Perkins v. Warden, Madison Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein 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. Objections to R&R due by 4/6/2015. Signed by Magistrate Judge Michael R Merz on 3/19/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
CARL PERKINS,
Petitioner,

:

- vs -

Case No. 3:14-cv-322
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Madison Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is an action pursuant to 28 U.S.C. '2254 for a writ of habeas corpus. Mr. Perkins
filed the Petition September 29, 2014 (Doc. No. 1). The Court ordered an answer and provided
dates for the answer and Perkins’ reply (Doc. No. 2). The Warden has filed the state court record
and a Return of Writ (Doc. Nos. 6, 7) and the time set for Petitioner’s reply has expired without
any filing. The case is therefore ripe for decision.

Procedural History

This case resulted from a traffic stop on June 1, 2012, of an automobile with four
passengers on Interstate 70 by Ohio Highway Patrol Trooper Shaun Smart. Perkins was indicted
on one count of possessing the more than 40, 000 grams of marijuana found in the car. After
jury trial, Perkins was convicted and sentenced to eight years confinement.

1

Perkins appealed to the Twelfth District Court of Appeals raising the following
Assignments of Error.
1. Mr. Perkins conviction was based upon insufficient evidence
presented at trial by the prosecution.
Issue for Review: Whether the testimonial evidence presented at
trial was sufficient enough to prove all requisite elements of
possession of marijuana, and further, support a conviction for
assault. 1
2. The trial court erred and/or abused its discretion by permitting
the admittance of evidence, over the trial counsel’s objection,
which was unduly prejudicial and inflammatory to Mr. Perkins.
Issue for Review: Whether the trial court abused it’s [sic]
discretion by permitting photographs to be admitted as evidence,
during a jury trial, which was unduly prejudicial and inflammatory
toward the Defendant.
3. Mr. Perkins was denied his right to effective assistance of
counsel pursuant to the Sixth Amendment of the United States
Constitution.
Issue for Review: Whether Mr. Perkins was denied his right to
effective assistance of counsel pursuant to the Sixth Amendment of
the United States Constitution.
(Appellant’s Brief, Ex. 9 to Return of Writ, Doc. No. 7, PageID 47-48.) The Twelfth District
affirmed the conviction. State v. Perkins, 2013-Ohio-3409, 2013 Ohio App. LEXIS 3497 (12th
Dist. Aug. 5, 2013). The Supreme Court of Ohio declined to exercise jurisdiction over a further
appeal. State v. Perkins, 137 Ohio St. 3d 1442 (2013). Perkins then filed the Petition in this case
raising the following grounds for relief:
Ground One: Assign[ment] of Error No. 1: Insufficient Evidence
Supporting Facts: Mr. Perkins’ conviction was based upon
insufficient evidence presented at trial by the Prosecution. At trial
and on appeal, there was lack of any direct evidence such as finger
1

There was no conviction for assault in this case. See Judgment Entry of Sentence, Doc. No. 6-1, PageID 78.

2

prints, DNA, or traceable profits linking Mr. Perkins to the
marijuana. Perkins was unaware that any drugs were in the vehicle.
Ground Two: Assignment of Error No. 2 The trial court erred
and/or abused its discretion by permitting the admittance of
evidence, over the trial counsel’s objection, which was unduly
prejudicial and inflammatory to Mr. Perkins.
Supporting Facts: The trial court abused its discretion in
admitting the photographs that were taken from Mr. Perkins’
phone without a warrant, violating Mr. Perkins Fourth Amendment
rights. Also, the prosecution deprived Mr. Perkins a fair trial by
putting a picture of him at the time of his arrest with the word
guilty above his head several times during the prosecution’s
opening statement and during trial. The picture was used to
persuade the jury and should have been a misconduct.
Ground Three: Assignment of Error No. 3. Mr. Perkins was
denied his right of effective assistance of counsel pursuant to the
Sixth Amendment of the United States of Constitution.
Supporting Facts: Mr. Perkins was denied his right to effective
assistance of counsel, because his trial counsel failed to object to
the presentation of multiple boxes of the seized marijuana and to
the fact that the evidence was left in the court room throughout the
duration of the trial. The marijuana was also opened in court, not
how it was packaged in the car.
(Petition, Doc. No. 1.)

Ground One: Insufficient Evidence

In his First Ground for Relief, Perkins claims he was convicted on insufficient evidence.
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

3

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
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
4

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); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc).
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).
This claim was Assignment of Error One on direct appeal and the Twelfth District
decided it as follows:
[*P5] Assignment of Error No.1:
[*P6] MR. PERKINS [sic] CONVICTION WAS BASED UPON
INSUFFICIENT EVIDENCE PRESENTED AT TRIAL BY THE
PROSECUTION.
[*P7] Perkins argues in his first assignment of error that his
conviction is not supported by sufficient evidence.

5

[*P8] When reviewing the sufficiency of the evidence underlying
a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would
support a conviction. State v. Wilson, 12th Dist. Warren No.
CA2006-01-007, 2007 Ohio 2298. "The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, superseded on other grounds. The
credibility of witnesses is primarily a determination for the trier of
fact, who is in the best position to observe the witnesses'
demeanor, gestures and voice inflections. State v. Benson, 12th
Dist. Butler No. CA2009-02-061, 2009 Ohio 6741.
[*P9] Perkins focused at trial and on appeal on the lack of direct
evidence such as fingerprints, DNA, or traceable profits linking
him to the marijuana. However, a conviction can be based on
circumstantial evidence alone. State v. Shannon, 191 Ohio App. 3d
8, 2010 Ohio 6079, ¶ 10, 944 N.E.2d 737 (12th Dist.).
Circumstantial evidence is proof of certain facts and circumstances
in a given case, from which the jury may infer other, connected
facts, which usually and reasonably follow according to the
common experience of mankind. State v. Ortiz-Bajeca, 12th Dist.
No. CA2010-07-181, 2011 Ohio 3137. Circumstantial evidence
and direct evidence inherently possess the same probative value.
Id. In some cases, certain facts can only be established by
circumstantial evidence, and a conviction based thereon is no less
sound than one based on direct evidence. Shannon. In fact,
circumstantial evidence may be more certain, satisfying, and
persuasive than direct evidence. State v. Ballew, 76 Ohio St.3d
244, 249, 1996 Ohio 81, 667 N.E.2d 369 (1996).
[*P10] Perkins was convicted of possession of marijuana, in
violation of R.C. 2925.11(C)(3)(g), which states,
(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
(C) Whoever violates division (A) of this section is guilty of one of
the following:
(3) If the drug involved in the violation is marihuana or a
compound, mixture, preparation, or substance containing
marihuana other than hashish, whoever violates division (A) of this

6

section is guilty of possession of marihuana. The penalty for the
offense shall be determined as follows:
(g) If the amount of the drug involved equals or exceeds forty
thousand grams, possession of marihuana is a felony of the second
degree, and the court shall impose as a mandatory prison term the
maximum prison term prescribed for a felony of the second degree.

[*P11] According to R.C. 2901.22(B), "a person acts knowingly,
regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist." R.C. 2925.01(K)
defines possess or possession as "having control over a thing or
substance, but [possession] may not be inferred solely from mere
access to the thing or substance through ownership or occupation
of the premises upon which the thing or substance is found."
Possession may be actual or constructive. Constructive possession
exists when one is conscious of the presence of the object and able
to exercise dominion and control over it, even if it is not within
one's immediate physical possession. State v. Gaefe, 12th Dist.
Clinton No. CA2001-11-043, 2002 Ohio 4995, ¶ 9. Dominion and
control can be proven by circumstantial evidence alone. Id., see
also State v. Contreras, 12th Dist. Butler No. CA2004-07-181,
2006 Ohio 1894
[*P12] After viewing the evidence in a light most favorable to the
prosecution, we find that the jury could have found that Perkins
knowingly obtained or possessed the marijuana. Perkins argues
that there is insufficient evidence because he was unaware that the
drugs were in the vehicle. Perkins testified in his own defense that
he only went with Robinson in order to help him pick up someone
from the airport. Perkins testified that he agreed to go to Chicago
because he had never been and did not have other plans for the
day, and that he never questioned Robinson as to why they were
driving seven hours from Pennsylvania to Illinois to pick up
someone from the airport. Perkins testified that he listened to
music and watched a movie on his IPod as Robinson drove to and
from Chicago, and that he was unaware of any drug-related
conversations. Perkins also testified that he was essentially
unemployed so that he could help care for his six children, and
earned money helping his girlfriend sell baked goods at a local flea
market. Perkins also testified that he had a prior conviction for
trafficking in cocaine, but had not sold drugs since the conviction
seven years prior to his arrest.
7

[*P13] The state presented testimony and evidence that directly
contradicted Perkins' assertion that he did not know that the drugs
were in the vehicle. Trooper Smart, who is an experienced
interdiction officer who has executed "several thousand" traffic
stops, testified that he stopped the vehicle for an unsafe lane
change, and approached the passenger-side of the vehicle. Trooper
Smart stated that as soon as the passenger-side window was rolled
down, he smelled the odor of marijuana. He described the smell as
"strong. Immediately apparent. Very obvious that it was raw, not
burnt." Trooper Smart later testified that "the odor of marijuana
was so overwhelming that at no point was there ever any question
that there was raw marijuana in this car." This testimony indicates
that Perkins, as a passenger in the vehicle, would have been
exposed to the "overwhelming" odor of marijuana and would have
known of its existence.
[*P14] Trooper Smart also testified that he noticed immediately
that the driver and two backseat passengers were nervous, but that
Perkins would not break eye contact and looked at him in an
"unfriendly," "belligerent," and "unnerving" way. Trooper Smart
testified that he spoke to Robinson who stated that the group was
coming from the Argosy Casino in Lawrenceburg, Indiana. Once
Trooper Vonsy arrived to provide backup, the troopers had each of
the passengers exit the vehicle. Trooper Smart testified that as the
passengers were leaving the car, he could see marijuana residue in
the car. In total, Trooper Smart found an open bottle of vodka in
the driver's door, marijuana debris in the console, five cellular
phones, a can of Lysol, the two large bricks of marijuana, as well
as other boxes and bags of marijuana. In total, 103 pounds of
marijuana were seized from the vehicle, which had a street value
between $225,000 and $500,000. Trooper Smart testified that the
drugs in the console area were in plain view, as the console was
uncovered. Also, the large containers of marijuana were in the
back area of the vehicle, which was also uncovered. This evidence
indicates that Perkins would have been aware of the fact that there
was a large amount of marijuana in the vehicle.
[*P15] Despite Perkins' assertion at trial that he had not dealt
drugs or been involved in drug sales since his conviction seven
years prior to his arrest, the state presented evidence that Perkins'
phone contained photographs indicating his involvement in the
drug trade. The police performed a search of Perkins' cell phone
and discovered several pictures of large amounts of cash, as well as
pictures of marijuana and other drug paraphernalia. Perkins'
testimony does not explain how or why his phone contained
8

multiple pictures of large amounts of cash, quantities of marijuana,
and other drug paraphernalia, and the jury reasonably inferred that
such large amounts of cash could not have been earned selling
baked goods at the flea market.
[*P16] Deputy Sheriff Joseph Renner also testified. Deputy
Renner is the Preble County Jail Administrator, and performs work
with the computer network and software system in the jail. Deputy
Renner testified that while Perkins was incarcerated at the jail, he
made several phone calls that were recorded through a software
program. During phone calls, Perkins can be heard stating that he
was the "low man on the totem pole," that he wanted to know what
Robinson wanted him to say about their circumstances, that they
were foolish to have traveled on Interstate 70, and that they were
fortunate that the stop was performed in Ohio because Indiana has
a zero-tolerance policy on drug-related offenses. These statements
indicate that Perkins recognized his place in the drug transaction,
and was aware of the consequences of the decisions made during
the drug transaction.
[*P17] Esteban Sanchez testified to the details of the drug
transaction that was in progress at the time Trooper Smart pulled
the vehicle over. Sanchez testified that the parties involved in the
transaction were Telles, himself, Perkins and Robinson. His role
was to make sure that Telles did not get robbed during the
transaction. Sanchez explained that the drug supplier was located
in Chicago, Illinois, and agreed to "front" the drugs to Robinson
and Perkins, who would then deliver the marijuana to Pennsylvania
for sale and distribution. Sanchez and Telles agreed to take the
money back to Chicago to pay the supplier, and to then return to
their native Mexico.
[*P18] Sanchez testified that he went to Chicago and met Telles
at a motel. Sanchez stated that Perkins and Robinson were with
Telles when he met them at the motel, and that before that time he
did not know Robinson or Perkins. Sanchez testified that the four
men stayed the night at the motel and that the next morning, he and
Perkins waited in the parking lot of a McDonalds while the drugs
were being loaded into the vehicle. Once Sanchez and Perkins
rejoined Telles and Robinson, the four drove from Chicago into
Indianapolis and then into Ohio.
[*P19] Sanchez testified that during the travel, Robinson stated
that there would be $90,000 waiting at his house. Sanchez also
stated that the four talked about another possible drug transaction
in the coming week. Sanchez testified that Perkins heard the
9

conversation, and was not listening to music in any manner when
the conversation occurred. Sanchez also stated that at no time did
the group stop at a casino during their travels. This evidence, when
viewed in a light most favorable to the prosecution shows that
Perkins was an active member of the drug transaction, and that he
knew that there were drugs in the vehicle at all times.
[*P20] The jury chose not to believe Perkins, and instead found
the state's witnesses credible. As the trier of fact, and the ultimate
decider of credibility, determining which story was more plausible
was within the jury's province, and we will not disturb that
decision. As such, Perkins' first assignment of error is overruled.
State v. Perkins, 2013-Ohio-3409 (12th Dist. Aug. 5, 2013).
As the recitation of facts by the court of appeals makes clear, there was ample evidence
from which a jury could have found, beyond a reasonable doubt, that Perkins knew exactly what
was going on and was completely involved in the drug transaction. There is no requirement in
law of presenting forensic evidence such as Perkins’ recovered DNA or fingerprints from the
seized marijuana. Here the State presented direct (eyewitness) testimony from a co-conspirator.
The question of whether to believe him or Perkins was for the jury to decide. The Twelfth
District’s decision was neither contrary to nor an objectively unreasonable application of Jackson
v. Virginia, supra., or other Supreme Court precedent.
The First Ground for Relief should be dismissed with prejudice.

Ground Two: Error in Admitting Photographs Taken From Phone

In his Second Ground for Relief, Perkins claims the trial court abused its discretion in
admitting photographs taken from his cell phone. He also claims these photographs were seized
in violation of his Fourth Amendment rights.

10

In part this claim was raised in the Second Assignment of Error on direct appeal which
the Twelfth District decided as follows:
[*P21]

Assignment

of

Error

No.

2:

[*P22] THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY PERMITTING THE ADMITTANCE OF
EVIDENCE, OVER THE TRIAL COUNSEL'S OBJECTION,
WHICH
WAS
UNDULY
PREJUDICIAL
AND
INFLAMMATORY TO MR. PERKINS.
[*P23] Perkins argues in his second assignment of error that the
trial court abused its discretion in admitting the photographs of
large amounts of cash, marijuana, and drug paraphernalia that were
found on his phone.
[*P24] "It is well-established that the admission or exclusion of
evidence rests within the sound discretion of the trial court." State
v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012 Ohio 4769, ¶
25, citing In re Bays, 12th Dist. Warren No. CA2003-02-026, 2004
Ohio 915, ¶ 7. Absent an abuse of discretion, an appellate court
will not disturb a trial court's ruling as to the admissibility of
evidence. State v. Issa, 93 Ohio St.3d 49, 64, 2001 Ohio 1290, 752
N.E.2d 904 (2001). An abuse of discretion connotes more than an
error in law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Barnes, 94
Ohio St.3d 21, 23, 2002 Ohio 68, 759 N.E.2d 1240 (2002).
[*P25] According to Evid.R. 403(A), "although relevant,
evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury." Perkins argues
that any probative value the photographs had was outweighed by
their prejudicial impact and were only meant to "inflame the jury
by creating a false sense of or belief that Mr. Perkins was a high
level marijuana trafficker who made big profits, despite Mr.
Perkins being charged with only possession of marijuana." We
disagree.
[*P26] Perkins testified in his own defense and stated that he had
not dealt drugs since his conviction seven years prior to his arrest
in Ohio. However, the jury was free to infer from the photographs
that Perkins had in fact been involved in the drug trade, given the
large amount of cash, drugs, and drug paraphernalia depicted in the
photographs. The jury was also free to infer that Perkins' statement
11

that he earned money from helping his girlfriend sell baked goods
at a local flea market was incredulous given the large amount of
cash depicted in the photographs.
[*P27] The photographs were probative because they spoke
directly to Perkins' claim that he did not participate in drug
transactions, did not associate with drug dealers, and had not been
involved in the drug trade for seven years. The photographs,
however, were not unduly prejudicial to Perkins simply because
they incriminated him. As such, Perkins' second assignment of
error is overruled.

State v. Perkins, supra.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[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).
Evidentiary questions generally do not rise to the constitutional level unless the error was
so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6th
Cir. 1988); Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); Bell v. Arn, 536 F.2d 123 (6th
Cir. 1976); Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975). Where an evidentiary error is so
egregious that it results in a denial of fundamental fairness, it may violate due process and thus
warrant habeas relief. Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); Bugh v. Mitchell, 329
F.3d 496 (6th Cir. 2003), citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2000). Courts
have, however, defined the category of infractions that violate fundamental fairness very
narrowly. Bugh, quoting Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993)(quoting Dowling
12

v. United States, 493 U.S. 342, 352 (1990)). “Generally, state-court evidentiary rulings cannot
rise to the level of due process violations unless they ‘offend[] some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as fundamental.’” Seymour v.
Walker, 224 F.3d 542, 552 (6th Cir. 2000)(quoting Montana v. Egelhoff, 518 U.S. 37, 43
(1996)). The Supreme Court has defined very narrowly the category of infractions that violate
fundamental fairness. Bey v. Bagley, 500 F.3d 514 (6th Cir. 2007), citing Dowling, 493 U.S. at
352 (Identification from a trial which resulted in an acquittal could be introduced at second trial
for similarities.)
Introduction of the photographs from Perkins phone did not render the trial
fundamentally unfair. Had Perkins not taken the stand in his own defense and claimed he was
completely away from the drug trade since his prior conviction seven years before, a very
different question would have been presented. But Perkins put his own credibility directly in
issue – and on drug-related questions – by taking the stand. The photographs were relevant to
rebut his claims of innocence.
Perkins’ claim that seizure of the photographs from his phone violated his Fourth
Amendment rights cannot be considered in this case because it was never fairly presented to the
Ohio courts and is therefore procedurally defaulted.
The Second Ground for Relief should be dismissed with prejudice.

Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Perkins claims he received ineffective assistance of trial
counsel when his attorney did not object to the State’s leaving the seized marijuana in the

13

courtroom throughout the trial and also when he did not object that it did not have the same
appearance in the courtroom as it had when seized. The first part of this claim was raised as the
Third Assignment of Error on direct appeal and the Twelfth District decided it as follows:
[*P28] Assignment of Error No. 3:
[*P29] MR. PERKINS WAS DENIED HIS RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO
THE SIXTH AMENDMENT OF THE UNITED STATES OF
CONSTITUTION. [sic]
[*P30] Perkins argues in his final assignment of error that he was
denied his right to effective assistance of counsel because his trial
counsel failed to object to the presentation of multiple boxes of the
seized marijuana and to the fact that the evidence was left in the
courtroom
throughout
the
duration
of
the
trial.
[*P31] The Sixth Amendment pronounces an accused's right to
effective assistance of counsel. Warning against the temptation to
view counsel's actions in hindsight, the United States Supreme
Court has stated that judicial scrutiny of an ineffective assistance
claim must be "highly deferential* * *." Strickland v. Washington,
466 U.S. 668, 689, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). A
reviewing court "must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance" and the appellant must overcome "the presumption
that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id., quoting Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L. Ed. 83 (1955).
[*P32] To demonstrate ineffective assistance of counsel, an
appellant must establish that first, "his trial counsel's performance
was deficient; and second, that the deficient performance
prejudiced the defense to the point of depriving the appellant of a
fair trial." State v. Myers, 12th Dist. Fayette No. CA2005-12-035,
2007 Ohio 915, ¶ 33, citing Strickland at 689. Regarding the first
prong, an appellant must show that his counsel's representation
"fell below an objective standard of reasonableness." Strickland at
688. The second prong requires the appellant to show "a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694.
[*P33] During the state's case-in-chief, Trooper Smart testified
regarding the 103 pounds of marijuana seized from the vehicle in
14

which Perkins was a passenger. The record indicates that before
Trooper Smart testified, the marijuana was stored in the back of the
court room. During Trooper Smart's testimony, he and the
prosecutor moved the marijuana to the front of the court room and
then showed the jury how the marijuana was originally packaged
and how the packages had been altered in order to perform testing.
The marijuana stayed in the court room throughout the rest of the
proceedings without objection from defense counsel. However, we
do not find that the failure to object resulted in either deficient
representation or prejudice.
[*P34] Instead, having the marijuana in the court room was trial
strategy. Perkins asserted throughout trial that he did not know that
the vehicle in which he was a passenger contained 103 pounds of
marijuana. During opening arguments, defense counsel stated,
"Ladies and gentlemen of the jury, using your common sense is a
really good idea. How many of you can tell that the marijuana is in
the room with us right now? Not one. Look there. Now if you can't
smell it and it's right there, this man will say he can't smell it and it
will be a reasonable statement." Defense counsel did not object to
the presence of the marijuana because he hoped that the jury would
believe that Perkins could have ridden in the car without being
aware of the presence of the marijuana in the car because they
themselves were unable to smell the marijuana. The fact that the
jury chose not to believe Perkins' story, however, does not render
Perkins' assistance of counsel ineffective. Moreover, the marijuana
was that actually seized from the vehicle in which Perkins was a
passenger, and the state had the right and duty to present evidence
regarding the charges against Perkins.
[*P35] Perkins argues that "the fact finder was likely inflamed by
the amount of drugs, and unlikely to consider the fact that the
prosecution did not sufficiently connect Mr. Perkins to these large
amounts of drugs being displayed." However, Perkins' argument
regarding what was "likely" does not demonstrate a reasonable
probability that, but for the marijuana being in the court room, the
result of the proceeding would have been different. Simply stated,
Perkins has failed to demonstrate that he received ineffective
assistance of counsel. As such, Perkins' final assignment of error is
overruled.
State v. Perkins, supra.
Perkins has failed to demonstrate any error on the part of the Twelfth District in deciding
this claim. It fails the first prong of the Strickland test because it was not deficient performance
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but in fact trial strategy.

Defense counsel was attempting to undermine Trooper Smart’s

testimony about the obvious smell of raw marijuana by asking the jury if it was so obvious to
them, exposed as they were to it. The fact that, in retrospect, the strategy did not work does not
mean it was ineffective assistance of trial counsel to try.
The second part of this claim – failure to object that the marijuana did not appear the
same in the courtroom as it did when it was seized – is procedurally defaulted because it was
never presented to the state courts. Moreover, there is no suggestion of evidence tampering:
Trooper Smart testified what had been done to the marijuana to make it available for testing.
Ground Three for Relief should therefore be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
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.

March 19, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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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
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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