Calhoun v. Warden London Correctional Insitution

Filing 10

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Jason R. Calhoun in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 3/22/2017. Signed by Magistrate Judge Norah McCann King on 3/8/17. (sem)(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
JASON R. CALHOUN,
Petitioner,
Case No. 2:15-cv-03026
JUDGE MICHAEL H. WATSON
Magistrate Judge King

v.
TERRY A. TIBBALS, WARDEN,
LONDON CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent’s
Return of Writ (ECF No. 7), and Supplement to the Return of Writ (ECF No. 9), and the exhibits
of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this
action be DISMISSED.
Facts and Procedural History
In affirming Petitioner’s conviction, the Ohio Twelfth District Court of Appeals
summarized the facts and procedural history of this case as follows:
On January 3, 2013, appellant broke into the home of Jane Dill,
who was 92 years old, sometime after she had fallen asleep around
10:00 p.m. that night. He stole credit cards from her purse and
several large-scale electronics. Dill's kitchen window was later
discovered broken. One of Dill's neighbors, Paul E. Newberry,
who owns a nearby vacant home that been put up for sale,
discovered that a dining room window in the home had been
broken, one of the screens on the porch had been cut, and a few
screens on the back of the house were out of place, but nothing was
taken from the home. Carl Smith, whose mother, Irene Smith, is in
a nursing home but still owns property in the same neighborhood,
noticed a screen out of place on his mother's home and that a

window had been “knocked out in the house.” Carl also found
splatters of blood all around his mother's house and saw that
someone had gone through a jewelry box that was in the house,
opening its drawers and upending its contents, and had left other
personal effects out of place.
At approximately 12:30 a.m. on January 4, 2013, a Murphy USA
gas station clerk, Kaley Dunham, sold two cartons of cigarettes to
a man who was later determined to be appellant. Appellant paid for
the cigarettes with a credit card that belonged to Jane Dill.
Appellant initially signed his name “Jason Calhoun” on the credit
card transaction slip. However, he requested the credit card slip
back, scratched out his signature, “Jason Calhoun,” and then
scribbled something illegible under his scratched-out signature.
Dunham saw appellant leave with two women in a taxi.
Shortly thereafter, appellant and the two women entered a
WalMart that was near the Murphy USA gas station. A WalMart
night-time cashier, Alexandria Harter, saw appellant and the two
women use a credit card to make a “test purchase” of three Pepsis
to “clear the card to see if it would work.” Harter observed
appellant and the two women as they looked through the store. At
one point, they came up to Harter and asked for help in the jewelry
department, and Harter sent one of her fellow employees to help
them. Appellant and the two women went to the electronics
department, and then walked up to the checkout register, with a
Galaxy tablet, several different pieces of jewelry and three cell
phones. Harter rang up the items that appellant and the two women
sought to purchase, which totaled approximately $1,600. Appellant
handed Harter a credit card to pay the $1,600 bill. Harter took the
credit cart and charged the $1,600 bill to it, using the store's
computerized checkout register, and $1,600 was debited to the
credit card. At the same time, however, the computerized checkout
register prompted Harter to check the customer's I.D. When Harter
asked appellant to see the credit card and his I.D., she noticed that
the name on the credit card was “Jane Dill” while the name on
appellant's I.D. was “Jason Calhoun.” Harter then summoned the
store's manager, Alana Bryant.
When Bryant came to the checkout register, appellant explained to
her that the credit card belonged to his mother and that he had
permission to use it to buy Christmas presents for himself and his
friends who were with him. Bryant told appellant that he could not
use the credit card because the name on the I.D. he provided did
not match the name on the credit card. Bryant made appellant take
2

the items to the store's service desk. She escorted him and the two
women with him to the store's customer service area to ring back
the items. When they got there, Bryant refunded all the money to
the credit card that had been debited to it as a result of appellant's
use of it. After refunding the money to the credit card, Bryant
stepped into the store's cash office and called the police. Appellant
and the two women left the store, with appellant taking the credit
card with him. Harter heard appellant and the two women say as
they left, “hurry, run, hurry[.]” After the three had “dart[ed] off,”
one of them came back inside and told Harter that they were trying
to get a taxi. Eventually, a taxi came and the three got into it and
left the store.
Officer Jeff Heinz was dispatched to the WalMart in response to
Bryant's call. When he arrived there five minutes later, he noticed a
taxi that was just pulling out. Officer Heinz flagged down the taxi
driver to get him to stop, which he did. The taxi driver told Officer
Heinz that he had just picked up the three individuals seated in his
taxi from WalMart. Officer Heinz spoke to all three of the
passengers, including appellant. Appellant first told Officer Heinz
that his name was “Kyler Willis,” but appellant was unable to
provide his social security number. One of the two females with
appellant in the taxi eventually told Officer Heinz who appellant
actually was, and appellant himself eventually admitted who he
was. Officer Heinz found two Fifth Third credit cards, one blue
and the other gold, lying on the passenger-side floorboard of the
taxi. Both credit cards bore Jane Dill's name. Officer Heinz found
two cartons of cigarettes in the backseat in the passenger area and
another carton of cigarettes and a pack of Newports that were in
the front of the vehicle. Officer Heinz noticed that appellant had an
injury to his hand that was bleeding through its bandages.
Appellant was indicted in Case No. 13CRI00039 on ten counts
involving the events that occurred at the Murphy USA gas station
and WalMart on or about January 4, 2013. The charges included
four counts of forgery in violation of R.C. 2913.31(A)(1) and
2913.31(A)(3), with all four counts being fifth-degree felonies
(Counts One, Two, Three and Four); two counts of receiving stolen
property in violation of R.C. 2913.02(A)(3), both fifth-degree
felonies (Counts Six and Seven); two counts of misuse of credit
card in violation of R.C. 2913.21(B)(2), with a specification that
the victim was an elderly person in violation of R.C.
2913.21(D)(4), both fourth-degree felonies (Counts Eight and
Nine); and one count of theft in violation of R.C. 2913.02(A)(3), a
first-degree misdemeanor (Count Ten).

3

Appellant was indicted in Case No. 13CRI00040 on five counts
involving the break-ins that occurred at the houses of Dill,
Newberry and Irene Smith on or about January 3, 2013. The
charges included burglary in violation of R.C. 2911.12(A)(1), a
second-degree felony (Count One); theft in violation of R.C.
2913.02(A)(1), a fifth-degree felony (Count Two); two counts of
breaking and entering in violation of R.C. 2911.13(A), both fifthdegree felonies (Counts Three and Four); and possession of
criminal tools in violation of R.C. 2923.24(A), a fifth-degree
felony (Count Five), with a specification that the device or
instrument was intended for use in the commission of a felony.
Appellant was tried by jury simultaneously on Case Nos.
13CRI00039 and 13CRI00040. The state presented the testimony
of several law enforcement officers involved in the case and the
employees of Murphy USA gas station and WalMart who testified
to the facts related above. The state presented photos of shoe prints
at the crime scene and appellant's shoes, which were collected at
the time of his arrest. The state also presented testimony from a
forensic expert who testified that appellant's shoes had tread
impressions consistent with those found at one of the homes that
had been burglarized and a DNA expert who testified that
appellant's blood DNA was consistent with blood found on a rock
and a jewelry box at one of those same homes.
At the close of evidence, the state dismissed Counts Five
(attempted theft) and Ten (theft) in Case No. 13CRI00039, and in
that same case, the trial court joined Counts Six and Seven (each
count for receiving stolen property) into a single count, Count Six.
The jury convicted appellant in Case No. 13CRI00039 of four
counts of forgery (Counts One, Two, Three and Four); receiving
stolen property (Count Six); both counts of misuse of credit cards
(Counts Eight and Nine) and the elderly-victim specifications
attached to those two counts. The jury acquitted appellant in Case
No. 13CRI00040 of one count of breaking and entering (Count
Three) and possession of criminal tools (Count Five), but
convicted him of burglary (Count One), theft (Count Two) and the
remaining count of breaking and entering (Count Four).
At appellant's sentencing hearing, the trial court determined, as to
Case No. 13CRI00039, that appellant's convictions on Counts One
(forgery), Two (forgery) and Eight (misuse of credit cards) were
allied offenses of similar import and that appellant's convictions on
Counts Three (forgery), Four (forgery) and Nine (misuse of credit
cards) were allied offenses of similar import. The state elected to
proceed on Count Eight (misuse of credit cards at WalMart) and
4

Count Nine (misuse of credit cards at Murphy USA gas station).
The trial court sentenced appellant to 12 months in prison on each
count of misuse of credit cards and ordered him to serve those two
12–month prison terms concurrently. The trial court merged
appellant's conviction on Count Six (receiving stolen property)
with his conviction on Count Two (theft) in Case No.
13CRI00040, after finding that those offenses were allied offenses
of similar import, and the state elected to proceed on appellant's
theft conviction in Count Two.
In Case No. 13CRI00040, the trial court sentenced appellant to
eight years in prison for his conviction on Count One (burglary),
12 months in prison for his conviction on Count Two (theft) and 12
months in prison for his conviction on Count Four (breaking and
entering), and ordered him to serve each of those sentences
consecutively, giving him a ten-year prison sentence for his
convictions in that case. The trial court then ordered appellant to
serve his ten-year prison sentence in Case No. 13CRI00040
concurrently with his 12–month prison sentence in Case No.
13CRI00039, giving him an aggregate ten-year prison sentence for
his convictions in both cases.
Appellant now appeals, assigning the following as error:
Assignment of Error No. 1:
THE COURT ABUSED ITS DISCRETION BY NOT
PERMITTING A CONTINUANCE FOR THE DEFENDANT TO
BRING FORTH WITNESSES TO TESTIFY IN HIS BEHALF.
Assignment of Error No. 2:
THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO
CONVICT THE DEFENDANT COUNT EIGHT, MISUSE OF A
CREDIT CARD. [sic].
Assignment of Error No. 3:
THE COURT ERRED BY OVERRULING THE DEFENDANT'S
MOTION FOR RULE 29 DIRECTED VERDICT OF
ACQUITTAL AS TO COUNTS THREE, FOUR AND NINE.
Assignment of Error No. 4:

5

THE COURT COMMITTED REVERSIBLE ERROR BY
SENTENCING
THE
DEFENDANT
TO
MAXIMUM,
CONSECUTIVE SENTENCES IN CASE NO. 13CR100040.
State v. Calhoun, No. CA2013-05-014, 2014 WL 4180307, at *1-4 (Ohio App. 12th Dist. Aug.
25, 2014). On February 18, 2015, the Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Calhoun, 141 Ohio St.3d 1476 (2015). On November 7, 2014, Petitioner filed
an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Appellant’s Motion
to Reopen (ECF No. 7-1 PageID# 206). He claimed that he had been denied the effective
assistance of appellate counsel based on his attorney’s failure to raise an issue regarding the
admission of alleged hearsay statements by Officer Jeff Heinz, and his attorney’s failure to raise
a claim under the Confrontation Clause. Id. (PageID# 220). On January 8, 2015, the appellate
court denied the Rule 26(B) application. Id. (PageID# 219). On April 29, 2015, the Ohio
Supreme Court declined to accept jurisdiction of the appeal. State v. Calhoun, 142 Ohio St.3d
1453 (2015).
In this action, filed on November 23, 2015, Petitioner claims that the evidence was
constitutionally insufficient to sustain his conviction on one charge of misuse of a credit card
(claim one); that he was denied due process and the right to present a defense when the trial court
denied his request for a continuance to secure the attendance of defense witnesses (claim two);
that the evidence was constitutionally insufficient to sustain his convictions on two counts of
forgery and one count of misuse of a credit card (claim three); and that he was denied the
effective assistance of appellate counsel because his attorney failed to raise an issue under the
Confrontation Clause (claim four). Respondent contends that Petitioner’s claims offer no basis
for relief.

6

Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which governs this Court's review of state-court convictions, is
“a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in
state court”; 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, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
Moreover, 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). “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), (d)(2). The United States Court of Appeals for the Sixth Circuit explained
these standards as follows:

7

A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying these standards 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 “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)
8

(considering evidence in the state court record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of state court's decision). Relatedly, in
evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a
court must review the state court's decision based solely on the record that was before it at the
time it rendered its decision. Pinholster, 563 U.S. at 181. Put simply, “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 182.
Claims One and Three
In claims one and three, Petitioner alleges that the evidence was constitutionally
insufficient to sustain his convictions on two counts of forgery and two counts of misuse of a
credit card. The state appellate court rejected these claims as follows:
[A]ppellant argues the state failed to present sufficient evidence to
convict him of Count Eight in Case No. 13CRI00039, which
charged him with misuse of credit cards at WalMart. The charge
arose from appellant's use of a stolen credit card at WalMart to
purchase electronics and jewelry worth $1,600. Appellant contends
that since the computerized checkout register at WalMart would
not complete the transaction in the absence of a valid I.D. check
and the transaction was voided and the charges were refunded to
the cardholder, no property was “obtained” by him before leaving
the store, and therefore, the state failed to prove the elements of the
offense of misuse of credit card.
Initially, appellant failed to file a timely Crim.R. 29 motion for
acquittal on Count Eight. The Ohio Supreme Court has held that if
a criminal defendant fails to file a timely Crim.R. 29 motion for
acquittal, the defendant waives, for purposes of appeal, all but
plain error regarding the sufficiency of the evidence. State v. Roe,
41 Ohio St.3d 18, 25 (1989), and Dayton v. Rogers, 60 Ohio St.2d
162, 163 (1979). However, the court has stated in two more recent
cases that a failure to file a timely Crim.R. 29(A) motion during a
jury trial does not waive an argument regarding the sufficiency of
the evidence since the defendant's “not guilty” plea preserves his
right to challenge the sufficiency of the evidence on appeal. State
v. Jones, 91 Ohio St.3d 335, 346 (2001); State v. Carter, 64 Ohio
St.3d 218, 223 (1992).

9

“An alleged error is plain error only if it is ‘obvious,’ and ‘but for
the error, the outcome of the trial clearly would have been
otherwise.’” State v. Blake, 12th Dist. Butler No. CA2011–07–130,
2012–Ohio–3124, ¶ 25, quoting State v. Jackson, 12th Dist.
Fayette No. CA2011–01–001, 2011–Ohio–5593, ¶ 13, citing State
v. Perez, 124 Ohio St.3d 122, 2009–Ohio–6179, ¶ 181. It has been
held that “because ‘a conviction based on legally insufficient
evidence constitutes a denial of due process,’ State v. Thompkins
(1997), 78 Ohio St.3d 380, 386–387, a conviction based upon
insufficient evidence would almost always amount to plain error.”
State v. Coe, 153 Ohio App.3d 44, 49, 2003–Ohio–2732 (4th Dist.
2003).
R.C. 2913.21 defines the offense of misuse of credit cards, in
pertinent part, as follows:
(B) No person, with purpose to defraud, shall do any of the
following:
***
(2) Obtain property or services by the use of a credit card, in one or
more transactions, knowing or having reasonable cause to believe
that the card has expired or been revoked, or was obtained, is
retained, or is being used in violation of law[.]
R.C. Chapter 2913 does not define the word “obtain.” Therefore,
the word must “be read in context and construed according to the
rules of grammar and common usage.” R.C. 1.42. “Obtain” is
commonly defined as meaning “to gain or attain possession or
disposal of [usually] by some planned action or method[.]”
Webster's Third New International Dictionary (1993) 1559.
Here, the credit card appellant used at WalMart went through the
store's computerized checkout register. The charges for the
merchandise that appellant brought to the register to purchase were
debited to the credit card. Once the store's employees discovered
that the name on appellant's I.D. did not match the name on the
credit card, they voided appellant's $1,600 purchase and refunded
to the credit card the $1,600 that had been debited to it. Under
these facts, we conclude that at the very moment the funds were
debited to the stolen credit card, appellant, “with purpose to
defraud” “obtained[ed] property” “by the use of a credit card,”
“knowing or having reasonable cause to believe that the card * * *
was obtained, is retained, or is being used in violation of law [.]”
Our conclusion is not changed by the fact that the store's
10

computerized checkout register prompted the store's employees to
check the customer's I.D., which in turn led them to prohibit
appellant from leaving the store with the merchandise, because by
the time the store's employees checked appellant's I.D., he already
had completed the offense of misuse of credit cards as defined in
R.C. 2913.21(B)(2).
Therefore, appellant's second assignment of error is overruled.
In his third assignment of error, appellant argues the state failed to
present sufficient evidence to prove that he was the perpetrator of
the offenses committed at Murphy USA gas station that formed the
basis of Count Three (forgery without consent), Count Four
(forgery by uttering) and Count Nine (misuse of credit card) in
Case No. 13CRI00039. Appellant points out that the state failed to
have the cashier at Murphy USA gas station identify him as the
person who entered the store, purchased the cigarettes, used the
credit card or signed the transaction slip and that the cashier had
lots of customers and thus probably could not remember this
particular transaction. We find this argument unpersuasive.
The identification of a perpetrator can be established by
circumstantial evidence. State v. Saunders, 12th Dist. Fayette No.
CA2012– Ohio–006, 2013–Ohio–2052, ¶ 44. Here, even though
the state did not have the cashier at Murphy USA gas station
identify appellant at trial as the person who used Jane Dill's credit
card to purchase the two cartons of cigarettes, there was ample
circumstantial evidence that appellant was in fact the person who
did so. State's Exhibit 12 shows a receipt from Murphy USA gas
station that has appellant's name “Jason Calhoun” scratched out,
and underneath it, has an illegible scribble. The cashier noted that
the individual who signed the name “Jason Calhoun” was seen
leaving the store in a taxi cab. Appellant was in the vicinity of the
Murphy USA gas station shortly after the cigarette purchase, the
cashier and the manager at WalMart saw appellant enter a taxi cab,
and shortly thereafter, appellant was apprehended in a taxi cab
nearby. There were two cartons of cigarettes found in the taxi cab
that matched the ones sold that night at Murphy USA gas station to
the man who signed his name “Jason Calhoun,” then scratched out
that signature and replaced it with a scribble.
In light of the foregoing, appellant's third assignment of error is
overruled.

11

State v. Calhoun, 2014 WL 4180307, at *5-6. Petitioner does not dispute the factual findings of
the state appellate court.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en
banc). In order for a conviction to be constitutionally sound, every element of the crime must be
proven beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006). This rule
was recognized in Ohio law at State v. Jenks, 61 Ohio St.3d 259 (1991). Of course, it is state law
that determines the elements of a criminal offense. Once the state has adopted the elements of
the offense, the state must then prove each of those elements beyond a reasonable doubt. In re
Winship, 397 U.S. at 364.
The AEDPA requires that a federal habeas court apply a doubly deferential standard of
review:
First, as in all sufficiency-of-the-evidence challenges, we must
determine whether, viewing the trial testimony and exhibits in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh
the evidence, re-evaluate the credibility of witnesses, or substitute
our judgment for that of the jury. See United States v. Hilliard, 11
12

F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have
not voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). See also Tucker v. Palmer, 541 F.3d 652
(6th Cir. 2008).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, “it is the responsibility
of the jury – not the court – to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury.”
Cavazos v. Smith, 565 U.S. 1, —, 132 S.Ct. 2, 4, 181 L.Ed.2d 311
(2011)(per curiam). And second, on habeas review, “a federal
court may not overturn a state court decision rejecting a sufficiency
of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so
only if the state court decision was 'objectively unreasonable.'”
Ibid. (quoting Renico v. Lett, 559 U.S. —, —, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, —, 132 S.Ct. 2060, 2062 (2012) (per curiam). This hurdle is
difficult to surmount and, for the reasons discussed by the state appellate court, this Court is not
persuaded that Petitioner has done so here. As discussed by the state appellate court, evidence
established that Petitioner had successfully purchased $1,600 of items from Walmart using a
stolen credit card, although he had to return to the service desk for a return of the items and a
voiding of the transaction when the check-out attendant realized that Petitioner’s name did not
match that on the credit card used. Further, Petitioner’s name had been written, and then
scratched over, on the receipt from the Murphy USA gas station, and Petitioner was located by
13

police in the same area shortly thereafter in a taxi cab containing the stolen credit cards and two
cartons of cigarettes. “Circumstantial evidence alone is sufficient to support a conviction, and it
is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt.”
Swain v. Lazaroff, 2016 WL 6605140, at *15 (N.D. Ohio May 23, 2016)(citing Johnson v. Coyle,
200 F.3d 987, 992 (6th Cir. 2000) (internal quotations and citations omitted); Durr v. Mitchell,
487 F.3d 423, 449 (6th Cir. 2007)). In view of the foregoing, this Court agrees that the
prosecution was not required to present identification evidence through the Murphy USA clerk
or through footage from a surveillance camera in order to establish Petitioner’s guilt of the
crimes charged. Viewing all of the evidence in the light most favorable to the prosecution, the
evidence was constitutionally sufficient to sustain Petitioner’s convictions on these charges.
Claims one and three are without merit.
Claim Two
In claim two, Petitioner alleges that he was denied due process and the right to present a
complete defense when, on the first day of trial, the trial court denied his request for a
continuance in order to secure the attendance of defense witnesses without inquiring into the
reasonableness of the request. The state appellate court rejected this claim as follows:
[A]ppellant argues the trial court erred by denying his request on
the morning of trial for a continuance to subpoena witnesses on his
behalf, because the trial court did not inquire as to the length of
delay being sought by him to procure his witnesses, he previously
had not sought a continuance, the state would not have been
unduly inconvenienced by the continuance even though the state's
witnesses may have been inconvenienced, and he had limited
access to his attorney due to his incarceration. This argument lacks
merit.
A trial court has broad discretion in deciding whether or not to
grant a continuance, and its decision will not be overturned unless
it amounts to an abuse of discretion, i.e., it is unconscionable,
arbitrary or unreasonable. State v. Grant, 67 Ohio St.3d 465, 479
14

(1993). The trial court may consider all relevant factors, including
the reasons for, and the length, of the continuance requested;
whether any prior continuance was granted in the case;
inconvenience to the parties; and whether the defendant
contributed to the reasons for the requested continuance. Id.
Here, the trial court did not abuse its discretion by denying
appellant's motion for a continuance since it was made on the
morning of trial and the two cases on which appellant was being
tried had been pending for approximately two months, one of
appellant's victims was 92 years old, appellant's attorney
previously represented to the trial court that there was no further
reciprocal discovery needed, and appellant failed to proffer the
names of the witnesses whose testimony he sought to present and
explain how they would assist his defense.
Therefore, appellant's first assignment of error is overruled.
State v. Calhoun, 2014 WL 4180307, at *4.
Respondent contends that Petitioner raised this claim in the state appellate court only in
the context of an alleged violation of state law, and that he has therefore waived any federal issue
for federal habeas corpus review. Return of Writ (ECF No. 7, PageID# 39-40). This Court
disagrees.
In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly
present the substance of each constitutional claim to the state courts as a federal constitutional
claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971).
Although the fair presentment requirement is a rule of comity, not one of jurisdiction, see
Castille v. Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45
(1999), the requirement is rooted in important principles of federalism and is designed to allow
state courts the opportunity to correct the State's alleged violation of a federal constitutional right
that threatens to invalidate a state criminal judgment. In the Sixth Circuit, a petitioner can satisfy
the fair presentment requirement in any of four ways: (1) reliance upon federal cases employing

15

constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis;
(3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a
denial of a specific constitutional right; or (4) alleging facts well within the mainstream of
constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations
of the denial of a constitutional right, such as the right to a fair trial or to due process, are
insufficient to satisfy the “fair presentment” requirement. Id.
The record in this case indicates that, on direct appeal, Petitioner expressly argued that
“by denying the [Petitioner] the opportunity to subpoena [ ] witnesses, the Court denied him his
Constitutional right to Due Process and his right to present an effective defense.” Brief of
Appellant (ECF No. 7-1 PageID# 101). Moreover, Petitioner referred to Ungar v. Sarafite, 376
U.S. 575, 589 (1964), in support of this claim, quoting language from the Supreme Court
regarding the test for deciding when a denial of a continuance “is so arbitrary as to violate due
process.” Id. (ECF No. 7-1 PageID# 100-101). This Court therefore concludes that Petitioner
fairly presented this federal claim to the state courts and thereby preserved the claim for review
in these proceedings.
Of course, to the extent that Petitioner claims that the trial court abused its discretion in
violation of state law when it refused to grant his request for a continuance, the issue does not
provide a basis for federal habeas corpus relief. See Pulley v. Harris, 465 U.S. 37, 41 (1984).
“[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and
procedure” in considering a habeas petition. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th
Cir. 1985). Moreover, the efforts of state court trial judges to control the proceedings before
them do not ordinarily give rise to constitutional concerns.
Trial judges necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of
16

assembling the witnesses, lawyers, and jurors at the same place at
the same time, and this burden counsels against continuances
except for compelling reasons. Consequently, broad discretion
must be granted trial courts on matters of continuances; only an
unreasoning and arbitrary “insistence upon expeditiousness in the
face of a justifiable request for delay” violates [a defendant's
constitutional trial right]. Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
Morris v. Slappy, 461 U.S. 1, 11–12 (1983). “A ‘denial of a continuance rises to the level of a
constitutional violation only when there is an unreasoning and arbitrary insistence upon
expeditiousness in the face of [a] justifiable request for delay.’” Ambartsoumov v. Warden, No.
2:12-cv-345, 2014 WL 3045394, at *27 (S.D. Ohio July 3, 2014)(quoting Burton v. Renico, 391
F.3d 764, 772 (6th Cir. 2004)).
The circumstances of a particular case determine whether the
denial of a continuance is so arbitrary as to violate due process.
Ungar, 376 U.S. at 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (“There are
no mechanical tests for deciding when a denial of a continuance is
so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.”). A
defendant must also show that the denial of a continuance actually
prejudiced his or her defense. Powell v. Collins, 332 F.3d 376, 396
(6th Cir. 2003) (“Actual prejudice may be demonstrated by
showing that additional time would have made relevant witnesses
available or otherwise benefit[t]ed the defense.”).
Burton v. Renico, 391 F.3d at 772.
As noted by the state appellate court, defense counsel waited until the first day of trial,
immediately prior to beginning voir dire, to request a continuance, indicating only that Petitioner
had “just informed” him that he “may have some witnesses.” Transcript (ECF No. 9-1, PageID#
256-57). In denying Petitioner’s request, the trial court noted that the indictment had been
served on Petitioner and that Petitioner had been arraigned on the indictment two months prior to
the trial date. Moreover, the state trial court noted that a pre-trial hearing had been held one

17

month prior to trial, and another several days before trial, and that “discussions about discovery
and witnesses on behalf of the defense were discussed at the final pre-trial and the reciprocal
discovery was filed by the defendant indicating that perhaps the defendant may be testifying.”
Id. (PageID# 257).
[The Trial Court]: So. . . without any prior notice, the motion to
continue for some witnesses is. . . is [sic] there any specific
witnesses? There’s no notice of alibi that’s been filed. There’s no
indication there’s any affirmative defense. There’s no statement
against the interest in this case. Is that correct?
[The Prosecutor]: That’s correct.
***
[The Trial Court]: There’s ample opportunity for the defendant to
have disclosed any potential witnesses. So we’ll proceed on with
the trial. I’ll overrule the motion.
Id. Further, Petitioner has not even suggested that any potential defense witnesses would have
assisted the defense. Under these circumstances, Petitioner has failed to establish that the trial
court acted unconstitutionally, or that he was denied the right to present a defense, by virtue of
the trial court’s denial of his last-minute request for a continuance.
Claim two is without merit.
Claim Four
In claim four, Petitioner alleges that he was denied the effective assistance of appellate
counsel because his attorney failed to raise on appeal a claim that he was convicted in violation
of the Confrontation Clause when Officer Heinz testified regarding statements purportedly made
by the 9-1-1 dispatcher and by Bobbi Munyan, a non-testifying co-defendant. The state appellate
court rejected this claim, reasoning in relevant part as follows:
[A]ppellant claims his appellate counsel was ineffective for failing
to raise an argument regarding the trial court’s decision to admit
18

alleged hearsay statements through the testimony of Officer Jeff
Heinz. Appellant also argues his appellate counsel was ineffective
for failing to raise an argument that a portion of Officer Heinz’s
testimony violated his constitutional rights under the Confrontation
Clause.
However, even if we were to find some merit to these claims,
based on the overwhelming evidence presented at trial to support
his convictions, appellant simply cannot establish that he suffered
any resulting prejudice from his appellate counsel’s alleged
deficiencies. Therefore, as the exclusion of this evidence would
not have changed the outcome of the case, and amounts to, at
worst, harmless error, appellant has not met his burden
demonstrating a genuine issue as to whether he was denied the
effective assistance of appellate counsel. . . .
[A]ppellant’s application for reopening is hereby DENIED.
Entry Denying Application to Reopen Appeal (ECF No. 7-1 PageID# 219-21).
Petitioner specifically complains about the testimony of Officer Heinz, in regard to the
WalMart incident:
The Police Department received a complaint regarding subjects
attempting to make a large purchase on a credit card. The credit
card that was attempting to be used the name did not match, as best
the management was able to tell, none of the subjects that was
there.
Transcript (ECF No. 9-1, PageID# 332). Petitioner also complains about Officer Heinz’s
testimony that, although Petitioner initially provided a false name, Bobbi Munyan provided
Petitioner’s correct name to Officer Heinz. See id. (ECF No. 9-1, PageID# 335-36). Finally,
Petitioner complains that Officer Heinz should not have been permitted to testify to the hearsay
statements by employees or personnel at Murphy USA. See id (ECF No. 9-1, PageID# 339-40).1

1

Officer Heinz testified that he was able to determine that there had been an illegal credit card transaction at
Murphy USA for cartons of cigarettes using Jane Dill’s blue Fifth Third credit card. Id. (ECF No. 9-1, PageID#
340). Officer Heinz also testified that the transaction at WalMart utilized the same credit card. Id. (ECF No. 9-1
PageID# 341).

19

The right to counsel guaranteed by the Sixth Amendment is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The standard for
demonstrating a claim of ineffective assistance of counsel is composed of two parts:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's performance
must be “highly deferential.” Id. at 689.
With respect to the first prong of the Strickland test, “[b]ecause of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.” Id. In order to
establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate
that there is a reasonable probability that, but for counsel's errors, the result of the proceedings
would have been different. Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Because a petitioner must satisfy both prongs of the
Strickland test in order to establish a claim of ineffective assistance of counsel, should the court
determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at
697.
The Strickland test also applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 78182 (1987). Counsel must provide reasonable professional judgment in presenting the appeal.
Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). “‘[W]innowing out weaker arguments on appeal
and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the
20

hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting
Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). The United States Court of Appeals for the Sixth
Circuit has identified the following considerations that ought to be taken into account in
determining whether counsel on direct appeal performed reasonably competently:
1. Were the omitted issues “significant and obvious?”
2. Was there arguably contrary authority on the omitted issues?
3. Were the omitted issues clearly stronger than those presented?
4. Were the omitted issues objected to at trial?
5. Were the trial court's rulings subject to deference on appeal?
6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy
and, if so, were the justifications reasonable?
7. What was appellate counsel's level of experience and expertise?
8. Did the Petitioner and appellate counsel meet and go over possible issues?
9. Is there evidence that counsel reviewed all the facts?
10. Were the omitted issues dealt with in other assignments of error?
11. Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).
The Sixth Amendment to the United States Constitution 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). The testimonial statement of a witness who does not
appear at trial is inadmissible unless the witness was unavailable to testify and the defense had a
prior opportunity to cross examine the witness. Crawford v. Washington, 541 U.S. 36 (2004).
However, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers'
design to afford the States flexibility in their development of hearsay law[, including] an
approach that exempted all such statements from Confrontation Clause scrutiny altogether.” Id.
at 68.
The United States Supreme Court has indicated that, at a minimum, “testimonial
statements” include “prior testimony at a preliminary hearing, before a grand jury, or at a former

21

trial; and to police interrogations. These are the modern practices with closest kinship to the
abuses at which the Confrontation Clause was directed.” Id. On the other hand, a casual remark
to an acquaintance, business records, and statements made in furtherance of a conspiracy do not
constitute testimonial statements that fall within the ambit of the Sixth Amendment. Id. at 51–
55.
In order to determine whether a proffered statement is testimonial, a court “must decide
whether [the statement] has 'a primary purpose of creating an out-of-court substitute for trial
testimony.”' Bullcoming v. New Mexico, 564 U.S. 647, 669 (Sotomayor, J. concurring) (quoting
Michigan v. Bryant, 562 U.S. 344, 358 (2011)). Under this “primary purpose” test, statements
“are testimonial when the circumstances objectively indicate” that their primary purpose “is to
establish or prove past events potentially relevant to later criminal prosecution.” Ohio v. Clark,
— U.S.—, —, 135 S.Ct. 2173, 2179-80 (2015)(citing Harmon v. Indiana, 547 U.S. 813, 822
(2006)). In making this determination, a court must consider all relevant circumstances. Id. at
2180. In the Sixth Circuit, the test for determining whether a statement is deemed testimonial
within the meaning of Crawford is
. . . whether the declarant intends to bear testimony against the
accused. That intent, in turn, may be determined by querying
whether a reasonable person in the declarant's position would
anticipate his statement being used against the accused in
investigating and prosecuting the crime.
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).
In any event, Confrontation Clause violations are subject to harmless-error analysis.
McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir. 2015)(citing Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)). This Court concludes that Petitioner has failed to establish the denial of the
effective assistance of appellate counsel based on the failure to raise a claim under the

22

Confrontation Clause.

As the state appellate court reasoned, the testimony about which

Petitioner complains was cumulative of other substantial evidence of Petitioner’s guilt and did
not prejudice his defense. Any failure or default on the part of his appellate counsel in this
regard, was therefore harmless. Under these circumstances, Petitioner has failed to establish the
denial of the effective assistance of counsel on this basis. See Strickland, 466 U.S. at 687. The
state appellate court’s decision rejecting this claim was not so unreasonable as to warrant federal
habeas corpus relief. See 28 U.S.C. § 2254(d), (e).
Claim four is without merit.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
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

23

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
March 8, 2017

24