The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TALICIA DIXON
Petitioner, : Case No. 3:24-cv-12
- vs - District Judge Michael J. Newman
Magistrate Judge Michael R. Merz
SHANNON OLDS, WARDEN,
Dayton Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought pro se by Petitioner Talicia Dixon under 28 U.S.C. §
2254. When filed it was assigned to District Judge Michael J. Newman and randomly referred to
Magistrate Judge Caroline H. Gentry under Amended General Order 22-05. As permitted by that
Order, the Magistrate Judge reference has been transferred to the undersigned to help balance the
Magistrate Judge workload in the District (ECF No. 11).
The relevant pleadings are the Petition (ECF No. 1), the State Court Record (ECF No. 7),
Respondent’s Return of Writ (ECF No. 8) and Petitioner’s Reply (ECF No. 10). The Court notes
from the Reply that Shannon Olds, Warden at Dayton Correctional, is Petitioner’s custodian. The
caption is ordered amended as set forth above and Shannon Olds is substituted as Respondent.
Fed.R.Civ.P. 25(d). The case is therefore ripe for decision.
Litigation History
A Greene County, Ohio, grand jury indicted Petitioner on April 5, 2019, on one count of
felony murder in violation of Ohio Revised Code § 2903.11(A)(2)(Count One), one count of
involuntary manslaughter in violation of Ohio Revised Code § 2903.04(A)(Count Two), and one
count of felonious assault in violation of Ohio Revised Code § 2903.11(A)(2)(Count Three)(State
Court Record, ECF No. 7, Ex. 1). Each count carried a firearm specification. Id. Prior to trial the
trial court, on the State’s motion, dismissed Count Two and re-numbered Count Three as Count
Two. Id. at Ex. 7. A jury convicted Dixon on both counts and specifications and she was sentenced
to imprisonment for eighteen years to life, the mandatory sentence under Ohio law.
Dixon appealed to the Ohio Court of Appeals for the Second District pleading the following
assignments of error:
1. The court erred in refusing to instruct the jury on inferior degree
offenses.
2. The court erred in failing to issue a jury instruction with a correct
and complete statement of law.
3. The court erred in prohibiting the retroactive application of
Ohio’s stand your ground law.
4. Appellant’s conviction was based on insufficient evidence as a
matter of law.
5. Appellant’s conviction was against the manifest weight of the
evidence.
(Appellant’s Brief, State Court Record, ECF No. 7, Ex. 13, PageID 132). The Second District
affirmed the conviction and sentence. State v. Dixon, 2022-Ohio-3157 (Ohio App. 2d Dist. Sept.
9, 2022). Dixon appealed to the Supreme Court of Ohio pleading the following single Proposition
of Law:
Proposition of Law No. I: A defendant has a right to expect that
the trial court will give complete jury instructions on all issues raised
at [sic] the case evidence. Even when arguing self-defense, a
defendant is entitled to an instruction on inferior degree offenses
when the evidence presented to the jury supports doing so. When
injuries are brought on by extreme stress caused by provocations, a
trial court must allow the jury to consider instructions on inferior
degree offenses. The serious provocation standard provides little
guidance on how it is to be applied and limits a trial court in giving
the instruction unless there is sufficient evidence. The jury should
be left to determine what amounts to sufficient provocation, in order
to find a defendant not guilty of felonious assault but guilty of
aggravated assault.
The Ohio Supreme Court declined to exercise jurisdiction. State v. Dixon, 168 Ohio St. 3d 1528
(2023). Dixon was represented at trial, on appeal to the Second District, and again on appeal to the
Ohio Supreme Court by L. Patrick Mulligan who is very experienced as criminal defense counsel.
Dixon filed her Petition in this Court pro se on January 12, 2024 (ECF No. 1). In the Petition,
she pleaded the following Grounds for Relief:
Ground One: Trial court abuse of discretion (refusal to give jury
instruction on inferior-degree offense) (due process).
Supporting Facts: Violation of Mathews v. United States, 485 u.s.
58 @ 485. trial court abuse of discretion: refusal to give jury
instructions (1) on aggravated assault as an inferior-degree offense
to felonious assault; (2) on voluntary manslaughter as an inferior-
degree offense to murder.
Ground Two: trial court abuse of discretion (refusal to give jury
instructions on willful maltreatment) – (due process)
Supporting Facts: violation of mathews v. united staes, 485 u.s. 58
@ 485. trial court abuse of discretion: refusal to give jury
insstructions on willful maltreatment by medical personnel as an
independent intervening cause of patient’s death.
Ground Three: trial court abuse of discretion (misstatement of the
law on self-defense) (due process)
Supporting Facts: violation of mathews v. united staes, 485 u.s. 58
@ 485; henderson v. kibbe, 431 u.s. 145 @ 155; estelle v. mcguire,
502 u.s. 62 @ 72; jackson v. virginia, 442 u.s. 307 @ [*317-313].
trial court abuse of discretion for his inaction in applying the self
defense “stand-your-ground” law (orc 2901.09(b)(c) effective april
6, 2021 to petitioner’s trial which was held on july-19-2021.
Grounds Four and Five: Legal Insufficiency & Manifest Weight
of the Evidence
Supporting Facts: violation of due process under tibbs v. florida
(1982), 457 u.s. 31 @ 45, 48, 51, citing jackson v. virginia, 443 u.s.
307 (1979), which cites winship. there was insufficient evidence to
disprove self-defense beyond a reasonable doubt; and there was
insufficient evidence to disprove intervening cause of death to break
the causal connection beyond a reasonable doubt, consequently the
jury was mislead and created a manifest miscarriage of justice in
convicting petitioner of murder and felonious assault.
(Petition, ECF No. 1).
Analysis
Abuse of Discretion Claims
In her first three grounds for relief, Petitioner pleads that the trial judge “abused his
discretion” when he did not take certain actions. Assuming Ohio trial judges have discretion over
the issues presented by these claims, a federal habeas court does not have authority to review that
exercise of discretion. To put it another way, a state judge’s abuse of his or her discretion is not a
violation of the United States Constitution. Abuse of discretion is not a denial of due process
Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). 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, for example, whether a trial judge has abused his
discretion. 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).
Because a pro se litigant is entitled to a liberal construction of her pleadings, the Magistrate
Judge construes these three grounds read to alleged violation of a relevant federal constitutional
right, rather than as abuse of discretion claims.
Ground One: Failure or Refusal to Give Inferior Degree Offense Instruction
In her First Ground for Relief, Petitioner claims the trial judge violated her constitutional
rights when he refused to give jury instructions on (1) voluntary manslaughter as an inferior degree
of murder and (2) aggravated assault as an inferior degree of felonious assault.
Although the first Assignment of Error on direct appeal reads in the plural (“offenses”),
Petitioner’s argument was directed only to the aggravated assault charge. However, the Second
District understood that both the felonious assault and murder charges were at issue. Judge Tucker
wrote:
{¶ 20} With regard to the first assignment of error, Dixon sought to
have the jury instructed on aggravated assault as an inferior-degree
offense to felonious assault and on voluntary manslaughter as an
inferior-degree offense to murder. In deciding whether to provide a
lesser-included or inferior-offense instruction, a trial court must find
sufficient evidence to allow a jury to reasonably reject the greater
offense and to find a defendant guilty on a lesser-included or
inferior-degree offense. State v. Ferrell, 2020-Ohio-6879, 165
N.E.3d 743, ¶ 35 (10th Dist.). When the evidence pertaining to a
lesser-included offense or inferior-degree offense meets this test, a
trial court must instruct the jury on the lesser-included or inferior-
degree offense. State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶
32 (2d Dist.).
{¶ 21} We have recognized that aggravated assault is an inferior-
degree offense to felonious assault and that voluntary manslaughter
is an inferior-degree offense to murder. This is so because
aggravated assault and voluntary manslaughter both contain an
additional mitigating element of “serious provocation.” State v.
Rider, 2d Dist. Champaign No. 2021-CA-12, 2022-Ohio-1964, ¶ 39-
40. In other words, the greater-degree and inferior-degree offenses
are similar except aggravated assault and voluntary manslaughter
require proof that a defendant acted under the influence of sudden
passion or in a fit of rage brought about by serious provocation. State
v. Miller, 2d Dist. Montgomery No. 29099, 2022-Ohio-213, ¶ 16;
State v. Robinson, 2d Dist. Clark No. 2021-CA-3, 2021-Ohio-3255,
¶ 11. The test for whether a serious provocation occurred and
whether a defendant acted under the influence of sudden passion or
in a fit of rage includes objective and subjective components.
Robinson at ¶ 12. The provocation must be sufficient to arouse an
ordinary person beyond the power of his control, and the defendant
in fact must have acted under the influence of sudden passion or in
a fit of rage. Id.
{¶ 22} This court has recognized that a self-defense argument
generally is inconsistent with a serious-provocation theory. State v.
Brown, 2d Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 47
(citing cases). For that reason, self-defense and aggravated-assault
or voluntary-manslaughter instructions are incompatible in most
cases. Id. Nevertheless, we recognized in Brown that the two
theories conceivably might be compatible where a defendant is
found to have exceeded the degree of force necessary to defend
himself because he acted out of passion or rage.
{¶ 23} In the present case, we are unpersuaded that Nooks engaged
in any serious provocation. Even accepting Dixon's testimony as
true, Nooks did not assault her in the bar parking lot. He also did not
throw the bottle at her. According to Dixon, he simply “lunged”
toward her outside of Lane's house. Even if we were to accept that
this conduct qualified as serious provocation, Dixon's own
testimony establishes that she did not act out of sudden passion or
in a fit of rage. Dixon testified that she fired the handgun because
she was scared, worried, and afraid of being assaulted by Hoyt and
Nooks. But “ ‘[f]ear alone is insufficient to demonstrate the kind of
emotional state necessary to constitute sudden passion or fit of rage.’
” Miller at ¶ 18, quoting State v. Mack, 82 Ohio St.3d 198, 201, 694
N.E.2d 1328 (1998). Absent evidence that Dixon acted under the
influence of sudden passion or in a fit of rage caused by serious
provocation, the trial court did not abuse its discretion in refusing to
instruct the jury on aggravated assault or voluntary manslaughter.
The first assignment of error is overruled.
Dixon, supra.
Although the Second District decided the First Assignment of Error on the merits, it did
not consider that it was being presented with a federal constitutional question. In arguing the case
on direct appeal, Petitioner did not claim that the failure to instruct on inferior degree offenses
violated her federal constitutional rights, but only Ohio law and that is the way the Second District
understood the claim.
The Magistrate Judge concludes that the inferior degree claim is procedurally defaulted
because it was not fairly presented to the Second District as a federal constitutional claim. A claim
is fairly presented if the petitioner:
(1) relied upon federal cases employing constitutional analysis; (2)
relied upon state cases employing federal constitutional
analysis; (3) phrased the claim in terms of constitutional law or
in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleged facts well within the
mainstream of constitutional law.
Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017). Appellant’s brief to the Second District relies
only on Ohio case law and the Second District did likewise.
Ground Two: Refusal to Instruct on Maltreatment
The victim in this case did not die for some months after he was shot. In her Second
Ground for Relief, Petitioner asserts she was deprived of due process of law when the trial judge
refused to give a jury instruction on willful mistreatment as an intervening cause of death. The
Second District’s decision on the relevant assignment of error is as follows:
¶ 24} In her second assignment of error, Dixon contends the trial
court erred in failing to give a “correct and complete” jury
instruction on intervening cause. This argument concerns an
instruction the trial court gave about Nooks’ medical care being an
intervening cause of his death.
{¶ 25} Over the State's objection, the trial court instructed the jury
that gross negligence by medical personnel may be an independent
intervening cause of a patient's death, thereby breaking the causal
connection between the defendant's conduct and the death and
precluding a finding of guilt. The instruction included a definition
of gross negligence.
{¶ 26} On appeal, Dixon claims the trial court erred in failing to
include willful maltreatment by medical personnel as an
independent intervening cause of a patient's death. She argues that a
qualified intervening cause can be gross negligence or willful
maltreatment and that a finding of either one is sufficient to support
a not-guilty verdict. Dixon asserts that the absence of an instruction
on willful maltreatment left the jury only partially informed about
how to evaluate the staff's actions at the long-term care facility
where Nooks died.
{¶ 27} Upon review, we find Dixon's argument to be unpersuasive.
It is true that either gross negligence or willful maltreatment by
medical personnel may relieve a defendant of liability for a victim's
death. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767
N.E.2d 687, ¶ 45. In the present case, however, it appears that Dixon
requested the instruction the trial court gave over the State's
objection. She cannot reasonably complain on appeal about an
instruction she sought and obtained. Regardless, we see no error in
the trial court's omitting a reference to willful maltreatment. The
trial court reasonably could have concluded that the evidence did not
support that branch of the intervening-cause instruction. We see no
evidence to support a finding that staff members at the long-term
care facility engaged in willful maltreatment of Nooks. At best,
Dixon's evidence supported a gross-negligence theory. Absent
evidence of willful maltreatment, the trial court was not obligated to
instruct the jury on that issue. The second assignment of error is
overruled.
State v. Dixon, supra.
Respondent asserts this claim is procedurally defaulted because it was not included in
Dixon’s appeal to the Ohio Supreme Court. Petitioner concedes this is so, but blames it on
ineffective assistance of appellate counsel (Reply, ECF No. 10, PageID 1586, et seq.).
Ineffective assistance of counsel can act as excusing cause for procedural default only when
it occurs in proceedings where the Sixth Amendment guarantees effective assistance. Wainwright
v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there can be no
deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir.
1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002). However, that guarantee
only extends to proceedings in which there is a right to appointed counsel. The right to appointed
counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). In Ohio review by the Supreme Court is
discretionary with that Court, so the Sixth Amendment right does not extend to those proceedings.
Secondly, ineffective assistance of appellate counsel can only excuse procedural default if
it has first been presented to the state courts and found to be a meritorious claim. Edwards v.
Carpenter, 529 U.S. 446 (2000); Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020). Petitioner
has never raised a claim of ineffective assistance of appellate counsel in the Ohio courts.
Third, Petitioner’s Second Ground for Relief is procedurally defaulted for the same reason
as Ground One, to wit, that it was not fairly presented to the Second District Court of Appeals as
a federal constitutional claim. Petitioner argued this claim entirely in terms of Ohio law. (See
Appellant’s Brief, State Court Record, ECF No. 7, Ex. 13, PageID 143-48). The Second District
decided the Assignment of Error entirely in terms of Ohio law.
Finally, Petitioner’s claim is barred by the doctrine of invited error. As the Second District
noted (Dixon, supra, ¶ 27).
Petitioner’s Second Ground for Relief is therefore procedurally defaulted.
Ground Three: Petitioner was Deprived of Due Process by the Trial Court’s Failure to
Instruct on Ohio’s Newly-Adopted Stand-Your-Ground Version of Self-Defense
In her Third Ground for Relief, Petitioner claims she was deprived of due process by the
trial judge’s failure to instruct the jury on the newly-adopted “Stand-Your-Ground” version of the
defense of self-defense.
Respondent claims this Ground for Relief is barred by the same procedural defaults shown
as to Ground Two and that defense is well-taken here for the same reasons it was on Ground Two.
Ground Three is also procedurally defaulted for failure to present it to the Second District
as a federal constitutional claim. Appellant’s brief on this Assignment of Error relies only on Ohio
law (State Court Record, ECF No. 7, Ex. 13, PageID 149-55). In deciding this Assignment of
Error, the Second District relied entirely on Ohio law. It also noted that the parties had agreed that
the law of self-defense as it stood before the Stand-Your-Ground amendment should be applied in
this case, thus at least implicitly again invoking the invited error doctrine.
Petitioner’s Third Ground for Relief is therefore procedurally defaulted.
Grounds Four and Five: Conviction Based on Insufficient Evidence or Against the Manifest
Weight of the Evidence.
In her combined Fourth and Fifth Grounds for Relief, Petitioner claims she was deprived
of due process by being convicted on constitutionally insufficient evidence and also against the
manifest weight of the evidence.
The Second District’s decision on these claims is as follows:
¶ 32} Dixon's fourth and fifth assignments of error state:
4. APPELLANT'S CONVICTION WAS BASED ON
INSUFFICIENT EVIDENCE AS A MATTER OF LAW.
5. APPELLANT'S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 33} “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus.
{¶ 34} Our analysis is different when reviewing a manifest-weight
argument. When a conviction is challenged on appeal as being
against the weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable inferences,
consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be
reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against
the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶ 35} With the foregoing standards in mind, we conclude that
Dixon's murder and felonious-assault convictions were based on
legally sufficient evidence and were not against the weight of the
evidence.
{¶ 36} Dixon argues that the jury's guilty verdicts were unsupported
because she acted in self-defense and because gross negligence and
willful maltreatment by the staff at Nooks’ long-term care facility
acted as an independent intervening cause of his death.
{¶ 37} With regard to self-defense, the parties agreed that the trial
court would instruct the jury consistent with the law in effect at the
time of Dixon's offenses in May 2018. At that time, self-defense was
an affirmative defense requiring a defendant to prove “ ‘(1) the
defendant was not at fault in creating the violent situation, (2) the
defendant had a bona fide belief that she was in imminent danger of
death or great bodily harm and that her only means of escape was
the use of force, and (3) that the defendant did not violate any duty
to retreat or avoid the danger.’ ” State v. Goff, 128 Ohio St. 3d 169,
2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36, quoting State v. Thomas,
77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).
{¶ 38} Based on the evidence presented, we believe the jury
reasonably could have rejected Dixon's self-defense claim. The
State's evidence established that she shot Nooks, who was unarmed,
as he walked toward Lane's house. Before doing so, Dixon went to
a friend's car and retrieved a handgun. She then approached Hoyt
and Nooks with the gun and displayed it to scare them. Dixon
proceeded to raise the weapon and shoot Nooks in the neck. He fell
to the ground in the street, and shell casings were found in Lane's
front yard. This fact undermines Dixon's claim that Nooks was close
enough to “lunge” for her or her weapon.
{¶ 39} Dixon's argument about gross negligence or willful
maltreatment by the staff at the long-term care facility is equally
unpersuasive. The trial court correctly did not instruct the jury about
willful maltreatment because there was no evidence to support such
an instruction. With regard to gross negligence, the jury reasonably
could have rejected Dixon's argument based on the testimony of
prosecution witnesses Dr. Sharrett and Dr. Pearle. As set forth
above, Dr. Sharrett opined that the treatment Nooks received was
consistent with the standard of care given in Ohio nursing facilities.
For his part, Dr. Pearle opined that additional respiratory therapy
probably would not have helped Nooks and that Nooks’ death was
not caused in any way by the level of care he received. Although
Dixon presented competing testimony from Dr. Groah, the jury was
free to weigh the evidence, evaluate witness credibility, and reject
Dixon's argument.
{¶ 40} Viewing the evidence in a light most favorable to the
prosecution, we believe a rational trier of fact could have found the
essential elements of Dixon's offenses proven beyond a reasonable
doubt. We also are unpersuaded that the jury clearly lost its way and
created a manifest miscarriage of justice. This is not an exceptional
case in which the evidence weighed heavily against the convictions.
Accordingly, Dixon's fourth and fifth assignments of error are
overruled.
State v. Dixon, supra.
Dixon’s manifest weight of the evidence claim fails to state a claim for relief under the
United States Constitution and is therefore not cognizable in habeas corpus. Johnson v. Havener,
534 F.2d 1232 (6th Cir. 1986). Therefore Petitioner’s Fifth Ground for Relief must be dismissed.
However, Petitioner’s insufficient evidence claim, Ground Four, does state a claim under
the Due Process Clause. 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).
Respondent asserts Ground Five is procedurally defaulted because it was not presented to
the Ohio Supreme Court on direct appeal. For reasons given above as to Ground Two, that defense
is well taken.
In addition, the Second District’s decision on this claim is entitled to deference under
Jackson. There were certainly sufficient facts to show Dixon murdered Nooks.
Proposed Ground Six: Ineffective Assistance of Appellate Counsel
At the end of her Reply, Petitioner proposes to amend her Petition by adding a claim of
ineffective assistance of appellate counsel (ECF No. 10, PageID 1586, et seq.). To the extent she
intends to use that claim to defend against procedural default, it would be unavailing for the reasons
already given. To the extent she wishes to raise that claim for other purposes, it is untimely, both
because it is unduly delayed and also because it would be barred by the statute of limitations. The
Motion to Amended is DENIED.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
December 17, 2024.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
16