enforcing procedural default where objection to out-of-court statements made on the basis of hearsay, but not under the Confrontation Clause
How later courts described this case
- enforcing procedural default where objection to out-of-court statements made on the basis of hearsay, but not under the Confrontation Clause
- recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN M. GARRISON,
Case No. 2:18-cv-1153
Petitioner, Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
v.
DAVID GRAY, WARDEN,
BELMONT CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On June 10, 2019, the Magistrate Judge issued a Report and Recommendation
recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
dismissed. (ECF No. 20.) Petitioner filed an Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 21.) The case was recommitted to the Magistrate Judge for
issuance of a July 15, 2019, Supplemental Report and Recommendation. (ECF Nos. 22, 23.) On
August 26, 2019, the Petitioner filed an Objection and Supplemental Memorandum in Support to
that Supplemental Report and Recommendation. (ECF Nos. 27, 28.)
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons that follow, Petitioner’s objections (ECF No. 21, 27, 28) are OVERRULED. The
Report and Recommendation and Supplemental Report and Recommendation (ECF No. 20, 23)
are ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Court GRANTS a certificate of appealability, in part.
Petitioner challenges his conviction after a jury trial in the Muskingum County Court of
Common Pleas on aggravated burglary. He asserts that his conviction violates the Confrontation
Clause (claim one); that he was denied the effective assistance of trial counsel because his
attorney failed to raise a timely Confrontation Clause objection, failed to file a motion in limine
to prevent the admission of prior bad acts evidence, failed to file a motion to suppress
Petitioner’s statements to police, failed to exercise peremptory challenges against biased jurors,
failed to focus the jury pool on the State’s burden of proof, waived opening argument, conducted
improper cross examination of Deputy Hamilton, opened the door to admission of prejudicial
hearsay statements by Brian Hohnwald, failed to object to certain statements by prosecution
witnesses and jury instructions, and failed to request any lesser included jury instructions (claim
two); that the evidence is constitutionally insufficient to sustain his conviction, and that it is
against the manifest weight of the evidence (claim three); and that the trial court’s imposition of
a maximum consecutive term of incarceration violated the Double Jeopardy Clause (claim four).
The Magistrate Judge recommended dismissal of Petitioner’s claims as procedurally defaulted or
without merit.
Petitioner asserts that his conviction violates the Confrontation Clause, because it is
based on hearsay testimony of investigating sheriffs, Deputies Hamilton and Williams, and
neither the alleged victim or witness(es), Nikki Dickinson, or Brian Hohnwald, testified against
him at trial, despite being subpoenaed by the prosecution. Dickinson is deaf. Deputy Hamilton
testified that he communicated with her by “picking up on her gestures. Her pointing things out,
her demonstrating things, and sometimes she can utter certain words.” (Transcript, ECF No. 7-
1, PAGEID # 261.) The Ohio Fifth District Court of Appeals reviewed this claim for plain error
only, due to trial counsel’s untimely objection under the Confrontation Clause. See State y.
Garrison, 5th Dist. No. CT2017-0034, 2018 WL 1433184, at *2-3 (Ohio Ct. App. March 22,
2018). The Magistrate Judge therefore recommended dismissal of this claim as procedurally
defaulted.
Petitioner asserts that he has established the denial of the effective assistance of counsel
which establishes cause for his procedural default. He maintains that the prosecutor would or
could not have compelled the appearance of the alleged victim or witnesse(s), that they would
not have appeared for trial or testified against him, and that, therefore, had his attorney timely
objected, the charges against him would have been dismissed. Petitioner further contends that
the state appellate court unreasonably concluded that he could not establish prejudice. He again
raises all of the same arguments he previously made in regard to his remaining claims of the
denial of the effective assistance of trial counsel. Petitioner refers to Richardson v. Griffin, 866
F.3d 836 (7th Cir. 2017), in support. (Supplemental Memorandum Supporting Objection, ECF
No. 28.)
Petitioner’s arguments are not well taken. Plainly, he has procedurally defaulted his
Confrontation Clause claim by failing contemporaneously to raise the issue during trial. See
Stalling v, Burt, 772 F. App’x 296, 298-99 (6th Cir. 2019); State v. Hairston, 79 N.E.3d 1193
(Ohio Ct. App. 2016) (“Objection on one ground does not preserve other, unmentioned
grounds.”) (citations omitted); Arias v. Lafler, 511 F. App’x 440, 445-46 (6th Cir. 2013)
(enforcing procedural default where objection to out-of-court statements made on the basis of
hearsay, but not under the Confrontation Clause); United States v. Common, 563 F. App’x 429,
434-35 (6th Cir. 2014) (same). Further, it is the Petitioner’s burden to establish cause for his
procedural default. See Arias v. Lafler, 511 F. App’x at 444-45 (citing Coleman v. T. hompson,
501 U.S. 722, 750 (1991)). He has failed to do so here. Nothing in the record indicates that the
alleged victim and witnesse(s) would not have testified for the prosecution or that their testimony
would have differed in any material respect from the statements they purportedly gave police.
Therefore, Petitioner has failed to establish cause for his procedural default. Richardson, 866
F.3d at 836, does not involve the issue of cause for a procedural default of a claim under the
Confrontation Clause, and it does not assist him.
Petitioner’s remaining claims of the denial of the effective assistance of counsel likewise
do not provide him a basis for relief. “Surmounting Strickland’s high bar is never an easy task.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Padilla v. Kentucky, 559 U.S. 356, 371
(2010)).
Establishing that a state court's application of Strickland was unreasonable under
§ 2254(d) is all the more difficult. The standards created by Strickland and §
2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh vy.
Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and
when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S., at 123,
129 8.Ct. at 1420... . When § 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard.
Id, For the reasons already well detailed by the Magistrate Judge, Petitioner has failed to meet
this standard here.
Petitioner also procedurally defaulted his claim that the trial court violated the Double
Jeopardy Clause at sentencing by failing to present this federal issue to the Ohio Court of
Appeals. (See ECF No. 7, PAGEID # 111, 139-41.) Additionally, Petitioner’s claim that his
conviction was against the manifest weight of the evidence is not cognizable in these
proceedings. As to Petitioner’s claim of insufficiency of the evidence, federal habeas courts give
state court determinations a “double layer” of deference on this issue. As explained in Brown v.
Konteh, 567 F.3d 191, 205 (6th Cir. 2009), deference must be given, first, to the jury’s finding of
guilt because the standard, announced in Jackson v. Virginia, is whether “viewing the trial
testimony and exhibits 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.” Second, and
even if a de novo review of the evidence leads to the conclusion that no rational trier of fact
could have so found, a federal habeas court “must still defer to the state appellate court’s
sufficiency determination as long as it is not unreasonable.” See White vy. Steele, 602 F.3d 707,
710 (6th Cir. 2009). This is a substantial hurdle for a habeas petitioner to overcome. Petitioner
has not done so here. When viewing all of the evidence in the light most favorable to the
prosecution, this Court agrees that the evidence is constitutionally sufficient to sustain
Petitioner’s conviction.
Petitioner’s objections (ECF Nos. 21, 27, 28) are OVERRULED. The Report and
Recommendation and Supplemental Report and Recommendation (ECF No. 20, 23) are
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court now considers whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal
court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.
Fisher, 135 8. Ct. 2647, 2650 (2015); 28 U.S.C. 2253(c){1) (requiring a habeas petitioner to
obtain a certificate of appealability in order to appeal). The petitioner must establish the
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This
standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529
U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make
a substantial showing of the denial of a constitutional right, a petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893
n. 4).
Where the Court dismisses a claim on procedural grounds, however, a certificate of
appealability “should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Jd. Thus, there are two components to determining whether a certificate of appealability
should issue when a claim is dismissed on procedural grounds: “one directed at the underlying
constitutional claims and one directed at the district court's procedural holding.” Jd. at 485. The
court may first “resolve the issue whose answer is more apparent from the record and
arguments.” Jd.
This Court is not persuaded that reasonable jurists would debate whether Petitioner’s
claims should have been resolved differently or whether this Court was correct in its procedural
rulings, with the exception of the following two issues that the Court now certifies for appeal:
1. Can Petitioner establish cause and prejudice for his procedural
default of his claim that his conviction violates the Confrontation
Clause?
2. Is the evidence constitutionally sufficient to sustain Petitioner’s
conviction for aggravated burglary?
The Clerk is DIRECTED to enter FINAL JUDGMENT.
IT IS SO ORDERED.
Da i A~ B0-
EDM A. SARGUS, JR.
Chief ed States District Judge