Terrance Walter v. Bennie Kelly , 653 F. App'x 378 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0344n.06
No. 13-3742
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 22, 2016
DEBORAH S. HUNT, Clerk
TERRANCE WALTER, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
BENNIE KELLY, Warden, ) NORTHERN DISTRICT OF
) OHIO
Respondent-Appellee. )
)
)
BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Terrance Walter appeals the denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Walter
was convicted of aggravated murder, aggravated burglary, and felonious assault and sentenced to
a term of thirty-four (34) years to life imprisonment. Walter argues that he is entitled to habeas
relief on two grounds. First, he believes that the trial court’s denial of his mid-trial request to
represent himself violated his Sixth Amendment right to self-representation. Second, he asserts
that the Ohio Court of Appeals unreasonably applied federal law in upholding his felonious
assault conviction because there was insufficient evidence to support the essential elements of
that charge. For the reasons that follow, we affirm the district court’s denial of habeas relief.
No. 13-3742, Walter v. Kelly
I.
A.
On February 10, 2003, Samuel Sims Jr. (“Sims”) was shot to death in his garage. Sims’s
son, Samuel Sims, III (“Tres”), who was nine years old at the time, was the only witness to the
shooting. According to Tres’s testimony, he and his father arrived home on the evening of
February 10, 2003 around 9:00 pm. It was dark outside and there were no lights on outside the
house. Sims parked his car in the “turn-around driveway in front of the house,” exited the car and
walked towards the garage with Tres “[s]omewhere behind [him].” Trial Tr. Vol II 366:17–19,
368:21, ECF No. 7-4. Sims then opened the garage door with a remote and entered the garage.
Tres could not see his father at this point. After Sims entered the garage, a man wearing a black
ski mask and carrying a gun walked from the backyard “to roughly the doorway of the garage”
and fired several shots towards Sims. Trial Tr. Vol. IV 684:2–9, ECF No. 7-6. When the shots
were fired, Tres was standing at “the corner of the house where . . . the side of the garage is,” and
after the shots were fired he “peeked around the corner” of the house and saw the masked man
run by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 370:20–371:20, ECF No. 7-
4. Tres also testified that the shooter never looked at him.
Immediately after the shooting, Tres entered the garage and saw his father lying on the
ground. Tres was “in a lot of shock” and he “didn’t really know what was happening” so he
shook his dad and told him to “quit playing.” Id. at 373:17–21. He then called for his mother to
come downstairs. She called the paramedics and told Tres to put pressure on Sims’s wounds.
After his mother told Tres that his father had died, he felt “[n]ot too good,” he did not sleep in his
own room again, and he thought about what happened “all the time.” Id. at 377:15–378:4,
383:13–15. Following the shooting, Tres saw a psychologist for individual, hourly sessions once
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a week for a year. While Tres testified that he “never actually thought at the time that [he] really
needed” counseling, his mother thought he needed the therapy and that Tres “didn’t seem to
really grieve . . . [to] deal with it the way you would expect.” Id. at 386:11–15, 429:14–18.
After a year of counseling, the therapist referred Tres to group therapy because “he wasn’t
willing to open up and really participate in the one on one.” Id. at 431:10–21. Tres did not
participate in group therapy, but his mother believes that he still has “not really grieved and dealt
with” his father’s death and that “[b]ehaviorally . . . [Tres has] consistently gone down in
school . . . [and] doesn’t care about too many things.” Id. at 432:24–432:9, 434:7–15.
B.
On August 22, 2006, Walter (also known as Terrance Ward)1 and Antonio Campbell,
were indicted for murdering Sims and for feloniously assaulting Tres. Campbell subsequently
entered a plea agreement with the State, but Walter proceeded to trial.
On June 6, 2007, the jury in Walter’s trial was selected. On June 7, 2007, the jury visited
the crime scene and heard both sides’ opening statements as well as testimony from the coroner,
Nashall Sims, Sims’s wife and Tres’s mother, and Tres. At some point during Tres’s testimony,
the court held a sidebar where the court asked Thomas Shaughnessy, Walter’s counsel, to “get
[his] client under control.” Id. at 394:7–11. Shaugnessy explained that Walter wanted him to
“put Antonio Campbell and the defendant in front of [Tres] and have him say what’s the most
approximate height of the person who was there.” Id. at 394:14–19. The court responded, “[w]e
will not have this. If he wants to fire you, the both of you now and represent himself, I will be
glad to have a hearing and entertain that request, but I’m not going to have him behaving in this
fashion.” Id. at 395:3–7. Shaughnessy then told the court that he was not going to question Tres
further about the height of the shooter and “if the Court wants to break and inform [Walter] of
1
In the trial transcript, Walter is referred to as Ward.
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his ability to represent himself, that’s fine.” Id. at 395:14–18. The court declined to do so and
told Shaughnessy to “control” his client. Id. at 395:19–23.
The third day of trial, June 8, 2007, began with Walter’s request to speak with the court.
Walter then proceeded to complain about his counsel’s failure to get him a speedy trial, to which
the court responded that it was “not going to hear . . . these kinds of claims” because Walter had
“lawyers who are representing [him]” and that Walter “cannot represent [himself].” Trial Tr.
Vol. III 501:12–23, ECF No. 7-5. In response Walter said, “Okay. I don’t want to represent
myself.” Id. at 501:24–25. Walter and the court then engaged in a brief colloquy about the
failure of Walter’s counsel to question Tres further the previous day. The court eventually told
Walter, “You could represent yourself, I suppose.” Id. at 504:3. And after another brief
colloquy, Walter stated, “I would like to represent myself,” to which the court immediately
responded, “I’m not going to permit that.” Id. at 506:13–16. Walter indicated that he was
“okay” with the court’s decision “[a]s long as all this is on record.” Id. at 506:17–18. The court
denied Walter’s request stating that it was “calculated to cause delay” and that the court was “not
inclined to consider [Walter’s] request at this juncture” because it was “well into the trial, to be
permitted to represent himself.” Id. at 507:24–508:2; Court Journal Entry 1, ECF No. 7-1.
C.
Following trial, the jury convicted Walter of the aggravated murder of Sims, of the
felonious assault of Tres, and of two counts of aggravated burglary. The trial court sentenced
Walter to life in prison on the aggravated murder charge, without the possibility of parole for the
first twenty years, plus six years for the firearm specification, a consecutive eight-year term for
the felonious assault charge, and a concurrent five-year term for both aggravated burglary
charges. The Ohio Court of Appeals vacated Walter’s aggravated burglary convictions and
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affirmed his other convictions. State v. Walter, No. 90196, 2008 WL 2687905 (Ohio Ct. App.
July 10, 2008). The Court of Appeals denied Walter’s motion to reopen his case, State v. Walter,
No. 90196, 2009 WL 546203 (Ohio Ct. App. Mar. 3, 2009), and the Ohio Supreme Court denied
Walter leave to appeal his remaining convictions.
On July 10, 2011, Walter filed a petition for a writ of habeas corpus in the district court
for the Northern District of Ohio. The district court denied Walter’s petition and declined to
issue a certificate of appealability. Walter timely appealed, and this Court issued Walter a
certificate of appealability.
II.
This Court reviews de novo a district court’s denial of habeas relief. Nali v. Phillips,
681 F.3d 837, 840 (6th Cir. 2012). Where a state court has adjudicated a claim on the merits,
this court may grant habeas relief only if the state court’s decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or if it was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
A state court’s factual determinations “shall be presumed to be correct” unless the petitioner
rebuts this presumption “by clear and convincing evidence.” Id. at § 2254(e)(1).
A. Sixth Amendment Self-Representation
Walter asserts that the state court violated his Sixth Amendment right to self-
representation by denying his request to represent himself. Walter’s request came at the
beginning of the third day of trial,2 after the jury had visited the crime scene and heard testimony
2
The parties disagree over whether June 8, 2007, was the third day or fourth day of trial. The Ohio Court
of Appeals noted that Walter’s request was on the fourth day of trial, Walter 2008 WL 2687905 at *4, but on appeal
Walter argues that June 5, 2007, was not the first day of trial because the court only disposed of pre-trial motions
and other preliminary matters before the jury was empaneled. Whether Walter’s request came on the third or fourth
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from three people, including the only witness to the shooting, Tres Sims. The trial court denied
the request as untimely, noting that the trial had progressed too far to allow Walter to represent
himself. The Ohio Court of Appeals affirmed. Walter, 2008 WL 2687905, at *4.
The Sixth and Fourteenth Amendments “guarantee that a person brought to trial in any
state or federal court must be afforded the right to the assistance of counsel before he can be
validly convicted and punished by imprisonment.” Martinez v. Court of Appeal of California,
Fourth Appellate Dist., 528 U.S. 152, 154 (2000). In Faretta v. California, the Supreme Court
recognized that the Sixth and Fourteenth Amendments also provide an inverse right of criminal
defendants to “proceed without counsel when [they] voluntarily and intelligently elect[] to do
so.” 422 U.S. 806, 807 (1975) (emphasis added). In Martinez, the Court clarified that the right to
self-representation was “not absolute.” 528 U.S. at 161. “Even at the trial level . . . the
government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.” Id. at 162. In light of the government’s
interests, “most courts” require criminal defendants to elect to conduct their own defense in “a
timely manner.” Id. at 162.
Before assessing the merits of Walter’s claim, we first address an issue of
characterization. Walter, in an attempt to avoid AEDPA deference, argues that the state court’s
decision was the product of an inadequate state procedural rule. See 28 U.S.C. § 2254(d)(1)–(2);
Rice v. White, 660 F.3d 242, 252 (6th Cir. 2011) (“It is well settled that we may review de novo
an exhausted federal claim that was not adjudicated on the merits in state court.”).
The Ohio Court of Appeals affirmed the trial court’s denial of Walter’s self-
representation request, reasoning:
day of trial is not dispositive. It is undisputed that the request came several days into trial after the jury had heard
testimony from several witnesses, including the only eye-witness to the shooting.
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No. 13-3742, Walter v. Kelly
[P19] The Sixth Amendment to the United States
Constitution provides: “In all criminal prosecutions, the accused
shall * * * have the Assistance of Counsel for his defense.”
Similarly, the Ohio Constitution provides: “In any trial, in any
court, the party accused shall be allowed to appear and defend in
person and with counsel.” Section 10, Article I, Ohio
Constitution.
[P20] The United States Supreme Court has also
recognized that the Sixth Amendment right to the assistance of
counsel implicitly embodies a “correlative right to dispense with a
lawyer’s help.” Adams v. United States ex rel. McCann (1942),
317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268. The court
clarified this right to proceed without counsel in the landmark case
of Faretta v. California (1975), 422 U.S. 806, 95 S. Ct. 2525, 45
L. Ed. 2d 562. “Although not stated in the Amendment in so many
words, the right to self-representation-to make one’s own defense
personally-is thus necessarily implied by the structure of the
Amendment. The right to defend is given directly to the accused;
for it is he who suffers the consequences if the defense
fails.”(Footnote omitted.) Id. at 819-820, 422 U.S. 806, 95 S. Ct.
2525, 45 L. Ed. 2d 562. Accord State v. Gibson (1976), 45 Ohio
St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus (“a
defendant in a state criminal trial has an independent constitutional
right of self-representation and * * * may proceed to defend
himself without counsel when he voluntarily, and knowingly and
intelligently elects to do so.”).
[P21] The right is not unlimited, however, as it must be
explicit, unequivocal and timely made. State v. Cassano, 96 Ohio
St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81. In that case, the Court
noted that Cassano’s request was untimely because it was made
three days before the trial was to start. Id., citing to United States
v. Mackovich (C.A.10, 2000), 209 F.3d 1227, 1237 (requests made
six to ten days before trial “were merely a tactic for delay”);
United States v. George (C.A.9, 1995), 56 F.3d 1078, 1084
(request untimely where it was made on eve of trial). Accord State
v. Halder, Cuyahoga App. No. 87974, 2007-Ohio-5940 (request
untimely where it was made four days before trial and only after
the trial court had refused to disqualify trial counsel and appoint a
third lawyer).
[P 22] In this matter, defendant made his request on the
fourth day of trial. The trial court therefore properly determined
that the request was not timely. The request was properly denied.
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Walter, 2008 WL 2687905, at *4.
“When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.” Harrington v. Richter,
562 U.S. 86, 99 (2011). The presumption is rebuttable and may be overcome “when there is
reason to think some other explanation for the state court’s decision is more likely.” Id. at 99–
100. To determine whether the presumption has been overcome, this Court reads the state court
decision “as a whole,” looking to various factors including “the language used by the state court
in its discussion of the claim at issue and the context of that discussion.” Barton v. Warden, S.
Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015) (citation omitted).
In denying Walter’s request, the state appellate court cited Faretta, the Supreme Court’s
seminal case on the Sixth Amendment right to self-representation. Walter, 2008 WL 2687905, at
*4. The court also relied on an Ohio Supreme Court case, Cassano, which itself relied on two
cases from the Ninth and Tenth Circuits, for the proposition that Walter’s right to represent
himself was not unlimited and depended on the timing of his request. Id. (citing United States v.
Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000); United States v. George, 56 F.3d 1078, 1084
(9th Cir. 1995)). The Ohio Court of Appeals expressly understood that it was deciding a federal
constitutional question, and there is no indication that its decision rested solely on state law
procedural principles. The court did not rely on an explicit Ohio procedural rule, nor did it
purport to apply a procedural rule derived from state common law. See Harris v. Reed, 489 U.S.
255, 263 (1989) (“[A] procedural default does not bar consideration of a federal claim on either
direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on a state procedural bar.” (citation omitted)). Rather,
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the court analyzed the merits of Walter’s claim head on. It looked to analogous federal and state
cases and determined that a request made several days into trial was an untimely assertion of the
Sixth Amendment right to self-representation. Walter, 2008 WL 2687905, at *4.
Walter stresses that the only reason the trial and appellate courts rejected his claim is
because it was deemed untimely, implying that timeliness is solely a procedural consideration.
This argument ignores Jones v. Bell, 801 F.3d 556 (6th Cir. 2015). There, a state habeas
petitioner raised the same argument Walter does here: that a state court decision rejecting a self-
representation request on timeliness grounds was based solely on a per se state procedural bar.
Id. at 566. In rejecting this argument, this Court concluded that “[i]t is not a state-court
procedural rule regarding timing to invoke one’s right to self-representation; it is a federal-law
substantive rule—part of Faretta’s holding—about the limits of the self-representation right” and
that “denying a self-representation request because of timing can be based on the nature of the
federal right, not on the state procedure.” Id.
The state courts’ determination that Walter’s request was untimely is founded on the
substantive nature of his right to self-representation at that particular juncture of the trial, not on
the fact that Walter had procedurally defaulted under state law. See id. (“[T]iming is part of a
court’s substantive analysis under Faretta.”). Walter cannot overcome the presumption that the
state court decided his federal claim on the merits, and therefore we proceed to review his Sixth
Amendment claim under AEDPA’s deferential standard.
Failing in his inadequate state law grounds argument, Walter contends that the state
court’s decision was an objectively unreasonable application of federal constitutional law. He
argues that Faretta and Martinez require courts to explicitly balance a criminal defendant’s
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interest in self-representation and the government’s interest in efficiency and integrity of the trial
before rejecting a Sixth Amendment self-representation claim.
This Court may not grant federal habeas relief for claims subject to § 2254(d) unless the
petitioner shows that the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); Richter, 562 U.S. at 100.
The state court’s denial of Walter’s request was not contrary to clearly established federal
law. In Hill v. Curtin, this court, sitting en banc, determined that “to the extent that Faretta
addresses timeliness, as a matter of clearly established law it can only be read to require a court
to grant a self-representation request when the request occurs weeks before trial.” 792 F.3d 670,
678 (6th Cir. 2015) (emphasis added); see also Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir.
2007) (“Faretta does not articulate a specific time frame pursuant to which a claim for self-
representation qualifies as timely. . . . The Supreme Court has never held that Faretta’s ‘weeks
before trial’ standard requires courts to grant requests for self-representation coming on the eve
of trial”).3 The Hill court went on to note that “the Supreme Court has never defined the precise
contours of Faretta’s timing element.” 792 F.3d at 679. Likewise, the Supreme Court did not
announce any clearly established law on timeliness in Martinez. The Martinez Court held only
that the right to self-representation was “not absolute” and that it could be forfeited if not
asserted in a timely manner. Id. (quoting Martinez, 528 U.S. at 161–62). Courts have
consistently held that requests made during or on the eve of trial are not timely. See id. at 677–
81 (denying habeas relief where self-representation request came on first day of trial); United
3
While we cannot rely on circuit precedent as clearly established federal law for purposes of § 2254(d)(1),
this court may “look to circuit precedent to ascertain whether it has already held that the particular point in issue is
clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51 (2013) (per
curiam).
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States v. Conteh, 234 F. App’x. 374, 381 (6th Cir. 2007) (upholding denial of a motion for self-
representation “filed after trial began”); United States v. Pleasant, 12 F. App’x 262, 266–67 (6th
Cir. 2001) (upholding denial of motion for self-representation “on the day of trial with
prospective jurors standing outside of the courtroom.”); Robards v. Rees, 789 F.2d 379, 383–84
(6th Cir. 1986) (same).4
Nor was the state court decision an unreasonable application of federal law. “[A] federal
habeas court may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 410–11 (2000); see Richter, 562 U.S. at 102–03. A state court
unreasonably applies federal law when its decision is “so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citation omitted).
Walter suggests that, in light of Faretta and Martinez, it was unreasonable for the court to
dismiss his request as untimely without first explicitly assessing his interests in self-
representation and the government’s competing interests in an efficient and reliable trial. This
argument is unavailing.
First, the state court’s consideration of Walter’s request included consideration of the
request’s probable effect on the proceeding. The trial court briefly noted that it was denying
Walter’s request because it came “well into the trial,” or in other words, at that juncture,
4
Walter relies on Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008) for the proposition that a midtrial
invocation of the Sixth Amendment right to self-representation can be timely, but his reliance is misplaced. Not
only does Moore not qualify as clearly established federal law under § 2254(d), it is also readily distinguishable. In
Moore, this Court granted habeas relief where the court completely failed to exercise its discretion to rule on the
request to proceed pro se. Id. at 403. Here, on the other hand, the court immediately addressed Walter’s request and
denied it as untimely.
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allowing Walter to proceed pro se would have unduly disrupted the trial. Trial Tr. Vol. III
507:24–508:2, ECF No. 7-4. The state appellate court affirmed this finding, noting that Walter
“made his request on the fourth day of trial. The trial court therefore properly determined that
the request was not timely.” Walter, 2008 WL 2687905 at *4.
The conclusion that a self-representation request was untimely implies that the request
came at a point in time when the government’s interests outweighed the defendant’s. See
Martinez, 528 U.S. at 162 (“Even at the trial level . . . the government’s interest in ensuring the
integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his
own lawyer”); Jones, 801 F.3d at 566 (“Timing is part of a court’s substantive analysis under
Faretta.”). While the state courts did not provide an overly detailed analysis of why Walter’s
request was denied, “[a] trial judge may fairly infer on the day of trial—as the jurors are on their
way to the courtroom—that a defendant’s last-minute decision to represent himself would cause
delay, whether or not the defendant requests a continuance.” Hill, 792 F.3d at 681. Here, the
request came not on the first day of trial, but on the third day, after the jurors had heard
testimony from three witnesses, including the only eye-witness to the crime.
Second, Faretta and Martinez shed little light on the existence of Walter’s proposed
structural requirement. Faretta, while identifying a defendant’s constitutional interest in acting
as his own lawyer, says nothing of the competing interests implicated by a defendant’s request to
proceed without counsel. See 422 U.S. 806. While Martinez recognized that a self-
representation request involves “the government’s interest in ensuring the integrity and
efficiency of the trial” and the defendant’s interest in “acting as his own lawyer,” 528 U.S. at
162, apart from this oblique reference, there is no requirement for courts to overtly weigh these
interests. Far beyond disagreeing, fair-minded jurists would search Supreme Court precedent in
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vain for any clearly established requirement to explicitly weigh the government’s and the
defendant’s interests at the time a Sixth Amendment self-representation request is made. It
would be incongruent with AEDPA’s deferential scheme of review to fault the state court for
failing to do something it had no clearly established obligation to do.
B. Sufficiency of the Evidence
Walter next asserts that no rational trier of fact could have convicted him of feloniously
assaulting Tres and that it was an unreasonable application of federal law for the Ohio Court of
Appeals to deny his sufficiency of the evidence claim.
In assessing a sufficiency of the evidence claim, the key 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.” Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “[T]he Jackson v. Virginia standard is so demanding that ‘[a] defendant who challenges
the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.’”
Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Ohio defines felonious assault as follows:
No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s
unborn;
(2) Cause or attempt to cause physical harm to another or to
another’s unborn by means of a deadly weapon or
dangerous ordinance.
Ohio Rev. Code § 2903.11(A)(1)–(2). Walter was indicted under Section 2903.11(A)(1), on the
theory that Tres suffered severe psychological injuries as a result of seeing his father murdered.
To convict Walter of felonious assault under Section 2903.11(A)(1), the State had to prove
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beyond a reasonable doubt that Tres suffered “serious physical harm” and that Walter knowingly
caused this harm. Section 2901.01(A)(5)(a) defines “serious physical harm” to include “any
mental illness or condition of such gravity as would normally require hospitalization or
prolonged psychiatric treatment.” Knowingly is defined as follows:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result
or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist.
Ohio Rev. Code § 2901.22(B). Walter takes issue with the sufficiency of the State’s evidence on
both elements.
1. Serious Physical Harm
Walter asserts that the evidence adduced at trial was insufficient to lead any rational trier
of fact to the conclusion that Tres suffered serious physical harm within the meaning of Ohio
Revised Code Section 2901.01(A)(5)(a). Of particular relevance to this claim is trial testimony
that Tres was “in a lot of shock” following the shooting and “didn’t really know what was
happening,” that Tres thought about the shooting “[a]ll the time,” that Tres’s mother believed he
needed counseling and had not properly processed the shooting, that Tres had one-on-one,
weekly sessions with a child psychologist for about a year, and that “behaviorally . . . [Tres has]
consistently gone down in school . . . [and] doesn’t care about too many things.” Trial Tr. Vol II,
386:11–15, 429:14–18, 431:10–21, 432:24–432:9, 434:7–15, ECF No. 7-4.
The Ohio Court of Appeals affirmed Walter’s conviction for felonious assault, but in
doing so, it ignored the State’s psychological injury theory, and instead mistakenly applied
another provision of Ohio’s felonious assault statute, Section 2903.11(A)(2), which provides that
no person shall “[c]ause or attempt to cause serious physical harm to another . . . by means of a
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deadly weapon or dangerous ordnance.” Walter, 2008 WL 2687905, at *7. The court did not
address Walter’s claim that there was insufficient evidence to prove that Tres suffered “serious
physical harm.” Id. Thus, we look to the state trial court’s denial of Walter’s motion for
acquittal as the last reasoned state-court opinion on this issue. See Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991) (“[W]here there has been one reasoned state judgment rejecting a federal claim,
later unexplained orders upholding that judgment or rejecting the same claim rest upon the same
ground.”)
When there has been a reasoned state court decision on the merits, we do not review
sufficiency of the evidence claims de novo. Rather “the law commands deference at two
levels. . . . First, deference should be given to the trier-of-fact’s verdict, as contemplated by
Jackson; second, deference should be given to the [state court’s] consideration of the trier-of-
fact’s verdict, as dictated by AEDPA.” Lafler, 658 F.3d at 531 (quoting Tucker v. Palmer,
541 F.3d 652, 656 (6th Cir. 2008)). In other words, it is not our duty to determine whether any
rational trier of fact could have found that Walter committed the essential elements of felonious
assault beyond a reasonable doubt. Rather, we analyze whether, in considering the jury’s
verdict, the last reasoned state court decision applied Jackson’s deferential standard
unreasonably.
The trial court called this a “close question,” but ultimately denied Walter’s motion.
Trial Tr. Vol. VII 1345:9–25, ECF No. 7-9. The court noted that there was no evidence of a
distinct mental illness, but that it was arguable that the trial evidence supported a finding that
Tres suffered from “a condition of such gravity as would normally require prolonged psychiatric
treatment.” Id. at 1345:15–20. The court pointed out that “prolonged” was not defined in
§ 2901.01(A)(5)(a) but ultimately ruled that a reasonable jury could “conclude that a year of
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psychiatric counseling may be prolonged or may meet the definition of prolonged.” Id. at
1345:21–25.
While this is, as the trial court surmised, a close question, we do not believe that the trial
court’s decision was an unreasonable application of Jackson. According to Walter, the evidence
adduced at trial provides no basis for a rational trier of fact to conclude that Tres suffered from a
condition so grave “as would normally require hospitalization or prolonged psychiatric
treatment.” CA 6 Rawle 53, Pet’r Br. at 57 (quoting Ohio Rev. Code § 2901.11(A)(5)(a). Walter
cites multiple Ohio cases where courts upheld felonious assault convictions based on expert
testimony from psychiatrists about the specific mental illnesses suffered by the victims. See
State v. Carpenter, No. 94709 2011 WL 285837, at *2–3 (Ohio App. Jan. 20, 2011); State v.
Cooper, 743 N.E.2d 427 (Ohio Ct. App. 2000); State v. Hodges, 669 N.E.2d 256 (Ohio Ct. App.
1995). But the Ohio Court of Appeals has also affirmed an aggravated robbery5 conviction
under circumstances similar to the present case. See State v. Ridgeway, No. 82713, 2004 WL
229520 at *2 (Ohio Ct. App. Feb. 5, 2004). In Ridgeway, no medical experts testified but the
victim testified that “she [had] been diagnosed with post-traumatic stress and [had] been
receiving treatment for her mental condition by a psychologist once a week as a result of the
incident.” Id. at *2.
Unlike the victim in Ridgeway who suffered from PTSD, Tres’s specific condition(s) was
not identified at trial. But it does not appear that the state was required to do so.
Section 2901.01(A)(5)(a) defines “mental illness or condition” only in relation to the type of
treatment normally required and the length of time treatment is typically necessary. Apart from
this, the term is undefined. As the trial court pointed out, the jury was free to find that Tres
suffered from a condition within the definition of the statute. Tres visited a therapist for about a
5
“Serious physical harm” is an element of aggravated robbery. Ohio Rev. Code § 2911.01(A)(3)
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No. 13-3742, Walter v. Kelly
year, and at the conclusion of those sessions, the therapist suggested even more therapy. Taking
the evidence in the light most favorable to the prosecution, this evidence is more than enough to
persuade a rational trier of fact that Tres suffered “serious physical harm.”
Moreover, in affirming the jury’s finding, the trial court was defining what qualified as
“serious physical harm” under Section 2901.11(A)(5)(a). “State law means what state courts say
it means” and “[w]hen a state court enters or affirms a conviction, it is saying that the evidence
satisfies the legal norms.” Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002) (quoting Bates v.
McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991)). Viewed this way, Walter’s claim amounts to an
argument that the “state court misunderstood the substantive requirements of state law” and such
claims are beyond the reach of federal habeas courts. Id.
2. Knowingly
Walter next asserts that because he never pointed or fired the gun in Tres’s direction, it
was unreasonable to find that he knowingly assaulted Tres. In making this argument, Walter
relies heavily on Nash v. Eberlin, a case where this Court granted habeas relief and overturned a
conviction for felonious assault under Ohio Revised Code Section 2903.11(A)(2). 258 F. App’x
761, 766 (6th Cir. 2007). There, we recognized that, under Section 2903.11(A)(2), “the act of
pointing a gun at someone, without further evidence of the actor’s intention, is not sufficient
evidence for a felonious assault conviction.” Id. (citing State v. Brooks, 542 N.E.2d 636, 642
(Ohio 1989)). The court further concluded that:
[i]f there was insufficient evidence of felonious assault in such
cases where a gun was pointed at someone, then the Ohio Court of
Appeals could not reasonably determine that a rational trier of fact
could have found beyond a reasonable doubt that a felonious
assault was committed in this case, in which the evidence does not
indicate that the gun was pointed at anyone.
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Id. Walter also relies on State v. Mills, where the defendant’s conviction under
Section 2903.11(A)(2) was overturned. 582 N.E.2d 972 (Ohio 1992). In Mills, the alleged
victim, a bank employee, was “not in the line of fire when the gunman entered [the bank] and hid
underneath her desk during the remainder of the robbery.” Id. at 984. The Ohio Supreme Court
found that the record was “insufficient to support the finding that [the defendant] knowingly
attempted to physically harm [the victim].” Id. On the strength of Nash, Mills, and other Ohio
state cases, Walter discerns a rule: a “defendant does not ‘knowingly’ cause the mental variant of
‘serious physical harm’ in violation of Section 2903.11(A)(1) unless he fires a weapon in the
direction of an intended victim or a bystander.” CA6, R. 53, Appellant Br. at 50, 61. Based on
this rule, Walter argues that the Ohio Court of Appeals’s application of Jackson was
unreasonable because “there was no evidence that a shot was fired in the direction of the alleged
victim” as required by Ohio case law on felonious assault. Id. at 61.
The major problem with Walter’s theory is that Mills, Nash, and the state cases Nash
analyzed all dealt with convictions under Section 2903.11(A)(2), not (A)(1). Under (A)(2), the
use of a “deadly weapon or dangerous ordnance” is required. Convictions under (A)(1), on the
other hand, require no such means. “Nothing in the language of R.C. 2903.11(A)(1) indicates a
legislative intent to limit the scope of the statute to cases where the ‘serious physical harm’ to the
victim results from a battery.” State v. Elliott, 663 N.E.2d 412, 415 (Ohio Ct. App. 1995); see
also Cooper, 743 N.E.2d at 434 (“Not only may a person commit felonious assault by
perpetrating an act causing mental illness, but a person may commit felonious assault when his
or her failure to act causes mental illness.”) The state’s theory in this case was not that Walter’s
use of the gun to shoot Sims also harmed Tres, but rather that killing Sims in front of Tres caused
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Tres serious psychological harm.6 See Cooper, 743 N.E.2d at 434 (“It is clear that a defendant
may knowingly cause a person to suffer mental illness constituting the ‘serious physical harm’
necessary for a conviction of felonious assault under R.C. 2903.11(A)(1) by perpetrating a single
act . . . .”). It does not matter that Walter never threatened Tres with the gun or never fired a shot
in his direction; all that matters is whether any rational jury could have found that Walter acted
knowingly.
Walter’s decision to focus on 2903.11(A)(2) is understandable given the Ohio Court of
Appeals’s emphasis on that portion of the statute. See Walter, 2008 WL 2687905, at *7. As will
be discussed in more detail below, the court erroneously assumed that Tres was in the garage
when his father was shot, which led it to rely on Ohio case law upholding assault convictions
under 2903.11(A)(2), not (A)(1), where defendants knowingly fired shots into rooms occupied
by multiple persons. Id. (citing State v. Lee, No. 97APA12-1629, 1998 WL 614608, at *1–*6
(Ohio Ct. App. Sept. 3, 1998)). Based on this reasoning, the Court of Appeals concluded that,
because Tres was in close proximity to Sims when Walter shot Sims, Walter knowingly
assaulted Tres. Id. The Ohio Court of Appeals affirmed Walter’s felonious assault conviction
based on an unreasonable determination of the facts, and, thus, we review this portion of
Walter’s sufficiency of the evidence claim de novo.
We must first determine whether there was sufficient evidence that Walter knew Tres
was present when he murdered Sims. Tres testified that the masked shooter never looked at him,
that when his father was shot, he was standing at “the corner of the house where . . . the side of
the garage is,” and that after his father was shot he “peeked around the corner” of the house and
saw a masked man run by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 371:1–
6
On appeal the State maintains the same theory: “Walter . . . caused Tres serious physical harm—the
trauma of witnessing the murder of his father . . . of showing his mother where his father lay and putting pressure on
the wounds.” CA6, R. 56, Appellee Br. at 38.
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No. 13-3742, Walter v. Kelly
372:24, 401: 10–16, 403:14–22. The state asserts that Walter “admitted that he had shot a man
in front of his child.” CA6, R. 56 Appellee Br. at 44. The state’s position is based on the
testimony of Carlos Williams who stated that he asked Walter whether he “[shot] somebody in
front of their kid” to which Walter responded “I had to do what I had to do, and I shot the guy.”
Trial Tr. Vol. IV 1348:8–25, ECF No. 7-6. “[A] federal habeas corpus court faced with a record
of historical facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
the prosecution.” Jackson, 443 U.S. at 326. While the state’s case on this point was thin, we
conclude that a rational trier of fact could have found that Walter knew Tres was there.7
The question then becomes whether a rational jury could find that Walter was aware that
his conduct of shooting Sims would probably cause Tres serious psychological harm. The facts
of this case are similar to Elliott. 663 N.E.2d 412. There, the defendant was charged with
feloniously assaulting his six-year-old son after he murdered his wife, the child’s mother, and left
her dead body in the kitchen. Id. at 413. The defendant’s son was asleep in another room and
did not discover his mother’s body until the next morning. Id. at 413, 417. The state prosecuted
Elliott for felonious assault on the theory his “failure to act to prevent [the child] from
discovering his mother’s body . . . resulted in serious physical harm to Eddie.” Id. at 415. The
Ohio Court of Appeals affirmed the defendant’s felonious assault conviction based on his
omission, but the court premised liability, in part, on defendant’s parental duty to protect his
child and his failure to do so by removing his wife’s body. Id. In this case, unlike in Elliott,
Walter had no parental duty to Tres. But here, unlike in Elliott, liability is premised on an
affirmative act, not on an omission.
7
Walter concedes, on appeal, that the evidence can be construed this way. See CA6, R. 53, Appellant Br. at
65 n.16 (“Walter’s response [to Carols Williams’ question], at most suggests that he was aware of the boy’s
presence generally.”).
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No. 13-3742, Walter v. Kelly
The Elliott court noted that the “much more difficult question” was whether there was
sufficient evidence to allow a rational jury to find that defendant was “aware [his son] would
probably suffer ‘serious physical harm’” upon discovering his mother’s body. Id. at 417. The
court stated that the defendant’s state of mind could be “determined from reasonable inferences
arising from the evidence,” id. (citation omitted), and ultimately concluded:
In the final analysis, we can envision few things more
traumatic to a six-year-old child than to find his murdered mother’s
body in a pool of blood, unless it be to see the actual murder; if the
circumstances of this case do not allow the inference that
defendant knew serious physical harm in the form of mental injury
to Eddie was the probable result of defendant’s failure to act, we
have difficulty imagining what circumstances would. While these
facts do not mandate a conclusion that defendant acted knowingly,
the evidence was sufficient to allow the trial judge to consider the
issue. Thus, the trial court did not err in overruling defendant’s
[motion for acquittal].
Id. at 418 (emphasis added). In light of Elliott, we conclude that a rational jury could have found
that when Walter shot Sims he was aware that it would likely cause Tres serious psychological
harm, within the meaning of 2903.11(A)(1).
Relatedly, Walter argues that the Ohio Court of Appeals’s denial of his sufficiency of the
evidence claim rested on an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In affirming Walter’s
conviction, the Ohio Court of Appeals made the following factual findings:
According to Tres, his father opened the garage with the
remote opener. His father got out of the car and Tres followed him
as he entered the garage. Tres then observed someone dressed in
black with a ski mask run towards them from the back of the
house. Tres testified that he saw the individual shoot into the
garage then flee.
Walter, 2008 WL 2687905, at *1. The Court of Appeals also relied on Lee, which held that
“firing into a bedroom supports an inference that the assailant was aware of the circumstances of
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his action, and knowingly caused or attempted to cause harm to the occupants therein.” Id. at
*7–*8 (citing Lee, 1998 WL 614608, at *4). The court found Lee’s reasoning applicable to
Walter’s case, noting that “the evidence demonstrated that defendant opened fire into the garage
and that Tres was behind his father and in close proximity to the areas where spent rounds and a
casing was recovered.” Id. at *8. Based on its factual findings and its reliance on Lee, it appears
that the Ohio Court of Appeals assumed that Tres was in the garage when his father was shot.
There is no support in the record for this assumption. Tres testified that when his father was
shot, he was standing at “the corner of the house where . . . the side of the garage is,” and that
after his father was shot he “peeked around the corner” of the house and saw a masked man run
by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 371:1–372:24, 401: 13–16.
Tres’s testimony is uncontroverted and provides “clear and convincing” evidence that he was not
in the garage. 28 U.S.C. § 2254(e)(1). It was unreasonable for the Ohio Court of Appeals to
assume otherwise. The state court’s error, however, is not one upon which habeas relief may be
grounded because it did not result in a constitutional error. State prisoners are entitled to a writ of
habeas corpus only if they are in custody in violation of the Constitution or laws or treaties of
the United States. Id. at § 2254(a). Section 2254(d)(2) “does not repeal the command of
§ 2254(a).” Wilson v. Corcoran, 562 U.S. 1, 5–6 (2010). As our preceding discussion shows, a
rational trier of fact could have found that Walter violated Ohio’s felonious assault statute.
Therefore, the state court’s factual error, unreasonable though it was, is not grounds for relief.
III.
For the foregoing reasons, we affirm the district court’s denial of habeas relief.
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