Stein v. Warden Ross Correctionl Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court sh ould certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/29/2014. Signed by Magistrate Judge Michael R Merz on 12/9/2014. (kpf1)(This document has been sent by the Clerks Office 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
WESTERN DIVISION AT DAYTON
SAMUEL C. STEIN,
Petitioner,

:

- vs -

Case No. 3:14-cv-274
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Samuel Stein under 28 U.S.C. §
2254. On Stein’s Petition (Doc. No. 1-2), the Court ordered Respondent to answer (Doc. No. 2).
Respondent has filed the state court record (Notice, Doc. No. 6) and a Return of Writ (Doc. No.
7) and Petitioner has filed a timely Reply (Doc. No. 9). The case is therefore ripe for decision.
Petitioner pleads the following Grounds for Relief:
Ground One: Mr. Stein's conviction is against the manifest weight
of the evidence.
Supporting Facts: The jury lost its way when it convicted Mr.
Stein. The sole witness to their being a “murder plot" was by Ms.
Ramga, an individual with known psychiatric disorders and an
admitted interest in fabricating a case against Mr. Stein. His
conviction is a violation of his 5th , 6th and 14th Amendment rights
under the U.S. Constitution.
Ground Two: The evidence presented by the State was
insufficient to convict Mr. Stein.
Supporting Facts: By the State's own witnesses, the overt act of
making the phone call was suggested by and carried out by Ms.
Ramga, and the Appellant never touched or spoke into the phone,
1

or told her to make a call in the first place. The State failed to
meet its burden to produce evidence that would convince the
average mind of Mr. Stein's guilt beyond a reasonable doubt, and
as such his conviction is a violation of his 5th , 6th and 14th
Amendment rights under the U.S. Constitution.
Ground Three: The trial court erred by sentencing Mr. Stein to a
sentence greater than the minimum.
Supporting Facts: The State offered a plea agreement of 3 years
in prison if Mr. Stein would plead guilty to 1 of the counts in the
indictment, which the Trial Court stated that it would accept. After
exercising his Constitutional right to a trial, the Court sentenced
Mr. Stein, who was a first time offender, to 9 years in prison,
instead of to community control or the minimum. This arbitrary
abuse by the court violated the Appellant's 5th , 6th , and 14th
Amendment rights under the U.S. Constitution.
Ground Four: The trial court erred by granting and expanding the
scope of the State's motion in limine, which violated the appellant's
5th, 6th and 14th Amendment rights under the U.S. Constitution.
Supporting Facts: The trial court stated that "psychiatric history is
not relevant” and that any questions into the witnesses psychiatric
history would be a violation of the court's ruling on the motion in
limine. State witnesses Mausolf and Ramga, both of who were
estranged former girlfriends, and had extensive histories of
psychiatric disorders that made questions into their history of
mental health disorders, use and abuse of psychotropic medication
critical to their credibility and the establishment of motive for their
testimony. The Court's denial of the defendant's right to confront
his accusers was a violation of his 5th , 6th and 14th Amendment
rights under the U.S. Constitution.
Ground Five: The state witnesses committed perjury regarding the
recordings and transcripts presented at trial.
Supporting Facts: State witnesses Ms. Ramga and Sgt. Thompson
committed perjury when they claimed that the recordings and
transcripts presented to the jury were complete and accurate copies
of the originals. The original copy of the recording of March 6,
2012 included a conversation between Det. Ring and Ms. Ramga
which was excluded from the recording played for the jury at trial
and transcripts presented by the State. The State admitted to having
tampered with and altering the transcripts prior to giving them to
the jury. The Trial Court permitting the jury to hear perjured
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testimony that the State and Court knew to be perjured, as well as
Appellate counsel's failure to raise the issue on appeal violated the
appellant's 5th , 6th and 14th Amendment rights under the U.S.
Constitution.
Ground Six: The prosecution made highly prejudicial and
improper remarks that violated the appellant's 5th , 6th and 14th
Ammendment[sic] rights under the U.S. Constitution.
Supporting Facts: The State made improper and inflammatory
remarks during closing arguments that were meant to mislead the
jury, lend the credibility of the State to witness testimony, as well
as to denigrate the defendant and defense counsel.
Ground Seven: A substantial overt act in furtherance of the
conspiracy was not performed by the appellant or a co-conspirator.
4th, 5th, 6th and 14th Amendment, U.S. Constitution.
Supporting Facts: The State alleged that the conversation
between Ms. Ramga and the Appellant, which constituted planning
and agreeing, were overt acts in and of themselves, when they
clearly were not. The police stated that they did not arrest the
appellant until after Ms. Ramga placed the phone call that they had
previously arranged for her to make. Also, Ms. Ramga testified
that at no point had she ever been a participant to the alleged
offense. The Appellant was not only convicted for a crime he did
not commit, because in fact no crime had actually occurred, which
violated his rights under the 4th , 5th, 6th, and 14th Amendments of
the U.S. Constitution.
Ground Eight: The trial court erred when it allowed testimony by
the state's witnesses regarding allegedly criminal acts by the
appellant that were not ever charged in the indictment, namely that
he had filed false reports with law enforcement regarding being
harassed by Ms. Mausolf. 5th, 6th, 14th Amendments, U.S.
Constitution.
Ground Nine: The trial court abused its discretion by prohibiting
members of the jury from taking notes over the course of a 3 day
trial that involved multiple witnesses, exhibits and recordings, and
violated the appellant's 5th, 6th and 14th Amendment rights under
the U.S. Constitution.
Ground Ten: Trial counsel failed to investigate and utilize
exculpatory evidence. 5th, 6th, 14th Amendment, U.S.
Constitution.
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Supporting Facts: Defense counsel never subpoenaed Mr. Stein's
medical records showing his history of blackouts and incoherence,
Ms. Ramga and Ms. Mausolf's cellular phone text message history
or their psychiatric records, which would have shown that the
defendant was telling the truth from the beginning. This omission
prejudiced the defendant and violated his 5th, 6th and 14th
Amendment rights under the U.S. Constitution.
Ground Eleven: The indictment was defective.
Supporting Facts: The indictment alleged that all of the 11 acts
were performed with a coconspirator, Ms. Ramga. Since Ms.
Ramga was acting as a police agent at the time, she cannot be a coconspirator. Also the indictment was not signed by the foreman of
the grand jury, making it defective, and violating the Appellant's
5th, 6th and 14th Amendment rights under the U.S. Constitution.
Ground Twelve: The admission of evidence seized from the
appellant's residence, vehicle, workplace and storage unit violated
the appellant's 4th, 5th 6th and 14th Amendment rights under the
U.S. Constitution.
Supporting Facts: The Miamisburg Police Department did not
obtain a search warrant for the Appellant's vehicle or workplace,
and the warrants for his apartment, storage unit and phone did not
authorize the seizure of items that were confiscated and included as
evidence at trial. The inventory and report described “controversial
propaganda," "flags, armbands and clothes," an autobiography
"Making a Killing," and a drawing pad. This search, and the use of
the evidence seized, constituted a violation of the Appellant's 4th,
5th, 6th and 14th Amendment Rights under the U.S. Constitution.
Ground Thirteen: Law enforcement never obtained a warrant for
the recording of phone conversations, the body wire and
surveillance conducted during the course of their investigation. 4th,
5th, 6th, 14th Amendment, U.S. Constitution.
Supporting Facts: The Miamisburg Police Department never
obtained a warrant authorizing their surveillance, phone and body
wire recordings while they were investigating the Appellant, even
though they had ample opportunity to do so over the course of their
3 day investigation. This violated the Appellant's 4th and 14th
Amendment rights under the U.S. Constitution.

4

Ground Fourteen: The complaint by the police was improperly
processed. 4th, 5th, 6th, 14th Amendment, U.S. Constitution.
Supporting Facts: The complaint affidavit by Det. Ring was
signed by the detective but never notarized. This violated the
Appellant's 4th, 5th, 6th and 14th Amendment rights under the U.S.
Constitution.
Ground Fifteen: Defense counsel never requested a suppression
hearing on witness statements and witnesses Ramga and Mausolf
even though there was a reasonable basis to do so. Ms. Ramga,
who initiated the investigation against Mr. Stein, had a well-known
and well-established history of psychiatric disorders, including
hallucinations and psychotropic drug use and abuse, and Ms.
Mausolf had a history of filing false allegations against Mr. Stein.
Trial counsel's failure to request a suppression hearing on evidence
presented by these two witnesses is a denial of effective assistance
of counsel, and a violation of the Appellant's 5th, 6th and 14th
Amendment rights under the U.S. Constitution.
Ground Sixteen: The trial court erred by permitting Ms. Ramga to
make a victim impact statement at sentencing even though she was
not a victim.
Supporting Facts: The Trial Court committed an abuse of
discretion and harmful error by allowing Ms. Ramga to make a
victim impact statement at sentencing even though she was never a
victim of the alleged crime and was working as a police agent
during the entirety of the investigation. The court committed an
abuse of discretion that was contrary to law in allowing Ms.
Ramga to make a victim impact statement that violated the
Appellant's 5th, 6th, and 14th Amendment rights under the U.S.
Constitution.
Ground Seventeen: The Trial court repeatedly allowed hearsay
and speculation testimony. The State also used leading questions to
elicit desired answers from witnesses. Trial counsel repeatedly
objected to these errors but the court consistently overruled them,
which was an abuse of discretion and plain, harmful error that
violated the Appellant's 5th, 6th and 14th Amendment rights under
the U. S. Constitution.
Ground Eighteen: The trial court did not maintain a copy of the
jury instructions or the jury verdict forms as required by O.R.C.
2945.10(G). 5th, 6th, 14th Amendment, U.S. Constitution.

5

Supporting Facts: The record shows that the trial court never filed
or maintained a copy of the written jury instructions that the jury
was given to take with them while deliberating, as required by
O.R.C. 2945.10(G), and there is not a time stamped copy of the
jury verdict form signed by all members of the jury for review by a
court of appeals.
Ground Nineteen: The trial court erred by allowing the State to
use tampered evidence in the form of altered transcripts and
recordings at trial. 5th, 6th, 14th Amendment, U.S. Constitution.
Supporting Facts: The State initially made transcripts available
through discovery but changed the contents of the transcripts and
did not provide defense counsel with a copy of their new version
prior to trial as required by Criminal Rule 16. The State admitted
to unilaterally changing the transcripts of the wire recordings
which excluded Det. Ring and Ms. Ramga's phone conversations
and added non-existent details to the conversation, which
prejudiced the Appellant by withholding exculpatory evidence
from the Defendant and jury, and violated his 5th, 6th, and 14th
Amendment rights under the U.S. Constitution.
Ground Twenty: The trial court abused its discretion by refusing
to investigate possible juror misconduct. 5th, 6th, 14th
Amendment, U.S. Constitution.
Supporting Facts: The court erred when it refused to investigate
possible juror misconduct when it was brought to the attention of
the court. Defense counsel requested to poll the jury but the court
refused to even question the jurors about their actions. This was an
abuse of discretion that violated the Defendant's 5th, 6th and 14th
Amendment rights under the U.S. Constitution.
Ground Twenty-One: The trial court abused its discretion when it
denied the defense Rule 29 motion for acquittal. 5th, 6th, 14th
Amendment, U.S. Constitution.
Supporting Facts: The court abused its discretion when it denied
the defense Rule 29 Motion for Acquittal after hearing all of the
evidence presented by the State. This violated the Appellant's 5th,
6th and 14th Amendment rights under the U.S. Constitution.
Ground Twenty-Two: The trial court erred when it refused to
grant a mistrial after defense counsel brought potential juror
misconduct to the court's attention and the court refused to

6

properly investigate it. This violated the Appellant's 5th, 6th and
14th Amendment rights under the U.S. Constitution.
Ground Twenty-Three: The Court of Appeals abused its
discretion when it refused to grant a reconsideration of its denial of
the appellant's 26(B) motion because of lack of access to courts.
5th, 6th, 14th Amendment, U.S. Constitution.
Supporting Facts: The Court of Appeals erred when it refused to
grant a reconsideration of its denial of the Appellant's 26(B)
Motion because of lack of access to the courts. The Appellant
clearly demonstrated information that should have been considered
by the court, but the court refused to consider it. The denial of
access to the courts is a chronic and ongoing problem experienced
by pro se litigants who are incarcerated, and the Court's refusal to
grant a reconsideration violated the Appellant's 5th, 6th and 14th
Amendment rights under the U.S. Constitution.
(Petition, PageID 11-33.)

Procedural History

In 2012 the Montgomery County grand jury indicted Stein on two counts of conspiracy to
commit aggravated murder and two counts of conspiracy to commit murder. After denial of
Stein’s motion to suppress, the case proceeded to trial and the jury found Stein guilty on all four
counts. After merger of all counts under Ohio Revised Code § 2941.25, the court sentenced
Stein to nine years imprisonment.
Stein appealed to the Second District Court of Appeals, raising as assignments of error
(1) that his conviction was against the manifest weight of the evidence; (2) that his conviction
was based on insufficient evidence; and (3) that the trial court erred in sentencing him to more
than the minimum sentence prescribed by law. The Second District affirmed the conviction and

7

sentence. State v. Stein, 2013-Ohio-3050, 2013 Ohio App. LEXIS 3101 (2nd Dist. July 12,
2013). Stein did not file a timely appeal to the Supreme Court of Ohio.
On February 5, 2014, Stein filed a delayed application to reopen the appeal pursuant to
Ohio R. App. P. 26(B). The Second District denied the application as untimely. State v. Stein,
Case No. 25432 (2nd Dist. Mar. 20, 2014)(unreported, copy at Doc. No. 6-1, PageID 380-82).
Stein’s motion for reconsideration was denied and the Ohio Supreme Court declined to exercise
jurisdiction over an appeal. Stein filed the instant case on August 18, 2014 (Doc. No. 1).

Analysis

Ground One: Conviction Against the Manifest Weight of the Evidence

In his First Ground for Relief, Stein asserts his conviction is against the manifest weight
of the evidence. Respondent asserts this claim is not cognizable in federal habeas corpus (Return
of Writ, Doc. No. 7, PageID 1112-13).
Stein accepts the proposition that federal habeas corpus extends only to persons in
custody in violation of the Constitution, laws, or treaties of the United States (Reply, Doc. No. 9,
PageID 1148). He then argues “[a]ll of the perceived state law and procedure violations have
already been presented to all of the state courts as federal constitutional violations, and each rises
to a violation of the Petitioner's rights to due process under the Fourteenth Amendment.” Id. at
PageID 1149.
However, the fact that a state procedural right has been argued to the state courts as a
federal constitutional claim (i.e., that it has been “fairly presented”) does not make violation of

8

that right a federal constitutional violation.

Failure to abide by state law is not itself a

constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation by a
State of its own procedural rules does not necessarily constitute a violation of due process. Bates
v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228
(6th Cir. 1976). “A state cannot be said to have a federal due process obligation to follow all of
its procedures; such a system would result in the constitutionalizing of every state rule, and
would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied,
509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99
(1995).
A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener,
534 F.2d 1232 (6th Cir. 1986). Therefore Stein’s First Ground for Relief should be dismissed
with prejudice for failure to state a claim on which federal habeas corpus relief can be granted.

Ground Two: Conviction Based on Insufficient Evidence

In his Second Ground for Relief, Stein asserts the State presented insufficient evidence to
ground his conviction with respect to the overt act of “making the phone call” in that the act was
suggested by and carried out by Ms. Ramga, and Appellant never touched or spoke into the
phone in the first place.” (Petition, Doc. No. 1-2, PageID 12.)
Respondent reads this as being an insufficiency of the evidence claim related only to this
one overt act (Return of Writ, Doc. No. 7, PageID 1113). In his Reply, Stein does not dispute
that characterization.1
1

Stein’s Reply contains no section expressly directed to Ground Two. Under the heading “Stein’s Grounds for
Relief,” Stein begins with Ground Four (Doc. No. 9, PageID 1159). In the body of the text at PageID 1164, he

9

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 proved
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); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which
determines the elements of offenses; but once the state has adopted the elements, it must then
prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. 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
mentions Ground Seven. At PageID 1170 he captions a section as Ground Twelve. At PageID 1177, he discusses
Grounds Five and Nineteen together.

10

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 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). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. 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, 181 L. Ed. 2d
311, 313 (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. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
A claim of insufficient evidence was presented to the Second District Court of Appeals
on direct appeal and decided by that court on the merits. On direct appeal, Stein did not single
out this one overt act as unproved by sufficient evidence. Instead, all of his factual argument
11

was made under his First Assignment of Error on manifest weight and reads as follows:
In the case at bar, the evidence presented by the State was not
believable, and thus the jury lost its way. The sole evidence of the
"murder plot" was presented through the testimony of Andrea
Ramga. Ms. Ramga testified she wished to evict Mr. Stein from
her home. Once the officer explained that process, only then does
Ms. Ramga mention the "murder plot". (Tr 7). It's Ms. Ramga
through the aid of the Miamisburg Police Department who then
goes to Mr. Stein's place of employment, interrupts him while
working, and then she brings up the concept of the murder plot.
(Tr. 9-15, 323-331, 357- 361). The notion that Mr. Stein was the
mastermind behind this "plot" is contradicted by the State's own
evidence.
(Appellant’s Brief, Doc. No. 6-1, PageID 237.) The only legal argument is made on the Second
Assignment of Error, the claim that the conviction is supported by insufficient evidence. Id. at
PageID 237-39.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
In addition to AEDPA deference on questions of law, a federal habeas court must give
deference to state court findings of fact; such findings are presumed to be correct and can be
overcome only by clear and convincing evidence in the state court record.

28 U.S.C. §

2254(e)(1); Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011). Stein recognizes the
presumption and undertakes to overcome it (Reply, Doc. No. 9, PageID 1145-48).
In deciding this claim, the Second District wrote as follows:

12

I. Stein Conspires with his Apartment Mate and Ex-Girlfriend
to Murder a Previous Ex-Girlfriend and the Mother of his
Child
[*P3] Stein had a romantic relationship with Nicole Mausolf that
lasted from late 2004 to late 2007. They had a son together.
[*P4] Stein later became romantically involved with Andrea
Ramga, and moved into Ramga's apartment in April 2011.
Although their romantic involvement ended after three to four
months, Stein continued to live in Ramga's apartment, paying her
rent.
[*P5] Ramga became aware that Stein "hated" Mausolf, who had
taken him to court over child support issues more than once, with
the result that Stein was jailed for contempt and lost one of his two
jobs. Stein continued to work at a McDonald's restaurant.
[*P6] "A couple of months" after Stein moved in with Ramga, he
began discussing a plan to kill Mausolf. For a while, Ramga did
not take Stein seriously, believing that this was just Stein's way of
expressing his hatred for Mausolf, and what Mausolf had done to
him.
[*P7] One Thursday, Stein told Ramga, "if we do this on Friday, I
have the weekend off so I can clean up." According to Ramga,
"that's when I knew that he was serious. He wanted to do it and he
wanted to do it now." Ramga testified that she was afraid for her
life for two reasons: first, Stein was exhibiting a propensity to kill
his ex-girlfriends, a group to which she belonged; and second, the
plan would result in Ramga and Stein being the only surviving
witnesses to Mausolf's murder, which could motivate Stein to
eliminate Ramda [sic] as a witness.
[*P8] Ramga called the Miamisburg Police Department the
following Monday, March 5, 2012, told them that she was afraid of
her roommate, and asked what her options were to get him out of
her apartment. Miamisburg Police Officer Justin Small called her
back and an appointment was made for her to meet with him later
that evening.
[*P9] During her meeting with Officer Small, Ramga reported
that her roommate, Stein, was asking her to assist him in killing his
ex-girlfriend, Mausolf. Small then recalled that Stein had come to
the police station to complain about Mausolf's having sent
harassing text messages to Ramga, and Small had been the police
13

officer who had met with Stein. Small had explained to Stein at
that time that Ramga would need to make a complaint in order to
initiate any action.
[*P10] In fact, after Stein had met with Small, he had prevailed
upon Ramga to come to the police station with him to complain
about Mausolf. Although Ramga had found Mausolf's text
messages annoying, she enjoyed a good relationship with
Mausolf, and did not consider any of the messages to be harassing.
She agreed to go with Stein to the police station because she was
afraid of him. The police officer who met with Stein and Ramga
(not Officer Small) said that she would call Mausolf to get her to
"back off."
[*P11] The police officer's plan to call Mausolf was not
acceptable to Stein, so no complaint against Mausolf was filed. It
was not acceptable to Stein because it was inconsistent with his
plan to kill Mausolf. That plan required Ramga to befriend
Mausolf, while simultaneously complaining that Mausolf was
harassing her. Ramga would then ask Mausolf to come to the
apartment some evening after work, where Stein would shoot
Mausolf in the face with a shotgun. Stein would then claim that
Mausolf had come into the apartment uninvited, and then advanced
upon him menacingly, as a result of which Stein had shot her. Stein
discussed the fact that he would have to be sure he could kill
Mausolf with one shot, since multiple shots would militate against
his defense of self-defense. To be sure of killing Mausolf with one
shot, Stein would shoot her in the face with a shotgun, at close
range.
[*P12] Officer Small had Ramga call Stein to discuss the plan to
kill Mausolf. Stein said nothing in response, and eventually hung
up. A recording of this phone call was played for the jury and
admitted in evidence. Officer Small then passed Ramga on to
Police Detective Ring. Small had no further contact with Ramga.
[*P13] The next day, Tuesday, March 6, 2012, Ramga went to
the McDonald's where Stein worked, wearing a body wire, and
asked to speak with him. A recording of this two-part conversation
was played for the jury and admitted in evidence. In the first part,
Ramga told Stein that she had decided that: "I think I'm in. I think
she's gotta go." Ramga then asked Stein when he wanted to do it,
to which Stein responded: "As soon as possible."
[*P14] Ramga asked Stein if he wanted to do it the next night,
adding that she could call Mausolf and ask her to meet Ramga at
14

the apartment about 8:00. Stein replied: "Yeah." Ramga then asked
Stein if she should be in the back room or in the bathroom. Stein
responded: "You want, just, just let her in and then go in the
bathroom." Stein then added: "And then, and then, you know, you
were in the bathroom, I heard the door open, I came out, and whoa
... "
[*P15] Ramga then told Stein that she could call Mausolf from
her mother's house and block the number, but Stein said: "I
wouldn't do that." Later in this conversation, Stein explained why
he did not want to interfere with the ability to trace the call back to
Ramga — he could incorporate the phone call from Ramga to
Mausolf into his plan: "But anyway, so, I mean, so basically, you
know, we, you called her, told, you know, told her to quit callin'
and textin' or you were gonna call the police, and you know, that
was it, you didn't think anything else was gonna happen, you
know, you know, you felt better about it. The next thing we know
she shows up."
[*P16] After Ramga then said: "She shows up and walks in the
house," Stein continued: "She shows up and walks in the house
while you're in the bathroom. I came out and saw her, told her to
get the f*ck out, she wouldn't leave, she came at me, I let her have
it, and you heard the scuffle and came out, freaked out, and you
know, I said, I'm callin' the police."
[*P17] After Ramga then said: "Okay," Stein said: "I mean, that's,
the simpler, the better." This part of the conversation continued,
but nothing of further consequence was said.
[*P18] Stein went back into the McDonald's after this part of the
conversation. Detective Ring, who, with another officer, was
parked elsewhere in the McDonald's lot, then called Ramga and
asked her to see if she could get Stein to discuss the role of the
shotgun in the plan to kill Mausolf. Ramga had asked Stein: "You
still have your shotgun, right," to which Stein responded
affirmatively, but there had been no other mention of the shotgun.
[*P19] Ramga then succeeded in getting Stein back out of the
McDonald's where he worked. She asked him: "Um, how am I, I'm
not going to get hit with the shotgun bullet?" Stein replied: "You're
gonna be in the bathroom."
[*P20] After a couple more exchanges, Stein referred to the fact
that he would "get my shotgun," and "get in the kitchen, behind the
stove."
[FN1
15

Besides the actual audio-recording of the two-part conversation
between Ramga and Stein on March 6, 2012, the State prepared a
written transcript of this conversation, which was given to the jury
as an aid to their listening to the recording, but which they were
not allowed to keep as evidence. Stein's comments quoted here
were interlineated in the typed transcript. We have listened to the
entire recording, and what we have quoted here, which differs
slightly from the interlineation, is what we heard Stein say.]
[*P21] At the end of this, the second part of the two-part
conversation, Stein told Ramga to keep her part "really simple."
After reviewing her part with Ramga one more time, Stein
concluded with: "And I'll take care of the rest."
[*P22] During this entire conversation, Stein expressed no
reticence whatsoever about the plan to kill Mausolf. As the State
argues, the conversation is at least consistent with, if it does not
suggest, that the plan they were discussing had been formulated by
Stein, as Ramga testified. But even if it weren't, Stein evidenced
complete willingness to participate in the conspiracy.
[*P23] The next day, March 7, 2012, a little after 1:00 p.m.,
Ramga met Stein again at the McDonald's where he worked.
Again, she was wearing a body wire, and her conversation was
recorded. During this conversation Ramga told Stein that Mausolf
had called her and left a message, which would give Ramga "one
more reason to call" Mausolf. Ramga told Stein she figured he
would want to be there when she called Mausolf, to which Stein
responded: "Oh yeah, definitely."
[*P24] Ramga asked Stein what she should say to Mausolf. Stein
told Ramga: "Okay, yeah, you, you kicked me out, uh, you got
together all my stuff and you're, you know, I left some books
behind, you can say that a friend came and got me or something
like that, you know, but uh, you kicked me out, you had the locks
changed, and uh, if you want, you know, tell her that you're not
going to get home until after ..."
[*P25] After some brief discussion, Ramga asked Stein if 8:00
that evening would be O.K. as the time that Mausolf should be told
to come to the apartment, and Stein agreed, saying: "That would
give us time to go home and set the house up, and tell her trash
comes tomorrow so if she wants it ... ."
16

[*P26] Ramga then purported to make the call to Mausolf. In
reality, in a prior arrangement with the police, she was speaking to
a secretary in the Miamisburg police department, who was told to
respond naturally. It appears that Stein could not overhear the other
end of the conversation; Ramga had begun by asking to speak with
Nicole [Mausolf], before addressing the party on the other end of
the line as Nicole, and Stein asked Ramga, after the brief phone
call: "Who answered the phone?" Ramga told him that Nicole had
answered the phone.
[*P27] Ramga then appeared to be asking Stein to go over the
plan one more time, and Stein did so. He told Ramga that he
would be in the kitchen, behind the stove, that Ramga should let
Mausolf in, then excuse herself and go in the bathroom and shut
the door. Stein continued: "And, I'll take it from there, and uh,
what happened is, you were in the bathroom, I was in the kitchen
gettin' ready to do some laundry, she barged in, told her to get the
f*ck out, she wouldn't, I went and got my shotgun and told her to
get out, by that time she was closing in on me, I let her have it."
[*P28] Stein then explained to Ramga that by having been in the
bathroom while Stein was shooting Mausolf with the shotgun, she
would not have to relate a story about what Stein said and did, and
what Mausolf said and did.
[*P29] Stein then told Ramga that he would be home before
eight; Ramga responded: "Okay. See you then"; and Stein said:
"All right. Have fun." The conversation then ended.
[*P30] The police went into the McDonald's where Stein had
returned to work, and arrested him.
II. The Course of Proceedings

[*P31] Stein was charged by indictment with two counts of
Conspiracy to Commit Aggravated Murder, and two counts of
Conspiracy to Commit Murder. Mausolf was the intended victim in
all four counts. All four counts are felonies of the first degree. R.C.
2923.01(J)(1). With respect to the counts involving Aggravated
Murder, Stein was charged both with Conspiracy in violation of
R.C. 2923.01(A)(1), and with Conspiracy in violation of R.C.
2923.01(A)(2). Similarly, with respect to the counts involving
Murder, Stein was charged both under R.C. 2923.01(A)(1) and
R.C. 2923.01(A)(2).
17

[*P32] R.C. 2923.01(A)(1) provides that no person shall: "With
another person or persons, plan or aid in planning the commission
of [the specified offense]." R.C. 2923.01(A)(2) provides that no
person shall: "Agree with another person or persons that one or
more of them will engage in conduct that facilitates the
commission of [the specified offense]."
[*P33] R.C. 2923.01(B) provides as follows:
No person shall be convicted of conspiracy unless a
substantial overt act in furtherance of the conspiracy is
alleged and proved to have been done by the accused or a
person with whom the accused conspired, subsequent to
the accused's entrance into the conspiracy. For purposes
of this section, an overt act is substantial when it is of a
character that manifests a purpose on the part of the actor
that the object of the conspiracy should be completed.
[*P34] At trial, each of the four verdict forms corresponding to
the four counts of the indictment was accompanied by eleven
interrogatories asking the jurors to determine if Stein had
committed certain specified overt acts. These sets of
interrogatories were identical with respect to each of the four
counts. With respect to each count, the jury returned nine of the
interrogatories (numbers two through ten) with a unanimous
finding that Stein did commit the specified overt act. The jury
returned two of the interrogatories (numbers one and eleven) with
a unanimous finding that Stein did not commit the specified act.
[*P35] The overt acts that the jury found Stein to have committed
were:
On 3/6/12, he instructed Ramga what to say to Mausolf to
lure her to the residence in order to facilitate Mausolf's
murder.
On 3/6/12, he instructed Ramga what to do at the
residence in order to facilitate Mausolf's murder.
On 3/6/12, he instructed Ramga what to say to police
investigators in order to facilitate Mausolf's murder.
On 3/6/12, he took a second break from work to meet
with Ramga to clarify details of his plan to murder
Mausolf.
18

On 3/7/12, he took a break from work and met with
Ramga to place a phone call to Mausolf to commence his
plan to lure Mausolf to the residence later that evening for
the purpose of killing her.
On 3/7/12, he told Ramga what to say in her phone call to
Mausolf to lure her to the residence later that evening.
On 3/7/12, he instructed Ramga what to do at the
residence in order to facilitate Mausolf's murder later that
evening.
On 3/7/12, he instructed Ramga what to say to police
investigators in order to facilitate Mausolf's murder.
On 3/7/12, he met with Ramga and presided over the
phone call from Ramga to Mausolf, to commence his plan
to kill Mausolf.

[*P36] The jury found Stein guilty of all four counts. By
agreement of both parties, the counts were merged for sentencing
purposes. Stein was sentenced to nine years in prison. No fine or
restitution was ordered. From his conviction and sentence, Stein
appeals.
III. Stein's Conviction Is Not Against the Manifest Weight of
the Evidence
[*P37] Stein's First Assignment of Error is as follows:
MR. STEIN'S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
[*P38] We set forth the manifest-weight standard of review in
State v. Szloh, 189 Ohio App.3d 13, 2010 Ohio 3777, 937 N.E.2d
168, ¶ 12 (2d Dist.):
* * * when reviewing a judgment under a manifestweight standard of review, "'[t]he court reviewing the
entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence,
the [factfinder] clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
19

reversed and a new trial ordered. The discretionary power
to grant a new trial should be exercised only in the
exceptional case in which evidence weighs heavily
against the conviction.'" [State v.] Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541, quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485
N.E.2d 717.

[*P39] Ramga testified that Stein planned Mausolf's murder with
her, and agreed with her that he would murder Mausolf.
Recordings of her conversations with Stein in which he planned,
and agreed to, Mausolf's murder were admitted in evidence. Stein
did not testify.
[*P40] Stein's defense at trial, and his argument on appeal, is that
he was entrapped. He argues that Ramga, at the behest of the
police, put the idea of planning to murder Mausolf in Stein's mind,
and planned to use Stein's willingness to kill Mausolf as a basis for
evicting Stein from her home.
[*P41] In State v. Doran, 5 Ohio St.3d 187, 193, 5 Ohio B. 404,
449 N.E.2d 1295 (1983), the Supreme Court of Ohio held that
entrapment is an affirmative defense. They defined the defense of
entrapment:
Consequently, where the criminal design originates with
the officials of the government, and they implant in the
mind of an innocent person the disposition to commit the
alleged offense and induce its commission in order to
prosecute, the defense of entrapment is established and
the accused is entitled to acquittal. Sherman [v. United
States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)],
supra, 356 U.S. at 372, 78 S.Ct. at 820; Sorrells [v.
United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413,
38 Ohio L. Rep. 326 (1932)], supra, 287 U.S. at 442, 53
S.Ct. at 212. However, entrapment is not established
when government officials "merely afford opportunities
or facilities for the commission of the offense" and it is
shown that the accused was predisposed to commit the
offense. Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 820.
Id., at 192.
[*P42] The Supreme Court of Ohio adopted a subjective test for
determining a defendant's predisposition to commit the offense,
concluding:
20

Our sole reservation concerning the subjective test
involves the scope of admissible evidence on the issue of
an accused's predisposition. While evidence relevant to
predisposition should be freely admitted, judges should be
hesitant to allow evidence of the accused's bad reputation,
without more, on the issue of predisposition. Rather,
while by no means an exhaustive list, the following
matters would certainly be relevant on the issue of
predisposition: (1) the accused's previous involvement in
criminal activity of the nature charged, (2) the accused's
ready acquiescence to the inducements offered by the
police, (3) the accused's expert knowledge in the area of
the criminal activity charged, (4) the accused's ready
access to contraband, and (5) the accused's willingness to
involve himself in criminal activity. Under this approach,
the evidence on the issue of an accused's predisposition is
more reliable than the evidence of the nature of
inducement by police agents under the objective test. Id.
[*P43] In applying the Doran test for a defendant's predisposition
to commit an offense, the Ohio Tenth District Court of Appeals
rejected a claim of entrapment, noting that the witness had
indicated that the defendant had never expressed an
unwillingness to commit the offense, and concluding that the
evidence "does not suggest that appellant had to be convinced to
engage in this conduct." State v. Zeune, 10th Dist. Franklin No.
10AP-1102, 2011 Ohio 5170, ¶ 20.
[*P44] In the case before us, the jury could easily have found
from the evidence that the idea of planning to kill Mausolf
originated with Stein, not with Ramga. Ramga so testified, and the
recorded conversations between Ramga and Stein are more
consistent with the idea of killing Mausolf having originated with
Stein, not with Ramga.
[*P45] But even if one were to conclude that the idea of killing
Mausolf was suggested to Stein by Ramga, the recorded
conversations clearly show that Stein was not the least bit reticent
about killing Mausolf. He never indicated any unwillingness or
reluctance to do so.
[*P46] The jury reasonably concluded that Stein was not
entrapped. This is not the exceptional case in which the evidence
weighs heavily against conviction. Stein's First Assignment of
Error is overruled.
21

IV. Stein's Conviction Is Supported by Sufficient Evidence
[*P47] In part III, above, we have held that Stein's conviction is
not against the manifest weight of the evidence. Therefore, it is
supported by sufficient evidence, since there is evidence in the
record, in the form of Ramga's testimony and the recorded
conversations between Ramga and Stein, that, if believed, would
persuade a reasonable mind of Stein's guilt beyond reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 263, 574 N.E.2d 492
(1991), superseded on other grounds by constitutional amendment,
see State v. Smith, 80 Ohio St.3d 89, 1997 Ohio 355, 684 N.E.2d
668. See also State v. Bailey, 2d Dist. Montgomery No. 24861,
2012 Ohio 3274, ¶ 25.
[*P48] Stein's Second Assignment of Error is overruled.
State v. Stein, 2013-Ohio-3050, 2013 Ohio App. LEXIS 3101 (2nd Dist. July 12, 2013). As can
be seen, the Court of Appeals did not focus on a particular overt act, but decided there was
sufficient evidence on which to convict Stein of every element of the crimes with which he was
charged.
The Warden asserts the Second Ground for Relief is procedurally defaulted because Stein
did not timely appeal to the Ohio Supreme Court (Return of Writ, Doc. No. 7, PageID 1113-14).
Stein argues his claims are not procedurally defaulted because of “equitable tolling,” specifically
of the time to file is Application for Reopening under Ohio R. App. P. 26(B)(Reply, Doc. No. 9,
PageID 1150-54). That argument will be dealt with below as it applies to claims which were
raised in the 26(B) Application. Essentially, the Magistrate Judge concludes the doctrine of
equitable tolling as enunciated by the United States Supreme Court does not save Stein’s 26(B)
Application from the default of being untimely filed. But even if it applied there, it would not
apply to Stein’s failure to appeal to the Ohio Supreme Court from the Second District’s decision
on direct appeal.
The procedural default doctrine in habeas corpus is described by the Supreme Court as

22

follows:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.

23

....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines 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 under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In this case Ohio has a relevant procedural rule, to wit, that appeals to the Supreme Court
of Ohio must be taken within forty-five days of the judgment in the court of appeals. S. Ct. Prac.
R. 7.01(A)(1). The Sixth Circuit had held this procedural rule is an adequate and independent
state ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(citations omitted).
Although the rule has not been directly enforced against Stein because he never attempted a
direct appeal, there is no doubt it would be enforced if an appeal were attempted now or had
been at any time after the forty-five days expired. Stein has offered no suggested excusing cause
and prejudice. Therefore the Second Ground for Relief should be dismissed with prejudice as
procedurally defaulted.

Ground Three: Unconstitutional Sentence

In his Third Ground for Relief, Stein asserts his sentence of nine years is unconstitutional
24

because the State offered to let him plead guilty to the first count of the indictment for an agreed
sentence of three years.
This claim was not presented at all on direct appeal. Stein’s Third Assignment of Error
argued that the trial court erred in sentencing him to any imprisonment term at all because of the
Ohio statutes regulating the terms of prison sentences, particularly Ohio Revised Code § 2929.11
and 2929.12 (Appellant’s Brief, Doc. No. 6-1, PageID 239).
In his Reply, Stein does not reference any place where this claim was raised before he
filed his Petition in this Court. The Third Ground for Relief should therefore be dismissed with
prejudice as procedurally defaulted for failure to present it to the Ohio courts.

Ground Four: Expansion of the State’s Motion in Limine

In his Fourth Ground for Relief, Stein asserts the trial court deprived him of his rights
under the Confrontation Clause by not permitting evidence of the “extensive histories of
psychiatric disorders that made questions into their [witnesses Ramga and Mausolf] history of
mental disorders, use and abuse of psychotropic medication critical to their credibility and the
establishment of motive for their testimony.” (Petition, Doc. No. 1-2, PageID 14.)
This claim is based on facts of record at the time of the direct appeal, but is not included
in the appeal. On that basis, the Warden asserts it is procedurally defaulted (Return of Writ,
Doc. No. 7, PageID 1117).2 Ohio has a relevant procedural rule which is that constitutional
claims which are based on the record and therefore could be raised on direct appeal must be
raised in that manner or they are barred from being raised later by res judicata. State v. Perry,

2

The Warden also asserts it is not cognizable because it relates only to the admission of evidence, but the Court
finds that, as pled in the Petition, Ground Four states a Confrontation Clause claim.

25

10 Ohio St. 2d 175 (1967). The Sixth Circuit has repeatedly held that Ohio’s doctrine of res
judicata in criminal cases, enunciated in Perry, is an adequate and independent state ground.
Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir.
2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22
(6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v.
Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). Therefore Stein’s Fourth Ground for
Relief is procedurally defaulted unless he can prove excusing cause and prejudice.
Stein makes no explicit argument about excusing this default, but implicitly argues that
the omission of this claim on direct appeal is the result of ineffective assistance of appellate
counsel: the claim was included as his First [Omitted] Assignment of Error in his 26(B)
Application (Doc. No. 6-1, PageID 324).
Ineffective assistance of appellate counsel can act as excusing cause for a procedural
default, but only if the ineffective assistance of appellate counsel claim itself is not procedurally
defaulted. Edwards v. Carpenter, 529 U.S. 446 (2000). A 26(B) application is the only method
for raising an ineffective assistance of appellate counsel claim in the Ohio courts and Ohio
requires that such an application be filed within ninety days “from journalization of the appellate
judgment unless the applicant shows good cause for filing at a later time.”
Stein did not file within the required ninety days. The Second District’s decision was
filed July 12, 2013; the ninetieth day thereafter was October 10, 2013. Stein did not file the
Application until February 5, 2014, which is 208 days after the appellate judgment (See Doc. 61, PageID 321).
The Second District found Stein had made the following purported showing of good
cause for is delay:

26

Since the Appellant's attorney refused to correspond with him and
ignored his repeated letters and phone calls, the Appellant wrote
the Ohio Public Defender's Office to find out the current status of
his case on July 8, 2013 (before the appellate judgment was filed].
On July 29, 2013, the Ohio Public Defender's Office wrote that
they would review the Appellant's case for a possible 26(B)
motion. On October 9, 2013, attorney Terrence Scott with the Ohio
Public Defender's Office informed the Appellant that the Ohio
Public Defender's Office would not be representing him in the
filing of a motion to reopen his direct appeal and mailed him the
portion of his trial record that his appellate counsel had requested.
(Quoted in State v. Stein, Case No. 25432 (2nd Dist. Mar. 20, 2014)((unreported; copy at Doc.
No. 6-1, PageID 380-81.) The Second District found that this was arguably an appropriate
accounting for the delay until October 9, 2013, but “he has not shown good cause for the delay
from October 9, 2013, until the filing of his application of February 5, 2014, a period of 117
days. We conclude, therefore, that he has not shown good cause for filing his application out of
time.” Id. at PageID 381.
Stein claims that recognizing this defense
requires that one completely ignore the whole body of evidence
that Stein has submitted along with his application for reopening
under App. R. 26(B) as well as this application for a writ of habeas
corpus, including letters to his appellate counsel, letters to and
from the Ohio Public Defender's Office, a letter to the Ohio
Supreme Court Disciplinary Counsel, Ross Correctional
Institution's Library schedule in conjunction with an inmate
tracking sheet (to show the Petitioner's location during the time in
question), kites to the librarian, and compliants/[sic] grievances
regarding the library.

(Reply, Doc. No. 9, PageID 1150-51.) Having examined the record, the Court finds none of this
supposed documentation except two letters from the Ohio Public Defender’s Office. Those
letters tell him, inter alia, that his 26(B) Application is due by October 10, 2013 (See Doc. No.
6-1, PageID 347).
27

The question of what constitutes good cause under Ohio R. App. P. 26(B) is a question of
Ohio law which this Court is not empowered to second guess. In particular, this Court is not
authorized to impose the doctrine of equitable tolling on the Ohio courts. As Stein has noted, the
United States Supreme Court has recognized the application of that doctrine to excuse a late
filing of a habeas corpus petition in federal court as an equitable exception to the federal statute
of limitations in 28 U.S.C. § 2244. Holland v. Florida, 560 U.S. 631 (2010). But the Supreme
Court has in no way imposed equitable tolling on the States as a constitutional requirement.
As an alternative to equitable tolling, Stein argues ineffective assistance of appellate
counsel on direct appeal can excuse his tardy filing of the 26(B) Application (Reply, Doc. No. 9,
PageID 1154). However, ineffective assistance of counsel will only act as excusing cause if it
occurs in a proceeding in which a criminal defendant is entitled to constitutionally effective
assistance. Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to
counsel there can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App.
LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
The State’s obligation to provide counsel extends to the first appeal of right and no further.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).
Stein argues that the Supreme Court has extended this principle in Trevino v. Thaler, ___
U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). It is unclear whether Trevino applies at
all to ineffective assistance of trial counsel claims in Ohio. McGuire v. Warden, 738 F.3d 741,
751-52 (6th Cir. 2013). In any event, if it does, it only applies to excuse procedural default in
initial review collateral proceedings of claims of ineffective assistance of trial counsel, not
claims of ineffective assistance of appellate counsel.
Because Stein procedurally defaulted in is presentation of his ineffective assistance of

28

appellate counsel claims to the Ohio courts, he cannot use those claims to excuse the procedural
default of failing to present claims on direct appeal. Therefore his Fourth Ground for Relief
should be dismissed with prejudice as procedurally defaulted.

Ground Five: Perjured testimony of Witnesses Ramga and Thompson

In his Fifth Ground for Relief, Stein claims that witnesses Ramga and Thompson perjured
themselves when they testified that “the recordings and transcripts presented to the jury were
complete and accurate copies of the originals.” (Petition, Doc. No. 1-2, PageID 15.)
The Warden asserts this claim is procedurally defaulted because it was never presented to
the state courts until Stein’s untimely 26(B) Application (Return of Writ, Doc. No. 7, PageID
1118).
Stein makes no separate response to this defense and the Court finds that it is well taken
on the same basis as Ground Four. To the extent this claim relies on material outside the record
(i.e., some proof of what the originals contained), Stein has procedurally defaulted by never
filing a petition for post-conviction relief under Ohio Revised Code § 2953.21. The Fifth
Ground for Relief should therefore be dismissed with prejudice as procedurally defaulted.

Ground Six: Prosecutorial Misconduct in Closing Argument

In Ground Six, Stein claims he was deprived of a fair trial by the prosecutor’s misleading
remarks in closing argument (Petition, Doc. No. 1-2, PageID 16). The Warden asserts this claim
is procedurally defaulted by Stein’s failure to raise it on direct appeal.

29

This Ground for Relief is in fact procedurally defaulted on the same basis as Ground Four
and should be dismissed with prejudice for that reason.

Ground Seven: Insufficient Evidence of an Overt Act in Furtherance of the Conspiracy by
Stein or a Co-Conspirator.

In his Seventh Ground for Relief, Stein asserts the State failed to prove an overt act in
furtherance of the conspiracy by himself or a co-conspirator (Petition, Doc. No. 1-2, PageID 17).
The Warden asserts this claim is procedurally defaulted because it was not presented on
direct appeal, but the Magistrate Judge disagrees. The Second Assignment of Error on direct
appeal is appropriately read as claiming the State failed to produce sufficient evidence on all
elements of the charged offenses. However, as noted above with respect to Ground Two, the
claim was procedurally defaulted thereafter by not appealing to the Ohio Supreme Court.
Alternatively, the Second District decided this claim on the merits and found a number of
overt acts committed by Stein. Those findings are not an unreasonable determination of the facts
based on the evidence presented and are therefore entitled to deference under 28 U.S.C. §
2254(e)(1).
Ground Seven should therefore be dismissed with prejudice.

Ground Eight: Admission of Prejudicial Testimony

In his Eighth Ground for Relief, Stein asserts he was deprived of a fair trial when the trial

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judge allowed testimony by State’s witnesses that Stein had filed false reports with police about
being harassed by Ms. Mausolf (Petition, Doc. No. 1-2, PageID 18). The Warden asserts Ground
Eight fails to state a claim under the Constitution and is also procedurally defaulted.
Stein makes no response specifically directed to Ground Eight and the Court finds, on the
authority cited by the Warden, that this claim is not cognizable in federal habeas. Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Furthermore, because it was available to be raised
on direct appeal but was not, it is procedurally defaulted on the same basis as Ground Four.
Ground Eight should be dismissed with prejudice.

Ground Nine: Refusal to Allow Juror Note Taking

In his Ninth Ground for Relief, Stein asserts the trial judge deprived him of his
constitutional rights by not allowing the jury to take notes (Petition, Doc. No. 1-2, PageID 19).
The Warden correctly asserts the United States Supreme Court has never held that a criminal
defendant has a due process right to have jurors take notes of the testimony. Furthermore, this
claim was never presented to the Ohio courts and is therefore procedurally defaulted. The Ninth
Ground for Relief should be dismissed with prejudice.

Ground Ten: Ineffective Assistance of Trial Counsel for Failure to Investigate

In his Tenth Ground for Relief, Stein asserts he received ineffective assistance of trial
counsel when his trial attorney failed to subpoena Stein’s medical records or the cellphone text
messages of Ms. Ramga and Ms. Mausolf (Petition, Doc. No. 1-2, PageID 20).

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The Warden asserts this claim is procedurally defaulted. To the extent it relies on
information which is not in the direct appeal record – the contents of the unsubpoenaed records –
this claim is procedurally defaulted by Stein’s failure ever to file a petition for post-conviction
relief under Ohio Revised Code § 2953.21. Ground Ten should therefore be dismissed with
prejudice.

Ground Eleven: Defective Indictment

In is Eleventh Ground for Relief, Stein asserts the indictment is defective because it
alleges he conspired with Ms. Ramga and because it is not signed by the grand jury foreman
(Petition, Doc. No. 1-2, PageID 21). The Indictment is in fact signed (Doc. No. 6-1, PageID 96).
As the Warden correctly points out, there is no federal constitutional right to indictment
by a grand jury in state court cases. Hurtado v. California, 110 U.S. 516 (1884); Branzburg v.
Hayes, 408 U.S. 665, 687-88 n. 25 (1972); Gerstein v. Pugh, 420 U.S. 103 (1975). All that is
required by the Constitution is a charging document that gives a defendant adequate notice of
what he must defend against, and Stein makes no claim of lack of adequate notice.
This claim is also procedurally defaulted on the same basis as Ground Four.
Ground Eleven should be dismissed with prejudice.

Grounds Twelve and Thirteen : Unconstitutional Seizure of Evidence

In his Twelfth and Thirteenth Grounds for Relief, Stein asserts that evidence that was
seized from him without a search warrant or beyond the scope of the warrant that was issued,

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violated his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments
(Petition, Doc. No. 1-2, PageID 22).
More than fifty years ago, in Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court
adopted the rule that evidence seized in violation of the Fourth Amendment was, on proper
motion, required to be excluded from evidence. That rule had previously been imposed on the
federal courts and in Mapp the Supreme Court extended that rule to the States under the
Fourteenth Amendment.
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate
that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district
court to determine whether state procedure in the abstract provides full and fair opportunity to
litigate, and Ohio procedure does.

The district court must also decide if a Petitioner's

presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is
allowed if an unanticipated and unforeseeable application of procedural rule prevents state court
consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in
discussing the concept of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate.
Ohio R. Crim. P. 12 provides an adequate opportunity to raise
Fourth Amendment claims in the context of a pretrial motion to
suppress, as is evident in the petitioner’s use of that procedure.
Further, a criminal defendant, who has unsuccessfully sought to
suppress evidence, may take a direct appeal of that order, as of
right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and
Ohio R. App. P. 5(A). These rules provide an adequate procedural
mechanism for the litigation of Fourth Amendment claims because
the state affords a litigant an opportunity to raise his claims in a
fact-finding hearing and on direct appeal of an unfavorable
decision.

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Id. at 526. The Stone v. Powell limitation does not apply to evidence obtained in violation of the
Fifth Amendment, but the Petition does not assert any Fifth Amendment violations.
The record shows that Stein’s trial attorney did file a motion to suppress raising both
Fourth and Fifth Amendment claims (Doc. No. 6-1, PageID 100-104). As Stein’s counsel
requested, an oral hearing was held on the motion. Judge Huffman wrote a sixteen-page decision
overruling the motion. Id. at PageID 112-27. However, no suppression issues were raised on
direct appeal. As already noted with respect to a number of Grounds for Relief above, claims
which could have been raised on direct appeal but were not thus raised are procedurally
defaulted.
Therefore Grounds Twelve and Thirteen should be dismissed with prejudice as barred by
Stone v. Powell and as procedurally defaulted.

Ground Fourteen: Lack of Notarizatrion of the Complaint Signed by Detective Ring

Stein claims the original complaint filed against him by Detective Ring was not
notarized. The Constitution of the United States does not require such notarization. To the
extent the Constitution requires a probable cause finding before an arrest warrant is issued, that
finding is provided by the Indictment itself. In any event, this Ground for Relief is also
procedurally defaulted.

Ground Fifteen: Ineffective Assistance of Trial Counsel

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In his Fifteenth Ground for Relief, Stein asserts he received ineffective assistance of trial
counsel when his trial attorney failed to move to suppress witness statements of Ms. Ramga and
Ms. Mausolf (Petition, Doc. No. 1-2, PageID 25).
This Ground for Relief fails to state a claim upon which habeas corpus relief can be
granted because there is no procedure available under Ohio law for “suppressing” statements
made to police by witnesses who will testify live at trial. It cannot, therefore, have been deficient
performance to fail to file such a motion. See Strickland v. Washington, 466 U.S. 668 (1984), on
the standard for determining ineffective assistance of trial counsel. Moreover this Ground for
Relief is procedurally defaulted on the same basis as Ground Four.

Ground Sixteen: Improper Victim Impact Statement

In his Sixteenth Ground for Relief, Stein complains of the trial court’s allowing Ms.
Ramga to make a victim impact statement. The Warden responds that the United States Supreme
Court has never held that a victim impact statement under these circumstances is
unconstitutional. Moreover this Ground for Relief is procedurally defaulted on the same basis
as Ground Four.

Ground Seventeen: Allowance of Hearsay, Speculation, and Leading Questions

In his Seventeenth Ground for Relief, Stein complains that the trial court allowed
hearsay, speculation, and leading questions (Petition, Doc. No. 1-2, PageID 27). As the Warden
correctly points out, possible errors of state evidence law are not cognizable in habeas corpus.

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"[I]t is not the province of a federal habeas court to reexamine state court determinations on state
law questions. In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). Moreover this Ground for Relief is procedurally defaulted on the
same basis as Ground Four.

Ground Eighteen: Failure to Maintain a Copy of the Jury Instructions and Verdicts

In his Eighteenth Ground for Relief, Stein complains of the trial court’s failure to maintain
a copy of the jury instructions and the verdict forms for review by the court of appeals (Petition,
Doc. No. 1-2, PageID 28). As to the verdicts, this claim is belied by the record. See Doc. No. 61, PageID 163-210.
To the extent Stein is complaining of a violation of Ohio Revised Code § 2945.10(G), he
is raising a claim of Ohio law which is not cognizable in habeas corpus. Moreover this Ground
for Relief is procedurally defaulted on the same basis as Ground Four.

Ground Nineteen: Admission of Evidence Which Had Been Tampered With

In his Nineteenth Ground for Relief, Stein claims the trial court admitted evidence which
had been tampered with, i.e., that the wire recordings and transcripts of the recordings offered at
trial were different from those produced in discovery and somehow withheld exculpatory
evidence from the jury.
Stein fails to explain how this violated any federal constitutional right. If the State

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presented recordings and transcripts of recordings which omitted portions that were exculpatory,
it was fully open to defense counsel to argue for admission of the balance of the
recordings/documents under the rule of completeness. If he did not do so and failure to do so
was ineffective assistance of trial counsel, then it was incumbent on Stein to place those matters
in the record by a petition for post-conviction relief. He never filed such a petition and says in
his Reply that he relies solely on the trial transcripts (Reply, Doc. No. 9, PageID 1177, citing
PageID 328-29). Those are pages of his Rule 26(B) Application in which he refers to an
admission by the prosecutor to changing the transcripts by omitting “Det. Ring and Ms. Ramga’s
phone conversations. . .” Again, if those conversations were exculpatory, defense counsel could
have moved to include them, but did not. There is no constitutional violation shown here by the
State’s conduct.
Moreover this Ground for Relief is procedurally defaulted on the same basis as Ground
Four.

Ground Twenty: Failure to Investigate Possible Juror Misconduct

In his Twentieth Ground for Relief, Stein asserts his constitutional rights were violated
when the trial court refused to investigate possible juror misconduct (Petition, Doc. No. 1-2,
PageID 30). The Warden correctly argues this Ground for Relief is procedurally defaulted on the
same basis as Ground Four.

Ground Twenty-One: Denial of Motion for Judgment of Acquittal

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In his Twenty-First Ground for Relief, Stein argues his constitutional rights were violated
when his Motion for Judgment of Acquittal was denied (Petition, Doc. No. 1-2, PageID 31). A
motion for judgment of acquittal raises the claim that the evidence does not support a conviction.
This is the same claim raised in Ground Two and should be dismissed with prejudice on the
same basis.

Ground Twenty-Two: Denial of a Mistrial

In his Twenty-Second Ground for Relief, Stein claims his constitutional rights were
violated when the trial court refused to grant a mistrial on the basis of the asserted juror
misconduct referred to in Ground Nineteen. This Ground for Relief is procedurally defaulted on
the same basis as Ground Four.

Ground Twenty-Three: Failure of the Court of Appeals to Reconsider its Rule 26(B)
Decision

In his last Ground for Relief, Stein claims the Second District Court of Appeals denied
him access to the courts when it refused to reconsider its decision on his 26(B) Application
(Petition, Doc. No. 1-2, PageID 33).
First of all, this claim is belied by the record. The Second District did reconsider its
26(B) decision and issued a three-page decision denying the requested relief (Doc. No. 6-1,
PageID 398-400). Just because Stein did not get the result he wanted does not mean the court of
appeals did not reconsider.
Secondly, there is no federal constitutional right to appeal in a state criminal case in any
event, much less a right to reconsideration of a decision denying a motion to reopen an appeal.
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McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d
339, 355 (6th Cir. 2005). “Due process does not require a State to provide appellate process at
all.” Goeke v. Branch, 514 U.S. 115, 120 (1995).

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

December 9, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
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hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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