NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0505n.06 No. 10-3179 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
Z ACHARY HARROP, Petitioner - Appellant,

v. MI CHAEL

SHEETS, W arde n Respondent - Appe llee.

______________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

Before: G IBBO NS and WHITE , Circuit Judges; and OL IVER, Chief District Judge. *
HELE NE N. WHITE , Circuit Judge. Petitioner Z acha ry Har rop was convicted of murder and tampering with evidenc e in Ohio state court. He is now s erving a sentence of fiftee n y ear s to life on the murder conviction. Har rop arg ues that he is entitled to habea s relief on the basis that his trial counsel provi d ed i n eff ective assistance of counsel by failing to reque st a jury instruction on voluntary manslaug hter. We aff irm the district court’s deter mination that Har

rop’s counsel was not
unconst i t u t i o n al ly ineffe ctive and that the state court did not unrea sonably apply Strickland v. W ashington , 466 U.S. 668 (1984).

The Honora

ble Solomon Oliver, J r., Chief J udg e of the United States District Court for the * Norther n District of Ohio, sitting by desig nation.No. 10-3179

Harrop v. Shee ts I Har rop was convicted of felony murder, Ohio Rev. Code § 2903.02(B ), and tampering with evidenc e, id. § 2921.12(A)( 1), following a jury trial in Ohio state court in November 2 0 0 5

. The Court of Appea ls for the Twelfth Appellate District of Ohio upheld the convictions on direc t appea l, and the Supreme Court of Ohio subsequently denied leave to appea l and dismiss ed the appea l as not raising a subst antial consti tutional question. Har rop filed a petition for a writ of habeas corpus in the Southern District of Ohio raising an ineffe ctive-a ssistance-of -counse l claim. A mag istrate judge

rec ommended that Har

rop’s petiti on be dis missed for lack of merit, and the distric t co u rt adopted the mag istrate judg e’s r eport a nd rec ommendation and dismissed the petition. The state c ourt of appe als summarized the fac tual backg round of this ca se: [] On April 8, 2005, appellant was indicted on one co u n t eac h of murder in violation of R.C. 2903.02(B), f elonious assault in violation of R.C. 2903.11(A)( 1), and tampering with evidenc e i n v i olation of R.C. 2921.12(A)( 1). The char g es stemmed from an incident that took place in the ear ly morning hours of April 1, 2005 at th e re s idence of J oseph Heimann. Present at the residenc e that morning wer e appellant, He imann, Roge r B y rd, and a friend of Heimann[, J ustin Ty

ree ]. [] By rd was aslee p in the living room when he suddenly stood up and started urinating on the floor in front of appellant and Heimann. Appellant struck By rd, g rabbe d him, and put him outside. After By rd unsucce ssfully tried to g et b ack in throug h the front do o r, he enter ed the house throug h the back door. Once ag ain, appellant g rabbe d By

rd and put him outside. I n the proc ess of putting By rd outside twice and preve nting him from re- enter ing the hou s e, appellant hit him in the fac e with his fist sever al times and kicked him sever al times. After appellant threw By rd out the second tim e, ap p el l an t hit him ag ain. By rd never g ot up. Appellant then drag g ed By

rd to the neig hbor' s y ard next door. During the alt er ca tion, By rd, who looked like he was aslee p , n ever swung back, kicked back, slapped, or pushed appellant. Dur ing the alterc ation and in the proce ss of beingdrag g ed out, B y rd lost his shoes, socks, p an t s , and underw ear . He was discovere d with only a shirt on by construction wor

kers a t about 9 a.m. He la ter pe rished fr om his inj uries.

2No. 10-3179

Harrop v. Shee ts

[] I n April 2006, a jury found appellant g uilty of murder and tampering with evidenc e. He was sentenc ed to 15 y ear s to life in prison on the murder char g e and to a conse cutive five -y ear

prison term on the tampe ring with evidence char g e.[ ] 1 State v. Harrop , No. CA2005-12-036, 2006 WL3350647, at *1 (Ohio Ct. App. Nov. 20, 2006). Trial testimony provided the following backg round: By rd had been at a local bar during the evening in question. As closing time approache d, patrons wer e invited to a party at Heimann’ s house. Although By

rd was not acqua inted with Heimann, he went to Heimann’ s house afte r the bar closed a t 2:30 AM. Accor ding to testimony , By rd was “pre tty intox icated.” By rd re mained at the h o use afte r the party wound down and fell aslee p in the front room. J ustin Ty ree , a fri en d o f Heimann, also fell aslee p in the front room. Ty ree testified that someone’s y elling, “thi s mother f--

--- pissed on the floor” woke him up during the night. Heimann testified that he had walked into the front room and seen By rd st and up and st art urinating on the floor, i n cl u d ing almost urinating on Ty ree who was slee ping on c ushions on the floor. Har rop wa s also in the front room watc hing By rd u rinate on the floor. After y elling at By rd, Harrop gra

bbed By rd’s arm and st arte d drag g ing h i m toward the front door while hitting him with a closed fist and kicking him in the fac e and elsewhe re. Heimann testified that By rd “kind of balled his fist up” and that Har rop “kind of defe nded himself,” but otherwise there is n o evidence that By rd attempted to fig ht back ag ainst
Har rop. Ty ree testified that B y

rd appe are d to be aslee p during much of the assault and that he did

The state court of appea ls reve rsed only the trial court’s imposit ion of consec utive sentenc es 1 and rema nded for rese ntencing

. Harrop , 2006 WL 3350647, at *3-4. The court reje cted Har rop’s ineffe ctive-a ssistance-of

-counse l claim. Id. at 2-3.

3No. 10-3179

Harrop v. Shee ts
not strike back. Har

rop forc ed By

rd out the front door. When By rd tried to ree nter throug h the front door, Ha rrop hit him in the fac e. By rd quickly ree ntere d the house throug h the back door. Heimann testified that he told By rd
“I don’t want y ou in my house

. . . y ou need to g et out and y ou know [I ] kind of pushed him toward the back door and he was try ing to fig ht and plead to s t ay and I said man, I don’t want y ou in my house y ou need to leave and opened up the back door and [Harrop] hit him and he fell out the back door and hi t h is head on the concr ete.” Har rop drag g ed By

rd to a neig hboring proper ty , with Heimann’ s assistance , and left him there

. By rd died as a result of head injuries sustained during the
encounte r with Har

rop. The defe nse presen t ed n o wi t n esses. The court prepa red to instruct the jury on the three

cr i m es char g ed in the indictment, felonious assault, murder, and tampering with evidenc e. The 2 d ef en s e reque sted jury instructions on the lesser- included offe nses of misdemeanor assault an d involuntary manslaug hter, which the prosec ution opposed. The court reje cted the defe nse’s reque st and g ave instructions only on felonious assault, murder, and tampering with evidenc e. The defe nse did not request jury

instructions on voluntary manslaug hter. The jury returne d a verdic t of g uilty on the murder and tampering with evidenc e char g es. On direc t appea l, Har

rop (re prese nted by new counsel) arg ued that his trial counsel rende red ineffe ctive

Har rop wa s char g ed and c onvicted under the felony -murder provision of the Ohio murder 2 statute, which provides that “[n] o person shall cause the death of another as a proxi mate result of the offe nder' s committing or attempting to commit an offe nse of violence that is a felony of the first or s ec o n d deg ree . . . .” Ohio Rev. Code § 2903.02(B ). The predic ate violent felony was felonious assault. 4No. 10-3179

Harrop v. Shee ts assistance of counsel by failing to seek jury instructions on voluntary manslaug hter. The state court of appea ls reje cted that claim, and the state supreme court denied leave to appea l and dismiss ed the
appea l. Har

rop raised the same ineffe ctive-a ssistance-of -counse l claim in his habea s petition to the district court and r enew s it on appeal to this Court.
II A. STANDARD OF REVI EW We r eview the district court’s decision to g rant or deny the writ of habea s corpus de novo. L inscott v. Rose , 436 F.3d 587, 590 (6th Cir. 2006). We also revie w the district co u rt ’s fa ct u al finding s de novo beca

use the court did not hold its own evidentiar y hear ing and revie wed Har rop’s habea s petition upon the rec ord of the state-c ourt proce eding s only

. Northrop v. Trippett , 265 F.3d 372, 377 (6th Cir. 2001).
We revie w defe rentially state-c ourt decisions aff irming the peti tioner’s conviction. Maldonado v. W

ilson , 416 F.3d 470, 474 (6th C i r. 2 0 0 5 ). Under the Antiterror ism and Effe ctive Death Penalty Act of 1996 (AEDPA) , state-c ourt deter minations of fac t “shall be presumed to b e

corr ect” and the petitioner has “the burden of rebutting the presumption of corr ectne ss by clea r and convincing evidenc e.” 28 U.S.C. § 2254(e) (1). A ha beas pe titioner is not entitl ed to re lief unless the state c ourt’s adjudica tion of the claim (1) resulted in a d ec i s i o n t h at was contra ry to, or involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based o n an u n rea sonable deter mination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

.

5No. 10-3179

Harrop v. Shee ts Id. § 2254(d). “Unde r the ‘contra ry to’ clause , a fede ral habea s court may g rant the writ if the state
court arr ives at a conclusion opposite to that rea ched by the Supreme Court on a question of law, or if the state court decide s a case differ ently than the Supreme Court on materia lly indisti ng uishable fac ts.” Boyk

in v. W ebb , 541 F.3d 638, 642 (6th Cir. 2008) (citing W illiams v. Taylor , 529 U.S. 362, 412-13 (2000))

. “Unde r the ‘unre asonable application’ clause , a fede ral habea s court may g rant the writ if the state c ourt identifies t he correc t leg al principle from the Supreme Court’ s decisions but

unrea sonably

applies it to the fac ts of the petitioner’s case .” Id. (citing W illiams , 529 U.S. at 412- 13).
B. I

NEF FECTI VE ASSI STANCE OF COUN SEL 1. Applicable L eg al Standards
Har rop arg ues that his trial counsel pr ovided ineff ective a ssistance of c ounsel by failing to
reque st a jury instruction on voluntary manslaug hter and that the state court of appea ls unrea sonably applied Strickland v. W

ashington , 466 U.S. 668 (1984), in deny ing the ineffe ctiveness claim. Under Strickland , Har

rop m ust show that his counsel’s per formanc e wa s defic ient and that the error was prejudicia l. On the defic ient-per formance prong , the “def endant must show that counsel' s repr esenta tion f

ell below an objective standa rd of r easona

bleness.” Id. at 688. This a ssessment is “hig hly defe rential,” and “a court must indulge a strong presumption that co u n s el's conduct falls within the wide range of reasonable profe ssional assistance ; that is, the defendant must overc ome the presumption that, under the circ umstances, the challeng ed action might be considere d sound trial strateg y .” Id. at 689 (interna l quotation marks omitted). On the prejudice prong , “[t] he defe ndant
must show that t h er e is a rea sonable probability that, but for counsel' s unprofe ssional err ors, the 6No. 10-3179

Harrop v. Shee ts result of the proce eding would have been differ ent. A re as o nable probability is a probability sufficie nt to undermine conf idence in the outcome.” Id. at 694. To dec ide whethe r Harrop’s trial counsel re ndere d ineffe ctive assistanc e of c ounsel by not

r e q u e sting a voluntary -manslaug hter instruction, we must look to Ohio law. Voluntary ma n s la u g h te r is defined by

Ohio statute as follows:
No person, while under t h e influence of sudden passion or in a sudden fit of rag e, either of which is broug ht on b y s er ious provoca tion occa sioned by the vi ctim that is rea sonably sufficie nt to incite the person into using deadly forc e, shall knowing ly cause the dea th of another

. . . . Ohio Rev. Code § 2903.03(A). Voluntary manslaug hter is an offe nse of an inferior deg ree to murder (but not technica lly a lesser- included offe nse). State v. Braden , 785 N.E.2d 439, 454 (Ohio 2003).
“B efor e g iving an instruction on voluntary manslaug hter in a murder case , the trial court must deter mine ‘whe ther evidenc e of rea sonably sufficie nt provoca tion occa sioned by the victim has been
prese nted to w arr ant such an instruction.’” Id. at 454-55 (quoting State v. Shane , 590 N.E.2d 272, 273 (Ohio 1992)). “The i n i t i al inquiry require s an objective standard: ‘F or provoca tion to be

rea sonably sufficie nt, it must be sufficie nt to arouse the passions of an ordinary person bey ond the
power of his or her control.’” Id. at 455 (quoting Shane , 590 N.E.2d at 276). I f the provoca tion is objectively sufficie nt, then “the inquiry shifts to the subjective component of whether this actor , in this particula

r case , actua lly was under the influence of sudden passion or in a sudden fit of rag e.” Shane , 590 N.E.2d at 276. When evalua ting whether a voluntary manslaug hter instruction is

war rante d, the trial j u d ge “eva luate[s] the evidenc e in the light most favor able to the defe ndant, without weig hing the persua si v en ess of the evidenc e.” Id. at 278. The voluntary -manslaug hter

7No. 10-3179

Harrop v. Shee ts instruction “is not war

rante d ever

y time ‘some evidenc e’ is prese nted to support [i t]

. Rather, a court
must find ‘suffic ient evidenc e’ to ‘allow a jury to reasonably reje ct the g rea ter offe nse and find the defe ndant g uilty on a les s er included (or inferior deg ree ) offe nse.’” State v. Trimble , 911 N.E.2d 242, 273 (Ohio 2009) ( quoting Shane , 590 N.E.2d at 275). The state court of appea ls d eter mined that By

rd’s actions wer e objectively insufficient “to

arouse the passions of an ordinary person bey ond con t ro l

. ” Har rop , 2006 WL 3350647, at *3. “Considering that By

rd looked like he was aslee p during the alterc ation, was appar ently intox icated,

never took any offe nsive action ag ainst appellant while being hit and kicked by appellant, and never verba lly threa tened appellant,” the court wrote, “we find that the rec ord lacks sufficie nt evidenc e of serious provoc ation.” Id. The c ourt then conc luded:
Be cause there was no evidenc e that appellant' s offe nses wer e influence d by a sudden passion or a sudden fit of rag e broug ht on by serious provoca ti o n fr om the victim, jury instructions on voluntary manslaug hter and ag g rava ted assault wer e not war rante d under the fac ts of this case . I t follows, then, that t o reque st such instructions would have been futile and inappropria te. An attorney is not ineffe ctive for failing to make futile reque sts, see State v. Kouzelos (Apr. 16, 1992), Cuy ahog a App. No. 62568, or for failing to make a reque st f or a jury instruction which would have bee n d en ied. See State v. Kenney (May 10, 2000), Holmes App. No. CA93-480A. Appellant' s trial counse l provided rea sonable repr esenta tion and did not commit any err or when he d i d n o t reque st jury instructions on voluntary manslaug hter a

nd ag g rava ted assault. Id. Assessing this conclusion with the requisite defe renc e due to a state court in the habea s context,

we cannot conclude that the Ohio appellate court unrea sonably applied Supreme Court prec edent in deciding the ineff

ective- assistance -of- counsel c laim.

8No. 10-3179

Harrop v. Shee ts 2. Def icient Perfor

mance Where a jury instruction on an infer ior offe nse is not warr anted by the evidenc e, counse l’s failure to reque st such an instruction does n o t co n s t i t ute ineffe ctive assistance

. See Goodwin v. Johnson , 632 F.3d 301, 317 (6th Cir. 2011); cf. Hopper v. Evans , 456 U.S. 605, 611 (1982) (“[D]ue
proce ss require s that a lesser included offe nse instruction be g iven only when the evidenc e war rants such an instruction.”). The question, then, is whether the evidenc e would have war rante d the g iving of the voluntary -manslaug hter instruction. Viewing t h e evidenc e in the light most favor able to Har rop, the actions of By

rd that potentially constituted provoca tion consisted of: 1) urinating on the floor of Heimann’ s house in the
prese nce of Har

rop; 2) balling up his fist as if he was possibly g oing to strike Har rop; 3) attempting
to re- enter th e house throug h the front door afte r being forc efully ejec ted by Har rop; and 4) reenter ing the house throug h the back door, failing to leave when told to do so, and “try ing to fig ht and plead to stay ,” Also rele vant, howeve r, is that By rd never struck back at Har rop and that Ty

ree
t es t i fi ed that By

rd appea red to be aslee p and unresponsive during much of the initial assaul t b y Har rop. Ohio case s sug g est that these fac tors are insufficient to satisfy the objective element neede d
to justify a voluntary -manslaug hter instruction — provoca tion “suff icient to arouse the passions of an ordina ry person be y ond the power of his or her

control.” Shane , 590 N.E.2d at 276. The Ohio Supreme Court has noted that “assa ult a nd battery , mutual c ombat, illega l a rre st a nd discovering a spouse in the act of adultery are some o f t h e classic

. . . situations” that constitute objectively sufficie nt provoca tion to war rant a voluntary -manslaug hter instruct i o n . Id. at 277. Fur ther, a number of case s from the Court of Appea ls for the Twelfth District and from other Ohio courts hold 9No. 10-3179

Harrop v. Shee ts that conduct compar ably or more serious than By rd’s fails to satisfy the objecti v e element of the voluntary -manslaug hter standard. See, e.g. , State v. Dee m , 533 N.E.2d 294, 300 (Ohio 1988); State

v. Rice , No. CA2003–01–015, 2004 WL 292083 (Ohio Ct. App. Fe b. 17, 2004); State v. Bealer , No. CA2002-03-056, 2003 WL 1956089, at *5 (Ohio Ct. App. Apr. 28, 2003) ; State v. Patterson , No. CA2001–01–011, 2002 WL 745282, at *11 (Ohio Ct. App. Apr. 29, 2002); State v. Rivera- Carill o , No. CA2001–03–054, 2002 WL 371950, at *11 (Ohio Ct. App. Mar. 11, 2002). Har rop identifies

sever al case s wher e Ohio courts have found adequate provoca tion based on situations “compa rable in deg ree ” to By

rd’s provoca tions here , but those case s p rovide thin support. Har rop relies in particula r on State v. Scott , No. CA91-08-015, 1992 WL 139368, at *1, *3 (Ohio Ct. App. J une 22, 1992), whe re the court uphe ld the voluntary -manslaug hter c onviction of a de fenda nt who shot the victim immediately afte r the victim had smashed the g lass “T-top” on the roof of the defe ndant’s car while the defe ndant and his fianc ee wer e inside. Unlike By rd’s actions, the victim’s actions in Scott place d the defe ndant in rea sonable fea r for his safe ty and there fore constituted objectively sufficie nt
provoca tion. Ohio case s thus show that objectively sufficie nt provoca tion was lacking in situations wher e the victim’s actions wer e compar ably or more provoca tive than By rd’s. But even to the extent there is some deg ree of uncer

tainty in how to apply Ohio’s voluntary -manslaug hter standard, we defe r to
t h e state court’s interpre tation of its own law. Cf. Estelle v. McG uire , 502 U.S. 62, 67-68 (1991) (“[I ]t is not the province of a fede ral habea s court to ree x amine state-c ourt deter minations on statelaw questions.”); Gree r v. Mitchell , 264 F.3d 663, 675 (6th Cir. 2001) (“G ener ally , a fede ral habea s
court sitti ng in revie w of a state-c ourt judgme nt should not second g uess a sta t e co u rt' s decision 10No. 10-3179

Harrop v. Shee ts

conce rning matters of state law.”) . We will not di sturb the state court’s deter mination that B y

rd’s actions wer e insufficient to constitute adequate provoca tion. We need not consider whether Har rop satisfied the subjec tive prong of the voluntary -manslaug hter standa rd. Finally , even if there wer e a colora ble claim that a voluntary -manslaug hter instruction w as appropr iate, there is no indication that Har rop’s trial counsel ac t ed outside of the rang e of permissible trial strateg ies by opting not to reque st it. See Strickland , 466 U.S. at 689 (“[A] court
must indulge a strong presumption that counsel' s conduct falls within the wide rang e of rea sonable profe ssional assistance ; that is, the defe ndant must overc ome the presumption that, under the circ umstances, the challeng ed action ‘mig ht be considere d sound t ri al strateg y .’”)

. I n light of
Har rop’s trial counsel’s reque st for jury instructions on the lesser included offe nses of misdemeanor

as s au lt and involuntary manslaug hter, it is clea r that counsel was awa

re of his duty to reque st i n s t ru cti ons on inferior offe nses wher e appropr iate. He could have decide d not to reque st t h e voluntary -manslaug hter instruction beca use he thought it would be futile, or beca use it would have diluted the other arg uments he wa s advanc ing to the jur y . See State v. Voss , No. CA2006-11-132, 2008 WL 2955390, at *6 (Ohio Ct. App. Aug

. 4, 2008) (whe re defe nse counsel reque sted instruction

on another lesser included offe nse, “counse l may have believed he stood a better chanc e of winning

an acquittal for [defendant] by not g iving the jurors an instruction on voluntary mansl au gh t er, there by requiring them to car efully consider whether the state prese nted sufficie nt proof to establish that [defendant] acte d wi t h p rior calc ulation and desig n”). Har rop has provided insufficient indication that h i s co u nsel was constitut ionally defic ient. We hold that the s tate court rea sonably applied the defic iency prong of the ineffe ctive-a ssistance-of -counse l standard set out in Strickland

. 11No. 10-3179

Harrop v. Shee ts 3. Prejudice
Even if Har

rop’s counsel’s perf

ormanc e wer e defic ient, Har rop has not show n that there is a “rea sonable probability that, but for c ounsel' s unprofe ssional error s, the result of the proceeding would have been differ ent.” Strickland , 466 U.S. at 694. As descr ibed above, the arg ument that the
provoca tion was objectively sufficie nt is wea k, and so Har rop has a heavy

burden to show that he would not have been convicted of murder had the instruction been reque sted and g rante d. See Higgs

v. Haebe rlin , 899 F.2d 1221, 1990 WL 40077, at *2 (6th Cir. 1990) (unpub l i s h ed table opinion) (“B eca use an instruction on a lesser included offe nse was not war rante d by the evidenc e, petitioner

was not prejudice d by the failure of his t ri al counsel to make such a reque st.”) Fur ther, the
prosec ution’s ta sk of pre senting evidenc e to support a c onviction for fe lony murder was rela tively simple. To obtain a conviction for fe l o n y murder, the prosec ution had to prove that Har rop “c au s e[ d ] the death of another as a proxi mate result of [Harrop’s] committing or attempting t o commit an offe nse of violence that is a felony o f t h e fi rs t o r second deg ree .” Ohio Rev. Code § 2903.02(B ). The predic ate felony was felonious assault, which is commi t t ed wh en a person knowing ly “ca

use[s] s erious phy sical harm to another .” Id. § 2903.11(A)( 1). Thus, all the
prosec ution had to prove was that Har rop knowing ly cause d serious phy sical harm to By rd and that

as a result By

rd died. Testimony from police rela ting Har rop’s confe ssi o n t o re peate dly striking By rd, from ey e witnesses descr ibing the event, from people to whom Har rop had made incriminating statements, and from a fore nsic patholog ist provided more than enough evidence to conclude that the p ro s ec ution met its burden. Although it is possible that the jury might have convicted on

12No. 10-3179

Harrop v. Shee ts voluntary manslaug hter if g iven the option, Har rop has not shown that there was a “re asonable probability ” that they

would have done so. III Be cause the state court of a ppeals did not unrea sonably apply Supreme Court prec edent as
set out in S t r i ck l a n d v. W ashington , 466 U.S. 668 (1984), we AF F IRM the di strict court’s denial of Ha rrop’ s petition for habe as cor pus relief

.

13