Wilson v. McMacken, 85-3581

• Citation: 786 F.2d 216
• Decision Date: 17 March 1986
• Docket Number: No. 85-3581,85-3581
• Parties: Walter WILSON, Petitioner-Appellant, v. Norris McMACKEN, Superintendent, Marion Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 216

786 F.2d 216

Walter WILSON, Petitioner-Appellant, v. Norris McMACKEN, Superintendent, Marion Correctional

Facility, Respondent-Appellee.

No. 85-3581.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 4, 1986.

Decided March 17, 1986.

James R. Willis (argued), Cleveland, Ohio, for petitioner-appellant.

Stuart A. Cole (argued), Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before KEITH and GUY, Circuit Judges, and TAYLOR, District Judge. ^*

GUY, Circuit Judge.

Petitioner, Walter Wilson, appeals from a district court order dismissing his petition for habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. For the reasons set forth below, we affirm the district court order.

Wilson was indicted during the May, 1981, term of the Cuyahoga County, Ohio, Grand Jury on one count of aggravated murder, in violation of Ohio Revised Code Sec. 2903.01, and on one count of attempted murder, in violation of Ohio Revised Code Secs. 2903.02 and 2923.02. At trial, the jury returned a verdict finding petitioner guilty of murder, and he was sentenced to a term of incarceration of from fifteen years to life. Wilson appealed his conviction to the Ohio Court of Appeals for the Eighth Judicial District, which affirmed the common pleas court verdict. On October 12, 1983, the Ohio Supreme Court sua sponte dismissed the further appeal as lacking a substantial constitutional issue.

Wilson next filed an application for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of Ohio, Eastern Division, alleging the following grounds for the petition:

1. Ineffective assistance of counsel;

2. Denial of due process by fundamental defects in the jury instructions and burden of persuasion;

3. Verdict against the manifest weight of the evidence; and

4. Trial judge unconstitutionally rejected Wilson's request for an evidentiary hearing on ineffective assistance of counsel allegations, and improperly refused to grant Wilson a new trial.

The petition was referred to a magistrate and, on April 5, 1985, a magistrate's report was issued recommending dismissal of Wilson's habeas petition. Wilson objected to certain portions of the report, and the district court conducted a de novo review of those portions of the report. 28 U.S.C. Sec. 636(b)(1)(C). Thereafter, on June 19, 1985, the district court entered an order dismissing the petition.

As determined by the Ohio Court of Appeals, the facts adduced during the course of Wilson's trial demonstrated that:

Appellant Walter Wilson operated a grocery store located across the street from a cleaners operated by the victim, Quinton Lumpkin. Appellant was buying the building in which the cleaners was located. On the day of the incident, one of the appellant's employees taped an envelope containing an eviction notice on the door of the victim's business establishment.

A few minutes later Lumpkin entered appellant's store. Wilson testified that because he saw a gun in Lumpkin's pocket, he (Wilson) tucked his pistol into the back of his pants. Lumpkin had the envelope in his hand and was angrily questioning Wilson about it. Wilson told Lumpkin that he could not talk to him about it during business hours. Lumpkin became very angry and continued arguing and swearing loudly.

Wilson had learned in the neighborhood that Lumpkin had shot and killed a man in the past. Some witnesses, including Wilson, testified that Lumpkin reached for his gun when Wilson pulled out his pistol and fired four times. Three of these shots hit the victim. The victim had crawled behind a wooden potato chip rack to flee and was struggling to his feet. Wilson then picked up his .12 gauge shotgun from the shelf near the cash register and fired it through the shelf. The shotgun bullet hit the victim in the throat and was the only fatal shot fired. The victim had a pistol with bullets that were in the clip (handle) and were not placed in the chamber from which they could be fired. The victim had fired no shots.

State v. Wilson, No. 34650 (Ohio Ct.App.1983). Wilson raises no issue as to the accuracy of these factual findings, and therefore they are binding on this court. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Marshall v. Lonberger, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1983).

I.

As his first ground for relief, Wilson urges that he was denied effective assistance of counsel as the result of defense counsel's failure to request critical jury instructions, failure to object to certain statements made in the prosecutor's closing argument, and failure to raise a burden of persuasion issue. Recently, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the standards by which ineffective assistance of counsel claims are to be judged. The Court noted that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. 104 S.Ct. at 2064. The Court held that there are two components to an ineffectiveness claim: "First, the defendant must show that counsel's performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense." Id.

With respect to the first component, defendant must identify acts or omissions which were "outside of the wide range of professionally competent assistance" in order to prove deficient performance. With respect to the second component, in order to establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2065.

Wilson sets forth several aspects of defense counsel's performance which allegedly support his ineffectiveness claim. He first attempts to establish ineffectiveness by noting that the defense attorney failed to request a specific instruction explaining that Wilson had no duty to retreat. The record reflects, however, that the following instruction was delivered:

If a person is assaulted by another, who apparently intended to kill or cause great bodily harm, the person assaulted is not required to retreat, but may repel force with force and kill his assailant, if it reasonably appears to the defendant, necessary to do so.

Wilson characterizes this instruction as merely "boilerplate; however, we cannot find "deficient performance" in defense counsel's failure to request a more particularized instruction. This instruction clearly states Ohio law with respect to the duty to retreat.

The second claim of Wilson's ineffectiveness allegation is that defense counsel failed to object to comments made by the prosecutor in his closing argument to the effect that Wilson had a duty to retreat. While it is true that the prosecutor did reference this subject in his closing argument, the court does not find deficient performance in trial counsel's failure to object to the comments. The reference to a duty to retreat, when viewed in context, was not a major theme in the closing argument ¹ and actually was part of the prosecutor's argument on petitioner's claim of self defense. Moreover, Wilson cannot establish prejudice, since both before and after closing arguments, the trial judge warned the jury that the arguments are not to be considered evidence, and that it is the function of the court to instruct the jury as to the law which they shall apply. In addition, the trial judge went on to properly instruct the jury on the duty to retreat. Therefore, this claim of petitioner's is unpersuasive.

Wilson finally asserts ineffectiveness in trial counsel's failure to object to the jury instructions on self defense, which placed upon the defendant the burden of proving the affirmative defense by a preponderance of the evidence. ² This claim is without merit. In Carter v. Jago, 637 F.2d 449 (6th Cir.1980), cert. denied, 456 U.S. 980, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982), this court specifically held that it is not in violation of due process "to compel the defender to shoulder the burden of proving the affirmative defense of self defense by a preponderance of the evidence." Id. at 457. Moreover, the Ohio Supreme Court has now dealt directly with this question and concluded that there is no due process violation inherent in requiring the defendant to prove self defense by a preponderance of the evidence. State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986). See also State v. Frost, 57 Ohio St.2d 121, 126-27, 387 N.E.2d 235 (1979). In addition, this court has also had occasion to specifically address this issue in the context of an ineffective assistance of counsel claim. In Nieb v. Jago, 695 F.2d 228 (6th Cir.1982), cert. denied sub nom., 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), we rejected the petitioner's ineffectiveness argument based upon defense counsel's failure to object to an instruction regarding Ohio's self-defense burden. The court stated that petitioner's "counsel was not shown to have rendered ineffective assistance by reason of his failure to make a specific and timely objection to [the burden of proof] instructions given." Id. at 231. Therefore, this final allegation of Wilson's ineffectiveness of counsel claim is without merit also. ³

None of the individual acts or omissions highlighted by petitioner establish that his trial counsel was professionally incompetent. The court would add that, when considered in combination, the sum of petitioner's complaints is no greater than the individual grievances. Petitioner has failed to identify any acts or omissions by his trial counsel which were "outside of the wide range of professionally competent assistance," and has thus failed to satisfy the first prong of the Strickland test.

II.

As his second claim for relief,...