United States District Court, S.D. Ohio, Western Division
H. Rice, District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
habeas corpus case, brought by petitioner with the assistance
of counsel, is before the Court on Petitioner's
Objections (ECF No. 11) to the Magistrate Judge's Report
and Recommendations (the “Report, ” ECF No. 9).
District Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 12).
pleads one ground for relief under the Fourth Amendment:
GROUND ONE: The search warrant for
Terrell's hotel room was facially deficient because it
was overly broad and lacked sufficient particularity, and the
exclusionary rule should be applied.
(Petition, ECF No. 1, PageID 5.)
Warden argued that merits review of this claim in habeas was
barred by the doctrine of Stone v. Powell, 428 U.S.
465 (1976), as applied in the Sixth Circuit in Riley v.
Gray, 674 F.2d 522 (6th Cir. 1982) (Return of
Writ, ECF No. 7, PageID 748, quoting Stone, 428 U.S.
at 493, 494; Riley, 674 F.2d at 527.). The Report
accepted that argument and concluded merits review was
precluded by Stone (ECF No. 9, PageID 765).
had raised his scope and particularity claim, the claim he
makes here, as his second assignment of error on direct
appeal. The Ohio Second District Court of Appeals reviewed
this claim only for plain error because it had not been
raised in the trial court and affirmed. State v.
Terrell, 2nd Dist. Clark No. 2016-CA-32,
2017-Ohio-7097, 95 N.E.3d 870, ¶ 67 (Aug. 4, 2017),
appellate jurisdiction declined, 2018-Ohio-723 (2018).
Objections, Terrell argues that this holding of the Second
District “applied a procedural bar that does not exist
in Ohio” law and which therefore was an
“unanticipated and unforeseeable application of a
procedural rule which prevent[ed] state court consideration
of the merits of the claim, ” bringing the Petition
within an exception to Stone (ECF No. 11, PageID
773, 774, quoting Riley, 674 F.2d at 527). Terrell
asserts this procedural bar was unanticipated because of the
Supreme Court of Ohio's decision in State v.
Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565,
¶¶ 106-08. The Castagnola Court held that
“[w]hen an issue of law that was not argued below is
implicit in another issue that was argued and is presented by
an appeal, we may consider and resolve that implicit
issue.” Id. at ¶ 67 (brackets in
original) (internal quotation marks and citation omitted).
Terrell asserts the Castagnola decision is
“central to [his] arguments in his Petition.”
(Objections, ECF No. 11, PageID 773).
Second District was certainly aware of Castagnola,
quoting that decision in its own opinion. Terrell,
2017-Ohio-7097, at ¶ 66, quoting Castagnola,
2015-Ohio-1565, at ¶ 79. It did not discuss any portion
of Castagnola which according to Terrell allowed it
to consider de novo any particularity or scope
argument raised for the first time on appeal. Instead, as
precedent for applying only plain error review, it cited its
own precedent. Id. at ¶ 67, quoting State
v. Zwick, 2ndDist. Miami No. 2013 CA 4,
2014-Ohio-230, ¶ 18 (2nd Dist. 2014).
careful reading of Castagnola shows that it does not
support Petitioner's position for the following reasons:
First, unlike Petitioner here, Castagnola argued lack of
particularity in both the trial and appellate courts.
2015-Ohio-1565, at ¶ 69. Terrell made that argument only
the Supreme Court of Ohio did not adopt a
general rule that particularity could be
raised on appeal when it was omitted in the court below;
instead, it held that it “may” in a particular
case consider “an issue of law that was not argued
below [when that issue] is implicit in another issue that was
argued and is presented by an appeal [to the Supreme
Court].” Id. at ¶ 67 (internal quotation
marks and citation omitted). As is well established, the
jurisdiction of the Supreme Court of Ohio is almost entirely
discretionary. The fact that it chooses to exercise that
discretion to decide an issue presented but not decided below
does not imply that courts of appeal are free to do that.
Terrell did not cite Castagnola to the Second
District for the proposition for which he relies on it here,