copy at State Court Record ECF No. 8 at Ex. 15
How later courts described this case
- copy at State Court Record ECF No. 8 at Ex. 15
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JAMES EDWARD CARVER,
Petitioner, : Case No. 1:24-cv-72
- vs - District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
WARDEN, Mansfield Correctional
Institution1,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus action brought pro se by Petitioner James Carver under 28 U.S.C.
2254 to obtain relief from his convictions in the Highland County Court of Common Pleas for
murder, rape, having weapons under disability, and tampering with evidence (Petition, ECF No.
3, PageID 60). It is ripe for decision on the Petition, the State Court Record (ECF No. 8), the
Return of Writ (ECF No. 9), and Petitioner’s Traverse to the Return (ECF No. 17).
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 20).
1 Petitioner has filed a change of address to the Mansfield Correctional Institution (ECF No. 19). Acting sua sponte
and pursuant to Fed.R.Civ.P. 25, the Respondent in this case is changed to the Warden at Mansfield Correctional
Institution and the caption modified as set forth above.
Litigation History
On April 2, 2019, Carver was indicted by a Highland County grand jury and charged with
murder with a firearm specification, rape, having weapons while under a disability, domestic
violence, and tampering with evidence (Indictment, State Court Record, ECF No. 8, Ex. 1). A trial
jury found Carver guilty of murder, rape, having weapons under disability, assault (as a lesser
included offense of domestic violence), and tampering with evidence. Id. at Ex. 9. Carver was
sentenced to imprisonment for thirty-three years to life. Id. at Ex. 10.
Carver appealed to the Ohio Court of Appeals for the Fourth District which affirmed the
convictions. State v. Carver, 2020-Ohio-4984 (4th Dist. Oct. 13, 2020)(copy at State Court Record
ECF No. 8 at Ex. 15). Carver appealed pro se to the Ohio Supreme Court, but that court declined
to exercise jurisdiction. Id. Ex. 21. On July 10, 2020, Carver filed a motion for new trial which
was denied. Id. at Exs. 22, 24. On July 20, 2020, he filed a petition for post-conviction relief under
Ohio Revised Code § 2953.21. Id. at Ex. 27. The Common Pleas Court denied the Petition (Id. at
Ex. 30) and Carver again appealed to the Fourth District which affirmed. Id. at Ex. 35. That court
again affirmed (Id. at Ex. 35) and Carver did not appeal to the Ohio Supreme Court.
Carver requested and was granted leave to file an application to reopen his direct appeal
under Ohio R. App. P. 26(B). Id. at Exs. 36, 37. The Fourth District granted reopening on one
issue, but eventually found there had been no ineffective assistance of appellate counsel. Id. at Ex.
44. The Ohio Supreme Court declined jurisdiction of a further appeal. Id. at Ex. 47.
Carver filed his Petition in this Court on February 2, 2024, by depositing it in the mail on
that date (Petition, ECF No. 3, PageID 73). He pleads the following Grounds for Relief:
Ground One: Trial Court erred by allowing interview to be played
without redacting discussion on sex.
Supporting Facts: There was absolutely no evidence outside of my
interview with the Detective to give reason, first off for rape charge.
And to allow my interview to be used, and my interview was
mistaken, and I was under great stress, had [not clear] just attempted
suicide.
Ground Two: Insufficient Evidence to Verdict on Murder and Rape
Supporting Facts: I had the victim took to the hospital, Detective
admitted on the stand that they didn’t DNA the gun [?] being [?] he
knew both mine and victims DNA would be present due to the
struggle over the gun, which caused the gun to go off, Judge adds
reckless homicide to jury instruction, saying I was probably going
to be acquitted of murder. And knowledge in record the gun going
off was accidental. Has [?] for the rape, DNA excluded me from
touch an any other sexual conduct or contact (sic).
Ground Three: Ineffective appellant [sic] counsel, failing to raise
several errors. Erroneous Jury Inst.
Supporting Facts: Failure to raise ineffective trial counsel, for not
objecting to erroneous jury instructions, instructions misstated the
essential element for murder – which is “purposely” instead the
Jurors was told they convict if I “knowingly” caused the death of –
of course. They would convict on knowingly, that wasn’t in doubt.
I do not feel they would of convicted, had the proper instruction been
given.
Ground Four: Ineffective trial counsel, failure to object to
erroneous Jury Instructions, invest, present before (sic).
Supporting Facts: I only spoke with my Trial lawyer twice. He did
nothing to present my defense, contacted no witness – his failure to
object to Jury Instructions, made it impossible to get any verdict
besides guilty. The Jurors Instructions didn’t once properly define
Ohio R.C. 2903.02(A) or the essential elements, replacing purposely
with a much lesser mental state knowingly.
Petition, ECF No. 3, PageID 64-69.
Analysis
Ground One: Error in Admitting Unredacted Tape of Interview
In his First Ground for Relief, Carver argues the trial court committed error in allowing the
jury to hear the full recording of his interview with Detective Antinore without redacting it to
eliminate portions discussing his having sex with the victim, Heather Camp, after he shot her. He
argued in his First Assignment of Error on direct appeal that this was a violation of the corpus
delicti rule of evidence. The Fourth District rejected that claim in a lengthy portion of its opinion
State v. Carver, supra, at ¶¶ 50-75.
Respondent argues that Ground One is not cognizable in habeas corpus (Return, ECF No.
9, PageID 1892). 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).
A habeas corpus court does not sit to correct errors in the application of state evidence law.
With regard to evidentiary rulings, the standard for habeas relief is
not easily met. "[F]ederal habeas courts review state court
evidentiary decisions only for consistency with due process."
Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). "A state
court evidentiary ruling will be reviewed by a federal habeas court
only if it were so fundamentally unfair as to violate the petitioner's
due process rights." Coleman v. Mitchell, 244 F.3d 533, 542 (6th
Cir. 2001). Moreover, such rulings "are usually not to be questioned
in a federal habeas corpus proceeding." Seymour v. Walker, 224 F.3d
542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders, 837 F.2d 284,
286 (6th Cir.1988)). Even if errors are made in the application of
state law, "[such] errors . . . especially with regard to the
admissibility of evidence, are usually not cognizable in federal
habeas corpus." Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert.
denied, 464 U.S. 962, 104 S. Ct. 396, 78 L. Ed. 2d 338 (1983). If a
ruling is especially egregious and "results in a denial of fundamental
fairness, it may violate due process and thus warrant habeas relief."
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citing Coleman,
244 F.3d at 542). Importantly, however, as a general matter, "state-
court evidentiary rulings cannot rise to the level of due process
violations unless they 'offend[ ] some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as
fundamental.'" Seymour, 224 F.3d at 552 (quoting Montana v.
Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 135 L. Ed. 2d 361
(1996)). Ultimately, states have wide latitude with regard to
evidentiary matters under the Due Process Clause. Id.
Wilson v. Sheldon, 874 F.3d 470, 475-76 (6th Cir. 2017).
Petitioner has cited no decision of the United States Supreme Court holding that adherence
to the corpus delicti rule or any particular formulation of that rule is required by the United States
Constitution. Therefore Ground One should be dismissed without prejudice as not cognizable in
habeas corpus.
Ground Two: Insufficient Evidence of Murder and Rape
In his Second Ground for Relief, Carver asserts there was insufficient evidence to convict
him of murder or rape. 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).
Insufficiency of the evidence was Carver’s Second Assignment of Error on direct appeal.
The Twelfth District that Assignment as follows:
¶76} “ ‘A claim of insufficient evidence invokes a due process
concern and raises the question of whether the evidence is legally
sufficient to support the verdict as a matter of law.’ ” Whiting, supra,
at ¶ 36, quoting State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶
12 (4th Dist.), citing State v. Wickersham, 4th Dist. Meigs No.
13CA10, 2015-Ohio-2756, 2015 WL 4113316, ¶ 22; State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When
reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the
evidence, if believed, reasonably could support a finding of guilt
beyond a reasonable doubt.” Blanton at ¶ 12, citing Thompkins at
syllabus. “The standard of review is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense beyond a
reasonable doubt.” Blanton at ¶ 12; citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks,
61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). “Furthermore, a
reviewing court is not to assess ‘whether the state's evidence is to be
believed, but whether, if believed, the evidence against a defendant
would support a conviction.’ ” Blanton at ¶ 12, quoting Thompkins,
supra, at 390, 678 N.E.2d 541.
{¶77} This test raises a question of law and does not allow us to
weigh the evidence. See Whiting, at ¶ 37; State v. Martin, 20 Ohio
App.3d 172, 174, 485 N.E.2d 717 (1983). Rather, the test “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 at 319, 99
S.Ct. 2781. We reserve the issues of the weight given to the evidence
and the credibility of witnesses for the trier of fact. See State v.
Thomas, 70 Ohio St.2d 79, 79–80, 434 N.E.2d 1356 (1982); State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the
syllabus (1986).
{¶78} For ease of analysis, we begin with Appellant's challenge of
his murder conviction. He asserts that the evidence was insufficient
to support proof of murder beyond a reasonable doubt and instead
supports a conviction for reckless homicide. For the reasons which
follow, we disagree.
1. Murder
{¶79} Appellant was convicted of murder, R.C. 2903.02(A), which
states: “No person shall purposely cause the death of another * * *.”
A person acts purposely when it is the person's specific intention to
cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender's specific intention
to engage in conduct of that nature. R.C. 2901.22 (A). Appellant
concedes responsibility for causing Heather Camp's death; however,
he argues the State had insufficient evidence that Appellant intended
for her to be shot. Appellant urges us to conclude that the physical
evidence, as well as his interview, supports a finding of reckless
homicide instead of murder.
{¶80} Appellant admits that it was reckless to get the gun out of the
holster; reckless to point the gun at anyone; reckless to either turn
the safety off or be in such a position that the safety could come off;
and reckless to hold the gun in a way that the trigger could be pulled.
However, Appellant argues the evidence shows he was the person
who told them where the gun could be recovered. He also argues
that the very serious crime of reckless homicide motivated his
evasive actions. Additionally, he asserts that taking her out in public
and asking for help are not congruent with having intentionally
harmed her. In fact, Appellant argues his behavior is consistent with
someone who actually cared about Heather Camp and also realized
he was in serious trouble.
{¶81} We are not persuaded. We have reviewed Appellant's video-
recorded interview with Detective Antinore which the jury saw at
trial. First of all, it is a mischaracterization to indicate that Appellant
was completely forthcoming with the circumstances surrounding the
gun. While he eventually told officers that he obtained the gun from
Roy Dunihue, he first told officers that the gun was stolen from his
house and actually in Heather's bag. Then, three times he told
officers that the gun was thrown out of the car onto the side of the
road after the shooting. Not until the very end does Appellant inform
the officers that he returned it to Dunihue's truck.
{¶82} We are likewise not convinced that Appellant taking Heather
through the Frisch's drive-thru and later to the Kinnisons' house is
indicative of his concern for her. In the interview, Appellant admits
that it is dark and Heather didn't eat anything. There's no evidence
he asked anyone at Frisch's to help Heather. Additionally, the
evidence demonstrated he also drove her to Burger King, bypassing
a hospital facility where he could have sought help between the two
restaurants.
{¶83} In the interview Appellant relates going back to his camper
after the shooting. When he decided they should leave the camper,
Appellant told officers that he pulled his car up to the back of the
camper and had Heather come out that way so his neighbors Amy
and Todd would not see her. We cannot agree that these actions
demonstrated concern for Heather. Rather, these actions tend to
demonstrate Appellant's concern for himself and concealing his
crime.
{¶84} Further, Appellant's statements to the officers that he insisted
Heather go to the hospital but she didn't want to because she had
warrants are easily construed as self-serving. These statements are
obviously contrary to the testimonies of Mandy Jo Knisley, Bobby
Kinnison, and Kalie Kinnison, who each testified that Heather stated
at least once that she wanted to live. In particular, it appears that
Mandy Jo Knisley was so insistent that Heather be taken for
treatment that Appellant concocted the scene in which he and Bobby
take Heather downstairs to the garage as if they were taking her to
the hospital, but then bring her back upstairs after Mandy leaves.
Importantly, Bobby Kinnison also testified that in the garage,
Appellant slapped Heather's face, already obviously beaten, and told
her to, “Straighten up, bitch.” Ostensibly, Appellant was
admonishing Heather to “straighten up,” and not indicate to anyone
again that she wanted to live.
{¶85} As one can see, the evidence in this case demonstrates the
volatile nature of Appellant and Heather Camp's relationship. There
is evidence of physical abuse and substance abuse. The evidence
also suggests that jealousy was a possible motive for shooting
Heather.
{¶86} The evidence indicates that Appellant had dinner plans with
Heather Camp on Sunday, February 17, 2019. Roy Dunihue testified
that sometime on that date, Appellant texted him and asked to
borrow a gun. After drinking with Heather and arguing, Appellant
went to Dunihue's place with Heather in the vehicle to pick up the
gun. Dunihue testified he gave Appellant the gun in a holster with
the safety on. According to one version provided by Appellant,
Heather was shot shortly after he received the gun from Dunihue,
while they were still sitting in Dunihue's driveway.
{¶87} During Appellant's emotional interview, he mentioned Mike
Scholler several times. In the first few moments of the interview, he
stated that, “She was driving the Trailblazer. [They] got into it over
Mike Scholler. I grabbed the gun and it went off.” He also indicates
that Mike Scholler is in Hamilton, Ohio. Appellant repeatedly
explains they argued over Mike Scholler, but at times indicates
Heather grabbed the gun. He even tells Detective Antinore that
Heather said she'd “set Mike up for him.”
{¶88} Towards the end of the interview, Appellant seems to
describe the overall toxic nature of his relationship with Heather. He
states: “She's on the run ... I'm selling dope. We've got no one to lean
on but each other. We always fuck it up.” Facts tending to suggest
Appellant's jealousy with regard to Heather are scattered throughout
his interview.
{¶89} Earlier in the interview, Appellant stated there was “only one
person I had a problem with her seeing - Tyler.” Appellant stated
that when he picked [Heather] up, he “didn't want to hear about the
past.” Appellant told Detective Antinore he took her to her sister's
house to pick up her “stuff.” While Heather is inside and Appellant
is outside waiting for her, her “ex-boyfriend pulls up” and “come
in.” “She's inside 20-30 minutes.” Appellant got mad and left. He
texts her and she replies, “Why are you being an asshole?”
{¶90} At the end of the interview, Appellant relates that they were
arguing and he told her to “get off him.” He pointed the gun at her
and she kicked him. Appellant stated, “I didn't want to argue with
her.” Then he provides information that he has not previously
provided in the first part of the interview. Appellant told Detective
Antinore: “I was mad, I put money up for bail. I wanted to get a
hotel room. She said she was busy. Always something stupid
between us.”
{¶91} While during the interview Appellant maintained that he
didn't intend to shoot Heather and that he only pointed the gun to
scare her, we believe the jury could reasonably infer that Appellant
shot Heather out of jealousy. The evidence provided in the interview
indicates that Heather had ongoing relationships with “Tyler,”8 an
“ex-boyfriend,” and Mike Scholler, which caused Appellant to be
upset. They argued at dinner and Mike Scholler came up. According
to Appellant, Heather told him she saw Mike Scholler at Wal-Mart
earlier. Appellant may not have actually planned for days or weeks
to shoot Heather Camp, but he did make arrangements to obtain a
gun on a day he argued with her. Appellant pointed a gun at her with
the safety off – a gun that was given to him holstered with the safety
on, according to Dunihue's testimony. A jury could certainly
reasonably infer that Appellant purposely pulled the trigger with the
intention of killing her.
{¶92} Our conclusion that Appellant's actions were purposeful is
bolstered by evidence of jail phone calls made while Appellant
awaited trial. Detective Antinore testified Appellant made
approximately 7000 calls from the Highland County jail. Detective
Antinore regularly reviews the phone calls made from the jail. He
reviewed a call log which demonstrated that on March 30, 2019,
Appellant made a phone call during which he told the other speaker
that he “knew the safety was off the gun.”
{¶93} Additionally, Roy Dunihue testified he handed Appellant the
gun in a holster with the safety on. Andrew McClelland, the BCI
expert who tested the gun testified that in order to fire the firearm,
the safety must be disengaged. In his interview with Detective
Antinore, Appellant explained at least twice that the shooting
occurred as soon as he brought the gun into the vehicle. We think it
may then be reasonably inferred that Appellant purposely removed
the gun from the holster and removed the safety mechanism with the
intention of firing the gun.
{¶94} Detective Antinore's testimony regarding jail phone calls also
belies Appellant's self-serving statements in his interview and on
appeal that he was trying to help her. In a June 6, 2019 jail phone
call, Appellant discussed Heather's outstanding warrants. Detective
Antinore testified: “James tells the other individual that he's talking
to, that when he met with Heather Camp at El Dorado's Restaurant
in Wilmington, her intention was to turn herself in on the warrants
that she had.” This directly undermines Appellant's interview
statements in which he stated that it was Heather who did not want
to seek medical treatment for fear of being taken to jail.
{¶95} Detective Antinore further testified, “[Appellant] observed a
plastic bag with loose leaf tobacco that she intended to take into the
jail with her when she turned herself in.” Detective Antinore further
identified a State's exhibit tote bag taken from Appellant's camper
with the bloody bra and shirt. Inside the tote bag was also a clear
plastic bag containing loose leaf tobacco, as described in the phone
call.
{¶96} “ ‘When a court reviews the record for sufficiency, “[t]he
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. Bennington, 4th Dist. Adams, 2019-
Ohio-4386, 148 N.E.3d 1, at ¶ 11, quoting State v. Maxwell, 139
Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two
of the syllabus; following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must defer to the trier
of fact on questions of credibility and the weight assigned to the
evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-
4974, 2014 WL 5800342, ¶ 22, citing State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Lodwick,
2018-Ohio-3710, 118 N.E.3d 948, ¶ 9 (4th Dist.). In this case, the
trial court gave standard Ohio jury instructions on reasonable doubt,
credibility of witnesses, direct evidence, circumstantial evidence,
and inferences to be made. Specifically, the trial court instructed:
To infer, or to make an inference, is to reach a reasonable
conclusion, or deduction of facts, which you may, but are
not required to make, from other facts which you have
found to have been established by direct evidence. Whether
an inference is made rests entirely with you.
{¶97} In this case, we defer to the jury who heard the testimony of
the witnesses and also viewed Appellant's video interview. We find
there was sufficient evidence from which a rational person could
find evidence of Appellant's intent to shoot Heather Camp beyond a
reasonable doubt. Thus, we find no merit to this argument contained
within the second assignment of error.
2. Rape
{¶98} Appellant argues that the State failed to prove beyond a
reasonable doubt that Appellant committed rape. The elements of
rape, R.C. 2907.02(A)(1)(c), are set forth fully above at paragraph
#57. Appellant challenges the sufficiency of the evidence on the
element of “substantial impairment,” asserting that the jury did not
have sufficient evidence to conclude that Heather Camp was
substantially impaired and therefore unable to give consent to sexual
conduct. In our analysis of the first assignment of error, we
considered whether there was some evidence tending to prove the
material element of substantial impairment in order to properly
admit Appellant's confession to having had consensual sex with
Heather Camp.
{¶99} The corpus delicti rule is an evidentiary ruling, State v. Ashe,
2nd Dist. Montgomery No. 26528, 2016-Ohio-136, 2016 WL
197123, at ¶ 9, and is satisfied by “a rather low” evidentiary
standard. State v. Blevins, 2nd Dist. Montgomery No. 24006, 2011-
Ohio-381, 2011 WL 322651, at ¶ 27, citing State v. Barker,
Montgomery, 191 Ohio App.3d 293, 2010-Ohio-5744, 945 N.E.2d
1107, ¶ 10. However, here a different standard is required. Here we
must determine whether the evidence, if believed, reasonably could
support a finding of guilt beyond a reasonable doubt.
{¶100} In arguing for a rape conviction, the State pointed out that
Appellant shot Heather Camp in the center of the chest and,
according to Appellant, returned to his camper in Highland County
later and had sex with her. The State pointed to the nipple swabs
which indicated Appellant's DNA on both nipples. In closing, the
State also pointed to Dr. Casto's testimony. The State argued:
Her mental state was such that this man had shot her in the chest.
At that point you can draw the inference, rely on the
circumstantial evidence, that [Heather] was in no physical
or mental state to consent or resist the defendant having
sexual intercourse with her. And the Defendant knew or
should have known that the condition existed, because he
caused the condition. In order to prove that the defendant
had reasonable cause to believe that Heather's ability to
resist or consent was substantially impaired because of a
physical or mental condition, you must compare him to an
ordinary person. Would an ordinary person who had just
shot Heather in the chest believe that Heather's ability to
resist or consent was substantially impaired?
{¶101} As indicated above, we have not found other rape cases
containing fact patterns in which the “substantial impairment”
element was based upon a physical impairment. In analyzing
Appellant's conviction pursuant to R.C. 2907.02(A)(1)(c), we find
other cases' discussion of other pertinent factors to be instructive. In
State v. Bender, 3rd Dist. Union No 14-19-22, 2020-Ohio-722, 2020
WL 995223, Bender was convicted of rape pursuant to R.C.
2907.02(A)(2): “No person shall engage in sexual conduct with
another when the offender purposely compels the other person to
submit by force or threat of force.” The 3rd District court discussed
the legal definition of “fear or duress.” On appeal, Bender argued
there was insufficient evidence to prove that Bender compelled his
victim to engage in sexual conduct by force or threat of force. The
appellate court noted:
(“ ‘[T]he key inquiry for determining whether the State
presented sufficient evidence on the element of force is
whether the “victim's will was overcome by fear or duress.”
’ ”), State v. Stevens, 2016-Ohio-446, 58 N.E.3d 584 (3rd
Dist.) at 20, quoting State v. Wine, 3d Dist. Auglaize No.
2-12-01, 2012-Ohio-2837 [2012 WL 2371396], ¶ 40,
quoting In re Forbess [N.F.], 3d Dist. Auglaize No. 2-09-
20, 2010-Ohio-2826 [2010 WL 2488064], ¶ 40, citing State
v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908
[2009 WL 3720562], ¶ 88, citing State v. Eskridge, 38 Ohio
St.3d 56, 58-59 [526 N.E.2d 304] (1988). “[I]f the
defendant created the belief that physical force will be used
in the absence of submission, then threat of force can be
inferred”—that is, a “threat of force includes both explicit
and implicit threats” because “[n]othing in the rape statute
requires the threat of force to be direct or express.” State v.
Rupp [7th Dist. Mahoning No. 05 MA 166, 2007-Ohio-
1561, 2007 WL 969069], at ¶ 33.
{¶102} See also State v. Schaim, 65 Ohio St. 3d 51, 1992-Ohio-31,
600 N.E.2d 661, at paragraph one of the syllabus (“The ‘force or
threat of force’ element ‘can be inferred from the circumstances
surrounding sexual conduct.’ ”). “In order for a defendant to
overcome his victim's will by fear or duress, the defendant would
have had to engage in sufficient behavior toward the victim. This
behavior is objective and its effect is viewed in light of the totality
of facts and circumstances existing at the time of the alleged rape.”
Rupp at ¶ 41. See also Stevens at ¶ 21 (“ ‘[T]he amount of force
[necessary to prove forcible rape under R.C. 2907.02(A)(2)] must
be examined in light of the circumstances.’ ”), quoting State v.
Runyons, 3d Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June
9, 1992). Bender, supra, at ¶ 30. In Bender's case, the appellate court
found that based on the totality of the circumstances, a rational trier
of fact could infer that his victim's state of fear or duress during a
prolonged period of torture was such that she was compelled to
submit to the sexual conduct to end the torture. See also State v.
Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, 2019 WL
2157933, at ¶ 27.
{¶103} In State v. Salti, 8th Dist. Cuyahoga No. 106834, 2019-
Ohio-149, 2019 WL 262608, the defendant appealed multiple
convictions of rape and kidnapping of multiple young female
victims he met online or through a third person. Salti's convictions
were also brought pursuant to R.C. 2907.02(A)(2). The appellate
court observed:
“The force and violence necessary to commit the crime of
rape depends upon the age, size and strength of the parties
and their relation to each other.” State v. Eskridge, 38 Ohio
St.3d 56, 58, 526 N.E.2d 304 (1988). “Force need not be
overt and physically brutal, but can be subtle and
psychological. As long as it can be shown that the rape
victim's will was overcome by fear or duress, the forcible
element of rape can be established.” State v. Fowler, 27
Ohio App.3d 149, 154, 500 N.E.2d 390 (8th Dist.1985).
Salti, supra, at ¶ 92.
{¶104} In Salti's case, the appellate court found that “the constant
threat of violence caused [the victims] to “agree” to perform oral sex
on a stranger behind a Walgreens store. Then, during the encounter,
[the victims] recognized the stranger as Salti, and Salti threatened
them by brandishing a firearm and a knife. Id. at ¶ 120. The appellate
court found, therefore, there was sufficient evidence that Salti
engaged in sexual conduct with [the victim] against her will and that
he used the threat of force to compel her submission. Therefore,
there was sufficient evidence to support the rape convictions.
{¶105} Recognizing that Bender and Salti were not convicted under
the same subsection of the rape statute, we agree with the State's
argument that a reasonable person could make the inference that
after Heather Camp was shot in the chest after struggling with
Appellant, that she was substantially physically impaired so as to be
unable to give consent to sex. As discussed above relative to Foster,
Appellant did in fact know that Heather was physically injured since
he set in motion the events that caused her to be shot in the chest at
close range. He did observe specific signs of impairment and in his
interview told Detective Antinore that “she was not 100%”, and at
his camper she asked for pain pills. It may be inferred that given her
physical injuries and substantial physical impairment, Heather knew
she would not be able to resist sex with Appellant. As in Bender, it
may be inferred that Heather may have feared further physical
violence if she did not consent to sex. Appellant admitted hitting her
in the forehead and the side as they drove prior to the shooting.
Heather needed assistance walking into the camper. Given her
physical injuries, it is reasonable to infer that Heather knew
resistance was or would have been futile.
{¶106} The Salti court discussed that force may be subtle and
psychological, and that the size and strength of the parties is
relevant. The Salti court concluded that the “constant threat” to the
victims caused them to “agree” to sex. Heather Camp had been hit
and shot in the chest at close range. Mandy Knisley described
Heather's stature as “tiny.” It may be hard to imagine what more
could have happened to her, but it is reasonable to infer that Heather,
in her substantially impaired physical state, may have agreed to
consensual sex to avoid further violence.
{¶107} For the foregoing reasons we find no merit to Appellant's
argument that there was insufficient evidence that Heather Camp
was substantially impaired so as to be unable to give consent to sex.
We find any rational trier of fact could have found the evidence of
substantial impairment beyond a reasonable doubt. Accordingly, we
hereby overrule the second assignment of error.
Carver, supra, ¶¶ 76-107.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000), Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
Clearly, the Twelfth District decided Carver’s insufficiency of the evidence claims as to
both murder and rape on the merits. Respondent asserts that decision is entitled to deference
because it is not an objectively unreasonable application of clearly established Supreme Court
precedent, particularly Jackson.
In his Traverse Carver argues at length that he did not intend to kill Heather Camp. He
admitted, however, that he intentionally pointed the gun at Heather and that he did shoot her. The
fact that he did not admit intending to kill her is not dispositive. Given the evidence presented, it
was for the jury to decide what his intention was. The question of what evidence to believe and
what inferences to draw from the evidence are for the jury. The Twelfth District’s decision on the
sufficiency of the evidence is not an unreasonable application of Jackson and therefore is entitled
to deference. Carver’s Second Ground for Relief should be dismissed.
Ground Three: Ineffective Assistance of Appellate Counsel
In his Third Ground for Relief, Petitioner alleges he received ineffective assistance of
appellate counsel when his appellate attorney did not make a claim of ineffective assistance of trial
counsel for his trial attorney’s failure to object to the jury instruction on mens rea for murder.
The Twelfth District Court of Appeals granted in part Carver’s App. R. 26(B) application,
allowing him to reopen the appeal to argue he had received ineffective assistance of appellate
counsel when his original appellate attorney did not raise a claim that the trial attorney provided
ineffective assistance of trial counsel when he failed to object to an allegedly erroneous mens rea
jury instruction on murder (Entry of 11/8/2021; State Court Record, ECF No. 8, Ex. 40). However,
in the reopened appeal, Carver argued only the merits of the underlying jury instructions issue and
not the ineffective assistance of appellate counsel issues. The Twelfth District held “In Carver's
reopened appeal, while he has addressed the issue of the erroneous jury instructions in his brief,
he has failed to further address the alleged ineffective assistance of appellate counsel claim.”
(Decision and Entry of 8/7/2023, State Court Record, ECF No. 8, Ex. 44, ¶ 3). This failure was
found to be fatal to the reopened appeal and prevented the appellate court from reaching the merits
of the ineffective assistance of appellate counsel claim. Id. at ¶ 5.
Respondent argues that merits review of the Third Ground for Relief is barred by Carver’s
procedural default in presenting it to the Ohio courts (Return, ECF No. 9, PageID 1878).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521, 527(2017)).
Carver seeks to excuse this procedural default by blaming it on ineffective assistance of
the attorney appointed to represent him in the reopened appeal (Traverse, ECF No. 17, PageID
1960). He also points out that Ohio law limits him to one application for reopening under Ohio R.
App. P. 26(B), so he has no state court remedy for this asserted ineffective assistance. Therefore
this Court must decide whether the asserted ineffective assistance of appointed appellate counsel
excuses Carver’s failure to present the issue to the Twelfth District.
The governing standard for ineffective assistance of counsel claims 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). To prevail on an ineffective-assistance-of-counsel
claim, a movant must establish that (1) counsel’s performance was deficient and (2) the deficiency
resulted in prejudice, meaning that there is a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th
Cir. 2016).
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).
Carver’s argument is undercut by the Twelfth District’s decision in the alternative that the
ineffective assistance of appellate counsel claim was without merit. In confirming the original
appellate decision because the colorable claim on which reopening had been granted was not
argued in the re-opened appeal, the Twelfth District also held: “Even if we were to consider
Carver's sole assignment of error, we would find it to be wholly without merit.” The court then
explained at length (¶¶ 30-47) why the omitted claim would not have prevailed (Decision and
Judgment Entry of 8/7/2023, State Court Record, ECF No. 8, Ex. 44).
As with other decisions on the merits of constitutional issues later presented in habeas, this
Court is bound to defer to a state court decision that is not an objectively unreasonable application
of Supreme Court precedent. In this case the Twelfth District explained at length why there would
have been no merit to the omitted ineffective assistance of appellate counsel claim. The Magistrate
Judge finds that explanation persuasive, given its length and the fact that it was carefully made by
the court which would have had to decide the issue on the merits if it has been properly presented.
Carver’s procedural default in presenting his ineffective assistance of appellate counsel claim to
the Twelfth District is not excused by the ineffective assistance of counsel on the reopened appeal.
Therefore Ground Three should be dismissed as procedurally defaulted.
Ground Four: Ineffective Assistance of Trial Counsel
In his Fourth Ground for Relief, Carver claims he received ineffective assistance of trial
counsel when the trial attorney failed to object to the incorrect recitation of the mens rea for murder
by the trial judge.
Because that omission was of record at the time of direct appeal, Carver procedurally
defaulted the claim when it was not raised on direct appeal. Any attempt to raise it later in a
petition for post-conviction relief would have been barred by res judicata, which is an adequate
and independent state ground of decision. State v. Perry, 10 Ohio St. 2d 175 (1967). The failure
cannot be excused by ineffective assistance of appellate counsel for the reasons discussed under
Ground Three above.
Carver criticizes the Return of Writ for raising only the procedural default defense to both
this and Ground Three. He also asserts
[W]here the enforcement of the violation of a state procedural rule
has resulted in the denial of fundamental fairness, thereby violating
due process, federal habeas corpus relief will be granted. Henry v.
Trim, 2013 U.S. Dist. LEXIS 185325 (N.D. Ohio), citing Cooper v.
Sowders, 837 F.2d 284, 286 (6th Cir. 1988). The failure of the Court
to address the issues in these two grounds would result in a denial
of fundamental fairness.
Traverse, ECF No. 17, PageID 1998. Cooper v. Sowders did not discuss a “fundamental fairness”
exception to the procedural default rule but instead upheld a direct claim that the unfairness of the
trial had violated due process. In Henry, my colleague Magistrate Judge Kathleen Burke
recommended that the petition for writ of habeas corpus be denied. She expressly upheld the
State’s procedural default defense and noted that the so-called “fundamental miscarriage of
justice” exception depended on presentation of new evidence of actual innocence which Petitioner
there had not done. Carver likewise has presented no new evidence of actual innocence to excuse
his procedural default of his ineffective assistance of trial counsel claim. Accordingly, the
Magistrate Judge recommends Ground Four be denied as procedurally defaulted.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
May 5, 2025.
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 received. 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.