Michael Raver v. Tim Brunsman , 381 F. App'x 558 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0377n.06
No. 08-3098 FILED
Jun 21, 2010
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MICHAEL RAVER, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
TIM BRUNSMAN, )
)
Respondent-Appellee. )
)
BEFORE: MARTIN and GRIFFIN, Circuit Judges; and DUGGAN, District Judge.*
BOYCE F. MARTIN, JR, Circuit Judge. Michael Raver appeals the district court’s denial
of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted of two
counts of gross sexual imposition involving one of his stepdaughters, but he was found not guilty
of four counts involving the sexual abuse of his second stepdaughter. The district court found that
Raver’s only claim to survive procedural default—that his trial counsel was constitutionally
ineffective for failing to object to or remedy the joining of the indictments so that he could have
separate trials on the sexual assault charges against him—was without merit and that the state court’s
determination that Raver was not prejudiced was not so unreasonable as to justify habeas relief.
For the reasons set forth below, we AFFIRM the district court’s denial of Raver’s petition
for a writ of habeas corpus.
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
08-3098; Raver v. Brunsman
Page 2
I.
Raver was indicted by a grand jury in Franklin County, Ohio, on two counts of rape, eight
counts of sexual battery without specification, and two counts of sexual battery with specification
in case no. 00-cr-6206, and he was later indicted on two counts of gross sexual imposition in case
no. 01-cr-3348. All of the allegations stemmed from multiple incidents of sexual misconduct with
his stepdaughters, C. and M.. An unopposed motion to join the separate indictments was granted
on July 9, 2002.
The Ohio Tenth District Court of Appeals summarized the facts of this case as follows:
Appellant was charged with multiple incidents of sexual misconduct involving his
two stepdaughters, [C. and M.]. Both children testified at trial [on May 7-8, 2002]
regarding incidents occurring in 1999 when visiting their mother and appellant’s
home on Belvidere Avenue in Columbus.
* * * * *
[C.]’s testimony acknowledges that she at first denied having been sexually abused
because she was frightened and embarrassed by the incident. Later, after her sister
came forward with similar allegations, [C.] came forward herself.
* * * * *
Appellant testified on his own behalf and asserted his devotion to and affection for
his stepdaughters. He denied any sexual conduct or contact with the girls.
The jury returned a verdict of not guilty on the four counts involving [M.] but guilty
of two counts of gross sexual imposition in violation of R.C. 2907.05, a felony of the
third degree, involving [C.] The trial court denied appellant’s request for a pre-
sentence investigation. [On May 8, 2002, the] trial court subsequently sentenced
appellant to five years incarceration on each count, the two sentences to be served
concurrently. In imposing this maximum sentence, the trial court found that a
minimum sentence would demean the seriousness of the offense based on the
victim’s age, the fact that she was a stepdaughter in appellant’s custody and control
at the time of the offense, and the demonstrated psychological effect upon the victim.
The trial court also found that appellant’s acts demonstrated a pattern of abuse and
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Page 3
that appellant was likely to re-offend, but that the two counts for which he had been
convicted were perpetrated in a single incident, justifying the concurrent sentences.
At the time of sentencing, the trial court conducted a further hearing pursuant to R.C.
2950.09, and found that appellant should be adjudicated a sexual predator, subject
to the registration and notification provisions of R.C. Chapter 2950. The trial court
again noted the age of the victim, the relationship of appellant to the victim, the
demonstrated pattern of abuse, the effect upon the victim, and in addition noted the
demonstrated lack of remorse or acceptance of responsibility by appellant.
State v. Raver, No. 02AP-604, 2003 WL 723225, at *1-2 (Ohio App. 10 Dist. Mar. 4, 2003).
Raver timely appealed, raising the following assignments of error:
[1.] The trial court erred when it entered judgment against the defendant for two
counts of gross sexual imposition when the evidence was not sufficient to sustain
either verdict and the manifest weight of the evidence would not support them.
[2.] The trial court erred in sentencing defendant-appellant to a maximum term of
incarceration where the factual criteria to warrant a maximum term was not present
and without first considering and rejecting a minimum sentence for defendant-
appellant, who has not previously served a prison term.
[3.] The evidence before the trial court was legally insufficient to establish that
defendant-appellant was a sexual predator, subject to the lifetime registration and
community notification provisions of R.C. 2950.09.
[4.] Defendant-appellant was denied his sixth amendment right to counsel when trial
counsel failed to: obtain expert assistance in defending defendant-appellant in the
sexual predator hearing; and, make an adequate record of the pertinent aspects of
defendant-appellant’s history relating to the factors set forth in R.C. 2950.09(B)(2)
probative of whether the offender is likely to engage in the future in one or more
sexually oriented offenses.
[5.] Mr. Raver’s rights to the effective assistance of counsel as guaranteed by the
sixth and fourteenth amendments to the United States Constitution and Article I, §
10 of the Ohio Constitution were violated.
Id. at *2-3. On March 4, 2003, the state appellate court affirmed the trial court’s judgment. Id. at
*13. Raver did not appeal to the Ohio Supreme Court.
08-3098; Raver v. Brunsman
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On January 3, 2003, Raver filed a petition for post-conviction relief in the state trial court in
which he asserted the ineffective assistance of trial counsel. On March 16, 2005, the trial court
denied the petition. Raver timely appealed to the Ohio Appellate Court, asserting that “the trial court
erred when it denied Appellant an evidentiary hearing in violation of his rights under the Fifth, Sixth,
Eighth, Ninth and Fourteenth Amendments of The United States Constitution and Article 1, Sections
1, 2, 9, 10, 16 and 20 of The Ohio Constitution, when the Appellant submitted documentary evidence
dehors [sic] the record to support his claims.” Raver v. Brunsman, No. 2:06-cv-952, 2007 WL
4365685, at *3 (S.D. Ohio Dec. 12, 2007). On February 14, 2006, the state appellate court affirmed
the trial court’s dismissal of petitioner’s post-conviction petition. State v. Raver, No. 05AP-374,
2006 WL 330093 (Ohio App. 10th Dist. Feb. 14, 2006). Again represented by counsel, Raver timely
appealed, raising the following proposition of law: “Counsel in this case did not provide the
assistance necessary to properly defend a case of sexual impropriety with a child.” On July 5, 2006,
the Ohio Supreme Court declined jurisdiction to hear the case and dismissed the appeal as not
involving any substantial constitutional question.
On November 13, 2006, Raver filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 in the United States District Court for the Southern District of Ohio. The district
court found that all of the issues that Raver raised on appeal, save ineffective assistance of counsel
due to his attorney’s failure to object to the consolidation of the charges against him, were
procedurally defaulted. Raver v. Brunsman, No. 2:06-cv-952, 2007 WL 2670060 (S.D. Ohio Sept.
7, 2007). On October 18, 2007, Magistrate Judge Terence Kemp issued a Report and
Recommendation recommending that Raver’s petition for a writ of habeas corpus be dismissed for
08-3098; Raver v. Brunsman
Page 5
failure to show prejudice because: (1) as Raver was represented by several attorneys, it is likely that
one of them knew that they could move to sever the trials; (2) there is no indication that the trial
court would have granted the severance; (3) Raver’s attorney used the consolidation to his advantage
to attack the credibility of the more credible victim; and (4) because the jury returned a verdict of
not guilty on all counts involving one of the victims, Raver cannot show prejudice as the jury was
clearly able to separate and independently consider the charges against him. The district court
adopted and affirmed the Report and Recommendation on December 12, 2007. Raver, 2007 WL
4365685, at *1. Thereafter, the district court granted Raver a certificate of appealability of the
following issue: Whether the petitioner was denied the effective assistance of counsel based upon
his attorney’s failure to oppose the state’s request to consolidate the charges against him for trial.
Raver timely appealed.
II.
We review a district court’s decision regarding a habeas petitioner’s claim of ineffective
assistance of counsel de novo. Avery v. Prelesnik, 548 F.3d 434, 436 (6th Cir. 2008).
Raver’s federal habeas petition was filed subsequent to the passage of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) in 1996, and thus its provisions govern this Court’s review.
Under AEDPA, a federal court may not grant habeas relief unless the state court’s adjudication of
the claim either:
(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.
08-3098; Raver v. Brunsman
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28 U.S.C. § 2254(d). Under the “contrary to” provision, a federal habeas court should grant the writ
“if the state court arrived at a conclusion ‘opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.’” Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (quoting
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). Under the “unreasonable applications” clause,
a habeas court may grant the writ if the state court identified the correct legal principle from the
Supreme Court’s decisions but unreasonably applied that principle to the petitioner’s case. Id. The
habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that
the state court’s factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d
487, 494 (6th Cir. 2004).
III.
Raver argues that the district court erred in denying his petition for a writ of habeas corpus
on the ground that he received ineffective assistance of counsel due to his attorney’s failure to object
to the state’s motion to consolidate the cases against him.1
The standard for whether counsel’s ineffectiveness fell below the minimum requirements of
the Sixth Amendment contains two components: (1) the deficient performance of counsel as
compared to an objective standard of reasonable performance and (2) that there is a reasonable
probability that the lawyer’s errors prejudiced the outcome of the proceedings. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The Supreme Court assesses performance using an
1
The government argues in its response that the district court erred in finding, in a separate
order than that appealed here, that Raver’s ineffective assistance of counsel claim was procedurally
defaulted. However, as the claim fails on the merits, we do not address this alternative, and likely
waived, argument.
08-3098; Raver v. Brunsman
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“objective standard of reasonableness” and “prevailing professional norms.” Id. at 688. Prejudice
occurs when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. To prevail on an ineffective assistance of
counsel claim, Raver must satisfy both the deficient performance and prejudice prongs of Strickland.
See Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005).
Raver argues that his trial counsel had no strategic reason for failing to oppose the
consolidation of the cases involving C. and M., which had been charged in separate indictments, and
that he was prejudiced by and suffered adverse effects from this ineffective assistance of counsel.
In his state appeal, Raver offered an affidavit from his appellate attorney, James Owen, stating that
trial counsel was unaware that Raver was entitled to two separate trials. The state appellate court,
having correctly identified Strickland as the clearly established Supreme Court precedent at issue,
found that:
The conclusion we reach in the present case, in assessing the effectiveness of trial
counsel, is not that there was no potential risk for appellant from trying the cases
together, but that there were concomitant advantages to going forward in a single
proceeding, and that, ultimately, no actual prejudice to appellant can be shown based
upon the outcome of the trial. As stated above, the possibility that one sister’s lack
of credibility might undermine the testimony of the other cannot be disregarded; in
fact the jury found one sister not credible. Although this ultimately did not avoid
conviction on the charges involving [C.], [M.’s] lack of credibility could certainly
have benefitted appellant in the charges against [C.]. Ultimately, the outcome of the
trial obviated any possibility of prejudice to appellant; had appellant been convicted
of charges involving both sisters, some prejudice could be argued, but the actual
outcome in the present case simply does not support the proposition that one sister’s
less than credible testimony bolstered the jury’s willingness to convict on charges
involving the other sister. No ineffective assistance of trial counsel can be shown in
this respect.
Raver, 2003 WL 723225, at *12 (emphasis in original).
08-3098; Raver v. Brunsman
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Because the district court found that Raver was unable to show that he was prejudiced by his
counsel’s decisions, it did not explicitly address whether these decisions constituted ineffective
assistance of counsel. The district court correctly noted that Raver appeared to have more than one
attorney at trial and it is conceivable that one of those attorneys knew that he could oppose the
motion to consolidate charges against him and of the strategic reason for not doing so. Raver, 2007
WL 4365685, at *9. Indeed, there appear to be strategic reasons to keep the cases together, and
Raver’s attorneys took full advantage of at least one. Raver’s attorney used the “consolidation of
charges to his advantage by pursuing the tactic of attacking the credibility of the more credible victim
by pointing out that her accusations arose upon speaking to her less credible sister.” Raver, 2007
WL 4365685, at *10. The fact that the jury only convicted Raver of charges involving C. and found
him to be not guilty of the charges involving M. does, as the district court found, demonstrate that
the jury was able to separate the charges involving each alleged victim and consider them
independently.
While there is always a potential for prejudice when claims are tried together, there is no
evidence that such prejudice arose here and that any error of counsel “actually had an adverse effect
on the defense,” as required by Strickland. 466 U.S. at 694. Therefore, as the district court found,
even had the decision not to contest the joinder of the two charges been ineffective assistance of
counsel, Raver has failed to show that he was prejudiced by this decision. Thus, the state court’s
decision to that effect is not so unreasonable as to justify habeas relief.
08-3098; Raver v. Brunsman
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IV.
For the foregoing reasons, we AFFIRM the district court’s denial of Raver’s petition for a
writ of habeas corpus.