Guy v. Warden, Ross Corr. Inst.

• Decision Date: 25 October 2021
• Docket Number: 2:20-cv-5459
• Parties: JAMES GUY, Petitioner, v. WARDEN, Ross Correctional Institution Defendant.
• Court: U.S. District Court — Southern District of Ohio

JAMES GUY, Petitioner, v. WARDEN, Ross Correctional Institution Defendant.

No. 2:20-cv-5459

United States District Court, S.D. Ohio, Eastern Division

October 25, 2021

Sarah D. Morrison, District Judge

REPORT AND RECOMMENDATIONS

Michael R. Merz United States Magistrate Judge

This habeas corpus action, brought pro se by Petitioner James Guy under 28 U.S.C. § 2254, is before the Court for decision on the Amended Petition (ECF No. 17), the State Court Record (ECF No. 18), the Return of Writ (ECF No. 19) and Petitioner's Traverse (ECF No. 27).

Litigation History

On October 27, 2014, the Franklin County Grand Jury indicted Guy on one count of Kidnapping in violation of Ohio Revised Code § 2905.01 with a firearm specification (Count 1); two counts of Trafficking in Heroin in violation of Ohio Revised Code § 2925.03 (committed in the vicinity of a school) and with two firearm specifications (Counts 2 and 3); and one count of Having Weapons While Under Disability in violation of Ohio Revised Code § 2923.13 (Count 6). (Indictment No. 14CR5721, State Court Record, ECF No. 18, Exhibit 1). The first trial ended in a hung jury.

Guy was reindicted on February 12, 2016, on one count of Kidnapping in violation of Ohio Revised Code § R.C. 2905.01 with two firearm specifications (Count 2); two counts of Trafficking in Heroin in violation of Ohio Revised Code § 2925.03; one committed in the vicinity of a school one committed in the vicinity of a juvenile or school, one with one firearm specification and one with two firearm specifications (Counts 5 and 8); one count of Possession of Heroin in violation of Ohio Revised Code § R.C. 2925.11 with one firearm specification (Count 11); and two counts of Having Weapons While Under Disability in violation of Ohio Revised Code § 2923.13 (Counts 17 and 18). (Indictment, No. 16CR772, State Court Record, ECF No. 18, Exhibit 8).

Trial commenced on February 21, 2017, with co-defendant (and brother) Isaiah Guy aka “Zay.” Having waived counsel, represented himself and attorney Mark Collins served as an advisor to him. On March 2, 2017, the jury found Guy guilty as charged on Counts 2, 3, 4, and 5. (Verdict Forms, State Court Record, ECF No. 18, Ex. 16). Having denied Petitioner's motions for judgment of acquittal and for new trial, the court sentenced him to an aggregate term of twenty years imprisonment. (Sentencing Entry, State Court Record, ECF No. 18, Ex. 21).

With appointed counsel, Guy appealed to the Ohio Tenth District Court of Appeals which affirmed the conviction. State v. Guy, 2018-Ohio-4836 (Ohio App. 10^th Dist. Dec. 6, 2018), appellate jurisdiction declined, 155 Ohio St.3d 1407 (2019), cert. den. sub. nom. Guy v. Ohio, 140 S.Ct. 169 (2019).

Asserting ineffective assistance of appellate counsel, Guy filed an Application to Reopen his direct appeal under Ohio R. App. P. 26(B) on March 4, 2019 (State Court Record, ECF No. 18, Ex. 35). The Tenth District denied the Application. Id. at Ex. 38. The Supreme Court of Ohio declined to exercise appellate jurisdiction. State v. Guy, 156 Ohio St.3d 1497 (21019).

Guy filed his original petition for Writ of Habeas Corpus in October 2020. With permission from Magistrate Judge Vascura, Guy filed an Amended Petition on April 2, 2021, pleading the following Grounds for Relief:

Ground A: Petitioner is actually innocent of the crimes for which he was convicted and the evidence was insufficient to support the conviction. PageID 185

Ground B: The trial court erred in allowing ineffective assistance of counsel when counsel professes a disbelief in their client's innocence. PageID 187

Ground C: A verdict cannot be sustained when there were evidentiary and factual inaccuracies with the identification of the defendant. PageID 189.

Ground D: A trial court errs in allowing a juror to remain when that juror is biased and an objection is made to their remaining. PageID 193.

Ground E: a trial court errs in allowing hearsay when the true evidence is kept from the court and the defense under the guise of technical malfunction. PageID 195

Ground F: A trial court errs in allowing the introduction of evidence pertaining to the defendant's religion when the probative value is less than the prejudicial effect. PageID 196

Ground G: A trial court errs in allowing jail calls and identification of the speaker contrary to the rules of evidence. PageID 197

Ground H: The rule 29 motion for acquittal was improperly denied and thus the defendant was not afforded the proper directed verdict. PageID 200

Ground I: There needs to be a resentencing when the law and the factors of felony sentencing are inconsistent with the sentence imposed. PageID 204 Ground J: The motion for a new trial should have been granted. PageID 211

Ground K: Ineffective assistance of counsel: failure to present -effective suppression motion. PageID 213

Ground K(a): Ineffective assistance of appellate counsel.

Ground L: Ineffective assistance of appellate counsel: failure to prsent [sic] the above claims or to effectively present them. PageID 222.

Although this is the way Petitioner presented his claims in the Amended Petition, in his Traverse he has voluntarily abandoned all claims that he does not argue in that pleading (Traverse, ECF No. 27, PageID 2616). He also has re-numbered the claims on which he continues to seek relief. This Report will use the numbering in the Traverse. Petitioner also argues the claims out of numerical order, but the Report will analyze them in the order in which they appear in the Petition.

Analysis

Grounds A and H: Actual Innocence and Insufficiency of the Evidence (Argued in the Traverse as Ground Eight (ECF No. 27, PageID 2625, et seq.)

In Ground A, Petitioner claims he is actually innocent; in Grounds A and H he asserts he was convicted on insufficient evidence. The actual innocence claim is abandoned in the Traverse.

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 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th 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 fact could 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 v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting Jackson). This standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). 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. A sufficiency challenge should be assessed against the elements of the crime, not against the elements set forth in an erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

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 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 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 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger...