Jewett v. Warden, Noble Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TYRONE JEWETT,

Petitioner,

Case No. 1:18-cv-406

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Bowman

WARDEN, NOBLE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

This cause is before the Court on Tyrone Jewett’s Objections (Doc. 13) to the

Magistrate Judge’s Report and Recommendation (“R&R”) (Doc. 10) that the Court

grant Respondent’s Motion to Dismiss (Doc. 7) and dismiss Jewett’s Petition for Writ

of Habeas Corpus (Doc. 1), and is also before the Court on Jewett’s Notice of “Newly

Discovered Evidence” (Doc. 14). For the reasons below, the Court OVERRULES

Jewett’s Objections and ADOPTS the Magistrate Judge’s R&R as to the issues it

addresses. The Court, however, STAYS the petition to allow Jewett to exhaust his

state court remedies as to the claim raised in his “Newly Discovered Evidence” filing.

BACKGROUND

Petitioner Tyrone Jewett dealt drugs. But what ultimately drew the attention

of local and state law enforcement was the magnitude of Jewett’s drug peddling

activities. After a lengthy investigation, Jewett was arrested, tried in state court, and

found guilty on a host of charges. He subsequently appealed his guilty verdict to both

Ohio’s intermediate and supreme courts. When he did not obtain a favorable outcome

in any of those venues, he filed the instant habeas petition in this Court.

A. Jewett Is Tried And Found Guilty By The State Trial Court.

The Ohio Court of Appeals established the following facts giving rise to

Jewett’s conviction and sentence:

{¶8} The Scioto County Grand Jury returned a 46-count indictment

against Tyrone Jewett and 23 other defendants. The indictment charged

Jewett with 41 counts and various specifications. All of the defendants,

including Jewett, were charged with engaging in a pattern of corrupt

activities, conspiracy to engage in corrupt activities, and conspiracy to

traffic in drugs (heroin and cocaine). The indictment also charged Jewett

with multiple trafficking in heroin and cocaine offenses. After the trial

court appointed counsel for Jewett, he entered a plea of not guilty to the

charges.

{¶9} The remaining facts are based upon the evidence produced at a

jury trial. The Southern Ohio Drug Task Force received information that

Jewett (also known as “Blue” or “Ty”), who came from Dayton, was

dealing heroin and cocaine in the Portsmouth area from 2014 until early

2015. Jewett purchased heroin and cocaine from Taevon Turnage in

Dayton through Steven North, who acted as a middleman. Jewett sold

the heroin and cocaine from several different residences in Scioto

County. He then had the proceeds of the drug sales delivered or wired

to Dayton In return for more drugs. Jewett instructed several

individuals to wire the money to North. And several people drove Jewett

or others on his behalf to obtain the drugs from Dayton.

{¶10} In January 2015 the police arranged six different controlled

purchases of heroin and cocaine from Jewett by a confidential informant.

The drugs seized from those transactions went to the Bureau of

Criminal Investigation ("BCI") where the lab found varying amounts of

heroin and cocaine. BCI forensic scientist Megan Koentop testified that

the laboratory did not quantitate submitted substances, i.e., BCI did not

determine what percentage of the substance tested is actually heroin or

cocaine-it did not test for the purity of the drug.

{¶11} Many of Jewett's co-defendants, who were almost all drug addicts,

testified that they purchased heroin and cocaine from him, drove to

Dayton to get the drugs for him and to give money to North, and

permitted Jewett to use their houses in Scioto County to deal drugs.

They provided testimony, mostly without objection, about the types and

amounts of drugs purchased from Jewett and transported by or on

behalf of him.

{¶12} After the task force had evidence of the six controlled purchases

of heroin and cocaine, the police stopped an SUV driven by Jewett's

accomplice, Christopher Wolfe, based on Wolfe's driving while under

suspension. Jewett was in the front passenger seat. They discovered

that Jewett had an arrest warrant on an unrelated Gallia County

indictment and found a loaded semiautomatic handgun underneath

Jewett's seat, multiple cellphones in his possession, Including the one

on which he made the drug transactions, digital scales and hypodermic

needles in his coat, and $1,563 on his person. They arrested him and

took him to jail.

{¶13} Portsmouth Police Detective Lee Bower testified that based on his

experience, he was able to look at various quantities of drugs and

estimate how much they weighed. Jewett did not object to the trial court

qualifying him as an expert on giving estimates of weights of drugs

based on appearance. By contrast BCI forensic scientist Koentep

testified that the BCI weighs the submitted substances because they

cannot be sure of the weight if they just looked at it.

{¶14} The jury returned verdicts finding Jewett guilty of 33 of the

charged criminal offenses, including the charges of engaging in a pattern

of corrupt activities, conspiracy to engage in corrupt activities, and

conspiracy to traffic in drugs, as well as 22 counts of trafficking in heroin

or cocaine, and various specifications. The jury found him not guilty of

the remaining counts. The trial court sentenced Jewett to an aggregate

prison term of 40 years, with 16 years being mandatory. 1

(State R., Doc. 6, at #252–542).

1 The facts related to Jewett’s state court trial are taken from his appeal of that action, as the

state appellate court’s factual findings are presumed to be correct. See McAdoo v. Elo, 365

F.3d 487, 493–94 (6th Cir. 2004).

2 Refers to PageID Number.

B. Jewett Pursues Direct Appeal Of His Conviction.

Just shy of one month after his sentencing, Jewett, through new counsel,

appealed to the Ohio Court of Appeals for the Fourth District. In that appeal, he

raised five assignments of error:

1. The trial court erred in not granting Defendant-Appellant’s

Motion to Amend the Indictment Made at the close of the State’s

case.

2. The trial court erred in not granting Defendant-Appellant’s

Motion for Acquital. [sic]

3. Defendant-Appellant’s convictions are against the manifest

weight of the evidence.

4. Trial counsel provided constitutionally ineffective assistance in

violation of Defendant-Appellant’s rights under the Sixth, and

Fourteenth Amendments to the United States Constitution and

Sections 10 and 16, Article I of the Ohio Constitution.

5. The trial court erred and denied Defendant-Appellant a fair trial

and due process of law when it gave curative instructions that

incorrectly stated Ohio law and were simplified from those given

in its final charge to the jury and final jury instructions that were

incorrect statements of Ohio law.

(State R., Doc. 6, at #188 (cleaned up)).

Jewett’s first argument, which he raised in support of each of the first three

claimed errors, went to how the state calculated the weight of the drugs at issue for

felony enhancement purposes. According to Jewett, Ohio state law (i.e., Ohio Revised

Code §§ 2925.11(C)(4)(b)–(f)) makes the weight of the drug itself, not the weight of the

drug plus any filler, the relevant weight. He argued that, at his trial, the state had

failed to introduce evidence that the drugs he sold consisted of pure cocaine. (Id.).

Absent evidence as to purity, Jewett went on, there was no way to determine the

relevant weight of the drug itself.

The appeals court responded to Jewett’s argument by observing that, at the

time Jewett made the argument, the Ohio Supreme Court was contemplating that

very issue in a pending case, State v. Gonzalez. In its first decision in Gonzalez, the

Ohio Supreme Court decided that “weight” referred only to pure substance. But, on

reconsideration, that Court reversed course, holding instead that the total weight of

the substance being sold (i.e., the drug plus any filler) is what “counted” for felony

enhancement purposes. (See id. (citing State v. Gonzales, 81 N.E.3d 419 (Ohio 2017))).

In its decision in Jewett’s matter, the appeals court relied on the final Gonzales II

holding, and thus rejected this argument.

Separately, Jewett argued that there was insufficient evidence to support

fourteen of his cocaine and heroin trafficking convictions because lay witnesses,

rather than experts, testified as to the weight and identity of the drugs. (Doc. 6, at

#250). According to Jewett, the lay witnesses lacked a sufficient foundation to offer

opinion testimony on that topic. (Id.). Jewett also maintained these same convictions

were against the manifest weight of the evidence because the jury cannot trust

testimony of “drug addicts and co-defendants whose testimony the state obtained

through plea deals.” (Id.).

The appeals court also rejected these arguments, both on substantive and

procedural grounds. As to the former, it noted that Ohio law allows lay witnesses to

testify as to the weight and identity of a controlled substance, so long as counsel has

laid a proper foundation establishing the witness’s personal knowledge to that effect.

(Id.). See State v. Mckee, 744 N.E.2d 737, 738 (Ohio 2001). And the appeals court

further observed that Jewett had largely declined to object to such testimony at trial,

limiting any review to plain error. (Doc. 6, at #260). As for Jewett’s argument directed

at the testimony obtained through plea deals, the court held that the “weight and

credibility of evidence are to be determined by the trier of fact.” (Id. at #262).

His final merits-related argument was largely directed at his fifth claim of

error, in which he took issue with jury instructions the trial court provided. (Id. at

#251–52). Specifically, he appealed two curative instructions that the judge had given

to the jury: (1) that the state did not need to establish purity of the substance for the

trafficking enhancement to apply; and (2) that the state could use lay witnesses to

prove the identity and weight of the drugs if a foundation for that witness was

sufficiently established. (Id.). Essentially, he was arguing that the trial court

committed in its jury instructions the same substantive errors described above—

allowing the state to rely on total weight, rather than drug-only weight, and allowing

the state to rely on lay witnesses (in part) to establish that weight.

Given its ruling on the substantive errors, the appeals court not surprisingly

denied the jury-instruction argument, as well. Although Jewett’s statement of error

on this issue invoked “due process,” the appeals court did not include an explicit due

process analysis. Rather, the court determined that, because he “did not object to the

court’s curative and final instructions[,]” Jewett “forfeited all but plain error” (id. at

#268–69), and that, in any event, “the trial court’s curative instruction that the state

did not need to establish the purity of the controlled substance was correct” (id.).

For his final assignment of error, Jewett argued his trial counsel was

ineffective because counsel failed to raise a speedy trial violation (there was none)

and to adequately question a witness. (Id. at #250). The appeals court also rejected

this ground. (Id. at #267).

Dissatisfied with that outcome, Jewett (now acting pro se) sought discretionary

review in the Ohio Supreme Court, raising three propositions of law:

1. The trial court erred in not granting the Appellant’s motion to

amend the indictment made at the close of the state’s case, and in

not grating his motion for acquittal, thus, the Appellant’s

conviction is against the sufficiency and manifest weight of the

evidence.

2. The trial court denied the Appellant a fair trial and due process

of law when it gave curative instructions that incorrectly stated

Ohio law and final jury instructions that were incorrect

statements of Ohio law.

3. Trial counsel was constitutionally ineffective when he failed to

move for dismissal of all counts pursuant to Appellant’s right to a

speedy trial.

(State R., Doc. 6, at #274). The Ohio Supreme Court denied jurisdiction. (Id. at #311).

C. Jewett Attempts To Reopen His Trial Court Appeal.

While his trial court appeal was pending before the Ohio Supreme Court,

Jewett filed an application to reopen his initial appeal under Ohio Appellate Rule

26(B). (Id. at #313–20). In that application, he claimed that his appellate counsel was

ineffective for failing to raise an argument related to two allegedly biased jurors

during voir dire. The appellate court denied Jewett’s petition on procedural grounds,

finding that Jewett had not included an affidavit, as required by Ohio Appellate Rule

26(B)(5). (Id. at #330–32).

Jewett appealed that decision to the Ohio Supreme Court too, raising two

propositions of law:

1. The trial court abused its discretion when knowingly violating the

jury selection process that allowed a bias [sic] juror to sit and hear

the evidence against the Appellant, and direct appeal counsel was

ineffective for failure to raise this Constitutional right to a fair

trial by an impartial jury.

2. The trial court erred when allowing an admitted bias juror to sit

and hear the evidence against the Appellant, and direct appeal

counsel was ineffective for failure to raise this Constitutional

right to a fair trial by an impartial jury.

(Id. at #336). The Ohio Supreme Court again declined jurisdiction. (Id. at #354).

D. Seeking Relief From These Adverse State Court Decisions, Jewett

Elected To Pursue Federal Habeas Relief.

Hoping he may have better luck in federal court, on June 8, 2018, Jewett filed

the instant habeas petition (Doc. 1), raising four grounds for habeas relief:

1. The trial court erred in not granting petitioner’s motion to amend

the indictment and in not granting his motion for acquittal.

2. The trial court denied the petitioner a fair trial and due process

of law when it gave curative instructions that incorrectly stated

Ohio law and final jury instructions that were incorrect

statements of Ohio law.

3. The trial court abused its discretion when it knowingly violated

the jury selection process that allowed a bias [sic] juror to sit and

hear evidence against the petitioner, and direct appeal counsel

was ineffective for failure to raise this constitutional right to a

fair trial by an impartial jury.

4. The trial court erred when allowing an admitted bias [sic] juror

to sit and hear the evidence against the petitioner, and direct

appeal counsel was ineffective for failure to raise this

constitutional right to a fair trial by an impartial jury. The

supporting facts/argument are at Page ID#13–16 [sic passim].

(Pet. for Habeas Corpus (“Habeas Pet.”), Doc. 1, #5–9 (cleaned up)). Respondent

Warden of the Noble Correctional Institution (“Respondent”) filed a Motion to

Dismiss the Petition (Doc. 7), to which Jewett responded (Doc. 9).

On August 20, 2019, the Magistrate Judge issued an R&R recommending that

the Court grant Respondent’s Motion and dismiss the Petition. (Doc. 10). Tracking

the order of presentation in Jewett’s habeas petition, the R&R advises that all four

grounds should be dismissed. As to Grounds One and Two, the Magistrate Judge

reasoned that, because Jewett (or his counsel) failed to object to the lay witness

testimony and jury instructions at trial, and lacking any indication of prejudice or a

fundamental miscarriage of justice, the claims are procedurally defaulted. (R&R at

#1788–89). As to Grounds Three and Four, the Magistrate Judge determined Jewett’s

claims were also procedurally defaulted because he did not raise them on direct

appeal or in his application to reopen, respectively. (R&R at #1793–94). After an

extension of time until October 3, 2019, Jewett filed both a timely Objection to the

R&R3 (Doc. 13), and a document captioned “Newly Discovered Evidence” (Doc. 14).

3 The Docket reflects that Jewett’s Objection was filed on October 4, 2019, which would be

out of time by one day. But Jewett is currently incarcerated, and his Objection is postmarked

October 1, 2019, which makes it timely. See Houston v. Lack, 487 U.S. 266, 276 (1988)

(determining a pro se prisoner’s notice of appeal is filed at the time he “delivered it to the

prison authorities for forwarding to the court clerk”); Armour v. Gundy, 107 F.3d 870 (Table),

1997 WL 91462, at *1 (6th Cir. 1997) (noting a pro se inmate is afforded both three extra

days to file following service under Fed. Civ. R. 6(e) and his filings are deemed filed when

they are delivered to prison authorities for mailing).

LEGAL STANDARD

If a party objects to a report and recommendation within the allotted time, the

district court must review de novo any portion of the magistrate judge’s report “that

has been properly objected to.” Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Here, the

petitioner is proceeding pro se. While a pro se litigant’s pleadings are to be construed

liberally and have been held to less stringent standards than formal pleadings filed

by attorneys, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), pro se litigants must

still comply with the procedural rules that govern civil cases. McNeil v. United States,

508 U.S. 106, 113 (1993).

LAW AND ANALYSIS

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to all

habeas corpus petitions filed after April 24, 1996, and requires “heightened respect”

for legal and factual determinations made by state courts. See Herbert v. Billy, 160

F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d), as amended by the AEDPA,

provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

This is a “difficult to meet and highly deferential standard,” Cullen v.

Pinholster, 563 U.S. 170, 181 (2011), because all findings of fact by the state court are

presumed to be correct and can be rebutted only by “clear and convincing evidence”

Mitchell v. Mason, 325 F.3d 732, 737–38 (6th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)).

As to legal conclusions, a federal habeas court may overturn a state court’s

application of federal law only if “there is no possibility fair-minded jurists could

disagree that the state court’s decision conflicts with [Supreme Court] precedents.”

Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (citation and quotation

omitted). And habeas provides relief only for violations of the U.S. Constitution. State

law determinations, incorrect or not, cannot serve as the basis for habeas relief.

Estelle v. McGuire, 502 U.S. 62, 67 (1991).

A. Jewett’s “Objection” To The R&R Is Too General To Warrant De Novo

Review.

When reviewing a magistrate judge’s report and recommendation regarding a

prisoner’s petition for writ of habeas corpus, “[a] judge ... shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). If a petitioner

fails to object, the district court need not “review a magistrate’s factual or legal

conclusions, under a de novo or any other standard.” Thomas v. Arn, 474 U.S. 140,

150 (1985).

Similarly, “[a] general objection to the entirety of the magistrate’s report has

the same effects as would a failure to object.” Howard v. Sec. of Health & Hum. Servs.,

932 F.2d 505, 509 (6th Cir. 1991). This is because a general objection fails to focus the

district court’s attention “on any specific issues of review, thereby making the initial

reference to the magistrate useless.” Id. The Sixth Circuit has opined that it “would

hardly countenance an appellant’s brief simply objecting to the district court’s

determination without explaining the source of the error,” and there is no reason why

a party should be able “to do the same to the district court reviewing the magistrate’s

report.” Id.

The Sixth Circuit has reiterated this notion time and again. See, e.g., Agostini

v. Collins, No. 20-3028, 2020 WL 3815671, at *2 (6th Cir. June 15, 2020) (Thapar, J.)

(noting a litigant is required “to file specific and timely objections to a magistrate

judge’s report in order to preserve the right to appeal a subsequent order of the

district court adopting and approving that report”); Mensah v. Mich. Dep’t of Corr.,

513 F. App’x 537, 538 (6th Cir. 2013) (explaining the consequences of failing to file

specific objections).

Here, Jewett filed what he titled an “Objection” to the Magistrate Judge’s R&R.

(See Obj., Doc. 13, #1803). Consistent with that title, the first line states that he

“[O]bjects to the Magistrate Judge’s Report and Recommendation.” (Id. at #1803).

Beyond this vague general objection, though, Jewett identifies no specific portions of

the R&R in which he claims that the Magistrate Judge got either the facts or the law

wrong. Instead, he merely repeats the same arguments that he made to the

Magistrate Judge in the first instance, and asks this Court to consider those

arguments anew. That is not how it works. To be sure, a petitioner need not object to

the R&R with surgical precision, but he must do something more than merely rehash

his opening arguments, without even bothering to identify where in the R&R the

Magistrate Judge addressed those arguments, let alone argue how the R&R erred in

what it had to say about them.

Because of his lack of specificity, Jewett’s objection has the same effect as

failing to file an objection at all and therefore does not warrant de novo review. Thus,

the Court could simply adopt the Magistrate Judge’s R&R outright. See Thomas, 474

U.S. at 150. Nonetheless, given that Jewett is proceeding pro se, the Court will briefly

review the R&R in light of Jewett’s very general objection.

B. Jewett’s Objections Are Without Merit And The Magistrate Judge’s

Report And Recommendation Will Be Adopted.

Jewett’s Objection starts with his complaints about jury composition (Grounds

3 and 4), and then raises his concerns that the lay witness testimony and the curative

jury instructions were improper (Grounds 1 and 2). Accordingly, the Court will

address the issues in that order, as well. Last, the Court will touch on the “Newly

Discovered Evidence” (Doc. 14) that Jewett filed along with his Objection.

1. Jewett’s Biased Juror Grounds For Habeas Relief Are

Procedurally Defaulted.

Grounds Three and Four of Jewett’s claim for habeas relief are related, and

will be addressed together. Jewett generally complains that the trial court judge

permitted biased jurors to sit on the jury and that, because Jewett’s direct appeal

counsel failed to raise this issue, that counsel was ineffective. (Habeas Pet. at #9–10).

In his objection, he raises the same challenge to the trial judge’s conduct, but does

not appear to specifically re-raise his concerns about ineffective assistance. (Obj. at

#1803–06).

To state Jewett’s biased-juror concerns from his Petition and Objection a little

more fully, Jewett maintained that his Sixth Amendment and Due Process rights

were violated when the “trial court abused it’s [sic] discretion when knowingly

violating the jury selectin [sic] process” by permitting a “bias [sic] juror to sit and hear

the evidence” against him. (Habeas Pet. at #9). Jewett points to two specific jurors—

one with a prior felony conviction and another who expressed bias against drug

dealers, but whom the trial court rehabilitated. (Id. at #12–16).

The Magistrate Judge properly recommended that the Petition be dismissed

on these grounds because they are procedurally defaulted. (See R&R at #1794). That

is because, as the Magistrate Judge determined, Jewett’s failed to raise this issue on

direct appeal meant that it was barred from reconsideration on res judicata grounds.

(Id.). And res judicata, as the Magistrate Judge also noted, is an adequate and

independent state law ground, thereby, as a general matter, foreclosing habeas

review. (Id.).

Although ineffective assistance of appellate counsel in state court perhaps

could provide, in appropriate circumstances, a means to bypass that procedural

default, the Magistrate Judge considered, and properly rejected, that avenue here.

That is because Jewett had also procedurally defaulted his claim of ineffective

assistance of appellate counsel when he failed to comply with a procedural rule under

Ohio Rule of Appellate Procedure 26(B), which is once again an adequate and

independent state law ground precluding review of that claim. (Id. at #1795). And, in

any event, Jewett’s Objection does not appear to challenge the Magistrate Judge’s

determination on the state ineffective assistance of appellate counsel claim.

In sum, Jewett’s concerns about the allegedly biased jury provide no basis for

overturning the Magistrate Judge’s decision denying habeas relief on those grounds.

2. Jewett’s Lay Witness Testimony And Jury Instruction Grounds

For Habeas Relief Are Procedurally Defaulted.

Grounds One and Two of Jewett’s Petition are directed more at the substance

of the charged crimes. In Ground One, he advances two related complaints: that the

trial court improperly failed to grant both his motion to amend the indictment and

his motion for acquittal. He was entitled to amendment or acquittal, he claims,

because his drug trafficking felonies were enhanced beyond the fifth degree based on

weight, even though (1) the drugs were never recovered (and thus could not be

weighed), and (2) the lay witness testimony against him (which was directed at

weight) was not credible. (Habeas Pet. at #5–7). His second ground of relief then

recasts the same substantive errors as violations of his rights to “fair trial and due

process.” This occurred, he says, when the trial judge gave “two curative instructions”

and final jury instructions “that were incorrect statements of [Ohio] law”—the same

alleged legal errors advanced in his first ground for relief. (Id. at #7–8).

The Magistrate Judge recommends that Jewett is not entitled to habeas relief

on any of these claims. (R&R at #1788). As to his claim regarding the motion to amend

the indictment to address the felony enhancements based on the drug’s weight, the

Magistrate Judge reasoned that a federal habeas court cannot provide habeas relief

based on an alleged error of state law. (Id. at #1791). As to Jewett’s motion for

acquittal based on the sufficiency of the evidence (lay witness testimony and

circumstantial evidence) against him, the Magistrate Judge’s recommendation was

the same—that federal habeas courts must respect a state court’s ruling on state law

admissibility issues. (Id. at #1792–93). And as to Ground Two, the Magistrate Judge

determined Jewett was procedurally barred from bringing that claim in habeas

because he failed to object to the jury instructions at trial. Under Ohio law, that

failure operates as a waiver as to all but plain error, which constitutes an adequate

and independent state law ground foreclosing further review in habeas. (Id. at #1788–

89).

In his Objection, Jewett does not appear to take issue with the Magistrate

Judge’s determination on the jury instruction issue. Thus, the Court will not review

that finding here.

As to the drug weight issues, Jewett argues in his Objection that the Ohio

Supreme Court’s holding in Gonzales II was limited to situations where “drugs were

actually confiscated,” but does not apply where, as here, they were not. (Obj. at

#1806). Moreover, he suggests that applying Gonzales II to the situation here, where

no drugs were confiscated, and the weight was established by lay testimony, would

violate his due process rights, as the evidence against him is legally insufficient,

presumably as a constitutional matter. (Id. at #1807).

That argument fails for two reasons. First, to the extent that it is predicated

on a claimed error of state law—i.e., the appropriate scope of Gonzales II—alleged

state law errors, as already noted, cannot provide a basis for habeas relief. See Estelle,

502 U.S. at 67.

The argument fares no better in its due process guise. As a conceptual matter,

the Court acknowledges that evidence can be so inherently unreliable that its

admission would raise due process concerns—states cannot imprison people based on

a roll of the dice. Summitt v. Bordenkircher, 608 F.2d 247, 253 (6th Cir. 1979) (“[a]

defendant is denied due process only when [] evidence is so unreliable that its

introduction renders a trial unfair.”). But the evidence at issue here does not come

close to presenting a constitutional problem. State law makes the weight of the drug

plus filler the relevant weight, and that determination as to what state law requires

binds this Court. Thus, the only question is whether allowing lay testimony as to

weight offends the Due Process Clause. It does not. Estimating the weight of objects

is well within the ken of average persons. See, e.g., Harris v. J.B. Robinson Jewelers,

627 F.3d 235, 240-41 (6th Cir. 2010) (holding that color is within the scope of a lay

witness’ expertise, just as a lay witness may testify to “the appearance of persons or

things … degrees of light or darkness, sound, size, [and] weight” based on personal

observation.) (citing Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196

(3d Cir. 1995)). And the testimony here, about the weight of drugs, came from

witnesses who had close familiarity with the drugs at issue, as they likewise sold or

purchased those drugs by weight. Thus, allowing such testimony here does not violate

the Due Process Clause.

In any event, the testimony, including testimony about the “types and amounts

of drugs purchased from Jewett and transported by or on behalf of him,” occurred

“mostly without objection.” (Id.). Moreover, a Portsmouth Police Detective also

testified that, based on his experience, he could “look at various amounts of drugs and

estimate how much they weighed” and he gave estimates about the drugs Jewett was

trafficking, again without objection. (See id. at #253–54). Given the lack of objection,

such testimony can be reviewed only for plain error, which as described above, means

it is insulated from habeas review.

In short, the Court concludes that the R&R correctly found that Jewett’s

allegations of the shortcomings in the State’s evidence regarding drug weight do not

provide a basis for habeas relief.

C. Jewett’s “Newly Discovered Evidence” Likewise Provides No Basis

For Habeas Relief.

The last issue concerns allegations that Jewett advanced after the Magistrate

Judge issued the R&R. More specifically, Jewett filed a document labeled “Newly

Discovered Evidence” in which he appears to allege that the judge who presided over

his criminal trial had a substance abuse problem. (See Petr’s Newly Discovered Evid.

(“New Evid.”), Doc. 14, #1811–12). Jewett said he only recently learned of these

allegations through a news report revealing that the family of Judge William T.

Marshall, who presided over Jewett’s trial, filed a guardianship petition in 2019

alleging that Judge Marshall was “coming to work d[r]unk” and that his “drinking

was serve (sic) enough to be severely interfering with his ability to make fair choices

from the bench.” (Id.). Jewett maintains this “may call into question his criminal

conviction, based upon his criminal trial.” (Id.).

Jewett’s filing leaves the Court in somewhat of a quandary. To start, Jewett is

unclear about how the newly discovered “evidence” (which consists of a single

newspaper article published on May 16, 2019) allegedly affects his habeas petition.

One possible reading of the “Newly Discovered Evidence” document is that Jewett

offers it as additional evidence in support of his existing claims for habeas relief. For

example, Jewett may be contending that Judge Marshall’s supposed intoxication

explains why he empaneled two allegedly biased jurors and gave allegedly inaccurate

curative instructions. (See Habeas Pet. at # 7, 9 (asserting that the trial judge erred

in allowing a biased juror to sit and in giving an inaccurate curative instructions)).

Thus understood, Jewett’s “Newly Discovered Evidence” document is an attempt to

support existing Grounds 2-4 of Jewett’s petition. (Habeas Pet. at #9, 13). As the

Court already explained, though, Jewett failed to raise the issue of the biased jurors

or the curative instruction on his direct appeal, and thus is procedurally barred from

raising those issues in a habeas petition. That is, those existing claims failed for legal

reasons, not factual reasons, and thus additional factual evidence does not benefit

Jewett.

To be sure, a different result may follow if the “new evidence” went to Jewett’s

actual innocence, as such evidence can serve as a gateway allowing the Court to

consider otherwise-defaulted claims. Bousley v. U.S., 523 U.S. 614, 622 (1998). But

here, the “new evidence” does not go to Jewett’s innocence, but rather to the trial

judge’s competence to serve in that role given alleged substance abuse issues. Thus,

Bousely provides no assistance to Jewett. Accordingly, the new evidence does nothing

to advance Jewett’s existing habeas claims, whether directly (i.e., on the merits), or

indirectly (i.e., by providing a gateway).

Separately, though, Jewett may have intended his “Newly Discovered

Evidence” document not as support for his existing claims, but rather as setting forth

a new habeas claim, different from those already asserted. For example, the

document references Judge Marshall’s alleged substance abuse problem, and then

suggests that such evidence “was serve (sic) enough to be severely interfering with

his ability to make fair choices from the bench.” (New Evid. at #1812). Construed

liberally, which the Court will do as Jewett is proceeding pro se, see Martin v. Overton,

391 F.3d 710, 712 (6th Cir. 2004), Jewett may be asserting that having a trial judge

impaired by drugs or alcohol would violate Jewett’s due process rights. That is,

Jewett’s “Newly Discovered Evidence” should perhaps be understood as a motion to

amend his original habeas petition to include a new free-standing due process claim.

Even if that is what the document is, though, Jewett still faces obstacles. First,

habeas has an exhaustion requirement, and Jewett has not exhausted this due

process claim in state court. See generally Eakes v. Sexton, 592 Fed. App’x 422 (6th

Cir. 2014) (explaining that habeas’ exhaustion requirement applies to claims based

on newly discovered evidence). That is, Jewett has not shown that he has sought relief

in state court based on his “newly discovered evidence,” nor has he shown that there

are no vehicles available under state law for doing so.

Adding this new claim (if that is what it is) would thus make Jewett’s habeas

petition a “mixed petition,” containing both exhausted claims, like those discussed

above, and unexhausted claims, like the newly discovered “incapacitated judge” due

process claim. Federal habeas courts confronted with mixed petitions have the

discretion to stay, rather than dismiss, the habeas petition, but only for the time

necessary to allow the petitioner to pursue state court relief. Rhines v. Weber, 544

U.S. 269, 277-78 (2005). There is a limit, however, on the discretion to issue a stay in

such circumstances. In particular, a stay is inappropriate if the “unexhausted claims

are plainly meritless,” if the petitioner cannot show “good cause” for the failure to

exhaust, or if there is evidence that the petitioner is engaging in intentionally dilatory

litigation tactics. Id. at 277. In that case, the Court should dismiss the petition,

including the unexhausted claims. Id.

Here, evidence of the trial judge’s alleged substance abuse problem apparently

did not surface, at least publicly, until after Jewett’s 2015-2017 direct appeal process

had ended. (State R. #165-249). This is arguably good cause to explain why Jewett

did not raise this new constitutional claim in the state court proceedings, at least in

the first instance. Additionally, Jewett raised concerns regarding his trial judge’s

alleged substance abuse problems in his filing in this action in October 2019, which

is only 5 months after the Cincinnati Enquirer ran a story alerting Jewett to that

issue. (New Evid. at #1814). Jewett’s fairly prompt action in raising this concern

suggests that he is not engaged in dilatory litigation tactics. Nor is it surprising that

Jewett, who is acting pro se and thus may not be familiar with exhaustion

requirements, sought to raise the issue in this habeas proceeding—his only then-

existing challenge to his conviction—rather than filing a separate state court action.

Thus, the Court concludes that Jewett has acted in “good faith” and is not engaging

in dilatory litigation tactics.

The remaining inquiry, then, is whether Jewett’s claim is “plainly meritless.”

To Jewett’s credit, “[t]he Due Process Clause requires [a] trial judge [who] is ‘mentally

competent to afford a hearing,’” Norris v. United States, 820 F.3d 1261, 1266 (11th

Cir. 2016) (quoting Jordan v. Massachusetts, 225 U.S. 167, 176 (1912)), and the Court

does not dispute that severe intoxication could rise to the level of incompetence. But,

as Norris also makes clear, such allegations cannot be “based on unsupported

generalizations.” Id. Rather, to secure habeas relief, Jewett must present “‘clear

evidence’ that the judge was mentally incompetent at the time of his trial.” Simington

v. Premo, 686 F. App’x 493, 494 (9th Cir. 2017) (citing Deere v. Cullen, 718 F.3d 1124,

1147-51 (9th Cir. 2013)). In the context of substance abuse issues, that would suggest

that, to obtain habeas relief based on “new evidence” of substance abuse, Jewett

would be required to show that his trial judge was intoxicated or under the influence

of drugs during Jewett’s actual trial. See McLaurin v. Ballard, Case No. 2:00-0275,

2009 WL 4662715 (S.D. W. Va., November 30, 2009); Deere, 718 F.3d at 1151. And

the intoxication must have been severe enough to impair the trial judge’s ability to

properly evaluate the case or conduct the trial. See Tumey v. State of Ohio, 273 U.S.

510, 523 (1927) (explaining that if a judge is no longer able to “hold the balance nice,

clear, and true between the state and the accused” then the court has denied the

accused due process of law).

Measured against the high bar that applies to such claims, Jewett’s “new

evidence” falls well short, at least in its current form. Jewett submitted a single

newspaper article discussing allegations that his trial court judge suffered from

substance abuse problems, which Jewett believes “may call into question” Jewett’s

conviction. (New Evid. at #1811). Importantly, though, Jewett does not allege that

the judge in fact was under the influence of drugs or alcohol during Jewett’s trial.

And, in that regard, Jewett’s trial occurred in 2015, some three years before the judge

“suddenly retired” according to the newspaper article.

At the same time, the newspaper article suggests that the trial court judge had

undergone “rehab” after a “2013 drunk-driving incident,” that he had been

“hospitalized for his addiction at least three times after 2013,” and that by the time

of the news article (in 2019), he was allegedly suffering from “alcoholic

encephalopathy,” which the article describes as a “condition brought on by extreme

drinking that limits the brain’s ability to … function even when the subject is sober.”

(Id. at #1816–18). If true, these are troubling allegations that may have implications

for the trials that the judge conducted, including Jewett’s.

In sum, while Jewett falls short of the showing needed to justify relief on the

current record, the Court cannot rule out the possibility that further factual

development may change that result. Accordingly, the Court cannot conclude that a

due process claim, if that is indeed what Jewett is advancing, is “plainly meritless.”

Thus, in an abundance of caution, the Court determines it should treat Jewett’s

“Newly Discovered Evidence” filing as a motion to amend his habeas petition to add

a due process claim. The Court further GRANTS that motion to amend, and STAYS

further consideration of the petition to allow Jewett the opportunity to exhaust his

claim in state court, for example through a motion for new trial based on the evidence

of substance abuse, or a petition for post-conviction relief under Ohio Rev. Code

§ 2953.21, or whatever vehicle he deems appropriate under state law. Jewett shall

have 90 days in which to initiate his efforts at exhaustion, and shall report to the

Court within 30 days after his efforts to exhaust this claim in state court are complete.

CONCLUSION

Based on the above, the Court OVERRULES Jewett’s Objection (Doc. 13) and

ADOPTS the Report and Recommendation (Doc. 10) as to Grounds 1-4 of the habeas

petition. The Court, however, STAYS further consideration of the petition based on

the “Newly Discovered Evidence” to allow Jewett an opportunity to exhaust the claim

in state court. This stay is conditioned on Jewett’s pursuing exhaustion within 90

days after this stay is entered, and returning to this Court within 30 days after state

court exhaustion is completed. To ensure that the Court is timely apprised of future

developments in this matter, both parties are DIRECTED to provide notice to this

Court, as well as a courtesy copy, of any filings that they make in state court in

connection with Jewett’s efforts to exhaust his claim.

Alternatively, Jewett may voluntarily dismiss his “Newly Discovered

Evidence” claim from this petition. If he elects to pursue that course, the Court:

(1) will enter judgment on the exhausted claims (Grounds 1-4) consistent with this

Opinion; and (2) will adopt the Magistrate Judge’s recommendation denying a

certificate of appealability as to the determination on these grounds, as the Court

agrees that no reasonable jurist could disagree with the determinations on these

issues, and that any appeal would be objectively frivolous.

SO ORDERED.

October 8, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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