# Stewart v. Warden Belmont Correctional Institution

> District Court, S.D. Ohio · June 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10380291

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10380291

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380291. Public record. Not legal advice.