Stites v. Dayton Correctional Institute

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

ANGELA M. STITES,

Petitioner, : Case No. 1:21-cv-224

-vs - District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

SHELBIE SMITH, Warden,

Dayton Correctional Institution1,

:

Respondent.

REPORT AND RECOMMENDATIONS

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

2254, is before the Court for decision on the merits. The relevant pleadings are the Petition (ECF

No. 1), the State Court Record (ECF No. 9), the Warden’s Return of Writ (ECF No. 10), and

Petitioner’s Reply (ECF No. 11).

The Magistrate Judge reference in the case has recently been transferred to the undersigned

to help balance the Magistrate Judge workload in this judicial district (ECF No. 12).

Litigation History

On June 25, 2018, a Hamilton County Grand Jury issued a forty-one count indictment

1 The Attorney General reports that Shelbie Smith as Warden of the Dayton Correctional Institution has custody of

the Petitioner. The caption is therefore ordered amended as set forth here.

charging Stites and Herman See with sexual battery in violation of Ohio Revised Code §

2907.03(A), complicity to sexual battery in violation of Ohio Revised Code § 2923.03(A)(2),

endangering children in violation of Ohio Revised Code § 2919.22(A), rape in violation of Ohio

Revised Code § 2907.02(A)(1)(b), complicity to rape in violation of Ohio Revised Code §

2923.03(A)(2), including a sexual motivation specification and gross sexual imposition in

violation of Ohio Revised Code § 2907.05(A)(Indictment, State Court Record, ECF No. 9,

Exhibit 1). On Petitioner’s motion two counts of endangering children were dismissed as

barred by the statute of limitations. Id. at Ex. 3. The remaining charges were tried to a

jury which found Petitioner guilty on all charges except Count 36, Complicity to Rape,

and Count 40, Complicity to Sexual Battery. On March 29, 2019, Stites was ordered to

serve an aggregate term of eighty-six years incarceration. Id. at Ex. 6.2

Represented by new counsel, Stites appealed to the Ohio First District Court of

Appeals (Notice of Appeal, State Court Record ECF No. 9, Ex. 7). That court vacated the

conviction on Count 27, reducing the sentence to seventy-six years, but otherwise

affirmed. State v. Stites, 2020-Ohio-4281 (Ohio App. 1st Dist. Sept. 2, 2020). Still represented

by her appellate counsel, Stites sought review by the Supreme Court of Ohio which declined to

exercise appellate jurisdiction. State v. Stites, 160 Ohio St. 3d 1509 (2020).

On March 15, 20213, Stites filed her Petition in this Court, pleading one ground for relief:

Ground One: The introduction of the Grand Jury witness list and

nature of witness testimony by the State in its case in chief without

notice to the Defendant violates a defendant’s right to due process

and a fair trial.

2 See was also convicted and sentenced to four consecutive life sentences plus 221 years. State v. See, 2020-Ohio-

2923 ¶ 1 (Ohio App. 1st Dist. May 13, 2020).

3 Although the Petition was not received and docketed until March 31, 2021, Stites deposited it in the prison mail

system on March 15, 2021 (See PageID 9). The earlier date counts as the filing date. Houston v. Lack, 487 U.S. 266

(1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Towns v. United States, 190 F.3d 468 (6th Cir. 1999).

Supporting Facts: The evidence against Angela was weak but for

the improperly introduced Grand Jury testimony. The 2013 and

2018 Grand Jury content tipped the scales against Angela. If the

State is permitted to ambush the defense with evidence that is not

obtainable through the discovery process, the constitutional rights

of criminal defendants to a fair trial and due process in the State of

Ohio are at jeopardy.

(Petition, ECF No. 1, PageID 7).

Analysis

Ground One: Introduction of Testimony Related to Grand Jury Proceedings

In her sole ground for relief, Petitioner complains that she was denied due process of law

and a fair trial when the State was permitted to introduce testimony regarding grand jury

proceedings in 20124 and 2018 related to sexual abuse allegations in her family5 without giving

the defense prior notice of the content of that testimony and its intention to introduce it in evidence.

Stites presented a grand jury testimony claim to the First District Court of Appeals as her

Sixth Assignment of Error which read: “The trial court abused its discretion when it allowed the

introduction of testimony surrounding the Grand Jury proceedings.” Id. As Respondent argues,

there was no contemporaneous objection to the testimony, so counsel argued the First District

4 In 2012 Herman See was the apparent target of presentation to the grand jury, but he was not indicted then.

5 The First District described the blended family involved as follows: “Stites developed a relationship with Herman

See in 1998. At the time the two started their relationship, Stites had a daughter from a previous relationship, E.M.,

and See had two children from his previous relationships, a son, Robert See, and a daughter, S.J.S. Stites and See then

had biological children together: two girls, K.S. and W.S., and a boy. The blended family lived together in Colerain

Township and Norwood until November of 2017 when the Norwood Police Department initiated an investigation into

allegations that See had been raping his daughter, K.S. K.S.’s allegations led to a broader investigation of sexual abuse

by See and Stites as well. As a result of the investigation, the state indicted See and Stites [in this case] with a litany

of charges regarding not only K.S., but also K.S.’s two, older half-sisters, E.M. and S.J.S. The matter proceeded to a

jury trial in which See and Stites were tried together.” Stites, supra, ¶ 2.

could consider it as a matter of plain error under Ohio R. Crim. P. 52. Id. The First District applied

a plain error standard of review. Stites, supra, at ¶¶ 50-51.

Appellate counsel argued the claim entirely in terms of Ohio R. Crim. P. 6(E) which

protects the secrecy of grand jury proceedings. Id. at PageID 78-80. The argument seems to be

that Stites was entitled to rely on that secrecy unless the prosecutor told her trial attorney in

advance that he was going to elicit testimony about the grand jury proceedings in this case and in

2012 when Stites’ daughter, E.M., accused Herman See of sexual abuse.

Had Angela's counsel known the state would be introducing the

grand jury deliberations throughout this trial, without the benefit of

the transcript because it is virtually impossible for a defendant to

obtain a Grand Jury transcript, there may have been a request to

sever the indictment rather than try the two cases together. Defense

counsel was not provided with the evidence prior to trial. The lack

of notice prejudiced Angela's counsel's trial strategy.

There was no reason to admit this testimony, but to again drive it

home for the jury that the state, its witnesses, and even a group of

citizens "just like the jury" believed the credibility of the victims.

The references amounted to more than just a slip of the tongue, it

permeated the entire trial and amounted to improper bolstering of

witness testimony, introduced other acts under 404(8) without

notice, was in violation of Criminal Rule 16, and ultimately in

violation of Ms. Stites' right to due process and a fair trial. U.S.

Const., 5th and 14th Amendments.

Id. at PageID 80.

The First District Court of Appeals decided this Sixth Assignment of Error as follows:

{¶43} In Stites's sixth assignment of error, she argues that the trial

court abused its discretion in admitting evidence regarding E.M.’s

2012 grand-jury proceeding, and in admitting evidence regarding

the underlying grand-jury proceeding.

{¶44} Crim.R. 6(E) governs grand-jury secrecy, and it provides:

Deliberations of the grand jury and the vote of any grand

juror shall not be disclosed. Disclosure of other matters

occurring before the grand jury may be made to the

prosecuting attorney for use in the performance of his

duties only pursuant to this rule. A grand juror, prosecuting

attorney, interpreter, court reporter, or typist who

transcribes recorded testimony, may disclose other matters

occurring before the grand jury, only when so directed by

the court preliminary to or in connection with a judicial

proceeding, or when permitted by the court at the request

of the defendant upon a showing that grounds may exist for

a motion to dismiss the indictment because of matters

occurring before the grand jury. No grand juror, officer of

the court, or other person shall disclose that an indictment

has been found against a person before such indictment is

filed and the case docketed. The court may direct that an

indictment shall be kept secret until the defendant is in

custody or has been released pursuant to Rule 46. In that

event the clerk shall seal the indictment, the indictment

shall not be docketed by name until after the apprehension

of the accused, and no person shall disclose the finding of

the indictment except when necessary for the issuance of a

warrant or summons. No obligation of secrecy may be

imposed upon any person except in accordance with this

rule.

{¶45} Stites argues that E.M.’s testimony violated Crim.R. 6(E).

E.M. testified regarding how she had disclosed See's abuse in 2012,

leading to a police investigation. E.M. did not testify in front of the

2012 grand jury. E.M. was told that the grand jury refused to issue

an indictment against See because of “a lack of physical evidence.”

{¶46} Crim.R. 6(E) does not impose any secrecy obligations on a

victim in a grand-jury proceeding, except to the extent that it

provides that no person can disclose that an indictment has been

found until the indictment is filed and a case docketed. The rule also

provides: “No obligation of secrecy may be imposed upon any

person except in accordance with this rule.” Therefore, E.M.’s

testimony regarding the 2012 grand-jury proceeding, which had

occurred years prior and did not result in an indictment, does not

violate Crim.R. 6(E).

{¶47} Stites also argues that the state improperly questioned

Norwood Police Officer Kilby and Stites regarding the 2012 grand-

jury proceeding. Officer Kilby testified that he had reviewed the

grand-jury transcript from 2012.

He noted that E.M. did not testify, but that Stites had “testified

against” E.M. When the state cross-examined Stites, Stites admitted

that she had testified at the 2012 grand-jury proceeding, and that her

testimony was the same then as it was at trial.

{¶48} Officer Kilby's testimony that E.M. did not appear in front of

the 2012 grand jury was merely cumulative of E.M.’s testimony. As

to the evidence that Stites testified against E.M., Crim.R. 6(E) does

not protect the grand-jury testimony of defendants or codefendants

from later disclosure. See Crim.R. 16(J)(2); State v. Greer, 66 Ohio

St.2d 139, 150, 420 N.E.2d 982 (1981). Moreover, the record

indicates that the state notified Stites of its intent to use the 2012

grand-jury testimony at trial. Thus, Crim.R. 6(E) does not protect

Stites's 2012 grand-jury testimony from disclosure at trial.

{¶49} Stites further argues that the admission of evidence related to

the grand-jury proceeding in the underlying case [to wit, this case]

violated Crim.R. 6(E). Stites argues that the trial court erred in

allowing Officer Kilby to testify in general terms as to the grand-

jury process, and to list the witnesses who testified before the grand

jury. Stites argues that Officer Kilby should not have been able to

list a grand-jury witness whom the state did not call as a witness at

trial.

{¶50} It is not clear that Crim.R. 6(E) bars Officer Kilby's

discussion of the grand-jury process, or that Crim.R. 6(E) bars

Officer Kilby from listing the names of witnesses who testified at

grand jury. Moreover, Officer Kilby did not disclose the substance

of any of the witnesses’ testimony. Therefore, Stites has not

demonstrated that Officer Kilby's testimony related to the

underlying grand-jury proceeding amounted to plain error. See

Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002) (a party claiming plain error under Crim.R. 52(B) must

show that an obvious error occurred, which affected the outcome of

the trial).

{¶51} Because the admission of evidence related to the 2012 and

underlying grand-jury proceedings did not violate Crim.R. 6(E) and

did not otherwise amount to plain error, we overrule Stites's sixth

assignment of error.

Stites, supra.

Procedural Default by Failure to Object

Respondent asserts Stites’s sole Ground for Relief is barred by her failure to object to the

testimony at trial. Indeed the Warden cites her admission in the brief on appeal that review could

only be for plain error because of the lack of a contemporaneous objection (Return, ECF No. 10,

citing Appellant’s Brief, State Court Record, ECF No. 9, Ex. 8, PageID 78).

In her Reply, Stites acknowledges the lack of contemporaneous objection6 and the consequent

limitation of the Court of Appeals to plain error review (ECF No. 11, PageID 212-14).

The procedural default doctrine in habeas corpus is described by the Supreme Court as

follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,

6 Except for an overruled objection to Officer Kilby’s general description of the grand jury process. It does not appear

that Stites appealed this particular trial court ruling and its relevance in explaining the background of other testimony

about the two grand jury proceedings seems evident.

456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims

that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),

citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).

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).

Ohio has a relevant procedural rule which requires a contemporaneous objection to trial

court error so that correction can be made before it infects a jury verdict. 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 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).

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).

Once a respondent has satisfied the Maupin criteria, a habeas petitioner can avoid procedural

default only by showing excusing cause and prejudice. Stites makes no argument purporting to excuse

her trial attorney’s failure to make a contemporaneous objection to the grand jury testimony.

Accordingly the Magistrate Judge concludes Stites’s sole ground for relief is procedurally defaulted

and should be dismissed with prejudice on that basis.

Procedural Default by Lack of Fair Presentation as a Constitutional Claim

Respondent also asserts Stites’s sole Ground for Relief is barred by her procedural default

in failing to fairly present it to the Ohio courts as a constitutional claim (Return, ECF No. 10,

PageID 203, n.3). This procedural default argument has merit. In order to preserve a constitutional

claim for consideration in habeas, a defendant must first fairly present that claim to the state courts.

Stites responds “Petitioner disagrees, as she clearly presented her claim as a violation of

due process and a fair trial per the 5th and 14th Amendment[s] to the U.S. Constitution on page 14 of

her direct appeal and on page 5 of her appeal to the Ohio Supreme Court.” (Reply, ECF No. 11, PageID

211).

Court of Appeals Presentation

In the body of her Brief on Appeal, Stites’s counsel wrote

SIXTH ASSIGNMENT OF ERROR

The trial court abused its discretion when it allowed the introduction

of testimony surrounding the Grand Jury proceedings.

ISSUE FOR REVIEW

Whether the state's repeated introduction of the Grand Jury process

violated Ms. Stites' right to a fair trial and due process.

(State Court Record, ECF No. 9, PageID 78). The only other reference to the United States

Constitution is at the very end of the argument on Assignment of Error Six where counsel claims

that admission of the grand jury testimony resulted “ultimately in violation of Ms. Stites' right to

due process and a fair trial. U.S. Const., 5th and 14th Amendments.” Id. at PageID 80. Stites cited

no federal case law at all in support of her Sixth Assignment. Id. at PageID 68.

Supreme Court of Ohio Presentation

The Rules of Practice of the Supreme Court of Ohio require as part of an appellant’s

memorandum in support of jurisdiction. “A thorough explanation of why a substantial

constitutional question is involved, why the case is of public or great general interest, or, in a

felony case, why leave to appeal should be granted.” S.Ct.R.Prac. 7.02(C)(2). To comply with this

requirement, Stites’s appellate counsel wrote:

To obtain the identity of the witnesses and the nature of the

testimony presented during the grand jury process would be the

dream of any criminal defense counsel. To date, attempts to obtain

the grand jury testimony of a witness were denied unless an

inconsistent statement was made by that same witness during trial.

Without the benefit of the transcript in advance, defense counsel is

still left unable to determine if the witness has testified

inconsistently with his testimony before the Grand Jury.

Establishing a particularized need for the transcript proves no easier

for defense counsel. A review of the case law in Ohio outlines

unsuccessful attempt after unsuccessful attempt by defense counsel

to obtain the Grand Jury transcript prior to trial.

However, the First District Court of Appeals held that the Grand

Jury witness list is not protected by Criminal Rule 6(E). The

prosecutor's disclosure of the identity of witnesses and the nature of

testimony presented at the Grand Jury during its case in chief is

permissible under the rule. There is simply no case law involving

the existence of a prosecutor's attempts to introduce Grand Jury

matters during its case in chief because the practice does not exist

but for this case.

The Court's holding that the state is permitted to introduce Grand

Jury matters at trial without notice to defense counsel affects every

criminal defendant presumed innocent in the State of Ohio. The

discovery process was developed to ensure due process and a fair

trial under the Ohio Constitution. The Court's decision that the

identity of witnesses ꞏwho testify before the Grand Jury are not

secret permits every defendant to obtain the witness list of the Grand

Jury. Ms. Stites now urges this Court to accept jurisdiction over this

case to determine whether the state is permitted to identify witnesses

and testimony at a Grand Jury proceeding without disclosure

through the discovery process.

(Memorandum in Support of Jurisdiction, State Court Record ECF No. 9, Ex. 13, PageID 147).

Stites’s sole Proposition of Law presented to the Ohio Supreme Court was “The

introduction of the Grand Jury witness list and nature of witness testimony by the state in its case

in chief without notice to the defendant violates a defendant's right to due process and a fair trial.”

Id. at PageID 151. Stites’s sole citation to federal law in her Memorandum was to United States

v. Calandra, 414 U.S. 338 (1974) for the proposition that the grand jury's modern-day role

functions "as a protector of citizens against arbitrary and oppressive governmental action." 414

U.S. at 348.

Standard for Fair Presentation

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must

be "fairly presented" to the state courts in a way which provides them with an opportunity to

remedy the asserted constitutional violation, including presenting both the legal and factual basis

of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d

1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by

Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.

1991).

A claim is fairly presented if the petitioner

(1) relied upon federal cases employing constitutional analysis; (2)

relied upon state cases employing federal constitutional analysis; (3)

phrased the claim in terms of constitutional law or in terms

sufficiently particular to allege a denial of a specific constitutional

right; or (4) alleged facts well within the mainstream of

constitutional law.

Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017).

Importantly for this case, the Sixth Circuit has repeatedly held that merely using talismanic

constitutional phrases like “fair trial” or “due process of law” does not constitute raising a federal

constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811

F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing

Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere use of the words “due process

and a fair trial by an impartial jury” are insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6th

Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)(same). “A lawyer need not

develop a constitutional argument at length, but he must make one; the words ‘due process’ are

not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).

Application

It is clear that the First District did not believe it was confronted with a constitutional issue.

It decided the Assignment of Error as it had been presented, that is, entirely in terms of what Crim.

R. 6(E) prohibits.

The Magistrate Judge concludes Stites did not fairly present her sole Ground for Relief to

either the First District or the Ohio Supreme Court. She presented none of the materials found

sufficient in Hand: she cited no cases, state or federal, which employed any constitutional analysis.

Her constitutional claims, such as they are, are as generalized as it is possible to be and allegations

of fact are not within the mainstream of constitutional law.

The Petition should be dismissed as procedurally defaulted because Stites’s claim was not

fairly presented to the Ohio courts as a constitutional claim.

Merits

In the alternative, Stites’s claim is without merit.

Because Stites procedurally defaulted by not fairly presenting her constitutional claim to

the Ohio courts, this habeas court reviews the claim without the deference prescribed by 28 U.S.C.

§ 2254(d)(1). Instead, if we reach the merits, we consider de novo whether she is “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Brown

v. Allen, 344 U.S. 443 (1953).

Stites’s claim is that she was constitutionally entitled to be told by the State prior to trial

that it intended to introduce testimony regarding grand jury proceedings, both in this case and in a

2012 grand jury that considered allegations by Petitioner’s daughter E.M. against Herman See.

Stites is not making a claim under Brady v. Maryland, 373 U.S. 83 (1963), where the

Supreme Court held the State has a duty to produce exculpatory evidence in a criminal case. Stites

does not claim the grand jury testimony was exculpatory, but that it was so inculpatory that without

it the case against her was weak (Appellant’s Brief, State Court Record, ECF No. 9, Ex. 8, PageID

148). Rather, her

argument is that without disclosure of the testimony given by

witnesses to defense counsel, defense counsel was unable to plan an

adequate trial strategy, which may have included severing the trial.

If the state is permitted to ambush the defense with evidence that is

not obtainable through the discovery process, the constitutional

rights of criminal defendants to a fair trial and due process in the

State of Ohio are at jeopardy.

(Reply, ECF No. 11, PageID 215). Note that this is not just a claim to identify witnesses, but to

actually disclose what their testimony will be. Petitioner admits that the State’s discovery response

listed the "2012 Grand Jury testimony of Angela Stites" Id. at PageID 212. Perhaps Stites’s claim is

that she did not remember what she had testified to in 2012 and was constitutionally entitled to a

transcript to jog her memory. She also seems to be claiming a right to know pre-trial the content of the

testimony of other witnesses.

“As a general proposition, ‘[t]here is no general constitutional right to discovery in a

criminal case, and Brady did not create one....” United States v. Mullins, 22 F.3d 1365, 1371 (6th

Cir. 1994), quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In particular in Weatherford

the Supreme Court rejected the proposition that the State must reveal the names of all persons who

will testify adversely. Id.

Throughout her pleadings, both through counsel and pro se, Stites has emphasized how

useful it would have been to know to what the adverse witnesses would testify. But she has never

cited any authority that the Constitution requires production of that information. Indeed, that

would be so profound a change in our criminal justice system that her counsel confessed to the

Ohio Supreme Court that “[t]o obtain the identity of the witnesses and the nature of the testimony

presented during the grand jury process would be the dream of any criminal defense counsel.”

(Memorandum in Support of Jurisdiction, State Court Record, ECF No. 9, PageID 147). But in

the same paragraph she admits “[a] review of the case law in Ohio outlines unsuccessful attempt

after unsuccessful attempt by defense counsel to obtain the Grand Jury transcript prior to trial.”

Nor is there any federal case law known to the Magistrate Judge which suggests there is a

constitutional right to such a transcript.

No doubt the information would have been useful to defense counsel. Stites suggests it

could have informed a decision about whether to seek severance. But in a case where one’s

paramour faces multiple life sentences and one is charged with complicity, the decision to seek

severance seems obvious. Why it did not happen here is unknown to the Court.

With the exception of Brady and its progeny, the federal courts have not recognized any

constitutional right to discovery in criminal cases. Stites’s claim to such a right thus fails on the

merits.

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.

December 1, 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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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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