United States District Court, S.D. Ohio, Eastern Division
ALEX M. JAMES II, Petitioner,
TIM BUCHANAN, WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
Kimberly A. Jolson Magistrate Judge.
OPINION AND ORDER
A. Sargus, Jr. Chief Judge.
December 19, 2018, the Magistrate Judge issued a Report
and Recommendation recommending that the petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
dismissed. (ECF No. 9). Petitioner has filed an
Objection to the Magistrate Judge's Report and
Recommendation. (ECF No. 10). Pursuant to 28 U.S.C. §
636(b), this Court has conducted a de novo review. For the
reasons that follow, Petitioner's Objection (ECF No. 10)
is OVERRULED. The Report and
Recommendation (ECF No. 9) is ADOPTED
and AFFIRMED. This action is hereby
Court ISSUES a certificate of appealability.
challenges his conviction after a jury trial in the Muskingum
County Court of Common Pleas on possession of cocaine with a
major drug dealer specification. He asserts, as his sole
ground for relief, that the evidence is constitutionally
insufficient to sustain his conviction based on the
state's failure to establish the actual amount of
cocaine. The Magistrate Judge recommended dismissal of this
claim on the merits. Petitioner objects to that
maintains the state appellate court's denial of his
argument that state law required proof of the actual amount
of cocaine, improperly and unconstitutionally deprived him of
fair notice of the charge against him. See State v.
James, 5th Dist. No. CT2015-059, 2016 WL 6599952, at
*l-3 (Ohio Ct. App. Oct. 31, 2016). According to the
Petitioner, to uphold the state courts' decision would be
tantamount to allowing the interpretation of state statutes
by ex post factor "judicial fiat" and impermissible
expansion of a state's laws beyond the legislature's
plain intent, for example, by defining "cocaine" to
encompass the possession of lollipops, a non-contraband
substance. Objection (ECF No. 10, PAGE ID #789,
did not previously raise this same fair notice argument.
Significantly, he did not raise the issue in the Ohio Court
of Appeals. There, he argued solely that Ohio Rev. Code
§ 2925.11(C)(4)(f) required the prosecution to establish
that the actual amount of pure cocaine exceeded 100 grams.
See Brief of Defendant-Appellant (ECF No. 7, PAGEID
# 85-86). Thus, he has waived consideration of the issue
order to satisfy the exhaustion requirement in habeas corpus,
a petitioner must fairly present the substance of each
constitutional claim in the state courts as a federal
constitutional claim. Anderson v. Earless, 459 U.S.
4, 6 (1982). Although the fair presentment requirement is a
rule of comity, not jurisdiction, it is rooted in principles
of comity and federalism designed to allow state courts the
opportunity to correct the State's alleged violation of a
federal constitutional right that threatens to invalidate a
state criminal judgment. O 'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Castille v.
Peoples, 489 U.S. 346, 349 (1989). In the Sixth Circuit,
a petitioner can satisfy the fair presentment requirement in
any one of four ways: "(1) reliance upon federal cases
employing constitutional analysis; (2) reliance upon state
cases employing federal constitutional analysis; (3) phrasing
the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the
mainstream of constitutional law." McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Further,
general allegations of the denial of a constitutional right,
such as the right to a fair trial or to due process, are
insufficient to satisfy the "fair presentment"
in Petitioner's appellate brief would have alerted a
state appellate court that he intended to raise a claim of
the denial of fair notice or due process based on the state
court's interpretation of its own laws. Additionally, he
has not established cause for his failure to present this
claim to state courts. Therefore, he has waived the right to
present this issue in the first instance in these
the record does not reflect that the state courts adopted an
unexpected and indefensible judicial interpretation of the
statute so as to violate the Due Process Clause. Contrary to
Petitioner's argument, State v. Gonzales, 81
N.E.3d 419 (Ohio 2017) ("Gonzales IF') does
not "cause a Fifth Amendment problem that otherwise does
not exist." Objection (ECF No. 10, PAGE ID
well-established that the Fifth Amendment requires a criminal
statute provide fair notice of the conduct it punishes and
the severity of the punishment, including statutes fixing
sentences. Johnson v. U.S., 135 S.Ct. 2551, 2556-57
(2015). "The crucial test is 'whether the statute,
either standing alone or as construed, made it reasonably
clear at the relevant time that the defendant's conduct
could be criminally penalized.'" O'Neal v.
Bagley, 743 F.3d 1010, 1015 (6th Cir. 2013) (quoting
United States v. Lanier, 520 U.S. 259, 267 (1997)).
"[A] defendant's due process rights are violated
when a court applies a construction of the statute that
'is unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in
issue.'" Id. (quoting Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964)). The analysis
"begin[s] with the relevant statutory language and the
manner in which it had been construed by the Ohio courts
prior to the events in question." Id. at 1016.
was indicted on May 27, 2015 and convicted by a jury of one
count of possession of cocaine with a major drug dealer
specification on October 21, 2015. James,
2016WL6599952, at * 1-2. At the time of Petitioner's
relevant conduct, the offense was defined by statute in Ohio:
(C) Whoever violates division (A) of this section is guilty of
one of the following:
(4) If the drug involved in the violation is cocaine or a
compound, mixture, preparation, or substance containing
cocaine, whoever violates division (A) of this section is
guilty of possession of cocaine. The ...