The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KYLE KURTZ,
CASE NO. 2:19-CV-5186
Petitioner, JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
v.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,
Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, it is
RECOMMENDED that this action be DISMISSED.
I. BACKGROUND
Petitioner challenges his February 10, 2017 convictions after a jury trial in the Franklin Court
of Common Pleas on aggravated robbery, kidnapping, murder, and aggravated murder. The trial
court imposed a term of twenty years to life plus six years on firearm specifications. The state
appellate court summarized the facts and procedural history of the case as follows:
{¶ 2} In 2015, Jeanette Hampton lived at a residence on North James Road near
Broad Street on the near east side of Columbus, Ohio. She lived there with her
children, a 16-year old daughter, T.C., and a 12-year old son. Hampton’s
boyfriend was Brandon Brown, the victim in this case. There is no dispute that
Hampton sold marijuana from her home and that appellant’s friend, Jim Rose, had
been a frequent customer for the previous 2 years. Appellant testified that he uses
marijuana on a daily basis and that he had been to Hampton’s home on
approximately 40 occasions to buy marijuana from Hampton prior to June 26,
2015. Appellant estimated that he was accompanied by Rose on roughly 20 of his
40 prior drug buys from Hampton.
{¶ 3} Hampton testified in the early evening of June 26, 2015, she received a
telephone call from appellant on her home phone. According to Hampton,
appellant was angry and hostile on the phone, and he claimed that Brown owed
him money. Hampton testified that Brown took the phone from her and that he
began arguing with appellant over the phone and telling appellant that he did not
owe him money. Hampton heard Brown repeating what appellant was saying to
him over the phone. She heard Brown say “you going to come over here and
shoot me with what?” (Tr. Vol. II at 105.) Hampton heard Brown say to appellant
to “come on.” (Tr. Vol. II at 106.).
{¶ 4} Though Hampton wanted to avoid a confrontation and asked Brown to
leave, he insisted on staying to “make sure that nobody else that was in the house
was harmed.” (Tr. Vol. II at 107.) Hampton testified that a series of phone calls
between Brown and appellant took place between 6:00 and 6:45 p.m. Brown told
Hampton he was going to wait outside for appellant with a gun because appellant
was coming there to shoot him.
{¶ 5} Hampton stated that about 15 minutes after Brown went outside, she looked
out the window to her side door and she saw Brown standing right outside the
door and she saw his gun laying on the hood of her vehicle just in front of the
windshield wipers. She saw appellant standing about 6 feet in front of Brown,
pointing a gun at Brown and repeatedly ordering him to get down on the ground.
Hampton testified about what she saw as follows:
[W]hen I looked out my window [Brown] was directly in front of
my window. The gun was sitting on my front of my car on this
(indicating) side of him. The gun was basically in the back of him
so he wasn’t even in front of the gun, I mean, where he could reach
it.
(Tr. Vol. II at 123.)
{¶ 6} When Hampton went to get her phone to call police, she heard gunshots.
When she looked out the window again, she saw Brown on his knees with his
arms out and appellant walking back to his vehicle which was parked in the
driveway. As Hampton started to go out the door to help Brown, she stopped
when she saw appellant come back to retrieve his car keys he had left on top of
the recycling bin near the side door to the house. When she next looked out, she
noticed that Brown’s gun was no longer on the hood of her vehicle.
{¶ 7} Hampton’s daughter, T.C., testified that she ran to her upstairs bedroom
window when she heard Brown and appellant yelling at each other outside. She
first saw Brown and appellant pointing guns at one another. When appellant told
Brown to get on the ground, T.C. heard Brown say “no,” but she also saw Brown
place his gun down on the hood of the vehicle and then put his hands up. T.C.
heard Brown utter words to the effect of “you really going to shoot me?” (Tr. Vol.
II at 224.) For the next one and one-half minutes, appellant continued to yell at
Brown and then T.C. watched as appellant shot Brown in the face. As Brown
staggered back out of her view, T.C. saw appellant continue to shoot in his
direction. T.C. then saw appellant take Brown’s gun from the hood of the vehicle
and walk back to his vehicle. She also saw him return to get his keys off the
recycle bin.
{¶ 8} One of Hampton’s neighbors heard the gunshots and saw appellant drive
away. She got the license plate and called police. Other neighbors testified that
they saw appellant walking away from the scene and then briefly returning before
getting in his vehicle and driving away. Whitehall police officer Kendall Tiega
arrived at the scene about ten minutes after the shooting while Brown was still
alive.
According to Tiega, Brown was able to tell her that a man named Kyle had shot
him.
{¶ 9} Appellant’s vehicle was spotted shortly thereafter by another Whitehall
police officer, and when appellant stopped at a tobacco store, he was taken into
custody without incident. Two handguns were recovered from appellant’s vehicle:
a 9mm semi-automatic pistol with a 15-round magazine that was fully loaded and
operable but had not been fired, and appellant’s 9mm semi-automatic pistol with a
14-round magazine that contained 2 rounds. Ten shell casings matching
appellant’s pistol were recovered from the scene.
{¶ 10} The evidence shows that Brown was shot ten times, once through the front
of his eye, twice through his forearm, and seven more times in his back. The
coroner’s report lists “[m]ultiple gunshot wounds” as the cause of death. (State’s
Ex. E, Coroner's Report at 2.)
{¶ 11} On July 6, 2015, a Franklin County Grand Jury indicted appellant on
charges of aggravated robbery, in violation of R.C. 2911.01, a felony of the first
degree; kidnapping, in violation of R.C. 2905.01, a felony of the first degree; two
counts of aggravated murder, in violation of R.C. 2903.01, an unspecified felony;
two counts of murder, in violation of R.C. 2903.02, an unspecified felony; and
tampering with evidence, in violation of R.C. 2921.12, a felony of the third
degree. With the exception of the tampering with evidence charge, each of the
charges in the indictment was accompanied by a firearm specification.
{¶ 12} Appellant did not deny shooting and killing Brown, but he claimed that he
did so in self-defense. A jury found appellant guilty of all charges and
specifications with the exception of the count and specification for aggravated
murder with prior calculation and design and tampering with evidence.
{¶ 13} The trial court convicted appellant and sentenced him to a prison term of
20 years to life, plus an aggregate consecutive prison term of 6 years for the
firearm specifications.FN1 Appellant timely appealed to this court from the
judgment of conviction and sentence.
FN1: The trial court merged the counts in the indictment charging appellant with
murder for purposes of conviction and sentence. (Jan. 22, 2018 Sentencing
Hearing Tr. at 36.)
ASSIGNMENT OF ERROR
{¶ 14} Appellant assigns the following as trial court error:
THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM
GUILTY OF AGGRAVATED MURDER; MURDER; KIDNAPPING; AND
AGGRAVATED ROBBERY AS THOSE VERDICTS WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
State v. Kurtz, 10th Dist. No. 17AP-382, 2018 WL 4677567, at *1-2 (Ohio Ct. App. Sept. 27,
2018). On September 27, 2018, the appellate court affirmed the trial court’s judgment. Id.
Petitioner did not file a timely appeal. On November 12, 2019, he filed a motion for a delayed
appeal. (Doc. 10, PAGEID # 159). On December 31, 2019, the Ohio Supreme Court denied the
motion for a delayed appeal. State v. Kurtz, 57 Ohio St.3d 1523 (Ohio 2019).
In October and December 2019, Petitioner filed requests for the appointment of counsel
for the filing of a state post-conviction petition and motion for expert assistance. (Doc. 10,
PAGEID # 198, 203, 217). However, although Petitioner indicates that he has a post-conviction
petition pending in the state trial court (Doc. 1, PAGEID # 3, 10), the record does not show that
Petitioner has pursued state post-conviction relief.
On November 25, 2019, Petitioner filed this pro se habeas corpus petition pursuant to
28 U.S.C. § 2254. He asserts that retroactive application of House Bill 228 on Ohio’s law
regarding self-defense renders his convictions void (claim one); that he unconstitutionally had to
establish he acted in self-defense by a preponderance of the evidence (claim two); that his
convictions result from erroneous jury instructions on aggravated robbery, aggravated murder,
kidnapping, aggravated robbery, the definition of theft, use of deadly force, preponderance of
evidence, and the duty of retreat (claims three through ten, and twelve); that his convictions are
based on structural error (claim eleven); his convictions violate the Eighth Amendment (claim
thirteen); and that he was unconstitutionally convicted on a now deficient presumption of self-
defense (claim fourteen).
II. PROCEDURAL DEFAULT
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). 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 to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition
is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust claims but would find those claims barred if later presented to the
state courts, “there is a procedural default for purposes of federal habeas.” Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State may have a fair chance to correct any errors made
in the course of the trial or the appeal before a federal court intervenes in the state criminal
process. This “requires the petitioner to present ‘the same claim under the same theory’ to the
state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53
(6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects
of “fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way
that gives the state courts a fair opportunity to rule on the federal law claims being asserted.
That means that, if the claims are not presented to the state courts in the way in which state law
requires, and consequently, the state courts do not decide the claims on their merits, neither may
a federal court. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that “contentions of
federal law which were not resolved on the merits in the state proceeding due to respondent’s
failure to raise them there as required by state procedure” also cannot be resolved on their merits
in a federal habeas case—that is, they are “procedurally defaulted”).
To determine whether a habeas petitioner has procedurally defaulted a claim, courts
consider whether: (1) the petitioner failed to comply with a state procedural rule; (2) the state
courts enforce that rule; (3) the rule is an adequate and independent state ground for denying
review of a petitioner’s federal constitutional claim; and (4) the petitioner can show cause and
prejudice excusing the default. Williams v. Burt, 949 F.3d 966, 972–73 (6th Cir. 2020) (citing
Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc)); see also Maupin v. Smith, 785
F.2d 135, 138 (6th Cir.1986) (outlining the four-factor Maupin test).
a. Application
Petitioner failed to raise any of his claims on direct appeal. “It is well-settled that
‘[c]laims appearing on the face of the record must be raised on direct appeal, or they will be
waived under Ohio’s doctrine of res judicata.’” Mason v. Warden, Noble Corr. Inst., No. 2:19-
cv-4695, 2020 WL 3972497, at *3 (S.D. Ohio July 14, 2020) (citing Teitelbaum v. Turner, No.
2:17-cv-583, 2018 WL 2046456, at *15 (S.D. Ohio May 2, 2018)). Thus, Petitioner violated the
res judicata rule set forth in State v. Perry, 10 Ohio St.2d 175 (1967), when he failed to raise his
claims on direct appeal, and consequently satisfied the first prong of the Maupin test.
With respect to the second Maupin factor, Ohio courts have consistently refused, in
reliance on the doctrine of res judicata, to review the merits of procedurally barred claims. See,
e.g., State v. Cole, 2 Ohio St.3d 112 (1982). Further, the Sixth Circuit has held that Ohio’s
doctrine of res judicata is an independent and adequate ground for denying federal habeas relief.
See, e.g., 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). Accordingly, the Court is satisfied from its own review of relevant case law that the res
judicata rule articulated in Perry is an adequate and independent ground for denying relief.
Moreover, Petitioner failed to file a timely appeal in the Ohio Supreme Court. To the
extent that Petitioner now argues that the evidence is constitutionally insufficient to sustain his
convictions or that his convictions were against the manifest weight of the evidence (see, Doc.
18), he likewise thereby has waived these issues for review here.1 See Hayward v. Warden,
Grafton Corr. Inst., No. 2:19-cv-1313, 2019 WL 2058628, at *7 (S.D. Ohio May 9, 2019) (citing
Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)).
Further, Petitioner has failed to establish cause for his procedural defaults. “‘[C]ause’
under the cause and prejudice test must be something external to the petitioner, something that
cannot fairly be attributed to him[,] ‘. . . some objective factor external to the defense [that]
1 Petitioner’s manifest weight claim does not, in any event, provide a basis for federal habeas relief. See Hayward,
2019 WL 2058628, at * 8 (citations omitted).
impeded ... efforts to comply with the State’s procedural rule.’” Coleman, 501 U.S. at 753
(quoting Murray, 477 U.S. at 488). It is Petitioner’s burden to show cause and prejudice. Hinkle
v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir.
1999) (internal citation omitted)). A petitioner’s pro se status, ignorance of the law, or ignorance
of procedural requirements are insufficient bases to excuse a procedural default. Bonilla, 370
F.3d at 498. Instead, to establish cause, a petitioner “must present a substantial reason that is
external to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347,
358 (6th Cir. 2007). Petitioner has failed to meet this burden here.
III. DISPOSITION
Therefore, it is RECOMMENDED that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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.
IT IS SO ORDERED.
Date: August 19, 2020 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE