The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KAHLIA J. ENGLISH,
Petitioner, : Case No. 1:22-cv-156
- vs - District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
WARDEN,
Trumbull Correctional Institution
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 32) to
the Magistrate Judge’s Report and Recommendation (“Report,” ECF No. 24). District Judge
Black has recommitted the case for reconsideration in light of the Objections (ECF No. 33).
The Objections Were Untimely Filed
The Report was filed and served December 19, 2023, making objections due under
Fed.R.Civ.P. 6 and 72(b) on January 5, 2023. At that point in time Petitioner was unrepresented
by counsel and filed pro se a Motion to Extend his objection time by sixty days (ECF No. 25);
the Court granted an extension to February 6, 2023 (Order, ECF No. 26). On the date the
objections were now due, current counsel entered her appearance and requested and received a
consented extension of time to January 21, 2023 (ECF Nos. 27, 28). The Objections were not in
fact filed until January 22, 2023. However, to allow for a decision on the merits of the
Objections, the Court sua sponte grants an extension until the time of filing.
Petitioner makes no objection to the Report’s account of litigation history, but objects to
the recommended dismissal of all three pleaded grounds for relief. The objections will be
considered seriatim below.
Ground One: Improper Admission of Other Acts Evidence
In his First Ground for Relief, English contends he was denied his right to a fair trial
when the trial court admitted evidence of firearms possession when the firearms in question were
not related to any firearm used in the offense on trial, as well as other “bad character” or
“propensity” evidence (Petition, ECF No. 1, PageID 12-20).
This claim is procedurally defaulted.
Respondent asserted this claim was procedurally defaulted because English had not
contemporaneously objected to admission of this evidence on the same grounds he raised in his
Petition. The Report agreed and English objects that the claim was not in fact procedurally
defaulted.
The First District Court of Appeals on direct appeal held:
{¶49} Our review in this case is hampered because, as the state
points out, English did not object to this evidence on the basis now
raised. Thus, English forfeited all but plain error. See, e.g., Evid.R.
103(A)(1) and (D); Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011,
92 N.E.3d 821, at ¶ 32.
State v. English, 2020-Ohio-4682 (1st Dist., Sept. 30, 2020). The Report noted that, under federal
habeas law, plain error review was an enforcement of the contemporaneous objection rule rather
than a waiver of it, so Respondent had met the actual enforcement prong of the required Maupin
analysis (Report, ECF No. 24, PageID 1505).
Petitioner objects that he did make a contemporaneous objection, albeit on different
grounds, but asserts this is sufficient under Ohio law, citing Ohio R. Evid. 103(A)(1) and (2)
(Objections, ECF No. 32, PageID 1530). Essentially he is arguing the First District Court of
Appeals got the Ohio law wrong.
English claims:
The First District ultimately [sic] ruled that “Exhibits 27 and 28
should have been excluded because any value they had for
establishing a nonpropensity purpose was substantially outweighed
by the risk of unfair prejudice. See Evid.R. 403(A). Similarly,
Ebony's testimony concerning English's desire to bribe her to
obtain guns, his stockpiling of guns, and her other general
testimony reflecting negatively on his character should not have
been admitted. Notably, English did not place his character at issue
in this case. See Evid.R. 404(A).” ." Doc #: 5 PageId #: 151.
(Objections, ECF No. 32, PageID 1531). When one reads PageID 151 which is in fact part of
the First District’s opinion upholding the conviction, this language does not appear
anywhere on that page. The language also does not appear on PageID 158, also cited by
English. However, it does appear at ¶¶ 61-62 when the First District is discussing a different
question.
The contemporaneous objection rule as a part of Ohio law provides a state court with the
opportunity to correct constitutional error on the spot before it infects the jury’s mind and
ultimately the verdict. Here the First District held English had not made a contemporaneous
objection which satisfied that purpose. To put it another way, federal law does not define what
constitutes a contemporaneous objection under state law; this Court is bound by the state courts’
interpretation of that law. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v.
Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v.
Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999);
Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). Here the First District plainly held at ¶ 49
that, because English had not objected on the same basis raised on appeal, he was limited to plain
error review. This effectively amounts to a holding that he did not effectively object at all and
thus defaulted the claim.
English argues that the First District was wrong because it relied on Ohio R. Evid. 101
which English claims essentially supports his position that any objection to the particular
evidence preserves all possible grounds for objection. Not so. Rule 101 expressly states a
litigant must state “the specific ground of objection” to preserve any error for appeal.
Petitioner’s objections to the Report’s conclusion on procedural default should be
overruled.
Failure to State a Claim
In the alternative, the Report concluded Ground One failed to state a claim cognizable in
habeas because the admission of other bad acts evidence did not violate the Constitution (Report,
ECF No. 24, PageID 1506-07).
Petitioner offers no objection to this analysis (See ECF No. 24, PageID 1507-08).
Accordingly, Ground One may be dismissed on this alternative basis without consideration of the
contemporaneous objection issue.
Ground Two: Due Process Violation in Reception of the Verdict
In his Second Ground for Relief, English asserts his due process rights were violated
when the trial judge received the verdict forms and shared them with the prosecuting attorney
before they were announced in open court.
The Report noted that the First District had found there was no factual basis for the
allegation that the trial judge had shared the verdicts with the prosecutor and not the defense
counsel. Because English had offered no contrary evidence from the state court record, much
less clear and convincing evidence, that this finding was in error, the Report found it was binding
and conclusive on Ground Two.
Petitioner objects that, on the contrary, the factual determination of the First District is
unreasonable. English ignores the fact that there is no proof the verdicts were shared with
counsel for either side until they were returned in open court. Instead, he claims the violation of
his constitutional right to have the verdicts returned in open court was complete when the judge
took the verdicts into his hand in the jury room.
The constitutional right on which English relies is the public trial right embodied in the
Sixth Amendment. He cites Snyder v. Massachusetts, 291 U.S. 97 (1934), and Waller v.
Georgia, 467 U.S. 391 (1984). In Waller the Supreme Court held the public trial guarantee
extended to suppression hearings. In Snyder the Court held there was no public trial right of a
defendant to be present at a jury view. A defendant is guaranteed the right to be present at any
1 Counsel cites Waller as appearing at 47 U.S. 39. The Supreme Court decision reported there is Bank of U.S. v.
Moss.
stage of the criminal proceeding that is critical to the outcome if his presence would contribute to
the fairness of the procedure, i.e., be useful in ensuring a more reliable determination. Buell v.
Mitchell, 274 F.3d 337, 363 (6th Cir. 2001), citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
It is difficult to see how English’s presence at the judge’s responding to a jury question about
security after trial would contribute to a more reliable determination of the case. Here counsel
for the State and for English had agreed that the judge would respond to the jury’s question
without their presence.
Because the verdicts were formally returned in open court and the jury was polled,
English can show no harm from what occurred in the jury room. He says he should not have to
because what happened was a structural error, but he cites no authority for this proposition and
none is known to the Court. Waller found structural error in excluding the public from a
suppression hearing. Errors of a structural nature cannot be harmless. Arizona v. Fulminante,
499 U.S. 279 (1991). Examples of structural error are rare. They include judicial bias (Railey v.
Webb, 540 F.3d 393 (6th Cir. 2008), citing Washington v. Recuenco, 548 U.S. 212 (2006), and
Sullivan v. Louisiana, 508 U.S. 275, 283 (1993), Tumey v. Ohio, 273 U.S. 510 (1927)), complete
denial of counsel (Johnson v. United States, 520 U.S. 461 (1997)), racial discrimination in the
selection of a grand jury (Vasquez v. Hillery, 474 U.S. 254 (1986)), denial of self-representation
at trial (McKaskle v. Wiggins, 465 U.S. 168 (1984)), denial of public trial (Waller v. Georgia,
467 U.S. 39 (1984)), a defective reasonable doubt instruction (Sullivan v. Louisiana, 508 U.S.
275 (1993)), Batson violations, Snyder v. Louisiana, 552 U.S. 472, 478 (2008), or exclusion for
cause of a juror who has scruples about the death penalty, Wheeler v. Simpson, 779 F.3d 366 (6th
Cir. 2015), citing Lockhart v. McCree, 476 U.S. 162, 176 (1986), and Uttecht v. Brown, 551 U.S.
1 (2007). In McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), the court added
admitting guilt when client wants to oppose it, even when evidence is overwhelming.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Petitioner has not even
attempted to show how the First District’s decision is an objectively unreasonable application of
Supreme Court precedent.
Conclusion
Having reconsidered the case in light of the Objections, the Magistrate Judge adheres to
his original conclusion that the Petition should 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.
February 28, 2023.
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. #
s/ Michael R. Merz
United States Magistrate Judge