# Remillard v. Warden Noble Correctional Institution

> District Court, S.D. Ohio · July 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10378372

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

KEVIN REMILLARD,

Petitioner, : Case No. 2:20-cv-6103

- vs - District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz

WARDEN, Noble
Correctional Institution,

:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Objections by Respondent (ECF No. 15)
and Petitioner (ECF No. 16) to the Magistrate Judge’s Report and Recommendations (“Report,”
ECF No. 14) recommending that the petition be dismissed with prejudice but that a certificate of
appealability be granted (ECF No. 14). Under Fed.R.Civ.P. 72(b), each party had the opportunity
to respond to the other’s Objections not later than July 27, 2021, but neither party has filed such a
response. District Judge Morrison has recommitted the case for reconsideration in light of the
Objections (ECF No. 17).
Petitioner’s Objections

Standard of Review

Petitioner begins by claiming that the standard of review by a District Judge of a
Magistrate Judge’s report and recommendations in a habeas case is de novo, with no distinction
between findings of fact and conclusions of law (ECF No. 16, PageID 1183, relying on Habeas
Corpus Rule 8(b) and Thomas v. Arn, 474 U.S. 140, 150, n. 8 (1985)). The Magistrate Judge
concurs that a de novo standard applies to all objections in a case such as this where the Magistrate
Judge is making findings of fact based on the State Court Record, instead of deciding credibility
questions on the basis of live evidence. Occasions for live testimony in habeas are vanishingly
rare under Cullen v. Pinholster, 563 U.S. 170 (2011), and none has occurred in this case.
Petitioner next provides a summary of facts from his perspective (ECF No. 16, PageID
1184-85). No record references are provided, despite S. D. Ohio Civ. R. 7.2(b)(5) which requires

pinpoint citations to the electronic State Court Record for record references. Petitioner then
reminds the Court of general principles of federal habeas law without specific argument as to how
they apply here (ECF No. 16, PageID 1185-88).

Ground One: Ineffective Assistance of Trial Counsel: Failure to File Motion to Suppress

In his First Ground for Relief, Remillard claims his trial attorney provided constitutionally
ineffective assistance when he failed to file a motion to suppress documents seized from
Remillard’s home without a warrant. The Report concluded the Fifth District Court of Appeals
had decided this claim on the merits and that its decision was an objectively reasonable application
of the governing federal standard enunciated in Strickland v. Washington, 466 U.S. 668
(1984)(ECF No. 14, PageID 1159-65).
Petitioner objects that the Report relies on “too narrow” a reading of Arizona v. Hicks, 480
U.S. 321 (1987)(ECF No. 16, PageID 1188). If that case’s definition of “plain view” is properly
applied, Petitioner asserts, it will be found that Remillard’s papers seized by police and used in his

prosecution, were not constitutionally seized. Id. at PageID 1188-91.
The relevant facts as found by the Fifth District Court of Appeals are as follows: Remillard
had a neighbor by the name of Roy Daubenspeck who talked with him frequently and provided
him with transportation because Remillard had no vehicle of his own. State v. Remillard, 2019-
Ohio-3545, ¶ 4 (Ohio App. 5th Dist. Aug. 30, 2019). Daubenspeck owned a .357 caliber revolver
which he and Petitioner handled together on a number of occasions; Remillard knew where the
gun and ammunition for it were stored in Daubenspeck’s home. Id. at ¶ 5.
On June 11, 2017, Daubenspeck discovered in his driveway a stack of items from
Remillard with a note that said "Nothing in world makes sense. Lack of sleep, constant pain, who

knows, but I snapped. These things are yours, Kevin." Id. at ¶ 6. He also discovered that the
revolver and ammunition were missing. Id. After getting no answer at Petitioner’s house or from
Melanie Remillard, the owner of the house, he called 911 and the Knox County Sheriff responded.
Id. First to arrive was Deputy Scott Baker who concluded from the note that Remillard could be
suicidal. Id. at ¶ 7.
He asked Ms. Remillard to deal with the dogs in the house so he could enter safely and she
did so. Id. at ¶¶ 7-8. Deputy Wolfe arrived and together he and Baker entered the house “with the
goal of locating Appellant and insuring that he and anyone else in the home was safe. They found
the first floor in disarray but did not find any person or body.” Id. at ¶ 8.
They then proceeded to the second floor and found the note that Remillard says should
have been suppressed. The note itself was in the open on top of a table and Deputy Baker noticed
that the handwriting was similar to that in the note Remillard had left for Daubenspeck. Id. at ¶¶
8-9. Deputy Baker then read the note which contained several mentions of Petitioner’s having
shot Nick Remillard. Id. at ¶ 9. This led to the conclusion that a homicide rather than a suicide

was involved and the note was turned over to a detective. Id.
These are all findings of fact made by the Fifth District Court of Appeals from the trial
court record. Petitioner does not dispute these findings or, more relevantly, claim that they are
unreasonable determinations in light of the evidence as would be required to overturn them under
28 U.S.C. § 2254(d)(2). Instead, Petitioner claims that in light of these facts a motion to suppress
would have been granted under the authority of Arizona v. Hicks, supra.
The facts in Arizona v. Hicks as found by the Supreme Court are these: A bullet had been
fired from one apartment into the apartment below. This created exigent circumstances permitting
police to enter the upstairs apartment. Once inside, an officer saw expensive stereo equipment

which seemed at odds with the general squalor of the apartment. Suspecting that the equipment
had been stolen, the officer moved the equipment without a warrant to recover serial numbers,
which confirmed his suspicion. 480 U.S. 323-24. The officers did not have probable cause to
believe the equipment was stolen. The Supreme Court held that the plain view doctrine could not
sustain the search which happened when the equipment was moved to look for serial numbers.
This case is parallel to Hicks in that exigent circumstances justified entry in both cases,
although the deputy sheriffs here also had the owner’s consent and indeed cooperation in removing
the dogs. The exigent circumstance here was the officers’ reasonable belief that Petitioner was
suicidal.
In his Objections, Petitioner repeatedly argues that suicide is not a crime. But he nowhere
disputes the authority, indeed the duty, of the police to intervene to prevent suicide if they can.
And he does not dispute the factual finding of the Fifth District that that is what the deputies were
doing inside the house until after they had read the note. Because they had not found a body, the
exigent circumstances regarding suicide had not dissipated until they read the note, as the Report

found (ECF No. 14, PageID 1164) and as the Fifth District found. Remillard, supra, at ¶ 39.
Remillard also does not dispute as a matter of fact that the note was plainly visible on top
of a table in a place where the deputies had authority to be. Instead, he claims it was not in “plain
view” within the meaning of Hicks. The Magistrate Judge again disagrees. The deputies did not
have to move anything – open any drawers or cabinets or even look under a bed – to see the note.
Because the exigent circumstances – fear of a possible suicide – had not dissipated and because it
is very common to find a note from the victim in suicide cases, it was completely reasonable for
the deputies to read the note in pursuit of their legitimate goal of preventing Petitioner from
harming himself.

Without reading it, the deputies could not tell whether it was a suicide note, a confession,
or perhaps an irrelevant grocery list. Indeed, no person can tell the import of a document without
reading at least some of it. Once the reading occurred, the nature of the writing as at least in part
a confession of incriminating facts and its nature as incriminating evidence of a homicide was
patent.
Petitioner argues that the note was not contraband or “connected to a crime” and therefore
could not be seized without a warrant (Objections, ECF No. 16, PageID 1190). The Magistrate
Judge agrees it was not contraband, but on its very face it was connected to a crime – the homicide
of Nick Remillard.
In any event, the issue before this Court is not whether this seizure was or was not
constitutional under Hicks. Rather, the issue in Ground One is whether a motion to suppress was
so clearly meritorious that it was ineffective assistance of trial counsel to fail to file one so that the
Fifth District’s decision that no such motion was required is an objectively unreasonable
application of Strickland. In other words, this Court’s review of the decision not to seek

suppression must be doubly deferential, first to the trial attorney and then to the Fifth District.
Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), citing Pinholster, supra.; Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009); Harrington v. Richter, 562 U.S. 86, 105 (2011).
On the basis of the undisputed facts recited above, the Magistrate Judge concludes it would
have been error for the trial court to grant a motion to suppress. It cannot be ineffective assistance
of trial counsel for a lawyer to fail to file a motion which, had it been filed, should have been
denied. Accordingly, Ground One should be denied.

Ground Two: Ineffective Assistance of Counsel: Failure to Object to Jury Instructions

In his Second Ground for Relief, Remillard claims his trial attorney provided ineffective
assistance of trial counsel when he failed to object to jury instructions.
The Report concluded that the Fifth District had decided this claim on the merits and its
decision was not an objectively unreasonable application of clearly established Supreme Court
precedent (ECF No. 14, PageID 1168-72).

Remillard objects that neither the Fifth District nor the Report addressed all the jury
instruction errors which were made and should have been objected to (Objections, ECF No. 16,
PageID 1192). He then specifies
(1) the improper “acquit first” jury instructions;
(2) whether Mr. Remillard was denied his right to present a complete
defense due to the faulty jury instructions and counsel’s
ineffectiveness in submitting to the court some of the faulty
instructions and failing to object to other clearly erroneous jury
instructions that cold [sic] have easily been corrected;

(3) “the Court required the State to fail to prove all of the elements
before a not guilty verdict could be returned on Murder, count 1.
(TR 687; Doc.#8-4, PageID# 1023) In that event, the trial court
instructed, you will continue deliberations to the lesser included
offenses. Mr. Remillard objects to the Magistrate’s failure to address
this claim. Properly Doc.#14, PageID #1166-1172.”

(4) “The trial court also gave two different definitions of Murder.”

At the beginning of the discussion of Ground Two, the Report concluded the jury
instruction error claim made in the Traverse was “very general.” (ECF No. 14, PageID 1166). In
order to avoid finding some of the jury instruction sub-claims procedurally defaulted, the Report
limited itself to analyzing those claims which had in fact been made to the Fifth District. Id. The
Objections do not respond to this point, but argue there are a number of jury instruction errors
which the Fifth District did not decide on the merits and the Report also did not address.
The Fifth District found that the instruction errors of which Remillard was complaining in
his Second Assignment of Error were “the introduction to the issue of lesser included offenses and
an error in the definition of murder.” Remillard, supra, ¶ 42. As to the lesser included offense
issue, the Fifth District decided that question on the merits, found no error, and therefore found no
ineffective assistance of trial counsel in failing to object. Id. at ¶¶ 43-46. The Report agreed (ECF
No. 14, PageID 1168).
As to the definition of murder instruction, the Fifth District found that at one place in the
instructions the trial court had given the correct instruction and at another point he had incorrectly
inserted “or inflict bodily harm” in the definition. The Fifth District, having reviewed the whole
trial transcript and the jury charge as a whole, found that the jury was not likely to have been
misled, because the key issue on which the parties focused was Remillard’s mens rea. That is,
there was apparently no doubt that he had fired the shot that killed Nick; the question was whether
he did so intending to cause Nick’s death or only did so recklessly or negligently. Remillard,
supra, at ¶¶ 48-56. The Report concluded that the Fifth District had applied the correct federal

standard for review of ambiguous jury instructions and therefore had applied Strickland in an
objectively reasonable manner to find no ineffective assistance of trial counsel (ECF No. 14,
PageID 1172).
Regarding the “acquit first” instruction, Remillard devoted only the following paragraph
to this claim on direct appeal:
There were also problems with the “acquit first" instructions before
a lesser included offense, could be considered. See State v. Thomas,
40 Ohio St 3d 213, syllabus 3 (l981). The court required an acquittal
on Murder before considering the lesser included offenses. (TR.
687, 688).

(Appellant’s Brief, State Court Record ECF No. 8, PageID 107). Petitioner is correct that the Fifth
District did not explicitly address this claim. However, it was presented to the Fifth District which
considered the Second Assignment of Error as a whole and found no error. When a state court
rules against a defendant in an opinion that rejects some of the defendant’s claims but does not
expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the
federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289 (2013). Here the
Second Assignment of Error raised the federal claim that Remillard received ineffective assistance
of trial counsel because of his attorney’s failure to object to certain jury instructions. The Fifth
District considered that claim as a whole and gave it lengthy discussion, albeit not explicitly
treating the “acquit first” instruction. Under Johnson, the Court must presume the Fifth District
decided this sub-claim on the merits. The question then becomes whether that decision is entitled
to deference under 28 U.S.C. § 2254(d)(1).
In his Traverse, Remillard cites no United States Supreme Court precedent prohibiting an
“acquittal first” instruction of the sort given here.1 His only cited authority is State v. Thomas,
supra. Paragraph 3 of the syllabus in Thomas reads:

3. A jury must unanimously agree that the defendant is guilty of a
particular criminal offense before returning a verdict of guilty on
that offense. If a jury is unable to agree unanimously that a
defendant is guilty of a particular offense, it may proceed to consider
a lesser included offense upon which evidence has been presented.
The jury is not required to determine unanimously that the defendant
is not guilty of the crime charged before it may consider a lesser
included offense. (State v. Muscatello [1977], 57 Ohio App. 2d 231,
11 O.O. 3d 320, 387 N.E. 2d 627, paragraph three of the syllabus,
adopted.)

The instruction complained of was

[I]f you find that the state has failed to prove beyond reasonable
doubt all the essential elements of murder, then your verdict must
be not guilty of the murder charge, and in that event you will
continue your deliberations to decide whether the state has proven
beyond reasonable doubt all the essential elements of one of the
lesser included offenses which I'm going to define for you.

(Trial Transcript, State Court Record, ECF No. 8-4, PageID 1023).

All Remillard told the Fifth District and this Court is that “there are problems” with this
instruction. He never explains, in that court or this, what the “problems” are or what a correct
instruction would be.
The Thomas Court adopted what has been called a modified “hung jury” approach. In Beck
v. Alabama, 447 U.S. 625 (1980), Supreme Court disapproved state law which forbade any
instruction on lesser included offenses in a capital case, but did not adopt the hung jury approach

1 Indeed, this paragraph of the Traverse is a verbatim copy of the same paragraph in Appellant’s Brief on direct appeal.
as required. United States v. Tsanas, 572 F.2d 340 (2nd Cir. 1978), discusses advantages to both
sides from either approach. While the instruction given here may not have been a precise
instantiation of the modified hung jury approach, the Fifth District’s conclusion that the instruction
as a whole was not misleading is entitled to deference. Given the subtlety of the distinction,
Remillard has not shown his attorney performed deficiently when he did not interrupt the

instructions and propose some different – here unspecified – instruction.
As to Ground Two, this leave Remillard’s objection that faulty instructions denied him his
right to present a complete defense (ECF No. 16. PageID 1196, relying on Mathews v. United
States, 485 U.S. 58 (1988)). A fair opportunity to present a defense in a criminal case is a
constitutional right. Baze v. Parker, 371 F.3d 310, 323 (6th Cir. 2004), citing Crane v. Kentucky,
476 U.S. 683, 690 (1986). But the Supreme Court has never held that an error in jury instructions
violates the right to present a complete defense. Mathews certainly does not do so. There the
Supreme Court held that when the evidence presented in a particular federal criminal trial would
permit a finding of entrapment, a defendant was not required to admit the underlying crime before

presenting evidence of entrapment.
Remillard also relies on Stevenson v. United States, 162 U. S. 313 (1896). There the
Supreme Court held that Stevenson had presented sufficient evidence to be entitled to a lesser
included instruction as a matter of federal criminal practice. The case does not discuss the
constitutional concept of entitlement to present a “complete defense.” Remillard’s “complete
defense” argument on Ground Two is without merit.
The Magistrate Judge again recommends that Ground Two be dismissed with prejudice.
Ground Three: Trial Court Error in Refusing An Instruction on Accident

In his Third Ground for Relief, Remillard contends the trial court erred when it did not give
the instruction he requested on accident and that its failure to do so deprived him of his right to a
complete defense. Because trial counsel did not object before the jury retired in the manner
required by Ohio law2, the Fifth District reviewed this claim under a plain error standard and
rejected it on the merits. Rather than relying on Remillard’s procedural default, Respondent
defended this claim on the merits in the Return and the Report concluded the Fifth District’s
decision of the claim was entitled to deference under 28 U.S.C. § 2254(d)(1)(ECF No. 14, PageID
1174-77).
Remillard first asserts the Magistrate Judge did not discuss the facts underlying the accident
defense (Objections, ECF No. 16, PageID 1197). Then he gives a recitation of what he regards as
the relevant facts, citing his own testimony as a whole, rather than pointing the Court to testimony
supporting particular alleged facts Id. at PageID 1199, citing Trial Transcript, State Court Record,
ECF No. 8-4, PageID 906-44. Remillard argues denial of the instruction violated his right to
present a complete defense, relying again on Mathews, supra; and Stevenson, supra.
The Report concluded Remillard was not entitled to de novo consideration of his Third
Ground for Relief because it had been clearly presented as a constitutional claim to the Fifth
District and decided by that court on the merits (ECF No. 14, PageID 1175). The question before
this Court, then, is whether the Fifth District’s decision on this claim was contrary to or an

objectively unreasonable application of clearly established law as embodied in the holdings of
decisions of the United States Supreme Court. 28 U.S.C. § 2254(d)(1). “We have explained that

2 Ohio law requires that when a trial judges fails to deliver a requested instruction, the omission must be brought to
his or her attention before the jury retires. Note that counsel’s failure to renew the request was not raised as a claim
of ineffective assistance of trial counsel on appeal.
‘clearly established Federal law’ for purposes of §2254(d)(1) includes only the holdings, as
opposed to the dicta, of this Court’s decisions.” Woods v. Donald, 575 U.S. 312 (2015), quoting
White v. Woodall, 572 U. S. 415, 419 (2014). See also Howes v. Fields, 565 U.S. 499, 505, (2012);
Williams v. Taylor, 529 U.S. 362, 412 (2000).
Remillard’s Objections criticize the Report for not analyzing the following line of cases:

Harris v. Alexander, 548 F.3d 200 (2d Cir. 2008); Jackson v.
Edwards, 404 F.3d 612 (2d Cir. 2005); Davis v. Struck, 270 F.3d
111 (2d Cir. 2001); Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999);
Conde v. Henry, 198 F.3d 734 (9th Cir. 2000). The Magistrate’s R
& R completely fails to address this line of authority and the
petitioner objects. Doc. #14, Page ID #1172-1177.

(ECF No. 16, PageID 1200). On their face, these are not decisions of the United States Supreme
Court. Contrary to Petitioner’s assertion, the Report did analyze Barker v. Yukins, the only Sixth
Circuit case cited, and noted it dealt not with a refusal to instruct, but with giving an erroneous
instruction (Report, ECF No. 14, PageID 1176). The Magistrate Judge recognizes that while the
District Court must read Supreme Court decisions directly to determine their holdings, it must also
obey the Sixth Circuit’s readings of those holdings. But Barker does not purport to read any
Supreme Court decision in a way that is applicable here.
Remillard objects that “it is appropriate to rely on circuit court cases when they “merely
reflect” U.S. Supreme Court cases.” (Objections, ECF No. 16, PageID 1200, citing Parker v.
Matthews, 567 U.S. 37 (2012), and objecting that the Report does not follow Parker. In Parker
the Supreme Court reversed the Sixth Circuit’s grant of habeas relief. It began its per curiam
decision by stating the Sixth Circuit’s decision in the case
is a textbook example of what the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas
corpus review as a vehicle to second-guess the reasonable decisions
of state courts.” Renico v. Lett, 559 U.S. 766, 779, 130 S. Ct. 1855,
176 L. Ed. 2d 678, 691 (2010).
567 U.S. at 38.

In stark contrast to Petitioner’s “consult circuit precedent” proposition, the Supreme Court
in Parker held:
The Sixth Circuit also erred by consulting its own precedents, rather
than those of this Court, in assessing the reasonableness of the
Kentucky Supreme Court's decision. After quoting the governing
standard from our decision in Darden, the Sixth Circuit added that
it would “engag[e] in a two step inquiry to determine whether the
prosecutorial misconduct rises to the level of unconstitutionality. 'To
satisfy the standard . . . , the conduct must be both improper and
flagrant.' 651 F.3d, at 505 (quoting Broom v. Mitchell, 441 F.3d 392,
412 (CA6 2006)). It went on to evaluate the flagrancy step of that
inquiry in light of four factors derived from its own precedent: “ '(1)
the likelihood that the remarks . . . tended to mislead the jury or
prejudice the defendant; (2) whether the remarks were isolated or
extensive; (3) whether the remarks were deliberately or accidentally
made; and (4) the total strength of the evidence against [Matthews].'
651 F.3d, at 506 (quoting Broom,supra, at 412). And it stated that
“the prosecutor's comments in this case were sufficiently similar to”
certain comments held unconstitutional in its prior decision in Gall
II, 231 F.3d 265 (CA6 2000), “that they rise to the level of
impropriety.” 651 F.3d, at 506.

As we explained in correcting an identical error by the Sixth Circuit
two Terms ago, see Renico, 559 U.S., at 778–779, 130 S. Ct. 1855,
176 L. Ed. 2d 678, 683circuit precedent does not constitute “clearly
established Federal law, as determined by the Supreme Court,” 28
U.S.C. §2254(d)(1). It therefore cannot form the basis for habeas
relief under AEDPA. Nor can the Sixth Circuit's reliance on its own
precedents be defended in this case on the ground that they merely
reflect what has been “clearly established” by our cases. The highly
generalized standard for evaluating claims of prosecutorial
misconduct set forth in Darden bears scant resemblance to the
elaborate, multistep test employed by the Sixth Circuit here.

567 U.S. at 48-49. Only Supreme Court precedent counts under § 2254(d)(1).

For his claim that failure to give the requested accident instruction violated his right to
present a complete defense, Remillard relies on the following Supreme Court precedent: Mathews,
supra; Stevenson, supra; and Cupp v. Naughten, 414 U.S. 141 (1973). Mathews and Stevenson
are discussed above. In Cupp the Ninth Circuit had granted habeas relief where the trial judge
had, in a case where the defendant did not testify, given an instruction that witnesses are presumed
to testify truthfully. The Supreme Court reversed, holding:
The giving of that instruction, whether judged in terms of the
reasonable-doubt requirement in In re Winship, supra, or of offense
against "some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental," Snyder v.
Massachusetts, 291 U.S. 97, 105 (1934), did not render the
conviction constitutionally invalid.

414 U.S. at 149-50. Cupp does not stand for the proposition that failure to give any particular
requested jury instruction denies a defendant the right to present a complete defense.
In general in order for habeas relief to be warranted on the basis of incorrect jury
instructions, a petitioner must show more than that the instructions are undesirable, erroneous, or
universally condemned; taken as a whole they must be so infirm that they rendered the entire trial
fundamentally unfair. Waddinngton v. Sarausad, 555 U.S. 179, 192-94 (2009); Henderson v.
Kibbe, 431 U.S. 145 (1977). The only question for a habeas court to consider is "whether the
ailing instruction by itself so infected the entire trial that the resulting conviction violates due
process." Estelle v. McGuire, 502 U.S. 62 (1991), quoting Cupp v. Naughten, 414 U.S. 141 (1973).
The Sixth Circuit has held the category of infractions that violate fundamental fairness is very
narrow. Levingston v. Warden, 891 F.3d 251 (6th Cir. 2018); Byrd v. Collins, 209 F.3d 486 (6th
Cir. 2000), citing Dowling v. United States, 493 U.S. 342, 352 (1990), Keahey v. Marquis, 978
F.3d 474, 478 (6th Cir. 2020).
In this case the Fifth District noted the trial judge’s rejection of the requested accident
instruction because the record did not support it. State v. Remillard, supra, at ¶ 65. That, of course,
is a completely appropriate basis for rejecting an instruction on an affirmative defense if, in fact,
it is a fair assessment of the evidence. Remillard, but citing only to his own testimony, at trial
invites this Court to make that assessment. Instead, however, the Fifth District found Remillard
was fully able to present his accident defense to the jury, both with evidence and by counsel’s
argument of the accident defense without objection by the State or interruption by the court.
Petitioner does not point to any evidence or argument about his accident defense that he was
prevented from presenting.

Petitioner has not shown that omission of the requested accident instruction deprived him
of the opportunity to present an accident defense or rendered the trial fundamentally unfair in
violation of any clearly established Supreme Court precedent. Therefore the Fifth District’s
decision denying the Third Assignment of Error is entitled to deference under 28 U.S.C. §
2254(d)(1) and Ground Three of the Petition should be dismissed with prejudice.

Objection to Transfer of the Magistrate Judge Reference

All habeas corpus cases in this District, regardless of location of court, are randomly

assigned to a District Judge upon filing. At the Cincinnati and Columbus locations of court, they
are also randomly assigned to a Magistrate Judge at the same time. Since 2013, however, all
habeas corpus cases filed at Dayton are assigned and referred to the undersigned, who has been
serving the Court as a recalled Magistrate Judge since 2011. This is in part to compensate for the
fact that Magistrate Judges in Cincinnati and Columbus have access to the services of pro se law
clerks for habeas and prisoner cases under 42 U.S.C. § 19833. The allocation of these law clerks
is made by the Judicial Conference of the United States on a district-wide formula basis, but the
Magistrate Judges in Dayton have never had access to their services.

3 Unlike the present case, the vast majority of these two categories of cases (except capital case) are filed pro se.
When this case was filed, it was randomly assigned to District Judge Sarah D. Morrison
and Magistrate Judge Elizabeth Preston Deavers. At Magistrate Judge Deavers’ instance, the
reference was transferred to the undersigned June 22, 2021 (ECF No. 13) and the Report promptly
followed. The transfer practice in this case represents the uniform practice in that regard for many
years: transfers occur only at the instance of the transferor Magistrate Judge in either Cincinnati

or Columbus; typically they occur only after a habeas case is ripe for decision. The case remains
assigned for final decision to the originally assigned District Judge4.
Petitioner objects that the transfer was improper. He notes that the practice is not reflected
in the Columbus location’s General Order of Assignment and Reference (General Order Col 14-
01). He complains that the Transfer Order was signed by the transferee Magistrate Judge and not
by a District Judge. He asserts the transfer is contrary to the venue rule regarding habeas cases, S.
D. Ohio Civ. R. 82.1(f). He asserts there are no “facts or law” to support the transfer and that the
parties were not notified. Finally he complains that the Report was issued too quickly after the
transfer (Objections, ECF No. 16, PageID 1202-03).

Remillard’s Objections to the transfer are without merit. The United States District Court
for the Southern District of Ohio is one Court. The venue rules within the District are designed to
parallel the allocation of judicial resources and to prevent judge-shopping.5 While the Judicial
Conference of the United States controls where Magistrate Judges will “sit,” neither the
Conference, the Magistrates’ Act (28 U.S.C. §§ 636, et seq., nor national nor local rules purport
to control which cases they will handle within the District. From 2000 until recently, the
undersigned was referred all of the capital habeas cases in the Western Division. From 2015 to

4 Except that cases assigned to retired or deceased District Judges are reassigned by the Chief Judge.
5 Before electronic filing, the habeas venue rule helped keep production of large state court record relatively local, a
consideration no longer relevant.
date, the undersigned has managed the consolidated § 1983 capital case, In re Ohio Lethal Injection
Protocol Case, Case No. 2:11-cv-1016, a case venued in Columbus but involving challenges to
Ohio’s methods of execution by virtually all Ohio’s death row inmates. Variety of assignments
characterizes particularly the use of recalled Magistrate Judges: Columbus recalled Magistrate
Judge Norah McCann King currently manages over 100 Social Security disability appeals for the

District of New Jersey. Recalled Columbus Magistrate Judge Terry Kemp, Recalled Covington
Magistrate Judge Greg Wehrman, and Recalled Chatanooga Magistrate Judge Billy Carter are all
handling Social Security disability cases in the Western District of New York.
Speaking to Remillard’s specific objections, the undersigned notes that the Transfer Order
is a mere docket clarification matter. Since Petitioner has no “right” to have his case handled by
a particular Magistrate Judge, he has no standing to object to the transfer. A transfer of reference
is not a dispositive matter reserved to Article III judges by the Magistrates’ Act. Petitioner has no
knowledge of whether the Magistrate Judge workload in the District needs balancing. He is
apparently unaware, for example, that there are hundreds of Multi-District Litigation Cases

pending in Columbus for which the resident Magistrate Judges have significant management
responsibility. Of course any District Judge has authority to veto a transfer order, but over the
course of hundreds of such transfers, no District Judge has, despite occasional objections to the
transfers.
As a general matter, the habeas transfer practice assists Magistrate Judges in the District
who express a need for help and deprives no litigant of any legitimate interest. The Court should
overrule Petitioner’s objections to the transfer.
Constitutionality of the AEDPA

In his Traverse, Remillard spent twenty-one pages arguing that the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") was
unconstitutional, particularly in its requirement of deference to state court decisions (Traverse,

ECF No. 12, PageID 1116-36). Petitioner’s Objections assert the Report does not address his
claims that § 2254(d)(1), (d)(2), and (e) are unconstitutional (ECF No. 16, PageID 1203).
However, he makes no specific constitution-based objection, but merely incorporates the
arguments made in the Traverse that the Act violates the Thirteenth, Fourteenth, and other
unspecified Clauses of the Constitution. Id.
The Report acknowledged that the question was properly before this Court, but noted that
Remillard cited no precedent holding the AEDPA unconstitutional. The Report concluded
Remillard had not overcome the presumption of constitutionality which attaches to Congressional
legislation and recommended against finding AEDPA unconstitutional (Report, ECF No. 14,

PageID 1158). That analysis requires expansion.
In his Traverse, Remillard claims the AEDPA violates the separation of powers doctrine
(ECF No. 12, PageID 1116-17), the Suspension Clause (Id. at PageID 1117-18), the Citizenship
Clause of the Fourteenth Amendment (Id. at PageID 1120-32), and the Thirteenth Amendment
generally (Id. at PageID 1132-35).

Separation of Powers

Remillard cites a number of circuit judges who have agreed that § 2254(d)(1) is
unconstitutional on separation of powers grounds. Reviewing the dissenting circuit judge opinions
on which Remillard relies, the Magistrate Judge turns first to Judge Lipez’s dissent from denial of
en banc review in Evans v. Thompson, 524 F.3d 1 (1st Cir. 2008). The opinion argues that limiting
sources of law for habeas to clearly established Supreme Court precedent as of the time of a final
state court decision in the case is an unwarranted intrusion by Congress into the federal courts’

obligation to decide cases. Judge Lipez relies on Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60
(1803), and the duty of courts to say what the law is, as opposed to what it was at some time in the
past. Judge Lipez relies in turn on the dissent from en banc review by Judge Reinhardt in Crater
v. Galaza, 508 F.3d 1261 (9th Cir. 2007), which also makes the separation of powers argument. In
the Sixth Circuit, the same position was taken by Judge Martin, with whom Judges Daughtrey,
Moore, Cole, and Clay concurred6, in his dissent from denial of en banc review in Davis v. Straub,
445 F.3d 998 (2006). Judge Martin reiterates the separation of powers argument and relies as well
on Marbury and United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871); he also asserts §
2254(d)(1) violates the Suspension Clause. Finally, Judge John Noonan in Irons v. Clay, 505 F.3d
846 (9th Cir. 2007), argued the restrictions in § 2254(d)(1) violated the separation of powers

doctrine, relying again on Marbury and Klein.
While this Court has the authority to consider the constitutionality of § 2254(d)(1) and the
cited judges make cogent arguments, the Report recommended not finding the statute
unconstitutional on separation of powers grounds. AEDPA has been the law for twenty-five years
and no court has ever declared § 2254(d)(1) unconstitutional which strengthens the presumption
of constitutionality usually attaching to Congressional legislation. The Supreme Court decisions
relied on by the cited judges are not directly in point: Marbury involved a Congressional attempt

6 Judge Merritt had also dissented from the panel decision.
to expand the jurisdiction of the Supreme Court beyond what the Framers had written; Klein was
an attempt by Congress to impose a decision in a particular case.
The same Court that decided Marbury also decided that the power of federal judges to issue
the writ of habeas corpus was limited by the statute that conferred that power, the Judiciary Act of
1789, and was not the same common-law power enjoyed by English high court judges. Ex parte

Bollman, 8 U.S. 75, 94, 2 L. Ed. 554 (1807). Prisoners in state custody had no access to federal
habeas corpus until Congress expanded the scope of the writ during Reconstruction in 1867. Thus
the power of Congress to control the writ has long been recognized. If the use of that power in §
2254(d)(1) is to be declared unconstitutional, that should be done in the first instance by an
appellate court.

Suspension Clause

In contrast to the cited separation of powers opinions, Remillard cites only one mention of

the Suspension Clause. That is in Judge Martin’s opinion in Davis. It appears there essentially as
a tag-along to his separation argument and presents no analysis of why § 2254(d)(1) would violate
the Suspension Clause. Just last year the Sixth Circuit held the Suspension Clause did not create
a constitutional right to the writ. Hueso v. Barnhart, 948 F.3d 324, 326-327 (6th Cir. 2020), quoting
Bollman, 8 U.S. 75, 94 (1807). While Remillard cites a good deal of academic commentary
questioning the AEDPA under the Suspension Clause (Objections, ECF No. 12, PageID 1117-18),
there are no court decisions holding AEDPA unconstitutional as a violation of the Suspension
Clause.
Citizenship Clause of the Fourteenth Amendment

Remillard asserts that § 2254(d)(1) somehow violates the Citizenship Clause of the
Fourteenth Amendment. § 1 of the Amendment provides:
All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

Remillard cites no decision of any federal court applying the Citizenship Clause to
AEDPA, habeas corpus, or the criminal law. His principal reliance is on Saenz v. Rose, 526 U.S.
489 (1999), where the Court held unconstitutional a California statute which limited welfare
benefits to citizens who had arrived in California less than twelve months before applying. This
restriction on interstate travel was held to violate the Privileges and Immunities Clause, not the
Citizenship Clause. § 2254(d)(1) and (2) apply indifferently to all “person[s] in custody pursuant
to the judgment of a state court,” whether they are citizens or not.

The Thirteenth Amendment

Remillard asserts that § 2254(d)(1) is made unconstitutional by the Thirteenth Amendment,
but he offers no argument or authority to show how the statute creates or perpetuates a “badge of
servitude.” He quotes at length the concurring opinion of Justice Douglas in Jones v. Mayer, 392
U.S. 409 (1968), about the many ways in which racism continued to permeate American culture
and law from the Civil War until he wrote in 1968. Nor has it been eliminated in the fifty years
since then. But what is the connection between this and the AEDPA? The Court is unaware of
any judge or even academic who has suggested that the AEDPA violates the Thirteenth
Amendment. Of course there is the continuing problem of at least implicit racism in many
Americans, including judges. But it is invidious to suggest that is a problem only of state judges
and not federal judges.

The Quest for New Constitutional Law

One would expect an attorney arguing in 2021 for new recognition of a constitutional right
to de novo fact and law finding in habeas to employ arguments more in vogue now than in 1996.
As is well known in at least the legal community, many judges have adopted Originalism as the
proper interpretive method for the Constitution. That theory requires examining what was the
public meaning of constitutional language in 1787 or at the time a particular amendment was
adopted. The Report noted that Remillard “discourses broadly on history,” including citing the

preeminent scholar of Reconstruction, Eric Foner. However, Petitioner nowhere assembles any
historical information of the sort which would be required to make an Originalist argument for the
interpretations he offers of the Thirteenth and Fourteenth Amendments or of the Suspension
Clause.
The foregoing analysis shows that the constitutionality of 28 U.S.C. § 2254(d)(1) can be,
and has been, debated among reasonable jurists including distinguished judges of the Sixth Circuit.
On the other hand, as the Report notes, none of these judges was able to command a majority of
his or her court to find or even consider en banc that the statute was unconstitutional. For that
reason, the Report recommended a certificate of appealability be issued. That recommendation is
objected to by the Respondent and analyzed below.

Respondent’s Objections

Respondent objects to the issuance of a certificate of appealability on a number of grounds.

First, the Warden complaints that Remillard raised this constitutionality argument for the
first time in his Traverse (Objections, ECF No. 18, PageID 1179 et seq.). The Magistrate Judge
agrees that new habeas claims cannot be raised in a reply/traverse. Jalowiec v. Bradshaw, 657
F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).
But Remillard’s constitutionality argument is not a habeas claim. That is, he does not claim
that he is imprisoned directly as a result of the AEADPA. Instead, he raises his constitutional
claim as a rejoinder to Respondent’s argument that the AEDPA prevents him from receiving
habeas relief. That is, it provides the Warden with defenses to his claims.
While the distinction may be subtle, it is important and parallels that made by the Supreme

Court in Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). In that case the
Mottleys had settled a case with the railroad for free passes to ride. Congress later forbade granting
such passes and the railroad refused to honor them the next time the Mottleys sought to ride. In
turn the Mottleys brought suit in federal court under the “arising under” head of jurisdiction to
have the statute declared unconstitutional as an impairment of contract. When the case reached
the Supreme Court, it dismissed for lack of jurisdiction because the Mottley’s cause of action
“arose under” their contract with the railroad and not directly under the Constitution.
Respondent next objects that the Sixth Circuit has denied a certificate of appealability on
this same issue (Objections, ECF No. 15, PageID 1179, citing Collins v. Shoop, No. 18-3766, 2018
U.S. App. LEXIS 37673, at *7 (6th Cir. Dec. 17, 2018) quoting Irons v. Carey, 505 F.3d 846, 857
(9th Cir. 2007)). The Magistrate Judge finds Collins is directly in point. There the petitioner,
represented by the same attorney who represents Remillard, sought a certificate of appealability
on the question of the constitutionality of AEDPA directly from the Sixth Circuit. The court noted
that "the Supreme Court has upheld the application of AEDPA in a multitude of cases, tacitly

assuming its constitutionality." Id. at *7, quoting Irons v. Carey, 505 F.3d 846, 857 (9th Cir. 2007).
It held the claim did not “deserve encouragement to proceed further.” Id.
Collins persuades the Magistrate Judge to withdraw his recommendation that a certificate
of appealability be issued. This does not prevent Remillard from appealing, but puts the question
of appealability in the circuit, back where Congress intended it to be in the first place. It may be
that a sufficient number of circuit judges will be persuaded by the previous dissenting opinions of
their colleagues (Judges Merritt, Martin, Cole, Moore, Daughtrey, and Clay) to give this issue
fresh consideration. Or perhaps because Collins says the constitutionality of AEDPA has only
been tacitly assumed by the Supreme Court, perhaps a sufficient number of circuit judges would

want to make that explicit. In any event, based on Collins, the Warden’s objection to a certificate
of appealability is well taken.

Conclusion

Based on the foregoing analysis, the Magistrate Judge again recommends 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.

July 30, 2021.

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. 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/10378372. Public record. Not legal advice.