# Buck v. Warden, Chillicothe Correctional Institution

> District Court, S.D. Ohio · June 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10375681

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 3, 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/10375681

## How later opinions describe it (automated extraction)

- noting that the Supreme Court refused to reach the issue in McGuire

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

ANDRE BUCK,

Petitioner, : Case No. 1:19-cv-170

- vs - District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Chillicothe Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Andre Buck under 28 U.S.C. § 2254,
is before the Court for decision on the Petition (ECF No. 4), the State Court Record (ECF No. 7),
the Return of Writ (ECF No. 8); and Petitioner’s Traverse (ECF No. 111). The Magistrate Judge
reference in this case was recently transferred to the undersigned to help balance the Magistrate
Judge workload in the District (ECF No. 13).

Litigation History

The Hamilton County grand jury indicted Buck on February 14, 2014, on one count of
kidnapping in violation of Ohio Revised Code § 2905.01(A)(1) with firearm specifications (Count

1 Two Traverses have been filed. ECF No. 11, although received by the Clerk first, bears at later date by Petitioner
and will be treated by the Court as the document he intends the Court to consider.
1), and one count of having weapons while under disability in violation of Ohio Revised Code §
2923.13(A)(3) (Count 2). (Indictment, State Court Record, ECF No. 7, Exhibit 1). The case was
tried to a jury which convicted Buck of kidnapping, but acquitted him on the specifications and
weapons under disability charge. Id. at PageID 108. The trial judge then sentenced Buck to eleven
years imprisonment.2 Id.

Assisted by new counsel, Buck appealed to the Ohio First District Court of Appeals which
affirmed the convictions and sentence except for a remand for proper jail time credit. State v.
Buck, 2017-Ohio-8242, 100 N.E.3d 118 (Ohio App. 1st Dist. 2017), appellate jurisdiction declined,
152 Ohio St. 3d 1444, 2018-Ohio-1600.
On September 11, 2017, Buck filed a pro se petition for post-conviction relief under Ohio
Revised Code § 2953.21 (Petition, State Court Record, ECF No. 7, Ex. 16, PageID 275-79). The
Common Pleas Court dismissed the petition as untimely. Id. at PageID 317-19. An appeal was
dismissed for lack of prosecution when Buck failed to file a brief. Id. at PageID 323.
Buck effectively filed his Habeas Corpus Petition in this Court by depositing it in the prison

mail system on March 4, 2019. He pleads the following grounds for relief:
Ground One: The trial court erred in denying Mr. Buck’s Motion
to Suppress.

Supporting Facts: Fourth Amendment rights violated by
warrantless search, subsequently trial court denied motion to
suppress.

Ground Two: Mr. Buck was denied his right to due process and a
fair trial where the prosecutor engaged in misconduct.

Supporting Facts: Prosecutor solicited false testimony from
witnesses; prosecutor withheld exculpatory evidence.

2 Because Buck was on post-release control for a prior conviction when he committed the kidnapping, the judge
imposed an additional consecutive year for violation of post-release control (State Court Record, ECF No. 11, PageID
108). That sentence is not before this Court.
Ground Three: Mr. Buck was denied due process and a fair trial
where the trial court instigated a heated confrontation with his trial
counsel; Mr. Buck was not present for the hearing regarding that
incident; where it failed to hold a hearing on a conflict of interest
between co-defendant’s counsel and Mr. Buck; where it denied Mr.
Buck’s motion for a mistrial; and where it did not record sidebar
conferences.

Supporting Facts: Judge assaulted Petitioner’s counsel and
proceeded with trial without exculpatory evidence; Judge’s
summary of hearings skewed the facts.

Ground Four: The trial court abused its discretion in allowing into
evidence extremely prejudicial photographs of Mr. Buck’s tattoos.

Supporting Facts: Prosecutor presented, and trial court permitted
prejudicial non-related evidence with no bearing on the case.

Ground Five: Mr. Buck’s sentence was contrary to law.

Supporting Facts: The judge did not credit Mr. Buck 328 days of
jailtime credit.

Ground Six: Mr. Buck’s conviction was based on insufficient
evidence and contrary to law.

Supporting Facts: Fourth Amendment violated; inadmissible
evidence presented.

Ground Seven: The State must present more than a mere
conclusory statement to justify a finding of probable cause to
conduct a warrantless search of a place based on exigent
circumstances. See State v. Hoffman, 141 Ohio St.3d 428, 2014-
Ohio-4795, 25 N.E.3d 993.

Supporting Facts: Fourth Amendment violation by a warrantless
search; Sate failed to provide reasonable cause for search.

Ground Eight: When police enter a dwelling to search for a person
based on the exigent circumstances or emergency aid warrant
exceptions, and they do not find the person, a warrant is required to
search the dwelling’s occupants. United States v. Rivera, 825 F.2d
152, 157 (7th Cir. 1987), State v. Martin, 1st Dist. Hamilton No. C-
040150, 2004-Ohio-6433.
Supporting Facts: Fourth Amendment violated by a warrantless
search; police acted beyond the scope of their authority.

Ground Nine: The warrantless download of a cell phone’s contents
without any justifying exigent circumstances violates a defendant’s
constitutional right to be free from unreasonable searches and
seizures. United States Constitution, Fourth Amendment; Ohio
Constitution, Article I, Section 14; Riley v. California, 573 U.S. ,
134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014); State v. Smith, 124
Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949.

Supporting Facts: Fourth Amendment violated by a warrantless
search; police obtained evidence illegally, subsequently used against
Defendant-Petitioner at trial violating due process rights.

Ground Ten: A prosecutor engages in reversible misconduct where
he purposely fails to disclose a second impeaching police interview
of the alleged victim; and where he does not correct a co-defendant
witness who commits perjury by testifying that he has not received
a plea agreement in exchange for his testimony. United States
Constitution, Fifth, Sixth, and Fourteenth Amendments; Ohio
Constitution, Article I, Section 16; Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Mooney v. Holohan, 294 U.S.
103, 55 S.Ct. 340, 79 L.Ed 781 (1935).

Supporting Facts: Prosecutor knowingly elicited false material
testimony, without correcting.

Ground Eleven: A defendant is denied due process and a fair trial
where the trial judge confronts his counsel in anger outside another
courtroom for being late to court, curses at counsel, and holds a
hearing on the confrontation without the defendant present, because
the trial court in that situation has ceased to be impartial. United
States Constitution, Fifth, Sixth, and Fourteenth Amendments; Ohio
Constitution, Article I, Section 10; State v. LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, 747 N.E.2d 166; Crim.R. 43(A).

Supporting Facts: Trial conducted by a biased/appearance of
biased judge.

Ground Twelve: A trial court must investigate a potential conflict
of interest between a defendant and his co-defendant’s counsel when
the potential conflict is brought to the trial court’s attention. State v.
Gillard, 64 Ohio St.3d 304, 1992-Ohio-48, 595 N.E.2d 878; United
States Constitution, Sixth Amendment.
Supporting Facts: Co-defendant’s trial counsel was a conflict of
interest having priorly [sic] represented Defendant-Petitioner, then
advised co-defendant to testify against Defendant-Petitioner.

Ground Thirteen: The trial court commits structural error, violates
Crim.R. 22, and a defendant’s right to a public trial when it
purposely does not record sidebar conferences. State v. Drummond,
111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038; United
States Constitution, Sixth Amendment; Ohio Constitution, Article I,
Section 10.

Supporting Facts: Court held sidebar conferences without
recording.

Ground Fourteen: In a kidnapping by force case, the State’s use of
a defendant’s tattoo depicting gun use as evidence of the defendant’s
propensity for using guns is unduly prejudicial, and cannot be
harmless error. State v. Thomas, Slip Opinion No. 2017-Ohio-8011;
State v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist.
2001).

Supporting Facts: Prosecutor presented, and trial court allowed
impermissible prejudicial evidence to be admitted against
Defendant-Petitioner.

(Petition, ECF No. 4, PAGEID 55, 57, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78 and 80.)

Analysis

Grounds One, Six, Seven, Eight, and Nine: Violations of the Fourth Amendment

In his First, Sixth, Seventh, Eighth, and Ninth Grounds for Relief, Buck alleges various
violations of his rights under the Fourth Amendment in the search, seizure, and subsequent use of
evidence in this case. With respect to each of these claims, Respondent asserts federal habeas
review is barred by Stone v. Powell (Return of Writ, ECF No. 8, PageID 2521, citing 428 U.S. 465
(1976)). In that case, the Supreme Court held federal habeas corpus relief is not available to state
prisoners who allege they were convicted on illegally seized evidence if they were given a full and
fair opportunity to litigate that issue in the state courts. 428 U.S. at 494. Stone requires the district
court to determine whether state procedure in the abstract provides full and fair opportunity to

litigate, and Ohio procedure does. The district court must also decide if a Petitioner's presentation
of claim was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of the merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the
concept of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R.Crim.P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R.App.P. 3(A) and Ohio R.App.P. 5(A).
These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.

Id. at 526, citing O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977).
Buck asserts in his Traverse that the state courts’ decisions on his Fourth Amendment
claims were objectively unreasonable applications of Supreme Court precedent under the Fourth
Amendment (Reply, ECF No. 11, PageID 2563-65). Buck’s argument misses the point. If the
state courts give a defendant a full and fair opportunity to develop a Fourth Amendment claim,
then the habeas court does not review that claim on the merits, which is what would be involved
in deciding if the state courts reasonably applied Supreme Court precedent.
Buck relies on the “procedural frustration” exception recognized in Riley, supra, but the
two procedural problems he notes do not take this case outside Stone. One of them, the claim that
the trial judge was biased against Buck, is without merit for the reasons discussed below in
recommending dismissal of Ground Eleven. The other – the conduct of unrecorded sidebar

conferences – pertains to the trial, not the motion to suppress hearing.
Therefore, Buck’s First, Sixth, Seventh, Eighth, and Ninth Grounds for Relief should be
dismissed as non-cognizable under Stone.

Grounds Two and Ten: Prosecutorial Misconduct

In his Second and Tenth Grounds for Relief, Petitioner asserts he was denied a fair trial
and due process of law when the prosecutor committed misconduct by eliciting false testimony
and failing to disclosure exculpatory evidence.
Buck presented these claims as his Second Assignment of Error on direct appeal and the

First District decided it as follows:
Prosecutorial Misconduct

{¶ 55} In his second assignment of error, Buck argues that his right
to due process was violated by prosecutorial misconduct. He asserts
that the prosecutor failed to disclose a second police interview with
Tyrell George, and then presented a theory of prosecution based in
part on a statement “proven false” by the undisclosed interview. In
addition, he argues that the prosecutor allowed a state's witness to
“present likely perjured testimony without correction.”

{¶ 56} Generally, prosecutorial misconduct will not provide a basis
for overturning a conviction unless, on the record as a whole, the
misconduct can be said to have deprived the defendant of a fair trial.
State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). The
test for whether prosecutorial misconduct mandates reversal is
whether the prosecutor’s remarks or actions were improper, and, if
so, whether they prejudicially affected the substantial rights of the
accused. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780
N.E.2d 221, ¶ 45.

{¶ 57} Failure to Disclose the Second Interview of Tyrell George.

First, Buck argues that the prosecutor failed to disclose that he and
Detective Hilbert had interviewed George ten to 15 days after the
detective's February 7th interview of George. Buck contends that in
the second interview, George revealed that he had voluntarily gotten
in the van driven by Barrow to sell marijuana to Barrow. In the first
interview, he told Detective Hilbert that he was grabbed off the
street.

{¶ 58} At trial, George testified that he had foolishly gotten into the
van at Barrow’s direction, and that Barrow “had somebody in the
back waiting on me, snatched me up, choking me out.” On cross-
examination, George acknowledged that he had told the police that
the “van pulled down on me and snatched me up,” and that later on
in the first interview, he had said, “[T]hey was [sic] already parked
and dude say hey. I’m walking. I turned around a little bit, next thing
you know I’m in the back of the van fighting with this dude[.]”
When asked whether the police had interviewed him a second time,
George initially denied it and then stated, “Not that I can remember.
I don’t know. I don’t remember. I just remember I came up a couple
days after it happened and they talked to me, showed me a couple
picture.”

{¶ 59} The issue of a second George interview arose during the
cross-examination of Detective Hilbert by Buck’s attorney. The
attorney asked whether George, when interviewed on the date of his
escape, had mentioned that he was selling marijuana when he was
kidnapped. The detective responded that George had not. Then the
detective said that he was not surprised when, ten to 15 days later,
George told him about the arranged and attempted marijuana sale.
At that point, codefendant Barrow’s counsel asked the court for a
sidebar conference.

{¶ 60} At sidebar, Barrow’s attorney indicated that he was not aware
that the police had interviewed George a second time. Buck's
attorney, on the other hand, at no time asserted that he was unaware
of a second interview. Instead, his focus was on exploiting the
inconsistencies between George’s trial testimony and his first police
interview, noting specifically, “my problem is not with [the
prosecutor] or Detective Hilbert.”
{¶ 61} The prosecutor explained to the trial court that he believed
he had provided information about the second interview to defense
counsel, noting that both defendants had been represented by
previous counsel. The trial court noted that there had been no
suggestion that the prosecutor had withheld any information.

{¶ 62} As an accommodation to Barrow’s counsel, the trial court
allowed a brief recess during which the prosecutor and both defense
counsel spoke with Detective Hilbert about the second interview.
Afterwards, the court noted that the content of the second interview
included George’s acknowledgement to Detective Hilbert that he
had omitted telling the detective that he had arranged to meet
Barrow to sell him marijuana.

{¶ 63} Then the court allowed Barrow's counsel to further cross-
examine Detective Hilbert about the second interview and whether
he had divulged that interview to defense counsel.

{¶ 64} It is not clear from the record that the prosecutor failed to
disclose the second George interview. Even if we assume the
discovery violation occurred, we hold that the trial court did not
abuse its discretion in its handling of the matter.

{¶ 65} Crim.R. 16 controls the discovery process, the purpose of
which is “to provide all parties in a criminal case with the
information necessary for a full and fair adjudication of the facts, to
protect the integrity of the justice system and the rights of
defendants, and to protect the well-being of witnesses, victims, and
society at large.” See Crim.R. 16(A). The rule gives the trial court
the discretion to determine an appropriate sanction for a discovery
violation. See Crim.R. 16(L); State v. Wiles, 59 Ohio St.3d 71, 78,
571 N.E.2d 97 (1991). In making such a determination, the court
must consider whether (1) the failure to disclose was a willful
violation of Crim.R. 16, (2) whether foreknowledge of the
undisclosed material would have benefited the defendant in the
preparation of a defense, and (3) whether the defendant was
prejudiced. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 6
Ohio B. 485, 453 N.E.2d 689 (1983), syllabus. The court “must
impose the least severe sanction that is consistent with the purpose
of the discovery rules.” Id. at syllabus, quoting Lakewood v.
Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two
of the syllabus.

{¶ 66} In this case, the record demonstrates that, even if the
prosecutor failed to disclose George's second interview to Buck’s
counsel, the discovery violation was not willful. Buck does not
contend that his defense would have changed if he had known that
George had voluntarily gotten into Barrow’s van initially. His
defense was not that the victim was not kidnapped, but that he was
not involved in the kidnapping.

{¶ 67} The trial court's remedy for the discovery issue was to recess
to allow defense counsel to meet with Detective Hilbert and to allow
counsel to fully cross-examine the detective on the matter. We note
that Buck’s counsel expressed no dissatisfaction following his
discussion with Detective Hilbert. And Buck has failed to
demonstrate that he was prejudiced by the alleged discovery
violation. Under these circumstances, we hold that the trial court did
not abuse its discretion in handling the potential discovery violation.
In addition, as we discuss in addressing Buck’s third assignment of
error, the trial court properly denied Buck’s request for a mistrial.

{¶ 68} On appeal, Buck asserts that, in addition to failing to disclose
the second George interview, the prosecutor perpetuated George’s
“false” narrative about being grabbed off the street in the bill of
particulars and in his opening statement at trial.

{¶ 69} The Bill of Particulars. Under Crim.R. 7(E), upon request,
“the prosecuting attorney shall furnish the defendant with a bill of
particulars setting up specifically the nature of the offense charge
and of the conduct of the defendant alleged to constitute the
offense.” The limited purpose of a bill of particulars is “to elucidate
or particularize the conduct of the accused,” but not “to provide the
accused with specifications of evidence or to serve as a substitute
for discovery.” State v. Sellards, 17 Ohio St.3d 169, 171, 17 Ohio
B. 410, 478 N.E.2d 781 (1985). Under Crim.R. 33(E)(2), a variance
between the allegations against the defendant and the evidence at
trial is not reversible error unless the defense is prejudiced or misled
thereby. “Even a significant factual flaw in the bill of particulars is
not reversible error unless the defendant can establish prejudice
wherein he was denied a fair trial.” State v. Montoya, 12th Dist.
Clermont No. CA2012-02-015, 2013-Ohio-3312, ¶ 24.

{¶ 70} In this case, the bill of particulars stated in part:

At approximately 7:00 P.M. on February 6, 2014,
Defendants, acting as principal offenders and/or working
in complicity with each other, * * * purposefully by force,
threat or deception, removed Tyrelle George from the place
where he was found or restrained him of his liberty for the
purpose of holding him for ransom or as a shield or as a
hostage.

Specifically, Defendants approached the victim as he was walking
at or near 330 Forest in the District 4 area of Cincinnati. The victim
was overpowered and was thrown into a vehicle. He was bound and
blindfolded and was then driven from the area to unknown locations.

{¶ 71} The essential elements of kidnapping and the conduct of the
defendants were sufficiently spelled out in the bill of particulars:
whether George had entered the van voluntarily or not, the
defendants overpowered him, blindfolded him, and took him from
the street where he had been. See Sellards at 171. Buck has not
demonstrated that any variance between the evidence presented at
trial and the bill of particulars regarding the manner in which George
got into the van was misleading or impaired his ability to defend
himself.

{¶ 72} The Prosecutor's Opening Statement. In opening statement,
the prosecutor told the jury:

Tyrell George will tell you that he walked out of his
parents’ house and was walking down the street * * * and
a black van pulls up. * * * Mr. Barrow pulls the car up. Mr.
Watson gets out as Mr. George is just walking down the
street and grabs him and wrestles with him and throws him
in the back of this van.

And Mr. George is not a huge guy. Looks like he's in pretty
good shape to me. He's not going quietly. He's frightened
and he’s trying to get away. They’re trying to put a
blindfold on him. They’re trying to tie him up. He's trying
to resist.

{¶ 73} The prosecutor's opening statement was not evidence and his
assertion that George was grabbed and thrown into the back of the
van was contradicted by the evidence presented at trial. The trial
court properly instructed the jury, “The important thing to remember
about opening statements, opening statements are not evidence.” We
presume that the jury followed the court’s instruction, and that it
based its decision on the evidence presented at trial. Even if the
prosecutor misstated what the evidence would show, it did not
deprive Buck of a fair trial. See State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 145.
{¶ 74} The Use of False Testimony. Next, Buck contends that the
prosecutor committed misconduct by “failing to correct” (1)
George's “false” testimony that he had not been interviewed a
second time by police, and (2) the “likely perjured testimony” of
codefendant Rucker that the police had made no promises to him in
exchange for his cooperation.

{¶ 75} In a claim of prosecutorial misconduct based on the use of
false or perjured testimony, the defendant has the burden to “show
that (1) the statement was actually false; (2) the statement was
material; and (3) the prosecution knew it was false.” State v. Iacona,
93 Ohio St.3d 83, 97, 2001-Ohio-1292, 752 N.E.2d 937 (2001),
quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th
Cir.1989). Buck has not met this burden.

[*P76] At first, George denied that police had interviewed him a
second time, but then said he could not remember, and then said he
had talked to them a few days after it happened. "Mere
inconsistencies in testimony do not establish the knowing use of
false testimony by the prosecutor." State v. Widmer, 12th Dist.
Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 41, quoting Monroe
v. Smith, 197 F.Supp.2d 753, 762 (E.D.Mich.2001). Additionally,
the fact "that a witness contradicts [himself] or changes [his] story
also does not establish perjury." Id.

[*P77] With respect to Rucker's denial that the police had made
promises to him, Buck points to a statement in a presentence
investigation report: "Detective Hilbert states that they were finally
able to get one of the defendants to agree to a plea deal if he helped
the investigation." The record reveals, however, that Detective
Hilbert testified to the same information at trial to explain why
Rucker had not been indicted for a firearm specification: "[Rucker
was] a cooperating defendant in a kidnapping investigation and we
used him as a witness in this case." And Rucker acknowledged
during his testimony that, while the police had made no promises to
him, he hoped to avoid prison by testifying about his role in the
kidnapping.

{¶ 78} Buck has failed to show that either George’s or Rucker’s
testimony was false and, therefore, has failed to meet his burden to
show that the prosecutor committed misconduct by knowingly using
false or perjured testimony.

{¶ 79} Consequently, we hold that none of the actions by the
prosecutor were improper, and therefore, did not amount to
misconduct. See Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780
N.E.2d 221, at ¶ 45. We overrule the second assignment of error.

Buck, 2017-Ohio-8242.
Respondent defends these claims on the merits, arguing that the First District’s conclusion
is not contrary to nor an objectively unreasonable application clearly established Supreme Court
precedent, particularly Brady v. Maryland, 373 U.S. 83 (1963) (Return of Writ, ECF No. 8, PageID
2533-39, quoting Buck, 2017-Ohio-8242, ¶¶ 55-77).
Buck replies that the Warden’s focus on Brady is inappropriate, that the real claim is
knowing presentation of false testimony (Reply, ECF No. 11, PageID 2569, relying on Napue v.
Illinois, 360 U.S. 264 (1959), and Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam)). To
prevail on such a claim, a petitioner must show that the statement in question was false, that the
prosecution knew it was false, and that it was material. Wogenstahl v. Mitchell, 668 F.3d 307, 323
(6th Cir. 2012), quoting Rosenkrantz v. Lafler, 568 F.3d 577, 583-84 (6th Cir. 2009); Brooks v.
Tennessee, 626 F.3d 878, 894-95 (6th Cir. 2010); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000),
citing United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); United States v. O’Dell, 805
F.2d 637, 641 (6th Cir. 1986). The statement must be indisputably false, rather than simply

misleading. Lochmondy, 890 F.2d at 823; Byrd v. Collins, 209 F.3d at 517. Mere inconsistencies
in testimony do not establish the knowing use of perjured testimony. Coe v. Bell, 161 F.3d 320,
343 (6th Cir. 1998).
The First District applied the standard from Lochmondy which the Supreme Court Of Ohio
recognized in State v. Iacona, 93 Ohio St.3d 83, 97 (2001), quoting Lochmondy, 890 F.2d at 822.
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.
With respect to the second interview of the victim, Buck has not established a Brady
violation. Buck and Barrow had been previously represented by counsel other than those who
tried the case. Buck has produced no evidence from his prior counsel that the second interview
was not revealed to him. Indeed, Buck has produced no evidence from his trial lawyer that the
second interview was not revealed to him: he never made such a claim when the issue came up
during trial. If the trial lawyer did not received notice of the second interview but still made no
claim to that effect at trial, then any Brady claim is procedurally defaulted. The point of the Brady
rule is to make the trial fair, not to allow failure to object to a Brady violation so as to permit later
vacation of the verdict. Whatever possible incipient Brady violation may have occurred here, the

trial judge cured it by allowing the interview with Detective Hilbert.
The First District’s ruling on the Mooney-Napue claim is also entitled to deference. The
fact that a witness such as George testifies inconsistently does not show the witness is perjuring
himself, much less that the prosecutor knows which of the inconsistent statements is true and which
is false. Buck has also not proved that Rucker’s testimony was false. In the Magistrate Judge’s
experience, it is rare for police or prosecutors to make an explicit promise of leniency to a
cooperating witness because of how impeaching such a promise is. It is much more common to
see, as apparently happened here, an implicit promise.
The First District’s decision on Buck’s prosecutorial misconduct claims is neither contrary
to nor an objectively unreasonable application of relevant Supreme Court precedent. His Second
and Tenth Grounds for Relief should therefore be dismissed.

Grounds Three, Eleven, Twelve and Thirteen: Denial of Fair Trial

In his Third, Eleventh, Twelfth, and Thirteenth and Grounds for Relief, Buck complains
that he was denied a fair trial and the trial judge was biased against him as manifested in a heated
confrontation between the judge and his trial attorney resulting in a hearing at which Buck was not
present, failure to record sidebar conferences, failure to declare a mistrial, and in failure to consider
a conflict of interest between Buck and counsel for co-defendant Barrow (Reply, ECF No. 11,
PageID 2566-67).
The First District decided these claims as follows:
{¶80} In his third assignment of error, Buck argues that he was
denied a fair trial. He contends that the trial court: (1) ceased to be
impartial after instigating a confrontation with his trial counsel and
then conducting a hearing on the incident outside of his presence;
(2) failed to investigate a potential conflict of interest between Buck
and his codefendant’s counsel; (3) failed to grant a mistrial after the
prosecutor's misconduct; and (4) failed to record sidebar
conferences. Buck claims that these failures denied him due process
and resulted in an unfair trial.

{¶81} Lack of Impartiality. The record reveals that on the fifth day
of the trial, the judge conducted an in-chambers discussion that
occurred on the record and outside the presence of the jury at the
request of Buck's defense counsel. The discussion centered on an
incident that had just occurred outside the courtroom, wherein the
trial judge angrily ordered defense counsel to the courtroom.
Defense counsel took umbrage, and asserted that the judge had
demonstrated bias. The judge explained that he had reacted in that
manner because he was frustrated by counsel’s tardiness, and
apologized.
{¶82} It is fundamentally unfair for a criminal defendant to be tried
before a biased judge. State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S.
570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). A trial before a
judge that is not impartial results in structural constitutional error
that would require reversal without resort to a harmless-error
analysis. State v. Sanders, 92 Ohio St.3d 245, 278, 2001-Ohio-189,
750 N.E.2d 90 (2001), citing Arizona v. Fulminante, 499 U.S. 279,
309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

{¶ 83} The Supreme Court of Ohio has described judicial bias as “a
hostile feeling or spirit of ill will or undue friendship or favoritism
toward one of the litigants or his attorney, with the formation of a
fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be
governed by the law and the facts.” State ex rel. Pratt v. Weygandt,
164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the
syllabus.

{¶ 84} Confrontation and Hearing Outside Defendant's Presence.
First, he points to the judge's angry confrontation with his defense
counsel. “[S]harp words spoken by a trial court to counsel do not by
themselves establish impermissible bias. There is a ‘modicum of
quick temper that must be allowed even judges.’" Sanders at 278,
citing United States v. Donato, 99 F.3d 426, 434, 321 U.S. App.
D.C. 287 (D.C.Cir.1996), quoting Offutt v. United States, 348 U.S.
11, 17, 75 S.Ct. 11, 99 L.Ed. 11 (1954). The United States Supreme
Court has explained:

[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. * * * Not
establishing bias or partiality, however, are
expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the
bounds of what imperfect men and women, even
after having been confirmed as federal judges,
sometimes display. A judge's ordinary efforts at
courtroom administration—even a stern and short-
tempered judge's ordinary efforts at courtroom
administration—remain immune.

Liteky v. United States, 510 U.S. 540, 555-556, 114 S.Ct. 1147, 127
L.Ed.2d 474 (1994).
{¶ 85} In this case, even if the judge used profanity in speaking with
defense counsel and expressed impatience with counsel, the episode
occurred outside the courtroom and out of the jury’s presence, and
by itself demonstrated no bias or partiality of the judge.

{¶ 86} Buck also complains that he was denied due process because
he was not present at the in-chambers discussion about the incident
between the trial judge and defense counsel. He argues that he was
entitled to be at the discussion because it was a critical stage of the
trial.

{¶ 87} While a criminal defendant has a fundamental right to be
present at all critical stages of his trial, State v. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 100; Article I, Section 10,
Ohio Constitution; Crim.R. 43(A), prejudicial or constitutional error
does not necessarily result from the defendant’s absence. State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶
139; State v. Green, 90 Ohio St.3d 352, 371, 2000-Ohio-182, 738
N.E.2d 1208 (2000). “[I]n certain circumstances, a defendant’s
absence from a discussion at which his counsel are present does not
offend due process.” State v. Conway, 108 Ohio St.3d 214, 2006-
Ohio-791, 842 N.E.2d 996, ¶ 50, citing United States v. Gagnon,
470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).

{¶ 88} Buck has failed to establish that he suffered any prejudice
from not being present for this in-chambers and on-the-record
discussion. Moreover, Buck implicitly waived his presence for the
discussion because it occurred and was recorded at the request of
defense counsel, who was authorized to waive Buck's presence. See
State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d
959, ¶ 122, quoting Gagnon at 528 (the trial court “need not get an
express 'on the record' waiver from the defendant for every trial
conference which a defendant may have a right to attend”).

{¶ 89} Conflict of Interest with Codefendant’s Counsel. Next, Buck
argues that the trial court failed to investigate a potential conflict of
interest between Buck and his codefendant's trial counsel, who had
once represented Buck in a criminal case. Buck asserts that the
court’s failure to investigate the conflict arising from counsel’s
successive representation of him and then Barrow denied him a fair
trial.

{¶ 90} A trial court has a duty to inquire into a potential conflict
only where it knows or reasonably should know of an attorney’s
possible conflict of interest in the representation of a criminal
defendant. State v. Gillard, 78 Ohio St.3d 548, 552, 1997-Ohio-183,
679 N.E.2d 276 (1997); Mickens v. Taylor, 535 U.S. 162, 168, 122
S.Ct. 1237, 152 L.Ed.2d 291 (2002); Cuyler v. Sullivan, 446 U.S.
335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). This “is not to be
confused with when the trial court is aware of a vague, unspecified
possibility of conflict, such as that which ‘inheres in almost every
instance of multiple representation.’” Mickens at 168-169, quoting
Cuyler at 348.

{¶ 91} The court's failure to conduct the inquiry, however, does not
require a reversal unless an actual conflict is found. Gillard at 552.
An actual conflict may be found where counsel actively represents
conflicting interests. State v. Manross, 40 Ohio St.3d 180, 182, 532
N.E.2d 735 (1988). "Conflicts may arise when an attorney
simultaneously represents clients with different interests (multiple
representation), or when an attorney representing a defendant has
previously represented co-defendants or trial witnesses (successive
representation)." Moss v. United States, 323 F.3d 445, 459 (6th
Cir.2003), quoting United States v. Shepard, 675 F.2d 977 979 (8th
Cir.1982). “It is more difficult for a defendant to show that counsel
actively represented conflicting interests in cases of successive
rather than simultaneous representation.” Id.

{¶ 92} Here, on the tenth day of trial, just before closing arguments,
Buck’s counsel informed the court that Buck had just told him that
Barrow’s counsel had represented him nine years earlier. At that
point, Barrow's counsel told the court that he could not recall if he
had represented Buck. The trial court expressed skepticism about
the timing of Buck’s concern because the trial was in its second
week and because Barrow’s counsel had been involved in the case
for quite some time. The court pointed out that Barrow testified that
Buck had had nothing to do with the charged offense and that
Barrow's counsel had done nothing to try to incriminate Buck.
Buck’s response was that he had not realized earlier that there was
a potential conflict.

{¶ 93} Buck has not demonstrated that he was prejudiced as a result
of Barrow's counsel's representation of him nine years earlier. At
most, he claims that if he had testified, “it would have behooved co-
defendant's counsel to press Mr. Buck to testify that a staged
kidnapping is in fact what took place—a proposition that would
have been directly contradictory to Mr. Buck's defense.” But Buck
did not testify, and any potential effect of the previous
representation is speculative. Therefore, the trial court did not err by
failing to further investigate the matter.

• * * *
{¶ 103} Failure to Record Sidebar Conferences. Buck complains
that the trial court denied his right to a public trial and violated
Crim.R. 22 by failing to record all of the sidebar conferences.
During recesses throughout the trial, the court summarized the
content of preceding sidebar conferences, and then asked whether
the parties had additions or corrections to make to the summaries.
Defense counsel did not object to this procedure.

{¶ 104} Crim.R. 22 requires the trial court to record all proceedings
(including sidebar conferences) in serious-offense cases, and the
court’s summary of sidebar conferences in lieu of a recording is
error. State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 80 (1st
Dist.); State v. Davis, 1st Dist. Hamilton No. C-130198, 2014-Ohio-
794, ¶ 13. However, the defendant must show prejudice from the
failure to record, especially where the defendant fails to object to the
procedure used the by trial court. Simmons at ¶ 81.

{¶ 105} In this case, defense counsel was given an opportunity to
comment on the trial court's summary, to add anything counsel
wanted, to clarify the summary, or to object to it in any way. Counsel
did not do so, and we therefore presume the summaries are accurate.

{¶ 106} If Buck believed that the trial court’s summaries were
inaccurate, he had the burden to supplement the record. Where a trial
court fails to record sidebar conferences, the defendant bears the
burden of reconstructing the off-the-record discussion pursuant to
App.R. 9(C). Davis at ¶ 14. In this case, by failing to supplement the
record with an alternative statement of what transpired, Buck has
accepted the trial court's summaries as accurate representations of
what occurred during the unrecorded sidebar conferences. Id.

{¶ 107} The trial court erred by failing to record the sidebar
conferences. But because Buck has failed to demonstrate any
resulting prejudice, we overrule the third assignment of error.

Buck, 2017-Ohio-8242.

Judicial Bias
Buck claims the trial judge was biased against him as evidenced by the judge’s
confrontation with his trial attorney.
The First District opinion does not recount the content of the confrontation, but notes that
it apparently arose from the trial judge’s anger at Buck’s trial attorney’s tardiness, it did not happen
in the presence of the jury, and its resulted in a hearing at defense counsel’s request that involved
an apology from the judge.

While the Supreme Court has had a number of occasions to opine on judicial bias, almost
all of them have involved the interpretation and enforcement of the Canons of Judicial Ethics.
However, in Tumey v. Ohio, 273 U.S. 510 (1927), the Court held the Due Process Clause
incorporates the common-law rule requiring recusal when a judge has a direct, personal,
substantial, pecuniary interest in a case. Tumey involved a traffic court judge who was
compensated more for a finding of guilt than innocence. 273 U.S. at 533. It was only eighty-two
years after Tumey that the Court next found a set of facts that was constitutionally disqualifying.
In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), it reversed a decision of the West
Virginia Supreme Court on bias grounds where the deciding vote was cast by a justice who had
essentially been placed on that court by the efforts and money of one of the parties. The Court

extended Caperton in Williams v. Pennsylvania, 579 U.S. ___, 136 S. Ct. 1899 (2016), holding
that a person who as district attorney approved seeking the death penalty may not later hear as
appellate judge a postconviction matter in the same case. “A constitutionally intolerable
probability of actual bias exists when the same person serves as both accuser and adjudicator in a
case.” Williams reiterated the rule on which Petitioner relies that trial by a biased judge is a
structural error.
Nothing like the facts of Tumey, Caperton, or Williams is presented here. The facts as
recited in the First District’s opinion3 show a judge expressing his anger at an attorney’s tardiness,

3 Buck has not attempted to show that these factual findings are unreasonable.
then apologizing on the record for the intemperate expression of that anger. Even under the stricter
judicial ethics canons, the Supreme Court held in Liteky:
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A
judge’s ordinary efforts at courtroom administration — even a stern
and short-tempered judge’s ordinary efforts at courtroom
administration — remain immune.

510 U.S. at 555-56 (emphasis in original). The trial of this case consumed at least ten days of trial
court time, even though it involved only a single incident crime. Given the time pressure applied
by the number of criminal cases in an urban felony court such as the Hamilton County, Ohio, Court
of Common Pleas and the Speedy Trial Act, Ohio Rev. Code §§ 2945.71-73, it is hardly surprising
that a judge would become upset at a trial attorney’s tardiness. That the judge expressed that anger
forcefully but outside the presence of the jury does not display any deep-seated bias against Buck
or his attorney and does not rise to the level of a constitutional violation.
The fact that the hearing on the confrontation occurred out of the Petitioner’s presence also
does not constitute a constitutional violation. That was done at the request of defense counsel who
had the implied authority to waive Petitioner’s presence. Furthermore, as the First District found,
Buck has shown no prejudice from his exclusion: he has not suggested what his presence would
have added. Accordingly, Buck’s judicial bias claim is without merit.

Conflict of Interest

Buck argues he was deprived of a fair trial because his co-defendant Barrow’s counsel had
represented Buck in a criminal case nine or so years in the past.
Where a criminal defendant can prove that his attorney actively represented actual
conflicting interests, ineffectiveness will be found and there is no need to show prejudice resulting
from the conflict. Cuyler v. Sullivan, 446 U.S. 335 (1980); Thomas v. Foltz, 818 F.2d 476 (6th Cir.
1987). The burden of proof of actual conflict is on the Petitioner. Cuyler, 446 U.S. at 348 n.14.

The conflict must be actual and significant. Thomas, 818 F.2d at 481. The presumed prejudice
standard of Cuyler is clearly established only when the conflict is due to multiple concurrent
representations. Mickens v. Taylor, 535 U.S. 162 (2002).
The First District effectively found that Buck and Barrow’s interests did not conflict:
Barrow’s counsel had done nothing to incriminate Buck and Barrow had testified Buck was not
involved in the crime. While a conflict of interest between criminal defendants is not uncommon,
Buck has not shown there was any actual conflict here.
Moreover, as the First District found, the representations were not concurrent: Barrow’s
attorney’s representation of Buck has ended many years before and there is not even a suggestion
that Buck had, during the prior representation, conveyed confidences to the attorney which were

now being used against him. Essentially Buck’s position suggests there should be a per se rule
against a criminal defense attorney’s ever appearing in a second case where a former client is a co-
defendant. A moment’s reflection will show how unworkable such a rule would be in an era when
so many criminal defendants are represented by employee attorneys of public defender offices.

Denial of a Mistrial

Petitioner claims the trial court’s failure to declare a mistrial as a sanction on the prosecutor
for the asserted Brady violation deprived him of a fair trial. The First District dealt with the mistrial
issue as follows:
{¶ 95} The decision whether to grant or deny a mistrial “lies within
the sound discretion of the trial court.” State v. Garner, 74 Ohio
St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623 (1995). A mistrial
should be declared only when justice requires and when a fair trial
is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580
N.E.2d 1 (1991).

{¶ 96} As we have stated, a trial court has discretion in determining
a sanction for a discovery violation. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, at ¶ 33. See discussion at ¶ 65.

{¶ 97} At the close of the state’s case, Barrow’s defense attorney
moved for a mistrial on the basis that he had believed that the police
had only interviewed George once, and that Barrow had been
prejudiced as a result. Buck’s defense attorney joined in the motion,
but offered no argument. We note that it is not clear from the record
that the prosecutor had not disclosed the second interview to Buck
because his attorney never made such a representation to the court.

{¶ 98} The prosecutor responded that he had had meetings with the
defense and had provided them with all the information that he had.
He said that he and Detective Hilbert had communicated the
substance of the second interview to Barrow’s prior counsel. He said
that Barrow's trial counsel had told him that Barrow’s prior counsel
had gotten rid of his case file, so the prosecutor did his best to ensure
that both defense counsel had all of the information that had been
previously disclosed.

{¶ 99} The trial court denied the motions for a mistrial, stating that
while there was a discrepancy as to “who knew or who didn't know
and what was turned over to prior counsel,” the defense had
adequately dealt with what they had learned about the second
interview.

{¶ 100} When the codefendant's counsel asserted surprise at the
second interview, the court noted that there had been no assertion
that the prosecutor willfully withheld the information and that it may
have been provided to prior defense counsel. The court recessed so
that defense counsel could meet with the prosecutor and Detective
Hilbert to discuss the content of the second interview and allowed
counsel to cross-examine the detective about whether the interview
had been withheld.
{¶ 101} Buck asserts, for the first time on appeal, that the late
disclosure prevented him from cross-examining Detective Hilbert
about the discrepancies between the two interviews. He does not say
how the discrepancies would have aided his defense. According to
Detective Hilbert, there were no discrepancies, just new information
about a prearranged marijuana sale. And Buck’s counsel had already
begun cross-examining the detective about the drug deal before
Barrow's counsel asserted surprise at another interview.

{¶ 102} At trial, Buck’s counsel raised no concern about
discrepancies between the two interviews. Rather, he explained to
the trial court that the only discrepancies he wanted to explore were
those between George’s first interview and his trial testimony.
Under these circumstances, we cannot say that the trial court abused
its discretion by overruling Buck’s motion for a mistrial related to
the alleged discovery violation. Buck has failed to establish that a
fair trial was no longer possible.

Buck, 2017-Ohio-2842. Buck has not suggested how the failure to declare a mistrial proved
judicial bias or was in any way an unreasonable application of clearly established Supreme Court
precedent. Since it is unclear that any Brady violation occurred, particularly as it concerns Buck,
it is even less arguable that any discovery violation required a mistrial. Mistrials are “expensive”
in the sense that they consume judicial and jury resources without a final result. Because of this,
it has been the law since the early days of the Republic that a mistrial should be declared only
when there is “manifest necessity” for it. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824) (Story, J.). There was no manifest necessity for a mistrial here; the trial judge adequately
dealt with any possible prejudice from late revelation of the second George interview.

Unrecorded Sidebar Conferences

As the First District found, Ohio law requires making a record of sidebar conferences,
which was not done in this case. The First District, however, found that any error had been
forfeited by failure to provide any corrections to the trial court’s summary of what occurred.
Buch responds in his Traverse that he has a constitutional right to a public trial which was
violated by this failure to record the sidebars. Noting that denial of a public trial is a structural
error to which harmless error analysis is not applicable, Buck claims a right to issuance of the writ

(Reply, ECF No. 11, PageID 2567).
The practice of conducting sidebar conferences is ubiquitous in trial practice. Most often
it is used to resolve an evidentiary objection outside the hearing of the jury but without taking a
formal recess and removing the jury from the courtroom. The benefit to judicial economy is
obvious: the jury is not inconvenienced and distracted by leaving the courtroom every time an
evidentiary issue must be resolved.
Because issues resolved at sidebar may give rise to issues on appeal, it is common practice
to record sidebar conferences and Ohio law requires recording in serious offense cases. The
Magistrate Judge agrees with Petitioner that denial of a public trial is indeed a structural error.
Waller v. Georgia, 467 U.S. 39 (1984). However, the Magistrate Judge is unaware of any Supreme

Court precedent, indeed any federal precedent at all, holding that conducting a sidebar conference
without making a record constitutes denial of a public trial.
Buck has not shown that the First District’s decision on the unrecorded sidebar conference
issue is contrary to or an unreasonable application of clearly established Supreme Court precedent.
Grounds Three, Eleven, Twelve, and Thirteen are without merit and should be dismissed.

Ground Five: Denial of Jail Time Credit

This Ground for Relief is rendered moot by the correction of the jail time credit on remand.
Grounds Four and Fourteen: Admission of Tattoo Photographs

In his Fourth and Fourteenth Grounds for Relief, Petitioner complains that the trial court

improperly admitted pictures of tattoos on his body which displayed guns. Buck raised this claim
as his Fourth Assignment of Error on direct appeal and the First District decided:
{¶ 112} In this case, we find that the tattoo evidence meets none of
these relevance criteria and that the court abused its discretion in
admitting the photographs. See State v. Huff, 145 Ohio App.3d 555,
566, 763 N.E.2d 695 (1st Dist.2001). Even if the tattoo evidence was
relevant, if it invites the jury to draw an improper inference about
the defendant’s character, its probative value may be substantially
outweighed by the danger of unfair prejudice. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 196. In this case,
any probative value that the tattoo photographs may have had was
substantially outweighed by the danger of unfair prejudice because
the photographs may have encouraged the jury to draw an improper
inference about Buck’s familiarity with guns and his willingness to
use firearms to commit crimes. See id. at ¶ 196 (“straight killer”
tattoo showed the defendant's “comfort with death and guns” and
may have led to an improper inference that he committed murders).
The trial court abused its discretion in admitting the tattoo
photographs. Id.

{¶ 113} Even so, we hold that the error in the admission of the
photographs was harmless because there is no reasonable
probability that the evidence contributed to Buck's conviction. State
v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶
28. Given the overwhelming evidence of Buck’s guilt, we cannot
say that but for the tattoo photographs, the outcome of the trial
would have been different. McKelton at ¶ 197; State v. Arnold, 147
Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50, citing State
v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶
37. We overrule the fourth assignment of error.

Buck, 2017-Ohio-2842.
Buck presented this claim to the First District as a trial court error in the admission of
evidence in that the tattoos were irrelevant and prejudicial. As its standard for evaluating this
claim, the First District wrote:
{¶ 109} The admission of evidence is within the sound discretion of
the trial court. See State v. Obermiller, 147 Ohio St.3d 175, 2016-
Ohio-1594, 63 N.E.3d 93, ¶ 61. We will not disturb a trial court's
ruling on evidentiary issues on appeal absent an abuse of discretion
and proof of material prejudice. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149
Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116. An abuse
of discretion occurs if the trial court's decision is “unreasonable,
arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

Buck, 2017-Ohio-2842. Federal habeas corpus is available only to correct federal constitutional
violations. 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); accord: Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)
(Marshall C.J.); Bickham v. Winn, 888 F.3d 248, 253 (6th Cir. 2018) (Thapar, J., concurring in
part). In particular, this Court may not decide whether admission of the tattoos was a violation of
Ohio evidence law or even if it was an abuse of discretion to admit them. Abuse of discretion is
not a denial of due process. Sinistaj v. Burt, 66 F.3d 804, 807 (6th Cir. 1995).
Petitioner’s particular claim is that these photographs of tattoos were improper character
evidence, much like the admission of other bad acts to prove propensity or character.4 While
admission of other bad acts evidence is widely condemned. the Supreme Court has never declared

4 Petitioner did not testify at trial, so evidence of his character was not admissible.
it to be unconstitutional. “There is no clearly established Supreme Court precedent which holds
that a state violates due process by permitting propensity evidence in the form of other bad acts
evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), citing McGuire, 502 U.S. at 75
(noting that the Supreme Court refused to reach the issue in McGuire).

Buck relies on Dawson v. Delaware (Reply, ECF No. 11, PageID 2568-69, citing 503 U.S.
159 (1992)). In that case the Supreme Court held admission of evidence of Dawson’s membership
in the Aryan Brotherhood at the penalty phase of his capital trial violated his First Amendment
rights because it concerned only his abstract beliefs and was not relevant character evidence
because both he and his victim were white. 503 U.S. at 167-68. Buck makes no First Amendment
claim here.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition 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.

June 3, 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375681. Public record. Not legal advice.