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Garrison v. Gray

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

July 15, 2019

STEPHEN M. GARRISON, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Edmund A. Sargus, Jr. Chief Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 21) to the Magistrate Judge's Report and Recommendations (ECF No. 20) recommending dismissal of the case. Chief Judge Sargus has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Recommittal Order, ECF No. 22).

         The Objections are organized around each of the four grounds for relief and this Report will consider them in that order.

         Ground One: Violation of the Confrontation Clause

         In his First Ground for Relief, Garrison argues his 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 (Petition, ECF No. 3, PageID 67-68).

         The Report found that this claim was procedurally defaulted because trial counsel had not made a contemporaneous objection on a Confrontation Clause basis until the State rested its case and the Fifth District Court of Appeals held this default against Garrison (ECF No. 20, PageID 799-800). Although Garrison claimed this failure to object constituted ineffective assistance of trial counsel, the Fifth District Court of Appeals disagreed and found that if the objection had been made at the time the deputies testified, the State could have called the two witnesses. State v. Garrison, 5th Dist. Muskingum, No. CT2017-0034, 2018-Ohio-1048, ¶ 18 (Mar. 22, 2018).

         Garrison claims those two witnesses, one of whom was the victim of both this and prior domestic violence committed by Garrison, did not want to testify, but the Report notes there is no record evidence of this. The Report notes that if the witnesses would not come voluntarily, they could be subpoenaed and jailed for contempt if they refused to testify (ECF No. 20, PageID 800-01, citing Garrison, 2018-Ohio-1048, at ¶ 16.

         Garrison objects that

Magistrate Judge Merz is overreaching when he makes this statement. First. the analysis must be made on whether or not Ohio would have actually jailed Dickinson and Hohnwald had they failed to show for the subpoena if it had been issued. It is a common practice in Ohio that prosecutor offices do not hold alleged victims in jail when they refuse to testify in any particular type of criminal trial. Thus, as a matter of law, the Magistrate Judge's opinion that serious felony cases cannot be made to disappear just because witnesses do not want to testify is belied by practices employed by prosecutor's offices, not just in Ohio but throughout this country.

(Objections, ECF No. 21, PageID 833). Garrison offers absolutely no proof for this broad generalization about prosecutorial conduct. The Fifth District correctly held as a matter of law that if Garrison's trial attorney had made the Confrontation Clause objection contemporaneously with the alleged violation, it would have been open to the prosecution to call those witnesses. How they would have responded is a matter of speculation; Garrison's assertion that they did not want to testify has no record basis. By waiting until the State rested and could no longer call additional witnesses, trial counsel played the Confrontation Clause claim one way, which could well have been a strategic choice.

         Garrison next objects to the Report's reliance on the Fifth District's decision. Instead, the Magistrate Judge should have stayed the case “to have the Supreme Court of Ohio issue findings of fact and conclusions of law as to their determination” of the case (Objections, ECF No. 21, PageID 834.) This argument vastly overstates the authority of this Court. The jurisdiction of the Supreme Court of Ohio on appeal in felony cases is completely discretionary. That court is not compelled by law, including federal constitutional law, to explain its reasons for declining to exercise their discretionary jurisdiction. In this Court's experience, they do decline that jurisdiction in the vast majority of cases presented to them and they almost always do so with the summary form used in this case. State v. Garrison, 153 Ohio St.3d 1442, 2018-Ohio-2834.. On that same day, July 18, 2018, for example, the Supreme Court of Ohio declined to exercise appellate jurisdiction in fourteen felony appeals, using the same form in each case. 153 Ohio St.3d 1442.

         Garrison asserts not only that this Court cannot look through the Supreme Court of Ohio's opaque decision, but that no “opinion of the United States Supreme Court” allows us to do so. In fact, the Report cites Ylst v. Nunnemaker, 501 U.S. 797 (1991), which expressly held that where there has been one reasoned state court judgment rejecting a federal claim, there is a rebuttable presumption that later unexplained orders upholding the judgment or rejecting the same claim rest on the same ground (ECF No. 20, PageID 799, citing Ylst, 501 U.S. at 805). Ylst continues to be good law. A federal habeas court reviewing an unexplained state court decision on the merits “should ‘look through' that decision to the last related state court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 584 U.S.___, 138 S.Ct. 1188, 1192 (2018); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006).

         Ground Two: Ineffective Assistance of Trial Counsel

         In his Second Ground for Relief, Garrison asserts his trial attorney provided ineffective assistance of counsel. The Report noted that this claim had been presented to the Fifth District which, applying the correct federal standard, had found there was no ineffective assistance of trial counsel and denied relief (Report, ECF No. 20, quoting the Fifth District's opinion at length at PageID 802-05). The Report recommended deference to the Fifth District under 28 U.S.C. § 2254(d)(1) and (2). Id. at PageID 805-07. Garrison again objects to looking through the Supreme Court of Ohio's declination of jurisdiction, but that is mandatory practice under Ylst and Wilson, supra.

         There are thirteen sub-claims under this Ground for Relief, treated separately below to the extent the Objections require it.

         Sub-claim One: Failure to Contemporaneously Object to Confrontation Clause Violation

         This sub-claim is dealt with in Ground One and Garrison makes no objection separate form that made on Ground One.

         Sub-claim Two: Failure to File Motion in Limine

         Garrison claims his counsel was ineffective for failing to file a motion in limine to exclude prior bad acts evidence. The Fifth District rejected this claim because it was made only in very summary fashion without reference to any specific evidence that supposedly should have been excluded. Garrison, 2018-Ohio-1048, at ¶ 22. In his Traverse, Garrison cited one instance where Deputy Sheriff Hamilton testified about his prior conviction for domestic violence. The Report concluded there was no ineffective assistance of trial counsel in failing to move to exclude this evidence because the Indictment contained a prior domestic violence specification which the State was required to prove (Report, ECF No. 20, PageID 808-09).

         Now conceding that the State had to prove the prior convictions, Garrison claims it was ineffective assistance of trial counsel not to stipulate to them. That is a far different claim from the one made to the Fifth District, and cannot be introduced for the first time in a set of Objections. See, e.g., Barker v. Robinson, No. 3:19-cv-67, 2019 WL 1672896, at *3 (S.D. Ohio Apr. 17, 2019) (Merz, Mag. J.) (“A petition in habeas corpus cannot be amended by adding new claim in objections to a dispositive report and recommendations.”).

         Sub-claim Three: Failure to File Motion to Suppress Statements

         Garrison claims his attorney should have moved under Miranda v. Arizona, 384 U.S. 436 (1966).to suppress his statements to Deputy Hamilton (Petition, ECF No. 3, PageID 70). The Report noted that the Fifth District had decided as a matter of fact that Garrison asked to speak to Hamilton after Hamilton gave him the Miranda warnings (Report, ECF No. 20, PageID 809, citing Garrison, 2018-Ohio-1084, at ΒΆ 23). That is a state court finding of fact entitled to deference unless shown incorrect by clear and ...


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