United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
Michael Potee brought this habeas corpus action under 28
U.S.C. § 2254 with the assistance of counsel (Petition,
ECF No. 1). The case is now ripe for decision on the
Petition, the State Court Record (ECF No. 7), and the Return
of Writ (ECF No. 8). Although Magistrate Judge Litkovitz set
a deadline of twenty-eight days after the Return was filed
for the Petitioner to file a reply (ECF No. 3, PageID 109),
he has not done so and the time to do so expired January 11,
Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate
Judge workload in the District (ECF No. 9).
Clermont County grand jury indicted Potee on September 22,
2015, on one count of Involuntary Manslaughter (Ohio Revised
Code § 2903.04(A))(Count 1); two counts of Corrupting
Another With Drugs (Ohio Revised Code §
2925.02(A)(3))(Counts 2-3); one count of Trafficking in Drugs
(Heroin) (Ohio Revised Code § 2925.03(A)(1)) (Count 4);
and one count of Aggravated Trafficking in Drugs (Fentanyl)
(Ohio Revised Code § 2925.03(A)(1)) (Count 5). (State
Court Record, ECF No. 7, Exhibit 1, Indictment, PageID#121,
No. 2015 CR 000515). Potee moved unsuccessfully to suppress
the identification made by one of the victims, to transfer
venue to Hamilton County, and to exclude evidence that he
knew the deceased victim from prison. After verdict the trial
judge merged some of the convictions and imposed an aggregate
sentence of fifteen and one-half years.
by counsel, Potee took a direct appeal to the Ohio Court of
Appeals for the Twelfth District which affirmed the trial
court judgment. State v. Potee, 2017-Ohio-2926
(12thDist. May 22, 2017), appellate jurisdiction
declined, 150 Ohio St.3d 1454 (2017). Potee filed a pro
se Application to Reopen the direct appeal under Ohio R.
App. P. 26(B), asserting four assignments of error whose
omission he alleged constituted ineffective assistance of
appellate counsel (State Court Record, ECF No. 7, PageID 326,
et seq.). The Twelfth District denied the motion to reopen
and a later motion for reconsideration (State Court Record,
ECF No. 7, Exhibits 36 & 40). The Supreme Court of Ohio
declined appellate jurisdiction. State v. Potee, 152
Ohio St.3d 1465 (2018).
the assistance of counsel, Potee then filed his Petition in
this Court, pleading the following four grounds for relief:
Ground One: Improper venue.
Supporting Facts: The drug transaction
occurred in Hamilton County and the alleged victim ingested
and over dosed on the drug in Clermont County. Michael Potee
committed no act in Clermont County.
Ground Two: The trial court gave an improper
jury instruction regarding venue.
Supporting Facts: If an offense is committed
in more than one county RC 2901.12 (A) governs the location
of the indictment and trial because “the trial in a
criminal case in this state shall be held in a court having
jurisdiction of the subject matter, and in the territory of
which the offense or any element of the offense was
committed.” Because the commission of the offense
occurred entirely in Hamilton County, the jury should have
been instructed with the precise language of R.C. 2901.12(A).
Instead the court instructed the jury on the language of RC
2901(H)(3)” one or more of the offenses...or any one of
the essential elements of any one or more of the charges-the
offenses charged against the defendant were committed or
occurred in this county as part of criminal conduct committed
Ground Three: The trial Court Erred by
permitting prior bad acts of Potee as substantive evidence.
Evidence Rule 404(B).
Supporting Facts: The State presented
evidence of Potee's cellular text messages, in great
detail, to demonstrate Potee had a history of dealing drugs.
The State introduced evidence that Potee had $900 on a prior
date to show Potee was a drug dealer and possed [sic] large
amounts of cash at a time, other than the time in question.
The trial court prohibited either party from discussing the
$900 in a previous order dated April 12, 2016 and should have
granted a mistrial.
Ground Four: Insufficiency of evidence.
Supporting Facts: Potee gave
decedent/husband and wife one bindle of heroin. Decedent and
wife split the bindle in half when they got to their Clermont
County home where they ingested it. Husband died immediately
and wife was revived with narcan. Decedent/husband had a high
dose of fentanyl in his system. Narcan is not effective with
fentanyl. The evidence is against Potee giving them fentanyl
because wife was revived with narcan. There is no evidence
Potee gave them fentanyl. The only logical explanation is
only husband ingested fentanyl. There is plenty of evidence
found in the home of decedent they were heavy drug users.
Fentanyl caused decedent/husband death.
(Petition, ECF No. 1, PageID 5-10).