Zeune v. Warden, Francisco Pineda

Filing 20

REPORT AND RECOMMENDATION that 13 Amended Petition for Writ of Habeas Corpus be DENIED, that 17 MOTION for Hearing be DENIED, and that this action be DISMISSED. Objections to R&R due by 5/31/2016. Signed by Magistrate Judge Terence P. Kemp on 5/12/2016. (agm)(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
RODNEY D. ZEUNE,
Petitioner,

CASE NO. 2:14-cv-1459

v.
WARDEN, FRANKLIN MEDICAL
CENTER,

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, formerly a state prisoner, filed this habeas corpus action pursuant to 28
U.S.C. §2254, challenging a conviction entered in the Franklin County Court of Common
Pleas. On April 17, 2015, this Court denied Respondent’s motion to dismiss and granted
Petitioner leave to file an amended petition, which was filed that day. The case is now
before the Court by way of that petition (Doc. 13), the Return of Writ (Doc. 14), Petitioner’s
reply (Doc. 16), Petitioner’s motion for an evidentiary hearing, and the exhibits attached
to Respondent’s motion to dismiss (Doc. 8).

For the following reasons, it will be

recommended that the motion for an evidentiary hearing be denied and that this case be
DISMISSED.
I. Procedural History
On August 18, 2009, the Franklin County, Ohio grand jury indicted Petitioner on one
count of trafficking in cocaine. (Doc. 8, Ex. 2). He stood trial before a jury, and on October
22, 2010, the jury convicted him. He was then sentenced to four years in prison and was

ordered to pay a fine and financial sanction totaling $6,000.00. He was also ordered to
serve up to three years of post-release control. (Ex. 5).
Through counsel, Petitioner timely appealed his conviction to the Tenth District
Court of Appeals. His appellate brief raised four assignments of error:
FIRST ASSIGNMENT OF ERROR: Rodney Zeune was deprived of his
constitutional rights to the effective assistance of counsel.
SECOND ASSIGNMENT OF ERROR: The trial court erred when it
failed to sua sponte order a mistrial.
THIRD ASSIGNMENT OF ERROR: The trial court denied Mr. Zeune
due process when it imposed a sentence punishing him for exercising his
right to a jury trial.
FOURTH ASSIGNMENT OF ERROR: The trial court erred when it
imposed an unlawful sentence.

(Ex. 7). He raised an additional assignment of error in his reply and supplemental brief,
claiming that the jury was not properly instructed about the affirmative defense of
entrapment. (Ex. 13).
The court of appeals decided the appeal on October 6, 2011. It overruled Petitioner’s
first, second, third, and fifth assignments of error, but remanded the case for resentencing
based on the fourth assignment of error. State v. Zeune, 2011 WL 4600663 (Franklin Co.
App. Oct. 6, 2011). On February 6, 2012, the trial court resentenced Petitioner to the same
sentence he originally received. (Ex. 20). Petitioner again appealed, and also (acting pro
se) filed a motion to vacate his sentence He did not fare as well this time; the court of
appeals affirmed the re-imposed sentence and denied the motion to vacate. State v. Zeune,
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2012 WL 5947016 (Franklin Co. App. Nov. 27, 2012). It also denied a motion for
reconsideration. (Ex. 32).
While the appellate process was ongoing, Petitioner was also pursuing relief in the
trial court through a motion to vacate and set aside his conviction and sentence, filed
pursuant to R.C. §2923.51. He asserted that counsel was constitutionally ineffective and
that the prosecutor withheld exculpatory information in violation of Brady v. Maryland, 373
U.S. 83 (1963). His petition was denied on February 7, 2013. (Ex. 37). Petitioner appealed
that decision as well, but on September 24, 2013, the court of appeals affirmed the trial
court’s ruling and denied another motion to vacate which Petitioner had filed. State v.
Zeune, 2013 WL 5406895 (Franklin Co. App. Sept. 24, 2013). Petitioner sought review of that
decision by the Ohio Supreme Court, raising all three issues addressed by the state court
of appeals, but he was unsuccessful in obtaining it. State v. Zeune, 137 Ohio St.3d 1477 (Jan.
22, 2014).
Eleven days before that decision was rendered, Petitioner filed another motion to
set aside his conviction and order resentencing, this time in the trial court. The trial court
denied that motion as well as a subsequent motion asking for the same relief. (Ex. 60. Ex.
63). Petitioner had no better luck with a habeas corpus petition which he filed directly with
the Ohio Supreme Court.
In his original habeas corpus petition, which he filed here on September 8, 2014,
Petitioner asserted these grounds for relief:
Ground one: My sentence and conviction is void and/or voidable because
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the State withheld exculpatory evidence and thus violated my due process
rights at trial. Fifth and fourteenth amendments to the U.S. Const. And Ohio
Const.
Ground two: My conviction is void because I was denied the right to
effective assistance of counsel at trial under the Sixth and Fourteenth
Amendments of the United States Constitution.
Ground three: My resentencing hearing was and sentence was unlawful
because I was sentenced outside the statutory guidelines of section 2929.14
of the Ohio Revised Code for a Felony of the Third Degree.
Petition, Doc. 4.
Respondent moved to dismiss the petition, arguing that ground three was
unexhausted because it was never presented to the Ohio Supreme Court and Petitioner still
had available to him the remedy of a delayed direct appeal. Petitioner responded by
moving

to amend or correct his petition to delete his third ground for relief or,

alternatively, to stay the case until he had exhausted that claim. Because ground three
related solely to Petitioner’s sentence, and because he had been released from custody by
the time Respondent’s motion was filed, the Court permitted Petitioner to abandon that
claim (and also denied his motion to stay this case pending exhaustion of that claim).
Thus, only grounds one and two are now before the Court. Respondent contends that
ground two has been procedurally defaulted in part, and that the part which was not
defaulted is meritless. Respondent also argues that ground one should be denied on its
merits. The Court will address Petitioner’s claims in that order, first setting out the
relevant facts of the case as described by the Tenth District Court of Appeals.

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II. The Facts
In its October 6, 2011 Opinion, the state court of appeals stated the facts this way:
At trial, Ayman Musleh testified that he and appellant had been friends for
years. He and appellant often used cocaine together and Musleh sometimes
bought cocaine from appellant. In 2009, Musleh became a confidential
informant for the Mt. Vernon Police Department after he was arrested on a
drug possession charge. Musleh agreed to do a “controlled buy” of cocaine
from defendant who was a “person of interest” in a Drug Enforcement
Agency (“DEA”) task-force investigation. Sometime thereafter, Musleh
arranged to buy an ounce of cocaine from appellant. On March 5, 2009, after
appellant changed the meeting location several times, Musleh and appellant
met at a Staples office supply store and then immediately drove in Musleh's
car to an apartment complex near the Columbus airport. Authorities had
wired Musleh's car with a listening device so they could hear what
transpired. On the way to the apartment complex, appellant called Rayshon
Alexander to tell him they were on their way. Shortly after arriving at the
apartment complex, Alexander approached the vehicle. Musleh gave
appellant the money to buy the cocaine and then appellant gave that money
to Alexander. Alexander gave the cocaine to appellant, who handed it to
Musleh. Musleh and appellant then drove away.
State v. Zeune, 2011 WL 4600663, *1.
Some additional facts appear in the September 24, 2013 Opinion. For example, the
court of appeals added this to the above description of the crime itself: “On the way back
to appellant's vehicle, appellant snorted some of the cocaine. Musleh's car had been wired
by police investigators so they could listen to what transpired.” State v. Zeune, 2013 WL
5406895, *1. The court also noted that “[d]uring the trial, it was disclosed that police had
certain tape recordings of telephone calls from Musleh to appellant, including those in
which they set up the drug deal, which were not turned over to appellant and his trial
counsel during discovery.” Id. Also pertinent are these findings made by the trial court,

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quoted at id., *5:
Here, [appellant] had previously used cocaine with Musleh. [Appellant]
knew the source of the cocaine. [Appellant] directed Musleh to several
locations before finally taking him to his source of the drug. [Appellant]
“snorted” cocaine during the return trip following the purchase. [Appellant]
had sold cocaine to Musleh on previous occasions. There is no evidence that
[appellant] was reluctant to arrange the sale of cocaine. The audio recording
of the conversation between [appellant] and Musleh while in Musleh's car
showed [appellant's] knowledge of cocaine trafficking. Thus, even if there
were evidence that the recordings of telephone conversations between
Musleh and [appellant] actually contained a promise by Musleh to repay
money [appellant] now claims was owed to him, the totality of the evidence
shows no “reasonable probability” that the result of the trial would be
different.

III. Procedural Default
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim
to the highest court of the State so that the State has a fair chance to correct any errors made
in the course of the trial or the appeal before a federal court intervenes in the state criminal
process. Procedural default can be a fairly complicated doctrine, involving a number of
court-made rules and exceptions, but the basic premise is simple and is reflected in the
language Congress has used in 28 U.S.C. §2254.
Under §2254, a federal court may grant relief to a state prisoner only if that person
is being held in custody in violation of the Constitution or law of the United States - that
is, that the prisoner's conviction or sentence was unlawful under federal law. In order for
a federal court to decide any claims on their merits, “the state prisoner must give the state

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courts an opportunity to act on his claims before he presents those claims to a federal court
in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). That is so because
§2254(b) states that an application for a writ of habeas corpus filed by someone in
petitioner's position “shall not be granted” unless “the applicant has exhausted the
remedies available in the courts of the State....”
One of the aspects of “fairly presenting” a claim to the state courts is that a habeas
petitioner must do so in a way that gives the state courts a fair opportunity to rule on the
federal law claims being asserted. That means if the claims are not presented to the state
courts in the way in which state law requires, and the state courts therefore do not decide
the claims on their merits, neither may a federal court do so. In the words used by the
Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law
which were not resolved on the merits in the state proceeding due to [petitioner's] failure
to raise them there as required by state procedure” also cannot be resolved on their merits
in a federal habeas case—that is, they are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues
that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v.. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “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.” Id. Second, the Court must determine
whether the state courts actually enforced the state procedural sanction. Id. Third, it must
be decided whether the state procedural forfeiture is an adequate and independent state
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ground upon which the state can rely to foreclose review of a federal constitutional claim.
Id. Finally, if the Court has determined 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 that there was cause for him not to follow the procedural rule, and that he was
actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice”
analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy
v. Marshall, 757 F.2d 94 (6th Cir. 1985).
In his second ground for relief, Petitioner raises the issue of ineffective assistance of
trial counsel. He raised such a claim in his post-conviction petition (Ex. 34), arguing that
counsel was ineffective for failing to investigate Petitioner’s claim that he was entrapped
by Mr. Musleh, who, he claimed, owed him $4,500 which was to be repaid on the date of
the cocaine transaction, and by failing to determine that the police were in possession of
recorded telephone conversations verifying Petitioner’s claim of entrapment. The trial
court found that the two-pronged test for evaluating assertions of ineffective assistance of
counsel set out in Strickland v. Washington, 477 U.S. 668 (1984) had not been met because the
entrapment defense was meritless; therefore, Petitioner could not have been prejudiced by
any action of his counsel in terms of presenting or not presenting the defense to the jury.
The trial court also determined that any part of this claim which was raised on direct
appeal - specifically, any assertion that counsel’s performance during the trial was deficient
- was barred by res judicata. (Ex. 37).
In his amended petition (Doc. 13), Petitioner describes his second ground for relief
8

as follows:
During trial, it was discovered that the State and law enforcement wilfully
withheld exculpatory evidence. My trial counsel submitted a request for
discovery outlining my demand for the same evidence that law enforcement
admitted to withholding. My trial counsel did not move for the evidence or
(sic) did he demand a mistrial for a Brady violation. The State of Ohio clearly
violated Rule 16 of the Ohio Rules of Criminal Procedure. Rather than
demanding the discovery, my trial counsel informed me that he worked with
the prosecutor for sixteen years, which is part of the record. He said it would
not be in my best interest to demand the evidence because this demand
would only irratate (sic) his friend, the prosecutor. My trial counsel
informed me that just because evidence requested fall under discovery rules,
does not entitle you to such evidence.

He acknowledged that he had raised a claim of ineffective assistance of trial counsel on
appeal, but asserted that this was not the same claim “because even though the Brady
violation was in the record, by (sic) counsel informed me the evidence was not part of the
record.” Id. at 8. His original petition phrased the claim slightly differently, alleging that
his trial attorney was ineffective because he failed to call any witnesses and did not file a
witness list. (Doc. 4).
It is not clear whether Petitioner has withdrawn or abandoned that portion of this
claim which relates to the failure to call witnesses. He does not mention that claim in his
reply. Such a claim appears on the face of the record, and, as Respondent points out, was
required to be raised on direct appeal in order to avoid a procedural default. The Court
concludes that a fair reading of Petitioner’s various filings is that he is limiting his
ineffective assistance of counsel claim to the one stated in his amended petition. That claim
can be reviewed on its merits because Petitioner presented it in his post-conviction petition
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and appealed the denial of that claim all the way to the Ohio Supreme Court. Thus,
although the Court agrees that any assertion of ineffective assistance of trial counsel which
was not raised in the post-conviction proceeding was defaulted, it does not perceive
Petitioner to be raising any defaulted claims here. Consequently, the Court will examine
both of Petitioner’s grounds for relief on their merits, and, because they raised related
issues - namely, the viability of his Brady claim - will consider them together.
IV. The Merits
A. The AEDPA
A state prisoner’s claims for habeas corpus relief are governed by the Antiterrorism
and Effective Death Penalty Act of 1995 (the AEDPA), which amended the habeas corpus
statute by including a standard of review that gives significant deference to the decisions
made by the state courts on the constitutional issues raised in a habeas corpus petition. As
this Court has said, the provisions of the Antiterrorism and Effective Death Penalty Act,
Pub.L. 104–132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry
v. Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008).
AEDPA imposes a “highly deferential standard for evaluating state-court rulings,” Lindh
v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and “demands that state-court decisions be given
the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
When the claims presented in a habeas corpus petition have been presented to and decided
by the state courts, 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,
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or based on an unreasonable determination of the facts in light of the evidence that was
presented. 28 U.S.C. § 2254(d) provides:
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.

In applying this statute, the Supreme Court has held that “[t]he focus ... is on whether the
state court's application of clearly established federal law is objectively unreasonable ... an
unreasonable application is different from an incorrect one.” To obtain habeas corpus relief,
a petitioner must show the state court's decision was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Bobby v. Dixon, ––– U.S. ––––, ––––, 132 S.Ct. 26, 27 (2011),
quoting Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–88 (2011). This bar is
“difficult to meet” because “habeas corpus is a ‘guard against extreme malfunctions in the
state criminal justice systems,’ not a substitute for ordinary error correction through
appeal.” Harrington v. Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332,
n. 50 (1979) (Stevens, J., concurring in judgment)). In short, “[a] state court's determination

11

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.” Id., quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004).
B. Grounds One and Two
Both of these grounds for relief rest on the same premise: that the prosecutor
withheld exculpatory evidence in violation of the Supreme Court’s decision in Brady v.
Maryland, 373 U.S. 83 (1963), and that Petitioner was prejudiced by that action. According
to Petitioner, the evidence (recordings of conversations between himself and Mr. Musleh)
would have corroborated the fact that the two met on the day in question not in order to
purchase cocaine, but because Mr. Musleh promised to pay Petitioner a part of the debt he
owed him, and that Petitioner was therefore entrapped into the meeting on a false premise,
making the subsequent cocaine purchase the product of that entrapment.

When

Petitioner’s counsel failed to follow up with discovery and did not obtain this evidence,
and when counsel then failed to present this theory to the jury and ask for an entrapment
instruction, he was, according to Petitioner, falling short of his constitutional duty
effectively to represent Petitioner at trial.
As noted, this Court does not review such a claim de novo, but must determine
whether the state courts applied well-established federal constitutional principles to the
claim in way that was either contrary to, or an unreasonable interpretation of, those
principles as explained by the United States Supreme Court. Consequently, any analysis

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of the merits of Petitioner’s claims must begin with an examination of the relevant state
court decision - in this case, the September 24, 2013 decision of the Tenth District Court of
Appeals. There, the court disposed of Petitioner’s claims in this fashion:
In his petition, appellant initially raised a claim that the state had improperly
withheld audiotapes of conversations between him and Musleh. “[T]he
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To
prove a Brady violation, a defendant must establish that: (1) the prosecution
withheld evidence; (2) the defense was not aware of the evidence; and (3) the
evidence withheld was material and exculpatory. State v. Monroe, 10th Dist.
No. 04AP–658, 2005–Ohio–5242, ¶ 17, citing State v. Johnston, 39 Ohio St.3d
48, 529 N.E.2d 898 (1988), paragraph four of the syllabus, and U.S. v. Agurs,
427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
Appellant's petition did not set forth sufficient operative facts to establish
substantive grounds for his Brady claim. First, a Brady violation involves the
post-trial discovery of information that was known to the prosecution, but
unknown to the defense. See Agurs at 103; State v. Wickline, 50 Ohio St.3d 114,
116, 552 N.E.2d 913 (1990); State v. Tucker, 8th Dist. No. 98685,
2013–Ohio–2527, ¶ 34; State v. Summers, 11th Dist. No.2011–A–0040,
2012–Ohio–4457, ¶ 25; State v. Summerall, 10th Dist. No. 03AP–1024,
2004–Ohio–6599, ¶ 44. As the trial court found, “[w]hile it can be assumed
that [appellant] was not aware that his conversations with Musleh were
being recorded by government investigators, he certainly was aware of the
contents of those conversations since he participated in them.” ®. 301, at 6.)
Appellant's knowledge of the content of the conversations is supported by
his affidavit attached to his petition for postconviction relief, which
emphasized that Musleh repeatedly told him that Musleh would give
appellant the $4,500 that he owed him if appellant met him on March 5.
Second, the evidence was neither exculpatory nor material. “ ‘Exculpatory
evidence’ is defined as evidence favorable to the accused which, ‘if disclosed
and used effectively, * * * may make the difference between conviction and
acquittal.’ “ State v. Rowe, 92 Ohio App.3d 652, 666, 637 N.E.2d 29 (10th
Dist.1993), quoting U.S. v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985); Summers at ¶ 25. “Evidence is considered material ‘if there is a
13

reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’ “ State v. Ketterer, 126
Ohio St.3d 448, 935 N.E.2d 9, 2010–Ohio–3831, ¶ 23, quoting Bagley at 682.
The touchstone of materiality is a “reasonable probability” of a different
result. State v. Norman, 10th Dist. No. 12AP–505, 2013–Ohio–1908, ¶ 55, 992
N.E.2d 432. “ ‘The question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.’ “ Id., quoting Kyles v. Whitley, 514 U.S. 419, 434, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995).
In his petition, appellant claimed that the withheld audio recordings would
have established that the only reason he met with Musleh on March 5, 2009
was that Musleh promised to repay him the $4,500 that he owed to appellant,
which would have established an affirmative defense of entrapment.
Entrapment is an affirmative defense so, the defendant bears the burden to
establish it by a preponderance of the evidence. State v. Daniels, 10th Dist. No.
09AP–976, 2010–Ohio–3745, ¶ 24. “The defense of entrapment is established
where the criminal design originates with the officials of the government,
and they implant in the mind of an innocent person the disposition to
commit the alleged offense and induce its commission in order to prosecute.”
State v. Doran, 5 Ohio St.3d 187, 449 N.E.2d 1295 (1983), paragraph one of the
syllabus.
Entrapment is not established, however, “when government officials ‘
“merely afford opportunities or facilities for the commission of the offense”‘
and it is shown that the accused was predisposed to commit the offense.”
Doran at 192, 449 N.E.2d 1295, quoting Sherman v. U.S., 356 U.S. 369, 372, 78
S.Ct. 819, 2 L.Ed.2d 848 (1958). The following factors are pertinent to the issue
of whether a criminal defendant is predisposed to commit an offense: (1) the
accused's previous involvement in criminal activity of the nature charged; (2)
the accused's ready acquiescence to the inducements offered by the police;
(3) the accused's expert knowledge in the area of the criminal activity
charged; (4) the accused's ready access to contraband; and (5) the accused's
willingness to involve himself in criminal activity. Doran at 192, 449 N.E.2d
1295.
As detailed in the trial court's decision denying appellant's petition for
postconviction relief, the evidence adduced at trial indicates that the
withheld audio recordings, even assuming they could be considered
exculpatory, were immaterial because appellant's predisposition to commit
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the drug offense negated any potential entrapment defense:
Here, [appellant] had previously used cocaine with Musleh.
[Appellant] knew the source of the cocaine. [Appellant]
directed Musleh to several locations before finally taking him
to his source of the drug. [Appellant] “snorted” cocaine during
the return trip following the purchase. [Appellant] had sold
cocaine to Musleh on previous occasions. There is no evidence
that [appellant] was reluctant to arrange the sale of cocaine.
The audio recording of the conversation between [appellant]
and Musleh while in Musleh's car showed [appellant's]
knowledge of cocaine trafficking. Thus, even if there were
evidence that the recordings of telephone conversations
between Musleh and [appellant] actually contained a promise
by Musleh to repay money [appellant] now claims was owed
to him, the totality of the evidence shows no “reasonable
probability” that the result of the trial would be different.
®. 301, at 5.)
In fact, if obtaining the promised $4,500 that was purportedly owed to him
had actually been the sole or primary motivation for appellant to have met
with Musleh on March 5, 2009, the evidence rebuts this claim because
appellant ended up engaging in the cocaine purchase with Musleh without
even asking for or receiving this money.
Therefore, appellant received a fair trial and his petition and attached
affidavit failed to set forth sufficient operative facts to support his first claim
of a Brady violation.
State v. Zeune, 2013 WL 5406895, *4-6.
There are two key parts to this holding. The first is that the evidence, even if it was
exculpatory, was not improperly withheld because it was not “unknown to the defense” that is, Petitioner was fully aware that he and Mr. Musleh had these conversations, even
if he did not know that law enforcement officials had recorded them. The second is that
the evidence was insufficient, as a matter of law, to establish the defense of entrapment
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given the other evidence of record, particularly that Petitioner and Mr. Musleh had used
cocaine together before, that Petitioner was the one who was aware of the source of supply,
and that Petitioner never asked Mr. Musleh for the $4,500 at any time when they were
together on the day in question. The Court examines this latter conclusion first.
The state court began its analysis of this issue by referring to State v. Rowe, 92 Ohio
App.3d 652, 666 (Franklin Co. 1993), which, in turn relied on United States v. Bagley, 473 U.S.
667 (1985). Bagley, which provided additional guidance about Brady, noted that the
purpose behind the Brady rule was to ensure that a criminal defendant was not deprived
of the right to a fair trial, which is one of the guarantees found in the Due Process Clause
of the Fifth and Fourteenth Amendments. A Brady-type due process violation occurs when
the evidence which the prosecution failed to turn over was “material,” meaning that “its
suppression undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at 678.
The Supreme Court further held in Bagley that use of the “prejudice” standard announced
in Strickland v. Washington, supra, was the appropriate way to analyze whether the
prosecutor’s failure undermined confidence in the outcome. Under that standard, a
defendant carries the burden of demonstrating materiality if he or she can show that “there
is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Id. at 682. The state court in Petitioner’s case
therefore identified and applied the correct standard to the second aspect of his Brady
claim; therefore, the question this Court must answer is whether it did so unreasonably,
or in a way that no fair-minded jurist would have done in light of clearly established
16

federal law.
The answer to this question turns on the reasonableness of the state court’s
conclusion that the evidence withheld by the prosecutor would not have aided Petitioner
in making a case for entrapment. If, even with this evidence, a jury could not have
determined that he was entrapped, then the absence of the evidence had no effect on the
outcome of the trial.
Again, the state court began its analysis by citing to a state decision, State v. Doran,
5 Ohio St.3d 187 (1983), which also relied on a decision of the United States Supreme Court,
Sherman v. United States, 356 U.S. 369 (1958). In Sherman, which was a drug trafficking case
like this one, the Supreme Court first noted that “[t]he function of law enforcement is the
prevention of crime and the apprehension of criminals. Manifestly, that function does not
include the manufacturing of crime,” id. at 372. It then held that “[t]o determine whether
entrapment has been established, a line must be drawn between the trap for the unwary
innocent and the trap for the unwary criminal.” Id. at 373. There, the evidence established
that the defendant, a recovering addict, was cajoled into engaging in a narcotics transaction
by the government’s witness and informer, who himself procured the source for the
narcotics and persuaded the defendant to resume his habit. Further, there was no evidence
that the defendant was predisposed to commit the crime; he had some prior convictions,
but, as the Supreme Court pointed out, “a nine-year-old sales conviction and a
five-year-old possession conviction are insufficient to prove petitioner had a readiness to
sell narcotics.” Id. at 375. The principles to be drawn from this decision, and the ones the
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state court of appeals drew, are that “a valid entrapment defense has two related elements:
government inducement of the crime, and a lack of predisposition on the part of the
defendant to engage in the criminal conduct.” Mathews v. United States, 485 U.S. 58, 63
(1988).
After identifying the correct legal principles, the state court focused its analysis on
the element of predisposition, indicating that five factors were relevant to deciding if that
element had been established: “(1) the accused's previous involvement in criminal activity
of the nature charged; (2) the accused's ready acquiescence to the inducements offered by
the police; (3) the accused's expert knowledge in the area of the criminal activity charged;
(4) the accused's ready access to contraband; and (5) the accused's willingness to involve
himself in criminal activity.” Federal cases may state these factors somewhat differently.
See, e.g., United States v. Al-Cholan, 610 F.3d 945 (6th Cir. 2010), describing the relevant
factors as “[t]he character or reputation of the defendant, including any prior criminal
record; whether the suggestion of the criminal activity was initially made by the
Government; whether the defendant was engaged in criminal activity for profit; whether
the defendant evidenced reluctance to commit the offense, overcome only by repeated
Government inducements or persuasion; and the nature of the inducement or persuasion
supplied by the Government,” quoting United States v. Moore, 916 F.2d 1131, 1137 (6th Cir.
1990) (quoting United States v. McLernon, 746 F.2d 1098, 1112 (6th Cir. 1984)). Nonetheless,
they are sufficiently similar to preclude any claim that the state court misunderstood or
mis-stated clearly established federal law with respect to how a claim of entrapment is
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analyzed. Using those factors, the state court rejected Petitioner’s claim that the withheld
evidence would have created a sufficient issue concerning entrapment to justify a jury
instruction, relying on the trial court’s factual findings that the evidence demonstrated a
past propensity to purchase and use cocaine with Mr. Musleh, the fact that it was
Petitioner, and not Mr. Musleh, who was familiar with the supplier, and the fact that
Petitioner used some of the cocaine that day, all while not asking Mr. Musleh for the money
which was supposed to have been the inducement for the two to meet up on that day.
These factual findings are binding on this Court. See 28 U.S.C. §2254(e)(1). The Court
cannot say that the state court reached an unreasonable conclusion given these facts.
Under federal law, “[t]he defendant has the burden of producing evidence of both
inducement and non-predisposition to commit the crime” and “the trial court should not
instruct on entrapment unless the defendant has presented evidence on both prongs of the
defense.” United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). There, the court upheld the
refusal to give an entrapment instruction because the defendant produced no evidence of
a reluctance to enter into the cocaine transaction at issue. That is essentially what the state
courts did here, and in the absence of any evidence of threats made to Petitioner to induce
him to lead Mr. Musleh to his supplier (see, e.g., United States v. Gurolia, 333 F.3d 944 (9th
Cir. 2003)), or evidence of repeated attempts to persuade Petitioner to commit this crime,
coupled with his outright refusal on at least one occasion to do so (see, e.g., United States
v. Ryan, 333 F.3d 944 (11th Cir. 2002), reasonable jurists could have concluded, as the state
court did, that Petitioner had not carried his burden of introducing evidence of lack of
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predisposition, nor would he have been able to do so even with evidence that he agreed
to meet with Mr. Musleh initially because he thought he was going to get some money.
The issue here is not why the two men met up, but whether, once Mr. Musleh suggested
that they obtain some cocaine, there would have been any evidence that Petitioner was
reluctant to do so or in some way not predisposed to commit that crime. Since the state
courts determined this issue reasonably in keeping with well-settled federal law principles,
this Court is not free to second-guess that decision.
As it turns out, this is also dispositive of Petitioner’s ineffective assistance of counsel
claim. Since the same legal standard is used to define “materiality” for purposes of the
Brady claim and prejudice for purposes of the ineffective assistance of counsel claim, if the
state court did not unreasonably determine that the withheld information was material,
Petitioner did not suffer any legal prejudice from his attorney’s failure to procure it,
however unreasonable that action may have been (even if, as Petitioner alleges, his
attorney’s failure was caused by putting his relationship with the prosecutor ahead of his
loyalty to his client). While such conduct cannot be condoned, the Strickland inquiry has
two prongs, and only one of them focuses on the propriety of counsel’s conduct. A habeas
petitioner must still demonstrate that, but for counsel’s misconduct, the outcome of the trial
might have been different. The state courts concluded that Petitioner did not make that
showing. This Court cannot say that was unreasonable. Under the AEDPA, that ends the
inquiry.
V. Recommended Disposition
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Based on the above discussion, it is recommended that the petition be denied, that
the motion for an evidentiary hearing be denied, and that this action be DISMISSED.
VI. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen 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 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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