Smith v. Warden Ross Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Michael P Smith. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 12/3/2015. Signed by Magistrate Judge Norah McCann King on 11/16/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL P. SMITH,
Petitioner,
Case No. 2:14-cv-02018
Judge Marbley
Magistrate Judge King

v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, ECF No. 1, Respondent’s Return
of Writ, ECF No. 5, Petitioner’s Traverse, ECF No. 14, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
Kyle Carter's presence, along with his dog, in an apartment
building at 903 Stewart Avenue, Cambridge, Ohio became a
source of anxiety for Smith. In addition, Smith contended that
Carter neglected to clean up after his dog, leaving waste in the
front lawn. Smith first tried complaining to the leasing company,
but Carter and his dog remained on the premises. Verbal
altercations occurred between the two for some time.
On March 5, 2011 Jessica Beckett, a resident of the apartment
building observed Smith walk up the shared stairway that led to
Becket's apartment and another apartment where Kyle Carter was
currently staying. Becket testified Smith was banging on the door
and yelling at them saying, “he wanted the squatters out of here
and their damn dog out of here, and he was going to kill them, and
he was going to beat their ass.” Becket testified she was very

scared of this event and eventually decided to purchase a weapon
for protection.
Carter and his girlfriend Katrina Adamik were alarmed. Carter
called a friend, Trevon Bundy, and reported what had transpired
between them and Smith in a voicemail message to Bundy's
telephone.
On March 8, 2011, Smith again confronted Carter to tell him that
he and his dog were violating the terms of the lease and he had to
go. As the verbal altercation escalated, Carter's friend from across
the street, Cody Heskett, came to assist him. Smith was yelling at
the two young men to come over to his porch so he could kick their
ass. The shouting match grew louder, but Smith never left his
porch. Heskett tore off his shirt and beat his chest, as if preparing
for a fight with Smith. Carter responded to the threats and shouts
with his own angry and violent words. Smith claimed that the two
young men said that they had a gun back at Mr. Heskett's house,
which frightened Smith. Heskett later told his brother that his
intention was to go back to the house and get his shotgun so he
could shoot Smith.
Smith ran inside, grabbed his Springfield .45 Caliber
semiautomatic handgun, and fired a shot from his porch toward the
street at Cody Heskett. That shot missed Heskett. Smith fired a
second time striking and eventually killing Kyle Carter.
Moments before the shooting, Ms. Beckett testified that she heard
Smith yell, “I'm going to get my .45 and blow you up,” which she
took to mean he was going to get a gun out of his apartment. At
this point, Beckett called the police. However, a concerned citizen,
Linda Phillips had already called the police to report that she had
heard shouts threatening violence and it looked like an old man
was antagonizing two boys who were out in the street.
On or about 4:09 p.m. on that day, Lieutenant Kevin Love and
Patrolman David Long of the Cambridge Police Department were
on routine patrol. They received a call from dispatch, indicating
some type of disturbance in the area of the apartment building.
Lieutenant Love indicated it took them about a minute to travel
from their location, to the dispatched location. As the officers were
pulling to the dispatched intersection, Lieutenant Love testified
that he heard a gunshot. Lieutenant Love then saw a man in a white
T-shirt hunch over, and put his hands on his stomach as he crossed
9th Street from the east side, to the west side of the street
staggering rather slumped over. The man made it across the street,
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crossing between two parked cars, fell to his knees, still clenching
himself, he bent over and put his forehead in the grass and then
immediately fell over on his side. The Lieutenant testified there
was a lot of yelling and confusion. Lieutenant Love further
testified at first he could not identify the man, but later identified
him as Kyle Carter.
From their location, the Lieutenant and Patrolman deciphered
through the yelling, that the man who shot Carter was in the big
white house across the street, 903 Stewart, which is an apartment
building on the northeast corner of that intersection.
Carter Baldwin and Terrence Holdren each testified that, as they
pulled up to the stop sign at Stewart Avenue and 9th Street, they
saw Smith take aim at the two young boys who were standing
nearby. Baldwin and Holdren indicated that they saw Smith, with
his arms together, holding a gun on the banister, aiming it at one of
the kids. Baldwin testified that he believed the man with the gun
was aiming at one of the kids.
After the shooting, Smith found a car with the keys still in it and
drove off. He thought better of fleeing town, so he instead went to
Brenda Berger, a family friend, to seek help. Smith told Mrs.
Berger that he had shot at the two young men. He told Mrs. Berger
that he was scared for his life, and he reacted the only way he
could think of to try to scare them. He said that he had never meant
to hurt the young men, just to scare them and protect himself.
Knowing that Smith did not actually own a car, Mrs. Berger told
Smith that she would not let him stay in the house and that he
could not have the stolen car there. Smith left briefly to return the
car to a safe location. While he was gone, Mrs. Berger called the
police and informed them that Smith would be on her porch for
them to come get him. After both Smith and law enforcement
arrived at the house, Smith complied with the officers' orders and
calmly turned himself in to the police. Soon after being taken to
the county jail, Smith learned that he had caused Carter's death.
When he learned this, Smith broke down and relayed to the police
the events of that day.
Smith was charged with aggravated murder of Carter, with
instructions in the alternative for murder and voluntary
manslaughter. He was also charged with attempted aggravated
murder of Mr. Heskett, with instructions in the alternative for
attempted murder and attempted voluntary manslaughter. Mr.

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Smith also faced charges for felonious assault against Heskett,
grand theft of the car, and having a weapon under a disability.
After a six day jury trial Smith was convicted of the lesser offenses
of murder and attempted murder, grand theft, and having a weapon
under a disability. His conviction for felonious assault merged with
his conviction for attempted murder. He was sentenced for the
murder to 15 years to life, plus a repeat violent offender
specification of 10 years and a firearm specification of 3 years. He
was sentenced for the attempted murder to 10 years plus three for
the repeat violent offender specification. His sentence for three
years for the theft and one year for the weapon under disability
charge ran concurrently to his sentences for murder and attempted
murder. His total sentence was 48 years to life.
ASSIGNMENTS OF ERROR
Smith raises five assignments of error,
“I. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL
RECORDED BY MR. CARTER VIOLATED MR. SMITH'S
CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH
THE WITNESSES AGAINST HIM. SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION; SECTION 10,
ARTICLE I OF THE OHIO CONSTITUTION; CRAWFORD V.
WASHINGTON, 541 U.S. 36, 124 S.CT. 1354, 158 L.ED.2D 177
2004). (STATE'S EXHIBIT CC; T.T. AT 774).
“II. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL
RECORDED BY MR. CARTER VIOLATED THE
PROHIBITION ON HEARSAY EVIDENCE, AS THE
RECORDING WENT BEYOND MERELY ESTABLISHING
MR. CARTER'S FEAR OF MR. SMITH, IN VIOLATION OF
MR. SMITH'S RIGHT TO DUE PROCESS. FIFTH AND
FOURTEENTH
AMENDMENTS
TO
THE
U.S.
CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION. (STATE'S EXHIBIT CC; T.T. AT 774).
“III. THE TRIAL COURT ABUSED ITS DISCRETION BY
PERMITTING THE STATE TO INTRODUCE UNRELIABLE
AND UNSCIENTIFIC EXPERT TESTIMONY, VIOLATING
MR. SMITH'S RIGHTS TO DUE PROCESS OF LAW AND A
FAIR TRIAL. FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION; SECTIONS 10 AND
16, ARTICLE I OF THE OHIO CONSTITUTION; EVID.R. 702;
DAUBERT V. MERRILL DOW PHARMACEUTICALS, INC., 509
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U.S. 579, 113 S. CT. 2786, 125 L. ED. 2D 469 (1993). (JULY 25,
2011 ENTRY; JULY T. AT 102).
“IV. MR. SMITH'S CONVICTIONS FOR MURDER AND
ATTEMPTED MURDER ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND ARE NOT SUPPORTED
BY SUFFICIENT EVIDENCE, IN VIOLATION OF HIS RIGHT
TO
DUE
PROCESS.
FIFTH
AND
FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE 1,
SECTION 16 OF THE OHIO CONSTITUTION. (MAY 10, 2012
JUDGMENT OF CONVICTION).
“V. THE TRIAL COURT'S ERRORS IN ADMITTING
TESTIMONIAL
STATEMENTS
WITHOUT
CROSS–
EXAMINATION, IN IMPROPERLY ADMITTING HEARSAY
EVIDENCE,
IN
ADMITTING
UNSCIENTIFIC
AND
UNRELIABLE EXPERT TESTIMONY, AND THE JURY'S
ERROR IN MISCONSTRUING THE WEIGHT OF THE
EVIDENCE, CUMULATIVELY DENIED MR. SMITH HIS
FEDERAL AND STATE RIGHTS TO A FAIR TRIAL AND
DUE PROCESS OF LAW. FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION;
SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION. (MAY 10, 2012 JUDGMENT OF
CONVICTION).”
State v. Smith, No. 2012-CA-17, 2013 WL 1281999, at *1-3 (Ohio App. 5th Dist. March 18,
2013)[sic]. On March 18, 2013, the appellate court affirmed the judgment of the trial court. Id.
On July 24, 2013, the Ohio Supreme Court declined jurisdiction to hear the appeal. State v.
Smith, 136 Ohio St.3d 1452 (Ohio 2013).
On October 21, 2014, Petitioner filed the Petition pursuant to 28 U.S.C. § 2254. He
alleges as follows:
In a shooting case, photographs and testimony of reenactments
using a laser beam to show bullet trajectory cannot be admitted as
scientific evidence of only line of sight, and the prejudice from
their admission cannot be cured by a jury instruction. Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
At Mr. Smith’s trial, Special Agent Stephen Burke testified as an
expert regarding a series of photographs depicting a reenactment of
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the shooting incident using a laser beam. After a pretrial hearing
on the admissibility of the evidence under Daubert, the trial court
allowed the photographs to be admitted as scientific demonstration
of line-of-sight between the porch and the street. But, Agent
Burke admitted that the photographs were based on assumptions
and guesses. Because assumptions and guesses are not scientific
data, the photographs were unreliable demonstrations of line of
sight. And, the photographs inherently acted as reenactments of
the shooting and of the bullet trajectory, reenactments that Agent
Burke was not qualified to prepare.
Respondent contends that this claim fails to offer a basis for federal habeas corpus relief.
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court
determinations. The United State Supreme Court recently described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct:
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.

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28 U.S.C. § 2254(e)(1). “Under AEDPA, a writ of habeas corpus should be denied unless the
state court decision was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court, or based on an unreasonable
determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley,
706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)).
See 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was “contrary
to, or involved an unreasonable application of, clearly established federal law”); 28 U.S.C. §
2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable determination
of the facts in light of the evidence presented in the State court proceeding”). The United States
Court of Appeals for the Sixth Circuit recently explained these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.

Coley, 706 F.3d at 748 - 49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, –––U.S. ––––, ––––, 131 S.Ct. 1388, 1398 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 - 21,

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(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409, and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 131 S.Ct. at 786
(“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.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir.2009)
(“‘[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and not whether the state court considered
and discussed every angle of the evidence.'” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013)
(considering evidence in the state court record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of state court's decision). Relatedly, in
evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a
court must review the state court's decision based solely on the record that was before it at the
time it rendered its decision. Pinholster, 131 S.Ct. at 1398. Put simply, “review under §
2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.
Discussion
Petitioner argues that he was denied a fair trial by the admission into evidence of
photographs and testimony by Special Agent Stephen Burke regarding a re-enactment, using a
laser beam, of the shooting. The state appellate court rejected this claim as follows:
. . . Smith challenges the report and opinion of Special Agent
Stephen Burk[e], a crime scene reconstruction expert. Smith argues
that the trial court abused its discretion in allowing Agent Burke to
testify as an expert regarding the position of the victim and
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shooter, an opinion that Smith contends is beyond the scope of
Agent Burke's training and experience. Smith further contends that
Agent Burke's laser sighting tests are mere guesswork and not
based upon reliable scientific facts.
The Bureau of Criminal Identification and Investigation employ
[sic] special Agent Burke in the major crimes division, crime scene
unit. In the case at bar, he utilized a laser that projects a straight
line to illustrate the line of sight from Smith's porch. Special Agent
Burke testified that a laser is used instead of a length of string to
indicate angle and line of sight. He testified that the laser can more
accurately span long distances than a string because the string is
affected by gravity. The unobstructed line of sight test is used to
demonstrate the possibility or the probability that a gunshot could
be taken from a certain location.
Special Agent Burke obtained blood spatter evidence from the
street, which indicted [sic] the location of the decedent when he
was shot. Special Agent Burke used a tape measure to obtain the
distances of the blood spatter and from Smith's porch. Special
Agent Burke also photographed a car that had a bullet hole through
the rear, passenger side window.
The laser test was used in this case because a tree was located
between Smith's porch and the street where the blood spatter was
found. The test demonstrated a clear unobstructed line of sight
between two branches of the tree to the location where the blood
spatter began on the sidewalk. A similar test was made from the
vehicle to the porch. In addition, a male subject approximating the
height and weight of the descendent [sic] was placed on the blood
spatter. The laser's position on the subject in various positions was
demonstrated and photographed.
At trial Special Agent Burke was permitted to give his expert
opinion that, [sic] the shooter would have had a clear unobstructed
line of sight from Smith's porch to the damaged car window and
through the tree to the area where the blood spatter began. The
state also presented photographs of the laser sight demonstration
conducted at the scene of the crime.
In the case at bar, the Court held a hearing pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469(1993) prior to admitting Special Agent Burke's
opinion at trial.

9 

In general, courts should admit expert testimony whenever it is
relevant and satisfies Evid.R. 702. State v. Nemeth (1998), 82 Ohio
St.3d 202, 207, 694 N.E.2d 1332; see, also, State v. Williams
(1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444. Thus,
the trial judge must perform a “gate keeping” role to ensure that
expert testimony is sufficiently (a) relevant and (b) reliable to
justify its submission to the trier of fact. See Kumho Tire [ (1999)
], 526 U.S. [137] at 152, 119 S.Ct. 1167; Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993), 509 U.S. 579, 589, 113 S .Ct. 2786;
Nemeth, 82 Ohio St.3d at 211, 694 N.E.2d 1332; Douglass, 153
Ohio App.3d 350, 2003–Ohio–4006, 794 N.E.2d 107, at ¶ 32.
In performing its gate keeping function, the trial court's starting
point should be Evid.R. 702, which provides that a witness may
testify as an expert if all of the following apply: “(A) The witness'
testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception
common among lay persons; (B) The witness is qualified as an
expert by specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony; (C) The
witness' testimony is based on reliable, scientific, technical, or
other specialized information. To the extent that the testimony
reports the result of a procedure, test, or experiment, the testimony
is reliable only if all of the following apply: (1) The theory upon
which the procedure, test, or experiment is based is objectively
verifiable or is validly derived from widely accepted knowledge,
facts, or principles; (2) The design of the procedure, test, or
experiment reliably implements the theory; (3) The particular
procedure, test, or experiment was conducted in a way that will
yield an accurate result.”
Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. No.2004–CA–
0029, 2005–Ohio–3052, citing Valentine v. Valentine (2001), 158
Ohio App.3d 615, 628–631 2004–Ohio–4521, 821 N.E.2d
580(2001)(Internal quotation marks omitted).
Evid.R. 702(B) provides that a witness may qualify as an expert by
reason of his or her “specialized knowledge, skill, experience,
training, or education regarding the subject matter of the
testimony.” Pursuant to Evid.R. 104(A), the trial court determines
whether a witness qualifies as an expert, and that determination
will be overturned only for an abuse of discretion. State v.
Hartman, 93 Ohio St.3d 274, 285, 754 N.E.2d 1150(2001); State v.
Williams, 4 Ohio St.3d 53, 58, 446 N.E.2d 444(1983).

10 

Neither special education nor certification is necessary to confer
expert status upon a witness. “The individual offered as an expert
need not have complete knowledge of the field in question, as long
as the knowledge he or she possesses will aid the trier of fact in
performing its fact-finding function.” State v. Hartman, 93 Ohio
St.3d at 285; State v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d
128(1999).
“A court resolving a reliability question should consider the
‘principles and methods' the expert used ‘in reaching his or her
conclusions, rather than trying to determine whether the
conclusions themselves are correct or credible.’ Nemeth, 82 Ohio
St.3d at 210, 694 N.E.2d 1332; see, also, Miller, 80 Ohio St.3d
607, 687 N.E.2d 735, paragraph one of the syllabus. As the
Daubert court stated, in assessing reliability, ‘[t]he focus * * *
must [generally] be * * * on principles and methodology, not on
the conclusions that they generate.’ Daubert, 509 U.S. at 595, 113
S.Ct. 2786, 125 L.Ed.2d 469.
“A trial court may not, therefore, exclude expert testimony simply
because it disagrees with the expert's conclusions. Instead, if the
expert followed methods and principles deemed valid by the
discipline to reach his opinion, the court should allow the
testimony. See Paoli, 35 F.3d at 742 (‘an expert's testimony is
admissible as long as the process or technique the expert used in
formulating the opinion is reliable’). The traditional adversary
process is then capable of weeding out those shaky opinions. See
Daubert, 509 U.S. at 596, 113 S.Ct. 2786, 125 L.Ed.2d 469”
Valentine v. Valentine, 158 Ohio App.3d 615, 628–631; 2004–
Ohio–4521, 821 N.E.2d 580(2001), ¶¶ 23–31.
To a certain extent, Special Agent Burke's opinions are
cumulative; Smith admitted he fired the gun from his porch and
several witnesses observed him. Thus, any error in the admission
of the testimony would be harmless. The real crux of Smith's
contention is that the tree and the topography of the land could
have prevented him from having a clear view of the decedent
before he fired depending on where he stood on the porch. Further,
Smith argues that he shot wildly and did not aim at either young
man.
In the case at bar, Smith's arguments concerning the use of a laser
light instead of a string, and the uncertainty concerning the precise
positions of the shooter and the decedent at the time the shots were
fired, go more to the weight of the evidence rather than to its
admissibility.
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“Questions about the certainty of the scientific results are matters
of weight for the jury. For example, in discussing the fact that a
hair sampling technique only showed similarities between the hairs
and could not show a match with certainty, ‘[t]he lack of certainty
went to the weight to be assigned to the testimony of the expert,
not its admissibility, and defense counsel did a creditable job of
arguing to the jury that it should be assigned little weight.’ United
States v. Brady, 595 F.2d 359, 363 (6th Cir.1979). And, in general,
criticisms touching on whether the lab made mistakes in arriving at
its results are for the jury.” United States v. Bonds, 12 F.3d 540,
563(6th Cir.1979). See also, State v. Pierce, 64 Ohio St.3d 490,
597 N.E.2d 107(1992).
Even if we were to assume the admission of this evidence was
error, it was harmless beyond a reasonable doubt. Crim .R. 52(A);
State v. Zimmerman, 18 Ohio St.3d 43, 45, 479 N.E.2d 862,
863(1985). There was no prejudicial error in allowing Special
Agent Burke to testify in this case. Agent Burke's testimony did
not include conclusions on bullet trajectory. The trial court also
instructed the jury to use these demonstrations only for line-ofsight, not as recreations
Accordingly, Smith's substantial rights were not violated by the
admission of Special Agent Burkes [sic] testimony.
State v. Smith, 2013 WL 1281999, at *7-10.
Petitioner argues that the admission of Burkes’ testimony violated Daubert and denied
him due process, because his testimony was unreliable and lacked support in the scientific
community. He disputes the state appellate court’s finding that any error in the admission of
such testimony was harmless.
However, 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

12 

are alleged, the federal court's inquiry in reviewing these claims is directed to whether the
evidence was rationally connected to the crime charged. Carter v. Jago, 637 F.2d 449, 457 (6th
Cir. 1980). Such are the circumstances here.
Daubert, 509 U.S. at 579, concerns the Federal Rules of Evidence, and does not govern
whether scientific evidence in state court proceedings is constitutionally admissible. Payne v.
Bobby, No. 2:05-cv-050, 2006 WL 508784, at *23 (S.D. Ohio Feb. 27, 2006)(citing Norris v.
Schotten, 146 F.3d 314, 335 (6th Cir. 1998); Kelly v. Larkins, 251 F.3d 408, 419 (2nd Cir. 2001);
Kinder v. Bowersox, 272 F.3d 532, 545 n .9 (8th Cir. 2001)). See also Adams v. Bradshaw, 484
F.Supp.2d 753, 790 (N.D. Ohio 2007)(citations omitted).
In short, the decision of the state appellate court did not contravene or unreasonably
apply federal constitutional law as determined by the United States Supreme Court.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that 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).

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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).
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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 16, 2015

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