Sullivan v. Warden, Warren Correctional Institution

Filing 7

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DENIED and that this case be DISMISSED. Objections to R&R due by 12/9/2016. Signed by Magistrate Judge Terence P. Kemp on 11/22/2016. (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
ANTHONY SULLIVAN,
Petitioner,
v.

CASE NO. 2:15-cv-2585

WARDEN, WARREN
CORRECTIONAL INSTITUTION,

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the Petition (Doc. 1) and the
Response (Doc. 6). For the reasons that follow, it will be recommended that the Court
deny the petition and dismiss this action.
I. Procedural Background
In an indictment filed on December 3, 2009, the Franklin County, Ohio grand jury
charged Petitioner with a total of four felony counts, two of robbery with a repeat violent
offender (RVO) specification and two of robbery, all arising out of two bank robberies
which took place in Columbus, Ohio, in November, 2009. Petitioner was accused of
robbing the same branch of the Cooper State Bank on November 6, 2009, and again on
November 11, 2009. Response, Ex. 1.
Petitioner pleaded not guilty and filed numerous pretrial motions, all of which were
denied. The case was tried to a jury beginning on July 19, 2010. Three days later, the jury

returned a verdict of guilty on counts one and three of the indictment, which were the
robbery with specification charges; counts two and four were dismissed. In an entry filed
on September 20, 2010, the trial court sentenced Petitioner to 26 years of imprisonment.
Response, Ex. 15.
Petitioner timely appealed, raising eleven separate assignments of error, including
several claims of ineffective assistance of trial counsel. In an opinion filed on December
13, 2011, the Tenth District Court of Appeals overruled all of Petitioner’s assignments of
error. State v. Sullivan, 2011 WL 6202357 (Franklin Co. App. Dec. 13, 2011). Petitioner
appealed this decision to the Ohio Supreme Court. In his memorandum in support of
jurisdiction (Return, Ex. 22), he presented only three issues:
Proposition of Law No. 1: Ohio’s Repeat Violent Offender statute is
unconstitutionally vague and consequently void.
Proposition of Law No. 2: A violation of the Sixth and Fourteenth
Amendments to the Ohio and U.S. Constitutions occur when police enter a
motel room and search the baggage of a guest who does not consent to such
search.
Proposition of Law No. 3: A violation of the Fifth and Fourteenth
Amendments to the Ohio and U.S. Constitutions occur when police construct
a photo array inclusive of bald-headed men where the suspect is not bald.

On April 18, 2012, the Ohio Supreme Court declined to accept Petitioner’s timely appeal.
State v. Sullivan, 131 Ohio St.3d 1510 (Apr. 18, 2012).
On February 8, 2013, Petitioner moved to reopen his appeal pursuant to Appellate
Rule 26(B), citing several instances where he believed his appellate counsel to have been
-2-

ineffective. Response, Ex. 25. The state opposed the motion on timeliness grounds (it was
filed almost a year late), and the court of appeals agreed, denying the motion on April 16,
2013, along with a second motion for reopening that Petitioner had filed on March 12, 2013.
Response, Ex. 30. The Ohio Supreme Court declined to hear Petitioner’s appeal from that
decision. State v. Sullivan, 136 Ohio St.3d 1453 (July 24, 2013).
While Petitioner’s appeal was pending, he filed a post-conviction petition in the
Franklin County Court of Common Pleas. He moved multiple times to amend that petition
to add claims not originally asserted. On September 11, 2013, the trial court denied his
petition and all of his subsequent motions. Response, Ex. 50. Petitioner timely appealed,
raising four issues: that the trial court lacked jurisdiction to sentence him beyond the
statutory maximum, that the State improperly withheld exculpatory evidence, that his
counsel was ineffective for failing to subpoena one of the robbery victims, and that the trial
court should have held a hearing on his petition. In a decision rendered on March 27, 2014,
the Tenth District Court of Appeals found no merit in his claims and affirmed the trial
court’s judgment. State v. Sullivan, 2014 WL 1347100 (Franklin Co. App. March 27, 2014).
Petitioner’s timely appeal to the Ohio Supreme Court was unsuccessful as well. See State
v. Sullivan, 139 Ohio St.3d 1473 (July 9, 2014).
In his federal habeas corpus petition, which Petitioner signed on July 2, 2015,
Petitioner raises these four grounds for relief, stated exactly as they appear in the Petition:
GROUND ONE: Plaintiff’s 10 yr. Mandatory sentence in RVO spec time is
contrary to federal law and therefore illegal and must be corrected.

-3-

GROUND TWO: Plaintiff was deprived effective assistance of counsel,
failing to request a jury instruction on O.R.C. 2913.02(A)(4) theft by threat.
GROUND THREE: The trial court erred in not instructing the jury on the
sufficiency of the evidence of force.
GROUND FOUR: Trial court erred when it allowed hearsay testimony,
offending the U.S.C.
Respondent argues that grounds one through three were procedurally defaulted and that
ground four is without merit. Petitioner has not filed a reply in support of his petition and
did not address procedural default in the petition itself.
II. 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,

-4-

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, 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
-5-

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 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).
-6-

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 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
-7-

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)).
A. Ground One
Petitioner’s first ground for relief challenges the trial court’s decision to impose a
five-year mandatory consecutive sentence for each of the repeat violent offender
specifications which were attached to the two robbery counts for which Petitioner was
convicted. Under O.R.C. §2929.14(B)(2)(a)(i), a trial judge may impose a consecutive
sentence of between one and ten years on a defendant who is convicted of a repeat violent
offender specification. Petitioner argues, as support for his first ground for relief, that the
trial court added an element to the indictment on these charges, and that this was improper
since “the indictment must contain an allegation of every fact which is legally essential to
the punishment to be inflicted.” Petition, at 6. He appears to concede that his appellate
counsel did not properly present this argument, but points out that he raised it in both his
Rule 26(B) motion and also in his post-conviction petition.
Any error committed by the trial judge with respect to this specification (and it
appears, from reading Petitioner’s Rule 26(B) motion, that he is arguing that the trial judge
added the element of attempting to cause, or causing, serious physical harm) appears on
the face of the record. Under Ohio law, such errors must be raised, if at all, by way of
-8-

direct appeal. This claim does not appear in the appellate brief filed by Petitioner’s
counsel, and, just as significantly, it was not one of the three claims which he presented to
the Ohio Supreme Court on his direct appeal. Although the memorandum in support of
jurisdiction (Response, Ex. 22) does raise an issue about the repeat violent offender statute,
the question presented was whether the statute was void for vagueness because Petitioner
was not, at the time of his prior conviction, informed how that conviction could be used as
part of a repeat violent offender specification. Neither the wording of the indictment nor
the wording of the jury instructions on the specification is mentioned. Consequently, this
ground for relief was procedurally defaulted because it was not properly raised on direct
appeal. See State v. Cole, 2 Ohio St.3d 112 (1982).
Petitioner has not directly argued that cause exists to excuse his procedural default
of this claim. He did, however, include the claim in his Rule 26(B) motion, which is the
proper way, in Ohio, to raise allegations of ineffective assistance of appellate counsel.
However, that motion was denied because it was filed too late. That is itself a procedural
default. See McClain v. Kelly, 631 Fed.Appx. 422, 437 (6th Cir. Dec. 15, 2015)(petitioner
“procedurally defaulted his ineffective-assistance-of-appellate-counsel claim and the
underlying substantive claims by not timely filing a Rule 26(B) application”).
Consequently, were Petitioner to argue that the default of this ground for relief was the
fault of his appellate attorney, because he did not properly present that claim to the Ohio
courts, it cannot serve as cause to excuse his default. He has also not presented any valid
claim that he is actually innocent, or supported such a claim with the type of evidence
-9-

which might otherwise excuse a procedural default. See Schlup v. Delo, 513 U.S. 298 (1995).
The Court therefore cannot reach the merits of Petitioner ‘s first ground for relief.

B. Ground Two
In his second ground for relief, Petitioner contends that his trial counsel was
ineffective for failing to ask for a jury instruction on the lesser included offense of theft by
threat. He argues that counsel presented evidence which would have allowed the jury to
reach such a verdict but then failed to ask the trial court to instruct the jury about it. He
acknowledges that this claim (which, like his first ground for relief, appears on the face of
the record) was not raised on direct appeal, but explains that this omission occurred due
to ineffective assistance of appellate counsel and that he raised such a claim in his Rule
26(B) motion.
Again, the problem with this argument is the untimeliness of the Rule 26(B) motion.
The analysis here is the same as with ground one; even if Petitioner’s appellate attorney
should have argued that trial counsel was ineffective for failing to ask for a lesserincluded-offense instruction - and there are many strategic reasons why an attorney does
not do so, see, e.g., Harrop v. Sheets, 430 Fed.Appx. 500 (6th Cir. July 20, 2011) - Petitioner did
not timely raise the claim of ineffective assistance of appellate counsel because he filed his
Rule 26(B) motion late, and did not demonstrate good cause for doing so. Consequently,
ground two has also been procedurally defaulted. See McClain v. Kelly, supra.
C. Ground Three
-10-

As his third ground for relief, Petitioner asserts that the trial court should have
instructed the jury that the evidence about the force used to commit the two robberies - the
presentation of a note to the teller which, in each case, stated that the teller was to comply
with the demand within thirty seconds or “die” - was insufficient to support a charge of
robbery. Like grounds one and two, this claim appears on the face of the record and was
not included among the claims raised on direct appeal. It is also difficult to see how this
is a federal constitutional claim, unless it is an indirect attack on the sufficiency of the
evidence (and not a particularly viable one at that, since Ohio does not require that a
weapon be used, or even that the presence of a weapon be explicitly implied, in order for
someone to be convicted of bank robbery, see, e.g., State v. Willis, 1994 WL 704388 (Franklin
Co. App. Dec. 15, 1994)), but that is beside the point. This claim, too, has been procedurally
defaulted.
IV. Ground Four
Unlike the first three grounds, Respondent does not argue that Petitioner’s fourth
ground for relief was procedurally defaulted. That ground attacks the trial court’s
admission of hearsay testimony. It is helpful to recite the state court of appeals’ findings
on this claim before discussing it in detail. The claim relates to the trial court’s admission
of the out-of-court statement of one of the victim tellers, Abby Sanker, that the person who
committed the November 11, 2009 robbery looked like the picture of the person who had
robbed the bank six days earlier. In overruling Petitioner’s assignment of error on this
point, the court said, see State v. Sullivan, 2011 WL 6202357 at *12-14:
-11-

Appellant contends in his second assignment of error that the trial
court erred in admitting hearsay testimony from Hanna and Vondran
regarding the November 11, 2009 robbery. “Hearsay” is defined as a
“statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). Although Evid.R. 802 provides that hearsay generally is not
admissible, Evid.R. 803(2) sets forth an exception for excited utterances, or
“statement[s] relating to a startling event or condition made while the
declarant [is] under the stress of excitement caused by the event or
condition.”
The admission or exclusion of evidence, including the determination
of whether a hearsay declaration should be admitted as an excited utterance,
rests within the sound discretion of the trial court. State v. Holloway, 10th
Dist. No. 02AP–984, 2003–Ohio–3298, ¶ 14, 24, citing State v. Sage (1987), 31
Ohio St.3d 173, 180, and Roach v. Roach (1992), 79 Ohio App.3d 194, 205.
Absent an abuse of that discretion and a showing of material prejudice, an
appellate court will not overturn a trial court's ruling.
In State v. Taylor (1993), 66 Ohio St.3d 295, the Supreme Court of Ohio
set forth a four-part test to determine the admissibility of an excited
utterance:
(a) [T]hat there was some occurrence startling enough to produce
a nervous excitement in the declarant, which was sufficient to still his
reflective faculties and thereby make his statements and declarations the
unreflective and sincere expression of his actual impressions and beliefs, and
thus render his statement or declaration spontaneous and unreflective, (b)
that the statement or declaration, even if not strictly contemporaneous with
its exciting cause, was made before there had been time for such nervous
excitement to lose a domination over his reflective faculties, so that such
domination continued to remain sufficient to make his statements and
declarations the unreflective and sincere expression of his actual impressions
and beliefs, (c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and (d) that the
declarant had an opportunity to observe personally the matters asserted in
his statement or declaration.
(Emphasis sic.) Id. at 300–01, quoting Potter v. Baker (1955), 162 Ohio
St. 488, paragraph two of the syllabus.

-12-

In general, cases that invoke the excited utterance exception to the
hearsay rule involve assaults, automobile accidents, and similarly impactful
events, such as witnessing a robbery. State v. Ducey, 10th Dist. No. 03AP–944,
2004–Ohio–3833, citing Osborne v. Kroger Co., 10th Dist. No. 02AP–1422,
2003–Ohio–4368, ¶ 43, citing State v. Moorman (1982), 7 Ohio App.3d 251.
Hanna testified that, just before the robbery on November 11, 2009,
she told Sanker that the bank had been robbed the previous Friday and
showed her a photograph of appellant. Moments later, Hanna observed
appellant enter the bank and approach Sanker's teller station; she then saw
Sanker “making a scooping motion, taking money out of her drawer and
passing it over the teller line.” (Tr. 223.) Hanna testified that, after appellant
left the bank, Sanker “was very shaken up, shaking, [and] crying.” (Tr. 226
.) Following this testimony, the prosecutor asked Hanna if Sanker told her
she had been robbed. Defense counsel objected on hearsay grounds. The
prosecutor argued that Sanker's statement constituted an excited utterance,
and the trial court overruled the objection. (Tr. 228.) The prosecutor
reasserted the question, and Hanna responded, “I believe so, but I can't
remember fully.” (Tr. 228.)
Vondran testified that, on November 11, 2009, she observed Sanker
looking “distraught” and handing money to appellant across the teller
counter. (Tr. 319.) Vondran spoke to Sanker shortly after appellant left the
bank. According to Vondran, Sanker was “very, very shaken up.” (Tr. 320.)
Following this testimony, the prosecutor asked Vondran if she asked Sanker
what had happened, and Vondran replied, “Umhmm.” (Tr. 320.) When the
prosecutor asked Vondran what Sanker told her, defense counsel objected on
hearsay grounds. The prosecutor argued that Sanker was unavailable to
testify and that her statement constituted an excited utterance. Following a
brief discussion, the trial court overruled the objection. Vondran thereafter
testified that Sanker told her she had just been robbed and that the robber
looked like the picture of the person who had robbed the bank on November
6, 2009.
After a thorough review of the record, we conclude that all four
prongs of the Taylor test have been met, rendering proper the trial court's
admission of Sanker's out-of-court statements. Under the first prong, Sanker's
reflective faculties were arguably stilled by the fact that she had just been
robbed by a man who produced a note threatening to kill her if she did not
comply with his demands within 30 seconds. Indeed, according to Hanna
and Vondran, Sanker was visibly shaken and crying following the robbery.
-13-

Regarding the second prong, Sanker's statements were made before
her nervous excitement lost domination over her reflective capabilities. With
excited utterances, “[t]here is no per se amount of time after which a
statement can no longer be considered to be an excited utterance. The central
requirements are that the statement must be made while the declarant is still
under the stress of the event and the statement may not be a result of
reflective thought. * * * Therefore, the passage of time between the statement
and the event is relevant but not dispositive of the question.” (Emphasis sic.)
Taylor at 303. “ ‘Relevant factors in ascertaining whether the declarant was
in a sufficient state of excitement or stress include outward indicia of
emotional state such as tone of voice, accompanying actions, and general
demeanor.’ “ Ducey at ¶ 22, citing Osborne at ¶ 46. Contrary to appellant's
assertion, the testimony of both Hanna and Vondran suggests that very little
time transpired between the robbery and Sanker's statements. Further, both
testified that Sanker was visibly shaken by the event; Hanna noted that
Sanker was crying.
Lastly, under the third and fourth prongs, Sanker's out-of-court
statements related to the incident, and Sanker personally observed the
matters about which she spoke. Sanker's statements, which Hanna and
Vondran communicated to the court at trial, were limited in scope to what
happened to Sanker during the robbery and the identification of appellant as
the robber.
The four prongs of the Taylor test having been met, we conclude that
the trial court did not abuse its discretion in admitting the hearsay testimony
of Hanna and Vondran under the excited utterance exception to the hearsay
rule. The second assignment of error is overruled.
Respondent argues that to the extent that Petitioner is challenging the trial court’s
evidentiary ruling on federal constitutional grounds, he must show that the ruling resulted
in a denial of a fundamentally fair trial. Alternatively, if he is asserting an independent
violation of the Confrontation Clause, the admission of an excited utterance does not
violate that constitutional provision. Either way, Respondent argues, this claim lacks merit.
As to the merits of this, or any, constitutional claim raised in a habeas corpus petition, this

-14-

Court must apply the following standard of review.
A. Standard of Review
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, 102 (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.
28 U.S.C. §2254(e)(1).
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. 28 U.S.C. §2254(d)(1); Coley v. Bagley, 706 F.3d 741,
-15-

748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); see also 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 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 (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....
Coley, supra, at 748-49. The burden of satisfying the standards set forth in § 2254 rests
with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 181 (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,
(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
-16-

“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. “ ‘[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.' ” Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)). See also Nicely v. Mills,
521 Fed.Appx. 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). Moreover, in evaluating the reasonableness of a
state court's ultimate legal conclusion under § 2254(d)(1), a federal habeas court must
review the state court's decision based solely on the record that was before the state court
at the time that it rendered its decision. Put simply, “review under § 2254(d)(1) focuses on
what a state court knew and did.” Pinholster, supra at 1398.
B. Discussion
It is somewhat surprising that Respondent has chosen to address this claim on its
merits. It was not argued in Petitioner’s appellate brief (Return, Ex. 17) as a federal
constitutional claim, nor was it one of the three assignments of error presented in his
appeal to the Ohio Supreme Court. Any federal aspect of this claim was never fairly
presented to the Ohio courts and is now defaulted. That is a sufficient reason for denying
Petitioner relief on this claim. It also explains why the state court of appeals did not
discuss the United States Constitution - neither the Due Process clause nor the
-17-

Confrontation clause - in its decision.
Turning to the merits, however, the state courts did not unreasonably deny
Petitioner relief on this claim or even

err in their decision not to find a federal

constitutional violation. Respondent is correct that, if the claim is based in the Due Process
clause, Petitioner must have demonstrated that his trial was fundamentally unfair.
“Generally, state-court evidentiary rulings cannot rise to the level of due process violations
unless they “offend[ ] some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th
Cir. 2000), quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996). No such showing has been
made here. There were multiple eyewitness identifications of Petitioner by victims of both
robberies. The cumulative effect of this statement - which the jury, having the same picture
to consider as Ms. Sanker, could evaluate for themselves - could not have affected the
fundamental fairness of the proceedings.
Also, as Respondent correctly points out, the admission of a true “excited utterance”
- especially one made at the time and in a way not intended to be testimonial - does not
violate the Confrontation Clause. See, e.g., United States v. Arnold, 486 F.3d 177 (6th Cir.
2007); see also Williams v. Warden, Chillicothe Correctional Inst., 2015 WL 3466120, *9 (S.D.
Ohio June 1, 2015), adopted and affirmed 2015 WL 4934188 (S.D. Ohio Aug. 18, 2015). When
the statement in question was made, the teller was not being interrogated by the police, nor
had any official investigation into the robbery begun. It is not likely that she intended the
statement to be used against Petitioner in a criminal proceeding. It was simply a statement
-18-

made under the stress of the robbery. There was no Confrontation Clause violation here or if there was, it was certainly harmless. The Court therefore finds no merit in Petitioner’s
fourth ground for relief.
V. Recommended Disposition
For the reasons set out above, the Court recommends that the petition for a writ of
habeas corpus be DENIED and that this case be DISMISSED.
VI. Procedure on Objections
If any party objects to this Report and Recommendation, that party may,
within fourteen (14) days of the date of this Report, file and serve on all parties written
objections to those specific proposed findings or recommendations to which objection is
made, together with supporting authority for the objection(s). A judge of this Court shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a judge
of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this matter
to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report 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).
-19-

/s/ Terence P. Kemp
United States Magistrate Judge

-20-