White v. Warden Ross Correctional Institution

Filing 18

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 11/27/2017. Signed by Magistrate Judge Michael R. Merz on 11/13/2017. (kpf)(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
SAMUEL M. WHITE,
Petitioner,

:

- vs -

Case No. 3:17-cv-111
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
Ross Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Samuel White under 28 U.S.C.
§ 2254. White seeks relief from his conviction in the Montgomery County Common Pleas Court
on two counts of murder and two counts of felonious assault, all with firearm specifications
(Petition, ECF No. 3, PageID 84, ¶ 5). The case is argued in the Petition (ECF No. 3), the Return
of Writ (ECF No. 11) and Petitioner’s Reply and Traverse (ECF No. 17).
White pleads the following grounds for relief:
Ground One: The trial court abused its discretion in allowing
expert cell phone analysis that was unreliable and inadmissible
under Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993).]
Supporting Facts: A witness for the State, FBI Agent Kevin
Horan, testified at Petitioner's trial. Horan testified about his
analysis regarding Petitioner's cell phone cell cite location on the
night of the homicide. His analysis was incomplete because his
analysis did not have the cell phone location prior to 10:30 pm.
See, memorandum in support (Exhibit A).

1

Ground Two: The trial court abused its discretion by allowing a
witness to testify about an alleged threat made before the shooting.
Supporting Facts: During trial State witness Stacy McGee
testified about an alleged threat that Petitioner made to Coatney. It
was testified that the threat had been made one year and a half to
two years prior to Petitioner's trial. See, memorandum in support
(Exhibit A).
Ground Three: Petitioner’s convictions were not supported by
sufficient evidence.
Supporting Facts: The State’s case was circumstantial. The
State’s case was based on witness Lawrence’s testimony that
Petitioner confessed to him that he killed Coatney. Lawrence also
testified that Petitioner told him a month after the crime what he
did with the gun. However, Lawrence lied during trial. There was
[sic] inconsistencies in the previous statements that Lawrence
made and his trial testimony. There was an issue with the bullet
casings claimed to been found in Petitioner’s vehicle. See,
memorandum in support (Exhibit A).
Ground Four: The trial court erred in allowing evidence to be
presented on the issue of flight.
Supporting Facts: During trial the State argued that Petitioner
fled the scene and requested a flight instruction. During the
investigation WHITE was identified as the suspect and he did not
make any effort to evade. Petitioner called the police to meet with
them. There was no evidence presented that WHITE fled to a
location where he could not be located or that he evaded police
ance [sic] detected. See, memorandum in support (Exhibit A).
Ground Five: Petitioner was rendered ineffective assistance of
trial counsel.
Supporting Facts: In the case there was video surveillance tape
from the movie theatre that was not preserved by police. Trial
counsel did not raise the [sic] or file a motion to dismiss the
charges based upon the State's failure to preserve the potentially
exculpatory evidence.
During trial, counsel failed to cross examine Adell Lawrence on
the previous statements that he made. Lawrence’s testimony was
inconsistent with his previous statements. See, memorandum in
support (Exhibit A).
2

(Petition, ECF No. 3.)
Procedural History

Bryan Coatney was shot to death outside the front door of his home in Dayton, Ohio, on
April 21, 2012. White was indicted for the murder on October 24, 2012. Prior to trial he gave
notice of an alibi. A jury convicted White on all counts. After merger under Ohio Revised Code
§ 2941.25, the trial judge sentenced him to fifteen years to life for murder, plus three years for
one firearm specification.

White appealed to the Second District Court of Appeals which

affirmed his conviction. State v. White, 37 N.E. 3d 1271 (2nd Dist. Aug. 28, 2015). The Ohio
Supreme Court declined jurisdiction over a further appeal. State v. White, 144 Ohio St. 3d 1411
(2015). White filed two applications to reopen under Ohio R. App. P. 26(B), both of which were
dismissed as untimely filed. He filed the instant Petition on March 1, 2017.

Analysis

Ground One: Improper Admission of Expert Testimony

In his First Ground for Relief, White claims that the cell site analysis offered at trial by
F.B.I. Special Agent Kevin Horan should not have been admitted because it did not satisfy the
standard adopted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Respondent objects that a question on the admissibility of evidence is a matter of state law, not
3

federal constitutional law, and White’s First Ground is therefore not cognizable in habeas corpus.
In his Memorandum in Support, White acknowledges that violations of state law are not
cognizable unless “such violations are of Constitutional magnitude.” (ECF No. 3, PageID 100.)
He also asserts all of his constitutional law claims have been presented to the state court. Id. In
his Reply, Mr. White argues that admission of Agent Horan’s testimony was a violation of his
rights under the Due Process Clause of the Fourteenth Amendment
White’s First Assignment of Error on direct appeal asserted that it was error (abuse of
discretion) to allow Agent Horan to testify to cell-sector analysis under Ohio R. Evid. 702
(Appellant’s Brief, State Court Record, ECF No. 10, PageID 306-12). This claim was not
presented to the Second District as a constitutional claim and indeed on its face it is not
presented to this Court in that way. In his Brief on appeal, Mr. White did not mention the Due
Process Clause nor cite any federal constitutional case law at all. Nor did the Second District
Court of Appeals understand it was deciding a federal constitutional question. See State v.
White, supra, at ¶¶ 23-31
Ohio R. Evid. 702 was adopted by the Ohio Supreme Court in its present form on July 1,
1994, shortly after the Daubert decision. It made many of the concepts in the Daubert decision a
part of Ohio evidence law. But Daubert is not a decision of federal constitutional law, so that a
failure to meet the Daubert standard does not qualify as a violation of the federal Constitution.
That is to say, the United States Supreme Court has never held that failure of evidence to meet
the Daubert standard rises to the constitutional level.
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

4

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). Abuse of discretion by a trial judge also does not rise to the level of
a constitutional violation. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Because Petitioner did not fairly present his Daubert question to the Second District Court
of Appeals as a constitutional question, he has procedurally defaulted on that claim. But even
without the procedural default, the First Ground for Relief must be dismissed because there is no
Supreme Court precedent for treating a Daubert objection as a constitutional matter.

Ground Two: Improper Admission of a Threat Made to the Victim

In his Second Ground for Relief, White claims his rights to due process and a fair trial were
violated when a witness was permitted to testify that he had made a death threat to the victim one
and one-half to two years before the victim was killed.
The Warden asserts this claim also was not fairly presented to the Second District as a
federal constitutional issue and in any event does not state a habeas claim because there is no
federal constitutional prohibition on presenting evidence of this kind.
Mr. White replies “Petitioner maintains that this claim does amount to a due process
violation the same way that he asserts his first claim amounts to a due process violation.”
(Reply, ECF No. 17, PageID 1794).
White also did not fairly present this claim as a federal constitutional claim to the Second
District on direct appeal. Instead, his Second Assignment of Error alleged the trial judge had

5

abused his discretion under Ohio R. Evid. 404(B) by allowing this testimony. (Appellant’s Brief,
State Court Record, ECF No. 10, PageID 312-14). The Second District considered the claim
purely as a matter of state law. State v. White, supra, ¶ 32.

The appellate court resolved the

issue as one of state evidence law, concluding that the threat was probative of a long-standing
feud between White and the victim over a woman and therefore probative of a motive for the
shooting. Id.
This Court cannot review the correctness of the Second District’s ruling on a matter of state
law. To the extent White raises a federal constitutional claim, it is without merit. The Supreme
Court has never held that improper admission of other bad acts evidence constitutes a due
process violation or denial of fair trial. “There is no clearly established Supreme Court precedent
which holds that a state violates due process by permitting propensity evidence in the form of
other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (noting that the
Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991)).
Ground Two should therefore be dismissed, both as procedurally defaulted for failure to
fairly present it and as without merit as a federal constitutional claim.

Ground Three: Insufficient Evidence

In his Third Ground for Relief, Mr. White asserts his conviction is not supported by
sufficient evidence. He presented this claim to the Second District on direct appeal and they
decided the issue as follows:

C. Sufficiency and weight of the evidence

6

[*P39] The third assignment of error alleges that White's

convictions are not supported by sufficient evidence and are
against the manifest weight of the evidence.
[*P40] White argues that the state presented no credible evidence

that puts him at the murder scene. He says that Adell Lawrence's
testimony contains numerous inconsistencies, that the casings
found in his Tahoe are problematic, and that there is no evidence
that he and Coatney had a contentious relationship at the time of
the shooting.
[*P41] "A sufficiency of the evidence argument disputes whether
the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or sustain the verdict as a
matter of law." State v. Hunter, 2d Dist. Montgomery No. 24844,
2013-Ohio-1469, ¶ 27, quoting State v. Wilson, 2d Dist.
Montgomery No. 22581, 2009-Ohio-525, ¶ 10; see also State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997 Ohio 52, 678 N.E.2d
541 (1997). "When reviewing whether the State has presented
sufficient evidence to support a conviction, the relevant inquiry is
whether any rational finder of fact, after viewing the evidence in a
light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt." Id.,
citing State v. Dennis, 79 Ohio St.3d 421, 430, 1997 Ohio 372, 683
N.E.2d 1096 (1997). A guilty verdict will not be disturbed on
appeal unless "reasonable minds could not reach the conclusion
reached by the trier-of-fact." Dennis at 430.
[*P42] White was convicted of felony murder for causing Coatney's

death as a result of shooting him (felonious assault), in violation of
R.C. 2903.02(B), which pertinently provides that "[n]o person
shall cause the death of another as a proximate result of the
offender's committing * * * an offense of violence that is a felony
of the first or second degree." Adell Lawrence testified that White
admitted to him that he had killed Coatney because he was tired of
Coatney "effing" with him. (Tr. 717, 718, 719) (Sept. 25, 2014).
Lawrence also testified that White told him that he had gotten rid
of the gun on the bank of the river near White's house, which is
where a gun linked to White was found. White had bought the gun
a week before the murder along with ammunition that matched the
casings found in his Tahoe and at the scene. While the particular
gun that fired the bullets could not be identified, it was determined
that the bullets were fired by a weapon with the same class
characteristics as White's gun. Immediately after shots were heard,
a dark SUV was seen speeding away from the murder scene, which

7

SUV McGee identified as White's blue Tahoe. The evidence is
sufficient to establish the essential elements of felony murder.
State v. White, supra.
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 v. Virginia, 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. A sufficiency
challenge should be assessed against the elements of the crime, not against the elements set forth
in an erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S.Ct. 709, 193
L. Ed. 2d 639 (2016).
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:
8

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
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)(emphasis in original). 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 the 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); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a
court may sustain a conviction based upon nothing more than circumstantial evidence.” Stewart
v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
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
9

federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651 (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam).
Petitioner’s arguments on this Ground for Relief are the kinds of arguments properly
made to a jury on closing argument – arguments about the weight of the evidence. But to prevail
in habeas corpus on an insufficiency claim, a petitioner must show that there is no evidence on a
particular element of the crime or that the evidence presented is such that no rational juror could
have believed it. So Mr. White argues that the witness who claimed White admitted the crime
and what he did with the gun is a liar or there were inconsistencies between different statements
he made. But those are not sufficient to take the case away from the jury.
Petitioner’s Third Ground should be dismissed on the merits.

Ground Four: Evidence of Flight and Jury Instruction on Flight

In his Fourth Ground for Relief, Petitioner asserts the trial court erred in admitting
evidence of flight and in instructing the jury on that issue (Petition, ECF No. 3, PageID 93). The
Warden asserts that the claim that the evidence should not have been admitted is not cognizable
in habeas corpus because it is purely a matter of state law (Return, ECF No. 11, PageID 177680). The claim related to the instruction is procedurally defaulted, the Warden argues, because
White made no contemporaneous objection to it. Id. White does not treat his Fourth Ground in
his Traverse.
10

This claim was presented to the Second District on direct appeal; it decided the claim as
follows:
D. Evidence of White's flight

[*P46] The fourth assignment of error alleges that the trial court
erred by allowing evidence to be presented on the issue of flight.
The supporting argument, however, is that the trial court abused its
discretion by giving the flight instruction.
[*P47] White failed to object to the instruction, so all but plain
error has been forfeited. State v. Lott, 51 Ohio St.3d 160, 167, 555
N.E.2d 293 (1990). "For plain error to exist, the defect in the trial
proceedings must be obvious and must have affected the outcome
of the trial." State v. Conley, N.E.3d , 2015-Ohio-2553, ¶ 30
(2d Dist.), citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio4642, 873 N.E.2d 306, ¶ 16. "Notice of plain error 'is to be taken
with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.'" State v. Lang, 129
Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108, quoting
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus.
[*P48] "Flight means some escape or affirmative attempt to avoid
apprehension." State v. Wesley, 8th Dist. Cuyahoga No. 80684,
2002-Ohio-4429, ¶ 19, citing United States v. Felix-Gutierrez, 940
F.2d 1200, 1207 (10th Cir.1991). Evidence of flight is admissible
as tending to show consciousness of guilt. State v. Wood, 2d Dist.
Clark No. 2010 CA 42, 2011-Ohio-2314, ¶ 30. "Evidence of flight
to support an inference of guilt should generally be limited to
situations when the activities associated with flight occur at a time
and place near the criminal activity for which the defendant is on
trial." Id., citing State v. Frock, 2d Dist. Clark No. 2004 CA 76,
2006-Ohio-1254, ¶ 57. But admissibility does not depend on how
much time passes between the offense and the defendant's flight.
State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151,
¶ 169. The flight need not be immediate. The instruction may be
appropriate when the defendant, a long-time resident of the area in
which the crime occurred, was arrested months later in another
state or another part of this state. See, e.g., State v. Woods, 1st Dist.
Hamilton Nos.C-130413, C-130414, 2014-Ohio-3892, ¶ 61.
Accord State v. Jackson, 9th Dist. Lorain No. 11CA010012, 2012Ohio-3524, ¶ 17; State v. Villa, 9th Dist. Lorain No. 05008773,
2006-Ohio-4529, ¶ 31; State v. Hudson, 8th Dist. Cuyahoga No.
91803, 2009-Ohio-6454, ¶ 52-53; State v. Craig, 8th Dist.
Cuyahoga No. 94455, 2011-Ohio-206, ¶ 32.
11

[*P49] The state filed an unopposed motion asking the trial court to

instruct the jury on flight as consciousness of guilt. The court gave
the jury this instruction:
Testimony has been admitted indicating that the
Defendant fled the scene. You are instructed that flight
alone does not raise a presumption of guilt but it may tend
to indicate the Defendant's consciousness or awareness of
guilt.
If you find that the facts do not support that the Defendant
fled or if you find that some other motive prompted the
Defendant's flight or if you are unable to decide what the
Defendant's motivation was, then you should not consider
this evidence for any purpose.
However, if you find that the facts support that the
Defendant engaged in such conduct and you decide that
the Defendant was motivated by a consciousness or
awareness of guilt, you may but are not required to
consider that evidence in deciding whether the Defendant
is guilty of the crimes charged. You alone will determine
what weight, if any, to give to this evidence.
(Tr. 1231-1232) (Sept. 25, 2014).
[*P50] White contends that the evidence does not warrant a flight

instruction. We disagree. An inference could be made from the
evidence that White fled to Texas. When he left, he had been
questioned twice about the murder, and he knew that police knew
he was lying about his gun being stolen. White also knew that
police had found shell casings on the driver's side floor of his
vehicle. And he knew that police had recovered the gun and that
they knew he bought it a week before the murder.
[*P51] Ultimately, though, the flight instruction is all but

innocuous. It explains the limited use of the flight evidence and
clearly says that the jury may consider White's flight only if it
finds that he was "motivated by a consciousness or awareness of
guilt." And even if the jury finds that this motivated him, the
instruction says that it still is not required to consider the flight
evidence. We do not believe that giving the jury this particular
instruction could have affected the outcome of the trial.
State v. White, supra.
12

The Warden is correct that admission of evidence of flight is a matter of Ohio evidence law
and not cognizable in habeas corpus. 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).
Alleged errors in jury instructions normally do not rise to the level of federal
constitutional violations.

See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland

Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th
Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975).
The Warden also asserts the instruction claim is procedurally defaulted by White’s failure
to object. The procedural default doctrine in habeas corpus is described by the Supreme Court as
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
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,

13

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.
....
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 v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
14

Ohio has a procedural rule that requires a contemporaneous objection to trial court error
so that the trial court can correct it. Ohio’s contemporaneous objection rule — that parties must
preserve errors for appeal by calling them to the attention of the trial court at a time when the
error could have been avoided or corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960),
paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an
adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334
(6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson,
632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields
v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);
Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th
Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107,
124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v.
Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert.
denied, 562 U.S. 876 (2010).
In this case the Second District enforced the contemporaneous objection rule by
reviewing the jury instruction only for plain error. State v. White, supra, ¶ 47. An Ohio state
appellate court’s review for plain error is enforcement, not waiver, of a procedural default.
Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511
(6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431
F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v.
Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000)(plain error review does not constitute a waiver of procedural default); accord, Mason v.
Mitchell, 320 F.3d 604 (6th Cir. 2003).

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Accordingly, the Fourth Ground for Relief should also be dismissed.

Ground Five: Ineffective Assistance of Trial Counsel

In his Fifth Ground for Relief, Mr. White asserts he received ineffective assistance of trial
counsel in two respects (1) when trial counsel failed to file a motion to dismiss on the basis of
the State’s failure to preserve potentially exculpatory evidence, to wit, the surveillance video
from the movie theater where White claimed he was at the time of the shooting; and (2) failure to
properly cross-examine Adell Lawrence (Petition, ECF No. 3, PageID 111-13).
Petitioner preserved this claim for federal habeas review by presenting it to the Second
District on direct appeal as his Fifth Assignment of Error. That court decided the claim as
follows:

E. Claim of ineffective assistance of counsel
[*P53] The fifth assignment of error alleges that White's trial
counsel rendered ineffective assistance.
[*P54] White contends that counsel's not filing a motion to dismiss
based on the state's failure to preserve potentially exculpatory
evidence constitutes ineffective assistance of counsel. White also
contends that counsel's failure to properly cross-examine Adell
Lawrence violated White's right to a fair trial. The state argues that
counsel had no obligation to file a motion to dismiss and that
counsel's cross-examination of Lawrence was reasonable.
[*P55] The standard for defense counsel's conduct was established
by the U.S. Supreme Court in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984), and adopted by the
Ohio Supreme Court in State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989). Strickland holds that when a defendant
complains of the ineffective representation of counsel, the
defendant must show that counsel's performance fell below an
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objective standard of reasonableness. Strickland at 687-688.
Judicial scrutiny of counsel's performance must be highly
deferential. Id. at 689. A reviewing court must indulge a strong
presumption that counsel's performance falls into the wide range of
reasonable professional assistance. Id. The defendant must also
show that there is a reasonable possibility that but for the
unprofessional errors of counsel the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
[*P56] On the Monday after the murder, a detective went to the
theater White claimed to have been at Saturday night to see if there
was any helpful surveillance video. The detective discovered that
many of the cameras did not work, and because the cameras were
intended to deter employee theft, none was positioned to clearly
show patrons entering or leaving. One working camera was
pointed at the box-office, but it captured only patrons entering the
theater and only from the waist down. There was no video of
customers leaving the theater, and there are no cameras in the
parking lot. The detective reviewed the video from the box-office
camera for the night of the murder but saw nothing helpful, so he
did not collect it. The video was automatically erased after six
months.
[*P57] White says that the box-officer surveillance video was
exculpatory evidence that should have been preserved. White says
that his alibi defense—that he was at the theater and could not have
made it to the scene of the murder by the time the murder
occurred—would have been substantially strengthened with video
showing him at the movie theatre.
[*P58] "The Due Process Clause of the Fourteenth Amendment to
the United States Constitution protects a criminal defendant from
being convicted where the state fails to preserve materially
exculpatory evidence or destroys in bad faith potentially useful
evidence." (Citation omitted.) State v. Bolden, 2d Dist.
Montgomery No. 19943, 2004-Ohio-2315, ¶ 51. There is a
distinction between "materially exculpatory evidence and
potentially useful evidence. If the evidence in question is not
materially exculpatory, but only potentially useful, the defendant
must show bad faith on the part of the state in order to demonstrate
a due process violation." State v. Geeslin, 116 Ohio St.3d 252,
2007-Ohio-5239, 878 N.E.2d 1, ¶ 9, citing Arizona v. Youngblood,
488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In order to be
materially exculpatory, "evidence must both possess an
exculpatory value that was apparent before the evidence was
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destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means." California v. Trombetta, 467 U.S. 479, 489, 104
S.Ct. 2528, 81 L.Ed.2d 413 (1984).
[*P59] Here, there is nothing that suggests that the video showed
White at all. And even if it did, the most that it would have shown
is the time that White arrived at the theater. As the state points out,
what time he arrived is not important; it is what time he left that is
critical. No surveillance video would have shown that. So while
the video might have had some value to his defense, it is not
"materially exculpatory." Also, there is no evidence that the state
had a hand in destroying the video or acted in bad faith.
[*P60] White also contends that the testimony of Adell Lawrence,
who testified that White confessed to him, is full of inconsistencies
that could have been exposed on cross-examination.
[*P61] During Lawrence's interview with a detective on August
24, 2012, he said that a month after the shooting White told him
what he did with the gun. But Lawrence testified that he called
Crime Stoppers thirteen days after the shooting and told them that
he knew where the gun was. Lawrence also told the detective that
White had wiped down the gun but told Crime Stoppers that John
Fisher wiped it down. Lawrence testified that he had no discontent
towards White, but during his interview Lawrence conveyed the
opposite. Lawrence also said that he did not know about the bad
history (restraining orders, violence, and vandalism) between Ivery
and Coatney. But Ivery testified that Lawrence did know about it.
Lawrence's testimony that he went to White's house the day after
the shooting is contradicted by White's and Ivery's testimony that
he did not. Counsel's failure to explore these areas on crossexamination, says White, constitutes ineffective assistance and
denied him a fair trial.
[*P62] The state points out that by cross-examining Lawrence on
these minor inconsistencies counsel would have given Lawrence
the opportunity to clear up any confusion or correct small mistakes
that he might have made in his prior responses. The state also
points out that counsel knew that White and Ivery would deny that
White confessed to Lawrence, so further cross-examination of
Lawrence on this would not have made much difference. Counsel
simply let the apparent inconsistencies in Lawrence's testimony
stand uncorrected and then used them in closing arguments to
show that Lawrence could not be believed when he testified that
White had confessed to him and told him where he had thrown the
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gun. Indeed, counsel suggested to the jury that Lawrence invented
the confession after White decided to break up with his
stepdaughter.
[*P63] The extent and scope of cross-examination clearly falls
within the ambit of trial strategy, and debatable trial tactics do not
establish ineffective assistance of counsel. State v. Linville, 10th
Dist. Franklin No. 04AP-917, 2005-Ohio-3150, ¶ 31. We cannot
say that counsel's cross-examination of Lawrence was objectively
unreasonable.
[*P64] The fifth assignment of error is overruled.
State v. White, supra.
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).
Regarding the erased surveillance tape, the Second District thoroughly analyzed its lack
of materiality and Mr. White’s contrary assertion that there is videotape showing him leaving the
theater is just that – assertion. He refers to no evidence of record for this assertion.
Regarding cross-examination of Mr. Lawrence, the Second District explained why it was
not only trial strategy, but good trial strategy, to refrain from further cross examination.
Mr. White has not shown the Second District’s decision on the fifth ground for relief is
an unreasonable application of Strickland v. Washington, supra.

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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.

November 13, 2017.
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 mail. .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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