Burney Sr. v. Shoop

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 habeas corpus case under 28 U.S.C. § 2254 is brought by Petitioner Percy R. Burney,

Sr., with the assistance of counsel to obtain relief from his conviction in the Franklin County Court

of Common Pleas on various assault, drug, and weapons charges and consequent sentence of forty

years imprisonment. The case is ripe for decision on the Petition (ECF No. 1), the State Court

Record (ECF No. 10), the Return of Writ (ECF No. 11) and Petitioner’s Reply (ECF No. 24).

Litigation History

The relevant charges are in three different indictments. On March 14, 2017, the Franklin

County Grand Jury indicted Burney in Case No. 14CR-1326 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

Attempted Murder in violation of Ohio Revised Code § R.C. 2923.02/2903.02, a first-degree

felony with two firearm specifications and a Repeat Violent Offender (RVO) specification (Count

2); two counts of Felonious Assault in violation of Ohio Revised Code § 2903.11, second-degree

felonies with two firearm specifications and a Repeat Violent Offender (RVO) specification

(Counts 3-4); one count of Tampering with Evidence in violation of Ohio Revised Code § 2921.12,

a third-degree felony with a firearm specification (Count 5); two counts of Trafficking in Heroin

in violation of Ohio Revised Code § 2925.03, second-degree felonies with count 15 with a firearm

specification (Counts 12 and 15); one count of Having Weapons While Under Disability in

violation of Ohio Revised Code § 2923.13, a third-degree felony (Count 16); two counts of

Trafficking in Heroin in violation of Ohio Revised Code § 2925.03, first-degree felonies with

count 24 with 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, second-degree felonies

(Counts 22 and 37). (Indictment, Case No. 14CR-1326, State Court Record ECF No. 10, Exhibit

1).

On April 10, 2017, the Franklin County Grand Jury indicted Burney in 14CR-1824 on one

count of Engaging in a Pattern of Corrupt Activity in violation of Ohio Revised Code § 2923.32,

a first-degree felony (Count 1); one count of Possession of Heroin in violation of Ohio Revised

Code § 2925.11, a second-degree felony with a firearm specification (Count 8); one count of

Possession of Cocaine in violation of Ohio Revised Code § R.C. 2925.11, a third-degree felony

with a firearm specification (Count 9); and six counts of Having Weapons While Under Disability

in violation of Ohio Revised Code § 2923.13, third-degree felonies (Counts 10-15). (Indictment,

Case No. 14CR-1824, State Court Record 10, Exhibit 3).

On May 30, 2017, the Franklin County Grand Jury indicted Burney in 14CR-2868 on one

count of Engaging in a Pattern of Corrupt Activity in violation of Ohio Revised Code § 2923.32,

a first-degree felony (Count 1)(Indictment, Case No. 14CR-2868, State Court Record, ECF No.

10, Exhibit 5).

After he was convicted by a jury on some but not all counts, Burney appealed to the Tenth

District Court of Appeals which affirmed. State v. Burney, 2020-Ohio-504 (10th Dist. Feb. 13,

2020). The Supreme Court of Ohio declined jurisdiction of a subsequent appeal. State v. Burney,

159 Ohio St. 3d. 1408 (2020).

Burney filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 on

January 23, 2017 (Petition, State Court Record, ECF No. 10, Ex. 41). The Common Pleas Court

denied the Petition and Burney did not appeal.

Through counsel, Burney filed his habeas corpus petition 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.

(ECF No. 1, Petition, at PageID 5-10).

However in his Memorandum in Support Petitioner set forth only the following claims:

Argument No.1:

A Trial Court Plainly Errs and Constitutionally Errs by Failing to

Grant a Mistrial in the Face of Uncertainty and Contingency as to

the whether the Jury Reached Unanimous verdicts

Argument No. II:

A Trial Court Abuses its Discretion and Constitutionally Errs by

Denying a Motion to Dismiss a Racketeering Charge for Failure to

List which Offenses of R. C.2923.31(1)(2) are Alleged to Constitute

the Defendant's Two or More Predicate Corrupt Activities.

Argument No. III:

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”

(Petition, ECF No. 1, PageID 16). In his Reply Petitioner states he “chose three arguments to brief as

set forth in his memorandum at ECF. No.1.” (ECF No. 24, PageID 823, n. 1). The Court accordingly treats

Grounds Three and Four as abandoned.

Analysis

Ground One: Uncertainty About Jury Unanimity

In his First Ground for Relief, Burney claims the trial court should have granted a mistrial as to all

counts of conviction because it was uncertain that the jury had reached unanimous verdicts on all of them.

The decision of the Tenth District Court of Appeals, however, reflects considerably more complexity in the

process. After the verdicts were announced, defendants requested that the jury be polled; only Juror No.

7’s responses were examined further. She was examined at length and the results of that examination are

reported as follows:

{¶ 29} In this case, the jury initially announced verdicts finding

Burney guilty of Count 1 (engaging in a pattern of corrupt activity);

Counts 8, 16, 19, 21, and 30 (heroin trafficking); Count 31

(manufacture of drugs); and Counts 38 and 39 (heroin and cocaine

possession, respectively). Thereafter, the defendants, including

Burney, requested the jury be polled.

{¶ 30} As explained above, during the juror poll, Juror No. 7

indicated she had been pressured by her fellow jurors on a number

of counts, had doubts as to others, and was confused about how she

voted on others. Juror No. 7 kept detailed notes regarding her

deliberations on all of the counts, although those notes are not part

of the record on appeal.

{¶ 31} Initially, it is important to note that, in his fifth assignment

of error, Burney does not raise a specific unanimity challenge to the

guilty verdict on any of the counts. Instead, Burney maintains that

because Juror No. 7 expressed misgivings about her guilty verdict

on certain counts, the trial court committed plain error by failing to

declare a mistrial on all counts.

{¶ 47} Burney argues the trial court should have declared a mistrial

on all counts based on the notion that the pressure on Juror No. 7

was pervasive to the point that none of the verdicts reached could be

considered valid. We disagree. With regard to some counts, Juror

No. 7 indicated she felt pressured and recounted there was “a big

fight about this” that left her “upset” and “crying.” She indicated she

had “[r]eal issues” with some counts. She also indicated some

uncertainty, or at least initial uncertainty, with respect to some

counts. She expressed confusion with respect to how she voted on a

number of counts. She also indicated she voted “not guilty” on one

count when the verdict forms reflect a guilty finding and that she

voted “guilty” on one count when the verdict forms reflect a not

guilty finding. She also expressed she was confused and that “all the

charges [were] running together.” However, with respect to many

counts she did not indicate any lasting problems. At the conclusion

of the discussion of her verdicts, the following conversation took

place:

THE COURT: Okay. All right. Very good. As long as

you're up here then, for those things that you said yes, those

are your verdicts, those are freely, voluntarily entered by

you, and the other ones you just felt you were pressured?

Is that a fair statement?

JUROR 7: Yes.

THE COURT: Those are your verdicts, and the other ones

you're not sure?

JUROR 7: Yes.

(Tr. at 4377-78.) In short, while the record in this case evidences a

significant level of confusion on the part of all involved, not every

count was rendered defective as a result. We find no error in the trial

court's decision to take Juror No. 7's statements at face value and

hold that some of the counts reflected her free and voluntary

verdicts. Therefore, we overrule Burney's fifth assignment of error.

State v. Burney, supra.

As Petitioner emphasizes, this portion of the Tenth District’s decision drew a dissent from

Judge (now Justice) Jennifer Brunner. She agreed with the authority cited by the majority that an

Ohio criminal verdict must be unanimous and when the jury polling process reflects uncertainty

about unanimity, it is the trial judge’s duty to resolve that uncertainty. She disagreed with the

majority’s conclusion that that trial judge had completed that task satisfactorily and would have

reversed Burney’s convictions on Counts 1, 19, and 21. State v. Burney, supra, at ¶ 83.

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 jury returned its verdicts in this case on February 4, 2015 (State Court Record, ECF No.

10, Ex. 21). The United States Supreme Court did not extend the Sixth Amendment jury unanimity

right to the States through the Fourteenth Amendment until Ramos v. Louisiana, 590 U. S. ___,

140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), overruling Apodaca v. Oregon, 406 U.S. 404 (1972).

Moreover, it decided the next term that Ramos would not apply to cases on collateral review.

Edwards v. Vannoy, 593 U.S. ___, 141 S. Ct. 1547 (2021).

Ohio does require jury unanimity in criminal cases. Burney, supra, citing Work v. State, 2

Ohio St. 296, 306 (1853). However, failure to abide by state law, including state constitutional

law, is not itself a federal constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir.

1985). Violation by a State of its own procedural rules does not necessarily constitute a violation

of due process. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ.,

540 F.2d 222, 228 (6th Cir. 1976). “A state cannot be said to have a federal due process obligation

to follow all of its 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), cert.

denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516

U.S. 99 (1995). This Court lacks authority to compel the Ohio courts to adopt certain procedures

to ensure unanimity in Ohio jury verdicts. Ohio’s failure to use the unanimity assurance

procedures Justice Brunner advocates in her dissent does not make the Tenth District’s decision

contrary to or an objectively unreasonable application of clearly established Supreme Court

precedent. Burney’s Ground One should be dismissed with prejudice for failure to state a claim

upon which habeas corpus relief can be granted.

Ground Two: Insufficiency of the Indictment’s Racketeering Count

In his Second Ground for Relief, Burney asserts the racketeering count of the Indictment is

constitutionally deficient for failure to allege which violations of Ohio Revised Code § 2923.31

are alleged to constitute predicate corrupt activities. He presented this claim on direct appeal to

the Tenth District as his First Assignment of Error, which that court decided as follows:

{¶ 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.

As the prior discussion indicates, the Supreme Court has only recently extended the federal

jury unanimity requirement to the States and not on a retroactive basis. See Ramos and Edwards,

supra. In contrast, the Court has never extended the right to grand jury indictment to the States.

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).

Burney did not argue this claim in the Tenth District in terms of federal constitutional

precedent. Instead, he argued the indictment did not conform to binding Ohio precedent in State

v. Buehner, 110 Ohio St.3d 403 (2005). The Tenth District held the indictment did comply with

Buehner and in any event “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.” Burney at ¶ 55. There is no Supreme Court

precedent that clearly establishes the due process notice requirements for criminal pleading cannot

be met by incorporation of elements from other documents, a bill of particulars, and/or open

discovery. Burney’s Second Ground for Relief is without merit.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Burney claims his constitutional right to a fair trial was

violated by the prosecutor’s comment in closing argument about the deadly effects of engaging in

selling drugs as an occupation.

Burney presented this claim on direct appeal to the Tenth District which decided the claim

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.

{¶ 67} During opening statements in this case, the prosecution made

comments about one defendant supporting her lifestyle through

involvement with one of the other defendants and his drug dealing.

The defense replied during closing that the prosecution had failed to

establish any lavish lifestyle enjoyed by any defendants as a way to

suggest that they were not guilty of the extensive drug trafficking

with which they had been charged. Then, on rebuttal the prosecutor

made the following remarks:

I would suggest to you that any lifestyle built - - predicated

solely on the misery and death of other people is the wrong

kind of lifestyle. That's what heroin is. Any lifestyle she's

living - - and the call that I'm going to talk about, I think,

expressly tells you why I'm saying this. Any lifestyle she

or he are living based on other people's misery is illegal.

The point of selling drugs is to make money. The effect of

selling drugs is killing people.

(Tr. at 4084-85).

{¶ 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.

The Sixth Circuit has articulated the relevant standard for habeas claims of prosecutorial

misconduct:

Prosecutorial misconduct justifies federal habeas relief only if it “so

infected the trial with unfairness as to make the resulting conviction

a denial of due process” and resulted in prejudice. Gillard v.

Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986)).

On habeas review, claims of prosecutorial misconduct are reviewed

deferentially. Darden v. Wainwright, 477 U.S. 168, 181 (1986). To

be cognizable, the misconduct must have “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.’” Id. (citation omitted). Even if the prosecutor’s conduct

was improper or even “universally condemned,” id., we can provide

relief only if the statements were so flagrant as to render the entire

trial fundamentally unfair. Once we find that a statement is

improper, four factors are considered in determining whether the

impropriety is flagrant: (1) the likelihood that the remarks would

mislead the jury or prejudice the accused, (2) whether the remarks

were isolated or extensive, (3) whether the remarks were

deliberately or accidentally presented to the jury, and (4) whether

other evidence against the defendant was substantial. See Boyle v.

Million, 201 F.3d 711, 717 (6th Cir. 2000). Under [the] AEDPA,

this bar is heightened by the deference we give to the . . . [Ohio]

Supreme Court’s determination of . . . [Petitioner’s] prosecutorial-

misconduct claims. See Macias v. Makowski, 291 F.3d 447, 453-54

(6th Cir. 2002)(“If this court were hearing the case on direct appeal,

we might have concluded that the prosecutor’s comments violated

Macias’s due process rights. But this case is before us on a petition

for a writ of habeas corpus. So the relevant question is not whether

the state court’s decision was wrong, but whether it was an

unreasonable application of clearly established federal law.”).

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003).

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.

The Magistrate Judge concludes the Tenth District’s decision on this prosecutorial

misconduct claim is neither contrary to nor an objectively unreasonable application of clear

Supreme Court precedent. Although no evidence of the deadly effects of heroin trafficking was

introduced at trial, as the Tenth District noted, such evidence was hardly necessary. The ubiquity

of deaths from heroin overdoses as well as deaths from “drug wars” is sufficiently well known that

it could probably be the subject of judicial notice1. The remark was not particularized to Burney

as it would have been if the prosecutor had claimed a direct causal relationship between a drug

dealing act of Burney and the death of some particular person. The remarks were certainly not

extensive. There were no explicit calls for jurors to do their civic duty by joining the war against

drugs.

Because the Tenth District’s decision satisfies 28 U.S.C. § 2254(d)(1), it is entitled to

deference. Ground Three should therefore be dismissed.

Request for a Hearing

At various points in his Reply (e.g. PageID 823, 829), Petitioner indicates he “seeks a

hearing” on his claims. He does not inform the Court what sort of hearing he desires or believes

he may be entitled to. Hearings in habeas corpus cases at which petitioners introduce evidence

have been severely restricted by the Supreme Court. Cullen v. Pinholster, 563 U.S. 170 (2011).

Burney has not shown – indeed, he has not attempted to show – that he is entitled to an evidentiary

hearing under Pinholster. If all Petitioner seeks is a respectful hearing of his arguments, this

Report hopefully reflects he has already received that hearing. If some other hearing is sought,

1 The New York Times for the date of filing this Report noted that 2021 had set a new record for overdose death; the

last prior record was set in 2020.

Petitioner must specify what he seeks and why he is entitled.

Conclusion

Based on the foregoing analysis the Magistrate Judge respectfully recommends that 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.

May 13, 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. 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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