Berry v. Warden

• Decision Date: 27 April 2017
• Docket Number: No. 16-4028.,16-4028.
• Citation: 872 F.3d 329
• Parties: Donny L. BERRY, Petitioner-Appellant, v. WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

872 F.3d 329

Donny L. BERRY, Petitioner-Appellant,
v.
WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent-Appellee.

No. 16-4028.

United States Court of Appeals, Sixth Circuit.

April 27, 2017

872 F.3d 331

ORDER

Donny L. Berry, an Ohio prisoner, represented by counsel, filed a notice of appeal from the district court's judgment denying his amended 28 U.S.C. § 2254 habeas corpus petition. The court construes Berry's timely appeal as an application for a certificate of appealability ("COA"). See Fed. R. App. P. 22(b). He also requests permission to proceed in forma

872 F.3d 332

pauperis ("IFP") on appeal and moves for the appointment of counsel.

In November 2011, an Ohio jury found Berry guilty of aggravated murder in violation of Ohio Revised Code § 2903.01(A), involuntary manslaughter in violation of § 2903.04(A), conspiracy to traffic cocaine in violation of § 2923.01(A)(2), and conspiracy to traffic marijuana in violation of § 2923.01(A)(2). See State v. Berry , No. 4-12-03, 2013 WL 2638704 (Ohio Ct. App. June 10, 2013) (unpublished). Berry also pleaded guilty to attempted burglary. Berry was sentenced to an aggregate sentence of thirty years to life in prison. Id . at *2.

The state appellate court affirmed his convictions and sentence, id ., and the Ohio Supreme Court denied leave to appeal. State v. Berry , 137 Ohio St.3d 1410, 998 N.E.2d 510 (2013) (table). Berry filed a post-conviction petition, which the trial court dismissed. The state court of appeals affirmed that decision, and the Ohio Supreme Court declined to accept the appeal for review. While the direct appeal and the post-conviction cases were pending, Berry filed a pro se application to reopen his appeal pursuant to Ohio App. R. 26(B). The state court of appeals denied the motion, and the Ohio Supreme Court declined jurisdiction. State v. Berry , 138 Ohio St.3d 1436, 4 N.E.3d 1052 (2014) (table).

In November 2014, Berry filed his § 2254 habeas petition pro se, presenting eleven grounds for relief. The district court granted Berry's motion for the appointment of counsel. The matter was referred to a magistrate judge, who concluded that seven of the grounds were procedurally defaulted. The magistrate judge also concluded that Berry had failed to present any substantive argument regarding one ground and thus had abandoned it, failed to meet his burden of showing ineffective assistance of counsel to succeed on two of the grounds, and also failed to show that the evidence was insufficient to support his conviction for aggravated murder, which was the basis for the remaining ground.

In his objections to the magistrate judge's report, Berry conceded that six of the grounds presented in his petition were procedurally defaulted. The remaining grounds, as numbered in his petition, were as follows: (1) he was denied effective assistance of appellate counsel when counsel failed to raise certain meritorious issues; (2) the trial court abused its discretion when it denied his motion to suppress incriminating statements that he made to police on April 15, 2011; (4) state agents relied on "illegally obtained incriminating statements against petitioner at trial"; (6) he was denied his right to effective assistance of trial counsel; and (10) the evidence was insufficient to support his conviction for aggravated murder. The district court addressed these claims, and denied the petition.

A COA may issue when an "applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell , 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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

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ruling." Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Berry's convictions arose out of the robbery and murder of Kerry Christopher. In summary, Christopher was shot on February 20, 2011, "between 10:40 and 11 p.m. ... by a ‘contact’ gunshot wound to the left side of his head while he was sitting in the passenger seat of his Cadillac." Berry , 2013 WL 2638704, at *5. "Evidence revealed that [Christopher] was shot in the car, dragged out of it, left in a spot in the driveway long enough for his blood to pool, stripped of his outer clothes, and then placed in the trunk of the Cadillac." Id .

Ground One

Berry argued that his appellate counsel was ineffective for failing to argue that the police violated his Miranda rights when they obtained and used statements that he made to police. Ineffective-assistance claims are reviewed under the two-part test for such claims under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a defendant to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. Id . at 687, 104 S.Ct. 2052. The performance of appellate counsel is properly reviewed under the Strickland standard. See Webb v. Mitchell , 586 F.3d 383, 398 (6th Cir. 2009). Appellate counsel need not raise every non-frivolous claim in order to provide effective assistance. Jalowiec v. Bradshaw , 657 F.3d 293, 321-22 (6th Cir. 2011). The failure to raise an issue on appeal constitutes ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the outcome of the appeal. Howard v. Bouchard , 405 F.3d 459,...