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White v. Hooks

United States District Court, S.D. Ohio, Western Division, Dayton

November 13, 2017

SAMUEL M. WHITE, Petitioner,
v.
MARK HOOKS, Warden, Ross Correctional Institution, Respondent.

          District Judge, Walter H. Rice

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         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).
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).

(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 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 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 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. ...


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