The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
KEVIN REMILLARD,
Petitioner, : Case No. 2:20-cv-6103
- vs - District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz
WARDEN, Noble
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case, brought pursuant to 28 U.S.C. § 2254 by Petitioner Kevin
Remillard with the assistance of counsel, who is appearing pro bono publico. The case is ripe for
decision on the Petition (ECF No. 1), the State Court Record (ECF No. 8), the Return of Writ (ECF
No. 9), and the Traverse/Reply (ECF No. 12). The Magistrate Judge reference in the case has
recently been transferred to the undersigned to help balance the Magistrate Judge workload in the
District.
Litigation History
On June 20, 2017, the Knox County, Ohio, grand jury charged Petitioner with murder in
violation of Ohio Rev. Code § 2903.02(A), with a firearm specification, and tampering with evidence
in violation of Ohio Rev. Code § 2921.12(A)(1)(Indictment, State Court Record, ECF No. 8, Ex. 1).
No motion to suppress was filed. The case was tried to a jury which found Remillard guilty as charged.
(Verdict, State Court Record, ECF No. 8, Ex. 9). The trial court sentenced Remillard to a prison term
of fifteen years to life on the murder count, and three years each on the firearm specification and the
tampering with evidence count, all to be served consecutively, for an aggregate prison term of twenty-
one years to life. (Sentencing Entry, State Court Record, ECF No. 8, Ex. 11).
Petitioner appealed to the Court of Appeals for the Fifth Ohio District through counsel who
continues to represent him in these habeas corpus proceedings. The Fifth District affirmed the
conviction and sentence. State v. Remillard, 2019-Ohio-3545 (5th Dist. Aug. 30, 2019), appellate
jurisdiction declined, 157 Ohio St. 3d 1524 (2019), cert. denied, 141 S. Ct. 305 (2020).
On November 30, 2020, Remillard filed the instant habeas corpus Petition, pleading the
following grounds for relief:
Ground One: Counsel was ineffective under the Sixth and
Fourteenth Amendments of the U.S. Constitution in failing to File a
Motion to Suppress documents/personal papers seized during a
warrantless search of Remillard’s bedroom.
Ground Two: Counsel was ineffective under the Sixth and
Fourteenth Amendments of the U.S. Constitution when he failed to
object to erroneous jury instructions that denied Mr. Remillard a fair
trial.
Ground Three: The trial court should have given the requested
instruction on accident and denied the appellant his right to a fair
trial/complete defense under the Sixth and Fourteenth Amendments
of the U.S. Constitution.
(Petition, ECF No. 1, PageID 17-33).
Analysis
The Constitutionality of the AEDPA
Remillard spends much of his Traverse arguing that the Antiterrorism and Effective Death
Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), in part codified at 28
U.S.C. § 2254(d)(1), (d)(2), and (e), is unconstitutional (ECF No. 12, PageID 1116-36).
Remillard correctly situates adoption of the AEDPA in the aftermath of Timothy
McVeigh’s 1995 terrorist attack on the federal courthouse in Oklahoma City. But it was also
adopted in the midst of the precipitate rise in violent crime in the United States in the 1990’s.
Popular opinion was sufficiently aroused that Bill Clinton could use support for the AEDPA as a
campaign issue1, just as Richard Nixon had used the slogan “Law and Order” in 1968. However,
the political climate that supports adoption of an Act of Congress does not determine its
constitutionality, however much that climate may have changed.
That said, the Magistrate Judge does not doubt the propriety of Petitioner’s raising the
constitutional issues presented by AEDPA or this Court’s authority to decide them when called
upon to apply that statute. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803), applies at the
District Court level as well as in the Supreme Court.
Analysis must begin with a strong presumption of constitutionality. The federal courts
must pay great deference to Congress’ view that what it has done is constitutional. Rostker v.
Goldberg, 453 U.S. 57, 64 (1981); Fullilove v. Klutznick, 448 U.S. 448, 472 (1980); Columbia
1 The AEDPA was signed April 24, 1996, in the midst of Clinton’s re-election campaign. He signed the Prisoner
Litigation Reform Act, which severely restricted the ability of the incarcerated to bring civil rights claims in federal
court, the same week.
Broadcasting System, Inc., v. Democratic National Committee, 412 U.S. 94, 102 (1973); United
States v. Five Gambling Devices, 346 U.S. 441, 44 (1953); Fairbank v. United States, 181 U.S.
283 (1901).
The particular portions of AEDPA to which Remillard objects are its requirements that
federal courts defer to reasonable state court applications of Supreme Court precedent (28 U.S.C.
§ 2254(d)(1)) and reasonable determinations of fact (§ 2254(d)(2)). Instead, he essentially asserts
habeas petitioners have a constitutional right to a federal court de novo decision on law and fact:
the application of the federal Constitution in the habeas corpus
context must not depend on the State where the criminal trial took
place or the State's judiciary and its interpretation of the federal
Constitution. The habeas petitioner has a U.S. citizenship right to
the protections of the Fourteenth Amendment to the federal
Constitution being applied correctly to the correct facts of his or her
case regardless of the particular State where he is seeking
vindication of his federal constitutional rights.
(Traverse, ECF No. 12, PageID 1123).
As to § 2254(e), he asserts “If a federal judge needs to hold an evidentiary hearing to
determine the relevant facts in deciding whether the federal Constitution has been violated, then
he or she can not [sic] be retrained [sic] by a State judge’s factual findings.” (ECF No. 12, PageID
1136).
Remillard cites no controlling precedent that supports his position. He principally relies
on the dissent of Ninth Circuit Judge Lipez from denial of en banc rehearing in a habeas case
where the panel decision had applied § 2254(d)(1) to (1) limit the sources of law from which
federal judges could draw constitutional principle to Supreme Court precedent and (2) limit federal
judges ability to overturn state court application of that precedent to cases where the application
was objectively unreasonable. Evans v. Thompson, 524 F.3d 1 (9th Cir. 2008). Judge Lipez noted
the agreement of judges from other circuits:
Judges Pregerson, Gould, Paez, and Berzon, see Crater v. Galaza,
508 F.3d 1261 (9th Cir. 2007), a dissent from the denial of rehearing
en banc by Judge Martin, and joined by Judges Daughtrey, Moore,
Cole, and Clay, see Davis v. Straub, 445 F.3d 908 (6th Cir. 2006), a
concurring opinion by Judge Noonan, see Irons v. Carey, 505 F.3d
846, 854 (9th Cir. 2007), and a dissenting opinion of Judge Ripple,
joined by Judge Rovner, see Lindh v. Murphy, 96 F.3d 856, 885 (7th
Cir. 1996).
524 F.3d at 2. While the independence of the federal judiciary and its importance in maintaining
the supremacy of federal law is eloquently defended in these opinions, none of them was able to
command a majority of the circuit court in question which held these provisions to be
constitutional. §§ 2254(d)(1), (2), and (e) have been on the books for twenty-five years and are
applied literally hundreds of times a week, but no federal court has declared them unconstitutional.
Aside from authoritative precedent, on what sources should this Court draw in determining
the constitutionality of these three statutes? Remillard, although he discourses broadly on history,
provides no in-point evidence, required by Originalist theory, of how the Framers’ generation
understood the Suspension Clause or separation of powers or the Reconstruction Congress
understood the Thirteenth or Fourteenth Amendments as they apply to habeas corpus.
Remillard has not overcome the presumption of constitutionality that attaches to
Congressional legislation. The balance of this Report will apply the AEDPA as enacted as both
the Sixth Circuit and the Supreme Court have done since its enactment.
Ground One: Ineffective Assistance of Trial Counsel: Failure to File Motion to Suppress
In his First Ground for Relief, Remillard claims his trial attorney provided constitutionally
ineffective assistance when he failed to file a motion to suppress documents seized from
Remillard’s home without a warrant.
Respondent concedes this claim is preserved for merits review by this Court, but asserts
the Court should defer to the decision on the claim by the Fifth District on direct appeal (Return,
ECF No. 9, PageID 1089, et seq.). This claim was the First Assignment of Error on direct appeal
and the Fifth District decided it as follows:
[*P33] A claim of ineffective assistance of counsel requires a two-
prong analysis. The first inquiry is whether counsel's performance
fell below an objective standard of reasonable representation
involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the
appellant was prejudiced by counsel's ineffectiveness. Lockhart v.
Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993);
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989).
[*P34] In order to warrant a finding that trial counsel was
ineffective, the petitioner must meet both the deficient performance
and prejudice prongs of Strickland and Bradley. Knowles v.
Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251
(2009).
[*P35] Appellant first asserts that trial counsel was ineffective for
failing to file "a motion to suppress documents seized during a
warrantless search of Appellant's bedroom. "[F]ailure to file a
suppression motion does not constitute per se ineffective assistance
of counsel." Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct.
2574, 91 L.Ed.2d 305 (1986). "To demonstrate ineffective
assistance for failing to file a motion suppress, a defendant must
show: (1) a basis for the motion to suppress; (2) that the motion had
a reasonable probability of success; and (3) a reasonable probability
that suppression of the challenged evidence would have changed the
outcome at trial." State v. Clark, 6th Dist. Williams No. WM-09-
009, 2010-Ohio-2383, ¶ 21. An ineffective assistance of counsel
claim will be rejected when counsel's failure to file a suppression
motion "was a tactical decision, there was no reasonable probability
of success, or there was no prejudice," or where counsel could have
reasonably decided that filing such a motion would have been futile,
even if there is evidence in the record to support such a motion. State
v. White, 4th Dist. Washington Nos. 17CA10& 17CA11, 2018-
Ohio-18, ¶ 39, citing State v. Nields, 93 Ohio St.3d 6, 2001-Ohio-
1291, 752 N.E.2d 859. State v. Phelps, 5th Dist. Delaware No. 18
CAA 02 0016, 2018-Ohio-4738, ¶ 13.
[*P36] We first consider whether the officer's entry in the home
was permitted. The Deputies reasonably suspected Appellant may
have committed or would attempt to commit suicide based upon the
information provided by Mr. Daubenspeck, and relied upon this
concern to force entry into the home. "Breaking into a home by force
is not illegal if it is reasonable in the circumstances. The need to
protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent exigency or emergency."
State v. Burgess (Nov. 4, 1999), 5th Dist. No. 99-CA-0035, 1999
Ohio App. LEXIS 5271, quoting Wayne v. United States, 318 F.2d
205, 212, 115 U.S. App. D.C. 234 (D.C.Cir.1963).
"The question becomes whether the State's interest in
sweeping a residence upon responding to a dispatch for
possible suicide and possible weapons is sufficient to
warrant this intrusion and whether the search policy in
question is "reasonably related in scope to the
circumstances which justified the interference in the first
place."
Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[*P37] We find that the instant search was justified when tested by
both criteria from Terry. The government has a legitimate interest in
conducting a search of a residence when they are called to that
residence as a result of the receiving reliable evidence that the
Appellant may be suicidal and has access to weapons, and that such
an interest is more than sufficient to justify this search. State v.
Bethel, 5th Dist. Tuscarawas No. 10-AP-35, 2011-Ohio-3020, ¶21.
While suicide is not a crime, police officers have a duty to prevent
citizens from harming themselves and were performing this duty
when they entered appellant's home. Based on the deputies'
testimony, we conclude that the exigent circumstances were
sufficient to justify the entry into appellant's home. State v. Neptune,
4th Dist. Athens No. 99CA25, 2000 Ohio App. LEXIS 1884, 2000
WL 502830, *5.
[*P38] While the warrantless entry into the home was justified,
Appellant argues that the warrantless seizure of Exhibit 7
impermissibly extended what should have been a limited search for
Appellant and that trial counsel was ineffective for failing to present
that argument. The deputies were looking for Appellant, Appellant's
body or any evidence that could lead to discovering Appellant's
location. Deputy Baker saw the note, in plain view, on a table in the
upstairs bedroom. He read a few lines, concluded it was a suicide
note and took the note to Deputy Wolf. Deputy Wolf reviewed [the]
entire note for evidence that might lead to the discovery of
Appellant, his plans or whereabouts. Once they read the entire note,
the deputies realized that they may be investigating a homicide as
well as a suicide.
[*P39] The deputies did not know in advance the location of
incriminating evidence and intend to seize it, relying on the plain
view doctrine only as a pretense. Coolidge v. New Hampshire, 403
U.S. 443, 469-71, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971). The
discovery of the incriminating content of the note was the
inadvertent result of responding to the exigent circumstances, the
threat that the Appellant had committed suicide. Id. The plain view
exception to the warrant requirement was satisfied in this case
because the initial intrusion and review of the content of Exhibit 7
was supported by exigent circumstances, the incriminating evidence
in Exhibit 7 was inadvertently discovered, it was immediately
apparent that Exhibit 7 was evidence of a crime and the totality of
the circumstances supported a conclusion that there was probable
cause to justify the seizure. State v. Mowbray, 72 Ohio App.3d 243,
247, 594 N.E.2d 626 (4th Dist.1991).
[*P40] We hold that the facts do not support Appellant's contention
that trial counsel was ineffective for failing to file a motion to
suppress documents removed from the residence because it is not
probable that such a motion would have succeeded and it would
have been reasonable for counsel to decide, as a matter of trial
strategy, that pursuing such a motion would have been futile.
[*P41] Appellant's first assignment of error is overruled.
State v. Remillard, supra.
It is clear from this passage in its opinion that the Fifth District decided Remillard’s first
ineffective assistance of trial counsel claim, brought forward in Ground One, on the merits. 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, 131 S. Ct. 770, 785
(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 proceedings2.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
2 Remillard states at several points in his Traverse that § 22454(d) requires only a good faith effort by the state courts.
Not so; it requires an objectively reasonable determination of the facts and an objectively reasonable application of
Supreme Court precedent. Unreasonable decisions of fact or law are reversible regardless of the good faith of the
state court judge in question.
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held: “The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,
466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.
86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011). The Fifth District cited Strickland as the
controlling Supreme Court precedent and the Court presumes the constitutionality of the AEDPA.
Thus to prevail on his First Ground for Relief, Remillard must demonstrate that the Fifth District’s
decision is an unreasonable application of Strickland.
In his Traverse Remillard concedes that exigent circumstances justified the police officers
in entering his residence without a search warrant because of what they had been told about a
possible suicide (ECF No. 12, PageID 1140).
The police reasonably believed a suicide may have taken place. The
crux of the matter is whether law enforcement could seize Mr.
Remillard’s handwritten papers found on a table in his bedroom,
read them and use them in the state’s case in chief since law
enforcement did not have a search warrant.
Id. There is apparently also no contention that the eight-page note was not found in plain view, to
wit, it was “found on a table.” At the time the officer picked up and read the note, officers were
still responding to a possible suicide and had not yet found either the body of the victim or
Remillard’s body, alive or dead. Not all persons who commit suicide leave a note, but the practice
is sufficiently common that a police officer encountering such a note in the open at the scene of a
suspected suicide could reasonably suspect that the note was relevant to his inquiry. At that point
in time, the exigent circumstances which had justified the officers in entering the house had not
dissipated, as the Fifth District found. Remillard, supra, at ¶ 39. Under those circumstances the
Fifth District found that a competent and diligent trial attorney might well have concluded a motion
to suppress would have been futile.
The Magistrate Judge has no doubt that the note played an important role in convicting
Remillard and therefore its suppression might well have affected the outcome. But Remillard does
not suggest a reasonable basis on which it could have been suppressed, beyond generalities such
as the Fourth Amendment protects personal papers.
Remillard relies heavily on Caniglia v. Strom, ___ U.S. ___, 141 S. Ct. 1596 (May 17,
2021). There the Supreme Court unanimously held that a freestanding caretaker exception to the
Fourth Amendment did not justify warrantless removal of firearms from a home, although they
had allowed warrantless removal of firearms from an impounded vehicle in Cady v. Dombrowski,
413 U.S. 433 (1973). Officers did not remove the note in this case pursuant to any purported
“caretaker” exception, but read it as a possible suicide note from the person on whose suicide they
were checking. In any event, assuming Caniglia announced a new rule of criminal procedure, it
does not apply retroactively to cases, such as this one, on collateral review. Edwards v. Vannoy,
593 U.S. ___, 141 S. Ct. 1547 (2021), modifying Teague v. Lane, 489 U.S. 288 (1989).
Remillard relies repeatedly on Arizona v. Hicks, 480 U.S. 321 (1987), although he never
provides a citation to the published opinion. In Hicks the Supreme Court upheld suppression of
evidence (expensive stereo equipment and the serials numbers on it) because moving the
equipment to see the serial numbers was a seizure and investigating whether the equipment was
stolen was unrelated to the reason the officer was in defendant’s apartment. Hicks, which is not
cited in Caniglia, would be relevant if the police officer here had begun to investigate possible
crimes not related to the reasonable suspicion of suicide. He had not. He was still checking on
the possibility of a suicide when he came instead upon the incriminating evidence of murder.
The Magistrate Judge concludes that the Fifth District’s rejection of this claim is an
objectively reasonable application of Strickland and is therefore entitled to deference.
Alternatively, assuming 28 U.S.C. § 2254(d)(1) is unconstitutional and this Court must decide the
First Ground de novo, this Court should reach the same conclusion as the Fifth District: the exigent
circumstances which justified entering the home and reading the note found in plain view had not
dissipated. The notion that the Fourth Amendment required the officers to stop their attempts to
prevent a suicide until they could get a search warrant to read the note is not warranted by Fourth
Amendment precedent. Ground One should be dismissed with prejudice.
Ground Two: Ineffective Assistance of Counsel: Failure to Object to Jury Instructions
In his Second Ground for Relief, Remillard claims his trial attorney provided ineffective
assistance of trial counsel when he failed to object to jury instructions. In the Traverse Remillard
argues this claim very generally: “The jury instructions given in this case were filled with errors
that could have been corrected if brought to the attention of the trial judge.” Because the same
attorney represented Remillard on direct appeal and continues to represent him here, the Magistrate
Judge reads the Traverse as arguing the same errors in the jury instructions (and counsel’s failure
to object) as were argued to the Fifth District. Any other more expansive reading of the Traverse
would effectively excuse any procedural default Remillard made in presenting these claims to the
state court.
Remillard’s claim of ineffective assistance of trial counsel for failure to object was
presented as his Second Assignment of Error on direct appeal and decided by the Fifth District as
follows:
[*P42] Appellant argues in his second assignment of error that trial
counsel was ineffective for failing to object to an erroneous jury
instructions and that failure ultimately denied him a fair trial.
Appellant contends that the errors involve the introduction to the
issue of lesser included offenses and an error in the definition of
murder.
[*P43] With regard to the issue of lesser included offenses,
Appellant argues that trial counsel was obligated to object to the use
of the following instruction:
However, if you find that the state has failed to prove
beyond a reasonable doubt all the essential elements of
murder, then your verdict must be not guilty of the murder
charge, and in that event you will continue your
deliberations to decide whether the state has proven beyond
a reasonable doubt all the essential elements of one of the
lesser included offenses which I'm going to define for you.
[*P44] Appellant contends that the first clause of this instruction
should read "If you find that the state failed to prove beyond a
reasonable doubt any of the essential elements of the offense of
murder ***" (emphasis added.). The only difference between the
two instructions is the use of the word "all" in the instruction read
by the trial court in place of the word "any." Appellant contends that
the alteration of that one word misled the jury to believe that if the
state proved any element beyond a reasonable doubt, they could not
consider a lesser included offense. We find that Appellant's
interpretation of the instruction strained and untenable because there
is no practical difference between the state failing to prove any
element and the state failing to prove all elements of murder. While
the terms are different, the instructions impose the same burden on
the state and convey the same message to the jury—if the state failed
to convince the jury of each element of the charge of murder beyond
a reasonable doubt, the jury may consider a lesser included offense.
[*P45] The paragraph that immediately follows the offending
instruction reinforces its meaning:
Similarly, if all of you are unable to agree on a verdict of
either guilty or not guilty of the murder charge, then you
will continue your deliberations to decide whether the state
has proven beyond a reasonable doubt all of the essential
elements of the one of the lesser included offenses which I
will now define for you.
[*P46] We hold that this instruction was not erroneous and trial
counsel was not ineffective for not objecting to its use.
[*P47] Appellant next contends that trial counsel was ineffective
for failing to object to an erroneous definition of murder read into
the record by the trial court when it instructed the jury. The trial
court did include a reference to "purpose to inflict bodily harm" that
is not a part of the definition of murder within jury instructions. This
error occurred only at one location in the record of the trial court's
reading of the instructions. The record does not contain a copy of
the instructions that were given to the jury to read along with the
judge's narration or reveal whether the instructions were taken by
the jury into the jury room. The relevant charge as read to the jury
states:
If after considering all of the evidence you're convinced
beyond a reasonable doubt that the defendant had a purpose
to kill or inflict bodily harm on Nickolas Remillard, you
must return a verdict of guilty on the murder charge. If after
considering all of the evidence you are not convinced
beyond a reasonable doubt that the defendant acted either
purposely, recklessly or negligently in causing the death of
Nickolas Remillard, you must return a verdict of not guilty
on the murder charge and both of the lesser included
offenses as well as the firearm specification. (Emphasis
added.)
State v. Remillard, supra.
With respect to the first instruction to which it is alleged counsel should have objected, the
Magistrate Judge agrees with the Fifth District: failure to prove all of the elements beyond a
reasonable doubt is logically and linquistically equivalent to failure to prove any of the elements
beyond a reasonable doubt. In any event, the Fifth District concluded that there was no error in
the instruction given and thus there was nothing to which to object.
Petitioner cites no federal court authority to the contrary. He relies on Miller v. State, 318
P.3d 155 (Kan. 2014), an opinion of the Supreme Court of Kansas. There the court held that
appellate counsel rendered ineffective assistance under the Sixth Amendment by failing to
challenge an incorrect written jury instruction that diluted the State's burden of proof by directing
the jury to acquit if it had a reasonable doubt as to "each," rather than "any," of the elements the
State was required to prove. The linguistic difference between the instruction here and that in
Miller is evident: requiring the jury to have a reasonable doubt as to each element in order to
acquit is equivalent to telling them they must have such doubt on every element. In this case the
trial judge said the jury must acquit if the State fails to prove all elements/any element beyond a
reasonable doubt. Because the instruction was not erroneous, it was not ineffective assistance of
trial counsel to fail to object to it.
The second failure to object of which Petitioner complains was also a part of his Second
Assignment of Error, decided by the Fifth District as follows:
[*P48] The inclusion of a reference to "bodily harm" [in the stated
definition of murder] is incorrect as that phrase does not appear in
the definition of murder. We review this issue by considering
whether this single error prejudiced Appellant.
[*P49] The general rule is that an erroneous instruction does not
necessarily mislead a jury. Cleveland Elec. Illum. Co. v. Astorhurst
Land Co., 18 Ohio St.3d 268, 274-275, 18 Ohio B. 322, 480 N.E.2d
794 (1985).
"Reversible error ordinarily cannot be predicated upon one
paragraph, one sentence or one phrase of the general
charge. As this court held, in paragraph six of the syllabus
of Flynn v. Sharon Steel Corp. 142 Ohio St. 145, 50 N.E.2d
319 (1943):
'Where complaint is made as to a portion of the charge of
the court, a reviewing court will consider all of the charge
upon the particular subject complained of to determine
whether prejudicial error has been committed against the
party complaining.'
If the general charge, considered as a whole, is not prejudicial to the
objecting party, no reversible error results from a misstatement or
ambiguity in a portion thereof. In paragraph eight of the syllabus in
Centrello v. Basky, 164 Ohio St. 41, 128 N.E.2d 80 (1955), this court
said:
'Even though a paragraph in a general charge taken by itself
is improper and misleading, yet where considered in
connection with the whole charge and the entire instruction
of the court to the jury, it is apparent that no prejudicial
error resulted, the judgment rendered on a verdict will not
be reversed for such error.'
State v. Porter, 14 Ohio St.2d 10, 13, 235 N.E.2d 520 (1968)
(Citations omitted.).
[*P52] To conclude that a party's substantial rights were materially
affected, an appellate court must find that the jury charge was so
misleading and prejudicial as to result in an erroneous verdict.
Cleveland Elec. Illum. Co. v. Astorhurst Land Co., supra. Making
such a determination requires a "thorough review of the entire
transcript of proceedings before the trial court." Hampel v. Food
Ingredients Specialties, Inc., 89 Ohio St.3d 169, 186, 2000-Ohio-
128, 729 N.E.2d 726.
[*P53] After a thorough review of the transcript in the case at bar,
we find that focus of both Appellee and Appellant in this case was
the mens rea of Appellant. The records contains uncontradicted
evidence that Appellant was in physical possession of the revolver
that discharged twice, one bullet punctured the wall, one bullet
entered the victim's head, lodged in his arm and caused his death.
The victim's body was dragged from the home and concealed in the
murky water of the swimming pool. During closing argument
defense counsel conceded that Appellant shot the victim and that he
did "cause Nick's death." Appellant's trial counsel selected the
strategy of attacking the only issue that could be challenged:
"And the only question becomes what was the intent. Was
it intent to kill. Was it negligence. Was it recklessness.
Those are the only questions at that point."
"And that is what we ask you to do, folks, to listen and
analyze what Kevin said and the context of his state of
mind of what he was doing, what was going through his
head and his body on that Saturday."
[*P54] Our review of the potential prejudice caused by the
instruction must be considered in the context of the argument that
the sole issue to be determined was the mens rea of Appellant.
[*P55] The reference to bodily harm appears only once in the
record; otherwise the definition of murder and the relevant burden
of proof is described correctly in the instructions and clearly stated
that "purpose to cause death is an essential element of the crime of
murder." The instructions for the lesser included offenses of reckless
homicide and negligent homicide referenced causing the death of
Nickolas Remillard with the pertinent distinction being the mental
state of the Appellant. We are not convinced that the inclusion of the
reference to physical harm was so misleading and prejudicial as to
result in an erroneous verdict, but that is not the question we are
addressing. We need only consider whether trial counsel was
ineffective for failing to object to the instruction. Considering the
weight of the evidence against Appellant, and trial counsel's strategy
to attack the issue of mens rea, we find that trial counsel could
reasonably conclude that objecting to this instruction would distract
from his argument. "The Ohio Supreme Court has stated "[w]e will
ordinarily refrain from second-guessing strategic decisions counsel
make at trial, even where counsel's trial strategy was questionable.
State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980)."
State v. Myers, 97 Ohio St.3d 335, 362, 2002-Ohio-6658, 780
N.E.2d 186 (2002) as quoted in State v. Elmore, 5th Dist. Licking
No. 2005-CA-32, 2005-Ohio-5940, ¶ 133. We will not second-guess
the strategic decisions counsel made at trial even though appellate
counsel now argue that they would have defended differently." State
v. Post, 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987) as cited in
State v. Mason, 82 Ohio St.3d 144, 169, 1998-Ohio-370, 694 N.E.2d
932.
[*P56] Appellant's second assignment of error is overruled.
State v. Remillard, supra.
Here the Fifth District concluded the instruction was erroneous because it included the
phrase “inflict bodily harm.” The trial judge had given the correct definition of murder at other
places in the general charge, but here he inserted words that are not proper to that definition. The
court thus turned to the question whether the incorrect charge had prejudiced Remillard, given the
charge as a whole.
The proper standard for reviewing claims that allegedly ambiguous instructions caused jury
confusion is “whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373 (1999),
citing Estelle v. McGuire, 502 U.S. 62 (1991), and Victor v. Nebraska, 511 U.S. 1 (1994). "[N]ot
every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process
violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). To establish such a violation, a
petitioner must show two things: (1) the trial court's misstep made the instruction ambiguous; and
(2) there is "a reasonable likelihood" (not just "a slight possibility") that the jury was actually
misled. Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009); Moody v. United States, 958 F.3d
485 (6th Cir. 2020). Here the Fifth District found that the parties had reduced the critical issue in
trial to mens rea. While the jury had to find for the State on every element beyond a reasonable
doubt, the parties concentrated on the mens rea element. Petitioner does not contest the Fifth
District’s reading of where the critical issue was. Given that focus, “[c]onsidering the weight of
the evidence against Appellant, and trial counsel's strategy to attack the issue of mens rea, we find
that trial counsel could reasonably conclude that objecting to this instruction would distract from
his argument.” This is not an unreasonable inference as to counsel’s reasoning. On the basis of
that reasoning, it was not deficient performance to fail to make an objection. The Fifth District’s
conclusion on the Second Assignment of Error is a reasonable application of Strickland and
therefore entitled to deference. Ground Two should therefore be dismissed with prejudice.
Ground Three: Trial Court Error in Refusing Instruction on Accident
In his Third Ground for Relief, Remillard contends the trial court should have given the
instruction he requested on accident and that its failure to do so deprived him of his right to a
complete defense.
Remillard argued this as his Third Assignment of Error and the Fifth District decided it as
follows:
[*P65] In Appellant's third assignment of error, he contends that the
trial court erred by failing to include an instruction for "accident" as
requested. While Appellant did submit an instruction for accident, it
was rejected by the trial court as not supported by the record.
Appellant's trial counsel stated: "Just could the record reflect that we
did ask for an instruction on accident and the Court declined to give
that instruction?" The trial court responded "so noted" and no further
discussion regarding that instruction occurred.
[*P66] Criminal Rule 30(A) states in relevant part that "On appeal,
a party may not assign as error the giving or the failure to give any
instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and
the grounds of the objection." As we found in State v. Rohaley, 5th
Dist. Stark No. 1998CA00092, 1998 Ohio App. LEXIS 6549, 1999
WL 4505, *7, counsel did not fully comply with Crim.R. 30(A) by
stating the specificity of the nature of his request, or the grounds for
the request. Therefore, we must find plain error to reverse."
[*P67] We apply the doctrine of plain error cautiously and only
under exceptional circumstances to prevent a manifest miscarriage
of justice. Id. In that regard, "[T]he test for plain error is stringent."
State v. Ellison, 4th Dist. No. 16CA16, 2017-Ohio-284, 81 N.E.3d
853, ¶27. "To prevail under this standard, the defendant must
establish that an error occurred, it was obvious, and it affected his or
her substantial rights." State v. Spaulding, 151 Ohio St.3d 378,
2016-Ohio-8126, 89 N.E.3d 554, ¶ 64. An error affects substantial
rights only if it changes the outcome of the trial. Id. As noted we
notice plain error only to prevent a manifest miscarriage of justice.
State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104,
2016 WL 1071457, ¶ 59, quoting State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus. The
defendant carries the burden to establish the existence of plain error,
unlike the situation in a claim of harmless error, where the burden
lies with the state.
[*P68] In the case at bar we cannot find plain error. The general
instructions clearly instructed jurors that the required mens rea was
"purposeful" conduct that went beyond conduct considered to be an
accident. If the jury believed defendant's accident defense, it would
have been required to find him not guilty in accord with the
instructions given. State v. Smiley, 8th Dist. Cuyahoga No. 03853,
2010-Ohio-4349. We also note that Appellant's trial counsel freely
referred to the shooting as accidental or an accident. We do not find
that the outcome of the trial would have been different or that there
has been a manifest miscarriage of justice by the omission of the
accident instruction.
[*P69] Appellant's third assignment of error is overruled.
State v. Remillard, supra.
Although the Fifth District’s limitation of its review to plain error would support a
procedural default defense, Respondent elects not to raise that defense, but to defend on the merits
(Return, ECF No. 9, PageID 1102). The Warden contends that the Fifth District’s decision requires
deference because it found, given the parties’ focus on mens rea, that the trial court’s clear
instruction that the killing must have been purposeful, coupled with defense counsel’s strong
argument for a finding of accident, which went unchallenged by either the trial judge or the
prosecutor, was sufficient to present the mens rea element to the jury.
Remillard first argues that “The Ohio court of appeals did not decide this issue on the
federal constitutional issues presented. De novo review is required” (Traverse, ECF No. 12,
PageID 1148). The Magistrate Judge disagrees. Remillard’s Third Assignment of Error pleaded
that failure to give the requested accident instruction violated his rights to a fair trial under the
Sixth and Fourteenth Amendments (Appellant’s Brief, State Court Record, ECF No. 8, PageID
108). He argued the Assignment in terms of both State and federal law. Id. at PageID 108-11.
A state court decision can constitute an “adjudication on the merits” entitled to deference
under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim
or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court
held:
By its terms § 2254(d) bars relitigation of any claim "adjudicated on
the merits" in state court, subject only to the exceptions in §§
2254(d)(1) and (d)(2). There is no text in the statute requiring a
statement of reasons. The statute refers only to a "decision," which
resulted from an "adjudication." As every Court of Appeals to
consider the issue has recognized, determining whether a state
court's decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state
court explaining the state court's reasoning. See Chadwick v.
Janecka, 312 F.3d 597, 605-606 (CA3 2002); Wright v. Secretary
for Dept. of Corrections, 278 F.3d 1245, 1253-1254 (CA11 2002);
Sellan v. Kuhlman, 261 F.3d 303, 311-312 (CA2 2001); Bell v.
Jarvis, 236 F.3d 149, 158-162 (CA4 2000) (en banc); Harris v.
Stovall, 212 F.3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196
F.3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F.3d
866, 869 (CA8 1999). And as this Court has observed, a state court
need not cite or even be aware of our cases under § 2254(d). Early
v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002)
(per curiam). Where a state court's decision is unaccompanied by an
explanation, the habeas petitioner's burden still must be met by
showing there was no reasonable basis for the state court to deny
relief. This is so whether or not the state court reveals which of the
elements in a multipart claim it found insufficient, for § 2254(d)
applies when a "claim," not a component of one, has been
adjudicated.
Id. at 98. “This Court now holds and reconfirms that § 2254(d) does not require a state court to
give reasons before its decisions can be deemed to have been ‘adjudicated on the merits.’” Id. at
100. "When a federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Brown v. Bobby, 656 F.3d 325, 329
(6th Cir. 2011), quoting Harrington,131 S. Ct. at 784-85.
There is no need to rely on the Harrington presumption here. Remillard plainly presented
his federal claim as his Third Assignment of Error and the Fifth District denied it on the merits.
Thus Remillard’s Third Ground for Relief is not entitled to de novo consideration3. Rather, this
Court must defer to that decision unless it is an objectively unreasonable application of Supreme
Court precedent.
There is no federal constitutional right to have a trial court give an instruction that has been
requested merely because a defendant requests it and Petitioner does not argue for such a right.
Instead he asserts “If a requested instruction contains a correct statement of the law and is
appropriate to the facts, the instruction must be included, at least in substance, in the charge.”
(Traverse, ECF No. 12, PageID 1149, citing State v. Nelson, 36 Ohio St.2d 79 (1973), paragraph
one of the syllabus, overruled on other grounds, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d
583 (1982)). But that is a rule of Ohio law, not federal constitutional law.
3 Again continuing to presume the constitutionality of AEDPA.
Remillard’s principal argument is that refusal to give an accident instruction deprived him
of his right to present a complete defense (Traverse, ECF No. 12, PageID 1147, citing Mathews v.
United States, 485 U.S. 58 (1988)). In Mathews the Supreme Court held the defendant, under the
facts of that case, was entitled to an instruction on the entrapment defense, but the circuit court of
appeals should decide in the first instance whether the evidence supported such a defense.
Mathews was a federal prosecution for bribery. In reaching its decision, the Court did not
rely on the Constitution, but on interpretation of the bribery statute and the Federal Rules of
Criminal Procedure. The concept of “complete defense” is not discussed in the opinions.
A fair opportunity to present a defense in a criminal case is a constitutional right. Baze v.
Parker, 371 F.3d 310, 323 (6th Cir. 2004), citing Crane v. Kentucky, 476 U.S. 683, 690 (1986).
Presenting relevant evidence is integral to that right; exclusion of assertedly relevant evidence is
the issue on which most “complete defense” constitutional cases turn. See Taylor v. Illinois, 484
U.S. 400, 409-11 (1988); Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Wynne v. Renico,
606 F.3d 867, 870 (6th Cir. 2010) quoting United States v. Scheffer, 523 U.S. 303, 308 (1998).
Remillard cites no Supreme Court or for that matter circuit court decisions in which refusal
to give a requested instruction was found to violate the constitutional right to present a complete
defense. In Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999), the only Sixth Circuit case cited, the
issue was not refusal to give an instruction, but the correct claim that the instruction of self-defense
actually given in a rape case misstated (and overstated) what a defendant needed to prove to
establish that defense. In this case the trial judge correctly instructed on the required mens rea
(purposeful) and allowed defense counsel to argue Remillard’s accident theory of the case.
Remillard has not shown that the Fifth District’s decision on his Third Assignment of Error
is contrary to or an objectively unreasonable application of Supreme Court precedent. His third
Ground for Relief should therefore be dismissed.
Conclusion
In accordance with the foregoing analysis it is respectfully recommended that the Petition
herein be dismissed with prejudice.
Because the Sixth Circuit has not squarely ruled on the constitutionality of the AEDPA in
the face of the challenges Petitioner makes and many eminent judges have reached opposite
conclusions on this question, a certificate of appealability should be issued on the question of
whether the AEDPA is constitutional in light of those challenges. A fortiori, Petitioner should be
allowed to proceed on appeal in forma pauperis.
June 29, 2021.
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. 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.