Stewart v. Warden Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JUAN A. STEWART,

Petitioner, : Case No. 2:22-cv-1151

- vs - District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

WARDEN, Belmont Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Juan Stewart brought this action under 28 U.S.C. § 2254 to obtain relief from his

convictions on two counts of murder and one count of having weapons while under disability. The

case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 5), the

Return of Writ (ECF No. 6), and Petitioner’s Traverse (ECF No. 11).

Litigation History

On January 20, 2015, Edward L. Williams was shot to death while sitting in a car in what

witnesses described as a high crime and drug neighborhood. Eighteen months later, on September 1,

2016, a Franklin County Grand Jury indicted Stewart for Williams’ death on one count of purposeful

murder in violation of Ohio Revised Code § 2903.02(A), one count of felony murder in violation of

Ohio Revised Code § 2903.02(B), and one count of having a weapon while under disability in violation

of Ohio Revised Code § 2903.11. Both murder counts carried repeat violent offender specifications,

and all three counts carried firearm specifications. Stewart waived his jury trial right as to the weapons

under disability charge and the various specifications. At the first trial in May 2018, the trial court

found him guilty on the weapons charge and associated firearm specification, but the jury was unable

to reach a verdict on the murder counts.

On re-trial in August 2019, a jury convicted Stewart on both murder counts and the related

firearm specifications; the trial judge found him guilty on the repeat violent offender specifications.

He was then sentenced to twenty-two years to life imprisonment.

Stewart took a direct appeal from his conviction in the first trial and the Tenth District

affirmed. State v. Stewart, 2020-Ohio-1245 (Ohio App. 10th Dist. Mar. 31, 2020). That court also

affirmed the conviction and sentence from the second trial. State v. Stewart, 2020-Ohio-5344

(Ohio App. 10th Dist. Nov. 19, 2020), appellate jurisdiction declined, 161 Ohio St.3d 1452 (2021).

Stewart, represented by counsel, filed his Petition in this Court March 1, 2022, pleading

the following grounds for relief:

Ground One: The trial court committed prejudicial error by

allowing the admission of “other acts” evidence that was

inadmissible and otherwise unfairly prejudicial, thereby depriving

Appellant of a fair trial.

Ground Two: The verdicts of guilt as to murder, and felony murder,

and the attached firearm specifications are against the manifest

weight of the evidence.

(Petition, ECF 1). Respondent concedes that the Petition is timely under 28 U.S.C. § 2244.

Analysis

Ground One: Admission of Improper Evidence of Prior Bad Acts

In November 2014 shortly before the murder in suit, someone video recorded Stewart firing

a handgun at a party; the video was then posted to Stewart’s Facebook account where it could have

been seen by any of Stewart’s Facebook “friends.” The State obtained a copy of that recording

and, over Stewart’s objection, showed it to the jury along with several derived still photographs.

There was no dispute of the authenticity of this evidence, but Stewart claimed it was propensity

evidence, inadmissible under Ohio R. Evid. 404. The trial judge overruled the objection, but

instructed the jury they could not consider it was proof of Stewart’s propensity to commit gun

crimes.

On appeal, Stewart pleaded as his First Assignment of Error: “The trial court committed

prejudicial error by allowing the admission of “other acts” evidence that was inadmissible and

otherwise unfairly prejudicial, thereby depriving appellant of a fair trial.” Stewart, supra, at 4.

Appellant claims the state utilized this evidence to prove that

appellant had access to handguns, knew how to use them, and had a

propensity to fire them. Accordingly, appellant maintains that the

video and photographs constitute impermissible other acts evidence

under Evid.R. 404(B) and impermissible prejudicial evidence under

Evid.R. 403(A). Appellant claims the admission of this evidence

prejudicially affected his substantial rights to a fair verdict.

Id. The Tenth District accepted Stewart’s argument that this evidence was not admissible under

the Ohio Rules of Evidence. Id. at ¶¶ 26-40. However, it went on to hold that the admission was

harmless error beyond a reasonable doubt. ¶ 42.

Respondent argues this First Ground for Relief is not cognizable in habeas corpus, being

essentially a request for this Court to review the state evidentiary rulings of the Tenth District,

whereas only federal constitutional claims can provide a basis for habeas relief (Return of Writ,

ECF No. 6, PageID 343-55).

Stewart’s Traverse responds to this argument as follows:

In Thomas v. Miniard, No. 2:18-CV-13829-TGB, 2022 WL

1194056 (E.D. Mich. Apr. 21, 2022), the court recently noted the

following:

The admission of evidence may violate the Due Process

Clause (and thereby provide a basis for habeas relief) where

the admission “is so extremely unfair that its admission

violates ‘fundamental conceptions of justice.’” Dowling v.

United States, 493 U.S. 342, 352 (1990) (quoting United

States v. Lovasco, 431 U.S. 783, 790 (1977)); Bugh v.

Mitchell, 329 F.3d 496, 512 (2003). The Supreme Court

“defined the category of infractions that violate fundamental

fairness very narrowly.” [Estelle v. McGuire, 502 U.S. 62,

73 (1991)]. To violate due process, an evidentiary decision

must “offend[ ] some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as

fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th

Cir. 2000) (citation omitted). This standard accords the state

courts “wide latitude ... with regard to evidentiary matters

under the Due Process Clause.” Id.

Miniard, 2022 WL 1194056, *5; see also Garza v. Shinn, No. CV-

14-01901-PHX-SRB, 2021 WL 5850883, *15 (D. Az. Dec. 9, 2021)

(“[T]he admission of evidence at a state court trial forms the basis

for federal habeas relief only if the evidentiary ruling rendered a

petitioner’s trial unfair in violation of his due process rights.”);

Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)

(explaining that whether or not the admission of evidence is contrary

to a state rule of evidence, a trial court’s ruling does not violate due

process unless the admitted evidence is “of such quality as

necessarily prevents a fair trial”). The court in Miniard went on to

fully considered [sic] whether it was “fundamentally unfair to

admit” the other acts evidence. Miniard, 2022 WL 1194056, *5.

Further, in Kamara v. Warden, No. 2:21-cv-2029, 2022 WL

1420299 (S.D. Ohio Apr. 29, 2022), the court noted how the

petitioner presented an “other acts” issue “as both a federal

constitutional claim (fair trial) and an Ohio Evidence Rule claim,”

and because “the fair trial claim was squarely presented,” “the

decision on that claim is entitled to deference unless it offends

Supreme Court precedent.” Id. at *5.

(Traverse, ECF No. 11, PageID 1052-53.)

The cited cases require detailed analysis.

Kamara v. Warden, No. 2:21-cv-2029, 2022 WL 1420299 (S.D. Ohio Apr. 29, 2022).

The cited opinion in Kamara is that of the undersigned and deals with the same prior bad

acts issue presented here1. On direct appeal, Kamara presented this claim to the Ohio Third District

Court of Appeals 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.” In federal habeas

his First Ground for Relief was “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. In other words in the state court he had raised both an Ohio Evid. R. 404 and

14th Amendment fair trial claim. Although he had preserved the 14th Amendment claim, this Court

was bound to defer to the Third District’s rejection of that claim because “[t]here 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). Kamara at *6.

Kamara is directly in point and supports denial of Stewart’s First Ground for Relief. While

there may be state evidentiary rulings that are so unfair as to make the whole trial unfair, the

Supreme Court has never held that admitting propensity evidence falls in that category. Bugh,

1 That opinion became final when it was adopted by Chief Judge Marbley on June 3, 2022.

supra.

Thomas v. Miniard, 2022 WL 1194056 (E.D. Mich. Apr. 21, 2022).

In habeas Thomas raised a claim of improper use of prior bad acts evidence. Although the

warden pleaded procedural default in defense, the court bypassed that issue and ruled against

Thomas on the merits, finding the state court holding that the evidence was admissible under Rule

404 was non-reviewable and deferring to the State court’s ruling that admission of the evidence

was not fundamentally unfair.

Garza v. Shinn, 2021 WL 5850883 (D. Az. Dec. 9, 2021)

Garza raised a habeas claim of fundamental unfairness in admitting prior bad acts evidence.

The court denied that claim, holding “there is no clearly established Supreme Court precedent

holding that a state court violates due process by admitting other acts evidence. See, e.g., Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), and Kipp v. Davis, 971 F.3d 939, 952 n.8 (9th Cir.

2020)” Id. at *15.

Thus all the in-point precedent cited by Stewart supports dismissing Ground One for lack

of cognizability. Cited cases supporting a petitioner’s position on the inadmissibility of prior bad

acts all rely either on State or federal evidence rules and not on the Fourteenth Amendment.

Ground One should be dismissed for failure to state a claim upon which habeas corpus relief can

be granted.

Ground Two: Sufficiency of the Evidence

In his Second Ground for Relief, Stewart asserts his conviction is not supported by

constitutionally sufficient evidence.

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).

Thompson v. Skipper, 981 F.3d 476 (6th Cir.,2020). “To evaluate a sufficiency-of-the-evidence

claim, we consider ‘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.’ Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). 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).”

To warrant habeas relief, the state court’s application “must be ‘objectively unreasonable,’

not merely wrong; even ‘clear error’ will not suffice.” Nagy, 962 F.3d at 199 (quoting White v.

Woodall, 572 U.S. 415, 419 (2014)). In other words, “relief is available under § 2254(d)(1)’s

unreasonable-application clause if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.”

Woodall, 572 U.S. at 427 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

Together, Jackson and AEDPA’s two layers of deference dictate that “a federal court’s

‘review of a state-court conviction for sufficiency of the evidence is very limited.’” Tackett v.

Trierweiler, 956 F.3d 358, 367 (6th Cir. 2020) (quoting Thomas v. Stephenson, 898 F.3d 693, 698

(6th Cir. 2018)).

Procedural Default

On its face, Ground Two claims Stewart’s convictions are against the manifest weight of

the evidence (Petition, ECF No. 1, PageID 20). That was the claim he presented to the Tenth

District Court of Appeals in his appeal from the results of the second trial. Stewart 2, ¶ 21. He

“acknowledges that in the state courts, he challenged his convictions as being against the manifest

weight of the evidence.” (Petition, ECF No. 1, PageID 20, citing Stewart 2 at ¶ 47.) However he

argues that pleading a manifest weight claim in state court is an adequate presentation of a

sufficiency of the evidence claim to satisfy the exhaustion of state court remedies requirement for

presenting the sufficiency claim later in habeas (Petition, ECF No. 1, relying on Nash v. Eberlin,

258 F. App’x 761 (6th Cir. 2007).)

Respondent disagrees, asserting Stewart did not fairly present his sufficiency argument to

the Tenth District. Respondent first argues

In the Nash case, the unreported2 panel of the Sixth Circuit liberally

construed a pro se habeas inmate’s manifest-weight-of-the-evidence

claim as presented in the federal habeas case as a constitutional

sufficiency-of-the-evidence claim because under the facts of that

case it found that the state appellate court had considered the

constitutional claim when rejecting the state-law manifest weight

claim presented in direct review. Nash, 258 F.App'x 761 at 764 fn.

4. The Nash panel did not hold that a counseled inmate’s

presentation of a manifest weight claim in direct review could

constitute the fair presentation of a constitutional evidential

sufficiency claim as a matter of precedential habeas corpus law.

(Return of Writ, ECF No. 6, PageID 335).

In Nash the Sixth Circuit held:

As a threshold matter, we first determine that Nash did not

procedurally default on his sufficiency of the evidence claim by not

presenting it to the Ohio state courts.4 Under normal circumstances,

2 The Nash opinion is not unreported, but rather unpublished.

habeas relief can only be sought for claims that have been ruled upon

in state court. See 28 U.S.C. § 2254(b)(1)(A). On appeal to the Fifth

Circuit Court of Appeals of Ohio, Nash argued that his conviction

for felonious assault was against the manifest weight of the

evidence, but he did not literally argue that there was insufficient

evidence to support his conviction. Nevertheless, the sufficiency of

the evidence issue was adequately passed upon by the Ohio courts

because the determination by the Ohio Court of Appeals that the

conviction was supported by the manifest weight of the evidence

necessarily implies a finding that there was sufficient evidence. The

Ohio Court of Appeals, for instance, has explained that “ ‘[b]ecause

sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must

necessarily include a finding of sufficiency.’ Thus, a determination

that a conviction is supported by the weight evidence will also be

dispositive of the issue of sufficiency.” State v. Lee, 158 Ohio

App.3d 129, 814 N.E.2d 112, 115 (2004) (citations omitted).

Therefore, the district court properly entertained Nash's sufficiency

of the evidence claim because it has been effectively presented to

the Ohio courts and was decided by the Ohio Court of Appeals.

Nash v. Eberlin, 258 F.App'x 764-65 (6th Cir. 2007). Respondent seeks to distinguish Nash on the

grounds that Nash was pro se and Stewart has counsel. The opinion in Nash reflects that he was

pro se in federal court but not whether he had counsel on direct appeal, counsel to which he was

constitutionally entitled. In any event, the Nash panel made nothing of that distinction.

Respondent correctly describes the differences between the two claims. Manifest weight

is only a state law claim and is of itself not cognizable in habeas. Johnson v. Havener, 534 F.2d

1232 (6th Cir. 1986). In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Supreme Court of Ohio

reaffirmed the important distinction between appellate review for insufficiency of the evidence

and review on the claim that the conviction is against the manifest weight of the evidence. It

held:

In essence, sufficiency is a test of adequacy. Whether the evidence

is legally sufficient to sustain a verdict is a question of law. State v.

Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.

In addition, a conviction based on legally insufficient evidence

constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31,

45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560. Although a court of appeals may determine that a judgment of

a trial court is sustained by sufficient evidence, that court may

nevertheless conclude that the judgment is against the weight of the

evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-

389, 124 N.E.2d at 149. Weight of the evidence concerns "the

inclination of the greater amount of credible evidence, offered in a

trial, to support one side of the issue rather than the other. It

indicates clearly to the jury that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them. Weight is

not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis added.)

When a court of appeals reverses a judgment of a trial court on the

basis that the verdict is against the weight of the evidence, the

appellate court sits as a " 'thirteenth juror' " and disagrees with the

factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.

at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin

(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d

717, 720-721 ("The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new

trial ordered. The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.").

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited

approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest

weight of the evidence claim:

In considering the claim that the conviction was against the manifest

weight of the evidence, the test is much broader. The court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. …

Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. The consequences of the distinction are important

for a criminal defendant. Reversal on a manifest weight claim requires unanimity in the court of

appeal panel. Ohio Constitution, Article IV, Section 3(B)(3). The State may retry a case reversed

on the manifest weight of the evidence; retrial of a conviction reversed for insufficiency of the

evidence is barred by the Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 41 (1982).

Respondent is also correct that a manifest weight claim would not alert a state court to the

federal claim: sufficiency of the evidence claims arise under the Due Process Clause of the

Fourteenth Amendment whereas authority to reverse on a manifest weight claim appears to be

granted or recognized directly by the Ohio Constitution rather than through application of the Due

Course of Law clause of the Ohio Constitution.

Nevertheless, this Court has followed Nash on the issue of fair presentation.

While Nash [v. Eberlin, 258 Fed. Appx. 761, 2007 U.S. App. LEXIS

29645 (6th Cir. Dec. 14, 2007)] is not a published opinion of the

Sixth Circuit and therefore not binding precedent, the Magistrate

Judge will follow it and (1) not find any procedural default from

Hughes' limitation of his state court argument to manifest weight,

(2) liberally construe the Petition as making a claim of insufficiency

of the evidence and (3) read the state court of appeals' decision that

the conviction was not against the manifest weight of the evidence

as "necessarily impl[ying] a finding that [Hughes'] conviction was

also supported by sufficient evidence." Id. at 762. See also State

v. Lee, 158 Ohio App. 3d 129, 2004 Ohio 3946, 814 N.E.2d 112,

115 (Ohio App. 9th Dist. 2004), cited in Nash at 765.

Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131(S.D. Ohio Apr. 27, 2011), adopted, 2011 U.S.

Dist. LEXIS 54132 (S.D. Ohio May 20, 2011).

Merits

Although Stewart’s Second Ground for Relief is not procedurally defaulted, this Court

must review the Tenth District’s decision on its merits deferentially, i.e. under the standard adopted

by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.

1214)(the "AEDPA").

The evidence presented by the state established the following.

{¶ 5} Roberta Turner, a long-time friend of appellant, often

socialized with him at a club Damon Fluellen ran out of his house

located at 833 St. Clair Avenue. The club was open all day and night

and there were always “lots of people coming and going.” (Tr. at

414.) Appellant lived in the neighborhood and, according to Turner,

regarded Fluellen as a mentor.

{¶ 6} Late in the evening on January 19, 2015, Turner was with

appellant at a bar located within a 3 to 4 minute walk from Fluellen's

house. Turner left the bar around 11:45 p.m.; appellant remained

there. At approximately 12:20 a.m. on January 20, 2015, Turner

exchanged several text messages and phone calls with Fluellen,

which prompted her to text appellant asking if he was “alright.” (Tr.

at 403.)

{¶ 7} Meanwhile, at approximately 12:12 a.m., Verlie Smith, a

COTA bus driver, approached the intersection of 2nd and St. Clair

Avenues and heard four gunshots. He observed an African-

American man walking away from a truck parked on St. Clair in the

area where the gunshots were fired. The man then walked toward

two nearby houses. Smith could not see if the man entered one of

the houses or walked between them. Almost simultaneously, a car

parked in front of the truck drove away. The man Smith had seen

walking was not in the car. For safety reasons, Smith sat through

three cycles of red lights. He eventually turned onto St. Clair and

passed by the truck. Through the open driver's door, he observed a

man slumped over in the driver's seat.

{¶ 8} Columbus Police Officer Jason Kulp and other officers were

dispatched to the scene of the shooting. Kulp described the

neighborhood as a “high-crime area” known for drug activity and

shootings. (Tr. at 264.) Upon arrival, Kulp observed the victim

seated in a truck parked directly across the street from 833 St. Clair.

He then observed a man, later identified as Fluellen, standing on the

front porch of 833 St. Clair clad only in his underwear. At Kulp's

direction, Fluellen re-entered the house. A short time later, Fluellen

came back outside, this timely fully clothed. Because Fluellen's

behavior seemed suspicious, officers sought and received

permission to search his house. The search revealed no evidence

linked to the shooting.

{¶ 9} The police interviewed Smith, who described the man he saw

walking away from the truck as approximately 6 feet tall, weighing

between 180 and 200 pounds, wearing a dark jacket and pants and a

knit, toboggan-type hat. He did not see a bill on the hat because the

man was walking away and had his back to Smith.

{¶ 10} At trial, Kulp identified surveillance video obtained from the

Milo-Grogan Recreation Center, which is located across the street

from the scene of the shooting.1 The video depicts a car with its

headlights on approach and park on the street across from 833 St.

Clair. Approximately three minutes later, a truck arrives and parks

behind the car. The video then depicts flashes of gunfire near the

driver's side of the truck, followed by the shadow of a person

walking between the car and the truck. The car then drives away.

Very shortly thereafter, a light at the back of 833 St. Clair

illuminates, and the back door opens momentarily. The video then

depicts a person moving around in the backyard.

{¶ 11} Thomas Martin lives on Starr Avenue behind 833 St. Clair.

In the early morning hours of January 20, 2015, he observed a police

helicopter with its lights illuminated hovering over his house. Ten

to fifteen minutes later, he heard the chain-link fence in his backyard

rattle; he assumed that someone had jumped over the fence. Later

that morning he found a red Chicago Bulls baseball hat on the

ground along the fence line. Thinking the person who lost it would

likely return for it, he left it there. He retrieved the hat the next day

and turned it over to the police.

{¶ 12} Detective Suzanne Nissley of the Crime Scene Search Unit

identified several photographs taken at the crime scene which

depict, among other things, Williams’ body inside the truck.2 The

photographs also depict evidence recovered from the scene,

including four .40 caliber spent shell casings found in the street and

on the sidewalk near Williams’ vehicle, as well as a .40 caliber

Smith & Wesson semi-automatic handgun (with 1 live round in the

chamber and a magazine containing 8 live rounds) found in the

brush beside a fence by the alley at the rear of 833 St. Clair.

{¶ 13} Matthew White, a firearms examiner with the Bureau of

Criminal Investigation (“BCI”), examined and test-fired the

recovered weapon, found it to be operable, and determined that the

four spent casings and three bullets recovered from the scene (two

of which were recovered from Williams’ body) had been fired from

that weapon.

{¶ 14} Timothy Augsback, a BCI forensic scientist, analyzed DNA

swabs taken from the firearm, including the trigger, the handled

areas (the grip and the slide), the magazine, and the nine live rounds.

That analysis revealed that the trigger, the magazine, and the

handled areas contained a mixture of DNA, with appellant included

as the only major contributor. DNA deposited by the minor

contributors was insufficient to test. No DNA profile was obtained

from the nine rounds. Augsback also analyzed DNA swabs taken

from the baseball hat, which revealed a mixture of DNA, with

appellant included as the only major contributor. He acknowledged

that it is not possible to determine how or when DNA is deposited

on an item; accordingly, he could not definitively state that appellant

fired the weapon on January 20, 2015.

*3 {¶ 15} Detective James Howe conducted a digital forensic

examination and cell-site analysis of appellant's cell phone for the

relevant time period. Within minutes of the shooting, appellant both

received and sent calls and text messages from the general vicinity

where the shooting occurred. Appellant's browser history revealed

that after the shooting, he searched a local news website numerous

times for information pertaining to the shooting.

{¶ 16} Appellant presented the following evidence. Katie Hodge, a

friend of appellant, communicated via cell phone with him several

times on January 19 and 20, 2015. According to Hodge, appellant

gave no indication during these communications that he was

involved in Williams’ shooting.3

{¶ 17} Jakita Smith-Goolsby, the mother of appellant's children,

averred that appellant grew up in the Milo-Grogan area and lived

there with his mother on January 20, 2015. He had many friends in

the area with whom he often shared clothing items, including his

vast collection of hats. She spoke with appellant by cell phone

minutes before and after the shooting. She found nothing odd about

their conversations; indeed, appellant was breathing normally and

otherwise gave her no reason to believe that anything unusual had

happened. She was shocked to later learn that appellant had been

charged with Williams’ murder.

{¶ 18} In addition to the testimony and exhibits presented, the

parties entered into numerous stipulations. (State's Ex. GG.) Many

of the stipulations confirmed the accuracy of evidence submitted by

the state, including the events depicted on various surveillance

videos (State's Ex. K, J, and L), records from appellant's cell phone

(State's Ex. Q, Q1, Q2a and Q3a), records from Turner's cell phone

(State's Ex. CC), records from Williams’ cell phone (State's Ex. P1),

aerial photographs of the crime scene (State's Ex. I), autopsy

photographs and findings of Franklin County Deputy Coroner Dr.

Kenneth Gerston (State's Ex. B11, B14, B17, B20, B29, and U), a

photograph of Williams (State's Ex. V), still images of appellant

taken from the cell phone video recorded on November 9, 2014

(State's Ex. Y, Y1, Y2, and Y3), photographs of appellant (Def. Ex.

1A through 1RR), and photographs depicting the location and

condition of the firearm when recovered from the alley and fence

line behind 833 St. Clair shortly after the homicide (State's Ex. A38,

A39, A40, and A41.) The stipulations also included chain-of-

evidence information related to the baseball hat (State's Ex. S1),

DNA standards and submissions from Williams and appellant, and

information regarding recovery and submission of the firearm and

ammunition (State's Ex. M and N3b).

Stewart, supra.

The Tenth District evaluated this evidence as follows:

{¶ 47} In his second assignment of error, appellant contends his

convictions for purposeful murder, felony murder, and the attached

firearm specifications are against the manifest weight of the

evidence. Appellant does not challenge the legal sufficiency of the

evidence.3

{¶ 48} When presented with a manifest weight challenge, an

appellate court engages in a limited weighing of the evidence to

determine whether competent, credible evidence supports the jury's

verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-

4738, ¶ 32, citing State v. Thompkins, 78 Ohio St.3d 380, 387

(1997). “‘When a court of appeals reverses a judgment of a trial

court on the basis that the verdict is against the manifest weight of

the evidence, the appellate court sits as a ‘thirteenth juror’ and

disagrees with the factfinder's resolution of the conflicting

testimony.’” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S.

31, 42 (1982). However, “in conducting our review, we are guided

by the presumption that the jury, or the trial court in a bench trial,

‘is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’ ” State v.

3 That is, Stewart did not present a sufficiency of the evidence claim in those terms. In this Court’s experience Ohio

appellants often combine manifest weight and sufficiency claims in one assignment of error and consequent argument

on direct appeal.

Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

Accordingly, this court affords great deference to the jury's

determination of witness credibility. State v. Redman, 10th Dist. No.

10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th

Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55.

{¶ 49} An appellate court considering a manifest weight challenge

“may not merely substitute its view for that of the trier of fact, but

must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” State

v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing

Thompkins at 387. Reversal on manifest weight grounds is

appropriate “ ‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ” Thompkins at 387, quoting

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶ 50} Essentially, appellant contends that his convictions are

against the manifest weight of the evidence because the evidence

supporting the jury's verdicts was circumstantial. We agree that the

state's case against appellant was purely circumstantial. No

eyewitness testimony positively identified appellant as the shooter.

No evidence established that appellant knew Williams or had any

connection to him, let alone had a reason to murder him. No

evidence established that appellant was upset, angry, or acting

strangely prior to or after the murder. However, “ ‘[a] conviction can

be sustained based on circumstantial evidence alone.’ ” State v.

Ford, 10th Dist. No. 16AP-282, 2016-Ohio-8350, ¶ 13, quoting

State v. Franklin, 62 Ohio St.3d 118, 124 (1991), citing State v.

Nicely, 39 Ohio St.3d 147, 154-55 (1988). Indeed, “[c]ircumstantial

evidence possesses the same probative value as direct evidence.” Id.,

citing State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285, ¶

89. “In fact, circumstantial evidence may be more certain, satisfying

and persuasive than direct evidence.” Id., citing State v. McBride,

10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 26, citing State v.

Ballew, 76 Ohio St.3d 244, 249 (1996).

{¶ 51} A thorough review of the record reveals that the state

presented ample competent, credible circumstantial evidence

proving appellant's guilt. Appellant's DNA was on the murder

weapon, and he was the only major contributor of that DNA.

Appellant challenges the reliability of this DNA evidence, noting

Augsback's testimony that the weapon had a mixture of other

persons’ DNA, and his admission that it was not possible to

determine how or when appellant's DNA was deposited on the

weapon. However, it was within the province of the jury to view

Augsback as he testified, assess his credibility, and accept or

discount his testimony, or portions thereof, as it deemed appropriate.

State v. Wren, 10th Dist. No. 08AP-320, 2008-Ohio-6512, ¶ 10,

citing State v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889.

A jury is “free to believe ‘all, part, or none of a witness's testimony.’

” State v. Ellis, 10th Dist. No. 16AP-279, 2017-Ohio-1458, ¶ 33,

quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶

21.

{¶ 52} Appellant's DNA was also found on the baseball hat found

near the crime scene, and he was the only major contributor of that

DNA. Appellant challenges the reliability of this evidence, noting

Smith's testimony that the shooter was wearing a knit hat; however,

Smith explained that he could not see a bill on the hat because the

shooter was facing away from him. It was within the province of the

jury to accept all, part, or none of Smith's testimony, including his

explanation regarding the type of hat the shooter wore. Appellant

also cites Smith-Goolsby's testimony that other people wore

appellant's hats. Again, it was within the jury's purview to assess the

credibility of each witness appearing before it, including the

witnesses who testified on behalf of appellant. The jury simply

could have disbelieved Smith-Goolsby's testimony, as she is the

mother of appellant's children and thus may have had self-serving

reasons to cast doubt on his guilt. “A conviction is not against the

manifest weight of the evidence because the trier of fact chose to

believe the state's version of the events over the defendant's

version.” Id., citing State v. Gale, 10th Dist. No. 05AP-708, 2006-

Ohio-1523, ¶ 19.

{¶ 53} The evidence also established that the shooting occurred in

front of a house owned by appellant's mentor, Fluellen, and that the

shooter walked toward that house immediately after the shooting.

Appellant claims that this evidence did not necessarily establish a

connection to Fluellen. Appellant's argument suggests that the

location of the shooting and the shooter's subsequent travels were

merely coincidental. However, appellant's argument fails to take

into account the fact that the murder weapon bearing his DNA was

recovered near the rear of Fluellen's house.

{¶ 54} Finally, evidence of appellant's cell phone usage established

that he was in the area at the time of the shooting, and that after the

shooting, he searched a news website numerous times for

information about the shooting. Appellant asserts that he checked

the news sites only because the homicide occurred in his

neighborhood, directly in front of his close friend's house, and he

simply was interested in learning what had happened.

{¶ 55} All of appellant's challenges to the circumstantial nature of

the evidence were matters that were presented to the jury, which was

in the best position to evaluate the evidence presented at trial,

including assessing the credibility of the witnesses. After reviewing

the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses, we conclude

that the jury did not clearly lose its way or create such a manifest

injustice that appellant's convictions for purposeful and felony

murder and related firearm specifications must be reversed and a

new trial ordered.

{¶ 56} Appellant's second assignment of error is overruled.

Stewart, supra.

To prevail on his Second Ground for Relief, Stewart must show that this decision is

contrary to or an unreasonable application of clearly established Supreme Court precedent, in this

case Jackson, supra. Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Harrington v. Richter, 562

U.S. 86 at 103 (2011).

The case was prosecuted and defended on the basis of circumstantial evidence alone. For

example, the State showed Stewart was at a bar near the scene of the crime about a half hour before

it happened. Stewart countered that it was the neighborhood where he lived and had grown up.

The shooter walked toward Damian Fluellen’s house after the shooting. Stewart counters that

because the shooting happened in front of Fluellen’s house, “a shooter leaving the scene by way

of Fluellen’s house would not necessarily have to have a connection to Fluellen.” (Petition, ECF

No. 1, PageID 21). On the other hand, it was testified and is apparently uncontradicted that Stewart

did have a connection with Fluellen whom he considered a “mentor.”

The murder weapon was recovered shortly after the crime in the vicinity of Fluellen’s

house. The police identified Stewart as the major contributor to the DNA on the weapon, although

the DNA expert could not identify at what time Stewart’s DNA was deposited, although it must

have been shortly after the murder because the weapon promptly came into police custody.

The police also recovered a baseball cap at the scene of the crime shortly after it occurred

and Stewart was the major (but not only) contributor to DNA on the cap. An eyewitness testified

the shooter was wearing a knit cap, but did not identify the shooter. Jakita Smith-Goolsby,

identified as the mother of appellant's children, testified he had a large collection of hats that he

shared with others, but neither she nor anyone else denied Stewart had a baseball cap of the design

the police recovered at the scene nor attempted to show he had shared this particular cap with

anyone else.

Stewart offered no alibi, no proof that at the time of the crime he was somewhere else. Nor

did he offer any refutation of the forensic evidence that the recovered handgun was the murder

weapon or explanation of how he became the major and last contributor to the DNA found on the

murder weapon.

As the Tenth District found, the jury heard all of Stewart’s explanations of the

circumstantial evidence which it was free to accept or reject. In particular, it might have found

Jakita Smith-Goolsby’s testimony biased by her intimate relationship with Stewart. Stewart has

not shown that any of the circumstantial evidence against him is unworthy of belief and

cumulatively it supports the inference that Stewart was the shooter. The jury could reasonably

have accepted that inference beyond a reasonable doubt because there is no doubt, based on the

evidence, that Williams was intentionally killed in a location where Stewart had recently been and

someone left behind a baseball cap and the murder weapon that Stewart had handled.

In sufficiency of the evidence cases, habeas courts “do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for that of the jury.” Brown, supra.

The Tenth District’s conclusion on the weight of the evidence necessarily implies there was

sufficient evidence to convict and that conclusion is not an unreasonable application of Jackson.

The Second Ground for Relief should therefore be denied.

Conclusion

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

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within fourteen days after being served with this

Report and Recommendations. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. A party may

respond to another party’s objections within fourteen days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

June 13, 2022.

s/ Michael R. Merz

United States Magistrate Judge