Shipley v. Warden London Correctional Institution

Filing 10

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED. Objections to R&R due by 4/1/2016. Signed by Magistrate Judge Terence P. Kemp on 3/15/2016. (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
MICHAEL L. SHIPLEY,
Petitioner,

CASE NO. 2:15-cv-631
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP

v.
TERRY A. TIBBALS,
WARDEN,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the petition (Doc. 1), the return of
writ (Doc. 6), Petitioner’s traverse (Doc. 8), the reply to the traverse (Doc. 9), and the
associated exhibits. For the reasons that follow, the Magistrate Judge RECOMMENDS
that the petition be DENIED and that this case be DISMISSED.
I. Procedural History
On November 8, 2011, the Franklin County, Ohio grand jury returned a tencount indictment charging Petitioner with burglary and theft. Return of Writ, Exhibit 2.
The indictment described offenses which occurred on two different dates - August 21,
2011, and August 28, 2011. A co-defendant, Crystal Galloway, was also indicted on
these charges.
Petitioner pleaded not guilty and the case was tried to a jury. The jury convicted
Petitioner on eight separate counts.. Return, Ex. 6. On April 18, 2012, the trial court

sentenced Petitioner to a total of twelve years of imprisonment. Return, Ex. 7. He was
also ordered to make restitution and to serve a term of post-release control.
Through counsel, Petitioner appealed his conviction to the Tenth District Court
of Appeals. In his appellate brief, Petitioner raised three assignments of error: (1) the
trial court erred in overruling his motion for judgment of acquittal; (2) the trial court
erred in admitting “other acts” evidence relating to a separate and distinct criminal
conviction; and (3) the convictions were against the manifest weight of the evidence;.
Return, Ex. 10. In a decision rendered on September 19, 2013, the court of appeals
overruled each of Petitioner’s assignments of error and affirmed his convictions. State v.
Shipley, 2013 WL 5308695 (Franklin Co. App. Sept. 19, 2013).
Through counsel, Petitioner filed an appeal to the Ohio Supreme Court. He
raised two propositions of law: that a person who commits a crime while present on
publicly open land does not become a trespasser, and the privilege of members of the
public to enter and remain upon land is not vitiated by acts of deception taken in
furtherance of the commission of a criminal offense. Return, Ex. 18. The Ohio Supreme
Court declined to consider the appeal, State v. Shipley, 138 Ohio St.3d 1415 (Feb. 19,
2014), and also denied a motion to reconsider that decision. State v. Shipley, 138 Ohio
St.3d 1472 (Apr. 23, 2014).
On February 18, 2015, Petitioner filed his petition for a writ of habeas corpus
with this court. The petition appears to have been signed as early as February 13, 2015.
Petitioner asserts three grounds for relief, which he states (in these words) as follows:

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GROUND ONE: Petitioner was denied right to a fair trial, and Equal
Protection in violation of his Constitutional Rights provided with the Sixth
and Fourteenth Amendment{s} to the United States Constitution.

GROUND TWO: Petitioner was denied Equal Protection of the Law and
Due Process when the trial court erred in admitting other “acts” evidence
relating to a separate and distinct criminal conviction, denying Petitioner
right to a fair trial pursuant to State and Federal constitution.
GROUND THREE: Petitioner was denied his Constitutional Right to Due
Process and a Fair Trial based on the Evidence being against the Manifest
weight of the Evidence in this case.

Respondent asserts that all of these claims were procedurally defaulted because
Petitioner did not raise them in his appeal to the Ohio Supreme Court. Respondent also
argues that these grounds are either without merit or not cognizable in federal habeas
corpus. In his traverse, Petitioner contends that his propositions of law presented to the
Ohio Supreme Court did raise the issue of insufficient evidence as to the burglary
counts, and also demonstrate that he was actually innocent of any burglaries.
II. The Facts
The Court begins by reciting the facts as they were set out in the state court of
appeals opinion. In its summary of the evidence introduced at trial, that court said:
The following evidence was adduced from the state's case-in-chief. On
August 21, 2011, realtor Tom Amicon held an open house for homeowners
Kelly and Sean Edgell at the location of 3945 Dinon Drive. The open house
took place between 2:00 and 4:00 p.m. Amicon testified that only two
individuals viewed the home, appellant and Crystal Galloway, at
approximately 3:00 p.m. Appellant and Galloway entered the home, and,
according to Amicon, appellant immediately engaged him in
conversation, while Galloway went directly into the bedroom. Amicon

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testified that appellant instructed him “[d]on't look at her” because her
mother had just died, and she could begin to cry at any minute. (Tr. 135.)
According to Amicon, appellant explained he brought Galloway to look at
houses because she was having a tough day.
Amicon testified that he was concerned because appellant engaged him in
unusual conversation having nothing to do with the home while Galloway
was out of sight. Once Galloway came out of the bedroom, the couple
made a hasty exit. The next morning, Amicon was contacted by Kelly
Edgell, who informed him some of their jewelry was missing. Edgell
testified approximately $600 worth of jewelry was taken. Amicon called
the police and placed an alert on a realtor's website, at which time he
learned another home had been “hit.” (Tr.145.) Both Amicon and Edgell
testified appellant and Galloway did not have permission to enter the
home for the purpose of taking personal belongings from the home.
Also on August 21, 2011, realtor Annette Marble held an open house for
homeowners David and Tracey Griffis at the location of 4401 Kathryns
Way. The open house took place between 2:00 and 4:00 p.m. Marble
testified that, at approximately 3:45 p.m., as she was closing the open
house, a dark truck pulled up and its occupants, Galloway and appellant,
asked if they “still had the open house.” (Tr. 220.) At about that same time,
the homeowners arrived back at the home. Marble checked with them to
see if she could show the arriving couple the home. They answered in the
affirmative and left.
Marble let both Galloway and appellant into the home. Marble testified
the female immediately went upstairs, and appellant began discussing
how Galloway's mom had just died and “not to look at her because she'll
cry and she was really upset.” (Tr. 224.) Marble testified that appellant
stated, because of the mother's death, they could now afford a home.
According to Marble, the conversation continued until appellant's phone
rang, at which point Marble thought to check on Galloway. According to
Marble, as she moved toward the foyer, appellant began to ask more
questions about the house, pulling her attention back into the family
room. Appellant's phone rang a second time when Marble observed
Galloway exit the master bedroom, closing the door behind her. Appellant
and Galloway then left the premises.
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When the homeowners pulled up to the home, Marble, suspecting
something was amiss, asked if they had anything of value in the home.
Tracey Griffis testified that her husband ran up to the master bedroom
and discovered their jewelry, valued at approximately $7,000, was gone.
She further testified that appellant was one of the individuals she saw
enter her home on August 21, 2011. Both Marble and Tracey Griffis
testified appellant and Galloway did not have permission to enter the
home for the purpose of taking any personal property.
The third incident occurred on August 28, 2011, when realtor Sandy
Clapham held an open house for homeowners Ryan and Erin Arens, at the
location of 6226 Kendall Ridge Boulevard. The open house occurred
between 1:00 and 3:00 p.m. Clapham testified she had placed signs up
around the neighborhood denoting the home had a first floor master
bedroom. According to Clapham, appellant and Galloway entered the
home, and appellant immediately stated “I want you to show me the
basement, and she wants to see the master bedroom .” (Tr. 283.) Clapham
testified that she informed the couple the master bedroom was to the
right, and Galloway headed directly to it. According to Clapham,
appellant asked “more than twice” to see the basement. (Tr. 286.)
However, Clapham testified she was afraid to go into the basement alone
with appellant so she ignored the request and retreated to the kitchen,
which had multiple exits and access to her cell phone. Clapham described
appellant as being “in [her] face” as she retreated. (Tr. 288.)
According to Clapham, appellant stated he was taking Galloway to look at
homes because her mother had just died, and she was having emotional
difficulties, which included bouts of crying. Appellant continued to talk
about Galloway, and, at one point, Clapham attempted to move out of the
kitchen. Appellant sidestepped her, placed himself in the doorway to the
master bedroom, and spread his legs and arms apart. According to
Clapham, appellant completely obstructed her view into the master
bedroom for “[a] few minutes.” (Tr. 295.)
Clapham again retreated into the kitchen and appellant followed.
Clapham testified appellant continued to converse with her while
Galloway headed up the stairs. After some time, Clapham stated she
became “restless,” and appellant went to the stairs and yelled up to
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Galloway. (Tr. 296.) According to Clapham, she attempted to seize on this
“break,” grabbed her phone and purse, and moved towards the front door
to exit. (Tr. 297.) However, just as Clapham began to leave, appellant
questioned her on where she was heading and followed her outside.
Clapham stated, upon exiting the home, a neighbor engaged appellant in
conversation. Clapham then saw appellant's vehicle, a black Dodge Ram,
and memorized the license plate number because she believed something
unusual was going on. Clapham then re-entered the home, while
appellant was still engaged in conversation with the neighbor and wrote
down the license plate number. According to Clapham, she called her
office to describe what happened, sent a text to the Arens's to come home,
and then called the police and provided the license plate number.
Erin Arens, the homeowner, testified she returned home immediately
after receiving a voicemail from the realtor and began to check the home
for missing items. According to Arens, she immediately noticed watches
were missing from the master bedroom, as well as prescription medicine
from the master bath. A few days later, Arens noticed more items missing
and testified the total value of the missing items was between $800 and
$1,000. Both Clapham and Arens testified appellant and Galloway did not
have permission to enter the home for the purpose of taking personal
property from the home.
The fourth incident also occurred on August 28, 2011. Realtor Bryan
Harrison held an open house for homeowners James and Patricia
Deuschle at the location of 4264 Wyandotte Woods between 2:00 and 4:00
p.m. Harrison testified the purpose of an open house is to “bring in people
that might have an interest in the home.” (Tr. 174.) Harrison stated before
the open house began, he accessed the “Columbus Board of Realtors'
MLS” website and checked the “alert” section. (Tr. 175.) Although he
noticed an alert, which made him wary, he continued to prepare for the
open house. Shortly after 2:00 p.m., Harrison testified appellant and
Galloway arrived at the home, and he believed they matched the
description provided in the alert. According to Harrison, Galloway and
appellant entered the home, and Galloway headed straight up the stairs
while appellant engaged Harrison in conversation. Harrison testified
appellant told him Galloway had recently lost her father and was looking
to buy a house.
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Harrison stated none of the Deuschle's property was upstairs because
those bedrooms were not in use, so he did not follow Galloway upstairs.
According to Harrison, Galloway came downstairs and headed directly to
the master bedroom, and this time he followed. Harrison stated he began
to ask Galloway “open-ended questions” about the home, and she gave
only one-word answers. (Tr. 182.) The couple then left the home, and
Harrison wrote down the license plate number, a description of their
vehicle, and then called the police and the Deuschle's.
According to James Deuschle, after receiving a phone call from Harrison,
he returned home. Deuschle checked the house and no property was
missing. Both Harrison and Deuschle testified appellant and Galloway did
not have permission to enter the home for the purpose of taking personal
property from the home.
The fifth incident, again, occurred on August 28, 2011. Realtor Lynn
Elledge held an open house for homeowners Jason and Jennifer Rees at
the location of 3900 Man O' War Court, between the hours of 2:00 and 4:00
p.m. According to Elledge, appellant and Galloway entered the home, and
Galloway immediately went upstairs while appellant engaged him in
conversation. Elledge testified that appellant told him Galloway's mother
had just died and they were looking for a house for her kids. Elledge
stated he asked appellant if they were buying the house together, and
appellant stated “No. I work for her.” (Tr. 252.)
According to Elledge, because it was a small house, he became concerned
when Galloway was upstairs for such a long period of time and left a note
for the Rees's to check their personal belongings upstairs. Elledge received
a phone call from the homeowners telling him items were missing.
Elledge called his broker and the following Monday called the police.
Jennifer Rees testified that, after she arrived home and read the note from
her realtor telling her to check her personal belongings, she went upstairs
and checked her jewelry she had hidden, only to discover it was missing.
Rees testified the value of the stolen jewelry was over $5,000. Both Elledge
and Rees testified neither appellant nor Galloway had permission to enter
the home for the purpose of taking personal property.

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State v. Shipley, 2013 WL 5308695, *1-4.
III. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). 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
state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an
avenue open to him by which he may present his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103
(1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
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. This “requires the petitioner to present ‘the same claim
under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
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497 (6th Cir. 1987)). 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 that 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 respondent'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 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

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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).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Constitutionally ineffective counsel may constitute cause to excuse a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective
assistance of counsel claim generally must “ ‘be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.’ ”
Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is
because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness
must itself amount to a violation of the Sixth Amendment, and therefore must be both
exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668
(6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the
‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.”
Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The Supreme Court explained the
importance of this requirement:
We recognized the inseparability of the exhaustion rule and
the procedural-default doctrine in Coleman: “In the absence
of the independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their
own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again

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considered the interplay between exhaustion and procedural
default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the
federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be
utterly defeated if the prisoner were able to obtain federal
habeas review simply by “ ‘letting the time run’ ” so that
state remedies were no longer available. Id., at 848, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be
no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but
in such a manner that the state court could not, consistent
with its own procedural rules, have entertained it. In such
circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
Respondent asserts that none of the three ground raised in the federal habeas
corpus petition were presented to the Ohio Supreme Court, nor were any federal

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constitutional claims raised in that appeal. As the Court reads Petitioner’s response, he
does not argue that his claim about the admission of “other acts” evidence was
presented to the Ohio Supreme Court, nor does he make a colorable argument that this
failure was excusable. As to his first and third claims, however, he notes that the
centerpiece of his sufficiency of the evidence argument was the lack of evidence that the
crimes in question were burglaries due to the fact that the premises were all open to the
public, and a person who has permission to enter the property does not become a
trespasser just because the person’s intent when entering was to commit a crime. Since
the commission of a trespass is a prerequisite to the commission of a burglary,
Petitioner argues that the propositions of law he presented to the Ohio Supreme Court
were simply a different way of raising a sufficiency of the evidence challenge - and even
if they were not, they demonstrate that he is actually innocent of the burglary charges,
which innocence would excuse his procedural default.
Petitioner is correct that his sufficiency of the evidence claim in the state courts
was that he could not have committed a trespass since the homes from which items
were stolen were all open to the public. As the state court of appeals observed, “[t]he
focus of appellant's sufficiency argument is the ‘trespass’ element of burglary.” State v.
Shipley, supra, at *6. Rather than determine if Petitioner preserved that claim as a federal
constitutional claim by arguing to the Ohio Supreme Court that the trespass element
was not satisfied, the Court chooses to reach the merits of this claim. It will address
only the sufficiency of the evidence claim, however, since the evidentiary claim (ground
two) was clearly defaulted, and the claim that the verdicts were against the manifest

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weight of the evidence (ground three) is purely a state law claim which cannot form the
basis for federal habeas corpus relief. Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983).
IV. Sufficiency of the Evidence
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, 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

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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, 786–8 (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 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. Review of the State Court Decision
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The starting point of the Court’s analysis is the state court of appeals decision.
As noted, under the AEDPA, it is that decision which must be analyzed to determine
whether it is contrary to, or an unreasonable application of, clearly established federal
law. For the following reasons, the Court cannot reach that conclusion.
The state court determined, as a matter of Ohio law, that when entry to a private
home is gained through deceit, a trespass has occurred, stating in Shipley, supra, at *7:
[W]e find this court's decision in In re Meachem, 10th Dist. No.
01AP1122, 2002–Ohio–2243, instructive on the issue of whether appellant
had a privilege to be on the property such that he could not have
committed a trespass and, therefore, not committed a burglary. The
defendant in Meachem, pursued by police officers, sought refuge in a
nearby home and used deception to gain entry. In Meachem, we stated,
“pursuant to R.C. 2911.12(C), ‘[i]t is no defense to a charge under this
section that the offender was authorized to enter or remain on the land or
premises involved, when such authorization was secured by deception.’ “
Id. at ¶ 17. We further stated:

“Deception” means knowingly deceiving another or
causing another to be deceived by any false or misleading
representation, by withholding information, by preventing
another from acquiring information, or by any other
conduct, act, or omission that creates, confirms, or
perpetuates a false impression in another, including a false
impression as to law, value, state of mind, or other objective
or subjective fact.

Id. at ¶ 18, citing R.C. 2913.01(A). “In order to be guilty of a
criminal trespass through deception, a defendant must be aware either
that a false impression is created or perpetuated or, knowing that the
victim holds a false impression, withholds or prevents the victim from
obtaining information to the contrary.” Id. at ¶ 19, citing Mayfield Hts. v.
Riddle, 108 Ohio App .3d, 341–42 (8th Dist.1995); see also In Re J.M., 7th
Dist. No. 12 JE 3, 2012–Ohio–5283.

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The state court also concluded that there was sufficient evidence that Petitioner
feigned interest in purchasing each home and withheld information from the realtor, so
that the element of deceit was met. Petitioner’s counter-argument in the state court,
which he repeats here, is that as long as a residence is open to the public, it does not
matter with what state of mind someone enters it; what matters is that every member of
the public, including those who have a predetermined intent to commit a crime on the
premises, is privileged to enter and remain on the premises once property is made open
to the general public.
It is important to stress, at the outset, that this Court lacks the power to reach its
own conclusion about what the word “trespass” means under Ohio law. In other
words, this Court is bound by Ohio’s interpretation of its own statutes, and there is
generally no federal constitutional issue posed by such interpretations, even if they are
interpretations that this Court or other courts might not agree with. See Warner v. Zent,
997 F.2d 116, 133 (6th Cir. 1993)(“On habeas review, we are bound by state court
interpretations of state criminal law except in extreme circumstances where it appears
that the interpretation is an obvious subterfuge to evade consideration of a federal
issue“). Further, “[a] state is free within extremely broad limits to decide upon the
elements of a crime.” Eaglin v. Welborn, 57 F.3d 496, 500 (7th Cir. 1995). And it should
be noted that, here, although Petitioner presented a sufficiency of the evidence
argument based on the contention that what he did was not a trespass as defined under
Ohio law, he did not argue that Ohio was prevented by the federal constitution from
defining “trespass” to include the type of conduct he engaged in.

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Unfortunately for Petitioner, the posture of this case precludes any federal
habeas corpus relief. As the Tenth District Court of Appeals defined trespass - that is,
entry onto property open to the public by a person who has criminal conduct in mind there was enough evidence to show that Petitioner did exactly that. Even if there were
not, for this Court to grant relief, it would have to find that the state appellate court
unreasonably determined that the evidence was sufficient to meet its definition of
trespass. However, under the AEDPA and other applicable law, the deference due to
state courts on this issue is essentially two levels of deference, one for the jury’s decision
and the second for the appellate court’s decision. See Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009). Given that deference, this Court concludes that both a reasonable jury
and a reasonable state court could have found that the evidence presented - more fully
described in the recital of facts from the state appeals court’s decision - was sufficient;
that is, as that court said, “[w]hen viewing the evidence in a light most favorable to the
state, a reasonable jury could conclude appellant deceived the realtors by both
withholding information and feigning interest in the homes such that he committed a
trespass.” State v. Shipley, 2013 WL 5308695, *8. Consequently, ground one is without
merit.
V. Recommendation
For all of the reasons stated above, it is recommended that the petition for a writ
of habeas corpus be DENIED and this action be DISMISSED.
VI. Procedure on Objections

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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 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/ Terence P. Kemp
United States Magistrate Judge

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