Petition for Writ of Certiorari — Steven D. Burke, Petitioner v. Neil Turner, Warden

No. 18-3038

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jun 11, 2018

DEBORAH S. HUNT, Clerk

STEVEN D. BURKE,

Petitioner-Appellant,

ORDER

V.

WARDEN, NORTH CENTRAL

CORRECTIONAL INSTITUTION,

Respondent-Appellee.

Steven D. Burke, a pro se Ohio prisoner, applies for a certificate of appealability

("COA") of the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus. See 28 U.S.C. § 2253(c)(1)(A). Burke also moves to proceed in forma pauperis.

A jury found Burke guilty of felonious assault, see Ohio Rev. Code § 2903.11, with a

firearm specification, see Ohio Rev. Code § 2941.145, and the state trial court found him guilty

of being a felon in possession of a weapon, see Ohio Rev. Code § 2923.13. The trial court

sentenced him to an aggregate term of ten years in prison. The Ohio Court of Appeals affirmed

his convictions, and the Ohio Supreme Court declined to accept Burke's request to appeal

further. State v. Burke, No. 15AP-54, 2016 WL 853181 (Ohio Ct. App. Mar. 3, 2016), perm.

appeal denied, 52 N.E.3d 1205 (Ohio 2016) (table). Burke moved to reopen his appeal under

Ohio Appellate Rule 26(B). The Ohio Court of Appeals denied that motion, and Burke did not

seek additional review by the Ohio Supreme Court.

Burke then filed a § 2254 petition alleging these three claims: (1) the evidence was

insufficient to support his convictions; (2) trial counsel was ineffective; and (3) his due-process

No. 18-3038

-2rights were infringed when a detective used suggestive identification methods. A magistrate

judge recommended denying the petition, stating that the first two claims should be denied on the

merits and the third claim as procedurally defaulted. Burke v. Turner, No. 2:16-CV-01076, 2017

WL 5157701 (S.D. Ohio Nov. 7, 2017). The district court adopted that recommendation over

Burke's objections, denied the petition, and declined to issue a COA. Burke v. Turner, No. 2:16CV-01076, 2017 WL 6000613, at *1 (S.D. Ohio Dec. 4, 2017). Burke seeks a COA for his first

and third claims.

This court will issue a COA "only if the applicant has made a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "That standard is met when

'reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner," Welch v. United States, 136 S. Ct. 1257, 1263 (2016)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or when "jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further," Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). When the district court has denied a claim on procedural

grounds, the petitioner must show that reasonable jurists "would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and

.

.

.

would find it debatable

whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484; see also

Dufresne v. Palmer, 876 F.3d 248, 254 (6th Cii. 2017).

Burke first claimed that the evidence was insufficient to convict him. When reviewing a

claim for insufficient evidence, a federal habeas court must apply a "twice-deferential standard."

Parker v. Matthews, 567 U.S. 37, 43 (2012). First, the court must determine "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." Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Even so, a federal habeas court may overturn a state court's

rejection of an insufficient-evidence claim only if the state court's decision was unreasonable

under § 2254(d). See Coleman v. Johnson, 566 U.S. 650, 652 (2012) (per curiam).

No. 18-3038

-3Burke presented this claim in his direct appeal, and, in denying it, the Ohio Court of

Appeals recounted the key evidence supporting Burke's conviction. Burke, 2016 WL 853181,

at *3• Two eyewitnesses testified against him. One drove Burke to and from the scene of the

crime. The witness testified that he saw Burke take out a gun, that he heard several gunshots

soon thereafter, and that he drove Burke away from the scene moments later. The other witness

was the victim, who had known Burke for years. He testified that, as the state court put it,

"without any doubt in his mind, Burke was the person who had shot him." Id. The state court

held that the testimony of these witnesses, "and others, convinced the jury that Burke was the

shooter. The jury was in the best position to evaluate the witnesses' credibility, and there is no

persuasive reason for rejecting that determination." Id.

In his COA application, Burke argues that the witnesses were not credible and that no

"forensic or tangible evidence" supported the State's case. But federal habeas courts may not

"reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for

that of the jury." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). And circumstantial

evidence may be sufficient to sustain a conviction. Tucker v. Palmer, 541 F.3d 652, 657 (6th

Cir. 2008). In short, no reasonable jurist could debate the district court's determination that,

viewing the evidence in the best light for the State, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Burke next claimed that his attorney was ineffective for failing to present a statement

from his doctor that he was physically incapable of committing the offenses. He does not raise

this claim in his COA application, and so he has abandoned it. See Jackson v. United States, 45

F. App'x 382, 385 (6th Cir. 2002).

In his final claim, Burke asserted that the police used a suggestive method to elicit his

identification by witnesses. The district court denied this claim as procedurally defaulted. To

obtain relief under § 2254, a prisoner must first exhaust his state remedies by "giv[ing] the state

courts one full opportunity to resolve any constitutional issues by invoking one complete round

of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845

No. 18-3038

-4(1999); see 28 U.S.C. § 2254(b)(1). When a petitioner has failed to exhaust his state remedies,

and when he can no longer do so under state law, his habeas claim is procedurally defaulted.

O'Sullivan, 526 U.S. at 848. A federal habeas court need not review a procedurally defaulted

claim unless the petitioner can show either cause for the default and actual prejudice from the

alleged constitutional violation, or that failure to consider the claim would result in a

"fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750-51 (1991), such

as when a petitioner presents new evidence of his actual innocence, Hodges v. Colson, 727 F.3d

517, 530 (6th Cir. 2013).

Burke failed to raise his suggestive-identification claim on direct appeal. Although he

did include that argument in his Rule 26(B) motion in the Ohio Court of Appeals, it was in the

form of an ineffective-assistance-of-appellate-counsel claim; indeed, those are the only type of

claims permitted under Ohio Appellate Rule 26(B). Because ineffective-assistance claims are

distinct from their underlying claims, Burke's presentation of the suggestive-identification

argument in his Rule 26(B) ineffective-assistance-of-appellate-counsel claim did not satisfy the

exhaustion requirement. See White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005). Plus, Burke

did not seek Ohio Supreme Court review of the denial of his Rule 26(B) motion, so he would not

have exhausted it anyway. Because state principles of res judicata prevent Burke from returning

to state court to satisfactorily exhaust his state court remedies, see Lundgren v. Mitchell, 440

F.3d 754, 765 n.2 (6th Cir. 2006), he has procedurally defaulted his suggestive-identification

claim. And, although he did argue that his appellate attorney was ineffective for failing to raise

the suggestive-identification claim, that argument cannot be cause to excuse the procedural

default because, as noted above, Burke procedurally defaulted that ineffective-assistance claim,

too, by failing to litigate the ineffective-assistance claim through one complete round of state

court review. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Finally, Burke makes no

argument that a fundamental miscarriage of justice will result if his claim is not reviewed. In

sum, no reasonable jurist could debate the district court's determination that Burke procedurally

defaulted his third claim.

No. 18-3038

-5-

Accordingly, Burke's COA application is DENIED, and his motion to proceed in forma

pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

d -aw

d

-,:;

Deborah S. Hunt, Clerk

.__.

Case: 2:16-cv-01076-EAS-KAJ Doc #: 15 Filed

: 12/04/17 Page: 1 of 4 PAGEID #: 939

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN D. BURKE,

CASE NO. 2:16-CV-01076

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

Petitioner,

V.

WARDEN, NEIL TURNER,

Respondent.

OPINION AND ORDER

On November 7, 2017, the Magistrate Judge issue

d a Report and Recommendation

recommending that the petition for a writ of habe

as corpus pursuant to 28 U.S.C.

denied and that this action be dismissed. (Doe.

13.) Petitioner has filed an Objection to the

Magistrate Judge's Report and Recommendation.

(Doe

. 14.) Pursuant to 28 U.S.C.

this Court has conducted a de novo review. For the

is OVERRULED.

§ 2254 be

§ 636(b),

reasons that follow, the Objection (Doe. 14)

The Report and Recommendation (Doe. 13)

is ADOPTED and

AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appe

alability.

Petitioner challenges his convictions after a trial

in the Franklin County Court of

Common Pleas on felonious assault with a firea

rm specification and having a weapon while

under a disability. He asserts that the evidence

is constitutionally insufficient to sustain his

convictions (claim one); that he was denied the effec

tive assis

tance of trial counsel (claim two);

and that he was denied due process by use of an undu

ly suggestive photographic identification

procedure (claim three). The Magistrate Judge

recommended dismissal of claim three as

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procedurally defaulted, due to Petitioner's failure to raise the claim on direct appeal, and claims

one and two as without merit.

Petitioner objects to the Magistrate Judge's recommendation of dismissal of his claims.

He maintains that the evidence is constitutionally insufficient to sustain his convictions, because

the State relied on the unreliable witness testimony, and lacked forensic or tangible evidence of

his guilt. Petitioner refers to the testimony of defense witness Bradley Darren Shirley, who

stated that on the day that Jamacan Sizemore was shot, Shirley received a text from the Petitioner

requesting a ride shortly before noon

-

the time that Sizemore said Petitioner approached him

and shot him six times. Transcript, Volume Ill (Doc. 11-4, PagelD# 723-24.) Shirley picked

Petitioner up about twenty minutes later, and dropped him off on "Helen Street" at

approximately 12:25

-

12:30 p.m. (PagelD# 725-26.) Petitioner again argues that he was denied

the effective assistance of trial counsel, because his attorney failed to submit evidence indicating

that Petitioner was physically incapable of running. Petitioner contends that the state appellate

court improperly denied his application to reopen the appeal pursuant to Ohio Appellate Rule

26(B) for failure to include a sworn statement. He has submitted a copy of the Affidavit of

Verification, which he states that he attached to his Rule 26(B) application. (Doc. 14-2, PagelD#

938.)

However, Sizemore testified that Petitioner, whom he had known since he was 13 or 14

years old, approached him in the parking lot of his apartment complex, and began shooting at

him. Sizemore was shot once in the back, twice in his left leg, and three times in his right leg.

He lost his right leg and shattered his knee. Sizemore was 100 percent sure of his identification

of Petitioner as the shooter. When viewing the evidence in the light most favorable to the

prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), Sizemore's testimony alone

Case: 2:16-cv-01076-EAS-KAJ Doc #: 15 Filed: 12/04/17 Page: 3 of 4 PAGEID #: 941

constituted constitutionally sufficient evidence to sustain Petitioner's convictions. Moreover,

defense counsel presented defense witnesses who testified that Petitioner had recently been

released from the hospital, was using a cane, and unable to walk quickly on the date at issue.

Nothing in the record reflects that counsel could have obtained further medical evidence to

establish that Petitioner was physically unable to move quickly at that time. Petitioner therefore

has failed to establish the denial of the effective assistance of counsel under the test set forth in

Strickland i'. Washington, 466 U.S. 668 (1984), on this basis. Additionally, Petitioner waived his

claim that he was convicted by use of an unduly suggestive photographic identification

procedure by failing to raise the issue on direct appeal. The denial of the effective assistance of

appellate counsel cannot constitute cause for this procedural default, because the appellate court

denied his Rule 26(B) application for failure to comply with App. R. 26(B)(2)(d), and Petitioner

did not file an appeal to the Ohio Supreme Court. Edwards i carpenter, 529 U.S. 446, 452

(2000) (the denial of the effective assistance of counsel cannot constitute cause for a procedural

default, if such claim is also procedurally defaulted).

For these reasons, and for the reasons detailed in the Magistrate Judge's Report and

Recommendation, Petitioner's Objection (Doc. 14) is OVERRULED.

Recommendation (Doe. 131, is ADOPTED and AFFIRMED.

The Report and

This action is hereby

DISMISSED.

Pursuant to Rule I I of the Rules Governing Section 2254 Cases in the United States

District Courts, the Court now considers whether to issue a certificate of appealability. "In

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal

court holds no automatic right to appeal from an adverse decision by a district court." Jordan v.

3

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Fisher,—U.S.

.

,

135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a

habeas petitioner to obtain a certificate of appealability in order to appeal.)

When a claim has been denied on the merits, a certificate of appealability may issue only

if the petitioner "has made a substantial showing of the denial of a constitutional right." 28

U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a

petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented were

'adequate to deserve encouragement to proceed further.'" Slack i McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been

denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes

that jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right, and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. id.

This Court is not persuaded that reasonable jurists would debate the dismissal of

Petitioner's claims as procedurally defaulted and without merit.

Therefore, the Court

DECLINES to issue a certificate of appealability.

Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would

not be taken in good faith. Therefore, any request to for leave to appeal in forma pauperis

should be denied. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d at 952.

The Clerk is DIRECTED to enter FINAL JUDGMENT.

IT IS SO ORDERED.

EDMU1'15'). SARGUS

Chief Uhi.t)States District Judge

4

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN D. BURKE,

CASE NO. 2:16-CV-01076

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

Petitioner,

V.

WARDEN, NEIL TURNER,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ,

Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate

Judge RECOMMENDS that this petition be DENIED and that this action be DISMISSED.

I.

FACTS AND PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

this case as follows:

On January 23, 2013, the Franklin County Grand Jury indicted

Burke on one count of felonious assault with specification, in

violation of R.C. 2903.11, a felony of the second degree, and one

count of having a weapon while under disability, in violation of

R.C. 2923.13, a felony of the third degree.

Jamacan Sizemore ("Sizemore") testified that shortly after noon on

January 8, 2013, he was working on cars in the parking lot of an

apartment complex near 870 Wedgewood Avenue, in Columbus,

Ohio. Sizemore testified that he heard someone say "what's up

now?" and he turned and saw Burke, whom he had known for

approximately 17 years, standing within 5 feet of a "little silver

car." (Tr. 91, 96.) Burke had a handgun and shot Sizemore 6 times.

Burke then jumped into the passenger seat of the car and left. (Tr.

87-98.) Witnesses, Christopher Thornton and Juanita Stewart,

testified that after the shooting, the gunman ran or "speed walked"

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a short distance to the silver car and "hopped in and took off." (Tr.

335, 372.)

Burke argued that due to prior injuries, he was physically unable to

commit the crime and "run" from the scene. His mother, Sharon

Ross, and sister, Tarnirra Burke, testified that he walked with a

limp and used a cane and/or a walker at the time of the shooting.

(Tr. 483-87, 500-06.)

At first, Sizemore did not cooperate with the police. (Tr. 104-10.)

However, eventually he identified Burke as the assailant, and later

testified that he had "no doubt" Burke was the shooter because he

saw him and looked "dead in his face" as Burke pulled out a gun

and shot him. (Tr. 92-98, 108-10.)

Paul Dille testified that he drove Burke to the area of the shooting,

and that Burke pulled a gun out of his waistband and exited Dille's

car when Burke saw Sizemore. Burke did not have a cane and was

not walking with a limp that day. Dille says he heard the shots but

did not actually see the shooting. Burke got back into the car

quickly, pointed his gun at Dille and told him to "go." (Tr. 430.)

Dille complied and drove Burke away. Another witness, Dylan

Roller, testified that Dille was very upset shortly after the shooting,

and that Burke told Dille to get rid of the car. (Tr. 282-84.)

The jury convicted Burke of felonious assault with a gun

specification. The court convicted Burke of having a weapon while

under a disability. He was sentenced to 10 years in prison.

II. ASSIGNMENT OF ERROR

Burke appeals, assigning the following errors:

I. THE TRIAL COURT ERRED WHEN IT ENTERED

JUDGMENT AGAINST THE APPELLANT WHEN THE....

EVIDENCE WAS INSUFFICIENT TO SUSTAIN A

CONVICTION.

H. APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL THEREBY DEPRIVING HIM OF

THE RIGHT TO A FAIR TRIAL UNDER THE STATE AND

FEDERAL CONSTITUTIONS.

State v. Burke, No. 15AP-54, 2016 WL 853181, at *12 (Ohio Ct. App. Mar. 3, 2016). On

March 3, 2016, the appellate court affirmed the judgment of the trial court. Id. On June 29,

2

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2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Burke, 146

Ohio St.3d 1430 (Ohio 2016). On April 22, 2016, Petitioner filed an application to reopen the

appeal pursuant to Ohio Appellate Rule 26(B). (Doe. 11-1, PagelD# 180). The appellate court

denied the Rule 26(B) application due to Petitioner's failure to include a sworn statement as

required by App. R. 26(13)(2)(d). (PagelD# 197). On October 13, 2016, the appellate court

denied Petitioner's application for reconsideration. (PagelD# 211). Petitioner did not file an

appeal to the Supreme Court of Ohio.

On November 10, 2016, Petitioner filed this pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient to

sustain his convictions (claim one); that he was denied the effective assistance of trial counsel

because his attorney failed to present evidence establishing that Petitioner was physically

incapable of committing the crimes charged due to his physical health and vision and failed to

obtain a key witness for the defense (claim two); and that he was denied due process by use of an

unduly suggestive photographic identification procedure (claim three). It is the position of the

Respondent that claims one and two are without merit and that claim three is unexhausted or

procedurally defaulted.

H. DISCUSSION

A. Procedural Default (Claim Three)

1.

Standard

Congress has provided that state prisoners who are in custody in violation of the

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to

protect the constitutional rights of criminal defendants, and in order to prevent needless friction

3

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between the state and federal courts, a state criminal defendant with federal constitutional claims

must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If

he fails to do so, but still has an avenue open to him by which he may present his claims, then his

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless,

459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)).

However, where a petitioner has failed to exhaust his claims but would find those claims barred

if later presented to the state courts, "there is a procedural default for purposes of federal

habeas[.]" Coleman v. Thompson, 501 U.S. 722, 735 n1 (1991), abrogated on different grounds

by Martinez v. Ryan, 566 U.S. 1 (2012). In other words, "contentions of federal law which were

not resolved on the merits in the state proceeding due to respondent's failure to raise them there

as required by state procedure" also cannot be resolved on their merits in a federal habeas case.

Wainwright v. Sykes, 433 U.S. 72,87(1977).

To determine whether procedural default bars a habeas petitioner's claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also Scuba v. Brigano, 259 F. App'x 713, 718 (6th Cir. 2007) (following the four-part

analysis of Maupin). 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 determine whether the state courts actually enforced the state procedural sanction.

Third, the court must determine whether the forfeiture is an adequate and independent state

ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,

785 F.2d at 138. Finally, if "the court determines that a state procedural rule was not complied

with and that the rule [has] an adequate and independent state ground, then the petitioner" may

still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause

4

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sufficient to excuse the default and (2) that he was actually prejudiced by the alleged

constitutional error. Id.

If, after considering all four factors of the Maupin test, a court concludes that a

procedural default occurred, it must not consider the procedurally defaulted claim on the merits

unless "review is needed to prevent a fundamental miscarriage of justice, such as when the

petitioner submits new evidence showing that a constitutional violation has probably resulted in

a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.

2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).

2. Application

In claim three, Petitioner asserts that the prosecution's use of an unduly suggestive

photographic identification procedure violated his due process rights. Although somewhat

confusing, Respondent argues that this claim is procedurally defaulted. (See Doc. 11 at 15

(arguing procedural default); but see id. at 8-14 (arguing claim three is unexhausted and for

dismissal of the claim on the merits)). Petitioner counters that he "presented all of his claims as

required by law." (Doc. 12 at 7). The record, however, shows otherwise. It is clear that

Petitioner did not present claim three on direct appeal. (See Doc. 11-1, Ex. 8).

Because Petitioner did not present this claim on direct appeal, Ohio's doctrine of res

judicata now bars his ability to raise such claims in the state courts. See State v. Perry, 226

N.E.2d 104, 108 (Ohio 1967) (holding that claims must be raised on direct appeal, if possible, or

they will be barred by the doctrine of resjudicata); see also State v. Cole, 443 N.E.2d 169, 171

(Ohio 1982); State v. Ishmail, 423 N.E.2d 1068, 1070 (Ohio 1981). Ohio courts have

consistently refused, in reliance on the doctrine of res judicata, to review the merits of

procedurally barred claims. See Cole, 443 N.E.2d at 170-71; Ishmail, 423 N.E.2d at 1070.

5

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Further, the Sixth Circuit has held that Ohio's doctrine of res judicata is an independent and

adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th

Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224

F.3d 542, 555 (6th Cit. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cit. 2000); Norris v.

Schotten, 146 F.3d 314, 332 (6th Cit. 1998). Finally, with respect to the final Maupin factor, the

independence prong, the Court concludes that Ohio's doctrine of resjudicata in this context does

not rely on or otherwise implicate federal law. Accordingly, the Court is satisfied from its own

review of relevant case law that res judicata rule articulated in Perry is an adequate and

independent ground for denying relief.

As explained, however, Petitioner may still secure review of these claims on the merits if

he demonstrates cause for his failure to follow the state procedural rules, as well as actual

prejudice from the constitutional violations that he alleges. "'[C]ause' under the cause and

prejudice test must be something external to the petitioner, something that cannot fairly be

attributed to him[,]

' . . .

some objective factor external to the defense [that] impeded.

.

.

efforts

to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753 (1991)

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). In his brief, Petitioner notes that he is

pro se. (Doc. 12 at 7-8). A petitioner's pro se status, ignorance of the law, or ignorance of

procedural-requirements, however, are insufficient bases- to excuse a-proceduraidefauit. -Bonilla

v. Hurley, 370 F.3d 494, 498 (6th Cit. 2004). Instead, in order to establish cause, a petitioner

"must present a substantial reason that is external to himself and cannot be fairly attributed to

him." Hartman v. Bagley, 492 F.3d 347, 358 (6th Cit. 2007). Petitioner has failed to do so here.

Further, the denial of the effective assistance of appellate counsel cannot constitute cause

for Petitioner's procedural default because Petitioner has likewise procedurally defaulted this

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claim, as the state appellate court denied his Rule 26(B) application for failure to comply with

App. R. 26(B)(2)(d). See Gooden v. Bradshaw, No. 5:12-cv-2139, 2014 WL 4245951, at *10

(N.D. Ohio Aug. 25, 2014) (enforcing the procedural default on this same basis); Belcher v.

Smith, No. 1:09-cv-627, 2010 WL 256501, at *5 (N.D. Ohio Jan. 21, 2010) (same).

At base, Petitioner has not argued, nor does the record reflect, that his procedural default

can be excused by any explanation that would be sufficient under Murray v. Carrier. Thus,

claim three is procedurally defaulted.

B. Merits (Claims One and Two)

1. Standard

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, AEDPA's familiar

standards apply. The United State Supreme Court has described AEDPA as "a formidable

barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court"

and emphasized that courts must not "lightly conclude that a State's criminal justice system has

experienced the 'extreme malfunction' for which federal habeas relief is the remedy." Burt v.

Titlow, —U.S.

,

134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86

(2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA

...

imposes a highly

deferential standard for evaluating state-court rulings, and demands that state court decisions be

given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).

AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a

federal court from granting habeas relief with respect to a "claim that was adjudicated on the

merits in State court proceedings" unless the state-court decision either:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

7

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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

Further, under AEDPA, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

28 U.S.C. § 2254(e)(1).

Accordingly, "a writ of habeas corpus should be denied unless the state court decision

was contrary to, or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court, or based on an unreasonable determination of the facts in light

of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals

for the Sixth Circuit recently explained these standards as follows:

A state court's decision is "contrary to" Supreme Court precedent

if (1) "the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law[,]" or (2) "the

state court confronts facts that are materially indistinguishable

from a relevant Supreme Court precedent and arrives" at a

different result. Williams v. Taylor, 529 U.S. 362,. 405, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000). A state court's decision is an

"unreasonable application" under 28 U.S.C. § 2254(d)(1) if it

"identifies the correct governing legal rule from [the Supreme]

Court's cases but unreasonably applies it to the facts of the

particular case" or either unreasonably extends or unreasonably

refuses to extend a legal principle from Supreme Court precedent

to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146

L.Ed.2d 389.

...

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Coley, 706 F.3d at 748-49. The burden of satisfying AEDPA's standards rests with the

petitioner. See Cullen v. Pinhoister, 563 U.S. 170, 181 (2011).

2. Application

i.

Claim One

Petitioner asserts in claim one that the evidence is constitutionally insufficient to sustain

his convictions. The state appellate court rejected this claim on the merits:

Burke argues that the evidence was insufficient to support his

convictions. Sufficiency of the evidence is a legal standard that

tests whether the evidence introduced at trial is legally sufficient to

support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). We examine the evidence in the light most favorable to the

state and conclude whether any rational trier of fact could have

found that the state proved, beyond a reasonable doubt, all of the

essential elements of the crime. State v. Jenks, 61 Ohio St.3d 259

(1991).

A challenge to the sufficiency of the evidence is properly made

where a defendant asserts that the state failed to produce any

evidence related to one or more elements of an offense. Burke has

not raised any arguments regarding the sufficiency of the evidence.

Instead, Burke asserts that the state's witnesses lacked credibility.

As such, in the interest of justice, we will construe Burke's first

assignment of error as raising both sufficiency and manifest weight

of the evidence issues.

This court in State v. Baatin, 10th Dist. No. 11AP-286, 2011—

Ohio-6294, ¶ 811, addressed the applicable law:

Burke argues that the state's witnesses lacked credibility. Burke

claims that he "is serving a ten-year sentence primarily because

two people identified" him as the shooter. (Appellant's Brief, 15.)

Burke alleges that Sizemore is not believable because he initially

denied to the police knowing who shot him. Burke attacks Difie's

testimony because, at the time of the shooting, Dille was a "drug

addict" who was "currently using heroin" and had severe "mental

health issues." (Appellant's Brief, 16.)

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Firstly, "[a] conviction is not against the manifest weight of the

evidence because the jury chose to believe the state's version of

events over the defendant's version." State v. Hawk, 10th Dist. No.

12AP-895, 2013-Ohio-5794, ¶ 59. A lack of physical evidence

does not warrant interfering with the jury's decision or preclude a

conviction. See State v. Hunter, 10th Dist. No. 1OAP-599, 2011Ohio-1337, ¶ 24. In addition, the testimony of one witness, if

believed by the jury, is enough to support a conviction. State v.

Strong, 10th Dist. No. 09AP-874, 201 l-Ohio-1024, ¶ 42.

Sizemore testified that he had known Burke for a long time and

that, without any doubt in his mind, Burke was the person who had

shot him. Dille testified that he drove Burke to the scene, saw

Burke pull out a gun immediately after seeing Sizemore, saw

Burke exit the vehicle, heard the gunshots, and drove Burke away

from the scene.

Based on the guilty verdict, the testimony of Sizemore, Dille, and

others, convinced the jury that Burke was the shooter. The jury

was in the best position to evaluate the witnesses' credibility, and

there is no persuasive reason for rejecting that determination.

We find that the evidence in the record supports the jury's and

court's verdicts. Accordingly, Burke's convictions are not against

the manifest weight of the evidence. This conclusion is also

dispositive of Burke's claim that his convictions are not supported

by sufficient evidence. State v. McCrary, 10th Dist. No. 1OAP881, 2011-Ohio-3161, 1 17. Therefore, we overrule Burke's first

assignment of error.

Burke, 2016 'WL 853181, at *2_3.

In determining whether the evidence was sufficient to support a petitioner's conviction, a

federal habeas court must view the evidence. in- the light most favorable to.. the prosecution.

.

Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt."

Id. (quoting Jackson, 443 U.S. at 326). "[A] reviewing court 'faced with a record of historical

facts that supports conflicting inferences must presume

10

-

even if it does not affirmatively appear

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in the record

-

that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution." Id. at 296-97 (quoting Jackson, 443 U.S. at 326).

Moreover, federal habeas courts must afford a "double layer" of deference to state court

determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, deference

must be given, first, to the jury's finding of guilt because the standard, announced in Jackson v.

Virginia, is 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." 567 F.3d 191, 205 (6th Cir. 2009). Second, and even if a de novo

review of the evidence leads to the conclusion that no rational trier of fact could have so found, a

federal habeas court "must still defer to the state appellate court's sufficiency determination as

long as it is not unreasonable." Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).

This is a substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so

here.

At trial, the jury heard testimony from two key eyewitnesses, Paul Dille (the getaway

driver) and Janiacan Sizemore (the victim). Dille, Petitioner's acquaintance, testified that the

two had an arrangement whereby he would drive Petitioner around in exchange for drugs. (Doc.

11-.4, PagelD# 622). On the day of the shooting, Petitioner directed Dille to drive to the crime

scene, .the Wedgwood Apartment Complex. (PagelD#.628) Once they arrived, they circled the

parking lot; Petitioner eventually pulled out a gun and pointed it in Dille's face. (Page]D# 63637). Petitioner exited the vehicle, and Dille then heard five or six shots. (PagelD# 638-69).

Petitioner returned to the car, and, according to Dille's testimony, threatened to kill Dille and his

family. Due then drove himself and Petitioner away from the scene. As part of Dille's

testimony, the prosecution showed the jury video footage from the Wedgewood Apartments

11

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security camera, which showed a car circling the parking lot immediately prior to the shooting.

Dille identified the circling car as his own and the driver as himself. (PagelD# 632).

Sizemore testified that he was in the Wedgewood Apartment parking lot working on his

car right before he was shot. (Doc. 11-3, PagelD# 299). He heard someone say, "What's up

now?" (PagelD# 302.) He then saw Petitioner, whom Sizemore had known since he was 13- or

14-years-old, standing next to a car. (PagelD# 303). Petitioner started shooting.

(Id.).

Sizemore identified Petitioner as the shooter: "I know who shot me. I seen him, I looked at him

dead in his face, I know him." (PagelD# 304). Sizemore further testified that he was 100

percent sure of his identification of Petitioner as the shooter. (PagelD# 305). Sizemore was shot

six times—once in the back, twice in his left leg, and three times in his right leg. (PagelD# 308).

He lost his right leg and shattered his knee. (PagelD# 313-15).

In addition to DiMe and Sizemore, Christopher Thornton and Juanita Stewart, testified.

They lived at the Wedgewood Apartments at the time of the shooting and happened to be in the

parking lot when Sizemore was shot. (See, e.g., Doc. 11-4, PagelD# 566). Their vehicle can be

seen in the security surveillance footage. (PagelD# 566). Both Thornton's and Stewart's

testimonies corroborated Dille's and Sizmore's accounts. (PagelD# 530-549; PagelD# 566579). They testified that they heard gunshots; saw Sizemore fall to the ground; and then

witnessed the shooter run-to a silver-car, hop in, and speed away (Id.).

-

This constitutes sufficient evidence to sustain Petitioner's convictions. Moreover, as

discussed, "[e]ven if a review of the evidence leads to the conclusion that no rational trier of fact

could have found guilt beyond a reasonable doubt," this Court "must still defer to the state

appellate court's sufficiency determination as long as it is not unreasonable." Harris v. Morgan,

No. 1:10CV2351, 2011 WL 8184198, at *16 (N.D. Ohio Nov. 2, 2011) (citing Durr v. Mitchell,

12

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847 F.3d 423, 449 (6th Cu. 2007); White, 602 F.3d at 710). Applying this standard of review,

Petitioner is not entitled to relief. To the contrary, the state appellate court appropriately viewed

the evidence in the light most favorable to the prosecution and reasonably concluded that the

evidence is constitutionally sufficient to sustain Petitioner's convictions. Consequently, claim

one is without merit.

ii.

Claim Two

In claim two, Petitioner asserts that he was denied the effective assistance of trial counsel

because his attorney failed to present evidence that would have established that he was

physically incapable of committing the crimes charged. Petition (Doc. 1, PagelD# 7).

Specifically, Petitioner claims that medical reports would have assisted the defense. Reply (Doc.

12, PagelD# 906). Like claim one, the state appellate court rejected claim two on the merits:

Burke argues in his second assignment of error that he was denied

effective assistance of counsel because his attorney failed to

present doctor's statements that would have demonstrated that

Burke was physically incapable of committing the crime due to his

physical health and eye vision. We disagree.

To establish a claim of ineffective assistance of counsel, defendant

must satisfy a two-prong test. Strickland v. Washington, 466 U.S.

668, 687 (1984). Burke must show that (1) defense counsel's

performance was so deficient that he or she was not functioning as

the counsel guaranteed under the Sixth Amendment to the United

States Constitution, and (2) that defense counsel's errors

prejudiced defendant: Id.. The failure to 'make either showing

defeats a claim of ineffectiveness of trial counsel. Id. at 697. In

addition, "[j]udicial scrutiny of counsel's perforniance must be

highly deferential * * * [and] a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689; State v. Bradley, 42

Ohio St.3d 136, 143-44 (1989).

A claim of trial counsel ineffectiveness usually will be

unreviewable on appeal because the appellate record is inadequate

to determine whether the omitted objection, motion, or defense

really had merit and/or because the possible reasons for counsel's

13

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actions appear outside the appellate record. United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995), en banc.

Ohio law similarly recognizes that error cannot be recognized on

appeal unless the appellate record actually supports a finding of

error. A defendant claiming error has the burden of proving that

error by reference to matters in the appellate record. Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). There must

be sufficient basis in the record upon which the court can decide

that error. Hungler v. Cincinnati, 25 Ohio St.3d 338, 342 (1986).

In this case, Burke points to nothing in the record to support this

claim. In fact, the record does not contain any evidence that such

doctor's statements actually existed. In the absence of any

indication that .there was some medical evidence of his alleged

physical limitations to be presented, Burke cannot overcome the

presumption that his counsel was effective. Furthermore, Burke

cannot show that he was prejudiced in any manner by the actions

or inactions of his counsel. As a result, Burke's second assignment

of error lacks merit. Accordingly, the second assignment of error is

overruled.

State v. Burke, 2016 WL 853181, at *4•

"In all criminal prosecutions," the Sixth Amendment affords "the accused

...

the right

to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to 'effective

assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)

(citation omitted). The United States Supreme Court set forth the legal principals governing

claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).

Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his

counsel's performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687;

Hale v. Davis, 512 F. App'x 516, 520 (6th Cir. 2013). A petitioner "show[s] deficient

performance by counsel by demonstrating 'that counsel's representation fell below and objective

standard of reasonableness." Poole v. MacLaren, No. 12-1705, —F. A'ppx

,

2013 WL

6284355, at *5 (6th Cir. Dec. 5, 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir.

14

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2011) (internal quotation marks omitted) and citing Strickland, 466 U.S. at 687). To make such

a showing, a petitioner "must overcome the 'strong [ ] presum[ption]' that his counsel 'rendered

adequate assistance and made all significant decisions in the exercise of reasonable professional

judgment." Poole, 2013 WL 6284355 at *5 (quoting Strickland, 466 U.S. at 687). "To avoid

the warping effects of hindsight, [courts must] 'indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance."

Bigelow v.

Haviland, 576 F.3d 284, 287 (6th Cu. 2009) (quoting Strickland, 466 U.S. at 689).

The United States Supreme Court has cautioned federal habeas courts to "guard against

the danger of equating unreasonableness under Strickland with unreasonableness under

§ 2254(d)." Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court observed that while

[s]urmounting Strickland's high bar is never

...

easy.'

...

[e] stablishing that a state court's

application of Strickland was unreasonable under § 2254(d) is even more difficult." Id. (quoting

Padilla v. Kentucky, 559 U.S. 356, 371 (2010)) (and citing Strickland, 466 U.S. at 689). The

Court instructed that the standards created under Strickland and § 2254(d) are both "highly

deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted).

Thus, when a federal habeas court reviews a state court's determination regarding an ineffective

assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied Strickland's

deferential standard." Id.

Petitioner has failed to establish the denial of the effective assistance of counsel under the

two-prong Strickland test. Sharon Ross, Petitioner's mother, testified as a defense witness that in

January 2013, Petitioner "was just being able to get around a little bit" after having been released

from the hospital in September from injuries suffered as the result of a gunshot wound.

15

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Transcript, Vol. III (Doe. 11-4, PagelD# 691-93). He had been shot in the leg and limped.

(PagelD# 694). He used a walker and a cane and could not move quickly. (PagelD# 695).

Tamirra Burke, Petitioner's sister, also testified as a defense witness that Petitioner had been shot

in July 2012 six or seven times in the stomach and leg. (PagelD# 708). He was in a coma for a

long time, and had been released from the hospital in the fall of 2012. (PagelD# 708-09). In

January 2013, he was "barely.

.

.

getting around." (PagelD# 711). Thus, it is clear that counsel

presented this defense. The jury simply did not believe it. Instead, they believed witnesses, like

Dille, who testified that Petitioner did not have a cane or walk with a limp on the day of the

shooting. (See PagelD# 640).

Further, as the state court noted, "[Petitioner] points to nothing in the record to support

this claim. In fact, the record does not contain any evidence that such doctor's statements

actually existed. In the absence of any indication that there was some medical evidence of his

alleged physical limitations to be presented, Burke cannot overcome the presumption that his

counsel was effective." State v. Burke, 2016 WL 853181, at *4 Considering all of this, the

Court concludes that the state court reasonably applied Strickland to claim two and properly

rejected it.

HI.

RECOMMENDED DISPOSITION

For the foregoing reasons, the Magistrate Judge RECOMIMIENDS that this petition be

DENIED and that this action be DISMISSED.

Procedure on Objections

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part thereof

16

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in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R Civ. P.

72(b). Response to objections must be filed within fourteen days after being served with a copy

thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat'l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) ("[F]ailure to object to the magistrate judge's

recommendations constituted a waiver of [the] ability to appeal the district court's ruling");

United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived

appeal of district court's denial of pretrial motion by failing to timely object to magistrate

judge's report and recommendation). Even when timely objections are filed, appellate review of

issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) ("[A] general objection to a magistrate judge's report, which fails to specify the issues of

contention, does not suffice to preserve an issue for appeal.

..

.") (citation omitted).

The parties are further advised that, if they intend to file an appeal of any adverse

decision, they may submit arguments in any objections filed, regarding whether a certificate of

appealability should issue.

IT IS SO ORDERED.

Is! Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

Date: November 7, 2017

17

Additional material

from this filing is

available in the

Clerk's Office.