Kelly v. Lazaroff

846 F.3d 819

Ronald KELLY, Petitioner–Appellant,

v.Alan J. LAZAROFF, Warden, Respondent–Appellee.

No. 15-3950

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2016

Decided and Filed: January 20, 2017

ARGUED: Russell S. Bensing, Cleveland, Ohio, for Appellant. Stephanie L. Watson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Russell S. Bensing, Cleveland, Ohio, for Appellant. Stephanie L. Watson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: COLE, Chief Judge; BOGGS, and SILER, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

This is a procedurally complicated habeas case involving two "layered" claims of ineffective assistance of counsel. In 2010, Ronald Kelly was convicted of felony murder, felonious assault, and assault in Ohio state court for his involvement in a fight near Kent State University and was sentenced to a term of fifteen years to life imprisonment. After his conviction, Kelly raised several claims on direct appeal, including a claim that his trial counsel was ineffective. In a dramatic twist, however, Kelly's counsel on direct appeal included the wife and business partner of his trial counsel.¹ Perhaps unsurprisingly, Kelly's direct appeal and state post-conviction claims before the Ohio state courts were unsuccessful. Armed with new counsel, Kelly brought a new claim of ineffective assistance of trial counsel in a 28 U.S.C. § 2254 habeas petition in federal court, advancing a theory of his trial counsel's ineffectiveness that had not been fully presented before the Ohio state courts. Kelly also argued that his appellate counsel was constitutionally ineffective, a claim that had been properly presented before the Ohio state courts, and that his appellate counsel's ineffectiveness should excuse his procedurally defaulted ineffective-assistance-of-trial-counsel claim under the Supreme Court's decisions in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler , ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). The district court rejected both of his arguments, concluding that the actions of Kelly's appellate counsel, even if allegedly ineffective, could not excuse Kelly's procedurally defaulted ineffective-assistance-of-trial-counsel claim, and that his ineffective-assistance-of-appellate-counsel claim could not overcome AEDPA deference.² We affirm.

I

A

In the fall of 2009, Ronald Kelly was a sophomore at Akron University. On November 14, 2009, Kelly and two of his friends, Adrian Barker and Glenn Jefferson, attended a fraternity party at nearby Kent State University. The events of that evening are best laid out by the Ohio appellate court that later affirmed Kelly's conviction:

On the early morning of November 15, 2009, [Kelly] left a fraternity party at Kent State University at around 2:00 a.m. with his friends, Adrian Barker and Glenn Jefferson. The trio got into Jefferson's white Honda Civic. At approximately the same time, four Kent State students—Christopher Kernich, Bradley Chelko, Dave Clements, and Christopher Pataky—were on their way home after an evening of drinking and socializing. As Jefferson's car was beginning to exit the lot, Kernich, Chelko, Clements, and Pataky were passing the parking lot on foot. Testimony indicated that Jefferson's Honda left the lot quickly and nearly hit one of the walkers as it exited. The near-miss prompted a member of the group to shout some "unfriendly" words at the car as it pulled out onto the street. As a result of the group's exclamation, Jefferson pulled the car over and parked in a lot further up the street.

In the meantime, Kernich, Chelko, Clements, and Pataky continued walking in the direction of the parked vehicle. As the group passed Jefferson's parked car, [Kelly] and Barker exited the vehicle. [Kelly] shoved Chelko into the Honda's rear bumper then punched him in the face, knocking him to the ground.

The state presented multiple witnesses who testified that, after [Kelly] knocked Chelko down, he then "squared off" with Kernich. As [Kelly] and Kernich "danced" in the street, each in a fighting posture, there was testimony that Barker, running at a full sprint, blindsided Kernich with a punch to the head. It appeared Kernich collapsed to the ground unconscious, cracking his head on the pavement. Witnesses testified that [Kelly] and Barker then commenced kicking and stomping the defenseless Kernich in the head. Kernich passed away as a result of injuries he sustained from the attack.

Conversely, [Kelly] testified that he and Chelko were brawling in the street, with Chelko making continued efforts to tackle him. Once the fight with Chelko ended, [Kelly] testified he turned around only to find Kernich on the ground, the apparent victim of Barker's fury. [Kelly] asked Barker why he stomped Kernich, to which Barker did not respond. [Kelly] testified he never stomped or kicked Kernich.

After the dire consequences of the attacks became clear, Jefferson went to retrieve his vehicle and ripped off its temporary tags to avoid identification. Jefferson picked up [Kelly] and the duo drove to where Barker was situated, surrounded by concerned civilians attempting to detain him. [Kelly] exited the vehicle in an effort to reason with the angry crowd and collect his friend. Very quickly thereafter, the police arrived and bystanders pointed out [Kelly] and Barker, who were detained and eventually arrested. Kernich was quickly transported to the trauma center at Akron City Hospital where, several days later, he was pronounced dead.

State v. Kelly , 2012 WL 439668, at *1 (Ohio Ct. App. Feb. 13, 2012). As a result of these events, Kelly and Barker were both indicted on charges of felonious assault and murder. Specifically, Kelly was charged with one count of felonious assault, two counts of murder (one alleging that Kelly had murdered Kernich purposefully, and one alleging that Kelly had killed Kernich during the commission of a felony), and three counts of misdemeanor assault for his attack on Kernich's friends who were involved in the fight.

At trial, Kelly was represented by Gregory Robey, who pursued what Kelly now calls an "all-or-nothing" trial strategy. Under this approach, Kelly took the stand and testified that, despite eyewitness testimony to the contrary,³ he had never touched Kernich during the group altercation. Instead, he insisted that although he had "square[d] up" in a fighting stance against Kernich, Kelly had become distracted by one of Kernich's friends and that Barker had been the one to deliver the fatal blow and kick Kernich's unconscious body. Robey also had an expert witness testify that there was no trace of Kernich's DNA on Kelly's shoes, and ten character witnesses who testified to Kelly's peaceful disposition. At the conclusion of trial, Robey requested jury instructions only on felonious assault, felony murder, purposeful murder, and assault, effectively forcing jurors to choose between convicting Kelly of one of several serious offenses or acquitting him entirely. The jury elected the former, finding Kelly guilty of felonious assault, felony murder, and assault. The judge imposed a sentence of fifteen years to life imprisonment for the felonious assault and felony murder convictions, with a concurrent six-month sentence for the assault.

Barker was tried separately and convicted of felonious assault, felony murder, purposeful murder, and one count of tampering with evidence. He received a life sentence with parole eligibility after fifteen years for the murder of Kernich, with a concurrent five-year sentence for tampering with the evidence. Unlike in Kelly's trial, however, Barker's attorney requested (but was denied) a jury instruction on lesser included offenses. Both Barker and Kelly would go on to appeal their criminal convictions.

B

On direct appeal, Kelly argued, inter alia , that he had received ineffective assistance of trial counsel when Robey failed to: (1) clarify that a mixed DNA sample found on Kelly's pants did not necessarily contain the blood of Kernich; (2) advance and obtain further evidence in support of a theory that Barker's running punch, and not any subsequent kicks to Kernich's body, was the cause of Kernich's death; and (3) object to allegedly pervasive prosecutorial misconduct. Kelly's counsel on direct appeal was Margaret Robey, wife of trial counsel Gregory Robey and co-partner in their shared firm Robey & Robey. As if that alone did not present significant issues of legal conflict (not to mention marital strife), the record reflects that Gregory, and not his wife Margaret, actually appeared before the Ohio Court of Appeals intent on arguing his own incompetence. Kelly , 2012 WL 439668 at *12 ("Attorney Greg Robey was appellant's counsel both at trial and during oral arguments."). The Ohio Court of Appeals, finding "counsel's inherent conflict of interest ... obvious" with respect to Kelly's ineffective-assistance-of-trial-counsel claim, refused to adjudicate the issue on direct appeal, instead concluding that it should have been raised "in a postconviction relief proceeding pursuant to [Ohio Rev. Code §] 2953.23." Ibid . Notably, on the same day that the Ohio Court of Appeals denied Kelly's appeal, it overturned Barker's conviction on the ground that the trial court erred when it rejected Barker's request for a lesser-included-offenses jury instruction. State v. Barker , 2012 WL 439658 (Ohio Ct. App. Feb. 13, 2012).

Kelly, still represented by Gregory and Margaret Robey, sought en banc review of the Ohio Court of Appeals decision. In that proceeding, Kelly reiterated his ineffective-assistance-of-trial-counsel claim on the same grounds as before. Perhaps inspired by the success of Barker, however, Kelly also argued for the first time that the trial court erred when it failed to give Kelly a similar lesser-included-offenses jury instruction. Kelly's argument differed from Barker's, though, in that unlike...