Freeman v. Moore, 121208 FED6, 06-4288

Docket Nº:06-4288
Party Name:ALONZO FREEMAN, Petitioner-Appellant, v. ERNIE MOORE, Respondent-Appellee.
Case Date:December 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ALONZO FREEMAN, Petitioner-Appellant,

v.

ERNIE MOORE, Respondent-Appellee.

No. 06-4288

United States Court of Appeals, Sixth Circuit

December 12, 2008

         NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

         Before: DAUGHTREY and GIBBONS, Circuit Judges; and ZATKOFF, District Judge.[*]

         JULIA SMITH GIBBONS, Circuit Judge.

         Alonzo Freeman appeals the district court's denial of his petition for habeas relief. Freeman claims the district court erred by: (1) denying his constructive amendment/due process claim; and (2) denying his ineffective assistance of appellate counsel claim. For the following reasons, we affirm.

         I.

         The facts and procedural history are not in dispute. On July 7, 1999, Alonzo Freeman, Jr. fired a gun at two police officers, wounding both. A grand jury charged Freeman with two counts of attempted murder with a firearm specification attached to each count.

          At trial in the Common Pleas Court of Montgomery, Ohio, the jury was instructed that if it did not find Freeman guilty of attempted murder, it could still find him guilty of the "lesser included offense(s)" of felonious assault or aggravated assault. Although the trial judge did not indicate which Ohio statutory provision defined "felonious assault," he told jurors that the offense requires "knowingly causing serious physical harm to another." He then clarified the elements of this offense by defining "knowingly," and "serious physical harm." The jury found Freeman not guilty of attempted murder but guilty of two counts of felonious assault1 with a firearm specification for each offense. The verdict form referred to "felonious assault" as "lesser included offense."

         On August 27, 2001, Freeman's appellate counsel submitted a brief to the Ohio Court of Appeals, making a number of arguments related to the trial court's failure to suppress evidence. On November 9, 2001, Freeman filed a motion for leave to file a supplemental pro se brief. Freeman asserted that he sought to supplement his counsel's brief, which failed to argue that the trial court had constructively amended the indictment by instructing the jury on elements not included in the indictment, allowing him to be convicted of a crime (felonious assault) not charged in the indictment. The Ohio Court of Appeals overruled this motion. It explained that because Freeman was represented by counsel, unless Freeman indicated his desire to forego his counsel's representation and to strike his counsel's previously filed brief, the court would not accept Freeman's pro se filings.

          Nevertheless, in December 2001 Freeman filed two supplemental pro se briefs. In both, Freeman argued that the indictment had been constructively amended because felonious assault is not a lesser included offense of attempted murder. Specifically, he argued that because felonious assault committed against a peace officer is a first degree offense, it does not satisfy the requirement that a "lesser included offense" carry a lesser penalty. See State v. Deem, 533 N.E.2d 294, 298 (Ohio 1988).2 Therefore, Freeman argued that he was denied his due process rights under the Fifth and Fourteenth Amendments and his right to fair notice under the Sixth Amendment. But neither brief indicated that Freeman sought to forego counsel or strike his counsel's brief; therefore the Ohio Court of Appeals struck both supplemental briefs from the record. On February 15, 2002, the Ohio Court of Appeals affirmed the judgment of the trial court, rejecting the suppression arguments submitted by Freeman's counsel.

         Prior to the Ohio Court of Appeals' decision, on January 9, 2002, the Ohio Supreme Court decided State v. Barnes, 759 N.E.2d 1240 (Ohio 2002). In Barnes, the court concluded that felonious assault with a deadly weapon, Ohio Revised Code § 2903.11(A)(2), is not a lesser included offense of attempted murder. The court reasoned that because § 2903.11(A)(2) requires the use of a deadly weapon while attempted murder under §§ 2903.02(A) and 2923.02(A) does not, the greater offense (attempted murder) could be committed without committing the lesser offense (felonious assault with a deadly weapon) based on their statutory definitions. But, reviewing Barnes's claim for plain error—due to his failure to object to the felonious assault instruction at trial—the court concluded that given that state appellate courts had been divided on the issue, the trial court's "felonious assault with a deadly weapon" jury instruction was not plain or obvious at time it was committed. Id. at 1247-48.

         On February 21, 2002, pursuant to Ohio Rule of Appellate Procedure 26(B), Freeman filed an application to re-open his direct appeal due to the ineffective assistance of his appellate counsel. This application cut and pasted Freeman's previous constructive amendment / due process arguments, and asserted that Freeman's trial and appellate counsel were ineffective for not raising these issues at trial and on direct appeal. Freeman did not make any argument based on Barnes.

         The Ohio Court of Appeals denied Freeman's application. It essentially concluded that: (1) Freeman's constructive amendment / due process argument was without merit because the jury was not instructed on felonious assault of a police officer and therefore Freeman's appellate counsel was not ineffective for not raising this argument; and (2) because Freeman's trial counsel acquiesced in the felonious assault jury instruction for a strategic purpose—to obtain an additional jury instruction on aggravated assault—Freeman's appellate counsel was not ineffective for not raising an ineffective assistance of trial counsel claim.

         Freeman appealed this decision.3 The Ohio Supreme Court dismissed the appeal, concluding that it did not involve any substantial constitutional question.

          Returning to his direct appeal, on July 24, 2002, Freeman filed a pro se motion for delayed appeal of the Ohio Court of Appeals' decision rejecting Freeman's suppression arguments (which had originally been made through counsel). The Ohio Supreme Court denied the motion, refusing to exercise its discretion to review Freeman's untimely appeal.

         Proceeding pro se, Freeman petitioned for habeas relief pursuant to 28 U.S.C. § 2254. The magistrate judge's report and recommendation construed Freeman's petition as alleging three grounds for relief: (1) that he was denied due process of law when the trial court constructively amended the indictment by instructing the jury on felonious assault; (2) his appellate counsel was ineffective by (a) failing to raise this constitutional issue and (b) failing to assert the ineffectiveness of his trial counsel for not raising the constructive amendment/jury instruction issue; and (3) a Blakely claim that his sentence was impermissibly increased on the basis of judicially determined facts. Adopting the magistrate judge's report, the district court determined that Freeman's constructive amendment/due process claim was procedurally defaulted and that Freeman was not entitled to habeas relief on his second and third claims.

         On appeal, Freeman argues that the district court erred in rejecting his...

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