Yarbrough v. Moore

• Decision Date: 21 July 2014
• Docket Number: Case No. 1:13-cv-443
• Parties: CHAUNCEY YARBROUGH, Petitioner, v. ERNIE MOORE, WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CHAUNCEY YARBROUGH, Petitioner, v. ERNIE MOORE, WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:13-cv-443

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

July 21, 2014

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Chauncey Yarbrough brought this habeas corpus action pro se under 28 U.S.C. § 2254 to obtain relief from his convictions in the Hamilton County Common Pleas Court on two counts of murder, two counts of carrying a concealed weapon, and one count of having a weapon under disability (Petition, Doc. No. 1, PageID 1, ¶ 5). He pleads five grounds for relief as follows:

Ground One: Conviction is not based on evidence beyond a reasonable doubt, and is Constitutionally insufficient.

Supporting Facts: The evidence presented does not prove beyond a reasonable doubt that the Petitioner purposely caused the death of the victim, Marcus Mitchell, AKA "Murder" and the Petitioner was in fact operating in self-defense. Absolutely no evidence exists that he killed the second victim, who was behind a 14 foot retaining wall. These facts are supported by the Trial Court Judge's lengthy review and delay in rendering a verdict. The Court intermittently sent E-mail to both Counsel during the months between the presentation of the case and the subsequent verdict, asking for further argument of finding of guilt on a lesser charge than murder. This fact demonstrates ample reasonable doubt andshows that the evidence was Constitutionally insufficient, making the resulting conviction a violation of the 5th and 14th

Amendments.

Ground Two: Ineffective Assistance of Trial Counsel

Supporting Facts: Counsel failed to properly cross-examine and impeach both the Coroner and the Firearm Expert, to prove that the deaths were in no way related to each other. Counsel erroneously chose to forego any defense of the murder charge concerning Mr. Phillips, by hoping for an acquittal concerning "Murder", based on self-defense. Counsel never asked any questions of the Coroner of Firearms Expert concerning the death of Dante Phillips, completely abandoning his duty to the Petitioner under the 6th Amendment, which results in a violation of his rights under both the 5th and 14th Amendments.

Ground Three: Prosecutorial Misconduct

Supporting Facts: The Prosecutor in essence "Paid" its witnesses with special consideration in their own cases, and then failed to fully reveal the deals made in exchange for their testimony, in violation of the 6th Amendment Confrontation Clause, Brady, Criminal Rule 16 and the petitioner's Rights to Due Process and a Fair Trial, guaranteed by the 5th 6th and 14th Amendments of the U.S. Constitution.

Ground Four: Involuntary Waiver of Jury Trial

Supporting Facts: Due in part to the State's failure in Discovery to reveal the deals made with its witnesses in exchange for favorable testimony, this failure caused the Petitioner's decision to be not knowing, intelligent or voluntary, and violated his Constitutional Rights to Due Process and a Fair Trial under the 5th and 14th Amendments.

Ground Five: The Trial Court improperly denied the Petitioner's New Trial Motion (Egregious Evidentiary Ruling)

Supporting Facts: An actual eyewitness came forward through an Affidavit, claiming that he saw "Murder's" gun, and saw him reach for it. Also attached was the evidence of the deals made by the State with its witnesses, and additional evidence that the evidence was insufficient to support the conviction. Yet, despite overwhelming factors in favor of the granting of the Motion, the Court overruled it, by abuse of discretion, and severely violated the Petitioner's Right to aFair Trial and the Due Process of Law, guaranteed by the 5th and 14th Amendments.

(Petition, Doc. No. 1).

Procedural History

Yarbrough was indicted for the murders of Marcus Mitchell and Daunte Phillips which occurred outside Annie's nightclub in 2009. The murder charges were accompanied by firearm specifications and weapons counts noted above. Yarbrough waived his right to a jury trial and was convicted by Judge Nadine Allen on all counts. After verdict, Yarborough moved for a new trial, offering Kenneth Davis as a newly-discovered witness and complaining of inducements offered to witnesses Willie Smith and Marvin Gates by the State. Judge Allen denied the motion and Yarbrough appealed to the First District Court of Appeals which affirmed the judgment. State v. Yarbrough, 2012-Ohio-2153, 2012 Ohio App. LEXIS 1918 (1^st Dist. May 16, 2102). The Ohio Supreme Court declined jurisdiction over a subsequent appeal. This habeas corpus petition followed.

Generally Applicable Law

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685,693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848 (6^th Cir. 2012).

[Harrington v.]Richter and [Early v.] Packer appear to require AEDPA deference where a federal issue has been raised but the state court has denied the claim with a discussion solely of state law. See Childers v. Floyd, 642 F.3d 953, 968-69 (11th Cir. 2011). The Supreme Court has recently granted certiorari in a case that may definitively resolve this issue. See Cavazos v. Williams, 132 S. Ct. 1088, 181 L. Ed. 2d 806 (2012).

Moreland v. Bradshaw, 699 F.3d 908, 931 (6^th Cir. 2012). As Hertz and Liebman acknowledge in the 2014 Supplement to their treatise, Harrington requires federal courts to presume a state court decision was an adjudication on the merits of the federal claim if it decides that claim, even if it gives no explanation at all. Supplement at 146. And in its later case, Johnson v. Williams, 133 S. Ct. 1088 (2013), the Supreme Court held the presumption would apply if the state law standard is "at least as protective as the federal standard." Id. at 1096.

The reasonableness of the state court decisions must be measured against Supreme Court precedent as of the time the state court enters its decision. Gover v. Perry, 698 F.3d 295, 304 (6^th Cir. 2012), citing Greene v. Fisher, 565 U.S. ___, 132 S. Ct. 38 (2011).

"[A] state court's application of federal law is unreasonable 'only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes.'" Hill v. Mitchell, 2013 U.S. Dist. LEXIS 45919, at *28 (S. D. Ohio Mar. 29, 2013), quoting Barker v. Yukins, 199 F.3d 867, 872 (6^th Cir. 1999).

"[T]he AEDPA standard is 'difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice system, and not as a means of error correction.' This interpretation of the AEDPAstandard appears to grant much more deference to state decisions when we review them under AEDPA than the earlier interpretation in Williams v. Taylor . . ." Peak v. Webb, 673 F.3d 465, 474 fn12 (6^th Cir. 2012)(Merritt, J., concurring), quoting Greene v. Fisher, 565 U.S. ___, 132 S. Ct. 38(2011)(unanimous opinion); Jackson v. Houk, 687 F.3d 723, 738 (6^th Cir. 2012), again quoting Greene.

The Supreme Court has elaborated on the standard of review of state court decisions on claims later raised in federal habeas corpus:

The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas "retrials" and to ensure that state-court convictions are given effect to the extent possible under law. See Williams v. Taylor, 529 U.S. 362, 403-404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To these ends, § 2254(d)(1) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

As we stated in Williams, § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. 529 U.S., at 404-405, 120 S.Ct. 1495. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. Id., at 405-406, 120 S. Ct. 1495. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id., at 407-408, 120 S.Ct. 1495. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonableapplication is different from an incorrect one. Id., at 409- 410, 120 S.Ct. 1495. See also id., at 411, 120 S.Ct. 1495 (a federal habeas court may not issue a writ under the unreasonable application clause "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly").

Bell v. Cone, 535 U.S. 685, 693-94 (2002).

AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996] provides that, when a habeas petitioner's claim

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