Knauff v. Warden Ross Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends 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 and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/23/2016. Signed by Magistrate Judge Michael R. Merz on 5/4/2016. (kpf) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

- vs -

Case No. 1:15-cv-338
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
Ross Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Travis Knauff brought this habeas corpus action pro se pursuant to 28 U.S.C.
§ 2254 to obtain relief from his conviction for rape of his daughter and consequent sentence of
life imprisonment without the possibility of parole. Knauff pleads the following grounds for
relief:
GROUND ONE: Trial court violated right of confrontation under
Sixth Amendment by allowing the video recorded statement of his
daughter to be played for the jury.
Supporting Facts: The court admitted a video-recorded interview
to be played in its entirety to the jury. Making the testimony
“hearsay” and inadmissible under Evid. R. 803(4). Many aspects of
the interview went beyond that required for providing information
for Dr. Shapiro’s physical exam. The confrontation clause of the
6th Amendment was violated because Petitioner was not permitted
to cross-examine the witness in any type of “meaningful” manner.
GROUND TWO: Trial court violated right of confrontation under
Sixth Amendment by allowing testimony of an accuser to be given
“in camera” rather than in open court.

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Supporting Facts: This regards a challenge to the constitutionality
of a statute (O.R.C.§2945.481) which permits a witness to testify
in the judge’s chambers by closed-circuit television, violating the
minimum requirements for confrontation rights…which must be
''face to face.”
GROUND THREE: Petitioner was denied his right to effective
assistance of trial counsel under the Sixth and Fourteenth
Amendments; and consequently was denied equal protection of
law and due process by denial of “evidentiary hearing.”
Supporting Facts: Petitioner suffered ineffective assistance of trial
counsel, where counsel failed to address key factual matters when
examining Jerrylyn Younts in testimony. Then the court failed to
afford an “evidentiary hearing” to facilitate evidence coming forward
which calls into question that very testimony.

(Petition, ECF No. 5.)

Procedural History

Petitioner Travis Knauff was indicted by the Adams County grand jury on January 13,
2010, on one count of rape with the specification that the victim was under ten years old. The
trial judge initially denied the State’s request to permit the victim to testify from some place
outside the courtroom. When she started her testimony, however, she became afraid and was
permitted to continue to testify from the judge’s chambers. The jury found Knauff guilty and the
trial judge sentenced him to life without parole.
Knauff took a direct appeal to the Ohio Fourth District Court of Appeals which affirmed
the conviction. State v. Knauff, No. 10CA900, 2011-Ohio-2725, 2011 Ohio App. LEXIS 2327
(4th Dist. May 24, 2011), appellate jurisdiction declined, 129 Ohio St. 3d 1507 (2011). The facts
as shown by trial testimony were recited by the court of appeals:
[*P3] Travis Knauff and Alisha Knauff were previously married,
but divorced before the incident. According to Alisha, their
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daughter D.K. accused Knauff of molesting her at his trailer during
his parental visitation.
[*P4] After Alisha contacted the Adams County Sheriff’s
Department, Detective Jim Heitkemper referred her to the
Mayerson Clinic at Cincinnati Children’s Hospital for an
evaluation. There, social worker Cecelia Friehofer recorded a onehour interview with D.K. During the interview, D.K. revealed that
her father engaged in sexual conduct with her in his bedroom,
living room, and in a “forest.” She also revealed that she spit
Knauff’s “pee” into a hole in his bedroom floor. The interview
covered a broad range of details related to the abuse.
[*P5] Friehofer summarized what D.K. told her to Dr. Bob
Shapiro, who conducted a physical examination. Dr. Shapiro
examined D.K. visually and observed nothing out of the ordinary.
He testified that he would not have expected to observe any
physical signs of sexual contact given that the incident occurred
three months prior.
[*P6] Friehofer faxed a report of the interview to Detective
Heitkemper, who then obtained and executed two search warrants
for Knauff’s residence. Executing the first search warrant,
Heitkemper removed the portion of the floor containing the hole
and a section of pink insulation found underneath the hole.
Through the second search warrant, Heitkemper obtained Knauff’s
DNA by swabbing his mouth. The Sheriff’s Office sent the
physical evidence from the trailer and DNA swabs of both Knauff
and D.K. to the Ohio Bureau of Criminal Identification (BCI) for
analysis.
[*P7] Two BCI employees testified about their findings. The first,
a “forensic biologist,” testified that her analysis revealed that the
insulation contained a combination of both semen and “amylase,”
which is a substance found in saliva. The second BCI employee
conducted DNA testing on the insulation and compared his
findings to the DNA samples obtained from Knauff and D.K. He
concluded that the sample contained a “major DNA profile,” which
matched Knauff’s DNA. The employee also found a “minor DNA
profile” which he could not associate with any individual. He
could not reach a conclusion about whether the minor profile
belonged to D.K. The employee explained that the minor profile
had insufficient DNA information to provide him with the ability
to make a comparison. On cross-examination, the employee
testified that the information contained in the minor profile could

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arguably support the conclusion that the unknown or “foreign”
DNA came from as many as four different contributors.
[*P8] D.K., who was five-years-old, testified at trial. When the
prosecutor asked her about the abuse, she became non-responsive
and indicated that she was scared. The prosecutor attempted to
calm her down but she repeatedly conveyed that she was too
scared to testify about the alleged abuse. The court eventually
questioned D.K. about her level of fear and asked her what was
causing it. She stated that she was scared because of “everyone” in
the courtroom and because of her father’s presence. When asked to
describe her level of fear in terms of a one to ten scale, D.K.
responded that she was “real, real, real scared.”
[*P9] The prosecutor asked D.K. if she thought she could testify
in the judge’s chambers, with only the judge, the state’s attorney
and the defense counsel present. She said she could. The court then
made a finding on the record that D.K. had expressed “extreme
fear” that was preventing her from testifying in open court. The
court invoked the procedures set forth in R.C. 2945.481(E) for
conducting an examination of a child sex abuse witness outside of
the courtroom via closed-circuit television.
[*P10] The state continued D.K.’s direct examination in the
judge’s chambers with the judge and defense counsel present.
Court staff used a closed-circuit video system to broadcast D.K.’s
testimony to the courtroom, where the jurors and Knauff remained.
The record reflects that Knauff could speak to defense counsel
during D.K.’s direct examination by the use of a cell phone. On
direct, D.K. testified that Knauff stuck his finger in her “pee pee”
and her “butt,” and that she spit his “pee” in a hole in the floor and
the toilet. Defense counsel briefly cross-examined D.K., mainly to
clarify whether she told her mother about the abuse allegations
first, or whether her mother asked her about the allegations. D.K.’s
response was, essentially, she told her mother because otherwise
she would not know.
[*P11] Friehofer testified and discussed the general methodology
behind the “forensic interview” that she conducted with D.K. She
explained that one purpose of the lengthy interview was to gain as
much information as possible so that D.K. would not have to
discuss the abuse with others. Friehofer explained that another
purpose of the interview was to gain information so that medical
staff could make appropriate decisions concerning necessary
physical or mental health treatment.

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[*P12] At the conclusion of Friehofer’s testimony, the state played
the interview for the jury. Court staff fast-forwarded or muted at
least two portions of the interview, apparently in response to an
agreement by the prosecutor and defense counsel. The record
contains both the complete video-recorded interview and the
redacted version.
[*P13] The interview played for the jurors lasted approximately 50
minutes as D.K. describes repetitively, and in detail, the sexual
abuse. She alleged that the majority of the abuse occurred in
Knauff’s bedroom and in the living room. In her own words, she
described acts of digital penetration, cunnilingus, and fellatio. She
said that Knauff told her to swallow his “pee” but that she refused.
She said she spit his “pee” in a hole in his bedroom floor. D.K.
additionally described an act of fellatio that occurred in a “forest”
while on a trip to Wal–Mart.
[*P14] D.K. described the frequency of the abuse, which she said
happened “a lot” and “whenever she stayed the night.” D.K. also
described specifically where the abuse occurred, and what bodily
position she and Knauff would be in when it occurred. D.K. told
Friehofer that Knauff would place a “baby box” in front of the
door so that no one would enter the room. D.K. stated that during
the encounters, she would have her pants and underwear off and
Knauff would remain clothed. When the abuse was over, Knauff
would put her clothes back on.
[*P15] D.K. also told Friehofer that sometimes other individuals
were in the trailer during the abuse. She claimed that Knauff’s
girlfriend, Jerrylyn Mounts, (sic) was “always” outside on the
porch, smoking a cigarette. Her Uncle Sonny Knauff and her
Grandma were in their respective bedrooms.
[*P16] The defense introduced the testimony of Jerrylyn Younts.
She claimed that she never went outside to smoke cigarettes and
would open a window in the living room and blow smoke out of it.
She also testified that Knauff was never alone with D.K. in the
three or so weeks D.K. stayed with Knauff and his family at the
trailer. She admitted, however, that during the day she was away
from the trailer at her job.
[*P17] When Knauff testified, he denied any sexual abuse
occurred and claimed that D.K. was a liar. Knauff also testified
that he was never alone with D.K. And he indicated that his
relationship with Alisha Knauff was “very poor.” On crossexamination, Knauff admitted that he did not have a job and stayed
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at home during the month of June 2009. He did not dispute that the
insulation located underneath the hole in the floor contained his
semen. On re-direct, Knauff claimed that he masturbated into the
hole after becoming aroused by observing his girlfriend in the
shower. Knauff admitted on re-cross that he previously told only
his defense counsel the story about masturbating into the hole.
State v. Knauff (direct appeal), supra.
While the direct appeal was still pending, Knauff filed a petition for post-conviction relief
under Ohio Revised Code § 2953.21. The trial court denied that petition and the Fourth District
again affirmed. State v. Knauff, 2014-Ohio-308, 2014 Ohio App. LEXIS 282 (4th Dist. Jan. 28,
2014), appellate jurisdiction declined, 139 Ohio St. 3d 1406 (2014). Knauff filed his Petition
here a year later on May 21, 2015 (ECF No. 1).

ANALYSIS

Ground One: Violation of the Confrontation Clause

In his First Ground for Relief, Knauff claims his rights under the Confrontation Clause
were violated when the jury was permitted to view a recorded pre-trial statement of the victim.
The Warden asserts this claim is procedurally defaulted by Knauff’s failure to object at trial.
Knauff raised this claim as his first assignment of error on direct appeal and the Fourth
District decided it as follows:
III. Admission of the Video-Recorded Interview
[*P20] In his first assignment of error, Knauff argues that the court
abused its discretion by admitting the video-recorded interview.
Knauff argues that the interview was hearsay and was not
admissible under Evid.R. 803(4) — statements made for purposes
of medical diagnosis or treatment.
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[*P21] First, Knauff contends that D.K. was unaware that she was
providing information for medical treatment, therefore her
statements were unreliable. Second, Knauff argues that even if
portions of the video-recorded interview were admissible under
Evid.R. 803(4), the court abused its discretion by playing the
"entire" video for the jurors. Knauff contends that many aspects of
the interview went beyond that required for providing information
for Dr. Shapiro's physical examination. Knauff additionally
contends that the playing of the video-recorded interview violated
his Confrontation Clause rights because he could not crossexamine D.K. on the statements in the interview in a "meaningful"
manner.
A. Standard of Review
[*P22] The admission of evidence is within the sound discretion of
the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31 Ohio B.
375, 510 N.E.2d 343, at paragraph two of the syllabus. An abuse of
discretion consists of more than an error of judgment; it connotes
an attitude of the trial court that is unreasonable, unconscionable,
or arbitrary. State v. Lessin, 67 Ohio St.3d 487, 494, 1993 Ohio 52,
620 N.E.2d 72. When applying the abuse of discretion standard,
we are not free to merely substitute our judgment for that of the
trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138,
566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d
161, 169, 559 N.E.2d 1301.
[*P23] Initially, it is significant that Knauff did not object to the
admission of the video-recorded interview. In fact, defense counsel
specifically stated on the record that he had no objection to the
state showing the jurors the video. (Tr. 318.) And defense counsel
did not object when the state offered a redacted version of the
video into evidence at the close of its case in chief.
[*P24] Evid. R. 103(A) provides:
Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the party
is affected, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the
specific ground was not apparent from the context[.]

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(Emphasis added.)

[*P25] Evid. R. 103(A) follows the longstanding rule that the
failure to make a specific objection to the admission of evidence
waives the objection and it cannot thereafter form the basis of a
claim in an appellate court. Kent v. State (1884), 42 Ohio St. 426,
430-431. Crim.R. 52(B), however, provides a mechanism by which
defendants may obtain review of "plain errors" that affected
"substantial rights" even where they failed to object. Thus, Knauff
must demonstrate "plain error" in the admission of the videorecorded interview or he has waived its admission.
[*P26] "Plain error" exists only when it is clear the verdict would
have been otherwise but for the error. State v. Sanders, 92 Ohio
St.3d 245, 263, 2001 Ohio 189, 750 N.E.2d 90. Plain error review
places three limitations on a reviewing court's decision to correct
an error not objected to during trial. First, there must be legal error.
Second, the error must be "plain." Within the meaning of Crim.R.
52(B), an error is "plain" if there is an "obvious" defect in the trial
proceedings. Third, the error has to affect "substantial rights." State
v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, 759 N.E.2d 1240.
The Supreme Court of Ohio has "interpreted this [latter] aspect of
the rule to mean that the trial court's error must have affected the
outcome of the trial." Id. The Court further explained, "[e]ven if a
forfeited error satisfies these three prongs, however, Crim.R. 52(B)
does not demand that an appellate court correct it. Crim.R. 52(B)
states only that a reviewing court 'may' notice plain forfeited
errors; a court is not obliged to correct them. We have
acknowledged the discretionary aspect of Crim.R. 52(B) by
admonishing courts to notice plain error 'with the utmost caution,
under exceptional circumstances and only to prevent a manifest
miscarriage of justice.'" Id., quoting State v. Long (1978), 53 Ohio
St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.
State v. Knauff (direct appeal), supra.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
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
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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
rights claim 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.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
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

9

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
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, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Applying the Maupin test to this case, the Court notes that Ohio has a contemporaneous
objection rule. 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). The Sixth Circuit has repeatedly held this 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); Goodwin v. Johnson,
632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); 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,

10

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).
The Fourth District enforced the contemporaneous objection rule by reviewing this claim
for plain error under Ohio R. Crim. P. 52(b). An Ohio state appellate court’s review for plain
error is enforcement, not waiver, of a procedural default. Wogenstahl, 668 F.3d at 337; 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 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).
In his Reply and Traverse, Knauff asserts the procedural default is excused by his trial
attorney’s ineffective assistance in failing to make the objection (ECF No. 9, PageID 1245).
While it is true that ineffective assistance of trial counsel can act to excuse a procedural default,
the ineffectiveness claim must itself be properly presented to the state courts. Edwards v.
Carpenter, 529 U.S. 446 (2000). Knauff never presented this ineffectiveness claim to the state
courts.
Accordingly, Ground One is procedurally defaulted and should be dismissed.

Ground Two: Violation of Confrontation Clause by In Camera Testimony

In his Second Ground for Relief, Knauff asserts his Confrontation Clause rights were
violated when his daughter was permitted to testify in camera rather than “face-to-face.” As part

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of this claim, Knauff challenges the constitutionality of Ohio Revised Code § 2945.481.
This claim was raised as Knauff’s second assignment of error on direct appeal which the
Fourth District decided as follows:
IV. Constitutionality of Closed-Circuit Television Testimony
[*P47] In his second assignment of error, Knauff attacks the
constitutionality of R.C. 2945.481, a statute that permitted D.K. to
testify in the judge's chambers by closed-circuit television. Knauff
argues that the Supreme Court of the United States, in Coy v. Iowa
(1988), 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857, held
"at a minimum" that a court violates a defendant's federal
Confrontation Clause rights when it denies a literal face-to-face
confrontation with an accusing witness.
A. Standard of Review
[*P48] We review constitutional challenges as a matter of law, ie.,
de novo. See, e.g., Ohio Univ. Bd. of Trustees v. Smith (1999), 132
Ohio App.3d 211, 223, 724 N.E. 2d 1155. Statutes enjoy a strong
presumption of constitutionality. State v. Bloomer, 122 Ohio St.3d
200, 2009 Ohio 2462, 909 N.E.2d 1254, at ¶41. A party
challenging the constitutionality of a statute bears the burden of
proving that it is unconstitutional beyond a reasonable doubt. Id.
B. The Confrontation Clause and the Protection of Child Witnesses
[*P49] In Coy the Supreme Court reversed a child molestation
conviction where an Iowa statute permitted a child witness to
testify behind a screen. The Court noted that "the Confrontation
Clause guarantees the defendant a face-to-face meeting with
witnesses appearing before the trier of fact." Id. at 1016. In
reversing the conviction, the Court emphasized that the Iowa
statute required no factual finding of necessity before the court
could employ the screen. In other words, the statute presumed that
a court could, in all cases, deny the defendant a physical
confrontation with an alleged child victim. Id. at 1021.
[*P50] Although the Court noted that Iowa had a "compelling"
interest in protecting child abuse victims, it observed that the trial
court made no "case-specific" finding that the procedures used
were necessary to further that interest. Id. at 1025 (O'Connor , J.,
concurring.). The Court "le[ft] for another day . . . the question
whether any exceptions exist" to the "irreducible literal meaning of
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the Clause: 'a right to meet face to face all those who appear and
give evidence at trial.'" Id. at 1021, quoting California, supra, at
1943-1944 (Harsha, J., concurring). (Emphasis sic.)
[*P51] The Court answered this question two years later in
Maryland v. Craig (1990), 497 U.S. 836, 110 S.Ct. 3157, 111 L.
Ed. 2d 666. There, the Court upheld a Maryland closed-circuit
television statute and held that the Confrontation Clause did not
require a literal face-to-face confrontation in all instances. Id. at
849-850. The Court observed that the core purpose of the
Confrontation Clause was to ensure rigorous adversarial testing of
accusing witnesses, i.e., cross-examination, providing sworn
testimony under penalty of perjury, and jurors' observance of the
witnesses' demeanor. Id. at 845-846. And the Court noted that
although a face-to-face confrontation formed the core value behind
the Confrontation Clause, it was a "preference" rather than a
requirement. Id. at 847, 850. In upholding the Maryland statute, the
Court held that a denial of a face-to-face confrontation could occur
where it is necessary to: 1) further an important public policy; and
2) the procedures provided in lieu of the face-to-face confrontation
ensure the reliability of the testimony. Id. at 850.
[*P52] The Maryland statute in question allowed a child abuse
victim to testify via closed-circuit television if the trial court found
that the child would suffer "serious emotional distress" such that
the child could not "reasonably communicate." Id. at fn. 1. The
Court held that Maryland had an "important" public policy interest
in the protection of minor victims of sex crimes from further
trauma. Id. at 855. The Court further held that whether a denial of
a face-to-face confrontation was necessary would have to be
determined on a case-by-case basis. Id. at 857-858. The Court
explicitly decided against specifically defining the "minimum
showing of emotional trauma" necessary because the "serious
emotional distress" standard, "clearly suffices to meet
constitutional standards." Id. at 856. Additionally, the Court
observed that where a face-to-face confrontation caused significant
emotional distress in a child witness, "there is evidence that such
confrontation would in fact disserve the Confrontation Clause's
truth-seeking goal." Id. at 857.
[*P53] In Self, supra, the Supreme Court of Ohio applied Craig
and found R.C. 2907.41(A) and (B) to be substantially the same as
the Maryland statute. The Court reviewed the procedure under
R.C. 2907.41(B)(1)(b) for admitting a child sex abuse victim's
videotaped deposition at trial in lieu of live testimony based upon a

13

finding of "serious emotional trauma" and held it constitutional. Id.
at syllabus. [footnote omitted]
[*P54] Nonetheless, Knauff urges us to conclude that Craig and
Self are inapplicable here. In his reply brief Knauff contends that in
both cases, the respective Supreme Courts ruled narrowly and
limited their holdings that the statutes are constitutional to an
application of the "serious emotional distress" (Craig) or "serious
emotional trauma" (Self) elements. Knauff admits that R.C.
2945.481(E)(3) contains a provision for a finding by the trial court
of "serious emotional trauma" before invoking the closed-circuit
television procedure. However, Knauff points out that the trial
court here based its finding of necessity on the (E)(2) subsection,
which requires a finding of "extreme fear" in the child witness.
Knauff does not explain why this distinction is legally significant,
but contends that we should apply the general rule of Coy and limit
the application of Craig and Self to findings of necessity based on
serious emotional trauma or distress. Although our research
revealed no Ohio case addressing this specific issue, we conclude
that Coy does not require reversal here. We also conclude that
there is no significant legal distinction between a finding of
necessity based on "serious emotional trauma" or "extreme fear"
in terms of the necessity rule applied in Craig and Self.
C. The Statute in Coy Required No Case-Specific Findings
[*P55] The basis of the Court's decision in Coy was the statutory
presumption in all cases of minor sexual abuse that a court could
deny a defendant a face-to-face confrontation with an accusing
child witness without any showing of necessity. Craig at 844-845.
Unlike the statue in Coy, R.C. 2945.481 requires case-specific
findings of necessity before a judge can utilize the closed-circuit
television procedure. Thus, R.C. 2945.481 does not presume that
there is no right to face-to-face confrontation and Coy is not
controlling. See Self at 81.
D. R.C. 2945.481(E)(2) satisfies both Craig and Self.
[*P56] In approving an alternative to face-to-face confrontation
the Craig Court focused on two major requirements: 1) the
procedure must advance an important public policy; 2) the
procedures used must maintain the reliability inherent in our
system of rigorous adversarial testing. Craig at 856-857. Both
requirements are satisfied here.
1. (E)(2) Advances Important Public Policy Goals
14

[*P57] In both Craig and Self, the important public policy
advanced was the protection of minor sex abuse victims from
suffering further trauma by testifying in close physical proximity
with the individual who allegedly molested them. Here, the court
found that D.K. demonstrated "extreme fear", which caused her to
be unable to communicate her testimony.
[*P58] A minor child who is experiencing "extreme fear" is under
some form of severe emotional trauma or distress. "Extreme fear"
is, undoubtedly, one of many associated characteristics of severe
emotional distress or trauma. And we see no reason to differentiate
between a finding of necessity based on "serious emotional
trauma" or, as in this case, "extreme fear." Thus, we hold that a
finding of "extreme fear" meets the "minimum showing of
emotional trauma" and advances the important public policy of
preventing further trauma to the child sex abuse witness.
[*P59] Moreover, as the Court alluded to in Craig, a finding of
necessity based on "extreme fear" and procedures designed to
ameliorate that fear would advance another important public
policy, i.e., that of ensuring the reliability of testimonial evidence.
A child witness who is suffering "extreme fear" when testifying
may have difficulty accurately and honestly conveying his or her
testimony.
[*P60] To ensure that an alternative to face-to-face confrontation
is constitutionally justified under Craig a trial court must:
1) Hear evidence and determine whether use of the
closed-circuit television procedure is necessary to protect
the welfare of the testifying child witness.
2) Find that the defendant's presence — not the courtroom
generally -- causes the child's trauma.
3) Find that the emotional distress that would be suffered
by the child witness is more than "de minimis, i.e., more
than 'mere nervousness or excitement or some reluctance
to testify[.]'"
Id. at 855-856, quoting Wildermuth v. State (1987), 310 Md. 496,
524, 530 A.2d 275.

15

[*P61] The trial court heard evidence to determine whether the
procedure was necessary to protect D.K. On the witness stand D.K.
was unresponsive and expressed fear at testifying. She told the
court that her fear was attributable to both Knauff's presence and
the courtroom generally. (Tr. 217.) And the trial court found that
D.K.'s "extreme fear" was more than de minimis. The court
attempted to ascertain her level of fear on a scale of one to ten, to
which she responded that she was "real, real, real scared." (Tr.
215.)
2. The Procedures Ensured the Reliability of the Adversarial
System
[*P62] D.K. testified via closed-circuit camera in the physical
presence of the judge, the prosecutor, and defense counsel. Both
the defendant and the jurors could watch and listen to her
responses and observe her demeanor while testifying. Defense
counsel cross-examined D.K. and remained in constant
communication with Knauff by means of a cell phone. The record
further reflects that before defense counsel concluded his crossexamination, he went back into the courtroom and conferred in
person with Knauff. Defense counsel then stated on the record that
Knauff informed him he wished no further inquiry of D.K.
[*P63] In sum, we are confident that the procedures outlined in
R.C. 2945.481(E)(2) and followed by the trial court retained the
reliability of our system of rigorous adversarial testing.
Consequently, we conclude that this assignment of error is
meritless.
State v. Knauff (direct appeal), supra.
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. 86, 100
(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 his Reply and Traverse, Knauff relies on Coy v. Iowa, 487 U.S. 1012 (1988).

16

However, Judge Harsha’s opinion reasonably distinguishes Coy and relies on the decision of the
Supreme Court two years later in Maryland v. Craig, 497 U.S. 836 (1990). Knauff makes no
argument that the Fourth District unreasonably applied Craig.
Instead, Knauff relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), where the
Supreme Court held that the Confrontation Clause prohibits admission of certificate of an absent
lab analyst of results of a blood test unless analyst was subject to cross-examination before trial.
While Bullcoming is a later Supreme Court Confrontation Clause case, it does not call into
question the principles accepted in Craig.
Knauff also relies on United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005). In that
case the Eighth Circuit disallowed a conviction in which the victim, a female child, was
permitted to testify via two-way closed circuit television pursuant to 18 U.S.C. §
3509(b)(1)(B)(1). The Eighth Circuit found the statute unconstitutional insofar as it permitted
two-way video upon a finding that the child victim was unable to testify because of fear, unless
the trial court found the fear was of the defendant rather than the setting, which the court found
was required by Craig.

It joined the Eleventh Circuit in rejecting two-way video as a

satisfactory substitute for face-to-face confrontation. See United States v. Yates, 391 F.3d 1182
(11th Cir. 2004). However, it also noted that the Second Circuit had found two-way video
sufficient in United States v. Gigante, 166 F.3d 75 (2nd Cir. 1999).
This Court need not attempt to resolve this circuit split, because circuit court decisions
cannot provide the basis for habeas corpus relief. Rather, habeas relief is permitted only when
the state court decision is an unreasonable application of a holding of the United States Supreme
Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 785
(2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);

17

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848 (6th Cir.
2012).
AEDPA’s standard is intentionally “‘ “difficult to meet.” ’” White
v. Woodall, 572 U. S. ___, ___, 134 S. Ct. 1697, 1702, 188 L. Ed.
2d 698, 704 (2014) (quoting Metrish v. Lancaster, 569 U. S. ___,
___, 133 S. Ct. 1781, 1786, 185 L. Ed. 2d 988, 996 (2013)). We
have explained that “‘clearly established Federal law’ for purposes
of §2254(d)(1) includes only the holdings, as opposed to the dicta,
of this Court’s decisions.” White, 572 U. S., at ___, 134 S. Ct.
1697, 1702, 188 L. Ed. 2d 698, 704 (some internal quotation marks
omitted). “And an ‘unreasonable application of’ those holdings
must be objectively unreasonable, not merely wrong; even clear
error will not suffice.” Id., at ___, 134 S. Ct. 1697, 1702, 188 L.
Ed. 2d 698, 704 (same). To satisfy this high bar, a habeas
petitioner is required to “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 v. Richter, 562 U. S. 86,
103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, *, 191 L. Ed. 2d 464 (2015)(per curiam GVR),
reversing Donald v. Rapelje, 580 Fed. Appx. 277 (6th Cir. 2014).
Because the Fourth District’s decision is not an objectively unreasonable application
Craig, Knauff’s Second Ground for Relief should be dismissed.

Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Knauff asserts his trial counsel provided ineffective
assistance when he failed to elicit certain testimony from witness Jerrylyn Younts at trial.
Knauff made this claim in his petition for post-conviction relief. After the trial court denied the
petition without a hearing, Knauff again appealed to the Fourth District which decided the appeal
by writing in part as follows:
18

[*P15] While his direct appeal was pending in this court, Knauff,
through yet another attorney, filed a petition for postconviction
relief in the trial court. Knauff requested that the trial court declare
his conviction and sentence to be void or voidable because his trial
counsel did not provide him with effective assistance when counsel
failed to elicit testimony from his fiancée, Younts, regarding an
alternative explanation for the presence of his semen and saliva on
the insulation beneath the hole in his bedroom floor. Attached to
Knauff's petition was an affidavit of Younts in which she stated
that: (1) she had talked with Knauff's trial counsel several times
before and during the trial; (2) during those conversations, Younts
told the attorney that on several occasions between March and
September of 2009, she performed oral sex on Knauff in his
bedroom; (3) on those occasions, Knauff ejaculated in her mouth
and she spit the semen into the hole of the bedroom floor, (4)
during the trial, Knauff's attorney failed to ask her questions that
would have allowed her to testify to these facts, and (5) if she had
been asked to testify to this information, she would have done so.
The state filed a motion to dismiss the petition.
***
[*P23] To prevail on a claim of ineffective assistance of counsel,
a criminal defendant must establish (1) deficient performance by
counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel's errors, the result of the
proceeding would have been different. State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674;
State v. Warren, 4th Dist. Ross No. 12CA3324, 2013-Ohio-3542, ¶
25-26. On the issue of ineffectiveness, the petitioner has the burden
of proof because in Ohio, a properly licensed attorney is presumed
competent. Gondor, 112 Ohio St.3d 377, at ¶ 62. Failure to satisfy
either part of the test is fatal to an ineffective-assistance claim.
Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538
N.E.2d 373 (1989).
[*P24] For the first part of the test, the deficient performance
requires that the defendant show that counsel's errors were so
serious that counsel was not functioning as the counsel guaranteed
by the Sixth Amendment. Calhoun, 86 Ohio St.3d at 289, 714
N.E.2d 905, citing Strickland at 687. The United States Supreme
Court has emphasized that judicial scrutiny of counsel's
performance is highly deferential, dependent upon an evaluation
from counsel's perspective at the time the conduct occurred, and
19

requiring the application of a strong presumption that counsel's
conduct constituted sound trial strategy, even if ultimately
unsuccessful:
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action "might be
considered sound trial strategy." There are countless ways
to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a
particular client in the same way.
(Citations omitted.) Strickland, 466 U.S. at 689.
[*P25] Knauff contests his trial counsel's strategy to not question
his fiancée about him ejaculating in her mouth during sex on
several occasions during the pertinent time and her spitting his
semen into the hole in his bedroom floor. "Debatable trial tactics
generally do not constitute a deprivation of effective counsel."
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, ¶ 192. "There are numerous ways to provide effective
assistance of counsel, and debatable trial tactics and strategies do
not constitute a denial of that assistance." State v. Cloud, 5th Dist.
Delaware No. 06CA090068, 2007-Ohio-4241, ¶ 37. Questioning
witnesses is manifestly within the realm of trial strategy, and "we
will not question counsel's strategic decision to engage, or not to
engage, in a particular line of questioning as these decisions are
presumed to be the product of sound trial strategy." State v. Davis,
12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 25
(appeal from judgment dismissing petition for postconviction
relief); see also Cloud at ¶ 37 ("The decision to introduce evidence
falls within the realm of trial strategy and does not rise to the level
20

of deficient performance on these facts"); In the Matter of Riley,
4th Dist. Washington No. 03CA19, 2003-Ohio-4109, ¶ 21
("Failing to question witnesses on cross examination and choosing
not to present witnesses fall within the realm of trial strategy");
State v. Messer-Tomak, 10th Dist. No. 10AP-847, 2011-Ohio3700, ¶ 32, quoting State v. Treesh, 90 Ohio St.3d 460, 490, 2001
Ohio 4, 739 N.E.2d 749 (2001) ("counsel's decision about whether
to call a witness generally 'falls within the rubric of trial strategy
and will not be second-guessed by a reviewing court'").
[*P26] Knauff's petition for postconviction relief did not
overcome the strong presumption that his trial counsel's decision
not to elicit the proffered testimony from Knauff's fiancée
constituted reasonable trial strategy under the facts of the case.
Knauff's trial counsel provided the jury with an explanation as to
why Knauff's semen was found on the insulation underneath the
hole in his bedroom floor—Knauff's testimony that he masturbated
into the hole while watching his fiancée shower. In addition, trial
counsel emphasized that the additional DNA found on the
insulation in Knauff's bedroom did not match the DNA of either
Knauff or his daughter.
[*P27] As the trial court detailed in its decision dismissing
Knauff's petition for postconviction relief, "[t]he fact that defense
counsel did not present an alternative explanation, that [Knauff's]
fiancé[e] has spit his semen into the hole, was clearly a tactical
decision not to present the jury with conflicting explanations
offered by [Knauff] and his fiancé[e], that could potentially
undermine [Knauff's] credibility." Significantly, Knauff did not
attach his own affidavit to his petition corroborating his fiancée's
account of their sexual conduct during the period in question. Nor
does he suggest on appeal that he would have confirmed her
alternative explanation, even though he presumably would have
witnessed the events specified in his fiancée's affidavit.
[*P28] Moreover, although Knauff claims on appeal that if his
counsel had elicited this testimony from his fiancée, any conflict
could have been avoided by not calling Knauff to testify, his trial
counsel could have justifiably determined that Knauff's testimony
to defend himself against his daughter's allegations was crucial to
his defense. See State v. Huber, 8th Dist. No. 98128, 2013-Ohio97, ¶ 9 ("A decision regarding whether to call a defendant to testify
on his own behalf during the course of trial is a matter of trial
strategy").

21

[*P29] Finally, trial counsel could have reasonably concluded
that presenting the evidence proffered by Knauff's fiancée would
also have caused more harm because it would establish Knauff's
sexual practice to ejaculate in the mouths of persons with whom he
engaged in sex with, thereby corroborating his daughter's
testimony concerning his rape of her.
State v. Knauff (post-conviction), supra.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S. 111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
22

466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987).
Judge Harsha’s opinion as to why it might have been good trial tactics to fail to elicit the
omitted testimony from Younts is not the all-too-frequent summary dismissal of a trial attorney’s
mistake as “tactics.” Instead, he explains persuasively why the additional testimony would likely
have been counterproductive.
In his Reply and Traverse, Knauff spends considerable time demonstrating why this
claim was not barred in post-conviction by the Ohio criminal res judicata doctrine (ECF No.
1240-42). Knauff is correct and the Fourth District did not attempt to enforce a res judicata bar
in this case.
Knauff argues it was not trial strategy to omit Younts’ testimony about spitting in the
hole in the floor because that would have explained the unidentified DNA found on the seized
insulation in a way that excluded the victim (Reply and Traverse, ECF No. 9, PageID 1243). For
the reasons given by Judge Harsha, the additional testimony from Younts, particularly if coupled
with a failure to have Knauff himself testify, would have raised significant questions about
Knauff’s denial of the abuse, which would have been untestified to at that point.
Judge Harsha’s opinion shows that the Fourth District knew and applied the correct
Supreme Court precedent, Strickland v. Washington, supra.

23

That court’s application of

Strickland was not objectively unreasonable.
The second part of this Ground for Relief is Knauff’s claim that it was unconstitutional to
deny his post-conviction petition without a hearing. Claims of denial of due process and equal
protection in collateral proceedings are not cognizable in federal habeas because they are not
constitutionally mandated. Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986); accord, Greer v.
Mitchell, 264 F.3d 663, 681 (6th Cir. 2001); Johnson v. Collins, 1998 WL 228029 (6th Cir. 1998);
Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999); Zuern v. Tate, 101 F. Supp. 2d 948 (S.D. Ohio
2000), aff’d., 336 F.3d 478 (6th Cir. 2003).

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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 and therefore should not be
permitted to proceed in forma pauperis.

May 4, 2016.
s/ Michael R. Merz
United States Magistrate Judge

24

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).

25