853 F.2d 926 (6th Cir. 1988), 87-4070, Curley v. Morris

Docket Nº:87-4070.
Citation:853 F.2d 926
Party Name:George CURLEY, Petitioner-Appellant, v. Terry MORRIS, Respondent-Appellee.
Case Date:August 04, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 926

853 F.2d 926 (6th Cir. 1988)

George CURLEY, Petitioner-Appellant,

v.

Terry MORRIS, Respondent-Appellee.

No. 87-4070.

United States Court of Appeals, Sixth Circuit

August 4, 1988

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

N.D.Ohio

DENIED.

On Appeal from the United States District Court for the Northern District of Ohio.

Before BOYCE F. MARTIN, Jr. and WELLFORD, Circuit Judges, and JULIA S. GIBBONS, District Court Judge. [*]

PER CURIAM.

Petitioner George Curley seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (1982). In his appeal to this court, petitioner asserts ten assignments of error. Because we find these assignments to be lacking in merit, the petition for habeas corpus is denied.

Curley was indicted in January of 1985 by a grand jury on one count of aggravated murder, a violation of Ohio Revised Code Section 2903.01. After a trial by jury, Curley was found guilty of the lesser included offense of involuntary manslaughter. Curley was sentenced to serve a term of imprisonment of three years prior to and consecutive to a term of from fifteen years to twenty-five years.

The relevant facts concerning the event at issue here indicate that on January 1, 1985, Curley returned home in the early morning to find his nephew, Dean White, and his nephew's girlfriend lying on his bed. Curley ordered White, who lived in the downstairs apartment of the house but who had apparently been locked out that night, to "get out or I'll shoot you in the head." White's girlfriend, Nadia Ahmetovic, testified that she and White quickly agreed to leave and informed Curley of their decision immediately. She stated that while White arose and walked toward the kitchen door, Curley fired a shot killing White.

Curley attempted to defend his actions by claiming that White had approached him in a threatening manner, and that, while he shot in self-defense, he did not shoot to kill. After receiving his conviction, Curley appealed to the Ohio Eighth District Court of Appeals, which affirmed the conviction on May 8, 1986. Curley's motion for leave to appeal to the Ohio Supreme Court was denied on December 10, 1986. Having exhausted his state remedies, Curley petitioned for habeas corpus relief. On September 30, 1987, the district court accepted the report and recommendation of the magistrate and dismissed the petition. Petitioner now repeats before us many of the errors asserted by him below.

Before addressing the merits of the claims raised by petitioner, we emphasize that before habeas corpus relief may be granted, it must be shown that petitioner was deprived of a right guaranteed by the United States Constitution. Bell v. Arn, 536 F.2d 123 (6th Cir.1976). Only if the errors alleged resulted in a denial of fundamental fairness to the defendant will we grant relief. Jameson v. Wainwright, 719 F.2d 1125 (11th Cir.1983),cert. denied, 466 U.S. 975 (1984).

Petitioner's first four arguments challenge the jury instructions offered by the trial court. More particularly, petitioner argues that the court's instructions to the jury in the matter of his self-defense theory were defective because they required him to prove by a preponderance of the evidence that he had shot White in self-defense. Defendant must prove, however, that the instruction "infected [his] trial to such a degree as to constitute a clear violation of due process." Wood v. Marshall, 790 F.2d 548, 551 (6th Cir.1986). Absent such a showing, an improper jury instruction will not warrant the granting of habeas corpus relief. With respect to petitioner's first assignment of error, we hold that it is not unconstitutional to require that a criminal defendant bear the burden of proving by a preponderance of the evidence that he acted in self-defense. See Martin v. Ohio, 480 U.S. ----, 94 L.Ed.2d 267, reh. den., 95 L.Ed.2d 519 (1987). Not only is such a jury instruction not unconstitutional but it has been ruled proper by the Supreme Court of Ohio. State v. Jackson, 22 Ohio State 3d. 281, 490 N.E.2d 893 (1986). It is also not error for the court to provide examples to the jury for the purpose of explaining to them the doctrine of self-defense. Additionally, we do not believe the instructions to the jury were capable of misleading the jury on the law concerning the right to self-defense within one's home.

See State v. Wilkins, 64 Ohio St.2d 382, 384, 415 N.E.2d 303 (1980). Petitioner's third argument is that he was not given any notice of the offense of which he was convicted, namely, involuntary manslaughter. Given, however, that we have already concluded that involuntary manslaughter is a lesser-included offense, we fail to see how petitioner's due process rights could have been violated. Petitioner's fourth challenge to the jury instructions, also involving the inclusion of the involuntary manslaughter charge, is without merit....

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