The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
CLIFFORD L. YOUNG, JR.,
Petitioner, : Case No. 2:18-cv-1252
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
JEFF NOBLE, Warden,
Madison Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
Petitioner Clifford Young brought this habeas corpus case pro se under 28 U.S.C. § 2254
to obtain relief from his convictions in the Franklin County, Ohio, Court of Common Pleas on
charges of aggravated robbery, robbery, felonious assault, and having weapons while under
disability. After Young filed his Petition, Magistrate Judge Chelsey Vascura ordered Respondent
to answer and provided that Young would have twenty-one days after the answer was filed to
himself file a reply (Order, ECF No. 4). The State Court Record (ECF No. 8) and Return (ECF
No. 9) were filed August 8, 2019, supplemented by the trial transcripts (ECF No. 10) on August
22, 2019. Young has never filed a reply and the time within which he was permitted to do so has
expired, making the case ripe for decision.
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District.
Litigation History
In September 2013, a Franklin County grand jury indicted Petitioner on one count of
aggravated robbery with a firearm specification, two counts of robbery, also with firearm
specifications, one count of felonious assault with a firearm specification, and one count of having
weapons while under disability (State Court Record, ECF No. 8, PageID 54-58). After a mistrial,
a second trial jury found him guilty on Counts One, Two, Four, and Five, and he was sentenced
to seventeen years imprisonment, consecutive to sentences already being served on other
convictions. Id. at PageID 61-63.
Young appealed to the Tenth District Court of Appeals, which affirmed the convictions.
State v. Young, No. 15AP-1144, 2017-Ohio-9028 (Ohio App. 10th Dist. Dec. 14, 2017), appellate
jurisdiction declined, 152 Ohio St. 3d 1448, 2018-Ohio-1600. Young later filed an application for
reopening his direct appeal to raise claims of ineffective assistance of appellate counsel (State
Court Record, ECF No. 8, PageID 243-52), but the Tenth District declined to consider the
application because Young did not submit the required sworn statement.1 Id. at PageID 258-60.
Then on October 10, 2018, Young filed the instant habeas corpus petition by depositing it in the
prison mail system. He pleads the following grounds for relief:
Ground One: The State violated right to due process and fair trial
under the U.S. Constitution & Ohio Constitution.
Supporting Facts: The State failed to establish operability and that
a firearm was present to support the firearm specification(s) related
to the altercations.
1 Young pleads that the Application was denied as time-barred (Petition, ECF No. 1, PageID 3). The Decision of the
Tenth District shows it was for failure to include the required sworn statement (Memorandum Decision, State Court
Record ECF No. 8, PageID 258, ¶ 1).
Ground Two: Trial Court committed plain, reversible error when it
admitted unauthenticated records, repeated mischaracterization, &
failed to properly instruct jury.
Supporting Facts: The State violated Rule of Evidence &
Procedure introducing unauthenticated cell phone records,
unsupported claim that Petitioner owned the cell phone, & failing to
instruct jury on photo-lineup noncompliance.
Ground Three: Ineffective assistance of trial counsel
Supporting Facts: Counsel failed to request proper jury
instructions, also failed to object to testimony about unauthenticated
cell phone records, & failed to subpoena previous credible witness
in first trial to appear at second trial.
(Petition, ECF No. 1, PageID 5, 7, 8).
On her initial review of the Petition under Rule 4 of the Rules Governing § 2254 Cases,
Judge Vascura recommended that Ground Three be dismissed as procedurally defaulted because
it had not been raised on direct appeal (Report and Recommendations, ECF No. 4, PageID 39-43).
Young made no objections and Judge Watson has adopted that recommendation (Order, ECF No.
7). He further found under Fed.R.Civ.P. 54(b) that there was no just reason to delay final judgment
on the ineffective assistance of trial counsel claim and his Order constitutes a final judgment on
that claim which Young has not appealed within the time allowed by law. Id. at PageID 50. No
further analysis of Ground Three is required.
Analysis
Ground One: Insufficient Evidence
In his First Ground for Relief, Young contends the State failed to establish by sufficient
evidence that an operable firearm was present during the crimes (Petition, ECF No. 1, PageID 5).
The Warden contends that this claim is procedurally defaulted because it was not presented
to the Supreme Court of Ohio on appeal from the Tenth District (Return, ECF No. 9, PageID 366).
Examining Young’s Memorandum in Support of Jurisdiction in the Ohio Supreme Court, the
Magistrate Judge finds his third proposition of law was “Does a trial court err in applying a firearm
penalty enhancer in the absence of evidence of operability or immediate operability?” (State Court
Record, ECF No. 8, PageID 222). In the body of the Memorandum, he argued that
The state failed to establish that a firearm was present or operability
to support the firearm specification(s), related to the second
altercation. Therefore the convictions and sentences for the
specification(s) related to the second assault violated the defendant’s
rights to due process and a fair trial under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, and
Article I, Sections 10 and 16 of the Ohio Constitution.
Id. at PageID 224-25. By comparing this with assignments of error one and two on direct appeal,
the Magistrate Judge concludes the issue was fairly presented to the Ohio courts and recommends
Respondent’s procedural default defense on Ground One be overruled.
On the merits of Ground One, the Magistrate Judge first notes that federal habeas corpus
is available only to correct federal constitution errors. 28 U.S.C. § 2254(a); Wilson v. Corcoran,
562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209
(1982), Barclay v. Florida, 463 U.S. 939 (1983). Therefore no analysis will be offered on Young’s
claim under the Ohio Constitution.
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). 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, 397 U.S. at 364.
Young’s first assignment of error on direct appeal claimed “there was insufficient evidence
of operability of the firearm to support the firearm specifications.” Young, 2017-Ohio-9028, ¶ 17.
His second assignment of error claimed there was insufficient evidence to show a firearm was
present or operable “related to the second altercation.” Id. at ¶ 21. The Tenth District relied on
the victim’s testimony that
[A]ppellant pulled a gun out, demanded money, and then repeatedly
struck her with the gun in the head, shoulders and upper body in
furtherance of the aggravated robbery and felonious assault. (Nov.
12, 2015 Tr. at 292-95.) In addition, Detective Jackson testified that
the blood splatter on the mirror in the hotel room was consistent with
someone being “pistol whipped.” (Nov. 10, 2015 Tr. at 151.) As
such, sufficient evidence exists to support the guilty verdicts as to
the firearm specifications.
Id. at ¶ 20. The court also held on the second assignment of error that, because Young was not
indicted for two assaults, “there is no conviction that relates to a second assault to consider.” Id.
at ¶ 21.
Under Ohio law, operability is a key element to proving a firearm specification under Ohio
law. State v. Murphy, 49 Ohio St. 3d 206 (1990). However, operability can be proved by showing
an express or implied threat to use the firearm. State v. Thompkins, 78 Ohio St. 3d 380, 385
(1997).
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, 99-
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 proceeding.”
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, 204-05 (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. Parker v.
Matthews, 567 U.S. 37, 43 (2012) (per curiam); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc), citing Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) . 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. at 43.
Although there was no second assault charge, Young may be complaining of being
sentenced separately for the two firearm specifications. He was convicted both of aggravated
robbery with a firearm specification and felonious assault with a firearm specification (Counts One
and Four). The trial judge refused to merge the two specifications, presumably because these two
crimes were committed separately: Young first used the gun to threaten the victim into giving him
money. When that did not succeed and she took the gun from him, he struggled with her, regained
possession of the gun, and then pistol-whipped her with it, in addition to assaulting her with his
fists and a lit cigarette. Young, 2017-Ohio-9028, ¶ 4. The evidence in the record is clearly
sufficient to support these as separate convictions, separately punishable under Ohio Revised Code
§ 2941.25.
Young’s First Ground for Relief should be dismissed on the merits.
Ground Two: Trial Court Error in Admitting Unauthenticated Evidence Mischaracterizing
the Evidence, and Failing to Properly Instruct the Jury
In his second Ground for Relief, Young claims the trial court admitted evidence that had
not been properly authenticated, mischaracterized the evidence, and failed to properly instruct the
jury (Petition, ECF No. 1, PageID 7).
The Warden contends this claim is procedurally defaulted because Young’s trial attorney
made no contemporaneous objection to these asserted errors (Answer, ECF No. 9, PageID 368).
On appeal, the Tenth District held that there had been no contemporaneous objection to the
authenticity of the cellphone records, which were, in any event, not offered in evidence. Young,
2017-Ohio-9028, ¶ 25. Likewise there was no request to instruct the jury on the State’s asserted
noncompliance with Ohio Revised Code § 2933.83(C)(3), the statute governing photographic
lineups. Id. at ¶ 33. Because of these failures to object, the Tenth District reviewed the claimed
errors only on a plain error basis under Ohio R.Crim.P. 52(B).
An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a
procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell,
538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006). The
procedural defaults as to Ground Two consisted of failure to make contemporaneous objections.
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by calling
them to the attention of the trial court at a time when the error could have been avoided or
corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see
also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground
of decision. Wogenstahl, 668 F.3d at 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662,
673 (6th Cir. 2006). Because trial counsel failed to make a contemporaneous objection on any of
the issues raised in Ground Two, it should be dismissed as barred by that procedural default.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
January 21, 2020.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. 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.