Steelman v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

JOSH AARON STEELMAN,

Petitioner, : Case No. 1:19-cv-16

- vs - District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

WARDEN,

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Joshua Steelman under 28 U.S.C. §

2254, is before the Court for decision on the merits. The relevant filings are the Petition (ECF No.

5), the State Court Record (ECF No. 7), the Return of Writ (ECF No. 8), and Petitioner’s Reply

(ECF No. 10).

Litigation History

On October 18, 2016, a Hamilton County Grand Jury indicted Steelman on one count of

Burglary in violation of Ohio Revised Code § 2911.12(A)(1))(Count 1) and one count of Receiving

Stolen Property in violation of Ohio Revised Code § 2913.51(A)) (Count 2). (Indictment, State Court

Record, ECF No. 7, Exhibit 1). A petit jury found Steelman guilty on all counts and he was sentenced

to eight years imprisonment. (Judgment, State Court Record, ECF No. 7, Ex. 6). The First District

Court of Appeals affirmed the conviction and sentence. State v. Steelman, 2018-Ohio-1732 (Ohio

App. 1st Dist. May 4, 2018), appellate jurisdiction declined, 153 Ohio St. 3d 1468 (2018).

The First District’s opinion provides the factual context for its decision:

Facts

Police find Steelman with Stolen Items

[*P2] Within hours of the burglary [of the home of Flora and

Davey Harris], Deputy Gator Rollins found Steelman unconscious

on the side of the road behind a pickup truck driven by Justin

Callaway. Steelman had been riding with Callaway when he

overdosed, and Callaway had pulled Steelman out of his truck.

According to Deputy Rollins, Callaway was "a nervous wreck," and

"excited," and said that Steelman had overdosed on heroin.

Emergency medical personnel arrived and revived Steelman.

Deputy Rollins testified that subsequently, "in Callaway's excited

state of mind," Callaway had said, "There's a lot of stuff in * * *

[Callaway's pickup truck] that Steelman stole from Ohio."

[*P3] Deputy Rollins searched Callaway's truck. He found jewelry,

coins, and a bag containing almost $10,000 with Davey Hayes's

name and phone number written in it. At trial, Flora Hayes testified

that most of these items had been in her basement safe.

The Investigation: Jailhouse Calls, DNA Evidence, and the

Wittich Interview

[*P4] Steelman made several jailhouse phone calls that were

played for the jury. One of the calls was to the Hayeses' son, who

Steelman had known for years. Steelman said to him, "Tell your dad

I'm so fucking sorry." Steelman also said that documents taken from

the Hayeses' safe were in a burn barrel close to the Hayeses' house.

Investigating detective Albert Wittich found the documents where

Steelman said they would be. In another call, Steelman detailed the

dollar bill denominations of the stolen money. In others, he stated

that Callaway wasn't involved, that if the Hayeses pressed charges

against him, he would "be fucked," and that the people Steelman

believed were involved in the burglary would "fucking pay."

Steelman named several of the people he thought had been involved

in his alleged set-up.

[*P5] Items police collected from the Hayeses' basement included

a Pepsi can. It was noticeably out of place, as neither of the Hayeses

drank Pepsi. Later testing found Steelman's DNA on the can.

[*P6] Wittich interviewed Steelman after some of the jailhouse

calls, but before Steelman was arrested for burglary and receiving

stolen property. The interview began with Steelman stating that he

wanted a lawyer, and that he did not talk to police officers. The

detective answered that the interview was an opportunity for

Steelman "to explain himself," and say who else had been involved.

Steelman repeatedly said he did not want to talk, and that he wished

to have counsel. Interspersed with these statements, however,

Steelman stated that he had been high the night the burglary took

place, remembered only bits of the evening, and believed he had

been framed. He also told Wittich that Callaway had not been

involved, and that around $10,000 had been stolen from the

Hayeses. Steelman refused to answer Wittich's question of who, in

particular, had been involved in Steelman's alleged setup and the

burglary.

The State Plays the Interview in its Case-in-Chief

[*P7] Steelman waived his right to move to suppress the Wittich

interview but nevertheless objected on the basis of Miranda to the

state playing it in its case-in-chief. The objection was overruled.

[*P8] After the interview was played, defense counsel asked

Wittich on cross-examination, "When you were talking to Mr.

Steelman, you were trying to get him to * * * implicate * * * third

parties?" Wittich answered, "If that was the truth, yes." On redirect,

the state asked the detective, "You specifically asked the defendant,

hey, tell me who else was involved, and he didn't tell you anybody,

right?" Wittich answered, "Correct."

Steelman Takes the Stand

[*P9] Steelman testified that he had been under the influence of

multiple drugs the night the Hayeses, who were his neighbors and

family friends, were burglarized. He said he was at a casino until 3

a.m., and then "continued to party" at home until he saw police

arrive at the Hayeses' home.

[*P10] Steelman said he walked next door to investigate and

learned that the Hayeses had been burglarized. Steelman explained

that Callaway had told him how much money had been stolen, and

its denominations. Steelman also testified that he knew where the

stolen documents were because he had inspected the perimeter of

the Hayeses' property the morning of the burglary and had seen them

before leaving with Callaway. He explained that he didn't

immediately come forward with this information because he had a

criminal record, and was afraid doing so would falsely implicate

himself in the burglary.

Steelman, 2018-Ohio-1732.

Steelman then filed his Petition in this Court, pleading the following grounds for relief:

Ground One: “The trial court erred in premitting [sic] the use of

Petitioner’s pre-arrest silence as substantive evidence against him

during the State’s case-in-chief.”

Factual Support: The state presented testimony of the Petition

[sic], who had not yet been arrested or Mirandized for the Burglary,

who remained silent and asserted his right to counsel in the face of

questioning by arresting officer, Deputy Wittich. The use of

Petitioner’s pre-arrest silence in the state’s case-in-chief as

substantive evidence of guilty [sic] subverts the polices [sic] behind

the Fifth Amendment. State v. Leach, 102 Ohio St.3d 135, 2004-

Ohio-2147, at ¶30 quoting Murphy v. Waterfront Comm. Of New

York Harbor, 378 U.S. 52, 55 (1964). Allowing the use of pre-arrest

silence as evidence of guilty [sic], by refusing to answer Deputy

Wittich’s questions without an attorney, undermines the very

protections the Fifth Amendment was designed to provide.

Ground Two: “The prosecutor elicit [sic] hearsay testimony from

one of its witnesses.”

Factual Support: Prosecutor’s witness, Deputy Rollins, testified to

what Petitioner’s co-defendant [Callaway] told him, who, did not

testify at Petitioner [sic] trial, which denied the Petitioner the

opportunity to challenge that state [sic] made by Petitioner’s co-

defendant.

Out of court statement by a non-testifying co-defendant, that shift or

spread blame to a criminal defendant, fall outside the realm of those

hearsay exceptions that are so trustworthy that adversarial testing

can be expected to add little to the statement’s reliability, Lilly v.

Virginia, 527 U.S. 116, 117 (1999) quoting White v. Illinois, 502

U.S. 346, 357 (1992).

Ground Three: “The prosecutor committed multiple instance[s] of

misconduct throughout Petitioner’s trial.”

Factual Support: Prosecutor misconduct deprive[d] Petitoiner [sic]

of his right to due process and a fair trial. In particular, the

prosecutor referred to Petitioner as “some yay-hoo,” “some two-bit

drug addict,” a “vindictive, violent individual,” a “junkie,” a “two

bit heroin addict,” and a “two-bit junkie.” (Tr. 713, 720, 757, 762).

Prosecutor even expressed his personal belief and opinion to the

credibility of the Petitioner and the defense. Not only did the

prosecutor attempt to tip the scales of justice by repeatedly

interjecting his personal opinion into the record, he intentionally

misstated the law regarding the presumption of innocence during

rebuttal, “When you go to the jury room, the presumption of

innocence is no longer with him.” (Tr. 752).

(Petition, ECF No. 5, PageID 42-45.)

Analysis

Ground One: Use of Pre-Arrest Silence as Substantive Evidence of Guilt

In his First Ground for Relief, Steelman claims the use of his recorded pre-arrest silence in

response to police questioning as substantive evidence of his guilt violated his privilege against self-

incrimination under the Fifth Amendment. He presented this claim as his First Assignment of Error

on direct appeal and the First District decided it as follows:

Prearrest Silence

[*P14] In his first assignment of error, Steelman contends that the

state used his prearrest silence in the Wittich interview as

substantive evidence of his guilt, in violation of the Fifth

Amendment's protection against self-incrimination. Steelman is

correct.

[*P15] We apply a plain error standard of review. Steelman argues

that a plain error analysis is not appropriate because counsel

objected to the interview. However, counsel objected on the basis of

Miranda and not on self-incrimination grounds. The Miranda

objection did not alert the trial court or opposing counsel to

Steelman's Fifth Amendment argument at a time when the potential

error could have been avoided or corrected, which is the very

purpose of an objection. See State v. Davis, 1 Ohio St.2d 28, 203

N.E.2d 357 (1964), paragraph two of the syllabus; State v. Childs,

14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the

syllabus. He has therefore forfeited all but plain error on appeal.

Crim.R. 52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-

2459, 38 N.E.3d 860, ¶ 21-22. "Plain error" is (1) an error, (2) that

is obvious, and (3) that affected the outcome of the trial. State v.

Barnes, 94 Ohio St.3d 21, 27, 2002- Ohio 68, 759 N.E.2d 1240

(2002).

[*P16] Here there was error that was obvious. The Fifth

Amendment to the United States Constitution states that no person

"shall be compelled in any criminal case to be a witness against

himself." Unless used for impeachment, evidence that a defendant

asked for an attorney or otherwise indicated an unwillingness to talk

to police violates the Fifth Amendment's protection against self-

incrimination. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147,

807 N.E.2d 335, ¶ 31. Here, the state presented evidence in its case-

in-chief that Steelman asked for an attorney multiple times, refused

to answer Wittich's question concerning who else was involved, and

told Wittich he "didn't talk to cops." There was no probative value

to the evidence of Steelman's silence other than to allow the jury to

infer guilt from it. See id. at ¶ 25. It therefore was admitted in

violation of the Fifth Amendment. See id.; Combs v. Coyle, 205 F.3d

269 (6th Cir.2000) (use of defendant's statement to police, "talk to

my lawyer," in the state's case-in-chief violated the Fifth

Amendment's shield against self-incrimination); State v. Pence, 12th

Dist. Warren No. CA2012-05-045, 2013-Ohio-1388 (detective's

testimony that defendant's attorney, and not defendant, returned a

phone call placed to the defendant, and testimony that the defendant

never gave police a statement violated the Fifth Amendment's

protection against self incrimination); State v. Whitaker, 4th Dist.

Scioto No. 07CA3168, 2008-Ohio-4149 (officer's testimony that

defendant told the officer that he "didn't want to incriminate

himself" impermissibly used the defendant's right to remain silent

against him); State v. Estepp, 2d Dist. Miami No. 2006 CA 22, 2007-

Ohio-2596 (detective's testimony that defendant failed to return

phone calls and cancelled police interviews violated defendant's

right not to incriminate himself).

[*P17] The state contends that because Steelman took the stand his

silence was properly admitted to impeach him. Once a defendant

chooses to testify, the state may use a defendant's prior silence to

impeach his credibility. Jenkins v. Anderson, 447 U.S. 231, 238, 100

S.Ct. 2124, 65 L.Ed.2d 86, (1980). A defendant's silence, however,

"cannot possibly be used to impeach his credibility when he has yet

to testify." State v. Shea, 1st Dist. Hamilton No. C-840806, 1985

Ohio App. LEXIS 8402, 1985 WL 8938, *3 (July 17, 1985). Here,

Steelman had not yet testified when the state played the interview.

This error was not cured when Steelman took the stand. It is

impossible to say if Steelman's choice to testify was based on

pressure to explain his silence, and we therefore find that the state's

after-the-fact justification is feckless. See Combs at 285. Further, the

state used Steelman's silence as evidence of his guilt, not as

impeachment evidence, by asking Wittich, "You specifically asked

the defendant, hey, tell me who else was involved, and he didn't tell

you anybody, right?" And did so again during closing argument

when the prosecutor stated, "If someone else had stolen that sack of

money he [Steelman] would have told Det. Wittich 'I don't know

how much was in there, Larry gave it to me.'" The prosecutor also

used Steelman's silence as evidence of guilt during rebuttal when he

argued that Steelman had "had a chance" to explain himself to

Wittich and to tell him who else had been involved, but did not.

[*P18] Next, the state argues that Steelman did not remain silent,

despite his statements that he wanted an attorney and would not

answer questions, and therefore the Wittich interview was properly

played for the jury. Putting aside Miranda, parts of the interview

were clearly admissible—i.e. Steelman's admission that he knew

$10,000 had been stolen, his statement that he had been high on the

night in question, and his contention that Callaway wasn't

involved—but other parts of the interview clearly were not, and

those portions should have been redacted. See, e.g., Whitaker at ¶

34 (where a firearm and Hydrocodone pills were found in

defendant's car, officer properly testified that defendant admitted

that the pills were his, but officer should not have been permitted to

testify that, when asked about the firearm, the defendant stated he

didn't want to incriminate himself).

[*P19] We hold that the failure to redact the offending statements

was error.

Steelman, 2018-Ohio-1732.

Having found admission of at least parts of the tape to have been in error, the First District

then decided it was not plain error because the other evidence of Steelman’s guilt was

overwhelming.

Plain Error Determination

[*P39] We review the Fifth Amendment violation and the

improper closing argument comments, except for the prosecutor's

misstatement of the law—which we have already determined was

not prejudicial—to determine whether these errors affected the

outcome of Steelman's trial, resulting in plain error. See Barnes, 94

Ohio St.3d at 27, 759 N.E.2d 1240.

[*P40] Steelman argues that the state's case here was weak, and

contends that the jury's note stating that they could not come to a

verdict on the burglary charge is proof of its weakness. We disagree.

Police discovered Steelman with the stolen goods within hours of

the burglary, Steelman knew where the Hayeses' missing documents

could be found, he knew that $10,000 had been stolen, he discussed

the denominations of the stolen dollar bills, he told the Hayeses' son

to tell Davey Hayes that Steelman was "sorry," and Steelman's DNA

was found on a Pepsi can in the Hayeses' basement close to the safe.

Because the evidence of Steelman's guilt is overwhelming absent

the evidence of his silence and the improper closing statements, we

hold that there was no plain error.

Steelman, 2018-Ohio-1732.

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

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

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

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

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

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

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

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

In his Reply, Steelman does not grapple with the First District’s plain error analysis. That

is to say, he offers no rebuttal to that court’s conclusion that, absent the offending evidence, the

evidence against him was still overwhelming. The Magistrate Judge agrees with the First District

that the non-offending evidence was overwhelming. Steelman lived next door to the burglarized

residence and the stolen property was recovered from him within hours of the burglary. He knew

the amount of money which had been stolen, including denominations, and where the victims’

documents were located. He made several damaging admissions in recorded telephone calls from

jail and his DNA on the Pepsi can found at the residence places him at the scene of the crime. In

sum, Steelman has not shown that the First District’s evaluation of the evidence was an

unreasonable determination of the facts on the basis of the evidence before it.

In addition to defending this First Ground for Relief on the merits, Respondent asserts it is

procedurally defaulted because Steelman failed to appeal this Ground for Relief to the Supreme

Court of Ohio. In his Reply, Steelman admits that this is so, but seeks to excuse this procedural

default by claiming he is actually innocent.

His theory is this: his DNA was recorded in the national CODIS database prior to the

burglary, but that evidence was never presented at trial. Instead, just prior to trial, after learning

Justin Callaway would not testify, the investigating detective obtained a mouth swab from

Steelman, retrieved the Pepsi can from the evidence room, and “the pepsi can investigators stored

away for 8-months was now found to have petitioner's "raw" DNA on it. This placed petitioner

at the crime scene.” (Reply, ECF No. 10, PageID 870). Steelman’s theory is that Detective

Wittich “planted” the DNA from his mouth swab on the Pepsi can and thereby seriously

falsified evidence.

The question that cannot be explained away is ''why would Deputy

Wittich extract "raw" DNA samples out of petitioner's mouth when

petitioner's DNA profile was available in the national CODIS ?

Even those less observant would entertain the thought that Deputy

Wittich extreme behavior was due to his desperate attempt to save

the State ' s case by putting petitioner's "raw" DNA on the pepsi can

to place petitioner at the scene of the crime. This was to substitute

the testimony of the non-testifying Justin Callaway.

Id. at PageID 871.

Proof of actual innocence can act as a “gateway” to excuse procedural default in habeas

cases. In Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit held:

[I]f a habeas petitioner "presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims." Schlup

v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is

whether "new facts raise[] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial." Id. at 317.

To establish actual innocence, "a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt." Id. at 327. The Court has noted

that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.

Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim

requires petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial." Schlup, 513 U.S. at 324.

The Court counseled however, that the actual innocence exception

should "remain rare" and "only be applied in the 'extraordinary

case.'" Id. at 321.

Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).

In this case Steelman has presented no new evidence at all. He asserts, but has offered no

proof whatsoever, that his DNA profile was in the national CODIS database prior to the time of

trial. Assuming his profile is in CODIS, he must have known this at the time of trial and

presumably his lawyer knew it as well. Why, then, not put the “question that cannot be explained

away” to Deputy Wittich on cross-examination? If there were good impeaching questions about

the chain of custody of the Pepsi can and the mouth swab, those questions would also have been

available to counsel at the time of trial, but were apparently not asked. Impeaching answers then

would have been available to the jury to test the credibility of the State’s case.

Steelman argues that although this evidence existed at the time of trial, it was not presented

to the jury and thus can “count” as new evidence because it is newly-presented even though not

newly-discovered (Reply, ECF No. 10, PageID 870). The authority he relies on, Allen v. Yukins,

366 F.3d 396 (6th Cir. 2004), does not discuss this distinction. In Dufresne v. Palmer, 876 F.3d

248 (6th Cir. 2017), the Sixth Circuit held that evidence (police reports) that could have been

discovered by the exercise of due diligence before trial does not qualify as new evidence.

Previously, in Cleveland v. Bradshaw, 693 F.3d 626 (6th Cir. 2012), the Sixth Circuit had suggested

without deciding that it was sufficient if the evidence was newly-presented as opposed to newly-

discovered. District Judge Rice of this Court has followed the newly-presented suggestion in

Cleveland without discussing Dufresne. Clark v. Noble, 2019 U.S. Dist. LEXIS 49689, at *49-50

(S.D. Ohio 2019). The Dufresne holding was in the alternative because the Sixth Circuit held the

police reports did not actually establish that Dufresne was innocent. 876 F.3d at 256. Based on

that distinction, the Court remains free to consider newly-presented evidence, as opposed to newly-

discovered evidence, on the actual innocence question. Because Steelman has presented no new

evidence at all, but only argument, the Magistrate Judge recommends the Court not decide the

newly-present versus newly-discovered question in this case.

The asserted new evidence here contrasts markedly with the physical evidence found

sufficient to satisfy the actual innocence gateway in House v. Bell, 547 U.S. 518 (2006). In that

rape and murder case, strong physical evidence against House was that the victim’s blood was

found on his trousers. The new evidence presented in habeas was that vials of the victim’s blood

had been shipped to the laboratory with the pants, and one of them had broken in route, providing

a completely innocent explanation of her blood on his pants. Here the Petitioner has presented no

new evidence at all. He has not shown, by documentary evidence or otherwise, that he was actually

in the CODIS database prior to trial. But even if he was, the entire balance of his actual innocence

case depends on speculation that Wittich falsified evidence. That proof is simply insufficient to

meet the standard in Schlup v. Delo, supra.

Petitioner’s First Ground for Relief is without merit and he has also not excused his

procedural default in failing to present it to the Supreme Court of Ohio.

Ground Two: Admission of Hearsay Statements of Justin Callway

In his Second Ground for Relief, Steelman contends that the admission of hearsay

statements of Justin Callaway about the items in Callaway’s truck having been stolen by Steelman

deprived him of his right of confrontation with the witnesses against him, in violation of the Sixth

Amendment. On direct appeal the First District held Callaway’s statement did not properly come

within the excited utterance exception to the hearsay rule and should have been excluded on that

basis. Steelman, 2018-Ohio-1732, ¶¶ 20-22. It then concluded Steelman’s Confrontation Clause claim

was moot. Id. at ¶ 23. However, based again on the overwhelming evidence of guilt, it found admission

of Callaway’s statements harmless error. Id. at ¶¶ 41-43.

The question for this habeas court is whether the First District’s conclusion about the weight

of the evidence was unreasonable in light of the evidence presented. 28 U.S.C. § 2254(d)(2). The

Magistrate Judge agrees with the First District that there was overwhelming evidence of guilt and

therefore admission of Callaway’s hearsay statements was harmless error.

In the alternative, Respondent’s defense of procedural default of this claim by failure to present

it to the Supreme Court of Ohio is also well taken. Steelman admits he did not present the issue and

his claim of excusing actual innocence is the same on Ground Two as on Ground One and equally

unavailing.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Steelman claims his trial was rendered unfair by repeated acts

of prosecutorial misconduct. On direct appeal, Steelman raised this claim as his Third Assignment of

Error which the First District decided as follows:

Prosecutorial Misconduct

[*P24] In his third assignment of error, Steelman argues that the

assistant prosecuting attorney made improper remarks during

closing argument that resulted in an unfair trial.

[*P25] The test for prosecutorial misconduct is whether remarks

were improper and, if so, whether they prejudicially affected the

substantial rights of the accused. State v. Lott, 51 Ohio St.3d 160,

165, 555 N.E.2d 293 (1990). Prosecutors are given wide latitude

during closing to argue what the evidence has shown, and to draw

reasonable inferences from it. id. at 166. "Wide latitude" does not

include "insinuations and assertions calculated to mislead" or

"personal beliefs or opinions regarding the guilt of the accused * *

*." id. Further, the state "may not allude to matters not supported by

admissible evidence." id.

Improper Comments on Steelman's Silence

[*P26] Here, the prosecutor stated, "If someone else had stolen that

sack of money he would have told Det. Wittich 'I don't know how

much was in there, Larry gave it to me.'" The prosecutor also argued

during rebuttal that Steelman had "had a chance" to explain himself

to Wittich and to tell him who else had been involved, but did not.

Defense counsel did not object, so we apply a plain error standard

of review. Neither of these remarks was supported by admissible

evidence. We therefore hold that there was obvious error. See id;

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶

21-22; State v. Wogenstahl, 75 Ohio St.3d 344, 357, 1996- Ohio

219, 662 N.E.2d 311 (1996).

"Two-Bit Junkie"

[*P27] Steelman next takes issue with the assistant prosecutor

referring to him as a "two bit junkie," "two-bit addict," "two-bit

heroin addict," and "junkie," as well as "some ya-hoo," and a

"vindictive, violent individual." There was no objection to these

comments.

[*P28] Both parties may be "colorful or creative" during closing

argument, provided comments are supported by the evidence. State

v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). Steelman

admitted that he had been high the night of the burglary, and it is

undisputed that he had overdosed just hours after the burglary

occurred. In regard to the "violent vindictive" statement, in one of

the jailhouse phone calls Steelman threatened several times that

others he believed had been involved in the burglary would "fucking

pay." Thus, the prosecutor's comments, while colorful, were

acceptable inferences drawn from facts in evidence. See State v.

Tibbetts, 92 Ohio St.3d 146, 168, 2001- Ohio 132, 749 N.E.2d 226

(2001) (referring to defendant as a "trained killer" was fair comment

on the evidence); State v. Nields, 93 Ohio St.3d 6, 37, 2001- Ohio

1291, 752 N.E.2d 859 (2001) (argument that the defendant was a

"mean-spirited derelict" and an "unemployed killer" were not

improper where supported by the record).

Comments on Credibility

[*P29] Steelman next asserts that the prosecutor expressed his

personal belief as to Steelman's credibility and the defense's overall

theory of the case.

[*P30] A prosecutor's statement on witness credibility is improper

if it implies knowledge of facts outside the record or places the

prosecutor's personal credibility at issue. State v. Keene, 81 Ohio

St.3d 646, 666, 1998-Ohio-342, 693 N.E.2d 246 (1998). However,

a prosecutor may state his or her opinion if supported by the

evidence. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839

N.E.2d 362, ¶ 154. For example, a "prosecutor may comment upon

the circumstances of witnesses in their testimony" and may argue

"that these circumstances make the witnesses more or less

believable and deserving of more or less weight." State v. Clay, 181

Ohio App.3d 563, 2009-Ohio-1235, 910 N.E.2d 14, ¶ 47 (8th Dist.).

A prosecutor may not state that the defendant is a liar, but "may

suggest that the evidence demonstrates the defendant is lying,

scheming, or has ulterior motives." State v. Irwin, 7th Dist.

Columbiana No. 11-CO-6, 2012-Ohio-2704, ¶ 116, citing State v.

Kroger, 12th Dist. Clermont No. CA99-05-050, 2000 Ohio App.

LEXIS 1393, 2000 WL 342130, *2 (Apr. 3, 2000).

[*P31] Steelman argues that the prosecutor personally vouched for

the credibility of witnesses and impermissibly injected his personal

opinion as to what the evidence showed by saying: (1) "I love"

Steelman's explanation concerning statements in the jailhouse calls

and that Steelman's explanation "makes no sense to me"; (2) "the

other thing I loved" was Steelman's phone call on July 22, 2016; (3)

"That's the other thing I love about this case"—that even if others

were involved, Steelman could still be guilty of complicity; (4) "But

this I know for a fact that he left that Pepsi can there with his DNA

on it. And I know for a fact that he is the one that was caught with

the property in his possession a mere three or four hours after these

offenses occurred"; (5) "It's hard to respond to something like that,"

referring to Steelman's closing argument, "I'll be honest with you. It

is so ridiculous. Seriously."; (6) defense counsel's implication that a

March 2017 date on the Pepsi can found in the Hayeses' basement

meant that the can was made in March 2017—and therefore post-

dated the burglary and was planted—was "misleading"; (7) "I love"

defense counsel's argument that the Pepsi can came from the

garbage and was used to set Steelman up; and (8) "another beauty"

that "makes no sense whatsoever" was the theory that Callaway was

trying to dump Steelman's dead body at the side of the road and

frame him for the burglary.

[*P32] Defense counsel objected only to the prosecutor's argument

on whether the Pepsi can was from the garbage, but did not object

on the ground currently raised. We therefore review for plain error.

[*P33] Most of the prosecutor's comments that he "loved" certain

aspects of the case, his "another beauty" statement, and his statement

that defense counsel's theory of the evidence "made no sense

whatsoever" were not tantamount to an expression of his personal

belief regarding Steelman's guilt. Instead, they can be fairly

characterized as the prosecutor arguing that the inferences that could

be drawn from the evidence made the defense's theory less

believable and undeserving of much weight. These statements were

therefore not beyond the bounds of a proper closing argument. One

of these comments—that the prosecutor "loved" that Steelman could

be found guilty of complicity even if he was not the principle

offender—carries no suggestion that the prosecutor was arguing that

he personally believed Steelman was guilty.

[*P34] The prosecutor should not have argued that he knew "for a

fact" that Steelman left the Pepsi can in the Hayeses' basement, and

that he knew "for a fact" that Steelman was caught with the Hayeses'

property shortly after the burglary was reported. These statements

placed the prosecutor's personal credibility at issue, and may have

suggested to the jury that the prosecutor knew things about the case

that the jury did not. They were clearly improper.

[*P35] The prosecutor's statements on rebuttal that Steelman's

closing argument was "ridiculous" and that defense counsel's Pepsi

can date insinuation was "misleading" was a fair response to defense

counsel's closing argument. See State v. Pickens, 141 Ohio St.3d

462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 135 (prosecutor's

statement on rebuttal that defense counsel's argument was

"ludicrous" was not improper), citing State v. Martin, 6th Dist. Erie

No. E-11-020, 2013-Ohio-973, ¶ 42 (prosecutor's references to

defendant's story to police as "ridiculous and nonsense" borne out

by the evidence). The prosecutor's comments fairly pointed out

perceived weaknesses in Steelman's closing argument.

Misstatement of the Law

[*P36] Next, Steelman contends that the prosecutor committed

misconduct by stating that, once the jury began deliberations, "the

presumption of innocence is no longer with him * * * it's up to you

to determine if the State has met its burden of proof." This was

clearly improper. Defense counsel objected. The trial court

sustained the objection and immediately instructed the jury that

Steelman "is still presumed innocent unless and until you find that

the defendant is guilty because the State has proved it beyond a

reasonable doubt." The prosecutor subsequently admitted to the jury

that he had misstated the law. The jury was properly instructed

regarding the state's burden of proof before they began deliberations.

We presume the jury followed the trial court's instructions. See Pang

v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph

four of the syllabus. We therefore hold that Steelman was not

prejudiced by this misstatement.

Facts not in Evidence

[*P37] Finally, Steelman contends that the prosecutor argued facts

not in evidence. The prosecutor stated during rebuttal, "You don't

think Shawn [the Hayeses' grandson] at some point told him

[Steelman], hey, my grandparents have a safe full of money in the

basement." This was a fair response to defense counsel's argument

during closing that Steelman didn't know there was a safe in the

Hayeses' basement and that others did—a point that defense counsel

discussed at length. Hence, the defense opened the door to the state's

rebuttal argument. There was no misconduct. See State v. Diar, 120

Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 217

(prosecutor has wide latitude to respond to arguments made by

defense counsel during closing).

Steelman, 2018-Ohio-1732.

Prosecutorial misconduct justifies federal habeas relief only if it “so infected the trial with

unfairness as to make the resulting conviction a denial of due process” and resulted in prejudice.

Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (quoting Darden v. Wainwright, 477 U.S.

168, 181 (1986)).

On habeas review, claims of prosecutorial misconduct are reviewed

deferentially. Darden v. Wainwright, 477 U.S. 168, 181 (1986). To

be cognizable, the misconduct must have “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.’” Id. (citation omitted). Even if the prosecutor’s conduct

was improper or even “universally condemned,” id., we can provide

relief only if the statements were so flagrant as to render the entire

trial fundamentally unfair. Once we find that a statement is

improper, four factors are considered in determining whether the

impropriety is flagrant: (1) the likelihood that the remarks would

mislead the jury or prejudice the accused, (2) whether the remarks

were isolated or extensive, (3) whether the remarks were

deliberately or accidentally presented to the jury, and (4) whether

other evidence against the defendant was substantial. See Boyle v.

Million, 201 F.3d 711, 717 (6th Cir. 2000). Under [the] AEDPA,

this bar is heightened by the deference we give to the . . . [Ohio]

Supreme Court’s determination of . . . [Petitioner’s] prosecutorial-

misconduct claims. See Macias v. Makowski, 291 F.3d 447, 453-54

(6th Cir. 2002)(“If this court were hearing the case on direct appeal,

we might have concluded that the prosecutor’s comments violated

Macias’s due process rights. But this case is before us on a petition

for a writ of habeas corpus. So the relevant question is not whether

the state court’s decision was wrong, but whether it was an

unreasonable application of clearly established federal law.”).

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003).

In evaluating the Third Assignment of Error, the First District cited the standard from Lott,

supra, which mirrors the federal standard set out in Darden. The question before this Court, then,

is whether the First District’s decision represents an unreasonable application of that standard.

For a substantial number of the prosecutor’s comments, the First District found there had

been no objection at trial and reviewed the comments only under a plain error standard.

Respondent contends the failure to object created a procedural default and the Magistrate Judge

agrees.

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);

Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th

Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261

F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

can overcome a procedural default by showing cause for the default and prejudice from the asserted

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

Ohio has a contemporaneous objection rule — that parties must preserve errors for appeal

by calling them to the attention of the trial court at a time when the error could have been avoided

or corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus;

see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) The Sixth Circuit has repeatedly held this

is an adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307,

334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v.

Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010);

Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir.

2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239,

244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S.

107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v.

Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert.

denied, 562 U.S. 876 (2010).

The First District enforced the contemporaneous objection rule against Steelman by

reviewing these claims only for plain error. An Ohio state appellate court’s review for plain error is

enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th

Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754,

765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379,

387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001).

Finally, Steelman attempts to overcome the procedural default by claiming actual innocence.

But as we have seen with respect to the First Ground for Relief, he has not satisfied the Schlup standard

of proof on that claim.

With respect to some of the claims of prosecutorial misconduct, the First District held there

was not misconduct at all, but fair comment on defense arguments or merely use of “colorful”

language. In trials in federal court, the undersigned would require more civility; use of “two-bit” as

an adjective with “junkie” was less respectful of the dignity of Petitioner than this Court would find

acceptable. Although Steelman was a heroin user and would have died if he had not been caught, and

thus “junkie” was accurate, there was no need to add the invective. But the First District offered

examples of other “colorful” prosecutorial language which had been approved by Ohio appellate courts

even in capital cases (Tibbetts and Nields). Steelman cites no instances where “colorful” language by

itself has been held by the Supreme Court to violate the Constitution.

The First District correctly held that the prosecuting attorney’s claim that he knew “for a fact”

that the Pepsi can was in the Hayeses’ basement was improper. Steelman at ¶ 34. Nevertheless,

standing alone, it did not render the trial unfair and there was a solid basis in the evidence for finding

that as a fact.

Finally, the First District found that the prosecutor has misstated the law on the presumption

of innocence, but there was an immediate objection, an apology from the prosecutor, and a correct

curative instruction to the jury.

Reviewed deferentially as we must in habeas, the First District’s decision on the Third

Assignment of Error was not an unreasonable application of the relevant Supreme Court precedent and

therefore Steelman’s Third Ground for Relief is without merit.

Portions of this Third Ground were procedurally defaulted by failure to make

contemporaneous objection. Respondent asserts the entire Ground is defaulted for lack of fair

presentation to the Supreme Court of Ohio. Petitioner offers no reply except for his actual innocence

claim, which, as noted above, does not meet the Schlup standard.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the Petition be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is

also recommended that Petitioner be denied a certificate of appealability and that the Court certify

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

proceed in forma pauperis.

October 13, 2020.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

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

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

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

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

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

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