REPORT AND RECOMMENDATION Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, ECF No. 1, Respondent's Return of Writ, ECF No. 7, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:
Appellant Black was indicted by the Ross County grand jury for one count of Involuntary Manslaughter, in violation of R.C. 2903.04; one count of Felonious Assault, in violation of R.C. 2903.11; and one count of Failure to Stop After a Non-Public Road Accident, in violation of R.C. 4549.021. After a two-day jury trial, appellant was found guilty of all counts.
By Judgment Entry of Sentence, the trial court found that the offenses of Involuntary Manslaughter and Felonious Assault were crimes of similar import, and thus should be merged for sentencing purposes. The trial court sentenced appellant to nine years in prison for Involuntary Manslaughter, and three years in prison for Failure to Stop After a Non-Public Road Accident. The sentences for imprisonment were ordered to run consecutive to each other, for a cumulative sentence of twelve years.
Appellant's conviction and sentence arise from the tragic events that occurred in the early morning hours of January 13, 2011, at the Valley Bar in Bainbridge, Ohio.
On the night of January 12, 2011, appellant and his acquaintance Tim Keaton arrived at the Valley Bar. Also present among the patrons of the Valley Bar that evening was Bob Nibert. Mr. Nibert was accompanied by his friend Billy Self, his cousin Amanda McElwee, and her friend Jennifer.
During the course of the evening, appellant struck up a conversation with Jennifer, bought her a drink, and asked her out on a date.
In the early morning hours of January 13, 2011, the bartender, Melissa Cox, announced last call indicating that the bar was closing. At that time, appellant and Mr. Keaton exited the bar and retired to appellant's Chevrolet Silverado truck. Meanwhile, Mr. Nibert and Mr. Self stayed inside the bar and assisted bartender Cox with her closing duties. Instead of leaving the premises, however, appellant asked Mr. Keaton if he would go back into the bar to summons Jennifer, so that appellant could give her his telephone number.
From here, the parties' versions of the facts differ.
According to the state's witnesses, after being summoned by Mr. Keaton, Jennifer went outside with him to the parking lot where appellant's truck was parked. A short time later, Mr. Self walked out to the parking lot to start his car and observed appellant talking to Jennifer as she stood beside his truck. When Mr. Self was returning to the bar, Jennifer asked him if he would escort her back into the bar.
As Mr. Self escorted Jennifer back to the bar, an argument ensued between Mr. Self and Mr. Keaton. Mr. Keaton then jumped out of appellant's truck, came after Mr. Self, and stabbed him in the abdomen with a screwdriver. Mr. Self was able to fight back and subdue Mr. Keaton eventually forcing Mr. Keaton back into the passenger seat of appellant's truck. Meanwhile, during the commotion of the fight, bartender Cox, Mr. Nibert, and possibly others came out to intervene.
As the individuals returned to the bar to tend to Mr. Self's wound, Mr. Nibert stayed outside, apparently telling appellant and Mr. Keaton that they needed to leave the premises. Appellant then allegedly backed up his truck several feet, turned his truck toward Mr. Nibert, accelerated quickly, and intentionally struck Mr. Nibert. The force of the impact severed Mr. Nibert's leg as appellant's truck crashed through a metal guardrail, wooden privacy fence, and into the bar's outdoor beer garden.
After striking Mr. Nibert, appellant backed his truck up and left the Valley Bar. Appellant was later apprehended by sheriff's deputies on State Route 41 in Pike County, Ohio.
After spending nearly three months in the hospital and undergoing numerous surgical procedures, including the amputation of his right leg, Mr. Nibert died on March 28, 2011. The coroner's report lists "[c]omplications of blunt force injuries of lower leg" as the immediate cause of death.
Appellant's version of the facts is significantly different than the prosecution's case. According to appellant, when Mr. Keaton exited the bar (after having re-entered to summons Jennifer) he was being attacked by several individuals. Appellant testified that the individuals attempted to prevent Mr. Keaton from entering the truck and engaged in a tug-of-war with the truck door handle. Eventually, Mr. Keaton was able to enter the truck. The individuals allegedly threw a beer bottle into the truck during the struggle.
Appellant further testified that he felt he was in danger, that the parking lot was a sheet of ice, and that he was merely trying to escape when he exited the parking lot. He said that en route to his home, he briefly exited the truck and noticed a small dent on the front fender; he immediately thought he may have hit the fence at the Valley Bar. He testified that he then returned to Bainbridge, but before reaching the bar, Mr. Keaton asked that he take him home. Appellant then returned Mr. Keaton to his residence and was allegedly on his way back to the bar when he was stopped by the sheriff. Appellant denies hitting Mr. Nibert, the metal guardrail, or the wooden privacy fence. He testified that when he was backing up to leave the Valley Bar he did drive over what he thought to be a pile of snow, pushed aside from plowing the parking area.
State v. Black, No. 12CA3327, 2013 WL 2295697, at *1-3 (Ohio App. 4th Dist. May 22, 2013)(footnotes omitted). Petitioner asserted the following claims on direct appeal:
First Assignment of Error:
THE COURT ERRED IN PERMITTING IMPROPER QUESTIONING DURING VOIR DIRE.
Second Assignment of Error:
APPELLANT'S CONVICTION MUST BE REVERSED DUE TO PROSECUTORIAL MISCONDUCT DURING VOIR DIRE.
Third Assignment of Error:
THE APPELLLANT WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVENESS OF COUNSEL.
Fourth Assignment of Error:
THE TRIAL COURT ERRED IN FAILING TO GIVE AN INSTRUCTION ON SELF DEFENSE.
Fifth Assignment of Error:
THE TRIAL COURT SENTENCED THE APPELLANT TO CONSECUTIVE TERMS BASED UPON UNDUE CONSIDERATION OF ONLY ONE SENTENCING FACTOR.
Sixth Assignment of Error:
THE TRIAL COURT SENTENCED THE APPELLANT TO CONSECUTIVE TERMS BASED UPON IMPROPER AND UNCONSTITUTIONAL CRITERIA.
Seventh Assignment of Error:
CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF A FAIR TRIAL.
Id. at *1. On May 22, 2013, the appellate court affirmed the jury's verdict, but reversed the trial court's Judgment Entry of Sentence, and remanded the case to the trial court. Id. On November 6, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Black, 136 Ohio St.3d 1558 (Ohio 2013). On April 14, 2014, the state court re-sentenced Petitioner toan aggregate term of twelve years' incarceration plus five years' supervised release. Petitioner did not file an appeal.1
On November 4, 2014, Petitioner filed this action, alleging that he was denied a fair trial due to prosecutorial misconduct during voir dire (claim one) and that he was denied the effective assistance of counsel based on his attorney's failure to object to an improper voir dire (claim two). Respondent contends that these claims are either waived or fail to provide a basis for relief.
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 between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, his petition for federal habeas corpus relief is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether procedural default is a bar to a habeas petitioner's claims. 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). Specifically, the United States Court of Appeals for the Sixth Circuit requires the district courts to engage in the following inquiry:
First, the court must determine that there is a state procedural rule 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 state procedural 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...
