The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
IAN A. CULTRONA,
Petitioner, : Case No. 2:22-cv-1965
- vs - Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
WARDEN, Correctional Reception Center,
:
Respondent.
REPORT AND RECOMMENDATION
This habeas corpus case, brought by Petitioner pro se under 28 U.S.C. § 2254, is before
the Court for initial review pursuant to Rule 4 of the Rules Governing § 2254 Cases. Under Rule
4, the Clerk must promptly forward the petition to a judge under the court’s assignment procedure,
and the judge must promptly examine it. If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.
The Petition avers that Cultrona was convicted in the Common Pleas Court of Tuscarawas
County on April 3, 2019, of aggravated robbery and three counts of felonious assault, each with a
firearm specification, and thereafter sentenced to eleven years incarceration. He appealed to the
Ohio Fifth District Court of Appeals where the conviction was affirmed. State v. Cultrona, 2020-
Ohio-3250 (5th Dist. Jun. 5, 2020). Raising the same issues he had raised on direct appeal, Cultrona
appealed to the Supreme Court of Ohio, which declined to accept jurisdiction. State v. Cultrona,
2020-Ohio-3250 (2020). Cultrona also reports that on August 31, 2020, he filed an Application
for Delayed Reopening of his Direct Appeal under Ohio R. App. P. 26(B) in the Fifth District
Court of Appeals, raising the following issues:
(1) The trial court abused its discretion in permitting irrelevant
prejudicial acts evidence and inferences in violation of Evid. Rule
404(B);
(2) Trial counsel was ineffective because he failed to properly
investigate the case, failed to effectively cross examine key
witnesses, and failed to introduce exculpatory evidence.
The Fifth District denied relief on October 8, 2020, and the Petition does not indicate Cultrona
appealed further to the Supreme Court of Ohio.
Petitioner pleads the following Grounds for Relief:
Ground One: The trial court committed an error when it permitted
testimony that violated discovery rules and Petitioner’s
constitutional right to a fair trial.
Supporting Facts: Sergeant Hamilton testified a second time about
his newly-created cell phone map.
Ground Two: The trial court committed error when it overruled
defendant’s motion in limine and gave the jury an instruction on
“flight.”
Supporting Facts: There was a two-month time span between his
crimes and his flight. The matter was a bond violation rather than a
flight from justice and did not warrant a flight instruction.
Ground Three: The trial court abused its discretion in permitting
irrelevant prejudicial prior acts evidence and inferences in violation
of Evid. R. 404(B).
Supporting Facts: Appellate counsel was ineffective for failing to
raise an ineffective assistance of trial counsel argument citing trial
counsel’s failure to present exculpatory evidence and effectively
cross-examine witnesses.
Ground Four: Trial counsel was ineffective.
Supporting Facts: Trial counsel filed to properly investigate the
case, failed to effectively cross-examine key witness, and failed to
introduce exculpatory evidence.
(Petition, ECF No. 1).
Analysis
Ground One: Denial of Fair Trial: Permitting Violation of Discovery Rules
In his First Ground for Relief Cultrona asserts he was denied a fair trial because the trial
judge allowed violation of the discovery rules by permitting Sergeant Hamilton to take the stand a
second time to testify about his revised cell-phone location map.
Cultrona presented this claim to the Fifth District Court of Appeals which overruled this
assignment of error. It noted that Cultrona’s counsel had accused Sergeant Hamilton of creating
a misleading cell-phone location map by only plotting calls between Cultrona and a co-defendant,
Lambes, and decided the claim as follows:
{¶ 11} Also before trial, counsel for Cultrona filed a motion in
limine objecting to the admission of a map created by Tuscarawas
County Sheriff's Office Detective Sergeant Hamilton. Hamilton
created the map from Cultrona's Verizon Wireless cell phone
records, and showed where Cultrona was located when he made
phone calls to Lambes on the day in question. Hamilton created the
map using an FBI program called Castviz, a program on which he
had received training. Counsel argued in part that Hamilton was not
qualified to create such a map. Following a hearing on the matter,
the trial court overruled Cultrona's motion.
{¶ 12} Then, during trial, through the testimony of Hamilton, the
state presented the Verizon Wireless cell phone records of Cultrona
and Lambes and the map created by Hamilton. Each aided in putting
Cultrona at the scene of the robbery.
{¶ 13} On cross-examination, counsel for Cultrona suggested
Hamilton selectively chose which records to map, limiting his map
to communications between Cultrona and Lambes, and had
excluded exculpatory records from his map. On redirect, Hamilton
denied that accusation, and testified he had simply limited his
analysis to the two suspects in the robbery.
{¶ 14} Following a weekend break in the trial, at the request of the
state, Hamilton produced another map which included all of
Cultrona's call data from the day in question. The new map
demonstrated that nothing exculpatory had been omitted from the
first map. The state intended to recall Hamilton to the stand to
discuss the new map and counsel for Cultrona objected to the same
on the basis that the map was “prepared during the middle of trial,”
and that the information was “somewhat redundant.” Transcript of
Trial (T) 813-814. The court heard arguments on the matter and
found Cultrona would suffer no prejudice. The court overruled the
objection and permitted the state to recall Hamilton and present the
new map.
State v. Cultrona, supra, at *2.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-
94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
The question of whether a prosecutor has violated the Ohio criminal discovery rules is a
question of Ohio law on which this Court is bound by the decisions of the Ohio courts. Bradshaw
v. Richey, 546 U.S. 74 (2005). But whether a criminal defendant received a constitutionally fair
trial is a federal constitutional question on which we must defer to the state courts unless their
decision is contrary to or an objectively unreasonable application of Supreme Court precedent.
This decision of the Fifth District is neither. Sergeant Hamilton’s first cell phone map was
criticized on cross examination for omitting certain data points. There is nothing unfair about his
revising his map to include those data points to respond to Cultrona’s objections. Cultrona’s
counsel was free to cross-examine him again and point out any ways in which his initial criticism
had not been met. Ground One should be dismissed on the merits.
Ground Two: Erroneous Instruction on “Flight”
In his Second Ground for Relief, Cultrona argues the trial court erred in instructing the jury
that it could draw an inference of guilt from Cultrona’s having fled the jurisdiction while out on
bond. He presented this claim to the Fifth District on direct appeal and that court decided the issue
as follows:
{¶ 31} In his second assignment of error, Cultrona argues the trial
court abused its discretion when it gave the jury a flight instruction.
Cultrona argues because there was a two-month time span between
his crimes and his flight, the matter was a bond violation rather than
a flight from justice and did not warrant a flight instruction. We
disagree.
{¶ 32} The giving of jury instructions is within the sound discretion
of the trial court and will not be disturbed on appeal absent an abuse
of discretion. State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462
(1993). In order to find an abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140
(1993). Jury instructions must be reviewed as a whole. State v.
Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988).
{¶ 33} The Ohio Supreme Court has held that flight from justice,
and its analogous conduct, may be indicative of consciousness of
guilt. State v. Eaton, 19 Ohio St.2d 145, 146, 249 N.E.2d 897, (1969)
paragraph six of the syllabus, vacated in part on other grounds
(1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750. In Eaton, the
Court quoted 2 Wigmore on Evidence (3 Ed.), 111, Section 276:
Flight from justice, and its analogous conduct, have always
been indicative of a consciousness of guilt. * * *
It is today universally conceded that the fact of an accused's
flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related
conduct, are admissible as evidence of consciousness of
guilt, and thus of guilt itself.
{¶ 34} Eaton at 160.
{¶ 35} In State v. Hand, 107 Ohio St.3d, 378, the Ohio Supreme
Court found “* * * admissibility of evidence of flight does not
depend upon how much time passes between the offense and the
defendant's flight. See State v. Alexander (Feb. 26, 1987), Cuyahoga
App. No. 51784, 1987 WL 7079, *2. Indeed, flight on the eve of
trial can carry the same inference of guilt as flight from the scene.
Id.”
{¶ 36} While Cultrona acknowledges Hand, he attempts to
distinguish that matter from his own by pointing out that the
defendant in Hand was charged with escape, while he was not. This
is a distinction without a difference. Simply because Cultrona was
not charged with escape does not make Hand any less applicable.
“[F]light may be proven where it occurs after any event which would
tend to spark a sharp impulse of fear of prosecution or conviction in
a guilty mind.” State v. Jeffries, 182 Ohio App.3d 459, 477, 913
N.E.2d 493, (11th Dist. 2009) quoting United States v. Dillon, 870
F.2d, 1125, 1128 (C.A. 6, 1989).
*5 {¶ 37} Under the circumstances presented here, we conclude the
trial court did not abuse its discretion in adopting the state's flight
instruction.
State v. Cultrona, supra, at * 4-5.
Cultrona’s Second Ground for Relief does not present a claim on which this habeas corpus
court can grant relief. In the first place, he does not associate the asserted error with any
constitutional claim. We are limited to granting habeas relief for violations of the United States
Constitution. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939
(1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations
on state law questions. In conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160
(1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J.
concurring).
Second, Cultrona did not present this claim to the Fifth District as a constitutional claim and
it is therefore procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Ground Two should therefore be dismissed.
Ground Three: Prior Bad Acts Evidence
In his Third Ground for Relief, Cultrona claims the trial court abused its discretion in
allowing prior bad acts evidence in violation of Ohio R. Evid. 404(B). Ground Three should be
dismissed for the following reasons:
First of all, it is not a violation of the Constitution for a state trial judge to abuse his or her
discretion. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Second, the Supreme Court has never held presentation of prior bad acts evidence violates
the Constitution. “There is no clearly established Supreme Court precedent which holds that a
state violates due process by permitting propensity evidence in the form of other bad acts
evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court
refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991).
Third, this ground for relief is procedurally defaulted because Cultrona never presented it
to the Fifth District Court of Appeals on direct appeal.
For each of these three independent reasons, Ground Three should be dismissed.
Ground Four: Ineffective Assistance of Trial Counsel
In his Fourth Ground for Relief, Cultrona contends he received ineffective assistance of
trial counsel. The Sixth Amendment to the United States Constitution guarantees that every
criminal defendant will receive the effective assistance of counsel in his or her defense. Strickland
v. Washington, 466 U.S. 668 (1984). The governing standard for ineffective assistance of counsel
is found in Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held: “The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,
466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.
86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
However, the Petition is completely conclusory in attempting to plead Ground Four. For
example, Cultrona fails to plead what other facts defense counsel would have uncovered if he had
properly investigated the case. What additional questions should he have asked in cross-
examination? What exculpatory evidence was available that was not introduced? None of this is
pleaded.
Ground Four is also procedurally defaulted. When a claim of constitutional violation such
as ineffective assistance of trial counsel required proof outside the trial court record, Ohio provides
that a defendant may file a petition for post-conviction relief under Ohio Revised Code § 2953.21
which allow introduction of evidence outside the trial court record. Cultrona’s Petition does not
indicate he ever filed such a petition for post-conviction relief and the time within which he could
done so has now expired.
Ground Four should therefore be dismissed for failure to plead a claim and as procedurally
defaulted.
Conclusion
Based on the foregoing analysis, it is respectfully recommended 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.
April 20, 2022.
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 recetved. 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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