# Bishop v. Warden, Richland Correctional Institution

> District Court, S.D. Ohio · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10376175

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 3, 2020
- **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
EASTERN DIVISION AT COLUMBUS

JAMES K. BISHOP,

Petitioner, : Case No. 2:19-cv-4780

- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz

WARDEN,
Richland Correctional Institution,

:
Respondent.

DECISION AND ORDER DENYING MOTION FOR DE NOVO
REVIEW

This habeas corpus case is before the Court on Petitioner’s Motion for de novo review of
the sufficiency of the evidence in his case or for judgment of acquittal under Fed. R. Crim. P. 29
(ECF No. 27).
Fed. R. Crim. P. 29 applies only to criminal cases originally tried in federal court and has
no application in habeas corpus.
Bishop raised insufficiency of the evidence as his Third Ground for Relief in his Petition.
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 dictated by AEDPA.” Tucker v. Palmer, 541
F.3d 652, 656 (6th Cir. 2008); accord: Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam);
Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc). 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.
766, 773, 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.
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).
Based on this controlling authority from the United States Supreme Court and the Sixth
Circuit Court of Appeals, this Court is not authorized to review the sufficiency of the evidence in
this case de novo.
The Motion for de novo review is DENIED.
September 3, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376175. Public record. Not legal advice.