[Cite as State v. Hudson, 2012-Ohio-4928.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96986


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                          RIODEJUONEROL HUDSON
                                                    DEFENDANT-APPELLANT



                                       JUDGMENT:
                                   APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-546677
                                   Application for Reopening
                                      Motion No. 456353

RELEASE DATE:              October 23, 2012
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, OH 44119

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: T. Allan Regas
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} On June 26, 2012, the applicant, Riodejuonerol Hudson, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Hudson, 8th Dist. No. 96986,

2012-Ohio-1345, in which this court affirmed Hudson’s conviction for murder. Hudson

asserts that his appellate counsel should have argued that his trial counsel was ineffective

for failing to request a jury instruction on “defense of another.” On August 3, 2012, the

state of Ohio, through the Cuyahoga County Prosecutor, filed a brief in opposition.     For

the following reasons, this court denies the application to reopen.

       {¶2} On August 17, 2010, Hudson was at a hospital with his girlfriend who was

about to have their baby. Hudson has long suffered from seizures and needed to take his

medicine, which was back at his home. Thus, his mother, accompanied by two friends,

drove Hudson to his home and parked in the street in front of the house. When Hudson

emerged from the car, Mario Seaborn, an acquaintance and neighbor of Hudson, began

yelling profanities and threats toward Hudson. Hudson testified that he asked Seaborn

to leave him alone, and Seaborn replied, “shut the * * * up before I kill you.” Hudson

then asked Seaborn to respect his mother, and the victim replied by hitting Hudson in the

face with a chain.   (Tr. 573-574.)    A fight ensued.    When it appeared that the fight

was finished, Hudson went into his home and retrieved his medicine and a knife.

       {¶3} Hudson claimed that he intended to use the knife to scare Seaborn so that he

could get back in the car, but he did not expect Seaborn to just walk away. Hudson and
his mother testified that Seaborn was making threats to both of them. The mother stated

that Seaborn pushed her down when she tried to stop the fight. Other witnesses testified

that Hudson charged Seaborn.       When the fight resumed, Hudson mortally wounded

Seaborn by stabbing him.

       {¶4} At trial, Hudson claimed self-defense and sought to prevent a jury instruction

on the lesser included offense of voluntary manslaughter.        The trial judge instructed on

self-defense and voluntary manslaughter. Nevertheless, the jury found Hudson guilty of

murder, and the trial judge sentenced him to 15 years to life.

       {¶5} On appeal, counsel argued that the verdict was against the manifest weight of

the evidence, that jurors were improperly excluded pursuant to Batson, and that Ohio’s

law on self-defense is improper — the burden of establishing self-defense should not be

on the defendant.    Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986). Now Hudson submits that his appellate counsel should have argued that his trial

counsel was ineffective for not requesting a jury instruction on the defense of others.

       {¶6} In order to establish a claim of ineffective assistance of counsel, the applicant

must demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660

N.E.2d 456.

       {¶7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of

an attorney’s work must be highly deferential. The Court noted that it is all too tempting
for a defendant to second-guess his lawyer after conviction and that it would be all too

easy for a court, examining an unsuccessful defense in hindsight, to conclude that a

particular act or omission was deficient.      Therefore, “a court must indulge a strong

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

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

      {¶8} Specifically, in regard to claims of ineffective assistance of appellate counsel,

the United States Supreme Court has upheld the appellate advocate’s prerogative to

decide strategy and tactics by selecting what he thinks are the most promising arguments

out of all possible contentions.   The court noted: “Experienced advocates since time

beyond memory have emphasized the importance of winnowing out weaker arguments on

appeal and focusing on one central issue if possible, or at most on a few key issues.”

Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Indeed, including weaker arguments might lessen the impact of the stronger ones.

Accordingly, the Court ruled that judges should not second-guess reasonable professional

judgments and impose on appellate counsel the duty to raise every “colorable” issue.

Such rules would disserve the goal of vigorous and effective advocacy.       The Supreme

Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,

1996-Ohio-366, 672 N.E.2d 638.
       {¶9} Moreover, even if a petitioner establishes that an error by his lawyer was

professionally unreasonable under all the circumstances of the case, the petitioner must

further establish prejudice:    but for the unreasonable error there is a reasonable

probability that the results of the proceeding would have been different.     A reasonable

probability is a probability sufficient to undermine confidence in the outcome.     A court

need not determine whether counsel’s performance was deficient before examining

prejudice suffered by the defendant as a result of alleged deficiencies.

       {¶10} Hudson has not established prejudice. If the jury did not find Hudson’s

claim of self-defense persuasive, when Hudson was fighting and Seaborn was making

threats to Hudson, then there is little reason to believe that the jury would have found a

“defense of others” strategy persuasive.   The court further notes that although the mother

testified that Seaborn pushed her down, she did not seem to believe that she was in

danger.   (Tr. 535.)

       {¶11} Moreover, appellate counsel would have had to overcome the presumption

that trial counsel’s plan of straight-forward arguing self-defense was sound trial strategy.

It is understandable how an appellate counsel in the exercise of professional judgment

would decline to argue this issue when confronted with the difficult burden of

undermining trial counsel’s strategy of simply arguing self-defense.

       {¶12} Accordingly, this court denies the application to reopen.



SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
