United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz, Magistrate Judge.
habeas corpus case, brought by petitioner with the assistance
of counsel, is before the Court on Petitioner's
Objections (ECF No. 15) to the Magistrate Judge's
Supplemental Report and Recommendations (the
“Supplemental Report, ” ECF No. 13). The Warden
has also objected to the Supplemental Report (ECF No. 14) and
Terrell has responded to those Objections (ECF No. 17).
District Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 16).
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).
First Objections (ECF No. 11), Terrell argued 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 asserted 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, which he said was
“central to [his] argument in the Petition. The
Supplemental Report (ECF No. 13) distinguished
Castagnola in a number of ways.
had also argued that plain error review does not satisfy
Stone. Relying on Good v. Berghuis, 729
F.3d 636 (6th Cir. 2013), the Supplemental Report
disagreed. The Supplemental Report concluded by again
recommending dismissal, but agreeing a certificate of
appealability should issue on the breadth of reading of
Castagnola, to wit, whether that case
“required the Second District to provide full review,
rather than plain error review, on the particularity
issue.” (ECF No. 13, PageID 781-82).
Objections on the Merits
Petitioner objects on the merits, but does not raise issues
that were not considered in the Supplemental Report. The
Objections offer a careful reading of Castagnola
that competes with the Magistrate Judge's reading in the
Supplemental Report but does not persuade the undersigned
that his reading is incorrect.
Warden objects to the Magistrate Judge's recommendation
for issuance of a certificate of appealability because, he
says, a “state court's application of its own law
regarding what is the proper standard of review because
‘a state court's interpretation of state law,
including one announced on direct appeal of the challenged
conviction, binds a ...