Malvasi v. Warden David W. Gray

Filing 10

Report and Recommendation that 1 Petition for Writ of Habeas Corpus (2241) filed by Michael Malvasi be dismissed. (Objections to Report & Recommendation due by 10/09/2024). Signed by Magistrate Judge James E. Grimes Jr. on 09/25/2024. (M,MT)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL MALVASI,
Petitioner,
vs.
WARDEN DAVID W. GRAY, 1
Respondent.

CASE NO. 4:24-cv-474
DISTRICT JUDGE
JAMES R. KNEPP II
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT &
RECOMMENDATION

Pro se Petitioner Michael Malvasi filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Doc. 1. Malvasi is in custody at the Belmont
Correctional Institution due to a journal entry of sentence in the case State v.
Malvasi, Mahoning County Court of Common Pleas, Case No. 2018 CR 584.
The Court referred this matter to a Magistrate Judge under Local Rule 72.2
for the preparation of a Report and Recommendation. For the following
reasons, I recommend that the Petition be dismissed.
Summary of facts
In habeas corpus proceedings brought by a person under 28 U.S.C. §
2254, factual determinations made by state courts are presumed correct. 28

Shelbie Smith is the Warden at the Belmont Correctional Institution, so
Smith is the proper named Respondent. See Rumsfeld v. Padilla, 542 U.S. 426,
434–35 (2004).

1

U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that
presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d
439, 447 (6th Cir. 2012).
The Ohio Court of Appeals for the Seventh Appellate District
summarized the facts underlying Malvasi’s conviction as follows:
{¶2} On November 18, 2017, just after 2:45 a.m., a
white Mercedes crossover SUV, which was
registered to Appellant’s father, failed to negotiate
the second portion of the S-curve heading west on
Shields Road (U.S. 62) in Canfield Township. The
vehicle left the road, traveled down an embankment,
hit a tree, and then rolled at least two times. Ryan
Lanzo (the decedent) died at the scene from his
injuries sustained in the crash. The state believed he
was the front seat passenger and Appellant was the
driver.
{¶3} A bystander passed the scene sometime after
the crash occurred and called the police. Before the
police arrived, a vehicle arrived at the scene, and the
decedent’s body was retrieved. Appellant’s father
eventually transported the decedent’s body to an
Austintown health care center (variously called
urgent care or emergency care by witnesses).
***
{¶5} The case was tried to a jury in July 2021. The
decedent’s friend, Dante, testified about their night
in the hours before the crash. He went to the
decedent’s apartment where he consumed a mixed
drink with Appellant, the decedent, and another
friend. (Tr. 257-258). He also observed Appellant
and the decedent smoke marijuana. (Tr. 258-259).
Dante was originally planning to drive the group to
some bars but decided he wanted to drink that night.
When he mentioned using the services of Uber to
reach the bars, Appellant said not to worry because
he would drive. (Tr. 260-261). Dante testified he felt
2

unsafe in Appellant’s white Mercedes on the way to
the bar because Appellant had the music on the
highest volume, drove aggressively, took a turn at a
high speed, and failed to make a complete stop at a
traffic signal. (Tr. 262-263).
{¶6} At the first bar (Blue Wolf Tavern), Dante
observed Appellant drink a beer; he then spent his
time separate from Appellant (as he had just met
him that night). (Tr. 266). The decedent drank Long
Island iced tea at the bar. (Tr. 282). Eventually,
Dante walked next door to another bar (Suzie’s Dogs
and Drafts).
{¶7} After Appellant arrived at the second bar,
Dante saw him have one or two drinks and a shot.
(Tr. 270). Near the end of the night, the decedent
learned Dante would be getting a ride home from his
friend Jackie and asked if he could also obtain a ride
from this friend. Dante offered to call the decedent
an Uber. (Tr. 270-271).
{¶8} At that point, Appellant said he would be
leaving soon and he could take the decedent home.
(Tr. 272). Dante suggested the decedent should
decline the ride. The decedent replied, “don’t worry.
Mike’s the best drunk driver I know.” The decedent
and Appellant thereafter walked out of the bar. (Tr.
273).
{¶9} Jackie testified she met Dante at Blue Wolf
Tavern at 11:45 p.m. (Tr. 290-291). She said she only
had one glass of wine early in the night and noticed
the decedent consume three drinks at this bar. (Tr.
290, 293). She opined they left Blue Wolf Tavern for
Suzie’s Dogs and Drafts around 1:30 a.m. (Tr. 294).
She confirmed the decedent asked for a ride at the
end of the night and Dante offered to call him an
Uber. (Tr. 297). Jackie also heard Appellant offer to
drive the decedent home, noting Appellant seemed
in a rush to leave. (Tr. 298-301). After Appellant’s
offer, the decedent unsuccessfully offered to pay
people at her table for a ride home. (Tr. 299). She

3

believed this occurred after the lights came on at last
call around 2:30 a.m. (Tr. 301).
{¶10} A patron at Suzie’s Dogs and Drafts, Lauren,
testified she met Appellant on a prior occasion.
When he and the decedent first sat at her table on
the night at issue, Appellant seemed intoxicated.
Lauren had shots of Crown Royal with Appellant. By
the end of the night, he seemed “very intoxicated.”
(Tr. 318). Lauren was also intoxicated but said it was
not to an extreme level. (Tr. 317). When they all got
up to leave, Appellant fell into a table, which caused
a commotion involving Appellant, the patrons at
that table, and security. (Tr. 319). Opining he should
not drive, Lauren used Appellant’s phone to order
him an Uber to his address on Timber Run Drive in
Canfield. (Tr. 320-321).
{¶11} Lauren’s friend, Macy, testified she watched
Appellant drink beer and multiple shots. (Tr. 350).
She described Appellant as acting “blacked-out
drunk”; he was unable to form a sentence, slurred
his words, and was unsteady on his feet. (Tr. 346).
Macy said she had one beer at this bar and five beers
(or less) during an earlier six-hour period. (Tr. 347).
She was concerned because Appellant drove that
night and asked Lauren to leave with him and the
decedent. (Tr. 351). When she voiced her concerns
about Appellant’s intoxicated state and asked the
decedent to seek a ride with Dante, the decedent
said Appellant “is the best drunk driver that he
knows.” (Tr. 353-355). While watching a bar
surveillance video on the stand, Macy pointed out
Lauren using Appellant’s phone and Appellant
falling into a table. (Tr. 364-366).
{¶12} A resident near the scene of the crash testified
he fell asleep in his den while watching television
and woke at 2:46 a.m. As he stood up, he saw a
vehicle heading west around the first S-curve and
heard it accelerate. As he turned to leave the room,
he heard a lot of noise and then a loud thud. (Tr.
438). He opened the window but could not see or
hear anything, noting the crash site sits lower than
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the roadway. (Tr. 438-439, 441). This witness went
to bed and heard about the crash the next morning.
{¶13} A passerby, who described herself as a
designated driver, testified she noticed tracks
leading off the road and a vehicle in a yard. (Tr. 400401). After she dropped off her passengers and drove
past the scene, she saw a different vehicle parked in
a driveway and legs on the ground near the two open
doors on the driver’s side of the car. (Tr. 403). She
stopped at Argus Park and called 911 at 3:12 a.m.
(Tr. 403); (St.Ex. 4). She then turned around and
drove back past the scene, but the car was no longer
in the driveway. (Tr. 406).
{¶14} The first responding officer from the sheriff’s
department did not notice the crash when
approaching from the west but found it after turning
around and approaching from the east. They found
no victims at the scene of the crashed white
Mercedes; the fire department assisted in the search
using thermal imaging cameras. (Tr. 382, 385).
{¶15} Because the vehicle was registered to
Appellant’s father, police officers were dispatched to
the Malvasi residence on Timber Run Drive in
Canfield, where Appellant lived with his parents.
(Tr. 450-451, 854). A Canfield police officer testified
he saw Appellant talking on the phone through the
front window while another officer knocked on the
door around 3:45 a.m. Appellant looked at the officer
and then walked away down a hallway. They
continued knocking, but the occupants would not
come to the door. The officer thereafter saw
Appellant peek down the hall. (Tr. 450-454).
{¶16} At 3:52 a.m., Appellant’s father arrived at a
health center in Austintown, Ohio with the
decedent’s body; he was driving a four-door Toyota
sedan registered in his name. (Tr. 540, 841). There
were towels and dark stains on the seat; blood was
collected from inside the vehicle and from an object
in the trunk. (Tr. 609, 620-621).

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{¶17} A stipulation was entered into the record
which stated the following: Appellant’s father was
asleep when Appellant woke him; he went outside
where the Toyota used by his son was parked in the
driveway; the decedent, who appeared unconscious,
was in the backseat; and the father immediately
drove the vehicle alone to St. Elizabeth’s Emergency
Care. (Tr. 504).
{¶18} Surveillance footage recovered from a
neighboring house on Timber Run Drive showed the
garage of the Malvasi residence. This video showed
the following events: a car leaving the Malvasi
residence at 3:09 a.m.; the car returning at 3:16 a.m.;
the car leaving the residence again at 3:40 a.m.; and
headlights in the drive at 3:46 a.m. (upon the arrival
of the Canfield police). (Tr. 587-593). These times
were calculated after the witness found the camera
time was four minutes slow. (Tr. 588)
{¶19} A different surveillance video, from the house
across from the Malvasi residence, showed the
following events in the street: a subject walking
toward the Malvasi residence from the west (from
the direction of the crash) at 3:06 a.m.; a car heading
east (toward the crash) at 3:10 a.m.; a car heading
west (toward the house) at 3:16 a.m.; a car heading
east (toward the health center) at 3:41 a.m.; and two
Canfield police cruisers approaching at 3:45 a.m.
(Tr. 579-584). The times were calculated after the
witness found the camera time was five minutes
fast. (Tr. 505, 575).
{¶20} A business’s surveillance camera facing the
intersection of Shields Road and Route 46 recorded
a figure headed west (from the direction of the crash
site toward Appellant’s residence) at 2:56 a.m. This
footage also showed a vehicle headed east at 3:12
a.m., a vehicle headed west at 3:15 a.m., and a
vehicle headed east and turning north (toward
Austintown) at 3:42 a.m. (Tr. 699-704). The times
were calculated after the witness found the camera
time was one hour and eight minutes fast. (Tr. 696).

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{¶21} Not long after the Canfield police officers left
the Malvasi residence upon their unsuccessful
attempt to make contact with Appellant, one of the
officers returned for a stakeout to ensure Appellant
did not leave. A highway patrol trooper, who spoke
to Appellant’s father at the health center, went to
the house after the father called home to inquire
about his son’s condition and injuries. (Tr. 483, 486487). At 5:45 a.m., the Canfield police officer
knocked on the door accompanied by the trooper.
(Tr. 456-457).
{¶22} Appellant’s sister answered the door and let
them in the house. Appellant’s mother and sister
used a key to unlock the door to Appellant’s bedroom
where he was sleeping and groaning. (Tr. 459-460,
488). After Appellant complained of side pain, he
was evaluated by an emergency medical technician
(EMT) and transported to the hospital. (Tr. 460).
The Canfield police officer heard Appellant tell the
EMT he smoked marijuana and drank three to four
beers plus six shots. (Tr. 462).
{¶23} Two hours later, Appellant spoke to a trooper
at the hospital. He identified the decedent and said
he had no memory of the crash. He claimed the
decedent was the driver, alleging the decedent
started driving from the parking lot at Suzie’s Dogs
and Drafts. (Tr. 846). After a short break in the
interview, Appellant said the decedent argued with
him about driving while in the bar’s parking lot. (Tr.
851). He admitted smoking weed and said his
memory was lacking because of all the beer,
whiskey, and tequila he drank. (Tr. 852). The
trooper testified it took him seven minutes to drive
3.4 miles to the crash site from Suzie’s Dogs and
Drafts while traveling the speed limit. (Tr. 864). He
said the drive from the crash site to Appellant’s
house takes approximately two minutes. (Tr. 866).
{¶24} The forensic pathologist testified the decedent
suffered brain hemorrhaging of various types, a
lacerated blood vessel at the heart, lung contusions,
a lacerated liver, hemorrhaging in the pleural cavity
7

and abdomen, and fractured ribs and clavicle. (Tr.
518-519). The external injuries were mostly predeath abrasions. (Tr. 522-523). She believed he died
“seconds to minutes” after receiving the injuries,
with five minutes being the maximum. (Tr. 520).
{¶25} An agent from the Ohio Department of Public
Safety testified to his review of surveillance videos
from the two bars (after the bar owners and their
contracted technology representatives testified
about providing the videos to law enforcement).
(St.Ex. 152, 153). After viewing BMV photographs of
Appellant and the decedent, this agent spotted them
arriving at Blue Wolf Tavern at 11:46 p.m. (Tr. 640641). At 12:20 a.m., Appellant was seated at the bar.
At 1:24 a.m., Appellant and the decedent exited Blue
Wolf Tavern. (Tr. 642). The time on the video was
found to be accurate. (Tr. 639).
{¶26} The video from Suzie’s Dogs and Drafts shows
a white SUV entering the parking lot around 1:30
a.m. (calculated after the agent found the camera
time was 14 minutes slow). (St.Ex. 153); (Tr. 651).
The agent noted he could see the clothing worn by
the driver and passenger as they exited the vehicle
and approached the entrance to the bar. (Tr. 651658). Macy confirmed the identity of Appellant and
the decedent (including the clothing worn that
night) from the video for the agent. (Tr. 349, 359,
664-665). Jackie identified the two (and their
clothing) from still shots taken from the video. (Tr.
303-304). Appellant can be seen in the bar with the
decedent and other witnesses.
{¶27} Just prior to exiting the bar, Appellant
stumbled into his own table. While walking toward
the door, he staggered to the side, knocked over a
chair, and landed on a seated male patron while
causing the patron’s table to move from its position.
The decedent had to pull him off the patron. The
outside video thereafter shows Appellant and the
decedent exit the bar and walk to the white SUV
where it can be discerned that the decedent entered
the front passenger side of the vehicle and Appellant
8

entered the front driver’s side of the vehicle. The
agent also testified to this observation. (Tr. 663). The
car drove away at 2:39 a.m.
{¶28} The jury also watched videos Appellant posted
to Snapchat earlier in the night. (St.Ex. 151). The
first video clip had a 9:25 p.m. timestamp and
showed Appellant drinking a shot of Crown Royal;
the next clip in the sequence showed him do another
shot, spilling some down his chin. Another clip was
shot from inside a vehicle stopped at a red light with
the camera held at a position near the center
armrest, which allowed the viewer to see the
Mercedes emblem on the steering wheel and the
vehicle’s clock reading 10:06; the camera then
turned to show Appellant singing to the music. (Tr.
713-715).
{¶29} A knit hat with an Arctic Cat logo was found
on the driver’s seat of the wrecked Mercedes. (Tr.
686-687, 900). The still shot taken from the bar video
showed Appellant wearing a knit cap with an
emblem on it. (Tr. 900). A phone attributed to the
decedent was found between the driver’s seat and
the driver’s door of the Mercedes. (Tr. 594, 613).
{¶30} The accident reconstruction expert testified
the crash occurred at the second 45-degree turn
heading west on Shields Road after Argus Park. At
the curves, there were warning signs, an overhead
light, and a suggested speed of 25 mph. (Tr. 744).
The expert documented three tire[] marks beginning
on the road and leading off the north side of the road
into the grass and down an embankment. He
explained the tracks showed the vehicle did not
drive straight off the road at the curve but tried (and
failed) to negotiate the curve. (Tr. 745). He believed
the vehicle was traveling at 43 to 45 miles per hour
through the crash site if it was not braking and 60
to 65 miles per hour if it had the brakes locked, but
he did not believe the brakes were locked due to the
curvature of the tire marks. (Tr. 787-788).

9

{¶31} Ninety feet after the vehicle started through
the grass, its right side near the front corner hit a
pine tree (standing 17 to 20 feet in height), shearing
the tree off at the base and uprooting the stump. (Tr.
746, 748). The vehicle then overturned, striking the
ground very hard on its left side and rolling at least
twice while in the grass and then probably again
over a gravel driveway. (Tr. 746-747, 797-798, 812).
Evidence of the overturns included missing tire
marks, the gouges in the grass, the debris field, and
the condition of the vehicle (including dirt on certain
parts of the vehicle and the missing driver’s side
mirror). (Tr. 747, 830). The vehicle landed upright
on its wheels on the other side of the gravel driveway
(facing the direction from which it was originally
driving on the road). The expert said the debris field
and crash scene spanned roughly 280 feet. (Tr. 747).
{¶32} The dashboard showed evidence of impacts
with the occupants; their denim pants left imprints,
which indicated they were not wearing seatbelts.
(Tr. 776). The imprint on the driver’s side was under
the steering wheel. There was a separate imprint on
the passenger side, which seemed to slide up the
dashboard (where the glove compartment met the
console). (Tr.768-769). The expert explained the
occupants were thrown to the left, toward the
driver’s side, as the vehicle rolled upside down. (Tr.
797-798, 801-802, 813).
{¶33} The side airbags were deployed. The driver’s
window was missing, but the expert said an ejection
through the driver’s window during the roll was
unlikely due to the door and the deployed side
airbag, which had dirt on the outside. (Tr. 749, 798).
The rear window was missing, but a cargo cover was
crushed into the space, which blocked that potential
ejection route.
{¶34} The sunroof was expelled from the top of the
vehicle, and there was damage to the left rear
sunroof frame. For instance, the fabric around the
interior sunroof corner indicated an impact with and
abrasion by an object being ejected through the hole
10

in the roof. (Tr. 750). The outside of this sunroof
corner was free of mud and sod, suggesting someone
was caught between the roof and the grass as the
vehicle rolled. (Tr. 777). One of the injuries running
down the decedent’s left leg was angled in a shape
matching the sunroof’s angled support arm. (Tr. 775777). The spacing between the injuries at the bottom
of the decedent’s leg and pant leg corresponded to
the layout of the sunroof frame. (Tr. 782, 798-799).
The expert opined to a reasonable degree of scientific
certainty the decedent had been in the passenger
seat and was then thrown to the left through the
sunroof. (Tr. 797).
State v. Malvasi, 203 N.E.3d 823, 827–32 (Ohio Ct. App. 2022).
Procedural background
Trial court proceedings
In June 2018, the Mahoning County Grand Jury issued an indictment
charging Malvasi with aggravated vehicular homicide, vehicular homicide, two
counts of not stopping after an accident, tampering with evidence, and
operating a vehicle impaired. Doc. 8-1, at 3–5 (Exhibit 1). 2 Malvasi retained
counsel and pleaded not guilty. Id. at 6 (Exhibit 2).
Malvasi filed two motions to suppress. In the first motion, he moved to
suppress his blood-draw results and statements that he made to the police.
Doc. 8-1, at 8–12 (Exhibit 4-A). In the second motion, he moved to suppress all
of the evidence and testimony related to the police searches of his cell phone
records, Snapchat account, and the Mercedes. Id. at 149–54 (Exhibit 4-C). The

In this report and recommendation, all of the citations to the docket refer
to the ECF document and page number shown at the top of the page.

2

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court sustained the first motion as to Malvasi’s blood-draw results but
overruled the motion as to Malvasi’s statements. Id. at 188–90 (Exhibits 4-E,
4-F). The court overruled the second motion. Id. at 188–99.
Malvasi filed a motion for a Daubert hearing 3 to challenge the reliability
of the State’s accident reconstructionist. Doc. 8-1, at 191–92 (Exhibit 5-A). The
court held a hearing, Doc. 8-2, at 199–252, and overruled Malvasi’s motion to
exclude the reconstructionist, Doc. 8-1, at 239 (Exhibit 6).
The case proceeded to trial, and the jury found Malvasi guilty on all
counts. 4 Doc. 8-1, at 240–41. The trial court sentenced Malvasi on each of the
counts; ordered some of the sentences to run concurrently and some of them to
run consecutively; and sentenced Malvasi to an aggregate term of 12 years in
prison and a mandatory lifetime driver’s license suspension. Id. at 242–44.
Direct appeal
Malvasi, through new counsel, appealed to the Ohio court of appeals.
Doc. 8-1, at 245–46 (Exhibits 9, 10). In his brief, he raised the following
assignments of error: 5
1. The trial court erred in permitting Trooper
Christopher Jester to testify concerning his opinion
that Appellant had been driving the car at the time

3

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

One of the not “stopping after accident” counts was “decreased to a thirddegree felony due to a special finding that Appellant did not know the accident
resulted in a death when he left the scene.” Malvasi, 203 N.E.3d at 832–33.
4

In this report and recommendation, Malvasi’s grounds for relief are
reproduced as written.

5

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of the accident and the decedent had been a
passenger in the car.
2. The trial court erred and abused its discretion by
permitting various witnesses to testify that the
decedent stated that Appellant was the “best drunk
driver” he knew.
3. The trial court erred and abused its discretion by
giving a flight instruction to the jury over the
objections of Appellant.
4. Appellant’s convictions are against the manifest
weight of the evidence.
Doc. 8-1, at 249. On December 14, 2022, the Ohio court of appeals affirmed the
trial court’s judgment. Id. at 307–31 (Exhibit 12).
On January 30, 2023, Malvasi appealed to the Ohio Supreme Court. Doc.
8-1, at 333. In his memorandum in support of jurisdiction, Malvasi set forth
the following propositions of law:
1. A trial court peers by permitting a witness to give
opinion testimony concerning the details of an
automobile accident when the witness is not
qualified to do so.
2. A trial court errs and abuses its discretion by
permitting various witnesses to testify that the
decedent stated that Appellant was the “best drunk
driver” he knew.
3. A trial court errs and abuses its discretion by
giving a flight instruction to the jury where the
evidence reveals that the defendant left the scene of
an accident to obtain medical assistance for another.
4. Appellant’s convictions are against the manifest
weight of the evidence.
Id. at 336 (Exhibit 14). On March 14, 2023, the Ohio Supreme Court declined
13

under its rule of practice 7.08(B)(4) to accept jurisdiction of Malvasi’s appeal.
Id. at 353 (Exhibit 16).
Federal habeas corpus petition
Malvasi states that on February 29, 2024, he placed in the prison
mailbox his federal habeas corpus petition under 28 U.S.C. § 2254. 6 Doc. 1, at
9. He raises the following grounds for relief:
Ground one: The trial court peers by permitting a
witness (trooper Christopher Jester) to give an
opinion testimony concerning the details of an
automobile accident when the witness is not
qualified to do so.
Supporting facts: The Appellant asserts that
the central issue in the case concerning whether or
not petitioner was driving the Mercedes in question
at the time of the accident. In that regard, the
prosecutor presented testimony of an alleged expert
witness to reconstruct the accident and determine
who was sitting where. This was done over the
objection of Petitioner, both in the form of a Daubert
motion and hearing, and an objection at trial.
Petitioner submits that the trial court committed
reversible error by permitting this testimony.
Ground two: The trial court erred and abused its
discretion by permitting various witnesses to testify
that the decedent stated that Appellant was the best
drunk driver he knew.
Supporting facts: The Petitioner asserts that
over objection of trial counsel, several witnesses
were permitted to testify that the decedent had
stated that Petitioner was the best drunk driver that
he knew. At one point during the trial, the parties
argued the merits of Petitioner’s objections in this
A petition is deemed filed when a petitioner places it the prison mailing
system. Houston v. Lack, 487 U.S. 266, 270 (1988).

6

14

regards. Petitioner argued that the statements
violated the hearsay rules of evidence.
Ground three: The trial court errors and abuses its
discretion by giving a flight instruction to the jury
where the evidence reveals that the defendant left
the scene of an accident to obtain medical assistance
for another.
Supporting facts: The Petitioner asserts that
the prosecutor sought and obtained a flight
instruction, over the objection of Petitioner.
Petitioner argued that this unsupported fact
indicated that Petitioner walked from the scene of
the accident to his home, took his father’s other
vehicle to retrieve the decedent, did so, and returned
home to have his father take the decedent to the
hospital. The record is devoid of any indication that
Petitioner left the scene in order to avoid
apprehension and, in fact, the evidence actually
reveals that police authorities knew the identity of
Petitioner immediately upon commencing their
investigation.
Doc. 1, at 6–7. The Warden filed a Return of Writ. Doc. 8. Malvasi has not filed
a Traverse and the time to do so has passed.
Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain
procedural requirements to have their claims reviewed in federal court. Smith
v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “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.” Daniels v. United States, 532 U.S. 374, 381

15

(2001). Although procedural default is sometimes confused with exhaustion,
exhaustion and procedural default are distinct concepts. Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state
remedies are “still available at the time of the federal petition.” Id. (quoting
Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies
are no longer available, procedural default rather than exhaustion applies. Id.
Exhaustion
A federal court may not grant a writ of habeas corpus unless the
petitioner has exhausted all available remedies in state court. 28 U.S.C. §
2254(b)(1)(A). A state defendant with federal constitutional claims must fairly
present those claims to the state courts before raising them in a federal habeas
corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have
jurisdiction to consider a claim in a habeas petition that was not ‘fairly
presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877
(6th Cir. 2003)). A constitutional claim for relief must be presented to the
state’s highest court to satisfy the fair presentation requirement. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999); Hafley v. Sowders, 902
F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the
factual and legal underpinnings of the claims to the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner

16

must present his claim to the state courts as a federal constitutional issue—
not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984).
Procedural default
Procedural default may occur in two ways. Williams, 460 F.3d at 806.
First, a petitioner procedurally defaults a claim by failing “to comply with state
procedural rules in presenting [the] claim to the appropriate state court.” Id.
In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors
when determining whether a claim is barred on habeas corpus review due to a
petitioner’s failure to comply with a state procedural rule: whether (1) there is
a state procedural rule applicable to the petitioner’s claim and whether the
petitioner failed to comply with that rule; (2) the state court enforced the
procedural rule; (3) the state procedural rule is an adequate and independent
state ground on which the state can foreclose review of the federal
constitutional claim; and (4) the petitioner can demonstrate cause for failing to
follow the rule and actual prejudice by the alleged constitutional error. 785
F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the
petitioner’s failure to comply with the procedural rule, the state court declines
to reach the merits of the issue, and the state procedural rule is an independent
and adequate grounds for precluding relief, the claim is procedurally
defaulted.”) (citing Maupin, 785 F.2d at 138).

17

Second, “a petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s ‘ordinary
appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,
526 U.S. at 848). “If, at the time of the federal habeas petition, state law no
longer allows the petitioner to raise the claim, the claim is procedurally
defaulted.” Id. While the exhaustion requirement is satisfied because there are
no longer any state remedies available to the petitioner, see Coleman v.
Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal
claims considered in the state courts constitutes a procedural default of those
claims that bars federal court review, Williams, 460 F.3d at 806.
To overcome a procedural bar, petitioners must show cause for the
default and actual prejudice that resulted from the alleged violation of federal
law that forms the basis of their challenge, or that there will be a fundamental
miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at
750.
Merits review
If a state’s courts adjudicated the merits of a claim, a habeas petitioner
may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish
one of two predicates. To establish the first predicate, the petitioner “must
identify a ‘clearly established’ principle of ‘Federal law’ that” has been
established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,
231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must

18

then show that state’s court’s adjudication “was contrary to,” or “involved an
unreasonable application of” that “clearly established” precedent. 28 U.S.C. §
2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.
To establish the second predicate, the petitioner must show that the
state’s court’s adjudication “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)(2).
“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 the
[United States Supreme] Court on a question of law or” based on “a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13
(2000). “Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing legal
principle from th[e] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application
of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely
wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).
“[A] ‘clearly established’ principle of ‘Federal law’ refers to the
“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at
231 (quoting White, 572 U.S. at 419). A state court is not required to cite
Supreme Court precedent or reflect an “awareness” of Supreme Court cases,

19

“so long as neither the reasoning nor the result of the state-court decision
contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.
Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not
addressed the petitioner’s specific claims, a reviewing district court cannot find
that a state court acted contrary to, or unreasonably applied, Supreme Court
precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,
77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or license federal
courts to treat the failure to do so as error.”).
In determining whether the state court’s decision involved an
unreasonable application of law, the Court uses an objective standard.
Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks
merit precludes federal habeas review so long as ‘fair-minded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

20

Discussion
1. Ground one is not cognizable
In ground one, Malvasi argues that the trial court erred when it
permitted the State’s expert witness to testify. Doc. 1, at 7. Malvasi asserts
that the witness, an accident reconstructionist, was not qualified “to
reconstruct the accident and determine who was sitting where.” Id. He submits
that the court made an erroneous ruling over his objection “both in the form of
a Daubert motion and hearing” and during trial. Id.
“[E]rrors in application of state law, especially with regard to the
admissibility of evidence, are usually not cognizable in federal habeas corpus.”
Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); see Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (a federal habeas court does not “reexamine state-court
determinations on state-law questions,” including the admissibility of
evidence). In Daubert, the United States Supreme Court held that Federal
Rule of Evidence 702 requires a trial judge to ensure that an expert’s testimony
is relevant and based on a reliable foundation. 509 U.S. at 597. But Daubert
doesn’t apply to state criminal proceedings, so ground one, which rests on Ohio
law, is not cognizable. See Norris v. Schotten, 146 F.3d 314, 335 (6th Cir. 1998)
(“Daubert concerned the Federal Rules of Evidence which is not relevant to
[the habeas petitioner’s] conviction”); Hale v. Shoop, No. 1:18-cv-504, 2021 WL
1215793, at *39 (N.D. Ohio Mar. 31, 2021).

21

“When an evidentiary ruling is so egregious that it results in a denial of
fundamental fairness, it may violate due process and thus warrant habeas
relief.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). To rise to the level
of a due process violation, a state-court evidentiary ruling must “offend[] some
principle of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996), in turn quoting
Patterson v. New York, 432 U.S. 197, 202 (1977)).
Here, Malvasi has not shown that the trial court’s ruling deprived him
of fundamental fairness. The Ohio court of appeals rejected Malvasi’s claim as
follows:
{¶37} Before trial, Appellant filed a motion in limine
seeking to preclude the opinion of the state’s
accident reconstruction expert and asking for a pretrial hearing on the issue. The expert testified at a
hearing on October 16, 2021, and the court overruled
Appellant’s motion. (10/19/20 J.E.). At trial, defense
counsel renewed his motion as to the expert, and the
court overruled the motion again. (Tr. 730-731).
{¶38} On appeal, Appellant first contends this
witness was not properly qualified as an expert in
accident reconstruction as required by Evid.R.
702(B). He suggests the witness may have been an
expert in accident investigation but lacked sufficient
training or experience in accident reconstruction.
{¶39} A witness who testifies as an expert must be
“qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding
the subject matter of the testimony * * *.” Evid.R.
702(B). “Neither special education nor certification
is necessary to confer expert status upon a witness.
22

The individual offered as an expert need not have
complete knowledge of the field in question, as long
as the knowledge he or she possesses will aid the
trier of fact in performing its fact-finding function.”
State v. Hartman, 93 Ohio St.3d 274, 285, 754
N.E.2d 1150 (2001). See also State v. Thompson, 141
Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,
¶127 (the witness need not be the best witness on
the subject to be qualified as an expert).
{¶40} The determination of an expert’s qualifications
to testify on a particular subject is within the sound
discretion of the trial court and reviewable only for
an abuse of discretion. State v. Jones, 90 Ohio St.3d
403, 414, 739 N.E.2d 300 (2000). Under such
standard, the decision is upheld unless it is
unreasonable, arbitrary or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶41} At the time of the initial hearing, the expert
had been a trooper with the Ohio State Highway
Patrol for over 26 years. He was a crime and crash
scene reconstructionist with almost 1,500 hours in
traffic crash and crime scene training. Of those
hours, 868 were specific to traffic crashes, including
40 specific to the placement of occupants or
pedestrians during a crash. (Hrg.Tr. 3-5). The expert
taught three levels of courses in crash investigation.
(Hrg.Tr. 6). He had previously been qualified to
testify as an expert in accident reconstruction in
Columbiana, Mahoning, and Trumbull Counties.
(Hrg.Tr. 5-6).
{¶42} The expert’s CV shows he engaged in low level
accident reconstruction prior to 2004, at which time
he trained in crash reconstruction and began serving
as an accident reconstructionist. (St.Ex. 1). He
completed over 300 reconstruction cases for local,
state, and federal agencies between 2004 and 2017.
He also served as a reconstruction training officer
for new investigators and developed protocols for the
reconstruction unit. His training courses were listed
on the CV. At trial, he again reviewed his
23

qualifications as an expert, noting he was a full-time
crash and crime scene reconstructionist since 2012.
(Tr. 734-740).
{¶43} As the state points out, the expert’s
qualifications in accident reconstruction were
established to a greater degree than those in a prior
case where we found an officer was properly
qualified to testify on accident reconstruction. See
State v. Brady, 7th Dist. Mahoning No. 13 MA 88,
2014-Ohio-5721, 2014 WL 7356781, ¶ 46 (where a
police officer of 20 years was assigned to the accident
investigation unit for 13 years, took a reconstruction
course, and was previously qualified as a
reconstruction expert). See also State v. DeWalt, 7th
Dist. Carroll No. 08 CA 852, 2009-Ohio-5283, 2009
WL 3165615, ¶ 24 (finding a trooper was qualified as
an accident reconstruction expert where he took
courses on the subject and previously testified as an
expert on the subject six times).
{¶44} Here, we have an Ohio State Highway Patrol
trooper with a quarter century of accident
investigation experience who was trained in
reconstruction, worked in the crash and crime scene
reconstruction unit since 2004, was a full-time crash
and crime scene reconstructionist since 2012,
completed reconstructions in over 300 cases, and
was previously qualified as an expert in at least
three counties. The trial court did not abuse its
discretion in finding the state’s expert was qualified
to testify on accident reconstruction.
{¶45} Appellant next contends the expert’s
reconstruction methods were not established to be
reliable under Evid.R. 702(C) and the principles in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Appellant claims there was no proof the results were
subject to replication. He points out the decedent’s
location in the vehicle at the time of the crash was a
central issue in the case. In citing case law on expert
testimony, he also mentions the testimony must be
relevant and with a probative value that is not
24

outweighed by the risks of unfair prejudice,
confusing the issues, or misleading the jury.
{¶46} An expert’s testimony must be based on
“reliable scientific, technical, or other specialized
information.” Evid.R. 702(C). If the testimony
reports the result of a procedure, test, or experiment,
then it is reliable only if: (1) the theory is objectively
verifiable or validly derived from widely accepted
knowledge, facts, or principles; (2) the design
reliably implements the theory; and (3) it was
conducted in a way that will yield an accurate result.
Evid.R. 702(C)(1)-(3).
{¶47} In determining whether the opinion of an
expert is reliable, the trial court examines whether
the expert’s conclusion is based on scientifically
valid principles and methods, not whether the
opinion is correct. Miller v. Bike Athletic Co., 80 Ohio
St.3d 607, 611-613, 687 N.E.2d 735 (1998) (reversing
the trial court’s exclusion of an expert opinion),
citing Daubert, 509 U.S. at 592-593, 595, 113 S.Ct.
2786. Factors to consider when evaluating the
reliability of scientific evidence include whether the
theory or technique has been tested and/or subjected
to peer review, the potential rate of error, and
whether the methodology is generally accepted.
Miller, 80 Ohio St.3d at 611, 687 N.E.2d 735 (the
inquiry is flexible), citing Daubert, 509 U.S. at 593594, 113 S.Ct. 2786.
{¶48} The expert testified the speed calculation is a
simple, long-standing concept taught in basic
courses (and is even taught in courses that do not
rise to the level of accident reconstruction). He
explained the equation inputs (for the friction factor
of the surface and the distance the vehicle traveled
over the surface). (Hrg.Tr. 18). He additionally
mentioned using a 3D laser scan and forensic
mapping to record the condition of the vehicle and
the scene; he also took photographs while he
evaluated the vehicle at the scene. (Hrg.Tr. 9, 20-21).
The expert explained his knowledge, gained from
training and experience, that ejection from a vehicle
25

likely leaves evidence at the edges of the opening,
such as the fabric abrasion at the corner of the
sunroof. He also explained how clothing imprint
marks are left on a dashboard from an impact during
a crash, noting this is a common occurrence on the
inside and outside of vehicles when a person collides
with a vehicle surface at high velocity. (Hrg.Tr. 2325).
{¶49} The accident reconstruction expert said his
methods, techniques, equations, and tools were
generally accepted throughout the world in the field
of accident reconstruction and investigation and
were not unique. (Hrg.Tr. 31). Moreover, his report
was subjected to peer review by a supervisor in order
to lower the error rate and verify the conclusions
such as the rolling of the vehicle. (Hrg.Tr. 30, 47, 49).
At trial, he reiterated much of his experience and the
process utilized. In addition, the evidence he relied
on was viewable by the fact-finder in photographs
and in maps he was trained to make (including the
damage to and features of the outside and inside of
the vehicle, the tire marks and gouges in the ground,
the debris field, and the damage to the clothing and
skin).
{¶50} Merely because the expert could not say the
accident “absolutely” occurred as he described or
could not say a future accident would always happen
in this same manner did not mean the
reconstruction opinion was unreliable as to this
particular accident considering all of the
circumstances before the expert. Moreover, the
consideration of reproducible results relates to the
conclusion of an expert who employs a test or
method for the facts at issue. The final
interpretation of all existing data was not an
experiment; nor was it a test in and of itself. We also
note the expert voiced his conclusion to a reasonable
degree of scientific certainty. A “reasonable
certainty” is synonymous with “probability” not
absolutes. State v. Jackson, 92 Ohio St.3d 436, 751
N.E.2d 946 (2001). In fact, “expert witnesses in
criminal cases can testify in terms of possibility
26

rather than in terms of a reasonable scientific
certainty or probability.” State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 77
(applying the probability standard only to civil cases
is constitutionally sound), citing State v.
D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909
(1993). Issues with the certainty of the scientific
opinion are matters of sufficiency or weight of the
evidence. Id.
{¶51} Appellant also briefly complains the expert
failed to mention whether the occupants could have
dislodged from their seats before the vehicle
impacted the tree or evaluate whether the side
airbags could have inadvertently deployed before
the impact, noting there was a front airbag recall
based on inadvertent deployment. He also says the
expert failed to consider the tree strike in making
certain conclusions, such as on trajectory. As to the
latter argument, we note the trajectory was
supported by evidence such as tracks, ground
gouges, debris field, and vehicle condition and
position. Also, the expert explained the general
equation was based on friction without accounting
for strikes; it was not some omission on his part.
(Hrg.Tr. 41). The other subjects involve unsupported
theories raised by Appellant at trial. These were
topics for cross-examination and for the jury in
weighing the evidence. For instance, there is no
indication a front airbag recall (issued for
inadvertent deployment of a front airbag) had any
relation to the deployment of the side airbags in this
case (where the front airbags were not deployed).
Again, the credibility of the expert and the weight to
give his conclusions remained issues for the trier of
fact. Brady, 7th Dist. No. 13 MA 88 at ¶ 45.
{¶52} The trial court reasonably found the expert’s
opinion was reliable under Evid.R. 702(C), and the
decision was not arbitrary or unconscionable.
Moreover, the testimony was relevant under Evid.R.
401, and the probative value was not substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading of the jury
27

under Evid.R. 403(A). In sum, the trial court’s
decision to find the trooper was qualified to testify
as an expert in accident reconstruction and to allow
him to testify about the accident and the decedent’s
location in the vehicle was not an abuse of discretion.
Accordingly, this assignment of error is overruled.
Malvasi, 203 N.E.3d at 833–36.
“[A]s a state evidentiary matter, [Malvasi] presents no reason for this
court to believe [that the expert’s] testimony was admitted in error nor any
reason to believe that this testimony denied [him] a fundamentally fair trial.”
See Norris, 146 F.3d at 335. Ground one is not cognizable.
2. Ground two is not cognizable, and, alternatively, fails on the merits
In ground two, Malvasi alleges that the trial court erred when it
permitted witnesses to testify at trial that they heard the decedent state that
Malvasi “was the best drunk driver he knew.” Doc. 1, at 6. The Ohio court of
appeals considered this claim as follows:
{¶54} As set forth supra in our Statement of the
Case, the decedent asked for a ride home from people
other than Appellant at the end of the night. Dante
was getting a ride home from Jackie, but he offered
to summon an Uber for the decedent. At that point,
Appellant said he could transport the decedent and
would be leaving soon. Dante suggested the
decedent should decline the ride. The defense
unsuccessfully objected when Dante quoted the
decedent as follows: “don’t worry, Mike’s the best
drunk driver I know.” The decedent and Appellant
thereafter walked out of the bar. (Tr. 270-273).
{¶55} Macy separately voiced her concerns about the
decedent’s ride home due to Appellant’s intoxication.
She testified over objection that the decedent told
her Appellant was going to drive them. The court
28

overruled the objection after the state pointed out it
showed the decedent’s intent. The state then asked
Macy what gave her the impression Appellant would
be the driver. The court overruled another defense
objection, allowing Macy to testify the decedent told
her “[Appellant] is the best drunk driver that he
knows.” (Tr. 353-354).
{¶56} Appellant contends the statement about
Appellant being “the best drunk driver” the decedent
knew was inadmissible hearsay. He also claims the
prejudicial effect outweighed the probative value
under Evid.R. 403.
{¶57} We begin by pointing out the decedent’s
statements to his friends before leaving the bar were
non-testimonial; the primary purpose of the
statements was not to create an out-of-court
substitute for trial testimony. See State v. Ash, 7th
Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, 108
N.E.3d 1115, ¶ 72-75 (victim’s statements to
relatives), citing Ohio v. Clark, 576 U.S. 237, 135
S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015) (a
statement cannot fall within the confrontation
clause unless its primary purpose was testimonial);
Giles v. California, 554 U.S. 353, 376, 128 S.Ct.
2678, 171 L.Ed.2d 488 (2008) (statements to friends
not subject to confrontation clause); State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 185 (statement of defendant’s
daughter to the victim’s niece was non-testimonial).
This non-testimonial description does not appear to
be in dispute.
{¶58} Where a non-testimonial statement is
admitted, the confrontation clause does not apply,
and the matter is left to the application of state rules
of evidence such as hearsay rules. Michigan v.
Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 1143, 179
L.Ed.2d 93 (2011). Hearsay, which is generally
inadmissible, is “a statement, other than one made
by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the

29

matter asserted in the statement.” Evid.R. 801(C);
Evid.R. 802.
{¶59} As below, the state first claims the statement
was not hearsay because it was not offered to show
Appellant was the best drunk driver the decedent
knew. However, the statement also implicitly
indicates Appellant was drunk that night, which
was a fact the state was charged with establishing
at trial.
{¶60} In any case, the state asserts the contested
statement would be admissible under the statement
of intent exception to the ban on hearsay, which the
state also raised at trial in response to the objection.
This exception provides the following type of hearsay
is admissible:
Then Existing, Mental, Emotional, or
Physical Condition. A statement of the
declarant’s then existing state of mind,
emotion,
sensation,
or
physical
condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily
health), but not including a statement
of memory or belief to prove the fact
remembered or believed unless it
relates to the execution, revocation,
identification, or terms of declarant’s
will.
Evid.R. 803(3).
{¶61} “[S]tatements of current intent to take future
actions are admissible for the inference that the
intended act was performed.” State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 99
(a declarant’s statements that he was going to make
money and “take somebody out” for the defendant,
he had to be ready to go see the defendant, and he
would be right back after he picked up some money
were admissible under Evid.R. 803(3) to show the
declarant intended to meet with the defendant, pick
up money, and later kill a person), citing State v.
30

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶ 33 (it is a long-standing rule that a
statement of then-existing intent may be used as the
basis for introducing statements showing the
declarant’s forward-looking intent to prove he
thereafter acted in accordance with that intent).
{¶62} As the state points out, the contested
statement constituted a part of the declarant’s
stated intent and plan. Without allowing Dante to
testify to the statement, Dante could not have
disclosed the decedent’s declaration of his plan or
intent to accept Appellant’s offer of a ride and get in
the car with him driving. Presented in the context of
the conversation about who was driving the
decedent that night, the statement was offered to
show the decedent intended to ride with Appellant
notwithstanding the concerns over his drunkenness.
By the time Macy testified, the same statement was
already in the record.
{¶63} It was not an abuse of discretion for the trial
court to conclude the decedent’s reassurances to his
concerned friends not to worry because Appellant
was the best drunk driver he knew demonstrated
the decedent’s “current intent to take future actions”
and were “admissible for the inference that the
intended act was performed.” See Hand, 107 Ohio
St.3d 378, 840 N.E.2d 151 at ¶ 99. As such, the
decedent’s statements indicating he was accepting
Appellant’s offer of a ride were admissible under
Evid.R. 803(3) to prove he then acted in conformity
with his expressed intent.
{¶64} The decedent’s intent to get a ride with
Appellant notwithstanding his intoxication was
certainly relevant evidence. See Evid.R. 401
(relevant evidence is “evidence having any tendency
to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without
the evidence”). The admission or exclusion of
relevant evidence under Evid.R. 403(A) is within the
sound discretion of the trial court. State v. Skatzes,
31

104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio6391, ¶ 107.
{¶65} When an otherwise admissible statement is
relevant, it shall be excluded if its probative value
was not substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of
misleading the jury. Evid.R. 403(A). The contested
statement would not have confused or misled the
jury. It was admittedly prejudicial, including the
implication that the decedent may have witnessed
Appellant drive drunk in the past. Still, it is only
unfair prejudice to be weighed against the probative
value, as the state’s evidence will obviously
prejudice a defendant. Skatzes, 104 Ohio St.3d 195,
819 N.E.2d 215 at ¶ 107. The jury already heard
from Dante that Appellant drove him and the
decedent to the bar after Appellant consumed at
least one mixed vodka drink and smoked marijuana.
Plus, the probative value of the statement evincing
the decedent’s intent to ride with Appellant was very
high. It was reasonable to find the probative value of
the statements was not substantially outweighed by
the danger of unfair prejudice.
{¶66} Finally, the state also persuasively contends
that assuming arguendo there was a hearsay error
in admitting the contested statement, any error
would have been harmless. Appellant drove the
decedent to the bars in a wild manner while driving
a Mercedes owned by Appellant’s father. As
mentioned in reviewing prejudice, the jury already
heard from Dante that Appellant consumed at least
one mixed vodka drink and smoked marijuana
before driving them to the bar. Various witnesses
saw him drink more at the bars and watched him act
drunk, with his staggering and fall captured on
video for the jury. When the decedent sought a ride
from people at the end of the night, Appellant
specifically declared that he would drive the
decedent, and they then left the bar together.
Appellant’s offer of the ride to the decedent was the
defendant’s own statement and was thus nonhearsay. Evid.R. 801(D)(2)(a).
32

{¶67} Moreover, before Macy revealed the “best
drunk driver” statement, she had already disclosed
the decedent said he would be driven by Appellant
that night. In addition, the bar’s video (from less
than 10 minutes before the crash) showed Appellant
entering the vehicle through the driver’s door with
the decedent entering on the passenger side. With
these facts and the remainder of the facts collected
in our Statement of the Case, it is clear any error in
admitting the alleged hearsay statement would have
been harmless as there was overwhelming evidence
that Appellant was both intoxicated and the driver.
See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio5052, 24 N.E.3d 1153, ¶ 32 (even if there was
prejudicial error in admitting evidence, the
overwhelming other evidence rendered the error
harmless). For the various reasons expressed above,
this assignment of error is overruled.
Malvasi, 203 N.E.3d at 836–39.
Malvasi has not explained why he believes that the Ohio court of
appeals’ determination—finding non-testimonial under the “primary purpose”
test that the decedent’s statement to bar patrons that Malvasi was the “best
drunk driver [the decedent] knew,” see id. 836–37—was unreasonable. The
Ohio court of appeals applied the relevant law when making its finding, see
Ohio v. Clark, 576 U.S. 237, 244–45 (2015) (expounding on the “primary
purpose test”), and its conclusion was reasonable, see, e.g., Hand v. Houk, No.
2:07-cv-846, 2011 WL 2446383, at *32 (S.D. Ohio Apr. 25, 2011) (decedent’s
“statements to his relatives, friends, and acquaintances” without intent “of
bearing testimony against [the petitioner]” were non-testimonial), report and
recommendation adopted, 2013 WL 2372180, at *16 (S.D. Ohio May 29, 2013).

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Furthermore, as a non-testimonial statement, “the admissibility of [the]
statement is the concern of state and federal rules of evidence, not the
Confrontation Clause.” See Clark, 576 U.S. at 245–46 (quoting Michigan v.
Bryant, 562 U.S. 344, 359 (2011)). The Ohio court of appeals’ resulting
application of state law when evaluating Malvasi’s claim, therefore, was
proper. See Bryant, 562 U.S. at 359. And this means that this claim is not
cognizable. See, e.g., Wilbourn-Little v. Morrison, No. 2:23-cv-11394, 2024 WL
3909360, at *9 (E.D. Mich. Aug. 22, 2024) (petitioner’s challenge to the state
court’s interpretation of state-law hearsay exceptions is not cognizable); Lash
v. Sheldon, No. 1:19-cv-1616, 2020 WL 6712165, at *18 (N.D. Ohio Oct. 20,
2020) (same, citing cases), report and recommendation adopted sub nom. Lash
v. Turner, 2020 WL 6702051 (N.D. Ohio Nov. 13, 2020). And Malvasi hasn’t
shown that the trial court’s state-law evidentiary ruling “offend[s] some
principle of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.” See Seymour, 224 F.3d at 552. So ground two is
not cognizable.
Even if the decedent’s statement was testimonial and erroneously
admitted, which it was not, the Ohio court of appeals properly applied
harmless error review. See Malvasi, 203 N.E.3d at 838–39 (applying harmless
error review to any purported error the trial court may have made when
admitting the decedent’s statement); see also Blackston v. Rapelje, 780 F.3d
340, 359 (6th Cir. 2015) (“A violation of the Confrontation Clause does not

34

warrant automatic reversal but, rather, is subject to harmless-error analysis.”)
(citing Delaware v. Van Arsdall, 475 U.S. 673, 681–82 (1986)). Malvasi doesn’t
identify what about the Ohio court of appeals’ harmless error analysis he
believes was an unreasonable application of United States Supreme Court
precedent. He hasn’t persuaded me that this Court should “harbor grave doubt
about [his] verdict,” see Brecht v. Abrahamson, 507 U.S. 619 (1993), or that
“every fairminded jurist would agree that an error was prejudicial,” see Brown
v. Davenport, 596 U.S. 118, 134, 136 (2022) (explaining that, to prevail on
harmless error, a federal habeas petitioner must satisfy both the AEDPA
standard and the Brecht test).
Ground two is not cognizable and, alternatively, fails on the merits.
3. Ground three is procedurally defaulted and not cognizable
In ground three, Malvasi argues that the trial court erred when it gave
a flight instruction to the jury. Doc. 1, at 7.
“Before seeking a federal writ of habeas corpus, a state prisoner must …
giv[e] the State the opportunity to pass upon and correct alleged violations of
its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal
quotation marks and citations omitted). To do so, the prisoner must “fairly
present” the claim to the state court, “thereby alerting that court to the federal
nature of the claim.” Id.; Koontz, 731 F.2d at 368 (a habeas petitioner “must
present his claim to the state courts as a federal constitutional issue—not
merely as an issue arising under state law”).

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Here, Malvasi only presented this ground for relief to the Ohio courts as
a state law violation. He did not allege a federal constitutional violation. See
Doc. 8-1, at 248–49, 261–63 (brief on appeal to the Ohio court of appeals); 348–
49 (memorandum in support of jurisdiction on appeal to the Ohio Supreme
Court). Malvasi’s briefs relied on Ohio case law and Ohio jury instructions, and
the Ohio case that he cited relied, in turn, on other Ohio cases and Ohio jury
instructions. See id. (citing State v. Keller, No. 106196, 2018 WL 4933198, at
*10 (Ohio Ct. App. Oct. 11, 2028)); see Baldwin, 541 U.S. at 33 (“The petition
provides no citation of any case that might have alerted the court to [any
purported] alleged federal nature of the claim”). Because Malvasi failed to
present ground three to the Ohio courts as a federal constitutional violation, it
is procedurally defaulted.
Malvasi has not asserted cause or prejudice to excuse his procedural
default, or shown that his is “an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually
innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986); see Schlup v. Delo, 513
U.S. 298, 324 (1995) (a claim of actual innocence “requires the petitioner to
support his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.”).
Ground three is also not cognizable. “[T]he fact that the [jury]
instruction was allegedly incorrect under state law is not a basis for habeas

36

relief.” Estelle, 502 U.S. at 71–72. To prevail on federal habeas review, a
petitioner must show that “the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.” Id. at 72 (quoting Cupp
v. Naughten, 414 U.S. 141, 147 (1973)).
Malvasi has not made such a showing. As the Ohio court of appeals
explained:
{¶69} Defense counsel objected to a flight or
consciousness of guilt instruction before the jury was
charged. The court overruled the objection and gave
the following jury instruction:
Testimony
has
been
admitted
indicating that the defendant fled the
scene. You are instructed that fleeing
the scene alone does not weigh the
presumption of guilt, but it may tend to
indicate the defendant’s consciousness
of guilt.
If you find that the facts do not support
the defendant leaving the scene or if
you find that some other motive
prompted their conduct, or if you find
that, or if you are unable to decide what
his motive was, then you should not
consider this evidence for any purpose.
However, if you find that the facts
support that the defendant engaged in
such conduct, and you decide that it
was motivated by consciousness of guilt
you may, but are not required to
consider that evidence in deciding
whether or not he is guilty of the crime
charged. You alone will determine
what weight, if any, to give to this
evidence.

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(Tr. 979-980).
{¶70} A trial court’s decision to provide a particular
jury instruction based upon the facts of the case will
not be reversed absent an abuse of discretion,
requiring the decision to be unreasonable, arbitrary
or unconscionable. State v. Wolons, 44 Ohio St.3d 64,
68, 541 N.E.2d 443 (1989). It is well-established
“that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment,
assumption of a false name, and related conduct, are
admissible as evidence of consciousness of guilt, and
thus of guilt itself.” State v. Williams, 79 Ohio St.3d
1, 11, 679 N.E.2d 646 (1997). Clearly, flight from a
crash scene qualifies as a type of flight. State v.
Miller, 7th Dist. Mahoning No. 13 MA 12, 2014Ohio-2936, 2014 WL 2999192, ¶ 139 (fleeing the
scene instead of calling for ambulance), citing State
v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897
(1969) (“Flight from justice, and its analogous
conduct, have always been indicative of
consciousness of guilt”), overruled in part on other
grounds, Eaton v. Ohio, 408 U.S. 935, 92 S.Ct. 2857,
33 L.Ed.2d 750 (1972) (vacating death penalty).
{¶71} Appellant argues a flight instruction was not
warranted because he merely left the scene,
claiming he took no affirmative step to avoid the
police. He relies on the following Eighth District
holding: “a flight instruction should not be given
when a defendant merely departs from the scene of
a crime, unless deliberate flight is proven, such that
the defendant took affirmative steps to avoid
detection and apprehension.” State v. Keller, 8th
Dist. Cuyahoga No. 106196, 2018-Ohio-4107, 2018
WL 4933198, ¶ 63. The court distinguished between
mere departure from the scene and fleeing from the
scene, which is a deliberate act of avoiding detection
or evading the police. Id. at ¶ 63-64. Although the
Eighth District found the instruction should not
have been given, the court then found a lack of
prejudice to the defense and affirmed the conviction.
Id. at ¶ 65-66.

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{¶72} The facts of the Keller case have no similarity
to the case at bar. The victim in Keller said: she was
drinking at various places with the defendant and
others; she passed out at 6:00 a.m. next to the
defendant on the couch at her friend’s house; the
defendant raped her while she was passed out; he
was sleeping when she woke up to her alarm; and he
left the house while she was in the bathroom. That
defendant testified the sex was consensual and he
left after waking up at 9:00 a.m. because he was
embarrassed (with the victim’s boyfriend sleeping on
the other couch).
{¶73} Here, Appellant did not merely depart from
the scene of an accident involving a vehicle owned by
his father. There was evidence he used the vehicle to
drive to bars that night after he had an alcoholic
drink and smoked marijuana; there was also
evidence he drank at two bars and was intoxicated
at the end of the night at the final bar. His friend
was fatally injured in the accident, but he did not
call 911 or seek assistance from the nearby houses.
Instead, he walked or ran quite a distance to reach
his house. According to video evidence, it took him
ten minutes to walk to his house from the Route 46
intersection. This was in addition to the walk from
the crash site to that recorded intersection, which
seemed to be a similar distance. Then, when
Appellant arrived home, he still did not call 911.
Instead, he obtained another vehicle to drive back to
the scene where he dragged the decedent’s body into
his vehicle and left the scene a second time.
Appellant then went home again where the body
stayed for 25 minutes in his car (until his father
drove the car to an emergency care center).
{¶74} Furthermore, the police arrived at Appellant’s
house mere minutes after his father left. When they
knocked, Appellant was in the kitchen. Appellant
looked at the officer through the window and walked
away down a hallway instead of answering the door.
He peeked around the corner at the officer minutes
later, still refusing to answer the door despite ten
minutes of knocking. The police subsequently
39

learned of the fatality after the father reached the
emergency center.
{¶75} Collectively, the situation was more than mere
departure from a scene; there was evidence of
deliberate acts of evasion, concealment, and delay
(potentially in order to provide time to come up with
a story or to postpone alcohol testing). The reason
behind Appellant’s departure from the scene and
related conduct thereafter was a jury question. It
was not an abuse of discretion to conclude that
Appellant’s conduct could rationally be viewed as
constituting flight or “analogous conduct” after
crashing a vehicle while under the influence,
warranting a consciousness of guilt instruction. See
Eaton, 19 Ohio St.2d at 160, 249 N.E.2d 897.
{¶76} Moreover, the jury was specifically instructed
that if the defendant’s conduct of leaving the scene
was prompted by some motive other than
consciousness of guilt, then they should not consider
the conduct. In formulating the jury instructions,
the court was not required to accept the theory from
Appellant’s opening statement that he was merely
“stupid” by trying to “help” his friend in this manner
(or his claim to a trooper that he was not the driver).
The court did not abuse its discretion in providing
the consciousness of guilt instruction on flight. The
instruction would not have prejudiced the defense in
any event under the totality of the evidence as
reviewed in our Statement of the Case and
throughout this Opinion; contrary to his argument,
the other evidence showing he was the driver was
not weak but was overwhelming. This assignment of
error is overruled.
Malvasi, 203 N.E.3d at 839–40. Because Malvasi hasn’t shown that a
constitutional violation occurred, he is not entitled to relief. See Estelle, 502
U.S. at 72.

40

Conclusion
For the reasons set forth above, I recommend that Malvasi’s Petition be
dismissed.
Dated: September 25, 2024
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge

OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).

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