Potts v. Turner
Filing
13
Opinion and Order signed by Judge James S. Gwin on 2/22/2021. For the reasons as set forth in this order, the Court denies petition. re 1 (S,KM)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------KEVIN J. POTTS,
:
:
Petitioner,
:
:
vs.
:
:
WARDEN NEIL TURNER,
:
:
Respondent.
:
-----------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Case No. 3:18-cv-451
OPINION & ORDER
[Resolving Doc. 1]
Petitioner Kevin J. Potts, an Ohio inmate serving an aggregate 17-year sentence for
felonious assault and aggravated burglary with firearms specifications, petitions this Court
for federal habeas corpus relief under 28 U.S.C. § 2254. 1
Potts argues that his Fifth
Amendment double jeopardy right, his Sixth Amendment confrontation right, and his
Fourteenth Amendment due process right to conviction beyond a reasonable doubt were
violated during his state trial. 2 The state of Ohio opposes Potts’s petition. 3 For the following
reasons, the Court DENIES Potts’s petition.
I.
BACKGROUND
A. State Trial Proceedings
The facts surrounding Potts’s convictions were described by the Ohio Court of Appeals. 4
Because Potts has not meaningfully disputed them, this Court accepts them as correct 5:
1
2
3
4
5
Doc. 1.
Id.
Doc. 9.
State v. Potts, 69 N.E.3d 1227 (Ohio Ct. App. 3d Dist. 2016).
28 U.S.C. § 2254(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. The applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence.”).
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{¶ 2} This case stems from a June 25, 2015 altercation between Potts and the
victim, John Shepard (“John”), in which Potts was alleged to have appeared at
John’s house and attempted to assault John with a gun by entering the house
and pointing the gun at him. Potts was motivated to confront John after Potts’s
girlfriend, Lori Welly (“Welly”), alleged that John, a corrections officer with
the Hancock County Sheriff’s Office, raped her while she was an inmate at the
Hancock County Justice Center in the fall of 2014. Welly was released from
the Justice Center in September 2014 and told Potts that John raped her while
she was an inmate. As a result of Welly’s statement, Potts twice called John,
and Potts and Welly went to John’s house on September 29, 2014 to confront
John. Welly later pled no contest to providing false information during an
official investigation concerning her report about the rape and was sentenced
to 90 days in jail, with 85 of those days suspended. As a result of her sentence,
Potts decided that he needed to confront John before Welly was to serve her
sentence at the Hancock County Justice Center.
{¶ 3} On June 30, 2015, the Hancock County Grand Jury indicted Potts on
two counts, including: Count One of aggravated burglary in violation of [Ohio
Revised Code §§] 2911.11(A)(2) and 2903.11(D)(1)(a), a first-degree felony,
and Count Two of felonious assault in violation of [Ohio Revised Code §]
2903.11(A)(2), a second-degree felony. (Doc. No. 1). Both counts of the
indictment included a specification under [Ohio Revised Code §]
2941.145 alleging that Potts committed the offenses with a firearm. (Id.).
{¶ 4} On July 8, 2015, Potts appeared for arraignment and entered pleas of
not guilty. (Doc. No. 4).
{¶ 5} On September 24, 2015, Potts filed a request for a bill of particulars,
which the State filed on September 29, 2015. (Doc. Nos. 59, 60).
{¶ 6} The State filed a motion on December 3, 2015 requesting Welly to be
called as the court’s witness. (Doc. No. 94). The next day, the State filed a
motion in limine to exclude Potts from introducing any evidence from John’s
personnel file and a motion for a jury view. (Doc. Nos. 95, 96). At trial, the
trial court granted the State’s motions for a jury view and for Welly to be called
as the court’s witness. (Dec. 7–10, 2015 Tr., Vol. I, at 7, 9). Regarding the
State’s motion in limine, the trial court concluded that Potts could conduct a
limited inquiry as to John’s credibility based on his personnel file. (Dec. 7–10,
2015 Tr., Vol. III, at 549).
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{¶ 7} The State filed amended bills of particulars on December 7 and 9, 2015.
(Doc. Nos. 97, 102).
{¶ 8} The case proceeded to a jury trial on December 7–10, 2015. On
December 10, 2015, the jury found Potts guilty as to the counts and
specifications in the indictment. (Doc. Nos. 104, 105); (Dec. 7–10, 2015 Tr.,
Vol. IV, at 811–813). The trial court filed its judgment entry of conviction on
January 21, 2016. (Doc. No. 114). That same day, the trial court sentenced
Potts to seven years in prison on Count One, seven years in prison on Count
Two, and three years in prison on the specification on Count One, and ordered
that Potts serve the terms consecutively for an aggregate sentence of 17
years. (Doc. No. 116); (Jan. 21, 2016 Tr. at 28–29). The parties stipulated that
the specifications in Counts One and Two of the indictment merged, and the
trial court merged the specifications. (Doc. No. 116).
*
*
*
*
*
{¶ 14} At trial, the State offered the testimony of Deputy Terrill Brooks
(“Deputy Brooks”) and Sergeant Michael Cortez (“Sergeant Cortez”) of the
Hancock County Sheriff’s Office regarding the September 29, 2014 incident.
(Dec. 7–10, 2015 Tr., Vol. II, at 251–252). First, Deputy Brooks testified that,
on that date, he responded to a trespassing complaint made by John against
Potts. (Id. at 253–254, 257). He testified that he initiated a traffic stop of Potts
and Welly in response to John’s complaint. (Id. at 255–257, 260). According
to Deputy Brooks, Potts admitted to him that he and Welly went to the Shepard
residence, and admitted that he had a gun in his vehicle behind the driver’s
seat. (Id. at 262–263).
{¶ 15} Second, Sergeant Cortez testified that he assisted with the September
29, 2014 traffic stop of Potts. (Id. at 269, 271–275). According to Sergeant
Cortez, Potts admitted that he and Welly were coming from the Shepard
residence and that Potts took the gun “for protection.” (Id. at 278–281). He
testified that Potts told him that he took the gun for protection because Welly
told Potts that John sexually assaulted her while she was an inmate at the
Hancock County Justice Center. (Id. at 282). However, Sergeant Cortez
testified that Potts told him that he left the gun in his car while he was at the
Shepard residence. (Id.). According to Sergeant Cortez, John and John’s wife,
Kim Shepard (“Kim”),
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[W]ere not wanting to do anything, as far as pursue any type of
criminal charges, or anything like that. However, they did want
a criminal trespass warning issued to [Potts and Welly], and that
if they had returned, they would then file charges for said crime.
(Id. at 282–283). Sergeant Cortez testified that he “verbally gave [the criminal
trespass warning] to [Potts],” and testified that trespass warnings do not expire.
(Id. at 283–284).
{¶ 16} On cross-examination, Sergeant Cortez testified that neither Potts nor
Welly threatened anyone on September 29, 2014. (Id. at 285).
{¶ 17} As its next witness, the State called Detective Barry Boutwell
(“Detective Boutwell”) of the Hancock County Sheriff’s Office who testified
that he investigated Welly’s complaint that John sexually assaulted her. (Id. at
290–291, 293–295). He testified that he was unable to substantiate Welly’s
claims based on the information that she provided to him. (Id. at 308–310,
314–316). According to Detective Boutwell, because Welly’s allegations were
unfounded, Welly was charged with “providing false information during an
official investigation.” (Id. at 316–317). (See also State’s Exs. 2, 3).
{¶ 18} The trial court called Welly as its witness. (Id. at 338, 340). On the
State’s examination, Welly testified that she went with Potts to the Shepard
residence on September 29, 2014 “to speak with [John’s] wife.” (Id. at 350–
352). According to Welly, she knew Potts had a gun in his vehicle. (Id. at 352).
Welly testified that Kim answered the door and that Welly “asked her if she
was married to John Shepard,” and Welly testified that is when John came to
the door. (Id. at 353, 356). According to Welly, she and Potts then left the
Shepard residence. (Id. at 356).
{¶ 19} Welly further testified that she later pled no contest to the providingfalse-information-during-an-official-investigation charge, was found guilty, and
was sentenced to 90 days in jail, with 85 of those days suspended. (Id. at 361–
362). (See also State’s Exs. 2, 3). She testified that she was sentenced on June
25, 2015 for that crime, but was not to report to serve her jail sentence until a
later date. (Dec. 7–10, 2015 Tr., Vol. II, at 362–363). According to Welly,
Potts was upset by her sentence, “but he wasn’t overly angry. He was
concerned that [she] was serving jail time again.” (Id. at 363).
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{¶ 20} On the defense’s examination, Welly testified that she and Potts left the
Shepard residence on September 29, 2014 when they were asked to
leave. (Id. at 367). According to Welly, neither she nor Potts threatened
anyone on September 29, 2014. (Id.). Welly testified that she did not believe
that Potts intended to cause John harm when Potts returned to the Shepard
residence on June 25, 2015. (Id.).
{¶ 21} As its next witness, the State called Lieutenant Christopher Bell
(“Lieutenant Bell”) of the Hancock County Sheriff’s Office. (Id. at 375–376).
Lieutenant Bell identified as State’s Exhibit 4 a true and accurate copy of the
911 emergency call that the Hancock County Sheriff’s Office received from
Kim on June 25, 2015, which was subsequently played for the jury. (Id. at
385–386).
{¶ 22} Next, the State called Deputy Matthew Brunswick (“Deputy
Brunswick”) of the Hancock County Sheriff’s Office who testified that he
responded to the Shepard residence on June 25, 2015. (Id. at 390, 396–398).
When he arrived at the scene, he saw Potts and John “struggling right at the
entrance of the base of the porch, where it meets the driveway.” (Id. at 401–
402). He testified that he saw both men with both of their hands on the gun
struggling for control of it. (Id. at 418). He testified specifically,
So the suspect had the gun, his hands down, I can’t say exact
position, but somewhat facing downward, and then Mr. Shepard
has his hands both onto [sic] the firearm. So both people were
struggling, and as this is going on, they’re obviously both
moving around, and the gun is, for the most part, seemed like it
is pointed downward at that time.
(Id. at 423).
{¶ 23} According to Deputy Brunswick, when he arrived at the scene, he
immediately exited his patrol vehicle and heard John yelling “he’s got a gun,
he’s got a gun.” (Id. at 403). As a result, Deputy Brunswick tried to find a
vantage point, which would provide him a safe shot, and was yelling “drop
the gun, drop the gun.” (Id.). He testified that he yelled “drop the gun” several
times. (Id. at 424). Deputy Brunswick testified that the scuffle between Potts
and John lasted “[s]econds.” (Id. at 403–404). According to Deputy Brunswick,
Potts eventually complied with his order to drop the gun. (Id. at 426).
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{¶ 24} Deputy Brunswick identified State’s Exhibit 7 as the gun he recovered
from the scene—a GLOCK 19, 9–millimeter handgun. (Id. at 406–407).
Deputy Brunswick testified that, when he recovered the gun, he found a bullet
in the chamber of the gun. (Id. at 408). (See also id. at 434). According to
Deputy Brunswick, Potts admitted that “he chambered one because he didn’t
feel safe.” (Id. at 436).
{¶ 25} He further testified that the magazine for the gun, which he identified
as State’s Exhibit 8, was located under a bench on the front porch of the
Shepard residence. (Id. at 414). He testified that there were 9 rounds of
ammunition found in the magazine that holds 15 rounds. (Id. at 415). Deputy
Brunswick identified as State’s Exhibit 9 a photograph depicting the magazine
as it was discovered on the Shepard’s front porch. (Id. at 414). (See State’s Ex.
9). (See also State’s Exhibit 10). Deputy Brunswick identified as State’s Exhibit
11 a knife that was discovered on Potts at the scene. (Dec. 7–10, 2015 Tr.,
Vol. II, at 429–430). (See also State’s Ex. 12).
{¶ 26} He testified that Potts appeared to be intoxicated and that Potts stated
“[n]ot enough” when Deputy Brunswick asked him how much alcohol he had
consumed. (Dec. 7–10, 2015 Tr., Vol. II, at 439). Deputy Brunswick identified
State’s Exhibit 13 as a true and accurate photograph of the location at which
Potts parked his vehicle in relation to the Shepard residence—down the street
and several residences to the west from the Shepard residence. (Id. at 440–
441, 443). Deputy Brunswick identified State’s Exhibits 15, 16, 17, and 18 as
true and accurate photographs depicting the injuries John sustained. (Id. at
446–449).
{¶ 27} On cross-examination, Deputy Brunswick testified that he saw only that
the gun was pointed downward at John’s legs during the struggle, and he
testified that he did not hear Potts verbally threaten John. (Id. at 458).
{¶ 28} On re-cross examination, Deputy Brunswick testified that, when he
arrived at the scene, he observed Potts holding the gun in a position that would
allow him to discharge it. (Id. at 462).
{¶ 29} Detective Sergeant Jason Seem (“Detective Seem”) testified for the State
that he responded to the scene on June 25, 2015 to assist in the investigation.
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(Id. at 510). Detective Seem identified State’s Exhibit 20 as a diagram that he
created depicting the scene. (Id. at 510–511).
{¶ 30} On cross-examination, Detective Seem testified that no one reported to
him that Potts threatened John or that Potts pointed the gun at John. (Id. at
528). He also testified that the Shepards’ front doors were not inspected for
fingerprint evidence to substantiate whether Potts touched either door. (Id.).
{¶ 31} As its next witness, the State called John, who testified as to his
interactions with Potts on September 28 and 29, 2014 and June 25, 2015.
(Dec. 7–10, 2015 Tr., Vol. III, at 554, 558, 564, 584). He testified that, on
September 28, 2014, he received a phone call from Potts asking him if he was
a corrections officer with the Hancock County Justice Center, and asking him
whether he knew Welly. (Id. at 558–561). He testified that the phone
disconnected after Potts asked John whether he knew Welly but that Potts
called again shortly thereafter; however, he did not answer Potts’s second call.
(Id. at 562). As part of the second call, Potts left a voicemail identifying himself
and asking John to return his call. (Id. at 562–563). As a result of Potts’s phone
calls, John reported the phone calls to the Hancock County Sheriff’s Office.
(Id. at 563).
{¶ 32} John testified that Potts and Welly appeared at his residence the next
day. (Id. at 564). He testified that Potts parked “on the far side of the driveway.”
(Id. at 570). John testified that Kim answered the door and that John later came
to the door and heard Welly ask Kim whether she was married to John. (Id. at
567–568). John testified that Potts stated to him, “[Y]ou know what you did.”
(Id. at 568). At that time, John told Potts and Welly to leave; however,
according to John, they did not initially leave and stayed on the front porch for
“[p]robably 6 to 10 minutes.” (Id. at 568–569). Because Potts and Welly did
not leave John’s property, he called the Hancock County Sheriff’s Office. (Id. at
569). John testified that he applied for an order of protection against Potts the
next day. (Id. at 570–571). John testified that an ex parte order of protection
was granted but that he decided to not pursue the final order because he “was
advised Mr. Potts was moving to Colorado.” (Id. at 571–572). Instead, on
November 7, 2014, John and Potts signed a “mutual agreement to avoid
contact.” (Id. at 572, 578).
{¶ 33} John testified that he learned on September 30, 2014 that Welly filed a
complaint against him alleging that he sexually assaulted her. (Id. at 579–581).
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{¶ 34} John testified that, on June 25, 2015, Potts appeared at his residence
shortly after 10:00 p.m. (Id. at 584). John testified that he and Kim were
sleeping when their barking dogs and the sound of their door bell woke
them. (Id. at 590–591). He testified that he looked out his kitchen window to
see who was at the door and, according to John, he did not recognize that it
was Potts because he was “clean-shaven” and thought that Potts was a friend
of his son. (Id. at 592, 594).
{¶ 35} Because he didn’t recognize Potts, he went to open the door, and as
soon as he turned the deadbolt to the front door, he was hit in the head with
the door. (Id. at 594–595). Potts was attempting to shove the door open, so
John tried to shut the door to keep him from entering his residence while
yelling, “No. No.” (Id. at 595). According to John, he shut Potts’s arm in the
door at least one time and after the third time he tried to force open the door,
Potts succeeded and entered John’s residence “[a] foot or two.” (Id. at 596).
John testified that Potts was pointing a gun at him when he entered his house.
(Id. at 597). Yet, he testified that Potts did not make any statement to him while
he was pointing the gun at him. (Id. at 598).
{¶ 36} At that point, John “grabbed the gun [with both of his hands] and forced
[Potts] out the front door.” (Id.). John testified that Potts then grabbed the gun
with both hands to fight back. (Id.). John told Potts to drop the gun, let go of
the gun, and “no, no.” (Id. at 598–599). John testified Potts did not make any
statement in response to John’s declarations to him; however, “[l]ater in the
struggle, he told [John] that [sic] just to let go of the gun.” (Id. at 599).
According to John, Potts was “very calm.” (Id.).
{¶ 37} Eventually, the struggle led John and Potts from the front porch to the
driveway and Deputy Brunswick arrived at the scene. (Id. at 602–603). John
testified that Potts let go of the gun after being commanded to do so by Deputy
Brunswick “at least three” times. (Id. at 603). John testified that he first learned
of Potts’s identity after asking Potts to reveal his identity while Deputy
Brunswick was handcuffing Potts. (Id. at 604). According to John, Potts did not
identify himself; rather, Potts responded to John by stating that he is “a rapist
two times.” (Id.). John further testified that after Potts called him a rapist, he
“thought that must be Mr. Potts.” (Id.).
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{¶ 38} John testified that he sustained “an injury to [his] head, [he] had an
injury to [his] feet, . . . [his] abdomen, [his] arms, . . . [and] a cut on some
fingers on [his] hand.” (Id. at 605). John identified as State’s Exhibits 15, 16,
17, and 18 as true and accurate photographs depicting the injuries he
sustained that night. (Id. at 605–608). John testified that he sought medical
treatment because he “couldn’t hardly talk” and was also treated for “abrasions
to [his] foot, [his] legs, [his] arm, and [his] stomach,” and he thought “a muscle
pulled.” (Id. at 611).
{¶ 39} John testified that the chain to the front screen door of his house was
damaged and that a pin was broken off of the handle of the front door as a
result of his altercation with Potts. (Id. at 587–588). (See State’s Exs. 22, 23,
24).
{¶ 40} On cross-examination, John testified that, although he received training
in writing incident reports for his employment as a corrections officer and was
instructed by law enforcement on June 25, 2015 to write everything that
happened during the incident with Potts, he did not write in his written
statement that Potts pointed the gun at him. (Id. at 614–621). (See
also Defendant’s Ex. A).
{¶ 41} As its final witness, the State called Kim to testify. (Dec. 7–10, 2015
Tr., Vol. III, at 626). Kim testified that Potts and Welly came to her residence
on September 29, 2014, and when she answered the door, Welly asked her
whether she was married to John to which she responded, “Yes, can I help
you.” (Id. at 629–631). Kim testified that Welly did not say anything else and
that Potts did not say anything until John came to the door and then said, “You
know what you did.” (Id. at 631). According to Kim, John shut the door and
locked it. (Id. at 632). Kim testified that Potts and Welly remained on their front
porch for about five minutes. (Id.).
{¶ 42} Kim testified that, on June 25, 2015, she was awakened by her barking
dogs. (Id. at 635–636). According to Kim, John looked out the window to see
who was at the door and he said to her, “I don’t know who it is.” (Id. at 636).
Because the dogs were barking, she took the dogs to a back bedroom to allow
John to speak with whoever was at the door. (Id.). Kim testified that, while she
“was putting on [her] housecoat coming out of the bedroom,” John unlocked
the door and she “heard a noise, as if someone had thrown themselves against
the door.” (Id. at 637). When she came out of the bedroom, she “saw [her]
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husband trying to keep the door closed, and a hand coming through the
doorway, with what appeared to be a gun in the hand.” (Id. at 637–638).
According to Kim, John was yelling “no, no” and told her to call 911, which
she did. (Id. at 639–640).
{¶ 43} Kim testified, “John reaches up and grabs the gun. He has two hands
on it. The man comes through the door, he has two hands on it. And then my
husband was able to push him out the front door, and they were struggling on
the front porch.” (Id. at 641). She further testified that when Potts came through
the door, he came “[a] few steps into the entranceway” of the house. (Id. at
642). Kim testified that she remained on the phone with the 911 dispatcher
throughout the incident. (Id. at 643). She also testified that she reported to the
911 dispatcher that she saw “a knife, a big, long knife in a sheath hanging from
. . . his belt.” (Id. at 644). However, Kim testified that Potts did not take the
knife out of the sheath on his belt. (Id.). Kim testified that she did not hear Potts
say anything during the incident. (Id. at 645).
{¶ 44} Thereafter, the State moved to admit exhibits and rested. (Id. at 654–
655). State’s Exhibits 1–27 and 29 were admitted without objection, and
State’s Exhibit 28 was excluded. (Id. at 655). Potts moved to admit Defendant’s
Exhibit A, which was admitted without objection. (Id. at 656). Next, Potts
made a [Ohio Criminal Rule] 29(A) motion, which the trial court denied. (Id. at
656–660). Potts testified in his defense, and the defense rested. (Id. at 663,
720). The State did not present any witnesses on rebuttal, and the matter was
submitted to the jury . . .
On December 10, 2015, the jury found Potts guilty of all crimes charged. 6 On January
21, 2016, the Hancock County Court of Common Pleas sentenced Potts 17-years’
imprisonment, punishing Potts separately for felonious assault and aggravated burglary. 7
On February 11, 2016, Potts appealed his conviction and sentence to the Ohio Court
of Appeals, 8 raising the following error assignments:
6
7
8
State v. Potts, 15-CR-00171, 2016 WL 8224345, at *1–2 (Ohio Com. Pl. Jan. 21, 2016).
State v. Potts, 15-CR-00171, 2016 WL 8224346, at *1–2 (Ohio Com. Pl. Jan. 21, 2016).
Doc. 9-2 at 65.
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(1) The Trial Court erred when it refused to instruct the jury on the lesser
related offense of Aggravated Menacing, in violation of Ohio Revised Code
§ 2903.21;
(2) The Trial Court abused its discretion when it would not allow further crossexamination on specific instances, pursuant to [Ohio Rules of Evidence
404 and 608(B)] of John Shepard's personnel file when it was clearly
relevant and probative of truthfulness or untruthfulness;
(3) The Trial Court erred in overruling the motion for acquittal pursuant
to [Ohio Criminal Rule] 29;
(4) The Trial Court erred when the Prosecutor, during closing arguments,
indicated his opinion as to the credibility of witnesses during the trial. The
Trial Court erred by not intervening sua sponte, due to the abuse of
privilege; and
(5) The Trial Court erred by failing to merge the Aggravated Burglary and
Felonious Assault convictions, at sentencing, as they occurred as part of
the same transaction and both were borne of the same animus. 9
B. State Appellate Proceedings
On August 29, 2016, The Ohio Court of Appeals addressed each of Potts’s claims on
the merits and affirmed. 10
On October 13, 2016, Potts timely requested an Ohio Supreme Court appeal,
raising the following issues:
(1) The presence of a second person in an occupied structure does not give
rise to a separate offense of dissimilar import to prevent merger of felonious
assault and aggravated burglary under [Ohio Revised Code §] 2925.25(B);
(2) The evidence in this case is insufficient to support a finding beyond a
reasonable doubt that Appellant “caused or attempted to cause physical
harm . . . by means of a deadly weapon” within the meaning of [Ohio
Revised Code §] 2903.11(A)(2). 12
9
Id. at 81.
Potts, 69 N.E.3d at 1233–53.
10
11
12
Doc. 9-2 at 162.
Id. at 217.
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On May 17, 2017, the Ohio Supreme Court declined Potts’s appeal. 13
On May 2, 2018, over a year after the August 29, 2016 Ohio Court of Appeals
decision affirming his sentence, Potts filed an application to reopen his appeal under Ohio
Appellate Rule 26(B). 14 In his application, Potts argued that appellate counsel was ineffective
for failing to raise an ineffective assistance of trial counsel claim on appeal related to trial
counsel’s failure to add victim John Shepard’s Hancock County Sheriff’s Department
personnel record into evidence. 15
Potts argued that the record showed that Shepard had been disciplined in the past for
lying during internal investigations into his conduct as a corrections officer. 16 Because
Shepard’s testimony was central to the state’s case against him, Potts argued, Potts’ inability
to impeach Shepard with these personnel records due to trial counsel’s error constituted
ineffective assistance that compromised Potts’s Sixth Amendment confrontation right. 17
Appellate counsel was in turn ineffective, Potts claimed, for failing to raise this claim on
appeal.
On June 7, 2018, the Ohio Court of Appeals denied Potts’s reopening motion because
it was filed well after the 90-day motion deadline and Potts had not shown good cause to
excuse his delay. On July 23, 2018, Potts appealed the reopening denial to the Ohio
Supreme Court. On October 10, 2018, Potts was denied leave to appeal. 18
C. Federal Habeas Corpus Proceedings
13
14
State v. Potts, 74 N.E.3d 465 (Ohio 2017) (Table).
Doc. 9-2 at 297–306.
Id.
Id.
17
Id.
18
State v. Potts, 108 N.E.3d 1103 (Ohio 2018) (Table).
15
16
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On February 26, 2018, Potts petitioned this Court for federal habeas relief under 28
U.S.C. § 2254. 19 Potts argues that he was entitled to habeas relief because (1) Potts was
denied his Sixth Amendment confrontation right when the state trial court did not allow Potts
to cross examine victim witness John Shepard using his Hancock County Sheriff’s
Department personnel file; (2) Potts’s felonious assault conviction was based on insufficient
evidence; and (3) Potts’s separate punishments for burglary and felonious Assault violated
the Fifth Amendment Double Jeopardy Clause. 20 The state of Ohio opposes Potts’s habeas
petition. 21
The Court now turns to Potts’s petition.
II.
LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act, or “AEDPA,” allows federal courts
to grant relief for “extreme” constitutional “malfunctions” in a petitioner’s state criminal
proceedings. 22 AEDPA relief may address only federal constitutional concerns. “[I]t is not
the province of a federal habeas court to re-examine state-court determinations on state-law
questions.” 23
AEDPA also affords Ohio courts the full and fair opportunity to first consider alleged
violations of Ohio prisoners’ federal rights before Ohio judgments may be collaterally
challenged in federal court. 24 Under Ohio procedural rules, appealing defendants forfeit
19
Doc. 1
Doc. 1-1.
21
Doc. 9.
20
22
23
Brecht v. Abrahamson, 507 U.S. 619, 634 (1993).
Stewart v. Winn, 967 F.3d 534, 541 (6th Cir. 2020) (citing Estelle v. McGuire, 502 U.S.
62, 67–68 (1991)).
24
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam).
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claims not sequentially presented to Ohio appellate courts. Unless the defaulting defendant
shows a compelling excuse, procedurally defaulted claims become unreviewable in federal
habeas actions. 25
Before this Court will consider Potts’s claims, he must accordingly show that he has
already exhausted his Ohio remedies by “fairly present[ing] his claim in each appropriate
state court,” “including a state supreme court with powers of discretionary review.” 26
For any non-defaulted claims, to obtain relief under AEDPA, Potts must show: (1) that
the state court decisions he challenges were “contrary to or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States,” 27 and (2) that the federal error “had a substantial and injurious effect or
influence in determining the jury’s verdict.” 28
AEDPA is “not a substitute for ordinary error correction through appeal.” 29
Accordingly, a state court decision must be not simply wrong but objectively unreasonable
in a fundamentally prejudicial way to warrant § 2254 relief. 30
III.
DISCUSSION
A. Confrontation Claim
Potts’s confrontation claim is procedurally defaulted. Though Potts raised the claim
on direct appeal to the Ohio Court of Appeals, 31 he entirely omitted it from his Ohio Supreme
25
26
27
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
28 U.S.C. § 2254(d).
Brecht, 507 U.S. at 638.
29
Harrington v. Richter, 562 U.S. 86, 102–03 (2011).
30
Williams v. Burt, 949 F.3d 966, 974 (6th Cir. 2020).
31
Doc. 9-2 at 81.
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Court notice of appeal. 32 Potts then failed to present a timely ineffective assistance of
appellate counsel claim under Ohio Appellate Rule 26(B), similarly defaulting any viable
collateral claim.
Any ineffective assistance of Potts’s counsel, whether on discretionary appeal to the
Ohio Supreme Court or in collateral reopening proceedings under Ohio Appellate Rule
26(B), cannot serve as cause and prejudice to excuse Potts’s default. In neither his Rule 26(B)
motion nor his request to have the Ohio Supreme Court review his case was Potts entitled
to counsel. 33 Potts therefore did not have the right to effective assistance of counsel in either
proceeding. 34
Thus, Potts’s confrontation claim, and any ineffective assistance of trial or appellate
counsel claims that might revive his underlying confrontation claim, are procedurally
defaulted without exculpatory cause and prejudice. 35 The Court therefore declines to review
Potts’s confrontation claim or any ineffective assistance of counsel claim related to it.
B. Sufficiency of the Evidence Claim
Potts next claims that the prosecution did not sufficiently prove his felonious assault
offense, in violation of the Fourteenth Amendment. Unlike his confrontation claim, Potts’s
sufficiency of the evidence claim was properly presented to the Ohio courts and is preserved
32
33
Id. at 216–29.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel
extends to the first appeal of right, and no further.”).
34
Coleman v. Thompson, 501 U.S. 722, 757 (1991) (“Because Coleman had no right to
counsel to pursue his appeal in state habeas, any attorney error that led to the default of
Coleman's claims in state court cannot constitute cause to excuse the default in federal
habeas.”).
35
Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another claim can itself be procedurally
defaulted.”).
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for federal habeas review. Even so, to obtain relief, Potts must still show that the last reasoned
state court decision affirming his conviction and sentence: (1) was “contrary to or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” and (2) that the federal error “had a substantial and
injurious effect or influence in determining the jury’s verdict.” 36
While substantial prejudice would be clear if Potts could demonstrate an
unreasonable federal error here, no such error occurred at Potts’s trial.
Potts’s claim
confronts two separate high legal bars: the sufficiency of the evidence standard and AEDPA
deference.
Regarding the former, sufficiency of the evidence challenges are difficult hills to climb
even on direct review. True, the prosecution bears the federal constitutional burden of
proving each of the charged crime’s elements beyond a reasonable doubt. 37 But once a
defendant has been convicted, his sentence must be affirmed if “after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 38
Further, when a federal habeas court considers a state court’s sufficiency of the
evidence decision on collateral review, AEDPA bolsters the already deferential Jackson
standard. 39 This means the federal habeas court must affirm a state sufficiency of the
Davis v. Ayala, 576 U.S. 257, 268–70 (2015) (citing 28 U.S.C. § 2254(d)).
In re Winship, 397 U.S. 358, 361 (1970).
38
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
39
Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018).
36
37
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evidence decision if any reasonable jurist could conclude, as the state court did, that the
prosecution satisfied its burden. 40
In determining whether the state court decision was unreasonable, we are bound by
Ohio courts’ interpretation of Ohio law. 41 Petitioner Potts was convicted of felonious assault
under Ohio Revised Code § 2903.11(A)(2), which forbids an individual to “cause or attempt
to cause physical harm to another or to another’s unborn by means of a deadly weapon or
dangerous ordnance.” The parties agree both that the firearm Potts used in the offense was
a deadly weapon and that Shepard was not physically harmed by the gun during the June
25, 2015 struggle. The question for the Court, therefore, is whether Potts attempted to harm
Shepard with the gun.
The Ohio Supreme Court has held that a defendant commits a criminal attempt when
he “purposely does or omits to do anything which is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commission of the
crime.” 42 A “substantial step,” in turn, is conduct “strongly corroborative of the actor’s
criminal purpose.” 43 But a substantial step “need not be the last proximate act prior to the
consummation of the felony.” 44
Id.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”) (collecting cases) (emphasis
40
41
added).
State v. Brooks, 542 N.E.2d 636, 641 (Ohio 1989).
Id.
44
Id.
42
43
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Viewing the evidence in the light most favorable to the prosecution, a rational trier of
fact could have found that on June 25, 2015, Potts intended to cause Shepard physical harm
with a firearm and took a substantial step toward doing so.
Potts testified that he went to Shepard’s house at night armed with a knife and loaded
handgun despite a prior criminal trespass warning and a mutual no-contact agreement. 45
Shepard testified that when he went to answer the door after Potts knocked, Potts threw
himself into the door attempting to gain entry, striking Shepard in the head and breaking the
door chain that secured Shepard’s home. 46 While Shepard was attempting to push Potts
outside the house and shut the door, Potts stuck his arm through the door and pointed a
loaded firearm at Shepard. 47 Shepard managed to grab Potts’s gun with both hands, and the
men struggled over the weapon until police arrived. 48
Though Potts emphasizes the fact that he never fired the weapon and never verbally
threatened Shepard, a reasonable jurist could have found that a reasonable jury could have
believed that Potts intended to use the gun to harm Shepard. Potts pointed the gun at
Shepard, repeatedly attempted to enter Shepard’s house with it, and struggled with Shepard
over the gun when Shepard resisted Potts. 49
Potts’s conduct before June 25, 2015, further corroborated Potts’s criminal intent, as
Potts had a revenge motive to harm Shepard after Potts’s girlfriend made sexual assault
allegations against Shepard. 50 Though those allegations were disputed, Potts indicated that
45
Doc. 9-5 at 44–45.
Id. at 14–17.
47
Id. at 17, 22.
48
Id. at 17–18.
49
Id. at 14–22.
50
Id. at 44–45.
46
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he still believed his girlfriend and was concerned that Shepard would again sexually assault
her while she served her short falsification sentence, prompting Potts to visit Shepard on the
night of the assault. 51
Also, Potts’s June 25, 2015 conduct considerably escalated the Potts and Shepard
hostilities. In the earlier contact, Potts left his unloaded firearm in his car. 52 By contrast, on
June 25, 2015, Potts brought the firearm with a loaded magazine and chambered round as
well as a knife to Shepard’s door. 53
Notably, on the latter occasion, Potts was already defying a no-contact agreement and
criminal trespass warning by coming to Shepard’s home. And Potts did so with a renewed
sense of danger, at least in Potts’s mind, that Shepard would harm Potts’s girlfriend. 54 Also,
on the night of the June 25, 2015 assault, Potts parked his car in an inconspicuous place
away from Shepard’s residence with easy highway access—in contrast with their first
encounter when Potts pulled into Shepard’s driveway. 55
Potts’s arguments about different ways to weigh the evidence are inappropriate here.
In this habeas review of Potts’s insufficiency argument, the Court views the evidence in the
light most favorable to the prosecution. 56 Doing so here shows that it was reasonable for the
Ohio Court of Appeals to conclude that the jury reasonably convicted Potts of felonious
assault. 57
51
52
53
Id.
Id. at 43.
Id. at 45.
Id. at 44–45.
55
Id. at 45.
56
Jackson, 443 U.S. at 319.
57
Thomas, 898 F.3d at 698.
54
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Potts’s reliance on the Sixth Circuit’s decision in Nash v. Eberlin 58 is similarly
misguided. In Nash, the Sixth Circuit on federal habeas review of an Ohio felonious assault
conviction found that the petitioner’s conduct of pointing a gun at his wife to “scare” her and
accidentally firing the gun during a struggle over the firearm was insufficient evidence that
the petitioner attempted to cause his wife physical harm. 59
Nash is distinguishable from this case for several reasons: First, this case involves a
continuing dispute and escalating hostilities between the defendant and victim. Second,
Potts, unlike Nash, committed aggravated burglary against the victim, struck the victim in
the head with the door, and stuck a firearm through the door while pointing it at the victim.
Third, Potts was armed with multiple deadly weapons. Fourth, Potts parked his car to make
a quick getaway after the assault. And fifth, Potts had a clear revenge motive against Shepard
and perceived need to protect his girlfriend from further harm at the hands of Shepard.
All told, there is stronger corroborative evidence of Potts’s intent to harm Shepard
than there was in Nash. Viewing this evidence in the light most favorable to the prosecution,
it was reasonable for the Ohio Court of Appeals to affirm Potts’s felonious assault
conviction. 60
C. Double Jeopardy Claim
Finally, Potts argues that his separate convictions and punishments for aggravated
burglary and felonious assault violate the Fifth Amendment’s Double Jeopardy Clause. 61
Nash v. Eberlin, 258 F. App’x 761 (6th Cir. 2007).
Id. at 765–68.
60
Thomas, 898 F.3d at 698.
58
59
61
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Potts properly preserved his double jeopardy claim for habeas review by raising it before the
Ohio Court of Appeals and the Ohio Supreme Court. 62
The Double Jeopardy Clause forbids multiple punishments for the same offense. 63
Whether two offenses are in fact “the same offense” is a question of legislative intent. 64 And
in this federal habeas posture, legislative intent is an Ohio law question. 65 In evaluating a
double jeopardy habeas claim, this Court is accordingly bound by the Ohio courts’
interpretation of the Ohio legislature’s intent in defining criminal offenses. 66 And a remedy
is available to a federal habeas petitioner only where an Ohio court ignores the legislature’s
intent in punishing the petitioner’s crimes separately. 67
To determine whether multiple offenses may garner separate punishments, Ohio
courts ask three questions: “(1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with a separate animus or
motivation?” 68 If the court answers any one of these questions affirmatively, Ohio law
authorizes multiple punishments for multiple offenses. 69
Applying this test, the Ohio Court of Appeals concluded that Potts’s felonious assault
and aggravated burglary convictions had separate import because they had distinct victims—
62
Doc. 9-2 at 81, 217.
Brown v. Ohio, 432 U.S. 161, 165 (1977).
64
Volpe v. Trim, 708 F.3d 688, 696–97 (6th Cir. 2013).
65
Id. at 697.
63
66
67
Id.
Jackson v. Smith, 745 F.3d 206, 214 (6th Cir. 2014) (“At worst, the state court incorrectly
applied Ohio’s allied offenses statute to determine the legislature’s intent. Habeas relief,
especially when circumscribed by § 2254(d)(1), is not available for such alleged errors.”)
(footnote omitted).
68
State v. Ruff, 34 N.E.3d 892, 899 (Ohio 2015).
69
Id.
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John Shepard for the felonious assault and John and Kim Shepard for the aggravated
burglary. 70 We are bound by the Ohio courts’ interpretation of Ohio law. Because the Ohio
Court of Appeals conclusion that Kim Shepard was a victim of Potts’s aggravated burglary
offense was factually reasonable, 71 no double jeopardy violation occurred in Potts’s state
court proceedings. 72
In a last gasp effort to challenge the Ohio Court of Appeals separate victims finding,
Potts argues that the indictment and bill of particulars identified only John Shepard as the
victim of Potts’s crimes. But even if this claim could otherwise support federal habeas relief,
it is factually inaccurate. The September 29, 2015 Hancock County bill of particulars
specifically states that “John and Kimberly Shepard were present in the residence” at the time
Potts committed the felonious assault and aggravated burglary. 73
IV. CONCLUSION
For these reasons, the Court DENIES Potts’s 28 U.S.C. § 2254 petition.
IT IS SO ORDERED
Dated: February 22, 2021
70
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Potts, 69 N.E.3d at 1252–53 (citing Ruff, 34 N.E.3d at 898 (“We therefore hold that two
or more offenses of dissimilar import exist within the meaning of [Ohio Revised Code §]
2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or
if the harm that results from each offense is separate and identifiable.”)).
71
28 U.S.C. § 2254(d)(2), (e)(1).
72
Smith, 745 F.3d at 214.
73
Doc. 9-2 at 5.
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