The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
THOMAS WALKER,
Petitioner, : Case No. 1:22-cv-249
- vs - District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz
WARDEN, Chillicothe Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
Petitioner Thomas Walker brought this habeas corpus action pursuant to 28 U.S.C. § 2254
to obtain release from his commitment to the custody of Respondent Warden Tim Shoop at the
Chillicothe Correctional Institution (Petition, ECF No. 1). On order of Magistrate Judge Chelsey
Vascura, to whom this case was initially referred, the Warden through counsel has filed the State
Court Record (ECF No. 10) and a Return of Writ (ECF No. 11). Since the Magistrate Judge
reference was transferred to the undersigned, Walker has filed a Reply (ECF No. 16) and the case
is ripe for decision.
Litigation History
On June 9, 2016, the Hamilton County Grand Jury indicted Walker on one count of murder
in violation of Ohio Rev. Code § 2903.02(A) with specifications (Count One), one count of murder
in violation of Ohio Rev. Code § 2903.02(B) with specifications (Count Two), one count of
felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1) with specifications, (Count
Three), one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2) with
specifications, (Count Four), one count of gross abuse of a corpse in violation of Ohio Rev. Code
§ 2927.01(B), (Count Five), one count of tampering with evidence in violation of Ohio Rev. Code
§ 2921.12(A)(1), (Count Six), and one count of having weapons while under disability in violation
of Ohio Rev. Code § 2923.13(A)(3),(Count Seven)(Indictment, State Court Record, ECF No. 10,
Ex. 1). A jury convicted Walker on all counts and he was sentenced to twenty-five years to life in
prison.
Represented by new counsel, Walker timely appealed to the Ohio First District Court of
Appeals, raising the following Assignments of Error:
1. The prosecutorial misconduct during closing arguments deprived
Mr. Walker of his constitutional rights to due process and a fair trial.
2. The trial court abused its discretion when it allowed in evidence
of prior unrelated alleged acts as it was unfairly prejudicial.
3. The trial court erred to the prejudice of the Defendant-Appellant
as there was insufficient evidence to convict.
4. The trial court erred to the prejudice of the Defendant-Appellant
because the verdict was against the manifest weight of the evidence.
5. The Defendant was denied effective assistance of trial counsel as
guaranteed by Section 10, Article 1, of the Ohio Constitution and
the Sixth and Fourteenth Amendments.
6. The consecutive sentence imposed by the courts is contrary to
law.
(Appellant’s Brief, State Court Record, ECF No. 10, Exhibit 17, PageID 122). The First District
affirmed (Id. at Ex. 19). Walker failed to timely appeal to the Supreme Court of Ohio, but sought a
delayed appeal a year later. The Ohio Supreme Court allowed the delayed appeal, but declined to
exercise jurisdiction. Id. at Ex. 28. While the direct appeal was pending, Walker filed an Application
to Reopen under Ohio R. App. P. 26(B), pleading the following omitted assignment of error:
Trial Counsel was ineffective in failing to engage a crime scene
reconstruction expert when that is crucial to showing the Order of
Events and how the accidental shooting occurred, and how trial
attorney sent the Appellant a letter making a promise to engage the
crime scene reconstruction expert with the intent to not fulfil
denying Appellants right to effective assistance of trial counsel as
guaranteed by Section 10, Article 1, of the Ohio Constitution and
the Sixth and Fourteenth Amendments to the U.S. Constitution.
(State Court Record, ECF No. 10, Ex. 29, PageID 287-88). The First District denied the
Application. Id. at Ex. 30. The State Court Record does not show any appeal to the Ohio Supreme
Court, but the online docket of the Ohio Supreme Court in its Case No. 2021-0535 shows it allowed
a delayed appeal, but then declined to take jurisdiction.
Walker then filed his Petition for Writ in this Court, pleading the following Grounds for
Relief:
Ground One: Trial Counsel was ineffective in not calling expert
witnesses, during trial.
Supporting Facts: Counsel violated Petitioner’s constitutional
right to trial by failing to call expert witnesses, as agreed upon.
Ground Two: The Prosecutor’s misconduct during closing
arguments deprived Petitioner of his constitutional right to due
process and a fair trial.
Supporting Facts: The prosecutorial misconduct during closing
arguments deprived Appellant Walker of his constitutional right to
due process and a fair trial. By misleading the jury, concerning the
facts and evidence the case.
Ground Three: The evidence at trial was insufficient to sustain a
conviction, constitutional.
Supporting Facts: The elements were not ment [sic] of the charged
offenses, according to the evidence presented.
Ground Four: Fraud upon the court was committed when Police
Officer Blank, Officer Bruewer, and Officer John Hein lied about
Appellant confessing to the alleged charges evidenced by the
transcripts and the fact that suspect who confess to murder are than
[sic] arrested for murder not released as an innocent man, in
violation of Article I Section 9 & §3 no bill of attainder and
Amendment 5 of the U.S. Constitution due process of law which
also violates constitution.
Supporting Facts: A fraud was committed in the trial court in
allowing officers to testify to false accounts, “as facts” when the
Court and State were aware of the untruthfulness of the witnesses
testimony. Violating Petitioner’s constitutional right to due process
and trial. Also in allowing 404(B) evidence to prejudice Petitioner
in violation of his right to a fair trial.
Ground Five: The court of appeals violated Petitioner’s right to due
process to timely appeal their decision to appeal until after time
expired.
Ground Six: The consecutive sentence imposed by the court
contrary to law.
Supporting Facts: The sentences are not just.
Ground Seven: The Trial Court abused it’s discretion when it
allowed improper other bad acts evidence\”Note” This ground is
also addressed with the fraud clam.
(Petition, ECF No. 1, PageID 6-17).
Analysis
Petitioner pleaded seven grounds for relief, but arranged his Traverse around three
“propositions of law” which have arguments that address many points. This Report will first
analyze the Grounds for Relief as pleaded. To the extent the Traverse pleads different or modified
claims for relief from the Petition, they are not properly before the Court. A district court may
decline to review a claim a petitioner raises for the first time in his traverse or reply. Jalowiec v.
Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).
Ground One: Ineffective Assistance of Trial Counsel
Walker asserts his trial attorney provided ineffective assistance of counsel by failing to call
expert witnesses, although calling them had been agreed upon.
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
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.” Strickland, 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).
Ohio law provides two possible methods for showing ineffective assistance of trial counsel.
If the claim can be proven from the trial record, it must be raised on direct appeal; failure to do so
procedurally defaults the claim under Ohio’s res judicata rules. State v. Colombo, 73 Ohio St. 3d
306 (1995); State v. Dehler, 73 Ohio St. 3d 307 (1995). On the other hand, ineffective assistance
of trial counsel claims that depend on evidence outside the record must be raised in a petition for
post-conviction relief under Ohio Revised Code § 2953.21.
Walker’s claim as best the Magistrate Judge understands it is that his trial attorney had
agreed to call a crime scene reconstructionist to bolster Walker’s own account of how the death of
Necole Craig had occurred and that it was an accident.
Walker raised this claim as his Fifth Assignment of Error on direct appeal. Applying the
Strickland standard, the First District held:
(¶65) Generally, the decision not to call an expert witness does not
constitute ineffective assistance of counsel because that decision is
solely a matter of trial strategy. Coleman, 45 Ohio St.3d at 307-308,
544 N.E.2d 622; Durgan, 1st Dist. Hamilton No. C-170148, 2018-
Ohio-2310, at ii 43. Because the decision not to present expert
testimony may be tactical, the decision of trial counsel to rely on
cross-examination of the state's experts did not equate to ineffective
assistance of counsel. See State v. McRae, 1st Dist. Hamilton No. C-
180669, 2020-Ohio-773 ¶ 19.
{¶66} The record shows that Walker's counsel provided him with a
diligent and thorough defense. He has not demonstrated that his
counsel's representation fell below an objective standard of
reasonableness or that, but for his counsel's unprofessional errors, the
results of the proceeding would have been otherwise. Therefore, he has failed
to meet his burden to show ineffective assistance of counsel. See Strickland
at 687-689; Hackney at ¶¶ 37-38. We overrule Walker’s Fifth Assignment
of Error.
State v. Walker, Case No. C-190193 (Ohio App. 1st Dist. Apr. 22, 2020)(copy at State Court
Record, ECF No. 10, Ex. 19, PageID 199-200).
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. Walker makes no
attempt to show that the First District’s decision is an objectively unreasonable application of
Strickland.
When he came to file his Application to Reopen the direct appeal, Walker reframed this
claim as a claim of breach of contract by fraud by his trial attorney, who had represented he would
present a reconstructionist expert (State Court Record, ECF No. 10, Ex. 29, ¶ 6, PageID 285). In
denying the Application, the First District recognized the claim had been presented before on direct
appeal. Id. at Ex. 30, PageID 298. Because Walker had not relied on the contract and fraud claims
on direct appeal, the First District did not rely on res judicata. However, the letter in question
which shows at least communication between Walker and his attorney on this witness was not part
of the record on direct appeal and could not be added to the record and form the basis of a decision
on appeal. Id. at PageID 300. It was therefore held not to be ineffective assistance of appellate
counsel to fail to raise the proposed assignment of error.
Walker adds another copy of the letter as an attachment to his Reply (ECF No. 16, PageID
2129). The letter is dated December 11, 2017, and shows continued preparation for a February
2018 trial, including working with a “ballistics and firearm expert” with the intention of presenting
him at trial. The docket sheets also show the court had approved payment to Larry Dehus, a well-
recognized local firearms and ballistics expert (Docket Sheets, PageID 308). Thus the record made
in the state courts supports Walker’s claim that there had been discussion within the defense team
and with the court of presenting a firearms expert1.
However, by itself, the letter does not show deficient performance by trial counsel. It does
not disclose what opinions, if any, the expert was prepared to testify to or include even a draft copy
of his report. As the First District recognized, whether or not to present an expert is within the
discretionary judgment of a defense attorney. If Mr. Dehus provided an exonerating report which
was not part of the record on direct appeal, it was incumbent on Walker to present that by way of
a petition for post-conviction relief under Ohio Revised Code § 2953.21, but no such petition has
ever been filed in this case. Because of the one-year statute of limitations on filing such a petition,
Walker has procedurally defaulted the claim.
In connection with his First Ground, Walker relies in part on McCoy v. Louisiana, 584 U.S.
___, 138 S. Ct. 1500 (2018), where the Supreme Court added that an attorney’s admitting guilt
when client wants to oppose it, even when evidence is overwhelming, is a structural error requiring
reversal. The Court did not analyze the claim under ineffective assistance of trial counsel doctrine,
but said it was a matter of client autonomy, along with such decisions as whether to accept
appointed counsel, whether to try the case to a jury, or whether to accept a plea agreement. The
Supreme Court has not extended McCoy to the situation presented here and has generally
interpreted the category of structural error very narrowly.
Accordingly, the claim of ineffective assistance of trial counsel is barred by required
deference to the First District’s opinion on direct appeal and by failure to file a petition for post-
conviction relief. Ground One should be dismissed with prejudice.
1 Thus this Court can consider this evidence without breach of the ruling in Cullen v. Pinholster, 563 U.S. 170 (2011).
Ground Two: Prosecutorial Misconduct
In his Second Ground for Relief, Walker claims the prosecutor made misleading statements
in closing argument, depriving him of due process of law. This claim was Walker’s First
Assignment of Error on direct appeal and the First District decided it as follows:
{¶38} Walker takes issue with two comments in the prosecutor's
rebuttal argument. First, the prosecutor stated, "[A]nd I am not
making up things. Please use your collective memory and not-I
don't-it is not my job to just come here and lie to you."
{¶39) The prosecutor's comment must be viewed in context. In his
argument, defense counsel had implied that the police had done a
slip-shod investigation and that the state had fabricated facts
because it had insufficient evidence. In rebuttal, the prosecutor
talked about how Walker's stories to the police did not match the
scientific evidence. She then stated, "I submit to you, and some
people don't need to change their stories. They don't have one. *. • •
I want to talk about Nicole now. Necole only had one story. That
story is she loved the wrong person. You heard from the family • *
*. They believed that Walker was verbally abusing Necole,
physically harming her as well." Defense counsel objected, saying,
"It's not the evidence testified to."
{¶40) The trial court overruled the objection, and then the prosecutor
continued with "With Necole before Walker-and I am not making
up things. Please use your collective memory and not-I don't-it is
not my job to just come up here and just lie to you." After the trial
court overruled Walker's objection and refused to give a curative
instruction, the prosecutor discussed the family's testimony about
Necole's changed behavior after she met Walker.
{¶41) The prosecutor's comment was a direct response to the
defense counsel's argument, and thus, it was not improper. See State
v. Hopkins, 2018-Ohio-1864, 112 N.E.3d 98, ¶ 97-99 (2d Dist.);
State v. Carter, 2017-0hio-1328, 88 N.E.3d 513, ¶ 23 (1st Dist.).
The rest of her statements were fair comments on the evidence.
{¶42) Next, Walker takes issue with the following comment in the
prosecutor's rebuttal argument. She stated, "That is how he felt about
Necole. Not this little, ooh, boo-boo in court where he is [c]rying.
Where never did he ever show any remorse in any of his three
interviews." Prior to this statement, the prosecutor was talking about
Walker's text messages with degrading comments about Necole.
{¶43) First, Walker did not object to this comment, so we review it
for plain error. State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d
1332 (1983); State v. Thomas, 1st Dist. Hamilton No. C-120561,
2013-Ohio-5386, ¶ 38. The statement was a fair comment on the
evidence. Further, it is not improper for a prosecutor to comment on
the defendant's lack of remorse. See State v. Bryan, 101 Ohio St.3d
272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 184; State v. Awkal, 76 Ohio
St.3d 324, 335-336,667 N.E.2d 960 (1996). We cannot hold that the
comment was improper much less that it rose to the level of plain
error.
(¶44) Further, even if the prosecutor's comments were improper,
they were two isolated remarks in an otherwise proper argument.
"Isolated comments by a prosecutor are not to be taken out of
context and given their most damaging meaning." State v. Carter,
89 Ohio St.3d 593, 603, 734 N.E.2d 345 (2000). None of the
comments that Walker complains about were so egregious as to
affect his substantial rights or deny him a fair trial. Further, the trial
court instructed the jury that opening and closing arguments are not
evidence. We presume that the jury followed that instruction. See
State v. Gamer, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); State
v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶ 21 (1st Dist.). Therefore,
we overrule Walker's first assignment of error.
State v. Walker, supra.
With respect to that portion of the prosecutor’s comments to which no objection was made,
any claim about them is procedurally defaulted for lack of a contemporaneous objection. An Ohio
state appellate court’s review for plain error is enforcement, not waiver, of a procedural default.
Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th
Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517,
525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239
(6th Cir. 2001).
With respect to the remaining comments, Walker has not shown that the First District’s
decision on the merits is an objectively unreasonable application of clearly established Supreme
Court law. See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Donnelly v. DeChristoforo, 416
U.S. 637, 643, (1974). It is therefore entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). Walker’s Second
Ground for Relief should therefore be dismissed with prejudice.
Ground Three: Insufficient Evidence
In his Third Ground for Relief, Walker asserts he was convicted on insufficient evidence.
He presented this as his Third Assignment of Error on direct appeal and the First District decided
it as follows:
{¶52) In his third assignment of error, Walker contends that the
evidence was insufficient to support his conviction for murder. He
argues that the evidence failed to show that he purposefully caused
the victim's death because the death was the result of an accident.
This assignment of error is not well taken.
{¶53} R.C. 2903.02(A) provides that "[n]o person shall purposely
cause the death of another* * *." A person acts purposefully when
"it is the person's specific intention to cause a certain result, or, when
the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish
thereby, it is the offender's specific intention to engage in conduct
of that nature." R.C. 2901.22(A).
{¶54) A person is presumed to intend the natural, reasonable and
probable consequents of his or her acts. State v. Johnson, 56 Ohio
St.2d 35, 39, 381 N.E.2d 637 (1978); State v. Robinson, 132 Ohio
App.3d 830, 838, 726 N.E.2d 581 (1st Dist.1999). The determination
of whether the accused acted with the required culpable mental state
must be gathered from the surrounding facts and circumstances.
Johnson at 38; Robinson at 838; State v. Heard, 1st Dist. Hamilton
No. C-980443, 1999 WL 636555, *7 (Apr. 13, 1999).
{¶55} "[A]n intent to kill may be presumed where the natural and
probable consequence of the wrongful act done is to produce death.
It may be deduced from the surrounding circumstances, including
the instrument used, its tendency to destroy life if designed for that
purpose, and the manner of inflicting the wound." State v. Robinson,
161 Ohio St. 213, 218-219, 118 N.E.2d 517 (1954).
{¶[56} The text messages sent by Walker to the Necole and her
family members showed that he had threatened to kill her in the past.
When Walker turned himself in to the police, his first statement was
that he had shot and killed his girlfriend. He made no mention of an
accident. The story that he later told police did not match with the
scientific evidence. If the shooting had happened as Walker claimed,
which he said was at close range, there likely would have been
fouling or stippling on Necole's head or face, but none was found.
Necole's family testified that she did not like guns, she did not know
how to use one, and they had never seen her hold one. Additionally,
the coroner found substantial bruising on the side of Necole's face,
indicating blunt-force trauma.
{¶57} The evidence also showed that Walker was furious when
Necole did not answer his calls or texts shortly before the shooting.
Additionally, the delay in reporting the shooting, his tampering with
evidence at the scene, his erasure of text messages from his phone,
and his attempts to locate Necole's phone all indicate a
consciousness of guilt and show that he acted purposefully. Finally,
in his interview with the police, the investigating detective indicated
that Walker's answers about the shooting were "prepared," but when
he was pressed, the details of his story were inconsistent and
changed over time.
{¶58) Walker relies heavily on the fact that Necole's DNA was
found on the gun. But this argument ignores the fact that Walker had
two days to tamper with the crime scene and spent time watching
true-crime shows. The scientific evidence showed that DNA could
transfer from surface to surface, and Walker could have easily
transferred Necole's DNA onto the gun.
{¶159} The state's evidence regarding Walker's intent was
circumstantial, but circumstantial and direct evidence have the same
probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph one of the syllabus; State v. Durgan, 1st Dist.
Hamilton No. C-170148, 2018-Ohio-2310, ¶ 39. Our review of the
record shows that a rational trier of fact, after viewing the evidence
in a light most favorable to the prosecution, could have found that
the state proved beyond a reasonable doubt all of the elements of
murder. Therefore, the evidence was sufficient to support the
conviction. See Jenks at paragraph two of the syllabus; State v.
Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29.
{¶160} Walker argues that his version of events was more credible
than the state's evidence. But in deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses. Wright, 2017-Ohio-1568, 90 N.E.3d 162, at
¶ 58. Consequently, we overrule Walker's third assignment of error.
State v. Walker, supra.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
As the quoted language makes clear, the First District decided Walker’s sufficiency claim
on the merits using the Jackson v. Virginia standard. Walker’s burden here, then, is to show the
First District unreasonably applied Jackson. He has not done so.
In particular Walker argues that there are no eyewitnesses, but that it is not uncommon in
homicide cases. “Circumstantial evidence alone is sufficient to support a conviction, and it is not
necessary for the evidence to exclude every reasonable hypothesis except that of guilt.” United
States v. Ramirez, 635 F.3d 249, 256 (6th Cir. 2011), quoting United States v. Stone, 748 F.2d 361,
362 (6th Cir. 1993); United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010); United States v.
McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007); United States v. Kelley, 461 F.3d 817, 825 (6th Cir.
2006); United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999); United States v. Beddow, 957 F.2d
1330, 1334 (6th Cir. 1992). Walker was certainly free to argue that his version of what happened
was more credible than the State’s, but questions of credibility are for the jury to decide. The First
District’s decision on the sufficiency of the evidence is not an objectively unreasonable application
of Jackson and is therefore entitled to deference under the AEDPA. Ground Three should be
dismissed with prejudice.
Ground Four: Fraud on the Court: Police Officer Perjury
In his Fourth Ground for Relief, Walker claims Cincinnati Police Officers Blank, Bruewer,
and Hein lied about Appellant’s “confessing” to the alleged charges, thereby committing fraud on
the court.
Respondent asserts this claim is procedurally defaulted because it was not raised on direct
appeal to the First District, but only on appeal to the Ohio Supreme Court (Return, ECF No. 11,
PageID 339). Walker makes no response and the defense is well taken: the Ohio Supreme Court
will not consider errors not raised in the court of appeals. State v. Phillips, 27 Ohio St.2d 294 (1971).
Even without this procedural default, the claim is without merit. The First District
summarized the relevant testimony:
¶12) The record shows that on Monday, May 30, 2016, at about
10:30 p.m., Cincinnati Police Officer Barnabus Blank was working
the front desk at District One when Walker walked in and announced
that "I got into it with my girl and I shot and killed her." Walker
gave him a house key and said, "You will need this to get to the
body."
¶13) Officer Blank went into the lobby and put handcuffs on Walker.
Blank described Walker as calm, but also "sweaty and clammy," and
"a little bit out of breath." Blank saw that Walker had a gunshot
wound to his left leg, so he called an ambulance.
¶14) Walker told Blank that the police would find the body at 705
Glenwood Avenue on the second floor. Blank recognized the
address that Walker gave him as being located in District Four. He
arranged for a squad to respond to that address, and also called
District Four to give them "a heads up."
¶15) Police Officer Alisha Bruewer was standing near the front desk
when Walker walked into District One. She said that Walker was
sweating profusely and appeared to be nervous. Walker stated that
"it took him a little while because he had to work himself up to bring
himself down to the district," and that "he and his wife got into an
altercation and he had a bullet stuck in his leg." He also stated that
the shooting had occurred on the Saturday before.
¶16) Sergeant John Hein was also present at District One. He
photographed the gunshot wound when the paramedics cut off
Walker's pants leg. Hein said that "the coloring was definitely of
interest," the wound was not bleeding, and it appeared to be
"scabbed over already." The bullet was still underneath the skin, and
the colors of the bruises indicated that some time had elapsed since the
wound had been inflicted.
State v. Walker, supra.
A determination of facts by a state court is presumed correct in later habeas corpus
proceedings unless the petitioner shows by clear and convincing evidence from the state court
record that the finding is clearly erroneous. Walker has not even attempted to make that showing.
Instead he asserts these statements must be perjurious because the police let him leave the station
instead of immediately charging him and keeping him in custody. He was certainly free to make
that argument to the jury, but he had no evidence to back it up, no expert in police procedure to
testify a person in his circumstances would not have been allowed to leave. Nor does he even
point to any person present in the District One offices to rebut the account these officers gave of
what Walker said. The claim that the officers’ testimony is perjurious is based on Walker’s
assertion alone.
Ground Four should be dismissed as procedurally defaulted and also without merit.
Ground Five: Denial of Due Process: Failure to Serve Notice of Decision
In his Fifth Ground for Relief, Walker claims he was denied due process when he was not
served with notice of the decision of the court of appeals on his Application to Reopen until it was
too late to appeal to the Ohio Supreme Court. Walker offers as proof a letter from the ODRC
which shows that the institution’s mail log shows no mail received by Walker from the First
District Court of Appeals from January 20, 2021, until May 13, 2021 (Petition, ECF No. 1, PageID
25). The State Court Record shows the 26(B) Application was denied on January 20, 2021 (ECF
No. 10, PageID 298). The docket of the court of appeals in this case records mailing a copy of the
decision to all parties on the date of decision, January 20, 2021, Id. at Ex. 32, PageID 313.
However, it also shows receipt of a copy of Walker’s Notice of Appeal to the Supreme Court of
Ohio on April 28, 2021, in that court’s Case No. 2021-0535. Id. The Supreme Court’s docket in
that case shows Walker filed a Notice of Appeal in that court on April 27, 2021. Id. at PageID 315.
At the same time Walker filed a motion for delayed appeal because of the COVID 19 pandemic2
2 The Ohio Supreme Court does not in the ordinary course allow delayed appeal in collateral proceedings. Special
rules were, however, adopted, to deal with the pandemic.
which the Supreme Court granted. On June 16, 2021, the Supreme Court dismissed the appeal for
want of prosecution. On reconsideration the court granted Walker another extension of time to
file a memorandum in support of jurisdiction. Although he filed the required memorandum, the
court eventually declined to exercise jurisdiction.
In sum, the record shows the First District mailed a copy of its decision, but Walker did
not receive it until May 14, 2021. Nevertheless he somehow found out about the decision in time
to appeal on April 27, 2021. Although that was untimely, the Supreme Court of Ohio did not hold
the untimeliness against him (See Supreme Court Docket for its Case No. 2021-0535, available at
www.supremecourt.ohio.gov/clerk/ecms/#/caseinfo/2021/0535, visited January 19, 2023).
Walker has offered no authority for the proposition that a state appellate court has a due
process obligation to serve a copy of its decisions on appellants. Assuming there is such an
obligation, the record before this Court shows the First District did give notice; what happened to
Walker’s copy is unknown, although this Court had many difficulties with prisoner mail at the
height of the pandemic. Even if the First District had failed to mail a copy, it did no harm because
the Ohio Supreme Court allowed Walker to file. From the record, both that filed by the Attorney
General and that available online, the Magistrate Judge finds any possible constitutional error was
harmless. Therefore Ground Five should be dismissed on the merits.
Ground Six: The Consecutive Sentences Are Contrary to Law and Unjust
In his Sixth Ground for Relief, Walker claims the consecutive sentences imposed on him
are contrary to law and unjust.
Respondent argues this Ground for Relief raises only state law issues and therefore it is not
cognizable in habeas corpus (Return, ECF No. 11, PageID 330-31). Walker makes no response in
his Traverse.
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).
While Ohio law requires specific findings by a trial judge before consecutive sentences
may be imposed, that requirement is a matter of state statute, not federal constitutional law. “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). As Respondent points out,
the Supreme Court has held no special jury findings are constitutionally necessary to justify
consecutive sentences. Oregon v. Ice, 555 U.S. 160 (2009). Ground Six should be dismissed with
prejudice.
Ground Seven: Trial Court Abuse of Discretion by Allowing Evidence of “Other Bad Acts”
In his Seventh Ground for Relief, Walker claims the trial court abused its discretion by
admitting evidence of other bad acts. Respondent asserts this claim is not of constitutional import.
Walker raised this claim as his Second Assignment of Error on direct appeal and the First
District decided the other acts evidence was admissible under Ohio R. Evid. 404(B) not to prove
Walker’s bad character, but to show his intent to kill, an essential element of murder.
The question of the admissibility of other acts evidence is a question of state law. Conversely,
a claim of abuse of discretion does not state a federal constitutional claim. Put another way, abuse
of discretion is not a denial of due process. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). Indeed
Walker did not argue this claim as a constitutional claim in the First District and the United States
Supreme Court has never held that admission of other acts evidence violates the Constitution.
“There is no clearly established Supreme Court precedent which holds that a state violates due
process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the
issue in Estelle v. McGuire, 502 U.S. 62 (1991).
Ground Seven should be dismissed for failure to state a claim upon which habeas corpus
relief can be granted.
Conclusion
In accordance with the foregoing analysis, the Magistrate Judge respectfully recommends
the Petition herein 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.
January 20, 2023.
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. #
s/ Michael R. Merz
United States Magistrate Judge
21