The Honora ble Dan Aar on Polst er, United States District J udg e for the Northe rn District of * Ohio, sitti ng by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0400n.06 No. 07-3920 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

NATHA NI ELJ . RI CHARDSON, J R., Pe tit ion e r- Ap pe lla

nt,

v. WARDEN, L EBA

NON CORRECTI ONAL I NSTI TUATI ON, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STR I CT C OU RT F OR TH E SO UT HE RN D IS T R IC T O F O H IO

OPI NI ON

Be fore : CL AY and Mc KEAGU E, Circuit J udg es; POL STER, District J udg e. * DAN AA RON P OLS TER, District Judge. Petitioner-Appellant Nathanie l Richardson, Jr. (“Richa rdson”) filed, pr o s e , a petition for a writ of habe as cor

pus pursuant to 28 U.S.C. § 2254. The United States District Court for the Southern D istrict of Ohio denied the petition. Richardson now appea ls the denial of the petition. Be cause there is suf ficient evidenc e to suppor t his conviction, the district court’s de nial of Richar dson’s petition is affirmed. I. Bac kgr ound I n 2001, a g rand jury

in H amilton County , Ohio, indicted Richardson for murder w ith two fi re arm sp e c if

ic a tio ns . Ric ha

rd so n e nte re d a

ple a of no t g uil ty by re a so n o f i ns anit

y and wa ive d h is

r i g h tt o a t r i a l b y j u r

y.-2-

The fa cts of the case are brief and uncontested. I ndeed, the entire incident was c apture d on a video surve illance c amer a with audio. The following fac t s we re found by the Ohio Court of Appea ls in deny ing Richa rdson’s petition for state post-conviction re lief: Th e e vid e nc e pr e se nte d a t the c ri min a l tr ia l sh ow e d that Ric ha rd so n w a s in

a sma ll g roce ry store when the victim a pproac hed Richardson and asked him for a quar ter. When Richard s o n ref

used, the victim beg an to cur se at him. Richardson lef t the store, but quickly

ree ntere d. The victim’s bac k was turne d to Rich ar d s o n. Richardson wa lked past the victim, turned, and a pproac hed the victim from be hind. Ric ha rd so n th e n d

re w a g un and sh ot the vic tim in the ba c k of t he he a d, kil lin g him

. (Dist. Ct. Dkt. 25, Ex . 33). After a benc h trial, the Hamilt on County Common Pleas Court found Richardson guilty of murder w ith firear

m specifica

tions and sentenc ed him to fiftee n y ear s to life on the murder count and three y ear s on one of the fir ear m specifications “to be serve d consec utively and prior to the se ntence in the underlying of

fense .” (D ist. Ct . Dkt. 24, Ex . 9). Richardson appeale d his conviction, and af ter e x hausting his state court re medies, he f iled the instant habea s petition asserting thirteen g rounds for r elief: (1) the pol ice a nd prosec ution tampere d with evidence ; (2) two prose cution witnesses gave perjure d testimony ; (3) the police and prosec ution failed to disclose evide nce f avora ble to the def

ense; (4) his conviction was obtained a s

a re sult of police and prosec utorial misconduct, including evidence tampering , perjury , and fa ilure to d is clo se favora

ble e vid e nc e ; ( 5) he wa s d e nie d e ff e c tiv e a ssi sta

nc e of c ouns e l; ( 6) his po stconviction claims wer e not bar red by res judicata; (7) the state cour ts applied the wrongleg al standards; (8) he wa s denied c ounsel and investigative and expert assistance in his post-convic tion proce eding s; (9) he was denied an indepe ndent psy chiatric expert; (10) the we ight of the evidenc e at trial wa s sufficient to sustain a f inding of not guilty

by rea son of i n s an i t y ; (1 1 ) the eleme nt of criminal intent or g u ilty

mind ( mens rea ) w a s n ot p ro ve n b e y on d a re a so na ble do ub t; ( 12 ) h isAll g round s w ere d enied on the m erits, w ith the excep tion o f g round 9, w hich was waiv ed and 1 therefore proced

urally barred from rev iew. -3- conviction violated the prohibition a g ainst crue l a nd unusual punishment; and (13) he was de nied a trial by an impartial a

nd neutra l judge

. The mag istrate judg e issued a r eport a nd rec ommendation concludingthat Richardson’s petition should be de nied on the merits, and that a c ertificate of a ppeala bility should issue only

for 1 the claims alleg ed in g rounds 10 and 11. (Dist. Ct. Dkt. 51, R&R). Over Ric h ar d s o n ’s an d t he

r e s p o n d e n t ’ s o b

j e c t i o n s , t h e d i s t r i c tc o u rta d o p t e d t h e r e p o rtan d

r e c o m m e n d a t i o ni ni t s e n t i r e t y. (Dist. Ct. Dkt. 67). Richardson pe titioned this court for an exp an d ed ce rt ificate of appe alability , which wa s denied. Ac cording ly , the only issues on appea l a re g rounds 10 and 11: whethe r the e vidence at trial was suff icient to sustain a finding of not g uilty by rea son of insanity

and whe ther the el em ent of

c ri min a l in te nt o r guil ty

min d ( me ns re a ) w a s p ro ve n b e y on d a re a so na ble do ub t. II. Law & Ana lys is Th is c ourt re vie ws the g ra

nt o r d e nia l of

a wr it o f h a be a s c or pu s de novo

. Holder v. Palme r , 588 F.3d 328, 337 ( 6th Cir. 2009). The Antiterr orism and Eff ec t i v e Death Penalty

Act of 1996 ( “AED PA”) g overns Ricahrdson’s pe tition. Under AEDPA, whe n a state cour t has “a djudicated . . .the me rits” of a defe ndant' s claim, we ma

y only g rant a writ of habea s corpus if the state cour t decision “wa s contrar

y to, or involved an unrea sonable a pplication of, cle arly

established F eder al law, a s determined by the Supreme Court,” or

“wa s based on a

n unrea sonable deter

mination of the fac ts in li g ht of the evide nce prese nted in the State cour t proce eding .” 28 U.S.C. § 2254(d).“A perso n is ‘not g uilty by reason of insanity ’ relativ e to a ch arg e of an o ffense only if th e pe rson 2 prov es, in the m anner specified in sec tion 2 901. 05 of the Rev ised Cod e, that at the tim e of the co m m ission of the offense, the person did not k now , as a result of a sev ere m ental d isease or d efect, the w rong fulness of the p erson' s acts. ” “E v er y p er so n ac cu se d of

a n of fe ns e is pre su m ed

inn oc en t un ti l pr ov en

g ui lt y b ey on d a re as on ab le 3 doub t, an d the burden of p roof fo r all e lem ents o f the offense is upon th e pro secution . The burde n o f g oing forward w ith the ev idence of an affirm ativ e de fense, and the burde n o f proo f, b y

a prepo nderan ce o f the ev idence, for an a ffirm ativ e de fense, is u pon the ac cused .” -4- A s ta te c ourt

ho ldi ng is co ntr ary to c le arl y e sta bli sh e d Su

pr e me Cou

rt pr e c e de nt i f “ the state

c ourt c on fr on ts a se t of

fa c ts that are ma te ri a lly

ind ist inguis ha

ble fr om a

de c isi on of [the Sup re me Court] and neve rtheless arrives at a re sult differe nt from” Supre me Court prec edent. W illiams v. Taylor , 5 29 U. S. 36 2, 40 6 (2 00 0)

. We may fi nd that the state c ourt un re a so na

bly a pp lie d Su pr e me Court pr e c e de nt i f t

he state c ou rt “ c or

re c tly ide nti fi e s th e g ov e rn ingle g a l r ule bu t a pp lie s it

unrea sonably

to the fac ts of a par

ticular [petitioner' s] case.” Id. , at 407-08. “F urther, f

eder al cour

ts must presume as corr ect the finding s of fact made by the state c ourt

u n l es s t h e p et i t i o n er

ca ns h o w b y

cl ea r an d co n v i n ci n g ev i d en ce t h at t h e s t at e c o u rt 's fa ct u al fi n d i n gs

wer e er roneous.” Earhart v. Konteh , 589 F.3d 337, 343 ( 6th Cir. 2009). The initial inquiry , there fore , is whether Richa rdson see ks to a

pply a “rule of law that wa s clea rly established at the time of his conviction in the state cour t.” Palmer , 588 F.3d at 338. Her e, Richar dson asserts that the “ evi d en ce at trial is sufficient to sustain a findingof not g uilty by rea son of insanity .” (D ist. Ct . Dkt. 1, at 23, Ground 10) . Richardson a lso asserts that the element “ of cr iminal intent or g uilty mind (mens rea ) does not exist i n this case a nd was not prove n bey ond a re asonable doubt.” (Dist. Ct. Dkt. 1, at 25, Ground 11). We must begin with the “cle arly established Fe dera l la w” that is invoke d in g rounds 10 and 11. 28 U.S.C. § 2254(d)(1). The def en s e o f i nsanity

under O hio law is an af

firmative de fense , whose burde n of proof rests wit h Richardson. Ohio Rev. Code §§ 2901.01( A)(14) , 2901.05(A). 2 3-5-

I n Cal dwe ll v . R us se ll , we he ld that “the due pr ocess ‘ sufficie nt evidence’ guara ntee doe s not implicate af

firmative de fense s, beca

use proof supportive of a

n aff irmative de fe n s e ca

nnot detrac t from proof

bey ond a re asonable doubt that the acc used had c ommitt ed the requisite elements of the

c ri me .” 18 1 F. 3d . 731 , 740 (6 th Cir . 1 99 9) ; see also State v. H ancock , 10 8 Oh io St. 3d

57 , 6 3 ( Oh io 2006) (Ohio state court a dopting the r easoningof Cal dwe ll and fi nd ingthat th e Ohio “ ins a nit y de fe ns e do e s n ot i nv olv e the su bs tanti ve e le me nts of the c ri min a l of fe ns e .” ). Ac c or din g ly , b e c a us e du e pr oc e ss i s no t im pl ica te d b y Oh io’ s in sa

nit y de fe ns e , g ro un d 1 0 d oe s n ot i nv ok e a c le a rl y established F eder al law. Howeve r, evide nce of Richardson’s mental health may be rele vant in evaluating g round 11. I n Clark v. Arizona , th e Sup re me Court no te d th a t: [E] vidence tending to show that a def endant suff

ers f rom mental disease and lac ks c a pa c ity to f or m mens rea is releva

nt to re b u t evidence that he did in fac t form the require d mens rea at the time in question ; t h i s is the rea son that [t he petitioner] c la ims a ri g ht t o r e qu ir e the fa c tf

ind e r i n th is c a se to c on si der te sti mony

a bo ut h is mental illness and his incapa city direc tly , when we ighingthe per suasiveness of other evidenc e tendingto show mens rea , which the prosecution has the bur den to prove

. 548 U.S. 735, 769-70 (2006). Her e, Richar dson alleg es insanity as a de fense and as a m ea n s to neg ate a finding of the

r e qu isite me n s rea . The due proce ss clause r equire s the state to prove bey ond a re asonable doubt “the e x i s tence of eve ry

element of

the offe nse.” J

ac k so n v . V irg ini a , 443 U.S. 307, 316 (1979). “[T] he rele vant question,” in a sufficie ncy of the evidenc e claim, “is whether , afte r viewi n g t he evidenc e in the l ight most favor able to the prosec ution, any rational trier of fa ct could have found the essential e lements of the c rime beyon d a reasonable doubt.” Id . at 319 (e mphasis orig inal). Fur ther, “ the fa ctfinder ’s roles a s weig her of the evidenc e is prese rved throug h a leg al conc l u s ion-6-

t h at u p o n judicial revie w all of the evidenc e is to b e c o n s id e r e d in th e li g h t mo s t f a v o r a b le to the prosec ution.” Id . (empha sis origina l). Richardson wa s char g ed and c onvicted of murder i n violation of Ohio Revised Code § 2903.02(A), which reads i n rele vant par t: “No per son shall purposely cause the death of another .” Ric ha rd so n a c te d p ur

po se fu lly if it w a s “ his sp e c if

ic int e ntion to cause” the vic tim ’s de a th. Oh io Rev. Code § 2901.22(A) . The state tr ial judge addre ssed ea ch ele ment of the c rime: Putti ng aside the major i ssue here, which is the def ense of insanity , it’s obvious that all of t he elements [of the charg ed murder offense a nd firea rms specific ations] have be e n p rov en. I do n’ t th ink it’ s e ve n b e e n d e nie d b y the de fe ns e . In o the r w or ds , Nathanie l Richardson is the per son who committed the offense; Kenneth L ewis wa s killed; we k n o w he wa s killed with a g un; it was in Nathaniel’s posse ssion, and which he use d; and since he walked up – sinc e the de fenda nt walked up be hind [ L e w i s ] an d

s h o th i m i nt h e b a c k o f t h e h e a d , w e c ana s s u m e i tw a s d o n e p u r p o s e l y. So the elements of the of

fense are proven. (Dist. Ct. Dkt. 31-7, Ex . 46, Tr. 322-23; Dist. Ct. Dkt. 51, R&R at 32.) Wit h reg ard to Richar dson’s evidenc e of insanity , in so far as i t is rele vant to mens rea , the
state tr ia l c ourt

c are fu lly we ig he d a

nd c on sid e re d th e e vid e nc e : Doctor Chiappone [defense w itness] say s that at the time this event occ urre d the defe ndant didn’t know it was wrong . Doctor H awkins [prosecution witness] say s he knew it was w rong . How ar e y ou g oing to break this impasse? One wa y is to throw up y our hands a

nd say , Ican’ t break the impasse. The other thing that has helped me more than any thing is the t ape... I saw the murde r just as well, may

be better , than if I

was ther e, bec ause if I ’d bee n th er e, I couldn’t play it back. I play ed it back a

bout eig ht times or more. And what ha

ppened is that there wa s initi al talking , didn’t amount to much betwee n the two, but at the ac tual murder, the defe ndant, apparently , came to the door, wa lked in a v er y ca sual, very

casua lly walked to his left a

bout 10 fee t, casua lly

turned around, star

ted ver y casua lly back towa

rds the counte r, suddenly

sped up, pulled out the g un , s ho t th e vic timin t he ba c k o f t

he he a d a nd qu ic kly e xite d th e pr e mis e s. Now, if y ou look at that, instead of looking at t he psy chiatrist, look at the ac tions, y ou do n’ t ha ve a man w ho a

pp e ars to fe ar that per so n he ’s sh oo tin g is g oin g to h arm him

.-7-

I t appea rs to me, rather, a

hunter stalking an unsuspecting prey . Sneaking action. He sn e a ke d in , s ho t th e man a nd le ft

. No w, a c c or din g to D oc tor Chi a pp on e . . ., at th e ins tant t

he de fe nd ant s ho t th e vic tim , he wa s afr aid that he wa s g oing to be injured, but at the same time both doctors ag ree that the def

endant wa sn’t h allucinating , and it is absolutely impossibl e for

the defe ndant to believe he was thre atene d at the instant he shot the victim unless he wa s hallucinating . The de lusion that he had bee n threatened by words is not an ha llu c inatio n. An d s o, a lth ou g h s e lf -d e fe ns e is no t the de fe ns e he re , s til l se lf -d e fe ns e is p a rt of the me nta l pr oc e ss. I n other words, why did the defe ndant kill the victim? Chiappone d o es n ’t k now, except to say

that he fe are d him, but when Chia p p o n e s ay s he fe are d him at the instant he shot him, that does not [ com]port with w h at we ’v e s een, a nd it doesn’t even c omport with what the def endant told Chiappone, be cause he told him that he was a fra id the victim would kill him, not that he was immediately threatened. An d in Do c tor Ha

wk ins ’ int e rv ie w wi th the de fe nd ant, the de fe nd ant s a id h e re a dil y admitted that he bec ame a ngry when confronted by the y oung er ma

n in the convenie n[ce] st ore. I

think that’s more proba

bly what happe ned her e. Ag ain, in this interview with the police, the def endant, in desc ribing what happe ned s a i d , “ D i d

y o ug o g e ty o u r

j u i c e an d t h e nc o m e b a c k

u p o r w h a t ?” “No. No. As soon as I

came in the store, that’s whe n he starte d mouthing off ag ain. And I never even g ot a chance to g et. I was wa lking towa

rds the juice, to whe re the y ke e p the jui c e a t, bu t he jus t ke pt on ta lki ng , so I tur ne d a ro un d. Iwa lke d p a st h im, turned a round, pulled the gun out of my jacke t, turned ar ound and shot him.” Appar ently , it never oc curr ed to either doctor, mainly , t h at this ge ntleman was capa ble of lying, but that is absolutely not what happened. And I don’t think we have to take him at hi s word when he said that’s what happene d. He sneaked in the store, pr e te nd e d to be – he wa s a c tua lly no nc ha lant up on e nte ri ng the sto re , n on c ha lant i n turning around. H e showe d no indication that he thought he was being talked to by the victim or cha l l enged by the victim, but sneaked up on him. . . . He moved at gre at s p ee d

. It h i n k

i t ’s v er y l i k el y

t h at t h e d ef

en d an tb ei n g a s m ar tm an i s l y i n g. And ce rtainly

his actions [d] o not comport with the mental state that ’s being attributed to him by

the def ense. H is actions s h o w t h at of a deliberate, willful s n e a k i n g an d

h u n t i n g o f

an u n s u s p e c t i n g p r e y, u n d o u b t e d l y, b e c a

u s e h e w a s an g r

y. And so, at the ba sic minimum , the defense of insanity , or not knowing that what he did was wrong , has not been proven. In fac t, Ibelieve that it’s rather obvious that he kn e w i t or he wo uld n’ t ha ve be e n s ne a kin g . A nd

he wa sn ’t ha llu c inatin g or he wo uld-8-

have just come out and shot the man. And if he hadn’ t felt g uilty , he may or may not have r un. He mig ht have stood there and wa ited for the police

. So tho se are my

ra tio na le s f or the e vid e nc e . A nd

it’ s o bv iou s th a t, a s a

re su lt o f t hat, alr e a dy h a v in g f

o u n d th e e le me n ts o f th e c r im e , th a t I f in d th e d e f

e n d an t g uilty

of murder a s char g ed. . . . (Dist. Ct. Dkt. 51, R&R at 33-35; Dist. Ct. Dkt. 31-7, Ex . 46). The Ohio Court of Appe als, revie wing the suffic iency of the e vidence claim, ag ree d with the
state tr ia l ju dg e and

he ld t hat: The trial c ourt ac cepte d Dr. Hawkins’s t estimony that Richardson wa s awa re of the wrong fulness of his ac tions at the time of the offe nse. “The weig ht to be g iven the evidenc e and the cre dibilit y of the witnesses conce rning the establishment of the d e f e n s e o f in s an it y in a c r im in a l p r o c e e d in g ar e p r im ar il y f o r th e tr ie r o f

th e f a c ts

. ” [] We cannot say that the t rial court lost it s way in finding that Richardson had f ailed to o v e r c o me th e p r e s u mp ti o no f h is s an it y b y a p r e p o n d e r an c e o f

th e e v id e n c e . [] (Dist. Ct. Dkt. 51, R&R, at 28; Dist. Ct . Dkt. 25, Ex .13, pp. 2-3) ( footnotes to state ca se and statutory citations omitt ed). The e x perts for

both the prosec ution a

nd the def ense te stified that Richardson suff ere d from para noid delusi o n al disorder. H oweve r, the two e x perts disag ree d over the extent to which Richardson wa s awa

re of the wrong fulness of his ac tions at the time of the cr ime. The prose cution’s

e xpe rt , Jam e s R. Ha

wk ins , M.D ., ma int a ine d tha t Rich ard so n wa s aw are of the wr on g fu lne ss o f h is actions base d on the fa cts of the c rimes. Specific all y , Richardson did not initially respond to the victim’s profanities but instead lef t the store, came back inside, and ca lmly shot the victim; t hen he turned his g uns over to a se curity g uard and called the police to re port himself. Duringhis interview with Dr. Ha

wkins, Richardson ex presse d some remor se for causingthe victim’s death. F urthermor e, Dr. Ha wkins found that Richardson ha d manag ed his delusions f or y ear s by

prec autionary

measure s such as stay

ing a way from people, barr icading himself, and calling the police. All told, Dr. Hawkins-9-

testified that “[t] here was nothi ng that [R ichar dson] said to me t hat m ade me believe that he didn’t know that what he did was wrong .” (D ist. Ct . R.E. 51 at 31). Meanw hile, the def

ense e x pert, Da

vid Chiappon e, Ph.D., testified that Richardson’s de lus ion s ma de him

be lie ve tha

t the vic tim wa s g oin g to kil l him and that his me nta l de fe c t ke pt h im from knowingrig ht from wrongat the time of the offense

. Howeve r, Dr. Chiappone admitted that he did no t ha ve a g oo d e xplanatio n f

or wh y Ric ha rd so n f e lt that th e vic tim pose d a da ng e r t o h im despite the fac t that the interac tion be tween Richardson and the victim had e nded and Richa rdson had lef t the store. He also admitted that he had only seen one other c ase of

a patient who suf

fer ed from the same ty

pe of me ntal defe ct as Richar dson. Be cause there was conflicting testimony reg arding Richardson’s mental state at the time of the c ri me , th e tr ia l ju dg e re lie d in larg e pa rt on the vid e ota

pe of Ric ha

rd so n sho oti ng the vic timin de te rm ini ngwh e the r t

he g ov e rnme nt h a d p ro ve n th e e le me nt o f c ri min a l in te nt b e y on d a re a so na ble d o u b t

. No t ably , neither e x pert ha d seen this videotape . I n prese nting his rationale, the judge tho ro ug hly

e xpla ine d the wa

y s in whic h the vid e ota

pe pr ov ide d c on te xt fo r t

he e xpe rt s’ a sse ssm e nts and cla rified Richa

rdson’s mental state at the time of the c rime. Upon re view of the evidenc e pre sented at trial, as well as the st at e t ri al court’s c are ful analy sis of its findings conc erningthe eleme nt of mens rea , the trial j udg e could rea sonably infer on the basis of the e vidence prese nted that Richardson ha d the re quisite mens rea . Ac c or din g ly , th is cour

t c ann ot f

ind that th e state c ourt

un re a so na

bly a pp lie d c le a rl y established F eder al law a nd Richardson’s pe tition for habea s relief must therefor e be de nied.-10-

III. Conclusion For the re asons discussed a

bove, the dist rict cour

t’s order denying Richa

rdson’s petition for

a wr it of habea s corpus is af firmed.