Webster v. Warden, Lebanon Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

DESMOND L. WEBSTER,

Petitioner, : Case No. 2:22-cv-4343

- vs - Chief Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought pro se by Petitioner Desmond Webster pursuant to

28 U.S.C. § 2254. Petitioner seeks relief from his conviction in the Franklin County Court of

Common Pleas and consequent sentence to life without parole (Petition, ECF No. 1). The case is

ripe for decision on the Petition, the State Court Record (ECF No. 8), and the Return of Writ (ECF

No. 10). The Court set a deadline of twenty-one days after the Return was filed for Petitioner to

file a reply (Order, ECF No. 3, PageID 38), but that deadline has expired and no reply has been

filed.

Litigation History

On September 1, 2017, Webster with three co-defendants was indicted on one count of

aggravated burglary in violation of Ohio Revised Code § 2911.1, four counts of kidnapping in

violation of Ohio Revised Code § 2905.01, four counts of aggravated murder in violation of Ohio

Revised Code § 2903.01, four counts of murder in violation of Ohio Revised Code § 2903.02, two

counts of attempted murder in violation of Ohio Revised Code § 2923.02 and 2903.02, three counts of

felonious assault in violation of Ohio Revised Code § 2903.11, and one count of having weapons while

under disability in violation of Ohio Revised Code § 2923.13. All counts except having weapons while

under disability had accompanying three-year firearm specifications pursuant to Ohio Revised Code §

2941.145(A). The charges related to the deaths of Mohamed A. Mohamed and Abdul Cadir A. Yussuf

on or about July 18-19, 2017 (Indictment, State Court Record, ECF No. 8, Ex. 1).

A jury convicted Petitioner of one count of aggravated burglary, four counts of kidnapping,

four counts of aggravated murder, four counts of murder, and three counts of felonious assault, along

with accompanying firearm specifications for each of these counts. (Verdict Forms- Guilty, State Court

Record, ECF No. 8, Ex. 3). He was found not guilty of four counts of aggravated robbery. Id., Ex. 4

The State nolled the two attempted murder charges and all the repeat violent offender specifications in

the indictment. Id.. Ex. 5. On February 20, 2020, Webster was ordered to serve an aggregate sentence

of life without parole. Id. In addition, the court notified Webster of the imposition of five years of post-

release control upon his release from prison. Id., Ex. 6.

Webster appealed raising three assignments of error, but the Ohio Tenth District Court of

Appeals affirmed. State v. Webster, 2021-Ohio-3218 (Ohio App. 10th Dist. Sept. 16, 2021). The

Ohio Supreme Court declined to exercise jurisdiction over a further appeal. State v. Webster, 165

Ohio St.3d 1495 (2021).

Webster subsequently filed his Petition in this Court raising the following grounds for

relief:

Ground One: The trial court improperly instructed the jury on

aiding and abetting in violation of appellant’s due process rights

guaranteed by the United States and Ohio Constitutions.

Supporting Facts: ln his first assignment of error, Webster argues

the trial court erred in instructing the jury on aiding and abetting.

More specifically, Webster asserts the trial court erred in providing

an incomplete instruction as the instruction omitted the requisite

intent that the trial court erred in omitting the mens rea element from

its complicity instruction. As spelled out in the discussion of

aggravated burglary and then applied by generic reference to all

other counts, the charge apprised the jury that Webster could be

convicted on a complicity theory if he aided, assisted, or encouraged

another in the crime and "participate[d] in the commission of the

offense by some act, word, or gesture" (beyond mere presence at the

scene). Tr. at 1212. That instruction on its own and in a vacuum did

permit conviction without regard to a defendant's state of mind, and

does not require reference to the "purpose" element of the

underlying charges. Here, Webster was not present at the shooting

incident for which he was charged with aggravated murder and

murder to say the least. In this case, the trial court's deviation from

instructing the jury on the mens rea; identifies plain error being a

meaningful defect in the trial; which have affected the "substantial

rights" of Mr. Webster and the outcome of the trial. Had there been

a correct jury instruction given concerning the mens rea the jury

would not have convicted Mr. Webster on the alleged offenses. The

State did not dispute that the complicity instruction here failed to

comply with the Ohio Jury Instructions, and thus the instruction

failed to instruct the jury on the required mens rea for complicity.

With the State not disputing how the jury instruction failed to

accurately state the law, this matter must be reversed. Giving [sic]

that complicity was perhaps the most important instruction in this

case due to the evidence presented at trial, the court's failure to

instruct the jury on the mens rea of complicity has a substantial

influence in determining the jury's verdict.

Ground Two: Appellant was deprived of the effective assistance of

trial counsel in violation of appellant’s rights under the Sixth and

Fourteenth Amendments to the United States Constitution, and

Section 10 and 16, Article of the Ohio Constitution.

Supporting Facts: In his second assignment of error, Webster

argues he received the ineffective assistance of counsel. More

specifically, Webster asserts his trial counsel was ineffective in: (1)

failing to object to the complicity instruction; (2) failing to move to

sever his trial from Moore's trial; (3) failing to object to the

prosecutor's opening statement; (4) failing to request a continuance

or move for a mistrial after the state located a witness in the middle

of trial; (5) failing to object to leading questions; (6) failing to object

to other-acts evidence; (7) failing to object to the Howard charge to

the jury; and (8) failing to object to the bailiffs communications with

the jury. Additionally, Webster asserts the cumulative effect of

counsel's alleged errors rendered his trial counsel ineffective.

Counsel conduct fell below a standard of objective reasonableness

which did cause prejudice to Webster.

Webster's first allegation of ineffective assistance of counsel is his

trial counsel's failure to object to the complicity instruction.

Webster's second allegation of ineffective assistance of counsel is

his trial counsel's failure to move to sever his trial from his

codefendant's trial. Webster's trial counsel had no strategy when he

failed to move to sever Webster trial from Moore's trial. There was

no strategic benefit to Webster by having the two individuals' trials

joined. The State of Ohio was the only benefiting party from such a

stand point. There was no tactical decision to have the two cases

remaining joined. Additionally, Webster argues he was prejudiced

by the joint trial when the state introduced statements Moore made

during the incident, asserting the introduction of Moore's statements

violated Webster's Sixth Amendment right of confrontation.

Specifically, Webster points to Anderson's testimony that Moore

told Dodda he would have to shoot one of the men and Radabaugh's

testimony that Moore told him after the shooting that the job was

done.

Webster's third allegation of ineffective assistance of counsel is his

trial counsel's failure to object to the prosecutor's improper remarks

during opening statement. Here, the prosecutor stated: [“]You guys

drew a pretty rough case to sit on. You're going to have to hear a lot

of things that are hard to hear, disturbing things. You're going to

have to see some photographs that are going to be hard to look at of

the scene, what happened to these men. It's a disturbing case. It's a

scary case. It's a senseless case. More than anything, it's a sad case,

and it's a tragic case.[“] Webster contends the prosecutor's statement

improperly inflamed the passion and prejudice of the jury by

appealing to its desire to address a community problem ... And all

of this damage that occurred isn't limited to those five people.

There's a ripple effect that happens. The families of these victims,

the loved ones of these victims, the neighbors of these victims, and

our community as a whole are all affected when actions like this take

place. Prosecutors should not appeal to public sentiment * * * by

urging the jurors to protect society, protect community values,

preserve civil order, or deter future lawbreaking. Here, there is no

tactical advantage to be gained by counsel's failure to object the

prosecutor's improper statements.

Webster's fourth allegation of ineffective assistance of counsel is his

trial counsel's failure to request a continuance or move for a mistrial

when, after trial had already commenced, the state announced it had

located Omar in Immigration Customs Enforcement ("ICE")

custody and planned to call him to testify. There was no strategic

benefit to accrue counsel's failure to request a continuance or to

move for a mistrial.

Webster's fifth allegation of ineffective assistance of counsel is his

trial counsel's failure to object to leading questions during

Radabaugh's testimony on direct examination.

Webster's sixth allegation of ineffective assistance of counsel is his

trial counsel's eliciting testimony from Anderson regarding other-

acts evidence. Specifically, Anderson testified on cross-examination

that he changed his story to police after receiving information that

made him believe Webster had threatened his family.

Webster's seventh allegation of ineffective assistance of counsel is

his counsel's failure to object to the Howard charge given to the jury.

After the first full day of deliberations, the jury wrote to the trial

court that it was unable to reach a unanimous decision on several

counts. The trial court responded in writing to the jury to "please

keep deliberating in an effort to reach a unanimous decision on the

counts that are not yet decided." (Tr. Vo I. 7 at 1260.) The next day,

the jury again wrote to the trial court to "inform the court that the

jury is hung on a number of counts. The jury is of the opinion that it

will not reach a unanimous vote as to the same." (Tr. Vol. 8 at 1265.)

With the agreement of counsel for both parties, the trial court then

provided the Howard charge to the jury. Subsequently, after further

deliberations, the jury indicated it had reached a verdict on all

counts. Webster argues his counsel should have objected to the

Howard charge in the hopes that the jury could not reach a

unanimous decision.

Webster's eighth allegation of ineffective assistance of counsel is his

trial counsel's failure to object to the bailiff[’]s communications with

the jury. When a case is finally submitted the jurors must be kept

together in a convenient place under the charge of an officer until

they agree upon a verdict, or are discharged by the court. The court,

except in cases where the offense charged may be punishable by

death, may permit the jurors to separate during the adjournment of

court overnight, under proper cautions, or under supervision of an

officer. Such an officer shall not permit a communication to be made

to them, nor make any himself, except to ask if they have agreed

upon a verdict, unless he does not by order of the court. Such officer

shall not communicate to any person, before the verdict is delivered,

any matter in relation to their deliberation. The first communication

occurred when, during deliberations, the jury asked the bailiff "what

happens if we have charges that we can't reach an agreement on."

(Tr. Vol. 7 at 1256.) The bailiff responded that she could not answer

the question, and at the trial court's instructions, the bailiff then told

the jury to reduce the question to writing for submission to the court.

The second communication related to whether the jury should return

to court to announce its verdict that day or adjourn for the evening

and announce its verdict the next morning. Specifically, the trial

court received a note from the jury stating "[t]he jury has reached a

verdict on all counts, but we would like to finish for the day because

one juror has an important medical appointment this evening. Return

tomorrow at 11 a.m. and begin court at 11:30." (Tr. Vol. 8 at 1272.)

As Webster notes, the court did not authorize the bailiff[‘]s

discussion with the jurors about scheduling. "Misconduct of a court

officer, including a bailiff, in communicating to the jury during its

deliberations 'will be presumed to be prejudicial to a defendant

against whom, after such communication, a verdict is returned by

such jury."'

Ground Three: The trial court violated appellant’s right to due

process and a fair trial when it entered a judgment of conviction

based on insufficient evidence and against the manifest weight of

the evidence in violation of appellant’s rights under the United

States and Ohio Constitutions.

Supporting Facts: In his third and final assignment of error,

Webster argues there was insufficient evidence to support his

convictions and that his convictions are against the manifest weight

of the evidence. Whether there is legally sufficient evidence to

sustain a verdict is a question of law. Sufficiency is a test of

adequacy. The relevant inquiry for an appellate court is whether the

evidence presented, when viewed in a light most favorable to the

prosecution, would allow any rational trier of fact to find the

essential elements of the crime proven beyond a reasonable doubt.

(Petition, ECF No. 2, PageID 28, 30-31, 32).

Analysis

Ground One: Improper Jury Instruction

In his first Ground for Relief, Webster contends the instructions given to the jury deprived

him of due process of law in violation of both the United States and Ohio Constitutions by omitting

the mens rea element from the complicity instruction on aiding and abetting.

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). This Report

therefore will not analyze Petitioner’s claim under the Ohio Constitution.

The jury instruction claim was the first assignment of error on direct appeal. The Tenth

District found Webster had made no objection to the omission of the mens rea element at trial and

had thereby waived all but plain error review. State v. Webster, 2021-Ohio-3218, ¶ 27 (Ohio App.

10th Dist. Sept. 16, 2021).

Respondent argues Ground One is procedurally defaulted because of the absence of a

contemporaneous objection (Return, ECF No. 10, PageID 1794, et seq.) The Sixth Circuit Court

of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by

procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015),

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965

(6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001);

Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

can overcome a procedural default by showing cause for the default and prejudice from the asserted

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

Ohio has a relevant procedural rule — the contemporaneous objection rule -- that parties

must preserve errors for appeal by calling them to the attention of the trial court at a time when the

error could have been avoided or corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960),

paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998).

The Tenth District enforced that rule by engaging only in plain error review. 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).

The Sixth Circuit has repeatedly held the contemporaneous objection rule is an adequate

and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir.

2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d

301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw,

482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell,

320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v.

Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See

also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301,

315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876

(2010).

A habeas petitioner can avoid a procedural default by showing excusing cause and

prejudice for the default. Maupin, supra. A candidate here would be that the failure to make a

contemporaneous objection constituted ineffective assistance of trial counsel. However, before a

habeas petitioner can rely on a claim of ineffective assistance of trial counsel, he must have

submitted that claim to the state courts and been successful. Edwards v. Carpenter, 529 U.S. 446

(2000). Webster submitted this ineffective assistance of trial counsel claim to the Tenth District

on direct appeal, but, applying the correct federal standard from Strickland v. Washington, 466

U.S. 668 (1984), the court found the claim was without merit. As reviewed below under the

Second Ground for Relief, that ruling is entitled to deference by this Court under 28 U.S.C. §

2254(d)(1). Therefore Webster has procedurally defaulted his First Ground for Relief without

excusing cause and the claim should be dismissed with prejudice on that basis.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Webster raises eight sub-claims of ineffective assistance

of trial counsel. They will be analyzed here seriatim.

Sub-claim One: Failure to Object to the Complicity Instruction

In his First Sub-claim, Webster asserts his trial attorney provided ineffective assistance

when he failed to make a contemporaneous objection to the complicity instruction. This sub-claim

was part of Webster’s Second Assignment of Error on direct appeal. Applying the correct federal

standard from Strickland v. Washington, 466 U.S. 668 (1984), the Tenth District decided this sub-

claim as follows:

A. Failing to Object to Complicity Instruction

{¶ 39} Webster's first allegation of ineffective assistance of counsel

is his trial counsel's failure to object to the complicity instruction.

To succeed on a claim of ineffective assistance of counsel based on

counsel's failure to file an objection, an appellant must demonstrate

that the objection had a reasonable probability of success. State v.

Jones, 10th Dist. No. 18AP-33, 137 N.E.3d 661, 2019-Ohio-2134,

¶ 52, citing State v. Johns, 10th Dist. No. 11AP-203, 2011-Ohio-

6823, ¶ 25. Additionally, to show prejudice under the second prong

of the Strickland test based on counsel's lack of objection, an

appellant must establish a reasonable probability that the result of

the trial would have been different had counsel made the objection.

State v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶

72.

{¶ 40} Webster's argument reflects the argument he made under his

first assignment of error on appeal. Because trial counsel failed to

object to the trial court's jury instructions, we reviewed Webster's

first assignment of error under a plain error standard, and, in

disposing of that argument, we concluded Webster was unable to

demonstrate plain error. “ ‘[W]here the failure to object does not

constitute plain error, the issue cannot be reversed by claiming

ineffective assistance of counsel.’ ” State v. Roy, 10th Dist. No.

14AP-223, 2014-Ohio-4587, ¶ 20, quoting State v. Carson, 10th

Dist. No. 05AP-13, 2006-Ohio-2440, ¶ 51. In addressing Webster's

first assignment of error, we held that the trial court did not plainly

err when it instructed the jury on complicity because Webster could

not conclude the outcome of the trial clearly would have been

different had the trial court provided a different instruction on

complicity. Similarly, we conclude Webster's argument regarding

the complicity instruction as it relates to a claim of ineffective

assistance of counsel fails to satisfy the second prong of the

Strickland test as Webster does not establish a reasonable

probability that the result of the trial would have been different had

his counsel objected to the instruction. See State v. Mankin, 10th

Dist. No. 19AP-650, 2020-Ohio-5317, ¶ 30. As Webster cannot

show the required prejudice under the second prong of the

Strickland test, his trial counsel's failure to object to the complicity

instruction does not amount to ineffective assistance of counsel.

Webster, supra. Thus the Tenth District decided this sub-claim on the merits.

When a state court has decided on the merits a claim later presented in habeas corpus, the

federal court must defer to the state court’s decision unless it is contrary to or an objectively

unreasonable application of clearly established United States Supreme Court precedent. 28 U.S.C.

§ 2254(d)(1). Webster has made no such showing.

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.

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).

Although there are two prongs to the Strickland test, courts may address only one prong if

it is dispositive:

Although we have discussed the performance component of an

ineffectiveness claim prior to the prejudice component, there is no

reason for a court deciding an ineffective assistance claim to

approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient

showing on one. In particular, a court need not determine whether

counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies. The

object of an ineffectiveness claim is not to grade counsel's

performance. If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed. Courts should strive to

ensure that ineffectiveness claims not become so burdensome to

defense counsel that the entire criminal justice system suffers as a

result.

Strickland, 466 U.S. at 697. The Tenth District held that Webster had failed to prove prejudice

because he had failed to show the outcome of the trial would probably have been different if

counsel had objected. Webster, supra, at ¶ 40. That is not an unreasonable application of

Strickland and it is thus entitled to deference. Petitioner’s first ineffective assistance of trial

counsel sub-claim should therefore be denied on the merits.

Sub-claim Two: Failure to Move to Sever from Co-Defendant

In his Second Sub-claim., Webster asserts his trial attorney provided ineffective assistance

when he failed to move to sever his trial from that of co-defendant Moore. The Tenth District

decided this claim as follows:

{¶ 41} Webster's second allegation of ineffective assistance of

counsel is his trial counsel's failure to move to sever his trial from

his codefendant's trial. To succeed on a claim of ineffective

assistance of counsel based on trial counsel's failure to file a motion,

an appellant must show (1) the motion was meritorious or likely to

be granted, and (2) a reasonable probability that the verdict would

have been different had counsel made the motion. State v. Massey,

10th Dist. No. 12AP-649, 2013-Ohio-1521, ¶ 14, citing State v.

Simms, 10th Dist. No. 10AP-1063, 2012-Ohio-2321, ¶ 50, citing

State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 63. “

‘Counsel is not deficient for failing to raise a meritless issue.’ ” State

v. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-4762, ¶ 53, quoting

Massey at ¶ 13.

{¶ 42} Pursuant to Crim.R. 8(B), two or more codefendants may be

charged in the same indictment “if they are alleged to have

participated in the same act or transaction or in the same series of

acts or transactions constituting an offense or offenses, or in the

same course of criminal conduct.” See also State v. Klinkner, 10th

Dist. No. 13AP-469, 2014-Ohio-2022, ¶ 18. “As a general rule, the

law favors joinder of trials because, among other reasons, it

conserves judicial resources and reduces the possibility of

incongruous results before different juries.” Id., citing State v.

Walters, 10th Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21. However,

under Crim.R. 14, a defendant may move for severance from a

codefendant's trial upon a showing of prejudice. Klinkner at ¶ 18,

citing State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990);

State v. Pippins, 10th Dist. No. 15AP-137, 151 N.E.3d 1150, 2020-

Ohio-503, ¶ 63.

{¶ 43} Webster argues that his trial counsel was ineffective for

failing to move for severance under Crim.R. 14 because Moore and

Webster presented mutually antagonistic defenses. “One example of

prejudice from improper joinder of defendants for trial is mutually

antagonistic defenses, which are cases in which defendants seek to

exculpate themselves at the cost of inculpating co-defendants.”

Pippins at ¶ 64, citing State v. Walters, 10th Dist. No. 06AP-693,

2007-Ohio-5554, ¶ 23-27, citing Zafiro v. United States, 506 U.S.

534, 538-39, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). To show

prejudice under Crim.R. 14 and merit severance, the defenses “must

be antagonistic to the point of being irreconcilable and mutually

exclusive.” Klinkner at ¶ 19, citing State v. Miller, 10th Dist. No.

11AP-899, 2013-Ohio-1242, ¶ 52, citing Walters at ¶ 23.

{¶ 44} Webster asserts that Moore's defense strategy was to blame

Webster for the events. However, a review of the record indicates

that Webster mischaracterizes the defenses the codefendants

presented at trial. Both Moore and Webster denied any involvement

in the offenses. Though Moore's counsel noted Moore was not in the

same general group as Webster, Anderson, Radabaugh, and Hassan,

Moore did not present a defense placing the blame on Webster or

attempt to inculpate Webster so as to exculpate himself. Instead,

both Moore and Webster denied any involvement in the offense and

sought to undermine the credibility of the testifying witnesses. Thus,

Webster's and Moore's defenses were not antagonistic to the point

of being “irreconcilable and mutually exclusive,” and Webster

cannot show the kind of prejudice that Crim.R. 14 requires in order

to merit severance. Walters at ¶ 23; Klinkner at ¶ 19-20.

{¶ 45} It is also conceivable that Webster's trial counsel's decision

not to request a separate trial was a strategic decision. Strategic and

tactical decisions of counsel, even if ultimately unsuccessful, cannot

form the basis of a claim of ineffective assistance of counsel.

Columbus v. Oppong, 10th Dist. No. 15AP-1059, 2016-Ohio-5590,

¶ 30, citing State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-

3424, ¶ 61. Webster's trial counsel may have had a strategic reason

not to request a separate trial, including a hope that the jury may not

find him guilty of all the offenses if it had the option to convict

Moore instead. State v. Jennings, 10th Dist. No. 09AP-70, 2009-

Ohio-6840, ¶ 126 (“Jennings’ trial counsel may well have had a

strategic reason for not seeking severance, perhaps finding some

benefit in the pooled resources of a joint trial.”).

{¶ 46} Additionally, Webster argues he was prejudiced by the joint

trial when the state introduced statements Moore made during the

incident, asserting the introduction of Moore's statements violated

Webster's Sixth Amendment right of confrontation. Specifically,

Webster points to Anderson's testimony that Moore told Dodda he

would have to shoot one of the men and Radabaugh's testimony that

Moore told him after the shooting that the job was done. A

confrontation clause problem arises from the statement of a

codefendant at a joint trial “only when the trial court admits into

evidence a non-testifying defendant's statement that implicates the

other defendant in criminal activity.” Walters at ¶ 27, citing Bruton

v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968). Here, however, the statements Webster complains of did not

implicate Webster and instead related to Moore's own conduct

throughout the events. Thus, the statements did not create a Bruton

rule confrontation clause issue and did not warrant severance of the

codefendants’ trials. See Jennings at ¶ 79 (noting “[t]he Bruton

analysis requires an appellate court to consider whether the

contested out-of-court statement is incriminating to the defendant on

its face”).

{¶ 47} For these reasons, Webster does not demonstrate that a

motion for severance under Crim.R. 14 was likely to be granted.

Massey at ¶ 14. Accordingly, his trial counsel's failure to move for

severance does not constitute ineffective assistance of counsel.

Webster, supra. Thus the Tenth District basically held that it was not ineffective assistance of trial

counsel to fail to move to sever because any such motion would likely not have been granted.

Webster has failed to demonstrate that this is an objectively unreasonable application of Strickland

and it is thus entitled to deference. Webster’s second ineffective assistance of trial counsel sub-

claim should be denied.

Sub-claim Three: Failure to Object to Prosecutor’s Opening Statement

In his third sub-claim Webster asserts he received ineffective assistance of trial counsel

when his trial attorney failed to object to certain comments in the prosecutor’s opening statement.

The Tenth District decided this claim as follows:

{¶ 48} Webster's third allegation of ineffective assistance of counsel

is his trial counsel's failure to object to the prosecutor's improper

remarks during opening statement. The test for prosecutorial

misconduct based on a prosecutor's statements to the jury “is

whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant.” State v.

Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984), citing United

States v. Dorr, 636 F.2d 117 (5th Cir. 1981). “ ‘[T]he touchstone of

due process analysis in cases of alleged prosecutorial misconduct is

the fairness of the trial, not the culpability of the prosecutor.’ ” State

v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38,

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71

L.Ed.2d 78 (1982).

{¶ 49} Here, the prosecutor stated:

You guys drew a pretty rough case to sit on. You're going

to have to hear a lot of things that are hard to hear,

disturbing things. You're going to have to see some

photographs that are going to be hard to look at of the

scene, what happened to these men. It's a disturbing case.

It's a scary case. It's a senseless case. More than anything,

it's a sad case, and it's a tragic case.

* * *

And all of this damage that occurred isn't limited to those

five people. There's a ripple effect that happens. The

families of these victims, the loved ones of these victims,

the neighbors of these victims, and our community as a

whole are all affected when actions like this take place.

(Tr. Vol. 2 at 263-64.) Webster contends the prosecutor's statement

improperly inflamed the passion and prejudice of the jury by

appealing to its desire to address a community problem. See State v.

Presley, 10th Dist. No. 02AP-1354, 2003-Ohio-6069, ¶ 90 (“

‘[p]rosecutors should not appeal to public sentiment * * * by urging

the jurors to protect society, protect community values, preserve

civil order, or deter future lawbreaking’ ”), quoting State v. Loch,

10th Dist. No. 02AP-1065, 2003-Ohio-4701, ¶ 67, citing State v.

Spirko, 59 Ohio St.3d 1, 13, 570 N.E.2d 229 (1991). State v.

Draughn, 76 Ohio App.3d 664, 671, 602 N.E.2d 790 (5th Dist.1992)

(holding a prosecutor “may not invite the jury to judge the case upon

standards or grounds other than the evidence and law of the case,”

and “cannot inflame the passion and prejudice of the jury by

appealing to community abhorrence or expectations with respect to

crime in general, or crime of the specific type involved in the case”),

citing United States v. Solivan, 937 F.2d 1146 (6th Cir. 1991).

{¶ 50} Even assuming, for purposes of argument, that the

prosecutor's statements were improper, it does not necessarily

follow that Webster's counsel was deficient in failing to object to the

prosecutor's statements. Counsel may choose, as a tactical decision,

not to object to the prosecutor's opening statement even if the

prosecutor has engaged in prosecutorial misconduct. State v. Shine-

Johnson, 10th Dist. No. 17AP-194, 117 N.E.3d 986, 2018-Ohio-

3347, ¶ 121, citing State v. Gumm, 73 Ohio St.3d 413, 428, 653

N.E.2d 253 (1995) (defense counsel's failure to object to

prosecutorial misconduct “does not constitute ineffective assistance

of counsel per se, as that failure may be justified as a tactical

decision”). Moreover, Webster does not identify how he was

prejudiced by the prosecutor's statement other than to assert

generally that the statement must have affected the jury. However,

the trial court instructed the jury that opening and closing statements

were not evidence and further instructed the jury to make their

findings “without bias, sympathy, or prejudice.” (Tr. Vol. 6 at 1243.)

The jury is presumed to follow these instructions. State v. Fudge,

10th Dist. No. 16AP-821, 105 N.E.3d 766, 2018-Ohio-601, ¶ 52

(where appellant alleges prosecutorial misconduct based on the

prosecutor's statements to the jury, the appellant was not denied a

fair trial as the trial court instructed the jury that opening and closing

arguments are not evidence), citing State v. Thompson, 3d Dist. No.

7-16-10, 85 N.E.3d 1108, 2017-Ohio-792, ¶ 26, citing Pang v.

Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990). Thus, the

failure of Webster's trial counsel to object to the prosecutor's

statements does not substantiate a claim for ineffective assistance of

counsel.

Webster, supra. Thus the Tenth District concluded Webster failed to satisfy either the deficient

performance or the prejudice prong of Strickland and he has failed to show how this decision is an

objectively unreasonable application of Strickland. Petitioner’s third sub-claim of ineffective

assistance of trial counsel should therefore be dismissed.

Sub-claim Four: Failure to Move for a Mistrial or Continuance after State Located

a Witness

In his Fourth Sub-claim of ineffective assistance of trial counsel, Webster asserts he

received ineffective assistance of trial counsel when his attorney failed to move for a mistrial or a

continuance after the State announced it had found a witness. The Tenth District decided this

claim as follows:

¶ 51} Webster's fourth allegation of ineffective assistance of counsel

is his trial counsel's failure to request a continuance or move for a

mistrial when, after trial had already commenced, the state

announced it had located Omar in Immigration Customs

Enforcement (“ICE”) custody and planned to call him to testify.

There is no dispute that the state had included Omar on its witness

list during discovery, and, upon learning the state would call Omar

to testify, trial counsel took time to discuss the matter with Webster

before announcing to the court that Webster “would like to just

continue with his trial.” (Tr. Vol. 3 at 453.) Nonetheless, Webster

now categorizes Omar as a surprise witness and asserts his counsel

should have moved for a continuance or declared a mistrial.

{¶ 52} The decision whether to request a continuance after learning

of surprise evidence or a surprise witness is a matter of trial strategy.

State v. Ali, 10th Dist. No. 18AP-935, 2019-Ohio-3864, ¶ 44, citing

State v. Bailey, 10th Dist. No. 04AP-553, 2005-Ohio-4068, ¶ 26

(failing to request a continuance after surprise witness testimony did

not amount to ineffective assistance of counsel as it fell within the

realm of a strategic and tactical decision). Similarly, “[t]he decision

not to request a mistrial is one of trial strategy best left to trial

counsel.” State v. Zeune, 10th Dist. No. 10AP-1102, 2011-Ohio-

5170, ¶ 37, citing State v. Seiber, 56 Ohio St.3d 4, 12, 564 N.E.2d

408 (1990). This court will not lightly second-guess such strategic

decisions. Id., citing Seiber at 12, 564 N.E.2d 408.

{¶ 53} Webster asserts his trial counsel should have requested a

continuance or mistrial in the hopes that ICE would have acted to

deport Omar, thereby preventing his testimony. Other than this

highly speculative suggestion, Webster does not assert that Omar's

presence at trial rendered his trial unfair or demonstrate that the trial

court would have granted a continuance or mistrial had his counsel

so moved. See State v. Drayer, 159 Ohio App.3d 189, 2004-Ohio-

6120, ¶ 24, 823 N.E.2d 492 (10th Dist.) (“[a] mistrial is an extreme

remedy, ‘declared only when the ends of justice so require and a fair

trial is no longer possible’ ”), quoting State v. Franklin, 62 Ohio

St.3d 118, 127, 580 N.E.2d 1 (1991). That Omar's testimony was not

favorable to Webster does not render Webster's trial unfair.

Webster's defense all through trial was a denial of involvement. He

does not articulate how Omar's testimony, or the lack thereof, would

have changed that defense, let alone changed the outcome of trial.

There is nothing in the record demonstrating that there is a

reasonable probability that the result of the proceedings would have

been different if trial counsel had requested a continuance or

mistrial. Ali at ¶ 45, citing Bailey at ¶ 27. Thus, Webster's trial

counsel's failure to request a continuance or move for a mistrial does

not amount to ineffective assistance of counsel.

Webster, supra. Thus the Tenth District effectively decided this sub-claim satisfied neither the

deficient performance nor the prejudice prong of Strickland. Petitioner has not shown how this

decision is an unreasonable application of Strickland and it is thus entitled to deference under §

2254(d)(1). Webster’s fourth sub-claim of ineffective assistance of trial counsel should be

dismissed.

Sub-claim Five: Failure to Object to Leading Questions

In his Fifth Sub-claim, Webster asserts he received ineffective assistance of trial counsel

when his defense attorney did not object to leading questions put to witness Radabaugh. The Tenth

District Court of Appeals decided this claim on the deficient performance prong of Strickland as

follows:

{¶ 54} Webster's fifth allegation of ineffective assistance of counsel

is his trial counsel's failure to object to leading questions during

Radabaugh's testimony on direct examination. “Because a trial court

has broad discretion in allowing leading questions, counsel's

decision not to object is within the realm of trial strategy.” State v.

Jones, 10th Dist. No. 18AP-33, 137 N.E.3d 661, 2019-Ohio-2134,

¶ 59, citing State v. Edwards, 10th Dist. No. 10AP-681, 2011-Ohio-

3157, ¶ 16. “Thus, an appellate court ‘need not second-guess the

decision of appellant's defense counsel to not object to leading

questions.’ ” Id., quoting Edwards at ¶ 16; see also State v. Jackson,

92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001) (declining to find

ineffective assistance of counsel from trial counsel's failure to object

to the state's excessive leading questioning). Further, had trial

counsel objected to any of the state's leading questions, “the state

could have simply rephrased” the questions following the objection.

Jones at ¶ 60 (finding any objections to leading questioning would

not have had a reasonable probability of success), citing Edwards at

¶ 17. Accordingly, Webster's trial counsel was not deficient in

failing to object to the state's occasional leading questioning.

Webster, supra. Characterizing failure to object as a tactical decision is well within the ineffective

assistance of trial counsel jurisprudence developed in the wake of Strickland and the Tenth

District’s interpretation and application is well-within the mainstream of that jurisprudence.

Webster’s Fifth Sub-claim of ineffective assistance of trial counsel should be dismissed.

Sub-claim Six: Eliciting Damaging Other Acts Evidence

In his Sixth Sub-claim of ineffective assistance of trial counsel, Petitioner asserts his trial

attorney elicited damaging testimony from witness Anderson. The Tenth District decided this

claim as follows:

{¶ 55} Webster's sixth allegation of ineffective assistance of counsel

is his trial counsel's eliciting testimony from Anderson regarding

other-acts evidence. Specifically, Anderson testified on cross-

examination that he changed his story to police after receiving

information that made him believe Webster had threatened his

family. Webster construes this testimony as impermissible other-

acts evidence under Evid.R. 404(B) and argues his counsel should

not have permitted the jury to hear it. See Evid.R. 404(B)

(“[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity

therewith”). However, as the Supreme Court of Ohio recently

reiterated, “while evidence showing the defendant's character or

propensity to commit crimes or acts is forbidden, evidence of other

acts is admissible when the evidence is probative of a separate,

nonpropensity-based issue.” State v. Hartman, 161 Ohio St.3d 214,

2020-Ohio-4440, ¶ 22, 161 N.E.3d 651, citing Evid.R. 404(B). Here,

we do not agree with Webster that Anderson's testimony was

admitted to prove his character or propensity to commit other crimes

or acts. Instead, the testimony, in context, related to why Anderson

changed his story to police.

{¶ 56} Additionally, when read in context, Webster's counsel used

this line of questioning in order to undermine Anderson's credibility,

ultimately getting Anderson to admit to inconsistencies in his story.

Thus, even if we were to construe this testimony as impermissible

propensity evidence under Evid.R. 404(B), counsel's decision to

elicit this testimony was likely a strategic decision to undermine

Anderson's credibility. See Messenger at ¶ 68 (counsel's decision not

to object to the search warrant affidavit was likely a strategic

decision to not call attention to the unfavorable evidence). This

strategic decision will not form the basis of a claim of ineffective

assistance of counsel. Oppong at ¶ 30.

Webster, supra. Thus the Tenth District decided the other acts evidence was elicited not to prove

Webster’s character by showing a propensity to commit crimes, but for a valid strategic purpose.

Petitioner has offered no authority showing this is an objectively unreasonable application of

Strickland. Therefore it is entitled to deference under AEDPA. Petitioner’s Sixth Sub-claim

should therefore be dismissed with prejudice.

Sub-claim Seven: Failure to Object to Howard Charge

In his Seventh sub-claim. Webster claims he received ineffective assistance of trial counsel

when his attorney failed to object to the Court’s giving a Howard charge. The Tenth District

decided this conduct was not deficient practice:

{¶ 57} Webster's seventh allegation of ineffective assistance of

counsel is his counsel's failure to object to the Howard charge given

to the jury. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188

(1989). After the first full day of deliberations, the jury wrote to the

trial court that it was unable to reach a unanimous decision on

several counts. The trial court responded in writing to the jury to

“please keep deliberating in an effort to reach a unanimous decision

on the counts that are not yet decided.” (Tr. Vol. 7 at 1260.) The

next day, the jury again wrote to the trial court to “inform the court

that the jury is hung on a number of counts. The jury is of the opinion

that it will not reach a unanimous vote as to the same.” (Tr. Vol. 8

at 1265.) With the agreement of counsel for both parties, the trial

court then provided the Howard charge to the jury. Subsequently,

after further deliberations, the jury indicated it had reached a verdict

on all counts. Webster now argues his counsel should have objected

to the Howard charge in the hopes that the jury could not reach a

unanimous decision.

{¶ 58} “[T]he Howard charge ‘ “is intended for a jury that believes

it is deadlocked, so as to challenge them to try one last time to reach

a consensus.” ’ ” State v. Norman, 10th Dist. No. 12AP-505, 992

N.E.2d 432, 2013-Ohio-1908, ¶ 42, quoting State v. Brown, 100

Ohio St.3d 51, 2003-Ohio-5059, ¶ 38, 796 N.E.2d 506, quoting State

v. Robb, 88 Ohio St.3d 59, 81, 723 N.E.2d 1019 (2000). “Whether

the jury is irreconcilably deadlocked is essentially ‘ “a necessarily

discretionary determination” ’ for the trial court to make.” Norman

at ¶ 41 (noting trial courts weighing the Howard charge must

evaluate circumstances specific to each individual case), quoting

Brown at ¶ 37, quoting Arizona v. Washington, 434 U.S. 497, 510,

98 S.Ct. 824, 54 L.Ed.2d 717 (1978), fn. 28. Webster does not argue

that the trial court abused its discretion in giving the Howard charge;

instead, he merely asserts his counsel should not have agreed to the

Howard charge because of the jury's ultimate verdict. Because the

trial court acted within its discretion in giving the Howard charge,

an objection to the Howard charge did not have a reasonable

probability of success. Thus, Webster's counsel was not deficient in

agreeing to the Howard charge.

Webster, supra. Again, Webster offers no authority to suggest this was an objectively

unreasonable application of Strickland. Thus it is entitled to AEDPA deference and Webster’s

Seventh sub-claim should be dismissed with prejudice.

Sub-claim Eight: Failure to Object to the Bailiff’s Communication with the Jury

In his eighth sub-claim of ineffective assistance of trial counsel, Petitioner asserts his

attorney should have objected to the bailiff’s communication with the jury. The Tenth District

decided this claim as follows:

{¶ 59} Webster's eighth allegation of ineffective assistance of

counsel is his trial counsel's failure to object to the bailiff's

communications with the jury. Pursuant to R.C. 2945.33:

When a case is finally submitted the jurors must be kept

together in a convenient place under the charge of an

officer until they agree upon a verdict, or are discharged by

the court. The court, except in cases where the offense

charged may be punishable by death, may permit the jurors

to separate during the adjournment of court overnight,

under proper cautions, or under supervision of an officer.

Such an officer shall not permit a communication to be

made to them, nor make any himself, except to ask if they

have agreed upon a verdict, unless he does not by order of

the court. Such officer shall not communicate to any

person, before the verdict is delivered, any matter in

relation to their deliberation.

Here, Webster argues the bailiff violated R.C. 2945.33 when she

engaged in two separate communications with the jury.

{¶ 60} The first communication occurred when, during

deliberations, the jury asked the bailiff “what happens if we have

charges that we can't reach an agreement on.” (Tr. Vol. 7 at 1256.)

The bailiff responded that she could not answer the question, and at

the trial court's instructions, the bailiff then told the jury to reduce

the question to writing for submission to the court. R.C. 2945.33

provides that an officer of the court shall not make any

communication to the jury “unless he does so by order of the court.”

See also State v. Adams, 141 Ohio St. 423, 430-31, 48 N.E.2d 861

(1943) (“the bailiff shall not, unless by order of the court, make any

communication to the jurors”). As to the first communication, the

bailiff appropriately stated she could not answer the jury's questions,

informed the trial court, and, upon the trial court's authorization,

instructed the jury to submit a written question. Thus, the first

communication did not violate R.C. 2945.33. See State v. DiPietro,

10th Dist. No. 09AP-202, 2009-Ohio-5854, ¶ 15 (bailiff's conduct

did not violate R.C. 2945.33 where the trial court ordered the

communication from the bailiff to the jury).

{¶ 61} The second communication related to whether the jury

should return to court to announce its verdict that day or adjourn for

the evening and announce its verdict the next morning. Specifically,

the trial court received a note from the jury stating “[t]he jury has

reached a verdict on all counts, but we would like to finish for the

day because one juror has an important medical appointment this

evening. Return tomorrow at 11 a.m. and begin court at 11:30.” (Tr.

Vol. 8 at 1272.) After some discussion with counsel for both parties,

the trial court decided to advise the jury it could adjourn that evening

and be reminded of their admonition. However, a few minutes later,

the bailiff relayed the following discussion with the jury to the court:

One of them had something to do in the morning, and that's

why they couldn't come in. So I said, well, we can do it

now; everybody's here.

And the one guy said, well, I have a doctor's appointment.

I said, what time.

He said 6:30.

I said it's two and a half hours [from now].

He goes, well, it's just blood work; I can do it in the

morning; let's just do it now.

(Tr. Vol. 8 at 1276.) Thereafter, with the agreement of the parties,

the trial court called the jury into the courtroom to announce its

verdict. Webster asserts this communication between the bailiff and

the jury violated R.C. 2945.33 and warranted an objection from his

trial counsel.

{¶ 62} As Webster notes, the court did not authorize the bailiff's

discussion with the jurors about scheduling. “Misconduct of a court

officer, including a bailiff, in communicating to the jury during its

deliberations ‘will be presumed to be prejudicial to a defendant

against whom, after such communication, a verdict is returned by

such jury.’ ” DiPietro at ¶ 16, quoting Adams at paragraph three of

the syllabus. As a general rule, therefore, court personnel's

unauthorized communication with the jury in the defendant's

absence may be grounds for a new trial. DiPietro at ¶ 16, citing State

v. Abrams, 39 Ohio St.2d 53, 55-56, 313 N.E.2d 823 (1974).

However, the presumption of prejudice is not conclusive. Id.

Instead, the burden shifts and “ ‘ “rests heavily upon the

Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the

defendant.” ’ ” (Internal quotation marks omitted.) Id., quoting State

v. Murphy, 65 Ohio St.3d 554, 575, 605 N.E.2d 884 (1992), quoting

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed.

654 (1954).

{¶ 63} In determining whether the communication from court

personnel to the deliberating jury resulted in prejudice, the court

must examine both the nature and content of the communication.

DiPietro at ¶ 17, citing Murphy at 575, 605 N.E.2d 884. “The

presumption of prejudice from Adams does not arise if the court's

communication with the jury is not substantive in nature.” Id., citing

State v. Allen, 73 Ohio St.3d 626, 630, 653 N.E.2d 675 (1995). “A

statement of the trial court or its official is not substantive if it does

not address any legal issues, any fact in controversy, any law

applicable to the case, or some similar matter.” Id., citing State v.

Cook, 10th Dist. No. 05AP-515, 2006-Ohio-3443, ¶ 36.

{¶ 64} Here, the second communication involved the timing of

delivering the verdict that the jury had stated it had already reached;

it did not involve a substantive matter. DiPietro at ¶ 18

(“[s]tatements concerning the status of deliberations generally are

procedural rather than substantive”), citing State v. Robinson, 12th

Dist. No. CA2005-11-029, 2007-Ohio-354, ¶ 41 (finding bailiff's

question to jurors “regarding whether they intended to continue to

deliberate or retire for the evening, was merely procedural and did

not involve substantive issues of the case or in any way relate to

appellant's guilt or innocence”). As the second communication did

not involve a substantive issue, the presumption of prejudice from

the communication does not arise. Id. Thus, given the nature of the

communications between the bailiff and the jury, Webster cannot

show his trial counsel was deficient in failing to object.

Webster, supra. Because the bailiff’s communication was not substantive, the Tenth District found

there was no prejudice to Webster and therefore it was not ineffective assistance of trial counsel

to fail to object. Again, Webster has offered no authority to show this was an objectively

unreasonable application of Strickland or of Remmer.

In sum, the Tenth District’s thorough consideration of Webster’s ineffective assistance of

trial counsel claims resulted in a decision well within the relevant progeny of Strickland. Ground

for Relief Two should therefore be dismissed with prejudice.

Ground Three: Conviction without Sufficient Evidence and Against the Manifest Weight of

the Evidence

In his Third Ground for Relief, Petitioner claims his convictions are based on legally

insufficient evidence and are against the manifest weight of the evidence.

The second portion of this claim is not cognizable in habeas corpus because it does not

state a claim under the United States Constitution. The Sixth Circuit has held a weight of the

evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir.

1986).

On the other hand, 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. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

The Tenth District decided the sufficiency of the evidence claim as follows:

{¶ 70} Whether there is legally sufficient evidence to sustain a

verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). Sufficiency is a test of adequacy. Id.

The relevant inquiry for an appellate court is whether the evidence

presented, when viewed in a light most favorable to the prosecution,

would allow any rational trier of fact to find the essential elements

of the crime proven beyond a reasonable doubt. State v. Mahone,

10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v.

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, 847 N.E.2d

386.

{¶ 71} Though Webster captions his argument as a challenge to both

the sufficiency and manifest weight of the evidence, his entire

argument under this assignment of error relates to the credibility of

the witnesses. However, “ ‘in a sufficiency of the evidence review,

an appellate court does not engage in a determination of witness

credibility; rather, it essentially assumes the state's witnesses

testified truthfully and determines if that testimony satisfies each

element of the crime.’ ” State v. Connally, 10th Dist. No. 16AP-53,

2016-Ohio-7573, ¶ 38, quoting State v. Bankston, 10th Dist. No.

08AP-668, 2009-Ohio-754, ¶ 4. Webster does not allege the state

failed to present evidence on any of the elements in any of the 17

charges of which he was convicted but instead argues the evidence

the state relied on to prove he was the perpetrator lacked credibility.

Thus, we will address Webster's arguments related to the credibility

of witnesses under our review of the manifest weight of the

evidence. Id.; State v. Cervantes, 10th Dist. No. 18AP-505, 133

N.E.3d 1072, 2019-Ohio-1373, ¶ 33, citing State v. Sieng, 10th Dist.

No. 18AP-39, 2018-Ohio-5103, ¶ 51.

Webster, supra.

The Tenth District applied the correct Jackson v. Virginia standard which the Ohio

Supreme Court adopted in Thompson. Petitioner has not shown the Tenth District’s application is

unreasonable. In particular, a habeas court does not reconsider the credibility of witnesses. See

Brooks, supra. Therefore Petitioner’s Third Ground for Relief should be dismissed with prejudice.

Conclusion

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

February 12, 2024.

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

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