NOT RECOMMENDED FOR PUBLICATION File Name: 21a0074n.06
No. 19-3666
UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 04, 2021 WILLIE S. HERRING, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE ALAN J. LAZAROFF, Warden, ) NORTHERN DISTRICT OF Respondent-Appellee. ) OHIO )
BEFORE: COLE, Chief Judge; SILER and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Willie Herring seeks a writ of habeas corpus
on two grounds. First, he alleges that the jury instructions misstated the intent element of
complicity to commit aggravated murder, which violated his right to due process. Second, he
argues that his counsel was ineffective for failing to object to the jury instructions on “purpose”
and “causation.” The Ohio Supreme Court considered both of these claims on direct appeal and
concluded that neither warranted vacating Herring’s convictions. Because the Ohio Supreme
Court denied these claims, we may not grant Herring’s petition unless he can show that the Ohio
Supreme Court’s decision was contrary to or an unreasonable application of clearly established
federal law. Herring cannot meet this exacting standard. Therefore, we affirm the district court’s
denial of his petition. No. 19-3666, Herring v. Lazaroff
I.
Herring and four co-defendants went to a bar in Youngstown, Ohio to commit a robbery.
State v. Herring (Herring I), 762 N.E.2d 940, 945 (Ohio 2002).1 As they entered the bar, one of
the robbers shot a patron, Jimmie Lee Jones. Id. at 946. Nobody saw which robber pulled the
trigger. Id. Once inside, one of Herring’s co-defendants shot Herman Naze and an unidentified
robber shot Dennis Kotheimer. Id. The bar owner and another patron were also shot during the
robbery. Id. When police arrived on scene, the victims were taken to a nearby hospital where
Jones, Naze, and Kotheimer were pronounced dead. Id. at 946–47.
The State indicted Herring on three counts of aggravated murder, two counts of attempted
aggravated murder, and three counts of aggravated robbery. Id. at 947. For purposes of this appeal,
only the three counts of aggravated murder (Counts One, Two, & Three) are relevant. Herring
proceeded to trial on all charges. Id.
At the conclusion of the trial, the judge instructed the jury on each count of aggravated
murder. Id. On Count One, for the killing of Jones, the judge informed the jury that it could find
Herring guilty either as the principal offender or for complicity to commit aggravated murder. Id.
To find Herring guilty as the principal, the jury needed to find that Herring “purposely caused the
death of [Jones]” and specifically intended to cause Jones’s death. DE 7-21, Trial Tr., PageID
6659–60. On the “purpose” element, the jury was instructed that “[t]he purpose with which a
1 Under AEDPA, the Ohio Supreme Court’s recitation of the facts is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1). In his reply brief, Herring argues that he has rebutted this presumption by clear and convincing evidence. Despite making this objection, Herring provides no developed argument as to why the Ohio Supreme Court’s articulation of the facts is wrong. Herring did make two specific objections to particular facts in the district court (one relating to how many times one of the victims was shot and one relating to how witnesses described the robber who shot them). As the district court noted, however, Herring has not provided clear and convincing evidence that the Ohio Supreme Court’s recitation of those facts was wrong. For that reason, we adopt the Ohio Supreme Court’s version of events.
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person does an act is determined from the manner in which it is done, the means used and all the
other facts and circumstances in evidence.” Id. at 6660–61. The judge then defined cause as:
[A]n act which in a natural and continuous sequence directly produces the death, and without which it would not have occurred. The defendant’s responsibility is not limited to the immediate or most obvious result of his acts. The defendant is also responsible for the natural and foreseeable results that follow, in the ordinary course of events, from the acts.
Id. at 6661.
After issuing the principal offender instruction, the judge instructed the jury that it could
find Herring guilty of complicity if it found “beyond a reasonable doubt, that . . . the defendant
purposely aided or abetted another in committing the offense of aggravated murder.” Id. at 6662.
That meant that the jury had to find that “[Herring] purposely aided or abetted another in causing
the death of [Jones].” Id. at 6663. As to the intent required, the judge told the jury that it had to
“find beyond a reasonable doubt that [Herring] specifically intended to aid and abet another in
causing the death of [Jones].” Id. After concluding the instructions on intent, the judge
incorporated the instructions on purpose and cause that she issued during the charge on the
principal offender theory.
On Counts Two and Three, the jury was instructed to consider whether Herring was guilty
of aggravated murder solely on a complicity theory. The jury instructions on these Counts were
functionally identical to the instructions issued on the Count One complicity theory.
After the jury received the instructions, it retired to deliberate. The jury deliberations took
three days, and, during that time, the jury asked numerous questions. For example, the jury asked
whether “there [was] any reason why we have to tolerate screaming and pounding on the table
without our opinion being heard.” Id. at 6733. They also asked to see particular pieces of evidence
and whether they could sign the verdict forms out of order. At the end of the deliberations, the
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jury found Herring guilty on all three counts of aggravated murder under the complicity theory but
found him not guilty as the principal on Count One. Herring I, 762 N.E.2d at 947.
Herring appealed his convictions to the Ohio Supreme Court. In front of that Court he
argued, among other things, (1) that the jury instructions on the intent element of complicity were
ambiguous and deprived him of his right to due process, and (2) that his counsel was
constitutionally ineffective for failing to object to the instructions on “purpose” and “cause” in the
jury instructions. Herring I, 762 N.E.2d at 947, 957. The Ohio Supreme Court rejected his first
argument because it concluded that there was “‘no reasonable likelihood that the jury . . . applied
the challenged instruction’ incorrectly.” Id. at 948 (quoting Boyde v. California, 494 U.S. 370,
380 (1990)). It then rejected his second argument because it concluded that counsel had not been
ineffective in failing to object to the purpose instruction and Herring was not prejudiced by
counsel’s failure to object to the cause instruction. Id. at 957.
Herring filed a petition for a writ of habeas corpus in the district court alleging these two
grounds for relief as well as various other constitutional violations. The district court denied
Herring’s petition because it concluded that the Ohio Supreme Court’s decision was not contrary
to nor an unreasonable application of clearly established federal law. Herring appealed.
II.
Herring asserts two grounds for relief on appeal. First, he says that the jury instructions
regarding the specific intent element of complicity to commit aggravated murder were ambiguous
and deprived him of his right to due process. Second, he claims that his trial counsel’s failure to
object to the instructions on “purpose” and “cause” violated his right to effective counsel under
the Sixth Amendment. The Ohio Supreme Court’s decision to reject these claims was not contrary
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to nor an unreasonable application of clearly established federal law, so we affirm the district
court’s denial of Herring’s petition.
A.
Both Herring and the Warden agree that this case is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Under the portion of AEDPA relevant to this case, a
federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of the claim 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.” 28 U.S.C. § 2254(d)(1). A state court’s
decision is “contrary to” clearly established federal law if the state court “applies a rule that
contradicts the governing law” or “the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result
different from” the Supreme Court’s precedent. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
A state court’s decision is an “unreasonable application” of federal law if “there is no possibility
that fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
Court’s] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
B.
Herring’s first ground for relief is that the trial court’s jury instructions on the intent
element of the crime of complicity to commit aggravated murder violated his right to due process.
A jury instruction that relieves the State of its burden to prove every element of the offense beyond
a reasonable doubt violates the Due Process Clause. See Francis v. Franklin, 471 U.S. 307, 313
(1985) (citing In re Winship, 397 U.S. 358, 363 (1970)). In some cases, it will be easy to tell
whether an instruction relieves the State of its burden of proof, such as when the instruction creates
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a mandatory presumption, see, e.g., Franklin, 471 U.S. at 325, or when an element of the crime is
decided by the judge instead of the jury, see, e.g., United States v. Gaudin, 515 U.S. 506, 522–23
(1995). But in other cases—such as when the jury instruction is ambiguous—the inquiry is more
difficult. See Boyde, 494 U.S. at 380. In those cases, the Supreme Court has instructed us to ask
“whether there is a reasonable likelihood that the jury has applied the challenged instruction in a
way” that relieves the State of its burden of proof on every element. Id.; see also Estelle v.
McGuire, 502 U.S. 62, 72–73 (1991) (clarifying that the Boyde inquiry is based in the Due Process
Clause of the Fourteenth Amendment). A “reasonable likelihood” is something more than the
“mere possibility” of improper application, but less than a preponderance of the evidence. Boyde,
494 U.S. at 380. When conducting this inquiry, we must be mindful not to judge the ambiguous
jury instruction “in artificial isolation.” Id. at 378 (citing Boyd v. United States, 271 U.S. 104, 107
(1926)). Instead, we must view its likely effect on the jury “in the context of the overall charge.”
Id.
As given at Herring’s trial, the jury instructions on complicity to commit aggravated
murder required the jury to find beyond a reasonable doubt that Herring “purposely aided or
abetted another in committing the offense of aggravated murder.” DE 7-21, Trial Tr., PageID
6662, 6672, 6678. As to the intent necessary to support a conviction, the jury was instructed that
Herring had to “specifically intended to aid and abet another in causing the death of [the victim].”
Id. at 6663, 6673, 6679. The jury was never instructed that Herring had to specifically intend to
cause death.
Herring claims that these instructions violated his right to due process because they are
ambiguous and it is reasonably likely that the jury convicted him without finding that he
specifically intended to cause death, which is an essential element of the crime of complicity to
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commit aggravated murder. See Herring I, 762 N.E.2d at 947 (“[T]o support a conviction for
complicity by aiding and abetting . . . the evidence must show * * * that the defendant shared in
the criminal intent of the principal.” (third alteration in original) (internal quotations omitted)); see
also State v. Johnson, 754 N.E.2d 796, 801 (Ohio 2001); State v. Schaeffer, 41 N.E.3d 813, 827
(Ohio Ct. App. 2015) (citing Herring for the proposition that the state must prove the defendant
had the intent “to purposely cause the death of” the victim). When confronted with this claim on
direct review, the Ohio Supreme Court held that Herring was not entitled to relief because there
was not a “reasonable likelihood” that the jury convicted him without finding that he possessed
the specific intent to cause death. Herring I, 762 N.E.2d at 948 (quoting Boyde, 494 U.S. at 380).
The Court reasoned:
Herring’s claim assumes that the jury could have found that he “specifically intended to aid and abet another in causing the death” of another without finding that he specifically intended to cause the death of another. We disagree. It is hard to see how a person could, in the words of the instruction, intend to “help, assist, or strengthen” or “encourage, counsel, incite, or assist” another person in causing death, without also intending that the victim die. It is equally hard to see any reasonable likelihood that the jury would understand the instruction as allowing the conviction of a defendant who did not intend that the victim die. Thus, the instructions the trial court gave are functionally equivalent to an instruction requiring specific intent to cause death.
This decision was not contrary to clearly established federal law. The Ohio Supreme Court
identified the relevant Supreme Court case—Boyde—and correctly stated the relevant rule—an
ambiguous jury instruction violates due process if there is a “‘reasonable likelihood that the
jury . . . applied the challenged instruction’ incorrectly.” Id. at 948 (quoting Boyde, 494 U.S. at
380). The court then applied that rule by examining whether it was reasonably likely that the jury
applied the instruction in a way that relieved the State of its burden of proof on an essential element
of the crime, which is exactly what Boyde instructs courts to do in these situations. Id. Given that
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this reasoning did not “contradict the governing law” and the Supreme Court has never confronted
a set of facts that are “materially indistinguishable” from the facts of Herring’s case, Herring
cannot show that the Ohio Supreme Court’s decision was contrary to clearly established law. See
Williams, 529 U.S. at 405–06.
Herring’s argument that Patterson v. Haskins requires a different result lacks merit. See
316 F.3d 596 (6th Cir. 2003). In Patterson, the defendant was convicted of involuntary
manslaughter by child endangering. Id. at 602. While informing the jury of the elements of that
offense, the trial court omitted the instruction requiring the jury to find that child endangerment
was the “proximate cause” of the decedent’s death. Id. at 607. The Ohio Court of Appeals found
that the defendant was not entitled to relief because the trial court had instructed the jury that
involuntary manslaughter based on other predicate acts required the State to prove proximate
cause. Id. at 605. According to the Ohio Court of Appeals, the correct instructions on the other
charges meant that the instructions, as a whole, were “sufficiently detailed.” Id. On federal post-
conviction appeal, this court found that the Ohio Court of Appeals’ decision was “contrary to” the
Supreme Court case United States v. Gaudin because the state court did not determine whether the
defendant’s “right to have a jury determine, beyond a reasonable doubt, his guilt of every element
of the crime with which he is charged” was protected. Id. at 609 (citing Gaudin, 515 U.S. at 509–
10).
Herring compares the Ohio Supreme Court’s decision to call the given instruction in his
case the “functional equivalent” of a correct instruction to the Ohio Court of Appeals use of the
phrase “sufficiently detailed” in Patterson. However, the state court in Patterson used the phrase
“sufficiently detailed” to create its own ad hoc test that did not inquire into whether the jury may
have convicted the defendant without proof of every element of the offense. Patterson, 316 F.3d
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at 605. In contrast, the Ohio Supreme Court used the phrase “functional equivalent” while
applying the “reasonable likelihood” test announced in Boyde. Herring I, 762 N.E.2d at 948.
Patterson, therefore, does not demonstrate that the Ohio Supreme Court’s decision was contrary
to clearly established federal law.
Nor was the Ohio Supreme Court’s decision an unreasonable application of clearly
established law. Herring also bases his argument on this prong of the AEDPA analysis on the
Ohio Supreme Court’s decision to call the given instruction the “functional equivalent” of the
proper instruction. Herring objects to that characterization of the given instruction because he
contends that it is possible that the jury found that he specifically intended to aid and abet another
without finding that he had the specific intent to kill. For example, he argues “picking up the guns
before-hand, naming the place to rob, or merely entering the bar (along with the principal) to
commit the aggravated robbery could all form the basis for proving a specific intent to aid and
abet” without creating an intent to kill. DE 17, Obj. to R. & R., 7428–29. But as the district court
noted, the trial judge did not merely instruct the jury that Herring needed to have specifically
intended to aid and abet; she instructed the jury that “Herring needed to have ‘specifically intended
to aid and abet another in causing the death of’ each victim.” DE 22, Order, PageID 7488. When
this instruction is read as a whole, it is hard to see how a jury could have found Herring guilty
without finding that he specifically intended to cause death.
With that being said, it is possible to read the given instruction disjunctively and conclude
that the specific intent requirement applies only to the words “aid and abet another” and not the
words “in causing the death of.”2 Under this reading of the instruction, acts such as picking up
and distributing the guns before-hand would demonstrate intent to aid or abet another and be
2 The Warden seemingly concedes that this interpretation is a possibility. See CA6 R.21, Appellee Br., 29.
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sufficient to support a conviction. For that reason, if this case were on direct appeal, the question
of whether there was a “reasonable probability” that the jury misapplied the instruction by reading
it disjunctively might arguably be a close one. After all, similar matters of interpretation have had
to make their way to the Supreme Court for resolution. See, e.g., Flores-Figueroa v. United States,
556 U.S. 646, 647 (2009) (interpreting what elements “knowingly” modified in the phrase
“knowingly transfers, possesses, or uses, without lawful authority, a means of identification of
another person”); Liparota v. United States, 471 U.S. 419, 420 (1985) (interpreting what elements
“knowingly” modified in the phrase “knowingly uses, transfers, acquires, alters, or possesses
coupons or authorization cards in any manner not authorized by [the statute] or the regulations”
(alteration in original)). But this case is not on direct review, and a “fair-minded jurist” could
agree with the Ohio Supreme Court’s implicit conclusion that there was at most a mere possibility
that the jury could have understood the instruction disjunctively. Richter, 562 U.S. at 102; see
also Boyde, 494 U.S. at 380–81 (“Jurors do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way that lawyers might.”); accord Flores-Figueroa, 556
U.S. at 650 (“In ordinary English, where a transitive verb has an object, listeners in most contexts
assume that an adverb (such as [purposely]) that modifies the transitive verb tells the listener how
the subject performed the entire action, including the object as set forth in the sentence.”).
Therefore, although Herring’s argument that a jury could have applied this language improperly
could be well-taken, we are bound to defer to the state court’s decision.
Herring also argues that, even if the words of the instruction standing alone do not
demonstrate that there was a “reasonable likelihood” that the jury misapplied the instruction, the
instruction combined with three other parts of the record would lead all fair-minded jurists to that
conclusion. See Estelle, 502 U.S. at 72 (“It is well established that the instruction ‘may not be
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judged in artificial isolation,’ but must be considered in the context of the instructions as a whole
and the trial record.” (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))). First, he points to
two of the trial judge’s statements indicating that she did not believe complicity to commit
aggravated murder required specific intent to kill. But neither of these statements were made in
front of the jury, so they do not change the likelihood that the jury misapplied the instruction.
Second, Herring argues that the jury’s long deliberations and multiple questions demonstrate that
there is a reasonable likelihood that the jury did not understand what it was required to find on the
intent element. However, the jury’s questions were mainly about whether they could see
unadmitted evidence or how to conduct deliberations, not the elements of complicity. Third,
Herring argues that the fact that the jury acquitted him of aggravated murder—a crime that the
judge instructed the jury required proof of specific intent to cause death—demonstrates that the
jury did not believe that he had the specific intent to cause death. But as the district court noted, a
lack of specific intent to cause death was not the only reason that the jury may have acquitted
Herring of aggravated murder as the principal; the jury may have acquitted him because “[n]obody
saw who shot” the victim in Count One. Herring I, 762 N.E.2d at 946. For these reasons, the
other parts of the record to which Herring turns do not demonstrate that the Ohio Supreme Court’s
decision was an unreasonable application of clearly established law.
In sum, the Ohio Supreme Court’s decision that there was not a reasonable likelihood that
the jury applied the instruction improperly was not contrary to nor an unreasonable application of
clearly established federal law.
C.
Herring’s second ground for relief is that his trial counsel’s failure to object to jury
instructions on “purpose” and “cause” constituted ineffective assistance of counsel. Counsel is
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ineffective if “counsel’s representation [falls] below an objective standard of reasonableness . . .
under prevailing professional norms” and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). The Ohio Supreme Court concluded that Herring’s
counsel was not ineffective for failing to object to the purpose instruction because the objections
were unsupported by law. Herring I, 762 N.E.2d at 957. It also concluded that counsel was not
ineffective for failing to object to the cause instruction because Herring could not demonstrate that
he was prejudiced by counsel’s failure to object. Id. These decisions were not unreasonable
applications of clearly established law.3
Herring first argues that his trial counsel was ineffective for failing to object to the jury
instruction defining “purpose.” The trial court instructed the jury that “[t]he purpose with which
a person does an act is determined from the manner in which it is done, the means used and all the
other facts and circumstances in evidence.” DE 7-21, Trial Tr., PageID 6660–61. Herring objects
to this instruction because he believes that the court’s use of the word “is” created an
unconstitutional conclusive presumption, and he argues that his counsel was ineffective for failing
to object on those grounds. See Sandstrom v. Montana, 442 U.S. 510 (1979) (holding that a
conclusive presumption that relieves the State of its burden of proof on an element of an offense
is unconstitutional). The Ohio Supreme Court rejected this argument because it had already
concluded in a prior case that this instruction did not create a conclusive presumption. Herring I,
762 N.E.2d at 957 (citing State v. Phillips, 656 N.E.2d 643, 668 (Ohio 1995)).
The Ohio Supreme Court’s decision to deny this claim was not an unreasonable application
of Strickland because Herring cannot show that his counsel acted ineffectively in failing to object
3 Herring only argues that the State Court’s decision on this claim was “an unreasonable application” of clearly established law, not that it was “contrary to” clearly established law.
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to the instruction. Although Herring does not dispute that there is binding precedent in Ohio
foreclosing a Sandstrom objection to this instruction, see Phillips, 656 N.E.2d at 668, he argues
that his counsel still had an obligation to object because federal review of the claim could prove
different than state review. But federal review was unlikely to prove different than state review
because the Sixth Circuit had already held that a functionally identical purpose instruction was
constitutional under Sandstrom. Roberts v. Marshall, 736 F.2d 1126, 1127–28 (6th Cir. 1984)
(approving an Ohio instruction that read: “The purpose with which a person does an act or brings
about a result is determined from the manner in which it is done, the means used and all the other
facts and circumstances in evidence”). Given that both the Ohio Supreme Court and the Sixth
Circuit had already held that the given purpose instruction was constitutional at the time of
Herring’s trial, the Ohio Supreme Court’s decision that counsel did not provide deficient
representation by failing to object was not an unreasonable application of clearly established law.
Herring’s second argument is that his counsel was ineffective for failing to object to the
definition of “cause” provided by the trial judge. The judge instructed the jury that Herring’s
“responsibility is not limited to the immediate or most obvious result of his acts. [Herring] is also
responsible for the natural and foreseeable results that follow, in the ordinary course of events,
from the acts.” DE 7-21, Trial Tr., PageID 6661. Herring argues that these “instructions directly
undermined the required mens rea because they instructed the jury that Herring did not even have
to foresee injury to any specific person or any injury in its precise form.” CA6 R.16-1, Appellant
Br., 45. The Ohio Supreme Court rejected this argument because “Herring was not prejudiced by
his counsel’s failure to object, since the instructions as a whole required the jury to find purpose
to kill in order to convict.” Herring I, 762 N.E.2d at 957.
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Herring cannot show that this decision was an unreasonable application of clearly
established law because, as discussed above, we must defer to the Ohio Supreme Court’s holding
that there is no “reasonable probability” that the jury could have convicted Herring without finding
that he had the specific intent to cause death. See supra Part II.B.; see also Boyde, 494 U.S. at
380. And if there is no reasonable likelihood that the jury convicted Herring without finding the
requisite intent to kill, he cannot have been prejudiced by his counsel’s failure to object.
For these reasons, the Ohio Supreme Court’s decision that Herring’s counsel was not
constitutionally ineffective was not an unreasonable application of clearly established law.
III.
We affirm the district court’s decision denying Herring’s petition because Herring has not
demonstrated that the Ohio Supreme Court’s decision was contrary to or an unreasonable
application of clearly established law.
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