NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0843n.06

CaseNos. 13-3855/3857

NOV 2 2014

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT DEBORAH & HUNTS Clerk

MARK LANGFORD, )

)

Petitioner-Appellee/Cross-Appeliant, )

) ON APPEAL FROM THE UNITED

v. ) STATES DISTRICT COURT FOR

) THE SOUTHERN DISTRICT OF

WARDEN, ROSS CORRECTIONAL ) OHIO

INSTITUTION, )

) OPINION

Respondent-Appellant/ )

Cross-Appellee. )

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.*

BERNICE BOUIE DONALD, Circuit Judge. Petitioner Mark Langford, an Ohio state

prisoner, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming several grounds

for relief from his state trial court conviction for murder. The district court granted and denied

the petition in part, and both sides appealed. For the reasons that follow, we AFFIRM the

district court in all respects.

I. BACKGROUND

In 1995, Mark Langford and Marion Jones were members of rival gangs. State v.

Langford, No. 9AP-1140, 2010 WL 3042185, at *6 (Ohio Ct. App. Aug. 5,2010). In the course

*The Honorable Denise Page Hood, United States District Judge for the Eastern District of

Michigan, sitting by designation.

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of this rivalry, Langford was beaten up. Id. In retaliation, on July 18, 1995, Langford, and

possibly his friends, shot at the individuals whom they believed had attacked Langford. Id. at * 1,

*6. Jones died in the gunfire. Id. at *1, *6. On August 4, 1995, the State of Ohio indicted

Langford for Jones’ murder. Id. at *1. At trial, witness Nichole Smith did not honor her

subpoena and appear to testify. Id. Subsequently, on November 24, 1995, the state dismissed

the indictment, and the court ordered an entry of nolle prosequi.

In 2005 two federal prisoners, Jason Arnold and Isaac Jackson, informed law

enforcement that they heard Langford, while he was incarcerated, confess to involvement in

Jones’ murder. Langford, 2010 WL 3042185, at *5, *7 In about February 2006, law

enforcement reopened the case as a result of this information. Id. at *2. Law enforcement

located Nichole Smith in 2006, and they also interviewed the two prisoners claiming to have

information about Langford. Id. On October 24, 2008, an Ohio grand jury again indicted

Langford on two counts relating to Jones’ death: aggravated murder, in violation of Ohio Rev.

Code Ann. § 2903.01, and murder, in violation of § 2903.02. Id. Each count included what Ohio

law calls a “specification,” charging that Langford possessed a firearm during the offense. The

firearm specification exposed Langford to a mandatory minimum sentence under

§ 2929.14(B)(1)(a).

Langford moved the state trial court to dismiss the indictment on the ground that the pre

indictment delay violated his state and federal due process rights and his right to present a

defense. Langford, 2010 WL 3042185, at *2. Langford argued that several key witnesses —

including Paul Michael Ross (“Big Mike”) Don Gentry (also known as “Big Mike”), and

Deshaun Williams — were now deceased. Id. at *2..3. Additionally, at an evidentiary hearing, a

detective testified that law enforcement had destroyed two pieces of forensic evidence: the bullet

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that killed Jones and a cartridge box containing Langford’s fingerprint. Id. at *2. On June 18,

2009, the trial judge, in open court, denied Langford’s motion to dismiss because Langford did

not demonstrate that that pre-indictment delay caused him actual prejudice. Id. at *3

On October 19, 2009, the case proceeded to trial. The State of Ohio presented two

theories at trial. The first was that Langford was the actual shooter, and therefore a principal

offender in the homicide. The second theory was that Langford was an accomplice. Nichole

Smith testified that in 1995, she would spend time with “Detroit boys.” She further testified that

in July 1995 the “Detroit boys” and the “F and L group” (named for Fairwood and Livingston

Roads), of which Jones was a part, had a feud over “territorial drugs.” She testified that the “F

and L boys” “beat [up Langford] pretty bad.” Smith testified that on the night of July 18, 1995,

she was “hanging out in the alleys,” and Langford told her that it was “time to get [the F and L

boys].” Smith also testified that Langford and his confederates had three weapons (two

handguns and one rifle), but that Langford did not have the rifle. Smith walked with the Detroit

boys in the direction ofthe F and L group, and she witnessed the Detroit boys with the rifle shoot

at the F and L group. Smith testified that she also witnessed Langford shooting at the F and L

group. The two federal prisoners, Jason Arnold and Isaac Jackson, also testified that Langford

confessed to his involvement in Jones’ death.

On October 26, 2009 the court charged the jury. On Count One, the court instructed the

jury that in order to convict Langford of aggravated murder, it needed to find that Langford

“purposely and with prior calculation and design caused the death of Marlon Jones,” and it

provided a definition of “purposely.” See Ohio Rev. Code Ann. § 2901.22 (“A person acts

purposely when it is his specific intention to cause a certain result . . . .“). The jury was also

instructed on the elements of murder, as charged in both Count One (as a lesser included offense)

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and Count Two, and was told that the word “purposely” used in the definition of that crime had

the same meaning as the court previously explained. Specifically, the jury instructions stated

that murder required finding that Langford “purposely caused the death of another.” Finally, the

court instructed the jury that Langford could be “convicted as a principal offender or as a

complicitor or an aider and abetter to any or all counts and specifications in the indictment.” The

instructions stated:

Before you can find the defendant guilty of a crime as a complicitor or aider and

abettor, you must find beyond a reasonable doubt that.. . the defendant aided or

abetted another in purposely committing the offenses.... The defendant cannot

be found guilty of complicity unless the offense was actually committed, but he

may be found guilty of complicity in an attempt to comit [sic] the offense. . . . An

aider or abettor is one who aids, assists, supports, encourages, cooperates with,

advises, or incites another to comit [sic] a crime, and participates in the

commission ofthe offense by some act, word, or gesture.

On October 27, 2009, the jury returned its verdict. On Count One, the jury acquitted

Langford of aggravated murder and the firearm specification but convicted him of the lesser

included offense of murder. On Count Two, the jury convicted Langford of murder but acquitted

him of the firearm specification. The court sentenced Langford, on Count Two only, to fifteen

years to life imprisonment.

On appeal to the Ohio Court of Appeals, Langford raised five assignments of errors, only

one of which was sustained. See Langford, 2010 WL 3042185, at * 1. The Ohio Supreme Court

did not accept Langford’s appeal. See State v. Langford, 939 N.E.2d 1266 (Ohio 2011) (table).

The Ohio Court of Appeals denied Langford’s application for reopening, and the Ohio Supreme

Court again did not accept Langford’s appeal for review. State v. Langford, 947 N.E.2d 684

(Ohio 2011) (table).

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Langford petitioned in federal district court for a writ of habeas corpus, seeking relief on

several grounds: (1) the pre-indictment delay violated his rights to due process and a fair trial;

(2) the trial judge failed to instruct the jury on the mens rea for complicity; and (3) his appellate

counsel was ineffective for failing to raise several issues to the state court of appeals. A

magistrate judge recommended that the district court grant relief on the second claim and deny

relief on the others. See Langford v. Warden, Ross Corr. Inst., No. 2:12-CV-0096, 2013 WL

459196 (S.D. Ohio Feb. 7, 2013). The district court conditionally granted Langford relief on the

jury instruction issue and dismissed Langford’s other claims. See Lang/ord v. Warden, Ross

Corr. Inst., No. 2:12-CV-96, 2013 WL 3223379 (S.D. Ohio June 25, 2013).

Respondent Warden appeals the district court’s decision granting Langford a conditional

writ of habeas corpus on the jury instruction claim. Langford appeals the district court’s

dismissal of his pre-indictment delay claim and his ineffective assistance of counsel claim.

IT. STANDARD OF REVIEW

We review the district court’s legal conclusions regarding Langford’s habeas petition de

novo. Davis v. LaJier, 658 F.3d 525, 530 (6th Cir. 2011) (en banc). A federal court may not

grant a petition for a writ of habeas corpus for “any claim that was adjudicated on the merits in

State court proceedings,” unless the state proceedings:

(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 ofthe evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The “unreasonable application” clause authorizes federal courts to grant

the writ when a “state-court decision unreasonably applies the law of [the Supreme Court] to the

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facts of a prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 409 (2000). The state-court

application of federal law must be “objectively unreasonable.” Id.

III. ANALYSIS

A. Jury Instruction

“The Constitution gives a criminal defendant the right to have a jury determine, beyond a

reasonable doubt, his guilt of every element of the crime with which he is charged.” United

States v. Gaudin, 515 U.S. 506, 522-23 (1995). Under Ohio law, a defendant can be convicted

under a theory of accomplice liability if he “act[s] with the kind of culpability required for the

commission of an offense.” Ohio Rev. Code Ann. § 2923.03(A). A person guilty of complicity

“shall be prosecuted and punished as if he were a principal offender.” Id. § 2923.03(F). “[Tb

support a conviction for complicity. . . the evidence must show. . . that the defendant shared the

criminal intent of the principal.” State v. Johnson, 754 N.E.2d 796, 801 (Ohio 2001). Langford

argues that the trial court’s failure to so instruct violates Supreme Court law.

Here, the trial court instructed the jury that it could convict Langford as an accomplice if

it found that he “aided or abetted another in purposely committing the offenses.” The trial court

did not instruct the jury that complicity required that Langford act with the culpability required

for murder, i.e., purposely. The Ohio Court of Appeals noted that the trial court did instruct the

jury on the meaning of “purposely.” The court reasoned:

The jury, by its verdict, found that Langford had a specific intention to cause the

death of Marion Jones, either by his own intention or by the transpired intent of

the shooter who was actually using the Ruger .357. The jury could not have been

misled by the charge given, nor could it have found Langford guilty based upon

an error in the jury charge.

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Langford, 2010 WL 3042185, at *5 The court did not elaborate. It did not explain how the jury

‘by its verdict” determined that Langford had the specific intention to murder Jones. The jury’s

verdict form simply stated that the jury “flou]nd the defendant guilty of the lesser included

offense of murder” and “guilty as to count two of the indictment for murder.” The verdict form

did not address mens rea or indicate anything the jury may have concluded about Langford’s

mens rea.

Although the state court’s reasoning for rejecting Langford’s jury instruction claim is

terse, our concern is with the state court’s decision — not the adequacy, or even logic, of its

reasoning. Indeed, we accord the same deference to a state court’s adjudication of a claim on the

merits regardless of whether it provides any reasoning at all. Harrington v. Richter, 131 S. Ct.

770, 784 (2011). “[D]etermining whether a state court’s decision resulted from an unreasonable

legal or factual conclusion does not require that there be an opinion from the state court

explaining the state court’s reasoning.” Id. AEDPA “does not require a state court to give

reasons before its decision can be deemed to have been ‘adjudicated on the merits.” Id. at 785.

Our review, then, is of the Ohio Court of Appeals’ decision that the failure to instruct on mens

rea did not violate Langford’s jury trial right.

“The pivotal question is whether the state court’s application of [Supreme Court law] was

unreasonable.” Id. “A state court’s determination that a claim lacks merit precludes federal

habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s

decision.” Id. at 786 (internal quotation omitted). “[W]e may grant the writ based on errors in

state jury instructions only in extraordinary cases.” Daniels v. Lafler, 501 F.3d 735, 741 (6th

Cir. 2007) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). As previously noted, the

prosecution must prove, beyond a reasonable doubt, every element of the crime charged. Gaudin,

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515 U.S. at 522—23; see also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process

Clause protects the accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.”); Sandstrom v. Montana,

442 U.S. 510 (1979) (finding that deficient jury instruction violated the defendant’s

constitutional rights by not requiring that the state prove every element of the criminal offense

beyond a reasonable doubt). Here, however, the trial court did not instruct the jury that

conviction as an accomplice, under Ohio law, requires that the defendant have the same intent as

the principal. As the magistrate judge correctly reasoned, this violated Supreme Court law. See

Langford, 2013 WL 459196, at *13. Accordingly, the state court’s contrary conclusion was

necessarily an unreasonable application of Supreme Court law.

2.

Respondent does not dispute that the trial court failed to instruct on the mens rea of

complicity, but instead presents a variety of arguments suggesting, essentially, that any error was

harmless. Respondent first argues that the jury instructions, in their entirety, sufficiently

instructed the jury on the mens rea element. This appears to be the theory that the Ohio Court of

Appeals relied on as well: that the instructions as a whole were not ambiguous. See Langford,

2010 WL 3042185, at *5 We find, however, that there was nothing in the jury instructions to

convey the principle that an accomplice need act with the same mens rea as the principal

offender in order to be found guilty as a complicitor. Beginning with Count One, the twenty

four page jury instructions first addressed the elements of aggravated murder, the firearm

specification, and the doctrine of transferred intent. The trial court then turned to the lesser

included offenses of murder and involuntary manslaughter. The instruction on the lesser

included offense of murder states: ‘Before you can find the defendant guilty, you must find that

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the State has proved beyond a reasonable doubt that the defendant. . . purposely caused the death

of another.”

Beginning on the fourteenth page, the jury instructions then address Count Two. The

instructions again state: “Before you find the defendant guilty of Murder, you must find that the

State has proved beyond a reasonable doubt that. . . the defendant purposely caused the death of

Marion Jones.” Seven additional paragraphs discuss the firearm specification and the lesser

included offense of involuntary manslaughter.

Then, the instructions address complicity: “The defendant may be convicted as a

principal offender or as a complicitor or an aider and abettor to any or all counts and

specifications of the indictment.” The instructions continue: “Before you can find the defendant

guilty of a crime as a complicitor or aider and abettor, you must find beyond a reasonable doubt

that . . . the defendant aided or abetted another in purposely committing the offenses . . .

Additionally, the instructions informed the jury: “An indictment charging a defendant as a

principal offender also charges the defendant with aiding and abetting that crime.”

We agree with the magistrate judge: the state court decision is an unreasonable

application of Supreme Court law, even when viewing the jury instructions in their entirety,

given the instructions’ failure to include any language informing the jury about the required

mens rea of complicity. See Langford. 2013 WL 459196, at *13. Although the instructions did

not directly state that complicity is a strict-liability crime, they also did not affirmatively state the

correct mens rea. Rather, the instructions omitted mention of the mens rea for complicity

altogether.

As indicated, the trial court instructed the jury that conviction under a theory of

accomplice liability required the jury to find that Langford “aided or abetted another in purposely

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committing the offenses.” We decline to adopt the proposition that the word “purposely” in this

clause was sufficient. In order to instruct the jury correctly, and comply with Ohio’s model jury

instruction, the adverb “purposely” must have modified the verb phrase “aided and abetted.” In

the instruction actually given, the adverb “purposely” instead modifies the verb “committing.”

This is not, as the dissent argues, a minor or insignificant “misplacement of a word.”

“Purposely,” as instructed, modifies a completely different verb, and in doing so leaves open the

question as to the manner in which Langford must have “aided and abetted another.” When

properly placed, “purposely aiding and abetting another” in committing murder accurately

conveys that, in order to be convicted as a complicitor, Langford must have had the specific

intent to aid and abet the murder of Jones. When improperly placed, the jury is erroneously

informed that in order to convict Langford as a complicitor, Langford must have aided or abetted

another, and it is sufficient that the other “purposefully committ[edj” murder. These two

scenarios are not functional equivalents. Thus, it is insufficient to say that the instruction is

correct, or that its error is harmless—as discussed more fully below—simply because the word

“purposely” appears somewhere in the sentence. Accordingly, the word “purposely” in the

complicity instruction cannot reasonably be read to accurately convey that Langford must act

with the kind of complicity required for the underlying offense.

In addition, the Respondent’s reliance on Henderson v. Kibbe, 431 U.S. 145 (1977) is

misplaced as applied to the facts of this case. In Henderson, the defendant robbed an intoxicated

man and abandoned him on an unlighted road at night in near zero-degree weather. Shortly

thereafter, the man was hit by a truck and died. Id. at 147. The state charged the defendant with

murder under a statute that provided for guilt when “under circumstances evincing a depraved

indifference to human life, [one] recklessly engages in conduct which creates a grave risk of

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death to another person, and thereby causes the death of another person.” Id. at 148 (alteration

marks omitted). The defendant sought habeas relief, arguing that the trial court should have

instructed the jury on the meaning of “thereby causes the death of another person.” Id. The

Supreme Court held the trial court’s failure to elaborate on causation was not error where “the

trial judge read to the jury” the exact statutory language. Id. at 153. There, the defendant’s

“claim of prejudice [was] based on the failure to give any explanation beyond the reading ofthe

statutory language itself of the causation element.” Id. at 155 (emphasis added). There is no

requirement that a trial court do more than instruct on the elements of an offense. Here,

however, the trial court did not even read the language of § 2923.03, Ohio’s complicity statute.’

Further, even reviewing the “totality of the circumstances” at trial, we are not persuaded

that the jury was sufficiently aware of the mens rea needed for complicity. Citing Middleton v,

McNeil, 541 U.S. 433 (2004), Respondent asks us to consider the jury instructions in light of the

prosecutor’s closing argument at trial. In Middleton, the Court found that federal law does not

prohibit a state appellate court from assuming that a prosecutor’s argument clarifies an

ambiguous jury charge. Middleton, 541 U.S. at 438. Here, Respondent reproduces in his brief

eight pages of the prosecutor’s closing argument, but provides almost no accompanying legal

argument. Having reviewed the prosecutor’s argument, we do not find that it alters the analysis.

Respondent suggests that the prosecutor’s use of words like “intend,” “intentions,” “wanted,”

and “help them,” over eight pages of closing argument, somehow shows that the prosecutor

cured any defect in the jury instructions. Respondent’s argument is not persuasive. It hardly

needs stating that the use of words like “intend” and “wanted” in the course of discussing the

‘Also relevant for the Court in Henderson was that the defendant did not initially challenge the

sufficiency ofthe jury instructions on direct appeal. See Henderson, 431 U.S. at 150. A judge of

New York’s intermediate court of appeals first raised the issue in his dissent from the court’s

affirmance ofthe defendant’s conviction. See Id.

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narrative of the crime do not inform a jury that an accomplice must share the mens rea of the

principal. The prosecutor’s closing argument, if anything, rendered the applicable law more

opaque. For instance, Respondent highlights the following statement made by the prosecutor at

one point in closing argument: “It doesn’t matter who actually fired the bullet that killed Marlon

Jones. Everybody helped. Anybody who helped in any way is equally guilty, equally guilty of

complicity.” This statement, if anything, compounded the error in the jury instructions.

We also reject Langford’s characterization of the record. Langford argues that the jury’s

acquittal on the firearm specifications under Counts One and Two demonstrate that the jury

concluded that Langford did not possess a gun and was not the principal offender. Therefore, he

argues, the jury must have found him guilty of murder only under the accomplice-liability

theory. We decline to draw that inference. As the magistrate judge cogently explained, “[a] jury

need not act either rationally or consistently when it returns a verdict in a criminal case.”

Langford, 2013 WL 459196, at *14. We cannot question even inconsistent verdicts. United

States v. Powell, 469 U.S. 57, 68 (1984). An inconsistent verdict may result because “the jury,

convinced of guilt, properly reached its conclusion on the compound offense, and then through

mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.” Id.

at 65. The magistrate judge correctly reasoned that we may not assume the theory on which the

jury convicted Langford — as an accomplice or as a principal. See Langford, 2013 WL 459196,

at *15.

3.

Finally, Respondent argues that any failure to instruct on an element of the offense was

harmless error. A trial court’s failure to charge an element of an offense is subject to harmless

error analysis. See Neder v. United States, 527 U.S. 1, 12 (1999). The Supreme Court has

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further recognized that a trial court’s failure to instruct fully and accurately about the necessary

mens rea for accomplice liability is reviewed for harmless error. See California v. Roy, 519 U.s.

2, 3—4 (1996). On federal habeas review, the omission of an element is not harmless error if

there is “grave doubt about whether a trial error of federal law had ‘substantial and injurious

effect or influence in determining the jury’s verdict.” O’Neal v. McAninch, 513 US. 432, 436

(1995) (quoting Brecht v. Abrahamson, 507 U.s. 619, 637 (1993)).

Two cases illustrate how the harmless error doctrine operates in the context of faultyjury-instruction claims. In Neder, the jury convicted the defendant of multiple counts of mail

fraud, wire fraud, and filing false income-tax returns. 527 U.s. at 6. The Court ruled that the

materiality of a defendant’s falsehoods is an element of fraud offenses. Id. at 20. Nonetheless,

the Court found that the trial court’s failure to instruct on materiality as an element was harmless

error because “overwhelming” trial evidence “incontrovertibly establishe[d] that [the

defendant’s] false statements were material.” Id. at 16. Additionally, the defense’s theory did

not turn on the materiality element, and the defense declined to argue that the false statements

could be found immaterial. Id. In short, the erroneous instruction was harmless because the

omitted element was both “uncontested and supported by overwhelming evidence.” Id. at 17.

Here, the instruction is neither uncontested nor supported by overwhelming evidence.

In Dawson v. United States, we reviewed a habeas petition in which a defendant claimed

that his convictions for unlawful firearm possession were infirm because the trial court instructed

the jury that it could convict on a theory of constructive possession. 702 F.3d 347, 349 (6th Cir.

2012). We found that giving the constructive-possession instruction was error because there

“was no testimony suggesting that [the defendant] constructively possessed the firearm.” Id. at

350. Nonetheless, we held that the error was harmless because, “[v]iewing the record as a
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whole, it [wa]s clear the jury found [the defendant] guilty based on a theory of actual

possession.” Id.

In the instant matter, we agree with the magistrate judge that this “case appears to present

just the opposite situation.” Langford, 2013 WL 459196, at *15. “It cannot be said that,” had

the trial court not instructed the jury that it could convict Langford as an accomplice while also

failing to instruct on the mens rea of complicity, “the jury undoubtedly would have convicted

petitioner of being a principal offender.” Id. The evidence at trial, if anything, is more

consistent with a theory of accomplice liability than principal liability. As the Ohio Court of

Appeals noted, Jones was killed by “a bullet fired from a Ruger .357 or other large gauge

handgun.” Langford, 2010 WL 3042185, at *4 Nichole Smith testified that two men were

shooting handguns at Jones and one was shooting an assault rifle. Id. One of the prison

informants testified that Langford confessed that three men were shooting at Jones, that Langford

was one of the three, and that Langford was shooting a .22-caliber handgun. Id. at 5. “[N]o

testimony establishes that Langford fired the fatal shot.” Id. Although the jury was entitled to

draw its own inferences and convict Langford as a principal offender, “it is at least as likely, if

not more so, that it convicted him as an aider and abettor.” Lang/ord, 2013 WL 459196, at *15.

We decline to draw any conclusions about the actual basis for the jury’s conviction. It suffices to

note that the evidence was not great — let alone “overwhelming,” Neder, 527 U.S. at 17 — that

Langford was a principal offender. The failure to instruct on the mens rea of complicity,

therefore, had a substantial influence in determining the jury’s verdict.

4.

We recognize the high bar that a petitioner must clear before obtaining relief on a jury

instruction claim. “The burden of demonstrating that an erroneous instruction was so prejudicial

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that it will support a collateral attack on the constitutional validity of a state court’s judgment is

even greater than the showing required to establish plain error on direct appeal.” Henderson,

431 U.S. at 154. As such, only “extraordinary cases” merit granting habeas relief “based on

errors in state jury instructions.” Daniels, 501 F.3d at 735.

In this case, the trial court failed to instruct the jury on a required element of the offense.

This case does not involve any of the following: the failure to give a desired but unnecessary

instruction, Henderson, 431 U.S. at 155; an express instruction affirmatively allowing the jury to

convict on an invalid theory of guilt, Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); the failure to

instruct on an element that was uncontested at trial, Neder, 527 U.S. at 17; or an instruction that

thrice correctly stated the law and once incorrectly stated it, Middleton, 541 U.S. at 437-38.

This case differs even from others involving claims that a trial court erred in incorrectly

instructing on the mens rea of complicity. Daniels v. Lafler, for instance, involved a defendant

convicted of murder and assault for helping a friend burn down a house, and killing three

children. 501 F.3d at 737 (Boggs, J.). On petition for habeas relief, the petitioner argued that

one passage in the jury instructions might have led the jury to convict him even if it did not

believe that the prosecution proved the mens rea requirement of complicity. Id. at 740. In

rejecting the petitioner’s claim, we observed that the challenged instruction was not even

necessarily inaccurate, as it “state[d] a necessary condition for guilt, not a sufficient condition.”

Id. at 742. We also noted that there was no evidence that the challenged instruction constituted

an incorrect statement of Michigan law. Id. Here, in contrast, even Ohio’s model jury

instructions suggest that the trial court’s failure to instruct on the mens rea of complicity was

significant. The model instruction states:

The defendant is charged with complicity in the commission of the offense of

(spec)5.’ offense). Before you can find the defendant guilty, you must find beyond

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a reasonable doubt, that . . . the defendant (insert culpable mental state f one is

requiredfor the commission ofthe principal offense) [aided or abetted] another in

committing the offense of (specify offense).

2-OJI-CR 523.03. Here, the trial court improperly inserted the culpable mental state before the

wrong verb.

Additionally, in Daniels, we noted that the trial court accurately stated the mens rea

requirement twice. Daniels, 501 F.3d at 742. This “made clear that the jury could not convict

[the defendant] without finding that” he shared the mental state of the principal offense. Id. at

742-43. “[O]ne arguably misleading statement of the mens rea requirement,” we said, was not

“likely to have caused the jury to ignore repeated prior statements of the correct requirement.”

Id. at 743. Here, the trial court failed to properly instruct the jury on the mens rea of complicity.

B. Pre-Indictment Delay

Langford also seeks relief on the ground that the delay between the offense and the

indictment violates his right to a fair trial and to present a defense. Jones was shot on July 18,

1995. A grand jury indicted Langford on October 24, 2008. Langford argues that this thirteenyear delay was unconstitutional.

“[T]he Due Process Clause of the Fifth Amendment [may] require dismissal of [an]

indictment if it were shown . . . that the pre-indictment delay . . . caused substantial prejudice to

appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical

advantage over the accused.” United States v. Marion, 404 U.S 307, 324 (1971). It is

insufficient for a petitioner merely to show that pre-indictment delay caused him actual

prejudice. Due process does not “ba[r] prosecution whenever a defendant suffers prejudice as a

result of preindictment delay.” United States v. Lovasco, 431 U.S. 783, 789 (1977). Unless a

petitioner can show that the prosecution sought a “tactical advantage” or acted with “reckless

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disregard” to their rights, “prosecut[ing] a defendant following investigative delay does not

deprive him of due process, even if his defense might have been somewhat prejudiced by the

lapse oftime.” Id. at 795 n.17, 796.

Langford argues that the pre-indictment delay caused him prejudice because certain

evidence was no longer available at the time of his trial. During the thirteen-year period, law

enforcement destroyed the bullet that killed Jones and a cartridge box containing Langford’s

fingerprint. Langford, 2010 WL 3042185, at *2. Langford also argues that three defense

witnesses died during the years prior to his indictment. Langford submits that Deshaun Williams

would have testified that Langford was not involved in Jones’ homicide. Langford, 2010 WL

3042 185, at *2. Don Gentry (known as “Big Mike”) purportedly had information that Langford

was not the fatal shooter. Langford, 2010 WL 3042185, at *3 Langford submits that Paul

Michael Ross (also known as “Big Mike”) would have testified that he provided a .357 Magnum

to an individual other than Langford. Langford, 2010 WL 3042185, at *3• All three individuals

died prior to Langford’s 2008 indictment.

The trial court applied Lovasco and concluded that Langford did not demonstrate actual

prejudice from the delay. Langford, 2010 WL 3042185, at *3 The Ohio Court of Appeals,

applying a four-factor test derived from Barker v. Wingo, 407 U.s. 514 (1972), similarly

determined that Langford suffered no prejudice as a result of the delay. Id. at *3..5 As the

magistrate judge correctly noted, the Ohio Court of Appeals applied the incorrect legal standard.

See Langford, 2013 WL 459196, at *7• “Pre-indictment delay and post-indictment delay present

separate issues.” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009). But, as noted, we

do not evaluate a state court’s legal reasoning, however flawed. See Harrington, 131 5. Ct. at

784-85. “When a federal claim has been presented to a state court and the state court has denied

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relief, it may be presumed that the state court adjudicated the claim on the merits.” Id. Our

review is of the state court’s decision that Langford’s pre-indictment-delay claim fails.

The magistrate judge concluded, after a thorough analysis of the trial court’s evidentiary

hearing on Langford’s motion to dismiss, that Langford may have suffered some prejudice as a

result of the delay. See Langford, 2013 WL 459196, at *7..9, It is unnecessary to repeat that

analysis here. For purposes of appeal, we assume without deciding that Langford suffered

prejudice. But “the due process inquiry must consider the reasonsfor the delay as well as the

prejudice to the accused.” Lovasco, 431 U.S. at 790 (emphasis added). Absent an intent on the

State’s part to delay prosecution in order to gain an advantage over the defendant, no amount of

prejudice can justify dismissing a case for pre-indictment delay. Langford, 2013 WL 459196, at

* 10.

The trial court deteimined that the prosecution’s delay was not undertaken to gain a

tactical advantage over Langford. The trial court stated: “I don’t know how or why the State was

not able to proceed with its case or why or how it chose not to pursue this case again until 2008.”

The Ohio Court of Appeals did not address the reasons for the delay but affirmed the trial court’s

ruling. Langford, 2010 WL 3042185, at *5, The magistrate judge correctly noted: “[T]he

ultimate result reached by the state courts is entitled to AEDPA deference even if the analytical

process was flawed in some respects.” Langford, 2013 WL 459196, at 1o. Langford offers no

evidence suggesting that the prosecution delayed the indictment in order to gain tactical

advantage over the accused. Lovasco, 431 U.S. at 795. Instead, Langford asks us to presume

bad faith on the part of the prosecution because “the only rational explanation is that the State

delayed indicting Langford in order to gain a tactical advantage.” We decline to draw that

inference. It is incumbent on Langford to show that the delay was prompted by a desire to gain a

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tactical advantage at trial. United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992). Where a

defendant has no direct evidence of bad faith, we have previously declined to infer an improper

prosecutorial motive. Id.

Even a showing that the prosecution was prepared to proceed to trial earlier than it did is

insufficient to meet the Lovasco standard. Lovasco, 431 U.S. at 793. The magistrate judge

speculated that part of the thirteen-year delay may have been the product of lack of interest or

lack of effort. Langford, 2013 WL 459196, at * 11. But, the magistrate judge correctly noted,

“that is not the same as conduct designed to make it more difficult for a defendant to mount a

defense.” Id. For reasons more fully set forth in the magistrate judge’s Report and

Recommendation, there is no basis to conclude that the prosecution delayed indictment in order

to gain a tactical advantage. See id. The essential point is that the state court’s presumptive

conclusion to that effect is not unreasonable.

C. Ineffective Assistance of Appellate Counsel

A criminal defendant has the right to effective assistance of counsel on a first appeal as of

right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). Langford argues that he is entitled to habeas

relief because his counsel on direct appeal was ineffective for failing to raise several issues.

Langford argues that his appellate counsel should have raised additional arguments about the

jury instructions, an argument that a witness’ prejudicial comment warranted a mistrial, and an

argument that the trial court erred in failing to suppress certain statements. Langford presented

these arguments to the Ohio Court of Appeals in his motion to reopen the appeal. See Lang/ord,

2013 WL 459196, at *16..18.

Under federal law, to establish ineffective assistance of counsel, a criminal defendant

must first show that “counsel’s representation fell below an objective standard of

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reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). This inquiry looks at

whether trial counsel fell below the standard of a competent attorney. Id. at 688-91. There is a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Id. at 689. Secondly, to succeed on an ineffective-assistance claim, a criminal

defendant must show that counsel’s ineffectiveness prejudiced him. Id. at 692. That is, the

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result ofthe proceeding would have been different. Id. at 694. It is very difficult for a

defendant to surmount Strickland’s high bar. See Cullen v. Pinhoister, 131 S. Ct. 1388, 1404-08

(2011) (rejecting defendant’s ineffective-assistance claim even when counsel failed to perform

any investigation before a penalty-phase hearing that resulted in a death sentence); see also

Bobby v. Van Hook, 558 U.S. 4, 9-13 (2009) (rejecting defendant’s ineffective assistance claim

based on counsel’s failure to investigate more thoroughly and present more mitigating evidence),

rev ‘g Van Hook v. Anderson, 560 F.3d 523 (6th Cir. 2009).

1. Jury Instructions

Langford argues that appellate counsel was ineffective for failing to argue that the trial

court erred in declining to instruct the jury that mere presence at the scene of the crime is

insufficient to convict under a theory of accomplice liability. The trial court instructed the jury:

“[M]ere presence can be enough [to convict) if it is intended to and does aid the primary

offender.” The Ohio Court of Appeals held that “the jury charge given would not have allowed

findings of guilty based solely upon [Langford’s] presence.” Langford, 2013 WL 459196, at

* 17. The magistrate judge, independently reviewing the issue, agreed “that the jury instructions

made it sufficiently clear that in order to find petitioner guilty on a complicity theory, he had to

have committed some act in furtherance of the crime.” Id. at * 19. The magistrate judge further

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stated: “Even the specific language to which [Langford] objected—that ‘mere presence can be

enough if it is intended to and does aid the primary offender’—told the jury that more than

presence (i.e. the fact that the complicitor’s presence actually aided the primary offender) was

needed in order to convict.” Id.

Langford relies on our statement that “mere presence at the scene of the crime . . . [is]

not enough to convict a defendant of aiding and abetting.” United States v. Head, 927 F.2d

1361, 1373 (6th Cir. 1991). Additionally, Langford argues that the trial court gave an incorrect

instruction on causation. The trial court instructed the jury: “Cause is an act or failure to act

which the natural and continuous sequence directly produces the death and without which it

would not have occurred. Cause occurs when the death is the natural and foreseeable result of

the act or failure to act.” Langford submits that Ohio law requires a different causation

instruction. The Ohio Court of Appeals denied relief, stating: “Causation was not really an issue

in the case. The victim was shot to death.” Langford, 2013 WL 459196, at *17. The magistrate

judge similarly determined that this claim “would not likely have succeeded if raised on direct

appeal.” Id. at *21. We agree. Further, Langford cites no case, state or federal, indicating that

the trial court incorrectly charged the jury on causation.

Finally, Langford argues that appellate counsel should have argued that the trial court

erred in declining to give an instruction advising the jury that it may place diminished weight on

the testimony ofjailhouse informants. The trial court gave a general instruction, telling the jury

to “consider the credibility of witnesses” and to consider “interest and bias, if any, together with

all the facts and circumstances surrounding the testimony.” The Ohio Court of Appeals denied

Langford’s claim on the ground that Ohio does not required a special charge to be given when

cellmates or fellow inmates testify. Langford, 2013 WL 459196, at *18. The magistrate judge

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determined that this issue would not have likely succeeded if raised on direct appeal. Id. at *21.

Langford, citing State v. Nelson, 303 N.E.2d 865 (1973), claims that Ohio law requires a trial

court to give a requested jury instruction if it contains a correct statement of law. Nelson stands

for no such proposition.

2. Prejudicial Comment Warranting Mistrial

On direct examination, the prosecution asked one of the prison informants why Langford

discussed his involvement in Jones’ murder. The witness responded: “When he first brought it

up to me, he used to say things like he had killed someone before, so.” The Ohio Court of

Appeals found that the trial court “sustained an objection to the statement because it could be

construed as referring to one or more other homicides and made it clear to the jury that they

should not consider the statement for any purpose whatsoever.” Langford, 2013 WL 459196, at

*17. The trial court denied Langford’s motion for a mistrial. Langford argues that appellate

counsel was ineffective for failing to argue that this was error.

The Ohio Court of Appeals determined that the trial court was within its discretion to

deny a mistrial. Langford, 2013 WL 459196, at *18. The magistrate judge noted that a trial

court’s ruling to deny a mistrial “will be sustained on appeal ‘absent an abuse of discretion.” Id.

at *20 (quoting State v. Treesh, 739 N.E. 2d 749, 773 (2001)). After thoroughly analyzing the

exchange between the prosecutor and the witness at trial, the magistrate judge reasoned:

Given the ambiguous nature of the reference, the immediate objection, the lack of

any additional testimony or argument about other murders, and the heavy burden

which would rest upon petitioner in the appeals court had this issue been raised —

not to mention the appeals court’s determination that it found the ruling to have

been within the trial judge’s discretion — it is not unreasonable to conclude that

even if appellate counsel had assigned this matter as error, it would not have

affected the outcome of petitioners appeal.

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Id. Langford presents no basis for questioning this conclusion.

3. Suppression of Langford’ s Statements

Langford also argues that appellate counsel was ineffective for failing to argue that the

trial court erred in not suppressing certain statements that Langford made to law enforcement in

violation of Miranda. In these statements, Langford sometimes acknowledged being nearby the

scene of the crime but denied being the shooter. Langford, 2013 WL 459196, at *17. Langford

did not testify at trial. The Ohio Court of Appeals denied Langford’s claim, stating: “Nothing in

the record before us indicates that the trial court should have sustained the motion to suppress

Langford’s statements or that the statements were actually harmful to Langford’s case.” Id. The

magistrate judge determined that even if any statements about being near the crime scene merited

suppression, “there was enough other evidence placing petitioner at or near the scene of the

crime that any statements in which he conceded as much would have been largely cumulative.”

Id. at2l.

Our review of a state court’s determination that a criminal defendant received effective

assistance is particularly deferential. We do not apply Strickland directly. Rather, the pivotal

question is whether the state court’s application of the Strickland standard was unreasonable.

Harrington, 131 S. Ct. at 785. Were we to apply Strickland directly, the analysis would be no

different than if, for example, this Court were adjudicating a Strickland claim on direct review of

a criminal conviction in a United States district court. Id. The combination of the highly

deferential standards of Strickland and of §2254(d) makes for “doubly deferential judicial

review.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In this case, the Ohio court was not

unreasonable in concluding that Langford’s counsel was not ineffective for failing to raise the

above issues.

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Additionally, appellate attorneys are not required to raise all claims desired by a

defendant if counsel, as a matter of professional judgment, decides not to present those points.

Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Caver v. Straub, 349 F.3d 340, 348 (6th Cir.

2003). Langford also cannot prevail on any ineffective-assistance claim if the underlying issues

lack merit. See Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir. 2013). Accordingly, Langford

cannot obtain habeas relief on this ground.

IV. CONCLUSION

Supreme Court law requires that a jury find a defendant guilty of every element of the

crime charged. Gaudin, 515 U.S. at 522-23. Under Ohio law, an accomplice must act with the

same criminal intent as a principal guilty of the crime. Johnson, 754 N.E.2d at 801. The trial

court did not instruct the jury that complicity has a mens rea element. The state court’s decision

to the contrary is unreasonable in light of the language of the jury instructions and the record as a

whole. The state court’s decisions on Langford’s other claims, though perhaps not free from

questioning, are not unreasonable applications of Supreme Court law.

We agree with the magistrate judge’s thorough Report and Recommendation and with the

district court’s decision. Accordingly, we AFFIRM the district court’s judgment.

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BOGGS, Circuit Judge, dissenting. The actual jury instruction that was given read:

“Before you can find the defendant guilty of a crime as a complicitor or an aider and abettor, you

must find . . . that . . . the defendant aided or abetted another in purposely committing the

offenses.” All parties agree that the ideal jury instruction would have read: “Before you can find

the defendant guilty of a crime as a complicitor or an aider and abettor, you must find. . . that.

the defendant purposely aided or abetted another in committing the offenses.” Because I do not

believe that the misplacement of the word “purposely” by five words gives rise to habeas relief, I

respectfully dissent.

On October 23, 2009, the defense rested its case. The trial judge, defense counsel, and

the prosecutor then held a preliminary discussion about the jury instructions. Langford’s counsel

told the judge that the prosecutor had given him a proposed version of the jury instructions the

previous day. Langford’s counsel stated that he had reviewed the prosecution’s version but had

some objections and requested modifications. The judge invited defense counsel and the

prosecutor into chambers to do a “preliminary sort through those issues.” Both counsel agreed to

do so, and the judge adjourned court.

Court resumed later that afternoon, and the parties conducted an on-the-record review of

the jury instructions. The judge noted that defense counsel and the prosecutor had provided the

judge separate copies of the jury instructions. As the judge explained, defense counsel

“integrated those jury instructions to include additional instructions that he would like to have

provided to the jury as well as deletions that he would like for the Court to consider that were

‘This instruction tracks Ohio’s model jury instruction, which states: “Before you can find

the defendant guilty, you must find beyond a reasonable doubt, that . . . the defendant (insert

culpable mental state if one is required for the commission of the principal offense) [aided or

abettedi another in committing the offense of (specify offense).” 2-OJI-CR 523.03.

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originally provided by the State.” The parties agreed to work from that integrated copy in their

preliminary review ofthe jury instructions.

During this discussion, the judge asked counsel if they had any objections to the

complicity section of the proposed jury instructions. Langford’s counsel flyspecked the very

issue that now forms the basis of Langford’s habeas petition. The following discussion occurred

among the judge, the prosecutor (Mr. Lowe), and defense counsel (Mr. Gatterdam).

THE COURT: I think that there was the complicity issue that was discussed in

chambers.

MR. LOWE: Okay. Judge, the complicity -- I think Mr. Gatterdam agrees that

we can do and/or, but I think what we decided to do was I think we were going to

take out “solicited or procured another to commit the offense or,” and I think we

are just going to go with “aiding and abetting another in committing the offenses.”

THE COURT: Okay. Mr. Gatterdam, do you see where that text is, or do you

have any comment?

MR. GATTERDAM: I do. I guess I preliminarily just want to make sure that --

and until we see it, I guess I don’t know whether I can respond.

The complicity section says that you need to insert the culpable mental

state and then go into the aided or abetted language and definitions, and I

presume that will be done we revise.

MR. LOWE: Yes.

MR. GATTERDAM: So I probably will have no objection, but as it is now, I’m

not clear.

MR. LOWE: We agree a mental state needs to be in there.

(emphasis added). Thus, it appears that this version of the proposed jury instructions omitted the

mens rea element for complicity. Langford’s counsel specifically requested that the court “insert

the culpable mental state and then go into the aided or abetted language and definitions.” The

judge and both parties agreed to conduct a second on-the-record review of the revised jury

instructions prior to closing arguments the following week. At the end of the discussion,

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Langford’s counsel assumed responsibility for e-mailing a revised version ofthe jury instructions

to the prosecution. The judge then adjourned court until Monday afternoon.

Court resumed as scheduled on Monday afternoon. The judge noted that she had

received a revised version of the jury instructions from the prosecution. The judge and the

parties conducted a second on-the-record review of the instructions, including the complicity

instruction. The following discussion occurred:

THE COURT: Anything else, Counsel, we need to change?

MR. GATTERDAM: I have a typo on page 11. I don’t know if you’re at page 11

now or 12. It was the last full paragraph, starts with, “Before you can find the

defendant of a crime as a complicitor.”

THE COURT: Yes. That’s still page 11.

MR. GATTERDAM: On or about the 18th day ofJuly, blah-blah, Agg. Murder

or Murder or aided and abetted another in “knowingly committing” instead of

“committed.

THE COURT: All right. Got you. Okay.

(emphasis added). Thus, Langford’s counsel examined the very sentence that is now at issue—

closely enough, in fact, to catch a typo. And yet counsel made no objection about the word

“purposely” being in the wrong place in the sentence.

Additionally, any error in the jury instructions is harmless error, in light of the evidence

that was presented at trial. A trial court’s failure to charge an element of an offense is subject to

harmless-error analysis. Neder v. United States, 527 U.S. 1, 12 (1999). The Supreme Court has,

in particular, recognized that a trial court’s failure to instruct fully and accurately about the

necessary mens rea for accomplice liability is reviewed for harmless error. See California v.

Roy, 519 U.S. 2, 3—4 (1996). On habeas, an error is harmless unless it “had substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993).

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In Dawson v. United States, we reviewed a habeas petition in which a defendant claimed

that his convictions for unlawful firearm possession were invalid because the trial court

instructed the jury that it could convict on a theory of constructive possession. 702 F.3d 347,

349 (6th Cir. 2012). We found that giving the constructive-possession instruction was error

because there “was no testimony suggesting that [the defendant] constructively possessed the

firearm.” Id. at 350. Nonetheless, we held that the error was harmless because “[v]iewing the

record as a whole, it [wa]s clear the jury found [the defendant] guilty based on a theory of actual

possession.” Ibid.

Here, the evidence at trial established that the “F and L boys” beat up Langford and that

Langford, therefore, had a motive to seek revenge. Additionally, Nichole Smith testified that she

witnessed Langford shooting at the F and L group. And two federal prisoners, Jason Arnold and

Isaac Jackson, testified that Langford confessed to his involvement in Jones’s death. The jury

certainly was entitled to disbelieve this testimony, but there was no evidence at all to support

conviction under a theory of accomplice liability where Langford, say, performed in a production

of Hamlet and, thereby, unwittingly motivated Jones’s shooter to take purposeful action and to

avenge immediately the attack on Langford. That is, there was simply no evidence that would

have allowed the jury to convict Langford under a strict-liability conception of complicity.

It is true that the instruction that was given does not track Ohio’s model instruction. But

“the fact that the instruction was allegedly incorrect under state law is not a basis for habeas

relief.” Estelle v. McGuire, 502 U.S. 62, 71—72 (1991). “Federal habeas courts therefore do not

grant relief, as might a state appellate court, simply because the instruction may have been

deficient in comparison to the [state] model.” Id. at 72. The essential question is “whether the

ailing instruction by itself so infected the entire trial that the resulting conviction violates due

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Langford v. Warden, Ross Correctional Institution

process.” Ibid. It is insufficient “that the instruction is undesirable, erroneous, or even

universally condemned.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (internal

quotation marks and citation omitted).

Our court has said that “we may grant the writ based on errors in state jury instructions

only in extraordinary cases.” Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007). In Daniels,

we denied a claim similar to Langford’s “even though one sentence of the instructions contained

a confusing and arguably misleading statement ofthe law.” Id. at 737. Here, the jury instruction

that was given was not the exact one that ideally would have been given. It was not so wrong

that any of those involved, whose discussions indicated that they were trying to get it right,

noticed the displacement of one word. That does not provide a basis for habeas relief. We must

consider only “whether there is a reasonable likelihood that the jury has applied the challenged

instruction in a way that violates the Constitution.” Estelle, 502 U.S. at 72 (internal quotation

marks omitted) (emphasis added). Because I do not believe that there is such a likelihood in

light ofthe record as a whole, I respectfully dissent.

29