# Rausenberg v. Warden, Ellsworth Correctional Facility

> District Court, S.D. Ohio · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10375319

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 21, 2020
- **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/10375319

## How later opinions describe it (automated extraction)

- holding that, under AEDPA deference, no custodial interrogation occurred during interview that lasted “almost four hours”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MATTHEW RAUSENBERG,
Case No. 2:19-cv-990
Petitioner, Judge Edmund A. Sargus
Magistrate Judge Kimberly A. Jolson
v.

WARDEN, ELLSWORTH
CORRECTIONAL FACILITY,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,
Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, it is
RECOMMENDED that this action be DISMISSED.
I. BACKGROUND
Petitioner challenges his convictions after a jury trial on charges of gross sexual imposition,
kidnapping, and pandering sexually oriented material involving a minor. The trial court imposed
a term of 106 years to life in prison. The Ohio Fifth District Court of Appeals affirmed that
judgment, and the Ohio Supreme Court declined to accept jurisdiction of the appeal. Petitioner
also unsuccessfully pursued state collateral relief. On March 15, 2019, Petitioner filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that: police violated Miranda
v. Arizona, 384 U.S. 436 (1966), in obtaining his statements against him (claim one); he was denied
his right to an impartial jury when the trial court refused to grant his request for a change of venue
(claim two); he was denied the effective assistance of appellate counsel (claim three); and the
evidence is constitutionally insufficient to sustain his convictions (claims four, five, and six).
Respondent argues that Petitioner procedurally defaulted these claims or that they fail on the
merits.
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
{¶ 1} Defendant-appellant Matthew D. Rausenberg appeals his convictions entered
by the Delaware County Court of Common Pleas on forty-two counts, including
gross sexual imposition, kidnapping and pandering sexually oriented material
involving a minor.FN1 Plaintiff-appellee is the state of Ohio.

FN1: Appellant was also convicted of school zone specifications attendant to the
charges.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On March 11, 2015, Detective Jason Campbell of the Delaware County
Sheriff’s Office received a referral from the Columbus Police Department relative
to the sexual assault of a juvenile. Detective Campbell met with the juvenile on
March 12, 2015.

{¶ 3} The sixteen year-old female juvenile (Jane Doe 1) stated she had been
sexually assaulted by her teacher while a student at Olentangy Arrowhead
Elementary School in Delaware County, Ohio. Jane Doe 1 told the officers the
conduct continued until 2010, as she moved through the third, fourth and fifth
grades in the same school building. On at least one occasion, the teacher used a
video camera to record the encounter. In March of 2015, Jane Doe 1 disclosed the
abuse to a Young Life counselor, a mandatory reporter, who then contacted law
enforcement.

{¶ 4} At all times relevant, Appellant was a teacher at Olentangy Arrowhead
Elementary School, where he taught for thirteen years, all but the last year as a
second grade teacher. Jane Doe 1 alleged, while she was a student at Olentangy
Arrowhead, Appellant would pull her into his classroom when no one else was
present. He would ask her to sit on his lap, and read children’s books. While
reading, Appellant would rub her body. He would unzip his pants and his penis
would be exposed. Jane Doe 1 could feel Appellant’s penis when she sat on his lap
on her back. Appellant caused Jane Doe 1 to feel his penis with her hands, and lifted
up her shirt, exposing and fondling her breasts. Appellant would place his hands
down her pants and rub/feel her vagina, skin to skin. Jane Doe 1 maintains she
attempted to push his hands away or close her legs tight, but Appellant continued.
Jane Doe 1 stated the incidents would cease when the classes in the building would
change.
The incidents began in 2006, while she was in second grade, and continued through
fifth grade in 2010. Appellant utilized a video camera to record the encounter on at
least one occasion.

{¶ 5} Jane Doe 1 related an incident to investigating officers wherein, while she
was in fifth grade, she took the camera utilized by Appellant from his classroom.
She wrote him a note stating she “knew what he was doing is wrong,” and she
would report him to the police, if his behavior continued. Jane Doe 1 stated, after
viewing the recordings on the camera, she recognized other juveniles who were
current students at Olentangy Arrowhead Elementary.FN2 Jane Doe 1 told the
officers Appellant continued to teach at Arrowhead Elementary.

FN2: Appellant retrieved the camera by visiting Jane Doe 1’s sister at her school,
and proceeding to Jane Doe 1’s residence.

{¶ 6} On March 16, 2015, Detective Campbell presented a search warrant affidavit
to a judge of the Delaware Municipal Court. Olentangy Arrowhead Elementary
School, Appellant’s place of employment, was the premises indicated in the
warrant, specifically Appellant’s classroom in the building. The search warrant
affidavit averred Jane Doe 1 recognized other girls whom she recognized as
attending the school, whom she recognized from seeing their faces on the
recordings of Appellant sexually abusing the juveniles.

{¶ 7} Detective Jason Campbell averred in the search warrant affidavit,

Based on my knowledge, experience, and training in child sexual exploitation and
child pornography investigations, and the training and experience of other law
enforcement officers with whom I have had discussions, there are certain
characteristics common to individuals involved in the receipt and collection of child
pornography,...

Based upon all of the foregoing, affiant believes and has probable cause to believe
that the offenses described above, to wit: Rape, section 2907.02 of the Ohio Revised
Code; Pandering Sexually Oriented Material Involving a Minor, section 2907.322
of the Ohio Revised Code; and Illegal Use of Minor in Nudity–Oriented Material
or Performance, section 2907.323 of the Ohio Revised Code; Specifically, camera,
camcorders, video recording devices, thumb drives, computers, laptops, and any
other media or storage device which can hold, contain, capture and/or share media
files; and any other evidence of said crimes may be located at 2385 Hollenback
Road, Lewis Center, Delaware County, Ohio 43035, identified as Olentangy
Arrowhead Elementary School.

(Emphasis added.)

{¶ 8} The judge of the Delaware Municipal Court granted the search warrant, which
was executed on March 16, 2015. Upon arrival at the school, the officers found
Appellant in his classroom, after school hours, working. The officers explained they
were executing a search warrant for his classroom. The officers then inquired of
Appellant whether he would “like to sit down and talk” to which Appellant
consented. During the search of the classroom, one IPhone 5s was located in
Appellant’s classroom, a polaroid camera, and one older IPhone 4. Appellant
provided the passwords for both devices, and consented to the search of the
devices.FN3

FN3: A more complete rendition of the facts and procedural history is set forth in
our analysis and disposition of Appellant’s assignments of error.

{¶ 9} The Delaware County Grand Jury indicted Appellant, in Case No.
15CRI030112, on thirty-two counts, including gross sexual imposition, kidnapping
and pandering sexually oriented material involving a minor. On August 21, 2015,
the State dismissed the original indictment, reindicting Appellant on the original
charges and ten additional charges encompassing four new victims, in Case No.
15CRI080391.FN4

FN4: For purposes of the within appeal, we find a rendition of the underlying facts
relative to the other four victims unnecessary for resolution of the appeal.
Therefore, we have summarily included only the procedural posture relative to the
indictment and reindictment herein.

{¶ 10} On November 9, 2015, the trial court conducted a hearing on Appellant’s
motions to suppress filed July 28, 2015, and July 30, 2015.

{¶ 11} Via Judgment Entry of November 12, 2015, the trial court denied
Appellant’s motions to suppress.

{¶ 12} The jury returned a verdict of guilty on all counts, except Count 42, on which
the jury returned a verdict of not guilty. Appellant was also found guilty as to the
school zone specifications.FN5 Via Judgment Entry on Verdicts entered January
26, 2016, the trial court entered judgment of convictions as found by the jury.

FN5: The sexual motivation specifications on Counts 38, 40 and 42 were dismissed
prior to trial.

{¶ 13} Via Judgment Entry on Sentence entered January 28, 2016, the trial court
sentenced Appellant to a total definite sentence of seventy-six years, consecutive
to an indefinite sentence of thirty years to life.FN6 The trial court further designated
Appellant a Tier III child victim offender, subject to lifetime registration.

FN6: Appellant has not assigned as error the sentence imposed by the trial court
herein; therefore, for purposes of this appeal, we have summarily referred to the
total sentence imposed.
{¶ 14} Appellant appeals, assigning as error:

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT WHEN IT DENIED
DEFENDANT/APPELLANT’S MOTION TO DISMISS THE INDICTMENT AS
THE STATE VIOLATED DEFENDANT/APPELLANT’S STATUTORY AND
CONSTITUTIONAL RIGHTS TO A TIMELY TRIAL.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT WHEN IT DENIED
DEFENDANT/APPELLANT’S MOTION TO SUPPRESS EVIDENCE
OBTAINED IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS.

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT WHEN IT GRANTED A SEARCH WARRANT
UPON IMPROPER AND STALE INFORMATION.

IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT WHEN IT DENIED
DEFENDANT/APPELLANT’S MOTION FOR A CHANGE OF VENUE.

State v. Rausenberg, 5th App. Dist. No. 16CAA020007, 2017 WL 1102781, at *1–3 (Ohio Ct.
App. March 23, 2017). On March 23, 2017, the appellate court affirmed the trial court’s judgment.
Id. On December 20, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal.
State v. Rausenberg, 151 Ohio St.3d 1473 (Ohio 2017).
On June 17, 2017, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (Doc. 4-1, PAGEID #: 386). The state appellate court overruled the motion
except as to Petitioner’s claim that the judgment was against the manifest weight and sufficiency
of the evidence on four kidnapping convictions. See State v. Rausenberg, 5th Dist. No.
16CAA020007, 2018 WL 3612886, at *2 (Ohio Ct. App. July 26, 2018).1 On July 26, 2018,

1 Petitioner filed a timely appeal to the Ohio Supreme Court. (Doc. 4-1, PAGEID #: 421). On February 14, 2018, the
Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Rausenberg, 151 Ohio St.3d 1527 (Ohio
2018).
however, the appellate court overruled the sole assignment of error and affirmed the judgment of
the trial court. Id. Petitioner apparently did not file an appeal to the Ohio Supreme Court.
II. STANDARD OF REVIEW
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court’s review of state-court

determinations. AEDPA is “a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court,” and courts must not “lightly conclude that a State’s
criminal justice system has experienced the ‘extreme malfunction’ for which federal habeas relief
is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)).
“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner
must show that the state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established federal law”); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state
court relied on an “unreasonable determination of the facts in light of the evidence presented in
the State court proceeding”).
The United States Court of Appeals for the Sixth Circuit has explained these standards as
follows:
A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law[,]” or (2) “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). A state court’s decision is an “unreasonable application” under 28
U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts of the particular ...
case” or either unreasonably extends or unreasonably refuses to extend a legal
principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362,
120 S.Ct. 1495, 146 L.Ed.2d 389.

Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
“In order for a federal court to find a state court’s application of [Supreme Court precedent]
unreasonable, ... [t]he state court’s application must have been objectively unreasonable,” not
merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citation and
quotations omitted). In considering a claim of “unreasonable application” under § 2254(d)(1),
courts must focus on the reasonableness of the result, not on the reasonableness of the state court’s
analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009). Relatedly, in evaluating the
reasonableness of a state court’s ultimate legal conclusion under § 2254(d)(1), a court must review
the state court’s decision based solely on the record that was before it at the time it rendered its
decision. Pinholster, 563 U.S. at 181. Put simply, “review under § 2254(d)(1) focuses on what a
state court knew and did.” Id. at 182.
III. DISCUSSION
Respondent argues that the Petition should be denied because (1) Petitioner procedurally
defaulted claims four, five, and six and (2) Petitioner’s remaining claims fail on the merits. The
Undersigned addresses each of these arguments in turn.
A. Procedural Default
In claims four, five, and six, Petitioner asserts that the evidence is constitutionally
insufficient to support his convictions. (Doc. 1, PAGEID #: 10, 14, 16). The Undersigned finds
that Petitioner has procedurally defaulted these claims.
Congress has provided that state prisoners who are in custody in violation of the

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to
protect the constitutional rights of criminal defendants, and in order to prevent needless friction
between the state and federal courts, a state criminal defendant with federal constitutional claims
is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is
subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner
has failed to exhaust claims but would find those claims barred if later presented to the state courts,

“there is a procedural default for purposes of federal habeas.” Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991).
The term “procedural default” has come to describe the situation where a person convicted
of a crime in a state court fails (for whatever reason) to present a particular claim to the highest
court of the State so that the State may have a fair chance to correct any errors made in the course
of the trial or the appeal before a federal court intervenes in the state criminal process. This
“requires the petitioner to present ‘the same claim under the same theory’ to the state courts before
raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004)
(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives the
state courts a fair opportunity to rule on the federal law claims being asserted. That means that, if
the claims are not presented to the state courts in the way in which state law requires, and
consequently, the state courts do not decide the claims on their merits, neither may a federal court.
See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that “contentions of federal law which

were not resolved on the merits in the state proceeding due to respondent’s failure to raise them
there as required by state procedure” also cannot be resolved on their merits in a federal habeas
case—that is, they are “procedurally defaulted”).
To determine whether a habeas petitioner has procedurally defaulted a claim, courts
consider whether: (1) the petitioner failed to comply with a state procedural rule; (2) the state
courts enforce that rule; (3) the rule is an adequate and independent state ground for denying review
of a petitioner’s federal constitutional claim; and (4) the petitioner can show cause and prejudice
excusing the default. Williams v. Burt, 949 F.3d 966, 972–73 (6th Cir. 2020) (citing Guilmette v.
Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc)).

1. Absent a showing of cause and prejudice, Ohio’s doctrine of res judicata bars
this Court’s consideration of claims four, five, and six.

Here, in claims four, five, and six, Petitioner raises three insufficiency of the evidence
arguments, none of which were raised on direct appeal. (Compare Doc. 1, PAGEID #: 10, 14–17)
with Rausenberg, 2017 WL 1102781, at *3 (quoting Petitioner’s assignment of errors on direct
appeal).2 But Ohio’s res judicata rule requires a petitioner to raise claims apparent on the face of

2 In state court, Petitioner filed a Rule 26(B) Application to Reopen based on appellate counsel’s alleged ineffective
assistance for, among other things, failing to raise certain insufficiency of the evidence arguments. (See Doc. 4-1,
PAGEID #: 390–93). That does not preserve those sufficiency of the evidence claims for purposes of federal habeas
review. See Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012) (citing Lott v. Coyle, 261 F.3d 594, 612 (6th
Cir. 2001)) (holding that Rule 26(B) “motions are vehicles designed exclusively for raising claims alleging”
ineffective assistance of appellate counsel and that such “motions preserve[] for habeas review only … IAAC
arguments, not the underlying substantive arguments”); Somers v. Warden, Noble Corr. Inst., No. 2:19-CV-5633,
2020 WL 1154545, at *3 (S.D. Ohio Mar. 10, 2020) (“Presentation of a claim as an omitted assignment of error in a
the record on direct appeal. State v. Cole, 2 Ohio St.3d 112, 115 (1982); State v. Perry, 10 Ohio
St.2d 175, 180 (1967). And the Sixth Circuit has concluded that rule is consistently enforced and
constitutes an adequate and independent state ground “foreclosing review in subsequent federal
habeas proceedings.” Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (citing Seymour v.
Walker, 224 F.3d 542, 555 (6th Cir. 2000)). Because Petitioner failed to comply with that rule and

did not raise claims four, five, and six in his direct appeal, he has waived these claims for federal
habeas corpus review absent a showing of cause and prejudice.
2. Plaintiff has failed to demonstrate cause and prejudice excusing his procedural
default.

Petitioner has not, and cannot, demonstrate cause and prejudice here. First, Petitioner does
not address Respondent’s procedural default argument. (See generally Doc. 17). Nor does he
make a cause and prejudice argument. (See generally id.). That is a problem. See Pinholster, 563
U.S. at 181 (holding that the burden of satisfying the standards set forth in § 2254 rests with the
petitioner); Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d
412, 418 (6th Cir. 1999)) (internal citation omitted) (“[P]etitioner bears the burden of showing
cause and prejudice to overcome a procedural default.”). Because Petitioner has failed to make,
let alone develop, such an argument he has waived it and failed to meet his burden as a result. See
Abdulsalaam v. Franklin Cty. Bd. of Comm’rs, 637 F. Supp. 2d 561, 576 (S.D. Ohio 2009), aff’d,
399 F. App’x 62 (6th Cir. 2010) (collecting cases) (holding that undeveloped arguments are
waived).

Rule 26(B) Application does not preserve that claim for merits review in federal habeas corpus.”). Moreover, the
insufficiency of the evidence arguments raised in his Rule 26(B) Application to Reopen are distinct from those raised
here. (Compare Doc. 1 at 10, 14–17 with Doc. 4-1, PAGEID #: 390–93). Even if Petitioner could have preserved his
insufficiency of the evidence arguments in his Rule 26(B) Application, he failed to present “‘the same claim under the
same theory’ to the state courts before raising it on federal habeas review,” Hicks, 377 F.3d at 552–53 (quoting Pillette,
824 F.2d at 497).
Second, even if Petitioner had made such a cause and prejudice argument, the result would
be the same. The only possible ground for cause that the Undersigned can see is an ineffective
assistance of appellate counsel argument based on appellate counsel’s decision not to appeal
Petitioner’s conviction based on the arguments in claims four, five, and six. Although ineffective
assistance of appellate counsel may constitute cause to excuse a procedural default, such a claim

“generally must ‘be presented to the state courts as an independent claim before it may be used to
establish cause for a procedural default.’” Edwards v. Carpenter, 529 U.S. 446, 452 (2000)
(quoting Murray v. Carrier, 477 U.S. 478, 490–492 (1986)). Petitioner failed to comply with that
requirement here. (Compare Doc. 4-1, PAGEID #: 390–93 (raising a general ineffective assistance
of appellate counsel argument based on appellate counsel’s decision not to appeal all of
Petitioner’s convictions on sufficiency of the evidence grounds and, specifically, for failing to
challenge Petitioner’s kidnapping convictions on the ground that the victims did not suffer any
physical harm) with Doc. 1, PAGEID #: 8, 10, 14, 16; Doc. 17, PAGEID #: 2443–48 (asserting
ineffective assistance of counsel based on different claims, namely, the failure to raise the

sufficiency of the evidence arguments presented in claims four, five, and six)). Because Petitioner
failed to raise “the same claim under the same theory to the state courts before raising it on federal
habeas review,” Hicks, 377 F.3d at 552–53 (citation and quotations omitted), he procedurally
defaulted that claim of ineffective assistance of counsel. He cannot use that claim to excuse his
procedural default of claims four, five, and six as a result. See Edwards, 529 U.S. at 452.
3. Petitioner does not argue for, and the record does not support, the application
of the actual innocence exception.

A claim of actual innocence may be raised “to avoid a procedural bar to the consideration
of the merits of [the petitioner’s] constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27
(1995). Petitioner does not argue that this exception applies to him, and nothing in the record
suggests that it does. Petitioner has procedurally defaulted claims four, five, and six as a result.
B. Remaining Claims
That leaves three claims for the Undersigned to address on the merits.
1. Claim One – Miranda violation

In claim one, Petitioner asserts that the police violated his Miranda rights when they
questioned him at school during the execution of a search warrant. (Doc. 1, PAGEID #: 5; Doc.
17, PAGEID #: 2415–41). According to him, the state appellate court improperly failed to consider
the totality of circumstances when it determined that the evidence did not indicate that he was “in
custody” such that Miranda applied. (Doc. 17, PAGEID #: 2422–36). He complains that the state
appellate court failed to consider facts indicating that the police isolated him from his coworkers
and friends for two hours, confined him in a closed room, prevented him from leaving without an
escort, made it clear that he would not be released until they searched his home a second time,
acted aggressively towards him, seized his cell phone, and arrested him at conclusion of the

interview. (Id.). These facts, Petitioner argues, show that he was in custody when police
questioned him. Petitioner also challenges the admission of video recordings police obtained from
his iPhone 4 by using the passcode he provided on this basis. (Id., PAGEID #: 2439–41).
The Fifth Amendment provides bedrock protections against government overreach. It
states that no individual “shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. Amend. V. The Fifth Amendment requires that an individual subject to custodial
interrogation be informed clearly and unequivocally: (1) that he “has the right to remain silent”;
(2) that “anything said can and will be used against the individual in court”; and (3) that “he has
the right to consult with a lawyer and to have the lawyer with him during interrogation;” and (4)
“that if he is indigent[,] a lawyer will be appointed to represent him.” Miranda, 384 U.S. at 567–
73. These warnings form “an absolute prerequisite to interrogation.” Id. at 471.
“[C]ustody must be determined based on how a reasonable person in the suspect’s situation
would perceive his circumstances.” Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). In
making this determination, a reviewing court conducts two “discrete inquiries”:

[F]irst, what were the circumstances surrounding the interrogation; and second,
given those circumstances, would a reasonable person have felt he or she was not
at liberty to terminate the interrogation and leave. Once the scene is set and the
players’ lines and actions are reconstructed, the court must apply an objective test
to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.

Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal citation, quotations, and alterations
omitted). “Several factors guide the inquiry: the location of the interview; the length and manner
of questioning; whether the individual possessed unrestrained freedom of movement during the
interview; and whether the individual was told she need not answer the questions.” United States
v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (citing United States v. Swanson, 341 F.3d 524, 529
(6th Cir. 2003)).
Here, the state appellate court concluded that Petitioner was not in custody for purposes of
Miranda during his questioning by law enforcement. Rausenberg, 2017 WL 1102781, at *6–7.
That was not an unreasonable application of clearly established federal law.
First, a reasonable jurist could conclude that the location of the interview weighs against a
finding that Petitioner was in custody for purposes of Miranda. After obtaining a search warrant
to search Petitioner’s home and classroom, law enforcement officers met Petitioner in his
classroom after school. (Doc. 4-1, PAGEID # 707–08). Petitioner accompanied them to a
conference room adjacent to the main office. The conference room contained a large table with
eight to ten chairs around it. (Id., PAGEID #: 713). “The place of the questioning in the present
case is substantially less hostile or coercive than in other cases in which this court or the Supreme
Court has held that a detainee was not entitled to a Miranda warning.” Swanson, 341 F.3d at 529
(collecting cases in which individuals were questioned at police stations and found not be in
custody for purposes of Miranda).
Second, a reasonable jurist could conclude that the fact that Petitioner was told he need not

answer the questions weighs against a finding that he was in custody for purposes of Miranda.
Police advised Petitioner that the interview was voluntary, (PAGEID # 717), and told Petitioner
that he was free to leave and that he did not need to speak with them, (PAGEID #: 748). Cf.
Swanson, 341 F.3d at 530 (“Most important to our analysis, though, is that Swanson was explicitly
told by Fleming that he was not under arrest and that he did not have so speak with him if he did
not choose to.”).
Third, a reasonable jurist could conclude that Petitioner’s freedom of movement weighs
against a finding that he was in custody for purposes of Miranda. Although law enforcement
officers explained that he could not return to the classroom while a search warrant was being

executed, (Doc. 4-1, PAGEID #: 719–20), they told him that he was free to leave, (id., PAGEID
#: 748); did not block his access to the door to the conference room, (id., PAGEID #: 714), and
did not handcuff or restrain him in any way, (id., PAGEID #: 716). Cf. Panak, 552 F.3d at 467
(collecting cases) (concluding that an individual was not in custody, in part, because, “[d]uring the
interview, the officers did not handcuff Panak or physically restrain her, and they did not otherwise
limit her freedom of movement.”).
Fourth, a reasonable jurist could conclude that the length and manner of questioning weighs
against a finding that Petitioner was in custody for purposes of Miranda. Petitioner was questioned
for approximately two hours. (Doc. 4-1, PAGEID #: 708, 761). By itself, a two-hour period of
questioning is not suggestive of custodial interrogation. See Mason v. Mitchell, 320 F.3d 604,
631–32 (6th Cir. 2003) (holding that, under AEDPA deference, no custodial interrogation occurred
during interview that lasted “almost four hours”). While law enforcement officers questioned
Petitioner regarding “the nature of his interactions with certain students, his Internet search history,
[] questions regarding his personal and family life,” allegations of misconduct, and Petitioner’s

truthfulness, (Doc. 17, PAGEID #: 2430–33), there is no suggestion that law enforcement officers
raised their voice or brandished firearms or handcuffs. Cf. Panak, 552 F.3d at 467 (citation
omitted) (concluding that individual was not in custody, in part, because during questioning,
“[n]obody raised his voice, and the investigators did not possess, much less brandish, firearms or
handcuffs”).
In view of the foregoing, Petitioner has failed to establish that the state court unreasonably
applied clearly established federal law in determining that he was not in custody at the time of
questioning by law enforcement. Claim one is, therefore, without merit.
2. Claim Two – Fair and Impartial Jury

In claim two, Petitioner asserts that the state trial court’s refusal to grant his request for a
change of venue based on pre-trial publicity denied him a fair trial. (Doc. 1, PAGEID #: 7).
Petitioner argues that the state trial court conducted an inadequate voir dire to determine whether
potential jurors were, in fact, impartial. (Id.; Doc. 17, PAGEID #: 2441–43). Specifically, he
complains that the state trial court failed to question each potential juror as to the nature and extent
of their exposure to pre-trial publicity regarding the case. (Doc. 17, PAGEID #: 2442–43). He
further asserts that the state appellate court unreasonably applied federal law when it failed to
address the state trial court’s inadequate voir dire. (Id., PAGEID #: 2443).
A defendant’s request for a change of venue should be granted where prejudicial pretrial
publicity jeopardizes the defendant’s right to a fair trial by an impartial jury. Irwin v. Dowd, 366
U.S. 717, 722–24 (1961). “Prejudice resulting from pretrial publicity can be presumptive or
actual.” Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007) (citing Nevers v. Killinger, 169 F.3d
352, 362 (6th Cir. 1999), abrogated on other grounds, Harris v. Stovall, 212 F.3d 940, 942–43

(6th Cir. 2000)).
In the absence of presumed prejudice, a trial court should confront the fact of the publicity
and determine if it rises to the level of actual prejudice by conducting a “searching voir dire.”
Ritchie v. Rogers, 313 F.3d 948, 962 (6th Cir. 2002). Significantly, jurors need not be “totally
ignorant of the facts and issues involved.” Irvin, 366 U.S. at 722.
In these days of swift, widespread and diverse methods of communication, an
important case can be expected to arouse the interest of the public in the vicinity,
and scarcely any of those best qualified to serve as jurors will not have formed some
impression of opinion as to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any preconceived notion as to
the guilt or innocence of an accused, without more, is sufficient to rebut the
presumption of a prospective juror’s impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based upon the evidence presented in court.

Id. at 722–23. Thus, a juror’s “mere prior knowledge of the existence of the case, or familiarity
with the issues involved, or even some preexisting opinion as to the merits, does not in and of itself
raise a presumption of jury taint[.]” Campbell v. Bradshaw, 674 F.3d 578, 594 (6th Cir. 2012)
(citation and quotations omitted). Rather, “[t]he relevant question is did the juror swear that he
could set aside any opinion he might hold and decide the case on the evidence, and should the
juror’s protestation of impartiality have been believed.” Id. (citation, quotations, and alteration
omitted).
“No hard-and-fast formula dictates the necessary depth or breadth of voir dire.” Skilling
v. United States, 561 U.S. 358, 386 (2010) (citing United States v. Wood, 299 U.S. 123, 145–46
(1936)); see also Morgan v. Illinois, 504 U.S. 719, 729 (1997) (“The Constitution . . . does not
dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.”). So a
trial court is granted wide discretion in conducting voir dire. Mu’Min v. Virginia, 500 U.S. 415,

427 (1991).
Here, the state appellate court concluded that the trial court did not err in empaneling a fair
and impartial jury. Rausenberg, 2017 WL 1102781, at *10–11. That was not an unreasonable
application of clearly established federal law.
Petitioner’s claim of actual prejudice fails for two reasons.3 First, beyond citing the general
standard regarding the right to a fair trial by an impartial jury, (see Doc. 17, PAGEID #: 2441–43),
Petitioner has not identified any clearly established federal law that the state appellate court applied
unreasonably. Cf. Pinholster, 563 U.S. at 181 (holding that the burden of satisfying the standards
set forth in § 2254 rests with the petitioner)

Second, and more importantly, the record shows that the state trial court conducted a
constitutionally adequate voir dire. The state trial court advised potential jurors regarding the
purpose of voir dire––to ensure that the defendant obtained a fair and impartial jury. (Doc. 4-1,
PAGEID #: 825). It individually questioned each person who indicated that they had heard about
the case as to the nature and extent of their pretrial exposure. And it explicitly questioned each
one regarding their ability to set aside any information they had heard and decide the case solely
on the facts and legal instructions provided in court. (Id., PAGEID #: 833–50). Further, the state
trial court individually questioned each person who indicated that they had already formed or

3 Petitioner does not allege, and the record does not reflect, a pervasive circus-like atmosphere supporting a
presumption of prejudice.
expressed an opinion of guilt. (Id., PAGEID #: 849–54). The parties also had the opportunity to
inquire each of the potential jurors regarding potential bias. (Id., PAGEID # 883–962).
Ultimately, the trial court removed each of the jurors who indicated that they could not be
impartial. Rausenberg, 2017 WL 1102781, at *10. Seven jurors who indicated that they had
previously heard or read something about the case each confirmed that they had no bias against

the Petitioner and that would be serve fair and impartially. Id. The remainder of the jurors seated
did not indicate that they had previously heard or read anything about the case and confirmed their
ability to be fair and impartial or did not indicate any bias when questioned during voir dire. Id.
Did the empaneled jurors swear that they could set aside any opinion they might hold and
decide Petitioner’s case on the evidence, and should their protestations of impartiality have been
believed? On the record before the Court, yes. And, “[n]otably, [Petitioner] has not identified any
juror who was actually seated that indicated an inability to set aside any prior knowledge about the
case or to judge the case fairly and impartially.” Campbell, 674 F.3d at 594 (citation omitted).
Given trial courts’ wide discretion in conducting voir dire, Mu’Min, 500 U.S. at 427, the state

appellate court did not unreasonably apply clearly established federal law here. Claim two,
therefore, lacks merit.
3. Claim Three – Ineffective Assistance of Appeal Counsel
Petitioner alleges that his counsel on his direct appeal rendered ineffective assistance
because he did not raise claims of: (1) ineffective assistance of trial counsel for failing to object to
the prosecutor playing out-of-context excerpts of Petitioner’s recorded interview; (2) insufficient
evidence on the individual counts for which Petitioner was convicted;4 and (3) erroneous
admission of other acts evidence that did not comply with Ohio law. (Doc. 1, PAGEID #: 8).

4 The Undersigned has already concluded that Petitioner procedurally defaulted any ineffective assistance of appellate
counsel argument related to claims four, five, and six. See supra Section III.A.2.
Here, the state appellate court concluded that Petitioner’s appellate counsel did not render
ineffective assistance of counsel related to any of the claims at issue here. (Doc. 4-1,
PAGEID #: 512–20). That was not an unreasonable application of clearly established federal law.
The United States Supreme Court has cautioned federal habeas courts to “guard against the
danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).”

Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court observed that while “[s]urmounting
Strickland’s high bar is never … easy[,] … [e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is even more difficult.” Id. (citations and quotations
omitted). The Court instructed that the standards created under Strickland and § 2254(d) are both
“highly deferential, and when the two apply in tandem, review is doubly so.” Id. (citations and
quotations omitted). Thus, when a federal habeas court reviews a state court’s determination
regarding an ineffective assistance of counsel claim, “[t]he 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.

Applying this deferential standard of review, Petitioner has failed to establish that relief is
warranted. Indeed, beyond relying on his arguments related to claims four, five, and six, Petitioner
does not develop his ineffective assistance of counsel argument. (See Doc. 17, PAGEID #: 2443–
44). It is not this Court’s function to scour the record in search of evidence supporting Petitioner’s
claim. See Bethel v. Bobby, No. 2:10-cv-391, 2019 WL 2170682, at *7 (S.D. Ohio May 20, 2019)
(citation omitted). And because Petitioner has failed to develop his argument, he has waived it,
Abdulsalaam, 637 F. Supp. 2d at 576, and failed to meet his burden as a result. Claim three is,
therefore, without merit.
IV. RECOMMENDED DISPOSITION

For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED.
Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision,
they may submit arguments in any objections filed, regarding whether a certificate of appealability
should issue.
IT IS SO ORDERED.

Date: April 21, 2020 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375319. Public record. Not legal advice.