Williams v. Warden Chillicothe Correctional Institution
Filing
21
REPORT AND RECOMMENDATION re 3 Petition for Writ of Habeas Corpus. The Magistrate Judge RECOMMENDS that the Petition be DENIED and this action be DISMISSED. Objections to R&R due by 6/18/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/1/2015. (mas)(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
EASTERN DIVISION
NOLAN WILLIAMS,
CASE NO. 2:13-CV-1002
JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth P. Deavers
Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
This matter is before the Court on the instant Petition,
Respondent’s Return of Writ, Petitioner’s Traverse and Notice of Supplemental Authority,
Respondent’s Reply, Petitioner’s Response, and the exhibits of the parties. For the reasons that
follow, the Magistrate Judge RECOMMENDS that the Petition be DENIED and this action be
DISMISSED.
Facts and Procedural History
This case involves Petitioner’s convictions after a bench trial in the Lucas County Court
of Common Pleas on felonious assault arising out of an October 10, 2010, altercation with his
wife, Joanna Williams. The trial court imposed a sentence of eight years in prison. Petitioner
timely appealed to the Ohio Sixth District Court of Appeals, which has summarized the facts of
this case as follows:
Appellant and Mrs. Williams resided at 2212 Walnut, Toledo,
Ohio. The record is clear that the altercation between them on
October 8, 2010, began in the house on Walnut. At some point in
the altercation, Mrs. Williams ran from the house and outside to
the street. Appellant followed.
Appellant argues that he did not strike Mrs. Williams when they
were outside of the house and that there was no ongoing
1
emergency when the neighbor (who was outside) called 911.
Appellant argues that the purpose of the 911 call was to establish
past events and that the neighbor was not describing events as they
happened.
The state responds that the neighbor was clearly reporting an ongoing emergency involving domestic violence and made the call to
secure emergency police assistance. The 911 call proceeded as
follows:
Operator: Toledo 911. (yelling in background)
Caller: Can I have the police at 2216 Walnut St.? This man is
beating this lady up real good * * *
Operator: 2216 Walnut?
Caller: Yes
Operator: Does she need medical attention?
Caller: Yes, she does.
Operator: What is your name?
Caller: My name is Fonda, I stay next door. (Yells out: I’m calling
the police right now.)
Operator: Any weapons that you can tell? (yelling in background)
Caller: He’s just beating her . . .
Operator: Can you give me a description of him, white, black or
hispanic?
Caller: Black* * *
Operator: What’s he wearing?
Caller: He’s got on jeans and a shirt, they stay next door to me * *
* (yelling in the background)
Operator: OK police are on notified * * * I’m gonna transfer you
over to medical (more yelling in background)
2
Appellant admitted at trial that he chased Mrs. Williams into the
street and that his objective was to bring her back to the house.
Appellant restrained Mrs. Williams outside as she was trying to get
away. Appellant testified that after he stopped her, he punched
Mrs. Williams in the knees from behind to make her legs buckle.
He testified he did this to permit him to push her back to the porch.
Appellant testified that Mrs. Williams was screaming with her
voice at a level of 7, 8, or 9 on a scale of 1 to 10 while outside.
Appellant testified that it was nice out and everyone, including the
neighbor, was outside. Appellant testified that he was aware that a
neighbor was calling 911. According to appellant, the woman who
called 911 was “hollering and screaming and she was louder than
Joanna.”
State v. Williams, 987 N.E. 2d 322, 326-27 (Ohio App. 6th Dist. 2013). Petitioner raised the
following assignments of error:
I.
The trial court deprived Mr. Williams of a fair trial when it
erroneously admitted the 911 hearsay call in violation of
Mr. Williams’ due process and confrontation rights.
II.
The trial court violated Mr. Williams’ state and federal due
process rights to a fair trial when it admitted improper and
prejudicial other bad acts evidence in contravention of
Evid.R. 404(B).
III.
There is insufficient evidence to sustain Mr. Williams’
conviction.
IV.
The trial court violated Mr. Williams’ due process right to a
fair trial when it failed to consider the lesser offense of
aggravated assault because he provided the mitigating
circumstances of provocation and sudden passion.
V.
The trial court failed to make an explicit finding on the
record, regarding Mr. Williams’ present and future ability
to pay appointed counsel’s fees, and failed to notify Mr.
Williams on the record and in open court that it was
imposing appointed counsel’s fees, supervision costs, and
confinement costs as set forth in its March 30, 2011
judgment entry.
3
Id. at 325. On March 1, 2013, the appellate court affirmed Petitioner’s judgment of conviction,
and sentence except to the extent that the sentence imposed an obligation to pay costs of
appointed attorney counsel, costs of confinement, and costs of supervision. The appellate court
reversed the judgment on those requirements and remanded the case for resentencing, ordering
the State to pay the costs of the appeal. Id. at 332-33. On June 5, 2013, the Ohio Supreme Court
dismissed Petitioner’s appeal. State v. Williams, 135 Ohio St. 3d 1461 (Ohio 2013).
On October 10, 2013, Petitioner filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied due process, the right to a
fair trial and convicted in violation of the Confrontation Clause due to admission of the contents
of a 911 report and that the appellate court abused its discretion by denying this claim (claims
one and two); he was denied a fair trial and convicted in violation of state law due to admission
of other bad acts (claim three); and that the trial court unconstitutionally imposed sentence (claim
four). Petitioner asserts that he is innocent of the charge against him. Reply, ECF 11, PageID#
717-18. It is the position of the Respondent that none of Petitioner’s claims warrant relief.
Standard of Review
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e)(1) provides:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
Further, a federal habeas court may not grant relief unless the state court’s decision was contrary
to or an unreasonable application of clearly established federal law, or based on an unreasonable
4
determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d)
provides as follows:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
The United States Supreme Court has explained the circumspect nature of a federal habeas
court’s review:
“[A]n unreasonable application of federal law is different from an
incorrect application of federal law.” Williams v. Taylor, 529 U.S.
362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, “a
federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant
decision applied clearly established federal law erroneously or
incorrectly.” Id., at 411, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389. Rather, that application must be “objectively
unreasonable.” Id., at 409, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389. This distinction creates “a substantially higher
threshold” for obtaining relief than de novo review. Schriro v.
Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836
(2007). AEDPA thus imposes a “highly deferential standard for
evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320,
333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and “demands
that state-court decisions be given the benefit of the doubt,”
Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d
279 (2002) (per curiam).
Renico v. Lett, 599 U.S.766, 773 (2010) (footnote omitted.)
“[C]learly established” law under § 2254(d)(1) consists of “the
holdings, as opposed to the dicta, of this Court’s” cases. Williams
v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). An “unreasonable application” of that law involves not
just an erroneous or incorrect decision, but an objectively
unreasonable one. Renico v. Lett, 559 U.S. 766 (2010).
5
Wong v. Smith, 131 S.Ct. 10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
592 U.S. 86, ––––, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)).
Claims One and Two
In claim one, Petitioner asserts that he was convicted in violation of the Confrontation
Clause and denied his right to cross examination witnesses against him because the prosecution
failed to establish the unavailability of his neighbor, “Fonda,” the key witness against him, prior
to admitting her statements in the 911 call into evidence.
Petitioner complains that the
prosecutor failed to call Fonda as a prosecution witness in an effort to obtain a tactical
advantage.
Petition, ECF 3, PageID# 33.
He argues in claim two that the Ohio courts
improperly rejected this claim and failed to conduct a review on the alleged denial of due
process, thereby permitting this Court to conduct a de novo review. PageID# 36.
Petitioner
argues that Fonda would have provided exculpatory evidence. He asserts that admission of the
contents of the 911 call violated state law. He argues that he is the victim of a manifest
miscarriage of justice. See Reply, ECF 11.
The state appellate court rejected this claim in relevant part as follows:
[A]ppellant contends that he was denied his right to confront
witnesses against him at trial as guaranteed by the Sixth
Amendment of the United States Constitution, Article I, Section 10
of the Ohio Constitution, and due process of law by the trial
court’s admitting into evidence the contents of a 911 call at trial. A
neighbor made the 911 call, but did not testify at trial.
The United States Supreme Court considered the Sixth
Amendment right to confront witnesses in the context of 911 calls
in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165
6
L.Ed.2d 224 (2006). The court considered “when statements made
during a 911 call * * * are ‘testimonial’ and thus subject to the
requirements of the Sixth Amendment’s Confrontation Clause.”
Id. at 817, 126 S.Ct. 2266, 165 L.Ed.2d 224.
In State v. Jones, 2012-Ohio-5677, 984 N.E.2d 948, the Ohio
Supreme Court reviewed decisions of the United States Supreme
Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004), Davis, and Hammon v. Indiana
(consolidated with Davis ) and the analysis required to determine
whether statements during police interrogation are testimonial and
subject to the requirements of the Confrontation Clause. The court
identified a primary-purpose test used to make that determination.
Jones at ¶ 145. The test provides:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution. Id., quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266,
165 L.Ed.2d 224.
Appellant and Mrs. Williams resided at 2212 Walnut, Toledo,
Ohio. The record is clear that the altercation between them on
October 8, 2010, began in the house on Walnut. At some point in
the altercation, Mrs. Williams ran from the house and outside to
the street. Appellant followed.
Appellant argues that he did not strike Mrs. Williams when they
were outside of the house and that there was no ongoing
emergency when the neighbor (who was outside) called 911.
Appellant argues that the purpose of the 911 call was to establish
past events and that the neighbor was not describing events as they
happened.
The state responds that the neighbor was clearly reporting an ongoing emergency involving domestic violence and made the call to
secure emergency police assistance. The 911 call proceeded as
follows:
Operator: Toledo 911. (yelling in background)
7
Caller: Can I have the police at 2216 Walnut St.? This man is
beating this lady up real good * * *
Operator: 2216 Walnut?
Caller: Yes
Operator: Does she need medical attention?
Caller: Yes, she does.
Operator: What is your name?
Caller: My name is Fonda, I stay next door. (Yells out: I’m calling
the police right now.)
Operator: Any weapons that you can tell? (yelling in background)
Caller: He’s just beating her ...
Operator: Can you give me a description of him, white, black or
hispanic?
Caller: Black* * *
Operator: What’s he wearing?
Caller: He’s got on jeans and a shirt, they stay next door to me * *
* (yelling in the background)
Operator: OK police are on notified * * * I’m gonna transfer you
over to medical (more yelling in background)
Appellant admitted at trial that he chased Mrs. Williams into the
street and that his objective was to bring her back to the house.
Appellant restrained Mrs. Williams outside as she was trying to get
away. Appellant testified that after he stopped her, he punched
Mrs. Williams in the knees from behind to make her legs buckle.
He testified he did this to permit him to push her back to the porch.
Appellant testified that Mrs. Williams was screaming with her
voice at a level of 7, 8, or 9 on a scale of 1 to 10 while outside.
Appellant testified that it was nice out and everyone, including the
neighbor, was outside. Appellant testified that he was aware that a
neighbor was calling 911. According to appellant, the woman who
8
called 911 was “hollering and screaming and she was louder than
Joanna.”
In our view, the audio recording of the 911 call discloses that the
woman caller was excited by events. There was contemporaneous
yelling in the background during the call. The neighbor described
the incident as ongoing.
The evidence at trial was that Mrs. Williams was yelling for help
and remained in the grasp of appellant at the time of the call. Both
Mrs. Williams and the neighbor caller were yelling at the time of
the call. This was not a call to report a historical event.
Viewed objectively, the primary purpose of the statements by the
neighbor in the 911 call was to seek police assistance to aid Mrs.
Williams in an ongoing emergency involving domestic violence.
We conclude that statements in the 911 call were nontestimonial
and, therefore, not subject to the requirements of the Sixth
Amendment’s Confrontation Clause.
***
With regard to appellant’s argument that statements in the 911 call
were inadmissible hearsay, we agree with the state that the trial
court did not abuse its discretion in admitting audio recording and
printed transcript of the 911 call under the hearsay exception for
excited utterances under Evid.R. 803(2). . . .
In State v. Duncan (1978), 53 Ohio St.2d 215, 7 O.O.3d 380, 373
N.E.2d 1234, the Ohio Supreme Court established a four-part test
to determine whether a hearsay statement is admissible under
Evid.R. 803(2). Id. at paragraph one of the syllabus, approving
and following Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O.
389, 124 N.E.2d 140, paragraph two of the syllabus. Under this
test, the proponent of the statement must establish that (1) there
was an event startling enough to produce a nervous excitement in
the declarant, (2) the statement must have been made while under
the stress of excitement caused by the event, (3) the statement must
relate to the startling event, and (4) the declarant must have had an
opportunity to personally observe the startling event. Id.
We review a trial court’s admission of a statement as an excited
utterance under Evid. R. 803(2) under an abuse of discretion
standard. Duncan at 219, 373 N.E.2d 1234.
9
The audio recording and testimony at trial demonstrates that the
neighbor witnessed appellant struggling with his wife outside and
forcing her back to the house against her will. Appellant testified to
both his wife and the caller being excited and yelling as the events
transpired. The audio recording discloses nervous excitement by
the caller. The call concerned the altercation between appellant and
his wife outside which admittedly was in view of the caller. We
find no abuse of discretion on hearsay grounds to the trial court’s
admission of the 911 call into evidence as the statements in the call
come within the exception for excited utterances under Evid.R.
803(2).
We find Appellant’s Assignment of Error . . . not well-taken.
State v. Williams, 987 N.E. 2d at 326-29.
Petitioner’s claim that admission of the contents of the 911 tape violated State law or
evidentiary rules fails to provide a basis for relief. Federal courts can grant habeas corpus relief
only if the petitioner is confined in violation of the United States Constitution. 28 U.S.C. §
2254(a); e.g., Wilson v. Corcoran, 562 U.S. 1 (2010). “[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). As
applied here, this Court cannot reexamine whether the Ohio courts were correct in their
determination that admission of the contents of the 911 tape did not violate Ohio law.
Petitioner also raises a federal constitutional claim related to his right to confront
witnesses.
The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to physically confront and cross examine adverse witnesses at all stages of
the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). In Crawford v. Washington, 541 U.S. 36
(2004), the United States Supreme Court abrogated its holding in Ohio v. Roberts, 448 U.S. 56
(1980), and re-defined the test for determining whether admission of hearsay statements violates
10
the Confrontation Clause. The Supreme Court in Crawford held that testimonial statements of a
witness who does not appear at trial are inadmissible unless the witness was unavailable to
testify and the defense had a prior opportunity to cross examine the witness. Under Crawford,
“[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross examination.” Id. at 1366. The
Supreme Court, however, left the application of Roberts to cases involving nontestimonial
hearsay untouched:
[“Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers’ design to afford the States flexibility in their
development of hearsay law-as does Roberts, and as would an
approach that exempted all such statements from Confrontation
Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 124 S.Ct.
1354, 158 L.Ed.2d 177. As the courts applying Crawford have
observed,
[t]he lynchpin of the Crawford decision thus is its
distinction between testimonial and nontestimonial
hearsay; simply put, the rule announced in
Crawford applies only to the former category of
statements. . . .
[U]nless a particular hearsay statement qualifies as
“testimonial,” Crawford is inapplicable and Roberts
still controls.
Coy v. Renico, 414 F.Supp.2d 744, 773 (E.D. Mich 2006) (quoting United States v. Hendricks,
395 F.3d 173, 179 (3d Cir. 2005)); Horton v. Allen, 370 F.3d 75, 83–84 (1st Cir. 2004). The
Supreme Court declined to define a comprehensive definition of the term “testimonial,” but
indicated, at a minimum, the term includes “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations. These are the modern practices with
closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541
U.S. at 68. A casual remark to an acquaintance, business records, and statements made in
11
furtherance of a conspiracy do not constitute testimonial statements within the protection of the
Sixth Amendment.
Id. at 51–55. In the Sixth Circuit, the test for determining whether a
statement is deemed testimonial within the meaning of Crawford is:
. . . whether the declarant intends to bear testimony against the
accused. That intent, in turn, may be determined by querying
whether a reasonable person in the declarant’s position would
anticipate his statement being used against the accused in
investigating and prosecuting the crime.
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).
“[A]dmission of a testimonial statement in and of itself is not enough to trigger a
violation of the Confrontation Clause. . . . [T]he statement must be used as hearsay-in other
words, it must be offered for the truth of the matter asserted.” United States v. Pugh, 405 F.3d
390, 399 (6th Cir. 2005). In Davis v. Washington, 547 U.S. 813, 822 (2006), the Supreme Court
clarified the circumstances under which a statement may be deemed to be testimonial and subject
to the strictures of the Confrontation Clause, holding as follows:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Id. In contrast, in Hammon v. Indiana, 547 U.S. 813 (2006), a companion case, the Supreme
Court held that statements given to police responding to a domestic violence dispute constituted
testimonial statements within the meaning of Crawford where police interviewed the victim after
the event regarding the investigation into potentially criminal past events. The Supreme Court
distinguished Hammon from Davis. Davis involved statements made that were needed to obtain
12
assistance in regard to an ongoing emergency. In Hammon, however, “[t]he officer . . . “was
not seeking to determine . . . ‘what is happening,’ but rather ‘what happened.’”
Michigan v.
Bryant, 562 U.S. 344, --, 131 S.Ct. 1143, 1154-55 (2011)(quoting Davis). The statements in
Hammon, “‘were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation.’” Michigan v. Bryant, 131 S.Ct. at 1154-55 (quoting
Davis, 547 U.S. at 832)).
In Michigan v. Bryant, the Supreme Court clarified its holding in Davis and Hammon,
holding that, in order to determine whether the Confrontation Clause bars admission of a
statement at trial, the reviewing court must consider the “primary purpose” of the interrogation
“by objectively evaluating the statements and actions of the parties to the encounter, in light of
the circumstances in which the interrogation occurs.” Michigan v. Bryant, 131 S.Ct. at 1162.
The existence of an emergency or the parties’ perception that an
emergency is ongoing is among the most important circumstances
that courts must take into account in determining whether an
interrogation is testimonial because statements made to assist
police in addressing an ongoing emergency presumably lack the
testimonial purpose that would subject them to the requirement of
confrontation. As the context of this case brings into sharp relief,
the existence and duration of an emergency depend on the type and
scope of danger posed to the victim, the police, and the public.
Applying these concepts to the factual scenario involved in this case, this Court concludes that
the Confrontation Clause does not bar admission of Fonda’s 911 statements. More specifically,
the Court concludes that the state court’s decision also so concluding did not unreasonably apply
or contravene federal law or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). Petitioner
remained free to call the witness to elicit any inconsistency in her statements or exculpatory
evidence that he alleges she could provide. This Court reaches the same conclusion.
13
The decision cited by Petitioner of the United States Court of appeals for the Sixth
Circuit of McCarley v. Kelly, 759 F.3d 535 (6th Cir. 2014), does not compel a different result.
(See Petitioner’s Notice of Additional Authority, ECF 16). McCarley involved the admission of
statements of a 3 ½ year old child during therapy to a psychologist hired for the purpose of
obtaining potentially incriminating information on charges of aggravated murder. The Sixth
Circuit in McCarley reversed the decision of the District Court concluding that any error in the
admission of the child’s statements constituted harmless error. The Court reasoned that the
statements involved testimonial evidence under the Confrontation Clause, and that the error was
not harmless. The Sixth Circuit considered the facts in McCarley to be analogous to those in
Davis.
Lt. Karabatsos testified that he sought out Dr. Lord to speak with
D.P. because “we determined it was necessary to bring somebody
who was a child psychologist, possibly, or somebody who was a
child therapist in to speak with him, see if they could extract any
information from him that he remembered from that evening.” The
lieutenant also testified that he asked Dr. Lord to “make [him]
aware” of anything D.P. said about the murder “so that [he] could
use it in [his] investigation.” Because Dr. Lord was questioning
D.P. about the night of his mother’s murder and reporting
everything D.P. said that might be relevant to the investigation
back to Lt. Karabatsos, Dr. Lord was acting more as a police
interrogator than a child psychologist engaged in private
counseling. Cf. Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct.
1232, 51 L.Ed.2d 424 (1977) (holding a police officer violated
Williams’ Sixth Amendment right to counsel by “deliberately and
designedly set[ting] out to elicit information from Williams just as
surely as—and perhaps more effectively than—if he had formally
interrogated him”); Massiah v. United States, 377 U.S. 201, 206,
84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (holding police violated
Massiah’s Sixth Amendment right to counsel when they
“deliberately elicited” incriminating statements from him).
Although Dr. Lord is not a member of the police department, Lt.
Karabatsos’ testimony shows that, like the 911 operator in Davis,
Dr. Lord was “at least [an] agent[ ] of law enforcement” such that
her acts could likewise be considered “acts of the police.” Davis,
547 U.S. at 823 n. 2, 126 S.Ct. 2266. Dr. Lord’s sessions with
14
D.P. thus were more akin to police interrogations than private
counseling sessions, a fact that brings this case within the
Crawford–Davis analysis for determining whether statements
given to law enforcement personnel are testimonial evidence.
. . . D.P.’s statements to Dr. Lord occurred long after—ten days, to
be precise—any emergency situation had passed. See id. at 830,
126 S.Ct. 2266. The lieutenant unambiguously stated that his
“main concern” and the “main reason” for D.P.’s sessions with Dr.
Lord “was to try to get the information” that police personnel
could not elicit from D.P.—including the identity of the suspects—
so that Lt. Karabatsos “could use it in [his] investigation.” Because
“the primary purpose of the interrogation [wa]s to establish or
prove past events potentially relevant to later criminal
prosecution,” D.P.’s statements are testimonial evidence. Davis,
547 U.S. at 822, 126 S.Ct. 2266.
McCarley v. Kelly, 759 F.3d at 546. Thus, McCarley provides no assistance to Petitioner here.
Claims one and two are without merit.
Claim Three
In claim three, Petitioner complains that introduction of exhibits and testimony
concerning applications for protective orders by his wife, or prior bad acts, denied him a fair
trial. Again, Petitioner’s claim involves the admission of evidence by the state court. He again
contends that admission of this evidence violated state law or evidentiary rules.
These
arguments, however, fail to provide a basis for relief in this Court. Federal habeas review of
state court evidentiary rulings is extremely limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th
Cir. 1990). Evidentiary questions generally do not rise to a constitutional level unless the error
was so prejudicial as to deprive a defendant of a fundamentally fair trial, thereby violating due
process. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); see also Walker v. Engle, 703
F.2d 959, 962 (6th Cir. 1983). When such errors are alleged, the federal court’s inquiry in
reviewing these claims is directed to whether the evidence was rationally connected to the crime
15
charged. Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980). For the reasons addressed by the
state appellate court, such were the circumstances here.
The record reflects that
Mrs. Johnson secured the issuance of two civil protective orders
against appellant from the Domestic Relations Division of the
Lucas County Court of Common Pleas. One was based upon an
incident that occurred on July 4, 2010. The other was based on the
October 8, 2010 incident involved in this case.
The first protection order was issued on July 9, 2010, and
dismissed, by agreement, on September 17, 2010. The September
17, 2010 dismissal order was state’s exhibit No. 6 at trial. The
second civil protective order was issued on January 13, 2011, after
a hearing. A copy of the order was state’s exhibit No. 7. Both
exhibits were placed in evidence at trial.
State v. Williams, 987 N.E. 2d at 329. The appellate court noted that Petitioner had failed to
object at trial and therefore conducted a plain error review, also stating:
Ohio recognizes a presumption with respect to a trial court’s
consideration of evidence at bench trials:
[T]he trial court is presumed to consider “‘only the relevant,
material, and competent evidence in arriving at its judgment unless
it affirmatively appears to the contrary.’ ” State v. Post, 32 Ohio
St.3d 380, 384, 513 N.E.2d 754 (1987), quoting State v. White, 15
Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). State v. Powell, 132
Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 195.
Id.
Assuming that Petitioner’s claim is properly before this Court, he has failed to establish
an error of constitutional magnitude.
Both the Supreme Court and the Sixth Circuit have repeatedly held
that a defendant is not denied a fair trial by the admission of prior
bad acts evidence which is relevant in the defendant’s trial. See
Estelle, 502 U.S. at 69–70; Dowling v. United States, 493 U.S.
342, 353–54, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); Coleman v.
Mitchell, 268 F.3d 417, 439–40 (6th Cir. 2001); Pennington v.
Lazaroff, 13 Fed. Appx. 228, 232 (6th Cir. 2001) (per curiam)
16
(unpublished); Manning v. Rose, 507 F.2d 889, 893–95 (6th Cir.
1974).
Norris v. Davis, No. 05-60126, 2006 WL 1581410 (E.D. Mich. May 3, 2006).
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. In Estelle v.
McGuire, the Supreme Court declined to hold that the admission of
prior injury evidence violated due process, thus warranting habeas
relief. 502 U.S. 62, 75, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
The Court stated in a footnote that, because it need not reach the
issue, it expressed no opinion as to whether a state law would
violate due process if it permitted the use of prior crimes evidence
to show propensity to commit a charged crime. Id. at 75 n. 5, 502
U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385. Moreover, in Spencer v.
Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the
Supreme Court rejected the argument that the Due Process Clause
requires the exclusion of prejudicial evidence, even though
limiting instructions were given and a valid state purpose is served.
Id. at 563–64, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. The
Court recognized that it was not “a rule-making organ for the
promulgation of state rules of criminal procedure. And none of the
specific provisions of the Constitution ordains this Court with such
authority.” Id. at 564, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606.
While the Supreme Court has addressed whether prior acts
testimony is permissible under the Federal Rules of Evidence, see
Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136
L.Ed.2d 574 (1997); Huddleston v. United States, 485 U.S. 681,
108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), it has not explicitly
addressed the issue in constitutional terms. Accordingly, the
district court correctly found that there is no Supreme Court
precedent that the trial court’s decision could be deemed “contrary
to,” under AEDPA.
Bugh v. Mitchell, 329 F.3d 469, 512–13 (6th Cir. 2003).
Claim three is without merit.
Claim Four
In claim four, Petitioner asserts that the trial court improperly imposed the maximum
term of eight years of incarceration; relied on false information in imposing sentence;
unconstitutionally denied him the right to read or rebut false evidence contained within his bond
17
report; and denied him due process by re-sentencing him while his appeal remained pending in
the Ohio Supreme Court. Petition, ECF 3, PageID# 41. It is the position of the Respondent that
Petitioner has procedurally defaulted this claim.
Procedural Default
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state criminal defendant with federal constitutional claims is required to present those
claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the
petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is
subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S.
722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural
default, the petitioner can no longer present the relevant claims to a state court, the petitioner also
waives the claims for purposes of federal habeas review unless he or she can demonstrate cause
for the procedural default and actual prejudice resulting from the alleged constitutional error.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier,
477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether
procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the
four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth
Circuit requires the district courts to engage in the following inquiry:
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
18
sanction.... 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. Maupin, 785 F.2d at 138 (internal quotations
omitted). Finally, if “the court determines that a state procedural
rule was not complied with and that the rule [has] an adequate and
independent state ground, then the petitioner” may still obtain
review of his or her claims on the merits if the petitioner
establishes: (1) a substantial reason to excuse the default and (2)
that he or she was actually prejudiced by the alleged constitutional
error. Id. “Cause” under this test “must be something external to
the petitioner, something that cannot fairly be attributed to him[;]
... some factor external to the defense [that] impeded [ ] efforts to
comply with the State’s procedural rule.” Coleman, 501 U.S. at
753. This “cause and prejudice” analysis also applies to failure to
raise or preserve issues for review at the appellate level or failure
to appeal at all. Id. at 750.
Nevertheless, “‘[i]n appropriate cases, the principles of comity and finality that inform
the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally
unjust incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135
(1982)). Petitioners who fail to show cause and prejudice for procedural default may nonetheless
receive a review of their claims if they can demonstrate that a court’s refusal to consider a claim
would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott
v. Coyle, 261 F.3d 594, 601–02 (6th Cir.2001) (same). The fundamental miscarriage of justice
exception requires a showing that “in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298,
329 (1995).
Petitioner’s claim is waived because he failed to raise it on direct appeal. His failure to
raise claim four on direct appeal is a clear procedural default based on the rule in Ohio that errors
which appear on the face of the record must be raised on direct appeal or will be deemed to have
been forfeited. If petitioner were now to attempt to bring his claims by any other means, they
19
would be barred by Ohio’s doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982);
State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175.
The procedural rule barring petitioner’s claims for relief constitutes adequate and
independent state grounds for denying relief. The requirement that all available claims be
asserted in the first appellate proceeding serves the state’s interest in finality and in ensuring that
claims are adjudicated at the earliest possible opportunity. Further, the doctrine of res judicata is
stated in unmistakable terms in numerous Ohio decisions and Ohio courts have consistently
refused to review claims on the merits under that doctrine. See State v. Cole; State v. Ishmail;
State v. Perry.
The Court concludes that petitioner has waived his right to present claim four for federal
habeas corpus review. Petitioner can still secure review of this claim on the merits if he
demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice
from the constitutional violations that he alleges.
“‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him[;] ... some objective factor external to the defense [that]
impeded ... efforts to comply with the State’s procedural rule.”
Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Constitutionally ineffective assistance of
counsel may constitute cause for a procedural default. Edwards v. Carpenter, 529 U.S. 446,
451(2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). However, petitioner has
offered neither sufficient evidence of cause or prejudice to permit federal habeas corpus review.
Petitioner cannot assert ineffective assistance of appellate counsel as cause for his failure to raise
a claim regarding improper sentencing on direct appeal, as such claim has never been presented
20
to the state courts, and therefore is procedurally barred from review. Edwards v. Carpenter, 529
U.S. at 451–52 (2000) (internal citation omitted).
Claim four is waived.
Actual Innocence
Petitioner also asserts that he is innocent of the crime with which he has been convicted.
The United States Supreme Court has held that a claim of actual innocence may be raised “to
avoid a procedural bar to the consideration of the merits of [the petitioner’s] constitutional
claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible
showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise
procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in
Schlup is “‘not itself a constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’”
Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it
is “more likely than not” that new evidence-not previously presented at trial-would allow no
reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577
(6th Cir. 2005). The threshold inquiry is whether “new facts raise[ ] sufficient doubt about [the
petitioner’s] guilt to undermine confidence in the result of the trial.” Schlup, 513 U.S. at 317.
Actual innocence is restricted to factual innocence and does not encompass mere legal
21
insufficiency. Souter at 590 (citing Bousley v. U.S., 523 U.S. 614, 623 Application of the actual
innocence exception should be “rare” and “only in the extraordinary case.” Schlup at 321.
Petitioner does not offer, and the Court’s independent review of the Petition and record
does not reveal that any “new facts” have arisen that undermine the result of his trial. Petitioner
cannot, therefore, establish a claim for actual innocence sufficient to avoid his procedural
default. Moreover, a free-standing claim of actual innocence does not provide a basis for relief.
See Legrone v. Birkett, 571 F. A’ppx. 417, 421 (6th Cir. 2014)(citing Herrera v. Collins, 506
U.S. 390, 400 (1993)).
Recommended Disposition
WHEREUPON, the Magistrate Judge RECOMMENDS that the Petition be DENIED
and this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
22
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
(1985); 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
_s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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