fourth assignment of error, in which he argues that the trial court erred by denying his Crim.R. 29(A) motion for acquittal. We disagree.
A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37. That standard tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 192. We examine the evidence in the light most favorable to the state and conclude whether any rational trier of fact could have found that the state proved beyond a reasonable doubt the essential elements of the crime. State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34. We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. Treesh at 484. In determining whether a conviction is based on sufficient evidence, we do not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. State v. Lindsey, 190 Ohio App.3d 595, 2010-Ohio-5859, ¶ 35 (10th Dist.). See also State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79 (noting that courts do not evaluate witness credibility when reviewing a sufficiency of the evidence claim).
Appellant was convicted of having a weapon while under disability, pursuant to R.C. 2923.13(A)(2), which states that "no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person * * * has been convicted of any felony offense of violence." At trial, the prosecution contended that appellant was previously convicted of aggravated burglary and submitted evidence to that effect.
We have two briefs before us that were filed on behalf of appellant. In his counsel-filed brief, appellant admits that aggravated burglary is a felony offense of violence, but he contends that the prosecution failed to prove that he had a prior conviction for aggravated burglary. In his pro se, supplemental brief, however, appellant admits that he was on "parole for Aggravated Burglary in 1999." (Supplemental brief of defendant-appellant at 5.) Despite this contradiction, we turn to the law and evidence at issue.
R.C. 2945.75(B)(1) provides that a copy of a judgment entry, with proof that the individual named in the entry is the offender in the case at bar, is "sufficient to prove such prior conviction." While this provision prescribes a sufficient method for proving a prior conviction, it is not the only method by which to do so. State v. Gwen, --- Ohio St.3d ----, 2012-Ohio-5046, ¶ 1, 14; State v. Volpe, 10th Dist. No. 06AP-1153, 2008-Ohio-1678, ¶ 51. Moreover, a match between the defendant's name and the name on a prior entry is not enough to make this showing. State v. Lumpkin, 10th Dist. No. 05AP-656, 2006-Ohio-1657, ¶ 16.
Here, the state submitted a certified judgment entry issued by the Franklin County Court of Common Pleas in May 1988. The entry indicates that a Howard Boddie, Jr., pled guilty to, and was convicted of, aggravated burglary, in violation of R.C. 2911.11. The state also submitted an Identification Bureau Master History Sheet from the Franklin County Sheriff's Office. The sheet indicates that a Howard Boddie, Jr., was charged with aggravated burglary, in violation of R.C. 2911.11, in August 1987, the same crime for which Howard Boddie, Jr., was convicted in 1988. Beck testified that the history sheet records all the information about a person when he is brought in to the sheriff's office
and that fingerprints are gathered "to get their FBI, BCI numbers. So this piece of paper right here has all that information on it along with a right index fingerprint." (Tr. 241.) At trial, Beck obtained a right index fingerprint from appellant. She then testified that the fingerprint on the 1987 history sheet matched appellant's fingerprint. And finally, Monroe testified that appellant told her about a conviction for aggravated burglary "in the eighties." (Tr. 87-88.)
Construing the evidence in a light most favorable to the prosecution, we conclude that the state's evidence was sufficient to prove that appellant has a prior conviction for aggravated burglary. Accordingly, we also conclude that sufficient evidence supports appellant's conviction for having a weapon while under disability and that the trial court did not err by denying his motion for acquittal on that charge. We overrule appellant's fourth assignment of error.
State v. Boddie, 2012 WL 5945946, at *4-5. The appellate court also stated, in denying Petitioner's claim that his conviction was against the manifest weight of the evidence,
Appellant also asserts that Monroe was not credible when she testified that he had a gun on February 23, 2008. But corroborating evidence supports Monroe's testimony. Monroe identified state's exhibit A as appellant's gun, Hammel said that he found appellant a few feet away from that gun, and the evidence proves that appellant shot the gun. Appellant demonstrated furtive conduct reflective of a consciousness of guilt when he fled out the window after shooting his gun. See State v. Hamilton, 10th Dist. No. 11AP-981, 2012-Ohio-2995, ¶ 15. And, in a letter from jail, appellant admitted to Monroe that he had a gun.Id. at *6.
Petitioner disputes the factual findings of the state appellate court, and provides an alternative version of the events. He indicates, inter alia, that on the day in question, he arrived home to find a man by the name of "Black Herb" and Petitioner's girlfriend, Karen Monroe, smoking crack cocaine in the bedroom. Reply, ECF 14, PageID# 651. They had stolen a firearm and Black Herb fired a shot out the back window to show it was operational so that Petitioner would purchase the firearm. Id. An altercation ensued, and Black Herb began firing the gun down the stairs of Petitioner's apartment, threatening to kill everyone in the room. In fear for his life, Petitioner jumped out the window. His girlfriend then dropped the gun out the bedroom window. PageID# 651-52.
These facts, however, do not appear in the trial transcript. Even if they did, it would not establish that the evidence is constitutionally insufficient to sustain Petitioner's conviction. The standard for determining whether the evidence is constitutionally sufficient to sustain the conviction requires the Court to construe all of the facts in the light most favorable to the prosecution. Doing so here, the evidence is sufficient to sustain Petitioner's conviction, and Petitioner has failed to establish that the state appellate court's decision making this determination is unreasonable so as to justify federal habeas relief.
IV. Recommended Disposition .
For all of the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Petitioner's Motion for Leave to Supplement Traverse, with the arguments submitted therein in support of his claims, see ECF 15, is GRANTED. His request for judicial notice see id., is DENIED.
V. Procedure on Objections .
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
/s/ Terence P. Kemp
United States Magistrate Judge