CLIPPS v. MCCONAHAY (2023)

ORDER

This is a pro se prisoner habeas corpus case under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Petitioner, Brian Clipps, challenges his conviction in the Cuyahoga County Court State of Ohio, of Common Pleas, on charges of rape, felonious assault, and robbery. The State has filed a Return of Writ (Doc. No. 6) and Petitioner has filed a Traverse to Return of Writ (Doc. No. 10).¹

Background

The Ohio Court of Appeals for the Eighth Appellate District, Cuyahoga County, set forth the facts of this case on direct appeal. These binding factual findings “shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998).

The Cuyahoga County, Ohio, Grand Jury returned two indictments against Petitioner. (Doc. No. 6, PageID. 475 (citing State of Ohio v. Brian Clipps, Eighth Appellate District Case No. CA-18-107747, Journal Entry and Opinion (Sept. 5, 2019) (hereinafter State v. Clipps, No. 18-107747); (Doc. 6-1, PageID. 678–725).).

The first indictment (“1998 case”) charged Petitioner with two counts of rape, two counts of gross sexual imposition, and kidnapping. (Id.) The rape and kidnapping counts also contained sexually violent predator specifications. (Id.) The kidnapping count also contained a sexual motivation specification. (Id.) This indictment pertained to offenses committed on December 18, 1998, against victim C.B. (Id.)

The second indictment (“2018 case”) charged Petitioner with a seven-count indictment. (Id.) The indictment contained three counts of rape, felonious assault, aggravated robbery, and two counts of kidnapping. (Id.) The rape counts, felonious assault count, and kidnapping offense charged in count 6 contained specifications for sexually violent predator, notice of prior conviction, and repeat violent offender. (Id.) The felonious assault count and kidnapping offense charged in count 6 also contained sexual motivation specifications. (Id.) The aggravated robbery count and the kidnapping offense charged in count 7 contained notice of prior conviction and repeat violent predator specifications. (Id.) This indictment pertained to offenses committed on February 17, 2018 against victim A.M. (Id.)

Petitioner filed a motion to dismiss the 1998 case claiming undue delay. (Id.) The Court denied the motion. (Id.) Thereafter, the State filed a motion to join the two cases for trial. (Id.) The trial court overruled Petitioner's objection to that motion. (Id.)

Petitioner waived his right to a jury trial on the sexually violent predator specifications charged in the 1998 case, as well as the sexually violent predator, notice of prior conviction, and repeat violent offender specifications in the 2018 case. (Id. at PageID. 476). The remaining counts and specification went to trial before a jury. (Id.)

The state dismissed the rape charge in count 1 of the 1998 case. (Id.) In addition, the trial court granted a defense motion for judgment of acquittal on the gross sexual imposition offense charged in count 3 of the 1998 case. (Id.)

As to the 1998 case, the jury found Petitioner guilty on the rape offense charged in count 2. (Id.) The jury found Petitioner not guilty on the gross sexual imposition offense charged in count 4, and the kidnapping offense and underlying sexual motivation specification charged in count 5. (Id.) The trial court found Petitioner guilty of the sexually violent predator specification underlying count 2. (Id.)

As to the 2018 case, the trial court found Petitioner guilty of the specifications underlying counts 2, 3, 4, 5, and 6. (Id.)

The trial court imposed a prison sentence of 12 years to life on the rape offense charged in count 3; 4 years to life on the felonious assault offense charged in count 4; and 4 years on the aggravated robbery offense charged in count 5. (Id.) The Court ordered that the sentences on counts 3, 4, and 5 run concurrently with one another. (Id.)

The Court ordered that the sentence of 12 years to life in the 1998 case run consecutively to his sentence of 12 years to life in the 2018 case. (Id.) The aggregated prison sentence in both cases is 24 years to life. (Id.)

On direct appeal, Petitioner set forth 7 assignments of error. (See Doc. No. 6-1, PageID. 678–725). The court of appeals overruled 5 of Petitioner's assignments of error. (Id. at PageID. 724.) It sustained Petitioner's 6th assignment of error, which rendered the 7th assignment of error moot. (Id.) This ruling resulted in the court of appeals vacating Petitioner's conviction on the sexually violent predator specification in the 1998 case. (Id.) The court of appeals remanded the case for resentencing as to count 2 of the 1998 case. (Id.) It also ordered that the trial court correct its failure to impose post-release control on count 5 of the 2018 case. (Id.)

The State filed a notice of appeal with the Ohio Supreme Court regarding the appellate court's decision vacating the sexually violent predator specification. (Id. at PageID. 726–737).

Through counsel, Petitioner filed a cross-appeal consisting of a memorandum as to his opposition of the State's appeal, and a memorandum in support of jurisdiction. (Id. at PageID. 738–752).

In December 2020, the Ohio Supreme Court denied both the State's appeal and the Petitioner's cross-appeal. (Id. at PageID. 753–754).

Meantime, in March 2020, Petitioner filed a motion to re-open his direct appeal in the Ohio Court of Appeals. (Id. at PageID. 756). In his motion, he argued that both his trial and appellate counsel were ineffective. (Id.)

The State opposed Petitioner's motion, arguing that Petitioner filed his motion over three months past the deadline for doing so and failed to show good cause for his failure to file by the deadline. (Id. at PageID. 766.)

On May 4, 2020, the Court of Appeals denied Petitioner's motion to re-open the judgment. (Id. at PageID. 770–773.)

On March 3, 2021, Petitioner filed the instant petition. (Doc. No. 1.) In it, he asserts 4 grounds for habeas relief: (1) improper judicial pre-indictment delay; (2) improper joinder of the 1998 and 2018 cases for trial; (3) that his conviction as to the 2018 case was contrary to the manifest weight of the evidence; and (4) prosecutorial misconduct. (Id. at PageID. 1–16).

The State does not contest the timeliness of the Petition under AEDPA, 28 U.S. C. § 2254. (Doc No. 6, PageID. 483.) I turn to the contested issues.

Legal Standard

A § 2254 habeas petition is governed by the heightened standard of review set forth in the AEDPA. 28 U.S.C. § 2254. To obtain relief, habeas petitioners who raise claims previously adjudicated by state courts must “show that the relevant state-court ‘decision’ (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,’ or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.’ ” Wilson v. Sellers, 584 U.S. 122, 138 S. Ct. 1188, 1191, 200 L.Ed.2d 530 (2018) (quoting 28 U.S.C. § 2254(d)).

The focus of this standard “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (internal citations and quotation marks omitted).

Ultimately, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). A state court's factual determinations are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

However, “the stringent requirements of § 2254(d) apply only to claims that were ‘adjudicated on the merits in State court proceedings.’ ” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).

“A petitioner procedurally defaults claims for habeas relief if the petitioner has not presented those claims to the state courts in accordance with the state's procedural rules.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). Thus, if a petitioner fails to present a claim in state court, the “procedural default carries over to federal court and precludes habeas review of that claim in federal court.” Id.

Additionally:

If a claim is procedurally defaulted, a federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates either (1) cause for the petitioner not to follow the procedural rule and prejudice from the alleged constitutional error, or (2) that a fundamental miscarriage of justice would result from denying federal habeas review.

Group v. Robinson, 158 F. Supp. 3d 632, 651 (N.D. Ohio 2016) (Zouhary, J.).

Discussion

Procedural Default: Grounds 1, 3, and 4

The State argues that Petitioner has procedurally defaulted as to Ground 1 (prejudicial preindictment delay), Ground 3 (conviction as to the 2018 case was contrary to the manifest weight of the evidence); and Ground 4 (prosecutorial misconduct). (Id. at PageID. 488).

I agree. Petitioner did not present these grounds to the Ohio Supreme Court, as applicable law demands he do before he can present this issue to the federal court. See Mackey v. Koloski, 413 F.2d 1019, 1021 (6th Cir. 1969).

Here, there clearly was a State rule that provided an avenue of review – i.e., the opportunity, which Petitioner exercised in part, to present his claims to the Ohio Supreme Court. Petitioner did not present the defaulted contentions to that Court. Petitioner does not challenge those facts.

The State also points out that the Appellate Court held that Petitioner has defaulted as to a portion of Ground 4 (procedural misconduct) when he failed to make a contemporaneous objection to the prosecutor's statement about the evidence corroborating itself. See Osborne v. Ohio, 495 U.S. 103, 124, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). I agree.

Petitioner's failure constitutes a procedural default precluding federal habeas review, absent Petitioner's showing of cause for and prejudice from the default. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).

As my colleague, Judge Zouhary, has explained:

A petitioner can establish cause by “show[ing] that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 [106 S.Ct. 2639, 91 L.Ed.2d 397] (1986). Objective impediments include an unavailable claim or interference by state officials that made compliance with state procedural rules impracticable. Id. [․]

To establish prejudice, a petitioner must demonstrate that the constitutional error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000).

Group, supra, 158 F.Supp.3d at at 651.

Petitioner has not shown cognizable cause for his failure to include these claims in his Supreme Court Cross-Appeal. Nor has he shown that an external factor impeded his ability to present these claims in that Court. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Nor has Petitioner shown prejudice, namely that, but for the alleged error, he might not have been convicted of the applicable Counts. Id. at 748, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

Petitioner has the burden to make these showings. See 28 U.S.C. § 2254; Coleman, supra; Sawyer, supra. He has not done so here. Nor has Petitioner met that burden in his Traverse. In essence, he simply recites those instances in the trial that he believes support his underlying contentions. That does not, without more, suffice to overcome the procedural default as to Grounds 1, 3, and 4.

Accordingly, I deny relief as to the defaulted claims.²

Non-Cognizable Claims: Ground 2, Ground 3 and Ground 4

Petitioner has presented three non-cognizable claims: Ground 2, Ground 3, and Ground 4. First, I address Ground 2, which was not already procedurally defaulted. Then, and although I have dismissed the Grounds 3 and 4 for reasons of procedural default already, I briefly re-address those claims and the reasons that they are non-cognizable.

In Ground 2, Petitioner argues that the state court improperly joined the 1998 case and 2018 case, which caused him undue prejudice and violated his rights under the Fifth and Fourteenth Amendments of the United States Constitution. I deny Ground 2 as a non-cognizable claim under § 2254.

A claim must arise under the federal constitution to be the subject of federal habeas corpus review under § 2254. “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). That means that errors of state law—even violations of a state constitution—are not a cognizable subject for habeas relief unless the alleged error arises to the level of a federal constitutional violation. Id.

A state court's interpretation of state law is, moreover, binding on a federal court undertaking federal habeas review. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84–86, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983).

In other words, a federal habeas court is not, and does not, serve as a third level of review of applications of state law. See Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988).

Furthermore, when a petitioner simply asserts that a claim is a federal constitutional issue, this does not make it so. To be cognizable in federal habeas corpus, a petitioner must argue that federal constitutional errors material to the outcome of the case resulted in denying the petitioner his or her right to fundamental fairness. Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983).

With regard to trial errors, such errors, even if they violate state law, do not lead to habeas relief unless the court's ruling denied a petitioner his right to fundamental fairness under the Due Process Clause. Id. Simply put: if there is no federal constitutional claim, then there is no habeas review, and there can be no habeas relief.

Petitioner's Ground 2 alleges that the trial court committed cognizable error when it denied Petitioner's motion to sever the 1998 case from the 2018 case. E.g., Hutchison v. Bell, 303 F.3d 720, 731–32 (6th Cir. 2002).

Here, to prevail, Petitioner has the burden of showing actual prejudice from the alleged misjoinder of the 1998 and 2018 cases. See United States v. Lane, 474 U.S. 438, 448–49, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). The Ohio Court of Appeals found no error under state law when it reviewed the trial court's decision to deny Petitioner's severance motion. State v. Clipps, supra, Case No. 107747; (Doc. No. 6-1, PageID. 692–698). The Court of Appeals’ opinion was thorough, detailed, and in every respect, a model of careful appellate review. Nothing in it or on the record suggests that the trial court's handling of a delicate and potentially troublesome issue was anything but proper, from the initial cautionary instruction though the final charge.

The trial court did not violate state law when it denied Petitioner's motion to sever. And the trial court certainly did not deny Petitioner's right to fundamental due process. Nor was there any hint of these decisions having an adverse effect to the outcome or to Petitioner's right to basic due process of the law.

The bottom line is that Petitioner has failed to show that the State courts’ handling of the severance motion was contrary to or an objectively unreasonable application of clearly established United States Supreme Court precedent. See 28 U.S.C. § 2254(d).

Accordingly, I reject Ground 2 as a non-cognizable claim.

Although I have already dismissed Grounds 3 and 4 under the doctrine of procedural default, I briefly note that neither claim is cognizable.

As to Ground 3—that the verdict was against the manifest weight of the evidence—this claim is not cognizable on federal habeas review, except in instances so extreme as to constitute a federal constitutional violation. See Tibbs v. Florida, 457 U.S. 31, 42-43, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

On review, the Court of Appeals found no merit to Petitioner's argument. State v. Clipps, supra, Case No. 107747; (Doc. No. 6-1, PageID. 698–715). Petitioner's argument is essentially a disagreement with the jury's verdict and the State Court of Appeals decision finding no merit. This is a matter of state law and does not rise to the level of a federal constitutional violation. Accordingly, I dismiss Ground 3 on the basis that it is not cognizable as a federal habeas claim.

As to Ground 4—prosecutorial misconduct—this claim, too, fails because it is non-cognizable. On review, the Court of Appeals found that Petitioner's prosecutorial misconduct arguments had no merit. State v. Clipps, Case No. 107747; (Doc. No. 6-1, PageID. 715–719).

The Court of Appeals explained the standard for prosecutorial misconduct as follows, “The test for prosecutorial misconduct is whether the prosecutor's remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused.” (Id. at PageID. 715.) The Court of Appeals carefully reviewed the trial court transcript and found that the prosecutor's statements were neither improper nor prejudicial.

This is, again, a purely state-law matter. As with Petitioner's other state-law-based arguments, this argument is not cognizable on federal habeas review unless Petitioner shows that such alleged misconduct arose to the level of a federal constitutional violation. He does not meet that burden. Accordingly, even in the absence of procedural default, I would dismiss Ground 4.

Conclusion

It is, therefore,

ORDERED THAT:

1. Petitioner Brian Clipps’ petition be, and hereby is, dismissed with prejudice.

2. An appeal from this order would be frivolous and shall not be taken without prepayment of the requisite filing fee.

SO ORDERED.

FOOTNOTES

1.   Petitioner styled two motions as ones for summary judgment. (Doc Nos. 13, 18). Motions for summary judgment are not in accordance with Rule 4 of the Rules Governing § 2254 Proceedings. (See Doc. 3, Magistrate Judge Burke's initial order regarding briefing on the merits of the petition). Petitioner's motions are therefore non-dispositive because they do not seek to obtain judgment in Petitioner's favor.Magistrate Judge Darrell Clay issued an Order denying Petitioner's first motion for summary judgment. (Doc. No. 17). For the reasons cited therein, namely, that such motion is procedurally inappropriate, I deny Petitioner's Second Motion for Summary Judgment. (Doc. No. 18).

2.   I note that Petitioner alludes to alleged ineffective assistance of counsel elsewhere than in his original Petition. (See, e.g., Doc. No. 13-1, PageID. 1642; Doc. No. 15, PageID. 1648; Doc. No. 18, PageID. 1655.)Such allusions are unavailing for several reasons: 1) Petitioner has not filed a Motion for Leave to Amend his Petition to add an ineffective assistance of counsel claim; 2) any such Motion would have been untimely, because Petitioner filed the Petition on the last available day; and 3) Petitioner makes those allusions in passing, with no meaningful argument that such alleged failings constituted constitutionally inadequate assistance of counsel, or cause therefore, much less that the outcome of any unfavorable result would have differed from what it was. See generally, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).Additionally, ineffective assistance of counsel claims can, themselves, be subject to procedural default where, as here, Petitioner fails to timely raise them in the state court. See Edwards v. Carpenter, 529 U.S. 446, 452–53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).I note that the State's Return of Writ also addresses the merits – as to which it finds none – of the defaulted claims. I decline to do more than state here that I agree with the State's analysis. It would add nothing, and be mere dicta, for me to review that portion of the Return and say more than I am doing here about it.

James G. Carr, Senior United States District Judge