# Warren v. Erdos

> District Court, N.D. Ohio · November 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10367660

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** November 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10367660

## How later opinions describe it (automated extraction)

- rejecting use of preponderance-of-the-evidence standard rather than reasonable-doubt standard in juvenile proceedings
- reversing conviction due to use of jury instruction which suggested jurors must have higher degree of doubt to acquit defendant than the reasonable-doubt standard requires

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Desmond E. Warren, Case No. 1:17-cv-813

Petitioner,

v. MEMORANDUM OPINION
AND ORDER

Ronald Erdos, Warden,

Respondent.

I. INTRODUCTION
Petitioner Desmond Eric Warren seeks a writ of habeas corpus under 28 U.S.C. § 2254,
concerning his conviction on charges of trafficking in persons, compelling prostitution, and
promoting prostitution in the Cuyahoga County, Ohio Court of Common Pleas. (Doc. No. 1).
Magistrate Judge Kathleen B. Burke reviewed the petition as well as the related briefing pursuant to
Local Rule 72.2(b)(2) and recommends I dismiss the petition in part and deny it in part. (Doc. No.
8). Warren has filed objections to Judge Burke’s Report and Recommendation. (Doc. No. 9). For
the reasons stated below, I overrule Warren’s objections and adopt Judge Burke’s Report and
Recommendation.
II. BACKGROUND
On October 6, 2014, a jury found Warren guilty of trafficking in persons, compelling
prosecution, and promoting prosecution. The trial court subsequently sentenced Warren to
fourteen years in prison and five years mandatory post-release control. (Doc. No. 6-1 at 36).
Warren must demonstrate, by clear and convincing evidence, that the state court’s factual
findings were incorrect. 28 U.S.C. § 2254(e)(1). He objects to Judge Burke’s recitation of the state
court’s factual findings, arguing he has “present[ed] clear and convincing evidence contradicting the
Eighth District’s factual analysis where each witness testified that they were, in some way, not
compelled to prostitute themselves.” (Doc. No. 9 at 9). Warren does not offer any evidence that
the state court’s summary of the facts presented at trial – which quoted testimony from each witness

in which the witnesses described alternately having willingly engaged in prostitution and believing
they had no choice because of Warren’s manipulative and violent behavior – was inaccurate. Ohio v.
Warren, No. 102181, 2015 WL 5309433 at *1-4.
Therefore, I overrule Warren’s objection to Judge Burke’s recitation of the factual and
procedural history of this case, leaving aside his related objection to the state court’s conclusion that
the evidence was sufficient to substantiate his convictions. I adopt those sections of the Report and
Recommendation in full. (Doc. No. 8 at 2-9).
III. STANDARD
Once a magistrate judge has filed a report and recommendation, a party to the litigation may
“serve and file written objections” to the magistrate judge’s proposed findings and
recommendations, within 14 days of being served with a copy. 28 U.S.C. § 636. Written objections
“provide the district court with the opportunity to consider the specific contentions of the parties

and to correct any errors immediately . . . [and] to focus attention on those issues – factual and legal
– that are at the heart of the parties’ dispute.” Kelly v. Withrow, 25 F.3d 363, 365 (6th Cir. 1994)
(quoting United States v. Walters, 638 F.3d 947, 949-50 (6th Cir. 1981) and Thomas v. Arn, 474 U.S.
140, 147 (1985)). A district court must conduct a de novo review only of the portions of the
magistrate judge’s findings and recommendations to which a party has made a specific objection. 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
IV. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prohibits the
issuance of a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim:
(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). “The prisoner bears the burden of rebutting the state court's factual
findings ‘by clear and convincing evidence.’” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28 U.S.C.
§ 2254(e)(1)).
Warren pursues three grounds for relief:
GROUND ONE: Defense Counsel provided constitutionally ineffective assistance
at trial by failing to properly instruct the jury on the elements of the offense of
Trafficking in Persons and Compelling Prostitution.
Supporting Facts: Trial Counsel failed to include the statutory definition of
“Compel” as it applies to Trafficking in Persons, omitting the statutory definition
from the jury instructions and leaving “coerced” in its place. Counsel also failed to
ensure that the instruction was complete. In parts of the jury instruction, the jury
was not instructed to find each element of Trafficking in Persons. During
deliberations, the jury asked for a definition of “compel” and did not receive the
statutory definition. Instead, the Trial Court provided [a] substantially incorrect
definition that lowered the State’s burden of proof. The same errors in failing to
define the word “compel” prejudicially affected the instruction on Compelling
Prostitution. Each error lowered the burden of proof and thus cause[d]
constitutional, prejudicial error.
GROUND TWO: Trial Court committed constitutional, plain error in failing to
provide proper instruction on elements of Trafficking in Persons and Compelling
Prostitution.
Supporting Facts: The Trial Court failed to include the statutory definition of
“Compel” as it applies to Trafficking in Persons, omitting the statutory definition
from the jury instructions and leaving “coerced” in in its place. The Court also failed
to ensure that the instruction was complete. In parts of the jury instruction, the jury
was not instructed to find each element of Trafficking in Persons. During
deliberations, the jury asked for a definition of “Compel” and did not receive the
statutory definition. Instead, the Trial Court provided [a] substantially incorrect
definition that lowered the State’s burden of proof. The same errors in failing to
define the word “compel” prejudicially affected the instruction on Compelling
Prostitution. Each error lowered the burden of proof and thus cause[d]
constitutional, prejudicial error.
GROUND THREE: Appellate counsel provided constitutionally ineffective
assistance by failing to raise issues on appeal.
Supporting Facts: Appellate counsel provided constitutionally ineffective assistance
by failing to raise issues on appeal that would otherwise cause reversal on direct
appeal, namely the issues raised in grounds one and two of this petition.
(Doc. No. 1 at 5-9).
A. PROCEDURAL DEFAULT
The procedural default rule bars a federal habeas petitioner’s claims if (1) the state court
declined to consider the merits of an issue because the habeas petitioner failed to comply with state
procedural rules, or (2) if the petitioner failed to fully pursue a claim through the state’s “ordinary
appellate review procedures” and now no longer is able to raise the claim, unless the petitioner
establishes cause for the default and resulting prejudice, or that a fundamental miscarriage of justice
would occur if the claim is not reviewed. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)
(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999)).
Judge Burke recommends I conclude Warren’s first and second grounds for relief are barred
by the procedural default rule. Ground II is procedurally defaulted because Warren did not present
it on direct appeal. (Doc. No. 8 at 14-15). Similarly, Ground I is procedurally defaulted because a
defendant must include claims of ineffective assistance of trial counsel which are based on the
record in the trial court in the defendant’s direct appeal. (Doc. No. 8 at 13-14 (citing Hill v. Mitchell,
842 F.3d 910, 936 (6th Cir. 2016)).
Ohio Appellate Rule 26 permits a defendant to “apply for reopening of the appeal from the
judgment of conviction and sentence, based on a claim of ineffective assistance of appellate
counsel.” Ohio App. R. 26(B)(1). A Rule 26(B) application “‘cannot function to preserve’ the
underlying substantive claim” for federal habeas review. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir.
2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)). Warren did not raise the claims
contained in Grounds I and II on direct appeal, and the state appellate court rejected his Rule 26(B)

application to reopen his appeal.
While Warren objects to Judge Burke’s recommendation regarding Grounds I and II, (Doc.
No. 9 at 9), those claims are procedurally defaulted and Warren may not raise them now unless he
can established cause and prejudice to excuse his procedural default.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Judge Burke recommends I conclude Warren fails to show that the state court of appeals’
analysis of his ineffective assistance of appellate counsel claim was unreasonable and therefore this
claims lacks merit and cannot excuse Warren’s procedural default of Grounds I and II. Warren
objects to this recommendation, arguing there is a reasonable likelihood the outcome of his trial and
his appeal would have been different if trial and appellate counsel had identified, and sought the
correction of, the purported error in the jury instructions.
A defendant must show “his counsel's performance was deficient and that it prejudiced him”

in order to prevail on an ineffective assistance of counsel claim. Nichols v. Heidle, 725 F.3d 516, 539
(6th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Deficient performance
means that ‘counsel's representation fell below an objective standard of reasonableness[,]’ [while
prejudice] means ‘there is a reasonable probability that, but for counsel's unprofessional errors [i.e.,
deficient performance], the result of the proceeding would have been different.’” Nichols, 725 F.3d
at 539 (quoting Strickland, 466 U.S. at 688, 694)).
When a defendant asserts an ineffective-assistance claim in a habeas petition, the petitioner
must show “the state court's rejection of that claim was ‘contrary to, or involved an unreasonable
application of’ Strickland, or rested ‘on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Nichols, 725 F.3d at 540 (quoting 28 U.S.C. §
2254(d)). Thus, the AEDPA mandates that a habeas court’s review of the state court’s ineffective-
assistance analysis is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citations

omitted).
The state appellate court concluded Warren’s appellate counsel was not ineffective because
the appellate court had concluded during Warren’s direct appeal that there was sufficient evidence to
establish “each and every essential element of the offenses of compelling prostitution and trafficking
in persons, including the element of ‘compelled,’ . . . beyond a reasonable doubt.” (Doc. No. 1-2 at
6-7). Appellate counsel’s failure to challenge the jury instructions did not violate counsel’s duty to
render reasonable professional assistance, the court of appeals concluded, because such a challenge
lacked merit. (Id.).
Warren argues the trial court’s misstatement of the proper definition of “compel,” and its
repeated references to the incorrect definition, creates a systemic error which amounts to “a
misdescription of the burden of proof.” (Doc. No. 7 at 9 (quoting Sullivan v. Louisana, 508 U.S. 275,
281 (1993))). Jury instructions which fail to accurately describe the prosecution’s burden of proving

the defendant’s guilty beyond a reasonable doubt “require automatic reversal.” Sullivan, 508 U.S. at
282 (Rehnquist, J., concurring). The state appellate court, Warren contends, unreasonably applied
controlling federal law when it failed to grant his Rule 26(B) due to appellate counsel’s failure to
challenge the deficient jury instruction. He also contends the court of appeals applied the wrong
harmless-error standard.
A habeas petitioner is not entitled to relief based upon a claim that a jury instruction
allegedly was incorrect under state law. Scott v. Mitchell, 209 F.3d 854, 875 (6th Cir. 2000) (quoting
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)). The alleged error must violate federal law. Estelle, 502
U.S. at 68.
Though Warren no doubt is correct that the jury instructions did not define “compel”
properly, his argument that these repeated errors lowered the prosecution’s burden of proof is

unavailing. The cases he cites in support of his argument expressly dealt with instructions which
improperly defined the reasonable-doubt standard, or which implicitly or explicitly relieved the jury
of the duty to find the prosecution have proven one or more elements of the offense beyond a
reasonable doubt. See, e.g., Sullivan, 508 U.S. at 277 (reversing conviction due to use of jury
instruction which suggested jurors must have higher degree of doubt to acquit defendant than the
reasonable-doubt standard requires); In re Winship, 397 U.S. 358, 365 (1970) (rejecting use of
preponderance-of-the-evidence standard rather than reasonable-doubt standard in juvenile
proceedings); Francis v. Franklin, 471 U.S. 307, 313 (1985) (prohibiting use of “a mandatory
presumption” that relieves the prosecution “of the burden of persuasion on an element of an
offense”).
Errors “in the instruction that defined the crime” are “trial error[s],” not “structural
error[s],” and are analyzed under a harmless-error standard. California v. Roy, 519 U.S. 2, 6 (1996). In

habeas proceedings, the proper harmless-error standard is whether the error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A habeas petitioner is not
entitled to relief based upon “a ‘reasonable possibility’ that the error was harmful,” but only if “‘the
defendant was actually prejudiced by the error.’” Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015)
(quoting Brecht, 507 U.S. at 637, and Calderon v. Coleman, 525 U.S. 141, 146 (1998)).
Warren cannot show he actually was prejudiced by the error in the jury instructions and,
therefore, he cannot show the appellate court’s ineffective-assistance conclusion was unreasonable.
The state court of appeals identified the appropriate due-process standard in its opinion
rejecting Warren’s assignments of error on his direct appeal: “The relevant inquiry then is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.” Ohio v.

Warren, 2015 WL 5309433 at *5 (citation omitted); see also Coleman v. Johnson, 566 U.S. 650 (2012)
(“[E]vidence is sufficient to support a conviction if, ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt’” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original)). This “deferential” standard “leaves juries broad discretion in deciding what inferences to
draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences
from basic facts to ultimate facts.’” Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 319).
On Warren’s direct appeal, the court of appeals described the record evidence and
concluded there was sufficient evidence to permit a rational jury to find each of the essential
elements of compelling prostitution and trafficking in persons, including the statutory definition of
“compel,” beyond a reasonable doubt. Ohio v. Warren, 2015 WL 5309433 at *7. Warren fails to
show it would have been “objectively unreasonable” for appellate counsel to have drawn the same

conclusion. Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Warren also objects to Judge Burke’s conclusion that he failed to identify clear and
convincing evidence that the state appellate court’s factual determinations were incorrect. (Doc. No.
9 at 9). Warren, however, has not “contradict[ed] the Eighth District’s factual analysis.” (Id.). The
state court of appeals accurately summarized the trial-court record, which included witness
testimony that Warren’s victims both chose to work for him and also believed they had no choice
but to work for him because of his use of threats, violence, and other means to maintain control
over them. Ohio v. Warren, 2015 WL 5309433 at *1-4.
The necessary basis for Warren’s factual argument is a presumption that a defendant must
always and only compel his victims to engage in prostitution before the defendant may be convicted
of compelling prostitution or trafficking in persons. Warren offers no case law in support of this
presumption and Ohio law in fact disproves this presumption. See, e.g., Ohio v. Brown, --- N.E.3d ----,

2019 WL 1503789, at *7-9 (Ohio Ct. App., April 4, 2019) (denying defendant’s sufficiency of the
evidence and manifest weight of the evidence assignments of error where the evidence presented at
trial established defendant’s victims first engaged in prostitution of their own volition but then were
compelled by defendant’s conduct to continue working for defendant).
Warren must show more than that “reasonable minds reviewing the record might disagree
with the state court's factual determination . . . .” Carter v. Bogan, 900 F.3d 754, 768 (6th Cir. 2018),
cert. denied sub nom. Carter v. Jackson-Mitchell, No. 18-8682, 2019 WL 4921537 (U.S. Oct. 7, 2019).
Section 2254(d)(2) “imposes a highly deferential standard” which requires that “the record must
‘compel the conclusion that the [state] court had no permissible alternative’ but to arrive at the
contrary conclusion.” Carter, 900 F.3d at 768 (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006))
(emphasis and alteration in original). The state appellate court reached the permissible conclusion
that the trial-court record contained sufficient evidence to support Warren’s convictions.

Warren fails to show both the state court’s trial-error and its ineffective-assistance
conclusions were decisions “that [were] contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,” or “that
[were] 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)(1)-(2). Therefore, I overrule his objections to Judge
Burke’s analysis of Ground III of his habeas petition and to Warren’s arguments seeking to establish
cause and prejudice to excuse his procedural default of Grounds I and II.
V. CONCLUSION
For the reasons stated above, I overrule Warren’s objections, (Doc. No. 9), to Judge Burke’s
Report and Recommendation, (Doc. No. 8), and adopt the Report and Recommendation in full. I
dismiss Grounds I and II as procedurally defaulted and Ground III as lacking merit.

So Ordered.

s/ Jeffrey J. Helmick
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367660. Public record. Not legal advice.