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Stevens v. Schweitzer

United States District Court, N.D. Ohio, Eastern Division

October 29, 2019

KEVIN L. STEVENS, Petitioner,
v.
THOMAS SCHWEITZER, Warden, Respondent.

          BENITA Y. PEARSON JUDGE.

          REPORT AND RECOMMENDATION

          David A. Ruiz United States Magistrate Judge.

         I. Introduction

         Petitioner Kevin L. Stevens (“Stevens” or “Petitioner”), a prisoner in state custody, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentences in State v. Stevens, No. CR20130473. (R. 1.) On September 25, 2017, Respondent Warden Thomas Schweitzer (“Respondent”) filed a return of writ. (R. 10.) On March 1, 2018, Stevens filed a traverse. (R. 19.) This matter is before the undersigned pursuant to Local Rule 72.2 for preparation of a report and recommendation on Stevens' petition. The undersigned recommends the petition be DENIED, as explained herein.

         II. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) (“State-court factual findings are presumed correct unless rebutted by clear and convincing evidence.”) The Third District Court of Appeals (“state appellate court”) summarized the facts underlying Stevens's conviction as follows:

{¶ 2} This case stems from incidents that occurred on October 8 and 9, 2013. On October 8, the victim invited Stevens to stay the night at her house. The victim went to sleep and awoke after Stevens raped her. On October 9, the victim again invited Stevens to her house to obtain Methadone from him. After the victim obtained the methadone, she asked Stevens to leave. However, because Stevens refused to leave, the victim's sister and her sister's boyfriend came to the victim's house to coax Stevens into leaving. After Stevens left, the victim took her prescribed sleeping medication and went to sleep. She again awoke to Stevens raping her. After discovering that Stevens gained entry into her house and raped her a second time, the victim tossed Stevens's jacket out the back door of her house and, when Stevens went after it, she locked the door behind him. Under the guise of searching for his keys, Stevens regained entry into the victim's house and physically assaulted her.

State v. Stevens, 2016-Ohio-466, 2016 Ohio App. LEXIS 384 (Ohio Ct. App., Feb. 8, 2016).

         III. Procedural History

         A. State Court Conviction

         On December 12, 2013, an Allen County Grand Jury charged Stevens with two counts of rape in violation of Ohio Revised Code (“O.R.C.”) § 2907.02(A)(1)(c), (A)(2) and one count of aggravated burglary in violation of O.R.C. § 2911.11(A)(1). (R. 10-1, Ex. 1.) All three counts carried repeat-violent-offender specifications. (R. 10-1, Ex. 1.) Stevens entered pleas of not guilty to all charges. (R. 1 at 2.)

         On September 2, 2014, the State filed a motion moving the trial court to issue an arrest warrant for the victim as a material witness. Stevens, 58 N.E.2d at 593. The trial court issued the warrant that same day. Id. A jury trial commenced on September 15, 2014. (R. 10-2 at 2.) The jury found Stevens guilty as charged, on September 19, 2014. (R. 10-1, Exs. 2, 3.) The trial court determined Stevens was a repeat violent offender; and, on November 12, 2014, imposed an eight year sentence for the first rape conviction, eleven year sentence for the second rape conviction, five year sentence for the burglary conviction, and six year sentence for the repeat-violent-offender specification. (R. 10-1, Ex. 4.) The trial court imposed the terms to be served consecutively for an aggregate sentence of thirty years. (R. 10-1, Ex. 4.)

         B. Direct Appeal

         On December 15, 2014, Stevens, acting pro se, filed a notice of appeal with the state appellate court. (R. 10-1, Ex. 5.) He raised the following assignments of error:

1. Appellant was deprived of his right to effective assistance of counsel and an impartial jury as guaranteed by the 6th Amendment of the U.S. Constitution, Article I § 10, and Article III § 2 of the Ohio Constitution.
2. Appellant was denied the due process of a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution and Article I § 16 of the Ohio Constitution based on prosecutorial misconduct.
3. Appellant was denied the fundamental due process of a fair and impartial trial as guaranteed by the 5th Amendment of the U.S. Constitution and Article I § 16 of the Ohio Constitution where a conviction stands absent sufficient evidence.
4. Appellant was denied his due process rights guaranteed him by the 5th, 6th, and 14th Amendments of the U.S. Constitution and Article I § 16 of the Ohio Constitution when trial court abused it's [sic] discretion.

(R. 10-1, Ex. 6.) The state appellate court affirmed the trial court's judgment, on February 8, 2016. (R. 10-1, Ex. 8.)

         On March 21, 2016, Stevens, acting pro se, filed a notice of appeal with the Ohio Supreme Court. (R. 10-1, Ex. 9.) He presented the following propositions of law in his memorandum in support of jurisdiction:

1. Whether appellant was deprived of his right to effective assistance of counsel and an impartial jury as guaranteed by the 6th Amendment of the United States Constitution[, ] Article I § 10, and Article III § 2 of the Ohio Constitution.
2. Whether appellant was denied the due process of a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments of the United States Constitution and Article I § 16 of the Ohio Constitution based on prosecutorial misconduct.
3. Whether appellant was denied the fundamental due process of a fair and impartial trial as guaranteed by the 5th Amendment of the United States Constitution and Article I § 16 of the Ohio Constitution where a conviction stands absent sufficient evidence.
4. Whether appellant was denied his due process rights guaranteed him by the 5th, 6th, and 14th Amendments of the United States Constitution and Article I § 16 of the Ohio Constitution when trial court abused it's [sic] discretion.

(R. 10-1, Ex. 10.) The Ohio Supreme Court declined jurisdiction over the appeal, on June 15, 2016. (R. 10-1, Ex. 11.) [1]

         C. Federal Habeas Corpus

         Petitioner's pro se petition for writ of habeas corpus sets forth the following grounds for relief:

1. Petitioner was denied his guaranteed right to effective assistance of trial counsel and an impartial jury in accordance to the Sixth and Fourteenth Amendments of the United States Constitution and the State of Ohio Constitution.
2. Prosecutorial misconduct denied Petitioner the due process of a fair and impartial trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the State of Ohio Constitution.
3. Petitioner was denied his fundamental due process of a fair and impartial trial as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and the State of Ohio Constitution where a conviction stands absent sufficient evidence.
4. Petitioner was denied his due process rights guaranteed hum [sic] by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the State of Ohio Constitution when the trial court abused its discretion.

(R. 1) (capitalization altered).

         IV. Standards of Review

         A. AEDPA Review

         Stevens' petition for writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). AEDPA, which amended 28 U.S.C. § 2254, was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.'” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). The Act “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 134 S.Ct. 10, 15 (2013). It therefore “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Id.

         One of AEDPA's most significant limitations on district courts' authority to grant writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated on the merits in State court proceedings” unless the state-court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Habeas courts review the “last explained state-court judgment” on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis original). A state court has adjudicated a claim “on the merits, ” and AEDPA deference applies, regardless of whether the state court provided little or no reasoning at all for its decision. Harrington v. Richter, 562 U.S. 86, 99 (2011).

         “Clearly established Federal law” for purposes of § 2254(d)(1) “is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “only the holdings, as opposed to the dicta, of [Supreme Court] decisions.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). The state-court decision need not refer to relevant Supreme Court cases or even demonstrate an awareness of them; it is sufficient that the result and reasoning are consistent with Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). And a state court does not act contrary to clearly established law when the precedent of the Supreme Court is ambiguous or nonexistent. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).

         A state-court decision is contrary to “clearly established Federal law” under § 2254(d)(1) only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         A state-court decision is an “unreasonable determination of the facts” under § 2254(d)(2) only if contains “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” Burt, 134 S.Ct. at 15; see also Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). This requirement mirrors the “presumption of correctness” AEDPA affords state-court factual determinations, which only can be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Supreme Court has cautioned, “‘a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt, 134 S.Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).

         Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended by AEDPA, is an intentionally demanding standard, affording great deference to state-court adjudications of federal claims. The Court has admonished that a reviewing court may not “treat[] the reasonableness question as a test of its confidence in the result it would reach under de novo review, ” and that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.”). Rather, § 2254(d) “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and does not function as a “substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted). A petitioner, therefore, “must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. This is a very high standard, which the Court readily acknowledges: “If this standard is difficult to meet, that is because it is meant to be.” Id. at 102.

         V. Analysis

         A. Ground One: Ineffective Assistance of Trial Counsel

         Petitioner's first ground for relief claims his trial counsel provided ineffective assistance by failing to object to prejudicial testimony and failing to adequately investigate and prepare for trial. (R. 1-2 at 15). Specifically, Petitioner takes issue with counsel's failure to object to certain questions posed by the prosecutor to the victim and other witnesses. (R. 19, PageID# 1734-1739).

         When addressing a claim of ineffective assistance of counsel, courts apply the familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate that: (1) his counsel's performance was deficient; and (2) the allegedly ineffective assistance resulted in prejudice to the petitioner, meaning that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. Moreover, to establish the prejudice component of the Strickland standard, a defendant must show that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Lundgren v. Mitchell, 440 F.3d 754, 799 (6th Cir. 2006) (citations omitted).

         Where the state appellate court, as here, correctly identifies Strickland as the standard for assessing a petitioner's ineffective assistance claim, its ruling must unreasonably apply that standard in order for the petitioner to receive habeas relief. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question is not whether a federal court believes the state court's determination under Strickland was incorrect but whether that determination was unreasonable -a substantially higher threshold.”) (internal quotation marks omitted). Federal habeas courts employ “a ‘doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388 (2011) (“Our review of the [state court's] decision is thus doubly deferential. We take a highly deferential look at counsel's performance through the deferential lens of § 2254(d).”) (internal citations and quotation marks omitted).

         Here, the state appellate court, after identifying the Strickland standard's two-pronged test, addressed Stevens's claims as follows:

{¶ 39} In his first assignment of error, Stevens argues that he was denied the effective assistance of counsel. Specifically, Stevens argues that his trial counsel failed to (1) object to testimony, (2) request a rape-shield-law hearing, and (3) provide expert-witness testimony regarding Short Tandem Repeat DNA evidence.
{¶ 40} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel's performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306, 750 N.E.2d 148 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show counsel's conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel's actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687, 104 S.Ct. 2052. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Rather, the errors complained of must amount to a substantial violation of counsel's essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-42, 538 N.E.2d 373 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).
{¶ 41} “Prejudice results when ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, 2014 WL 296002, ¶ 48, quoting Bradley at 142, 538 N.E.2d 373, citing Strickland at 691, 104 S.Ct. 2052[.] “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” Id., quoting Bradley at 142, 538 N.E.2d 373 and citing Strickland at 694, 104 S.Ct. 2052.
{¶ 42} First, Stevens argues that his trial counsel was ineffective for failing to object to the testimony of Detective Todd Jennings (“Detective Jennings”) of the Lima Police Department and the testimony of the victim. “The ‘failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.'” Liles at ¶ 49, quoting State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 139, citing State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). “To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel's essential duties to his client and, second, that he was materially prejudiced by counsel's ineffectiveness.” Holloway at 244, 527 N.E.2d 831, citing Lytle at 396-397, 358 N.E.2d 623 and Strickland at 668, 104 S.Ct. 2052 “Because ‘objections tend to disrupt the flow of a trial, and are considered technical and bothersome by the fact-finder,' competent counsel may reasonably hesitate to object in the jury's presence.” State v. Campbell, 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (1994), quoting Jacobs, Ohio Evidence, at iii-iv (1989).
{¶ 43} Stevens argues that his trial counsel was ineffective for failing to object to Detective Jennings's testimony regarding what he learned from other law enforcement officers involved in the investigation of the case. Specifically, Stevens argues that his trial counsel should have objected to Detective Jennings's testimony that he “spoke with” Patrolman Trent Kunkleman (“Patrolman Kunkleman”) when Detective Jennings arrived at the scene. (Appellant's Brief at 12); (Sept. 18, 2014 Tr., Vol. IV, at 1167-1170). Further, Stevens argues that his trial counsel should have objected to Detective Jennings's testimony that (1) he heard Officer Michael Carman's (“Officer Carman”) prior testimony about the case and agreed with his testimony; (2) the victim's phone was processed by Detective Scott Leland (“Detective Leland”), and (3) Detective Jennings consulted Detective Steven Stechschulte, Jr. (“Detective Stechschulte”) in an attempt to identify and locate Stevens. (Appellant's Brief at 12); (Sept. 18, 2014 Tr., Vol. IV, at 1197-1201). Stevens argues that his trial counsel was ineffective for failing to object to Detective Jennings's testimony because it improperly “bolster[s] and vouch[es] for the credibility” of Officer Kunkleman, Officer Carman, Detective Leland, and Detective Stechschulte. (Appellant's Brief at 12).
{¶ 44} Stevens fails to show how these alleged errors were prejudicial. Contrary to Stevens's argument, neither the State nor Detective Jennings “vouched for the credibility” of any witness. None of the portions of Detective Jennings's testimony vouches for the credibility of another witness. See Liles at ¶ 54 (concluding that Liles's trial counsel was not ineffective for failing to object to testimony because it was not offered to bolster credibility). Instead, those portions of Detective Jennings's testimony were offered to describe his involvement in investigating the case. Accordingly, Stevens's trial counsel was not ineffective for failing to object to Detective Jennings's testimony.
{¶ 45} Stevens also argues that his trial counsel was ineffective for failing to object to the victim's testimony regarding whether the State offered her the opportunity to “walk away” if she was lying about being raped by Stevens and regarding why she was issued a material-witness warrant. (Appellant's Brief at 12); (Sept. 16, 2014 Tr., Vol. II, at 505-506, 638-640). In particular, Stevens argues that his trial counsel was ineffective for failing to object to the testimony of the victim because the State was improperly “leading/manipulating [the victim] into an answer.” (Appellant's Brief at 12).
{¶ 46} “Evidence Rule 611(C) provides that ‘[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.'” State v. Stairhime, 3d Dist. Defiance No. 4-13-06, 2014-Ohio-1791, 2014 WL 1692781, ¶ 46. “This broad exception places the decision of whether to allow leading questions within the sound discretion of the trial court.” Id., citing State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001) and State v. Jefferson, 2d Dist. Greene No. 2002 CA 26, 2002-Ohio-6377, 2002 WL 31647807, ¶ 9. “As a result, the Ohio Supreme Court has held that the failure to object to leading questions does not constitute ineffective assistance of counsel.” Id., citing Jackson at 449, 751 N.E.2d 946 and State v. Fraker, 3d Dist. Union No. 14-12-19, 2013-Ohio-4561, 2013 WL 5636051, ¶ 59. Stevens provides no argument that the result of his trial would have been different had his trial counsel objected to the victim's testimony. Therefore, we conclude that any failure on the part of Stevens's trial counsel to object to any leading questions does not rise to the level of ineffective assistance of counsel.
{¶ 47} Stevens also argues that his trial counsel was ineffective for failing to request a rape-shield-law hearing. The rape-shield law prohibits any evidence of a victim's sexual history except to show “‘the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender.'” State v. Black, 172 Ohio App.3d 716, 2007-Ohio-3133, 876 N.E.2d 1255, ¶ 12 (3d Dist.), quoting R.C. 2907.02(D). “Even if one of the aforementioned exceptions applies, such evidence may be introduced only if the court determines that the evidence is material to a fact at issue and that its prejudicial nature does not outweigh its probative value.” Id., citing R.C. 2907.02(D) and State v. Chaney, 169 Ohio App.3d 246, 2006-Ohio-5288, 862 N.E.2d 559, ¶ 6 (3d Dist.).
{¶ 48} Stevens makes no argument that the victim's prior sexual history is relevant or admissible-that is, Stevens makes no argument that the victim's prior sexual history would have been used to show “the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender.” Therefore, Stevens's argument is without merit because he cannot show that he was prejudiced-that is, he cannot show that the admission of that evidence would have had a reasonable probability of success after a rape-shield-law hearing had his counsel requested such a hearing.
{¶ 49} In addition, Stevens argues that his trial counsel was ineffective for failing to provide expert-witness testimony regarding Short Tandem Repeat DNA evidence. “A decision by trial counsel not to call an expert witness generally will not sustain a claim of ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 118. See also State v. Dooley, 3d Dist. Allen No. 1-10-41, 2010-Ohio-6260, 2010 WL 5296938, ¶ 16, citing State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 118, State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), State v. Thompson, 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407 (1987), and State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
{¶ 50} Stevens's sole argument that his counsel was deficient for failing to seek an expert witness is that “the trial court ordered up to $11, 000 for expert assistance for defense, of which $3, 000 was for an Investigator, and of which trial counsel used none for appellant's defense or preparations for trial.” (Appellant's Brief at 13). However, Stevens provides no argument to indicate how an expert witness's testimony regarding Short Tandem Repeat DNA evidence would have affected the outcome of trial. See State v. Young, 3d Dist. Defiance No. 4-01-18, 2002 WL 129824, *3 (Feb. 1, 2002) (“Nothing in the record indicates how an expert witness would have testified or how such testimony would have affected the outcome of the trial.”). Likewise, there is no evidence in the record that an expert witness would have provided favorable testimony. Mundt at ¶ 118. Therefore, Stevens's trial counsel was not ineffective for failing to seek an expert witness.

Stevens, 2016-Ohio-446 at ¶¶39-50.

         Petitioner's traverse reiterates his state court arguments that: (1) the prosecution's questioning of the victim was intended to garner sympathy from the jurors and to portray her as honest; (2) the prosecution's questioning of Detective Jennings was tantamount to bolstering or vouching for the credibility of another witness and the rape kit testing; and (3) defense counsel failed to object to the above and failed to utilize $11, 000 for expert assistance. (R. 19, PageID# 1737-1739). Neither the petition nor the traverse offers any meaningful argument as to how the state appellate court's extensive analysis of these arguments was an unreasonable application of Strickland.

         First, the state appellate court concluded above that neither the prosecution nor Detective Jennings vouched for any witness; therefore, counsel's failure to object is moot. See Wogenstahl v. Mitchell, 668 F.3d 307, 328 (6th Cir. 2012) (“Generally, improper vouching involves either blunt comments or comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.”) The state court reasonably concluded that the challenged comments did not fall into these categories. The determination that a failure by counsel to object to leading questions does not axiomatically result in effective assistance is also supported by case law.

Petitioner next contends that the prosecution excessively used leading questions during Boone's direct examination and that counsel's failure to object to those questions was objectively unreasonable. Because a state court may violate its own rules of evidence without violating federal law, a state court's erroneous application of state law is only ground for habeas relief if the application also violates federal law. Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Such a violation occurs only if the “evidentiary ruling is so egregious that it results in a denial of fundamental fairness.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir. 2000). Therefore, we can only award relief where counsel's failure to object to the prosecutor's questions denied Petitioner a fair proceeding. Cf. United States v. Nguyen, 379 Fed.Appx. 177, 181 (3d Cir.2010); Roe v. Belleque, 232 Fed.Appx. 653, 654-55 (9th Cir. 2007).

Jackson v. Bradshaw, 681 F.3d 753, 764 (6th Cir. 2012). Further, none of the alleged examples of leading questions offered by the Petitioner appear so egregious as to deprive him of a fundamentally fair trial.

         With respect to the rape shield law issue, Respondent argues that it is an issue of state law and, therefore, does not present a basis for habeas relief. (R. 10, PageID# 60-61). The court agrees. Furthermore, the state appellate court found that Stevens essentially made no argument as to how the ...


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