United States District Court, S.D. Ohio, Western Division, Dayton
SAMUEL M. WHITE, Petitioner,
MARK HOOKS, Warden, Ross Correctional Institution, Respondent.
District Judge, Walter H. Rice
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
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).
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
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
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.)
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.
One: Improper Admission of Expert Testimony
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
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.
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
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).
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.
Two: Improper Admission of a Threat Made to the
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
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
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).
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.
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.”
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