JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson
ORDER AND REPORT AND RECOMMENDATION Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ (ECF Nos. 6, 9), Petitioner's Traverse (ECF No. 12), Respondent's Reply to Petitioner's Traverse (ECF No. 13), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Respondent's Motion to file additional citation (ECF No. 14) is GRANTED.
I. FACTS AND PROCEDURAL HISTORY The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
On November 20, 2012, a Franklin County Grand Jury indicted appellant on counts of murder in violation of R.C. 2903.02, carrying a concealed weapon in violation of R.C. 2923.12, and having a weapon while under disability in violation of R.C. 2923.13. The charges arose out of the shooting death of Jaron Kirkling. Appellant entered a not guilty plea to the charges and proceeded to a jury trial.
In September 2012, appellant sold his Chevy Suburban to Kirkling. Appellant told Kirkling that he could keep the license plates on the car until Kirkling could transfer the title to his name. Kirkling, however, had some difficulty obtaining title in his name. In October 2012, appellant received a speeding ticket in the mail arising from Kirkling's driving of the Suburban. Appellant received it because the car was still in his name. Appellant contacted Kirkling to resolve the matter. Kirkling told him that he would pay for the ticket and that he would transfer the title to his name as soon as he could. Appellant was becoming annoyed that it was taking Kirkling so long to transfer the title and repeatedly talked to him on the phone about doing it.
On November 11, 2012, Kirkling and his cousin, Brandon Mackey, who had arranged the sale of the car, were sitting in the Suburban in Mackey's driveway. Appellant and his girlfriend, Shelby Abrams, drove up in their car and parked behind the Suburban. Appellant got out of the car, walked to the front of the Suburban, and took the front license plate off the car. When he walked to the back of the Suburban, Kirkling got out of the car and asked him what he was doing. Appellant told Kirkling that it had taken him too long to transfer the title so he was going to take the license plates. Kirkling did not want him to take the license plates and they began yelling at each other. Mackey tried to calm them down and asked his girlfriend, Melody Gaston, to come out of the house to tell the two men to leave the property. At this time, Abrams got out of appellant's car to take the license plate off the back of the Suburban. Kirkling walked around to that part of the car and pushed, moved, or somehow came into contact with Abrams to stop her from taking the plate. What happened next was the central dispute at trial.
Appellant testified that he was angry when he saw Kirkling push Abrams and started yelling at him. According to appellant, he and Kirkling continued to yell at one another until Kirkling pulled out a gun from his waistband and aimed it at him, which scared appellant. Within a second or two of seeing Kirkling's gun, appellant pulled out his own gun, stepped back and started shooting. Appellant shot four times at Kirkling who then fell to the ground. Kirkling did not fire his gun. Appellant fired two more shots and then took the gun from Kirkling's hands. He and Abrams then drove away.
Abrams supported appellant's version of events. She testified that Kirkling deliberately knocked her to the ground as she attempted to remove the license plate. Appellant came to her aide and yelled at Kirkling not to touch her. She then saw Kirkling pull out a gun. She ran to the safety of the car. She heard four initial shots and then four more shots a few seconds later. She did not see who firedthe shots. (Tr. 491-92.) Appellant and Abrams then drove away. In the car, Abrams saw that appellant had two guns.
Mackey and Gaston described the shooting differently. According to Mackey and Gaston, Kirkling did not pull out a gun when the incident occurred. Rather, appellant shot Kirkling because he was upset with him after he pushed Abrams. Nor did Gaston see appellant take a gun from Kirkling.
More than a year after the shooting, and only days after appellant's arrest, his former lawyer contacted the police and told them that he had two guns that had something to do with appellant's case. One was a Smith & Wesson M & P .40 caliber handgun and the other was a .357 caliber Glock Model 31 handgun. (Tr. 262.) Appellant admitted to shooting Kirkling with the .357 Glock during the confrontation. He also testified that he took the Smith & Wesson .40 caliber handgun from Kirkling that day. He had separately wrapped the two guns in plastic bags and delivered them to his lawyer. Police did not find any guns at the scene of the murder but found several .357 caliber bullet casings. There were no .40 caliber bullet casings.
DNA found on the barrel of the Smith & Wesson handgun was compared to DNA samples of appellant and Kirkling. That testing found a mixture of DNA from at least two individuals. Kirkling could not be excluded as the major contributor to that mixture of DNA. This DNA evidence arguably supported appellant's claim that Kirkling had a gun at the time of the shooting. In response, the state attempted to show other ways that Kirkling's DNA could have ended up on the handgun, such as an indirect transfer of the DNA from one person to another. The state also attempted to show that appellant often let other people handle guns that he had in his house although there was no evidence that Kirkling had ever been to appellant's house.
The jury rejected appellant's self-defense theory and found him guilty of murder and the attendant firearm specification as well as the two weapons charges. The trial court sentenced appellant accordingly.
II. The Appeal
Appellant appeals and assigns the following errors:
1. Trial counsel's acts and omissions deprived appellant of his right to effective assistance of counsel.
2. The trial court erred when it did not merge for purpose of sentencing the offenses of murder, carrying a concealed weapon, and having a weapon under a disability.
State v. Hobbs, No. 14AP-225, 2015 WL 3822239, at *1-3 (Ohio Ct. App. 2015). On June 18, 2015, the appellate court affirmed the judgment of the trial court. Id. The Supreme Court of Ohio then declined to accept jurisdiction of the appeal. State v. Hobbs, 143 Ohio St.3d 1481 (Ohio 2015).
On September 29, 2016, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As his sole claim for relief, he asserts that he was denied his Sixth Amendment right to the effective assistance of trial counsel:
Petitioner's counsel failed to object to the prosecutor's eliciting inadmissible and highly inflammatory testimony regarding Petitioner's history of drug dealing, and possession of, and transactions involving, multiple firearms; failed to object to the prosecutor's use of Petitioner's prior convictions for impermissible purposes; and failed to request curative and/or limiting instructions. Counsel compounded the prejudice to his client by eliciting additional testimony regarding his client's drug trafficking and firearms activity. Counsel's errors and omissions bore no reasonable relationship to legitimate trial strategy and constituted constitutionally deficient performance. It is reasonably probable that, but for counsel's deficient performance, the jury would have acquitted Petitioner.
Respondent argues that this claim lacks merit. (ECF Nos. 6, 13).
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this case. The United States Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and has emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the 'extreme malfunction' forwhich federal habeas relief is the remedy." Burt v. Titlow,—U.S.—, 134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).
AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state-court decision either:
(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.
28 U.S.C. § 2254(d).
Further, under AEDPA, the factual findings of the state court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Accordingly, "a writ of habeas...
