The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KEVIN GAFFIN,
Petitioner, : Case No. 1:22-cv-259
- vs - District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TIM SHOOP, WARDEN,
Chillicothe Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case is brought by Petitioner Kevin Gaffin pursuant to 28 U.S.C. § 2254
with the assistance of counsel and is before the Court for decision on the merits on the Petition
(ECF No. 1), the State Court Record (ECF No. 12), the Return of Writ (ECF No. 13), and
Petitioner’s Reply (ECF No. 18).
Litigation History
On July 23, 2015, the Adams County Grand Jury indicted Gaffin on three counts of rape
in violation of Ohio Revised Code § 2907.02(A)(1)(b) with a minor less than ten years of age
specification (Counts 1, 3, and 5); three counts of sexual battery in violation of Ohio Revised Code
§ 2907.03(A)(5) with a minor less than thirteen years of age specification (Counts 2, 4, and 6); and
one count of felonious assault in violation of Ohio Revised Code § 2903.11(A)(1) (Count 7).
(Indictment, State Court Record, ECF No. 12 Exhibit 1, PageID #: 78). Following trial, the jury
found Gaffin guilty of all counts and specifications. Id. at Ex. 2. Merging the rape and sexual battery
convictions, the court sentenced Gaffin to three life sentences without parole for the rapes and eight
years for the felonious assault. All sentences were to be served consecutively, for an aggregate term of
life in prison plus eight years. Id. at Ex. 3.
Gaffin appealed, raising two assignments of error. Both were overruled and the convictions
affirmed. State v. Gaffin, 2017 WL 2226725 (Ohio App. 4th Dist. May 17, 2017)(Gaffin I), appellate
jurisdiction declined, 150 Ohio St. 3d 1454 (2017).
On August 28, 2017, Gaffin, through the same counsel who represents him in this Court, filed
a Petition for Post-Conviction Relief under Ohio Revised Code § 2953.21, raising eight claims of
ineffective assistance of trial counsel (Petition for Post-Conviction Relief, State Court Record, ECF
No. 12, Ex. 18). The trial court denied the petition. Id. at Ex. 21. On appeal, the Fourth District found
the trial court abused its discretion in denying the petition without a hearing and remanded for that
purpose. State v. Gaffin, 21019 WL 384573 (Ohio App. 4th Dist. Jan. 30, 2019) (Gaffin II1), appellate
jurisdiction declined, 155 Ohio St. 3d 1457 (May 15, 2019).
After a hearing on remand, the trial court again denied the post-conviction petition (Decision
and Final Judgment, State Court Record, ECF. No. 12-1, Exhibit 35, PageID #: 811). Gaffin again
appealed, but this time the Fourth District affirmed. State v. Gaffin, 2021 WL 33756729 (Ohio App.
4th Dist. Jul. 30, 2021)(“Gaffin III”), appellate jurisdiction declined, 165 Ohio St. 3d 1541 (Feb. 15,
2022).
Gaffin then filed his Petition in this Court on May 9, 2022, pleading one ground for relief:
1 Gaffin II and Gaffin III are used to refer respectively the two opinions of the Fourth District on appeal in post-
conviction. That court used “Gaffin I” to refer to its opinion on direct appeal.
MR. GAFFIN IS ENTITLED TO HAVE HIS CONVICTIONS
VACATED BECAUSE THEY WERE IMPOSED IN VIOLATION
OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL
(Petition, ECF No. 1, PageID 25).
Warden Shoop does not plead any affirmative defenses, but defends on the merits, asserting
that the final reasoned opinion of the Fourth District Court of Appeals (Gaffin III”) is an objectively
reasonable application of relevant Supreme Court precedent and is therefore entitled to deference under
28 U.S.C. § 2254(d)(Return of Writ, ECF No. 13, PageID 2201, 2203, 2214, 2219).
Petitioner’s Traverse
Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA"), specifically as codified in 28 U.S.C. § 2254(d)(1), a habeas court must
defer to the last reasoned state court decision on the merits on a constitutional claim later presented in
habeas unless that decision was contrary to or an objectively unreasonable application of the holdings
of Supreme Court precedent. We must likewise defer to state court findings of fact unless they
constitute unreasonable determinations of the facts based on the evidence presented. 28 U.S.C. §
2254(d)(2). 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (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).
Instead of facing that challenge directly, Gaffin’s present counsel argue the case as if this
Court were performing a de novo review of trial attorney Aaron Haslam’s performance. The
Petition itself begins with a three-page list of trial counsel’s asserted errors (ECF No. 1, PageID
3-5). To show how poorly Haslam remembered the case, counsel purportedly took his deposition
and claim to have attached a copy to the Petition.2 The balance of the fifty-six page Petition
catalogues the various ways in which Haslam’s performance is alleged to have been deficient.
In the Traverse, counsel begin their critique of Haslam where they began it in state court,
to wit, with a four-page narrative Affidavit of the Petitioner filed in support of his post-conviction
petition at the very outset of the post-conviction process (Traverse, ECF No. 18, PageID 2230,
quoting Gaffin Affidavit of August 17, 2017, Ex. 1 to Post-Conviction Petition, State Court
Record, ECF No. 12, Ex. 18).
The crux of the case, counsel argue, is Haslam’s “failure to interview the witnesses Mr.
Gaffin had identified and the impact it had on the trial.” Id. at PageID 2231. However, “[c]rucial
to a full understanding of the breadth of Haslam’s ineffective assistance . . . is a careful review of
Haslam’s errors of omissions and commissions that resulted in a disastrous defense and an unfair
trial.” Id. The effort, then, is to construct a narrative of ineffective assistance which is not tightly
tied to the issues actually presented thereafter to the state courts to decide the ineffective assistance
of trial counsel issue.
One allegedly egregious mistake was failure to have the forensic interview redacted, along
with allowing other bad acts evidence to be admitted. Id. at PageID 2231-33. Gaffin also claims
Haslam mishandled polygraph results. Id. at PageID 2233. The law of the case doctrine is
discussed at PageID 2234-36. Gaffin then turns to a general discussion of how the Fourth District
didn’t follow Strickland v. Washington, 466 U. S. 668 (1984). PageID 2236-41. He asserts that
he is entitled to de novo review of his ineffective assistance of trial counsel claims in this Court
because the Fourth District’s decision was ‘contrary to” Strickland. PageID 2238. In his
2 No deposition transcript is attached to the Petition. When counsel moved later to expand the record, this was among
the documents they proffered (See ECF No. 19, Ex. A). That Motion was denied on the basis of Cullen v. Pinholster,
563 U.S. 170 (2011), which would have required its exclusion even if attached to the Petition (ECF No. 22).
Conclusion, he lists (without any record references) nine specific examples of alleged
ineffectiveness and concludes:
Even more egregious than all of the foregoing instances of
ineptitude, was Haslam’s failure to call a majority of the witnesses
he had subpoenaed to testify at trial and his failure to interview
nearly ten of those individuals Mr. Gaffin had identified as having
exculpatory or impeaching information critical to his defense.
PageID 2242-43.
Analysis
Because the Ohio Fourth District Court of Appeals did decide Gaffin’s ineffective
assistance of trial counsel claims on the merits, this Court must defer to that decision unless it was
contrary to or an objectively unreasonable application of clearly established Supreme Court
precedent. Harrington, supra.
Excursus on Law of the Case Doctrine
A principal focus of Gaffin’s legal argument in his Traverse is that the Fourth District Court
of Appeals, on appeal after remand, violated the law of the case doctrine by not continuing to find
ineffective assistance of trial counsel. Id. at PageID 2235, quoting Gaffin II. The Fourth District
had previously stated: “After reviewing the evidence, we find that Gaffin established that he
received constitutionally ineffective assistance of counsel.” State v. Gaffin, 2019-Ohio-291, ¶ 88
(Ohio App. 4th Dist. Jan. 19, 2019). Gaffin calls this an “unequivocal” finding of ineffective
assistance of trial counsel. However, in the same paragraph the Gaffin II court made that finding
ambiguous:
{¶88} After reviewing the evidence, we find that Gaffin established
that he received constitutionally ineffective assistance of counsel.
First, Gaffin showed that his trial counsel's performance fell below
an objective level of reasonable representation. Although trial
counsel's decision not to call a witness may be considered trial
strategy, “[a] total abdication of duty should never be viewed as
permissible trial strategy.” State v. Johnson, 24 Ohio St.3d 87, 494
N.E.2d 1061 (1986). Here, Gaffin's trial counsel not only failed to
call a majority of the witnesses he subpoenaed, the affidavits show
that he failed to interview at nearly ten of those individuals. See State
v. Erwin, 5th Dist. Licking No. 95 CA 82, 1996 WL 363815, *5
(June 10, 1996) (“Appellant is entitled to a hearing on this issue in
order to further develop the substance of said witnesses' testimony
and demonstrate how the failure to call said witnesses at trial was
prejudicial.”). Second, in light of the admissible evidence Gaffin
provided, we find that there is a reasonable probability that the jury
would have returned a different verdict. Had the jury heard the
witnesses' testimony, especially that of the two officers from the
Manchester Police Department, it is reasonably likely that the
outcome of the trial would have been different. Because Gaffin
provided sufficient evidence in his petition for postconviction relief
to satisfy both prongs of an ineffective assistance of counsel claim,
we find that any rational trial court would have found substantive
grounds for relief existed and granted an evidentiary hearing.
Therefore, we find that the trial court abused its discretion in
denying Gaffin's postconviction relief petition without a
hearing. Id. (emphasis supplied)
Thus the holding in Gaffin II was not that Gaffin actually received ineffective assistance of trial
counsel, but that he had presented enough evidence that it was an abuse of discretion not to hold
an evidentiary hearing on that issue.
After that hearing on remand and considering both the evidence and the trial court’s
opinion, the Fourth District found no entitlement to ultimate relief.3
Gaffin’s assignments of error in Gaffin III revolved entirely around his claim that the trial
3 Gaffin notes that it was a different panel, but there is nothing irregular in that: no rule, federal or state, requires Ohio
appellate courts to assign the same panel to a second appeal in the same case.
court on remand was bound by the law of the case doctrine to find he received ineffective
assistance of counsel. The appellate court in Gaffin III carefully explained why this was not so
and why the Ohio law of the case doctrine did not require it or the trial court to find Haslam
provided ineffective assistance of trial counsel.
In any event, whether Ohio law of the case doctrine was correctly applied in either state court
is beside the point in this proceeding. Federal habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463
U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.)
152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar,
J. concurring). Nothing in the decisional law of the Supreme Court requires state courts to apply
law of the case doctrine, either their own or any federal doctrine. Petitioner has not claimed, much
less shown, that the Fourth District’s treatment of law of the case doctrine is somehow contrary to
or an objectively unreasonable application of a decision of the Supreme Court on a point of
constitutional law.
The Substance of the Fourth District’s Decision
Putting aside the law of the case doctrine and what we might conclude on a de novo review,
we must turn to examining what the Fourth District actually decided. What were they asked to
decide? On appeal after the evidentiary hearing, Gaffin pleaded the following assignments of error:
FIRST ASSIGNMENT OF ERROR:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO FOLLOW THE LAW-OF-THE-CASE, BY
FINDING MR. GAFFIN DID NOT PROVE HIS TRIAL
COUNSEL FAILED TO FUNCTION AS COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT, THEREBY
VIOLATING MR. GAFFIN'S CONSTITUTIONAL RIGHT TO
DUE PROCESS
SECOND ASSIGNMENT OF ERROR:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO FOLLOW THE LAW-OF-THE-CASE, BY
FINDING MR. GAFFIN SUFFERED NO PREJUDICE WHERE
THE EVIDENCE ADDUCED AT THE HEARING WAS
SUBSTANTIALLY THE SAME AS THE AVERMENTS
CONTAINED IN THE AFFIDAVITS, THEREBY VIOLATING
MR. GAFFIN'S CONSTITUTIONAL RIGHT TO DUE PROCESS
THIRD ASSIGNMENT OF ERROR:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO FOLLOW THE LAW-OF-THE-CASE, BY
DENYING MR. GAFFIN THE OPPORTUNITY TO DEVELOP
THE SUBSTANCE OF THE WITNESSES' TESTIMONY,
THEREBY VIOLATING MR. GAFFIN'S CONSTITUTIONAL
RIGHT TO DUE PROCESS
FOURTH ASSIGNMENT OF ERROR:
THE TRIAL COURT DID NOT REVIEW MR. GAFFIN'S
PETITION, NOR THE WITNESSES' TESTIMONY,
OBJECTIVELY, THEREBY COMPROMISING THE
INTEGRITY OF THE PROCEEDING AND DEPRIVING MR.
GAFFIN HIS CONSTITUTIONAL RIGHT TO DUE PROCESS.
(Appellant Brief, State Court Record ECF No. 12-1, Ex. 37, PageID 901-02).
The first three of these are about abuse of discretion which is not a claim cognizable in
habeas because abuse of discretion is not a denial of due process. Sinistaj v. Burt, 66 F.3d 804 (6th
Cir. 1995). Beyond that, violation of the Ohio law of the case doctrine is not a constitutional
violation as outlined above. Levine, supra. Beyond that the Ohio courts did not violate the Ohio
law of the case doctrine: we are bound to accept Ohio courts’ decisions on Ohio law. Bradshaw
v. Richey, 546 U.S. 74 (2005).
Gaffin’s Fourth Assignment of Error was that the Ohio trial judge did not review the case
on remand “objectively.” Gaffin specifies this lack of objectivity: “The trial court's demeanor
during all phases of Mr. Gaffin's Petition, as well as the tone of its decisions, suggest an
unfavorable predisposition indicating an inability to impartially determine the facts. Such behavior
is prejudicial to the fair administration of justice.” (Appellant’s Brief, State Court Record, ECF
No. 12-1, Ex. 37, PageID 9214).
Faced with these Assignments of Error, how did the Fourth District decide the case? It
noted that the governing standard for claims of ineffective assistance of trial counsel is provided
by Strickland, supra, which requires proof of deficient performance by counsel and resulting
prejudice and that the trial court had applied Strickland. Gaffin III at ¶ 135. It disavowed any
conclusion that it had already decided in Gaffin II that Petitioner actually6 received ineffective
assistance of trial counsel.
Aside from rejecting the law of the case arguments, the Fourth District independently
reviewed the post-conviction record and noted that the trial court had also done so. With respect
to excluded witnesses, the Fourth District found that “we would agree with the trial court's
conclusion that trial counsel's performance was not deficient and the above witnesses’ testimonies
4 This sounds like a claim that the trial judge was biased against Gaffin. As a basic matter of due process, a criminal
defendant is entitled to an unbiased judge, Tumey v. Ohio, 273 U.S. 510 (1927). Denial of this right is a structural
error which requires setting aside a conviction regardless of prejudice. But Gaffin apparently did nothing to raise
judicial bias as a claim, either by motion to disqualify or for recusal.
5 Gaffin claims Gaffin III is “contrary” to Strickland, but does not identify any principle from Strickland that it rejects.
6 “[I]t is simply illogical at best or disingenuous at worst to conclude that our decision in Gaffin II unequivocally found
that Appellant established a prima facie case of ineffective assistance of counsel and thus became the law of the case.
We find no merit to Appellant's law of the case argument.” Gaffin III at ¶ 30.
would not have changed the outcome of the trial.” Gaffin III at ¶ 37.
Given its disposition of the first two assignments of error, the Fourth District found the
third assignment “arguably moot.” Id. at ¶ 39. Nevertheless it went on to discuss the merits of
Gaffin’s claim he had not been allowed to develop supporting witness testimony. The four
witnesses Gaffin proposed to present at the evidentiary hearing were Braxton Gaffin, Tyler
Cantrell, Mike Decker, and Officer Malott. Gaffin III at ¶ 47.
The Fourth District held Braxton Gaffin’s testimony had been properly excluded on the
basis of res judicata. Id. at ¶ 49.
Tyler Cantrell is an attorney who represented Gaffin in his divorce from the victim’s
mother. Id. at ¶ 51. At the evidentiary hearing, Gaffin proffered a video in Cantrell’s possession
which purported to show R.A., the victim, on a hunting trip with Gaffin of which R.A.’s mother
allegedly approved but which occurred after the alleged sexual assaults. Id. at ¶ 52. In Gaffin II
the video was excluded on the basis of hearsay. Gaffin III at ¶ 52, citing Gaffin II at ¶ 54.
Shifting ground, Gaffin argued in Gaffin III the trial court refused to allow Mr. Cantrell to
testify that, contrary to the trial testimony of R.A.’s mother, she never alleged any acts of domestic
violence or sexual assault by Gaffin during the divorce proceedings. Appellant contends this
information would have impeached R.A.’s mother on a critical issue. Because Gaffin had known
of this issue at the time of Gaffin II and not raised it, the Fourth District held it was barred by res
judicata. Gaffin III at ¶ 54. Regarding Mike Decker, his testimony had also been ruled
inadmissible in Gaffin II and reconsideration was barred by res judicata. Id. at ¶ 56.
Lastly, Jason Mallott testified (or proffered testimony) that during an incident in 2012 he
had heard R.A.’s mother say she would do anything to get Gaffin arrested. Id. at ¶ 59. R.A. also
said during the same incident that he wanted to leave his mother’s home with Gaffin. Id. The trial
court discounted this testimony because it was remote in time, but also before R.A. had revealed
the sexual assaults in February 2015. Id. The trial judge decided that not presenting this testimony
at trial could have been a sound strategic decision because it could have strengthened the State’s
expert’s testimony about bonding between child sexual assault victims and their abusers. Id. The
Fourth District found the trial court’s decision on Mallott’s testimony was within its discretion to
determine credibility and arrived at after thorough analysis; its inclusion would not likely have
changed the outcome of the trial. Id. at ¶ 62.
Noting that the trial attorney himself, Aaron Haslam, had not been presented at the
evidentiary hearing on the question of strategic choice, the Fourth District found no ineffective
assistance of trial counsel in Haslam’s failure to present these four witnesses at trial. Id. at ¶ 63.
Because the Fourth District decided Gaffin’s ineffective assistance of trial counsel claim
on the merits, to prevail in this habeas corpus case, he must persuade this Court that the decision
of the Fourth District just summarized is contrary to or an objectively unreasonable application of
Strickland, supra. No, says Gaffin, “this Court should review Mr. Gaffin’s Petition
“unencumbered by the deference AEDPA normally requires,” to determine whether Mr. Gaffin is
“in custody in violation of the Constitution or laws … of the United States.” Panetti v. Quarterman,
551 U.S. 930, 948 (2007); 28 U.S.C. § 2254(a).” (Traverse, ECF No. 18, PageID 2237). In Panetti,
the Court held that failure of the state courts to provide a death-sentenced prisoner with the
procedures required for determination of competency to be executed dispensed with AEDPA
deference – no deference to the results of a constitutionally inadequate procedure. But Gaffin does
not argue, much less prove, that there is a constitutionally-mandated post-conviction procedure
which the state courts here did not provide.
Gaffin cites Strickland itself for the proposition that proof of prejudice from ineffective
assistance of trial counsel need not reach the level of a preponderance of the evidence (Traverse,
ECF No. 18, PageID 2237-38). But the Fourth District in Gaffin III did not reject that standard.
Gaffin next relies on Lafler v. Cooper, 556 U.S. 156 (2012). In that case the Supreme
Court held the Michigan Court of Appeals recognized Strickland, but failed to apply it, deciding
instead that the underlying guilty plea was valid. Id. at 173. In other words, refusal to apply clearly-
applicable Supreme Court precedent amounts to rendering a decision that is contrary to that
precedent. But the Fourth District applied Strickland here, finding Haslam’s performance was not
deficient and there was no resulting prejudice.
Gaffin spends the last pages of his Traverse arguing again that the totality of Attorney
Haslam’s performance throughout the case was deficient and prejudicial. He even argues “Despite
repeated questioning, Haslam never offered and no evidence supports any tactical rationale for the
pervasive oversights and lapses in his representation of Mr. Gaffin.” (Traverse, ECF No. 18,
PageID 2240-41). Wherever that questioning occurred, it was not in the evidentiary hearing on
remand.
Gaffin’s de novo approach is not warranted by existing habeas corpus law. In the first
instance, at least, we are limited to assessing the decision of the Fourth District on the ineffective
assistance of trial counsel claims actually presented to it. Gaffin’s claim that he was prejudiced
by failure to present the testimony of the witnesses actually called at the evidentiary hearing was
thoroughly analyzed and reasonably rejected by both the trial court and the
Fourth District. That is the question before this Court and one on which Gaffin has failed to
persuade.
Conclusion
Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it
is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
April 18, 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
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