                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0344n.06

                                            No. 13-3742


                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                              Jun 22, 2016
                                                                              DEBORAH S. HUNT, Clerk
TERRANCE WALTER,                        )
                                        )
    Petitioner-Appellant,               )
                                        )      ON APPEAL FROM THE
v.                                      )      UNITED STATES DISTRICT
                                        )      COURT FOR THE
BENNIE KELLY, Warden,                   )      NORTHERN DISTRICT OF
                                        )      OHIO
     Respondent-Appellee.               )
                                        )
                                        )
BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Terrance Walter appeals the denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Walter

was convicted of aggravated murder, aggravated burglary, and felonious assault and sentenced to

a term of thirty-four (34) years to life imprisonment. Walter argues that he is entitled to habeas

relief on two grounds. First, he believes that the trial court’s denial of his mid-trial request to

represent himself violated his Sixth Amendment right to self-representation. Second, he asserts

that the Ohio Court of Appeals unreasonably applied federal law in upholding his felonious

assault conviction because there was insufficient evidence to support the essential elements of

that charge. For the reasons that follow, we affirm the district court’s denial of habeas relief.
No. 13-3742, Walter v. Kelly


                                                  I.

                                                 A.

       On February 10, 2003, Samuel Sims Jr. (“Sims”) was shot to death in his garage. Sims’s

son, Samuel Sims, III (“Tres”), who was nine years old at the time, was the only witness to the

shooting. According to Tres’s testimony, he and his father arrived home on the evening of

February 10, 2003 around 9:00 pm. It was dark outside and there were no lights on outside the

house. Sims parked his car in the “turn-around driveway in front of the house,” exited the car and

walked towards the garage with Tres “[s]omewhere behind [him].” Trial Tr. Vol II 366:17–19,

368:21, ECF No. 7-4. Sims then opened the garage door with a remote and entered the garage.

Tres could not see his father at this point. After Sims entered the garage, a man wearing a black

ski mask and carrying a gun walked from the backyard “to roughly the doorway of the garage”

and fired several shots towards Sims. Trial Tr. Vol. IV 684:2–9, ECF No. 7-6. When the shots

were fired, Tres was standing at “the corner of the house where . . . the side of the garage is,” and

after the shots were fired he “peeked around the corner” of the house and saw the masked man

run by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 370:20–371:20, ECF No. 7-

4. Tres also testified that the shooter never looked at him.

       Immediately after the shooting, Tres entered the garage and saw his father lying on the

ground. Tres was “in a lot of shock” and he “didn’t really know what was happening” so he

shook his dad and told him to “quit playing.” Id. at 373:17–21. He then called for his mother to

come downstairs. She called the paramedics and told Tres to put pressure on Sims’s wounds.

After his mother told Tres that his father had died, he felt “[n]ot too good,” he did not sleep in his

own room again, and he thought about what happened “all the time.” Id. at 377:15–378:4,

383:13–15. Following the shooting, Tres saw a psychologist for individual, hourly sessions once




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No. 13-3742, Walter v. Kelly


a week for a year. While Tres testified that he “never actually thought at the time that [he] really

needed” counseling, his mother thought he needed the therapy and that Tres “didn’t seem to

really grieve . . . [to] deal with it the way you would expect.” Id. at 386:11–15, 429:14–18.

After a year of counseling, the therapist referred Tres to group therapy because “he wasn’t

willing to open up and really participate in the one on one.” Id. at 431:10–21. Tres did not

participate in group therapy, but his mother believes that he still has “not really grieved and dealt

with” his father’s death and that “[b]ehaviorally . . . [Tres has] consistently gone down in

school . . . [and] doesn’t care about too many things.” Id. at 432:24–432:9, 434:7–15.

                                                            B.

       On August 22, 2006, Walter (also known as Terrance Ward)1 and Antonio Campbell,

were indicted for murdering Sims and for feloniously assaulting Tres. Campbell subsequently

entered a plea agreement with the State, but Walter proceeded to trial.

       On June 6, 2007, the jury in Walter’s trial was selected. On June 7, 2007, the jury visited

the crime scene and heard both sides’ opening statements as well as testimony from the coroner,

Nashall Sims, Sims’s wife and Tres’s mother, and Tres. At some point during Tres’s testimony,

the court held a sidebar where the court asked Thomas Shaughnessy, Walter’s counsel, to “get

[his] client under control.” Id. at 394:7–11. Shaugnessy explained that Walter wanted him to

“put Antonio Campbell and the defendant in front of [Tres] and have him say what’s the most

approximate height of the person who was there.” Id. at 394:14–19. The court responded, “[w]e

will not have this. If he wants to fire you, the both of you now and represent himself, I will be

glad to have a hearing and entertain that request, but I’m not going to have him behaving in this

fashion.” Id. at 395:3–7. Shaughnessy then told the court that he was not going to question Tres

further about the height of the shooter and “if the Court wants to break and inform [Walter] of
       1
           In the trial transcript, Walter is referred to as Ward.


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No. 13-3742, Walter v. Kelly


his ability to represent himself, that’s fine.” Id. at 395:14–18. The court declined to do so and

told Shaughnessy to “control” his client. Id. at 395:19–23.

       The third day of trial, June 8, 2007, began with Walter’s request to speak with the court.

Walter then proceeded to complain about his counsel’s failure to get him a speedy trial, to which

the court responded that it was “not going to hear . . . these kinds of claims” because Walter had

“lawyers who are representing [him]” and that Walter “cannot represent [himself].” Trial Tr.

Vol. III 501:12–23, ECF No. 7-5. In response Walter said, “Okay. I don’t want to represent

myself.” Id. at 501:24–25. Walter and the court then engaged in a brief colloquy about the

failure of Walter’s counsel to question Tres further the previous day. The court eventually told

Walter, “You could represent yourself, I suppose.”        Id. at 504:3. And after another brief

colloquy, Walter stated, “I would like to represent myself,” to which the court immediately

responded, “I’m not going to permit that.” Id. at 506:13–16. Walter indicated that he was

“okay” with the court’s decision “[a]s long as all this is on record.” Id. at 506:17–18. The court

denied Walter’s request stating that it was “calculated to cause delay” and that the court was “not

inclined to consider [Walter’s] request at this juncture” because it was “well into the trial, to be

permitted to represent himself.” Id. at 507:24–508:2; Court Journal Entry 1, ECF No. 7-1.

                                                C.

       Following trial, the jury convicted Walter of the aggravated murder of Sims, of the

felonious assault of Tres, and of two counts of aggravated burglary. The trial court sentenced

Walter to life in prison on the aggravated murder charge, without the possibility of parole for the

first twenty years, plus six years for the firearm specification, a consecutive eight-year term for

the felonious assault charge, and a concurrent five-year term for both aggravated burglary

charges. The Ohio Court of Appeals vacated Walter’s aggravated burglary convictions and




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No. 13-3742, Walter v. Kelly


affirmed his other convictions. State v. Walter, No. 90196, 2008 WL 2687905 (Ohio Ct. App.

July 10, 2008). The Court of Appeals denied Walter’s motion to reopen his case, State v. Walter,

No. 90196, 2009 WL 546203 (Ohio Ct. App. Mar. 3, 2009), and the Ohio Supreme Court denied

Walter leave to appeal his remaining convictions.

        On July 10, 2011, Walter filed a petition for a writ of habeas corpus in the district court

for the Northern District of Ohio. The district court denied Walter’s petition and declined to

issue a certificate of appealability. Walter timely appealed, and this Court issued Walter a

certificate of appealability.

                                                        II.

        This Court reviews de novo a district court’s denial of habeas relief. Nali v. Phillips,

681 F.3d 837, 840 (6th Cir. 2012). Where a state court has adjudicated a claim on the merits,

this court may grant habeas relief only if the state court’s decision was “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or if it was “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

A state court’s factual determinations “shall be presumed to be correct” unless the petitioner

rebuts this presumption “by clear and convincing evidence.” Id. at § 2254(e)(1).

        A.       Sixth Amendment Self-Representation

        Walter asserts that the state court violated his Sixth Amendment right to self-

representation by denying his request to represent himself. Walter’s request came at the

beginning of the third day of trial,2 after the jury had visited the crime scene and heard testimony


        2
          The parties disagree over whether June 8, 2007, was the third day or fourth day of trial. The Ohio Court
of Appeals noted that Walter’s request was on the fourth day of trial, Walter 2008 WL 2687905 at *4, but on appeal
Walter argues that June 5, 2007, was not the first day of trial because the court only disposed of pre-trial motions
and other preliminary matters before the jury was empaneled. Whether Walter’s request came on the third or fourth


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No. 13-3742, Walter v. Kelly


from three people, including the only witness to the shooting, Tres Sims. The trial court denied

the request as untimely, noting that the trial had progressed too far to allow Walter to represent

himself. The Ohio Court of Appeals affirmed. Walter, 2008 WL 2687905, at *4.

         The Sixth and Fourteenth Amendments “guarantee that a person brought to trial in any

state or federal court must be afforded the right to the assistance of counsel before he can be

validly convicted and punished by imprisonment.” Martinez v. Court of Appeal of California,

Fourth Appellate Dist., 528 U.S. 152, 154 (2000). In Faretta v. California, the Supreme Court

recognized that the Sixth and Fourteenth Amendments also provide an inverse right of criminal

defendants to “proceed without counsel when [they] voluntarily and intelligently elect[] to do

so.” 422 U.S. 806, 807 (1975) (emphasis added). In Martinez, the Court clarified that the right to

self-representation was “not absolute.” 528 U.S. at 161.                       “Even at the trial level . . . the

government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the

defendant’s interest in acting as his own lawyer.” Id. at 162. In light of the government’s

interests, “most courts” require criminal defendants to elect to conduct their own defense in “a

timely manner.” Id. at 162.

         Before assessing the merits of Walter’s claim, we first address an issue of

characterization. Walter, in an attempt to avoid AEDPA deference, argues that the state court’s

decision was the product of an inadequate state procedural rule. See 28 U.S.C. § 2254(d)(1)–(2);

Rice v. White, 660 F.3d 242, 252 (6th Cir. 2011) (“It is well settled that we may review de novo

an exhausted federal claim that was not adjudicated on the merits in state court.”).

         The Ohio Court of Appeals affirmed the trial court’s denial of Walter’s self-

representation request, reasoning:


day of trial is not dispositive. It is undisputed that the request came several days into trial after the jury had heard
testimony from several witnesses, including the only eye-witness to the shooting.


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No. 13-3742, Walter v. Kelly


                      [P19] The Sixth Amendment to the United States
              Constitution provides: “In all criminal prosecutions, the accused
              shall * * * have the Assistance of Counsel for his defense.”
              Similarly, the Ohio Constitution provides: “In any trial, in any
              court, the party accused shall be allowed to appear and defend in
              person and with counsel.”         Section 10,    Article I, Ohio
              Constitution.

                      [P20] The United States Supreme Court has also
              recognized that the Sixth Amendment right to the assistance of
              counsel implicitly embodies a “correlative right to dispense with a
              lawyer’s help.” Adams v. United States ex rel. McCann (1942),
              317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268. The court
              clarified this right to proceed without counsel in the landmark case
              of Faretta v. California (1975), 422 U.S. 806, 95 S. Ct. 2525, 45
              L.Ed.2d 562. “Although not stated in the Amendment in so many
              words, the right to self-representation-to make one’s own defense
              personally-is thus necessarily implied by the structure of the
              Amendment. The right to defend is given directly to the accused;
              for it is he who suffers the consequences if the defense
              fails.”(Footnote omitted.) Id. at 819-820, 422 U.S. 806, 95 S.Ct.
              2525, 45 L.Ed.2d 562. Accord State v. Gibson (1976), 45 Ohio
              St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus (“a
              defendant in a state criminal trial has an independent constitutional
              right of self-representation and * * * may proceed to defend
              himself without counsel when he voluntarily, and knowingly and
              intelligently elects to do so.”).

                      [P21] The right is not unlimited, however, as it must be
              explicit, unequivocal and timely made. State v. Cassano, 96 Ohio
              St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81. In that case, the Court
              noted that Cassano’s request was untimely because it was made
              three days before the trial was to start. Id., citing to United States
              v. Mackovich (C.A.10, 2000), 209 F.3d 1227, 1237 (requests made
              six to ten days before trial “were merely a tactic for delay”);
              United States v. George (C.A.9, 1995), 56 F.3d 1078, 1084
              (request untimely where it was made on eve of trial). Accord State
              v. Halder, Cuyahoga App. No. 87974, 2007-Ohio-5940 (request
              untimely where it was made four days before trial and only after
              the trial court had refused to disqualify trial counsel and appoint a
              third lawyer).

                      [P 22] In this matter, defendant made his request on the
              fourth day of trial. The trial court therefore properly determined
              that the request was not timely. The request was properly denied.




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No. 13-3742, Walter v. Kelly


Walter, 2008 WL 2687905, at *4.

       “When a federal claim has been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

of any indication or state-law procedural principles to the contrary.” Harrington v. Richter,

562 U.S. 86, 99 (2011). The presumption is rebuttable and may be overcome “when there is

reason to think some other explanation for the state court’s decision is more likely.” Id. at 99–

100. To determine whether the presumption has been overcome, this Court reads the state court

decision “as a whole,” looking to various factors including “the language used by the state court

in its discussion of the claim at issue and the context of that discussion.” Barton v. Warden, S.

Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015) (citation omitted).

       In denying Walter’s request, the state appellate court cited Faretta, the Supreme Court’s

seminal case on the Sixth Amendment right to self-representation. Walter, 2008 WL 2687905, at

*4. The court also relied on an Ohio Supreme Court case, Cassano, which itself relied on two

cases from the Ninth and Tenth Circuits, for the proposition that Walter’s right to represent

himself was not unlimited and depended on the timing of his request. Id. (citing United States v.

Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000); United States v. George, 56 F.3d 1078, 1084

(9th Cir. 1995)). The Ohio Court of Appeals expressly understood that it was deciding a federal

constitutional question, and there is no indication that its decision rested solely on state law

procedural principles. The court did not rely on an explicit Ohio procedural rule, nor did it

purport to apply a procedural rule derived from state common law. See Harris v. Reed, 489 U.S.

255, 263 (1989) (“[A] procedural default does not bar consideration of a federal claim on either

direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and

expressly’ states that its judgment rests on a state procedural bar.” (citation omitted)). Rather,




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No. 13-3742, Walter v. Kelly


the court analyzed the merits of Walter’s claim head on. It looked to analogous federal and state

cases and determined that a request made several days into trial was an untimely assertion of the

Sixth Amendment right to self-representation. Walter, 2008 WL 2687905, at *4.

       Walter stresses that the only reason the trial and appellate courts rejected his claim is

because it was deemed untimely, implying that timeliness is solely a procedural consideration.

This argument ignores Jones v. Bell, 801 F.3d 556 (6th Cir. 2015). There, a state habeas

petitioner raised the same argument Walter does here: that a state court decision rejecting a self-

representation request on timeliness grounds was based solely on a per se state procedural bar.

Id. at 566.   In rejecting this argument, this Court concluded that “[i]t is not a state-court

procedural rule regarding timing to invoke one’s right to self-representation; it is a federal-law

substantive rule—part of Faretta’s holding—about the limits of the self-representation right” and

that “denying a self-representation request because of timing can be based on the nature of the

federal right, not on the state procedure.” Id.

       The state courts’ determination that Walter’s request was untimely is founded on the

substantive nature of his right to self-representation at that particular juncture of the trial, not on

the fact that Walter had procedurally defaulted under state law. See id. (“[T]iming is part of a

court’s substantive analysis under Faretta.”). Walter cannot overcome the presumption that the

state court decided his federal claim on the merits, and therefore we proceed to review his Sixth

Amendment claim under AEDPA’s deferential standard.

       Failing in his inadequate state law grounds argument, Walter contends that the state

court’s decision was an objectively unreasonable application of federal constitutional law. He

argues that Faretta and Martinez require courts to explicitly balance a criminal defendant’s




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No. 13-3742, Walter v. Kelly


interest in self-representation and the government’s interest in efficiency and integrity of the trial

before rejecting a Sixth Amendment self-representation claim.

         This Court may not grant federal habeas relief for claims subject to § 2254(d) unless the

petitioner shows that the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1); Richter, 562 U.S. at 100.

         The state court’s denial of Walter’s request was not contrary to clearly established federal

law. In Hill v. Curtin, this court, sitting en banc, determined that “to the extent that Faretta

addresses timeliness, as a matter of clearly established law it can only be read to require a court

to grant a self-representation request when the request occurs weeks before trial.” 792 F.3d 670,

678 (6th Cir. 2015) (emphasis added); see also Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir.

2007) (“Faretta does not articulate a specific time frame pursuant to which a claim for self-

representation qualifies as timely. . . . The Supreme Court has never held that Faretta’s ‘weeks

before trial’ standard requires courts to grant requests for self-representation coming on the eve

of trial”).3 The Hill court went on to note that “the Supreme Court has never defined the precise

contours of Faretta’s timing element.” 792 F.3d at 679. Likewise, the Supreme Court did not

announce any clearly established law on timeliness in Martinez. The Martinez Court held only

that the right to self-representation was “not absolute” and that it could be forfeited if not

asserted in a timely manner.             Id. (quoting Martinez, 528 U.S. at 161–62).                    Courts have

consistently held that requests made during or on the eve of trial are not timely. See id. at 677–

81 (denying habeas relief where self-representation request came on first day of trial); United

         3
           While we cannot rely on circuit precedent as clearly established federal law for purposes of § 2254(d)(1),
this court may “look to circuit precedent to ascertain whether it has already held that the particular point in issue is
clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51 (2013) (per
curiam).



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No. 13-3742, Walter v. Kelly


States v. Conteh, 234 F. App’x. 374, 381 (6th Cir. 2007) (upholding denial of a motion for self-

representation “filed after trial began”); United States v. Pleasant, 12 F. App’x 262, 266–67 (6th

Cir. 2001) (upholding denial of motion for self-representation “on the day of trial with

prospective jurors standing outside of the courtroom.”); Robards v. Rees, 789 F.2d 379, 383–84

(6th Cir. 1986) (same).4

         Nor was the state court decision an unreasonable application of federal law. “[A] federal

habeas court may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v.

Taylor, 529 U.S. 362, 410–11 (2000); see Richter, 562 U.S. at 102–03.                               A state court

unreasonably applies federal law when its decision is “so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citation omitted).

         Walter suggests that, in light of Faretta and Martinez, it was unreasonable for the court to

dismiss his request as untimely without first explicitly assessing his interests in self-

representation and the government’s competing interests in an efficient and reliable trial. This

argument is unavailing.

         First, the state court’s consideration of Walter’s request included consideration of the

request’s probable effect on the proceeding. The trial court briefly noted that it was denying

Walter’s request because it came “well into the trial,” or in other words, at that juncture,


         4
           Walter relies on Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008) for the proposition that a midtrial
invocation of the Sixth Amendment right to self-representation can be timely, but his reliance is misplaced. Not
only does Moore not qualify as clearly established federal law under § 2254(d), it is also readily distinguishable. In
Moore, this Court granted habeas relief where the court completely failed to exercise its discretion to rule on the
request to proceed pro se. Id. at 403. Here, on the other hand, the court immediately addressed Walter’s request and
denied it as untimely.



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No. 13-3742, Walter v. Kelly


allowing Walter to proceed pro se would have unduly disrupted the trial. Trial Tr. Vol. III

507:24–508:2, ECF No. 7-4. The state appellate court affirmed this finding, noting that Walter

“made his request on the fourth day of trial. The trial court therefore properly determined that

the request was not timely.” Walter, 2008 WL 2687905 at *4.

       The conclusion that a self-representation request was untimely implies that the request

came at a point in time when the government’s interests outweighed the defendant’s. See

Martinez, 528 U.S. at 162 (“Even at the trial level . . . the government’s interest in ensuring the

integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his

own lawyer”); Jones, 801 F.3d at 566 (“Timing is part of a court’s substantive analysis under

Faretta.”). While the state courts did not provide an overly detailed analysis of why Walter’s

request was denied, “[a] trial judge may fairly infer on the day of trial—as the jurors are on their

way to the courtroom—that a defendant’s last-minute decision to represent himself would cause

delay, whether or not the defendant requests a continuance.” Hill, 792 F.3d at 681. Here, the

request came not on the first day of trial, but on the third day, after the jurors had heard

testimony from three witnesses, including the only eye-witness to the crime.

       Second, Faretta and Martinez shed little light on the existence of Walter’s proposed

structural requirement. Faretta, while identifying a defendant’s constitutional interest in acting

as his own lawyer, says nothing of the competing interests implicated by a defendant’s request to

proceed without counsel.       See 422 U.S. 806.        While Martinez recognized that a self-

representation request involves “the government’s interest in ensuring the integrity and

efficiency of the trial” and the defendant’s interest in “acting as his own lawyer,” 528 U.S. at

162, apart from this oblique reference, there is no requirement for courts to overtly weigh these

interests. Far beyond disagreeing, fair-minded jurists would search Supreme Court precedent in




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No. 13-3742, Walter v. Kelly


vain for any clearly established requirement to explicitly weigh the government’s and the

defendant’s interests at the time a Sixth Amendment self-representation request is made. It

would be incongruent with AEDPA’s deferential scheme of review to fault the state court for

failing to do something it had no clearly established obligation to do.

       B.      Sufficiency of the Evidence

       Walter next asserts that no rational trier of fact could have convicted him of feloniously

assaulting Tres and that it was an unreasonable application of federal law for the Ohio Court of

Appeals to deny his sufficiency of the evidence claim.

       In assessing a sufficiency of the evidence claim, the key question is whether “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.” Davis v.

Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “[T]he Jackson v. Virginia standard is so demanding that ‘[a] defendant who challenges

the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.’”

Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

       Ohio defines felonious assault as follows:

               No person shall knowingly do either of the following:

                       (1) Cause serious physical harm to another or to another’s
                       unborn;

                       (2) Cause or attempt to cause physical harm to another or to
                       another’s unborn by means of a deadly weapon or
                       dangerous ordinance.

Ohio Rev. Code § 2903.11(A)(1)–(2). Walter was indicted under Section 2903.11(A)(1), on the

theory that Tres suffered severe psychological injuries as a result of seeing his father murdered.

To convict Walter of felonious assault under Section 2903.11(A)(1), the State had to prove



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No. 13-3742, Walter v. Kelly


beyond a reasonable doubt that Tres suffered “serious physical harm” and that Walter knowingly

caused this harm. Section 2901.01(A)(5)(a) defines “serious physical harm” to include “any

mental illness or condition of such gravity as would normally require hospitalization or

prolonged psychiatric treatment.” Knowingly is defined as follows:

                 A person acts knowingly, regardless of purpose, when the person is
                 aware that the person’s conduct will probably cause a certain result
                 or will probably be of a certain nature. A person has knowledge of
                 circumstances when the person is aware that such circumstances
                 probably exist.

Ohio Rev. Code § 2901.22(B). Walter takes issue with the sufficiency of the State’s evidence on

both elements.

       1.        Serious Physical Harm

       Walter asserts that the evidence adduced at trial was insufficient to lead any rational trier

of fact to the conclusion that Tres suffered serious physical harm within the meaning of Ohio

Revised Code Section 2901.01(A)(5)(a). Of particular relevance to this claim is trial testimony

that Tres was “in a lot of shock” following the shooting and “didn’t really know what was

happening,” that Tres thought about the shooting “[a]ll the time,” that Tres’s mother believed he

needed counseling and had not properly processed the shooting, that Tres had one-on-one,

weekly sessions with a child psychologist for about a year, and that “behaviorally . . . [Tres has]

consistently gone down in school . . . [and] doesn’t care about too many things.” Trial Tr. Vol II,

386:11–15, 429:14–18, 431:10–21, 432:24–432:9, 434:7–15, ECF No. 7-4.

       The Ohio Court of Appeals affirmed Walter’s conviction for felonious assault, but in

doing so, it ignored the State’s psychological injury theory, and instead mistakenly applied

another provision of Ohio’s felonious assault statute, Section 2903.11(A)(2), which provides that

no person shall “[c]ause or attempt to cause serious physical harm to another . . . by means of a




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No. 13-3742, Walter v. Kelly


deadly weapon or dangerous ordnance.” Walter, 2008 WL 2687905, at *7. The court did not

address Walter’s claim that there was insufficient evidence to prove that Tres suffered “serious

physical harm.” Id. Thus, we look to the state trial court’s denial of Walter’s motion for

acquittal as the last reasoned state-court opinion on this issue. See Ylst v. Nunnemaker, 501 U.S.

797, 803 (1991) (“[W]here there has been one reasoned state judgment rejecting a federal claim,

later unexplained orders upholding that judgment or rejecting the same claim rest upon the same

ground.”)

       When there has been a reasoned state court decision on the merits, we do not review

sufficiency of the evidence claims de novo.      Rather “the law commands deference at two

levels. . . . First, deference should be given to the trier-of-fact’s verdict, as contemplated by

Jackson; second, deference should be given to the [state court’s] consideration of the trier-of-

fact’s verdict, as dictated by AEDPA.” Lafler, 658 F.3d at 531 (quoting Tucker v. Palmer,

541 F.3d 652, 656 (6th Cir. 2008)). In other words, it is not our duty to determine whether any

rational trier of fact could have found that Walter committed the essential elements of felonious

assault beyond a reasonable doubt.      Rather, we analyze whether, in considering the jury’s

verdict, the last reasoned state court decision applied Jackson’s deferential standard

unreasonably.

       The trial court called this a “close question,” but ultimately denied Walter’s motion.

Trial Tr. Vol. VII 1345:9–25, ECF No. 7-9. The court noted that there was no evidence of a

distinct mental illness, but that it was arguable that the trial evidence supported a finding that

Tres suffered from “a condition of such gravity as would normally require prolonged psychiatric

treatment.” Id. at 1345:15–20. The court pointed out that “prolonged” was not defined in

§ 2901.01(A)(5)(a) but ultimately ruled that a reasonable jury could “conclude that a year of




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No. 13-3742, Walter v. Kelly


psychiatric counseling may be prolonged or may meet the definition of prolonged.” Id. at

1345:21–25.

       While this is, as the trial court surmised, a close question, we do not believe that the trial

court’s decision was an unreasonable application of Jackson. According to Walter, the evidence

adduced at trial provides no basis for a rational trier of fact to conclude that Tres suffered from a

condition so grave “as would normally require hospitalization or prolonged psychiatric

treatment.” CA 6 R. 53, Pet’r Br. at 57 (quoting Ohio Rev. Code § 2901.11(A)(5)(a). Walter

cites multiple Ohio cases where courts upheld felonious assault convictions based on expert

testimony from psychiatrists about the specific mental illnesses suffered by the victims. See

State v. Carpenter, No. 94709 2011 WL 285837, at *2–3 (Ohio App. Jan. 20, 2011); State v.

Cooper, 743 N.E.2d 427 (Ohio Ct. App. 2000); State v. Hodges, 669 N.E.2d 256 (Ohio Ct. App.

1995). But the Ohio Court of Appeals has also affirmed an aggravated robbery5 conviction

under circumstances similar to the present case. See State v. Ridgeway, No. 82713, 2004 WL

229520 at *2 (Ohio Ct. App. Feb. 5, 2004). In Ridgeway, no medical experts testified but the

victim testified that “she [had] been diagnosed with post-traumatic stress and [had] been

receiving treatment for her mental condition by a psychologist once a week as a result of the

incident.” Id. at *2.

       Unlike the victim in Ridgeway who suffered from PTSD, Tres’s specific condition(s) was

not identified at trial.        But it does not appear that the state was required to do so.

Section 2901.01(A)(5)(a) defines “mental illness or condition” only in relation to the type of

treatment normally required and the length of time treatment is typically necessary. Apart from

this, the term is undefined. As the trial court pointed out, the jury was free to find that Tres

suffered from a condition within the definition of the statute. Tres visited a therapist for about a
       5
           “Serious physical harm” is an element of aggravated robbery. Ohio Rev. Code § 2911.01(A)(3)


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No. 13-3742, Walter v. Kelly


year, and at the conclusion of those sessions, the therapist suggested even more therapy. Taking

the evidence in the light most favorable to the prosecution, this evidence is more than enough to

persuade a rational trier of fact that Tres suffered “serious physical harm.”

       Moreover, in affirming the jury’s finding, the trial court was defining what qualified as

“serious physical harm” under Section 2901.11(A)(5)(a). “State law means what state courts say

it means” and “[w]hen a state court enters or affirms a conviction, it is saying that the evidence

satisfies the legal norms.” Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002) (quoting Bates v.

McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991)). Viewed this way, Walter’s claim amounts to an

argument that the “state court misunderstood the substantive requirements of state law” and such

claims are beyond the reach of federal habeas courts. Id.

       2.      Knowingly

       Walter next asserts that because he never pointed or fired the gun in Tres’s direction, it

was unreasonable to find that he knowingly assaulted Tres. In making this argument, Walter

relies heavily on Nash v. Eberlin, a case where this Court granted habeas relief and overturned a

conviction for felonious assault under Ohio Revised Code Section 2903.11(A)(2). 258 F. App’x

761, 766 (6th Cir. 2007). There, we recognized that, under Section 2903.11(A)(2), “the act of

pointing a gun at someone, without further evidence of the actor’s intention, is not sufficient

evidence for a felonious assault conviction.” Id. (citing State v. Brooks, 542 N.E.2d 636, 642

(Ohio 1989)). The court further concluded that:

               [i]f there was insufficient evidence of felonious assault in such
               cases where a gun was pointed at someone, then the Ohio Court of
               Appeals could not reasonably determine that a rational trier of fact
               could have found beyond a reasonable doubt that a felonious
               assault was committed in this case, in which the evidence does not
               indicate that the gun was pointed at anyone.




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No. 13-3742, Walter v. Kelly


Id. Walter also relies on State v. Mills, where the defendant’s conviction under

Section 2903.11(A)(2) was overturned. 582 N.E.2d 972 (Ohio 1992). In Mills, the alleged

victim, a bank employee, was “not in the line of fire when the gunman entered [the bank] and hid

underneath her desk during the remainder of the robbery.” Id. at 984. The Ohio Supreme Court

found that the record was “insufficient to support the finding that [the defendant] knowingly

attempted to physically harm [the victim].” Id. On the strength of Nash, Mills, and other Ohio

state cases, Walter discerns a rule: a “defendant does not ‘knowingly’ cause the mental variant of

‘serious physical harm’ in violation of Section 2903.11(A)(1) unless he fires a weapon in the

direction of an intended victim or a bystander.” CA6, R. 53, Appellant Br. at 50, 61. Based on

this rule, Walter argues that the Ohio Court of Appeals’s application of Jackson was

unreasonable because “there was no evidence that a shot was fired in the direction of the alleged

victim” as required by Ohio case law on felonious assault. Id. at 61.

       The major problem with Walter’s theory is that Mills, Nash, and the state cases Nash

analyzed all dealt with convictions under Section 2903.11(A)(2), not (A)(1). Under (A)(2), the

use of a “deadly weapon or dangerous ordnance” is required. Convictions under (A)(1), on the

other hand, require no such means. “Nothing in the language of R.C. 2903.11(A)(1) indicates a

legislative intent to limit the scope of the statute to cases where the ‘serious physical harm’ to the

victim results from a battery.” State v. Elliott, 663 N.E.2d 412, 415 (Ohio Ct. App. 1995); see

also Cooper, 743 N.E.2d at 434 (“Not only may a person commit felonious assault by

perpetrating an act causing mental illness, but a person may commit felonious assault when his

or her failure to act causes mental illness.”) The state’s theory in this case was not that Walter’s

use of the gun to shoot Sims also harmed Tres, but rather that killing Sims in front of Tres caused




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No. 13-3742, Walter v. Kelly


Tres serious psychological harm.6 See Cooper, 743 N.E.2d at 434 (“It is clear that a defendant

may knowingly cause a person to suffer mental illness constituting the ‘serious physical harm’

necessary for a conviction of felonious assault under R.C. 2903.11(A)(1) by perpetrating a single

act . . . .”). It does not matter that Walter never threatened Tres with the gun or never fired a shot

in his direction; all that matters is whether any rational jury could have found that Walter acted

knowingly.

         Walter’s decision to focus on 2903.11(A)(2) is understandable given the Ohio Court of

Appeals’s emphasis on that portion of the statute. See Walter, 2008 WL 2687905, at *7. As will

be discussed in more detail below, the court erroneously assumed that Tres was in the garage

when his father was shot, which led it to rely on Ohio case law upholding assault convictions

under 2903.11(A)(2), not (A)(1), where defendants knowingly fired shots into rooms occupied

by multiple persons. Id. (citing State v. Lee, No. 97APA12-1629, 1998 WL 614608, at *1–*6

(Ohio Ct. App. Sept. 3, 1998)). Based on this reasoning, the Court of Appeals concluded that,

because Tres was in close proximity to Sims when Walter shot Sims, Walter knowingly

assaulted Tres. Id. The Ohio Court of Appeals affirmed Walter’s felonious assault conviction

based on an unreasonable determination of the facts, and, thus, we review this portion of

Walter’s sufficiency of the evidence claim de novo.

         We must first determine whether there was sufficient evidence that Walter knew Tres

was present when he murdered Sims. Tres testified that the masked shooter never looked at him,

that when his father was shot, he was standing at “the corner of the house where . . . the side of

the garage is,” and that after his father was shot he “peeked around the corner” of the house and

saw a masked man run by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 371:1–

         6
          On appeal the State maintains the same theory: “Walter . . . caused Tres serious physical harm—the
trauma of witnessing the murder of his father . . . of showing his mother where his father lay and putting pressure on
the wounds.” CA6, R. 56, Appellee Br. at 38.


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No. 13-3742, Walter v. Kelly


372:24, 401: 10–16, 403:14–22. The state asserts that Walter “admitted that he had shot a man

in front of his child.” CA6, R. 56 Appellee Br. at 44. The state’s position is based on the

testimony of Carlos Williams who stated that he asked Walter whether he “[shot] somebody in

front of their kid” to which Walter responded “I had to do what I had to do, and I shot the guy.”

Trial Tr. Vol. IV 1348:8–25, ECF No. 7-6. “[A] federal habeas corpus court faced with a record

of historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of

the prosecution.” Jackson, 443 U.S. at 326. While the state’s case on this point was thin, we

conclude that a rational trier of fact could have found that Walter knew Tres was there.7

        The question then becomes whether a rational jury could find that Walter was aware that

his conduct of shooting Sims would probably cause Tres serious psychological harm. The facts

of this case are similar to Elliott. 663 N.E.2d 412. There, the defendant was charged with

feloniously assaulting his six-year-old son after he murdered his wife, the child’s mother, and left

her dead body in the kitchen. Id. at 413. The defendant’s son was asleep in another room and

did not discover his mother’s body until the next morning. Id. at 413, 417. The state prosecuted

Elliott for felonious assault on the theory his “failure to act to prevent [the child] from

discovering his mother’s body . . . resulted in serious physical harm to Eddie.” Id. at 415. The

Ohio Court of Appeals affirmed the defendant’s felonious assault conviction based on his

omission, but the court premised liability, in part, on defendant’s parental duty to protect his

child and his failure to do so by removing his wife’s body. Id. In this case, unlike in Elliott,

Walter had no parental duty to Tres. But here, unlike in Elliott, liability is premised on an

affirmative act, not on an omission.

        7
          Walter concedes, on appeal, that the evidence can be construed this way. See CA6, R. 53, Appellant Br. at
65 n.16 (“Walter’s response [to Carols Williams’ question], at most suggests that he was aware of the boy’s
presence generally.”).


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No. 13-3742, Walter v. Kelly


       The Elliott court noted that the “much more difficult question” was whether there was

sufficient evidence to allow a rational jury to find that defendant was “aware [his son] would

probably suffer ‘serious physical harm’” upon discovering his mother’s body. Id. at 417. The

court stated that the defendant’s state of mind could be “determined from reasonable inferences

arising from the evidence,” id. (citation omitted), and ultimately concluded:

                       In the final analysis, we can envision few things more
               traumatic to a six-year-old child than to find his murdered mother’s
               body in a pool of blood, unless it be to see the actual murder; if the
               circumstances of this case do not allow the inference that
               defendant knew serious physical harm in the form of mental injury
               to Eddie was the probable result of defendant’s failure to act, we
               have difficulty imagining what circumstances would. While these
               facts do not mandate a conclusion that defendant acted knowingly,
               the evidence was sufficient to allow the trial judge to consider the
               issue. Thus, the trial court did not err in overruling defendant’s
               [motion for acquittal].

Id. at 418 (emphasis added). In light of Elliott, we conclude that a rational jury could have found

that when Walter shot Sims he was aware that it would likely cause Tres serious psychological

harm, within the meaning of 2903.11(A)(1).

       Relatedly, Walter argues that the Ohio Court of Appeals’s denial of his sufficiency of the

evidence claim rested on an “unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”      28 U.S.C. § 2254(d)(2).      In affirming Walter’s

conviction, the Ohio Court of Appeals made the following factual findings:

                      According to Tres, his father opened the garage with the
               remote opener. His father got out of the car and Tres followed him
               as he entered the garage. Tres then observed someone dressed in
               black with a ski mask run towards them from the back of the
               house. Tres testified that he saw the individual shoot into the
               garage then flee.

Walter, 2008 WL 2687905, at *1. The Court of Appeals also relied on Lee, which held that

“firing into a bedroom supports an inference that the assailant was aware of the circumstances of



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No. 13-3742, Walter v. Kelly


his action, and knowingly caused or attempted to cause harm to the occupants therein.” Id. at

*7–*8 (citing Lee, 1998 WL 614608, at *4). The court found Lee’s reasoning applicable to

Walter’s case, noting that “the evidence demonstrated that defendant opened fire into the garage

and that Tres was behind his father and in close proximity to the areas where spent rounds and a

casing was recovered.” Id. at *8. Based on its factual findings and its reliance on Lee, it appears

that the Ohio Court of Appeals assumed that Tres was in the garage when his father was shot.

There is no support in the record for this assumption. Tres testified that when his father was

shot, he was standing at “the corner of the house where . . . the side of the garage is,” and that

after his father was shot he “peeked around the corner” of the house and saw a masked man run

by him “but not so close that [he] saw [Tres].” Trial Tr. Vol. II 371:1–372:24, 401: 13–16.

Tres’s testimony is uncontroverted and provides “clear and convincing” evidence that he was not

in the garage. 28 U.S.C. § 2254(e)(1). It was unreasonable for the Ohio Court of Appeals to

assume otherwise. The state court’s error, however, is not one upon which habeas relief may be

grounded because it did not result in a constitutional error. State prisoners are entitled to a writ of

habeas corpus only if they are in custody in violation of the Constitution or laws or treaties of

the United States. Id. at § 2254(a). Section 2254(d)(2) “does not repeal the command of

§ 2254(a).” Wilson v. Corcoran, 562 U.S. 1, 5–6 (2010). As our preceding discussion shows, a

rational trier of fact could have found that Walter violated Ohio’s felonious assault statute.

Therefore, the state court’s factual error, unreasonable though it was, is not grounds for relief.

                                                 III.

       For the foregoing reasons, we affirm the district court’s denial of habeas relief.




                                                - 22 -
