# Burnett v. Warden, London Correctional Institution

> District Court, S.D. Ohio · October 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10374045

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 8, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

FATE BURNETT II,

Petitioner, : Case No. 3:19-cv-315

- vs - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
London Correctional Institution,

:
Respondent.
REPORT AND RECOMMENDATIONS

This is an action on a Petition for Writ of Habeas Corpus, brought pro se by Petitioner Fate
Burnett II pursuant to 28 U.S.C. § 2254. Burnett seeks relief from his conviction in the Common
Pleas Court of Clark County, Ohio, for operating a motor vehicle under the influence of alcohol.
Burnett pleads the following grounds for relief:
Ground One: Denial of Due Process of Law per 14th Amendment
where conviction based upon insufficient evidence.

Supporting Facts: The petitioner’s conviction is not supported by
sufficient credible evidence where the trier of fact’s inference of
guilt is bases [sic] solely and entirely on another inference.

Ground Two: Denial of effective assitance [sic] of trial counsel &
trial court in violation of 6th and 14th Amendment.

Supporting Facts: Trial counsel gave petitioner false legal advise
[sic] concerning proper jury instructions which effected [sic] his
decision as to what plea to enter and whether he would testify and
trial court caused defense counsel’s ineffectiveness where court
agreed to give requested jury insuruction [sic] but did not thereby
effecting [sic] defense strategy, a constitutional structural defect
error.

(Petition, ECF No. 1-1.) Burnett asserts he raised Ground One on direct appeal and Ground Two
in post-conviction.

Litigation History

The incident involved in this case occurred in the early morning hours of January 12, 2017.
Police officers were dispatched to 223 South York Street in Springfield, Ohio, to investigate a car
crashed into the back yard of that house, the residence of Petitioner’s aunt, Brenda Burnett, and
her husband, Charles Porter. State v. Burnett, 2018-Ohio-109 (Ohio App. 2nd Dist. Jan. 12, 2018),
appellate jurisdiction declined, 152 Ohio St. 3d 1483 (2018). Officer Derek Smith, the first on the
scene, testified he found a pickup truck in the Porter yard with the engine revving and the rear
wheels spinning, but the car was just rocking in the mud with its front passenger wheel completely
broken off. Id. at ¶ 3. Petitioner was in the driver’s seat, obviously intoxicated. Id. Upon being
ordered out of the truck, Burnett charged at the officer but was restrained. He claimed his aunt
had been drinking with him at Waldon’s bar, had driven him to her house, and then asked him to
remove the truck from the yard. At first denying that anyone other than himself and Brenda had
driven the truck that night, he later claimed his father had driven the truck and he had been dropped

off at his aunt’s house by Cody Kizer. Id. Burnett refused to perform field sobriety tests or to
submit to breath alcohol testing.
Brenda Burnett testified she had not seen Petitioner that evening at Waldon’s, where she
worked until 10 p.m., or for two or three weeks prior to that night. Id. at ¶ 6. She denied asking
Burnett to move the truck and denied driving it that evening. Her husband also testified he saw
the truck moving and recognized Burnett when the police removed him from the truck and arrested
him. Id. at ¶ 7.
Burnett did not testify in his own defense. Instead, Cody Kizer testified he was in bed
when Burnett called him from Jimmy T’s bar to pick him up. Burnett, 2018-Ohio-109 at ¶¶ 9, 10.
On the way there, a tie rod broke, coincidentally in front of Brenda Burnett’s home. Id. at ¶ 10.

Kizer pulled the truck into the yard and called his fiancé, Jade Carpenter, to pick him up. Id. She
did and they proceeded to Jimmy T’s, picked up Burnett, returned him to the truck, and left him
there with the keys because he was intoxicated and annoying. Id. at ¶ 10.

Analysis

Ground One: Insufficient Evidence

In his First Ground for Relief, Burnett asserts he was convicted on insufficient evidence.
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, 319 (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; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio Oct. 12, 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 273 (1991)(paragraph two of the
syllabus)(superseded by constitutional amendment on other grounds, see State v. Smith, 80 Ohio
St.3d 89, 102 n.4 (1997)). 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 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); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.
Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing
more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

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. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Burnett presented his insufficiency of the evidence claim on direct appeal as his third
assignment of error and the Second District resolved it as follows:
[*P26] In his third assignment of error, Burnett challenges the legal
sufficiency of the evidence to sustain his OVI conviction. He cites
the testimony of Carpenter and Kizer to support his claim that Kizer
drove the truck to the yard where police observed it. He also argues
that the truck was inoperable in the yard when police saw him in the
driver's seat revving the engine and spinning the rear wheels. Based
on this claim of inoperability, Burnett contends he cannot be
convicted of OVI for his actions in the driver's seat.

[*P27] When a defendant challenges the sufficiency of the
evidence, he is arguing that the State presented inadequate evidence
on an element of the offense to sustain the verdict as a matterof law.
State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d
Dist.2000). "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. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt." State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus.

[*P28] With the foregoing standards in mind, we find legally
sufficient evidence to support Burnett's OVI conviction under either
of two theories. First, circumstantial evidence supports an inference
that an intoxicated Burnett drove the truck to the yard where police
found it with a broken wheel. When questioned by police, Burnett
gave seemingly conflicting stories about who had driven. He also
claimed to have been with Brenda Burnett, but she refuted his
assertion. She denied having been with him or seeing him that
evening. Charles Porter also testified that it only took him a couple
of minutes to go outside after hearing commotion. He did not see
anyone exit the truck, which was moving back and forth. He also
waited outside before police came and did not see anyone arrive or
leave. The only person on the scene when police arrived was
Burnett. The foregoing evidence, if believed, supports a reasonable
inference that Burnett was driving the truck when it left the road and
stopped in the yard. We note too that the testimony of Carpenter and
Kizer reasonably could have been rejected by the jury. Having
reviewed a transcript of their testimony, we find the credibility of
these witnesses is questionable. Among other things, the jury
reasonably could have rejected Kizer's claim that he and Carpenter
dropped Burnett off at the truck and left him there with the keys,
alone at night in January for several hours, before returning after
daylight to look for him. Kizer's explanation for this seemingly
implausible action was that Burnett was intoxicated and annoying.
Contrary to Kizer's testimony, the jury reasonably could have
concluded that Burnett drove himself to the location in the yard
where police found him in the driver's seat revving the engine.

[*P29] Second, the jury reasonably could have found Burnett guilty
based on the police officers' observation of him operating the truck.
The OVI statute, R.C. 4511.19(A), provides among other things that
"[n]o person shall operate any vehicle * * * if, at the time of the
operation," that person is under the influence of alcohol. As set forth
above, the term "operate" means "to cause or have caused movement
of a vehicle[.]" R.C. 4511.01(HHH). The State presented
uncontroverted evidence that Burnett caused the truck to move
appreciably from side to side in the mud when he revved the engine
and spun the rear wheels. Because the vehicle was able to move in
the yard, it necessarily was operable within the meaning of R.C.
4511.19(A). Thus, we find legally sufficient evidence to support a
finding that Burnett operated the vehicle in violation of the OVI
statute. The third assignment of error is overruled.

Burnett, 2018-Ohio-109.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86,
100(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. §
2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceedings.
In this case the Second District applied the correct standard from Jackson v. Virginia, 443
U.S. 307 (1979). Further, the court reasonably applied Jackson to the evidence before it. Several
people, including Charles Porter, gave direct testimony that they saw Burnett operating the vehicle
– revving the engine and spinning the rear wheels in a vain attempt to move the truck.
Burnett’s specific claim in his Petition is that his conviction is based on an impermissible
inference upon an inference. However, he does not tell the Court which element of the crime he
believes was improperly proved in that way. The Second District found that “circumstantial
evidence supports an inference that Burnett actually drove the vehicle on the road before it came
to a stop in the yard.” Id. at ¶ 25. But the State did not have to prove that Burnett operated the
vehicle on the road. Ohio Revised Code § 4511.19 prohibits operating a vehicle anywhere in the
state while under the influence, not just on public roads and highways. Although the issue was
apparently not raised in the Second District, the jury was entitled to infer Burnett’s ability to
operate the vehicle was appreciably impaired by the testimony of Porter and Kizer that he was
intoxicated and by his refusal to perform field sobriety tests or have his breath alcohol analyzed.

Burnett’s First Ground for Relief is therefore without merit and should be dismissed.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Burnett claims he received ineffective assistance of trial
counsel when his counsel gave him bad legal advice about jury instructions which affected his
decision on whether to testify. Burnett raised this claim in a petition for post-conviction relief
under Ohio Revised Code § 2953.21. Unsuccessful at the trial court level, Burnett again appealed
to the Second District Court of Appeals which affirmed the trial court’s dismissal. State v. Burnett,
2019-Ohio-2461 (Ohio App. 2nd Dist. Jun. 21, 2019).

The Second District concluded that Burnett’s Petition for Post-Conviction Relief was
untimely filed, noting that the deadline was one year after the trial transcript was filed on direct
appeal on May 25, 2017, and the petition was not filed until November 15, 2018. Id. at ¶ 15.
Burnett was unsuccessful in proving that the facts he relied on could not have been discovered
within the time required to file. Id. It furthermore held that the evidence supposedly outside the
direct appeal record was not the sort of evidence described in Ohio Revised Code § 2953.23.
Burnett, 2019-Ohio-2461 at ¶ 21.
The Second District also found Burnett’s claims were barred by the Ohio criminal res
judicata doctrine:
Ineffective assistance of counsel claims regarding inoperability as a
defense, the rejection of a plea offer based upon [State v.] Mackie,
[128 Ohio App.3d 167 (1st Dist. 1998),] and/or an alleged trial court
error in instructing the jury on the meaning of "operating" a vehicle
were or could have been brought on direct appeal. The alleged
absence of trial testimony from the record could also have been
raised on appeal. Finally, the trial court's failure to grant a
continuance for Burnett to retain counsel could have been raised on
direct appeal. The trial court correctly concluded that res judicata
barred Burnett's arguments.

Id. at ¶ 21.
The procedural default doctrine in habeas corpus is described by the Supreme Court 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, 750 (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 rights
claim 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, 110 (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)(quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct.612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115
L.Ed.2d 640. The procedural default doctrine thus advances the
same comity, finality, and federalism interests advanced by the
exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); 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, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (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 v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
The Magistrate Judge concludes Burnett’s Second Ground for Relief is procedurally
defaulted in three different ways.
First of all, Ohio does have a statute of limitations on petitions for post-conviction relief:
360 days after the trial transcript is filed on direct appeal. Burnett did not file within that deadline
and it was enforced against him. The State’s interest in finality of criminal convictions strongly
supports adoption of statutes of limitations on post-conviction collateral attacks on criminal
judgments. Burnett has offered no excusing cause and prejudice to overcome this procedural
default.
Second, Ohio has a criminal res judicata doctrine. Enunciated in State v. Perry, 10 Ohio
St. 2d 175 (1967), it has frequently been upheld as an adequate and independent state ground of
decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337, 349
(6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 427 (6th Cir. 2001); Byrd v. Collins, 209 F.3d
486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted);
Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). The Second District enforced
the Perry doctrine in this case and Burnett has shown no excusing cause and prejudice.
Third, it appears from the record that Burnett never appealed the Second District’s adverse
decision in post-conviction to the Ohio Supreme Court. Burnett asserts in his Petition that he did
appeal to the highest state court (ECF No. 1-1, ¶ 11(d)), but the Petition contains no identifying
information about any such appeal and none can be found in the LEXIS or WestLaw databases.
Furthermore, the Ohio Supreme Court database contains only two cases involving Petitioner; his
direct appeal and a 2014 case involving a certified conflict. Failure to present an issue to the state
supreme court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999)(citations omitted).

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

October 8, 2019.

s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
A party may respond to another party’s objections within fourteen days after being served with a
copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374045. Public record. Not legal advice.