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 1, Respondent's Return of Writ, ECF 15, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History Petitioner was convicted in the Franklin County Court of Common Pleas on two counts of kidnapping and one count of felonious assault. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:
The prosecution presented the following at trial. In the fall of 2011, appellant met both Laurika Starks and Andrea Bostic. The women were neighbors who lived in adjoining units in an apartment complex. Appellant and Starks began to have a sexual relationship around November 2011. Starks ended the relationship in January 2012 because appellant had issues within himself and he was being argumentative. After the relationship ended with Starks, appellant began to have a sexual relationship with Bostic.
On February 12, 2012, Bostic asked appellant to leave her apartment and ended the relationship saying that she did not want him in her house on account of her kids. Starks then let appellant into her apartment around noon on February 12, because they werestill friends and cordial with one another. Appellant ignored Starks for most of the day. From about noon until midnight he was focused on a laptop computer and talking to family. He also communicated with various people on Facebook during this time. Starks said it was clear he was upset.
We cannot tell from the evidentiary record before us whether or not Starks ever asked appellant to leave before he put a gun in her face. In her testimony at trial, Starks jumped right to the point where appellant is pointing a gun at her face without any explanation how the situation escalated. She stated she was terrified and could not leave because of the gun. Appellant initially pulled the gun around midnight. Starks then tried to talk him out of her apartment to get him to leave.
Starks said that appellant kept playing with the ammunition clip by taking it in and out of the gun. She testified she was able to take the clip when he put it down and hide it in the couch. Appellant apparently forced Starks to pray multiple times while pointing the gun at her, and asked her whether she loved Jesus and if she loved Tupac.
When Starks' 10-year-old daughter came partially down the stairs of the apartment around 2:00 or 2:30 a.m., on February 13, appellant decided to leave, but he took the gun and the clip with him. Starks locked the door and tried to act as if the incident never happened. Starks stated she did not think appellant would shoot her and she did not think that he would shoot Bostic so she was not worried when he finally left.
Starks testified she did not hear any arguing between appellant and Bostic through the walls of the adjoining apartment on the morning of February 13, but thought she could hear appellant arguing with himself through the walls on other occasions. Starks testified she next saw appellant at about 8:00 a.m. on February 13, when appellant was yelling on a cell phone outside.
Starks testified the topic of her being detained did not come up with the police during her initial questioning at the time of appellant's arrest, but she did affirm to police that Bostic was detained by appellant. Starks stated she just did not want to get involved. Starks only told the police her entire story about being detained with a gun the following week.
Bostic testified that she was the only one home in the early morning of February 13, 2012. When Bostic first opened the doorfor appellant around 2:30 a.m., she stated he said "I just scared the-scared the hell out of your neighbor." (Tr. Vol. I, at 142.) When asked why, appellant responded "I just put the gun to her head." (Tr. Vol. I, at 143.) Bostic testified that appellant fired a warning shot, to see if anybody would come. Starks however never testified to hearing this warning shot which was supposed to have happened fairly soon after appellant arrived at Bostic's apartment after he just left Starks.
Bostic's testimony is clear that appellant put the gun to her chin, made her pray, repent, and state bible verses while he called her dumb bitch and other names. Bostic was shot in the ankle when she was sitting on the couch with her face covered by her hands. Appellant was standing a little distance away from her with the gun pointed at her when he shot her. Once Bostic was shot, she covered her legs with a blanket because she did not believe appellant was aware that she was injured. For two hours after Bostic was shot and covered with the blanket, appellant was torturing her, hitting her, and making her state bible verses.
When appellant discovered that Bostic had been shot, he said that he did not mean to shoot her, but continued to ramble and ask bible questions stating "This time you better answer this or else I'm gonna blow your damn head off." (Tr. Vol. I, at 166.) After appellant saw that Bostic was hurt, he let her go to the bathroom and then tried to put a towel around her ankle.
Bostic was able to get away at one point and went to her child's bedroom, intending to jump out the window. She saw her neighbor TJ going to work. TJ saw her and asked what was wrong. Ms. Bostic either said help me or he shot me. Appellant returned with the gun at that moment and banged on the door demanding to be let in.
When appellant saw her at the window, he asked her if she was going to jump. Bostic replied that she thought she saw her kids but it was the neighbor TJ. Apparently, at this point, appellant went to the window and said something to TJ after putting the gun down on the child's bed.
As appellant was having a conversation with TJ, Bostic hid the gun under some blankets on the bed and went downstairs and then outside. TJ let her go to his house and stated he would wait outside for appellant. Once Bostic locked TJ's front door behind her, she called her children's father, Frasier, who was already late in bringing the kids home to Bostic's apartment. Frasier ended upcalling the police who arrived within a few minutes. At trial, Bostic denied stating to medical personnel that the shooting was an accident.
Appellant sent Ms. Bostic letters after the incident. On February 17, 2012, appellant wrote that the devil took his mind that there were no drugs involved. He also wrote that he was sorry.
On March 29, appellant asked Bostic to forgive him and marry him. He promised to get help. On March 30, 2012, appellant wrote that he did not mean to shoot Bostic and that he was wrong for his actions.
As indicated earlier, appellant was indicted on two counts of kidnapping in violation of R.C. 2905.01 and one count of felonious assault in violation of R.C. 2903.11. On January 29, 2013, a three-day jury trial commenced in which appellant was convicted on all counts. Appellant timely filed a notice of appeal on February 5, 2013.
State v. Brown, No. 13AP-164, 2013 WL 6506708, at *1-3 (Ohio 10th App. Dist. Dec. 10, 2013). On direct appeal, Petitioner alleged that he had been denied a fair trial because of prosecutorial misconduct, that he had been denied the effective assistance of counsel, that the evidence was constitutionally insufficient to sustain his convictions, and that his convictions were against the manifest weight of the evidence. See id. On December 10, 2013, the appellate court affirmed the judgment of the trial court. Id. In his appeal to the Ohio Supreme Court, Petitioner presented only the prosecutorial misconduct claim. ECF 15-9, PageID# 265. On April 23, 2014, the Ohio Supreme Court declined jurisdiction to hear the appeal. State v. Brown, 138 Ohio St.3d 1471 (2014).
On July 11, 2014, Petitioner filed this action, asserting the same claims as had been presented in his first appeal to the state court of appeals. Respondent contends that the claims are procedurally defaulted or without merit.
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 must present those claims to the state courts before presenting them in a federal habeas corpus action. 28 U.S.C. § 2254(b), (c). This "requires the petitioner to present 'the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). Moreover, a constitutional claim for relief must be presented to the state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). If the petitioner fails to fairly present his claims to the state courts, but still has an avenue open to him by which he may present his claims, then his petition for a writ of habeas corpus is subject to dismissal for failure to exhaust state court remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). If the petitioner has failed to exhaust his claims but his claims are now barred from presentation to the state courts, "there is a procedural default for purposes of federal habeas corpus. . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim has been waived by the petitioner's failure to...
