Apprendi does not change this result
How later courts described this case
- Apprendi does not change this result
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
PERCY R. BURNEY, SR.,
Petitioner, : Case No. 2:21-cv-3422
- vs - Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
TIM SHOOP, Warden,
Chillicothe Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATION
This is a habeas corpus action under 28 U.S.C. § 2254, brought by Petitioner with the
assistance of counsel1. Relevant filings are the Petition (ECF No. 1), the State Court Record (ECF
No. 10), and the Return of Writ (ECF No. 11). Upon ordering an answer, Magistrate Judge
Vascura set a reply deadline of twenty-one days after the answer was filed (ECF No. 2, PageID
72). The Answer was filed and served January 3, 2022, making the reply deadline January 24,
2022. No reply was filed within the time allowed, making the case ripe for decision on the prior
pleadings.
1 The Petition is signed by Attorney David Axelrod, a member of the bar of this Court. It is also signed by Jonathan
J. Einhorn who purports to be an attorney at law with offices in New Haven Connecticut. Mr. Einhorn is not a member
of the bar of this Court, but lists himself as “proposed counsel pro hac vice.” (Petition, ECF No. 1, PageID 32). Mr.
Einhorn has neither sought nor obtained leave to appear pro hac vice in this case. Because no application to appear
pro hac vice has ever been made by anyone on Mr. Einhorn’s behalf, the Court treats Attorney Axelrod as the sole
counsel for Petitioner.
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in this judicial District (ECF No. 12).
Litigation History
On March 14, 2014, the Franklin County Grand Jury indicted Petitioner in Case No. 14CR-
1326 on one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code
§ 2923.32 (Count 1); one count of attempted murder in violation of Ohio Revised Code §
2923.02/2903.02, with two firearm specifications and a repeat violent offender specification (Count
2); two counts of Felonious Assault in violation of Ohio Revised Code § 2903.11 with two firearm
specifications and a repeat violent offender specification (Counts 3-4); one count of tampering with
evidence in violation of Ohio Revised Code § 2921.12 with a firearm specification (Count 5); two
counts of trafficking in heroin in violation of Ohio Revised Code § 2925.03 with a firearm specification
(Counts 12 and 15); one count of having weapons while under disability in violation of Ohio Revised
Code § 2923.13 (Count 16); two counts of trafficking in heroin in violation of Ohio Revised Code §
2925.03 with count 24 carrying a firearm specification (Counts 21, 24, 29, and 36); and two counts of
illegal manufacture of drugs in violation of Ohio Revised Code § 2925.04 (Counts 22 and 37).
(Indictment, Case No. 14CR-1326, State Court Record, ECF No. 10, Ex. 1).
On April 10, 2014, the Franklin County Grand Jury indicted Petitioner in Case No. 14CR-
1824 on one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code
§ R.C. 2923.32 (Count 1); one count of possession of heroin in violation of Ohio Revised Code §
2925.11 with a firearm specification (Count 8); one count of possession of cocaine in violation of
Ohio Revised Code § 2925.11 with a firearm specification (Count 9); and six counts of having
weapons while under disability in violation of Ohio Revised Code § 2923.13)(Counts 10-15).
(Indictment, Case No. 14CR-1824, State Court Record ECF No. 10, Ex. 3).
Finally, on May 30, 2014, the Franklin County Grand Jury indicted Petitioner in Case No.
14CR-2868 on one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code
§ R.C. 2923.32 (Count 1). (Indictment, Case No. 14CR-2868 State Court Record ECF No. 10, Ex. 5).
Except for the weapons under disability counts, the case was tried to a jury which found Burney
guilty on Count 1 (engaging in a pattern of corrupt activity), Count 8 (trafficking in heroin), Count 16
(trafficking in Heroin), Count 19 (trafficking in heroin) -- but not guilty on the firearm specification.
The jury further found Burney guilty on Count 21 (trafficking in heroin), Count 30 (trafficking in
heroin), Count 31 (illegal manufacturing of drugs), Count 38 (possession of heroin) with the firearm
specification, Count 39 (possession of cocaine) and the firearm specification. Finally, the jury found
Burney not guilty on Count 11 (trafficking in heroin), Count 17 (illegal manufacturing of drugs), Count
25 (attempted murder), and Counts 26 and 27 (felonious assault). (Verdict Forms, State Court Record
ECF No. 10, Exhibit 21). Burney tried the weapons charges to the bench and was found guilty. He
was then sentenced to an aggregate term of imprisonment of forty years.
Represented by new counsel, Burney appealed and the convictions was affirmed. State v.
Burney, 2020-Ohio-504 (Ohio App. 10th Dist. Feb. 13, 2020). The Supreme Court of Ohio declined
jurisdiction over a subsequent appeal. State v. Burney, 159 Ohio St. 1408 (2020).
On January 23, 2017, Burney filed, with the assistance of counsel, a petition for post-
conviction relief under Ohio Revised Code § 2953.21 (Petition, State Court Record, ECF No. 10,
Ex. 41). The trial court denied the petition and Burney did not appeal. Id. at Ex. 47.
Burney filed his Petition for Writ of Habeas Corpus in this Court on June 9, 2021, pleading
the following grounds for relief:
Ground One: It was Uncertain if the Jury Verdicts were
Unanimous.
Supporting Facts: One juror indicated that she had been pressured
by fellow jurors on some counts, had doubts about others and was
not certain how she voted on others. The court granted a mistrial on
some counts but not all counts, based upon the juror’s uncertainty,
pressure and confusion.
Ground Two: The Court Erred in Failing to Dismiss the
Racketeering Charge.
Supporting Facts: Count 1 (the racketeering charge), failed to
sufficiently allege the predicate offenses constituting the pattern of
corrupt behavior. While Count 1 failed to allege the predicate
offenses, the indictment referred to charges in another indictment,
which did not name Burney. This did not constitute adequate notice
to the defendant.
Ground Three: The Court Erred when it Failed to Sever Co-
Defendants.
Supporting Facts: Evidence offered by a co-defendant prejudiced
him, to wit, (1.) a detective called by a co-defendant, (2.) testimony
of a cooperating witness pertaining to retaliation and (3.) a jail call
discussing retaliation against a co-defendant.
Ground Four: The Court Erred in Allowing Hearsay Testimony
from a Co-Defendant.
Supporting Facts: The Court permitted a co-defendant to testify
that Burney told him he was going to dispose of a weapon that
another defendant used in a shooting.
Ground Five: The court Erred in not declaring a Mistrial based on
Prosecutorial Misconduct.
Supporting Facts: At closing argument, the state’s attorney
discussed the deadly effects of drugs, which was improper and
inflammatory.
(Petition, ECF No. 1, PageID 5, 7, 8, and 10).
Analysis
Ground One: Lack of Juror Unanimity
In his First Ground for Relief, Burney asserts he is entitled to a mistrial on all counts of
conviction because it is not certain that the jury verdicts were unanimous. The face of the Petition
does not relate this claim to any particular clause of the United States Constitution (ECF No. 1,
PageID 5). The attached Memorandum repeats the vague claim from the appellate assignments of
error that a trial court “constitutionally errs” when it accepts a non-unanimous verdict. Id. at
PageID 21. However, the only federal constitutional law cited is In re Winship, 397 U.S. 358
(1970), which held the Due Process Clause required every fact needed for conviction to be proved
beyond a reasonable doubt and has no holding on the issue of jury unanimity. The other cases
cited are holdings requiring unanimity under the Ohio Constitution.
Respondent asserts this claim should be dismissed because it fails to state a claim upon which
relief can be granted in habeas corpus. Federal habeas corpus is available only to correct federal
constitutional violations. 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). "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.)
152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar,
J. concurring).
The trial court accepted the verdict in this case on February 5, 2015 (See Judgment Entry,
State Court Record, ECF No. 10, Ex. 26, PageID 302). As of that date, a non-unanimous verdict
did not violate the United States Constitution. Apodaca v. Oregon, 406 U.S. 404 (1972). On April
20, 2020, the United States Supreme Court overruled Apodaca and incorporated the federal
unanimous verdict requirement of the Sixth Amendment into the Fourteenth Amendment Due
Process Clause. Ramos v. Louisiana, 590 U. S. ___, 140 S. Ct. 1390 (2020). However, a year later
the Court held the jury unanimity rule adopted in Ramos does not apply retroactively to cases on
collateral review. Edwards v. Vannoy, 593 U.S. ___, 141 S. Ct. 1547 (2021).
What counts as constitutional law for habeas corpus purposes is the law announced in the
holdings of the United States Supreme Court as of the time of the relevant state court decision.
White v. Woodall, 572 U. S. 415 (2014). On the date the relevant verdicts were accepted in this
case (February 5, 2015), non-unanimous verdicts were not federally unconstitutional.
The fact that unanimous criminal verdicts were required by the Ohio Constitution in 2015 is
not relevant to this case. A state cannot be said to have a federal due process obligation to follow
all of its own procedures; such a system would result in the constitutionalizing of every state rule,
and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993). This
Court is also bound, however, to accept the conclusion of the Ohio Tenth District Court of Appeals
that the relevant verdicts did not violate the Ohio Constitution. Bradshaw v. Richey, 546 U.S. 74
(2005).
This conclusion elides any necessity for analysis of whether the relevant verdicts were or
were not unanimous; assuming they were not, accepting them did not violate the United States
Constitution.
Burney’s First Ground for Relief should be dismissed for failure to state a claim upon which
habeas corpus relief can be granted.
Ground Two: Defective Indictment
In his Second Ground for Relief, Burney asserts he was convicted on an indictment which
did not properly advise him of the charges against him. Burney raised this claim as his First
Assignment of Error on direct appeal and the Tenth District decided it as follows:
{¶ 48} In Burney's first assignment of error, Burney argues the trial
court abused its discretion and constitutionally erred when it denied
his motion to dismiss the charge in Count 1, engaging in a pattern
of corrupt activity, and denied his motions for mistrial and acquittal
on that charge. Among the due process protections enumerated in
Article I, Section 10 of the Ohio Constitution is the following: “no
person shall be held to answer for a capital, or otherwise infamous,
crime, unless on presentment or indictment of a grand jury.” The
purposes of an indictment are to give an accused adequate notice of
the charge and to enable an accused to protect himself from any
future prosecutions for the same incident. State v. Buehner, 110
Ohio St.3d 403, 2006-Ohio-4707, ¶ 7, citing Weaver v. Sacks, 173
Ohio St. 415, 417 (1962); State v. Sellards, 17 Ohio St.3d 169, 170
(1985). The Supreme Court has held:
The sufficiency of an indictment is subject to the
requirements of Crim.R. 7 and the constitutional
protections of the Ohio and federal Constitutions. Under
Crim.R. 7(B), an indictment “may be made in ordinary and
concise language without technical averments or
allegations not essential to be proved. The statement may
be in the words of the applicable section of the statute,
provided the words of that statute charge an offense, or in
words sufficient to give the defendant notice of all the
elements of the offense with which the defendant is
charged.”
An indictment meets constitutional requirements if it “first,
contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must
defend, and, second, enables him to plead an acquittal or
conviction in bar of future prosecutions for the same
offense.”
Buehner at ¶ 8-9, quoting State v. Childs, 88 Ohio St.3d 558, 564-
65 (2000), quoting Hamling v. United States, 418 U.S. 87, 117-18
(1974).
{¶ 49} In the present case, Burney raises three arguments under his
first assignment of error with regard to Count 1, engaging in a
pattern of corrupt activity: (1) Count 1 failed to sufficiently allege
the predicate offenses constituting the pattern of corrupt activity; (2)
Count 1 failed to provide adequate notice and violated due process;
and (3) the failure to obtain guilty verdicts on some of the predicate
offenses requires an acquittal on Count 1.
{¶ 50} The first two arguments are related and will be addressed
together. With regard to the first argument, that Count 1 failed to
allege any predicate offenses constituting the pattern of corrupt
activity, Burney asserts the indictment improperly relied on only one
charge in the same indictment and the charges in other indictments
as predicate offenses. Burney contends that the indictment
referenced in Count 2 of the same indictment, but Burney was not
named in Count 2. Burney also contends the indictment indicated it
was incorporating offenses from another indictment, none of which
named Burney. With regard to the second argument, Burney argues
that incorporating other indictments violates his right to notice and
due process. Burney claims that, in preparing for trial and defending
the case, he was left to guess what conduct the state would allege
was illegal.
{¶ 51} The language in the indictment tracked the language
contained in R.C. 2923.32(A)(1), which is entitled “Engaging in
pattern of corrupt activity; forfeiture.” The indictment also then
indicated it was incorporating “each” of the offenses indicted in case
Nos. 14CR-1315, 14CR-1825, and Count 2 of the indictment as
predicate offenses for Count 1. Count 2 of the indictment was based
on obstructing justice under R.C. 2921.32 and listed only one co-
defendant's name but not Burney's name.
{¶ 52} We find the indictment here complies with the requirements
enunciated in Buehner. The indictment: (1) is in the words of the
statute, R.C. 2923.32; (2) is in words sufficient to give Burney
notice of all the elements of the offense of engaging in a pattern of
corrupt activity; and (3) enables Burney to plead an acquittal or
conviction in bar of future prosecutions for the same offense under
R.C. 2923.32. Here, Burney had adequate notice of the predicate
offenses because the indictment indicated it was incorporating
“each” of the offenses indicted in case Nos. 14CR-1315, 14CR-
1825, and Count 2 of the indictment as predicate offenses for Count
1. By incorporating “each” offense, it was incorporating every
applicable offense, as well as Count 2 in the same indictment. The
state did not rely on any offenses not listed in case Nos. 14CR-1315,
14CR-1825, and Count 2.
{¶ 53} The trial court indicated at a pre-trial hearing it did not have
a problem with a predicate offense being incorporated by reference
as long as the defendant had ready access to it. At trial, the court
reiterated that Count 1 was sufficient because the state had
incorporated each of the offenses from the other two cases as
predicate offenses, “so the defendants are on notice as to those
predicate offenses.” The state also filed an additional bill of
particulars during trial, which included an e-mail inviting defense
counsel to inform the state if further elaboration was necessary. The
court subsequently found this amended bill of particulars provided
sufficient notice.
{¶ 54} Furthermore, the bill of particulars filed here indicated “See
Response to Request for Discovery for further information.” At a
pre-trial hearing, the prosecutor offered Burney's counsel to come to
the prosecutor's office and review the discovery to work through
various things, which the trial court noted was “unprecedented.” At
the same pre-trial hearing, Burney's counsel admitted that he had
numerous communications with the prosecutor regarding the
evidence in the case, and the prosecutor indicated that, instead of
preparing a more specific bill of particulars in writing, the state
provided “open file discovery” and offered “the opportunity to come
in and go over it with [defense counsel].” The court called the
prosecutor's offer to compile and organize all of the evidence to
share with defense counsel a “de factor bill of particulars” that went
“far beyond * * * the idea of an amendment to the bill of
particulars.”
{¶ 55} Based on the above, we conclude Count 1 of the indictment
was not defective, but even if it did not give sufficient notice of the
predicate offenses, Burney was given sufficient notice of the
predicate offenses through open file discovery, the amended bill of
particulars, and “unprecedented” prosecutorial cooperation, so as to
render any defect not prejudicial. See, e.g., State v. Henson, 6th Dist.
No. L-17-1312, 2019-Ohio-229, ¶ 29 (because the indictment
tracked the statutory language, the defendant had access to open file
discovery, Crim.R. 7(D) allowed for the allegedly defective
charging documents to be amended, and the predicate offense was
clarified through a bill of particulars, the defendant could not
demonstrate he was prejudiced by the alleged defect in the
indictment); State v. Renfroe, 6th Dist. No. L-12-1146, 2013-Ohio-
5179, ¶ 25 (even if the indictment was defective, the defendant was
provided with open file discovery; thus, the failure to provide an
amended bill of particulars was harmless), citing State v. Evans, 2d
Dist. No. 20794, 2006-Ohio-1425, ¶ 24 (when the state allows open
file discovery, a bill of particulars is not required); State v. Dixon,
10th Dist. No. 09AP-473, 2009-Ohio-6057, ¶ 5-6 (the indictment
was not defective when the indictment listed the statutes the
defendant was accused of violating and the defendant had notice of
the charges and the elements of those charges; additional
information about the elements of the statutes and the evidence
against the defendant were available through pursuit of a bill of
particulars and criminal discovery). Accordingly, these arguments
are without merit.
{¶ 56} With regard to the third argument, that the failure to obtain
guilty verdicts on some of the predicate offenses required an
acquittal on Count 1, Burney asserts that Count 1 was dependent on
his committing two or more predicate offenses listed in R.C.
2923.31(I). Burney contends that, because the state failed to list any
predicate offenses in the indictment, he defended on all claims, but,
at trial, the state seemed to focus on attempted murder and two
counts of felonious assault as predicate offenses to Count 1. Because
the jury found him not guilty of those three offenses, Burney argues,
one element of Count 1 could not be established and he could not be
convicted of Count 1.
{¶ 57} As we indicated above, case No. 14CR-2868 incorporated by
reference “each” of the offenses indicted in case Nos. 14CR-1315
and 14CR-1825, as well as Count 2 of the same indictment, as
predicate offenses for Count 1. However, R.C. 2923.31(E) requires
the state prove only two or more incidents of corrupt activity,
regardless of whether Burney was acquitted or a mistrial was
declared on any other number of predicate offenses. The jury found
Burney guilty of three counts of trafficking in heroin, illegal
manufacture of drugs, possession of heroin, and possession of
cocaine, which all constitute an incident of “corrupt activity,”
pursuant to R.C. 2923.31(I)(2)(c) and could have provided the
requisite predicate offenses. Therefore, this argument is without
merit. For these reasons, we overrule Burney's first assignment of
error.
State v. Burney, supra.
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 proceedings.
As pointed out in the Return, the Grand Jury Clause of the Fifth Amendment is not
applicable to the States; it has not been “incorporated” into the Due Process Clause. Hurtado v.
California, 110 U.S. 516 (1884); Branzburg v. Hayes,408 U.S. 665, 687-88 n. 25 (1972); Gerstein
v. Pugh, 420 U.S. 103 (1975); Williams v. Haviland, 467 F.3d 527 (6th Cir. 2006)(Apprendi does
not change this result). “[T]here is no constitutional right in a state prosecution to a grand jury
indictment with particular specificity.” Id. at 534, citing Rose v. Mitchell, 443 U.S. 545, 557, n.
7 (1979). “Due process mandates only that the indictment provide the defendant with ‘fair notice
of the charges against him to permit adequate preparation of his defense.’” Williams at 535, quoting
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
Russell v. United States, 369 U.S. 749 (1962), holds the sufficiency of an indictment is to
be measured by the following criteria:
These criteria are, first, whether the indictment "contains the
elements of the offense intended to be charged, 'and sufficiently
apprises the defendant of what he must be prepared to meet,'" and,
secondly, "'in case any other proceedings are taken against him for
a similar offense whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.'"
369 U.S. at 763-64. While the right to grand jury indictment has not been extended to the States,
these criteria are applicable as a matter of due process. Valentine v. Konteh, 395 F.3d 626, 631
(6th Cir. 2005), citing De Vonish v. Keane, 19 F.3d 107, 108 (2nd Cir. 1994); Fawcett v. Bablitch,
962 F.2d 617, 618 (7th Cir. 1992); see also Isaac v. Grider, 211 F.3d 1269 (6th Cir. 2000); Parks
v. Hargett, 1999 U.S. App. LEXIS 5133, 1999 WL 157431, at *3 (10th Cir. 1999).
The Tenth District concluded Burney had received adequate notice of the charges against
him to allow him to defend and nothing in Burney’s Memorandum in Support refutes that analysis.
Instead, he focuses on Ohio law requirements for pleading predicate offenses in an indictment
(Memorandum, ECF No. 1-1, PageID 27-30). That holding is entitled to deference under 28
U.S.C. § 2254(d)(2) because it has not been shown to be an unreasonable determination of the
facts on the basis of the evidence presented in the Ohio courts. Ground Two should therefore be
dismissed.
Ground Three: Failure to Sever
In his Third Ground for Relief, Burney claims he was constitutionally entitled to severance
of his trial from his co-defendants.
Respondent asserts this claim is procedurally defaulted because it was never fairly
presented to the Ohio courts in that it was abandoned on appeal to the Supreme Court of Ohio
(Memorandum, State Court Record, ECF No. 11, Ex. 37, PageID 778). Burney has filed no reply
to this defense.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise in federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
An examination of Petitioner’s Memorandum in Support of Jurisdiction in the Supreme
Court of Ohio reveals that this claim was not brought forward from the Tenth District
(Memorandum, State Court Record, ECF No. 11, Ex. 37, PageID 539). Petitioner has offered no
excusing cause and prejudice. He cannot claim that ineffective assistance of appellate counsel is
excusing cause because criminal defendants do not have a Sixth Amendment right to counsel at
the state supreme court level. The right to appointed counsel extends to the first appeal of right
and no further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600
(1974). Ineffective assistance of counsel can excuse procedural default only when it occurs in a
proceeding where a defendant is constitutionally entitled to counsel under the Sixth Amendment.
Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel, there
can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5
(6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
The Magistrate Judge concludes Ground Three is procedurally defaulted for failure to
present it to the Supreme Court of Ohio and should be dismissed on that basis.
Ground Four: Allowance of Hearsay Testimony
In his Fourth Ground for Relief, Petitioner claims he was deprived of his constitutional
rights when the trial court allowed a co-defendant to testify about a statement Burney made.
Burney did not argue this claim in the Memorandum in Support of the Petition.
Respondent asserts this claim is procedurally defaulted on the same basis as Ground Three,
to wit, that it was raised in the court of appeals but not carried forward to the Supreme Court of
Ohio (Return, ECF No. 11, PageID 778). A review of the Memorandum in Support of Jurisdiction
confirms the correctness of this claim (Memorandum, State Court Record, ECF No. 11, Ex. 37,
PageID 778). Ground Four is therefore procedurally defaulted on the same basis as Ground Three
and should be dismissed.
Ground Five: Failure to Declare A Mistrial Relating to Prosecutorial Misconduct
In his Fifth Ground for Relief, Petitioner claims he was denied a fair trial by prosecutorial
misconduct, a comment made in closing about the deadly effect of drugs (Petition, ECF No. 1,
PageID 10). In the Memorandum in Support, he phrases the claim as “a trial court constitutionally
errs by overuling [sic] a motion for mistrial when the prosecutor states in closing argument that the
effect of selling drugs is killing people.” (ECF No. 1-1, PageID 16).
Burney presented this claim as his Fourth Assignment of Error on direct appeal and the Tenth
District decided it as follows:
{¶ 66} Burney argues in his fourth assignment of error that the trial
court erred when it failed to grant a mistrial based on prosecutorial
misconduct. He contends that certain statements made by the
prosecutor during closing about the deadly effects of drugs were
misconduct and that a mistrial should have been granted. “ ‘The test
for prosecutorial misconduct during closing arguments is whether
the remarks were improper and, if so, whether they prejudicially
affected the accused's substantial rights.’ ” State v. Cepec, 149 Ohio
St.3d 438, 2016-Ohio-8076, ¶ 96, quoting State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, ¶ 198; see also State v. Thompson, 141
Ohio St.3d 254, 2014-Ohio-4751, ¶ 162, quoting State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, ¶ 121.
* * *
{¶ 68} The prosecution had introduced no testimony regarding the
health effects of heroin or drug dealing. It also had not introduced
evidence to tie any drugs sold by any defendant to any overdose or
other drug-related death. Thus, the prosecutor's argument assumed
facts not in evidence and was, in that sense, arguably improper and
somewhat inflammatory. Yet, we do not find it necessary to further
address that point because we do not find prejudice to Burney's
substantial rights. This was a single remark which was uttered one
time in nearly 70 pages of closing argument by the state in the larger
context of a four-week trial comprising a transcript of several
thousand pages. Moreover, the content of the remark likely did not
inject into the minds of the jurors any ideas with which they were
not already acquainted concerning the illegal drug, heroin.
Therefore, we overrule Burney's fourth assignment of error.
State v. Burney, supra.
Respondent argues the Tenth District’s decision is a reasonable application of the
controlling United States Supreme Court precedent. Respondent notes the prevailing federal
standard: to prevail on a prosecutorial misconduct claim a habeas petitioner must show the
prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction a denial
of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “Even if the prosecutor’s
conduct was ‘undesirable or even universally condemned,’ [the habeas court] can only provide relief
if the [conduct was] so egregious as to render the entire trial fundamentally unfair to a degree
tantamount to a due process violation.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The
reviewing court’s focus in a claim of prosecutorial misconduct is “the fairness of the trial, not the
culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). A prosecutor’s alleged
misconduct must be examined within the context of the entire trial to determine whether it deprived a
defendant of a fair trial. United States v. Young, 470 U.S. 1, 11-12 (1985).
The Tenth District’s decision on the prosecutorial misconduct claim is perfectly consistent with
this precedent. The statement about the deadly effect of drugs was isolated, made once in a seventy-
page closing argument after a four-week trial and certainly did not introduce any idea that would
not have been in the minds of most Americans: deaths from heroin overdoses are in the news
daily.
Because the Tenth District’s decision is not an unreasonable application of relevant Supreme
Court precedent, it is entitled to deference under 28 U.S.C. § 2254(d)(1). The Fifth Ground for Relief
should therefore be denied on the merits.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the Petition 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.
February 4, 2022.
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, but service is complete when the document is mailed, not when it is recetved. 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. #
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