Weaver v. Shoop, Case No. 3:18-cv-393

• Decision Date: 05 December 2018
• Docket Number: Case No. 3:18-cv-393
• Court: U.S. District Court — Southern District of Ohio
• Parties: TORACE D. WEAVER, Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution Respondent.

TORACE D. WEAVER, Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution Respondent.

Case No. 3:18-cv-393

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

December 5, 2018

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Torace Weaver, pursuant to 28 U.S.C. § 2254, is before the Court for initial review under Rule 4 of the Rules Governing § 2254 Proceedings. Weaver pleads that he was convicted of murder, endangering children, and obstructing official business in the Common Pleas Court of Montgomery County, Ohio, and sentenced to fifteen years to life imprisonment.

Weave has not paid the initial filing fee, but because he is incarcerated on a lengthy sentence the Court finds he is indigent and sua sponte grants him leave to proceed in forma pauperis.

Weaver's conviction was affirmed by the Ohio Second District Court of Appeals. State v. Weaver, 2018-Ohio-2329 (2^nd Dist. June 15, 2018), appellate jurisdiction declined, 2018-Ohio-4092. He pleads the following Grounds for Relief:

Ground One: Actual Innocence Supporting Facts: Despite the arbitrary misuse of the statutory language which would provide a charge of Reckless Homicide, in violation of R.C. § 2903.04(A), Petitioner is actually innocent of any charge. While being a foster parent incurs great responsibility, it does not include being liable for a child's horrific past.

Ground Two: Weight of the Evidence - Equal Protection

Supporting Facts: A manifest weight analysis reviews the entire record. Despite this clear guidance, the lower court did not consider: 1) A drug-birth, 2) Removal from the birth-mother, 3) abuse by sibling, 4) History of victim's erratic and violent behavior.

Ground Three: Due Process

Supporting Facts: Despite the prosecutor's broad duty that justice is served, the prosecutor knowingly provided false statements how "this healthy two-year old was bruised and burned." This false statement which was sustained by the lower court was presumptive and prejudicial.

Ground Four: Ineffective Assistance of Counsel

Supporting Facts: By carelessness or by design, counsel ignored the plain language of the legislature, including but not limited to, failing to object to the ranting of the prosecutor.

(Petition, ECF No. 1, PageID 5-10.)

The Second District Court of Appeals' opinion recites this procedural history:

[*P2] The Children Services Division of the Montgomery County Department of Job and Family Services placed S.T. and his brother T.W. with Weaver and his wife for foster care on September 24, 2015. Tr. of Proceedings 404:21-406:13. S.T. was approximately two years old at the time, and his brother was approximately three. Id. at 395:21-396:8.

[*P3] At or around 6:48 p.m. on November 18, 2015, personnel with the Dayton Fire Department and the Dayton Police Department were dispatched to the King of Glory Church at 5001 Genesee Avenue in response to a 911 call. Id. at 340:11-341:24, 343:10-344:14, 453:21-454:4, 484:1-485:13 and 506:11-507:13. The first emergency personnel to arrive found S.T. lying on the floor of the chancel with Weaver administering cardiopulmonary resuscitation. Id. at 484:1-487:4.

[*P4] While Weaver was being interviewed, paramedics and emergency medical technicians attempted to revive S.T. Id. at 454:25-455:15, 457:4-459:16, 487:5-489:24. Their efforts, however, proved unsuccessful, so they transported S.T. by ambulance to Good Samaritan Hospital. Id. at 463:20-465:25. Less than an hour afterward, S.T. was pronounced dead. See id. at 454:16-454:18, 464:23-464:25, 467:9-467:13, 468:1-468:9, 484:19-484:24 and 489:1-489:8.

[*P5] On August 26, 2016, a Montgomery County grand jury indicted Weaver on the following charges: Count 1, murder pursuant to R.C. 2903.02(B) and 2903.11(A)(1); Count 2, murder pursuant to R.C. 2903.02(B) and 2919.22(B)(1); Count 3, involuntary manslaughter pursuant to R.C. 2903.04(A) and 2919.22(A); Count 4, felonious assault pursuant to R.C. 2903.11(A)(1); Count 5, endangering a child pursuant to R.C. 2919.22(B)(1); Count 6, endangering a child pursuant to R.C. 2919.22(A); Count 7, reckless homicide pursuant to R.C. 2903.041; and Count 8, obstructing official business pursuant to R.C. 2921.31(A). Weaver and his wife, Shureka, were tried jointly as co-defendants, and the jury found Weaver guilty as charged after a four-day trial.

[*P6] At Weaver's sentencing hearing on May 5, 2017, the court merged Count 1 with Counts 2, 3, 4, 5 and 7, and the State elected to proceed on Count 1. The court sentenced Weaver to prisonfor a term of 15 years to life on Count 1; to 36 months in prison on Count 6, consecutive to the sentence for Count 1; and to 90 days in jail on Count 8. On May 9, 2017, the court filed its termination entry, and Weaver timely filed his notice of appeal on May 10, 2017.

State v. Weaver, supra.

Analysis

Ground One: Actual Innocence

In his First Ground for Relief, Weaver seeks release because he claims he is actually innocent. Being actually innocent of the offenses of which one has been convicted is, however, not a basis for habeas corpus relief. A federal district court can grant habeas relief only on the basis that the petitioner is confined in violation of the Constitution. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (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). The Supreme Court has repeatedly refused to recognize actual innocence as a basis for habeas relief. Herrera v. Collins, 506 U.S. 390 (1993).

Case law in the Sixth Circuit establishes that the Supreme Court of the United States has never recognized a free-standing or substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007), citing Zuern v. Tate, 336 F.3d 478, 482, n.1 (6th Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780, n.12 (6th Cir. 2001). The Supreme Court has twice suggested that a "truly persuasive demonstration" of actual innocence would render a petitioner's execution unconstitutional. Herrera v Collins, 506 U.S. 390, 417 (1993); House v. Bell, 547 U.S. 518 (2006).

Raymond v. Sheets, 2012 U.S. Dist. LEXIS 160374, *26-27 (S.D. Ohio Nov. 8, 2012); Stojetz v. Ishee, 2014 U.S. Dist. LEXIS 137501 *185-86 (S.D. Ohio Sept. 24, 2014)(Frost, D.J.)

Because Petitioner's First Ground for Relief does not state a claim upon which habeas corpus relief can be granted, it should be dismissed without prejudice.

Ground Two: Weight of the Evidence

In his Second Ground for Relief, Weaver argues that the Second District did not properly apply the manifest weight of the evidence test to his case. The Constitution does not mandate a process for appellate review of a weight of the evidence claim, which is also, like actual innocence, not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6^th Cir. 1986).

An allegation that a verdict was entered upon insufficient evidence, however. does state 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). The Court will liberally construe Weaver's pro se Petition to raise an insufficiency of the evidence claim. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United States, 508 U.S. 106, 113 (1993).

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 (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.

The Second District considered both manifest weight and sufficiency assignments of error which they decided as follows:

[*P24] With respect to his convictions on Counts 1 and 6, murder under R.C. 2903.02(B) and endangering a child under R.C. 2919.22(A), Weaver argues that the trial court erred by overruling his motion for acquittal. See Tr. of Proceedings 692:15-693:12; Appellant's Br. 20. Emphasizing the lack of "direct evidence" regarding the injuries that caused S.T.'s death, Weaver suggests that "reasonable mind[s] could not" have found that he "knowingly caused physical harm" to S.T., and pointing similarly to "other plausible explanations" for S.T.'s injuries, he suggests that the evidence did not support his conviction for endangering a child. Id. at 20-22. For the same reasons, he argues that the jury lost its way in finding him guilty of the two offenses. See Appellant's Br. 22-24.¹

[*P25] An appellate court reviews a trial court's ruling on a motion under Crim.R. 29 by the same standard applicable to a claim based on the sufficiency of the evidence. State v. Scott, 2018-Ohio-198, 104 N.E.3d 143, ¶ 37 (2d Dist.), citing State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 17. Sufficiency of the evidence "is the legal standard applied to determine whether * * * the

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