Mahan v. Bunting

Filing 18

Opinion and Order signed by Judge James S. Gwin on 3/20/14. The Court overrules petitioner's objections, adopts the recommendations of Magistrate Greg White as amended by this opinion, and dismisses the petition with prejudice. The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith, and no basis exists upon which to issue a certificate of appealability. (Related Docs. 1 , 14 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JAMES MAHAN,
:
:
Petitioner,
:
:
vs.
:
:
JASON BUNTING, Warden,
:
:
Respondent.
:
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CASE NO. 1:13-CV-00165

OPINION & ORDER
[Resolving Docs. 1, 7, 14, and 17]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Magistrate Judge Greg White recommends that this Court dismiss Petitioner James Mahan’s
28 U.S.C. § 2254 petition.1/ Petitioner Mahan objects to the Magistrate Judge’s recommendation.2/
For the following reasons, the Court OVERRULES Petitioner’s objections, ADOPTS the
recommendations of Magistrate Judge White, and DISMISSES WITH PREJUDICE the petition.3/
I. Background
In habeas corpus proceedings instituted by a person in custody pursuant to the judgment of
a state court, factual determinations made by the state courts are presumed correct.4/ The Ohio Court
of Appeals summarized the facts as follows:
{¶ 2} In this case, defendant was indicted with 95 counts, including pandering sexuallyoriented matter involving a minor, illegal use of a minor in nudity-oriented material or
performance, and possessing criminal tools. The charges stemmed from the presence of
certain files found on defendant's home computer as a result of an investigation
conducted by Rick McGinnis (“McGinnis”). McGinnis is an investigator assigned to
Ohio's Internet Crimes Against Children Task Force (“ICAC”). McGinnis utilized
software known as “Peer Spectre,” which identified an internet protocol (“IP”) address
1/

Doc. 14.

2/

Doc. 17.

3/

Respondent filed a motion to dismiss. The Court denies the motion as moot given this opinion and order. See

Doc. 7.
4/

28 U.S.C. § 2254(e)(1).

Case No. 1:13-CV-00165
Gwin, J.
associated with three files that he recognized from his experience as being child
pornography. McGinnis prepared an affidavit and obtained a search warrant for
defendant's residence.
{¶ 3} During the course of the proceedings, defendant filed a motion to compel certain
information from the state, including a mirror image forensic copy of Peer Spectre and
any and all instruction/operation and/or training manuals associated with Peer Spectre,
and the software's source code. Defendant believed the information would reveal the
functionality and calibration of the software, and asserted it was material to his defense in
order to challenge the software's reliability and methodology.
{¶ 4} In opposition, the state maintained the requested discovery was not subject to
disclosure by the state pursuant to Crim.R. 16. Specifically, the state indicated that Peer
Spectre is maintained under the strict control and ownership of William Wiltse and is
restricted to use by law enforcement. Wiltse supplied an affidavit wherein he averred that
“without the source code, it is not possible to authenticate the function of the application
or validate its ‘calibration.’ “ Wiltse averred that the source code is not distributed.
Officers are trained how to validate the findings of Peer Spectre by “conducting similar
searches on the Gnutella network using freely available software applications.” The state
confirmed that it did not own or have in its possession a copy of the source code and
maintained that it could not produce what it did not have. The trial court denied the
motion to compel discovery from the state and instructed that defendant could contact the
software company regarding issues pertaining to programming.
{¶ 5} The trial court conducted a hearing on defendant's motion to suppress and the
motion was denied. Defendant then entered a plea of no contest and was found guilty.
The trial court imposed an aggregate prison sentence of 16 years comprised of the
following: eight year concurrent prison terms on 11 counts to be served consecutively
with eight year concurrent prison terms on 70 other counts; all concurrent with four and
one year prison terms on the remaining counts.5/
The Ohio Court of Appeals affirmed Mahan’s convictions on appeal,6/ and the Ohio
Supreme Court denied leave to appeal.7/ Mahan now petitions this Court for a writ of habeas
corpus.8/ Magistrate Judge Greg White recommended that the petition be denied.9/ Mahan

5/

State v. Mahan, 2011 WL 4600044 (Ohio Ct. App. Oct. 6, 2011).

6/

Id.

7/

State v. Mahan, 131 Ohio St. 3d 1458, 961 N.E.2d 1136 (Ohio 2012).
Doc. 1.

8/
9/

Doc. 14.

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Case No. 1:13-CV-00165
Gwin, J.
objected to the Magistrate Judge’s report and recommendation regarding grounds one and two.10/
II. Legal Standard
The Federal Magistrates Act requires a district court to “make a de novo determination of
those portions of [a Report and Recommendation] to which objection is made.”11/ The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits federal-court review of
a state prisoner’s petition for habeas corpus. A federal court may not grant relief on a claim
adjudicated on the merits in state court unless the state-court adjudication either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application or, clearly established federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.12/
The petitioner carries the burden of proof.13/
III. Analysis of Petitioner’s Grounds for Relief
A.

Ground One
In Ground One, Petitioner Mahan says his right to due process was violated when the trial

court denied his motion to compel discovery and failed to hold a hearing or issue findings of fact or
conclusions of law.14/ Mahan says that the discovery was essential to his defense and the denial
violated his right to a fair trial.15/

10/

Doc. 17.

11/

28 U.S.C. § 636(b)(1)(C).

12/

28 U.S.C. § 2254(d).

13/

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per

curiam)).
14/

Doc. 1 at 4.

15/

Id.

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Case No. 1:13-CV-00165
Gwin, J.
On habeas review, a federal court only reviews constitutional violations,16/ and “[t]here is no
general constitutional right to discovery in a criminal case[.]”17/ All the Constitution requires under
the due process clause is that the defendant not be deprived of a fundamentally fair trial.18/
Here, Mahan pled no contest to the charges. Respondent contends that Mahan waived his
right to challenge the denial of his motion to compel citing Tollet v. Henderson.19/ In Tollet, the
Supreme Court held that an unconditional guilty plea constitutes a waiver of all pre-plea nonjurisdictional constitutional deprivations.20/
However, the plea in this case was a conditional one. Mahan’s counsel asserted during the
plea hearing that Mahan was entering “a no contest plea, reserving the right to appeal the denial of
the suppression motion . . . .”21/ Further, under Ohio law, the entry of a no contest plea does not
waive a criminal defendant’s right to appeal a trial court’s ruling on a pre-trial motion.22/ The
Supreme Court held in Lefkowitz v. Newsome that “when state law permits a defendant to plea guilty
without forfeiting his right to judicial review of specified constitutional issues, the defendant is not
foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding.”23/ The
Court does not see why a plea of no contest should be any different. Thus, the Court finds that
Mahan has not waived review of his due process claim despite the fact that he entered a no contest

16/

Lorraine v. Coyle, 291 F.3d 416, 441 opinion corrected on denial of reh'g, 307 F.3d 459 (6th Cir. 2002).
Id. (internal citation and quotation marks omitted).

17/
18/

Id.

19/

Tollett v. Henderson, 411 U.S. 258 (1973).

20/

Id.

21/

Doc. 6-3 at 7.
See Ohio Crim. R. 12(I) (stating “[t]he plea of no contest does not preclude a defendant from asserting upon
appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress
evidence”).
22/

23/

Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).

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Case No. 1:13-CV-00165
Gwin, J.
plea.
However, the Court finds that Mahan’s due process rights were not violated. As stated
above, there is no general right to discovery in a criminal case. All that is required is that the
defendant not be deprived of a fundamentally fair trial.24/ A prosecutor’s failure to disclose evidence
favorable to the defense only constitutes a denial of due process in the Brady v. Maryland context
“where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”25/
However, Mahan never raised a Brady claim in state court, and therefore it is procedurally
defaulted.26/ But even if he did, it would likely not succeed because “[t]his rule is not violated—at
least to the point of warranting habeas relief—unless the state actually suppresses evidence in its
possession, and the suppressed evidence is material and favorable to the accused.”27/ Here the
government did not have the source code that the motion to compel asks for. “Due process does not
require the police to seek and find exculpatory evidence.”28/
Accordingly, the Court overrules Petitioner’s objections to Magistrate Judge Limbert’s
recommendation on Ground One.
B.

Ground Two: Denial of a Motion to Suppress
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground

24/

Lorraine, 291 F.3d at 441.

25/

Stadler v. Curtin, 682 F. Supp. 2d 807, 818 (E.D. Mich. 2010) aff'd sub nom. Stadler v. Berghuis, 483 F.
App'x 173 (6th Cir. 2012) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).
26/

Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000).

27/

Stadler, 682 F. Supp. 2d at 818.

28/

Id.

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Case No. 1:13-CV-00165
Gwin, J.
that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”29/ A
two-part inquiry resolves whether or not Stone v. Powell precludes federal habeas review of a Fourth
Amendment claim. “First, the ‘court must determine whether the state procedural mechanism, in the
abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must
determine whether presentation of the claim was in fact frustrated because of a failure of that
mechanism.’”30/
In the abstract, Ohio provides an adequate procedural mechanism for the litigation of Fourth
Amendment claims in the form of a pretrial motion to suppress under Ohio Rule of Criminal
Procedure 12 and a direct appeal as of right pursuant to Ohio Rules of Appellate Procedure 3 and
5. Therefore, under the first inquiry, Ohio's mechanism for the resolution of Fourth Amendment
claims is adequate.31/
Since Ohio provides an adequate procedural mechanism for raising suppression claim, the
Court must determine whether presentation of the Fourth Amendment argument was frustrated
because of a failure in the procedural mechanism to allow for the opportunity for full and fair
litigation of the suppression claim. Mahan says that “[b]y upholding the denial of the motion to
compel and then shifting the burden to the Petitioner to demonstrate that he was not sharing his files,
the appellate court frustrated Petitioner’s ability to present his claim.”32/
However, Petitioner Mahan was able to present his Fourth Amendment claims to the Ohio
courts and that these claims were carefully considered before being rejected at the trial level and on

29/

Stone v. Powell, 428 U.S. 465, 494 (1976) (internal citation omitted).

30/

Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir.2000) (quoting Riley v. Gray, 674 F.2d 522, 526 (6th

Cir.1982)).
31/

Riley, 674 F.2d at 526.

32/

Doc. 17 at 8-9.

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Case No. 1:13-CV-00165
Gwin, J.
appeal.
Before his trial, Mahan’s counsel filed a motion to suppress, arguing the search warrant was
not supported by probable cause because the affidavit relied on failed to provide sufficient
information as to the functioning of the Peer Spectre software.33/ The trial court then held a
suppression hearing, where Mahan’s counsel was able to cross-examine the state’s witness, Detective
Rick McGinnis, on the extent of his knowledge on the functioning of the Peer Spectre software.34/
The trial court then explained on the record the basis for denying the motion to suppress.35/
Mahan then appealed the decision to the Ohio Court of Appeals, which carefully considered
and rejected his Fourth Amendment claim.36/ Specifically, the appellate court rejected Defendant’s
assertion that the state’s witness’s inability to testify as to the specific functioning of the Peer
Specture wrongly placed the burden of proof on him and rejected Defendant’s claim that McGinnis’s
affidavit could not be based on information he obtained through Peer Spectre in the absence of
testimony regarding the its technical functioning, the basis for Petitioner’s motion to compel.37/ The
Supreme Court of Ohio later denied Mahan’s leave to appeal.38/
In light of these full and fair proceedings in the Ohio courts, Mahan has not shown a failure
of Ohio's procedural mechanism or that such a failure prevented him from litigating his Fourth
Amendment claim. Accordingly, Mahan’s Fourth Amendment claim is not cognizable on habeas
review under the doctrine of Stone v. Powell, and the Court overrules Petitioner’s objection on this

33/

Doc. 7-7.

34/

Doc. 6-3 at 76-124.

35/

Id. at 175-197.

36/

State v. Mahan, 2011 WL 4600044 (Ohio Ct. App. Oct. 6, 2011).

37/

Id. at *4-5.

38/

State v. Mahan, 131 Ohio St. 3d 1458, 961 N.E.2d 1136 (Ohio 2012).

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Case No. 1:13-CV-00165
Gwin, J.
ground.
V. Conclusion
For the foregoing reasons, the Court OVERRULES Petitioner’s objections, ADOPTS the
recommendations of Magistrate Greg White as amended by this opinion, and DISMISSES WITH
PREJUDICE Mahan’s petition. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal from this decision could not be taken in good faith, and no basis exists upon which to issue
a certificate of appealability.39/
IT IS SO ORDERED

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: March 20, 2014

39/

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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