Horton v. Tyack et al
REPORT AND RECOMMENDATIONS: It is RECOMMENDED that this action be DISMISSED re 1 Petition for Writ of Habeas Corpus filed by Miles Horton. Objections to R&R due by 2/26/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on February 12, 2018. (jlk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CASE NO. 2:15-CV-02999
JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth P. Deavers
JUDGE DAVID TYACK, et al.,
REPORT AND RECOMMENDATION
Petitioner 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 (ECF No. 1), Respondent’s Return of Writ (ECF
No. 8), Petitioner’s Traverse (ECF No. 17), 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 Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
In the early morning hours of January 21, 2013, Sergeant Tim Myers of the
Columbus Police Department was driving his police car north on High Street in
the Short North area of Columbus, Ohio. Sergeant Myers encountered a car that
was stopped in his lane. Sergeant Myers was required to stop. He observed
people getting into the car and then the car proceeded northbound on High Street.
Because the car impeded Sergeant Myers’ ability to drive in the lane, he decided
to pull the car over for violating Columbus City Code 2133.04(A) (impeding
FN. That charge is not at issue in this appeal
The car, driven by appellant, pulled into a parking lot. Sergeant Myers
approached the car and made contact with appellant. Sergeant Myers noticed that
appellant’s eyes were glassy and bloodshot. He also smelled an odor of alcoholic
beverages inside the car. Sergeant Myers suspected that appellant may have been
impaired, so he asked him to recite the alphabet, starting at the letter D and ending
at the letter X. Appellant attempted to do so but started with the letter E and said
the letter U twice. At that point, Sergeant Myers asked appellant to exit the car to
determine whether the alcohol smell was from appellant or from other people in
the car. Once outside the car, Sergeant Myers could still smell a moderate odor of
alcohol coming from appellant. Sergeant Myers asked appellant how many drinks
he had that night. Appellant told him that he had two drinks two hours earlier and
that he had also taken some anti-anxiety medicine. Sergeant Myers suspected that
appellant was driving impaired.
At some point during the encounter, Columbus Police Officers William Scott and
Jill Woolley arrived on the scene to assist Sergeant Myers. Sergeant Myers
informed the officers of his observations of appellant before turning appellant
over to them. Officers Scott and Woolley performed field sobriety tests (“FST”)
on appellant. Both officers also thought that appellant’s eyes were glassy and
bloodshot and that he smelled of alcohol.
Officer Scott first asked appellant if he would take a portable breath test (“PBT”).
He declined but agreed to perform other FSTs. Officer Scott first performed the
horizontal gaze nystagmus test (“HGN”). During the test, Officer Scott observed
six out of six clues indicating to him that appellant was impaired. Officer
Woolley then performed two other FSTs: the walk-and-turn and the one-leg stand.
Although appellant passed both of these tests, exhibiting only one clue on each
test, Officer Woolley observed him swaying during the one-leg stand. Following
these tests, appellant was arrested for OVI and taken to police headquarters.
Officer Scott then performed an alcohol breath test on appellant. Appellant’s test
result was .108, which is over the legal limit.
As a result of these events, appellant was charged with two counts of operating a
vehicle while under the influence in violation of Columbus City Code
2133.01(A)(1)(a) (“OVI impaired”) and 2133.01(A)(1)(d) (“OVI per se”).FN
Appellant entered a not guilty plea to the charges and proceeded to a jury trial.
FN. OVI charges are referred to as either impaired or per se. See State v.
Brand, 157 Ohio App.3d 451¶11-12 (1st Dist. 2004).
Before trial, appellant filed a motion to suppress the results of the FSTs he
performed during the traffic stop as well as the results of the alcohol breath test he
took while at police headquarters. At the motion hearing, appellant argued that
the results of the alcohol breath test had to be suppressed because Officer Scott
did not properly renew his operator’s permit to conduct the test and that the police
did not have probable cause to arrest him. The trial court overruled appellant’s
At trial, the officers testified to the above version of events. The video of the
traffic stop, which included the walk-and-turn and the one-leg stand FSTs but not
the HGN test, was also played to the jury. The jury ultimately acquitted appellant
of the OVI impaired charge but found him guilty of the OVI per se charge. The
trial court sentenced him accordingly . . . .
Appellant appeals his conviction and sentence and assigns the following errors:1
. . . THE TRIAL COURT VIOLATED APPELLANT’S RIGHT OF
CONFRONTATION, RIGHT TO PRESENT A COMPLETE DEFENSE AND
RIGHT TO HAVE THE JURY DETERMINE HIS GUILT BEYOND A
REASONABLE DOUBT BASED UPON ALL RELEVANT EVIDENCE BY
PROHIBITING CROSS-EXAMINATION OF THE STATE’S WITNESS
REGARDING HOW THE BREATH MACHINE WORKS AND REGARDING
THE SPECIFIC BREATH TESTING DEVICE USED TO TEST HIS BREATH
AND REGARDING MATTERS THAT COULD HAVE CAUSED HIS
SPECIFIC TEST RESULT TO BE LESS THAN ONE HUNDRED PERCENT
ACCURATE . . . .
Columbus v. Horton, No. 13AP-966, 2014 WL 5306839, at *1-2 (Ohio App. 10th Dist. Oct. 16,
2014). On October 16, 2014, the appellate court affirmed the judgment of the trial court. Id. On
May 20, 2015, the Ohio Supreme Court declined to exercise jurisdiction over Petitioner’s
subsequent appeal. Columbus v. Horton, 142 Ohio St. 3d 1465 (2015).
Through counsel, on November 16, 2015, Petitioner filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Although Petitioner is not currently in custody, this Court
nevertheless has jurisdiction because the trial court stayed Petitioner’s sentence pending the
outcome of his state court appeal and these federal habeas proceedings. (ECF No. 8-3, Page ID #
602, 787). See also Miskel v. Karnes, 397 F.3d 446, 450 (6th Cir. 2005) (citing McVeigh v.
Smith, 872 F.2d 725, 727 (6th Cir. 1987) and Hensley v. Municipal Court, 411 U.S. 345, 348-49
(1973)). Petitioner challenges his conviction on the charge of OVI per se in violation of
Columbus City Code 2133.01(A)(1)(D). Petitioner’s asserts that he was denied the right to
Petitioner raised two additional assignments of error in the state appellate court but does not
raise them in his habeas petition.
present a defense and to confront the witnesses against him when the trial court impermissibly
prohibited him from cross examining Officer Scott about the potential impact that his flu
symptoms and cell phone may have had on his breath test results. Petitioner further asserts that
this evidence would have demonstrated that his flu symptoms and cell phone could have
decreased the breath test’s reliability and accuracy. Respondent contends that this claim lacks
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 describes the AEDPA as “a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court” and
emphasizes that federal 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, 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)).
Under the AEDPA, the factual findings of the state appellate court are presumed to be
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
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)); 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 explained these standards as
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. In order for a federal court to find that a state court’s application of
Supreme Court precedent was unreasonable, “the state court’s application must have been
‘objectively unreasonable,’ not just incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510,
520–21, (2003) (internal citations omitted) (citing Williams v. Taylor, 529. U.S. at 409); see also
Harrington v. Richter, 562 U.S. at 101 (“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 the state court at the time that it rendered its decision. Cullen v.
Pinholster, 563 U.S.170, 181 (2011). Put simply, “review under § 2254(d)(1) focuses on what a
state court knew and did.” Id. at 182. The burden of satisfying the standards set forth in § 2254
rests with the petitioner. Id. at 181.
The state appellate court analyzed and rejected Petitioner’s claim as follows:
Appellant argues that the trial court impermissibly limited his right to crossexamine Officer Scott regarding the reliability of the chemical breath test he
administered. Specifically, the trial court prohibited questions relating to: (1)
whether appellant had the flu on the night of his arrest and whether the flu would
have caused a fever; and (2) whether appellant’s cell phone was in the room
during the breath test. Appellant contends that both of these facts could have
impacted his particular test results. . . .
Ohio has legislatively resolved the question of the general reliability of tests for
blood alcohol content. State v. Vega, 12 Ohio St.3d 185, 188 (1984), citing R.C.
4511.19; State v. Luke, 10th Dist. No. 05AP–371, 2006–Ohio–2306, ¶ 22. Given
that legislative determination, the Supreme Court of Ohio in Vega concluded that
“an accused may not make a general attack upon the reliability and validity of the
breath testing instrument” but “may * * * attack the reliability of the specific
testing procedure and the qualifications of the operator.” Id. at 189–90; Luke at ¶
25–26. . . .
Appellant’s counsel questioned Officer Scott during cross-examination about the
effect that a sample’s temperature would have on a test result. The officer stated
that if a person’s temperature is higher than a certain level, it will raise the result
of the sample. (Tr. 393.) The officer did not know the precise impact an
elevated temperature would have on the test result. Officer Scott also testified
the machine would provide an error message if the body temperature was too
high. (Tr. 393.) At this point in his testimony, the state objected, arguing that
the questions were general attacks on the reliability of the testing machine that
are prohibited under Vega. Appellant’s counsel ceased the line of questioning
but asked the trial court for permission to make a proffer of the questions he
sought to ask. The trial court granted his request.
During the proffer, appellant’s counsel again asked Officer Scott about the effect
a person’s temperature would have on a sample result. Again, Officer Scott
replied that the machine would give an error message if the sample temperature
exceeded the acceptable range of value. (Tr. 434.) Officer Scott acknowledged
that appellant reported to the police that night that he had the flu and that someone
with a flu could have an elevated temperature. However, Officer Scott testified
that he did not know how an elevated temperature would affect appellant’s
individual breath test that evening. (Tr. 439.)
Appellant’s counsel also asked Officer Scott to identify the location of appellant’s
cell phone during the breath test that morning. Based upon Officer Scott’s
testimony, it is unclear whether appellant’s cell phone was in the room when
Officer Scott administered the breath test. (Tr. 443–44.) The trial court
ultimately refused to allow appellant’s proffered questions. . . .
A trial court has the discretion to limit the scope of cross-examination taking into
account the particular facts of a case. State v. Treesh, 90 Ohio St. 3d 460, 480–81
(2001); State v. Hodge, 10th Dist. No. 04AP-294, 2004-Ohio-6980, ¶10.
Therefore, an appellate court will not disturb a trial court’s limits on the scope of
cross-examination unless the trial court has abused its discretion. State v. Casner,
10th Dist. No. 10AP–489, 2011–Ohio–1190, ¶ 11; Hodge at ¶ 10. Although an
abuse of discretion is typically defined as an unreasonable, arbitrary, or
unconscionable decision, State v. Beavers, 10th Dist. No. 11AP–1064, 2012–
Ohio–3654, ¶ 8, we note that no court has the authority, within its discretion, to
commit an error of law. State v. Beechler, 2d Dist. No. 09–CA–54, 2010–Ohio–
1900, ¶ 70.
Appellant contends that the trial court erred by prohibiting his questions because
they concerned the specific testing procedure Officer Scott used for his breath
test. Regardless of whether appellant’s proffered questions address the general
reliability of the machine used that morning or the specific testing procedure
utilized, the trial court did not abuse its discretion by refusing to allow the
questions because appellant did not lay the proper foundation for such questions.
State v. Sabo, 10th Dist. No. 04AP–1114, 2006–Ohio–1521, ¶ 22 (noting that
even if challenge was to specific testing procedures, trial court properly excluded
testimony based on lack of evidentiary support).
Specifically, Officer Scott testified during the proffer that he did not know how
much an elevated temperature would affect appellant’s test results. Casner at ¶
14–15 (no abuse of discretion in limiting cross-examination where witness lacked
knowledge to testify about issue). Nor was there any evidence that appellant had
an elevated temperature when he took the alcohol breath test. Given the lack of a
sufficient evidentiary basis to challenge appellant’s individual breath test, the trial
court did not abuse its discretion when it prohibited appellant’s proffered
To the extent that appellant sought to question the officer about the location of
appellant’s cell phone (which could arguably cause radio frequency interference
that can interfere with the accuracy of breath testing equipment),FN his argument
is premised on the allegation that the cell phone was in the room when the test
was conducted. A review of Officer Scott’s testimony, however, reveals that the
location of the cell phone during the test is unclear. We note, however, that
Officer Scott testified he is “very clear to make sure there are no radio signals
there.” (Tr. 444.) It is appellant’s burden to come forward with evidence
indicating that prohibited radio interference occurred at the relevant time.
Greenville v. Holzapfel, 85 Ohio App.3d 383, 389 (2d Dist.1993). Appellant did
not present any specific evidence that the cell phone was in the room where the
test was conducted.
FN. Greenville v. Holzapfel, 85 Ohio App. 3d 383, 386 (2d Dist. 1993).
For these reasons, the trial court did not abuse its discretion by limiting
appellant’s cross-examination of Officer Scott because appellant failed to lay the
proper foundation for the questions he claims were erroneously prohibited.
Accordingly, we overrule appellant’s . . . assignment of error. . . .
Horton, 2014 WL 5306839, at *5–7.
To the extent that Petitioner raises an issue of state evidentiary law, that issue does not
provide a basis for relief under 28 U.S.C. § 2254(a). As a general matter, an error under state
law, especially the improper admission of evidence, does not provide a basis for federal habeas
corpus relief. Estelle v. McGuire, 502 U.S. 62 (1991); Giles v. Schotten, 449 F.3d 698, 704 (6th
Cir. 2006). To be entitled to habeas relief, a petitioner must demonstrate that an evidentiary
ruling violated more than a state rule of evidence or procedure. “Habeas review does not
encompass state court rulings on the admission of evidence unless there is a constitutional
violation.” Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). In other words, “ ‘[e]rrors
by a state court in the admission of evidence are not cognizable in habeas proceedings unless
they so perniciously affect the prosecution of a criminal case as to deny the defendant the
fundamental right to a fair trial.’ ” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006) (citing Roe
v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling does not violate
due process unless it “offend[s] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Giles, 449 F.3d at 704 (citing
Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001)). Consequently, this Court’s review is
limited to whether Petitioner can demonstrate a violation of his federal constitutional rights.
Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007).
Petitioner seeks to elevate his evidentiary claim to a federal-constitutional level by
contending that the limitations imposed upon the cross examination of Officer Scott
unconstitutionally denied him the rights to present a defense2 and to confront the witnesses
against him. The Sixth Amendment’s Confrontation Clause guarantees criminal defendants the
right to physically confront and cross examine adverse witnesses at all stages of the trial. Illinois
v. Allen, 397 U.S. 337, 388, (1970). A criminal defendant’s right to cross-examine witnesses
against him, however, is not unlimited. “Trial judges retain wide latitude . . . to impose
reasonable limits on such cross-examination based on concerns about, among other things,
The right to present a defense flows, in part, from the Sixth Amendment’s Compulsory Process
Clause and relates to an accused’s right to compel a witness’ presence in the courtroom.
Ferensic v. Birkett, 501 F.3d 469, 475 (6th Cir. 2007). Nothing in the record indicates that
Petitioner was prevented from calling witnesses.
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Delaware v. VanArsdall, 475 U.S. 673, 679 (1986). The
Confrontation Clause thus guarantees the opportunity for effective cross-examination, not crossexamination in whatever way or to whatever extent the defendant may desire. Id. (quoting
Delaware v. Fensterer, 474 U.S. 15, 20 (1985)); see also Norris v. Schotten, 146 F.3d 314, 330
(6th Cir. 1998) (no Confrontation Clause violation where relevance of questions prohibited on
cross-examination is unclear and the risk of prejudice real) (citations omitted).
Where a trial court limits the extent of a criminal defendant’s cross-examination, but does
not bar it completely, the trial court is afforded wider latitude. Stewart v. Wolfenbarger, 468
F.3d 338, 347 (6th Cir. 2007) (quoting Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989)).
Under such circumstances, the test is “whether the jury had enough information, despite the
limits placed on otherwise permitted cross-examination, to assess the defense theory.” Id. (citing
Dorsey v. Parke).
A Confrontation Clause violation, where established, is subject to a harmless error
analysis. “[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth
in Brecht v. Abrahamson, 507 U.S. 619 (1993) ].” Fry v. Pliler, 551 U.S. 112, 122–23 (2007).
“To resolve the harmless error issue, [a court] must ask whether the constitutional violation ‘had
substantial and injurious effect or influence in determining the jury’s verdict.’ ” Vasquez v.
Jones, 496 F.3d 564, 575 (6th Cir. 2007) (quoting Brecht, 507 U.S. at 623). This inquiry
involves consideration of several factors including “the importance of the witness’ testimony in
the prosecution’s case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. at 673, 684; see also Earhart v. Konteh,
589 F.3d 337, 345–46 (6th Cir. 2009) (applying the Van Arsdall factors under the Brecht
standard). “If the constitutional error had no material effect, the verdict must stand. However, if
the court has ‘grave doubts’ whether the error had a substantial or injurious effect or influence in
determining the jury’s verdict,” the court must grant the petitioner’s writ. Jensen v.
Romanowski, 590 F.3d 373, 379 (6th Cir. 2009) (citing O’Neal v. McAninch 513 U.S. 432, 435–
36 (1995); Stallings v. Bobby, 464 F.3d 576, 582 (2006)).
Petitioner asserts that the trial court relied upon a flawed interpretation of the Ohio
Supreme Court’s opinion in Vega and its progeny when it excluded cross-examination testimony
from Officer Scott. Relatedly, Petitioner challenges the constitutionality of the Ohio Supreme
Court’s ruling in Vega. In Vega, the Ohio Supreme Court held that, although a defendant may
challenge the qualifications of a breath test administrator or the accuracy of a specific breath test,
a defendant may not challenge the general accuracy of breath testing procedures that comply
with methods approved by the Ohio Director of Health. Vega, 12 Ohio St.3d at 186. The Sixth
Circuit has upheld the constitutionality of Vega in the context of a Confrontation Clause
challenge. Miskel v. Karnes, 397 F.3d 446, 452 (6th Cir. 2005). This Court is bound by that
Petitioner contends that the trial court misinterpreted and misapplied Vega in such a way
as to violate his confrontation rights. The state appellate court, however, did not rely on Vega
when it affirmed the judgment of the state trial court.3 Instead, the state appellate court
This Court looks to the determination made by the state appellate court. See Stewart, 468 F.3d
at 347–48 (explaining that “the inquiry is not whether the state trial court abused its discretion . .
concluded that the proffered evidence lacked a proper foundation. Horton, 2014 WL 5306839,
at *5–7. Limiting cross examination where a defendant fails to establish an adequate foundation
for its admission under state law does not violate the Confrontation Clause. Dell v. Straub, 194
F. Supp. 2d 629, 644 (E.D. Mich. 2002) (citing Reddick v. Haws, 120 F.3d 714, 717 (7th
Cir.1997) (requiring a defendant to lay a foundation for the admissibility of certain evidence
does not violate the Confrontation Clause)); see also DiBenedetto v. Hall, 272 F.3d 1, 11 (1st
Cir. 2001) (explaining that the right of confrontation does not permit “fishing expeditions,” and
that a court may prohibit cross-examination on a particular subject “if the party is unable to lay a
proper evidentiary framework.”); Dorsey, 872 F.2d at 168 (limiting cross examination of
prosecution witness about his mental stability did not violate Confrontation Clause where record
contained no factual basis for such questioning).
The state appellate court noted that, during voir dire outside the presence of the jury,
Officer Scott testified that he did not know how much an elevated temperature would affect the
results of a breath test. Horton, 2014 WL 5306839, at *6. The state appellate court further
noted that the record contained no evidence that Petitioner had an elevated temperature when he
took the breath test. Id. Accordingly, the state appellate court determined that the testimony
about the impact of an elevated temperature on the breath test results lacked a proper evidentiary
foundation. Id. The record supports that determination. Specifically, Officer Scott testified that
he was not a breath testing expert, Trial Transcript (ECF No. 8-2, PageID # 477), and that he did
not know how an elevated temperature would have impacted Petitioner’s particular breath test,
. the inquiry is whether the state court of appeals’ decision that the state trial court did not abuse
its discretion . . . was contrary to or an unreasonable application of federal law”).
Trial Transcript (ECF No. 8-2, PageID # 511.)4 In addition, although Officer Scott testified that
a flu could have raised Petitioner’s temperature, and that Petitioner indicated that he had the flu
or a cold, Officer Scott did not testify that Petitioner had an elevated temperature. Trial
Transcript, (ECF No. 8-2, PageID # 502, # 511). Indeed, as the state appellate court noted, the
record is devoid of evidence, proffered or otherwise, that Petitioner in fact had an elevated
temperature. On this record, this Court cannot conclude that the exclusion of the crossexamination testimony at issue rose to the level of a constitutional violation. See Dorsey, 872
F.2d at 168; Bui v. DiPaolo, 170 F.3d 232, 243, 244-45 (1st Cir. 1999) (limiting cross
examination of prosecution witness did not violate Confrontation Clause; petitioner’s proposed
questions were not sufficiently probative of his particular theory of bias where petitioner
provided no evidentiary foundation for critical elements of his bias theory).
Similarly, the state appellate court noted that Officer Scott’s testimony about the location
of Petitioner’s cell phone was unclear and thus questions about the impact that Petitioner’s cell
phone may have had on the breath test also lacked a proper evidentiary foundation. Horton,
2014 WL 5306839, at *6. The record also supports that conclusion. Officer Scott did not testify
about the impact that a cell phone can have on a breath machine or the distance between
Petitioner’s cell phone and the breath machine. At most, Officer Scott testified that Petitioner’s
cell phone was on a table in the “breath room.” Trial Transcript, (ECF No. 8-2, PageID # 515–
16). Officer Scott did not clearly describe where the cell phone was in relation to the breath
Officer Scott also did not testify about the precise relationship between an elevated temperature
and breath test results. Officer Scott testified that the temperature of a breath sample is
“important,” and that when the temperature (presumably of a breath sample) is higher than a
certain level, it can raise breath test results. Trial Transcript (ECF No. 8-2, PageID # 465,
PageID # 505.) There was no evidence, proffered or otherwise, as to how high a breath sample
temperature had to be in order to raise breath test results. In addition, Officer Scott did not know
how much breath test results could be raised by a temperature that exceeded a “certain level.”
(Id. at PageID # 466).
machine in the breath room, or if a cell phone emits radio frequency waves that can interfere
with a breath test at that distance. Indeed, as the state appellate court noted, Officer Scott
affirmatively testified that he is “very clear to make sure there are no radio signals” when
administering breath tests. (Id.) On this record, this Court cannot conclude that the exclusion of
the testimony rose to the level of a constitutional violation. Dorsey, 872 F.2d at 168; Bui, 170
F.3d at 243, 244-45.
Petitioner attempts to analogize this case to Knapke v. Hummer, No. 2:10-cv-485, 2012
WL 1883854 (S.D. Ohio May 21, 2012). In Knapke, this Court found that a state appellate court
erred when it affirmed a trial court’s decision to prohibit defense counsel from cross examining a
police officer about the procedures that he followed when administering a specific breath test,
including whether the officer ran a diagnostic test on a breath machine prior to administering the
test. Id at *9. In that case, habeas relief was warranted because the state appellate court
erroneously concluded that proffered cross examination questions constituted a challenge to the
general reliability of breath testing in violation of Vega, when in fact, those questions were
probative of the reliability of the specific breath test at issue. Id. *4. In this case, to the contrary,
the state appellate court determined that the proffered cross examination was not probative of the
reliability of the specific breath test at issue because the questions lacked a proper evidentiary
foundation. Horton, 2014 WL 5306839, at *5–7. The record fairly supports this evidentiary
ruling. Consequently, the cases are distinguishable.
This Court further notes that the trial court did not completely preclude Petitioner from
cross examining Officer Scott about the reliability of the specific breath test that he administered
to the Petitioner. Petitioner was permitted to cross examine Officer Scott about his training in
the use of the breath testing machine, Trial Transcript (ECF No. 8-2, PageID # 464–65); whether
Officer Scott complied with rules mandating a 20 minute observation period when administering
the breath test, (id. at PageID # 470–71); ways that breath samples can be contaminated, (id. at
PageID # 472–73); and diagnostic tests used to determine if the breath testing machine was
functioning properly, (id. at PageID # 477–78).
Moreover, the limits imposed on the Petitioner’s ability to cross examine Officer Scott
were harmless under the strict standard applicable to habeas cases. In view of the evidence
actually admitted in the case, including the extensive cross examination that was otherwise
permitted, and the general strength of the prosecution’s case, this Court cannot conclude that any
alleged evidentiary error had a substantial or injurious effect on the jury’s verdict. Van Arsdall,
475 U.S. at 684. Nor can this Court conclude that the state appellate court contravened or
unreasonably applied federal law when rejecting Petitioner’s claim, or that its decision
constituted an unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. §2254(d)(1), (2).
For these reasons, the Magistrate Judge concludes that Petitioner is not entitled to habeas
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be
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. §
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/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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