Porter v. Eppinger
| Decision Date | 27 August 2021 |
| Docket Number | 19-3443 |
| Parties | BRIAN E. PORTER, Petitioner-Appellant, v. LASHANN EPPINGER, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
Before: CLAY, McKEAGUE, and LARSEN, Circuit Judges.
Late one night at a bar in Cleveland, Brian Porter shot at a car leaving the parking lot. He was charged with assaulting three of the passengers. However, he was not charged with assaulting the fourth passenger, who, Porter claims, appeared to be brandishing a gun. At trial, Porter's main argument was that he acted in self-defense. The state trial court instructed the jury on self-defense, but the instruction explicitly named only the three victims listed in the indictment-not the person who allegedly had a gun. Porter was convicted on all counts. The Ohio Court of Appeals affirmed the conviction, finding that Porter was not entitled to a self-defense instruction in the first place because he had not satisfied his duty to retreat. Porter later filed a § 2254 habeas petition in federal district court. He argued that the self-defense instruction was incomplete under state law and that the error was so egregious that it violated his federal due-process rights. He also claimed that his trial counsel was unconstitutionally ineffective for failing to object to the incomplete instruction. The district court denied habeas relief. We AFFIRM.
Brian Porter was a regular at Andy's Hot Spot, a bar in Cleveland, Ohio. State v. Porter, 61 N.E.3d 589, 593 (Ohio Ct. App. 2016). One June evening in 2014, James Mechling, Richard Mechling, Ase Rollins, and Madeline Santiago (the Mechling group)[1] were at the same bar. Id. At one point in the evening, Ase and Madeline had some negative interactions with a man named Chino, who had criticized Madeline for dating "a white guy" (Ase) and later argued with Ase over a game of pool. Id. Porter was there that night, but he did not interact with the Mechling group until the end of the evening. See id. at 595-96.
At last call, James purchased a six pack of beer "to go" from the bar. Id. at 595. But rather than carrying it out, James opened one of the beers and immediately started to drink. Id. The bartender asked Porter to take the open beer from James so he could dump it out. Id. James became upset and began to argue with the bartender. Id. at 594-95. The bartender testified that, at some point during the exchange, James announced that he had a gun. Id. at 595. Porter and one or two other patrons ushered James and the rest of the Mechling group outside to the parking lot behind the bar. Id. Porter followed the group outside, claiming that he planned to move his car to the front of the building. Id. at 596.
At this point, the witnesses' stories diverge. Ase testified that the Mechling group was seated in Ase's car, preparing to leave, when Ase saw Chino approaching. Id. at 593. Ase stepped out of the car to confront Chino; the two instead had a brief exchange and shook hands. Id. According to Porter, however, the Mechling group stood outside Ase's car heckling Chino while Chino stood in the parking lot on his cell phone. Id. at 596. Porter says that the group told Chino that they were "going to 'F' him up." Id. Porter saw "someone from the [Mechling] group shut the trunk of Ase's vehicle" and surmised that they had removed something from the trunk. See id. Someone then shouted to Porter, "we're going to f*** you up too." Id. (alteration in original).
When he heard this, Porter reached into his car for his handgun. Id. Porter testified that he believed the back door of the bar was locked. He purportedly had told others to lock the door once the Mechling group was outside. As Porter was loading his gun, the group began to drive out of the parking lot, which required them to pass Porter and his car. Id. James was sitting in the driver's-side rear seat, which was closest to Porter. Id. Porter claims the group "pulled up a little slow," and then James said, "I told you I was going to f*** you up." Id. (alteration in original). Porter testified that he "saw something in [James'] hand" and "was scared from then [on]." Id. He did not know what the group might have removed from the trunk but he had heard one member of the group say that he had a gun earlier in the evening during a game of pool. Id. Porter fired once at the car as it passed him. He fired a second time as the car left the parking lot and entered the street. Porter hit the car both times, but no one was injured. Id. at 593.
The security camera footage played at trial revealed that Porter had been standing in the parking lot next to his car for about thirty seconds before firing his gun. Porter admitted that twelve seconds had passed between the moment he reached for the gun and the moment he fired his first shot. Id. at 596. After the shooting, the video showed Porter high-fiving, fist-bumping, and hugging Chino and another person who had been inside the bar with them. Id. at 594. Porter contended that he was in shock and that the others were comforting him. The state, by contrast, argued that these actions were "celebratory." Id. at 598.
Porter was charged with three counts of felonious assault in violation of Ohio Revised Code (ORC) § 2903.11(A)(2), one count each for assaulting Ase, Madeline, and Richard. Id. at 59293. He was not charged with assaulting James. See id. Ohio defines felonious assault as "knowingly . . . [c]aus[ing] or attempt[ing] to cause physical harm to another . . . by means of a deadly weapon." ORC § 2903.11(A)(2).
The case proceeded to trial. Porter, 61 N.E.3d at 593. Porter presented the jury with two theories in favor of acquittal. First, he argued that he had acted in self-defense. Second, he argued that he had not knowingly attempted to harm anyone in the car when he shot at it. Perhaps unsurprisingly, Porter's counsel focused primarily on the self-defense theory.
Ohio law, at the time, required a defendant claiming self-defense to prove three elements by a preponderance: (1) that he "was not at fault in creating the situation giving rise to the fight," (2) that he "had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was through the use of force," and (3) that he "did not violate any duty to retreat or avoid the danger."[2] Id. at 597. The trial court agreed to instruct the jury on self-defense. The instruction said:
Id. at 596. The instructions did not mention James, but they did not explicitly tell the jury to ignore James either. Porter's attorney did not object to the self-defense instructions. During closing arguments, both parties presented arguments to the jury about Porter's claim that he had been defending himself against James.
The jury convicted Porter on all counts. Id. The trial judge sentenced him to six years' imprisonment. Id.
Porter appealed. He argued, among other things, that the self-defense instruction was incomplete because it did not allow the jury to consider Porter's alleged fear of James. He contended that failing to name James in the instruction violated his Sixth and Fourteenth Amendment rights "to a fair trial and adjudication, . . . to present a defense, and to due process." Porter also argued that his trial counsel had been unconstitutionally ineffective for failing to object to the self-defense instruction.
A divided panel of the Ohio Court of Appeals rejected these claims and affirmed Porter's convictions. See id. at 596-99, 603. The court first noted that Porter had not objected to the jury instruction below and thus "forfeited all but plain error on appeal." Id. at 597. The court went on to say that Porter "ha[d] not shown that he did not violate a duty to retreat or avoid danger." Id. at 598. "Porter admitted at trial that approximately 12 seconds [e]lapsed between the time James allegedly threatened him while standing outside Ase's vehicle and the time Porter pulled the trigger." Id. The state court concluded that "12 seconds was long enough for Porter to retreat." Id. It offered a lengthy string citation to other Ohio Court of Appeals decisions concluding that a defendant had violated the duty to retreat. Id. at 598-99. The court was "unable to conclude that the [trial] court's failure to list James in its self-defense instruction rose to the level of plain error." Id. at 599. The court also observed that, even though "the instruction was arguably incomplete," this did not matter because "Porter ha[d] not demonstrated a reasonable probability that the instruction affected the outcome of trial." Id. In the appellate court's view, "a finding of selfdefense [was] simply not appropriate under the facts." Id.
With respect to Porter's ineffective-assistance claim, the Ohio Court of Appeals first explained the relevant legal standard in full. See id. at 603 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Then, it reasoned as follows:
Based on our resolution of Porter's first . . . assignment[] of error, we are unable to conclude that defense counsel...
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