United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court for decision on the merits. Upon initial review of the
Petition (ECF No. 1), the Court ordered the State to answer
the Petition and set a date twenty-one days after the return
was filed for Petitioner to file a reply/traverse (ECF No.
2). In compliance with the Order, the Attorney General has
filed the state court record (“SCR”, ECF No. 6)
and a Return of Writ (ECF No. 7). The time within which
Petitioner was to have filed a reply has expired and no reply
has been filed. The case is therefore ripe for decision.
was indicted by the Lucas County Grand Jury on December 6,
2011, on one count of aggravated robbery (Ohio Revised Code
§ 2911.01(A)(1)), with a firearm specification (Count
1); and two counts of aggravated murder (Ohio Revised Code
§ 2903.01(A) and (F)), each with a firearm specification
(Counts 2 and 3) (ECF No. 6, State Court Record Exhibit 1,
PageID 33). The trial jury found him guilty as charged and
sentenced to life imprisonment without parole (SCR, ECF No.
6, PageID 84).
appealed to the Ohio Sixth District Court of Appeals raising
the following assignments of error:
1. The trial court erred by permitting the State to play the
video of two alleged gang members standing with a
semi-automatic “assault style” rifle.
Patton's Constitutional right to Confront Witnesses was
violated and it was improper hearsay.
2. The trial court erred and abused its discretion through
the admission of the video, the Russian SKS 45 rifle, gang
evidence and statements made by Serrano and her son were more
prejudicial than probative. The video, rifle and other gang
evidence was not relevant.
3. The State failed to properly authenticate the You Tube
video in violation of Evid.R. 901(A). As such, Patton was
denied his right to a fair trial.
4. The trial court erred by allowing the prosecutor to engage
in improper impeachment of Patton's alibi witness
including an unprosecuted event while she was in junior high
school and an allegation in a police report, neither of which
resulted in a conviction.
5. The verdicts were against the manifest weight of the
6. The trial court erred by not granting Patton's motion
to suppress the out-of-court identifications made of Patton
from photo arrays. The identifications were made contrary to
Ohio statutory law and in violation of his right to due
process of law.
7. Patton did not receive the effective assistance of counsel
to which he has a Constitutional right.
8. If this Court agrees with certain assignments of error and
holds in favor of Patton, then the state's case must fail
due to insufficient evidence.
9. The prosecutor engaged in a pattern of misconduct that was
intentionally designed to prejudice the jury in order to
obtain a conviction at all costs.
(SCR, ECF No. 6, PageID 91.) The Sixth District affirmed the
convictions and sentence. State v. Patton,
2015-Ohio-1866, 2015 Ohio App. LEXIS 1783 (6th
Dist. May 15, 2015), appellate jurisdiction declined, 144
Ohio St.3d 1426 (2015). The instant habeas corpus petition
followed on March 6, 2017 (ECF No. 1).
pleads the following grounds for relief:
GROUND ONE: Violation of the Confrontation clause and
improper hearsay in violation of the United States
Constitution Fifth Amendment.
Supporting Facts: The trial court erred by permitting the
State to play a video with two alleged gang members with
semi-automatic “assault style” rifles [SKS 47
rifle] and other gang violence not relevant to the case.
GROUND TWO: The trial court erred by allowing the prosecutor
to engage in improper impeachment of Petitioner's alibi
witness under Evid. R. 608(B), including an unprosecuted
event while she was in junior high school and an allegation
in a police report, neither of which resulted in a
conviction, in violation of the United States Constitution.
Supporting Facts: The trial court allowed the prosecution to
impeach Petitioner's alibi witness with allegation in a
police report from high school which did not result in a
GROUND THREE: The jury verdicts were against the manifest
weight of the evidence.
Supporting Facts: The jury verdicts did not support the
evidence presented in this case.
GROUND FOUR: The trial court erred by not granting
Petitioner's motion to suppress the out-of-court
identification of Petitioner made from photo arrays, which
were contrary to law and in violation of the due process
clause of the United States Constitution.
Supporting Facts: The trial court violated Petitioner's
right to a fair trial by allowing out-of-court photo
identifications of Petitioner.
Id. at PageID 4, 6, 7, and 9.
One: Confrontation Clause
First Ground for Relief, Patton asserts the trial court
violated his rights under the Confrontation Clause by
permitting the prosecutor to play a video with two alleged
gang members with semi-automatic rifles and other gang
violence not relevant to the case.
Warden asserts Ground One is barred by Patton's
procedural defaults in presenting this claim to the Ohio
courts, both by making no contemporaneous objections in the
trial court and then by failing to appeal to the Ohio Supreme
Court from an adverse appellate ruling on this claim (Return,
ECF No. 7, PageID 2609-13).
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, 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
claim may become procedurally defaulted in two ways."
Lovins v. Parker, 712 F.3d 283, 295 (6th
Cir. 2013), quoting Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006). First, a claim is
procedurally defaulted where state-court remedies have been
exhausted within the meaning of § 2254, but where the
last reasoned state-court judgment declines to reach the
merits because of a petitioner's failure to comply with a
state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust
state court remedies, and the remedies are no longer
available at the time the federal petition is filed because
of a state procedural rule. Id.
to raise a constitutional issue at all on direct appeal is
subject to the cause and prejudice standard of Wainwright
v. Sykes, 433 U.S. 72 (1977). Murray v.
Carrier, 477 U.S. at 485; Mapes v. Coyle, 171
F.3d 408, 413 (6th Cir. 1999); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994);
Leroy v. Marshall, 757 F.2d 94, 97 (6th
Cir.), cert denied, 474 U.S. 831 (1985). Failure to
present an issue to the state supreme court on discretionary
review constitutes procedural default. O'Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).
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
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).
has a relevant procedural rule that requires making an
objection to trial court error at the time it occurs.
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). The Sixth Circuit
has repeatedly held this rule is an adequate and independent
state ground for 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).
Sixth District Court of Appeals actually enforced this rule
against Petitioner. It held:
[*P36] Under assignment of error No 1,
appellant argues that the trial court erred by permitting the
state to play a video of two alleged gang members with a
semi-automatic rifle at trial. Appellant contends that
admission of the video violated his Sixth Amendment right to