REPORT AND RECOMMENDATION Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on that petition, respondent's return of writ, and petitioner's reply. For the reasons that follow, the Magistrate Judge
RECOMMENDS that petitioner's claims be DISMISSED.
FACTS AND PROCEDURAL HISTORY The Ohio Twelfth District Court of Appeals summarized the facts and procedural history of this case as follows:
{¶ 2} In the early morning hours of December 23, 2007, Brakeall and two of his friends went to the Waffle House located off State Route 35 in Fayette County, Ohio. When they tried to order some food, a waitress told them she could not serve them because the cash register was broken. Nevertheless, Brakeall kept insisting on being served, even offering to pay $20 to the waitress and to allow her to keep the change if she would give him and his friends some food.
{¶ 3} Upon seeing the confrontation, Ross Sykes, who was a regular customer of the Waffle House, came to the waitress' defense, telling Brakeall and his friends they should wait to be served, just as he had. Brakeall and Sykes then exchanged words, culminating in Brakeallchallenging Sykes to step outside. Sykes followed Brakeall outside to the parking lot. Sykes dodged Brakeall's first punch, but Brakeall's second punch landed on Sykes' mouth, causing him to fall backward and strike his head on the pavement, thereby knocking him unconscious. Sykes later died from his injuries.
{¶ 4} In February 2008, Brakeall was indicted for felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree ("count one"), and murder in violation of R.C. 2903.02(B), a felony of the first degree ("count two"). In June 2008, Brakeall was tried by jury, which convicted him as charged. The trial court sentenced Brakeall to an indefinite prison term of 15 years to life.
State v. Brakeall, 2009 WL 2139543 (12th Dist. 2009); Exhibit 9 to Return of Writ.
Represented by new counsel, petitioner filed a notice of appeal on June 23, 2008. Exhibit 7 to Return of Writ. He raised the following assignments of error on appeal:
1. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR A NEW TRIAL
2. THE TRIAL COURT VIOLATED APPELLANT'S STATE CONSTITUTIONAL RIGHT TO A GRAND JURY INDICTMENT AND STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS WHERE APPELLANT'S INDICTMENT FAILED TO INCLUDE AN ESSENTIAL ELEMENT FO [sic] THE OFFENSE CHARGED.
3. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION IN ARTICLE I, SECTION X OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY'S VERDICT WAS AGAINST THE MANIFES [sic] WEIGHT OF THE EVIDENCE.
Id.
On July 20, 2009, the appellate court affirmed the judgment of the trial court. Exhibit 8 to Return of Writ. Petitioner, proceeding pro se, filed a timely notice of appealto the Ohio Supreme Court setting forth the following propositions of law:
I. The Trial Court erred by denying Appellant's Motion for New Trial.
II. The Trial Court violated Appellant's State Constitutional Right to a Grand Jury indictment and State and Federal Constitutional Rights to Due Process Where Appellant's Indictment failed to include an essential element of the offense charged.
III. The Trial Court violated Appellant's right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Constitution by entering verdicts of guilty, as the Jury's verdict was against the manifest weight of the evidence.
Exhibit 11 to Return of Writ. The Ohio Supreme Court denied leave to appeal and dismissed petitioner's case as not involving any substantial constitutional question. Exhibit 12 to Return of Writ.
On October 19, 2009, petitioner filed an application for reopening of his direct appeal pursuant to Appellate Rule 26(B). Exhibit 13 to Return of Writ. In his application, petitioner asserted that his appellate counsel was ineffective because of the failure to raise the following issues on appeal:
1. Assault is a lesser-included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. The trial court erred when it failed to instruct the jury on assault and involuntary manslaughter when the evidence presented at trial supported the necessary elements of those lesser-included offenses.
2. Assault is a lesser-included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. Mr. Brakeall's trial counsel provided ineffective assistance when he failed to request lesser-included instructions on assault and involuntary manslaughter because the evidence presented at trial supported the necessary elements of those lesser-included offenses and would have likely changed the outcome.
The state appellate court denied petitioner's 26(B) application on January 22, 2010.
Exhibit 15 to Return of Writ. On March 4, 2010, petitioner, proceeding pro se, filed a timely appeal to the Ohio Supreme Court. Exhibit 16 to Return of Writ. He raised the following propositions of law:
I. Assault is a lesser-included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. The trial court erred when it failed to instruct the jury on assault and involuntary manslaughter when the evidence presented at trial supported the necessary elements of those lesser-included offenses.
II. Assault is a lesser included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. Mr. Brakeall's trial counsel provided ineffective assistance when he failed to request lesser included instructions on assault and involuntary manslaughter because the evidence presented at trial supported the necessary elements of those lesser-included offenses and would have likely changed the outcome.
On May 26, 2010, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Exhibit 19 to Return of Writ.
On August 17, 2010, petitioner, still proceeding pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following ground raised on the face of the petition, set forth verbatim:
Ground One: The Trial Court erred by denying Petitioners' Motion for a New Trial.
Ground Two: The Trial Court violated Petitioner's State Constitutional Right to a Grand Jury Indictment and State and Federal ConstitutionalRights to Due Process Where Petitioner's Indictment failed to include an essential element of the offense charged.
Ground Three: The Trial Court violated Petitioner's right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution by entering verdicts of guilty, as the Jury's verdict was against the manifest weight of the evidence.
Ground Four: Assault is a lesser-included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. The trial court erred when it failed to instruct the jury on assault and involuntary manslaughter when evidence presented at trial supported the necessary elements of those lesser-included offenses.
Ground Five: Assault is a lesser-included offense of felonious assault, and involuntary manslaughter is a lesser-included offense of felony murder. Mr. Brakeall's trial counsel provided ineffective assistance when he failed to request lesser included instructions on assault and involuntary manslaughter because the evidence at trial supported the necessary elements of those lesser-included offenses and would have likely changed the outcome.
It is the position of the respondent that petitioner's claims are not cognizable in habeas corpus or fail on their merits.
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. 104132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v. Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .
When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
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.
As the Supreme Court has explained, "an...
