The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
DONALD DAWSON-DURGAN,
; Case No. 1:19-cv-382
Petitioner,
: Judge Matthew W. McFarland
v. : Magistrate Judge Michael R. Merz
TIM SHOOP, Warden, :
Chillicothe Correctional Institution, :
Respondent. ;
ENTRY AND ORDER
This matter is before the Court upon the Report and Recommendation (Doc. 45)
and Supplemental Report and Recommendation (Doc. 50) (collectively, the “Reports”) of
United States Magistrate Judge Michael R. Merz, to whom this case is referred pursuant
to 28 U.S.C. § 636(b). The Reports recommend that Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1) be denied with prejudice, except as to the Petition’s Fifth Ground for
Relief, which the Reports recommend be dismissed without prejudice to allow Petitioner
to pursue any available state court remedies. (See Doc. 50.) Petitioner filed Objections to
both Reports. (Docs. 48, 57). Thus, the matter is ripe for the Court’s review.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the
Court has completed a de novo review of the record in this case. Upon review, the Court
agrees with the thorough analysis contained in the Reports. The Court finds that
Petitioner’s Objections have been fully addressed and adjudicated in the Reports.
Nonetheless, the Court will address Petitioner’s Objections to ensure a clear statement of
the bases for the Court's findings.
I. Ground One: Denial of Motion to Suppress
Petitioner was interviewed by police on three separate occasions and challenges
the admissibility of his statements from all three interviews. (Objections, Doc. 57, Pg. ID
3166-91.) This claim was presented to the Ohio First District Court of Appeals on direct
appeal and denied by that court on the merits. See State v. Durgan, No. C-170148, 2018
Ohio App. LEXIS 2544 (Ohio Ct. App. June 15, 2018). In turn, the Magistrate Judge found
that the First District's findings were “based on a reasonable reading of the testimony and
a reasonable application of the law and is therefore entitled to deference under 28 U.S.C.
§ 2254(d).” (Report, Doc. 45, Pg. ID 3085.) While Petitioner continues to object to the
Magistrate Judge’s conclusion, he fails to provide evidence to overcome the First
District’s findings through “clear and convincing evidence.” 28 U.S.C. § 2254(e); Cullen v.
Pinholster, 563 U.S. 170 (2011).
a. May 4, 2016 Interview
Petitioner argues that evidence which “was a part of the record” was “not
considered or applied” by the First District in evaluating the motion to suppress as it
applied to the May 4, 2016 interview. (Objections, Doc. 57, Pg. ID 3171.) However, “not
every finding of fact need be stated on the record in indefinite detail and clarity.” Knaubert
v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1986). “[W]hen a state trial court holds a hearing
on a motion to suppress evidence and rules on the motion, a federal district court may
assume that the state court found the facts necessary to support the state court's
decision.” Id. (citing Townsend v. Sain, 372 U.S. 293, 313-14 (1963)). This is because a state
court’s finding of fact must not be disturbed unless it is an unreasonable determination
of the facts in light of the evidence presented in the state court proceedings, or unless the
petitioner provides clear and convincing proof to refute it. 28 § 2254(d)(2); Brown v.
Payton, 544 U.S. 133, 140 (2005.)
While Petitioner cites to a list of alleged facts to support his position, the
Magistrate Judge correctly found that there is insufficient evidence to overcome the
deference owed to the First District. (Report, Doc. 45, Pg. ID 3085; Supplemental Report,
Doc. 50, Pg. ID 3143.) As an initial matter, many of the record references cited by
Petitioner were trial testimony, not suppression hearing testimony. See State v. Tapke, No.
C-060494, 2007 Ohio App. LEXIS 4525, at * 22 (Ohio Ct. App. Sept. 28, 2007) (“Although
both parties have argued about evidence that was presented at trial, we may only
consider and review the evidence that was presented at the suppression hearing.”). And
those facts that were properly sourced from the suppression hearing do not otherwise
“clear[ly] and convincingly” overcome the First District’s findings. 28 U.S.C. § 2254(e);
Cullen v. Pinholster, 563 U.S. 170 (2011).
b. May 10, 2016 Interview
Petitioner additionally maintains that the police’s underlying intention to place a
GPS tracker on Petitioner's car during the May 10, 2016 interview was coercive.
(Objections, Doc. 57, Pg. ID 3175-82.) However, as noted by both the First District and the
Magistrate Judge, Petitioner “cannot have felt compelled to answer questions by the
presence of the GPS unit because he did not know about it.” (See Report, Doc. 45, Pg. ID
3087.) Again, Petitioner fails to overcome the First District’s findings through “clear and
convincing” evidence. 28 U.S.C. § 2254(e).
c. May 13, 2016 Interview
Finally, Petitioner maintains that the police’s use of the Reid Method during the
May 13, 2016 interview was coercive. (Objections, Doc. 57, Pg. ID 3182-92.) The First
District found that Miranda warnings were given prior to this interview and that
Petitioner had waived his rights by signing the Advice of Rights form. Durgan, 2018 Ohio
App. LEXIS 2544, at *13. The First District then concluded, based on the totality of the
circumstances, that Petitioner’s post-Miranda statements were voluntary. Id. While
Petitioner maintains that the Reid Method was coercive, this specific argument was not
raised in the suppression hearing and is, thus, defaulted. (See Supplemental Report, Doc.
50, Pg. ID 3150-52.) Without more, Petitioner cannot overcome the deference owed to the
First District’s findings.
Therefore, Petitioner’s First Ground for Relief is dismissed with prejudice.
II. Ground Two: Ineffective Assistance of Trial Counsel
Petitioner argues that his Second Ground for Relief is not procedurally defaulted
because he “was not legally required to pursue [Ground Two] on post-conviction relief.”
(Objections, Doc. 57, Pg. ID 3192.) Petitioner misconstrues the Magistrate Judge’s
findings. The Magistrate Judge found that Petitioner’s “claims about what a false
confession expert would testify to are totally speculative.” (Report, Doc. 45, Pg. ID 3093.)
The appellate record did not offer any testimony from such an expert or any other
relevant evidence to support Petitioner’s contention. (See id.) So, while Petitioner is
permitted to bring such a claim forward on direct appeal, he failed to provide evidence
to the First District that could properly be reviewed by the Magistrate Judge— making
the claim procedurally defaulted. The Magistrate Judge merely explained that, if
Petitioner desired to bring forward such evidence, he would had to have done so through
a post-conviction petition. (Id. at Pg. ID 3093-94.) Petitioner failed to properly do so, as he
(1) filed such a petition beyond the expiration of the statute of limitations and (2) failed
to include this claim among those he raised. (Id. at Pg. ID 3094.) Thus, Ground Two is
procedurally defaulted.
Despite the foregoing, the Magistrate Judge considered the substance of
Petitioner’s claim and found that the First District’s findings were entitled to deference.
(Report, Doc. 45, Pg. ID 3094.) While Petitioner argues that an expert on the Reid Method
would have been outcome determinative in the case, (Objections, Doc. 57, Pg. ID 3194-
98), such an assertion is merely hypothetical. The decision to call an expert witness is in
the sound discretion of the trial counsel, and “the failure to call an expert and instead rely
on cross-examination does not constitute ineffective assistance of counsel.” State v.
Nicholas, 66 Ohio St. 3d 431, 436 (Ohio 1993). As the First District found, Petitioner’s trial
counsel extensively and thoroughly cross-examined the lead detective about the Reid
Method and other interrogation techniques. Durgan, 2018 Ohio App. LEXIS 2544, at *19.
Without more, the Court cannot conclude that, had Petitioner’s counsel called an expert
on the Reid Method, the outcome of the trial would likely have been different. Therefore,
Petitioner’s Second Ground for Relief is dismissed with prejudice.
III. Ground Three: Insufficient Evidence to Convict of Murder
Petitioner maintains that the First District did not properly consider all of the
evidence available to it when determining the sufficiency of evidence to convict him of
murder. (Objections, Doc. 57, Pg. ID 3203.) “It is important to remember when reviewing
a sufficiency of the evidence challenge that this Court ‘do[es] not reweigh the evidence,
re-evaluate the credibility of the witnesses, or substitute [its] judgment for that of the
jury.’” Lynch v. Hudson, No. 2:07-cv-948, 2011 U.S. Dist. LEXIS 110652, at *81-82 (S.D. Ohio
Sept. 28, 2011) (quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)). “If the record
contains credible, competent evidence enabling a rational jury to find each essential
element beyond a reasonable doubt, then Petitioner’s challenge to the sufficiency of the
evidence fails.” Id. “A sufficiency of evidence review, for purposes of federal habeas
relief, does not focus on whether the trier of fact made the correct guilt or innocence
determination, but rather on whether it made a rational decision to convict or acquit.”
Benge v. Johnson, 312 F. Supp. 2d 978, 1000 (S.D. Ohio 2004).
The evidence presented in this case was sufficient for conviction. (See Report, Doc.
45, Pg. ID 3094-96; Supplemental Report, Doc. 50, Pg. ID 3153-56.) Petitioner brings
forward various arguments to suggest innocence —a lack of motive, threats, or presence
at the crime scene. (Objections, Doc. 57, Pg. ID 3202-05.) However, as the Magistrate Judge
demonstrated, the record possessed enough circumstantial evidence for a rational jury to
find Petitioner guilty. (See Report, Doc. 45, Pg. ID 3094-96; Supplemental Report, Doc. 50,
Pg. ID 3153-56.)
In particular, Petitioner argues that all of his statements made in the May 13, 2016
interview should not have been considered by the jury. (Objections, Doc. 57, Pg. ID 3204.)
However, as discussed above, these statements were properly found to be admissible.
Petitioner additionally argues that there was a lack of physical evidence to support the
conclusion that a robbery had occurred or that Petitioner had shot the victim. (Id. at Pg.
ID 3206.) However, as articulated by the Magistrate Judge, “[w]hen considering all the
evidence, most of it circumstantial,” the Court cannot say that the First District erred in
finding the record to be sufficient for a murder conviction. (Supplemental Report, Doc.
50, Pg. ID 3156.) Therefore, Petitioner’s Third Ground for Relief is dismissed with
prejudice.
IV. Ground Four: Insufficient Evidence of Having a Weapon Under
Disability
Petitioner maintains that there was insufficient evidence to show that he possessed
a weapon while under disability, as he was not responsible for the murder. (Objections,
Doc. 57, Pg. ID 3211). Petitioner has admitted a prior conviction of robbery. (Report, Doc.
45, Pg. ID 3096.) And, as noted above, the Court has already concluded that there was
sufficient evidence to prove Petitioner murdered the victim by shooting him to death. As
the Magistrate Judge found, “[t]hat satisfies the possession of a firearm element of the
offense.” (Id.) Thus, there was sufficient evidence to convict Petitioner of having a
weapon while under disability and Petitioner’s Fourth Ground for Relief is dismissed
with prejudice.
V. Ground Five: Incorrect Form of Judgment Conviction
The Reports recommend that Ground Five should be dismissed without prejudice
to allow Petitioner to pursue any available state court remedies. (Report, Doc. 45, Pg. ID
3097; Supplemental Report, Doc. 50, Pg. ID 3157.) Petitioner does not object. Thus, the
Court need not consider the Magistrate Judge’s recommendation as it relates to
Petitioner's Ground Five.
VI. Ground Six: Violations of Petitioner’s Sixth and Fourteenth Amendment
Rights
Petitioner maintains that his Sixth Ground for Relief Violation of his Sixth and
Fourteenth Amendment rights — was raised in a timely manner pursuant to Ohio Rule of
Appellate Procedure 26(B), as he mentioned elements of the claim in his Application to
Reopen. (Objections, Doc. 57, Pg. ID 3215-17.) Petitioner cites to his Amendment to the
Application, which brings forward a claim that “Defendant’s Trial Counsel was
Ineffective for Waiving the Defendant's Presence During a Critical Stage in the
Proceedings[sic] and the Court Committed Plain Error by Accepting the Waiver by
Counsel.” (Amendment to Application, Doc. 10, Pg. ID 187.) The Magistrate Judge found
this claim to be a reiteration of Ground Seven, which arises under ineffective assistance
of counsel. (See Report, Doc. 45, Pg. ID 3098.) Though the facts within the claim are similar
to those identified in Ground Six, the Magistrate Judge properly found this claim to be
brought under ineffective assistance of counsel, not a violation of his Sixth and
Fourteenth Amendment rights. (Id.)
Petitioner later filed a Petition for Post-Conviction Relief, raising claims that are
reiterated as Ground Six and Ground Seven. (Petition, Doc. 10, Pg. ID 267-83.) However,
the trial court denied the Petition as untimely, which the First District affirmed.
(Judgment Entry, Doc. 27, Pg. ID 406-09). Thereafter, the Supreme Court of Ohio denied
Petitioner’s request for mandamus “upon consideration of the respondent’s motion to
dismiss.” (Entry, Doc. 27, Pg. ID 486.) Petitioner fails to present any argument that would
“persuade this Court to ignore the Ohio law.” (Supplemental Report, Doc. 50, Pg. ID
3157.) Thus, Petitioners Sixth Ground for Relief is procedurally defaulted and is
dismissed with prejudice.
VII. Ground Seven: Ineffective Assistance of Counsel
Petitioner concedes that Ground Seven was not timely appealed, but requests that
the Court excuse his delay due to the pandemic. (Objections, Doc. 57, Pg. ID 3217.) The
Magistrate Judge properly found that Petitioner procedurally defaulted his Seventh
Ground for Relief due to its untimeliness. (Report, Doc. 45, Pg. ID 3097-3104;
Supplemental Report, Doc. 50, Pg. ID 3157-58.) Again, the Court is not persuaded “to
ignore the Ohio law.” (Supplemental Report, Doc. 50, Pg. ID 3157.) Therefore, Petitioner’s
Seventh Ground for Relief is dismissed with prejudice.
VII. Conclusion
Accordingly, the Court ADOPTS the Report and Recommendation (Doc. 45) and
the Supplemental Report and Recommendation (Doc. 50) in their entirety. The Court
ORDERS the following:
(1) Petitioner’s Petition (Doc. 1) as to Grounds One, Two, Three, Four, Six, and
Seven of Relief are DISMISSED WITH PREJUDICE;
(2) Petitioner’s Petition (Doc. 1) as to Ground Five of Relief is DISMISSED
WITHOUT PREJUDICE, allowing Petitioner to pursue any available state
court remedies; and
(3) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that, for the reasons
discussed above, an appeal of any Order adopting these Reports would not be
taken in good faith, and therefore, deny Plaintiff leave to appeal in forma
pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
aN ut
By:
JUDGE MATTHEW W. McFARLAND
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