The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GASUMU KAMARA,
Petitioner, : Case No. 2:21-cv-2029
- vs - Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
WARDEN,
London Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATION
This habeas corpus case, brought pro se by Petitioner Gasumu Kamara, is before the Court
for decision on the merits. Relevant pleadings are the Petition (ECF No. 1), the [amended] State
Court Record (ECF No. 27), the [amended] Return of Writ (ECF No. 28), and Petitioner’s Reply
(ECF No. 11). On Petitioner’s motion, proceedings were stayed to permit exhaustion of his
delayed appeal in the Ohio courts (ECF No. 17). After the stay was dissolved, Respondent was
ordered to file an amended return of writ “responding to Petitioner's eleven grounds for relief as
set forth in the Decision and Order of September 17, 2021 (ECF No. 17, PageID 939-40).” (ECF
No. 26). Respondent did so (ECF Nos. 27, 28). However, despite receiving notice and an
extension of time to do so, Petitioner has never filed an amended reply and his time to do so has
expired.
Litigation History
Kamara was indicted on July 2, 2018, by the Union County Grand Jury on seven counts: (1)
possession of cocaine in violation of Ohio Revised Code § 2925.11(A), (C)(4)(e); (2) trafficking in
cocaine in violation of Ohio Revised Code § 2925.03(A)(2); (3) trafficking in cocaine in violation of
Ohio Revised Code § 2925.03(A)(2), (C)(4)(f); (4) tampering with evidence in violation of Ohio
Revised Code § 2921.12(A)(1), (B); (5) obstructing official business in violation of Ohio Revised Code
§ 2921.31(A), (B); and (6) and (7) identify fraud in violation of Ohio Revised Code § 2913.49(B)(1),
(I)(2) and Ohio Revised Code § 2913.49(B)(2), (I)(2), respectively. (Indictment, State Court Record,
ECF No. 27, Ex. 1). On September 7, 2018, a jury convicted Kamara on all counts. Id. at Ex. 6. He
was sentenced to an aggregate term of imprisonment of thirteen years. Id. at Ex. 7.
With the assistance of counsel, Kamara appealed to the Ohio Third District Court of Appeals.
That court affirmed the conviction, but remanded for resentencing upon finding the State’s objection
to merging the drug convictions was well taken. State v. Kamara, 2019-Ohio-5385 (Ohio App. 3d
Dist. Dec. 30, 2019). The Supreme Court of Ohio declined jurisdiction over Kamara’s appeal. State
v. Kamara, 158 Ohio St. 3d 1467 (2020).
Upon remand, Kamara was re-sentenced to an aggregate fifteen years of incarceration (State
Court Record, ECF No. 27, Ex. 17). The Third District affirmed. State v. Kamara, Ohio App. 3d Dist.
(Nov.22, 2021)(Slip opinion at State Court Record ECF No. 27, Ex. 22). Kamara did not appeal to the
Supreme Court of Ohio.
Kamara pleads the following grounds for relief:
Ground One: Appellant’s right to a fair trial was violated by the
trial court decision to allow the State to use other act bad evidence
violating the Petitioner’s 14th Amendment right to due process.
Supporting Facts: The State introduced other bad act evidence of
the Petitioner being a major drug trafficker. The State introduced
unsubstantiated claims the Petitioner sold drugs for a six-month
period. The difference between pleading and proof can destroy a
defendant’s substantial right to be tried only on the charges
presented in the indictment.
Ground Two: Petitioner’s Due Process rights under the Fifth and
Fourteenth Amendments to the U.S. Constitution were violated as
evidence was insufficient to support Identify [sic] Fraud.
Supporting Facts: The face of the record is insufficient to conclude
the Petitioner used someone’s identity without expressed or implied
consent. Thus the State failed to prove all elements of the crime
charged.
Ground Three: The Third District Appellate Court violated the
Petitioner’s 5th, 6th and Fourteenth Amendment rights to the U.S.
Constitution by violating the Petitioner’s due process, double
jeopardy and jury trial rights.
Supporting Facts: The State Appellate Court ordered the Petitioner
to be re-sentenced because counts two and three did not merge and
are not allied offenses, reversing due to a cross-appeal by the State.
Ground Four: The trial court erred in failing to merge the
tampering with evidence charge with the possession of cocaine
charge. This violates the Double Jeopardy Clause of the United
States Constitution and violates the Fifth and Fourteenth
Amendments to the United States Constitution.
Supporting Facts: The possession of cocaine charge was run
consecutive with the tampering with evidence charge. The facts
dictated merger.
Ground Five Counsel failed to request a merger of the possession
of cocaine charge and the tampering with evidence charge resulting
in ineffective assistance of counsel violating the Petitioner’s Sixth
and Fourteenth Amendment Rights to the United States
Constitution. 1
Supporting Facts: Counsel failed to request the above charges be
merged.
Ground Six: The State failed to prove the petitioner was trafficking
in crack cocaine. The conviction violated the Petitioner’s right to
due process found in the Fifth and Fourteenth Amendments to the
United States Constitution.
Supporting Facts: The State never proved the Petitioner handed his
co-defendant anything.
Ground Seven: The State failed to prove the (Appellant) Petitioner
was trafficking in powder cocaine. This violates the Petitioner’s
right to due process found in the Fifth and Fourteenth Amendments
to the United States Constitution.
Supporting Facts: The State never proved the Petitioner handed his
co-defendant anything.
Ground Eight: The State failed to prove the (Appellant) Petitioner
knowingly possessed cocaine. This violates the Petitioner’s right to
due process found in the Fifth and Fourteenth Amendments to the
United States Constitution.
Supporting Facts: The State failed to prove the Petitioner
knowingly possessed the cocaine from Ms. McWilliams hair.
Ground Nine: The State knowingly and intentionally misled the
jury into believing the Appellant Petition[er] sold crack and powder
cocaine. This violated the Appellant’s right to due process and a fair
trial found in the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.
Supporting Facts: The State repeatedly told the jury the Petitioner
sold cocaine to his co-defendant when the Petitioner never had a
transaction with his co-defendant.
Ground Ten: Trial counsel was ineffective for allowing the State to
put forth untrue assertions thus failing to preserve these errors by
failing to object. This violated the Petitioner’s right to the effective
assistance of counsel and a fair trial also due process. This violated
the Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights to
the United States Constitution.
Supporting Facts: Counsel allowed the State to continually claim
the Petitioner handed and sold his co-defendant the cocaine when he
did nothing of the sort.
Ground Eleven: Counsel was ineffective for allowing an all[-
]white jury pool when the defendant was black being tried for a
crack cocaine charge in a rural county. This violated the
Petitioner[‘s] right to effective assistance of counsel, a fair trial, and
due process found in the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution.
Supporting Facts: These are found in the Ground Eight but for
clarification purposes the Appellant/Petitioner had an all-white jury
pool and he is black. That is not ok and should not have been ok with
counsel.
(ECF No. 17, PageID 939-940).
Analysis
Ground One: Denial of a Fair Trial: Use of Other Bad Act Evidence
In his First Ground for Relief, Kamara asserts he was denied his Fourteenth Amendment
right to a fair trial by the State’s use of prior bad act evidence, in particular that he had been a
major drug dealer for a six-month period (Petition, ECF No. 1, PageID 5). Kamara presented this
claim to the Third District Court of Appeals on his first direct appeal as his First Assignment of
Error as follows: “Kamara's right to a fair trial was denied by the trial court's decision to allow the
State to use other acts evidence that Kamara was a major drug trafficker for a six-month period, in
violation of Evid.R. 403, 404, and the Due Process Clause.” The Third District decided this
Assignment as follows:
{¶9} In his first assignment of error, Kamara argues that the trial
court erred by permitting the State to present “other acts” evidence.
Specifically, Kamara objects to McWilliams's testimony that she
and Kamara had engaged in drug trafficking for a six-month period
prior to Kamara's arrest on the present case. Moreover, Kamara
argues that the State did not provide him sufficient notice that it
intended to use the “other acts” evidence at trial.
{¶10} “ ‘Generally, evidence which tends to show that the accused
has committed other crimes or acts independent of the crime for
which he stands trial is not admissible to prove a defendant's
character or that the defendant acted in conformity therewith.’ ”
State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶
21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO
56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d
763, 770 (3d Dist.1993) and Evid.R. 404. “ ‘ “Evidence of other
crimes, wrongs, or acts’ ” ‘ “may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” ’ ”
Id., quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,
¶ 15, quoting Evid.R. 404(B). See also R.C. 2945.59.
{¶11} “In State v. Williams, the Supreme Court of Ohio set forth the
three-step analysis trial courts should conduct in determining
whether ‘other acts’ evidence is admissible under Evid.R.404(B).”
Wendel at ¶ 22, citing Williams at ¶ 19-20. “‘The first step is to
consider whether the other acts evidence is relevant to making any
fact that is of consequence to the determination of the action more
or less probable than it would be without the evidence.’ ” Id.,
quoting Williams at ¶ 20, citing Evid.R. 401. “‘The next step is to
consider whether evidence of the other crimes, wrongs, or acts is
presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence
is presented for a legitimate purpose, such as those stated in Evid.R.
404(B).’ ” Id., quoting Williams at ¶ 20. “ ‘The third step is to
consider whether the probative value of the other acts evidence is
substantially outweighed by the danger of unfair prejudice.’ ” Id.,
quoting Williams at ¶ 20, citing Evid.R. 403.
{¶12} “Generally, ‘[a] trial court is given broad discretion in
admitting and excluding evidence, including “other bad acts”
evidence.’ ” Id. at ¶ 23, quoting State v. Williams, 7th Dist. Jefferson
No. 11 JE 7, 2013-Ohio-2314, ¶ 7, citing State v. Maurer, 15 Ohio
St.3d 239, 265 (1984). “Thus, a reviewing court will not reverse a
trial court's evidentiary ruling absent an abuse of discretion that
materially prejudices the affected party.” State v. Glenn-Coulverson,
10th Dist. Franklin No. 16AP-265, 2017-Ohio-2671, ¶ 24, citing
State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion
implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶13} We conclude that the trial court did not abuse its discretion
by admitting “other acts” evidence. The “other acts” evidence to
which Kamara objects is evidence of his drug trafficking activities
from 2017 until the date of arrest. At trial, McWilliams testified that
on May 22, 2018, she and her husband met with Kamara and
Kamara's cousin, Tito, in Columbus. (Sept. 7, 2018 Tr. at 102, 104-
107, 111-112). While in Columbus, Kamara handed Tito two
separate plastic bags—one containing powder cocaine and one
containing crack cocaine. (Id. at 105, 116-118). McWilliams
testified that Tito handed the plastic bags to McWilliams who put
the bag of powder cocaine in her hair and the bag of crack cocaine
in her vaginal canal. (Id.). While McWilliams and Kamara were
traveling from Columbus to Bellefontaine, they were stopped by
Sergeant Himes and the instant criminal charges followed
therefrom. (Id. at 101-102, 122).
{¶14} McWilliams further testified that she traveled to Columbus
from Bellefontaine to pick up powder cocaine from Kamara
multiple times a week from November 2017 to May 22, 2018. (Id.
at 118-121, 136-138). McWilliams testified that she had carried
cocaine obtained from Kamara on her person “quite a few times”
while traveling with Kamara to Bellefontaine, where she and her
husband sold the cocaine. (Id.). McWilliams and her husband then
gave the money they received from selling the drugs to Kamara. (Id.
at 141). McWilliams testified that in exchange for carrying the
cocaine for Kamara, she received a portion of the drugs for her
personal use. (Id. at 135-136).
{¶15} Under the first step of the Williams analysis, the evidence that
Kamara had engaged in drug trafficking on other occasions is
relevant in that this evidence makes it more probable that Kamara
trafficked drugs in this case. See State v. Jones, 3d Dist. Logan No.
8-16-18, 2017-Ohio-4351, ¶ 11 (concluding that “evidence that
Jones was convicted of forgery * * * for passing bad checks is
relevant to making it more probable that Jones committed the
forgeries in this case”), citing State v. Regan, 5th Dist. Delaware No.
13 CAA 08 0067, 2014-Ohio-3797, ¶ 19; State v. Ranes, 3d Dist.
Putnam No. 12-15-03, 2016-Ohio-448, ¶ 20 (finding that evidence
of Ranes's past conviction for illegal assembly or possession of
chemicals for the manufacture of drugs “had a tendency to make
more probable that Ranes had criminal intent when purchasing and
collecting items such as pseudoephedrine”). According to
McWilliams's testimony, Kamara's actions on the day of his arrest
were consistent with the other occasions in which Kamara trafficked
drugs. Further, McWilliams's testimony undermines Kamara's
defense that he was unaware that McWilliams was carrying drugs
on her person.
{¶16} Concerning the second step of the Williams analysis,
McWilliams's testimony regarding other instances of drug
trafficking demonstrate intent, knowledge, and plan. See Evid.R.
404(B). According to McWilliams's testimony, her and Kamara's
actions on May 22, 2018 were part of the same scheme that the pair
participated in for approximately six months. Moreover,
McWilliams's testimony that her relationship with Kamara was
predicated on their drug-trafficking activities undermines Kamara's
defense that he was unaware that McWilliams was carrying drugs
on her person. McWilliams's testimony of her and Kamara's drug
scheme also demonstrates the pair's purpose for traveling from
Columbus to Bellefontaine on May 22, 2018. See State v. Moorer,
3d Dist. Seneca No. 13-12-22, 2013-Ohio-650, ¶ 25.
{¶17} Finally, the third and final step of the Williams analysis
involves a consideration of whether the probative value of the
“other-acts” evidence is substantially outweighed by the danger of
unfair prejudice. Wendel, 2016-Ohio-7915, at ¶ 28. Here, the trial
court gave the jury the following limiting instruction before
McWilliams testified to her and Kamara's ongoing drug-trafficking
scheme:
I want to give you an instruction that you may hear
evidence from this point on by this witness that talks about
other bad acts. * * * [T]his is what we call other acts
evidence and there's [sic] rules that allow that evidence to
come in. We do not, however, in this Court or any other
Court in the State convict somebody because of bad
character. So, character isn't at issue here. Character of the
defendant isn't at issue when we're talking about any other
acts that you might hear about from this point on or even
heretofore, if you believe that you've heard something
heretofore that's not directly related to what happened on
this day and at the time.
The testimony isn't being admitted to show the defendant's
character or that he acted in conformity with that character.
It's being admitted to prove other elements of the offense[,]
such as * * * proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident.
* * *
I want you to consider that when you're evaluating the
testimony before the Court by this witness.
(Sept. 7, 2018 Tr. at 113-114).
Thus, McWilliams's testimony that she and Kamara had engaged in
a drug-trafficking scheme for approximately six months “ ‘is not
unduly prejudicial “because the trial court instructed the jury that
this evidence could not be considered to show that [Kamara] acted
in conformity with a character trait.” ’ ” Jones, 2017-Ohio-4351, at
¶ 13, quoting Wendel at ¶ 28, quoting Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, at ¶ 24. (See Sept. 7, 2018 Tr. at 113-114). The
trial court's limiting instruction lessened any prejudicial effect of
McWilliams's testimony that she and Kamara had been engaged in
a drug-trafficking scheme for approximately six months prior to
Kamara's arrest for the instant offenses. As detailed in the discussion
of the first two steps of the Williams analysis, McWilliams's
testimony of her and Kamara's drug activity was relevant to establish
McWilliams's relationship with Kamara and was relevant to
establishing intent, knowledge, and plan. Thus, any prejudicial
effect did not substantially outweigh the probative value of the
evidence. See Regan, 2014-Ohio-3797, at ¶ 19. See also Wendel at
¶ 28, citing Williams at ¶ 24.
State v. Kamara, supra.
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. Kamara presented
his First Assignment of Error as both a federal constitutional claim (fair trial) and an Ohio Evidence
Rules claim. While the Third District analyzed it largely in terms of the Ohio evidence rules, the
fair trial claim was squarely presented and the decision on that claim is entitled to deference unless
it offends Supreme Court precedent.
Kamara presents no argument as to why the Third District’s decision is contrary to or an
objectively unreasonable application of Supreme Court precedent1. Indeed, “[t]here is no clearly
established Supreme Court precedent which holds that a state violates due process by permitting
1 Note that Kamara presents no argument at all with his Petition and has failed to file a reply within the time allowed.
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). Accordingly, Ground One is without merit.
Ground Two: Insufficient Evidence of Identity Fraud
In his Second Ground for Relief, Kamara asserts the State presented insufficient evidence
to convict him of identity fraud.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Kamara presented this claim as his Second Assignment of Error on direct appeal and the
Third District decided it as follows:
{¶24} In his second assignment of error, Kamara contends that the
State failed to present sufficient evidence to support his identity-
fraud convictions. Specifically, Kamara argues that the State did not
present sufficient evidence to establish that Kamara did not have
Gbor's consent to use his identification.
{¶25} “An appellate court's function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds, State v. Smith, 80 Ohio
St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether,
after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id.
{¶26} “Circumstantial evidence and direct evidence inherently
possess the same probative value and therefore should be subjected
to the same standard of proof.” Id. at paragraph one of the syllabus.
“A conviction can be sustained based on circumstantial evidence
alone.” State v. Franklin, 62 Ohio St.3d 118, 124 (1991). “[I]n some
instances, certain facts can only be established by circumstantial
evidence” and a conviction based thereon “is no less sound than one
based on direct evidence.” State v. Smith, 12th Dist. Butler No.
CA2008-03-064, 2009-Ohio-5517, ¶ 80. “If the state ‘relies on
circumstantial evidence to prove an element of the offense charged,
there is no [requirement that the evidence must be] irreconcilable
with any reasonable theory of innocence in order to support a
conviction[,]’ so long as the jury is properly instructed as to the
burden of proof, i.e., beyond a reasonable doubt.” State v. Bates, 6th
Dist. Williams No. WM-12-002, 2013-Ohio-1270, ¶ 50, quoting
Jenks at paragraph one of the syllabus.
R.C. 2913.49(B) provides:
No person, without the express or implied consent of the
other person, shall use, obtain, or possess any personal
identifying information of another person with intent to do
either of the following:
(1) Hold the person out to be the other person;
(2) Represent the other person's personal identifying
information as the person's own personal identifying
information.
{¶27} Kamara was convicted of two counts of identity fraud: Count
Six concerned Kamara[‘s] providing Sergeant Himes with Gbor's
driver's license during the traffic stop and Count Seven involved
Kamara providing the jail staff with Gbor's identifying information
during the booking process. (See Doc. No. 16). Here, Kamara's sole
argument is that the State did not present sufficient evidence that he
lacked Gbor's consent to use Gbor's identifying information.
Accordingly, we will address only the lack of consent element of the
offense.
{¶28} At trial, the State presented the testimony of Sergeant Himes,
who testified that after he initiated a traffic stop of a vehicle driven
by Kamara, he asked Kamara for his driver's license. (Sept. 6, 2018
Tr. at 92). In response, Kamara produced a driver's license issued to
Gbor. (Id. at 92-93, 138-139). (See State's Ex. 3). Sergeant Himes
identified State's Exhibit 3 as the driver's license issued to Gbor that
Kamara presented to him during the traffic stop. (Sept. 6, 2018 Tr.
at 138-139). (See State's Ex. 3). Sergeant Himes testified that during
the booking process, Kamara represented himself as Gbor. (Id. at
142).
{¶29} Sergeant Himes identified State's Exhibit 10 as the jail intake
form for Kamara that Sergeant Himes completed. (Id. at 149-150).
(See State's Ex. 10). The name of the inmate listed on the form is
“Raheem Henry Gbor,” which was the name Kamara gave Sergeant
Himes to identify himself. (State's Ex. 10); (Sept. 6, 2018 Tr. at 150-
151). Moreover, State's Exhibit 10 includes Gbor's social security
number, which Sergeant Himes testified that he obtained from the
LEADS database. (State's Ex. 10); (Sept. 6, 2018 Tr. at 151-152).
{¶30} Sergeant Himes testified that several days after Kamara's
arrest, the patrol post received a phone call from a Raheem Henry
Gbor. (Sept. 6, 2018 Tr. at 152). Based on the message, Sergeant
Himes testified that he received some information that Gbor was not
the individual he arrested on May 22, 2018. (Id. at 152-153).
{¶31} Sergeant Himes then contacted the jail and inquired whether
the individual who had been booked on May 22, 2018 as “Raheem
Gbor” was still incarcerated. (Id. at 157). At that time, Sergeant
Himes was informed that that individual had been released from jail
on bond. (Id. at 157-158). Sergeant Himes testified that after
receiving the message from Gbor and contacting the jail, he had
suspicions that the person he arrested on May 22, 2018 was not
actually Gbor. (Id.).
{¶32} Next, Sergeant Himes set up an interview at the patrol post
with Gbor. (Id. at 158). Sergeant Himes testified that Gbor appeared
at the patrol post in person and Sergeant Himes obtained a written
statement from him. (Id.). Following his interview with Gbor,
Sergeant Himes reached out to other agencies for assistance in
identifying the male that he arrested on May 22, 2018. (Id. at 160-
162). As a result of his investigation, Sergeant Himes stated that he
determined that Gbor is not the person he arrested. (Id. at 164).
{¶33} We conclude that the State presented sufficient evidence that
Kamara did not have Gbor's consent to use Gbor's identifying
information. Sergeant Himes's testimony that he received a message
several days after Kamara's arrest from Gbor that caused him to
suspect that Gbor was not the individual he arrested, coupled with
his testimony that he met with Gbor in-person and obtained a
statement from Gbor, support the inference that Gbor did not give
Kamara his consent to use his identification. Although the jury was
not able to consider the content of Sergeant Himes's contact with
Gbor, the fact that Gbor himself initiated the contact could allow the
jury to infer that Gbor was contacting the police because Kamara
did not have Gbor's consent to use his identification.
{¶34} Moreover, when viewing the evidence in a light most
favorable to the prosecution, when Kamara initially gave Sergeant
Himes Gbor's identification, Kamara knew that he was in a vehicle
containing marijuana, crack cocaine, and powder cocaine. In fact,
he was in the process of attempting to ingest the marijuana as he
gave Sergeant Himes Gbor's identification. Kamara continued to
hold himself out as Gbor even when he was in jail facing felony drug
charges, and he went as far as to post bond under Gbor's name. The
serious nature of the charges against Kamara coupled with Gbor's
voluntary contact with Sergeant Himes could allow the jury to infer
that Kamara did not have Gbor's consent to use his identification.
See State v. Gordon, 9th Dist. Summit No. 28331, 2017-Ohio-7147,
¶ 26 (finding sufficient evidence to support an identity fraud
conviction where the victim did not testify); State v. Seagraves, 5th
Dist. Delaware No. 09 CAA 04 0033, 2010-Ohio-308, ¶ 24 (finding
that the State established the lack of consent element of a theft
charge through circumstantial evidence); Bates, 2013-Ohio-1270, at
¶ 50. Thus, viewing the evidence in a light most favorable to the
State, a rational trier of fact could have found that the State proved
the lack of consent element of identify fraud.
{¶35} Kamara's second assignment of error is overruled.
State v. Kamara, supra.
As with the First Ground for Relief, Kamara presents no argument on this claim. His
argument on direct appeal was essentially that there was no direct evidence from Gbor that he did
not give Kamara consent to identify himself to arresting police officers and jail personnel as Gbor,
but the circumstantial evidence was strong and there was no countervailing evidence that Gbor
had given consent.
The Third District’s decision is a reasonable application of Jackson v. Virginia and is
therefore entitled to deference. Kamara’s Second Ground for Relief should be dismissed.
Ground Three: Violation of the Double Jeopardy Clause
In his Third Ground for Relief, Kamara asserts his rights under the Double Jeopardy Clause
were violated when the Third District ordered that he be sentenced separately for the two cocaine
trafficking convictions, Counts Two and Three. Kamara had argued this claim in the Third District
as a violation of Ohio’s allied offenses of similar important statute, Ohio Revised Code § 2941.25.
{¶41} The State argues that the trial court erred by merging Counts
Two and Three for sentencing because Kamara's actions of
packaging two different forms of cocaine, which were different in
quantity, form, and the method in which they are used, demonstrate
a separate animus.
{¶42} Conversely, Kamara contends that because crack cocaine and
powder cocaine are two forms of the same drug and he handed the
drugs over simultaneously, he should have only been convicted of
one count of drug trafficking.
State v. Kamara, supra. The Third District found these were not allied offenses of similar import
because
First, the powder cocaine and crack cocaine were packaged
separately. The packages also contained two different quantities of
cocaine. Additionally, the two packages were found on different
locations on McWilliams's body. Moreover, the two packages
contained different forms of the substance to be purchased by
different users. McWilliams testified that Kamara provided her with
crack cocaine in addition to the powder cocaine to fulfill a special
order request from McWilliams's customers.
Id. at ¶ 45.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
Here again Kamara makes no argument as to why the Third District’s decision is an
unreasonable application of this Supreme Court precedent. On direct appeal, however, Kamara
claimed convicting him of both offenses would violate double jeopardy, essentially arguing they
were the “same offense.” (Appellant’s Reply Brief, State Court Record, ECF No. 27, Ex. 11,
PageID 1112, et seq.).
The test for whether two offenses constitute the same offense for Double Jeopardy purposes
is “whether each offense contains an element not contained in the other.” United States v. Dixon,
509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932).
An Ohio court of appeals decision of a double jeopardy claim which is limited to the
application of Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy
claim. Jackson v. Smith, 745 F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d
632, 705 (1999), overruled by State v. Johnson, 128 Ohio St. 3d 153 (2010).
What determines whether the constitutional prohibition against
multiple punishments has been violated is the state legislature’s
intent concerning punishment. Specifically, [w]ith respect to
cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.
Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359,
366 (1983)(internal quotation marks omitted). Ohio Rev. Code § 2941.25, and not the Blockburger
test determines whether a person has been punished twice for the same offense under Ohio law in
violation of the federal Double Jeopardy Clause. Jackson v. Smith, 745 F.3d 206, 213 (6th Cir.
2014).
Trafficking powder cocaine and trafficking crack cocaine are different offenses. The two
substances are chemically different and are consumed in different ways. But the key question on
this ground for relief is whether the General Assembly intended that they be punished separately,
and the Third District has determined that it did. That conclusion is binding on this Court.
Bradshaw v. Richey, 546 U.S. 74 (2005). Ground Three for Relief should therefore be dismissed.
Procedural Default
Respondent asserts that Grounds Four through Eleven were presented to the Ohio courts in
Kamara’s appeal from the resentencing decisions and that they are all procedurally defaulted by
Kamara’s failure to appeal to the Supreme Court of Ohio from that second appellate decision by
the Third District. Kamara has not responded to this argument.
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,
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: a notice of appeal to the Supreme Court of Ohio must
be filed within forty-five days of judgment in the Court of Appeals. Here the Third District
affirmed on November 22, 2021; more than forty-five days have elapsed since then; and Kamrara
has not filed an appeal. The Sixth Circuit has held the forty-five days limit on appeal is an adequate
and independent state procedural ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th
Cir. 2004). Kamara has not shown any excusing cause and resulting prejudice. Therefore Grounds
Four through Eleven should be dismissed.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition as amended 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 27, 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. #
21