IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ronald Henderickson, :

Petitioner, :

v. : Case No. 2:10-cv-1084

 : JUDGE JAMES L. GRAHAM

Warden Lebanon Correctional Magistrate Judge Kemp

Institution, :

 Respondent. :

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition,

respondent’s return of writ, and petitioner’s reply. For the reasons that follow, the

Magistrate Judge RECOMMENDS that petitioner’s claims be DISMISSED. 

FACTS AND PROCEDURAL HISTORY

{¶ 7} During the early morning hours Hendrickson fatally stabbed

his ex-girlfriend, Jodi Blankenship, in a house they shared with three other

Hocking College students. The evidence showed that during their two and

a half year relationship, they frequently argued and would often break up.

After their final break up in February 2007, Hendrickson was upset and

very depressed. Then in March, Blankenship began dating Dale Wible.

{¶ 8} On evening in April, Hendrickson and Blankenship got into

an argument over Wible's plans to visit her that weekend. Brian

Mannazzi, one of the roommates, testified that Hendrickson went upstairs

to Blankenship's room and they began arguing. He testified that at some

point after 11:30 p.m., they were still arguing and Blankenship locked

herself in a downstairs bathroom, which she commonly did when they

were “arguing severely.” Mannazzi stated that he saw Hendrickson

outside the bathroom as they continued to argue and later heard

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 1 of 36 PAGEID #: <pageID>
2

Hendrickson walk outside to the breaker box and cut off the power to

some parts of the house. Mannazzi testified that the second time he saw

Hendrickson outside the bathroom it “scared” him because Hendrickson

was “crouched” in the corner with the lights off. He testified that

Hendrickson may have had something in his hands. He stated that he

returned to bed and was just falling asleep when he heard the bathroom

door open. He testified that he heard Blankenship say “Ron” in a

“surprised voice” and then heard her scream for about 30 seconds; he then

heard Hendrickson yell “Jodi you stabbed me.”

{¶ 9} Corey Suydam, another roommate, testified that he saw Hendrickson

sitting in the corner outside the bathroom that night with the lights off,

just “staring ahead.” Suydam testified that he later awoke to the sound of

a woman screaming. When he went to the area outside the bathroom, he

saw Blankenship on the ground covered with blood and Hendrickson

standing over her. Hendrickson kept saying “she stabbed me, she stabbed

me” and showed Suydam where he had been stabbed. Suydam called 911.

{¶ 10} Dale Wible testified that he was on the phone with Blankenship

when Hendrickson came to her room that evening and could hear

Hendrickson yelling in the background. Hendrickson began ridiculing

and making threatening statements to Wible, telling Blankenship that if

Wible spent the night that weekend, “bad shit is going to happen.”

Hendrickson also said that he had “ranger training” and would use it

against Wible. Blankenship told Wible that Hendrickson would not leave

her room. When asked why he did not call the police, Wible explained

that she had begged him not to because during a previous incident, the

police were called and made her leave the house for the weekend. He

testified that at some point after 11:30 p.m., Blankenship left her room and

locked herself in the downstairs bathroom. While she was in the

bathroom, they exchanged several text messages between 12:00 a.m. and

12:15 a.m. and then had a 30 minute telephone conversation between 12:15

a.m. and 12:45 a.m. Wible testified that he could hear the door rattling as

Hendrickson tried to enter the bathroom. Suydam's 911 call occurred at

12:49 a.m.

{¶ 11} Several responding officers and emergency personnel testified

concerning their observations upon arriving at the scene. Officer Shawn

Champ with the Nelsonville Police Department, the first responding

officer, testified that as he walked up to the house Hendrickson, who was

bleeding from his side, approached him and stated, “I stabbed her, I

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 2 of 36 PAGEID #: <pageID>
3

stabbed her.” Because Hendrickson did not appear to be seriously injured

and Officer Keith Tabler had just arrived, Officer Champ went inside the

house to check on the other victim. He discovered Blankenship's lifeless

body on the floor and found a knife next to her body. Officer Table, also

with the Nelsonville Police Department, testified that when he arrived at

the scene, he observed Hendrickson holding his side, rocking back and

forth, and mumbling. He asked Hendrickson what happened and

Hendrickson responded, “I think I killed her.” Officer Brian Sass with the

Hocking College Police Department testified that Hendrickson also made

statements to him at the scene concerning what happened; Hendrickson

stated, “She stabbed me and I took the knife and I stabbed her and

stabbed her and stabbed her and stabbed her.” Timothy Rodehaver, a

paramedic with the Southeast Ohio EMS, testified that when he arrived

Hendrickson was sitting outside. He testified that while assessing

Hendrickson's injuries, Hendrickson told him that “he had been stabbed

and in self-defense he had stabbed her.” Rodehaver testified that

Hendrickson had a small stab wound on his left side and another small

wound underneath the stab wound.

 {¶ 12} Jonathan Jenkins, a crime scene investigator with the Ohio

Bureau of Criminal Identification and Investigation, testified that he

“processed” the scene. He described the knife found near Blankenship's

body as a pocket knife; a folding blade with a partial serrated blade and

smooth blade with a clip on it. He also testified that the locking

mechanism on the bathroom door was bent, that there was a crack in the

door jam, and that paint chips had fallen off the door frame onto the floor.

He recovered several writings from Hendrickson's room, including notes,

poems, and Biblical verses Hendrickson had previous given to

Blankenship. Finally, he found several knives in the trunk of

Hendrickson's car.

{¶ 13} Dr. Manesha Pandey, who performed the autopsy on Blankenship's

body, testified that the cause of death was “multiple sharp force trauma.”

According to her testimony, Blankenship suffered 14 stab wounds, six of

which were fatal. Her neck was slashed and her right thyroid artery and

right thyroid cartilage were sliced in two. She also suffered from a

fractured cervical vertebrae. She also sustained stab wounds to her heart,

lungs, abdomen, hips, and shoulder and several “defensive wounds” to

her arms and hands.

{¶ 14} The State also presented testimony from friends and family

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 3 of 36 PAGEID #: <pageID>
4

members of Blankenship. None of them ever knew Blankenship to carry a

knife.

{¶ 15} Then the defense presented its case. Hendrickson, who was a park

ranger student, testified that during his relationship with Blankenship, he

was “verbally cruel” toward her, but denied ever hitting her. He testified

that during the weeks following their final break up, he was “very

depressed” and gave Blankenship several writings including poems,

notes, and Biblical scriptures expressing his despair. While he testified

that he was moving on with his life, he admitted that he was “concerned”

about Wible's upcoming visit that weekend. Hendrickson testified that

when he arrived home on the evening of April 11th, he discovered some

writings that he had previously given to Blankenship under his bedroom

door. He tried to call her a couple of times, but she did not answer her cell

phone. So, he went upstairs to her room. According to Hendrickson, he

attempted to engage in a causal conversation with her, but she was on the

phone with Wible. He testified that when she got off the phone, he tried to

talk to her about the plans for the weekend. Hendrickson testified that at

some point, she began talking to Wible again and stated “he won't”

several times; she then grabbed him by the arm and started pulling him

off of her bed and said “he won't leave.” Hendrickson testified that as he

walked toward the door, she held the phone up so that he could hear what

they were saying. Hendrickson testified that he became upset and started

yelling at them. He testified that Blankenship then took items from her

purse, walked downstairs, and locked herself in the bathroom.

{¶ 16} Hendrickson testified that he followed her downstairs, 

“shook” the door to see if it was locked, and “persisted in yelling.” He

then went outside and turned off the breaker switches to the lights in an

effort to get her to come out of the bathroom. He then sat down on the

floor outside the bathroom for a “long time.” At some point, when he

heard the door to their bathroom open, he stood up and saw Blankenship

standing in the bathroom doorway using her cell phone as a light.

{¶ 17} Hendrickson testified that she then said, “I have a knife.” According

to Hendrickson, he “laughed” and raised his arm to lean against the door

jam, partially blocking her exit. He testified that he then felt a sharp pain

on his left side and that it “shocked” him. He testified that he then “made

contact” with Blankenship and “started pushing away.” He testified that

he was “very scared” and thought he was going to die, that he was

“fearful” for his life, and that he was “just panicking” and “in passion.”

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 4 of 36 PAGEID #: <pageID>
5

He testified that he twice yelled “what's the knife for” in an effort to get

help and started pushing with both hands. He testified that he believed he

may have gotten a hold of the knife, but he was not sure. He testified that

she was “trying to resist me” and that she then said, “oh my gosh Ron”

which “startled” him. He stated that he stopped pushing, but that she then

came back toward him and pushed him backward. Hendrickson stated

that he was “panicking” and thought he was a “dead man.” The next

thing he remembered was pushing and pulling, from side to side, and

back and forth, “trying to stop me from getting stabbed and stuff.” When

asked why he fought with Blankenship, Hendrickson stated, “To save

myself. I didn't want to die. To stop myself from getting stabbed.” At trial,

Hendrickson identified the knife used in the stabbing and testified that he

had given it to Blankenship as a gift in 2005 and that she carried it in her

purse. He also testified that he did not receive stitches for the two stab

wounds he sustained.

{¶ 18} Other witnesses also testified on Hendrickson's behalf. Shalon

Chrislit and Brittany Franks generally testified about Hendrickson's

activities that night before he returned home. Chrislit testified that

Hendrickson was in a “great mood” that night and that he had made

plans with another woman, Caitlin Williams, to go out that weekend.

Hendrickson's mother, Penny Hendrickson, also testified. She testified

that in 2006 she had a conversation with Blankenship and her mother

during which they joked about the “strange” gift Hendrickson had given

Blankenship; she testified that Hendrickson had given Blankenship a knife

as a gift in 2005. His father, Ronald Hendrickson Sr., also testified. He

testified that the weekend following the stabbing as he was cleaning out

Hendrickson's room, he discovered the pants Hendrickson had been

wearing before he went to Blankenship's room that night. He testified that

when he picked them up, a Leatherman knife fell out of them. The defense

argued that had Hendrickson intended to stab Blankenship, he would

have likely used this knife.

{¶ 19} Hendrickson requested jury instructions on self-defense and

voluntary manslaughter. The trial court denied his requests, and the jury

found him guilty of aggravated murder. The court later sentenced

Hendrickson to life in prison, with parole eligibility after 30 years.

State v. Hendrickson, 2009 WL 2682158 (Ohio App. 4th Dist. August 24, 2009); Exhibit 9 to

Return of Writ

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 5 of 36 PAGEID #: <pageID>
6

Represented by new counsel, petitioner filed a notice of appeal on May 30, 2008. 

Exhibit 5 to Return of Writ. He raised the following assignments of error on appeal:

1. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND

DENIED APPELLANT HIS FEDERAL AND STATE CONSTITUTIONAL

RIGHTS TO A TRIAL BY JURY AND DUE PROCESS WHEN IT

REFUSED TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF SELFDEFENSE.

2. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND

VIOLATED THE DUE PROCESS CLAUSES OF THE STATE AND

FEDERAL CONSTITUTIONS WHEN IT REFUSED APPELLANT’S

REQUEST TO INSTRUCT ON THE INFERIOR OFFENSE OF

VOLUNTARY MANSLAUGHTER.

3. TRIAL COUNSEL WAS INEFFECTIVE UNDER THE SIXTH

AMENDMENT OF THE U.S. CONSTITUTION FOR FAILING TO

PROPERLY ADVISE HIS CLIENT ABOUT THE POSSIBLE MAXIMUM

TERM HE WAS FACING.

Exhibit 6 to Return of Writ.

On August 24, 2009, the appellate court affirmed the judgment of the trial court. 

Exhibit 9 to Return of Writ. Petitioner, through appellate counsel, filed a timely notice of

appeal to the Ohio Supreme Court setting forth the following propositions of law:

I. A defendant is entitled to an instruction, including an affirmative

defense, if they can illustrate sufficient evident (sic), which, if believed,

would raise a question in the minds of reasonable men concerning the

existence of such issue. 

II. Introduction of evidence of self-defense does not preclude an

instruction for voluntary manslaughter, on a “heat of passion” or “fit of

rage” theory if there is evidence sufficient to support defendant’s

conviction for voluntary manslaughter.

III. Counsel’s failure to be aware of, and advise a defendant of the

possible sentences upon conviction, which induce a defendant to stand

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 6 of 36 PAGEID #: <pageID>
7

trial, constitutes ineffective assistance of counsel.

Exhibit 11 to Return of Writ. The Ohio Supreme Court denied leave to appeal and

dismissed petitioner’s case as not involving any substantial constitutional question. 

Exhibit 13 to Return of Writ.

On December 3, 2010, petitioner, proceeding through counsel, filed the instant

petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in

the custody of the respondent in violation of the Constitution of the United States based

upon the following grounds raised on the face of the petition, and set forth as follows:

1. The Petitioner was not afforded his Sixth Amendment right to

assistance of counsel.

2. Petitioner was deprived his right to present a complete defense due to

the trial court’s denial of a self-defense instruction. 

It is the position of respondent that petitioner’s claims fail on their merits.

STANDARD OF REVIEW

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.

104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.

Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d

682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating

state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d

481 (1997), and "demands that state-court decisions be given the benefit of the doubt,"

Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam ). 

Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 7 of 36 PAGEID #: <pageID>
8

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, a federal habeas court may not grant relief unless the

state court's decision was contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable determination of the facts in light

of the evidence that was presented. 28 U.S.C. § 2254(d) provides:

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.

As the Supreme Court has explained, "an unreasonable application of federal law

is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362,

410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Harbison v. Bell, 408 F.3d 823, 829 (6th

Cir. 2005). Indeed, "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." Id., at 411, 120 S.Ct.

1495. Rather, that application must be "objectively unreasonable." Id., at 409, 120 S.Ct.

1495. This distinction creates "a substantially higher threshold" for obtaining relief than

de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 8 of 36 PAGEID #: <pageID>
9

(2007). The Court will apply this standard to petitioner's claims. 

CLAIM ONE

Petitioner’s first claim is that his Sixth Amendment right to counsel was violated

when he proceeded to trial based on erroneous information provided by his trial

counsel. According to petitioner, his trial counsel led him to believe that the maximum

penalty he was facing if he went to trial was twenty years to life imprisonment. 

Petitioner asserts that he could have accepted a plea deal that would have resulted in a

prison term of fifteen years. He claims that he did not pursue this deal because he

believed that his maximum sentence was twenty years to life. Instead, he received a

sentence of thirty years to life. When petitioner raised this issue on direct appeal, the

state appellate court addressed the issue this way: 

IV. Ineffective Assistance

{¶ 47} In order to prevail on a claim of ineffective assistance of counsel,

Hendrickson must show (1) his counsel's performance was deficient in

that it fell below an objective standard of reasonable representation, and

(2) the deficient performance prejudiced his defense so as to deprive him

of a fair trial. State v. Smith (2000), 89 Ohio St.3d 323, 327, 731 N.E.2d 645,

citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,

paragraph two of the syllabus. To establish prejudice, Hendrickson must

show that there exists a reasonable probability that, were it not for

counsel's errors, the result of the proceeding would have been different.

State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; Bradley, at

paragraph three of the syllabus.

{¶ 48} In his third assignment of error, Hendrickson contends that his trial

counsel was ineffective for failing to properly advise him about the

possible maximum term he was facing if convicted after trial.

Hendrickson contends that trial counsel failed to pursue a “flat” 15-year

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 9 of 36 PAGEID #: <pageID>
10

plea deal based on counsel's erroneous belief that the maximum sentence

for aggravated murder was life with possible parole after 20 years.

Hendrickson argues that by advising him that he was only facing a

20-year to life sentence, and not the actual 30-year to life sentence he

ultimately received, trial counsel “could have inadvertently induced” him

to proceed to trial and that counsel's error should be “deemed

prejudicial.”

{¶ 49} Our review of the record shows that after the jury returned its

verdict, the parties discussed the possible sentences with the court. During

their discussion, defense counsel stated:

BY MR. HODGE: Thank you, Judge. We would submit there are no

specifications in this case. It's a statutory sentence. There's only one

sentence available to the Court, twenty to life.

* * *

BY THE JUDGE: Unless I'm reading the wrong grid Mr. Hodge, I think

there are several options. I'm looking at 2929.03(A)(1)(a). Except as

provided in (A)(2) of this section the trial court shall impose one of the

following sentences. I think that's the section. Now if I'm wrong, tell me

so. It says I have, one option is life in prison without parole. The second

option is life imprisonment with parole eligibility after twenty years. A

third is life in prison with eligibility after twenty five years. And a four

[sic] is life in prison with thirty years. Is that your understanding, Mr.

Warren?

{¶ 50} Thereafter, the court held a bench conference, during which the

following exchange took place:

BY MR. HODGE: (Inaudible) my client in terms of (inaudible) egregious

error on my part.

BY THE JUDGE: You advised him it was twenty to life?

BY MR. HODGE: Twenty to life, yes sir. I advised him of that and he

turned down a flat fifteen. He turned down (inaudible) voluntary

manslaughter. I'm sorry. A straight murder charge offer at a different

time. (Inaudible) and that is an egregious error on my part.

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 10 of 36 PAGEID #: <pageID>
11

BY MR. WARREN: Just for the record, we talked about some possibilities.

We never offered a flat fifteen.

BY MR. HODGE: Well we had further discussions more recently where

essentially (inaudible) from the Prosecutor was likely to be accepted. All

I'm saying is he without being properly advised did not authorize me to

do that. I don't know what to say here. I don't know what to say.

* * *

BY MR. HODGE: I can only apologize. It's just an egregious error on my

part.

BY THE JUDGE: Do you want to speak to him?

BY MR. HODGE: There's nothing that can be done at this point.

{¶ 51} The court later sentenced Hendrickson to life imprisonment with

parole eligibility after thirty years.

{¶ 52} The Strickland analysis applies to claims of ineffective assistance of

counsel involving counsel's advice offered during the plea process. Hill v.

Lockhart (1985), 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203. A defendant

who asserts that his counsel was constitutionally ineffective for

encouraging him to plead guilty must prove both that his counsel's

performance was deficient and that “there is a reasonable probability that,

but for counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial.” Id. at 59. Similarly, a defendant who

claims that his counsel was ineffective for encouraging him to reject a plea

bargain and go to trial states a viable Sixth Amendment claim. See Turner

v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds,

492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), reinstated on other

grounds, 940 F.2d 1000. The defendant must prove both deficient

performance on the part of his counsel and that, but for his counsel's

advice, there is a reasonable probability that he would have pleaded

guilty. Id. at 1206.

{¶ 53} Here, we assume that trial counsel was deficient in failing to

properly advise Hendrickson about the possible maximum term he was

facing if convicted after trial. However, Hendrickson fails to demonstrate

a reasonable probability that, but for his counsel's errors, the result of the

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 11 of 36 PAGEID #: <pageID>
12

proceeding would have been different. First, as the State points out, there

is no evidence that the State offered a “flat” 15-year term. In fact, while the

prosecutor referenced “some possibilities” that were discussed concerning

the plea negotiations, there is no evidence in the record concerning the

plea bargain process. Specifically, there is no evidence in the record

concerning the plea offers actually made and/or rejected. Second,

Hendrickson fails to demonstrate a reasonable probability that he would

have accepted any particular offer, including a “flat” 15-year term, even if

the State had offered it and his counsel had so advised. He fails to point to

any evidence in the record to show that, but for his counsel's advice, there

is a reasonable probability that he would have pleaded guilty.

Hendrickson's contention that trial counsel “could have inadvertently

induced” him to proceed to trial is insufficient. Because the record before

us fails to support Hendrickson's claim that his trial counsel's deficient

performance prejudiced him, we reject his ineffective assistance of counsel

claim.FN1

FN1. A direct appeal is not the proper avenue for an attack on counsel's

performance that must rely upon evidence outside the record of the trial.

Post-conviction relief may be available to contest those claims, however.

For purposes of petitioner’s habeas claim, it is well-established that the right to

counsel guaranteed by the Sixth Amendment is the right to effective assistance of

counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763

(1970). The standard for reviewing a claim of ineffective assistance of counsel is

twofold:

First, the defendant must show that counsel's performance was deficient.

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. 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 v. Washington, supra, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 12 of 36 PAGEID #: <pageID>
13

(6th Cir.1987). “Because of the difficulties inherent in making the evaluation, 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.” Strickland, 466 U.S. at 689.

To establish prejudice, it must be shown that there is a reasonable probability

that, but for counsel's errors, the result of the proceedings would have been different.

Id., at 694. “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Id., at 697. Because petitioner must satisfy both prongs of the

Strickland test to demonstrate ineffective assistance of counsel, if the Court determines

that petitioner has failed to satisfy one prong, it need not consider the other. Strickland,

466 U.S. at 697.

In the context of a plea bargain, Strickland requires that a petitioner show (1)

deficient performance due to counsel’s mistaken encouragement to reject a plea bargain

and (2) actual prejudice: that but for counsel’s mistaken advice, a reasonable probability

exists that the petitioner would have accepted the plea offer. Magana v. Hofbauer, 263

F.3d 542, 550 (6th Cir. 2001); Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

 Respondent asserts that the state appellate court properly applied the Strickland

standard in concluding that petitioner had not established that, but for his counsel’s

errors, the result of the proceeding would have been different. In reply, petitioner

asserts that, because his counsel stated on the record that petitioner proceeded to trial

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 13 of 36 PAGEID #: <pageID>
14

because he thought, as a result of counsel’s advice, that he faced only a potential

additional five years of incarceration, he has met his burden of establishing prejudice. 

The Court agrees with respondent that petitioner’s allegations are insufficient to

establish prejudice under Strickland.

Much of petitioners’ argument on this issue is directed to trial counsel’s alleged

deficiencies in failing to properly advise him of the potential maximum term if he was

convicted after trial. In concluding that petitioner had not met the requirements of

Strickland, however, the state appellate court assumed the deficiency of trial counsel’s

advice. As a result, the focus of the state appellate court’s decision was limited to

whether petitioner demonstrated that, but for his counsel’s advice, the result of the

proceeding would have been different. The state court concluded that the result of the

proceeding would not have been different. To the extent that petitioner addresses this

prong of the Strickland test at all, he argues that the disparity in sentence length

provides sufficient proof that he would have chosen the plea deal.

As the state court found, petitioner simply has not provided any evidence that 

the prosecution ever formally offered a plea bargain providing for a flat fifteen-year

sentence. The evidence in the record, including the statements of petitioner’s trial

counsel and the prosecutor, indicates that discussions were undertaken but do not

demonstrate the existence of any specific plea arrangement. Instead, petitioner relies on

speculation and conjecture relating to a fifteen-year sentence rather than providing

evidence of any plea bargaining process. For example, in his petition, petitioner argues

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 14 of 36 PAGEID #: <pageID>
15

that “the record shows that trial counsel believed that he could have secured a plea deal

that would have resulted in a prison term of fifteen years.” Petition for Writ of Habeas

Corpus (#2), p. 14. A belief held by petitioner’s trial counsel that he may have been able

to secure a plea bargain simply is not evidence of either the plea bargaining process or

that a plea deal was offered. 

Additionally, the disparity in potential sentence length standing alone does not

allow petitioner to meet his burden here. While the Sixth Circuit “has given special

weight to significant disparities between penalties offered in a plea and penalties of a

potential sentence in determining whether a defendant suffered prejudice by not

accepting a plea offer,” U.S. v. Morris, 470 F.3d 596, 602 (6th Cir. 2006) quoting Griffin v.

United States, 330 F.3d 733, 737 (6th Cir. 2003), this is not the situation presented by

petitioner. Again, petitioner has not demonstrated that any specific fifteen-year plea

deal was offered such that any actual or significant disparity existed. 

 In short, as respondent argues, petitioner cannot demonstrate that he was

prejudiced by failing to accept a plea bargain that never was offered. In light of this, the

state appellate court's decision was neither contrary to nor an unreasonable application

of clearly established federal law. Further, the state appellate court decision was not

based on an unreasonable determination of the facts in light of the evidence that was

presented. Consequently, petitioner’s first claim is without merit.

In reaching this decision, the Court notes that petitioner’s ineffective assistance of

counsel claim appears to rely only on evidence readily apparent from the face of the

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 15 of 36 PAGEID #: <pageID>
1. O.R.C. §2953.23 provides in pertinent part:

(A) ... [A] court may not entertain a petition filed after the expiration of the period prescribed in

division (A) of that section or a second petition or successive petitions for similar relief on behalf

of a petitioner unless both of the following apply: 

(1) Either of the following applies: 

(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the

facts upon which the petitioner must rely to present the claim for relief. 

(b) Subsequent to the period prescribed in or to the filing of an earlier petition, the United States

Supreme Court recognized a new federal or state right that applies retroactively to persons in the

petitioner's situation, and the petition asserts a claim based on that right. 

(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at

trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the

petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional

error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible

for the death sentence. 

16

record. In fact, petitioner argues as much in his reply and contends that, as a result, a

post-conviction proceeding was not the proper remedy for him to pursue. 

Nevertheless, even if petitioner were relying on evidence not readily apparent from the

face of the record, he did not pursue a timely post conviction petition and the time

period for filing such an action has expired. Nothing in the record suggests that

petitioner would be able to meet the stringent requirements for consideration of his

claim in a delayed post-conviction petition. See R.C. §2953.23.1 

CLAIM TWO

In the petition, petitioner’s second claim is that he was deprived of his right to

present a full defense because the trial court denied a self-defense instruction. In

responding to this argument, the respondent addressed the issue of the omission of jury

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 16 of 36 PAGEID #: <pageID>
17

instructions on self-defense and but also addressed the issue of the omission of jury

instructions on voluntary manslaughter. Both of these issues had been raised by the

petitioner on direct appeal. As a result, in his reply, petitioner addresses the issue of his

request for an instruction on voluntary manslaughter. Because respondent has

addressed the issue of the trial court’s failure to instruct on voluntary manslaughter, no

prejudice will result from this Court’s consideration of this issue within petitioner’s

second claim. See, e.g., Stallings v. Bagley, 561 F.Supp.2d 821, 860 n. 14 (N.D. Ohio 2008). 

Consequently, the Court will consider both issues relating to jury instructions.

The trial court addressed these issues as follows:

The defendant has requested jury instructions on the affirmative defense

of self-defense and on the inferior offense of voluntary manslaughter. 

Self-defense is an affirmative defense, and the defendant bears both the

burden of going forward with the evidence of self-defense and the burden

of proving the same. He must establish such a defense by a

preponderance of the evidence. The Court is not obligated to instruct on

self defense.”[i]f the evidence adduced at trial is legally insufficient to

raise the issue of self-defense.” State v. Barnd (1993), 85 Ohio App.3d 254,

259.

In the case at bar, to receive an instruction on self-defense, the defendant

must show there is legally sufficient evidence raising an issue as to both of

the following: (1) That he was not at fault in creating the situation giving

rise to the event in which the death of Jodi Blankenship occurred; and (2)

That he had reasonable grounds to believe and an honest belief, even if

mistaken, that he was in imminent danger of death or great bodily harm. 

These elements are cumulative, and the defendant’s failure to show

legally sufficient evidence raising an issue on either element warrants the

refusal of a self defense instruction. See State v. Jackson (1986), 22 Ohio

St.3d 281. Moreover, “[i]f force used is so greatly disproportionate to [the

defendant’s] apparent danger to show an unreasonable purpose to injure

the victim, then the defense of self-defense is not available.” State v.

Hunter, Cuyahoga App. No. 86048. 2006-Ohio-20 (one wound to

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 17 of 36 PAGEID #: <pageID>
18

defendant caused by the victim as opposed to twenty-two knife wounds

inflicted by the defendant on the victim, demonstrated excessive force),

quoting State v. Jackson, supra.

In the case at bar there is legally insufficient evidence showing that the

defendant was not at fault in creating the encounter that led to Jodi

Blankenship’s death. The undisputed evidence shows that defendant and

Blankenship argued over Blankenship’s new boyfriend. Blankenship

attempted to withdraw from the argument by entering the bathroom and

locking the door. Rather than leaving Blankenship alone, the defendant

rattled the door, cut the electrical power [to] the bathroom, then waited

outside the door for at least an hour for Blankenship to emerge. When she

finally opened the door, the defendant confronted her in the doorway. 

Defendant has failed to show there is legally sufficient evidence on the

“lack of fault” element of self defense.

Furthermore, there is no evidence supporting any reasonable conclusion

that the defendant’s use of force was anything other than greatly

disproportionate to his apparent anger. Defendant received two minor

wounds, and returned these with fourteen severe stab wound to vital

parts of the victim’s body, six of which were imminently fatal.

Accordingly, the defendant has not shown there is sufficient evidence

justifying an instruction on self defense, and his request for the same is

denied.

An instruction on the inferior degree offense of voluntary manslaughter is

appropriate only if there is legally sufficient evidence that the defendant

was under a sudden fit of passion or rage. Fear for one’s safety does not

constitute sudden passion or fit of rage within the meaning of the

voluntary manslaughter statute. State v. Harris (1998), 129 Ohio App.3d

527. In the case at bar, the defendant produced evidence that he feared for

his life and struggled with the victim. He could not remember actually

stabbing her. His fear for his safety, alone, does not justify an instruction

on voluntary manslaughter, and the defendant has not produced legally

sufficient evidence that he was under the influence of a sudden passion or

fit of rage.

Accordingly, the defendant’s request for an instruction on voluntary

manslaughter is denied.

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 18 of 36 PAGEID #: <pageID>
19

Exhibit 3 to Return of Writ. 

The Fourth District Court of Appeals affirmed the trial court decision, stating as

follows:

{22} We have previously set out our standard of review regarding a trial court's

jury instructions:

The law requires a trial court to give the jury all instructions

that are relevant and necessary for the jury to properly

weigh the evidence and reach their verdict as the fact finder.

State v. Comen (1990), 50 Ohio St.3d 206, 443 N.E.2d 640,

paragraph two of the syllabus. The jury instructions ‘must be

based upon the actual issues in the case as presented by the

evidence.’ State v. Tompkins (Oct. 25, 1996), Clark App. No.

95-CA-0099, 1996 WL 612855, citing State v. Scimemi (June 2,

1995), Clark App. No. 94-CA-58, 1995 WL 329031. Where it is

possible that ‘reasonable minds might reach the conclusion

sought by the specific instruction’ the court must provide

guidance to the jury. See Murphy v. Carrollton Mfg. Co.

(1991), 61 Ohio St.3d 585, 575 N.E.2d 828. While the actual

wording of the charge is left to the court's discretion, the

need for an instruction presents a question of law. Id.

State v. Dyer, Scioto App. No. 07CA3163, 2008-Ohio-2711, at ¶ 11, quoting

State v. Monroe, Scioto App. No. 05CA3042, 2007-Ohio-1492, at ¶ 50; see,

also, State v. Babu, Athens App. No. 07CA36, 2008-Ohio-5298, ¶ 21.

B. Instructions on Self-Defense

{¶ 23} Under Ohio law self-defense is an affirmative defense, which a

defendant must prove by a preponderance of the evidence. R.C.

2901.05(A); State v. Martin (1986), 21 Ohio St.3d 91, 488 N.E.2d 166,

syllabus. In order to establish self-defense, a defendant has to prove that

(1) he was not at fault in creating the situation giving rise to the affray, (2)

he had reasonable grounds to believe and an honest belief that he was in

immediate danger of death or great bodily harm and that his only means

of escape from such danger was by the use of force, and (3) he had not

violated any duty to escape to avoid the danger. State v. Williford (1990), 49

Ohio St.3d 247, 249, 551 N.E.2d 1279; State v. Robbins (1979), 58 Ohio St.2d

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 19 of 36 PAGEID #: <pageID>
20

74, 388 N.E.2d 755, paragraph two of the syllabus. A defendant is

privileged to use only that force that is reasonably necessary to repel the

attack. Wiiliford at 249, citing State v. McLeod (1948), 82 Ohio App. 155, 157,

 80 N.E.2d 699. The elements of self-defense are cumulative, and if

defendant fails to prove any one of the elements by a preponderance of

the evidence, he fails to demonstrate that he acted in self-defense. See State

v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 72, citing

State v. Jackson (1986), 22 Ohio St.3d 281, 284, 490 N.E.2d 893.

{¶ 24} A defendant must meet the burden of going forward with evidence

of a nature and quality sufficient to raise an affirmative defense. State v.

Howard, Ross App. No. 07CA2948, 2007-Ohio-6331, ¶ 28, citing R.C.

2901.05; State v. Cross (1979), 58 Ohio St.2d 482, fn. 5, 391 N.E.2d 319; State

v. Abner (1978), 55 Ohio St.2d 251, 379 N.E.2d 228. The trial court, as a

matter of law, cannot give a jury instruction on an affirmative defense if a

defendant fails to meet this burden. Id., citing Cross at fn. 5; Abner at

253-254, 379 N.E.2d 228; State v. Melchior (1978), 56 Ohio St.2d 15, 20, 381

N.E.2d 195. “The proper standard for determining in a criminal case

whether a defendant has successfully raised an affirmative defense under

R.C. 2901.05 is to inquire whether the defendant has introduced sufficient

evidence which, if believed, would raise a question in the minds of

reasonable men concerning the existence of such issue.” Melchior at

paragraph one of the syllabus. A trial court does not err by refusing to

instruct on self-defense when the defendant fails to produce sufficient

evidence to support that defense. Howard at ¶ 29, citing State v. Nichols,

Scioto App. No. 01 CA2775, 2002-Ohio-415.

{¶ 25} In denying Hendrickson's request for a jury instruction on

self-defense, the trial court stated:

In the case at bar, there is legally insufficient evidence showing that the

defendant was not at fault in creating the encounter that led to Jodi

Blankenship's death. The undisputed evidence shows that defendant and

Blankenship argued over Blankenship's new boyfriend. Blankenship

attempted to withdraw from the argument by entering the bathroom and

locking the door. Rather than leaving Blankenship alone, the defendant

rattled the door, cut the electrical power [sic] the bathroom, then waited

outside the door for at least an hour for Blankenship to emerge. When she

finally opened the door, the defendant confronted her in the doorway.

Defendant has failed to show there is legally sufficient evidence on the

“lack of fault” element of self defense.

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 20 of 36 PAGEID #: <pageID>
21

Furthermore, there is no evidence supporting any reasonable conclusion

that the defendant's use of force was anything other than greatly

disproportionate to his apparent danger. Defendant received two minor

wounds, and returned these with fourteen severe stab wounds to vital

parts of the victim's body, six of which were imminently fatal.

Accordingly, the defendant has not shown there is sufficient evidence

justifying an instruction on self defense, and his request for the same is

denied.

{¶ 26} Hendrickson contends that he presented sufficient evidence to show

that he was not “at fault” in creating the encounter that led to

Blankenship's death. Hendrickson argues that while his actions may have

created the situation leading up to the affray, he did not provoke the

violence that resulted. In support of his position, he relies on State v.

Gillispie, 172 Ohio App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870, where the

court stated:

 The first prong of the Robbins test for self-defense-that the defendant was

not at fault in creating the situation giving rise to the affray-does not

require a showing that the defendant played no part in it. Neither does it

preclude the defense if the defendant was engaged in criminal conduct

when he was attacked. State v. Turner, 171 Ohio App.3d 82, 869 N.E.2d

708. Rather, it requires a defendant to show that he was not “at fault” in

creating the situation; that is, that he had not engaged in such wrongful

conduct toward his assailant that the assailant was provoked to attack the

defendant.

Gillispie at ¶ 17.

{¶ 27} Hendrickson argues that because the evidence showed that

Blankenship started the “actual physicality of the assault” by stabbing

him, the trial court erred when it focused on events leading up the

physical exchange. If the evidence shows that the defendant threatened

the victim or was the aggressor, he will normally be unable to establish

that he was not “at fault” in creating the situation which gave rise to his

use of force. See Melchior, supra, at 20, 381 N.E.2d 195; see, also, Robbins,

supra, at 80, 388 N.E.2d 755. Thus, the “not-at-fault” requirement generally

means that the defendant must not have been the initial aggressor in the

incident. See Robbins. And, as we have previously concluded, the concept

of not being “at fault” is broader than simply not being the immediate

aggressor. See Nichols, supra, at *4. In Nichols we found that trial court

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 21 of 36 PAGEID #: <pageID>
22

properly rejected an instruction on self-defense where the evidence

showed that the defendant was “at fault” for creating the affray even

though the victim threw the first punch. We noted that a person may not

provoke an assault or voluntarily enter an encounter and then claim a

right of self-defense. Id. Our holding in Nichols is consistent with the

Gillispie decision where a defendant is “at fault” if he engaged in “such

wrongful conduct” as to provoke the violent situation. See Gillispie at ¶ 17.

{¶ 28} Thus, the aggressor in an encounter normally may not avail himself

of the protection of self-defense. Williford, supra, at 249, 551 N.E.2d 1279.

However, while Hendrickson was verbally aggressive with Blankenship

and created an environment ripe for physical confrontation, there is no

evidence in the record that he threatened Blankenship with deadly force

and/or physically assaulted her. Yet, Blankenship responded to

Hendrickson's non-deadly “aggression” by using deadly force, i.e. by

stabbing him twice in the abdomen with a knife. In other words,

Blankenship did not simply respond to Hendrickson's provocation with

the use of physical force, which may have been justified. Rather, she used

deadly force in response to a situation that did not justify it. Because

Blankenship's use of deadly force against Hendrickson was not lawful,

Hendrickson was justified in defending himself against a deadly attack. In

other words, a “non-deadly aggressor” who begins an encounter may

justifiably defend himself against a deadly attack. He may do so because

the use of deadly force by the victim in response to non-deadly aggression

is an unlawful use of force. See 2 LaFave, Substantive Criminal Law (2

Ed.2003) 153-154, Section 10.4(e). For instance, if the initial aggressor slaps

the victim with an open hand, should the law preclude that aggressor

from defending himself if the victim pulls a gun and starts shooting? To

adopt such a policy would be to encourage victims to overreact with

deadly force rather than restricting the victims to only the degree of force

necessary to repel the initial attack. Thus, we conclude that the trial court

erred in finding that Hendrickson failed to show that he was not “at fault”

in creating the situation giving rise to Blankenship's death.

{¶ 29} Nevertheless, Hendrickson was not entitled to an instruction of

self-defense because no reasonable juror could believe that the degree of

force he used, i.e. stabbing Blankenship 14 times, was “reasonably

necessary” to repel the attack. As an alternative basis for denying his

request, the trial court found that all the evidence showed his use of force

was greatly disproportionate to his apparent danger. Hendrickson

contends that the trial court erred when it cited his use of excessive force

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 22 of 36 PAGEID #: <pageID>
23

as a basis for denying the instruction. He argues that whether he used a

disproportionate amount of force was a fact issue for the jury and not an

appropriate consideration concerning whether he was legally entitled to

the instruction.

{¶ 30} Under a self-defense claim, a person is privileged to use only that

force that is reasonably necessary to repel the attack. See Williford, supra, at

249, 551 N.E.2d 1279. The second element of the affirmative defense of

self-defense requires the defendant to prove that he had a bona fide belief

that he was in imminent danger of death or great bodily harm and that his

only means of escape was the use of such force. See State v. Thomas (1997),

77 Ohio St.3d 323, 330, 673 N.E.2d 1339, citing Williford at 249, 551 N.E.2d

1279, and Robbins at paragraph two of the syllabus. This second element

has both objective and subjective components. The defendant's belief must

be objectively reasonable under the circumstances, and the defendant

must have subjectively and honestly believed that danger was imminent.

State v. Keith, Franklin App. Nos. 08AP-28, 08AP-29, 2008-Ohio6122, ¶ 23,

citing Thomas at 330-331, 673 N.E.2d 1339. The objective part of the test

requires consideration of “whether, considering all of the defendant's

particular characteristics, knowledge, or lack of knowledge,

circumstances, history, and conditions at the time of the attack,” a

reasonable person would believe that danger was imminent. Id., citing

Thomas at 330, 673 N.E.2d 1339. The subjective part requires consideration

of whether the defendant himself actually believed that he was in

imminent danger. Id.

{¶ 31} Implicit in this second element of self-defense, i.e. that the

defendant's use of deadly force was in “good faith,” is the requirement

that the degree of force used was “warranted” under the circumstances

and “proportionate” to the perceived threat. See State v. Palmer (1997), 80

Ohio St.3d 543, 564, 687 N.E.2d 685; see, also, Cassano, supra. In Cassano,

the Supreme Court of Ohio found that the trial court's erroneous

instruction on the “duty to retreat” element of self-defense was harmless

because the defendant had no basis for a “bona fide belief that he was in

imminent danger of death or great bodily harm” and could “escape from

such danger” only by using deadly force. Id. at ¶ 74-76, 772 N.E.2d 81. The

Court noted that even under the defendant's version, when he stabbed the

victim, the victim had no weapon and that once the defendant retrieved

the “shank” from the victim, he was not in danger. The Court also found

that the defendant repeatedly stabbed the victim after the victim ceased to

pose any conceivable threat to him. Id. at ¶ 77, 772 N.E.2d 81. Thus, the

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 23 of 36 PAGEID #: <pageID>
24

Court found that the defendant was not prejudiced by the trial judge's

erroneous instruction on the duty to retreat because no reasonable jury

could have believed that he acted in self-defense. Id., citing Palmer, supra,

at 564, 687 N.E.2d 685. In Palmer, the Supreme Court of Ohio found that

the trial court properly refused to instruct the jury on self-defense in part

because no reasonable jury could have believed that the defendant used

deadly force in “good faith.” Id. The Court found that even if the

defendant was justified in attempting to strike the victim with his fist and

that the gun defendant was carrying accidently discharged, defendant's

act of firing a second shot into the victim's head and his act of firing two

shots into the second's victim's head “were certainly not warranted.” Id.

{¶ 32} In State v. Rice, Butler App. No. CA2003-01-015, 2004-Ohio-697, the

Twelfth District Court of Appeals considered whether the trial court erred

in failing to instruct the jury on self-defense as requested. There, the

evidence showed that the victim was stabbed in the chest five times.

According to the defendant, he was arguing with the victim in her vehicle

when she hit him with her fists. He hit her back so she pulled out a knife,

waved it in his face, and attempted to stab him. He grabbed her hand and

pushed it down to keep the knife away from him. Defendant maintained

that the knife “could have possibly cut her at that time.” Id. at ¶ 27. In

concluding that the trial court did not err in refusing to instruct the jury on

self-defense, the Twelfth District held that a defendant is privileged to use

only the level of force that is reasonably necessary to repel the attack. Id. at

¶ 28. Even assuming the defendant's version, however, the court found

that he had not demonstrated that the force reasonably necessary to repel

the victim's attack required stabbing her five times in the chest. Thus, the

court found that defendant had failed to demonstrate that he acted in

self-defense and that the trial court did not err in failing to instruct the

jury on self-defense. Id. at ¶ 29.

{¶ 33} We have specifically held that self-defense is inappropriate if the

force used is “so grossly disproportionate as to show revenge or as

criminal purpose.” Nichols, supra, at *3 (concluding that trial court

properly refused to instruct the jury on self-defense where the evidence

showed in part that defendant inflicted severe harm on the victim, that

“exceeded that which was conceivably necessary to ‘repel’ the attack”),

citing State v. Speakman (Mar. 27, 2001), Pickaway App. No. 00CA35, 2001

WL 315198, unreported; see, also, Ohio Jury Instructions, CR 421.23

(“Excessive Force. If the defendant used more force than reasonably

necessary and if the force used is greatly disproportionate to the apparent

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 24 of 36 PAGEID #: <pageID>
25

danger, then the defense of [self-defense] is not available.”).

{¶ 34} According to Hendrickson, after Blankenship stabbed him, he

started “pushing.” He believed he may have gotten a hold of the knife, but

was not sure. As he continued to “push,” she “tried to resist me” and then

said, “oh my gosh Ron.” He stopped “pushing,” but she then came

toward him and pushed him backward. The next thing he remembered

was pushing and pulling, from side to side, and back and forth. While he

admitted to several responding officers at the scene that he “stabbed”

Blankenship, Hendrickson testified that he did not actually remember

stabbing her.

{¶ 35} Although Hendrickson may not remember stabbing Blankenship,

the evidence shows that she in fact suffered from 14 stab wounds, six of

which were fatal. Several of the stab wounds were to vitals areas of the

body. As described above, her neck was slashed and her right thyroid

artery and right thyroid cartilage were sliced in two. She also suffered

from a fractured cervical vertebrae. She also sustained stab wounds to her

heart, lungs, abdomen, hips, and shoulder and stab wounds to her arms

and hands, which were described as “defensive wounds.” According to

Hendrickson, he suffered from two small stab wounds on his left side; he

did not receive stitches for his injuries. Other than the initial pain in his

left side from being stabbed, Hendrickson's testimony showed that he

suffered from no other injuries during the “struggle.” And there was no

other evidence of any defensive wounds on his hands or arms.

{¶ 36} Moreover, as for the “struggle” that ensued after Blankenship

inflicted the two minor stab wounds, Hendrickson testified that during

this time Blankenship tried to “resist” him, which suggests defensive

action on her part. Then, after believing that he “may” have gotten a hold

of the knife, there was only one specific instance in which he described

that she came at him and “pushed” him backward, stating “oh my gosh

Ron.” Other than that instance where she merely “pushed” him, there was

no other testimony concerning the “threat” she actually posed as he

continued “pushing and pulling.” Thus, it is clear that at some point

during the “struggle,” Blankenship no longer posed a conceivable threat

to him and his actions were no longer “defensive.” See State v. Broe,

Hamilton App. No. C-020521, 2003-Ohio-3054, ¶ 75 (finding that the trial

court's erroneous instruction on the “duty to retreat” element was

harmless error because while one blow to the victim's head may have

constituted self-defense, the next several blows defendant rendered to her

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 25 of 36 PAGEID #: <pageID>
26

head while she was attempting to rise “removed [defendant's] action from

being defensive.”). See, also, Cassano, supra, at ¶ 77.

{¶ 37} We are quick to acknowledge that the law does not require one who

is exercising self-defense in response to a deadly threat to measure his

efforts with the eye of a surgeon. The exigency of that situation does not

require analytical precision. To paraphrase Justice Holmes in Brown v.

United States (1921), 256 U.S. 335, 65 L.Ed.2d 961, detached reflection in the

presence of deadly force is an unreasonable demand. However, we do not

impose such an unreasonable standard here. Given the severity of

Blankenship's numerous stab wounds, their location, and the multiple

defensive wounds, along with Hendrickson's two minor stab wounds and

vague description of the “struggle” and the threat Blankenship posed, we

agree with the trial court's finding that Hendrickson's force was grossly

disproportionate to the perceived danger. Because no reasonable jury

could believe that stabbing Blankenship 14 times after disarming her was

“reasonably necessary” to repel her attack, the trial court did not err in

refusing to instruct the jury on self-defense. In other words, arguably

Hendrickson may have been justified in using deadly force until he was

safe from Blankenship's efforts to stab him. Once he eliminated her threat

to his life or serious bodily injury, he had to stop using deadly force. He

did not. Therefore, his use of force was excessive. Hendrickson's

continued use of deadly force did not indicate he exercised it in good

faith. His use of force was so grossly disproportionate to the actual threat

Blankenship represented after she had been disarmed that it indicates he

acted out of revenge or criminal purpose rather than self-defense.

{¶ 38} Therefore, we conclude that Hendrickson was not entitled to an

instruction on self-defense. Accordingly, we overrule Hendrickson's first

assignment of error.

C. Voluntary Manslaughter

{¶ 39} R.C. 2903.03(A) defines “voluntary manslaughter” and provides:

“No person, while under the influence of sudden passion or in a sudden

fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person

into using deadly force, shall knowingly cause the death of another * * *.”

Voluntary manslaughter is an inferior-degree offense to aggravated

murder. See State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d

547, ¶ 80.

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 26 of 36 PAGEID #: <pageID>
27

{¶ 40} Before a trial court gives a voluntary manslaughter instruction in a

murder case, the court first must determine “whether evidence of

reasonably sufficient provocation occasioned by the victim has been

presented to warrant such an instruction.” Id. at ¶ 81, 857 N.E.2d 547,

citing State v. Shane (1992), 63 Ohio St.3d 630, 590 N.E.2d 272, paragraph

one of the syllabus. “In making that determination, trial courts must apply

an objective standard: ‘For provocation to be reasonably sufficient, it must

be sufficient to arouse the passions of an ordinary person beyond the

power of his or her control.’ ” Id., quoting Shane at 635, 590 N.E.2d 272. “If

insufficient evidence of provocation is presented, so that no reasonable

jury would decide that an actor was reasonably provoked by the victim,

the trial judge must, as a matter of law, refuse to give a voluntary

manslaughter instruction.” Shane at 634, 590 N.E.2d 272.

{¶ 41} “Once the court finds that the evidence shows that the defendant

was sufficiently provoked under the objective standard, the inquiry shifts

to a subjective standard: whether the defendant actually was under the

influence of sudden passion or in a sudden fit of rage.” State v. Sudderth,

Lawrence App. No. 07CA38, 2008-Ohio-5115, ¶ 14, citing Shane, supra. It is

at this point that the defendant's emotional and mental state and the

conditions and circumstances that surrounded him at that time must be

considered. Shane at 634, 590 N.E.2d 272. However, “[e]vidence

supporting the privilege of self-defense, i.e. that the defendant feared for

his own and other's personal safety, does not constitute sudden passion or

a fit of rage as contemplated by the voluntary manslaughter statute.”

Sudderth at ¶ 14, quoting State v. Harris (1998), 129 Ohio App.3d 527, 535,

718 N.E.2d 488; see, also State v. Perdue, 153 Ohio App.3d 213,

2003-Ohio-3481, 792 N.E.2d 747, at ¶ 12. “While self-defense requires a

showing of fear, voluntary manslaughter requires a showing of rage, with

emotions of ‘anger, hatred, jealously, and/or furious resentment.’ ” Id. at

¶ 14, 792 N.E.2d 747, quoting State v. Levett, Hamilton App. No. C-040537,

2006-Ohio-2222, at ¶ 29 (citations omitted). “Fear alone is insufficient to

demonstrate the kind of emotional state necessary to constitute sudden

passion or fit of rage.” Perdue at ¶ 12, citing State v. Mack (1998), 82 Ohio

St.3d 198, 201, 694 N.E.2d 1328.

{¶ 42} In denying Hendrickson's request for a voluntary manslaughter

instruction, the trial court stated:

In the case at bar, the defendant produced evidence that he feared for his

life and struggled with the victim. He could not remember actually

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 27 of 36 PAGEID #: <pageID>
28

stabbing her. His fear for his safety, alone, does not justify an instruction

on voluntary manslaughter, and the defendant has not produced legally

sufficient evidence that he was under the influence of a sudden passion or

fit or rage.

Accordingly, the defendant's request for an instruction on voluntary

manslaughter is denied.

{¶ 43} Hendrickson argues that there was ample evidence from which the

jury could have reasonably found that he acted under “sudden passion”

or a “sudden fit of rage” brought on by Blankenship's “serious

provocation.” He argues that after Blankenship unexpectedly stabbed

him, he acted out of fear and “in passion” and points to their

“mutual-combat” struggle and the ferocity of the attack.

{¶ 44} However, even if we assume that the evidence supports an

objective finding that Hendrickson was sufficiently provoked by

Blankenship, we conclude that the evidence fails to show that

Hendrickson actually acted under a sudden passion or fit of rage

sufficient to warrant a voluntary manslaughter instruction. First,

Hendrickson's act of killing Blankenship by stabbing her 14 times

demonstrates a purposeful killing, not an impulsive one. See State v. Carter

(2000), 89 Ohio St.3d 593, 602, 734 N.E.2d 345. In Carter, the Supreme

Court of Ohio found that the trial court did not err in refusing to instruct

the jury on voluntary manslaughter as the defendant requested. The Court

concluded that the defendant's request was properly denied because the

evidence, including that the victim was stabbed 18 times, fully supported

a purposeful killing. Id. at 602, 734 N.E.2d 345; see, also, State v. Braden, 98

Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 70

(voluntary-manslaughter instruction was not warranted where

defendant's act of killing the victims by shooting one victim five times and

shooting the other victim in the back of the head demonstrates purposeful

killing).

{¶ 45} Second, the record clearly demonstrates Hendrickson's subjective

belief that he acted out of fear and not sudden passion or rage. According

to Hendrickson, he was “shocked” when Blankenship stabbed him and he

immediately began pushing her away. He was “very scared” and thought

he was going to die. He twice yelled “what's the knife for” in an effort to

get help. When asked about his mental state, Hendrickson testified, “I was

fearful, very fearful for my life. And I was just panicking, I guess, and in

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 28 of 36 PAGEID #: <pageID>
29

passion.” At some point he believed he may have gotten a hold of the

knife and stopped pushing. However, when she came back toward him

and pushed him backward, he was “panicking” and thought he was a

“dead man.” The next thing he remembered was pushing and pulling,

“trying to stop me from getting stabbed and stuff.” When asked why he

fought with Blankenship, Hendrickson stated, “To save myself. I didn't

want to die. To stop myself from getting stabbed.”

{¶ 46} Clearly, the crux of Hendrickson's testimony was that acted out of

fear, not passion or rage. He consistently testified that he was “fearful” for

his life and “scared” he might die; he “panicked” and reacted to protect

himself. Moreover, Hendrickson never testified that he acted under a

sudden fit of rage. Hendrickson argues that their violent struggle supports

a finding of rage. However, we find that his vague description of a

“struggle” consisting of “pushing and pulling” where he does not even

remember stabbing Blankenship 14 times does not satisfy his burden to

produce evidence showing that he in fact stabbed her with emotions of

“anger, hatred, jealously, and/or furious resentment in rage,” especially

where his testimony makes no mention of such emotions. Likewise,

Hendrickson did not satisfy his burden to produce evidence showing that

he acted under a sudden passion. Other than one fleeting reference to “I

guess, and in passion” there is no other evidence that Hendrickson

actually stabbed her under a sudden passion sufficient to warrant a

voluntary manslaughter instruction. Because Hendrickson failed to

present evidence to show that he actually acted under a sudden passion or

fit of rage, the trial court was correct in refusing to instruct on voluntary

manslaughter. Thus, we overrule Hendrickson's second assignment of

error.

Petitioner claims that because he testified that he acted to defend himself, the

jury should have been instructed on the affirmative defense of self-defense. According

to petitioner, the trial court’s failure to instruct on self-defense prevented the jury from

considering whether petitioner used only that force which was reasonably necessary to

repel the attack in light of the perceived threat. Petitioner claims that the following facts

are relevant to this determination. 

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 29 of 36 PAGEID #: <pageID>
30

It was completely dark in the hallway in which they were standing.

[Petitioner’s] emotions were already running extremely high due to the

current situation. He was enraged and unable to think clearly, when out

of no where he felt a knife thrust into his side. He was stabbed more than

once, and thus, with his multiple wounds, it is possible that a reasonable

juror could find that he acted in self defense. His perception of the

situation was one where his life was under siege. He felt as though he

needed to react the way he did as a result of his clouded thought process

in order to save his own life.

Petition for Writ of Habeas Corpus, pp. 17-18. 

In his reply, petitioner argues further that the instruction was required because:

(1) he was stabbed first, (2) the weapon belonged to the victim, and (3) he did not use

the weapon until after being stabbed by the victim. Contrary to petitioner’s assertions,

the respondent contends that the force used by petitioner in response to the victim’s

actions - fourteen stab wounds, six of which were fatal - was “unreasonable and grossly

disproportionate to the force used by his victim.” Respondent’s Answer/Return of

Writ (#8), p. 19. As a result respondent asserts, petitioner was not entitled to have the

jury instructed on self-defense.

With respect to the issue of a trial court’s failure to instruct on self-defense, the

Sixth Circuit has held:

the right of a defendant in a criminal trial to assert self-defense is one of those

fundamental rights, and that failure to instruct a jury on self-defense when the

instruction has been requested and there is sufficient evidence to support such a

charge violates a criminal defendant's rights under the due process clause. It is

indisputably federal law as announced by the Supreme Court that a defendant

in a criminal trial has the right to “a meaningful opportunity to present a

complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81

L.Ed.2d 413 (1984); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct.

1038, 35 L.Ed.2d 297 (1973); Harrington v. Jackson, 1 Fed.Appx. 367, 2001

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 30 of 36 PAGEID #: <pageID>
31

U.S.App. LEXIS 532 (6th Cir. January 10, 2001). A necessary corollary of this

holding is the rule that a defendant in a criminal trial has the right, under

appropriate circumstances, to have the jury instructed on his or her defense, for

the right to present a defense would be meaningless were a trial court

completely free to ignore that defense when giving instructions.

Taylor v. Withrow, 288 F.3d 846, 851-852 (6th Cir. 2002). 

Under Ohio law, a defendant must establish three elements to prove self-defense:

(1) that he was not at fault in creating the situation giving rise to the affray; (2) that he

had a bona fide belief that he was in imminent danger of death or great bodily harm

and that his only means of escape from such danger was the use of force; and (3) that he

must not have violated any duty to retreat or avoid the danger. Horton v. Warden,

Trumbull County Correctional Inst., 767 F.Supp.2d 833, 838 (N.D. Ohio 2011) citing State v.

Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195, 199 (1978); see also State v. Williford, 49 Ohio

St.3d 247 (1990); State v. Robbins, 58 Ohio St.2d 74 (1979). “[A] defendant is privileged to

use that force which is reasonably necessary to repel the attack.” Rice v. Moore, 633

F.Supp.2d 541, 558 (S.D. Ohio 2008) citing State v. McLeod, 82 Ohio App. 155, 157 (1948). 

However, “if the defendant ‘fails to prove any one of these elements by a

preponderance of the evidence he has failed to demonstrate that he acted in selfdefense.’” Id. quoting State v. Jackson , 22 Ohio St.3d 281, 284 (1986). 

Further, “[a] trial court does not err in failing to instruct the jury on self-defense

where the evidence is insufficient to support the instruction.” Rice, 633 F.Supp.2d at 558

citing State v. Palmer, 80 Ohio St.3d 543 (1997). A reviewing court, in determining

whether a defendant has introduced sufficient evidence to successfully raise selfCase: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 31 of 36 PAGEID #: <pageID>
32

defense, must evaluate the evidence, “‘which, if believed, would raise a question in the

minds of reasonable men concerning the existence of such issue.’” State v. Palmer, 80

Ohio St.3d at 564; see also Rice, 633 F.Supp.2d at 558; Melchior, supra. The Court is

satisfied that the evidence presented at trial was insufficient to support a self-defense

instruction.

In considering the elements of self-defense under Ohio law, the state trial court

focused primarily on the “lack of fault” element and concluded that petitioner had

failed to demonstrate that he was not at fault in creating the situation that led to the

victim’s death. Alternatively, the trial court noted that there was no evidence in the

record supporting a reasonable conclusion “that petitioner’s use of force was anything

other than greatly disproportionate to his apparent danger.” Exhibit 3 to Return of Writ,

p. 3. The state appellate court rejected the trial court’s conclusion on the lack of fault

element but upheld the trial court’s conclusion that petitioner’s use of force was greatly

disproportionate to his apparent danger. In doing so, the appellate court considered

petitioner’s argument that the question of his use of a disproportionate amount of force

was a fact issue for the jury. The appellate court discussed at great length the subjective

and objective components of this issue and noted that this second element of selfdefense required a “good faith” use of deadly force “warranted” under the

circumstances and “proportionate” to the threat. As the Ohio Court of Appeals

explained in significant detail, petitioner failed to provide any evidence demonstrating

that the force reasonably necessary to repel his victim’s attack after he took the knife

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 32 of 36 PAGEID #: <pageID>
33

away from her required him to inflict fourteen stab wounds, six of which were fatal. 

Absent any evidence of this nature, the record provides no basis upon which the Court

could conclude that petitioner was entitled to a self-defense instruction. Under this

circumstance, the trial court’s failure to give an instruction on self-defense was not

contrary to controlling federal authority nor based on an unreasonable determination of

the facts in light of the evidence that was presented.

With respect to the issue of voluntary manslaughter, petitioner argues that

because he presented facts indicating that he “acted in a fit of rage,” the trial court erred

by not instructing on this issue. Reply (#9), p. 9. Respondent argues that petitioner

provided no evidence to support an instruction on voluntary manslaughter. Rather,

respondent contends that all of the evidence presented demonstrates a purposeful

killing for which petitioner sought to avoid responsibility by using the term “passion”

in his testimony. 

To the extent petitioner may be claiming that he is entitled to relief because the

trial court committed error or abused its discretion under state law by declining to issue

a jury instruction on the inferior offense of voluntary manslaughter, he raises issues of

state law only. Matters pertaining to state law, however, are not cognizable in federal

habeas corpus review. A federal court may review a state prisoner's habeas corpus

petition only on the ground that the challenged confinement violates the Constitution,

laws or treaties of the United States, and not “on the basis of a perceived error of state

law.” 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41, (1984); see also Smith v. Sowders,

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 33 of 36 PAGEID #: <pageID>
34

848 F.2d 735, 738 (6th Cir.1988); Allen v. Morris, 845 F.2d 610, 614 (6th Cir.1988).

Moreover, errors related to jury instructions are generally not cognizable in

federal habeas corpus unless such errors deprive the petitioner of a fundamentally fair

trial. Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Wood v. Marshall, 790 F.2d 548,

551-52 (6th Cir.1986); Thomas v. Arn, 704 F.2d 865, 868-69 (6th Cir.1983). An omission or

an incomplete instruction is less likely to be prejudicial than a misstatement of law.

Henderson, 431 U.S. at 155. 

To the extent that any constitutional issues are implicated by the petitioner’s

assertion that the trial court’s failure to instruct on voluntary manslaughter rendered his

trial fundamentally unfair, petitioner’s claim cannot succeed. Although voluntary

manslaughter is an inferior offense and not a lesser included offense of murder, under

Ohio law, “the test for whether a judge should give a jury instruction on voluntary

manslaughter when a defendant is charged with aggravated murder is the same test to

be applied as when an instruction on a lesser-included offense is sought.” State v.

Shane, 63 Ohio St.3d 630, 632 (1992). Accordingly, a defendant charged with aggravated

murder is entitled to an instruction on voluntary manslaughter when the evidence

presented at trial would reasonably support both an acquittal on the charged crime of

aggravated murder and a conviction of voluntary manslaughter. State v. Conway, 108

Ohio St.3d 214, 238 (2006) citing Shane, supra. R.C. 2903.03 defines voluntary

manslaughter and states that “[n]o person, while under the influence of sudden passion

or in a sudden fit of rage * * * shall knowingly cause the death of another....” “Before

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 34 of 36 PAGEID #: <pageID>
35

giving a voluntary-manslaughter instruction in a murder case, the trial court must

determine ‘whether evidence of reasonably sufficient provocation occasioned by the

victim has been presented to warrant such an instruction.’ “ Conway, at 238-239, quoting

Shane, paragraph one of the syllabus. “For provocation to be reasonably sufficient, it

must be sufficient to arouse the passions of an ordinary person beyond the power of his

or her control.” Shane, at 635.

Here, petitioner has failed to demonstrate that the omitted jury instruction was

so prejudicial that it deprived him of a fundamentally fair trial. The record simply fails

to reflect that the state appellate court's decision rejecting petitioner’s claim is so

unreasonable as to warrant federal habeas corpus relief. 28 U.S.C. §§ 2254(d) & (e);

Williams, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389. Where a state court has reviewed

a habeas petitioner's request for a lesser included offense instruction and concludes that

it was not warranted by the evidence presented at trial, “that conclusion is axiomatically

correct, as a matter of state law.” Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir.1990). 

Here, for the reasons addressed at length by the state appellate court, the evidence

failed to reflect that petitioner was acting under a “sudden passion or in a sudden fit of

rage” such that he was entitled to a jury instruction on voluntary manslaughter. 

Consequently, petitioner’s second claim also is without merit.

RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that

petitioner’s claims be DISMISSED. 

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 35 of 36 PAGEID #: <pageID>
36

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:10-cv-01084-JLG-TPK Doc #: 10 Filed: 11/02/11 Page: 36 of 36 PAGEID #: <pageID>