Boscarino v.Warden, Lebanon Correctional Institute

Filing 13

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of a ppealability 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 7/20/2015. Signed by Magistrate Judge Michael R. Merz on 7/1/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NIKOLAOS BOSCARINO,
Petitioner,

:

- vs -

Case No. 3:15-cv-72
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

ERNIE MOORE, Warden,
Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 11) to
the Magistrate Judge’s Report and Recommendations recommending dismissal and denial of a
certificate of appealability (the “Report,” Doc. No. 10). District Judge Rice has recommitted the
case for reconsideration in light of the Objections (Doc. No. 12).
Boscarino pleads the following grounds for relief:
Ground One: The prejudicial effect of allowing evidence
regarding Petitioner’s history as a Mixed Martial Arts fighter
denied Petitioner his right to a fair trial.
Supporting Facts: 1) Petitioner’s counsel filed a motion in limine
in the trial court seeking to exclude this evidence due to its
prejudicial effect; 2) the trial court overruled the motion in limine
and admitted the evidence; 3) the trial court instructed the jury
during voir dire that “Defendant is a mixed martial arts fighter”; 4)
An investigating officer testified about finding several cards in
Petitioner’s wallet identifying him as a mixed martial arts fighter,
and about doing internet research confirming that Petitioner was a
mixed martial arts fighter; 5) The prosecutor mentioned that
Petitioner was a mixed martial arts fighter twice during his closing

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argument; 6) No evidence was presented regarding Petitioner’s
training, experience, or record as a mixed martial arts fighter.
Ground Two: Petitioner’s trial counsel provided ineffective
assistance due to his failure to renew the objection at trial to
evidence regarding Petitioner’s history as a mixed martial arts
fighter.
Supporting Facts: 1) Petitioner’s counsel filed a motion in limine
in the trial court seeking to exclude this evidence due to its
prejudicial effect; 2) the trial court overruled the motion in limine
and admitted the evidence; 3) the trial court instructed the jury
during voir dire that “Defendant is a mixed martial arts fighter”; 4)
An investigating officer testified about finding several cards in
Petitioner’s wallet identifying him as a mixed martial arts fighter,
and about doing internet research confirming that Petitioner was a
mixed martial arts fighter; 5) The prosecutor mentioned that
Petitioner was a mixed martial arts fighter twice during his closing
argument; 6) Petitioner’s trial counsel failed to object to any of
these references or testimony, thus waiving the issue for any direct
appeal, and forcing Petitioner’s appellate counsel and current
counsel to assert ineffective assistance of counsel.
Ground Three: The evidence presented at trial was insufficient to
support Petitioner’s conviction.
Supporting Facts: 1) No witness was able to testify as to the
cause of Officer’s Smith’s injury to the back of his head, 2) Off.
Smith had no idea how he injured the back of his head, 3) Off.
Smith’s injuries are attributable to other, previous injuries, 4) The
State was required to prove Petitioner knowingly caused serious
physical injury to Off. Smith, 5) Because no evidence was
presented as to the cause of Off. Smith’s concussion to the back of
his head, the State failed to meet its burden beyond a reasonable
doubt.

(Petition, Doc. No. 1.)

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Analysis

Ground One: Prejudicial Admission of Boscarino’s Mixed Martial Arts (“MMA”) Status

In his First Ground for Relief, Boscarino asserts he was denied a fair trial when the trial
judge allowed the jury to learn in several different ways that he was a mixed martial arts fighter
(Brief in Support of Petition, Doc. No. 2, PageID 24-29).
The Report concluded that Boscarino had procedurally defaulted on this claim because
(1) his trial attorney did not object on any of the three occasions when this fact was mentioned
during trial and (2) admission of the evidence was not raised as an assignment of error on appeal
(Report, Doc. No. 10, PageID 1478-85).
Boscarino attempts to excuse the lack of contemporaneous objection by claiming it was
ineffective assistance of trial counsel not to make those objections. Ineffective assistance of
counsel can excuse a procedural default, but that claim must be presented in the first instance to
the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000). Boscarino did so as his Third
Assignment of Error on direct appeal. The Second District Court of Appeals found that the
evidence was relevant to the charges made and therefore it was not ineffective assistance of trial
counsel to fail to object. State v. Boscarino, 2014-Ohio-1858, ¶¶ 19-23, 2014 Ohio App. LEXIS
1819 (2nd Dist. May 2, 2014)(quoted verbatim in the Report, Doc. No. 10, at PageID 1482-84).
A habeas court confronted with an ineffective assistance of counsel claim that has been
decided on the merits in the state courts must give two levels of deference, one to the lawyer
whose conduct is in question and one to the state courts that evaluated that performance. Burt v.
Titlow, 134 S. Ct. 10, 15-16 (2013), citing Harrington v. Richter, 562 U.S. 86, 105 (2011). The
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Second District’s reasoning that it cannot be deficient performance to fail to object to admissible
evidence is perfectly compatible with Strickland v. Washington, 466 U.S. 668 (1984).
Not only did Boscarino default by failing to make contemporaneous objections at trial,
his new counsel on appeal also failed to raise the issue on appeal. The Report also found that
procedural default was unexcused and indeed Boscarino never filed an Application under Ohio
App. R. 26(b) to raise that claim.
Boscarino spends four pages of his Objections discussing the merits of this claim –
explaining why this evidence was so prejudicial (Doc. No. 11, PageID 1498-1501). He criticizes
the Report for only spending three sentences on the merits. Id. at 1498. But a habeas corpus
court cannot consider the merits of a procedurally defaulted claim, and Boscarino’s First Ground
for Relief was defaulted in both the trial and appellate courts.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground Boscarino asserts his trial attorney was ineffective for failing to
make the objections to his mixed martial arts status at trial. The Report rejects this claim
because the Second District found the evidence was admissible and, as noted above, there can be
no deficient performance in failing to object to admissible evidence.
In this second part of the Objections, Boscarino argues again that the evidence was not
admissible. The Report notes that questions of admissibility of evidence do not rise to the level
of constitutional claims unless the admitted evidence 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

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221, 223 (6th Cir. 1975).
Boscarino accepts this rule as a matter of principle, but argues this particular evidence did
deny him a fair trial. He cites Bugh v. Mitchell, 329 F.3d 496 (6th Cir. 2003), but in that case the
Sixth Circuit held that even prior bad acts evidence did not rise to a constitutional level. He also
cites Hodge v. Hurley, 426 F.3d 368 (6th Cir. 1975), but that case involved prosecutorial
misconduct and not the admission of allegedly irrelevant evidence. “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 v. United States, 493 U.S. 342, 352 (1990).
Also in his Objections on Ground Two, Boscarino argues two completely new instances
of alleged ineffective assistance of trial counsel: (1) failure to present the defense of “excited
delirium” and (2) failure to claim Boscarino’s punching Officer Smith was the result of his
“flail[ing] about” after being Tased (Objections, Doc. No. 11, PageID 1502). These claims of
ineffective assistance of trial counsel were never raised in the state courts nor are they pled in the
Petition (See Doc. No. 1, PageID 7). They were not raised in the Reply and Petitioner never
sought to amend to add them, so they were not considered in the Report.
[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits
de novo review by the district court if timely objections are filed,
absent compelling reasons, it does not allow parties to raise at the
district court stage new arguments or issues that were not presented
to the magistrate. See United States v. Waters, 158 F.3d 933, 936
(6th Cir. 1998) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27
(10th Cir. 1996) ("issues raised for the first time in objections to
magistrate judge's report and recommendation are deemed
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waived")); see also Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.
1994); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale
Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna Ready Mix,
Inc. v. N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299, 1302-03
(S.D. Ill. 1990).
Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000).
The Objections on Ground Two are unpersuasive.

Ground Three: Insufficient Evidence

Boscarino’s Third Ground for Relief is that he was convicted on insufficient evidence.
The Report cites the general standard for such claims adopted in Jackson v. Virginia, 443
U.S. 307 (1979), and the double deference owed to the trial jury and state court of appeals when
these claims have been decided on the merits in state court (Report, Doc. No. 10, PageID 148587). It then quotes at length the Second District’s analysis of the evidence. Id. at PageID 148791.
In his Objections Boscarino does not seem to question that there was sufficient evidence
to show he struck Officer Smith repeatedly, twice when he was standing and once after he had
been knocked down.

While the “serious physical injury” element was contested at trial,

Boscarino does not now seem to claim there was insufficient evidence to prove that element.
Instead he now says that without the mixed martial arts evidence “there is no evidence that Mr.
Boscarino knowingly caused serious harm to Officer Smith.” (Objections, Doc. No. 11, PageID
1504.) That is just not so. As the Court of Appeals found, Smith watched Boscarino urinate in
public and told him he was going to issue a citation.
When Smith attempted to escort Boscarino to his police cruiser,
Boscarino adopted a fighting stance. Smith stepped back, pulled
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out his taser, and warned Boscarino to cooperate. Boscarino
responded by putting his hands down and appearing to relax. As
Smith was putting his taser away, however, Boscarino punched
him twice in the face. The blows knocked Smith to the ground.
Eyewitness Nicholas Folan then saw Boscarino lean over and
deliver a "vicious" blow to Smith's head as he lay on the concrete.
State v. Boscarino, supra, ¶ 4. The mixed martial arts evidence was not necessary, given this
testimony, to prove that Boscarino acted knowingly and that he caused serious physical harm.
But even if the mixed martial arts evidence were necessary, it was admitted and heard by the
jury, so the evidence was not somehow insufficient for omitting it.
Boscarino’s Third Ground for Relief is without merit.

Conclusion

Having reviewed the case in light of the Objections, the Magistrate Judge again
respectfully recommends 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.

July 1, 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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