Glenn v. Warden, Ross Correctional Institution

Filing 17

REPORT AND RECOMMENDATIONS It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 1/2/2014. Signed by Magistrate Judge Michael R Merz on 12/16/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANTWAN GLENN,
Petitioner,

:

- vs -

Case No. 1:12-cv-706
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Ross Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. The Petition was
filed September 18, 2012. The Warden responded with a Motion to Dismiss (Doc. No. 6) which
District Judge Black denied on Magistrate Judge Litkovitz’s recommendation (Doc. Nos. 9, 14).
The Warden then filed a Return of Writ (Doc. No. 15). Petitioner has failed to file a reply within
the time allowed by Judge Litkovitz.
Petitioner Antwan Glenn was convicted of murder and aggravated robbery in the
Hamilton County Common Pleas Court on March 23, 2009, and sentenced to the imprisonment
from which he seeks release (Petition, Doc. No. 1, ¶¶ 1, 2, 5, PageID1 1). Glenn appealed to the
First District Court of Appeals which affirmed the conviction. State v. Glenn, 2011-Ohio-829,
2011 Ohio App. LEXIS 737 (1st Dist. Feb. 25, 2011). A further appeal to the Ohio Supreme
Court was rejected. 128 Ohio St. 3d 1516 (2011), and this timely2 habeas petition followed.

1

The Court=s electronic filing system (CM/ECF) automatically affixes a distinctive page number (shown in the
upper right-hand corner as PageID) to each page of each filed document. All citations to the filed record in this case
must refer to the PageID number.
2
Respondent moved to dismiss based on the claim that the Petition was filed outside the applicable one-year statute

1

Glenn pleads the following grounds for relief:
Ground One: The trial court erred to Glenn’s prejudice by
overruling his Batson challenge to the State’s dismissal of a
minority member of the jury pool.
Supporting Facts: It is prejudicial erro[r] for trial court to deny a
defendant’s Batson challenge when the State excuses a minority
member of the jury pool without stating race neutral reasons.
Ground Two: Antwan Glenn was denied due process and
prejudiced by the State’s prosecutorial misconduct.
Supporting Facts: When the prosecutor a[s]ks leading questions
of his own witnesses, it unfairly prejudices a defendant’s right to a
fair trial.
Ground Three: Abused [sic] of Discretion
Supporting Facts: Whether the trial court committed reversible
error by permitting irrelevant and prejudicial evidence to be
presented by the State of unrelated alleged bad acts of defendant
and co-defendant in this case.
Ground Four: Improper conduct of the assistance [sic] prosecutor
implying Glenn records of other bad acts.
Supporting Facts: Whether a defendant is denied the due process
of law by improper conduct of the assistant prosecutor in trying
their case.
(Petition, Doc. No. 1.)
The First District Court of Appeals found the following underlying facts:
[*P2] Glenn's convictions arose out of the robbery and death of

Reginald Rolland in the early morning hours of June 18, 2008.
Glenn had been indicted for aggravated murder, murder, and
aggravated robbery, with accompanying gun specifications. The
state proceeded against him as a principal or complicitor. Jovon
Davis, Nikkia Sullivan, and James Johnson were also charged with
the same crimes. Sullivan and Johnson agreed to testify truthfully
of limitations. Judges Litkovitz and Black rejected that defense and it is now the law of the case that the Petition
was timely filed.

2

for the state in exchange for a plea bargain that provided
incarceration for ten to 15 years.
[*P3] At trial, the state presented evidence that on the night of

June 17, 2008, Glenn had developed a plan with Sullivan and
Davis to rob people in the Avondale neighborhood of Cincinnati.
The plan involved Sullivan using her cellular phone to call or send
a text message to men whom she knew and enticing them to meet
her with the promise of sex. When the men arrived to meet her,
Glenn and Davis would rob them at gunpoint.
[*P4] Sullivan testified that a man named Chris became the

group's first victim. Sullivan called Chris and lured him to the
Commodore Apartments on Reading Road, and in response to
Davis's text messages, she led him up a dark stairwell where Glenn
and Davis were waiting. Glenn and Davis robbed Chris at
gunpoint.
[*P5] Next, Sullivan testified, the group attempted to rob a man

who met her near Lexington Park. When the man refused to walk
to the park with her, Sullivan texted Davis, who was waiting
nearby in a car with Glenn, for advice. Davis directed her to abort
the plan and to let the potential victim go.
[*P6] But the group reunited, and after scanning through

Sullivan's cellular phone directory, they chose Reginald Rolland as
their next victim. Either Glenn or Davis chose a house at 878
Hutchins Street as the location for the robbery. Sullivan recalled
that she had accompanied Glenn and Davis there in the past when
they had sold drugs to the occupants. Sullivan contacted Rolland,
and he agreed to meet her at the Hutchins Street address.
[*P7] Before going to Hutchins Street, Glenn, Davis, and Sullivan

met with Johnson, whom Davis had called and asked if he wanted
to "hit a lick." Johnson agreed to participate, and the four drove to
Hutchins Street in the car that Johnson had been driving, an
"[un]noticeable" Ford Contour that belonged to Jasmain Grier, the
girlfriend of one of Johnson's friends. Davis drove the Contour,
Glenn sat in the front passenger seat, and Sullivan and Johnson sat
in the back of the car. On the way to Hutchins Street, Glenn
removed and smoked a cigarette from a pack of Newport cigarettes
that Sullivan had brought into the Contour.
[*P8] Davis first parked the car in front of the house chosen for

the robbery but later moved it down the street. Sullivan received a
call on her cellular phone from Rolland and confirmed that he was
3

on his way to meet her. Then all three men exited from the car
armed with guns that Davis had distributed and hid, waiting for
Rolland's arrival. Sullivan stood in front of the house to greet
Rolland.
[*P9] When Rolland arrived, Sullivan led him to the back porch.

As planned, Johnson first approached Rolland, pointed his gun at
him, and told him to "lay it down." But Rolland pulled a 9-mm
handgun out of his waistband and shot at Johnson. Johnson fired
back with a .40-caliber Smith & Wesson handgun and then ran. As
he fled from the scene with a bullet wound in his leg, Glenn and
Davis fired four or five shots at Rolland.
[*P10] Rolland was shot twice and left dying from these wounds

on top of Sullivan on the porch. Sullivan, who had also been shot,
grabbed Rolland's gun, moved out from underneath him, and left
the porch. She then realized that Glenn, Davis, and Johnson had
fled. She testified that at 3:15 a.m., she texted Davis, "Im hit," and
then "Come and get me." After receiving no response, she
attempted to walk away from the house, collapsed from her
gunshot injuries, and called 911. She threw Rolland's gun in an
attempt to "ditch it" before the police arrived.
[*P11] Responding officers, including one who had actually

heard six or seven gunshots, found Rolland's gun in the
neighboring yard. They also discovered Rolland, who soon died,
and Sullivan, whom they transported to the hospital.
[*P12] Johnson's aunt and cousin drove him to the hospital. On

the way there, he gave to his cousin the .40-caliber Smith &
Wesson that he had used to shoot at Rolland. The police recovered
the gun from Johnson's cousin when she was detained at the
hospital as part of a protocol for those who transported gunshot
victims.
[*P13] The police searched the Ford Contour that had been left at

the scene unlocked and with the keys in the ignition. They found a
pack of Newport cigarettes containing Glenn's fingerprint,
Sullivan's purse, Johnson's red cellular phone, and two other
cellular phones located in the console between the driver's seat and
the passenger's seat. One of the phones had a photograph of Davis
and Sullivan as the screen saver, and the other phone's screen saver
had written on it Davis's nickname. Those two phones had been
subscribed to by the mother of Jovon Davis, and someone named
"Jovan" [sic] had called the cellular service provider, Verizon,
hours after Rolland had been shot, reporting the phones as lost and
4

directing the transfer of the phone numbers to new phones. Davis
was in possession of a phone with one of these numbers when he
was arrested.
[*P14] Cellular phone records were located for a subscriber

named "Antwoan Glenn." These records showed the signal from
that phone pinging off cell towers near Hutchins Road around 3:00
a.m., and that the phone had later been used to call Sullivan's
cellular phone at 3:50 a.m. and Johnson's cellular phone at 4:10
a.m. Further, the records showed communication between that
phone and Davis's phone at 6:00 a.m.
[*P15] Importantly, at trial, the state presented evidence of the

call and text history of the cellular phones, which demonstrated
Sullivan's communication with Chris and Rolland and the
communication between Davis, Sullivan, Glenn, and Johnson in
the early morning hours of June 18, 2008.
[*P16] Ballistic evidence demonstrated that the two bullets found

in Rolland's body were from a .40-caliber Smith & Wesson
handgun. But the bullets could not be tied specifically to Johnson's
handgun, and Glenn's and Davis's guns were never located. An
expert was able to determine, however, that Rolland had shot
Johnson and that Johnson had shot Sullivan.
[*P17] Although Sullivan and Johnson first lied about their parts

in the robbery and murder of Rolland, they eventually confessed.
Their prior statements were admitted into evidence for the jury's
consideration, and they testified fully about the details of the plea
agreements that they had entered into.
[*P18] The jury found Glenn and Davis guilty of murder and

aggravated robbery, but acquitted both of them of aggravated
murder and Glenn of all firearm specifications. Glenn filed postverdict motions for an acquittal, a new trial, and a "mistrial." The
trial court overruled the motions and sentenced Glenn to
consecutive terms of fifteen years' to life imprisonment for the
murder and to ten years for the aggravated robbery. This appeal
followed.
State v. Glenn, supra, ¶¶ 2-18. Glenn’s habeas corpus claims will be analyzed against that
backdrop of factual findings.

5

Analysis

Ground One: Denial of a Batson Challenge

In his First Ground for Relief, Glenn complains of the trial court’s failure to accept a
Batson challenge, essentially raising an equal protection of the laws claim.
Batson v. Kentucky, 476 U.S. 79 (1986), prohibits race-based peremptory challenges by a
prosecutor. A state criminal defendant can establish a prima facie case of purposeful racial
discrimination in the selection of jurors solely by proof of peremptory challenges to exclude
members of the defendant's race. Id.
A trial court must use a three-step process to evaluate a Batson claim. First, the opponent
must make a prima facie showing that the proponent of the strike has exercised a peremptory
challenge on the basis of race. The burden then shifts to the proponent to articulate a raceneutral reason for the challenge. Finally, the trial court must determine if the opponent has
carried his burden of proving purposeful discrimination. Purkett v. Elem, 514 U.S. 765 (1995);
Hernandez v. New York, 500 U.S. 352 (1991). To make a prima facie showing, a defendant must
show that he is a member of a cognizable racial group, that a challenge has been exercised to
remove a venireperson of the same race, and any additional facts and circumstances from which
an inference could be drawn that the prosecutor had used the peremptory challenge in a racebased manner. Batson, 476 U.S. at 79. The defendant is entitled to rely on the fact that the
peremptory challenge process is one in which those who are of a mind to discriminate on the
basis of race are able to do so. Id. A trial judge’s conclusion that the challenge was race-neutral
must be upheld unless it is clearly erroneous. Hernandez; supra; United States v. Tucker, 90
6

F.3d 1135, 1142 (6th Cir. 1996); United States v. Peete, 919 F.2d 1168, 1179 (6th Cir. 1990)
The fact that the evidence would have supported a challenge for cause is sufficient to
demonstrate that it is race-neutral. Batson, 479 U.S. at 97. A Batson error is never harmless, but
rather is a structural error. United States v. McFerron, 163 F.3d 952 (6th Cir. 1998), relying on
Arizona v. Fulminante, 499 U.S. 279 (1991).
Glenn presented his Batson claim as his First Assignment of Error on direct appeal. The
First District decided that claim as follows:
[*P19] In his first assignment of error, Glenn argues that the state

peremptorily challenged an African-American prospective juror
because of his race, in violation of his equal-protection rights
under Batson v. Kentucky. [(1986), 476 U.S. 79, 106 S.Ct. 1712, 90
L. Ed. 2d 69.] A Batson claim is adjudicated in three steps. If the
opponent of the peremptory challenge makes a prima facie case of
racial discrimination, then the proponent of the challenge must
provide a racially neutral explanation for the challenge. [Id. at 9698.] Finally, the trial court must determine based on all the
circumstances if the opponent has proved purposeful
discrimination. [Id. at 98.] A trial court's conclusion that the
proponent did not possess a discriminatory intent will not be
reversed on appeal unless it is clearly erroneous. [State v.
Hernandez (1992), 63 Ohio St.3d 577, 583, 589 N.E.2d 1310,
following Hernandez v. Hew York (1991), 500 U.S. 352, 111 S.Ct.
1859, 114 L.Ed. 2d 395.]
[*P20] During voir dire, prospective juror Randolph Bennett, an

African-American, was asked a series of questions about his
background and his ability to be a juror. Bennett repeatedly had
difficulty hearing and at one point asked the prospective juror next
to him what the court was asking. Bennett also repeatedly qualified
his answers with "hopefully" and gave confusing answers, as
demonstrated by excerpts from the voir dire colloquy:
[*P21] "Prosecutor: * * * I talked yesterday to [a] lot of jurors

about case consideration, using co-defendants to testify about what
they had done and what these two individuals had done, and how
you would treat that. Did you follow what I was talking about?
[*P22] "Bennett: Yeah. You said some people bargain.

7

[*P23] "Prosecutor: And I guess my question is: Do you feel that

you would be, like, competent or able to really give the case, like,
everything that you should, and make a fair decision, be able to
process all the information that's coming in, that you would have to
like listen to and figure it out where it all fits?
[*P24] "Bennett: Hopefully I won't have a problem.
[*P25] "Prosecutor: And, again, there's only one person that can

answer that, which would be you. Could there be a problem that—
again, not a problem, but just a concern that you might have that
you might miss something or not understand it the way that it
really deserves to be understood?
[*P26] "Bennett: It's hard to say because I don't know the other

side.
[*P27] "* * *
[*P28] "The Court: All right. Mr. Bennett, can you sit and listen

to the case and evaluate the evidence and make a decision on the
case whether the State's proven their case beyond a reasonable
doubt or not?
[*P29] "Bennett: I feel I could.
[*P30] "The Court: You think you can?
[*P31] "Bennett: Hopefully.
[*P32] "* * *
[*P33] "Attorney [for Davis]: Are you comfortable with that

instruction, that the testimony of an accomplice should be viewed
with grave suspicion and weighed with great caution?
[*P34] "Bennett: Please repeat that.
[*P35] "Attorney [for Davis]: Are you comfortable with the rule:

the testimony of a person who you find to be an accomplice—there
will be people who are accomplices, people who said, I was
involved in the robbery and killing of Reginald Rolland. And they
are going to point a finger at my client, okay? That is an
accomplice testifying. Are you going to weigh his or her testimony
with grave suspicion and with great caution?
8

[*P36] "Bennett: No, I wouldn't."
[*P37] The state used a peremptory challenge to excuse Bennett.

Davis's counsel objected to the state's peremptory challenge as a
Batson violation. In explaining its use of a peremptory challenge to
dismiss Bennett, the state said that "[i]t's obvious he has no clue as
to what's going on. He * * * cannot hear. He said hopefully a
number of times." The court determined that the state had asserted
several nonrace-related reasons for the exercise of the peremptory
challenge, and that those reasons were supported by the record, and
it rejected the Batson challenge.
[*P38] We agree with the trial court that a juror's inability to

understand and inability to hear the trial proceedings are raceneutral reasons for exercising a peremptory challenge against him.
The trial court, which was able to observe Bennett's reaction to the
questioning in addition to listening to Bennett's answers, found the
state's reasons supported by the record. On this record, we cannot
say that the trial court's finding of no discriminatory intent was
clearly erroneous. Accordingly, we overrule the first assignment of
error.
State v. Glenn, supra, ¶¶ 19-38.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
In deciding this claim on appeal, the court of appeals cited the applicable United States
Supreme Court precedent and appears to have applied it correctly: it implicitly found that Glenn
had established a prima facie case in that both Glenn and the peremptorily excused juror
(Bennett) are African-American. It then required the prosecutor to give reasons for exercising
the peremptory.

The reasons given – lack of understanding and difficulty hearing the
9

proceedings – are both race-neutral. The trial judge decided those stated reasons were not a
pretext for racial discrimination by finding that there was factual support in the record for each of
them. As the Warden notes, there is actually more record evidence to support the challenge than
was recited by the court of appeals (See Return of Writ, Doc. No. 15, PageID 308). Particularly
with objections of this sort, a trial judge’s observation of the demeanor of an excused venireman
is important. The record does not reflect any response by defense counsel which would have
required the trial judge to find that the prosecutor’s explanation was a pretext for racial
discrimination.
In sum, the First District’s decision was not an objectively unreasonable application of
Batson and its progeny.

The First Ground for Relief should therefore be dismissed with

prejudice.

Ground Two: Prosecutorial Misconduct By Asking Leading Questions

In his Second Ground for Relief, Glenn claims he was denied due process by the
prosecutor’s examining his own witnesses with leading questions. This claim was made as
Glen’s Second Assignment of Error on direct appeal. The First District decided the second and
fourth assignments together; as to the leading questions assignment, it held:
[*P53] Glenn contends that the state asked leading questions

during direct examination of Sullivan and Detective Eric
Karaguleff. In a leading question, the examiner suggests to the
witness the answer desired. [State v. Drummond, 111 Ohio St.3d
14, 2006 Ohio 5084, 854 N.E.2d 1038, § 138, citing 1 McCormick,
Evidence (5 Ed. 1999) 19, Section 6.] Evid.R. 611(C) provides that
"[l]eading questions should not be used on the direct examination
of a witness except as may be necessary to develop his testimony."
As indicated by the rule, the parties can use leading questions
when necessary to develop a witness's testimony, and the trial
10

court has discretion to allow such questioning. [Id.] Where leading
questions are designed to move the testimony along without delay
and "merely direct the witness' attention to the topic of inquiry,"
[State v. Brown (1996), 112 Ohio App.3d 583,599, 679 N.E.2d
361.] or facilitate testimony in light of the witness's age, [Id. at
599-600.] nervousness, [State v. Smith (1997), 80 Ohio St.3d 89,
110-111, 1997 Ohio 355, 684 N.E.2d 668.] or established difficulty
in remembering information, [Drummond at ¶ 152.] they are not
improper. But a prosecutor's persistent pursuit of an improper line
of questioning after an objection has been sustained can be
misconduct. [See State v. Diar, 120 Ohio St. 3d 460, 2008 Ohio
6266, 900 N.E.2d 565, ¶205.]
[*P54] To obtain a reversal on the basis of improper leading

questions by the state, the defendant must demonstrate not only
that the questioning was improper, but that it affected the outcome
of the trial. [Id.] Where no objection is made at trial, the
misconduct must rise to the level of plain error. [State v. Childs
(1968), 14 Ohio St.2d 56, 236 N.E.2d 545, paragraph three of the
syllabus.] Plain error exists only where it is clear that, but for the
error, the outcome of the trial clearly would have been otherwise.
[See Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91, 372
N.E.2d 804, paragraph two of the syllabus.]
[*P55] Glenn has not specifically identified the questions that he
considers to be outside what is permitted under Evid.R. 611(C) and

how these questions prejudiced him. Further, he does not argue,
and the record does not reflect, that the prosecutor persistently
pursued an improper line of questioning. Moreover, Glenn
concedes that he must meet the plain-error standard.
[*P56] We conclude that Glenn has failed to demonstrate that the

prosecutor's line of questioning was misconduct that rose to the
level of error, much less plain error.
State v. Glenn, supra, ¶¶ 53-56.
Glenn’s Second Ground for Relief should be dismissed with prejudice because it is
procedurally defaulted in that his trial attorney made no contemporaneous objections to the
leading questions.
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:
11

In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
12

Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error
.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by
calling them to the attention of the trial court at a time when the error could have been avoided or
corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus;
see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state
ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012),citing Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir.
2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854
(6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker,
224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith
v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185 (2010).
A state appellate court’s review for plain error – which is what happened in this case -- is
enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th
Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley,
422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour
13

v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)(plain error review does not constitute a waiver of
procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Even if Glenn had not procedurally defaulted this claim, it is without merit. Federal habeas
corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson
v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939
(1983).

"[I]t is not the province of a federal habeas court to reexamine state court

determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This Court is unaware of any United States
Supreme Court precedent which holds that it is unconstitutional to ask leading questions on
direct examination of the prosecution’s witnesses.
Therefore the Second Ground for Relief should be dismissed with prejudice.

Ground Three: Admission of Prior “Bad Acts” Evidence

In his Third Ground for Relief, Glenn asserts the trial court denied his right to a fair trial by
allowing the prosecutor to adduce evidence of prior “bad acts.” Glenn presented this claim to the
court of appeals as his Third Assignment of Error. That court decided the claim as follows:
Other Bad Acts Evidence
[*P39] In his third assignment of error, which we next address,

Glenn contends that the trial court erred by admitting evidence of
his other bad acts and his prior incarceration, in violation of
Evid.R. 404(B) and R.C. 2945.59.
[*P40] Other-acts evidence is generally inadmissible against a

defendant in recognition of the substantial danger that a jury will
14

find the defendant guilty because he has committed the other acts.
[See State v. Knight (1998), 131 Ohio App.3d 349, 352, 722
N.E.2d 568.] Evid.R. 404(B) and its statutory counterpart, R.C.
2945.59, provide exceptions to the common-law rule with respect
to evidence of other acts of wrongdoing. Evidence of other acts is
admissible if there is substantial proof that the defendant
committed those acts, and if the evidence tends to prove an issue in
the case such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. [State v.
Lowe, 69 Ohio St.3d 527, 530, 1994 Ohio 345, 634 N.E.2d 616,
citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533
N.E.2d 682; Evid.R. 404(B); R.C. 2945.59.]
[*P41] Evid.R. 404(B) and R.C. 2945.59 codify an exception to

the common-law rule with respect to evidence of other acts of
wrongdoing and are construed against admissibility.[Id.] In other
words, "the standard for admissibility of other-acts evidence is
strict." [Id. at 533.] But evidentiary rulings generally lie within the
broad discretion of the trial court and will form the basis for
reversal on appeal only upon an abuse of that discretion amounting
to prejudicial error. [Evid.R. 103(A); Lowe, 69 Ohio St.3d at 532.]
[*P42] First Glenn challenges the trial court's admission, over his

objection, of the testimony concerning the prior alleged aggravated
robbery and attempted aggravated robbery that had occurred just
hours before Rolland was robbed and murdered. Sullivan testified
that she, Glenn, and Davis had lured a man named Chris to an
apartment to rob him at gunpoint, and Sullivan also testified about
an attempted aggravated robbery of another man who had met
Sullivan near a park, but refused to get out of his car and
accompany her to the park where Glenn and Davis had been
planning to rob him.
[*P43] This court addressed and rejected a similar argument

raised by Davis in his appeal. [State v. Davis, 1st Dist. No. C090220, 2010 Ohio 5125.] We held that Sullivan's testimony on
the other planned armed robberies that had occurred just hours
before Rolland's armed robbery and murder was probative of
Davis's preparation and planning involved in the charged offenses
and tended to show that all the robberies were part of a common
scheme or plan among the defendants. Sullivan's cellular phone
records corroborated her testimony. We conclude that this same
testimony was also probative of Glenn's preparation and planning
for the charged offenses and Glenn's role in the common scheme.
Therefore, we hold that the trial court did not abuse its discretion
in admitting this testimony for those proper purposes.
15

[*P44] Glenn contends also that Sullivan was permitted to testify

that he had been involved in drug dealing. The record confirms that
Sullivan did testify that Glenn had previously sold drugs to the
residents of the house where she had lured Rolland. But Glenn did
not object to this testimony, and any error in its admission does not
rise to the level of plain error in light of the other evidence of guilt
in the case.
[*P45] Finally, Glenn argues that the trial court erred by allowing

into evidence testimony indicating that he had been previously
incarcerated in the Hamilton County Justice Center. Glenn claims
that this testimony was provided by both Sullivan and William
Hillard, a senior criminalist for the Cincinnati Police Department
who performed the fingerprint analysis in the case.
[*P46] The record does not demonstrate that Sullivan made any

reference to or implication about a prior incarceration, outside of
her unobjected-to comments about Glenn's drug dealing, which we
have already determined to be insufficient to support a reversal.
[*P47] Hillard's reference to or implication concerning a prior

incarceration is more problematic. At trial, Glenn stipulated that
his fingerprints were on the fingerprint card that Hillard had used
to compare the latent print from the cigarette pack. Despite this
stipulation, Hillard testified that, to make his comparison, he had
obtained Glenn's fingerprint card that was "on file at the justice
center." He also explained that when he had entered the latent print
from the cigarette pack into the Automatic Fingerprint
Investigative System ("AFIS"), the system provided him with a list
of candidates identified by a "jacket number," and that a jacket
number was assigned to a particular name and was given to
"[a]nybody [who] c[ame] in the justice center."
[*P48] Glenn objected on the grounds not only that Hillard was

exposing the jury to his criminal history, but also that he lacked
any reason to do so in light of the stipulation. The trial court
overruled the objection, noting that the state had not asked how
Glenn had come to be at the justice center, and that while Glenn
had stipulated that his fingerprint was on the fingerprint card, he
had refused to stipulate that his fingerprint was on the cigarette
pack.
[*P49] As we have noted, the state generally may not introduce

16

evidence that tends to show that a defendant committed another
crime wholly independent of the offense for which he is on trial.
Glenn had stipulated that his fingerprint was on the fingerprint
card, rendering Hillard's testimony outside the exceptions set forth
in Evid.R. 404(B) and R.C. 2945.59. And Hillard's challenged
testimony, considered in context, was such that it could have
provided a basis for a reasonable inference that Glenn had prior
involvement in other crimes. But the ambiguity in the testimony,
coupled with the fleeting nature of it, rendered any error in the
admission of the statement harmless beyond a reasonable doubt:
the reference was vague, the fingerprint card that was admitted did
not refer to any criminal activity, and therefore, in light of the other
evidence in the case, there is no reasonable possibility that this
testimony contributed to Glenn's conviction. [See Crim.R. 52(A).]
[*P50] Accordingly, we overrule the third assignment of error.

State v. Glenn, supra, ¶¶ 39-49.
The trial judge’s allowance of testimony about the robbery and attempted robbery that
occurred on the same night and involved the same perpetrators was very relevant to prove
identity because of the similar modus operandi: luring a potential victim, by a promise of sex
with Sullivan, to a place where he could be robbed. Thus, as the court of appeals held, there was
no violation of Ohio evidence law (Ohio R. Evid. 404(B) and Ohio Revised Code § 2945.59) in
admitting that evidence.
As to Sullivan’s testimony that the place where she lured Rolland was a place where Glen
had sold drugs, the court of appeals enforced the contemporaneous objection rule and, as noted
above, that is an adequate and independent state ground of decision.
As to the evidence of the origin of Glenn’s fingerprints in the possession of the state for
comparison with a fingerprint recovered from the cigarette pack, there was a stipulation that
made the testimony unnecessary and there was also a contemporaneous objection. However, the
court of appeals found there was no unambiguous testimony that the fingerprint exemplar was
obtained from Glenn when he was previously arrested and found any error harmless beyond a
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reasonable doubt.
The record shows Glenn did not fairly present this claim to the state courts as a federal
constitutional claim. Rather, he presented it as a matter of Ohio evidence law, a claimed
violation of Ohio R. Evid. 404(B) and Ohio Revised Code § 2945.59. A habeas petitioner who
fails to fairly present a claim to the state courts as a constitutional claim has procedurally
defaulted on that claim. Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013). Furthermore, it is
not clear that there was any constitutional claim to be presented. “There is no clearly established
Supreme Court precedent which holds that a state violates due process by permitting propensity
evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.
2003), noting that the Supreme Court refused to reach the issue in Estelle v. McGuire.
The Third Ground for Relief should therefore be dismissed with prejudice.

Ground Four: Prosecutorial Misconduct

In his Fourth Ground for Relief, Glenn claims the prosecutor engaged in misconduct by
implying Glenn had a prior criminal record. The First District Court of Appeals decided the
Second and Fourth Assignments of Error, both of which alleged prosecutorial misconduct,
together. As a general standard it held “[t]he test for prosecutorial misconduct is whether the
prosecutor’s questions or remarks were improper and, if so, whether they prejudicially affect the
defendant’s substantial rights.” State v. Glenn, supra, citing State v. Smith, 14 Ohio St. 3d 13
(1984), and State v. Canyon, 2009 Ohio 1263 (Ohio App. 1st Dist. 2009).
That is substantially the same as the standard embodied in federal case law. On habeas
corpus review, the standard to be applied to claims of prosecutorial misconduct is whether the

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conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due
process,” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S.
168, 181 (1986), quoting DeChrsitoforo, supra.; Wogenstahl v. Mitchell, 668 F.3d 307, 327-328
(6th Cir. 2012), citing Smith v. Mitchell, 567 F.3d 246, 265 (6th Cir. 2009); Bates v. Bell, 402
F.3d 635, 640-41 (6th Cir. 2005)(citations omitted); Kincade v. Sparkman, 175 F.3d 444, 445-46
(6th Cir. 1999)(citations omitted) or whether it was “so egregious as to render the entire trial
fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir. 1979)(citations
omitted); accord Summitt v. Bordenkircher, 608 F.2d 247, 253 (6th Cir. 1979), aff'd sub nom,
Watkins v. Sowders, 449 U.S. 341 (1981)(citation omitted); Stumbo v. Seabold, 704 F.2d 910,
911 (6th Cir. 1983)(citation omitted). The court must first decide whether the complained-of
conduct was in fact improper. Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), citing United
States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A four-factor test is then applicable to any
conduct the Court finds inappropriate: “(1) whether the conduct and remarks of the prosecutor
tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were
isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and
whether the evidence against the defendant was strong.” Id. The court must decide whether the
prosecutor’s statement likely had a bearing on the outcome of the trial in light of the strength of
the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). The court
must examine the fairness of the trial, not the culpability of the prosecutor. Serra v. Michigan
Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)(quoting Smith v. Phillips, 455 U.S.
209, 219 (1982).
The First District applied that standard as follows:
[*P58] Glenn argues further that prosecutorial misconduct

occurred (1) during opening statement, when the prosecutor
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referred to Glenn's alleged participation with Davis and Sullivan in
two planned aggravated robberies shortly before committing the
offenses against Rolland, and (2) during closing argument, when
the prosecutor again referred to Glenn's participation in the
planned robberies, as well as denigrating defense counsel and
making inflammatory comments.
[*P59] We have already held that Sullivan's testimony about

Glenn's alleged participation in two planned armed robberies
within hours of Rolland's attempted robbery and shooting death
was admissible. In opening statement and closing argument, the
prosecutor referred to this admissible testimony, as corroborated
by the cellular-phone records, in the context of demonstrating the
planning and preparation for Rolland's ambush. Under these
circumstances, we find no misconduct by the prosecutor.
[*P60] Glenn identifies as improper four other remarks of the

prosecutor in closing argument, none of which he objected to at
trial. We reviewed these four remarks in Davis's appeal before
holding that Davis had failed to demonstrate a claim for
prosecutorial misconduct.[Davis, 2010 Ohio 5125, at ¶30-34.] We
hold that Glenn, too, has failed to demonstrate a claim for
prosecutorial misconduct based on these remarks.

State v. Glenn, supra, ¶¶ 58-60. Thus as to the modus operandi testimony, it was not misconduct
to use it because it was properly admissible. As to any other comments by the prosecutor which
were complained of on direct appeal, the First District enforced the Ohio contemporaneous
objection rule, providing this Court with a basis for finding those claims are procedurally
defaulted.
Therefore the Fourth Ground for Relief should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,

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Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous.

December 16, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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