United States District Court, S.D. Ohio, Eastern Division, Columbus
STEPHEN M. GARRISON, Petitioner,
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.
District Judge Algenon L. Marbley
SUBSTITUTED REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
habeas corpus case was brought by Petitioner Stephen M.
Garrison pro se pursuant to 28 U.S.C. Â§ 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, Â¶Â¶ 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.
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.)
Petition contains extensive pleading of supporting facts
which are reproduced below with the Ground for Relief to
which they pertain.
Default for Failure to Timely Appeal to the Supreme Court of
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.)
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.
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.
One: Improper Admission of Photographs
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
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
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.)
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).
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
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.
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.,
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.
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
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).
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.
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.
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. 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.
First Ground for Relief should be denied on the merits.
Two: Failure to Instruct on Disorderly Conduct as a Lesser
Included Offense or on Self-Defense
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
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.)
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.)
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
presentation of these issues on direct appeal was his second
assignment of error which the Fifth District decided as
[*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,