REPORT AND RECOMMENDATION Petitioner, a state prisoner, brings this action 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 No. 12), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History Petitioner was charged in the Licking County Court of Common Pleas with obstructing official business in violation of O.R.C. § 2921.31, with firearm specifications, inducing panic in violation of O.R.C. § 2917.31, with firearm specifications, and aggravated menacing in violation of O.R.C. § 2903.21(A). The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:
On September 23, 2010, officers from the Licking County Sheriff's Department went to Jason Lee's home at 9151 Linville Road, Newark, Ohio, to serve a writ of possession FN1. Deputies spoke to Lee and explained that his property had been sold at sheriff's sale and he needed to make arrangements to vacate. They agreed on October 11, 2010 as the date by which Lee would vacate, but Lee stated that he was going to hire an attorney to have the sale set aside. Wetherby is a friend of Lee's who was staying on the property in a camper in the driveway. (1T. at 244).
FN1. See, State v. Lee, 5th Dist. No. 11-CA-0076, 2012-Ohio-2856.
Deputies did not return on October 11, 2010, because a court action was pending to review the propriety of the sale. However, on October 20, 2010, the court denied a stay on the writ of possession. Deputies again spoke with Lee at his home on October 25, 2010, and told him he needed to vacate on October 27, 2010.
At about 9:30 a.m. on October 27, deputies arrived at Lee's home. Lee was standing on the front sidewalk. He yelled something to the officers about having sold his house to someone else and told them to leave. Lee then ran in the front door of the home. Officers followed Lee to the front porch but Lee would not come out or let them in the house. He yelled through the front door that he was not coming out.
Deputies returned to their vehicle to telephone Lee's attorney, and called their supervisor, Captain Bruce Myers. Deputy Tim Caldwell went around to the back door to attempt to talk to Lee. The blinds covering the French doors on the back porch flew open and the faces of Lee and another man, later identified as Wetherby, appeared against the window. The two men began yelling and screaming at Deputy Caldwell. The corners of their mouths were "full of white stuff" from yelling and screaming and they were spitting on the window.
When Captain Bruce Myers arrived, he went to the back door to speak with the pair. He advised Lee through the door that Lee's attorney was on his way. Captain Myers saw an arm and a hand come around the side of the blinds covering the door. The hand was holding a pistol.
Much of the staff of the Sheriff's Department had been dispatched to an incident involving a van, containing a pipe bomb, which crashed into a church following a pursuit earlier that morning. At least 25 employees of the Sheriff's Department and fire department were dispatched to Lee's home, including the SWAT team and the hostage negotiating team.
Lee would not speak to the hostage negotiators through a "throw phone," which is the preferred method of communicating so that all communications can be monitored by the police. However, he agreed to speak to Misty Van Balen through a cell phone.
Lee repeatedly told her that he wanted to die, that he was going to kill whoever entered the residence first and then kill himself. He also told her that he and Wetherby had a plan to kill each other. He told her that he could see the officers through the window and could take them out. He intended to die and take out as many people as he could. Lee would speak calmly with her for a while, then start yelling and hang up. During the telephone negotiations, Wetherby can be heard yelling in the background. Wetherby is speaking so loudly that the deputy told Lee to "tell him to shut up. I can't hear you." (1T. at 244-245). Throughout the negotiations, Lee was asking Wetherby for his advice. Several times Lee halted the discussions in order to seek Wetherby's advice. (1T. at 245).
Lee and Wetherby informed the negotiating deputies that they wanted to speak to the news media. Accordingly, a meeting was arranged with a local news team. Lee was afraid to leave the residence. At about 4:15 p.m., Wetherby agreed to come out unarmed and speak to the media. Wetherby was taken into custody without incident at the conclusion of the interview with the news team. Lee came out of the house at 6:30 p.m.
During a subsequent search of the house, officers found three firearms in a cabinet in a basement office, a loaded firearm in a garage, a revolver in the first floor dining room, a rifle leaning against an end table in the living room, and a rifle in the corner of a first floor bathroom.
The jury convicted Wetherby on all counts. At sentencing, the trial court merged the firearm specifications. The court further merged the Obstructing Official Business contained in count one with the Inducing Panic charge found in count two. The state elected to proceed on count one for sentencing. The court sentenced Wetherby to an aggregate sentence of three years and six months.
Assignments of Error
Wetherby raises four assignments of error:
"I. THE CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE AND WERE OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
"II. APPELLANT'S ACTIONS WERE PRIVILEGED UNDER OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS AND THUS COULD NOT FORM THE BASIS FOR CRIMINAL LIABILITY THEREUNDER.
"III. THE JURY INSTRUCTIONS WERE PREJUDICIALLY INSUFFICIENT UNDER OHIO LAW AND THE STATE & FEDERAL CONSTITUTIONS.
"IV. APPELLANT WAS PREJUDICIALLY DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS."
State v. Wetherby, No. 12-CA-69, 2013 WL 4028681, at *1-2 (Ohio App. 5th Dist. Aug. 1, 2013). On August 1, 2013, the appellate court reversed Petitioner's conviction on inducing panic, but otherwise affirmed his convictions, and remanded the case to the trial court. Id. Petitioner's sentence remained unchanged. (ECF No. 12-1, PageID# 230.) On December 24, 2013, the Ohio Supreme Court dismissed the appeal. State v. Wetherby, 137 Ohio St.3d 1442 (Ohio 2013).
On April 18, 2014, Petitioner filed this action, alleging that the evidence is constitutionally insufficient to sustain his convictions and that his convictions are against the manifest weight of the evidence (claim one); that his actions were privileged and therefore could not form the basis for criminal liability (claim two); that he was denied a fair trial due to improper jury instructions (claim three); and that he was denied the effective assistance of counsel (claim four). Respondent contends that Petitioner's claims are procedurally defaulted or without merit.
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this Court's review of state-court determinations. The United State Supreme Court recently described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the'extreme malfunction' for which 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, 101 (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).
The factual findings of the state appellate 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). "Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law"); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). The United States Court of Appeals for the Sixth Circuit explained these standards as follows:
A state court's decision is "contrary to" Supreme Court precedent if (1) "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[,]" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120
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