United States District Court, N.D. Ohio, Eastern Division
AARON POLSTER, JUDGE
REPORT & RECOMMENDATION
M. PARKER, UNITED STATES MAGISTRATE JUDGE
Damarcus Lee Nicholson, seeks a writ of habeas corpus under
28 U.S.C. § 2254, claiming that his conviction and
sentence in State v. Nicholson, No. 2016 CR 1465A,
(Stark County, Ohio Court of Common Pleas), as affirmed in
State v. Nicholson, Fifth Dist. Stark No. 2016 CA
00210, 2017-Ohio-2825, 2017 Ohio App. LEXIS 1856, violated
his constitutional rights. ECF Doc. 1. Respondent Warden,
David W. Gray, has filed a return of writ. ECF Doc. 8.
Nicholson filed a traverse, which he entitled “motion
for federal relief pursuant to U.S.C. § 2254(D)”
on May 21, 2018. ECF Doc. 10. Warden Gray filed a response to
Nicholson's motion on May 29, 2018. ECF Doc. 11.
September 30, 2016, a jury found Nicholson guilty of
trafficking in heroin, possession of heroin, aggravated
trafficking in drugs and aggravated possession of drugs. ECF
Doc. 8-1 at 36. On October 11, 2016, after merging three of
Nicholson's charges, the trial court ordered him to serve
an eight-year prison term for trafficking in heroin and a
12-month term for aggravated possession of drugs, to be
served concurrently. ECF Doc. 8-1 at 46. Nicholson is
currently incarcerated at the Belmont Correctional
matter is before me by this Court's February 27, 2018
order of reference and Local Rule 72.2 for preparation of a
report and recommendation on Nicholson's petition.
Because Nicholson's Ground One claim lacks merit and his
Ground Two claim has been procedurally defaulted, I recommend
that the Court DISMISS Nicholson's claims for relief and
DENY his petition for writ of habeas corpus.
State Trial Court Conviction
August 10, 2016, a Stark County, Ohio grand jury indicted
Nicholson with one count of trafficking in heroin in
violation of Ohio Rev. Code § 2925.03(A)(2)(C)(6)(e),
one count of possession of heroin in violation of Ohio Rev.
Code § 2925.11(A)(C)(6)(d), one count of aggravated
trafficking in drugs in violation of Ohio Rev. Code §
2925.03(A)(2)(C)(1)(a), and one count of aggravated
possession of drugs in violation of Ohio Rev. Code §
2925.11(A)(C)(1)(a). ECF Doc. 8-1 at 5.
trial, Nicholson moved to suppress the evidence obtained from
a warrantless search of the rental car he was driving. ECF
Doc. 8-1 at 8. After a hearing, the trial court determined
that Nicholson did not have standing to object to the search
of the vehicle because he didn't own or lease the car; he
was not listed as an authorized driver on the rental
agreement; and, because he didn't have a valid
driver's license, he could not have been an authorized
driver of the car. ECF Doc. 8-1 at 32-33.
trial court declared a mistrial at Nicholson's first
trial because an officer's testimony violated an in
limine order. ECF Doc. 8-3 at 4-5. The second
trial commenced on September 29, 2016. ECF Doc. 8-3 at 1. On
September 30, 2016, the jury found Nicholson guilty on all
charges. ECF Doc. 8-1 at 36. The trial court found that
Counts One, Two and Three were of similar import and merged
them before sentencing. ECF Doc. 8-1 at 46. On October 11,
2016, the trial court sentenced Nicholson to serve an
eight-year prison term for trafficking in heroin and a
12-month term prison for aggravated possession of drugs.
These terms were ordered to be served concurrently for an
aggregate sentence of eight years. ECF Doc. 8-1 at 46.
new counsel, Nicholson filed a notice of appeal on November
10, 2016. ECF Doc. 8-1 at 49. In his appellate brief,
Nicholson raised a single assignment of error:
I. The trial court committed reversible error when it
overruled the defendant's motion to suppress.
ECF Doc. 8-1 at 57. The Ohio Court of Appeals agreed with the
trial court that Nicholson lacked standing to challenge the
warrantless search of the vehicle he was driving and affirmed
the trial court's judgment on May 15, 2017. ECF Doc. 8-1
at 110, State v. Nicholson, Fifth Dist. Stark No.
2016 CA 00210, 2017-Ohio-2825, 2017 Ohio App. LEXIS 1856.
16, 2017, Nicholson filed a pro se notice of appeal
with the Ohio Supreme Court. ECF Doc. 8-1 at 120. In his
memorandum in support of jurisdiction, Nicholson asserted one
proposition of law:
Proposition of Law No. I:
Did the Fifth Appellant District Err by allowing the trial
court to impermissibl[y] exceed the scope of the suppression
ECF Doc. 8-1 at 123. On September 27, 2017, the Ohio Supreme
Court declined jurisdiction. ECF Doc. 8-1 at 151. State
v. Nicholson, 150 Ohio St.3d 1913, 2017-Ohio-7843, 82
Post-Conviction Motion for Mistrial Transcript
weeks before the Ohio Court of Appeals affirmed
Nicholson's convictions on direct appeal, on April 28,
2017, Nicholson filed a pro se motion requesting the
transcript from the day the trial court declared a mistrial.
Nicholson represented that the transcript was “needed
for the furtherance of petitioner[']s direct appeal,
” and he asserted that his appellate attorney had not
responded to his request for the transcript. ECF Doc. 8-1 at
152. The trial court denied his motion. ECF Doc. 8-1 at 154.
18, 2017, Nicholson filed a pro se appeal with the
Ohio Court of Appeals (ECF Doc. 8-1 at 155) raising the
following assignment of error:
I. The trial court erred in its decision to deny
appellant's motion for mistrial transcripts.
ECF Doc. 8-1 at 162. The state filed a responsive brief. ECF
Doc. 8-1 at 166. Nicholson filed a rebuttal brief. ECF Doc.
8-1 at 177. On August 21, 2017, the Ohio Court of Appeals
affirmed the judgment of the trial court. ECF Doc. 8-1 at
182. The Ohio Court of appeals recognized that the State must
provide a transcript of prior proceedings when an indigent
defendant needs it for an effective defense or appeal.
State v. Arrington, 42 Ohio St.2d 114 (1975).
However, the court also found that Nicholson did not need the
mistrial transcript for an effective appeal because, by the
time he requested the transcript, his appeal had already been
fully briefed and heard on oral argument; his appeal only
raised issues related to the denial of his motion to
suppress; and Nicholson had not requested a transcript of the
mistrial during the second trial. ECF Doc. 8-1 at 185.
Nicholson did not appeal this decision to the Ohio Supreme
Ohio App. R. 26(B) Application to Reopen Direct
12, 2017, Nicholson filed a pro se application to
reopen his direct appeal. ECF Doc. 8-1 at 187. Nicholson
argued that his appellate counsel was ineffective for failing
to raise the following assignments of error:
I. Appellate counsel was ineffective for failing to raise the
issue of the trial court abusing its discretion in admitting
text messages that were unfairly prejudicial. ECF Doc. 8-1 at
II. Appellate counsel was ineffective for failing to raise
the issue of trial counsel's failure to object to the
text messages and Exhibit 26. ECF Doc. 8-1 at 193.
III. Appellate counsel was ineffective for failing to order
the mistrial transcripts as it was needed for Nicholson's
direct appeal. ECF Doc. 8-1 at 194.
State opposed Nicholson's application to reopen. ECF Doc.
8-1 at 238. On July 26, 2017, the Ohio Court of Appeals
denied the application, finding “no genuine issues
existed” as to whether Nicholson was denied effective
assistance of counsel on appeal. ECF Doc. 8-1 at 248.
August 16, 2017, Nicholson filed a pro se notice of
appeal with the Ohio Supreme Court. ECF Doc. 1 at 249.
Nicholson's memorandum in support of jurisdiction
asserted the following propositions of law:
Proposition of Law No. I:
Appellate Counsel is ineffective when he fails to raise
issues that offend the Confrontation Clause and instead
raises a claim that is clearly non meritorious having no
reasonable probability of success on a defendant's
Sub Proposition of Law I(A):
Did the text messages violate hearsay rule 801C and the
Confrontation Clause of the 6th Amendment of the United
Sub Proposition of Law (IB):
Did the translation of authenticated text messages by
Detective Bays violate Crawford v. Washington?
Sub Proposition of Law (IC):
Did the trial court abuse its discretion in allowing Exhibit
(28) to be entered into evidence, as it was ...