Schwarzman v. Miller

Filing 15

Order and Decision Adopting the Report and Recommendation of the Magistrate Judge (Doc. # 13 ). The petition is dismissed. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 7/27/17. (K,C)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK SCHWARZMAN,
Petitioner,
v.
MICHELLE MILLER, Warden,
Respondent

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Case No. 1:15-CV-885
JUDGE JOHN R. ADAMS
ORDER AND DECISION

This matter appears before the Court on Petitioner Mark Schwarzman’s objections to the
magistrate judge’s Report and Recommendation (“R & R”) recommending dismissal of
Petitioner’s habeas corpus action. Doc. 13, 14. For the following reasons, Petitioner’s objections
are OVERRULED and the Court ADOPTS the magistrate judge’s R & R and DISMISSES the
underlying habeas petition.
The R & R adequately states the factual and procedural background of this case.
Petitioner has demonstrated no error in that background, so the Court will not reiterate those
sections herein.
I.

STANDARD OF REVIEW
If a party files written objections to a magistrate judge’s report and recommendation, a

judge must perform a de novo review of “those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept,
reject, or modify, in whole or in part, the findings and recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).

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II.

LAW AND ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this

Court’s review of the instant case. See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). The
relevant portion of the habeas statute provides:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgement of a state court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(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.
28 U.S.C. § 2254(d)(1) and (2). However, if a claim has not been adjudicated on the merits in a
state court proceeding, “and has not been procedurally defaulted, we look at the claim de novo
rather than through the deferential lens of AEDPA. Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir.
2005).
In order to obtain federal habeas corpus relief, a petition must establish that the state
court’s decision “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility of fairminded disagreement. Bobby v.
Dixon, 132 S. Ct. 26, 27 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
This bar is “difficult to meet” because “habeas corpus is a ‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error correction through
appeal.” Richter, 131 S. Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 322 n.5 (1979)
(Stevens, J., concurring in judgement)). In short, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision. Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

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(2004)). The petitioner carries the burden of proof. Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).
A. Ground One: Denial of Continuance
In the R & R, the magistrate judge found that Petitioner’s first claim for relief was
procedurally defaulted. Petitioner objects to this finding, and asserts that the procedural default
should be excused because he would suffer from actual prejudice as a result of the alleged
violations of his Sixth and Fourteenth Amendment rights. Petitioner also asserts that procedural
default should be excused due to a showing of actual innocence.
“Out of respect for finality, comity, and the orderly administration of justice,” a federal
court will not consider the merits of a procedurally defaulted claim absent a showing of cause
and prejudice to excuse the default or a demonstration of actual innocence. Dretke v. Haley, 541
U.S. 386, 388 (2004). To demonstrate actual prejudice, a petitioner must demonstrate not merely
that the errors at trial created a possibility of prejudice, but that the errors worked to the
petitioner’s actual and substantial disadvantage. United States v. Frady, 456 U.S. 152, 170
(1982). In Petitioner’s objection, he fails to adequately demonstrate that he suffered an actual and
substantial disadvantage as a result of the denial of the continuance. Petitioner’s conclusory
statements that he was prejudiced by the denial and the alleged lack of preparedness by his trial
attorney are insufficient to meet the standard. Further, Petitioner’s recitation of potential
witnesses who may have testified if the continuance was granted is also insufficient.
To demonstrate actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner has failed to meet that standard here.

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Instead of introducing scientific evidence, Petitioner only asserts that he planned to introduce
testimony by a medical expert who could testify that Petitioner has genital herpes (“HSV-2”) that
could have been transmitted to the victim. Further, the evidence presented at trial alleged that
Petitioner wore a condom while committing each offense. Therefore, even if the scientific
evidence was presented, it would be inconclusive and not exculpatory. Because Petitioner has
not introduced exculpatory scientific evidence, his claim that the procedural default should be
excused must fail.
B. Grounds Two and Three: Sufficiency of the Indictment; Sufficiency of the
Evidence
In the R & R, the magistrate judge found that Petitioner’s second claim for relief was
procedurally defaulted, and that Petitioner’s third claim for relief was without merit. Petitioner
objects to these findings and asserts that the procedural default should be excused because the
alleged insufficiency of both the indictment and the evidence was a violation of his due process
rights under the Fourteenth Amendment. However, Petitioner fails to specify whether the
procedural default should be excused as a result of actual prejudice or actual innocence and fails
to adequately demonstrate either. Therefore, Petitioner’s objection as to grounds two and three
must fail.
C. Ground Four: Jury verdict is against the manifest weight of the evidence
In the R & R, the magistrate judge found that Petitioner’s fourth claim for relief was not
cognizable. Petitioner objects to this finding and asserts that the procedural default should be
excused on the grounds of actual innocence. However, Petitioner fails to provide any new
reliable evidence in the form of exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence. Petitioner only asserts there was insufficient evidence and
contradictory testimony at trial. This is insufficient to meet the actual innocence standard; and
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therefore, Petitioner’s claim that the procedural default on ground four should be excused must
fail.
C. Grounds Five, Six, and Seven: Contents in the victim’s diary should have been
considered hearsay evidence; state’s impeached witnesses testimony was
damaging to his defense even though the jury was informed to disregard it; the
state prejudiced Petitioner by not allowing his witness to testify fully in his
defense.
In the R & R, the magistrate judge found that Petitioner’s fifth, sixth, and seventh claims
for relief were procedurally defaulted and not cognizable. Petitioner objects to this finding and
asserts that the procedural default should be excused because he would suffer from actual
prejudice. However, Petitioner failed to demonstrate that the alleged errors worked to his actual
and substantial disadvantage.
Moreover, Petitioner fails to address the issue of cognizability for all three grounds. The
grounds allege a misapplication of the Ohio Rules of Evidence, and “it is not the province of a
federal habeas court to reexamine state court determinations on state-law questions.” Markham
v. Smith, 10 F. App’x 323, 325 (6th Cir. 2001). Because Petitioner fails to address the issue of
cognizability, his objections are without merit.
E. Ground Eight: Sentences are contrary to law and disproportionate to Petitioner’s
conduct
In the R & R, the magistrate judge found that Petitioner’s eighth claim for relief was
procedurally defaulted. Petitioner objects to this finding and asserts that the procedural default
should be excused because this ground for relief is cognizable. However, Petitioner fails to
address whether the procedural default should be excused due to actual prejudice or actual
innocence and fails to adequately support either. Therefore, Petitioner’s objections is without
merit.

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F. Ground Nine: Petitioner was prejudiced by ineffective assistance of appellate and
trial counsel
In the R & R, the magistrate judge found that Petitioner’s ninth claim for relief was
procedurally defaulted. Petitioner objects to this finding and asserts that the procedural default
should be excused because he would suffer from actual prejudice as a result of his counsel’s
alleged ineffective assistance. However, Petitioner failed to argue cause and prejudice to
overcome the procedural default. Therefore, Petitioner’s objection is without merit.
G. Ground Ten: The trial court committed a reversible error when it denied
Petitioner’s motion for a medical technician to determine the transmittal of an
infectious disease
In the R &R, the magistrate judge found that Petitioner’s tenth claim for relief was
procedurally defaulted. Petitioner objects to this finding and asserts that the procedural default
should be excused on the grounds of actual innocence. However, Petitioner fails to introduce any
new reliable evidence in the form of exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence. Petitioner only asserts generally that a medical technician
could have demonstrate his actual innocence, which is insufficient to overcome procedural
default. Therefore, Petitioner’s objection is without merit.
H. Grounds Eleven and Twelve: Petitioner has a right to equal protection of the
laws; violations of constitutional rights, statutes, evidence rules, and criminal
procedures prevented Petitioner from due process of law
In the R & R, the magistrate judge found that Petitioner’s eleventh and twelfth claims for
relief were procedurally defaulted and not cognizable. Petitioner objects to this finding and
asserts that the procedural default should be excused on the grounds of actual innocence.
However, Petitioner fails to introduce any new reliable evidence in the form of exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence. Petitioner
only supports his claim with conclusory statements that his rights to equal protection and due
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process were violated. This is insufficient to meet the actual innocence standard and overcome
procedural default. Therefore, Petitioner’s objection must fail.
III.

CONCLUSION
For the reasons set forth herein, the Court finds no merit to Petitioner’s objections, and

therefore, those objections are OVERRULED. The Court ADOPTS the R & R. Doc. 13. The
Petition for Habeas Corpus is DISMISSED.
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 that there is no basis upon which to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b).

IT IS SO ORDERED.
Date: July 27, 2017

/s/ John R. Adams
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JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT

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