Jones v. Moore

Filing 15

Order: The petitioner's objection to the Magistrate Judge's Report & Recommendation be overruled, the Report & Recommendation be adopted as the order of this court, and the petition for a writ of habeas corpus be, and the same hereb y is, denied.I decline to issue a certificate of appealability, as jurists of reason could not disagree with the Magistrate Judge's findings and conclusions or this court's overruling of the petitioner's objection. (re 1 10 ). Judge James G. Carr on 1/18/17. (Attachments: # 1 R&R)(C,D)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHRISTOPHER F. JONES,
Petitioner,
v.
ERNIE MOORE, Warden,
Respondent.

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Case No. 1:15CV1927

JUDGE JAMES G. CARR
Magistrate Judge George J. Limbert

REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

This matter is before the undersigned on a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, executed, pro se, by Petitioner Christopher Jones (“Petitioner”) on September
9, 2015 and filed with the Court on September 18, 2015. ECF Dkt. #1. Petitioner seeks relief
from his convictions and sentence for rape and importuning entered by the Lorain County, Ohio,
Court of Common Pleas. Id. On March 8, 2016, Respondent, Ernie Moore (“Respondent”),
Warden of the Lebanon Correctional Institution in Lebanon, Ohio, where Petitioner was housed
at the time he filed his petition, filed a return of writ.1 ECF Dkt. #6. Petitioner filed a traverse to
the Return of Writ on April 19, 2016. ECF Dkt. #8.
For the following reasons, the undersigned RECOMMENDS that the Court DISMISS
Petitioner’s federal habeas corpus petition in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

The Ninth District Court of Appeals of Ohio set forth the following facts of this case on

1

Petitioner is now incarcerated at the Ross Correctional Institution in Chillicothe, Ohio,
of which Mark Hooks is Warden. See ECF Dkt. #9.

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direct appeal. These binding factual findings “shall be presumed to be correct,” and Petitioner
has “the burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360–361 (6th Cir. 1998), cert. denied,
119 S.Ct. 2403 (1999).
{¶ 2} In August 2010, Mr. Jones came to stay with L.J., L.J .'s mother (“Mother”)
and L.J.'s three-year-old brother. L.J. was 12 years old at the time. Mother's
cousin and his girlfriend Tonya Portis were also staying with them. One evening,
Mr. Jones was in the basement bedroom with Mother's cousin, Ms. Portis, and
L.J. L.J. was lying down on the bed, and Mr. Jones sat on the bed. According to
L.J., the lights were turned off, and Mr. Jones moved her shorts to the side before
inserting his penis into her vagina. Mr. Jones withdrew from L.J. when Mother
came downstairs. During a power outage a few days later, Mr. Jones had L.J.
perform fellatio on him in the basement.
{¶ 3} About ten days after the first incident, L.J. told Mother about what had
happened between her and Mr. Jones. However, Mother did not file a formal
report with the police because the police told her that, without evidence, it would
be L.J.'s word against Mr. Jones' word. In November 2010, Mother discovered
L.J. chatting with Mr. Jones through Facebook. During the chat session, Mr.
Jones had told L.J. to delete all of the messages between them but later used
sexually explicit language referring to both past and possible future sexual
conduct between himself and L.J. Mother took L.J.'s computer away and called
the police.
ECF Dkt. #6-1 at 95-96, 103; State v. Jones, No. 12CA010262, 2014-Ohio-2228, 2014 WL
2195236, at *1 (Ohio App. 9th Dist. May 27, 2014).
B.

Procedural History
1.

State Trial Court

On May 12, 2011, the Lorain County Grand Jury indicted Petitioner on one count of
rape in violation of Ohio Rev. Code § 2907.02(A)(1)(b) and one count of importuning in
violation of Ohio Rev. Code § 2907.07(A). ECF Dkt. #6-1 at 4-5. Petitioner entered a plea of
not guilty to all charges. Id. at 6.

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Petitioner’s jury trial commenced on June 11, 2012. ECF Dkt. #6-1 at 3, 11. On June 14,
2012, the jury found Petitioner guilty of both charges. ECF Dkt. #6-1 at 11.
On June 28, 2012, Petitioner filed a motion for a new trial and a motion to continue his
sentencing date. ECF Dkt. #6-1 at 12-22. His main assertion was that he was denied due
process of law and a fair trial when the trial court allegedly “refused to allow Dr. Ramiz Masri to
provide testimony in regard to his medical findings based upon his personal examination of the
complaining witness,” which he asserted “became relevant following the contradictory testimony
of the complaining witness and also, by failing to allow Dr. Masri’s records to be admitted.” Id.
at 16. Dr. Masri was the physician of L.J’s mother. Id. at 17. The court granted the motion to
continue the sentencing and after conducting a hearing on the matter, the trial court denied the
motion for a new trial. Id. at 23-27.
On July 17, 2012, the trial court sentenced Petitioner to ten years to life in prison on the
rape conviction and thirty-six months in prison on importuning, with the sentenced to be served
consecutively. ECF Dkt. #6-1 at 28-29. He also classified Petitioner as a Tier III Sex Offender.
Id. at 29.
2.

Direct Appeal

Petitioner, through newly appointed counsel, filed a timely notice of appeal. ECF Dkt.
#6-1 at 33. In his appellate brief, Petitioner asserted the following assignments of error:
1.

The trial court deprived Appellant of his right to present a defense in violation of
the Sixth and Fourteenth Amendments to the United States Constitution, and
Article I, Section 10 of the Ohio State Constitution.

2.

Appellant was denied effective assistance of counsel in violation of his rights
under the Sixth and Fourteenth Amendments to the United States Constitution,
and Article I, Section 10 of the Ohio State Constitution.

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3.

The guilty verdicts are against the manifest weight of the evidence in violation of
Appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution, and Article I, Section 10 of the Ohio State
Constitution.

Id. at 39. The state appellate court affirmed Petitioner’s convictions and sentences on May 27,
2014. Jones, 2014 WL 2195236, at *1; ECF Dkt. #6-1 at 95.
On June 30, 2014, Petitioner, pro se, filed a timely notice of appeal in the Ohio Supreme
Court. ECF Dkt. #6-1 at 109-10. In his memorandum in support of jurisdiction, he asserted the
following propositions of law:
1.

The Trial Court deprived Jones of his right to present a defense in violation of the
Sixth and Fourteenth amendments to the United States Constitution, and Article
[I], Section 10 of the Ohio Constitution.

2.

Jones was denied Effective Assistance of Counsel in violation of his rights under
the Sixth and Fourteenth Amendments to the United States Constitution.

Id. at 117-118. The Ohio Supreme Court declined to accept jurisdiction on October 8, 2014. Id.
at 158.
3.

Motion for Delayed Reconsideration

Meanwhile, on August 11, 2014, Petitioner filed a pro se motion for delayed
reconsideration in the Ohio appellate court of that court’s May 27, 2014 decision overruling his
third assignment of error. ECF Dkt. #6-4 at 159-210. On October 23, 2014, that court denied
the motion for reconsideration as untimely, lacking in extraordinary circumstances to justify the
untimely filing, and otherwise lacking an obvious error in the original decision. Id. at 227-28.
4.

Post-Conviction Proceedings

On October 28, 2014, Petitioner, pro se, filed a post-conviction petition in the state trial
court, also requesting appointment of an expert and an evidentiary hearing. ECF Dkt. #6-1 at

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229-37. He asserted the following two grounds for relief:
1.

There were [sic] no investigation or a subpoena being issue[d] for a computer or
internet bill under my name to prove that I sent any messages. The only reason
why I was convicted is because there were Facebook chats under my password
and email.

2.

African Americans were biased of being on a jury because the complaining
witness that made the claim of rape is half caucasion [sic] and underaged.

Id. at 232, 234. On November 14, 2014, the trial court denied the petition as untimely and
failing to meet the burden of overcoming the statutory requirements that would allow the petition
to be filed beyond the 180-day time requirement. Id. at 238.
5.

Rule 26(B) Application to Reopen Direct Appeal

On August 12, 2015, Petitioner filed a pro se application in the Ohio appellate court to
reopen his direct appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure. ECF
Dkt. #6-1 at 239-56. In his application, he claimed that his appellate counsel was ineffective for
failing to raise on direct appeal that there was insufficient evidence to support his convictions of
both rape and importuning. Id. at 242. On September 24, 2015, the Ohio court of appeals denied
his application as untimely and lacking in good cause to excuse the untimeliness. Id. at 257-58.
II.

FEDERAL HABEAS CORPUS PETITION
Petitioner, pro se, filed a § 2254 federal habeas corpus petition on September 18, 2015.

ECF Dkt. #1. He asserts the following two grounds for relief:
1.

The trial court deprived Appellant of his right to present a defense in violation of
the Sixth and Fourteenth [A]mendments to the United States Constitution, and
Article One, Section 10 of the Ohio Constitution.
Supporting Facts: The victim in my case, L.J., was taken by her
mother to be examined by Dr. Ramiz Masri of the EMH Regional
System. Dr. Ramiz performed a pelvic examination on L.J. and
prepared a report regarding his examination which was forwarded
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to the Elyria Police Department, the Lorain County Prosecutor’s
Office, and was disclosed to the defense in discovery. Dr. Ramiz
concluded that L.J.’s hymen was intact, but a “little loose.” (Tr. at
197) During cross-examination, L.J. was questioned about her visit
to Dr. Masri, and was specifically asked about the state of her
hymen. L.J. testified that she thought it was “torn.” (Tr. at 174-75)
She also testified that [Petitioner’s] penis went “all the way” into
her vagina. (Tr. at 171) I sought to have my defense counsel call
Dr. Ramiz to testify to rebut L.J.’s testimony that her hymen was
“torn,” and to show that the state of her hymen was inconsistent
with her claim that my penis went “all the way” into her vagina.
However, the trial court refused to allow Dr. Ramiz to testify
regarding his findings, and refused to allow my counsel to
introduce his report through Detective Dietsche and Ms. Mudd
(L.J.’s mother).
2.

I was denied effective assistance of counsel in violation of my rights under the
Sixth and Fourteenth Amendments to the United States Constitution.
Supporting Facts: My defense counsel failed to subpoena Dr.
[Ramiz] Masri because he thought the state was going to call him
as a witness. However, the state did not do so. As a result, Dr.
Masri did not appear, and my counsel did not request a
continuance to secure his attendance. Dr. Masri’s testimony was
vital to impeach L.J.’s testimony, and without it the jury was left
with mistaken information.

Id. at 3-4.
On March 8, 2016, Respondent filed an answer/return of writ. ECF Dkt. #6. On April
19, 2016, Petitioner filed a traverse. ECF Dkt. #8.
III.

PROCEDURAL BARRIERS TO REVIEW
A petitioner must overcome several procedural barriers before a court will review the

merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v.
United States, “Procedural barriers, such as statutes of limitations and rules concerning
procedural default and exhaustion of remedies, operate to limit access to review on the merits of
a constitutional claim.” 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S.
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725, 731 (1993).
A.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of
limitations period for filing a petition for a writ of federal habeas corpus is one year, and it
begins to run on the date judgment became final. 28 U.S.C. § 2244(d)(1). Respondent does not
challenge the timeliness of Petitioner’s habeas petition.
B.

Exhaustion of State Remedies

As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion
requirement is satisfied “once the federal claim has been fairly presented to the state courts.”
Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must
present it “to the state courts under the same theory in which it is later presented in federal
court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228
F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a “fair trial” and “due
process” do not “fairly present” claims that specific constitutional rights were violated.
McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688–89 (2nd Cir. 1984)).
In order to have fairly presented the substance of each of his federal constitutional claims
to the state courts, the petitioner must have given the highest court in the state in which he was
convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878,
881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim
to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying

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upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of
constitutional law or in terms sufficiently particular to allege the denial of a specific
constitutional right; or (4) alleging facts that are obviously within the mainstream of
constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (quoting Newton v.
Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th
Cir. 1993), cert. denied, 509 U.S. 907 (1993). In Harris v. Lafler, the Sixth Circuit laid out the
options that a district court may pursue in dealing with a petition that contains unexhausted
claims:
When faced with this predicament in the past, we have vacated the order granting
the writ and remanded the case to the district court so that it could do one of four
things: (1) dismiss the mixed petition in its entirety, Rhines, 544 U.S. at 274, 125
S.Ct. 1528; (2) stay the petition and hold it in abeyance while the petitioner
returns to state court to raise his unexhausted claims, id. at 275, 125 S.Ct. 1528;
(3) permit the petitioner to dismiss the unexhausted claims and proceed with the
exhausted claims, id. at 278, 125 S.Ct. 1528; or (4) ignore the exhaustion
requirement altogether and deny the petition on the merits if none of the
petitioner's claims has any merit, 28 U.S.C. § 2254(b)(2).
553 F.3d 1028, 1031–32 (6th Cir. 2009). The Supreme Court has held that “the petitioner has the
burden ... of showing that other available remedies have been exhausted or that circumstances of
peculiar urgency exist.” Darr v. Burford, 339 U.S. 200, 218–19 (1950), overruled in part on
other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be allowed to present
claims never before presented in the state courts unless he can show cause to excuse his failure to
present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or
that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501
U.S. 722, 748 (1991).

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C.

Procedural Default

The procedural default doctrine serves to bar review of federal claims that a state court
has declined to address when a petitioner does not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, “the state judgment rests on
independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730. For purposes of
procedural default, the state ruling with which the federal court is concerned is the “last
explained state court judgment.” Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (emphasis removed). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district
court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d
264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a
petitioner's claim, federal courts must rely upon the presumption that there are no independent
and adequate state grounds for a state court decision absent a clear statement to the contrary.
Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit established a four-pronged analysis to
determine whether a claim has been procedurally defaulted under Maupin v. Smith, 785 F.2d 135,
138 (6th Cir. 1986). Under the first prong of Maupin, there must be a firmly established state
procedural rule applicable to the petitioner's claim and the petitioner must not have complied
with the rule. Ford v. Georgia, 498 U.S. 411, 423–24 (1991). Under the second prong, the last
state court to which the petitioner sought review must have invoked the procedural rule as a basis
for its decision to reject review of the prisoner's federal claims. Coleman, 501 U.S. at 729–30;
Richey v. Mitchell, 395 F.3d 660 at 678 (2005) (holding that “a lapsed claim survives if the state

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court overlooked the default and decided the claim anyway”); Baze v. Parker, 371 F.3d 310, 320
(6th Cir. 2004) (holding that if a state court does not expressly rely on a procedural deficiency,
then a federal court may conduct habeas review); Gall v. Parker, 231 F.3d 265, 310 (6th Cir.
2000) (holding that even if the issue is not raised below, where state supreme court clearly
addresses the claim, no procedural bar arises). Under the third prong, a state judgment invoking
the procedural bar must rest on a state law ground that is both independent of the merits of the
federal claim and is an adequate basis for the state court's decision. Munson v. Kapture, 384 F.3d
at 313–14. Under the fourth prong, a claim that is procedurally defaulted in state court will not be
reviewable in federal habeas corpus unless the petitioner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or that failure to consider
the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751. “Cause”
is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the alleged
constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied,
490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing
court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review federal claims:
that were evaluated on the merits by a state court. Claims that were not so
evaluated, either because they were never presented to the state courts (i.e.,
exhausted) or because they were not properly presented to the state courts (i.e.,
were procedurally defaulted), are generally not cognizable on federal habeas
review.
Bonnell v. Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004).
IV.

STANDARD OF REVIEW
If Petitioner's claims overcome the procedural barriers of time limitation, exhaustion, and

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procedural default, the AEDPA governs this Court's review of the instant case because Petitioner
filed the instant § 2254 federal habeas corpus petition well after the AEDPA's effective date of
April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112
(1998). Under § 2254, a state prisoner is entitled to relief if he is held in custody in violation of
the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).
The AEDPA sets forth the standard of review for the merits of a petition for the writ of
habeas corpus. The AEDPA provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment 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 of, 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) (emphasis added). In Williams v. Taylor, the Supreme Court clarified the
language of 28 U.S.C. § 2254(d) and stated:
Under the “contrary to” clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.
529 U.S. 362, 412–13 (2000). Furthermore, the Supreme Court declared that “a federal habeas
court making the ‘unreasonable application’ inquiry should ask whether the state court's
application of clearly established federal law was objectively unreasonable.” Id. Elaborating on
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the term “objectively unreasonable,” the Court stated that “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.” Id.; see also Bailey v. Mitchell, 271 F.3d 652,
655–56 (6th Cir. 2001).
The Sixth Circuit offers the following guidelines for applying the AEDPA limitations:
A.

Decisions of lower federal courts may not be considered.

B.

Only the holdings of the Supreme Court, rather than its dicta, may be
considered.

C.

The state court decision may be overturned only if:
1.

2.

the state-court decision ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme Court]
precedent’; or

3.

‘the state court identifies the correct governing legal rule from [the
Supreme] Court's cases but unreasonably applies it to the facts of
the particular state prisoner's case’; or

4.

D.

It ‘[applies] a rule that contradicts the governing law set forth in
[Supreme Court of the United States] cases,’ [the Supreme Court
precedent must exist at the time of petitioner's direct appeal]; or

the state court ‘either unreasonably extends a legal principle from
[a Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply.’

Throughout this analysis the federal court may not merely apply its own
views of what the law should be. Rather, to be overturned, a state court's
application of Supreme Court of the United States precedent must also be
objectively unreasonable. That is to say, that ‘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.’ ‘An unreasonable application of
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federal law is different from an incorrect or erroneous application of
federal law.’
E.

Findings of fact of the state courts are presumed to be correct. ‘The
applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.’

Bailey, 271 F.3d at 655–56 (6th Cir. 2001) (internal citations omitted).
Finally, a reviewing federal court is bound by the presumption of correctness, under
which the federal court is obligated to “accept a state court's interpretation of the state's statutes
and rules of practice.” Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied, 469
U.S. 1221 (1985); see also Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The presumption
of correctness is set forth in 28 U.S.C. § 2254(e), which provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct.
28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to
mixed questions of law and fact. Levine, 986 F.2d at 1514. The presumption also applies to
“implicit findings of fact, logically deduced because of the trial court's ability to adjudge the
witnesses' demeanor and credibility.” McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996),
cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore
the pronouncement of a state appellate court on matters of law. See Central States, Southeast &
Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has
the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).

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V.

ANALYSIS
A.

Petitioner’s First Ground for Relief: Right to Present Defense Violation

In Petitioner’s first ground for relief, he claims that the trial court deprived him of his
right to present a defense when it ruled that Dr. Ramiz Masri, the gynecologist of the victim’s
mother, could not testify about his examination of the victim and other witnesses could not testify
about Dr. Masri’s findings. ECF Dkt. #1 at 3-4. He alleges that Dr. Masri’s testimony
concerning L.J.’s hymen being intact but a “little loose” would have rebutted L.J.’s testimony
that her hymen was torn and contradicted L.J.’s testimony that Petitioner’s penis went “all the
way” into her vagina. However, the trial court refused to allow Dr. Ramiz to testify regarding his
examination. Id.
Petitioner raised this claim in state courts. The state appellate court, the last state court to
address the claim, opined:
{¶ 34} In Mr. Jones's first assignment of error, he argues that the court did not
allow him to present a defense because a witness that Mr. Jones believed would
have helped his case did not testify. We disagree.
{¶ 35} Mother's gynecologist, Dr. Ramiz Masri, examined L.J. in August 2010.
Mr. Jones sought to call Dr. Masri to testify. The court stated at various points
during the trial that: (1) Dr. Masri's testimony would be barred by the rape shield
statute; (2) Dr. Masri's testimony would have been more prejudicial than probative
under Evid.R. 403:(3) Dr. Masri's testimony would not have been proper evidence
with which to impeach L.J. under Evid.R. 607; (4) Dr. Masri's testimony would
have confused the jury as to the legal definition of penetration, and (5) Dr. Masri's
report did not list an opinion or qualifications as required by Crim.R. 16(K).
Nevertheless, the court told Mr. Jones that he could bring Dr. Masri to court so
that the court could question Dr. Masri through voir dire. However, Mr. Jones
never presented Dr. Masri to the court for voir dire, and Mr. Jones never requested
a continuance to obtain Dr. Masri's presence for voir dire. As a result, the court
never definitively ruled on whether Dr. Masri could testify. Thus, contrary to the
argument in Mr. Jones's merit brief, the trial court did not ultimately prevent Mr.
Jones from calling Dr. Masri as a witness and, therefore, Mr. Jones' argument that
the trial court prevented him from presenting a defense is without merit.
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Jones, 2014 WL 2195236, at *6.
Petitioner argues that the trial court’s rulings excluding Dr. Masri from testifying and his
counsel from introducing Dr. Masri’s report regarding the victim through other witnesses
“violated [his] federal constitutional right to present a defense, as all of the trial court’s
justifications for excluding the testimony constituted misapplication of state law.” ECF Dkt. #8
at 7. He refutes each of the five state-law bases for the court’s rulings, including Ohio’s “rape
shield” law and Ohio evidentiary rules regarding impeachment, relevance, and expert testimony.
Id. at 7-12.
Respondent counters first that this claim alleges only errors of state law and therefore is
not cognizable on federal habeas review. ECF Dkt. #6 at 15-17. He further asserts that the basis
of the state appellate court’s decision – that the trial court did not exclude the testimony at issue –
is not an unreasonable determination of fact under AEDPA’s § 2254(d)(2). Id. at 18-19.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, . . . or
in the Compulsory Process or Confrontation clauses of the Sixth Amendment, . . . the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete
defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)) (internal citations omitted: Chambers v. Mississippi, 410 U.S. 284, 294
(1973) (defendant’s right to due process in a criminal trial is, “in essence, the right to a fair
opportunity to defend against the State’s accusations”); Washington v. Texas, 388 U.S. 14, 23
(1967) (finding state statute prohibiting principals, accomplices, or accessories in same crime
from testifying for each other violated defendant’s Compulsory Process Clause right to
“compulsory process for obtaining witnesses in his favor”); and Davis v. Alaska, 415 U.S. 308,
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318 (1974) (finding court’s refusal to allow defendant to cross-examine key prosecution
witnesses violated defendant’s Confrontation Clause right “to be confronted with the witnesses
against him” despite state policy protecting anonymity of juvenile offenders)). Thus, while it is
generally true that “alleged errors in evidentiary rulings by state courts are not cognizable in
federal habeas review,” Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012), an accused
has the constitutional right to present testimony at trial that is “relevant,” “material,” and “vital to
the defense.” Washington v. Texas, 388 U.S. at 23.
Even so, “[t]he accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v.
Illinois, 484 U.S. 400, 410 (1988). “A defendant's right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S.
303, 308 (1988). The exclusion of evidence in a criminal trial “abridge[s] an accused’s right to
present a defense” only where the exclusion is “‘arbitrary’ or ‘disproportionate to the purpose[ ]
[it is] designed to serve.’” Id. (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). The Supreme
Court has “found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate
only where it has infringed upon a weighty interest of the accused.” Id. (citing Rock, 483 U.S. at
58, Chambers, 410 U.S. at 302, and Washington v. Texas, 388 U.S. at 22–23).
Here, to the extent that Petitioner alleges errors of state law – such as Ohio’s “rape
shield” statute or evidentiary rules and case law – the undersigned recommends that the Court
find that his claim is not cognizable. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“It is
not the province of a federal habeas court to reexamine state-court determinations on state-law
questions.”) (citing 28 U.S.C. § 2241); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (“We have

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long recognized that a ‘mere error of state law’ is not a denial of due process.”) (citation
omitted)). The only issue, therefore, is whether the challenged rulings were “unconstitutionally
arbitrary or disproportionate” in that they “infringed upon a weighty interest of [Petitioner].”
Scheffer, 523 U.S. at 308.
The undersigned recommends that the Court find that the trial court’s ruling was not
“unconstitutionally arbitrary or disproportionate.” First, the state court correctly concluded that
because Dr. Masri never appeared in court, the trial court had no opportunity to and did not
definitively rule that he could not testify. The court warned defense counsel that if Dr. Masri
were to testify as counsel described and as the physician’s notes suggested, the court most likely
would limit his testimony, if not exclude it altogether. See, e.g., ECF Dkt. #6-4 at 20-22. But the
court repeatedly advised defense counsel to present Dr. Masri in court so that a voir dire could be
conducted in order to determine the admissibility of his testimony. See, e.g., ECF Dkt. #6-3 at
12-14, 153-54; ECF Dkt. #6-4 at 12-13. For example, the judge told defense counsel:
Well then we’re going to have to wait until he gets here and find out [his opinion]
and then you can proffer his opinion because right now I cannot just accept that
that’s what you say he’s going to say. You don’t have a report to demonstrate that
or a witness here – .
ECF Dkt. #6-4 at 12-13. Without an appearance by Dr. Masri or a court ruling, Petitioner cannot
demonstrate that the trial court erred at all, much less committed an error so egregious as to
violate his federal due process rights or right to present a defense.
Moreover, even if the trial court’s statements on the issue of Dr. Masri’s potential
testimony could be construed as a ruling, it did not “infringe[] upon a weighty interest of
[Petitioner].” Scheffer, 523 U.S. at 308. The judge summarized his position on the matter for
defense counsel after counsel informed him that the subpoena that he issued compelling Dr.
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Masri to testify was not served, as follows:
I can’t stop you from trying to [reissue the subpoena]. I will state again on
the record why I am telling you that his testimony would be very limited if
allowed at all on the issue that you are talking about.
Let me, for the record, I believe that introducing the evidence of his
examination note which says the hymen was loose, and that, from that conclusion
Mr. Prusak wishes to use that to impeach the credibility of the 14-year-old witness
who was 12 at the time who testified on cross-examination that the defendant’s
penis was, when asked how far did he go in – how far did he go, not how far did
he go in, it was just how far did he go, and she said, “All the way,” going all the
way is not clear to me that that is something that indicates that the penis was
inserted a specific distance. Going all the way can mean having intercourse. The
definition required for rape involves penetration, however slight.
About five or six lines down from the first question, you, Mr. Prusak
asked[,] How long was he in there?
Answer:
“Not long.
He was in the whole way for a few seconds?
Answer:
I don’t know if he was the whole way in; I never had sex before.”
So the, the potential probative value of trying to impeach her with this
report is substantially outweighed by the danger of confusion and unfair prejudice
because the jury could think that going in all the way, inserting the penis all the
way is a requirement of rape. It is not, I’m not going to place that information, the
potential for confusion in front of the jury in light of the very limited value of
impeachment that that would provide.
Now, if there is an issue that a loose hymen is evidence that there was
absolutely no penetration, therefore, no rape occurred, I have not seen an expert
report that offers that opinion to allow that to come in, that information in that
medical record to come in, because you would be asking the jury to make an
inference that requires expert medical testimony and you have not provided this
Court with any basis to believe that such testimony would be forthcoming from
Dr. Masri who is, your first conversation was this morning and he didn’t even
know he had been subpoenaed.
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ECF Dkt. #6-4 at 20-22.
The trial court’s well-founded concerns regarding the admissibility of Dr. Masri’s
testimony belie Petitioner’s claim that the physician’s testimony would have been
“determinative” of his case. ECF Dkt. #8 at 6. The undersigned agrees with the state trial court
that the doctor’s testimony – as represented by defense counsel – was of limited probative value
for impeachment of the victim or as an expert opinion, primarily because it would have had little
bearing on whether a rape occurred, and it carried a substantial risk of unfair prejudice and
confusion to the jury.
Moreover, the claim is entirely speculative. The record does not show what Dr. Masri’s
testimony would have been, as, again, he never appeared in court and there was no expert report
filed. In fact, it is unclear whether Dr. Masri would have testified at all, considering his potential
liability for having failed to report a potential sexual assault of a minor as required under Ohio
law which was raised by the prosecution. See ECF Dkt. #6-4 at 13-14.
The trial court’s rulings preventing defense counsel from questioning Chalene Mudd, the
victim’s mother, and Detective Dietsche about Dr. Masri’s examination of the victim and his
findings, as reported in his notes, similarly do not implicate Petitioner’s constitutional rights.
When defense counsel asked the witnesses about the doctor’s findings, the court sustained the
prosecution’s objections on the ground that the information was irrelevant and hearsay. See ECF
Dkt. #6-3 at 56-57, 150-60. As the trial court aptly found, the information was not “relevant,”
“material,” or “vital to the defense.” Washington v. Texas, 388 U.S. at 23. The court’s rulings
excluding it, therefore, did not “infringe[] upon a weighty interest of [Petitioner].” Scheffer, 523
U.S. at 308.

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Accordingly, this claim lacks merit, and the undersigned recommends that it be
dismissed.
B.

Petitioner’s Second Ground for Relief: Ineffective Assistance of Counsel

In his second ground for relief, Petitioner argues that he was denied his Sixth Amendment
right to the effective assistance of counsel when counsel failed to properly subpoena Dr. Masri,
request a continuance to secure his attendance, or ensure that Dr. Masri’s report complied with
Ohio procedural rules. ECF Dkt. #1 at 3-4; ECF Dkt. #8 at 12-14. Petitioner raised this claim on
direct appeal in state court, where it was adjudicated on the merits. Jones, 2014 WL 2195236, at
**6-7. Respondent argues this claim lacks merit. ECF Dkt. #6 at 19-23.
The Supreme Court long has recognized that the Sixth Amendment right to the effective
assistance of counsel at trial “is a bedrock principle in our justice system.” Martinez v. Ryan,
132 S. Ct. 1309, 1317 (2012). See also Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963).
The Supreme Court announced a two-prong test for habeas claims of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must
demonstrate that counsel’s errors were so egregious that “counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id at 687. Second, the petitioner
must show that he or she was prejudiced by counsel’s errors. To do this, a petitioner must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
“Strickland specifically commands that a court ‘must indulge [the] strong presumption’
that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’”
Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (quoting Strickland, 466 U.S. at 689-90). The

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Supreme Court has observed that the standards imposed by Strickland and § 2254(d) are both
“highly deferential,” so that in applying them together, “review is ‘doubly’ so.” Harrington v.
Richter, 562 U.S. 86, 105 (2011).
The state appellate court, the last state court to address Petitioner’s ineffective-assistance
claim, reasoned:
{¶ 37} In his second assignment of error, Mr. Jones argues that he had ineffective
assistance of counsel at trial. We disagree.
{¶ 38} In order to prevail on an ineffective assistance of counsel claim, a
defendant “must show (1) deficient performance by counsel, i.e., performance
falling below an objective standard of reasonable representation, and (2)
prejudice, i.e., a reasonable probability that but for counsel's errors, the
proceeding's result would have been different.” State v. Mundt, 115 Ohio St.3d 22,
2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688,
694 (1984).
{¶ 39} Mr. Jones argues that his counsel's performance was deficient because
counsel failed to subpoena Dr. Masri to testify, did not request a continuance to
bring Dr. Masri to court, and did not ensure that Dr. Masri's report complied with
Crim.R. 16(K).3 However, even assuming that counsel's performance was
deficient, Mr. Jones does not develop any argument as to how he was prejudiced
by counsel's actions. See Mundt at ¶ 62; App.R. 16(A)(7).
FN 3: Although Mr. Jones's brief refers to the relevant provision as Evid.R. 16(K),
it is clear he is referring to Crim.R. 16(K).
{¶ 40} Furthermore, the record is silent as to the substance of Dr. Masri's potential
testimony with the only possible evidence being his report.4 However, assuming
Dr. Masri had testified consistent with the contents of his report, his testimony
would have been that L.J. likely had had sexual intercourse and that her hymen
was “a little loose[.]” Assuming under certain circumstances the distinction
between a loose hymen versus a torn hymen could be of critical evidentiary
significance, we reiterate that Mr. Jones has not explained how the distinction in
this case would have affected the outcome of the trial given all of the evidence,
including Dr. Masri's indication in his report that he believed it likely that L.J. had
engaged in sexual intercourse. Accordingly, assuming that Dr. Masri would have
testified precisely as he had written in his report, Mr. Jones has not explained how
he was prejudiced by his counsel's failure to have Dr. Masri testify.5

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FN 4: Although Dr. Masri's report was discussed during the trial, it was not
proffered or admitted as an exhibit. However, the trial court permitted it to be
admitted as an exhibit at the hearing on Mr. Jones' motion for a new trial and,
thus, it is part of the appellate record.
FN 5: To the extent Mr. Jones believes Dr. Masri's testimony would have differed
from his report, that is outside the scope of the record on appeal, making
postconviction relief the more appropriate avenue to raise those arguments. See
State v. Sheppard, 9th Dist. Medina No. 10CA0041–M, 2011–Ohio–3516, ¶ 8.
Jones, 2014 WL 2195236, at **6-7.
The undersigned recommends that the Court find that the Ohio appellate court did not
unreasonably apply Strickland in finding that even if defense counsel’s failure to properly present
Dr. Masri as a witness was deficient, Petitioner did not and cannot show he was prejudiced such
that the result of his trial would have been different had the physician testified. Petitioner’s claim
is speculative because, as explained above, even if Dr. Masri would have agreed to testify, it is
not known what he would have said. Moreover, if the doctor’s testimony would have been
consistent with his notes and as represented by defense counsel, the judge most likely would
have ruled as he warned defense counsel that he would, significantly limiting the testimony, if
not excluding it altogether.
Without proving prejudice, Petitioner cannot prevail on his ineffective-assistance claim –
regardless of whether his counsel was deficient. Strickland, 466 U.S. at 697 (“a court need not
determine whether counsel's performance was deficient before examining the prejudice
suffered”). The undersigned therefore recommends that the Court find that the state appellate
court’s decision rejecting this claim was neither contrary to, nor an unreasonable application of,
Strickland and its progeny.

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VI.

CONCLUSION AND RECOMMENDATION
For the above reasons, the undersigned recommends that the Court dismiss Petitioner’s

federal habeas corpus petition in its entirety with prejudice.

Date: November 2, 2016
/s/George J. Limbert
George J. Limbert
United States Magistrate Judge

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72; L.R. 72.3. Failure to
file objections within the specified time WAIVES the right to appeal the Magistrate Judge’s
recommendation. L.R. 72.3(b).

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