Berry v. Meintel

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN BERRY, Case No. 2:22-cv-2465

Petitioner, Marbley, C.J.

Bowman, M.J.

v.

MIKE MEINTEL/WARDEN,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner proceeding with the assistance of counsel, has filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter has been

referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and this Court’s General

Order 22–05. Pending before the Court are the Petition and its attachments (Doc. 1, 3);

Respondent’s Return of Writ (Doc. 7); and the state court record (Doc. 6). Petitioner

filed a Reply (Doc. 9). For the reasons that follow, the Magistrate Judge

RECOMMENDS that the Petition be DENIED and that this action be DISMISSED.

The Undersigned further RECOMMENDS that the Court decline to issue a

certificate of appealability (“COA”).

I. Procedural History

The record reveals the following relevant procedural history. On February 15,

2019, Petitioner was indicted by a grand jury in the Court of Common Pleas for Union

County, Ohio. (Doc. 6 at PageID # 45-47). Petitioner was charged with five counts of

aggravated trafficking in drugs in violation of Ohio Rev. Code Ann. § 2925.03(A)(1), §

2925.03(C)(1)(a); and one count of involuntary manslaughter for the death of Ashley

Russell in violation of Ohio Rev. Code Ann. § 2903.04(A), § 2903.04(C). (Id.)

A jury trial was held January 13 through 16, 2020. (Id. at PageID # 647-1895).

On January 16, 2020, the jury returned a guilty verdict on all six counts. (Id. at PageID #

1888-1890).

The Court of Appeals for Ohio’s Third District summarized the facts adduced at

trial as follows:

{¶2} Ashley and her two children lived with her parents in Marysville, Ohio.

She and her two children moved into her parents’ house in Marysville, Ohio

after she began battling a drug addiction. Ashley was friends with Berry and

would drive him places since he did not have a driver's license. Ashley's

mother, Tonya Russell (“Tonya”), suspected that Ashley and Berry were

doing drugs together. Tonya texted Berry “[t]o tell him * * * that I knew he

was selling her [Ashley] drugs or giving them to her * * * and I wanted it to

stop.” However, in response, Berry insisted that he was “cutting ties with *

* * dope” and that they were just “spending time together.”

{¶3} Deputy Rod Wilson (“Deputy Wilson”) of the Union County Sheriff's

Office testified that he became acquainted with Berry through several

complaints that his office had received. In February of 2017, the police

conducted a traffic stop of a vehicle and found methamphetamines in the

possession of G.C. Pursuant to an agreement with the Union County

Prosecutor's Office (“defendant's agreement”), G.C. consented to work with

the police as a confidential informant. G.C. would participate in four

controlled-buy operations that had Berry as their target.

{¶4} On April 7, 2017, Deputy Wilson issued $80.00 to G.C. to purchase

methamphetamines from Berry. G.C. walked to an area behind a local

repair shop where he had arranged a meeting with Berry. G.C. returned to

Deputy Wilson with $40.00 and a white powdery substance. This substance

was later tested and found to contain methamphetamines.

{¶5} On April 27, 2017, Deputy Wilson issued $80.00 to G.C. to purchase

methamphetamines from Berry. G.C. walked to a nearby parking lot at a

local shopping plaza where he had arranged to meet Berry. G.C. returned

to Deputy Wilson with $20.00 and a crystalline substance. This substance

was later tested and found to contain methamphetamines.

{¶6} On June 16, 2017, Deputy Wilson issued $80.00 to G.C. to purchase

methamphetamines from Berry. G.C. again walked to a nearby parking lot

at a local shopping plaza where he had arranged to meet Berry. G.C.

returned to Deputy Wilson with a crystalline substance and no excess funds

in his possession. This substance was later tested and found to contain

methamphetamines. This was the final controlled-buy operation involving

Berry before Ashley's death.

{¶7} On June 18, 2017, Berry engaged in a text exchange with Ashley. Ex.

173. Berry texted Ashley: “I got ur Chinese.” At trial, Detective Seth

McDowell (“Detective McDowell”) of the Union County Sheriff's Office

testified that “Chinese” is used as a name for a compound that “contains

fentanyl, whether it is made up of heroin and/or methamphetamine.” During

this exchange, Ashley texted, “So how can I get that from you?” Berry then

texted, “Give me a few want to wait till on the morning and come get it after

u drop ur boys.”

{¶8} On June 19, 2017, at 7:40 A.M., the following text exchange took place

between Ashley and Berry:

[Berry]: I. In town babe I need u

[Ashley]: Ok im getting ready to take [my son] to daycare.

Where will you be?

[Berry]: Parking g lot of the Dollar tree * * *

[Ashley]: I am hurrying. My mom doesnt leave until 9 so shes

still here.

At 8:48 A.M., the following exchange occurred:

[Ashley]: Did you bring that gor meet

[Ashley]: Im righy by yhe YMCA

[Berry]: Coming out of house.e depot

[Berry]: Home depot

[Ashley]: Im here in front of laen mowers

[Berry]: Coming

At trial, the State introduced footage from a security camera at Home Depot

that captured images of Berry and Ashley walking together.

{¶9} At around 1:00 P.M., Ashley's Aunt, Lisa Crumb (“Crumb”), stopped by

Ashley's residence during her (Crumb's) lunch break from work. Crumb

testified that she went to Ashley's house to borrow a hair dryer. She further

stated that, at the time of her visit, Ashley's children were in the swimming

pool. During their conversation, Crumb learned that Ashley had met Berry

that morning at Home Depot. After using the hair dryer, Crumb then

returned to work.

{¶10} On the afternoon of June 19, 2017, Ashley's aunt, Gayla Wooldridge

(“Wooldridge”), was visiting her parents (“Ashley's grandparents”) at their

house. Ashley's grandparents lived down the street from Ashley.

Wooldridge stated that, during her visit, Ashley's six-year-old son came to

Ashley's grandparents’ house to report “that he thought something was

wrong with Ashley.” Wooldridge then went to check on Ashley. Wooldridge

went to Ashley's house with her nephew, M.R.

{¶11} When Wooldridge arrived at Ashley's residence, the front door was

open. Wooldridge walked into the house and went to the upstairs bathroom.

The bathroom door was locked, so she and M.R. found the key and opened

the door. They then saw Ashley lying on the floor in the bathroom. Ashley

was unresponsive and was, by that point, turning blue. Wooldridge then

called 9-1-1.

¶12} The emergency squad arrived at Ashley's residence and transported

her to the hospital where she was declared dead at 5:07 P.M. Crumb went

to the hospital when she heard about Ashley. Crumb spoke with the law

enforcement officers who were at the hospital and informed them that

Ashley had met Berry that morning at Home Depot.

{¶13} The police examined the bathroom where Ashley was found. Corporal

Nathan Stone (“Corporal Stone”) discovered a hypodermic needle, a Q-tip

with the end ripped off, and a make-up bag behind the bathroom door. He

determined that this make-up bag was, based on its contents, a “rig bag.”

At trial, he explained that a rig bag contains “all the items [a drug user] would

need to shoot up, smoke, whatever you want to administer.” During the

investigation into Ashley's death, the police recovered Ashley's cell phone

from her residence. Her cell phone contained text messages that indicated

she was a drug user and was in contact with Berry.

{¶14} Corporal Stone also discovered a white powdery substance that was

in a plastic baggie that had been placed into another plastic baggie. He

stated that this package “looked like * * * it had been packaged for

distribution” and looked like it had “never been opened.” This white powdery

substance was subsequently tested and found to contain fentanyl and

ketamine.

{¶15} The police decided to have G.C. perform a fourth controlled-buy

operation with Berry as part of the investigation into Ashley's death. On June

21, 2017, Deputy Wilson issued $85.00 to G.C. to purchase a gram of

methamphetamines from Berry. This time G.C. went to Berry's residence

for the drug transaction. During this operation, G.C. spoke with Berry about

[Ashley] Russell.

{¶16} A recording of this conversation was admitted at trial. Speaking to

G.C., Berry said that he had seen Ashley on the day of her death and that

she had given him $15.00 for a ride to Columbus. G.C. returned from Berry's

house with a crystalline substance and no excess funds in his possession.

This substance was later tested and found to contain methamphetamines.

{¶17} On August 29, 2017, Dr. Bryan D. Casto (“Dr. Casto”) conducted a

postmortem examination of Ashley's remains. He concluded that the cause

of Ashley's death was “[m]ultiple drug intoxication (fentanyl, amphetamine/

methamphetamine).” On September 5, 2017, Dr. David Applegate (“Dr.

Applegate”), the Union County Coroner, determined that Ashley's death had

been an accident, having resulted from a drug overdose.

{¶19} …At trial, the State called G.C. to testify. However, G.C. invoked his

Fifth Amendment right against self-incrimination and refused to testify. The

State then granted G.C. immunity “as it relates to, one, any questions asked

by the prosecutor this afternoon; and, two, specifically as it relates to any

events” connected to the four controlled-buy operations. The trial court then

informed G.C. that he did not have a Fifth Amendment right against self-

incrimination in this context and that he must testify or be found in contempt.

However, G.C. still refused to testify. The trial court then held G.C. in

contempt.

State v. Berry, 2021 WL 1245031 at *1-4 (Ohio Ct. App. Apr. 5, 2021) (internal citations

omitted) (emphasis in original); (Doc. 6 at PageID # 304-312). After his conviction on

five counts of aggravated drug trafficking and one count of involuntary manslaughter,

the trial court sentenced Petitioner on March 6, 2020, to an aggregate sentence of

seventeen years’ incarceration. (Id. at PageID # 1934).

Petitioner appealed his convictions and sentence. He raised ten assignments of

error: (1) the record contained insufficient evidence to support a conviction for

aggravated possession of drugs in violation of Ohio Rev. Code § 2925.03 and for

involuntary manslaughter in violation of Ohio Rev. Code Ann. § 2903.04; (2) the

conviction for aggravated possession of drugs in violation of Ohio Rev. Code Ann. §

2925.031 and for involuntary manslaughter in violation of Ohio Rev. Code Ann. §

2903.04 was contrary to the manifest weight of the evidence; (3) the trial court erred

when it failed to give any jury instruction regarding causation; (4) the trial court erred

when it failed to grant a mistrial after the jury was tainted by the statements from a

potential juror; (5) the trial court erred when it failed to grant a mistrial or a continuance

due to late disclosure of the confidential informant's agreement; (6) the trial court

incorrectly ruled as it pertained to confidential informant's constitutional right against

self-incrimination and the subsequent criminal contempt findings prejudiced appellant;

(7) the trial court erred when it allowed text messages to be entered in violation of

[Petitioner’s] confrontation clause and where hearsay was offered for the truth of the

matter asserted; (8) the trial court erred when it allowed family members to be present

during the trial prior to their testimony being given in violation of any separation of

witnesses; (9) [Petitioner] was denied his constitutional right to the effective assistance

of counsel; and (10) the trial court erred when [Petitioner] received the maximum

sentence. Berry, 2021 WL 1245031 at *4; (Doc. 6 at PageID # 312-314).

On April 6, 2021, the appellate court overruled Petitioner’s assignments of error

and affirmed Petitioner’s conviction. (Id. at PageID # 303-375.) On May 21, 2021,

Petitioner filed an appeal in the Ohio Supreme Court and raised five issues for review:

Proposition of Law No. 1: It is against the sufficiency and manifest weight

of the evidence to find a defendant guilty of aggravated possession of

methamphetamine when the only evidence of such trafficking was text

1 On appeal, Petitioner challenged only one count of aggravating trafficking of drugs (Count 4),

which pertained to the June 19, 2017, transaction between Petitioner and Ashley Russell.

messages using the general term of "Chinese" and the drugs recovered

from the scene did not contain methamphetamine.

Proposition of Law No. 2: It is against the sufficiency and manifest weight

of the evidence to find a defendant guilty of involuntary manslaughter when

the predicate felony offense of aggravated possession of

methamphetamine has not been established.

Proposition of Law No. 3: A defendant is denied a right to a fair trial on the

charge of involuntary manslaughter when the only jury instruction given on

said charge was "proximate result.”

Proposition of Law No. 4: The Third Appellate District's Decision in State v.

Berry, 2021--Ohio 1132, is in conflict with the Fifth Appellate District's

Decisions in State v. Kosto, 2018-Ohio-1925, and the Ohio Supreme Court

should resolve this conflict.2

Proposition of Law No. 5: A defendant is denied a right to a fair trial when a

violation of the separation of witnesses has occurred because multiple

family members that testified attended the jury trial and were present during

the testimony of witnesses.

(Doc. 6 at PageID # 389, 391, 392, 394).

On August 3, 2021, the Ohio Supreme Court declined to accept jurisdiction over

Petitioner’s appeal. State v. Berry, 2021-Ohio-2615, 163 Ohio St. 3d 1516, 171 N.E. 3d

350 (table); (Doc. 6 at PageID # 486).

On June 13, 2022, Petitioner, with the assistance of counsel, sought a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, 3). The petition raises the

following grounds for relief:

Ground One: There was insufficient evidence to support Petitioner’s

convictions for aggravated trafficking (Count 4) and involuntary

manslaughter).

Ground Two: Petitioner’s Sixth Amendment right to confront the witnesses

against him were violated because: (1) Ashley Russell’s family was allowed

2 Petitioner argued that State v. Kosto required the state to prove that the drug involved in the

predicate offense for involuntary manslaughter would have solely been the cause of death,

notwithstanding the presence of other drugs. (Doc. 6 at PageID # 394).

to remain in the courtroom despite being trial witnesses, and (2) Petitioner

was unable to cross-examine the state’s confidential informant when the

informant exercised his Fifth Amendment right to remain silent.

Ground Three: Petitioner’s trial counsel was ineffective.

Ground Four: Petitioner’s due process rights were violated because the

jury was improperly instructed on proximate cause for the involuntary

manslaughter charge.

(Id.) (rephrased for clarity).

II. THE PETITION SHOULD BE DENIED.

In this federal habeas case, the applicable standard of review governing the

adjudication of constitutional issues raised by petitioner to the state courts is set forth in

28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with

respect to any claim adjudicated on the merits by the state courts unless the

adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the United

States Supreme Court; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the Supreme] Court has on a set

of materially indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir.

2011)(quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s

adjudication only results in an ‘unreasonable application’ of clearly established federal

law when ‘the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.’” Id. at 599–600 (quoting Williams, 529 U.S. at 413).

The statutory standard, established when the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to

meet. Id. at 600. As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing

AEDPA’s standards. See, e.g., Cullen v. Pinholster, U.S. , 131 S.Ct.

1388, 1398, 179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal

habeas court to the record before the state court where a claim has been

adjudicated on the merits by the state court). It is not enough for us to

determine that the state court’s determination is incorrect; to grant the writ

under this clause, we must hold that the state court’s determination is

unreasonable. . .. This is a “substantially higher threshold.” . . . To warrant

AEDPA deference, a state court’s “decision on the merits” does not have to

give any explanation for its results, Harrington v. Richter, U.S. , 131

S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant

Supreme Court cases, as long as “neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8,

123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).

654 F.3d 594 (emphasis in original). The Supreme Court extended its ruling in Harrington

to hold that when a state court rules against a defendant in an opinion that “addresses

some issues but does not expressly address the federal claim in question,” the federal

habeas court must presume, subject to rebuttal, that the federal claim was “adjudicated

on the merits” and thus subject to the “restrictive standard of review” set out in § 2254(d).

See Johnson v. Williams, 568 U.S. 289, 293 (2013).

Although the standard is difficult to meet, § 2254(d) “stops short of imposing a

complete bar on federal court relitigation of claims already rejected in state

proceedings” and “preserves authority to issue the writ in cases where there is no

possibility fairminded jurists could disagree that the state court’s decision conflicts with

[Supreme Court] precedents.” Harrington, 562 U.S. at 102. In other words, to obtain

federal habeas relief under that provision, the state prisoner must show that the state

court ruling on the claim presented “was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 103.

Decisions by lower courts are relevant “to the extent [they] already reviewed and

interpreted the relevant Supreme Court case law to determine whether a legal principle

or right had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600

(quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue

only if the application of clearly-established federal law is objectively unreasonable “in

light of the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the

time of the relevant state court decision.” McGhee v. Yukins, 229 F.3d 506, 510 (6th

Cir. 2000) (citing Williams, 529 U.S. at 412).

A. Procedural Default—Grounds Two, Three, and Four

As a preliminary matter, the Court will address Respondent’s argument that

Grounds Two, Three, and Four are procedurally defaulted.

In recognition of the equal obligation of the state courts to protect the

constitutional rights of criminal defendants, and in order to prevent needless friction

between the state and federal courts, a state defendant with federal constitutional

claims must fairly present those claims to the state courts for consideration before

raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see

also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Leroy v. Marshall, 757 F.2d

94, 97, 99–100 (6th Cir. 1985). If the petitioner fails to fairly present his constitutional

claims through the requisite levels of state appellate review to the state's highest court

or commits some other procedural default that prevents a merit-based review of the

federal claims by the state's highest court, he may have waived the claims for purposes

of federal habeas review. See O'Sullivan, 526 U.S. at 847–48; Harris v. Reed, 489 U.S.

255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also

Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).

In order to satisfy the “fair presentation” requirement, a habeas corpus petitioner

must present both the factual and legal underpinnings of his claims to the state courts.

Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); McMeans v. Brigano, 228 F.3d

674, 681 (6th Cir. 2000); Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). “While a

petitioner need not cite chapter and verse of constitutional law, general allegations of

the denial of rights to a fair trial and due process do not fairly present claims that

specific constitutional rights were violated.” Hand v. Houk, 871 F.3d 390, 418 (6th Cir.

2017)

A set of four guidelines has been developed for determining whether a claim was

presented in such a way as to alert the state courts of the claim's federal nature.

McMeans, 228 F.3d at 681. Under those guidelines, the fair presentation requirement is

satisfied if the petitioner raised the federal issue in the state courts by (1) relying on

federal cases employing constitutional analysis; (2) relying on state cases employing

constitutional analysis in similar factual contexts; (3) phrasing the claim in terms of

constitutional law or in terms sufficiently particular to allege a denial of a specific

constitutional right; or (4) alleging facts well within the mainstream of constitutional law.

Id. (citing Franklin, 811 F.2d at 326).

It is well-settled under the procedural default doctrine that the default of a federal

claim in the state court may preclude federal habeas review if the state court judgment

rests on a state-law ground that is both “independent” of the merits of the federal claim

and an “adequate” basis for the state court's decision. See Harris, 489 U.S. at 260–62.

The Supreme Court has stated:

In all cases in which a state prisoner has defaulted his federal

claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claims is barred unless the prisoner can demonstrate cause

for the default, and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The Sixth Circuit applies a four-part test to determine if a claim is procedurally

defaulted:

(1) the court must determine that there is a state procedural

rule that is applicable to the petitioner's claim and that the

petitioner failed to comply with the rule; (2) the court must

determine whether the state courts actually enforced the state

procedural sanction; (3) it must be decided whether the state

procedural forfeiture is an adequate and independent state

ground upon which the state can rely to foreclose review of a

federal constitutional claim; and (4) if the court has

determined that a state procedural rule was not complied with

and that the rule was an adequate and independent state

ground, then the petitioner is required to demonstrate that

there was cause for him not to follow the procedural rule and

that he was actually prejudiced by the alleged constitutional

error.

Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d

135, 138 (6th Cir. 1986)).

In the usual case, the adequate and independent state ground doctrine will not

apply to bar consideration of a federal claim on habeas corpus review unless the last

state court rendering a judgment in the case “clearly and expressly” states that its

judgment rests on a state procedural bar. Harris, 489 U.S. at 263. In cases where the

last state court to render a reasoned opinion explicitly relies on a procedural bar, the

court will presume that a later unexplained order did not silently disregard the

procedural default and consider the merits of the claim. Ylst v. Nunnemaker, 501 U.S.

797, 803-04 (1991).

In addition, the rule precluding federal habeas corpus review of claims rejected

by the state courts on state procedural grounds applies only in cases where the state

rule relied on by the courts is deemed “adequate” or, in other words, involves a “firmly

established and regularly followed state practice” at the time that it was applied. Ford v.

Georgia, 498 U.S. 411, 423-24 (1991). To be considered regularly followed, a

procedural rule need not be applied in every relevant case, but rather “[i]n the vast

majority of cases.” Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989).

Finally, the state court's adequate and independent finding of procedural default

will preclude habeas corpus review of the petitioner's federal claims unless the

petitioner can show “cause” for the default and “actual prejudice” as a result of the

alleged violations of federal law, or that failure to consider the federal claims will result

in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Harris, 489 U.S. at

262; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).

Respondent contends that Ground Two is procedurally defaulted because: (1) it

is unexhausted, and (2) it is barred by the independent and adequate state ground

doctrine. (Doc. 7 at PageID # 528-535). Respondent contends that Ground Three is

procedurally defaulted because it is unexhausted, and Ground Four is barred by the

independent and adequate state ground doctrine. (Id. at PageID # 536–537, 538–544).

(i) Exhaustion

The record reflects that Petitioner failed to exhaust, and thus procedurally

defaulted, Grounds Two and Three of his petition.

As noted above, Petitioner’s Ground Two has two sub-parts. The first sub-part

contends that Petitioner was denied his right to confront witnesses against him because

multiple members of the victim’s family were exempt from sequestration and remained

in the courtroom during the trial proceedings. Petitioner raised the issue as Assignment

of Error No. 8 in his brief to the appellate court and Proposition of Law No. 5 in his brief

to the Ohio Supreme Court. (Doc. 6 at PageID # 200-202; 394-397). However,

Petitioner relied solely on Ohio jurisprudence and statutory law in support of his

arguments. (Id.). Petitioner did not rely on federal or state cases employing

constitutional analysis. Rather, he argued that the trial court misinterpreted Ohio’s

statute known as “Marsy’s Law” by permitting multiple members of the victim’s family to

remain in the courtroom during trial proceedings instead of just one victim

representative. (Id.)

Petitioner argues that he fairly presented his “Marsy’s law" argument to the Ohio

state courts as a constitutional claim because he cited Ohio Evid. R. 615, which is

based on Fed. R. Evid. 615. (Doc. 9 at PageID # 571). However, a claim in state court

based on a state evidentiary rule is insufficient to apprize the state court of the

constitutional nature of claim. See Jamison v. Collins, 100 F. Supp. 2d 521, 580 (S.D.

Ohio 1998) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)}. The Court cannot

conclude that Petitioner phrased his claims in terms of constitutional law or the

Confrontation Clause to the Ohio courts. Because Petitioner failed to provide the state's

highest court with an opportunity to correct the alleged violations of his constitutional

rights, he procedurally defaulted and has waived the ground for relief.

The second part of Ground Two contends that Petitioner was denied the right to

confront a witness against him because the state’s confidential informant (“CI”)

exercised his Fifth Amendment rights during his trial testimony. The trial record reflects

that the state utilized a CI to assist in four controlled drug buys with Petitioner. The CI

was called by the prosecution to testify at trial. (Doc. 6 at PageID #1023-1070). A few

questions into direct examination, the CI exercised his Fifth Amendment right against

self-incrimination. (Id. at PageID #1035). The judge recessed the trial so that the CI

could consult with counsel. When the proceedings resumed, the CI continued to refuse

to answer the state’s questions, even though he was granted immunity. (Id. at PageID #

1059-1070). After the CI was excused from the witness stand, the trial judge had him

arrested for contempt of court and the CI remained jailed until the conclusion of the trial.

(Id. at PageID # 1069-1070; 116-117).

In Ground Three, Petitioner contends that his trial counsel was ineffective for

failing to cross-examine the CI, request a jury instruction on causation, hire expert

witnesses, adequately respond to the state’s motions, object to the presence of the

victim’s family in court, prepare and file a sentencing memorandum, and file a motion to

sever the counts into two separate trials.3 (Doc. 1 at PageID # 8, 16).

3 The Petitioner also alleges that his counsel divulged privileged information to the state but provides

no further details.

The record reflects that the second part of Ground Two and Ground Three were

not raised by Petitioner in his direct appeal brief to the Ohio Supreme Court. See Leroy,

757 F.2d at 97 (failure to raise a claim on direct appeal in the Ohio Court of Appeals or

in the Ohio Supreme Court constitutes a procedural default). Petitioner argues that

ineffective assistance of counsel “indisputably” was argued to the Ohio Supreme Court.

The Court disagrees. Petitioner’s brief does not argue that his trial counsel engaged in

any deficient performance or that Petitioner is entitled to relief based on his trial

counsel’s performance. (Doc. 6 at PageID # 379-399).

Ohio's doctrine of res judicata now bars Petitioner's ability to attempt to raise

these claims again. See State v. Perry, 10 Ohio St. 2d 175 (1967) (holding that claims

must be raised on direct appeal, if possible, or they will be barred by the doctrine of res

judicata.); see, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (finding that

the doctrine of res judicata applies to constitutional claims that could have been raised

on direct appeal) (citing State v. Combs, 100 Ohio App. 3d 90 (1994)). The second

sub-part of Ground Two and Ground Three are therefore unexhausted and procedurally

defaulted.

(ii) Independent and Adequate State Ground

Petitioner committed a procedural default of the claims asserted in the first sub-

part of Ground Two (Marsy’s law) and Ground Four (improper jury instruction) by failing

to object to the alleged errors at trial. Ohio's contemporaneous objection rule is a firmly

established, adequate and independent state procedural rule, which serves to foreclose

federal habeas review when relied on by the state courts as a basis for denying relief.

See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011) (citing Hinkle v.

Randle, 271 F.3d 239, 244 (6th Cir. 2001)); White v. Mitchell, 431 F.3d 517, 525 (6th

Cir. 2005). The Sixth Circuit has repeatedly held that “plain error” review by the state

appellate court “constitutes enforcement of Ohio's contemporaneous objection rule.”

See Williams v. Bagley, 380 F.3d 932, 968–69 (6th Cir. 2004) (and Sixth Circuit cases

cited therein); see also Goodwin, 632 F.3d at 315.

The Ohio Court of Appeals clearly enforced the state procedural bar by reviewing

petitioner's assignments of error under plain error analysis. (See Doc. 6 at PageID #361

(Ground Two); PageID # 335-341 (Ground Four)). Therefore, the claims alleged in the

first sub-part of Ground Two and in Ground Four of the petition are procedurally

defaulted.

(iii.) Cause and Prejudice/Fundamental Miscarriage of Justice

In his response to the Respondent’s arguments that Grounds Two, Three, and

Four are procedurally defaulted, Petitioner does not argue that the procedural default

should be excused through “cause and prejudice.” (Doc. 9).4 Instead, Petitioner makes

a passing reference that he is “actually innocent.”

To establish a credible claim of actual innocence sufficient to excuse his

procedural default, Petitioner must “support his allegations of constitutional error with

new reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner must also show “it is more likely

4 Petitioner does not assert ineffective assistance of appellate counsel as “cause” for the default of

his ineffective assistance of trial counsel claim. Petitioner specifically rejects the idea that ineffective

assistance of appellate counsel caused the default of Ground Three, instead arguing the claim is not

procedurally defaulted. (Id. at PageID #576-577).

than not that no reasonable juror would have found [him] guilty beyond a reasonable

doubt” in light of all the evidence, including that evidence alleged “to have become

available only after the trial.” Id. at 327–28. “[A] petitioner does not meet the threshold

requirement unless he persuades the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.” Id. at 329. The Court notes that actual innocence, which would permit collateral

review of a procedurally defaulted claim, means factual innocence, not mere legal

insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998); see also Hilliard v.

United States, 157 F.3d 444, 450 (6th Cir. 1998). The actual innocence exception

should “remain rare” and “only be applied in the ‘extraordinary case.’” Schlup, 513 U.S.

at 321.

Petitioner has failed to establish a credible claim of actual innocence under the

Schlup standard. Petitioner makes the single unsupported assertion, “Jonathan Berry is

actually innocent but remains incarcerated; therefore a fundamental miscarriage of

justice has occurred as a result of the constitutional violations he has suffered.” (Doc. 9

at PageID # 576). He has not supported his allegations of constitutional error with any

new evidence of actual innocence. “Without any new evidence of innocence, even the

existence of a concededly meritorious constitutional violation is not in itself sufficient to

establish a miscarriage of justice that would allow a habeas court to reach the merits of

a barred claim.” Schlup, 513 U.S. at 316. Petitioner has not demonstrated that his

procedural defaults should be excused under the “fundamental miscarriage of justice”

exception. Therefore, Petitioner has procedurally defaulted and waived the claims

raised in Grounds Two, Three, and Four of the petition.

B. Merits Review—Ground One

In Ground One, Petitioner contends that the evidence was insufficient to sustain

his convictions for involuntary manslaughter of Ashley Russell, and the predicate

offense of aggravating drug trafficking. Particularly, Petitioner argues that he was

convicted of trafficking in methamphetamine, but the only drugs found at the scene of

Russell’s overdose were fentanyl and ketamine, which undermines the proof for both

aggravated drug trafficking and involuntary manslaughter. (Doc. 1 at PageID # 5, 16).

The Ohio Court of Appeals found that the evidence was sufficient to support the

conviction for aggravated trafficking in drugs, which requires proof that Petitioner sold or

offered a controlled substance. (Doc. 6 at PageID # 315). The Court of Appeals

identified the following trial evidence which supported the aggravated drug trafficking

conviction:

Text messages were exchanged between Ashley Russell and Petitioner on June

18, 2017, and June 19, 2017, arranging a drug transaction. (Doc. 6 at PageID # 315-

317; Tr. Transcript at PageID #1687-1701). Petitioner sent Russell a text which said, “I

got ur Chinese.” (Doc. 6 at PageID # 316; Tr. Transcript at PageID #1685). Detective

McDowell and Corporal Stone testified that in drug vernacular “Chinese” is used to

describe fentanyl mixed with heroin or methamphetamine. (Doc. 6 at Page ID # 361-

317; Tr. Transcript at PageID # 1685, 1647-1648). Additional text messages were

exchanged between Russell and Petitioner during which Russell learns that Petitioner’s

girlfriend was nodding off at dinner, apparently intoxicated. (Doc. 6 at PageID # 317-

318, Tr. Transcript at PageID # 1687-1688). Petitioner assures Russell that the drugs

were meant for her, but his girlfriend saw them. (Doc. 6 at PageID # 317-318; Tr.

Transcript at PageID #1687.). Payment for the drugs were discussed in a text string,

where Petitioner set the price as “two tens and a thong.” (Doc. 6. at PageID # 318; Tr.

Transcript at PageID #1688-1689). Corporal Stone testified that it was not uncommon in

drug transactions for payment to be made with services or photos of body parts. (Doc. 6

at PageID # 319; Tr. Transcript at PageID #1689). Another text string discussed a

meeting between Russell and Petitioner on June 19, 2017, at Home Depot. (Doc. 6 at

PageID # 321; Tr. Transcript at PageID #1698-1700). Security footage from the Home

Depot and testimony from Russell’s aunt, Lisa Crum, confirmed that Russell met

Petitioner at the Home Depot that morning. (Doc. 6 at PageID # 322; Tr. Transcript at

PageID # 1525, 1656-1658). Detective McDowell testified that he interviewed Petitioner,

who admitted that he had a source for “Chinese” named Dutch, who sold it to him for

$20. (Doc. 6 at PageID # 323; Tr. Transcript at PageID # 1574-1575). Lastly, crime lab

technician Jennifer Watson testified that the substance in a white bag found at the

scene of Russell’s overdose included fentanyl and ketamine. (Doc. 6 at Page ID # 323;

Tr. Transcript at PageID #1293-1294).

Likewise, the Ohio Court of Appeals found the evidence sufficient to support the

conviction for involuntary manslaughter, noting that proof requires evidence the

defendant (1) caused the death of another, (2) as a proximate result, (3) of the

offender’s committing a felony. (Doc. 6 at PageID # 324). The Court of Appeals first

recognized that the third element was met because there was sufficient evidence to

sustain the conviction for aggravated drug trafficking. For the first and second elements,

the Court of Appeals found that the following evidence supported the conviction:

Dr. Bryan Casto, forensic pathologist who performed the autopsy, testified that

Ashley Russell died from an accidental overdose from multiple drug intoxication with

fentanyl and amphetamine/methamphetamine. (Doc. 6 at PageID # 325; Tr. Transcript

at PageID #1394-1395). Chief toxicologist at the Montgomery County Coroner’s Office,

Dr. Matthew Juhascik, testified that fentanyl and methamphetamine was found in Ashley

Russell’s system. (Doc. 6 at PageID # 325; Tr. Transcript at PageID #1369). Union

County Coroner, Dr. David Applegate, testified that the official cause of death was

accidental overdose. (Doc. 6 at PageID # 325; Tr. Transcript at PageID #1460-1461).

Corporal Stone testified that an unused bag of drugs and drug paraphernalia were

found within the proximity of Ashley Russell’s body at the overdose scene. (Doc. 6 at

PageID # 326; Tr. Transcript at PageID #1625-1626, 1640, 1729-1730).

The well-settled standard of review for evaluating the merits of constitutional

claims challenging the sufficiency of the evidence was established by the Supreme

Court in Jackson v. Virginia, 443 U.S. 307 (1979). The Supreme Court held in Jackson,

because the Due Process Clause requires the State to prove beyond a reasonable

doubt every fact necessary to constitute the charged offense, “the relevant question” in

assessing the sufficiency of the evidence “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.” Jackson, 443 U.S. at 319

(emphasis in original).

Under the Jackson standard, the State is not required to rule out every

hypothesis except that of guilt beyond a reasonable doubt. Id. at 326. Rather, “a federal

habeas corpus court faced with a record of historical facts that supports conflicting

inferences must presume–even if it does not affirmatively appear in the record–that the

trier of fact resolved any such conflicts in favor of the prosecution and must defer to that

resolution.” Id.; see also Walker v. Engle, 703 F.2d 959, 969–70 (6th Cir. 1983). It is the

responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence

and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319.

Consequently, the reviewing court is not permitted to reweigh the evidence, reevaluate

the credibility of witnesses, make its own subjective determination of guilt or innocence,

or otherwise substitute its opinion for that of the jury. See id. at 318–19 & n.13; see also

United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567

F.3d 191, 205 (6th Cir. 2009)).

Moreover, federal habeas review of a claim challenging the sufficiency of the

evidence is even further limited. As the Sixth Circuit explained in Brown, the federal

habeas court is “bound by two layers of deference to groups who might view facts

differently than [the habeas court] would.” 567 F.3d at 205. The federal habeas court

must defer not only to the trier of fact's findings as required by Jackson, but under 28

U.S.C. § 2254(d), must also “defer to the state appellate court's sufficiency

determination as long as it is not unreasonable.” Id. (emphasis in original); see also

Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011). The Sixth Circuit went on to

emphasize in Brown:

[W]e cannot rely simply upon our own personal conceptions

of what evidentiary showings would be sufficient to convince

us of the petitioner's guilt. We cannot even inquire whether

any rational trier of fact would conclude that petitioner...is

guilty of the offenses for which he was charged. Instead, we

must determine whether the Ohio Court of Appeals itself was

unreasonable in its conclusion that a rational trier of fact could

find [the petitioner] guilty beyond a reasonable doubt based

on the evidence introduced at trial.

567 F.3d at 205 (emphasis in original).

Applying the double-layer deferential standard to the case-at-hand, the

undersigned is convinced that the Ohio Court of Appeals’ sufficiency determination is

neither contrary to nor an unreasonable application of Jackson. The Ohio Court of

Appeals found evidence to support every element of each offense. To the extent that

Petitioner argues that there is conflicting evidence or a lack of direct evidence that he

sold the drugs to Ashley Russell resulting in her death, “[c]ircumstantial evidence alone

is sufficient to support a conviction and it is not necessary for the evidence to exclude

every reasonable hypothesis except that of guilt.” Newman v. Metrish, 543 F.3d 793,

796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)). Due

process is satisfied as long as such evidence is enough for a rational trier of fact to

make a permissible inference of guilt, as opposed to a reasonable speculation that the

petitioner is guilty of the charged crime. Newman, 543 F.3d at 796–97 (and Sixth Circuit

cases cited therein). It is “the responsibility of the trier of fact to fairly resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319.

Viewing the evidence in the light most favorable to the prosecution, the Ohio

courts reasonably determined that a rational trier of fact could have found the essential

elements of the challenged offenses beyond a reasonable doubt. Jackson, 443 U.S. at

319. The Ohio Court of Appeals’ adjudication of petitioner's sufficiency of evidence

claim therefore involved a reasonable application of the Jackson standard and was

based on a reasonable determination of the facts in light of the evidence presented at

trial. Accordingly, petitioner is not entitled to federal habeas relief based on his

sufficiency of evidence claim in Ground One of the petition.

The Undersigned finds that Petitioner is not entitled to habeas relief. Having

found that Petitioner's grounds for relief are either procedurally defaulted or fail on the

merits, the petition (Doc. 1, 3) should be DENIED.

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

(Doc. 1, 3) be DENIED with prejudice.

2. A certificate of appealability should not issue with respect to the petition

because petitioner has not stated a “viable claim of the denial of a constitutional right” or

presented an issue that is “adequate to deserve encouragement to proceed further.” See

Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880,

893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

3. With respect to any application by a petitioner to proceed on appeal in forma

pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of

any Order adopting this Report and Recommendation would not be taken in “good faith,”

and therefore DENY any petitioner leave to appeal in forma pauperis upon a showing of

financial necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952

(6th Cir. 1997).

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN BERRY, Case No. 2:22-cv-2465

Petitioner, Marbley, J.

Bowman

v.

MIKE MEINTEL/WARDEN,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a

copy of the recommended disposition, a party may serve and file specific written

objections to the proposed findings and recommendations. This period may be

extended further by the Court on timely motion for an extension. 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. If the Report and Recommendation is

based in whole or in part upon matters occurring on the record at an oral hearing, the

objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient,

unless the assigned District Judge otherwise directs. A party may respond to another

party’s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to

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

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).