Rice v. Moore

• Decision Date: 10 April 2008
• Docket Number: Civil Action No. 1:05-cv-00779.
• Citation: 633 F.Supp.2d 541
• Parties: Michael RICE, Petitioner, v. Ernie MOORE, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

633 F.Supp.2d 541

Michael RICE, Petitioner, v. Ernie MOORE, Warden, Respondent.

Civil Action No. 1:05-cv-00779.

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

April 10, 2008.

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Michael Rice, Lebanon, OH, pro se.

Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, Stephanie Lynn Warner Bircher, Ohio Dept. of Job & Family Services, Office of Contracts and Acquisitions, Diane Duemmel Mallory, Ohio Attorney General, Columbus, OH, for Respondent.

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 11) and Petitioner's Objection (doc. 14). For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation.

I. Background

Petitioner Michael Rice, an inmate in state custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1). The Butler County, Ohio, Grand Jury indicted Petitioner in April 2002 on one count of murder, in violation of Ohio Rev. Code § 2903.02(B), for the murder of Toni Upton (doc. 6). Petitioner entered a plea of not guilty and the case proceeded to jury trial. The jury found Petitioner guilty as charged in the indictment (Id.). On December 23, 2002, the Court sentenced Petitioner to fifteen years to life imprisonment (Id.).

Petitioner, through counsel, filed a timely notice of appeal to the Twelfth District Court of Appeals, raising the following three assignments of error: 1) the trial court erred to the prejudice of Petitioner when it permitted Lisa Hyde to testify about a conversation she had with Petitioner in a bar some two months prior to the murder, in which Petitioner pulled out a knife and told Hyde he "didn't have a problem with cutting anyone that f* * *ed with him," and stated he would cut Toni Upton's head off; 2) the trial court erred to the prejudice of Petitioner when it refused to provide instructions to the jury regarding lesser included offenses, and failed to instruct the jury on self-defense as Petitioner stated he may have stabbed the victim so as to protect himself; and 3) the trial court erred to the prejudice of Petitioner when it allowed the State to engage in improper final arguments when the Prosecutor exhorted the jury not to let the Petitioner get away with murder (Id.). On February 17, 2004, the Twelfth District Court of Appeals rejected Petitioner's arguments and affirmed the judgment of the trial court (Id.).

Petitioner failed to file a timely appeal to the Supreme Court of Ohio (Id.). Instead, on April 20, 2004, Petitioner filed a pro se notice of appeal and motion for delayed appeal (Id.). The Supreme Court granted the delayed appeal (Id.), and Petitioner again raised the three alleged errors listed above (Id.). On October 13, 2004, the Supreme Court of Ohio denied Petitioner leave to appeal and dismissed the appeal as not involving any substantial constitutional question (Id.). On November 30, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus, claiming that each of his three alleged errors amounted to violations of his constitutional rights protected by the Fifth, Sixth, and Fourteenth Amendments. The Magistrate Judge reviewed all pertinent documents and prepared the Report and Recommendation, rejecting Petitioner's arguments (doc. 11). Petitioner filed his Objection and this matter is now ripe for the Court's consideration.

II. The Magistrate Judge's Report and Recommendation

The Magistrate Judge noted that on federal habeas review, the factual findings of the state appellate court are entitled to a presumption of correctness in the absence of clear and convincing evidence to the contrary (doc. 11, citing 28 U.S.C. § 2254(e)(1), McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004), and Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.2001)). The Magistrate Judge also noted that this Court is bound by the state court adjudications unless those decisions are contrary to clearly established federal law, or amount to an unreasonable application of such law (Id., citing Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998)).

Turning to the merits of the Petitioner's first ground for habeas relief, the Magistrate Judge noted that Petitioner claims that the admission of Lisa Hyde's testimony violated Ohio Evid. Rule 403 and the Due Process Clause of the Fourteenth Amendment (Id.). The Magistrate Judge stated that trial court errors in state evidentiary law do not warrant habeas relief unless the error renders the trial so unfair as to deprive a petitioner of constitutionally protected due process rights (Id.), citing McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.) cert. denied, 543 U.S. 892, 125 S.Ct. 168, 160 L.Ed.2d 156 (2004), Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Noting that the Twelfth District Court of Appeals ruled that the trial court could have reasonably concluded that Hyde's testimony was admissible, the Magistrate Judge concluded that Petitioner failed to show that the state court of appeals' decision was contrary to, or an unreasonable application of, clearly established federal law (Id.). Furthermore, the Magistrate Judge stated that the Sixth Circuit has found that there is no clearly established binding precedent from the United States Supreme Court holding that the admission of prior bad acts evidence violates the Due Process Clause (Id., citing Bugh v. Mitchell, 329 F.3d 496 (6th Cir.2003), Sifuentes v. Prelesnik, 2006 WL 2347529, *1 (W.D.Mich. Aug. 11, 2006), and Doan v. Voorhies, 2007 WL 894559, *18 (S.D.Ohio March 21, 2007). The Magistrate Judge concluded therefore that admission of Lisa Hyde's testimony was not contrary to, or an unreasonable application of, clearly established federal law (Id.). Consequently, the Magistrate Judge concluded that Petitioner is not entitled to habeas relief on ground one of the petition (Id.).

Considering the merits of Petitioner's second ground for relief, the Magistrate Judge stated that Petitioner asserts the trial court erred in refusing to provide instructions to the jury regarding self-defense and the lesser included offenses of voluntary manslaughter and involuntary manslaughter (Id.). As the Magistrate Judge noted, the Twelfth District Court of Appeals found the evidence in this case did not warrant jury instructions on lesser included offenses or self-defense (Id.). The Magistrate Judge stated that a federal court may review a state prisoner's habeas corpus petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not on the basis of error of state law (Id., citing 28 U.S.C. § 2254(a) and Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)). The Magistrate Judge noted that although the United States Supreme Court has found that a defendant in a capital murder case has a constitutional right to have the jury instructed on lesser included offenses in certain situations, the Supreme Court has not held that the Constitution requires the giving of self-defense or lesser-included offense instruction in non-capital cases (Id., citing Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) and Scott v. Elo, 302 F.3d 598, 606 (6th Cir.2002), cert denied, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1026 (2003)). Reviewing case law, the Magistrate Judge concluded that in the Sixth Circuit, a criminal defendant does not have a constitutional right to self-defense or lesser-included offense instructions in non-capital cases except possibly in the "most unusual circumstances" in which "a fundamental miscarriage of justice is found to have resulted from the arbitrary and unsupportable denial of a lesser included offense instruction in clear defiance of state law" (Id., quoting Bagby v. Sanders, 894 F.2d 792, 795 (6th Cir. 1990)). Turning to the facts of this case, the Magistrate Judge concluded that this case does not involve "most unusual circumstances" where the refusal to give lesser-included offense instructions resulted in a fundamental miscarriage of justice (Id.). Specifically, the Magistrate Judge agreed with the Ohio Court of Appeals that Petitioner failed to substantiate his self-defense claim in that Petitioner failed to show that the force reasonably necessary to repel an attack by the victim required him to stab her five times in the chest (Id.). Moreover, Petitioner failed to show that such force was his only means of escape when he could have exited the vehicle once a knife was drawn (Id.). As to voluntary manslaughter, the Magistrate Judge found the Court of Appeals was reasonable in concluding that the evidence failed to show the stabbing was influenced by a sudden passion or rage brought on by serious provocation (Id.). Finally, the Magistrate Judge agreed with the Court of Appeals that the evidence in this case did not reasonably support both an acquittal on the murder charge and a conviction on an involuntary manslaughter charge to warrant an involuntary manslaughter instruction (Id.)

As for Petitioner's third ground for relief, the Magistrate Judge noted that Petitioner claims his constitutional right to due process was violated when the prosecution engaged in misconduct during the closing arguments (Id.). The Magistrate Judge stated that in order to be granted relief based on prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process" (Id., quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The Magistrate Judge explained the Sixth Circuit has adopted a two-part test for determining whether prosecutorial misconduct violates a defendant's due process rights (Id., citing Macias v. Makowski, 291 F.3d 447, 452 (6th Cir.2002)). F...