The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LUIS DELAFUENTE,
CASE NO.: 1:17-cv-182
Petitioner,
Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
v.
RHONDA RICHARD, Warden,
Madison Correctional Facility,
Respondent.
OPINION AND ORDER
This matter is before the Court on the Report and Recommendation of the
Magistrate Judge (Doc. 21, “R&R”), Petitioner’s pro se objections (Doc. 22), the
Supplemental Report and Recommendation of the Magistrate Judge (Doc. 24,
“Supplemental R&R”), and Petitioner’s pro se supplemental objections (Doc. 25). The
Court will dismiss the petition.
I. BACKGROUND
Petitioner was charged and convicted by a jury of two counts of felonious assault
and sentenced to six years in prison. State v. Delaffuente,1 Nos. CA2015-03-040,
CA2015-03-042, 2015-Ohio-4917, ¶ 2 (Ohio Ct. App. Nov. 30, 2015). He appealed the
decision, raising a single assignment of error: that “the trial court erred by refusing to
present the issue of self-defense to the jury.” Id. at ¶ 4. Ohio’s Twelfth District Court of
Appeals (the “Twelfth District”) affirmed and the Supreme Court of Ohio declined review.
State v. Delaffuente, 145 Ohio St. 3d 1425, 2016-Ohio-1173, 47 N.E.3d 168 (2016).
1 This variant of the spelling Petitioner’s surname is found in the Twelfth District and Supreme Court of
Ohio decisions. The Court, otherwise, uses the spelling used by Petitioner in his filings.
Petitioner’s subsequent § 2254 petition raised four grounds for relief, which the
Magistrate Judge (absent objection by Petitioner) construed to assert a single ground for
relief—denial of Fifth Amendment due process in the failure to have the jury consider self-
defense—with four arguments in support. (Doc. 21, PAGEID 788–89). The Twelfth
District had concluded that there was insufficient evidence to move forward with a self-
defense jury instruction, and the Magistrate Judge found that this conclusion was not
unreasonable. (Id. at PAGEID 793–94). In his objections to the R&R, Petitioner cited to
particular portions of the record demonstrating, in his view, that the Twelfth District’s
conclusion was erroneous. (Doc. 22, PAGEID 797). Petitioner also argued that a
defendant is not required to admit the use of deadly force for a jury to consider self-
defense and that the credibility of the testimony related to self-defense was an issue for
the jury. (Id. at PAGE ID 798). In his Supplemental R&R, the Magistrate Judge was
unpersuaded by the portions of the record cited by Petitioner. He concluded that
Petitioner’s professions throughout the record that he did not employ deadly force (leaving
aside whether a self-defense instruction required his admission that he did) supported his
initial recommendation. (Doc. 24, PAGEID 840–41). He also concluded that presentation
of self-defense to the jury was warranted only “if the evidence, if believed by the jury,
[was] sufficient to establish [self-defense] by a preponderance of the evidence.” (Id. at
841).2
Petitioner’s objections to the Supplemental R&R raise three issues. He challenges
the sufficiency of evidence for his felonious assault convictions, because he argues that
2 Whether a defendant has met “the burden of going forward with evidence of a nature and quality
sufficient to raise [self-defense] is “a matter of law[.]” State v. Cross, 58 Ohio St. 3d 482, 391 N.E.2d
319, 322 & n.5 (1979).
he was not at fault in the underlying altercation or in violation of any duty to retreat. (Doc.
25, PAGEID 843). He next argues that he had no burden of production or persuasion on
the issue of self-defense, where the altercation occurred at his home. (Id.). Finally, he
argues that State v. Fox, 36 Ohio App.3d 78, 520 N.E.2d 1390 (Ohio Ct. App. 1987),
supports the proposition that his lack of intent to use deadly force did not preclude him
from a self-defense instruction.
II. STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are received
on a dispositive matter, the assigned district judge “must determine de novo any part of
the magistrate judge's disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to
preserve any issue for review: “[a] general objection to the entirety of the [magistrate
judge’s] report has the same effects as would a failure to object.” Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, the
objections of a petitioner appearing pro se will be construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. 104–132,
110 Stat. 1214, governs review of § 2254 petitions and imposes a ”highly deferential
standard for evaluating state-court rulings[.]” Henderickson v. Warden Lebanon Corr.
Inst., No. 2:10-cv-1084, 2011 WL 5282677, at *5 (S.D. Ohio Nov. 2, 2011), rec. adopted,
2012 WL 113435 (S.D. Ohio Jan. 13, 2012) (quoting Lindh v. Murphy, 521 U.S. 320, 333,
n.7 (1997)). Relief under § 2254 is limited to cases in which a state court’s judgment:
(1) resulted in a decision that was contrary to,3 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.
28 U.S.C. § 2254(d). Unreasonable application is distinct from incorrect application; the
former demands “a substantially higher threshold” in order to warrant relief.
Henderickson, 2011 WL 5282677, at *5 (quoting Schriro v. Landrigan, 550 U.S., 465, 473
(2007)). While state-law issues generally do not implicate federal habeas relief, it could
be warranted if the state law error “rise[s] for some other reason to the level of a denial of
rights protected the United States Constitution.” Hoffner v. Bradshaw, 622 F.3d 487, 495
(6th Cir. 2010) (quoting Barclay v. Florida, 463 U.S. 939, 957–58 (1983)).
III. ANALYSIS
In Ohio, self-defense is an affirmative defense. Delaffuente, 2015-Ohio-4917, at ¶
8 (citing State v. Martin, 21 Ohio St. 3d 91, 93, 488 N.E.2d 166, 168 (1986)).4 Self-
defense requires a defendant to show:
(1) that the defendant was not at fault in creating the situation giving rise to
the affray; (2) that the defendant 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 in the use of such force; and (3) that the
defendant did not violate any duty to retreat or avoid the danger.
3 The Court does not read the § 2254 petition or Petitioner’s objections to allege that the Twelfth District’s
ruling was contrary to clearly established federal law; rather, to the extent his arguments pertain to 28
U.S.C. § 2254(d)(1), he urges that the Twelfth District’s application of the law on the right to assert self-
defense was unreasonable.
4 In Martin v. Ohio, 480 U.S. 228 (1987), the United States Supreme Court held that Ohio’s adherence to
the common-law rule that a defendant must prove self-defense is constitutional. Id. at 236.
State v. Barnes, 94 Ohio St. 3d 21, 24, 2002-Ohio-68, 759 N.E.2d 1240, 1244 (2002)
(quoting State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of
the syllabus). “Self-defense presumes intentional, willful use of force to repel force or
escape force.” State v. Champion, 109 Ohio St. 281, 286–87, 142 N.E. 141, 143 (1924);
see also State v. Hubbard, No. 11AP-945, 2013-Ohio-2735, ¶ 54 (Ohio Ct. App.) (same,
citing Ohio appellate decisions); State v. Florence, No. 20439, 2005-Ohio-4508, ¶ 49
(Ohio Ct. App.) (“[F]orce that occurs accidentally does not qualify to be treated as self-
defense.”). The Twelfth District concluded that Petitioner’s evidence was lacking on the
second self-defense element, because the record was replete with instances in which he
himself and other witnesses denied intentional action (i.e., denied that Petitioner either
had or used a knife during the altercation). Delaffuente, 2015-Ohio-4917, at ¶ 10.
The Sixth Circuit considered the right to jury instructions on self-defense in the
habeas context in Taylor v. Withrow, 288 F.3d 846 (6th Cir. 2002). It concluded that a
defendant has a fundamental right to assert self-defense. Id. at 851. That right may be
qualified, however, to the extent that there must “exist[] evidence sufficient for a
reasonable juror to find in his favor” before a jury instruction is required. Id. at 853
(quoting Matthews v. United States, 485 U.S. 58, 63 (1988)). In Taylor, the district court
had found that the state trial court had acted unreasonably when it refused to instruct the
jury on self-defense. Id. The Sixth Circuit disagreed. Finding that the fundamental right
to assert self-defense is not unlimited, it concluded that it was neither “an unreasonable
determination of the facts” nor “an unreasonable application of clearly established federal
law” for the state trial court to find “no evidence of justified self-defense” and to
consequently decline to instruct the jury on self-defense. Id. at 853–54.
Like in Taylor, the problem for the Twelfth District was a threshold matter of proof.
While it acknowledged that a defendant need not explicitly admit prohibited conduct in
order to receive a self-defense instruction, it concluded that Petitioner’s “denial of the
conduct negate[d] the second element of a self-defense claim[.]” Delaffuente, 2015-Ohio-
4917, at ¶ 13. After the Magistrate Judge’s prompting in the R&R, Petitioner’s initial
objections cited to particular parts of the record that he believed supported the conclusion
that the Twelfth District’s factual determination was unreasonable and that its application
of clearly established federal law was also unreasonable. The Magistrate Judge reviewed
these excerpts and remained unpersuaded. (Doc. 24, PAGEID 838–40). The Court
agrees with the Magistrate Judge’s Reports and Recommendations (Docs. 21, 24).
Petitioner’s objections to the Supplemental R&R pending before the Court begin
with conclusory attack on the legal sufficiency of his conviction. He reasons that because
the first and third elements of self-defense were effectively conceded in his favor, “[t]his
negates the essential elements of ‘knowingly’ and ‘purposely’ which are necessary to
support a conviction for felonious assault.” (Doc. 25, PAGEID 843). But as noted above,
the sole issue raised in Petitioner’s direct appeal was “the trial court erred by refusing to
present the issue of self-defense to the jury.” Delaffuente, 2015-Ohio-4917, at ¶ 4. Where
“an Ohio petitioner failed to raise a claim on direct appeal, which could have been raised
on direct appeal, the claim is procedurally defaulted.” Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006) (citing Engle v. Isaac, 456 U.S. 107, 126 n.28 (1982)).
Petitioner next proposes that “defendant’s [self-defense burdens of production and
persuasion are] inapplicable in situations where an accused is attacked in his dwelling.”
(Doc. 25, PAGEID 843). Petitioner misstates the holding of State v. Williford, 49 Ohio St.
3d 247, 551 N.E. 2d 1279 (1990), to support this proposition. Williford held that the third
element of self-defense (the duty to retreat) need not be met where an altercation takes
place in a defendant’s home. Id. at 1282. (“[T]here is no duty to retreat from one’s own
home.”). This is not the equivalent of a broad vitiation of the elements of self-defense
simply because an altercation occurs on one’s property. This claim does not implicate an
unreasonable application of clearly established federal law or an unreasonable
determination of the facts. See 28 U.S.C.§ 2254(d).
Finally, Petitioner cites State v. Fox, which held that a self-defense instruction is
not necessarily restricted to situations in which a defendant “reasonably and honestly
believed that he was about to be killed or receive great bodily harm[;]” rather, such a grave
threat might not be necessary “where less than deadly force is used to repel a feared
attack.” 520 N.E.2d at 1391 (quoting Akron v. Dokes, 31 Ohio App. 3d 24, 25, 507 N.E.2d
1158, 1160 (Ohio Ct. App. 1987)). Petitioner extrapolates from Fox to argue that the
record, which demonstrates his lack of intent to use deadly force, entitled him to a jury
instruction on self-defense—any determination otherwise, in his view, would be
unreasonable. But the analogy to Fox is inapposite. The deficit in proof, as determined
by the Twelfth District and the Magistrate Judge, had nothing to do with the degree of
force employed. Instead, the deficit in proof concerned whether he intentionally employed
the force at all—whether demonstrated by his own admission or otherwise (e.g., cross-
examination of state witnesses). See Delaffuente, 2015-Ohio-4917, at ¶ 12.
The Court’s review of the record on this point does not point to an unreasonable
determination of the facts as they relate to the second self-defense prong or an
unreasonable application of clearly established federal law. Petitioner emphasized in
both of his objections (Docs. 22, 25) that his own admission to guilty conduct is not
necessarily required to make this showing. See Delaffuente, 2015-Ohio-4917, at ¶ 11
(“[W]e find nothing within the three elements necessary to establish a claim of self-
defense that explicitly requires a defendant to waive his Fifth Amendment rights at trial
and admit to using deadly force.”). But Petitioner cites no other evidence, testimonial or
otherwise, that points to him engaging in intentional, prohibited conduct. He points almost
exclusively to his own account of the altercation during cross examination as the factual
basis for finding sufficient evidence to prompt a self-defense jury instruction. (See Doc.
22, PAGEID 797).5
The Court has reviewed this testimony as well as his testimony on direct
examination as it relates to the underlying altercation. (See Doc. 3-3, PAGEID 582–619).
To the extent that this testimony references any affirmative, intentional action by
Petitioner at all, Petitioner describes holding the hand of one of the victims that was, in
turn, holding the knife. (Id. at PAGEID 583 (“I was holding his hand; holding that knife
and into the fire – he got cut. I don’t know if that can be called stabbing[.]”), 594 (“Why
were you holding his hand? . . . I was trying to stop him from . . . attacking Claudia any
more.”), 617 (Petitioner approached one of the victims “[t]o try to get a hold of the knife”
to keep him from hurting anyone), 618 (Petitioner “struggle[d] with [one of the victims]
over the knife, but did not recall ever getting the knife). Read in conjunction with
Petitioner’s other statements flatly denying any intentional use of force (Id. at PAGEID
5 Petitioner also points here to excerpts from his prior counsel’s Memorandum in Support of Jurisdiction to
the Supreme Court of Ohio. The Court has reviewed the references to the trial court transcript contained
therein to the extent that they differ from those cited by Petitioner directly. They do not alter the Court’s
conclusion as to the reasonableness of the Twelfth District’s factual determination or application of clearly
established federal law as related to a self-defense instruction.
583 (“Q. . . . Did you ever have a knife? A. No. Never.”), 619 (Petitioner states he “[n]ever
used a – have a knife” and answered as follows with respect to both victims: “Q. . . . [Y]ou
never purposely stabbed Rene. A. No. . . . Q. . . . And you never stabbed Tim at all? A.
Nothing I can recall.”), the Court sees no basis to conclude that the Twelfth District’s
factual determination or application of clearly established federal law was objectively
unreasonable.
IV. CONCLUSION
Consistent with the foregoing, Petitioner’s Objections (Docs. 22, 25) are
OVERRULED and the Report and Recommendation (Doc. 21) and the Supplemental
Report and Recommendation (Doc. 24) are ADOPTED. The Petition (Doc. 1) is
DISMISSED with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner is DENIED a certificate of appealability and the Court CERTIFIES
that any appeal would be objectively frivolous.
IT IS SO ORDERED.
s/_Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT JUDGE