Jackson v. Brunsman

• Decision Date: 24 May 2012
• Docket Number: Case No. 1:11-cv-449
• Parties: DION JACKSON, Petitioner, v. TIMOTHY BRUNSMAN, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DION JACKSON, Petitioner,

v.TIMOTHY BRUNSMAN, Warden, Respondent.

Case No. 1:11-cv-449

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

May 24, 2012

District Judge S. Arthur Spiegel

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se under 28 U.S.C. § 2254 by Petitioner Dion Jackson. He pleads the following Grounds for Relief:

Ground One: The jury erred to the prejudice of Appellant by finding him guilty of murder and felonious assault, as those findings were not supported by sufficient evidence, and the state failed to meat [sic] it's [sic] burden of proof.

Ground Two: The jury erred to the prejudice of the Appellant by finding him guilty of murder and felonious assault, as those findings were contrary to law, and where [sic] against the manifest weight of the evidence.

Ground Three: The trial court erred to the prejudice of the Appellant by overruling his Motion for Aquittal [sic] under Ohio Criminal Procedure Rule 29, as the state failed to meet it's [sic] burden of proving that the Appellant was guilty of murder and felonious assault.

Ground Four: The trial court erred to the prejudice of the Appellant by imposing a sentence that is contrary to law because it is excessive.

Ground Five: The trial court erred to the prejudice of Appellant sentencing him on counts 2, 3, and 4, as they were offenses of similar import and should have been merged.

Ground Six: The trial court erred to the prejudice of Appellant by not giving a jury instruction for the inferior degree offence [sic] of manslaughter and the lesser included offence [sic] of aggravated assult [sic].

(Petition, Doc. No. 1.) On Judge Litkovitz's Order (Doc. No. 3), the Respondent Warden has filed a Return of Writ (Doc. No. 8) and Petitioner has filed a Traverse in support (Doc. No. 12). Mr. Jackson makes arguments in support of his Petition only in the Traverse and only that document is cited herein for his arguments.

Procedural History

Petitioner was indicted by the Hamilton County Grand Jury on two counts of murder and felonious assault, each count having a firearm specification. He was convicted on the second murder count and both felonious assault counts with their attendant firearm specifications. The jury could not reach a verdict on the first murder count and it was later dismissed by the State. The trial judge imposed a sentence of twenty-six years to life.

Represented by new counsel, Petitioner pled the following assignments of error in the Hamilton County Court of Appeals:

1. The jury erred to the prejudice of the Defendant-Appellant by finding him guilty of murder and felonious assault, as those findings were not supported by sufficient evidence.

2. The jury erred to the prejudice of the Defendant-Appellant by finding him guilty of murder and felonious assault, as those findings were contrary to law.

3. The trial court erred to the prejudice of the Defendant-Appellant by overruling his Motion for Acquittal under Ohio Criminal Procedure Rule 29.

4. The trial court erred to the prejudice of Defendant-Appellant by imposing a sentence that is an abuse of discretion.

5. The trial court erred to the prejudice of Defendant-Appellant in sentencing him on Counts 2, 3, and 4.

6. The trial court erred to the prejudice of Defendant-Appellant by not giving a jury instruction for an inferior degree offense and a lesser included offense.

(Merit Brief, Return of Writ, Doc. No. 8, Ex. 7.) The court of appeals affirmed the judgment of the trial court. State v. Jackson, 2010 Ohio 4312, 2010 Ohio App. LEXIS 3654 (Ohio App. 1st Dist. Sept. 15, 2010). The Ohio Supreme Court declined jurisdiction on further appeal. State v. Jackson, 127 Ohio St. 3d 1486 (2010).

Analysis

Grounds One, Two, and Three

In his first three Grounds for Relief, Petitioner challenges the sufficiency and weight of the evidence presented. Grounds One and Three raise precisely the same claim - that there was insufficient evidence to convict - because a motion for acquittal under Ohio R. Crim. P. 29 presents precisely that claim. In Ground Two, Mr. Jackson asserts his conviction is against the manifest weight of the evidence.

The Warden argues that Ground Two is not cognizable in habeas corpus because there is no constitutional right to set aside a conviction which is against the manifest weight of the evidence. Of course, only federal constitutional violations can be considered as a basis for relief in habeas corpus. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S. __, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme Court reaffirmed the important distinction between appellate review for insufficiency of the evidence and review on the claim that the conviction is against the manifest weight of the evidence. It held:

In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.)

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a " 'thirteenth juror' " and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.").

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983), cited approvingly by the Supreme Court in Thompkins and cited by Mr. Jackson in his Traverse (Doc. No. 12, PageID 1135), Judge Robert Black contrasted the manifest weight of the evidence claim:

In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court,reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

485 N.E. 2d at 718, ¶3 of the syllabus. This Court does not have authority to decide the manifest weight claim because it does not state a federal constitutional claim.

In contrast, Grounds One and Three, which challenge the legal sufficiency of the evidence, do state a federal constitutional claim. 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; United States v. Paige, 470 F.3d 603, 608 (6th 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, 574 N.E. 2d 492 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it...