The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GIANNA COCHRAN,
Petitioner,
Case No. 2:18-cv-1282
- vs - District Judge George C. Smith
Magistrate Judge Michael R. Merz
TERI BALDAUF, Warden,
Ohio Reformatory for Women,
Respondent.
OPINION AND ORDER
This habeas corpus case, brought by petitioner Gianna Cochran with the assistance of
counsel, is before the Court on Petitioner’s Objections (ECF No. 16) to the Magistrate Judge’s
Report and Recommendations (“Report,” ECF No. 12).
When a litigant makes specific objections to a Magistrate Judge’s Report and
Recommendations, the District Judge is to review them de novo pursuant to Federal Rule of Civil
Procedure 72(b). Having conducted that de novo review, the Court OVERRULES the Objections
and ADOPTS the Magistrate Judge’s Report and Recommendations.
Petitioner was convicted in a bench trial on twelve counts of endangering children. Having
completed the required state court procedures to exhaust available remedies, she filed her habeas
corpus petition here on October 25, 2018, pleading the following grounds for relief:
Ground One: The Petitioner was denied due process when she was
convicted without sufficient evidence to support said convictions.
Supporting Facts: The state failed to presented [sic] sufficient
evidence to support the 9 convictions to Child Endangering.
Ground Two: Petitioner was deprived of her 5th and 14th
Amendment rights when the trial court violated the Sentencing
Package doctrine.
Supporting Facts: [T]he trial court violated Due Process when it
intentionally imposed a 25-year sentence as part of a “package” in
violation of the Sentencing-Package doctrine.
Ground Three: Petitioner was deprived [of] effective assistance of
counsel when counsel failed to present exculpatory evidence.
Supporting Facts: Trial counsel failed to present evidence that
would have made a difference in the conviction.
(Petition, ECF No. 1, PageID 6, 8, 9).
I. ANALYSIS
A. Ground One: Insufficient Evidence
In her First Ground for Relief, Ms. Cochran claimed she was convicted on constitutionally
insufficient evidence. The Magistrate Judge rejected Respondent’s procedural default defense, but
concluded that the merits decision of the Tenth District was neither an objectively unreasonable
application of Supreme Court precedent nor based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding (Report, ECF No. 12, PageID 820-
32).
While acknowledging that the trial court had video footage to review of the alleged
offenses, Petitioner objects to deference to the state court findings of fact. She states that the
Report’s “logic is flawed and would dismiss the federal court’s jurisdiction to completely defer on
substantive matters. There is a difference between reasoned deference and blind acceptance. The
trial court’s findings were not supported by evidence beyond a reasonable doubt.” (Objections,
ECF No. 16, PageID 846). This objection is completely conclusory. The authority cited by the
Magistrate Judge requires a habeas court to defer to state court fact findings unless they are
unreasonable (Report, ECF No. 12, PageID 821, citing Parker v. Matthews, 567 U.S. 37, 43
(2012); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009); Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008)). The Supreme Court
has made it clear that a claim under Jackson v. Virginia, 443 U.S. 307 (1979), such as Petitioner’s
Ground One, is especially hard to sustain. Jackson, 443 U.S. at 319. If a conviction may be
sustained on circumstantial evidence along, how much more a conviction based on video recorded
evidence of the offenses?
Petitioner’s objections as to Ground One are not well taken.
B. Ground Two: Violation of the Sentencing Package Doctrine
Petitioner has withdrawn the Second Ground for Relief (Traverse, ECF No. 10, PageID
810).
C. Ground Three: Ineffective Assistance of Trial Counsel
In her Third Ground for Relief, Petitioner claims her trial attorney provided constitutionally
ineffective assistance when he failed to present Judge Christopher Geer as a witness (Traverse,
ECF No. 10, PageID 810). The Report recites the governing standard for ineffective assistance of
trial counsel from Strickland v. Washington, 466 U.S. 668 (1984), but concludes the state court
decision was not an unreasonable application of Strickland (Report, ECF No. 12, PageID 833-36).
The Report notes that this claim was first pleaded in Cochran’s petition for post-conviction
relief where Petitioner characterized Judge Geer as a person who would “offer an expert opinion
on what was depicted in the video-recording.” (Petition, State Court Record, ECF No. 4, PageID
247). In Ohio practice, the petition for post-conviction relief was heard by the same judge who
evaluated the video evidence at trial. In denying the petition, Judge Cain found that Cochran had
not provided an affidavit from Judge Geer about any projected testimony (Decision on Petition,
State Court Record, ECF No. 4, PageID 292). He also found Judge Geer’s involvement was only
as to Cochran’s children, not any of the other victims, making any projected testimony “almost
totally irrelevant.” Id. at 292-93. Finally, he noted that expert testimony is not appropriate, at least
in a case like this, to assist a trial judge in evaluating the conduct he or she has seen on video. Id.
at PageID 293. On appeal, the Tenth District Court of Appeals agreed the testimony would have
been almost totally irrelevant, but upheld the procedural ruling as well. The Magistrate Judge
concluded it would be very unusual practice to have one trial judge testify before another “to tell
the trial judge whether or not what he can see for himself constitutes child endangerment.” (Report,
ECF No. 12, PageID 836).
Petitioner objects that the testimony of Judge Geer that there was no child abuse “would
have help[ed to] remedy the poisoned waters affected [sic] by Detective Moore[,]” who testified
this was the worst case of child abuse he had seen (Objections, ECF No. 16, PageID 847). But the
Objections make no response to the absence of any proof (1) that Judge Geer was willing to testify;
or (2) that standard professional practice among defense counsel at the time would have involved
calling another judge as an expert in these circumstances.
Petitioner has not shown that failure to call Judge Geer as a witness constituted ineffective
assistance of trial counsel. Ground Three will also be dismissed.
II. CONCLUSION
Having reviewed the Objections de novo, the Court finds they are not well taken. The
Objections are accordingly OVERRULED and the Magistrate Judge’s Report is ADOPTED
AND AFFIRMED. The Petition is ordered DISMISSED WITH PREJUDICE and the Clerk
will enter judgment to that effect. Because reasonable jurists would not disagree with this
conclusion, Petitioner is denied a certificate of appealability and that the Court certifies to the Sixth
Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in
forma pauperis.
The Clerk shall remove Documents 12 and 16 from the Court’s pending motions list and
enter final judgment.
IT IS SO ORDERED.
s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT