                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0290n.06

                                          No. 15-3359                                 FILED
                                                                                May 23, 2017
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

JOHN MILLS,                                             )
                                                        )
       Petitioner-Appellant,                            )
                                                        )     ON APPEAL FROM THE
v.                                                      )     UNITED STATES DISTRICT
                                                        )     COURT FOR THE NORTHERN
CHRISTOPHER LAROSE,                                     )     DISTRICT OF OHIO
                                                        )
       Respondent-Appellee.                             )
                                                        )

BEFORE: KEITH, ROGERS and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Petitioner John Mills (“Petitioner”) appeals from

the judgment of the United States District Court for the Northern District of Ohio, which

dismissed his pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and

denied his request for certificate of appealability (“COA”). Thereafter, Petitioner sought a COA

with this court. We granted in part Petitioner’s application for a COA, but only as to his second

claim: whether there is sufficient evidence to convict Petitioner of felony murder. For reasons

that follow, the district court’s denial of relief is AFFIRMED.

                                        I. Background

       The instant action arose from an August 27, 2009 brawl between members of two

families – the Mills family and the neighboring Edwards family, with whom the Mills were

engaged in a long feud. State v. Mills, No. 10CA119, 2011 WL 5444085, at *1 (Ohio Ct. App.

Nov. 9, 2011) (opinion of Farmer, J.). When the brawl ended, Jim Mills was killed when his

grandson, Kameron Mills, struck him in the head with a board. Id. Petitioner, who is Jim’s son
No. 15-3359, Mills v. LaRose


and Kameron’s father, was indicted for aiding and abetting Jim’s murder, among other charges.

Id.

       In the lead opinion, Judge Farmer of the Ohio Court of Appeals stated that “the fact

scenario in this case is very convoluted and confusing,” as a result of “seven witnesses

explaining their personal and limited observations of the incident.” Id. at *4. The fight resulted

when Petitioner’s two sons, Kyle and Kameron, confronted members of the Edwards family with

“cussing and name calling.” Id.       This escalated into rock throwing, which resulted in the

breaking of a tail light on Petitioner’s vehicle. Petitioner’s sons drove away in the vehicle and

returned shortly thereafter with Petitioner. Id. Upon arrival to the scene, Petitioner was carrying a

large walking stick and knife, while Kyle and Kameron each carried wooden boards. Id. at *5.

A wild brawl eventually ignited, which the Ohio Court of Appeals’ lead opinion detailed by

recounting the testimony of various witnesses and participants. Id. At one point, Petitioner

choked Mack Edwards, Jr., held an unopened knife to his throat, and threatened to kill him. Id.

At the end of the brawl, Jim Mills, who arrived at the scene and tried to stop the fight, was killed

when Kameron struck him with a board. Id.

       Petitioner was charged with aiding and abetting murder, aiding and abetting involuntary

manslaughter, aiding and abetting felonious assault, and felonious assault. Id. at 1. A jury

convicted him on all charges except the stand-alone felonious assault charge. The trial court

merged the murder and involuntary manslaughter convictions and sentenced Petitioner to an

aggregate prison term of fifteen years to life.




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                                     II. Procedural History

       On October 11, 2010, Petitioner timely appealed his conviction and sentence to the Ohio

Court of Appeals. Petitioner raised the following three assignments of error:

       Assignment of Error I: Appellant was deprived of due process of law as
       guaranteed by the Ohio and U.S. Constitutions as a result of the ineffective
       assistance of counsel arising from failure to effectively object to or limit
       prejudicial “other acts” evidence; or in the alternative, it was plain error to permit
       the state’s gratuitous use of such evidence.

       Assignment of Error II: Appellant’s conviction of charges of felony murder and
       involuntary manslaughter are contrary to the manifest weight and sufficiency of
       evidence presented at trial, thus denying appellant a fair trial and due process of
       law under the Fifth and Fourteenth Amendments of the Constitution under Article
       1, Section 16 of the Ohio Constitution.

       Assignment of Error III: The trial court’s refusal to instruct the jury that it could
       consider self-defense as to counts 1 and II constitutes abuse of discretion, or in the
       alternative, plain error, thus depriving appellant of due process of law under the
       Fifth and Fourteenth Amendments to the U.S. Constitution and under Article 1,
       Section 16 of the Ohio Constitution.

Mills, 2011 WL 5444085, at *1. The Ohio Court of Appeals rejected these arguments and

affirmed the judgment of the trial court. Subsequently, the Ohio Supreme Court denied Petitioner

leave to appeal. State v. Mills, 962 N.E.2d 805 (Ohio 2012) (table). Petitioner filed a pro se

motion to reconsider, which the Ohio Court of Appeals denied as untimely.

       Thereafter, Petitioner filed his pro se petition for habeas relief in federal district court,

pursuant to 28 U.S.C. § 2254, raising the following four claims for relief:

       Claim One: The petitioner is actual [sic] innocent of felony murder and of aiding
       and abetting involuntary manslaughter. The indictment and Bill of Particulars lack
       any predicate felony offense to convict of felony murder. The petitioner had no
       control over the perpetrator who acted against the victim.

       Claim Two: There is insufficient evidence to sustain the conviction of
       homicide/murder as the petitioner is in violation of involuntary manslaughter
       under Ohio law.



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       Claim Three: The petitioner was deprived of the effective assistance of counsel
       in all critical stages of his trial.

       Claim Four: The petitioner was prejudiced to a fair trial without receiving jury
       instruction to his self defense. The petitioner has a right to instruction on self
       defense.

The district court denied the first, third, and fourth claims as procedurally defaulted, denied the

second claim on the merits, and declined to issue a COA.

       Shortly thereafter, we granted in part and denied in part Petitioner’s application for a

COA, certifying only Claim Two for review: whether there was sufficient evidence to convict

Petitioner of murder.

                                III. Preservation of Arguments

       As a preliminary matter, we must determine which of Petitioner’s arguments are properly

before us. In habeas proceedings, generally, this court will not consider an argument that a

petitioner has not properly raised in the state or district court. See generally Hall v. Warden,

Lebanon Corr. Inst., 662 F.3d 745, 752–53 (6th Cir. 2011). Further, in the instant matter, we

may consider Petitioner’s arguments only as they pertain to the sufficiency of the evidence, since

anything else would go beyond the scope of the COA. See Moreland v. Bradshaw, 699 F.3d

908, 919 (6th Cir. 2012) (citing Hill v. Mitchell, 400 F.3d 308, 329, 355 (6th Cir. 2005)).

       Petitioner first asserts that that the trial court and prosecution confused the jury by failing

to indicate which felonious assault was the predicate felony, and by failing to inform the jurors

that they needed to unanimously agree on a single theory of complicity. Essentially, these

arguments concern the adequacy of the trial court’s jury instructions and whether the jury was

actually unanimous, and not whether there was enough evidence for any rational juror to convict

Petitioner. See generally United States v. Willoughby, 742 F.3d 229, 240 (6th Cir. 2014); cf.

Johnson v. Louisiana, 406 U.S. 356, 362 (1972). Accordingly, these arguments are outside the

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No. 15-3359, Mills v. LaRose


scope of our COA, and are thereby precluded from our consideration. See Moreland, 699 F.3d at

919.

        Contrastingly, Petitioner’s remaining arguments certainly fall within the scope of our

COA. Petitioner asserts that no rational juror could conclude that the felonious assault on Mack

proximately caused Jim’s death, or that Petitioner was complicit in Kameron’s felonious assault

of Jim. But the State contends that Petitioner has waived these arguments by failing to raise them

before the state court on direct appeal and before the district court. Although Petitioner did not

explicitly assert on direct appeal which felony should be the predicate felony, he raised his

complicity and proximate-cause arguments when he stated that the evidence failed to show that

he “voiced encouragement to his sons during the melee, that he asked for their assistance,

cheered them on, or did anything to solicit or incite them to violence,” Mills, 2011 WL 5444085,

at *3 (opinion of Farmer, J.), and that Jim’s death was not “the proximate result of the predicate

offense of felonious assault.” Id. Petitioner therefore did not default on these arguments during

his state appeal.

        Further, Petitioner raised his sufficiency claim in the trial court in his pro se federal

habeas petition, in which he argues that “[t]here is insufficient evidence to sustain the conviction

of homicide/murder as the petitioner is in violation of involuntary manslaughter under Ohio

law.” Petitioner’s pro se habeas petition must be construed both liberally and as encompassing

any allegation that could support federal relief. Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985)

(per curiam) (citation omitted). Under this standard, Petitioner has preserved his sufficiency

challenge, and accordingly, we will address these arguments.




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No. 15-3359, Mills v. LaRose


                                IV. Sufficiency of the Evidence

       We review the district court’s denial of Petitioner’s habeas petition de novo. Mendoza v.

Berghuis, 544 F.3d 650, 652 (6th Cir. 2008) (citation omitted). While both parties acknowledge

that we review Petitioner’s sufficiency claim to determine if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt, having “view[ed] the

evidence in the light most favorable to the prosecution,” Coleman v. Johnson, 132 S. Ct. 2060,

2064 (2012) (per curiam), the parties contest whether, pursuant to 28 U.S.C. § 2254(d), we

should defer to the Ohio Court of Appeals decision. Specifically, Petitioner asserts that we

should not defer to the Ohio Court of Appeals decision because it is a split decision wherein the

court did not achieve an undivided rationale for affirming Petitioner’s conviction. For the

purposes of this decision, we presume Petitioner is correct because his arguments fail under the

lesser standard laid out by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979), which

Petitioner concedes he must overcome.

       The Supreme Court has held the following with respect to Jackson claims:

       We have made clear that Jackson claims face a high bar in federal habeas
       proceedings because they are subject to two layers of judicial deference. First, on
       direct appeal, “it is the responsibility of the jury—not the court—to decide what
       conclusions should be drawn from evidence admitted at trial. A reviewing court
       may set aside the jury’s verdict on the ground of insufficient evidence only if no
       rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S.
       1, 2 (2011) (per curiam). And second, on habeas review, “a federal court may not
       overturn a state court decision rejecting a sufficiency of the evidence challenge
       simply because the federal court disagrees with the state court. The federal court
       instead may do so only if the state court decision was ‘objectively unreasonable.’”
       Ibid. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

Coleman, 132 S. Ct. at 2062. Whether the Ohio Court of Appeals decision was objectively

unreasonable is only at issue if Petitioner has made the adequate showing that no rational trier of

fact could have agreed with the jury. Because Petitioner fails to make such a showing, we need


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No. 15-3359, Mills v. LaRose


only address the first layer of deference since it is dispositive. Cf. Pearson v. Callahan, 555 U.S.

223, 236–37 (2009); Phillips v. UAW Int’l, --- F.3d ----, No. 16-1832, 2017 WL 1337236, at *3

(6th Cir. Apr. 12, 2017).

       “Under Jackson, evidence is sufficient to support a conviction if, ‘after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Coleman, 132 S. Ct. at 2064

(quoting Jackson, 443 U.S. at 319) (emphasis in original). Further, “Jackson leaves juries broad

discretion in deciding what inferences to draw from the evidence presented at trial, requiring

only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.’” Ibid.

       Regarding felony murder, Ohio law holds that “[n]o person shall cause the death of

another as a proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree and that is not a violation of [voluntary

manslaughter or involuntary manslaughter statutes.]” Ohio Rev. Code § 2903.02(B). Further,

felonious assault is a predicate offense for felony murder, even when the felonious assault caused

the victim’s death. See Ohio Rev. Code § 2903.11(D)(1); see also State v. Miller, 775 N.E.2d

498, 503–04 (Ohio 2002). The trial court instructed the jury that to find Petitioner guilty of

complicity to commit felony murder, they had to find beyond a reasonable doubt that one of the

following theories of complicity applied: (1) that “[Petitioner] aided or abetted another in

causing the death of [Jim] as a proximate result of [Petitioner] or the person he aided or abetted

committing felonious assault”; (2) that “[Petitioner] caused an irresponsible person to cause the

death of [Jim] as a proximate result of that other person committing felonious assault”; or (3) that

“[Petitioner] solicited or procured another to cause the death of [Jim] as a proximate result of




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No. 15-3359, Mills v. LaRose


committing felonious assault.” On the basis of the evidence presented at trial, a rational jury

could infer that Petitioner was guilty under a theory of complicity to commit felony murder.

        First, Petitioner argues that if Kameron’s felonious assault on Jim was the predicate

offense, then there was not enough evidence to convict Petitioner of being complicit in

Kameron’s assault on Jim.1 That argument fails, since the offense of aiding or abetting

encompasses support, encouragement, or incitement, if the Petitioner shared the criminal intent

of the principal offender. State v. Johnson, 754 N.E.2d 796, 797 (Ohio 2001). Here, a rational

juror could have concluded that Petitioner knowingly encouraged his son to assault Jim, given

that “participation in criminal intent may be inferred from presence, companionship and conduct

before and after the offense is committed.” Id. at 801 (internal quotation omitted); see Ohio Rev.

Code 2903.11(A)(1).

        Petitioner contests this conclusion, asserting that such a determination would be

unreasonable because “[t]here is not a whit of evidence that John had any idea that Jim and

Kameron would ever come into physical contact during the fight, let alone that Kameron would

feloniously assault Jim . . . [and Petitioner] did not encourage Kameron to hit Jim.” Although

Petitioner did not instruct Kameron to attack Jim, there is evidence demonstrating that Petitioner

knowingly incited his sons to attack anyone who interfered with the fight. A jury could have

reasonably concluded that Petitioner attempted to start a fight with Jim when he encouraged Jim

to “hit [him]” in the presence of Kameron, and thus intended to include Jim in the fight. A

reasonable jury also could have concluded that Petitioner encouraged his sons to attack the


        1
           Petitioner does not meaningfully contest either that Kameron’s assault on Jim was felonious or that
Kameron’s assault on Jim proximately caused Jim’s death. Nor could he. Under Ohio law, a person is guilty of
felonious assault if they knowingly cause serious harm to another person. Ohio Rev. Code § 2903.11(A)(1). There
was testimony that Kameron swung his board at Jim’s head “like a freaking golf club or a ball bat.” Based on this
testimony, a rational juror could easily conclude that Kameron knowingly caused Jim serious injury. There is no
question that those injuries proximately caused Jim’s death.

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No. 15-3359, Mills v. LaRose


Edwards family with their boards through his own conduct, and that Petitioner knew that his

willingness to put a knife to Mack’s throat would encourage his sons to continue and escalate the

fight. A jury also could have inferred from Petitioner’s actions that his sons were following his

lead into the fight, or that he likely instilled in his sons his own mantra that “[o]nce a fight starts

you finish it.” After all, Petitioner led his sons, outfitted with weaponry, into a brawl against the

Edwards family.      For these reasons, the evidence was sufficient to convict Petitioner of

complicity to commit felony murder. See Harrington, 562 U.S. at 98.

       Petitioner also argues that no rational jury could have found that the assault on Mack

proximately caused Kameron to assault Jim. We need not address this argument, because there

was sufficient evidence for “any rational trier of fact” to find, beyond a reasonable doubt, the

essential elements of the crime of complicity to commit felony murder by aiding and abetting

Kameron’s assault on Jim. Coleman, 132 S. Ct. at 2064 (emphasis in original).

                                           V. Conclusion

       Accordingly, we AFFIRM the district court’s denial of relief.




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