Wallace v. Warden, Warren Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

PIANTE WALLACE,

Petitioner, : Case No. 1:19-cv-429

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

WARDEN,

Warren Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Piante Wallace, is before the Court

for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 7), and

the Return of Writ (ECF No. 8).

Magistrate Judge Litkovitz, in her Order for Answer, set a deadline for Petitioner’s reply

of twenty-one days after the Return was filed (ECF No. 3, PageID 23). Since the Return was filed

and served by mail on August 29, 2019, Petitioner’s reply was due September 23, 2019, but no

reply has been filed.

Litigation History

Wallace was indicted July 7, 2014, on counts of aggravated murder in violation of Ohio

Revised Code § 2903.01(B); murder in violation of Ohio Revised Code § 2903.02(B), and

aggravated robbery in violation of Ohio Revised Code § 2911.01(A)(1). Each count included a

firearm specification (Indictment, State Court Record, ECF No. 7, Ex. 1). At a jury trial almost

two years after the Indictment, Wallace testified in his own defense but was convicted of murder

and aggravated robbery, both with firearm specifications, but acquitted on the aggravated murder

charge. The trial court sentenced him to eighteen years to life in prison.

Represented by new counsel, Wallace appealed to the Ohio First District Court of Appeals,

raising the following assignments of error:

FIRST ASSIGNMENT OF ERROR: The trial court erred as a

matter of law by overruling Appellant’s motion to strike the State’s

Certification under Crim. R. 16.

SECOND ASSIGNMENT OF ERROR: The trial court erred as a

matter of law by allowing hearsay evidence to be admitted in

violation of Appellant’s right to a fair and impartial trial.

THIRD ASSIGNMENT OF ERROR: The trial court erred as a

matter of law by permitting other acts testimony into evidence thus

prejudicing Appellant’s right to a fair trial.

FOURTH ASSIGNMENT OF ERROR: The trial court erred as a

matter of law by permitting the State to impeach its own witness in

violation of Appellant’s right to a fair trial.

FIFTH ASSIGNMENT OF ERROR: The trial court erred as a

matter of law by permitting the prosecutor to make improper

remarks to the jury and to introduce improper evidence thus

prejudicing Appellant’s rights to a fair trial.

SIXTH ASSIGNMENT OF ERROR: The evidence was insufficient

as a matter of law and/or against the manifest weight of the evidence

to sustain Appellant’s convictions.

(Appellant’s Brief, State Court Record, ECF No. 7, Ex. 18). The First District overruled all the

Assignments of Error and affirmed the conviction. State v. Wallace, 2017-Ohio-9187 (Ohio App.

1st Dist. Dec. 22, 2017).

Represented by new counsel, Wallace appealed to the Supreme Court of Ohio raising only

one proposition of law:

PROPOSITION OF LAW NO. I:

Under Crim. R. 16(D) a court is supposed to require the State to set

forth in any motion for certification, case-specific reasoning for

granting certification. The statute does not permit the Prosecution to

widely and freely invoke this rule as a basis for strategic preparation

and when the State only is able to offer general assertions in a

certification hearing, it is insufficient to meet the requirements under

Crim. R. 16(D).

(Memorandum in Support of Jurisdiction, State Court Record, ECF No. 7, Exhibit 22). The Supreme

Court of Ohio declined to exercise appellate jurisdiction. State v. Wallace, 2018-Ohio-1795 (2018).

Wallace then filed his pro se Petition for Writ of Habeas Corpus in this Court on May 23, 20191,

pleading the following grounds for relief:

Ground One: The trial court erred as a matter of law by overruling

Appellant’s motion to strike the State’s Certification under Crim. R.

16.

Factual Support: The trial court prejudiced Defendant by violating

his Constitutional right to trial by overruling our motion to strike

State’s Certification under Crim. R. 16 infringing on his rights to a

discovery.

Ground Two: The trial court erred as a matter of law by allowing

hearsay evidence to be admitted in violation of Appellant’s right to

a fair and impartial trial.

Ground Three: The trial court erred as a matter of law by

permitting other acts testimony into evidence thus prejudicing

Appellant’s rights to a fair trial.

Ground Four: The trial court erred as a matter of law by permitting

the State to impeach its own witness in violation of Appellant’s right

to a fair trial.

(Petition, ECF No. 1, PageID 8, 10, 11, and 13).

1 Although the Petition was not docketed until May 30, 2019, Wallace is entitled as a filing date to the date he deposited

the Petition in the prison mail system, which he avers was May 23, 2019 (Petition, ECF No. 1, PageID 18).

Analysis

In each of his four Grounds for Relief, Wallace asserts that some error of the trial court

deprived him of his federal constitutional right to a fair trial. That right is protected by the Sixth

and Fourteenth Amendments to the United States Constitution. Federal habeas corpus relief is

available only to remedy violations of the federal 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). “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, J. concurring).

This basic principle has several implications for this case. "[I]t is not the province of a

federal habeas court to reexamine state court determinations on state law questions.” Estelle,

supra. That means we do not sit as an appeals court on questions of Ohio law. We cannot grant

habeas corpus relief even if we find that the Ohio courts erred in applying Ohio law.

Nor does every violation of state procedural rules in a criminal case rise to the level of

denial of due process or a fair trial. Failure to abide by state law is not itself a constitutional

violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation by a State of its own

procedural rules does not necessarily constitute a violation of due process. Bates v. Sponberg, 547

F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228 (6th Cir. 1976). “A

state cannot be said to have a federal due process obligation to follow all of its procedures; such a

system would result in the constitutionalizing of every state rule, and would not be administrable.”

Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993), overruled

in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995).

A second general principle applicable here is the requirement that a habeas petitioner

exhaust available state court remedies for asserted federal constitutional violations. 28 U.S.C. §

2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275 (1971). Exhaustion requires that the federal

claim be “fairly presented” to the state forum. To preserve a federal constitutional claim for

presentation in habeas corpus, the claim must be "fairly presented" to the state courts in a way

which provides them with an opportunity to remedy the asserted constitutional violation, including

presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806

(6th Cir. 2006); Levine, supra; Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The claim

must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d

410, 418 (6th Cir. 2009).

If a habeas petitioner has used a state court procedure in which he could have fairly

presented a federal constitutional claim, but failed to do so, he has procedurally defaulted on that

claim and it also cannot be heard in habeas corpus. The procedural default doctrine in habeas

corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,

456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

Wallace’s Petition is reviewed with these basic habeas corpus principles in mind.

Ground One: Failure to Strike State’s Certification of Nondisclosure

In his First Ground for Relief, Wallace asserts he was denied his constitutional right to a

fair trial when the trial court failed to strike the prosecutor’s Certification of Nondisclosure. This

claim was presented to the First District Court of Appeals as the First Assignment of Error. The

appellate court decided it as follows:

II. Certification of Nondisclosure

[*P35] In his first assignment of error, Wallace contends that the

trial court erred in overruling his motion to strike the state's

certification for nondisclosure of witnesses under Crim.R. 16. He

argues that the that the certification did not contain any specific

grounds on which the state was relying, but only general assertions

that that witnesses have been threatened, harassed, or murdered.

This assignment of error is not well taken.

[*P36] We review issues relating to discovery under an abuse-of-

discretion standard. See State v. Parson, 6 Ohio St.3d 442, 445, 6

Ohio B. 485, 453 N.E.2d 689 (1983); State v. Williams, 1st Dist.

Hamilton No. C-130277, 2014-Ohio-1526, ¶ 14. Crim.R. 16(I)

requires each party to "provide to opposing counsel a written witness

list, including names and addresses of any witnesses it intends to

call[.]"

[*P37] But, under Crim.R. 16(D)(1), if "[t]he prosecuting attorney

has reasonable, articulable grounds to believe that the disclosure will

compromise the safety of a witness, victim, or third party, or subject

them to intimidation or coercion," the prosecuting attorney shall

certify to the court that he or she is not disclosing discoverable

materials. Williams at ¶ 15. Reasonable, articulable grounds may

include, but are not limited to, "the nature of the case, the specific

course of conduct of one or more parties, threats or prior instances

of witness tampering or intimidation, whether or not those instances

resulted in criminal charges, whether the defendant is pro se, and

any other relevant information." Crim.R. 16(D). Generalized

assertions are insufficient to meet the requirements of Crim.R.

16(D). Williams at ¶ 17. The trial court may not reject the

prosecuting attorney's certification for nondisclosure unless it finds

that the prosecution has abused its discretion. State v. Woods, 1st

Dist. Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶

34.

[*P38] On September 24, 2014, the state filed the certification,

which provided that it sought "non-disclosure of the name and

address of certain civilian witness[es] * * *. The disclosure of such

information will compromise the safety of these witnesses and

subject these people to intimidation or coercion." The certification

contained mostly general assertions about other murder cases. But,

it also stated,

In the current case, the victim, Markeith Peek, was

murdered in front of eyewitnesses. There are also

additional civilian witnesses the State intends to call to

piece together the chain of events and the aftermath of the

crimes. The State seeks protection for these witnesses in

the form of nondisclosure. The defendants are well known

robbery boys in the neighborhood and beyond. They are

also known to be violent. Citizens are afraid of these

individuals and their extended network. In fact, many of

the witnesses are afraid as well.

[*P39] Subsequently, Wallace filed a motion to strike the

certification of nondisclosure on the basis that it was a "cookie

cutter" pleading that did not contain case-specific facts. The trial

court overruled the motion and set a date for a hearing under

Crim.R. 16(F), which provides that "[u]pon motion of the defendant,

the trial court shall review the prosecuting attorney's decision of

nondisclosure * * * for abuse of discretion during an in camera

hearing conducted seven days prior to trial, with counsel

participating."

[*P40] This court has stated that while generalized assertions in the

prosecutor's certification are insufficient to meet the requirements of

Crim.R. 16(D), that defect could be cured during the hearing

provided for in Crim.R. 16(F). Williams, 1st Dist. Hamilton No. C-

130277, 2014-Ohio-1526, at ¶ 18. Nevertheless, we have concerns

about the lack of specificity in the certification and whether that

defect was cured at the hearing. The staff notes to Crim.R. 16 state

that "the certification need not disclose the contents or means of a

non-disclosed material, but must describe it with sufficient

particularity to identify it in judicial review as described in Division

(F)."

[*P41] But we need not reach that issue in this case. On February

2, 2015, a hearing on the certification was held before a different

trial judge, seven days before the first scheduled trial date. The court

held that the prosecution had not abused its discretion and that it

would not require the state to disclose the witnesses' names. The

state timely disclosed the names of the witnesses before the first trial

date as required by Crim.R. 16(F)(5). But the trial did not go forward

on that date. The case was continued for reasons unrelated to the

certification, and the trial did not start until June 7, 2016, 16 months

later.

[*P42] Consequently, Wallace knew the names of the witnesses for

a substantial amount of time before the trial. He did not claim he

could not go forward at that time, and he has not demonstrated any

prejudice on the basis that the witnesses' names were not

immediately disclosed. Therefore, any error was harmless beyond a

reasonable doubt. See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d

1035 (1976), paragraph seven of the syllabus; State v. Bell, 2015-

Ohio-1711, 34 N.E.3d 405, ¶ 35 (1st Dist.). We overrule Wallace's

first assignment of error.

Wallace, 2017-Ohio-9187.

In his First Ground for Relief, Wallace asserts that the failure to the trial court to strike the

prosecutor’s declaration violated “his Constitutional right to trial.” However, in arguing his First

Assignment of Error to the First District, he made no constitutional claim at all. He cited only

Ohio R. Crim. P. 16 and Ohio cases interpreting that rule. (Appellant’s Brief, State Court Record,

ECF No. 7, Ex. 18, PageID 83.)

“Federal courts do not have jurisdiction to consider a claim in a habeas petition that was

not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2004);

accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674,

681 (6th Cir. 674, 681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006);

Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004).

Principles of comity require that we not seek to upset a state court

conviction on the basis of an alleged constitutional violation that the

state court never had an opportunity to correct. See Rose v. Lundy,

455 U.S. 509, 518 (1982). “Accordingly, we have required a state

prisoner to present the state courts with the same claim he urges

upon the federal courts.” Lyons v. Stovall, 188 F.3d 327, 331–32

(6th Cir. 1999) (quoting Picard v. Connor, 404 U.S. 270, 276

(1971)). “[I]f an unexhausted claim would be procedurally barred

under state law, that claim is procedurally defaulted for purposes of

federal habeas review.” Awkal v. Mitchell, 613 F.3d 629, 646 (6th

Cir. 2010) (en banc) (quoting Alley v. Bell, 307 F.3d 380, 385 (6th

Cir. 2002)).

Allen v. Mitchell, 953 F.3d 858 (6th Cir. 2020).

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).

Based on his failure to fairly present this claim to the state courts, Respondent asserts it is

procedurally defaulted. Because he filed no reply, Wallace has not responded to this defense.

The Magistrate Judge agrees that Wallace failed to fairly present his First Ground for Relief

to the First District as a constitutional claim He has therefore procedurally defaulted it and Ground

One should be dismissed with prejudice.

Ground Two: Trial Court Allowance of Hearsay Denied Petitioner a Fair Trial

In his Second Ground for Relief, Wallace asserts he was denied a fair trial by the admission

of hearsay testimony against him. While the Constitution does guarantee a criminal defendant a

fair trial and thus Ground Two states a constitutional claim, it is procedurally defaulted in the same

way as the First Ground. That is, it was not presented as a constitutional claim to the First District

Court of Appeals.

Wallace raised a hearsay question as his Second Assignment of Error on direct appeal. But

as with the First Ground, he made no constitutional claim that admission of hearsay denied him a

fair trial. Only Ohio Rules of Evidence and cases interpreting them are cited, except for Bruton v.

United States, 391 U.S. 123 (1968), which was cited in support of Wallace’s claim that admission

of the coconspirator statements violated his Confrontation Clause rights (Appellant’s Brief, ECF

No. 7, Ex. 18, PageID 83). That is, there was no claim that admission of hearsay per se denied

Petitioner a fair trial, which is the claim made here.

The First District Court of Appeals decided the second Assignment of Error as follows:

III. Hearsay

[*P43] In his second assignment of error Wallace contends that the

trial court erred by admitting hearsay into evidence. He argues that

the court should not have allowed testimony regarding a statement

by an alleged coconspirator to be introduced without requiring the

state to first present independent proof of the conspiracy. This

assignment of error is not well taken.

[*P44] Evid.R. 801(D)(2)(e) provides that "A statement is not

hearsay if * * * [t]he statement is offered against a party and is * *

* a statement by a co-conspirator of a party during the course and in

furtherance of the conspiracy upon independent proof of the

conspiracy." The statements of a coconspirator are not admissible

until the proponent has made a prima facie showing of the existence

of a conspiracy by independent proof. State v. Skatzes, 104 Ohio

St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 102. This rule

merely requires that the state present sufficient evidence to raise the

inference of a conspiracy. State v. Johnson, 2015-Ohio-3248, 40

N.E.3d 628, ¶ 104 (10th Dist.).

[*P45] This court has held that the court's premature admission of

evidence under Evid.R. 801(D)(2)(e) can be harmless if independent

prima facie proof of the conspiracy is produced before the case is

presented to the jury. State v. Jones, 1st Dist. Hamilton No. C-

090137, 2010-Ohio-4116, ¶ 21. Further, courts are authorized to

make rulings that admit evidence that is "conditionally relevant,"

that is, evidence that is relevant only if other evidence subsequently

presented demonstrates facts necessary to establish the relevance of

the previously admitted evidence. State v. Adkins, 136 Ohio App.3d

765, 773, 737 N.E.2d 1021 (3d Dist.2000).

[*P46] Wallace initially raised the issue during Amison's

testimony when the state elicited statements by Steele during the

phone call that Amison had overheard. The trial court allowed the

testimony conditionally upon a proffer from the state.

[*P47] The state informed the court that it had grave concerns that

Amison might not appear in court the following Monday, so they

had called him as a witness out of order. The state told the court

about Irwin, who would testify that he had been in the car with the

three codefendants, that they had discussed that they needed money,

and that they needed to "jug" someone, meaning to rob him. The

state also said that Raven would testify that she had received the

victim's phone from her brother after the robbery and that she had

loaned her car to Steele the night of the robbery. The court warned

the state that the testimony would be struck if no independent proof

of the conspiracy was ultimately presented.

[*P48] When the state called Irwin as a witness, it again addressed

the issue. It asked to proffer Wallace's statement to the police in

which he admitted that he and his codefendants had planned to rob

the victim. The statement was going to be admitted through the

testimony of Detective Hilbert, who had interviewed Wallace after

the shooting. A defendant's own statements may establish the

independent proof of the conspiracy. State v. Hand, 107 Ohio St.3d

378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 101; State v. Duerr, 8 Ohio

App.3d 396, 402, 8 Ohio B. 511, 457 N.E.2d 834 (1st Dist.1982).

[*P49] The trial court conditionally allowed Irvin's testimony, and

the state later presented the evidence that it had proffered.

Consequently, any error by the trial court in allowing the

conspirator's statements into evidence before the proof of the

independent conspiracy was harmless.

[*P50] Wallace further argues that the admission of the hearsay

statements violated his right to confront the witnesses against him.

The United States Supreme Court has held that only testimonial

statements implicate the Confrontation Clause. Crawford v.

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004); State v. Lukacs 188 Ohio App.3d 597, 2010-Ohio-2364, 936

N.E.2d 506, ¶ 11 (1st Dist.).

[*P51] Evid.R. 801(D)(2)(e) specifically provides that statements

made by a coconspirator are not hearsay. They are inherently

nontestimonial because the purpose for making the statements is not

for later use at trial. State v. Braun, 8th Dist. Cuyahoga No. 91131,

2009-Ohio-4875, ¶ 116. Accord State v. Metter, 11th Dist. Lake No.

2012-L-029, 2013-Ohio-2039, ¶ 36; State v. Howard, 3d Dist.

Marion No. 9-10-50, 2011-Ohio-3524, ¶ 89. Further, the Supreme

Court has specifically identified statements in furtherance of a

conspiracy as examples of statements that are inherently

nontestimonial. Braun at ¶ 116, citing Crawford at 56.

Consequently, the admission of the statements did not violate the

Confrontation Clause.

[*P52] Finally, Wallace argues that the trial court erred in

admitting the records of Peek's texts because they were hearsay. The

only one of Peek's texts that was of any significance was a text just

before the time of the murder. Someone texted him and asked what

he was doing, and he answered, "nun Chilling." This text was

admissible to rebut Wallace's claim that Peek was aggressive and

looking to shoot someone the night of the murder. It was a statement

of Peek's then existing state of mind and it was admissible into

evidence under Evid.R. 803(3). See State v. Adams, 144 Ohio St.3d

429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 218-226; State v. Sutorius,

122 Ohio App.3d 1, 7-8, 701 N.E.2d 1 (1st Dist.1997).

[*P53] Other texts in which people called Peek by name were not

admitted for their truth. Instead they were admitted to show that they

were, in fact, sent to Peek. Since they were not admitted for the truth

of the matter asserted, they were not hearsay under Evid.R. 801(C).

See State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980); State v. Brewster, 1st Dist. Hamilton Nos. C-030024 and C-

030025, 2004-Ohio-2993, ¶ 50.

[*P54] Wallace has not specified any other of Peek's texts that he

claims were hearsay. The appellant bears the burden to show error

by reference to the record. To be considered on appeal, errors by a

trial court must be argued and supported by legal authority and

citation to the record. App.R. 16(A); State v. Brown, 1st Dist.

Hamilton No. C-120327, 2013-Ohio-2720, ¶ 24. In the absence of

further specification, we decline to go through all of Peek's texts and

decide whether each of them is hearsay. Consequently, we overrule

Wallace's second assignment of error.

State v. Wallace, 2017-Ohio-9187. Thus the First District was not presented with and did not

decide a constitutional claim that admission of hearsay was a per se denial of a fair trial.

Respecting the Confrontation Clause claim, which Petitioner has not brought forward in

habeas, the First District decided that claim on the merits and found that coconspirator statements

are not excludable under the Confrontation Clause because they are not testimonial in nature.

The leading modern case from the Supreme Court on the Confrontation Clause is Crawford

v. Washington, 541 U.S. 36 (2004)(holding that “[t]estimonial statements of witnesses absent from

trial have been admitted only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.”). Wallace has presented no argument that the

coconspirator statements admitted here were testimonial in nature and indeed has not brought the

Confrontation Clause claim forward at all.

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). If Wallace had brought the

Confrontation Clause claim forward to this Court, the Magistrate Judge would recommend

dismissing it on the merits, because the First District’s decision on the Confrontation Clause claim

is not an objectively unreasonable application of Crawford and its progeny.

Instead, Wallace makes the more general claim that admission of hearsay denied him a fair

trial. That claim is procedurally defaulted because it was never fairly presented to the state courts.

Moreover, Wallace’s entire Second Assignment of Error, however construed, is procedurally

defaulted by his failure to seek Ohio Supreme Court review of this assignment.

Ground Two should therefore be dismissed with prejudice.

Ground Three: Denial of a Fair Trial by Admission of Other Bad Acts

In his Third Ground for Relief, Wallace claims he was denied a fair trial because the trial

court admitted other bad acts evidence. This was his Third Assignment of Error on direct appeal

and the First District decided it as follows:

IV. Other-Acts Evidence

[*P55] In his third assignment of error, Wallace contends that the

trial court erred by admitting other-acts testimony. He argues that

the court should not have allowed police officer Brandon Rock to

testify about an encounter with Wallace about two weeks before the

murder in which Wallace had a backpack containing marijuana,

a bag of bullets and a cardboard case to a 9 mm firearm. This

assignment of error is not well taken.

[*P56] Generally the prosecution in a criminal case may not

present evidence that the defendant has committed other crimes or

acts independent of the crime for which the defendant is being tried

to establish that he acted in conformity with his bad character.

Evid.R. 404(B); State v. Wright, 1st Dist. Hamilton No. C-150715,

90 N.E.3d 162, 2017-Ohio-1568, ¶ 43. But Evid.R. 404(B) also

provides that other bad acts are admissible to show "motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." State v. Shedrick, 61 Ohio St.3d

331, 337, 574 N.E.2d 1065 (1991); Wright at ¶ 43.

[*P57] Because Evid.R. 404(B) codifies an exception to the

general rule, it must be strictly construed against admissibility. State

v. Coleman, 45 Ohio St.3d 298, 299, 544 N.E.2d 622 (1989); Wright

at ¶ 44. Nevertheless, the other acts need not be similar to the crime

at issue. If the acts tend to show by substantial proof any of the items

enumerated in Evid.R. 404(B), evidence of other acts is admissible.

Coleman at 299-300; Wright at ¶ 44.

[*P58] Officer Rock testified that on June 3, 2014, he heard a

gunshot while on patrol. A short time later, he saw Steele, followed

by Wallace, walking through a parking lot where drug sales often

occurred. After Wallace placed his backpack on the ground, Officer

Rock went to talk with him. Wallace permitted the officer to look

through his backpack. He found a bag of bullets, an empty gun box,

and two bags of marijuana. He seized those items, but he did not

arrest Wallace, who he permitted to leave the area. Although the

state contends that Wallace did not object to this testimony at trial,

the record shows that he did.

[*P59] The state had the burden to show that Wallace purposely

caused Peek's death while committing, attempting to commit or

while fleeing after committing an aggravated robbery. See R.C.

2903.01(B) and 2903.02(B). To prove aggravated robbery, the state

had to prove that Wallace possessed a firearm. See R.C.

2911.01(A)(1). No guns were recovered at the scene and no bullet

was found during Peek's autopsy. Of the three conspirators, Wallace

was the only one alleged to have had a gun. Officer Rock's testimony

was relevant to show that Wallace had access to and the opportunity

to use a firearm. Thus it shows knowledge, absence of mistake,

preparation or plan, and intent.

[*P60] Under the circumstances, we cannot hold that the trial court

abused its discretion by allowing the other acts to be admitted into

evidence. See State v. Carusone, 1st Dist. Hamilton No. C-010681,

2003-Ohio-1018, ¶ 29. Consequently, we overrule Wallace's third

assignment of error.

State v. Wallace, 2017-Ohio-9187.

Although in the body of his brief and the text of this Assignment of Error, Wallace claimed

denial of a right to a fair trial, he argued this Assignment entirely in terms of Ohio evidence law.

There is no citation to any federal constitutional authority (Appellant’s Brief, State Court Record,

ECF No. 7, Ex. 18, PageID 84) and the First District did not consider itself as deciding a federal

constitutional question. Therefore this Ground Three is procedurally defaulted for lack of fair

presentation, as well as for failure to present it to the Supreme Court of Ohio. It is as well without

merit: the Supreme Court has never held that admission of other bad acts evidence violates the

fair trial guarantee. “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), noting that the Supreme Court

refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991).

Ground Three should therefore be dismissed with prejudice.

Ground Four: Denial of Fair Trial By Allowing the State to Impeach its Own Witness

In his Fourth Ground for Relief, Wallace claims that allowing the State to impeach its own

witness deprived him of a fair trial. Here again in pleading his Fourth Assignment of Error on

appeal, Wallace mentioned his right to a fair trial, but argued the Assignment entirely in terms of

Ohio law, not federal constitutional law (Appellant’s Brief, State Court Record, ECF No. 7, Ex.

18, PageID 84, 106-07.) Thus this claim was not fairly presented to the Court of Appeals as a

federal constitutional claim.

The First District decided the Fourth Assignment of Error as follows:

V. State's Impeachment of its Own Witness

[*P61] In his fourth assignment of error, Wallace contends that the

trial court erred by allowing the state to impeach its own witness.

Under Evid.R. 607(A), the party calling a witness may attack the

witness's credibility by means of a prior inconsistent statement only

upon a showing of surprise and affirmative damage. State v.

Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 27.

[*P62] Counsel may show surprise if the witness's trial testimony

is materially inconsistent with the witness's prior statements and

counsel had no reason to believe that the witness would recant when

called to testify. State v. Holmes, 30 Ohio St.3d 20, 23, 30 Ohio B.

27, 506 N.E.2d 204 (1987); Thomas at ¶ 27. Surprise is a factual

issue left to the trial court's discretion. State v. Diehl, 67 Ohio St.2d

389, 390-391, 423 N.E.2d 1112 (1981); Thomas at ¶ 27. Affirmative

damage occurs when the witness testifies to facts that contradict,

deny, or harm the party's trial position. Thomas at ¶ 27. A neutral

answer such as "I don't remember" does not, in and of itself,

constitute affirmative damage. State v. Williams, 1st Dist. Hamilton

No. C-150249, 2016-Ohio-5827, ¶ 28, 71 N.E.3d 592.

[*P63] Wallace contends that the state was allowed to impeach

Raven's testimony to the effect that she did not know Irvin and did

not remember seeing him the night of the murder. She

acknowledged that she had loaned her car to Steele, but stated that

she did not know if Irvin was with Steele and Herron when they

returned the car. She also denied driving anyone home that night.

These were not neutral answers. She was not saying she did not

know the answer to a question or did not remember a certain fact.

She specifically stated that she was certain she did not know Irvin at

all, which was inconsistent with her statement to Detective Hilbert

shortly after the murder. Consequently, the state made a showing of

affirmative damage.

[*P64] Wallace failed to object to the state impeaching Raven

Herron with her prior inconsistent statement. He has not

demonstrated that the trial court abused its discretion in allowing the

state to impeach its own witness, much less that any error rose to the

level of plain error. See Wright, 1st Dist. Hamilton No. C-150715,

2017-Ohio-1568, at ¶ 49; Thomas, 1st Dist. Hamilton No. C-

120561, 2013-Ohio-5386, at ¶ 31. Consequently, we overrule

Wallace's fourth assignment of error.

State v. Wallace, 2017-Ohio-9187. Thus the First District evinced no understanding that it was

considering a federal constitutional claim. Secondly, it noted that Wallace had made no

contemporaneous objection and therefore review could be for plain error only. Consideration of

an issue on a plain error basis is enforcement of the contemporaneous objection rule. Reservation

of authority to review in exceptional circumstances for plain error is not sufficient to constitute

application of federal law. Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir. 2002); Scott v. Mitchell,

209 F.3d 854 (6th Cir. 2000). Finally, Wallace procedurally defaulted on this claim when he

failed to appeal it to the Supreme Court of Ohio. Ground Four should therefore be dismissed with

prejudice as procedurally defaulted.

Conclusion

On the basis of 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.

August 17, 2020.

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.