Dues v. Bunting

Filing 12

Opinion & Order signed by Judge James S. Gwin on 4/25/19. The Court, for the reasons set forth in this order, overrules petitioner's objections, adopts the Report and Recommendation of the Magistrate Judge, and denies in part and dismisses in part Dues' petition for habeas corpus relief under 28 U.S.C. § 2254. (Related Docs. 1 , 9 , and 11 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

JERAEL U. DUES,
Petitioner,
vs.
JASON BUNTING,
Respondent.

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CASE NO. 1:16-cv-1747
OPINION & ORDER
[Resolving Doc. 11]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Jerael Dues petitions for habeas corpus relief under 28 U.S.C. § 2254.1 Magistrate
Judge William H. Baughman, Jr. issued a report and recommendation (“R&R”)
recommending that the Court deny in part and dismiss in part Dues’ petition.2 Petitioner
Dues timely objected.3
For the following reasons, the Court OVERRULES Petitioner’s objections, ADOPTS
Magistrate Judge Baughman’s R&R, and DENIES IN PART and DISMISSES IN PART Dues’
§ 2254 petition.
I. Background
Petitioner Dues seeks to vacate his state drug convictions. His habeas petition
makes a sufficiency-of-the-evidence challenge and a claim that an erroneous jury
instruction deprived him of a fair trial.
The Ohio Court of Appeals described the factual background. Dues does not

1

Doc. 1. Respondent filed a return of writ. Doc. 6. Petitioner filed a traverse. Doc. 7.
Doc. 9.
3
Doc. 11.
2

Case No. 1:16-cv-1747
Gwin, J.
dispute the Court of Appeals’ factual findings.4
Police officers went to Jerael Dues’ apartment to arrest Dues for a misdemeanor
assault charge.
When the officers knocked at his door and identified themselves as police, no one
answered the door. However, while the officers waited, they heard people running and
dishes clanging inside the apartment. One officer then saw a man—later identified as
Deaunte Bullitt—throw 100 grams of crack cocaine and $22,000 in cash off Dues’ back
balcony. The officers then forcibly entered Dues’ apartment, where they found Dues
sitting on his living room couch.
The officers later searched Dues’ apartment, where Dues’ girlfriend and three-yearold son also lived. The officers found drug residue and drug paraphernalia throughout the
apartment.
In the kitchen, the officers found a bag of heroin in the cupboard; a plastic plate
with cut marks and white residue (indicative of cutting, separating, and weighing crack
cocaine); two bottles of whey protein (a supplement often used as “cut material” in
preparing cocaine for sale); a box of latex gloves (typically worn when cooking drugs to
avoid contamination); a digital scale in the garbage can; and a large glass measuring bowl
with 4.21 grams of cocaine residue in the dishwasher rack.
In the child’s bedroom, the officers found many small plastic bags with blue stars on
them—consistent with the packaging of heroin. The officers also found an open safe.

Doc. 6-1 at 199–201. Factual findings by the state court are presumptively correct. 28 U.S.C. § 2254(e)(1); see
Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003) (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)) (facts found
4

by the state appellate court based on its review of the record are presumed correct by the federal habeas court).

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Case No. 1:16-cv-1747
Gwin, J.
A jury convicted Dues of trafficking and possessing over 100 grams of cocaine, with
a major drug offender specification and other specifications; trafficking and possessing
between five and ten grams of heroin; possessing criminal tools, with forfeiture
specifications; and endangering children.5 The Ohio Court of Appeals upheld Dues’
convictions.6
In Dues’ habeas petition, Dues argues (1) that insufficient evidence showed that he
constructively possessed the cocaine that Bullitt threw over the balcony and (2) that the
state trial court deprived Dues of a fair trial by giving an improper “possession” jury
instruction.
Magistrate Judge Baughman issued his R&R on July 20, 2018. He recommended
that the Court deny relief as to Petitioner’s sufficiency-of-the-evidence challenge. He also
recommended dismissing Petitioner’s jury instruction challenge to the extent Petitioner
claims the “possession” instruction violated state law and recommended denying the
challenge to the extent that Petitioner claims the instruction violated his due process rights.
Petitioner Dues objected to the R&R. The Court reviews de novo the objected-to
portions of an R&R.7
II. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls
habeas review of state court proceedings.8 Under AEDPA, habeas relief may only be

5

Doc. 6-1 at 201–02.
Doc. 6-1, Ex. 25. Petitioner also timely appealed to the Ohio Supreme Court, which declined to exercise
jurisdiction over Petitioner’s appeal. Doc. 6-1, Ex. 29.
7
28 U.S.C. § 636(b)(1).
8
28 U.S.C. § 2254; Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir. 2007).
6

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Gwin, J.
granted on a showing of a meritorious federal law ground for relief.9 A federal court may
not overturn a state court adjudication because of a state law error.10
III. Discussion
A. Ground Two: The State Trial Court’s Jury Instruction on the Possession Element
Petitioner challenges the propriety of the state trial court’s jury instruction on the
“possession” element of the offenses.
To the extent Petitioner argues that the state trial court incorrectly instructed the jury
that evidence of “constructive possession” was sufficient to prove “possession” under Ohio
Revised Code § 2925.01(K), this alleged state-law error does not state a claim for habeas
relief and must be dismissed.11
Petitioner also appears to claim that the state trial court’s allegedly erroneous and
“self-contradictory” jury instruction on the “possession” element violated his due process
right to a fair trial.
In evaluating this due process claim, the Court asks “whether the ailing instruction
by itself so infected the entire trial [with unfairness] that the resulting conviction violate[d]
due process.”12 Further, an ambiguous jury instruction may present a due process violation
if “there is a reasonable likelihood that the jury has applied the challenged instruction in a
way that violates the Constitution.”13

Haliym, 492 F.3d at 690 (discussing 28 U.S.C. § 2254(d)).
See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (explaining that, to the extent a petitioner’s argument is based
upon state law, the petitioner has failed to state a claim upon which habeas corpus relief may be granted); Smith v.
Morgan, 371 F. App’x 575, 582 (6th Cir. 2010) (citing 28 U.S. § 2254(a)).
11
Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (“[T]he fact that the instruction was allegedly incorrect under
9

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state law is not a basis for habeas relief.”).
12
Id. at 72.
13
Id. (citing Boyde v. California, 494 U.S. 370, 380 (1990)).

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Case No. 1:16-cv-1747
Gwin, J.
The Court does not find the jury instruction meets either standard. In fact, the Court
does not even find the instruction to be erroneous or ambiguous. Petitioner attempts to
show that the “possession” instruction was “self-contradictory” by taking select phrases out
of context. Read altogether, however, the Court finds that the jury instructions on
“possession” reflect prevailing state law14 and comply with federal law. Accordingly, the
jury instruction did not violate Petitioner Dues’ constitutional rights.
B. Ground One: Sufficiency of the Evidence as to the Possession Element
Petitioner also claims that there was insufficient evidence to prove beyond a
reasonable doubt that he constructively possessed the 100 grams of cocaine that Bullitt
threw over the balcony. Although the § 2254 habeas statute generally prohibits the review
of state law issues, a sufficiency-of-the-evidence claim is cognizable under § 2254 because
the Due Process Clause “forbids a State to convict a person of a crime without proving the
elements of that crime beyond a reasonable doubt.”15
To succeed on the sufficiency-of-the-evidence claim, Petitioner must show that,
viewing the record evidence in the light most favorable to the prosecution, no rational trier
of fact could have found proof beyond a reasonable doubt that Petitioner “possessed” the
100 grams of cocaine that Bullitt threw from the balcony.16 For this determination, the
Court looks to the possession element as defined by state law.17

14
Compare Doc. 6-1 at 205 (jury instruction), with, e.g., State v. Hankerson, 434 N.E.2d 1362, 1365 (Ohio
1982) (“Constructive possession exists when an individual exercises dominion and control over an object, even though
that object may not be within his immediate physical possession. ... [T]he mere fact that property is located within
premises under one’s control does not, of itself, constitute constructive possession. It must also be shown that the person
was conscious of the presence of the object.”).
15
Fiore v. White, 531 U.S. 225, 228–29 (2001).
16
Jackson v. Virginia, 443 U.S. 307, 324 (1979); Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006).
17
Joseph v. Coyle, 469 F.3d 441, 454 (6th Cir. 2006) (“In the habeas context, ‘[t]he Jackson standard must be
applied ‘with explicit reference to the substantive elements of the criminal offense as defined by state law.’” (citation
omitted)).

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Gwin, J.
Ohio Revised Code § 2925.01(K) states:
“Possess” or “possession” means having control over a thing or substance,
but may not be inferred solely from mere access to the thing or substance
through ownership or occupation of the premises upon which the thing or
substance is found.18
Because the officers testified that Petitioner did not have actual possession of the cocaine,
the Court of Appeals found that the prosecution had to show that Dues constructively
possessed the cocaine.19
“Constructive possession exists when an individual exercises dominion and control
over an object, even though that object may not be within his immediate physical
possession.”20 The fact that the object may be located within premises under the
individual’s dominion and control does not, by itself, show constructive possession unless
the individual “was conscious of the presence of the object” within those premises. 21
Constructive possession may be established by circumstantial evidence alone.22
The Ohio Court of Appeals correctly applied this Ohio constructive possession
standard when it found that sufficient evidence supported Dues’ convictions.23 Plenty of
circumstantial evidence showed that Petitioner had constructive possession over the 100
grams of cocaine that Bullitt threw over the balcony.
An officer saw Bullitt throw the cocaine from the balcony of Petitioner’s
apartment—while Petitioner was in the apartment.

18

Ohio Rev. Code § 2925.01(K).
Doc. 6-1 at 206.
20
State v. Wolery, 348 N.E.2d 351, 360 (Ohio 1976).
21
Hankerson, 434 N.E.2d at 1365.
22
Id. at 1366–67; State v. Barr, 620 N.E.2d 242, 247–48 (Ohio Ct. App. 1993).
23
See Doc. 6-1 at 206–07.
19

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Case No. 1:16-cv-1747
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Further, given the many places where the officers found drug residue and drug
paraphernalia throughout Dues’ apartment, a juror could easily infer that Dues was aware
that the 100 grams of cocaine was in his apartment. The officers found drug residue and
drug paraphernalia in numerous conspicuous places, including in kitchen cupboards, on
items in the dishwater, inside the kitchen trash, and in the child’s bedroom. While the
officers waited for someone to answer the door, the officers heard people scurrying and
dishes clanging inside the apartment—right before one officer witnessed Bullitt trying to
dispose of the cocaine and $22,000 over the back balcony. A reasonable juror could have
found that Bullitt had not brought the 100 grams of cocaine into Dues’ apartment without
Dues’ knowledge. With the scale and cutting materials, a reasonable juror could find Dues
had been involved with the cocaine that Bullitt threw over the balcony.
Accordingly, the evidence was sufficient to allow any rational factfinder to find
beyond a reasonable doubt that Petitioner possessed the 100 grams of cocaine. The Court
overrules Petitioner’s objection on this ground for relief as well.
Conclusion
For the reasons stated, the Court OVERRULES Petitioner’s objections, ADOPTS
Magistrate Judge Baughman’s R&R, incorporating it fully herein by reference, and DENIES
IN PART and DISMISSES IN PART Dues’ § 2254 petition.
IT IS SO ORDERED.

s/

Dated: April 25, 2019

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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