United States District Court, S.D. Ohio, Eastern Division, Columbus
STEPHEN M. GARRISON, Petitioner,
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.
A. Sargus, Jr. Chief Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
a habeas corpus case brought pro se by Petitioner
Stephen M. Garrison to obtain relief from his conviction for
aggravated burglary in the Muskingum County Court of Common
Pleas. The case is before the Court for decision on the
merits on the Petition (ECF No. 3), the State Court Record
(ECF No. 7), the Return of Writ (ECF No. 8), Petitioner's
Traverse (ECF No. 11), the Warden's response to the
Traverse (ECF No. 12), the Petitioner's Supplemental
Response (ECF No. 17), and the Warden's reply to the
Supplement (ECF No. 18).
Magistrate Judge reference in this case was recently
transferred to the undersigned to help balance the Magistrate
Judge workload in the District (ECF No. 19).
was indicted by the Muskingum County, Ohio, Grand Jury on
January 12, 2017, on one count of domestic violence and one
count of aggravated burglary (Indictment, State Court Record,
ECF No. 7, Ex. 1, PageID 90-91). A trial jury found him not
guilty of domestic violence but guilty on the burglary count
and he was sentenced to eleven years imprisonment. Garrison
appealed, but the conviction and sentence were affirmed.
State v. Garrison, 5th Dist. Muskingum
No. CT2017-0034, 2018-Ohio-1048 (. Mar. 22, 2018); appellate
jurisdiction declined, 153 Ohio St.3d 1442 (2018). On
September 26, 2018, Garrison filed his Petition in this
Court, pleading the following grounds for
The Petitioner's Sixth Amendment to the United States
Constitution (along with analogous State constitutional
guarantees) rights were violated when the criminal felony
state trial court admitted hearsay testimony which prevented
Petitioner from the constitutional right to confront
witnesses in violation of the Confrontation Clause.
The trial court admitted testimony that is considered hearsay
which violates Garrison's Sixth Amendment right to
confront witnesses against him and or cross-examine them.
Specifically, Deputy Hamilton and Deputy Williams testified
at trial as to statements that were supposedly made by Nikki
Dickinson and Brian Hohnwald.
Garrison argued that the admission of these statements was in
direct violation of the primary purpose of the confrontation
clause which did not ensure Garrison's right of
cross-examination, this argument was raised on direct appeal
and to the state's highest court.
This right is a procedural guarantee that ensures that the
reliability of testimony be tested by cross-examination. When
Garrison was unable to cross-examine the statements the
deputies introduced it fundamentally violated Garrison's
Sixth Amendment to the U.S. Constitution. When the
trier-of-fact, in this case the jury, was not afforded an
opportunity to evaluate the truth of prior statements,
denying them the accuracy of truth determining process in
criminal trials it violated the Confrontation Clause
contained in the Sixth Amendment. The Confrontation privilege
of the Sixth Amendment provides ample opportunity for both
the defendant to cross[-]examine witnesses and for the jury
to observe witnesses. It is commonly held that the defendant
to cross-examine witnesses is an indispensable ingredient,
while the right for the jury to observe witnesses is an
Garrison's Sixth Amendment's right to confront
witnesses against him is a fundamental right essential to a
fair trial and is made obligatory on states by the due
process clause of Fourteenth Amendment; confrontation clause
of Sixth Amendment is thus enforceable against states under
Fourteenth Amendment according to same standards which
protect right to confrontation against federal encroachment.
Garrison asserts that his Sixth Amendment right to confront
witnesses against him was violated by the admission into
evidence of statements made by Nikki Dickinson and Brian
Hohnwald through the testimony of Deputies Hamilton and
On direct appeal, the Fifth Appellate District reviewed this
issue and incorrectly determined that as Garrison's trial
attorney did not raise this issue in the form of an objection
that it was somehow not preserved for review on the merits,
but was reviewed under the guise of plain error. Yet, in this
case, Petitioner's counsel did object asserting a
‘Confrontation Clause' objection.
The Appellate Court held that the objection as raised was
untimely, which presents a prima facie example of ineffective
assistance of counsel, which is a violation of yet another
Constitutional Amendment to effective counsel in violation of
Petitioner's Sixth Amendment guarantees.
The Appellate Court did review the error under the standard
of review for plain error. The Ohio Supreme Court has
clarified this standard and stated in summary that the error
must be obvious, that it affected substantial rights and that
it must have affected the outcome of the proceedings.
The testimony of any detective or police officer holds
substantial weight with any jury. Thus, when the deputies
testified and Garrison could not cross examine those
statements, it established a set of facts that are wildly
inaccurate and violates Garrison's Sixth and Fourteenth
Constitutional Amendments (along with violations of Section
10, Article I of the Ohio Constitution).
The Petitioner was deprived of the effective assistance of
counsel contrary to the State and Federal Constitutions,
guaranteed by the Sixth Amendment and Article 10, Section 1
of the Ohio Constitution.
The Sixth Amendment to the United States Constitution, made
applicable to the States by and through the Fourteenth
Amendment to the United States Constitution and guaranteed by
Article 10, Section I of the Ohio Constitution provides that
a criminal defendant has the right to effective assistance of
Petitioner's trial counsel was ineffective in his
representation at Garrison's trial. There are multiple
instances where counsel failed to perform his duties.
Petitioner recognizes that the long held [sic]
interpretations of Strickland v. Washington are
arduous, yet, Petitioners counsel fell below an objective
standard of reasonable representation and those errors
resulted in the fact that the proceedings would have been
From Ground One, it is apparent that Garrison's counsel
failed to raise an objection on the Confrontation Clause at
the exact moment it happened. Counsel did assert this
objection later, which fundamentally changed the outcome of
the trial because if Garrison prevailed on that objection it
would have changed the trial.
Counsel did not file a motion in limine seeking to limit
statements of witnesses as well as prior bad act evidence
known to counsel.
Counsel was ineffective in failed to file a motion to
suppress statements Garrison made to law enforcement
Counsel never attempted to focus the jury pool's
attention on the State's burden of proof and waive[d] an
opening statement where counsel could have focused the jury
on the State's burden of proof.
Counsel failed to use peremptory challenges to excuse jurors
who may have been biased.
Counsel failed to object to out of court statements on the
basis of violation of the Confrontation Clause (which is
contained in Ground One of this Petition).
Counsel on cross continued to ask a series of question to
Deputy Hamilton which allowed him to continue to testify as
it relates to this out of court statements.
Counsel failed to object when Deputy Hamilton spoke about the
element of the offense, namely “fleeing[.]”
Counsel was ineffective when counsel opened the door to
admission of the statements of Brian Hohnwald when counsel
asked Deputy Williams if anyone he spoke to told him they
witnessed a physical interaction between Garrison and
Dickinson (the alleged victim).
Counsel was ineffective because counsel should have objected
to Williams' testimony (when Hohnwald told Williams that
Garrison kicked the door in, when Williams' [sic] never
saw this event take place).
Counsel should have continued to object to the
prosecutor's characterization of the evidence regarding
“fleeing” and Garrison's intent to
“confront” Wilt at the residence.
Counsel erred in failing to object to the court instructing
the jury they could consider fleeing as evidence of guilt.
Counsel was ineffective in failing to request lesser-included
Over and over again Garrison's counsel failed to perform
her duties in representing her client. It is clear from the
record that there isn't just one instance of ineffective
assistance but the calumniation [sic] of numerous instances
of ineffectiveness. This fundamentally changed the outcome of
The Petitioner's guilty verdict for aggravated burglary
does not meet the sufficiency of the evidence and is contrary
Petitioner raised this issue on appeal, stating that his
guilty verdict for aggravated burglary is against the
manifest weight of the evidence and is contrary to law.
Appellate Counsel indicated that the jury clearly lost their
way and in doing so created a manifest miscarriage of justice
that should reverse Petitioner's conviction and a new
The undersigned agrees that this Court would lack
jurisdiction to consider this claim challenging the weight of
the evidence because it raises a state-law issue that does
not implicate federal constitutional concerns. The contents
of Petitioner's ground were raised on direct appeal, in
that they were argued as sufficiency-of-evidence even though
they were characterized in summary to state “manifest
weight of the evidence[.]” Appellate Counsel did state
that the resulting conviction is a manifest miscarriage of
justice, which would waive any and all procedural defaults
that may be asserted by the Respondent.
While there is a difference between “manifest weight of
the evidence” and sufficiency-of-the evidence,
appellate counsel on appeal incorporate a sufficiency of the
evidence argument. Moreover, this ground includes an issue of
due process, which is subject to review on the merits.
Petitioner did not default the sufficiency-of-evidence claim
that was raised to and considered by the Ohio Court of
Appeals even though as he referred to the issue in his
memorandum in support of jurisdiction on further appeal to
the Ohio Supreme Court.
Petitioner was convicted of aggravated burglary in violation
of R.C. 2911.1 l (A)(1):
“(A) No. person, by force, stealth, or deception, shall
trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure, when
another person other than an accomplice of the offender is
present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the
structure any criminal offense, if any of the following
(1) The offender inflicts, or attempts or threatens to
inflict physical harm on another[.]” Petitioner asserts
and argued that the evidence does not demonstrate he entered
the apartment with purpose to commit a criminal offense, and
further does not demonstrate he inflicted physical harm, or
attempted or threatened to inflict physical harm.
Petitioner becaue [sic] the jury found him not guilty of
domestic violence, they rejected the testimony that he struck
Dickinson with the box of marbles, and therefore the finding
he inflicted, or attempted or threatened to inflict, physical
harm is against the manifest weight of the evidence or does
not meet the sufficiency of the evidence standard, either
legal or factual sufficiency.
Specifically, R.C.2919.25(A) defines the offense of domestic
violence as, “No person shall knowingly cause or
attempt to cause physical harm to a family or household
member.” Household member is defined by R.C.2919.25(F):
(F) As used in this section and sections 2919.251 and 2919.26
of the Revised Code:
(1) "Family or household member" means any of the
(a) Any of the following who is residing or has resided with
(i) A spouse, a person living as a spouse, or a former spouse
of the offender;
(ii) A parent, a foster parent, or a child of the offender,
or another person related by consanguinity or affinity to the
(iii) A parent or a child of a spouse~ person living as a
spouse, or former spouse of the offender, or another person
related by consanguinity or affinity to a spouse, person
living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is
the other natural parent or is the putative other natural
(2) “Person living as a spouse” means a person
who is living or has lived with the offender in a common law
marital relationship, who otherwise is cohabiting with the
offender, or who otherwise has cohabited with the offender
within five years prior to the date of the alleged commission
of the act in question.
Petitioner's trial counsel raised a Crim. R. 29 motion
for a directed verdict of acquittal and the evidence was
insufficient to establish the elements of the offense of
domestic violence and likewise, the elements to convict for
aggravated burglary were not present either.
This argument was addressed on direct appeal and to the Ohio
Supreme Court in the memorandum in support of jurisdiction as
a sufficiency of the evidence argument.
Petitioner was denied due process when he was convicted of
Aggravated Burglary despite that the elements of the offense
were not present.
The trial court erred when it imposed the maximum consecutive
sentence of eleven years in violation of the Sixth Amendment
as well as due process violations arising from the trial
court's failure to afford him the protections of Ohio law
when imposing a maximum sentence.
Petitioner was denied his Sixth Amendment rights and was
denied due process when the trial court sentenced Garrison to
an illegal sentence under Ohio law as his sentence
constituted the maximum possible sentence for these
convictions without the requisite findings by the trial
Ohio Revised Code [§] 2953.08(G)(2) sets forth the
standard of review for all felony sentences in Ohio. Under
this code the appellate courts may increase, reduce or
otherwise modify a sentence that is appealed under this
section or may vacate the sentence and remand the matter to
the sentencing court for resentencing.
At sentencing the trial court has a duty to consider the
principles and purposes of sentencing, to essentially balance
the factors as required by Ohio Revised Code [§§]
2929.11, 2929.12 and 2929.14 prior to imposing a consecutive
sentence, in Petitioner's case, the trial court failed to
do so. The trial court fails to perform this function even if
they provide “lip service” by using the
“magical words” when imposing sentence.
Garrison filed a direct appeal as to this issue. The
Appellate Court entered into a fact finding expedition and
was able to find that there are possible relevant factors to
support the imposition of this sentence based on
Petitioner's extensive criminal history and a history of
probation violations. Nevertheless, this is a Due Process
violation. The trial court is required to make these findings
prior to imposing sentence, not after and certainly not by an
The record that was considered by the trial court does not
support the sentencing court's findings, and the sentence
is otherwise contrary to law. Petitioner has shown by clear
and convincing evidence that the trial court erred and
violated his Sixth Amendment rights as well as Due Process
(Petition, ECF No. 3, PageID 67-68, 70-71, 73-74, 77.)
One: Violation of the Confrontation Clause
First Ground for Relief, Garrison argues Sixth Amendment
right to confront the witnesses against him was violated when
the trial court allowed Deputy Sheriffs Hamilton and Williams
to testify to statements made to them on the scene by Nikki
Dickinson and Brian Hohnwald.
asserts this testimony also violated his rights under
analogous provisions of the Ohio Constitution. 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). Therefore, this Court will not consider the alleged
violations of the Ohio Constitution.
Ground One, Respondent raises the affirmative defense that it
is procedurally defaulted (Return, ECF No. 8, PageID 351).
Petitioner responds that either there was no procedural
default or he can show cause and prejudice to excuse it or
not to hear this claim on the merits would work a manifest
miscarriage of justice (Traverse, ECF No. 11, PageID 391-407,
supported by 111 single-spaced endnotes, PageID 434-520.)
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. Engle v. Isaac, 456 U.S. 107, 110 (1982);
Wainwright v. Sykes, 433 U.S. 72 (1977).
“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) (quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996);
Murray v. Carrier, 477 U.S. 478, 485 (1986);
Engle, 456 U.S. at 110; Wainwright, 433
U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court-that is, claims that
the state court denied based on an adequate and independent
state procedural rule. E.g., Beard v. Kindler, 558
U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is
an important “corollary” to the exhaustion
requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those
cases in which a state prisoner fails to exhaust state
remedies, a habeas petitioner who has failed to meet the
State's procedural requirements for presenting his
federal claims has deprived the state courts of an
opportunity to address” the merits of “those
claims in the first instance.” Coleman, 501
U.S., at 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640. The