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Garrison v. Gray

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

August 1, 2019

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

          District Judge Algenon L. Marbley

          SUBSTITUTED REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case was brought by Petitioner Stephen M. Garrison pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Muskingum County, Ohio, Court of Common Pleas on February 15, 2017 (Petition, ECF No. 3, PageID 37, ¶¶ 1-2). On order of Magistrate Judge Kimberly Jolson (ECF No. 2), the Respondent has filed the State Court Record (ECF No. 7) and a Return of Writ (ECF No. 8). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the workload in the District (ECF No. 13). Petitioner filed a Reply (ECF No. 14), making the case ripe for decision.

         Litigation History

         Garrison was indicted by a Muskingum County, Ohio, grand jury on one count of domestic violence with the specification that he had two or more prior domestic violence convictions (Indictment, State Court Record, ECF No. 7, PageID 69). Convicted by a trial jury, he was sentenced to thirty-six months imprisonment. He took a direct appeal to the Ohio Court of Appeals, which affirmed the conviction and sentence. State v. Garrison, Muskingum No. CT2017-18, 2018-Ohio-463, ¶¶ 6, 8, 64 (Ohio App. 5th Dist. Feb. 2, 2018). Garrison did not timely appeal to the Supreme Court of Ohio, and that court denied his motion for delayed appeal. State v. Garrison, 153 Ohio St.3d 1429, 2018-Ohio-2418. Garrison next filed his Petition in this Court, pleading the five grounds for relief discussed below. (Petition, ECF No. 3.)

         The Petition contains extensive pleading of supporting facts which are reproduced below with the Ground for Relief to which they pertain.

         Analysis

         Procedural Default for Failure to Timely Appeal to the Supreme Court of Ohio

         Respondent asserts all of Garrison's five grounds for relief are barred by his procedural default in failing to present them to the Supreme Court of Ohio in a timely direct appeal (Return of Writ, ECF No. 8, PageID 600, et seq.). Garrison responds that he “will not only demonstrate cause for any perceived default and actual prejudice, but additionally, will demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” (Traverse, ECF No. 14, PageID 657.)

         In the initial Report and Recommendations filed in this case, the Magistrate Judge recommended upholding the Warden's procedural default defense on the basis of this particular default (ECF No. 19). That Report was filed after receiving materials filed by the Warden in response to the Court's Order to Expand the Record (Order, ECF No. 15; Warden's Response, ECF No. 18), but before receiving materials tendered by Petitioner in reaction to that Order (ECF Nos. 20, 21). Only the Warden was ordered to expand the record, but the Magistrate Judge believes in fairness the Court should consider Petitioner's responsive materials.

         The materials added by expansion relate to whether Garrison's failure to timely file in the Supreme Court of Ohio is to be excused by failure of prison personnel to mail his appeal in time. The conflicting affidavits filed on this issue present a factual dispute which cannot be resolved on paper affidavits because resolution would depend on a credibility determination. Because procedural default in this case is a federal question on which the state courts did not develop a factual record, this Court is not precluded from hearing evidence by Cullen v. Pinholster, 563 U.S. 170 (2011). However, conducting such a hearing would waste scarce judicial resources as it would require issuance of writs of habeas corpus ad testificandum for Petitioner and his inmate witness as well as requiring the testimony of several prison employees. The Magistrate Judge believes the issue of procedural default based on failure to appeal to the Supreme Court of Ohio can, in the interest of judicial economy, be set to one side and the case resolved on the merits and/or on procedural default defenses on other bases.

         Analysis

         Ground One: Improper Admission of Photographs

         Petitioner pleads his First Ground for Relief as follows:

Ground One: The trial court erred by admitting State's Exhibits one (1) through five (5) in violation of Evid. R. 402 and 403, and in violation of equivalent and corresponding Federal Rules 402 and 403, as these exhibits did not accurately depict the contents purported and is a violation of Petitioner's right to a fair and impartial trial.
Supporting Facts: The State's Exhibits One (1), Two (2), Three (3), Four (4) and Five (5) were declared by the State to depict the alleged victim's speculative injuries, that of Nikki Dickinson. These photographs were taken by Deputy Hamilton while he was at the scene of the alleged domestic violence call.
Deputy Hamilton testified at trial. As these exhibits did not depict any injuries whatsoever, Deputy Hamilton testified that what he saw visually on scene is not depicted in the photographs and went on to state that he observed substantial injuries.
Defense Counsel objected to the admission of these photographs as exhibits. The trial court ruled and admitted the photographs, it specified the accuracy would have to be argued (Trial, Vol. I, P. 237).
The trier of fact, here - the jury - weighs heavily the testimony of law enforcement officials. The deputy testified that he visually saw injuries that were not present in the photographs. The photographs should not have been admitted as they violation Evid. R. 402 which states that "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible." And Evid. R. 403 which states that "(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
The Appellate Court determined that there was no prejudice to the Defendant in admitting these exhibits into the record.
However, Evid. R. 402 and 403 does [sic] not state that there must be prejudice, there are two other exclusions to these rules where there is confusion of the issues and misleading the jury. Clearly, the admission of this evidence would mislead jurors.
There is a conflict that is unresolved as it relates to this issue. The trial judge even acknowledged that this would be a contentious issue leaving it to be argued on appeal.

(Petition, ECF No. 3, PageID 42.)

         The Warden defends on the merits of Ground One by asserting that questions of the admission of evidence raise state evidentiary law questions which are not cognizable in habeas corpus (Return, ECF No. 8, PageID 612-15).

         Garrison responds generally that the photographs were misleading precisely because the jury would have to wonder why Deputy Hamilton took the photographs. (Traverse, ECF No. 14, PageID 673-77.)

         Both parties agree that the relevant law is summarized in Wilson v. Sheldon, 874 F.3d 470 (6th Cir. 2017), where the court held:

With regard to evidentiary rulings, the standard for habeas relief is not easily met. "[F]ederal habeas courts review state court evidentiary decisions only for consistency with due process." Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). "A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights." Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Moreover, such rulings "are usually not to be questioned in a federal habeas corpus proceeding." Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988)). Even if errors are made in the application of state law, "[such] errors . . . especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus." Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert. denied, 464 U.S. 962, 104 S.Ct. 396, 78 L.Ed.2d 338 (1983). If a ruling is especially egregious and "results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citing Coleman, 244 F.3d at 542). Importantly, however, as a general matter, "state-court evidentiary rulings cannot rise to the level of due process violations unless they 'offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour, 224 F.3d at 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)). Ultimately, states have wide latitude with regard to evidentiary matters under the Due Process Clause. Id.

874 F.3d at 475-76. Fundamentally, a federal habeas court does not sit as a court of appeals with respect to state court rulings on questions of state law. 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). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J., concurring).

         The question of whether a piece of evidence is admissible under Ohio R. Evid. 402 or excludable under Ohio R. Evid. 403 is a question of Ohio law, not federal law, much less federal constitutional law. Thus, Petitioner's pleading that admission of these exhibits violates Fed.R.Evid. 402 and 403 is not an issue in habeas corpus because those rules do not apply to state court trials.

         On appeal Garrison asserted as his First Assignment of Error

THE TRIAL COURT ERRED BY ADMITTING STATE'S EXHIBITS ONE THROUGH FIVE SINCE THE PHOTOGRAPHS DID NOT ACCURATELY DEPICT THE CONTENTS IN VIOLATION OF APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL.

State v. Garrison, 2018-Ohio-463 (5th Dist. Feb. 2, 2018).

[*P9] Appellant argues the court erred in admitting the photographs of N.D. taken at the scene by Deputy Brandon Hamilton because the testimony established they did not accurately depict N.D.'s injuries.
[*P10] Evid. R. 901(A) provides, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Accordingly, a photograph is admissible in evidence if it is shown to be an accurate representation of what or whom it purports to represent. State v. Hannah, 54 Ohio St.2d 84, 88, 374 N.E.2d 1359, 1362-63 (1978). "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Evid. R. 1003.
[*P11] The photographs admitted into evidence were copies of the original photographs taken by Deputy Hamilton. Dep. Hamilton initially testified the photographs were a fair and accurate depiction of N.D. on the night in question. Tr. 193. However, he later noted the photographs did not show the tea he observed on her shirt, and did not depict the scratch. Tr. 194, 195.
[*P12] On cross-examination, the deputy testified the copies were not as clear as the photographs he took because they were missing the stains on her shirt and the scratch on her stomach, and the bruise on her arm appeared darker in real life than on the copy of the photograph. Tr. 204, 207. He testified the pictures were accurate, but the quality was not good. Tr. 205. However, on further questioning, he testified the photos were not an accurate depiction of what she looked like on the night in question. Tr. 206. Finally, on redirect examination, he testified the photographs were not as clear as what they should be. Tr. 219.
[*P13] Appellant objected to admission of the photographs on the basis they were not accurate. The court admitted the photographs, stating, "The accuracy will have to be argued." Tr. 237.
[*P14] Unless the defendant has been materially prejudiced by the improper admission of evidence, an appellate court should not disturb the decision of the trial court. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Assuming arguendo admission of the photographs was error, Appellant has not demonstrated prejudice from their admission. The deputy testified the photographs did not accurately depict the extent of her bruising, nor the existence of tea on her shirt and a scratch on her stomach. Admission of photographs depicting less serious and fewer injuries than those testified to by N.D. was not prejudicial to Appellant's case, and Appellant has not demonstrated prejudicial error.
[*P15] The first assignment of error is overruled.

Id. In his Brief on appeal, Garrison did not argue the admission of these photographs was a violation of Ohio Evid. R. 402 or 403. Instead counsel argued they were not properly authenticated under Ohio R. Evid. 1003 and generally that their admission was prejudicial (State Court Record, ECF No. 7, Ex. 8).

         One way to interpret the Fifth District's decision is that the federal constitutional question was not fairly presented to it - no federal case law or constitutional provision was cited, for example. However, the Warden has not raised the defense of lack of fair presentation. The other way to look at the Fifth District's decision is to see its lack-of-prejudice ruling as essentially deciding the due process question Garrison raises: was he deprived of due process and a fair trial by admission of these photographs? As Wilson, supra, emphasizes, it is only when a state evidentiary error rises to the level of a denial of due process that it constitutes a federal constitutional violation. Because that would be a fair reading of the Fifth District's decision and allows this Court to reach the merits of Garrison's First Ground for Relief, the Court will adopt that reading.

         When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

         The Fifth District's decision that admission of the photographs resulted in no prejudice to Garrison amounts to a conclusion that their admission did not deny him a fair trial.[1] Viewed from a constitutional perspective, the Magistrate Judge agrees. Photographs that depict less severe injuries than the photographer saw and testified to would not prejudice a defendant. Instead, they would tend to undermine the photographer's testimony, especially here where the photographer was also the investigating law enforcement officer. Garrison does not contradict the Fifth District's finding that, as Deputy Hamilton admitted on cross-examination, the photographs show less severe injuries than he testified to. Garrison has pointed to no Supreme Court precedent holding admission of photographs of that sort violates the Due Process or Fair Trial Clauses.

         Garrison's First Ground for Relief should be denied on the merits.

         Ground Two: Failure to Instruct on Disorderly Conduct as a Lesser Included Offense or on Self-Defense

         Garrison pleads his Second Ground for Relief as follows:

GROUND TWO: THE TRIAL COURT VIOLATED PETITIONER'S RIGHTS PROTECTED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO DUE PROCESS AND THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT NEGLECTED TO PRESENT THE JURY WITH JURY INSTRUCTIONS. NAMELY, THE LESSER INCLUDED OFFENSES [SPECIFICALLY, DISORDERLY CONDUCT] AND SELF-DEFENSE WHEN THE EVIDENCE AT TRIAL WARRANTED BOTH.
Supporting Facts: The evidence presented at trial warranted the trial court to provide jury instructions of the lesser included offense of disorderly conduct and self-defense.

         The trial court, however, neglected to do so.

On appeal, Garrison addressed this issue and the appellate court reviewed this for plain error. The Appellate Court overruled this assignment of error.
At the time of the incident, Garrison was living with the alleged victim, Nikki Dickinson. It was established at trial and a review of the record clearly indicates that Nikki assaulted Garrison. Garrison withstood the brunt of this assault. In the course of the altercation, Garrison shielded himself but did not engage her by fighting back. Often times, when an altercation such as this occurs, the one who is guarding his or her self from the attack can inadvertently inflict unintentional damage to the aggressor, such as scrapes, bruises, or cuts [from nails, blocking motions from the hands, etc ... ].
Disorderly Conduct as defined by R.C. 2917.11 (A)(1) states that "No person shall recklessly cause inconvenience, annoyance, or alarm to another by ... [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]” This R.C. does not state that there has to be physical contact between the two parties. The statute simply states that no person shall recklessly cause inconvenience, annoyance or alarm to another ... by definition, this is what occurred between Garrison and Nikki, not Domestic Violence.
Domestic Violence is defined as, "No person shall knowingly cause or attempt to cause physical harm to a family or household member." Garrison did not cause or attempt to cause physical harm to Nikki, it was Nikki who was the aggressor and attacked Garrison. A review of the record clearly reflects this.
Moreover, Garrison was entitled to an affirmative defense of self-defense. As Garrison explained above, while defending oneself there are known instances where the aggressor inadvertently receives physical harm.
The trial court erred when it neglected to give the jury instruction to the trier-of-fact. This is a clear violation of Garrison's Sixth and Fourteenth Amendments to Due Process and the right to a Fair Trial.

(Petition, ECF No. 3, PageID 45.)

         The Warden defends Ground Two on the basis that it was procedurally defaulted by failure to make a contemporaneous objection to the instructions and that Supreme Court precedent does not establish any entitlement to lesser included offense instructions under the facts of this case (Return, ECF No. 8, PageID 615-22.)

         Petitioner acknowledges that a jury instruction error “must be [so] egregious that it renders the entire trial fundamentally unfair.” (Traverse, ECF No. 14, PageID 677.) He proceeds, however, to cite case law pertaining to jury instructions that should be given by a federal judge presiding over a trial, rather than situations in which habeas courts have found constitutional violations relating to jury instructions. Id. at PageID 678-79. He criticizes the Fifth District for only analyzing his lesser included offense claim under Ohio Revised Code § 2917.11(A)(1) rather than what he claims are other available disorderly conduct offenses. Id. at PageID 679-83. He then elaborates on his claim that he should have been allowed a self-defense instruction. Id. at PageID 683-86.

         Garrison's presentation of these issues on direct appeal was his second assignment of error which the Fifth District decided as follows:

[*P16] In his second assignment of error, Appellant argues the trial court committed plain error in failing to instruct the jury on the lesser-included offense of disorderly conduct and the defense of self-defense.
[*P17] Appellant concedes he did not request an instruction on the lesser-included offense of disorderly conduct or on self-defense. Failure to object before the jury retires, absent plain error, constitutes waiver. State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d 1279 (1990). The Ohio Supreme Court has recently clarified the standard of review for plain error:
Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings," State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, 759 N.E.2d 1240 (2002).
Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. We recently clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice-the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; we have "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting ...

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