Donaldson v. Warden

Filing 16

Order Adopting Judge Baughman's Report and Recommendation in its entirety and dismissing Donaldson's Petition for Writ of Habeas Corpus. The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this dec ision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c). Related document 1 , 15 . Signed by Judge Solomon Oliver, Jr. on 10/18/2017. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN DONALDSON,
Petitioner
v.
MICHELE MILLER,
Respondent

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Case No.: 3:16 CV 755

JUDGE SOLOMON OLIVER, JR.

ORDER

On March 24, 2016, Petitioner Kevin Donaldson (“Petitioner” or “Donaldson”) filed a
Petition for Writ of Habeas Corpus (“2254 Petition”) (Pet., ECF No. 1) pursuant to 28 U.S.C. § 2254
in the above-captioned case, challenging his conviction and sentence on two counts of trafficking
in persons and two counts of promoting prostitution. As a result of the conviction, Petitioner was
sentenced to twelve years in prison. He argues that his § 2254 Petition should be granted based on
the following ground for relief and supporting facts:
GROUND ONE:

Petitioner was denied his constitutional right to
confront his accusers at trial.

Supporting Facts:

It was charged that Donaldson compelled two victims, Pirela
and Negron, to engage in sexual activity for hire pursuant to
O.R.C. 2905.32. His conviction was contingent upon the
state proving he compelled (by threat or force) Negron and
Pirela to engage in the sexual activity. Prior to trial, the state
indicated it would prove the element of compulsion by
introducing text messages between Donaldson and Pirela.
Defense counsel objected. Without hearing any evidence of
the conspiracy, or viewing the evidence the state sought to
introduce, the court made a finding that the victims were coconspirators and allowed the statements. The officers then
testified as to hearsay statements including text messages

between Donaldson and Pirela and Negron.
The victims’ statements were critical to the conviction. The
text messages and statements made by Pirela and Negron to
law enforcement were the only evidence of compulsion. It
was improper to admit this evidence, depriving Donaldson
of his right to confront his accusers.

(Pet. 7-8.)
Pursuant to Local Rule 72.2, the case was referred to Magistrate Judge William H.
Baughman (“Magistrate Judge” or “Judge Baughman”), on May 12, 2016, for preparation of a
Report and Recommendation (“R & R”). On August 29, 2016, Respondent Michele Miller
(“Respondent”) filed a Return of Writ, arguing that: (1) Donaldson had not fairly presented the one
ground in his 2254 Petition to the appropriate state courts and, thus, his claim is procedurally
defaulted; (2) Donaldson’s argument that the state court improperly applied Rule 801(D)(2)(e)
regarding co-conspirator statements is not cognizable on habeas corpus review because the
admissibility of evidence is a state law issue; and (3) that the decision of the Ohio Court of Appeals
was not contrary to clearly established federal law pertaining to the Confrontation Clause (ECF No.
11, at 11, 14, 16.)
On October 26, 2016, Donaldson filed his First Traverse to Return of Writ. (ECF No. 14.)
In his traverse, Donaldson maintains that the Confrontation Clause issue was fairly presented to both
the trial and appeals courts because questions of hearsay and the application of the hearsay rule are
essentially challenges to the defendant’s right to confront his accusers. (Id. at 8.) Further, because
the evidentiary question also involves the denial of his right to confront his accusers, it is a
cognizable claim for habeas review. (Id. at 10.) Donaldson also asserts that he is actually innocent

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based on certain unsworn statements that were not presented at trial, and further claims that actual
innocence is “an independent basis for habeas review.” (Id. at 18.) In addition, Donaldson requested
an evidentiary hearing. (Id. at 24.) However, as the evidentiary hearing was first requested in
Donaldson’s traverse, and not his original petition, Judge Baughman properly declined to consider
the request. (R & R 9-10, ECF No. 15.)
On September 21, 2017, Judge Baughman submitted an R & R, recommending that
Donaldson’s §2254 petition be dismissed. (Id. at 24.) First, the Magistrate Judge recommends that
Ground One be dismissed because it was not fairly presented to the Ohio courts as a federal
constitutional claim, and further is not a cognizable basis for federal habeas review. (Id. at 21.) In
addition, Judge Baughman recommends a finding that the unsworn testimony at issue here, which
was not subject to cross-examination at trial, is not the kind of new, reliable evidence of actual
innocence, not merely legal innocence, as would qualify for overcoming the procedural default in
this case. (Id. at 24.)
As of the date of this Order, Petitioner has not filed objections to the R & R. By failing to
timely object, Petitioner has waived the right to appeal this court’s Order. See Thomas v. Arn, 474
U.S. 140, 152 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). After careful
review of Judge Baughman’s R & R and all other relevant documents in the record, the court finds
no clear error. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; Arn, 474 U.S.
at 150 (“It does not appear that Congress intended to require the district court review of a
magistrate[] [judge’s] factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”). Accordingly, the court adopts Judge Baughman’s R & R
in its entirety and hereby dismisses Donaldson’s Petition for Writ of Habeas Corpus (ECF No. 1).
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The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could
not be taken in good faith, and that there is no basis on which to issue a certificate of appealability.
Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT COURT

October 18, 2017

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