The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
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. OPINION AND ORDER
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). Following recommittal, the
Magistrate Judge filed a Supplemental Report and Recommendations (“Supplemental
Report,” ECF No. 18) to which only Petitioner has objected (ECF No. 19).
Litigants who object to a Magistrate Judge’s recommendations on a dispositive
matter, suchd aes n doivsoposition of a habeas corpus petition, are entitled under Fed.R.Civ.P.
72(b)(3) to review by the assigned District Judge of any portion of the report and
recommendations to which substantial objedcet inoonv ios made. This Opinion and Order
e mbodies the results of the D istrict Judge’s review.
I. Transfer of the Magistrate Judge Reference in this Case
Petitioner objects to the transfer of the Magistrate Judge reference in this case from
Magistrate Judge Elizabeth Preston Deavers to Magistrate Judge Michael R. Merz,
suggesting the Magistrate Judges of this Court “can trade cases like kids used to trade
baseball cards.” (ECF No. 19, PageID 1256-57.) The suggested analogy is offensive and is
completely unreflective of the facts.
Magistrate Judge Merz retired as an active Magistrate Judge on March 29, 2011 and
has served continuously since then on recall. It is the practice throughout the country to
use recalled Magistrate Judges in judicial districts and on a variety of cases where the need
is greatest. For example, at the present time, other recalled Magistrate Judges of this Court
are assisting with Social Security disability cases in the Western District of New York and
the District of New Jersey.
Since 1995 Magistrate Judge Merz has handled a substantial portion of the capital
habeas corpus cases in this District, regardless of the location of couIrnt raet: w Ohhiicoh L tehtehya wl ere
fIinlejedc.t iBonec Paruosteo coof lt,hat experience, the Magistrate Judge reference in
Case No. 2:11-cv-1016, was transferred to him from a Columbus
Magistrate Judge in 2015. The case involves virtually all of Ohio’s death row inmates and
has an accumulated over 3,700 entries and an almost 170,000-page record.
Magistrate Judge Merz has been automatically referred all the habeas corpus cases
filed at the Dayton location of court since 2013 (See General Orders Day 13-01 and 21-01).
He obtains reference of habeas corpus cases from other locations of court only on the
initiative of the transferor Magistrate Judge. Sometimes the transferor Magistrate Judge
always reflect the consent of both Magistrate Judges involved. Such transfers do not affect
the District Judge assignment and thus the venue of the case.
Petitioner’s objection to the transfer of the Magistrate Judge reference in this case is
tIhI.e refoCreo ncosmtitpulteitoenlya wlitityh oofu tth me eArnitt aitnedr riso orivsemrr ualnedd .E ffective Death Penalty Act of 1996
Because this case was filed after April 24, 1996, it is subject to the Antiterrorism and
ELifnfedchtiveM Duerapthhy Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214) (the "AEDPA").
v. , 521 U.S. 320 (1997). Respondent thus argued the ways in which the
AEDPA is applicable to the case (Return, ECF No. 9, PageID 1075, n.1 and many subsequent
places).
In his Traverse and both sets of Objections, however, Petitioner has argued at length
that the AEDPA is unconstitutional on four grounds: (1) as a violation of separation of
powers doctrine; (2) as a suspension of the writ of habeas corpus; (3) as a violation of the
“Citizenship” Clause of the Fourteenth Amendment; and (4) as a perpetuation of a “badge
and incident” of slavery in violation of the Thirteenth Amendment.
TMhaer bquureys tvi.o Mn aodf itshoen constitutionality of the AEDPA is of course properly put to this
Court. , 5 U.S. 137, 2 L. Ed. 60 (1803). However, as the Report notes,
analysis must begin with a strong presumption thaRt oCsotnkgerr evs. sGioonldabl eernga,ctments are
constituFtiuolnlialol v(Ee CvF. K Nluot. z1n4ic, kPageID 1156-57, citing Columbia Broad 4c5a3st Uin.Sg. S5y7s,t 6em4 , Inc.,
(v1. D98em1)o; cratic National Comm, i4t4te8e ,U.S. 448, 472 (1980); United States v. Five Gambling
Devices, 412F aUir.Sb.a 9n4k, v1.0 U2n (i1te9d7 S3t)a; tes
346 U.S. 441, 44 (1953); and , 181 U.S. 283 (1901).
and (2) which require federal habeas courts to defer to state court decisions on
constitutional questions later presented in the habeas case unless the state court decision
is (d)(1) “contrary to or an unreasonable application of clearly established Federal law as
determined by the Supreme Court of the United States” or (d)(2) “based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” AEDPA is unconstitutional, Petidteio nnoevro argues, because United States citizens
have a constitutional right to a federal court decision on law and fact:
the application of the federal Constitution in the habeas corpus context must
not depend on the State where the criminal trial took place or the State's
judiciary and its interpretation of the federal Constitution. The habeas
petitioner has a U.S. citizenship right to the protections of the Fourteenth
Amendment to the federal Constitution being applied correctly to the correct
facts of his or her case regardless of the particular State where he is seeking
vindication of his federal constitutional rights.
(Traverse, ECF No. 12, PageID 1123). On the same basis, Petitioner argues 28 U.S.C. §
2254(e) which governs the availability of evidentiary hearings in habeas cases is
unconstitutional. Instead, he argues “If a federal judge needs to hold an evidentiary hearing
to determine the relevant facts in deciding whether the federal Constitution has been
violated, then he or she can not [sic] be retrained [sic] by a State judge’s factual findings.”
( ECF NoA.. 12, PVagioeIlDat 1io1n3 6o)f. Separation of Powers
No court has every held the AEDPA to be unconstitutional on any of the grounds
aenss beartnecd byE vRaenms ivll. aTrhdo, mbupts ohne, relies on the dissent of Judge Lipez from denial of rehearing
in 524 F.3d 1 (9th Cir. 2008). Judge Lipez dissented from the
panel’s decision which accepted as constitutional § 2254(d)(1)’s limitations on the source
of law for habeas decisions to Supreme Court precedent and evaluation of state court
decisions on constitutional questions to whether those decisions were reasonable, as
opposed to correct. Judge Lipez believed these restrictions violated fundamental principles
of separation of powers and noted support for his position in:
see Crater v. Galaza,
a dissent from the denial of rehearing en banc by Judge Reinehna rbdatn acnd joined
by Judges Pregerson, Gould, Paez, and Berzon, see 5 D08a vFis.3 vd.
1St2r6a1u b(,9th Cir.2007), a dissent from the denial of rehearing by Judge
sMeae rItrionn, sa nv.d C jaorienye,d by Judges Daughtrey, Moore, Cole, and Clay,
445 F.3d 908 (6th Cir.2006), a csoenec Luirnrdinhg v .o Mpiunripohny b, y Judge Noonan,
505 F.3d 846, 854 (9th Cir.2007), and a dissenting opinion
of Judge Ripple, joined by Judge Rovner, 96 F.3d 856, 885
(7th Cir.1996).
524 F. 3d at 1. The Magistrate Judge noted that there was no authoritative precedent
involved and the questioned statutes had been applied hundreds of times a week for
twenty-five years without any court finding them unconstitutional. (Report, ECF No. 14,
PageID 1158).
Indeed, the Supreme Court itself has frequWeinlltilaym osv ve.r T tahyalto preriod strengthened the
deferential impact of the statutory language. In , 529 U.S.362 (2000), the
Court held a state court application of Supreme Court precedent must not only be
“unreasonable,” it must also be “objectively unreasonable.” A state court's determination
that a claim lacks merit precludes federal habeas relief so Hloanrgri ansg t“ofani rvm. Rinicdhetder j,urists could
disagree” on the corrYeactrnbeosrso uogf hthe Astlavtaer acoduort's decision. 562 U.S. 86,
101 (2011), quoting v. , 541 U.S. 652, 664 (2004). “The ‘unreasonable
application’ cLlaoucksyee rre vq.u Ainredsr athdee state court decision to be more than incorrect or
erroneous.” , 538 U.S. 63, 75 (2003). “ThIed state court’s application of
clearly established law must be objectively unreasonable.” . Judge Merritt, one of the
jurists on whom Judge Lipez relied, has written “[T]he AEDPA standard is ‘difficult to meet,
against extreme mPaelfaukn vct. iWonesb bin the state criminal justice system, and not as a means of
th
eqrurootrin cgo rGrreecetnioen v..’ F isher , 673 F.3d 465(6 Cir. 2012) (MerritBt,e Jl.l, cvo. Cnocnuerring),
Wo, o5d6s5 v U. D.So. n3a4l d(2011). To the same effect are , 535 U.S.
6D8o5n,a 6ld9 3v.- 9R4a p(e2l0je0,2); , 575 U.S. 312 (2V0i1rg5i)n (ipae vr. cLueBrilaamnc G, VR), reversing
th
580 Fed. Appx. 277 (6 Cir. 2014); 582 U.S. ___, 198 L.
Ed. 2d 186 (2017) (GVR).
1
While 28 U.S.C. § 2254(d)(1) may lessen the authority of lower federal court judges
to interpret the Constitution as they deem proper, it strengthens the hand of the Supreme
Court in declaring uniform national interpretations of the Constitution. Petitioner argues
that a prisoner’s constitutional rights must not depend on the State in which he or she is
tried, but § 2254(d)(1) eliminates or greatly diminishes the differences in rights
application prisoners will suffer from State to State or from federal circuit to federal circuit.
In that way § 2254(d)(1) strengthens the judicial branch as a whole and uniformity of
decision in particular. The Court does not agree that 2254(d)(1), (d)(2) or (e) violates
separatBio. n of pVoiwoleartsi odno cotfr itnhee. Suspension Clause
In addition to his separation of powers argument, Remillard asserts the AEDPA
violates the Suspension Clause which provides “The Privilege of the Writ of Habeas Corpus
shall not be suspended, except when in cases of Rebellion or Invasion the public safety may
require it.” In contrast to the several decisions which shared his separation of powerse n
abragnucmenDta, vRise mv. iSlltarradu bci,tes only Judge Boyce Martin’s dissent from denial of rehearing
th
in 445 F .3d 908 (6 Cir. 2006), in favor of his Suspension Clause
argument, although Judge Martin was joined in dissent by Judges Daughtrey, Moore, Cole,
and Clay and repeated arguments made in his panel dissent by Judge Merritt. The
argument is that § 2254(d)(1) “so broadly circumscribes the writ of habeas corpus that we
cannot rDeaacvhis the full merits of the constitutional issue[s] before us.” 445 F.3d at 911,
quoting , 430 F.3d atH 2a9m9d (iM v.e Rrruimtts, fJe.,l ddissenting). Judge Martin further relies on
Justice Scalia’s dissent in , 542 U.S. 507 (2004), which stated “The
Suspension Clause of the Constitution, which carefully circumscribes the conditions under
which the writ can be withhelodt, hweor uthlda nb eth ae s choammm ifo nit- claowul rde bqeu iervemadeendt bofy ccoomngmrietstasilo fnora l
cprriemscinraipl tpiorons oecf uretiqounirements
that render the writ, though available, unavailing.”
This very broad reading of the Suspension Clause is inconsistent with the Supreme
Court’s early and consistent interpretation that the power t o grant the writ extends only to
those cases in which Congress has authorized it by statute. "[T]he power to award the writ
[of habeas corpus]H buye saon vy. oBfa trhneh caorturts of the United States, must be given by writteEnx l apwar,"te
th
nBootll cmoamnmon law. , 948 F.3d 324, 326-327 (6 Cir. 2020), quoting
, 8 U.S. 75, 94, 2 L. Ed. 554 (1807). If the writ protected by the Suspension Clause
reaches anyone “committed for criminal prosecution” as Petitioner argues, how to justify
the exclusion of state prisoners from seeking the writ until Congress extended the writ to
them after the Civil War?
The Magistrate Judge noted the lack of judicial support for Petitioner’s Suspension
Clause argument but mentioned without analyzing that Petitioner “cites a good deal of
academic commentary questioning the AEDPA under the Suspension Clause.”
(Supplemental Report, ECF No. 18, PageID 1226, citing Objections, ECF No. 12, PageID
1117-18). Remillard objects:
What is bothersome is this court’s refusal to engage in discussion or analysis
of issues and facts unless there is exactly on point a controlling case. The
court’s refusal to engage the “academic commentary” does nothing to advance
the debate or decide the important constitutional questions presented. PageID
#1226. Mr. Remillard respectfully objects.
(ECF No. 19, PageID 1259).
The first academic item cited by Remillard is a student comment, “The Wall That
AEDPA Built: Revisiting the Suspension Clause Challenge to the Antiterrorism and Effective
Death Penalty Act, 66 Case Western L. Rev. 1147 (Summer 2016) by Nathan Nasrallah, at
the time a J.D. candidate at Case Western, the publishing institution. Nasrallah notes that
Suspension Clause arguments have been mIadd.e against AEDPLAi nsdinhc ve. sMhuorrptlhyy after its
enactment but hGarveee anl lv b. Fereenn uchn,s 1u4c3ce Fs.s3fdu l8. 65 (a4tt 1h1 C8i2r., 1c9it9in8g); and Crater v. Ga,l 9a6za F,.3d 856
(7th Cir. 1996); 491 F.3d
1119 (9th Cir. 2007). But, he argues, a Suspension Clause argument is more Hlikaerlryin tgot on
succCeeudll enno vw. Pbienchaoulsstee Srupreme Court interpretations of AEDPA, particularly
and , 563 U.S. 170 (2011), have prescribed even more deference to state
court decisions than earlier interpretations. Nasrallah fails to explain why a Supreme Court
that has become even more deferential would radically shift course and find § 2254(d)(1)
violates the Suspension Clause. In fact, Nasrallah confesses the quixotic nature of his
argument by writing “While it is unlikely that the Supreme Court would find that its own
statutory interpretation violates the Constitution, a well-argued Suspension Clause
challenge can expose AEDPA's friction with important legal principles and may pressure
Congress to take action.” 66 Case Western L. Rev. at 1149-50.
Having engaged with Nasrallah’s Comment, the Court is not persuaded to adopt its
argument. To do so would be to ignore twenty-five years of Supreme Court interpretation
of AEDPA in favor of what Nasrallah calls a “functionalist” approach to the writ. The
Supreme Court has written "Unless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the loweHru fettdoe vr.a Dl caovuisrts no matter
how misguided the judges of those courts may think it to be." , 454 U.S. 370,
375 (1982). This Court is not authorized to ignore Supreme Court precedent and adopt a
wholly-unprecedent functionalist approach to the writ.
In “Un-Incorporating the Bill of Rights: The Tension Between the Fourteenth
Amendment and the Federalism Concerns that Underlie Modern Criminal Procedure
Reforms,” 98 J. Crim. L. & Criminology 1231 (2008), Justin Marceau argues that “§ 2254, as
currently aIpdp.lied, is inconsistent with the Fourteenth Amendment's incorporation
doctrine.” at 1232. He explains:
The hallmark of incorporation under the Fourteenth Amendment, or more
precisely, selective incorporation, is the promise that constitutional rights
must apply with the same force and breadth in each of the fifty states, a
Id. promise that is impossible to realize under the strictures of § 2254.
Habeas corpus procedural reform was key to the incorporation program of the
Warren Court. Because the Supreme Court could not possibly review on certiorari all cases
in which it was alleged that state courts had not followed the Constitution, the FSauypreNmoei a
Court devolved front-line responsibility for that task to the District Courts. In v. ,
372 U.S. 391 (1963), the Court held a federal habeas court could consider any
constitutional claim despite failure to present it to the state courts unless the failure was
the result of a “deliberate bypass.” It alTsoow emnspenhdas vi.z Seadi nthat issuance of the writ was
Fay de
snaomvoe day as , the Court provided very broad authority for district courts to re-hear
the facts of habeas cases. To manage the flood of cases these changes and Title VII of
the 1964 Civil Rights Act created, Congress created the office of United States Magistrate in
2
1968.
But keeping the “incorporation proHmutistoe” as Marceau calls it depends heavily on the
vertical precedent doctrine reinforced in , which, because of the Supremacy Clause
and their oaths of office, applies equally to state court judges and lower federal court
judges. As Marceau details, it is the Supreme Court’s dSteocnisei ovn. Paol wlaewll which has led to what
he calls “un-incorporation.”M aHpisp pvr. iOnhciiopal example is , 428 U.S. 465 (1976),
which, without overruling , 367 U.S. 643 (1961), made the exclusionary rule
unenforceable in habeas if the state courts had provided a full and fair opportunity to
litigate the claim. WhaSt ttohneen is a lower federal court judge to do with a Fourth Amendment
claim in habeas? Defy and be overturned by the courtS otof naeppeals by return mail? Or
remember that the Supremacy Clause requires us to follow ? Marceau’s argument
does not persuade the Court that 28 U.S.C. §§ 2254(d)(1), (d)(2) and (e) are
unconstitutional.
Petitioner also cites Marceau’s “Challenging the Habeas Process Rather than the
Result,” 69 Wash. & Lee L. Rev. 85 (2012). There Marceau argues for using 42 U.S.C. § 1983
to challenge state court criminal procedures and does not argue directly for holding §§
2254(d)(1), (d)(2), or (e) unconstitutional.
The Court is not persuaded by the cited academic commentary that §§ 2254(d)(1),
(d)(2), or (e) should be decla red unconstitutional under the Suspension Clause.
C. Violation of the Citizenship Clause
Petitioner asserts that §§ 2254(d)(1), (d)(2), and (e) somehow violate the
Citizenship Clause of the Fourteenth Amendment. The Magistrate Judge rejected this
argument because he found “Remillard cites no decision of any federal court applying the
Citizenship Clause to AEDPA, habeas corpus, or the criminal law.” (Supplemental Report,
ECF No. 18, PageID 1227).
Remillard objects that the Magistrate Judge refused “to engage in the analysis
presented in the traverse and simply concludes, in effect, the citizenship clause has no
application” and refused to “engage in a detailed discussion and analysis of how 2254
th
violates the Citizenship Clause of the 14 Amendment.” (Objections, ECF No. 19, PageID
1259-60).
Most of the argument in the Traverse on this is irrelevant. The Court understands
that the Fourteenth Amendment created citizenship status, both staBtreo awnnd v n. aBtoioanrda lo, ff or
eEvdeurcya tpieornson born in the United States. The Court is well aware of
, 347 U.S. 483 (1954), which outlawed racial segregation in puTbrliocp s vc.h Douolllse as,s a
matter of the Equal Protection Amendment, not the Citizenship Clause. Obergefell v. 356
UH.oSd. g8e6s, 100-101 (1958), is cited to the Court in every death penalty case.
, 576 U.S. 644 (2015), originated in this Court. But none of this precedent suggests
that everyd cei tnizoevno has the absolute right to have his or her state criminal conviction
reviewed in a federal court, which appears to be Remillard’s argument.
Petitioner relies here as in his Suspension Clause argument on academic
commentary. In “Access to the Courts as a Privilege or Immunity of National Citizenship,”
40 Conn. L. Rev. 1477 (2008), Risa Kaufman contends “national citizenship rights are
enjoying something of a renaissance. The Privileges or Immunities Clause, dormant since
the Court gave it Saa neanrzr ov.w R ocoenstruction in The Slaughterhouse Cases, was revived by the
Court in 1999 in ,” 526 U.S. 489 (1999), a case heavily relied on by Petitioner.
However, Professor Kaufman acknowledges that in the years between 1999 and her article
in 2008, “the Court has not subsequently relied upon the [PrAivccileesgses or Immunities] Clause
or expanded its hSoalednizng beyond the right to travel context.” at 1479-80. Nor has the
Court expanded since Professor Kaufman wrote, although Justice Thomas has
continued to advocate rMecsDuorrneacltdi ovn. C oift yth oef CPhriivcailgeoges or Immunities Clause. (See his
concurrence in part in , 561 U.S. 742, 805 (2010), arguing that
the right to keep and bear arms is a privilege of national citizenship.)
The focus of Professor Kaufman’s article is the academic scholarship on resurrecting
tShlaeu Pgrhivteilre-gHeosu oser CImasmesu,nities Clause from its virtual eviction from the Constitution in the
83 U.S. 36 (1873). She concentrates on jurisdictionA-sctcreipssping
statutes and expressly excludes discussion of the AEDPA from her scope. , at 1510-
11. Unlike the jurisdiction-stripping legislation she discusses, §§ 2254(d)(1), (d)(2), and
(e) do not “strip” the federal courts of jurisdiction in habeas, but prescribe rules for the
exercise of that jurisdiction. The Court also notes how Professor Kaufman’s argument that
Congress intended to protect a national citizenship right to federal court access is limAcitceedss,
as she admits, by the same Congress’s refusal to enact federal question jurisdiction. ,
at 1502.
The nub of Petitioner’s Citizenship Clause argument is “the application of the federal
Constitution in the habeas corpus context must not depend on the State where the criminal
trial took place or the State's judiciary and its interpretation of the federal Constitution.
(Traverse, ECF No. 12, PageID 1123). And again “The separate State courts which attempt
to apply the federal Constitution in their respective jurisdictions must get it right Iidf .Section
1 of the Fourteenth Amendment and national citizenship means anything at all.” at
PageID 1126.
The consequences of adopting this interpretation would be radical. If the state de
cnoouvorts do not “get it right,” Remillard implies there is an absolute constitutional right to
consideration in federal district court. But suppose the District Court doesn’t “get it
right”? Is there a constitutional right to appeal? This would, of course, render
3
unconstitutional the certificate of appealability provisions of the AEDPA. And suppose the
circuit court gets it wrong? Is there to be a constitutional right to certiorari review? The
only way to guarantee uniformity of result is to guarantee uniformity of final
decisionmaker. But limits on Supreme Court review are plainly constitutional: they are
written into the text of Article III.
The Court is not persuaded that the Citizenship Clause renders 28 U.S.C. §
2254(dD)(.1 ), (dV)(io2l)a, otiro (ne )o uf nthcoen Tshtiitrutteioennathl. Amendment
Remillard finally contends §§ 2254(d)(1), (d)(2), and (e) are “badges or incidents of
slavery” prohibited by the Thirteenth Amendment. He begins by quoting Justice Douglas’s
catalogue on the historic instances of lawJso pnreos tve. cMtianyge wr hite supremacy for a century after
the Thirteenth Amendment was passed. , 392 U.S. 409, 445-46 (1968). Half a
3
Jones
century after , there is still much to do to eliminate racism from our national behavior.
But none of Justice Douglas’s examples suggest that giving deference to state court
decisions on questions of the constitutional rights of state prisoners is a badge of slavery.
Remillard notes the disproportionate application of the death penalty in the South
and claims “Several provisions of AEDPA reflect the Confederate mind set and enable the
death penalty to thrive in the south.” (Traverse, ECF No. 12, PageID 1134). It is well known
that the Social Security Act discriminated against Black citizens when first passed and that
discrimination (by way of excluding much of the work done by Black people) was a price
Franklin Roosevelt paid for Southern Congressional votes to pass the Act. Is Social Security
unconstitutional as a badge of slavery on that account?
Remillard broadens his attack from Southern Congressmen to all state court judges:
“The minds and hearts of many State court judges and justices remain filled with explicit
bias, implicit bias and structural bias.” And not federal judges? Is the Article III
confirmation process so finely honed as to eliminate all vestiges of implicit bias?
In sum, Remillard’s Thirteenth Amendment badge of slavery claim proves too much.
If every Congressional enactment of the past century and a half that received votes from
persons with implicit racial bias is therefore a badge of slavery and unconstitutional,
nothing will survive. de novo
Having considered Petitioner’s arguments that §§ 2254(d)(1), (d)(2), and
(e) are unconstitutional, the Court finds them unpersuasive. On the constitutionality of
these portions of the AEDPA, the Court adopts the Magistrate Judge’s Report and
S upplemental Report and ov errules Petitioner’s Objections.
III. Ground One: Ineffective Assistance of Trial Counsel: Failure to File a 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 Magistrate Judge
recommended the Court deny this claim on the merits, deferring to the decision of the Fifth
District Court of Appeals. (Report, ECF No. 14, PageID 1165; Supplemental Report, ECF No.
18, PageID 1212).
Although Remillard objects generally that the Fifth District did not decide this claim
on the merits, he offers no analysis to support that claim. Remillard’s First Assignment of
Error on Direct Appeal was “Counsel was ineffective under the Sixth and Fourteenth
Amendments of the U.S. Constitution in failing to File a Motion to Suppress documents
seized during a warrantless search of Appellant's bedroom.” (Appellant’s Brief, State Court
Record, ECF No. 8, PageID 95.) The Report quoted the entire decision of the Fifth District
on this claim and concluded it was plainly a decision on the merits. (ECF No. 14, PageID
1159-61). Petitioner’s conclusory objection that this was not a decision on the merits is
overruled.
The Fifth District found, the Magistrate Judge agreed, and Petitioner does not
disagree that the Sheriff’s deputies who responded to Remillard’s residence had probable
cause to believe he was suicidal, and this created sufficient exigent circumstances for them
to enter the house to perform a “welfare check.” Remillard also does not object to the
Magistrate Judge’s finding, based on the state court record, that the deputies had the
consent of the owner of the premises to enter; in fact, she removed the dogs who would
Remillard repeatedly emphasizes the deputies did not enter the house or proceed
within it to investigate a crime because “suicide is not a crime.” Neither the Fifth District
nor the Magistrate Judge found to the contrary. Instead, the Fifth DSitsattrei cvt. hReelmd,i lalanrdd t, he
Magistrate Judge agreed that entry to prevent suTiceirdrey wv.a Osh laiowful. 2019-
Ohio-3545, ¶ 36 (5th Dist. Aug. 30, 2019), citing , 392 U.S. 1, 20 (1968).
Petitioner does not disagree that the initial entry was lawful.
When the deputies reached Remillard’s second floor bedroom without having yet
encountered either a wounded person or a corpse, they found the document in question.
The Fifth District found and the Magistrate Judge agreed that the document was in plain
view, i.e., lying on an open surface. At that point the exigent circumstances which justified
the entry had not dissipated. Petitioner does not dispute the Magistrate Judge’s finding
that it is very common for people committing suicide to leave a note. Petitioner also does
not dispute that the handwriting on the note appeared to the deputies to be the same as the
handwriting on the note Remillard left for his neighbor Daubenspeck with some personal
property and which strengthened the suspicion he might be about to kill himself.
Given that set of circumstances, it was completely lawful for the deputies to read the
note. It might reasonably have been expected to lead them to Remillard quickly so as to
prevent the suicide or prevent his death from a not-yet-fatal wound. Of course, suicide is
not a crime, but nowhere does Petitioner suggest that, as the Fifth District held, it is not
part of the duties of the police to prevent people from harming themselves. Had the
deputies found Remillard armed and about to pull the trigger, nothing in the law would
have required them to be passive observers of his suicide. It would be absurd to suggest
that police officers, knowing what these officers knew, should stop to go and get a search
warrant before reading a note that was reasonably suspected to describe a suicide in
progress.
Once the officers read the note, its nature as evidence of a crime was evident. As
Petitioner himself points out, a confession is probably the best evidence of a crime.
(Objections, ECF No. 19, PageID 1242, citing McCormick on Evidence (1972) and Wigmore
on Evidence (1970)). Petitioner also does not object to the Magistrate Judge’s finding that
the incriminating nature of the note was obvious.
Petitioner argues the note was not contraband. The Court agrees, but neither the
Fifth District nor the Magistrate Judge relied on any such classification. Petitioner argues
that one’s personal papers such as this note are protected by the Fourth Amendment.
Again, neither the Fifth District nor the Magistrate Judge suggested they were not.
Petitioner contends that the privacy of one’s home is the primary interest protected by the
Fourth Amendment. Again, neither the Fifth District nor the Magistrate Judge suggested
that Remillard’s dwelling was not a protected place. But Remillard admits: “The need to
protect or preserve life or avoid serious injury is justification for what would be otherwise
iMlliengcaely a vb.s Aernitz oanna exigency or emergency.” (Objections, ECF No. 19, PageID 1242, citing
, 437 U.S. 385, 392-93 (1978). Arizona v. Hicks,
Petitioner objects that the Magistrate Judge reads 480 U.S. 321
(1987) too narrowly. In that case police entered a second-floor apartment because a shot
had been fired from there into the apartment below. Upon entering the police did not find
anyone. However, they also saw expensive sound equipment, which seemed inconsistent
with the general squalor of the apartment. The nature of the equipment as stolen property
was not immediately obvious, so the police moved the equipment to recover serial
numbers wHihcikcsh proved the equipment was stolen.
In the exigent circumstances justifying entry dissipated once the apartment
was found empty. It turned out that the officer’s suspicions about the sound equipment
were justified, but he had to search (move the equipment) to get at the serial numbers. In
this case the exigent circumstance that justified both entry and reading the note in plain
view did not dissipate until after the note was read. The act of reading both dissipated the
original cause for entry and created cause to seize the note.
Accordingly, the Magistrate Judge’s Report and Supplemental Report as to Ground
OIVn.e areG ardooupntde dT awnod: P Ienteitfifoencetirv’se O Absjseicsttiaonnsc ea roef oTvreiarrlu Cloedu.n sel: Failure to Object to
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. This
claim was raised as RemillaSrtda’tse S ve.c Roenmdi Allassridg, nsmupernat. of Error on direct appeal and decided
against him on the merits. As to the first instruction to which
Remillard asserted objection should have been made, the Fifth District held it wIda.s not a
misstatement of Ohio law and there was therefore nothing to which to object. at ¶¶ 42-
47. As to the second such instruction, the Fifth District found an error at one point, but that
the inIsdtr.uctions on the definition of murder, read as a whole, would not have misled the
jurym. e ns aret a¶¶ 48-56. Based on that finding and its conclusion that trial counsel’s focus was
on , it was reasonable for counsel not to object because it could have distracted the
jury from the defense theory. Because the first instruction was not objectionable and not
oStbrjieccktlianngd t vo. tWhea ssheicnogntdo nw, as reasonable strategy, the Fifth District found no violation of
reasonable application of Strickland and thus entitled to deference (Report, ECF No. 14,
PageID 1172; Supplemental Report, ECF No. 18, PageID 1216). de
novo In his Objections to the Supplemental Report, Remillard asserts he is entitled to
4
consideration of part of his Second Ground for Relief:
The Ohio court did not decide on the merits the federal constitutional
questions concerning Due Process, the “acquit first” jury instructions and
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. Since
the Ohio court did not decide the issues on the merits, then 2254 (d) does not
apply.
(ECF No. 19, PageID 1244). The Court agrees with the Magistrate Judge’s analysis of why
these claims were decided on the merits by the Fifth District and therefore entitled to
deference under 28 U.S.C. § 2254(d)(1). Applying that deference, the Court also agrees that
the Fifth District’s decision is not an objectively unreasonable application of the relevant
Supreme Court precedent. The Report and Supplemental Report as to Ground Two are
aVd. optedG raonudn Pde tTithiorneeer: ’Ts roibajle Cctoiuonrts Earrer oorv einrr Ruelefdu.s i ng 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 constitutional right to a present a complete defense. Remillard presented this claim
to the Fifth District as his Third Assignment of Error. Noting that he had not properly
preserved his objection, the Fifth District reviewed the merits of this claim on a plain error
basis. Although this would h ave permitted the Warden to raise a procedural default
de novo
4 de novo
defense, the State elected to defend on the merits.
Remillard first argued the Fifth District did not decide this claim on the merits and
he was therefore entitled to non-deferential review in this Court. The Magistrate Judge
disagreed, citing the Supreme Court standard for finding that a state court decision was on
the merits (Report, ECF No. 14, PageID 1174). Petitioner objected to the Report because
the Magistrate Judge had not analyzed a line of circuit court cases. The Supplemental
Report noted Supreme Court authority limiting habeas relief to cases where the state
courts unreasonably applied Supreme Court, not circuit court, precedent (Supplemental
Report, ECF No. 18, PageID 1218-19).
In his most recent Objections, Remillard criticizes the Magistrate Judge for not
discussing any of the facts supporting the accident defense, without providing any record
citations for the facts to which he is referring. (Objections, ECF No. 19, PageID 1250). The
Fifth District summarized Remillard’s testimony as follows:
{¶16} He [Remillard] drank some of the beer and was talking with Nick while
Nick was playing video games. He told Nick that he had almost committed
suicide earlier that day and, in response to Nick's question, stated he would
have used “his” revolver. He brought Roy Daubenspeck's gun down from his
room to show Nick and they purportedly handled the weapon and discussed
how it looked similar to a weapon used by a fictional television character.
Appellant decided to return the gun to Daubenspeck's house and as he left, he
1
inexplicably decided to “dry fire” the weapon into the wall. The gun
discharged into the wall and Appellant stated he was shocked by the report.
He fumbled with the weapon and though he does not deny that it discharged a
second time, his testimony does not provide a clear explanation of the second
shot. During his testimony he did not expressly state that he was aware that
the gun fired a second time:
I immediately jumped, because I wasn't expecting it to go off. I went
and just started fumbling with it to get the cylinder out. When it sticks
we usually put our hand across the release and signal(sic) the
hammer back which kind of advances it inside. The only thing I can
assume is that the hammer slapped back and hit a shell, but it would
(indicating) way. But I was trying to get the gun after it fired back to
my neighbor and put it away and pretend that I never even took it
from him. I immediately went out to the porch. I had no idea Nick got
hit.
{¶17} Appellant described how he left the home, unloaded the weapon and
returned the bullets to the jar on the shelf in Daubenspeck's home. He kept the
empty shells and the weapon and, until he returned to the house, he claims
that he did not know that Nick had been shot. When he returned home, he
found Nick bleeding profusely and responded to Nick's request for water, but
claims to recall little more after Nick fell silent. He does recall living in the
streets and the details of his disposal of the gun. He separated the bullets, the
cylinder and the body of the pistol and put the pistol in a potato chip bag and
tossed it into the Kokosing River. He put the cylinder in a black sock and
“whipped it into the first pond at Foundation Park” and threw the bullets in
the river. He had no recollection of writing the eight page note, Exhibit 7, which
State vp. rRoevmidileladr ad ,m suucphr ad.i fferent version of the story.
The appeals court then proceeded to summarize the relevant
content of the note which the deputies found:
{¶18} Exhibit 7 is the note allegedly drafted by Appellant after the shooting.
The entire note was read to the jury without objection. Some significant
statements include:
As for yesterday, I woke in such pain and hate that all that my head
was thinking was to kill everybody that was harmed -- that has
harmed me my whole life.
* * *
So I was just going to ride my bike somewhere and shoot myself, but
I have no idea how Nick got in the way. I know I fired a round into the
wall to maybe let him know to leave me alone or something, but all I
remember is him keep doing or saying whatever he was saying or
doing, and I shoot him. At that point my mind just wanted to kill my
family in mass.
* * *
Other than me shooting Nick, my mind is blank and tormented.
* * *
My mind is in so many places with no real me inside that I just couldn't
keep going anymore. I'm a fucked up mess, and I killed Nick, fuck.
* * *
I was just going to ride my bike somewhere and shoot myself. I was
relieved with my own demise and end, the end of my constant pain
and misery but something took me elsewhere, something inside that
* * *
He never deserved this. There is anything he could have done, I was
just going to shoot myself. I kept going downstairs hoping it didn't
really happen, that it was just a nightmare, but it wasn't. I killed Nick.
* * *
Though I really did try, I was on my way to kill myself when for
whatever reason they wouldn't let me without shooting Nick.
* * *
How could I just shoot Nick?
* * *
I just knew when I woke up that I wouldn't make it, but Nick was not
part of the plan. So much shouldn't have happened, just so much
somehow went way wrong with this. I just was going to disappear, no
one knowing what become of me, but instead I hurt Nick. He wasn't
supposed to be involved in this. What the fuck happened? I am so
sorry I shoot him, so fucking not what I was going to do. It was just
going to be me that died, not him.
* * *
It really should have not happened with Nick. I was just going to kill
myself.
{¶19} Appellant conceded that the handwriting in Exhibit 7 appeared to be his,
but he offered no reconciliation between his testimony and the version of the
Id. facts in his note.
The Fifth District went on to overrule the Third Assignment of Error, holmdienngs: rea
The general instructions clearly instructed jurors that the required
was “purposeful” conduct that went beyond conduct considered toS tbaet ea vn.
aSmcciildeeynt. If the jury believed defendant's accident defense, it would have been
required to find him not guilty in accord with the instructions given.
Id. , 8th Dist. Cuyahoga No. 03853, 2010-Ohio-4349.
at ¶ 68.
Although Petitioner asserts the Fifth District’s decision violates § 2254(d)(2), he
makes no argument as to how the summary of his testimony is inaccurate or what
additional facts appear in the record that would make the Fifth District’s decision
unreasonable in light of the evidence. The jury was presented with two seriously
inconsistent statements of Petitioner about what happened. They obviously believed the
tampered with the evidencSet)e ivnesntseoand vo.f U tnhiet eadc cSotuantets constructed to be told aMt atrtihaelw. s v.
United SPteattiteisoner relies on Cupp v. Naugh,t e1n62 U. S. 313 (1896);
, 485 U.S. 58 (1988); and , 414 U.S. 141 (1973); for the
proposition that refusal to give the proposed accident instruction violated his
constitutional right to present a complete defense. The Court agrees with and adopts the
Magistrate Judge’s interpretation of those cases.
As to the Third Ground for Relief, the Report and Supplemental Report are adopted
aVnI.d PetCiteirotniefirc’sa tOeb ojef cAtipopnesa alraeb oilvietyrr uled.
In the original Report, the Magistrate Judge noted that reasonable jurists, including
several from the Sixth Circuit, had disagreed on the constitutionality of 28 U.S.C. §
2254(d)(1) as related to separation of powers doctrine and he recommended granting a
certificate of appealability on that issuCeo.l l iTnhs ev .W Shaordoepn’s Objections cited a decision of the
Sixth Circuit directly to the contrary, , No. 18-3766,C 2o0ll1in8sU.S. App. LEXIS
37673, at *7 (6th Cir. Dec. 17, 2018). The Magistrate Judge found directly in point
because Collins sought a certificate of appealability from the Sixth Circuit on the same
constitutional grounds raised here and the Sixth Circuit denied the cIdertificate, holding
Collins’ claim did not “deserCvoel leinnscouragement to proceed further.” .
Having failed to cite to the Court despite being counsel of record in that case,
Petitioner’s counsel now complains that it is an unpublished decision which should have no
precedential Cvoallluines. (Objections, ECF No. 19, PageID 1261). The Court disagrees. Although
the Order in is unpublished, it is a very recent Sixth Circuit decision and directly on
5
point. Circuit court orders granting or denying certificates of appealability are rarely
published and Petitioner has cited no decisions, published or unpublished, granting a
certificate on any of his claims of unconstitutionality. Of course, the Sixth Circuit may have
changed its mind on this question. Petitioner will have an opportunity to test that
proposition by seeking aC coellritnifsicate directly from that court. But on the best precent
available to this Court – – Petitioner’s claims do not merit encouragement to
VprIoI.c eedC ofunrctlhuesri.o n
de novo
Based on a review of those portions of the Report and Supplemental Report
to which substantial objection has been made, the Court adopts the Report and
Supplemental Report and overrules Petitioner’s Objections. Because reasonable jurists
would not disagree with this conclusion, Petitioner is denied a certificate of appealability
and the Court certifies to the Sixth Circuiitn t fhoartm aan yp aaupppeerails would be objectively frivolous
and should not be permitted to proceed .
_/s/ Sarah D. Morrison________________
Sarah D. Morrison
United States District Judge
5
Petitioner notes he did not seek a certificate in that case on a Privileges or
Immunities (Citizenship) or Thirteenth Amendment claim. But as noted above, those