# Wallace v. Warden, Warren Correctional Institution

> District Court, S.D. Ohio · August 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10376134

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 17, 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/10376134

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376134. Public record. Not legal advice.