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Horton v. Tyack

United States District Court, S.D. Ohio, Eastern Division

February 12, 2018

MILES HORTON, Petitioner,
v.
JUDGE DAVID TYACK, et al., Respondents.

          MICHAEL H. WATSON JUDGE.

          REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers United States Magistrate Judge.

         Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ (ECF No. 8), Petitioner's Traverse (ECF No. 17), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

In the early morning hours of January 21, 2013, Sergeant Tim Myers of the Columbus Police Department was driving his police car north on High Street in the Short North area of Columbus, Ohio. Sergeant Myers encountered a car that was stopped in his lane. Sergeant Myers was required to stop. He observed people getting into the car and then the car proceeded northbound on High Street. Because the car impeded Sergeant Myers' ability to drive in the lane, he decided to pull the car over for violating Columbus City Code 2133.04(A) (impeding traffic)FN
FN. That charge is not at issue in this appeal
The car, driven by appellant, pulled into a parking lot. Sergeant Myers approached the car and made contact with appellant. Sergeant Myers noticed that appellant's eyes were glassy and bloodshot. He also smelled an odor of alcoholic beverages inside the car. Sergeant Myers suspected that appellant may have been impaired, so he asked him to recite the alphabet, starting at the letter D and ending at the letter X. Appellant attempted to do so but started with the letter E and said the letter U twice. At that point, Sergeant Myers asked appellant to exit the car to determine whether the alcohol smell was from appellant or from other people in the car. Once outside the car, Sergeant Myers could still smell a moderate odor of alcohol coming from appellant. Sergeant Myers asked appellant how many drinks he had that night. Appellant told him that he had two drinks two hours earlier and that he had also taken some anti-anxiety medicine. Sergeant Myers suspected that appellant was driving impaired.
At some point during the encounter, Columbus Police Officers William Scott and Jill Woolley arrived on the scene to assist Sergeant Myers. Sergeant Myers informed the officers of his observations of appellant before turning appellant over to them. Officers Scott and Woolley performed field sobriety tests (“FST”) on appellant. Both officers also thought that appellant's eyes were glassy and bloodshot and that he smelled of alcohol.
Officer Scott first asked appellant if he would take a portable breath test (“PBT”). He declined but agreed to perform other FSTs. Officer Scott first performed the horizontal gaze nystagmus test (“HGN”). During the test, Officer Scott observed six out of six clues indicating to him that appellant was impaired. Officer Woolley then performed two other FSTs: the walk-and-turn and the one-leg stand. Although appellant passed both of these tests, exhibiting only one clue on each test, Officer Woolley observed him swaying during the one-leg stand. Following these tests, appellant was arrested for OVI and taken to police headquarters. Officer Scott then performed an alcohol breath test on appellant. Appellant's test result was .108, which is over the legal limit.
As a result of these events, appellant was charged with two counts of operating a vehicle while under the influence in violation of Columbus City Code 2133.01(A)(1)(a) (“OVI impaired”) and 2133.01(A)(1)(d) (“OVI per se”).FNAppellant entered a not guilty plea to the charges and proceeded to a jury trial.
FN. OVI charges are referred to as either impaired or per se. See State v. Brand, 157 Ohio App.3d 451¶11-12 (1st Dist. 2004).
Before trial, appellant filed a motion to suppress the results of the FSTs he performed during the traffic stop as well as the results of the alcohol breath test he took while at police headquarters. At the motion hearing, appellant argued that the results of the alcohol breath test had to be suppressed because Officer Scott did not properly renew his operator's permit to conduct the test and that the police did not have probable cause to arrest him. The trial court overruled appellant's motion.
At trial, the officers testified to the above version of events. The video of the traffic stop, which included the walk-and-turn and the one-leg stand FSTs but not the HGN test, was also played to the jury. The jury ultimately acquitted appellant of the OVI impaired charge but found him guilty of the OVI per se charge. The trial court sentenced him accordingly . . . .
Appellant appeals his conviction and sentence and assigns the following errors:[1]
. . . THE TRIAL COURT VIOLATED APPELLANT'S RIGHT OF CONFRONTATION, RIGHT TO PRESENT A COMPLETE DEFENSE AND RIGHT TO HAVE THE JURY DETERMINE HIS GUILT BEYOND A REASONABLE DOUBT BASED UPON ALL RELEVANT EVIDENCE BY PROHIBITING CROSS-EXAMINATION OF THE STATE'S WITNESS REGARDING HOW THE BREATH MACHINE WORKS AND REGARDING THE SPECIFIC BREATH TESTING DEVICE USED TO TEST HIS BREATH AND REGARDING MATTERS THAT COULD HAVE CAUSED HIS SPECIFIC TEST RESULT TO BE LESS THAN ONE HUNDRED PERCENT ACCURATE . . . .

Columbus v. Horton, No. 13AP-966, 2014 WL 5306839, at *1-2 (Ohio App. 10th Dist. Oct. 16, 2014). On October 16, 2014, the appellate court affirmed the judgment of the trial court. Id. On May 20, 2015, the Ohio Supreme Court declined to exercise jurisdiction over Petitioner's subsequent appeal. Columbus v. Horton, 142 Ohio St.3d 1465 (2015).

         Through counsel, on November 16, 2015, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although Petitioner is not currently in custody, this Court nevertheless has jurisdiction because the trial court stayed Petitioner's sentence pending the outcome of his state court appeal and these federal habeas proceedings. (ECF No. 8-3, Page ID # 602, 787). See also Miskel v. Karnes, 397 F.3d 446, 450 (6th Cir. 2005) (citing McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1987) and Hensley v. Municipal Court, 411 U.S. 345, 348-49 (1973)). Petitioner challenges his conviction on the charge of OVI per se in violation of Columbus City Code 2133.01(A)(1)(D). Petitioner's asserts that he was denied the right to present a defense and to confront the witnesses against him when the trial court impermissibly prohibited him from cross examining Officer Scott about the potential impact that his flu symptoms and cell phone may have had on his breath test results. Petitioner further asserts that this evidence would have demonstrated that his flu symptoms and cell phone could have decreased the breath test's reliability and accuracy. Respondent contends that this claim lacks merit.

         Standard ...


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