Dillingham v. Warden

• Decision Date: 06 June 2014
• Docket Number: Case No. 1:13-cv-468
• Parties: CHARLES DILLINGHAM, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CHARLES DILLINGHAM, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:13-cv-468

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

June 6, 2014

Chief Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits, considering the Petition (Doc. No. 8), the Return of Writ ("Return," Doc. No. 12), and the Traverse (Doc. No. 18). On May 29, 2014, Petitioner filed a Supplemental Traverse (Doc. No. 31) without leave of Court which will only be considered to the extent it reiterates or emphasizes arguments already made.

Petitioner brought this action pro se under 28 U.S.C. § 2254 pleading four grounds for relief:

Ground One: The trial court abused its discretion by not granting an acquittal when the evidence is insufficient to prove a guilty conviction beyond a reasonable doubt in violation of Petitioner's Fifth and Fourteenth Amendments to the United States Constitution.

Ground Two: The court abused its discretion when it did not merge allied offenses of similar import for felonious assault and weapons under disability in violation of Petitioner's Fifth and Fourteenth Amendments to the United States Constitution.

Ground Three: The court abused its discretion by denying the motion for new trial based on the grounds of newly discovered evidence in violation of the Fifth, Sixth, and Fourteenth Amendment[s] to the United States Constitution.

Ground Four: Trial counsel provided ineffective assistance of counsel by failing to investigate witnesses and information provided by appellant.

(Petition, Doc. No. 8.)

Procedural History

Dillingham was indicted in Butler County on four counts of felonious assault with firearm specifications and one count of having weapons under disability, all arising from the shooting of two people at the Grub Pub in Hamilton, Ohio, on October 15, 2010. He was convicted at trial and sentenced to fourteen years imprisonment. He appealed to the Twelfth District Court of Appeals which affirmed his conviction. State v. Dillingham, 2011-Ohio-6348, 2011 Ohio App. LEXIS 5210 (12^th Dist. Dec. 12, 2011)("Dillingham I"). The Ohio Supreme Court declined to exercise jurisdiction over an appeal. State v. Dillingham, 132 Ohio St. 3d 1461 (2012).

Dillingham filed an application to reopen his direct appeal under Ohio R. App. P. 26(B), claiming his appellate attorney was ineffective for failing to allege ineffective assistance by trial counsel in that attorney's not calling Kimberly Roberson as a witness. The Twelfth District denied the application. State v. Dillingham, Case No. CA2011-03-043 (12^th Dist. May 1, 2012)(unreported; copy at Return, Doc. No. 12-1, Ex. 19, PageID 272).

Dillingham also filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 which the trial court denied. Two days after the denial, he filed a motion for leave tofile a delayed motion for new trial which the trial court also denied. Dillingham appealed both of those denials, but they were affirmed. State v. Dillingham, 2012-Ohio-5841, 2012 Ohio App. LEXIS 5018 (12^th Dist. Dec. 10, 2012)("Dillingham II"). The Ohio Supreme Court declined to exercise jurisdiction over an appeal (Return, Doc. No. 12-1, Ex. 41, PageID 389).

Dillingham asked the Twelfth District to reconsider its opinion on the new trial appeal. It did so, but eventually affirmed the denial. State v. Dillingham, 2013-Ohio-2050, 2013 Ohio App. LEXIS 1951 (12^th Dist. May 20, 2013)("Dillingham III"). The Supreme Court of Ohio again declined to consider an appeal. State v. Dillingham, 136 Ohio St. 3d 1495 (2013).

Dillingham then timely filed the instant Petition.

Analysis

Ground One: Insufficient Evidence

In his First Ground for Relief, Dillingham claims there was insufficient evidence to convict him.

An allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6^th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6^th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6^th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6^th Cir. 2009). In a sufficiency of the evidence habeascorpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6^th Cir. 2008).

We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, "it is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam). And second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).

Dillingham raised this claim on direct appeal as his first assignment of error and the Twelfth District decided it as follows (along with the manifest weight of the evidence issue which does not present a federal constitutional question):

[*P5] Assignment of Error No. 1:

[*P6] "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN OVERRULING HIS MOTIONS FOR ACQUITTAL AND IN ENTERING GUILTY VERDICTS CONTRARY TO APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

[*P7] Assignment of Error No. 2:

[*P8] "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ENTERING GUILTY VERDICTS WHERE SAID VERDICTS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."

[*P9] In his first assignment of error, appellant argues that the trial court erred by denying his Crim.R. 29(C) motion for acquittal because the state provided insufficient evidence to support his convictions. Appellant also argues in his second assignment of error that his convictions were against the manifest weight of the evidence. Specifically, appellant claims that the state did not prove beyond a reasonable doubt that he was the shooter because video surveillance tapes showing the shooting were unclear and none of the state's witnesses were able to provide an adequate identification of appellant.

[*P10] As this court has previously stated, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency." State v. Wilson, Warren App. No. CA2006-01-007, 2007 Ohio 2298, ¶35; State v. Urbin, 148 Ohio App.3d 293, 2002 Ohio 3410, ¶31, 772 N.E.2d 1239. In turn, while a review of the

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