Nash v. Eberlin

• Decision Date: 10 February 2006
• Docket Number: No. 05-3499.,05-3499.
• Citation: 437 F.3d 519
• Parties: Darell NASH, Sr., Petitioner-Appellee, v. Michelle EBERLIN, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

437 F.3d 519

Darell NASH, Sr., Petitioner-Appellee, v. Michelle EBERLIN, Respondent-Appellant.

No. 05-3499.

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2005.

Decided and Filed: February 10, 2006.

ARGUED:

Jerri L. Fosnaught, Office of the Attorney General, Columbus, Ohio, for Appellant. Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellee.

ON BRIEF:

Jerri L. Fosnaught, Office of the Attorney General, Columbus, Ohio, for Appellant. Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellee.

Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

This is an appeal from the district court's grant of habeas relief to Petitioner-Appellee Darell Nash, Sr. ("Nash"). Nash was convicted in Ohio state court of felonious assault, and he sought habeas relief on the basis that the manifest weight of the evidence did not support his conviction. The State argues that the district court erred in construing Nash's manifest-weight-of-the-evidence claim as a claim for insufficiency of the evidence and that Nash is not entitled to habeas relief on the basis of insufficiency. Nash asserts that the district court correctly concluded that there was insufficient evidence that he intended to harm his wife when he fired a gun in the course of a struggle with his son. Nash also filed a renewed motion for release with this court, arguing that there is no basis for the continued stay of the district court's order. We VACATE the district court's grant of Nash's petition for a writ of habeas corpus and REMAND the case to the district court for review of the state-court trial transcript. We also DENY Nash's renewed motion for release.

I. BACKGROUND

On December 11, 2001, Connie Nash ("Connie") received a call at the nursing home where she worked from her husband's girlfriend. After finishing her shift at work, Connie came home and found Nash and a friend in the Nashes' kitchen playing cards. Connie told Nash's friend to leave so that she could speak with Nash. As he was standing up, Nash bumped Connie with his chair, and she "started swinging on him." Joint Appendix ("J.A.") at 148 (Tr. at 94). Nash got out of his chair and grabbed Connie, and they began to fight. She tripped over a highchair and fell down. The Nashes' adult son, Darell Nash, Jr. ("Darell Jr."), and their nephew, William Jeter, heard the noise and came up from the basement; they found Connie and Nash screaming at each other.

Nash ran upstairs and then returned with a .9-millimeter handgun.¹ The handgun was loaded. Upon seeing the gun, Darell Jr. grabbed Nash, which caused the gun to fire into the ground. Connie went into the Nashes' daughter's room, and Nash followed her. Darell Jr. again grabbed Nash, and the gun fired into the wall.² Nash then put the gun away upstairs and left the house in his car.

Connie called the police, who came to the Nashes' house. Nash called the house while the police were there, and a detective listened in while Darell Jr. spoke with Nash on the phone. According to the detective, Nash stated, "[S]he did it this time. You can tell her she doesn't have a job any longer because I'm going to F'ing kill her." State v. Nash, No.2002CA00106, 2003 WL 139783, at *1 (Ohio Ct.App. Jan. 13, 2003). Nash also asked Darell Jr. "whether Connie had `cool[ed] down yet so that he could come home and talk things over.'" Id.

Nash gave a statement to the police in which he said "that he went upstairs and got the gun in order to scare his wife." Id. At trial, however, he testified that "his `intention was to take the gun out of the house.'" Id. "[Nash], during his testimony, also testified that the handgun went off accidentally and denied making the threats that the Detective overheard him making during the telephone call." Id.

Nash was indicted by the Stark County Grand Jury for improperly discharging a firearm at or into a habitation or school safety zone and for knowingly causing or attempting to cause physical harm to Connie Nash by means of a deadly weapon or dangerous ordnance. Both charges had a firearm specification. On March 5, 2002, a jury found Nash guilty on both counts, and he was subsequently sentenced to a total of five years of incarceration. Nash appealed to the Fifth District Court of Appeals of Ohio, which overturned his conviction for discharging a firearm at or into a habitation or school safety zone³ and upheld his conviction for felonious assault. Nash, 2003 WL 139783, at *3. With regard to the felonious assault charge, the state appellate court held that Nash's conviction was not against the manifest weight of the evidence:

Upon our review of the record, we find that appellant acted knowingly when, after arguing with his wife, he went upstairs to retrieve the gun. As is stated above, appellant told the police that he had retrieved the same in order to scare his wife. We concur with appellee that "[r]eturning to the argument in this situation gives rise to a probable result that the gun may go off."

Id. One judge dissented in part, stating that "the facts herein do not support a conviction of felonious assault." Id. at *4 (Hoffman, P.J., dissenting in part). Nash filed an appeal with the Ohio Supreme Court, which denied leave to appeal because the case did not involve a "substantial constitutional question." J.A. at 124 (Entry).

On February 3, 2004, Nash filed a petition for habeas relief in federal district court pursuant to 28 U.S.C. § 2254. The habeas petition — which Nash filed pro se — listed one ground for relief: "Felonious assault conviction was against the manifest weight of the evidence." J.A. at 8 (Habeas Pet.). The State filed a return of writ on June 21, 2004, arguing that Nash did not state a cognizable claim for federal habeas review because a manifest-weight-of-the-evidence claim is a matter of state law. The State further asserted that even if construed as a claim based on sufficiency of the evidence, Nash should still not prevail. On July 27, 2004, Nash filed a traverse to the State's return of writ in which he raised the issue of sufficiency of the evidence; he argued that his rights under the Fourteenth Amendment were violated when he was convicted of felonious assault without proof of intent.

A magistrate judge filed a report on November 5, 2004, recommending that habeas relief be denied. On April 1, 2005, the district court granted Nash's § 2254 petition. The district court ordered the State to release Nash from custody "within 30 days of this order." J.A. at 199(J.). Although Nash's manifest-weight-of-the-evidence claim did not raise an issue of federal law, the district court liberally construed his petition to raise a claim based on sufficiency of the evidence. The district court concluded that "[e]ven viewing the facts in the light most favorable to the prosecution, a rational trier of fact could not conclude beyond a reasonable doubt that the petitioner knowingly caused or attempted to cause physical harm to his wife or to anyone else." J.A. at 195(Op.).

On April 12, 2005, the State filed a motion requesting a stay of the district court's judgment in favor of Nash. On the same day, the State filed a notice of appeal with this court. The district court denied the State's motion for a stay on April 28, 2005. The State then filed in this court an emergency motion for a stay of judgment pending appeal. A judge of this court entered an order on April 29, 2005, temporarily staying the district court's judgment. A three-judge panel reviewed the case, and on June 9, 2005, granted the State's motion for a stay, ordered that counsel be appointed to represent Nash in his appeal, and ordered an expedited submission of the case to a merits panel. On August 18, 2005, Nash filed a renewed motion for release, and the State filed an opposition to Nash's motion.

II. ANALYSIS

A. Standard of Review

"This court reviews a district court's grant of a writ of habeas corpus de novo." Sanford v. Yukins, 288 F.3d 855, 859 (6th Cir.), cert. denied, 537 U.S. 980, 123 S.Ct. 445, 154 L.Ed.2d 342 (2002). Thus, we affirm the district court's grant of the writ if the requirements of 28 U.S.C. § 2254(d) are satisfied:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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

(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).

B. District Court Review of the State-Court Trial Transcript

The state-court trial transcript was not included in the record on appeal to this court, nor was it included or referenced in the district court docket.⁴ The district court relied on the state appellate court's statements of fact in its determination of Nash's claims;⁵ the state appellate court concluded that Nash's conviction was not against the manifest weight of the evidence, and the district court concluded that there was insufficient evidence to support Nash's conviction. Nash, 2003 WL 139783, at *3; J.A. at 195-96(Op.). The State asserted before this court (in its brief and at oral argument) that Nash fired the gun in Connie's direction when they were in their daughter's bedroom, whereas the statement of the state appellate court that was relied upon by the district court merely observed without further detail that the gun fired into a wall. Br. Appellant at 49; Nash, 2003 WL 139783, at *1; J.A. at 187(Op.). The State's attorney explained at oral argument that this information regarding the direction of the firing of the gun was presented to the jury but was not included in the...