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
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
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).
Objections are organized around each of the four grounds for
relief and this Report will consider them in that order.
One: Violation of the Confrontation Clause
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
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).
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.
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.
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.
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
Two: Ineffective Assistance of Trial Counsel
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.
are thirteen sub-claims under this Ground for Relief, treated
separately below to the extent the Objections require it.
One: Failure to Contemporaneously Object to Confrontation
sub-claim is dealt with in Ground One and Garrison makes no
objection separate form that made on Ground One.
Two: Failure to File Motion in Limine
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).
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
Three: Failure to File Motion to Suppress Statements
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 ¶ 23). That is a state court finding of fact entitled
to deference unless shown incorrect by clear and ...