Mark Ryder v. Phillip Kerns

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0437n.06
No. 07-4121 FILED
Jun 24, 2009
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MARK A. RYDER, )
)
Petitioner-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Northern
) District of Ohio
PHILLIP KERNS, Warden )
)
)
Respondent-Appellee. )
Before: MCKEAGUE and GRIFFIN, Circuit Judges; and WEBER, District Judge.*
PER CURIAM.
Petitioner-Appellant, Mark Ryder (“Ryder”) appeals the district court’s denial of his habeas
corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner contends on appeal that the district
court erred in finding that his trial counsel was not ineffective and that the state trial court’s failure
to grant a hearing on the issue did not violate his due process rights.
We conclude the district court correctly found that the state courts’ decisions reasonably
comport with clearly established Federal law. For the following reasons, we AFFIRM the decision
of the district court and DENY the Writ .
*
The Honorable Herman J. Weber, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
1
I.
On November 10, 1998, an Ohio grand jury returned a ten-count Indictment against Ryder.
Count One charged Ryder with domestic violence on September 5, 1998, a fourth degree
misdemeanor. The remaining counts charged violations of the law on October 5, 1998. The most
serious offenses charged were aggravated burglary and kidnaping, first degree felonies with a
potential sentence of ten years imprisonment each, and felonious assault, a second degree felony with
a potential sentence of eight years imprisonment. The remaining charges were misdemeanors which
run concurrently to felony sentences by operation of law. Ohio Rev. Code § 2929.41(A) (Anderson
1998).
The charges arose from allegations made by Theresa Hyer (“Hyer”) who told police on
October 5, 1998 that in the pre-dawn hours of that day petitioner broke into her house, and dragged
her out of her house, had a knife at her throat, pulled her into her van, savagely beat her, and
threatened to kill her if she called the police.
The case was tried to a jury. The facts of the October 5, 1998 crimes, as adduced at trial are
set forth in the Decision of the Court of Appeals for the Ninth District. According to the Court of
Appeals:
Ryder and Theresa Hyer were romantically involved from sometime in 1993
until August 1998. Theirs was a stormy, on-again, off-again relationship, at least
from the time their son was born, in 1996, to the fall 1998 events that formed the
basis of the charges against Ryder. Hyer testified that she wanted to let Ryder see his
son but did not want to be personally involved with Ryder. Both the State and Ryder
submitted evidence of some consensual contact during the relevant period of time.
Despite the existence of an intimate relationship with Ryder, Hyer testified that she
never let him in her house when her children were there. Her daughter also testified
that Ryder was never invited over and into the house.
Hyer testified that on October 5, 1998, she was sleeping on the couch in her
combination bedroom/den. Some time between midnight and dawn she was
2
awakened by the sensation of “a hand over [her] mouth.” She immediately
recognized that the hand belonged to Ryder. He held one hand on her mouth
“squishing my face” and with the other hand “pulling my hair, dragging me out the
side door.” She was prevented from screaming because of his hand over her mouth.
She testified, during cross examination, that Ryder brandished a knife when he
awakened her and that he threatened to slit her throat if she screamed. With respect
to whether she walked, or was dragged out the door, Hyer testified that she didn’t
resist as much as she might have because “the more I resisted the worse the pain
was,” and that “once he threatened to slit my throat, that whatever he told me to do,
I was going to do it.” Nonetheless, she testified that her [sic] she did not willingly
comply with his demand that she accompany him outside the house.
Hyer testified that once Ryder got her in her van, which was parked in the driveway,
he sat on top of her, punched her repeatedly and “twisted my leg ***so hard *** that
I never, ever in my whole life felt pain like that, ever.” Once it began to get light
outside, Ryder left. Hyer testified that, before he left, “He told me if I called the
police he was going to kill me.”
Hyer went back into her house. Her daughter came downstairs shortly thereafter and
discovered a badly bruised Hyer sitting in the back room crying. Hyer called a friend,
who came over. The friend summoned the police on Hyer’s behalf. Officer Marrero
arrived at Hyer’s home close to 11:00 a.m. on October 5. He testified that Hyer
repeatedly said she was “ afraid that this guy was going to kill her.” During his
interview with Hyer, “She would put her hands through her hair, and as she did this,
wads of hair were mangled through her fingers.”
Hyer also testified about the months leading up to the events of October 5th. She told the
jury about giving birth to Ryder’s child and how bitter he had become when she wrote him a letter
explaining that she did not want petitioner to disrupt their child’s life. She explained that he had
become mean and violent during his recent incarceration, that he frequently drank to excess, and it
was becoming increasingly difficult to deal with him regarding their son. She described situations
where the petitioner had stalked her and had been removed from her house in the middle of the night
by the police, that a temporary protection order had been issued, and he told her he would stalk her
and threaten people around her until one of them died.
The Ohio Court of Appeals also noted:
3
Carrie Covender, a long time family friend of Ryder’s, testified on his behalf.
According to Covender, she saw Hyer twice on Saturday, October 7, 1998. The first
time Hyer was walking unassisted to her car carrying two pumpkins, and later that
evening Hyer was fast dancing. She testified Hyer had no visible bruises or other
injuries on that day, but that if Hyer was injured as severely as the evidentiary
photograph indicated, Covender would have noticed it. When confronted with the
fact that October 7, 1998, was a Wednesday, Covender was certain that she saw Hyer
on a Saturday. She was also certain that she saw Hyer in October because the
pumpkin trailer didn’t set up until the beginning of October like “when they sold
Christmas trees there, it was the 1st of December.” She testified she was certain it
was the Saturday after Ryder was arrested when she saw Hyer, because she recalled
being surprised when Ryder’s sister reported the next day that he had been arrested
for beating Hyer.
Gregory Kimbrough also testified on behalf of Ryder. He was Ryder’s employer, and
Ryder lived in a trailer on Kimbrough’s property. He testified that Hyer appeared at
his house on October 5, 1998, at approximately 2:00 a.m. According to him, she left
about a half hour later. Because Ryder had made it clear to Kimbrough that he did
not want to see Hyer, Kimbrough falsely told Hyer that Ryder was not there.
Kimbrough testified that he called Ryder at approximately 4:00 a.m. and spoke with
him, and that at about 7:00 a.m. he awakened Ryder for work. On cross-examination,
Kimbrough’s trial testimony was challenged by reference to his testimony at the
preliminary hearing. At that proceeding he testified that he called Ryder at “about
4:30 a.m. ***, but the phone just kept ringing.” At that hearing he also testified that
he went to the trailer and heard movement shortly after being unable to reach Ryder
by phone, but did not actually make contact with Ryder until seven or seven-thirty
in the morning. The jury was specifically cautioned that Kimbrough was not an alibi
witness.
During both cross-examination and closing argument, defense counsel focused on the
victim’s credibility, the motives behind her characterization of petitioner’s actions and the events
of October 5, 1998. He suggested she had been drinking. He suggested that she intended to send
petitioner to jail for as long a time as possible so that he could not interact with their child.
The jury convicted Ryder of violating a temporary protection order, aggravated burglary,
intimidation, one count of domestic violence, aggravated menacing, and felonious assault. Petitioner
was not convicted of one count of domestic violence, menacing, and kidnaping. Ryder was
sentenced to aggregated sentences of fourteen years of imprisonment.
4
An Ohio court of appeals affirmed Ryder’s convictions and sentence, and Ryder did not
appeal to the Ohio Supreme Court. State v. Ryder, No. 99CA007337, 2000WL 1226623 (Ohio Ct.
App. Aug. 30, 2000)(unpublished).
While his appeal was pending, Ryder filed his petition for post-conviction relief with the state
trial court on November 1, 1999. The trial court denied the petition on November 18, 1999. The
state appellate court dismissed the appeal for lack of a final appealable order. After three years, the
trial court denied the petition in its Order of August 13, 2004 containing its findings of fact and
conclusions of law. In it, the trial court found that the “evidence further revealed that the defendant
entered the home of the victim without permission and dragged her into his van where he assaulted
her by punching and kicking her.” The trial court also found that “the defendant received a fair and
impartial trial and defense counsel effectively represented the defendant throughout the
proceedings”.
The state court of appeals affirmed the trial court’s decision. State v. Ryder, No. 04CA
008561, 2005 WL 663000 (Ohio Ct. App. March 23, 2005) (Carr, J., dissenting) (unpublished). The
Ohio Supreme Court denied Ryder leave to appeal this decision, State v. Ryder, 833 N.E.2d 1248(Ohio 2005) (Lanzinger, J., dissenting) (Table)(unpublished), as not involving any substantial
constitutional question.
In its decision affirming the denial of the petition for post-conviction relief, the Ohio Ninth
District Court of Appeals considered and rejected the petitioner’s argument that his trial counsel’s
representation amounted to constitutionally ineffective assistance, holding in pertinent part:
{¶9} Defendant claims that the trial court erred in denying his motion for post-
conviction relief because he received ineffective assistance of trial counsel.
Defendant maintains that he was prejudiced by his attorney’s actions since his
5
attorney failed to interview a friend of the victim who was thought to have evidence
undermining the credibility of the victim, the prosecution’s main witness.
{¶10} This Court employs a two-step process in determining whether a defendant’s
right to effective assistance of counsel has been violated. Strickland v. Washington
(1984), 466 U.S. 668, 687, 80 L.Ed.2d 674. First, the court must determine whether
there was a “substantial violation of any of defense counsel’s essential duties to his
client.” State v. Calhoun (1999), 86 Ohio St.3d 279, 289. “This requires a showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.{¶11} Second, the defendant must show that the deficient performance of counsel
prejudiced the defense. State v. Bradley (1989) 42 Ohio St.3d 136, paragraph two
of the syllabus. Prejudice exists where there is a reasonable probability that the
outcome of the trial would have been different but for the alleged deficiencies of
counsel. Id. at paragraph three of the syllabus. “This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 687. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.” Id. at 691.
{¶12} This court need not address both elements in any particular order - if we find
that there was no prejudice to Defendant by defense counsel’s acts, we need not
address whether defense counsel’s acts were actually deficient. See Bradley, 42 Ohio
St. 3d at 143. In this case, we find that Defendant has failed to show that prejudice
resulted from trial counsel’s acts. “A strong presumption exists that licensed
attorneys are competent and that the challenged action is the product of sound
strategy.” State v. Watson (Jul. 30, 1997), 9th Dist. No. 18215, at 4. Debatable trial
strategies do not constitute ineffective assistance of counsel. State v. Gales (Nov. 22,
2000), 9th Dist. No. 00CA007541, at 17.
{¶13} Defendant claims that his attorney’s “failure to present evidence favorable to
the defense denied Defendant a fair trial, and therefore, denied him effective
assistance of counsel.” The favorable evidence Defendant refers to is that of Ms.
Fesco. In Defendant’s petition for post conviction relief, he attached an affidavit of
Ms. Fesco in which she stated that she saw the victim the day after Defendant had
assaulted her, and the victim told Ms. Fesco that “[Defendant] had beaten her in a
bar.” The victim had testified that Defendant broke into her house and beat her in her
house and then took her into her vehicle where he proceeded to assault her.
{¶14} Based on the victim’s testimony and the testimony of multiple other witnesses,
Defendant was found guilty of violating a temporary protection order, aggravated
burglary, intimidation, domestic violence, aggravated menacing and felonious
assault. The testimony Defendant claims his trial counsel was ineffective for not
6
introducing, that of Ms. Fesco, could have bolstered the evidence introduced against
Defendant for each of the above counts other than his conviction for aggravated
burglary. While it is possible that the jury may have viewed Ms. Fesco’s testimony
in a light favorable to Defendant, and may have discounted the victim’s account of
her assault, it is equally possible that the jury would have viewed the same testimony
in a negative light to Defendant, supporting the victim’s claims that he assaulted her
and was violent towards her.
{¶15] Licensed attorneys are presumed competent in Ohio. State v. Lytle (1976), 48
Ohio St.2d 391, 397. “[D]efendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland (1984), 466 U.S. at, 689, quoting Michel v. Louisiana (1955), 350 U.S. 91,
101, 100 L.Ed. 83. We do not find that Defendant has overcome the presumption
that his attorney was employing a sound trial strategy.
{¶16} If defendant has not shown substantive grounds for relief on his ineffective
assistance of counsel claim, the trial court is not required to conduct a hearing.
Jackson, 64 Ohio St.2d at 110.
Judge Carr dissented, stating:
{¶21} I respectfully dissent. Defendant supplied the trial court with an affidavit
from a disinterested witness (a friend of the victim’s) who provided information that
completely contradicted the victim’s testimony. The location of the attack is
particularly relevant. If the incident in fact occurred at a bar instead of the victim’s
house, then the defendant could not be convicted of aggravated burglary. I would
reverse for a hearing.
On May 9, 2005, petitioner appealed to the Ohio Supreme Court. On September 7, 2005, he
was denied leave to appeal and the appeal was dismissed for not involving any substantial
constitutional question. Petitioner did not appeal this decision to the United States Supreme Court.
On August 31, 2006, Ryder filed the instant habeas corpus petition in which he raises the
same two claims for relief: 1) He was denied effective assistance of counsel when his trial counsel
failed to interview a key witness to Ryder’s defense; and 2) He was denied due process of law by the
trial court’s refusal to conduct an evidentiary hearing. In support of these grounds, petitioner has
7
again submitted the affidavits from the witness, Kelly Fesco, and petitioner, Mark Ryder. Fesco’s
contains the following statements upon which petitioner relies:
2. On or about October 5, 1998, I went to Theresa Hyer’s house at 2429 East 34th
Street, Lorain, Ohio.
3. When I arrived at Theresa’s house, Theresa told me that she and Mark Ryder had
gotten into a fight at a local bar. Theresa said he had beaten her at the bar.
4. After Theresa told me that Mark had beaten her up at the bar, I called the Lorain
police. While we were waiting for the police, Theresa said she was not sure what she
would tell the police about what had happened between her and Mark.
7. Mark Ryder’s lawyer or an investigator working for Mark’s lawyer never
interviewed me. Had anyone, from the prosecutor’s office or the defense, asked me
about what Theresa said about her fight with Mark, I would have told them that
Theresa said Mark beat her up at the bar.
Ryder’s affidavit contained the following statements:
6. By the time of trial, I knew that Kelly Fesco could support my defense that I did
not break into Theresa Hyer’s house, kidnap her and beat her in her van. I asked my
lawyer to call Kelly Fesco as a witness. During trial, I saw Kelly Fesco in the court
house one day while the Sheriff ‘s deputies were escorting me to court. I told my
lawyer that Ms. Fesco was downstairs and should be called to testify.
7. My lawyer did not interview Kelly Fesco despite my repeated requests, indicating
to me that there was “no need” to talk to Ms. Fesco or call her as a witness.
Ryder’s petition was referred to a Magistrate Judge who recommended the petition be denied
on June 15, 2007. Ryder timely filed Objections on June 29, 2007. Respondent filed a response on
July 12, 2007. The district court adopted the Report and Recommendation in its entirety and
dismissed the petition on July 30, 2007.
Although denied by the district court, this Court granted a Certificate of Appealability on
both grounds presented.
II.
In reviewing the denial of a habeas petition, we review the district court's legal conclusions
de novo, applying the same standard of review to the state court decision that the district court
8
applied. Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004); See Smith v. Hofbauer, 312 F.3d 809,
813 (6th Cir. 2002). The provisions of the Antiterrorism and Effective Death Penalty Act,
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 26, 1996) are controlling herein as the
instant petition was filed after the Act’s effective date. Lindh v. Murphy, 521 U.S. 320 (1997).
When a state court has already adjudicated a federal constitutional claim, AEDPA establishes
the role of the federal district court:
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; or
(2) resulted in a decision that 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) and (2).
A state court decision involves an unreasonable application of clearly established federal law
if the state court identifies the correct governing legal principle from the decisions of the United
States Supreme Court, but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. 362, 407 (2000). “[T]o be found an ‘unreasonable application of ...
clearly established Federal law,’ the state-court decision must be ‘objectively unreasonable’ and not
simply erroneous or incorrect.” Johnson v. Luoma, 425 F.3d 318, 324 (6th Cir. 2005) (quoting
Taylor, 529 U.S. at 409-11 (2000)). A legal doctrine is not clearly established Federal law, as
determined by the Supreme Court, unless it is based on “holdings, as opposed to the dicta, of the
Court's decisions as of the time of the relevant state-court decision.” Jones v. Jamrog, 414 F.3d 585,
591 (6th Cir. 2005) (quoting Taylor, 529 U.S. at 412).
9
Under the AEDPA, we presume that the state court's factual findings are correct, and the
petitioner bears the burden of rebutting the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003).
This Court has recognized that by amending § 2254(d)(1) through the AEDPA, Congress intended
to place reasonable state court judgments beyond the scope of federal review. Herbert v. Billy, 160
F.3d 1131, 1135 (6th Cir. 1998).
Respondent has conceded that there are no issues raised as to untimeliness, failure of
exhaustion, or procedural default, therefore, the Court turns to a review of the merits.
III.
The governing standard for determining effective assistance of counsel is found in Strickland
v. Washington, 466 U.S. 668 (1984). To prove an ineffective assistance of counsel claim, a
petitioner must show (1) that his lawyer's performance was deficient and (2) that the deficiency
prejudiced the defense. Id. at 687. In establishing the first requirement, the petitioner must
demonstrate that his lawyer's performance fell below an objective standard of reasonableness as
measured by prevailing professional norms. Id. at 687-88. Judicial review of the lawyer's
performance must be highly deferential. Id. at 689. A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” Id. Reasonable lawyers may disagree on the appropriate
strategy for defending a client. Bigelow, 367 F.3d at 570 (6th Cir. 2004)(quoting Strickland, 466
U.S. at 689).
10
It is well-established that “[c]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.” Towns v. Smith, 395 F.3d
251, 258 (6th Cir. 2005)(quoting Strickland, 466 U.S. at 691). The duty to investigate derives from
counsel's basic function, which is “ ‘to make the adversarial testing process work in the particular
case.’ ” Towns , 395 F.3d at 258 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)
(quoting Strickland, 466 U.S. at 690)). As further explained by this Court in Towns:
This duty includes the obligation to investigate all witnesses who may have
information concerning his or her client's guilt or innocence. See Bryant v. Scott, 28
F.3d 1411, 1419 (5th Cir. 1994) (citing Henderson v. Sargent, 926 F.2d 706, 711 (8th
Cir. 1991)). “In any ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691, 104 S.Ct.
2052. “The relevant question is not whether counsel's choices were strategic, but
whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct.
1029, 145 L.Ed.2d 985 (2000); accord Clinkscale [v. Carter], 375 F.3d [430,] [] 443
[(6th Cir. 2004)].
395 F.3d at 258. The Strickland Court explained:
[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.
Id. at 690-91.
Ryder argues that counsel’s actions, in failing to investigate a potentially helpful defense
witness, fell below an objective standard of reasonableness because he could not make a reasonable
decision without interviewing the witness. Ryder argues that had the jurors heard from Hyer’s friend
that Hyer lied about what transpired, the testimony of Ryder’s other witnesses would have been
strengthened. He contends that jurors would have been more inclined to conclude that Hyer had
11
exaggerated events and her injuries as related by other defense witnesses if Hyer’s close personal
friend provided evidence supporting that conclusion. Rather than find Ryder guilty of felonious
assault and aggravated burglary, he contends, there is a reasonable probability that Ryder would have
been convicted of only simple misdemeanor assault. Ryder has never claimed that Fesco would have
helped exonerate him of all charges, but contends that if Fesco’s testimony resulted only in Ryder’s
acquittal on the aggravated burglary charge, Ryder would be serving eight years, not his current
fourteen-year sentence. Additionally, if Fesco’s testimony supported other defense testimony
indicating that Hyer had fabricated the severity of her leg injury, the felonious assault verdict would
probably have been different as well, further reducing Ryder’s sentence. For these reasons, Ryder
argues the failure to investigate Fesco as a witness prejudiced Ryder’s defense and his sentence.
These arguments fail on several levels. First of all, the statements contained in Fesco’s
affidavit are classic hearsay which, if admissible at all, would not have been admissible at trial for
their truth. Clearly, the statements in the Fesco affidavit do not fall outside the definition of hearsay
by way of being a prior statement by a witness because the statements are not made by the victim
under oath, subject to cross-examination, and subject to the penalties of perjury, Ohio Evid. R.
801(D)(1), nor are the statements made by a party-opponent, Ohio Evid. R. 801(D)(2). The
statements are not excepted as statements against penal interest because the victim was available to
testify. Ohio Evid. R. 804(B)(3). There is nothing in Fesco’s affidavit to suggest that the statements
could come in as present-sense impressions, excited utterances, or any of the other exceptions to the
hearsay rule where the availability of the declarant is immaterial. Ohio Evid. R. 803.
Secondly, the testimony of the other defense witnesses would not have been bolstered. Fesco
was moved to insist that Hyer call the police based upon her appraisal of Hyer’s extensive injuries.
12
Her reaction and the exhibits introduced during trial directly contradict Covender’s testimony that
Hyer’s injuries were not extensive. Any testimony about Hyer’s statement that she was beaten in
a bar contradicts Kimbrough’s testimony that he had seen Hyer after the bars were closed, yet did
not note any injuries. The statements are not clear and convincing evidence that petitioner beat her
at a bar rather than at the victim’s home after he broke in, particularly in view of Kimbrough’s
testimony. It would be an unreasonable decision to call into question the credibility of Kimbrough,
a witness whose testimony places the victim, and possibly the petitioner, somewhere other than at
Hyer’s home at the approximate time Hyer testified she had been beaten at her home.
The district court appropriately found that the state appellate court’s conclusion that trial
counsel’s decision not to interview or call Ms. Fesco as a witness at trial was reasonable and did not
rise to the level of ineffective assistance of counsel, was not an objectively unreasonable application
of Strickland to the facts of this case, nor was it an unreasonable determination of the facts in light
of the evidence presented considering the strong evidence against petitioner and the fact that Ms.
Fesco’s affidavit statements could have worked against the defense, which undermines petitioner’s
claims of prejudice.
Based upon a review of the record and all of the evidence presented in the trial, it is evident
that the defense attorney made a reasonable decision not to interview Fesco. It was reasonable not
to consider calling her as a witness and it was a reasonable trial strategy for the defense to discredit
the victim’s credibility by the testimony of Kimbrough and Covender. Defense counsel knew he
could effectively attack the victim’s credibility by his cross-examination of the victim which he did
at trial. Defense counsel knew, without interviewing her, that Ms. Fesco was the person who called
the police after seeing the victim and he knew that she was the only person who could verify parts
13
of the victim’s story, that she was, for example, badly beaten. It was a reasonable decision to reject
the use of such a witness, who would verify the victim’s injuries, as well as undermine the credibility
of the other defense witnesses, Kimbrough and Covender. It was a reasoned professional assessment
that he didn’t “need her” because of the information he had concerning the victim’s lack of
credibility and the other testimony he had available to him. Based upon the theory of the defense
he had adopted, he could not have risked the possible benefits of her testimony, now argued by
petitioner. There could be no alternative theory. His goal was to convince the jury that the victim
was fabricating the entire October 5, 1998 incident to stop the petitioner from contacting her.
In light of the evidence of Ryder’s guilt, we find it was objectively reasonable for petitioner’s
attorney to have decided that Ms. Fesco was not needed as a witness and that her testimony would
have destroyed his chance of presenting his “total innocence” theory for the acts occurring on
October 5, 1998 to the jury. Ms. Fesco was not an alibi witness, nor could she testify to his
innocence.
In establishing prejudice, Ryder must demonstrate a reasonable probability that the result of
his trial would have been different but for his counsel’s unprofessional errors. Strickland, 466 U.S.
at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id.Ryder’s defense attorney did not violate his essential duty to his client or cease to function
as the counsel guaranteed by the Sixth Amendment. He was not prepared to accept a verdict of
guilty on any of the October 5th charges. His goal was to discredit the victim’s testimony. He had
a reasonable chance of achieving an acquittal on all charges. He developed a theory of the defense
the record discloses was effective, if not completely successful, since Ryder was acquitted on some
14
counts. If admitted, the statements of Ms. Fesco would have repudiated the testimony of the other
defense witnesses upon which defense counsel had built his defense. A review of the record shows
that the defense attorney's performance was not deficient, the result of the trial was fundamentally
fair and reliable, and the information submitted regarding counsel’s decision is not sufficient to show
prejudice under Strickland.
IV.
In support of the second issue raised in his petition, Ryder argues that his petition included
evidence demonstrating that he had substantial grounds for relief, therefore, the state trial court’s
failure to grant a hearing violated his due process rights. Respondent contends that because Ryder
attacks a state post-conviction proceeding, rather than his actual detention this ground is not
cognizable in a federal habeas proceeding.
Ohio law provides that a defendant is entitled to a hearing in post-conviction actions when
his petition for relief has substantial grounds for relief. Ohio Rev. Code § 2953.21(E); State v.
Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980). The Fifth and Fourteenth amendments protect
any liberty interest conferred upon a citizen by the state from arbitrary deprivation by the state.
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). A writ of habeas corpus may issue to correct an error
which results “in the denial of fundamental fairness, thereby violating due process.” Clemmons v.
Sowders, 34 F.3d 352, 356 (6th Cir. 1994)(quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.
1988)).
The district court noted that the state appellate court had addressed this purely as a matter of
state law as follows:
{¶7} A hearing is not automatically required for every petition for post-conviction
relief. See State v. Yauger (Oct. 6, 1999), 9th Dist. No. 19392, at 3. R.C. 2953.21( C)
15
provides that: “[b]efore granting a petition [for post conviction relief] the court shall
determine whether there are substantive grounds for relief.” Thus, if after reviewing
the evidence and the record, the court does not find substantive grounds for relief, it
may dismiss the petition without a hearing. State v. Jackson(1980), 64 Ohio St.2d
107, 110. “If the court dismisses the petition, it shall make and file findings of fact
and conclusions of law with respect to such dismissal.” R.C. 2953.21( C). In this
case, the trial court did file its findings of fact and conclusions of law. The trial court
concluded that Defendant did not have any substantive grounds for relief and
dismissed Defendant’s petition.
{¶8} An appellate court reviews a trial court’s denial of a petition for post-conviction
relief without a hearing under an abuse of discretion standard. State v. Watson
(1998), 126 Ohio App.3d 316, 324, citing State v. Allen (Sept. 23, 1994), 11th Dist.
No. 93-L-123. An abuse of discretion is more than an error of judgment, but instead
demonstrates “perversity of will, passion, prejudice, partiality, or moral
delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When
applying the abuse of discretion standard, an appellate court may not substitute its
judgment for that of the trial court. Id.The state appellate court found that the trial court did not err in denying petitioner a hearing
as the petitioner did not fulfill his initial burden to submit evidentiary documents containing
sufficient operative facts to demonstrate the lack of competent counsel and that the defense was
prejudiced by counsel’s ineffectiveness.
The district court properly determined that this claim was not cognizable in this federal
proceeding and, even if the claim was to be considered, the decision of the state appellate court
would not be found to be either objectively unreasonable or involving an unreasonable application
of the law. Petitioner submitted only broad assertions, inadequate as a matter of law to warrant an
evidentiary hearing. As discussed above, the testimony which could have been elicited from Fesco
does not demonstrate substantial grounds for relief, therefore, the state court's failure to grant a
hearing did not violate his due process rights. The proceeding was fundamentally fair.
V.
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For the foregoing reasons, we AFFIRM the district court’s judgment and DENY the Writ.
17