Johnson v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JOSHUA R. JOHNSON,

Petitioner, : Case No. 2:19-cv-3492

- vs - District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Joshua Johnson pursuant to 28

U.S.C. § 2254 to obtain relief from his conviction in the Court of Common Pleas of Fayette

County, Ohio, on charges of illegal conveyance of drugs of abuse onto the grounds of a detention

facility. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF

No. 4), the trial transcript (ECF No. 5-1), Respondent’s Return of Writ (ECF No. 6), and

Petitioner’s Reply (ECF No. 9).

The Magistrate Judge reference in the case has recently been transferred to the undersigned

to help balance the Magistrate Judge workload in the District.

Litigation History

Johnson was indicted December 8, 2017, on four counts of illegal conveyance of drugs

onto the grounds of a detention facility, but the count relating to methamphetamine was dismissed

prior to trial. A jury convicted Johnson on the three remaining counts. After merging the second

and third counts under Ohio Revised Code § 2941.25, the trial judge sentenced Johnson to thirty

months on each of the two remaining counts with the time to be served concurrently.

Represented by new counsel, Johnson appealed to the Ohio Twelfth District Court of

Appeals which affirmed. State v. Johnson, 2019-Ohio-754 (Ohio App. 12th Dist.. Mar. 4, 2019),

appellate jurisdiction declined, 2019-Ohio-2498 (2019). Johnson next filed his Petition in this

Court, pleading the following grounds for relief:

GROUND ONE: The Trial Court erred in denying Petitioner’s

Crim. R. 29 Motion for Acquittal as the evidence was Insufficient to

conclude that guilt had been proven beyond a reasonable doubt in

violation of Petitioner’s rights to Due Process Equal Law and Fair

Trial as guaranteed by the 5th, 6th and 14th Amendment [sic], United

States Constitution; Article 1, Section 10 and 16, Ohio Constitution.

GROUND TWO: Trial Counsel Rendered Ineffective Assistance

During Trial, resulting in a violation of Petitioner’s right to Effective

Assistance of Counsel as guaranteed by the 6th Amendment, United

States Constitution; Sections 10 and 16, Article 1, Ohio

Constitution.

GROUND THREE: The Trial Court erred in denying Petitioner’s

motion for discovery sanctions, resulting in a violation of

Petitioner’s right of Due Process and a Fair Trial as guaranteed by

the 5th, 6th and 14th Amendment [sic], United States Constitution;

Section 10 and 16, Article 1, Ohio Constitution.

GROUND FOUR: The Trial Court erred in sentencing Petitioner

based upon a Trial Tax, resulting in a violation of Petitioner’s right

to Due Process and Fair Trial as guaranteed, by the 5th, 6th and 14th

Amendment [sic], United States Constitution; Section 10 and 16,

Article 1, Ohio Constitution.

(Petition, ECF No. 1, PageID 5-10).

Analysis

Ohio Constitutional Claims

Each of Petitioner’s four Grounds for Relief includes a claim under the Ohio Constitution.

Federal habeas corpus courts are authorized to grant relief only for violations of the United States

Constitution. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497

U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939

(1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations

on state law questions. In conducting habeas review, a federal court is limited to deciding whether

a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,

502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160

(1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar

concurring).

Therefore this Report will not analyze Petitioner’s Ohio constitutional claims, over which

we have no jurisdiction.

Ground One: Insufficient Evidence to Convict

In his First Ground for Relief, Johnson asserts he was convicted on insufficient evidence.

Johnson presented this claim as his first Assignment of Error on appeal and the Twelfth District

decided it together with his manifest weight of the evidence claim as follows:

[*P14] Appellant argues that his conviction for illegal conveyance

of the cocaine, heroin, and fentanyl onto the grounds of the jail is

not supported by sufficient evidence and is against the manifest

weight of the evidence because the baggies of drugs produced at trial

were not properly authenticated under Evid.R. 901 as the baggies

removed from appellant's buttocks. Specifically, appellant argues

that Corporal Stegall never testified that the baggies presented at

trial were the baggies he recovered from appellant. Similarly,

Sergeant Payton never testified that the baggies presented at trial

were the baggies Corporal Stegall handed to him.

[*P15] Crim.R. 29(A) provides that "[t]he court on motion of a

defendant or on its own motion, after the evidence on either side is

closed, shall order the entry of a judgment of acquittal * * * if the

evidence is insufficient to sustain a conviction of such offense or

offenses." An appellate court reviews the denial of a Crim.R. 29(A)

motion pursuant to the same standard as that used to review a

sufficiency-of-the-evidence claim. State v. Workman, 12th Dist.

Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-

8638, ¶ 19.

[*P16] When reviewing the sufficiency of the evidence underlying

a criminal conviction, an appellate court examines the evidence in

order to determine whether such evidence, if believed, would

support a conviction. Id. at ¶ 20. The relevant inquiry 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." State v.

Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321,

¶ 22.

[*P17] To determine whether a conviction is against the manifest

weight of the evidence, the reviewing court must look at the entire

record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses, and determine whether in resolving

the conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Bradbury, 12th

Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17. An

appellate court will overturn a conviction due to the manifest weight

of the evidence only in extraordinary circumstances when the

evidence presented at trial weighs heavily in favor of acquittal. Id.

at ¶ 18.

[*P18] Appellant was convicted of violating R.C. 2921.36(A)(2)

and 2921.36(G)(2), which prohibit any person from knowingly

conveying drugs of abuse onto the grounds of a detention facility.

[*P19] "The requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its

proponent claims." Evid.R. 901. The "threshold requirement for

authentication of evidence is low and does not require conclusive

proof of authenticity." State v. Freeze, 12th Dist. Butler No.

CA2011-11-209, 2012-Ohio-5840, ¶ 65. Rather, "the state only

needs to demonstrate a 'reasonable likelihood' that the evidence is

authentic." Id. Either circumstantial evidence or direct evidence may

be used to prove the authenticity of evidence. State v. Vermillion,

4th Dist. Athens No. 15CA17, 2016-Ohio-1295, ¶ 14. Testimony of

a witness with knowledge that the "matter is what it is claimed to

be" is sufficient to properly authenticate an item pursuant to Evid.R.

901(A). State v. Waver, 12th Dist. Butler No. CA2015-08-155,

2016-Ohio-5092, ¶ 28. A chain of custody is part of the

authentication requirement for the admission of evidence under

Evid.R. 901. State v. Glover, 12th Dist. Brown No. CA2015-01-002,

2015-Ohio-3707, ¶ 30.

[*P20] We find that the drugs tested at BCI and produced at trial

were properly authenticated under Evid.R. 901 as the drugs

recovered from appellant. Corporal Stegall testified he took the

baggies containing the suspected drugs from appellant and

subsequently handed them directly to Sergeant Payton. Sergeant

Payton took the baggies, put them in a bag, and logged them into

evidence, thereby creating an evidence sheet for each baggie and

assigning the baggies a shared tag identification number and a

specific, individual identification number for each baggie. Once

logged into evidence, the baggies were placed in a temporary

evidence locker.

[*P21] Trial testimony indicates that once evidence is secured into

the temporary locker, only two officers have access to the locker

keys and may personally retrieve the evidence, namely, Sergeant

Fausnaugh and another officer not involved in the case. Sergeant

Fausnaugh testified that on July 2, 2017, he personally retrieved the

baggies from the temporary locker and secured them into the

property room, and that the following day, he personally transported

them to BCI for testing. Each time, Sergeant Fausnaugh scanned the

barcode assigned to the baggies' individual identification number

and recorded the move on and signed the baggies' respective

evidence sheet. Both sheets show that once the baggies were secured

in the temporary evidence locker, Sergeant Fausnaugh was the only

officer who subsequently handled them.

[*P22] Ward, a forensic scientist at BCI, testified the baggies were

submitted to BCI on July 3, 2017, were logged into BCI's system

and stored in a secure evidence vault until testing, and were tested

for drugs on November 20, 2017. Ward personally analyzed the

substance contained in the baggies. She testified one baggie

contained cocaine; the other contained a mixture of heroin and

fentanyl. Once the analysis was completed, Ward sealed each baggie

in a separate bag which she initialed and dated, then placed both

bags into a larger container which she sealed, dated, and initialed.

Trial evidence shows that the larger container was transported back

to the property room at the Fayette County Sheriff's Office by

Sergeant Fausnaugh.

[*P23] The state presented detailed testimony from several

witnesses that traced each step in the chain of custody of the drugs

from their removal from appellant's person through testing at BCI

and presentation at trial. The trial testimony leaves little doubt that

the baggies introduced at trial were the same baggies found on

appellant's person in the drunk tank. Further, there is no evidence

the baggies were tampered with in any way. There was sufficient

testimony to determine that the baggies were what they were

purported to be and thus, they were properly authenticated under

Evid.R. 901.

[*P24] Moreover, because deficiencies or irregularities in the chain

of custody generally go to the weight of the evidence, not its

admissibility, it was for the jury to determine the weight to be given

to this evidence. Glover, 2015-Ohio-3707 at ¶ 36. Based upon the

jury's guilt finding, the jury clearly found that the baggies recovered

from appellant's person in the drunk tank contained cocaine and a

mixture of heroin and fentanyl. It is well-established that it is the

trier of fact who makes determinations of credibility and the weight

to be given to the evidence. Id. at ¶ 37. As the trier of fact, the jury

was free to believe or disbelieve all, part, or none of the testimony

of the state witnesses presented at trial. Id.

[*P25] Appellant's conviction is therefore not against the manifest

weight of the evidence. Our determination that appellant's

conviction is supported by the manifest weight of the evidence is

also dispositive of the issue of sufficiency. State v. Peyton, 12th

Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48. Appellant's

first and second assignments of error are overruled.

Johnson, supra.

The Warden bifurcates his response to Ground One. He asserts that, to the extent Johnson

is arguing that the chain of custody was not properly maintained and testified to, that is a question

of Ohio evidence law on which the decision of the Twelfth District Court of Appeals is binding on

this Court. On the other hand, the question of whether the State presented sufficient evidence to

prove Johnson conveyed drugs into the jail is admittedly a federal constitutional question

cognizable in habeas corpus, but the Warden contends the Twelfth District’s decision of this

question is entitled to deference under 28 U.S.C. § 2254(d)(1) and (2)(Return, ECF No. 6, PageID

270-79.

Johnson spends the first part of his Reply arguing the chain-of-custody question (ECF No.

9, PageID 299-305). As the Warden argues, the question of whether the evidence satisfied Ohio

R. Evid. 901 is purely a question of state law on which we are bound by the state courts’ decision.

Bradshaw v. Richey, 546 U.S. 74 (2005).

On the other hand, a claim that there is insufficient evidence to convict does state a claim

under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,

200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).

In order for a conviction to be constitutionally sound, every element of the crime must be proved

beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, 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 . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

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.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

In order to convict Johnson of a violation of Ohio Revised Code §§ 2921.36(A)(2) and

2921.36(G)(2), the State had to prove that Petitioner knowingly conveyed one or more drugs of

abuse into a detention facility. There is no doubt that the Fayette County Jail qualifies as a

“detention facility” for purposes of the statute. There is no dispute of the fact that Johnson was

taken to that facility after having been arrested, apparently for creating a disturbance, after he

refused to leave a hospital upon being discharged. When Johnson was changing into jail clothing

Corporal Matthew Stegall noticed what appeared to be a cellophane

baggie protruding from the intergluteal cleft of appellant's buttocks.

Corporal Stegall inquired. Appellant replied it was cocaine and

handed the baggie to the officer. Upon being asked if he had

anything else, appellant answered affirmatively, removed another

baggie from his buttocks, and handed it to the officer.

Johnson at ¶ 3. Since cocaine is a drug of abuse, the State would have had enough evidence to

convict as to the cocaine without any more than the Petitioner’s admission that the substance was

cocaine. As to the second baggie, the State had sufficient proof that Johnson brought it into the

jail because he removed it from the same place as the first baggie and handed it to Officer Stegall.

It had to prove the second baggie also contained a drug of abuse, but Johnson did not contest in

the Ohio courts and does not contest here the lab technician’s testimony that what she analyzed

from the purported second baggie contained heroin and fentanyl.

The contested element of the crime here is possession of the drugs identified by the

technician at trial as being the same substances Johnson brought into the jail. There is no rigid

constitutional chain of custody requirement. Instead, to survive a Due Process challenge, the State

must produce sufficient evidence which, when construed strongly in favor of the prosecution,

would support a finding by a reasonable factfinder beyond a reasonable doubt. That is the standard

the Twelfth District said it was applying. To prevail on his First Ground for Relief, Johnson must

show either that the Twelfth District unreasonably applied Jackson, supra, or that it made an

unreasonable determination of the facts. Johnson’s argument focuses on the facts (Reply, ECF

No. 9, PageID 300).

Officer Stegall testified that when he received the two baggies from Johnson, he “handed

them over to Sergeant Payton, the shift supervisor. (Trial Tr., ECF No. 5-1, PageID 165). Stegall

did not recall marking the baggies in any way. Id. at PageID 167. Sergeant Payton testified he was

called to the Jail on the date Johnson was arrested because suspected narcotics had been located

on an inmate. Id. at PageID 171. When he arrived at the Jail, Stegall told him he had recovered

the narcotics and handed him the two baggies. Id. at PageID 172. He took them across the street

and placed them in “property”1 for eventual testing by the Bureau of Criminal Identification. Id..

The typical procedure for placing an item in the temporary locker in the property area is to log it

into a computer system which provides a barcoded tag and number. Id. at PageID 273. That is the

procedure Payton followed in this instance. Id. He identified State’s Exhibits 3 and 4 as the

evidence sheets generated by the computer for the two baggies. Id. at PageID 174-75.

Sheriff’s Sergeant Jon Fausnaugh identified himself as a detective with responsibility for

investigating drug and other crimes; as an additional duty, he is the property room manager. Id. at

PageID 179. He explained the process:

when it's [the piece of evidence] moved the, they are scanned. A

barcode is affixed to the actual piece of evidence and that barcode

corresponds with the written chain of custody form. And when the

property moves from the temporary locker into the property room

or, and then anywhere else, that barcode is scanned and then the

change is reflected into the computer. .. and also a signature is, is added

to the, the chain of custody.

Id. at PageID 182-83. Fausnaugh signed the chain of custody sheet when he moved the baggies from

the temporary evidence locker where they had been placed by Payton to the property room, thirty feet

away. Id. at PageID 185. He again signed the chain of custody sheet when he took the baggies from

the property room to BCI on July 3, 2017. Id. Fausnaugh took the two baggies taken from Johnson to

BCI along with a third baggie of drugs taken from a Micah Kidwell. Id. at PageID 187-88. He retrieved

them from BCI on November 28, 2017. Id. at PageID 188. Fausnaugh admitted that he mistakenly

shipped the Kidwell baggie along with the Johnson baggies when it should have been sent in separate

packaging. Id. at PageID 190.

Forensic scientist Laurel Ward testified to the usual process for receiving evidence at BCI and

that she had tested the two baggies from Mr. Johnson which contained respectively cocaine (bag one)

and heroin and fentanyl (bag two). She also received and tested the bag from Kidwell which contained

1 Short for “property room.”

methamphetamine. Id. at PageID 206. She was very briefly cross-examined on the chain of custody

process, but not on her qualifications or the results of her testing.

From this evidence, the Twelfth District concluded that the baggies had been properly

authenticated. Johnson disagrees. He believes the Twelfth District incorrectly found that Stegall

handed the drugs to Payton as soon as he recovered them (Reply, ECF No. 9, PageID 300). That

finding would not be supported by the record, because neither Stegall nor Payton said that. Instead,

Payton said he responded to the Jail on a report of suspected narcotics and then Stegall handed him the

baggies. But the Twelfth District did not make the finding of which Johnson complains. Instead, it

found “Corporal Stegall took possession of the two baggies and handed them to Sergeant Michael

Payton. In turn, the sergeant logged the two baggies into the temporary evidence locker.” Johnson,

surpra, ¶ 3. It does not say when the hand off took place.

Johnson next complains

Officer Stegall testified that he did not mark on the two baggies in

any manner to identify where the baggies came from, or who the

baggies belong to, nor did he document, or log the 2 baggies into

any computer system, or written log record, prior to allegedly

handing over the 2 baggies to Officer Payton. Therefore, there was

no chain of custody ever established between Officer Stegall and

Officer Payton, from the point of time that Officer Stegall alleged

handed the 2 baggies to Officer Payton;

(Reply, ECF No. 9, PageID 300-01.) However, there is evidence of the chain of custody from

Stegall to Payton: both were under oath when Payton testified he handed it to Stegall and Stegall

testified he received it. While the transfer is not documented in any evidence before the Court, the

Due Process Clause does not require that every step in a chain of custody be documented. And

indeed what more would such a document add to the proof? Witnesses can lie about what they

saw or did, but documents can also be falsified. In any event, the Constitution does not demand

such documentation.

Johnson also complains that neither Stegall nor Payton can “attest to the validity of each

other’s actions.” (Reply, ECF No. 9, PageID 301.) That’s certainly true and neither one of them

purported to testify what the other had done. But the Constitution does not require that every

material fact be proved by the testimony of more than one person. People are routinely convicted

on the testimony of the victim alone and that result has been uniformly upheld. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008), citing United States v. Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The

testimony of the prosecuting witness, if believed by the jury, is sufficient to support a verdict of

guilty."); see also O'Hara v. Brigano, 499 F.3d 492, 500 (6th Cir. 2007) (holding that victim's

testimony that habeas petitioner abducted her and raped her was constitutionally sufficient to

sustain conviction despite lack of corroborating witness or physical evidence); United States v.

Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding that even if the only evidence was testimony

of the victim, that is sufficient to support a conviction, even absent physical evidence or other

corroboration); United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (noting that there is

sufficient evidence to support a conviction even if the "circumstantial evidence does not remove

every reasonable hypothesis except that of guilt") (internal quotation marks omitted).

Petitioner complains of Officer Fausnaugh’s mistake of sending his evidence along with

that of Kidwell to BCI. But he incorrectly claims the “drugs” were mixed. There is no proof of

that assertion. The record shows Johnson’s two baggies were grouped with the Kidwell baggie

into a larger bag. Although Johnson was initially charged for the contents of the Kidwell bag, that

mistake was corrected by the State before trial. Habeas corpus does not exist to correct harms

arising from false accusations which do not result in conviction.

Petitioner’s First Ground for Relief is without merit and should be dismissed.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Johnson claims he received ineffective assistance of trial

counsel in that counsel failed to object to the admission of State’s Exhibit 2. (Petition, ECF No. 1,

PageID 19). Johnson raised this as his Third Assignment of Error on direct appeal and the Twelfth

District decided it as follows:

[*P28] Appellant argues defense counsel was ineffective because

he failed to object to the admission of the baggies into evidence even

though they were not properly authenticated under Evid.R. 901. The

record shows that while defense counsel did not object to the

admission of the baggies into evidence, he did raise the issue of lack

of authentication in his Crim.R. 29 motions for acquittal.

[*P29] To prevail on his ineffective assistance of counsel

argument, appellant must show that his trial counsel's performance

was deficient, and that he was prejudiced as a result. State v. Green,

12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 42;

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052,

80 L. Ed. 2d 674 (1984). Trial counsel's performance will not be

deemed deficient unless it fell below an objective standard of

reasonableness. Strickland at 688. To show prejudice, appellant

must establish that, but for his trial counsel's errors, there is a

reasonable probability that the result of his trial would have been

different. Id. at 694. The failure to make an adequate showing on

either prong is fatal to an ineffective assistance of counsel claim.

State v. Bell, 12th Dist. Clermont No. CA2008-05-044, 2009-Ohio-

2335, ¶ 77, citing Strickland at 697.

[*P30] Because we found that the baggies of drugs were properly

authenticated under Evid.R. 901 in the first two assignments of

error, defense counsel was not ineffective in failing to object to their

admission into evidence. State v. Boone, 9th Dist. Summit No.

26104, 2013-Ohio-2664, ¶ 22. "[C]ounsel's failure to object to the

lack of proper authentication as to admitting the drugs * * * into

evidence cannot be said to be deficient where such objection goes

only to the weight of the evidence and not the admissibility." State

v. Walker, 8th Dist. Cuyahoga No. 83035, 2004-Ohio-156, ¶ 31.

Furthermore, defense counsel's "failure to raise an authentication

objection [at trial] may be considered sound trial strategy, and * * *

falls within the range of reasonable professional assistance."

Payton, 4th Dist. Ross No. 01CA2606, 2002- Ohio 508, 2002 Ohio

App. LEXIS 496, *9 (Jan. 25, 2002).

Johnson, supra.

Johnson speculates in his Reply that if his trial attorney had made a lack of authentication

objection, the exhibit would have been excluded and the result of the trial would have been

different. However, it cannot be ineffective assistance of trial counsel to fail to make an objection

which is unwarranted in law as the Twelfth District held the authentication was sufficient under

Ohio R.Evid. 901. Moreover, as the appellate court held, deficiencies in authentication go only to

the weight and not the admissibility of evidence.

Even if the objection had been meritorious, there was no prejudice in counsel’s saving the

objection until the Rule 29 motion because at that point the State was “locked in” to whatever

proof they had or had not made of authenticity. If counsel had made the objection before the State

rested, the judge could have allowed the State to reopen and fix its mistake. In any event, counsel

did not procedurally default the defense by not making a contemporaneous objection because the

Twelfth District heard the claim on the merits.

Petitioner’s Second Ground for Relief is without merit.

Ground Three: Error in Denying Discovery Sanctions

In his Third Ground for Relief, Johnson argues the trial court deprived him of due process

and a fair trial when it denied his motion for discovery sanctions related to video recording of

Johnson’s changing clothes in the drunk tank which is the incident during which Officer Stegall

testified he saw Johnson removed the baggies from his buttocks. (Petition, ECF No. 1, PageID

20-23). He relies on the obligation to provide exculpatory evidence recognized by the Supreme

Court in Brady v. Maryland, 373 U.S. 83 (1963).

Johnson raised this claim as his Fourth Assignment of Error on direct appeal and the twelfth

District decided it as follows:

[*P34] Appellant argues the trial court erred in denying his Crim.R.

16 motion. Appellant asserts the trial court should have dismissed

the case or imposed other appropriate discovery sanctions because

the state failed to provide appellant with the "potentially

exculpatory" videotape of the drunk tank where appellant changed

his clothes on the evening of the offense. Appellant asserts that

Corporal Stegall's testimony plainly indicates such videotape exists.

The trial court denied appellant's Crim.R. 16 motion on the ground

that Corporal Stegall testified there was "a camera outside of the

drunk tank" that looks toward the drunk tank.

[*P35] Crim.R. 16 governs discovery in criminal prosecutions and

requires the state, upon motion of the defendant, to make available

evidence material to the preparation of the defense. State v. Wilson,

12th Dist. Butler No. CA2012-12-254, 2013-Ohio-3877, ¶ 14; State

v. Weaver, 12th Dist. Butler No. CA2009-01-022, 2009-Ohio-5923,

¶ 36. Crim.R. 16(L)(1) provides:

The trial court may make orders regulating discovery not

inconsistent with this rule. If at any time during the course

of the proceedings it is brought to the attention of the court

that a party has failed to comply with this rule or with an

order issued pursuant to this rule, the court may order such

party to permit the discovery or inspection, grant a

continuance, or prohibit the party from introducing in

evidence the material not disclosed, or it may make such

other order as it deems just under the circumstances.

[*P36] "Prosecutorial violations of Crim.R. 16 are reversible only

when there is a showing that (1) the prosecution's failure to disclose

was a willful violation of the rule, (2) foreknowledge of the

information would have benefited the accused in the preparation of

his defense, and (3) the accused suffered some prejudicial effect."

State v. Joseph, 73 Ohio St.3d 450, 458, 1995- Ohio 288, 653 N.E.2d

285 (1995). Sanctions for a Crim.R. 16 discovery violation are

within the discretion of the trial court. State v. Parson, 6 Ohio St.3d

442, 445, 6 Ohio B. 485, 453 N.E.2d 689 (1983). When deciding on

a sanction, the trial court must impose the least severe sanction that

is consistent with the purpose of the rules of discovery.

Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-

014, 2014-Ohio-5491, ¶ 39.

[*P37] Upon reviewing the record, we find no error in the trial

court's denial of appellant's Crim.R. 16 motion. Contrary to

appellant's assertion, Corporal Stegall's testimony regarding the

videotape was ambiguous. On direct examination, Corporal Stegall

testified that the video camera was outside the drunk tank, thus

focusing on the area outside the tank. However, when asked on

cross-examination whether "there is a camera that shows the inside

of the drunk tank," the officer replied, "Yes."

[*P38] Even assuming, arguendo, that there was a video camera

inside the drunk tank, nothing in the record suggests or indicates that

a videotape depicting appellant changing his clothes and the

discovery of the baggies exists, or that it would be exculpatory.

Moreover, appellant failed to establish that the state's failure to

disclose the alleged videotape was willful, and there is no indication

that the alleged violation was willful. We therefore find that the trial

court did not abuse its discretion in denying appellant's Crim.R. 16

motion.

[*P39] Appellant's fourth assignment of error is overruled.

Johnson, supra.

The Warden defends this claim by asserting it is procedurally defaulted because it was not

presented as a constitutional claim under Brady in the Twelfth District (Return, ECF No. 6, PageID

284). In the alternative and on the merits, the Warden notes the trial judge found it was not proven

that any such exculpatory evidence existed and Johnson has not overcome that finding with clearly

convincing evidence as required by 28 U.S.C. § 2254(e)(1).

The Magistrate Judge finds Johnson procedurally defaulted any claim under Brady by not

raising it in the trial court or on appeal. Brady is not cited in Appellant’s Brief (State Court Record,

ECF No. 4, Ex. 5). Instead the claim is argued entirely in terms of Ohio R. Crim. P. 16 and decided

on the basis of state jurisprudence around that rule. While Rule 16 protects many of the same

interests as Brady, it is much broader (e.g., it requires production of inculpatory as well as

exculpatory evidence). In any event, a state appellate court presented with a Rule 16 claim would

not have understood it was deciding a federal constitutional question.

The claim is not saved from default by the fact that Johnson mentions “due process” and

“fair trial” in the wording of this Assignment of Error. Merely using talismanic constitutional

phrases like “fair trial” or “due process of law” does not constitute raising a federal constitutional

issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326

(6th Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v.

Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere use of the words “due process and a fair trial

by an impartial jury” are insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006);

Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)(same). “A lawyer need not develop a

constitutional argument at length, but he must make one; the words ‘due process’ are not an

argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).

Alternatively and on the merits, the Twelfth District held Johnson had not shown that there

existed a video recording of the incident or that such a recording would have been exculpatory.

Johnson, supra, ¶ 38. Johnson has not shown by clear and convincing evidence that that finding

is in error. He notes the judge could have watched the video to determine if it was exculpatory,

but the judge was not under any constitutional duty to do so. There is not even any proof of

whether a recording from the date of Johnson’s booking continued to exist as opposed to having

been recorded over.

Petitioner’s Third Ground for Relief should be dismissed.

Ground Four: Unconstitutionally Severe Sentence Based on “Trial Tax”

In his Fourth Ground for Relief, Johnson claims he was deprived of due process and a fair

trial by being sentenced more severely than if he had pleaded guilty. As evidence of this claim,

he notes that the prosecutor at sentencing reminded the judge that recent sentencings for bringing

drugs into jails had been in the vicinity of eighteen months on negotiated pleas, but here “we

actually had to go to trial. So, the State in this case would ask for a term of no less than 24 months.”

(Petition, ECF No. 1, PageID 24). As noted above, the trial court imposed a sentence of thirty

months on each of the two convictions, but ordered them served concurrently. Johnson points to

no evidence and makes no allegations about any plea negotiations in the case.

Johnson raised this claim on direct appeal as his Fifth Assignment of Error and the Twelfth

District decided it as follows:

[*P42] Appellant argues the trial court penalized him for

exercising his right to a jury trial when it sentenced him to 30 months

in prison. Specifically, appellant asserts that "an improper taint of a

trial tax lingers over this case" because the prosecutor's request that

appellant be sentenced to a lengthy prison term for pursuing a jury

trial was not explicitly rejected by the trial court during its

sentencing colloquy. At sentencing, the prosecutor made the

following statements:

[I]llegal conveyance of drugs into the jail, I believe the

recent sentencings in this court have been in the area of 18

months and those were via plea or agreements and jointly

recommended pleas. In this case we actually had to go to

trial. Mr. Johnson just stated that he didn't have anything

on him. He has refused to acknowledge or show any

remorse in this matter. So, the state in this case would ask

for a term of no less than 24 months.

[*P43] The prosecutor's statements followed appellant's allocution

during which he denied possessing the baggies when he was in the

drunk tank and alleged the testimony of the state witnesses was

fabricated.

[*P44] "[A] defendant is guaranteed the right to a trial and should

never be punished for exercising that right[.]" State v. O'Dell, 45

Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989); State v. Noble, 12th

Dist. Warren No. CA2014-06-080, 2015-Ohio-652, ¶ 11. "[A]

sentence vindictively imposed on a defendant for exercising his

constitutional right to a jury trial is contrary to law," "regardless of

whether the evidence of his guilt is said to be overwhelming." State

v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, ¶ 8, 80 N.E.3d 431;

Noble at ¶ 11. Moreover, it is improper for a trial court to create the

mere appearance that it has increased a defendant's sentence because

the defendant has elected to put the government to its proof. Noble

at ¶ 12. A court may not make statements from which someone may

infer that a defendant may have been punished for pursuing a jury

trial. Id. The appearance of a trial tax is impermissible as it creates

a chilling effect on one's constitutional right to trial. Id.

[*P45] "We review the entire record - the trial court's statements,

the evidence adduced at trial, and the information presented during

the sentencing hearing - to determine whether there is evidence of

actual vindictiveness." Rahab at ¶ 19. "We will reverse the sentence

only if we clearly and convincingly find the sentence is contrary to

law because it was imposed as a result of actual vindictiveness on

the part of the trial court." Id.

[*P46] Upon thoroughly reviewing the entire record, we find that

the trial court did not impose an increased sentence in retaliation for

appellant pursuing a jury trial. In sentencing appellant to an

aggregate sentence of 30 months in prison, the trial court properly

considered the principles and purposes of sentencing in R.C.

2929.11 as well as the recidivism and seriousness factors in R.C.

2929.12. In particular, the trial court focused on appellant's

"extensive prior criminal history," which included prior prison

sentences for heroin trafficking and possession of heroin, cocaine,

and criminal tools, his failure to respond favorably to sanctions

previously imposed, and his lack of genuine remorse. "Genuine

remorse is one factor to be considered by the court when it makes

its sentencing decision." Rahab, 2017-Ohio-1401 at ¶ 28, 150 Ohio

St. 3d 152, 80 N.E.3d 431. Likewise, "[a]cceptance of responsibility

is an appropriate sentencing consideration." Id. at ¶ 17. Appellant

relies solely upon the prosecutor's statements at sentencing, and not

that of the trial court, in support of his trial tax argument. However,

nothing in the record indicates or suggests that the trial court based

its sentence upon appellant's decision to go to trial.

[*P47] Appellant's fifth assignment of error is overruled.

Johnson, supra.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

Although the Twelfth District relied on state court case law in its decision, those cases

relied on underlying United States Supreme Court law. Justice DeWine in Rahab, for example,

relied on Bordenkircher v. Hayes, 434 U.S. 357 at 363 (1978), citing North Carolina v. Pearce,

395 U.S. 711 at 738 (1969) (Black, J., concurring in part and dissenting in part), for the principle

that "To punish a person because he has done what the law plainly allows him to do is a due process

violation of the most basic sort.” Pearce is the leading Supreme Court case on vindictiveness in

sentencing and the precedent against which the Twelfth District’s decision must be measured. In

Pearce the Supreme Court created a presumption of vindictiveness when a judge imposed a more

severe sentence on remand after appeal. That situation does not apply here because it is an initial

sentencing that is at issue. A defendant who does not have the benefit of the presumption can still

prevail if he can show actual vindictiveness. Craycraft v. Cook, 634 Fed. Appx. 490 (6th Cir. 2015);

United States v. Jackson, 181 F. 3d 740, 744 (6th Cir. 1999); Rahab v. Buchanan, 2018 U.S. Dist.

LEXIS, 2018 WL 2764454 (S.D. Ohio June 8, 2018).

Whether a trial judge acted with a vindictive motive is a question of fact on which this

habeas corpus court must defer to the state appellate court unless a petitioner demonstrates error

in a factual finding by clear and convincing evidence.

The Twelfth District squarely held the trial judge here was not actually motivated by

vindictiveness. Johnson, supra, at ¶ 46. Johnson counters by asserting that there is nothing in the

record to show the trial judge did not grant the prosecutor’s request because Johnson insisted on a

trial which he says is proven by the trial judge’s failure to reject, on the record, the prosecutor’s

request (Reply, ECF No. 9, PageID 314-15). That argument attempts to shift the burden of proof

to the State. Supreme Court precedent places the burden of proving actual vindictiveness on the

defendant, not on the State to disprove it. Here the trial judge expressly said he was considering

the purposes of sentencing, Johnson’s recidivism and failure to respond to lesser sanctions, and his

lack of remorse. Johnson does not deny that those factors weighed against him and that it was

proper for them to do so. He does not claim he expressed any remorse and in fact continues to

claim to be innocent. Given where the drugs were found, the only factual hypothesis consistent

with Johnson’s innocence is that the drugs were planted on him by law enforcement and he offers

no evidence that any such thing happened.

The facts in this case strongly contrast with those in Rahab where the undersigned found

evidence of actual vindictiveness. There the trial judge herself expressly threatened Rahab that if

he did not accept the plea bargain and the offered three-year sentence, she would impose a harsher

sentence after conviction at trial. Then, when the jury convicted, she reminded Rahab of her threat

and doubled the sentence. There is nothing like that here. Whatever the prosecutor’s motivation,

there is no evidence the trial judge shared it.

Petitioner’s Fourth Ground for Relief should be dismissed on the merits because the

Twelfth District’s decision is not an objectively unreasonable application of Pearce.

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that the Petition

herein be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

April 22, 2020.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. Such objections shall specify the portions of the Report objected to and shall be

accompanied by a memorandum of law in support of the objections. A party may respond to

another party’s objections within fourteen days after being served with a copy thereof. Failure to

make objections in accordance with this procedure may forfeit rights on appeal.