Harlan, concurring in the judgment in part
How later courts described this case
- Harlan, concurring in the judgment in part
- copy at State Court Record, ECF No. 9, Ex. 19
- noting that Franklin was a capital case
- distinguishing holding in capital cases
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
KEITH J. PIPPINS, JR.,
Petitioner, : Case No. 2:21-cv-5226
- vs - District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN, Chillicothe Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Keith Pippins pursuant to 28 U.S.C. § 2254
and with the assistance of counsel, is before the Court for decision on the merits. Relevant
pleadings are the Petition (ECF No. 1), the State Court Record (ECF No. 9), the Return of Writ
(ECF No. 11) and Petitioner’s Traverse (ECF No. 19).
Petitioner’s Response to Magistrate Judge Deavers’ Order to Show Cause (ECF No. 21)
confirms that there are no unexhausted claims in the Petition and the case is ripe for decision. The
Magistrate Judge reference has been transferred to the undersigned to help balance the Magistrate
Judge workload in the District (ECF No. 22).
Litigation History
On March 13 and May 30, 2014, a Franklin County grand jury returned three indictments
charging Petitioner and others with a number of drug-related offenses. The cases were tried jointly.
After five days of trial, the jury was not able to agree to a unanimous verdict on all counts and
Juror Number 7 asked to speak privately with the trial judge after the jury was polled. At the
conclusion of the sidebar with this juror, the trial court declared a mistrial on Counts 10, 16, 17, 19,
20, 21, 25, 26, 27, 29, 30, 32 and 33 where the jury did not determine a verdict and on any counts
where Juror 7 said she did not agree with the verdict on the verdict form. Pippins was found guilty on
the remaining counts except for an acquittal on Count 11. He was sentenced to an aggregate term of
imprisonment of seventy-four years.
Petitioner appealed to the Ohio Tenth District Court of Appeals, raising the following
assignments of error:
1. Defendant-Appellant was denied due process of law as
guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, Section 16, of the Ohio
Constitution due to the involvement of the presiding judge in the
investigation of the crimes for which he was charged.
2. Defendant-Appellant’s conviction for the offense of engaging in
a pattern of corrupt activity in violation of R.C. 2923.32 was not
supported by sufficient evidence.
3. Appellant was denied the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio
Constitution when trial counsel failed to file a motion for severance.
4. The trial court committed plain error by not declaring a mistrial
on all counts of the indictment. (Tr. 4387; Judgment Entry, Feb. 20,
2015)
(Appellant’s Amended Brief, State Court Record, ECF 9, Exhibit 16; PageID 136).
The Tenth District overruled the first three assignments of error and sustained the fourth
only as to Count 34, remanding the case for correction of that error. State v. Pippins, 2020-Ohio-
503, 151 N.E.3d 1150 (Ohio App. 10th Dist. Feb. 13, 2020)(copy at State Court Record, ECF No.
9, Ex. 19). The Supreme Court of Ohio declined jurisdiction over a further appeal. State v.
Pippins, 159 Ohio St.3d 1408 (2020).
On October 1, 2020, and with the assistance of counsel, Petitioner filed an Application for
Reopening under Ohio R. App. P. 26(B), pleading that the following assignments of error were
omitted because of ineffective assistance of appellate counsel:
51. The prosecutor’s peremptory strike of an African-American juror
on account of her race violated Defendant-Appellant’s rights under
the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
6. The denial of the joint defense motion to dismiss the corrupt
activity count was error that deprived Defendant-Appellant of his
rights under Article I, Section 10 of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution.
7. Defense counsel’s failure to file a motion to dismiss the corrupt
activity count deprived Defendant-Appellant of his right to the
effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States constitution and Article I, Section
10 of the Ohio Constitution.
8. Defense Counsel’s failure to renew his motion for severance of
defendants, and his failure to object to the prosecutor’s improper
vouching tactics, police opinion testimony and community impact
testimony, deprived Defendant-Appellant of his right to the
effective assistance of counsel under the Sixth and Fourteenth
Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution.
9. Defense counsel’s inattentive and incompetent representation during
the jury poll proceedings deprived Defendant-Appellant of his right to
the effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section
10 of the Ohio Constitution.
(Application to Reopen, State Court Record, ECF 9, Exhibit 24; PageID 397). The Tenth District
denied the Application and Petitioner did not perfect an appeal to the Supreme Court of Ohio.
On November 5, 2021, Petitioner filed his Petition in this Court, pleading the following
1 This numbering was chosen by Petitioner to be continuous with the numbering in the direct appeal.
grounds for relief:
Ground One: The prosecutor’s peremptory strike of an African-
American juror for a racially discriminatory purpose deprived
Petitioner of his rights under the Equal Protection Clause of the
Fourteenth Amendment.
Supporting Facts: During jury voir dire, defense counsel raised a
Batson objection to the trial prosecutor’s peremptory strike of an
African-American juror. The prosecutor cited the juror’s “attitude
and body language” and a comment on her juror questionnaire as his
justification for the strike. The trial judge ruled that this explanation
did not provide an adequate race-neutral reason and sustained the
objection. He subsquently [sic] reversed his ruling based on an
erroneous belief that the Batson decision requires proof of a pattern
of racially-motivated strikes. As a consequence, Petitioner was tried
before a jury from which members of his race had been purposefully
excluded.
Ground Two: A defective indictment that failed to sufficiently
allege the predicate acts for the corrupt activity count and to provide
adequate notice violated Petitioner’s rights under the Fourteenth
Amendment.
Supporting Facts: An indictment charging a defendant with
engaging in a pattern of corrupt activity must identify with sufficient
particularity the individual incidents that comprise the pattern
element of the offense. The corrupt activity count upon which
Petitioner was actually tried and convicted did not comply with this
requirement. Instead it incorporated by reference incidents of
corrupt activity contained in an earlier indictment returned by a
different grand jury against a different defendant. As a consequence,
in preparing for trial and defending the case, he was left to guess
what conduct the prosecution would allege was illegal.
Ground Three: The trial judge’s acceptance of guilty verdicts of
the jury over a juror’s complaints of intimidation and confusion
deprived Petitioner of his Sixth and Fourteenth Amendment right to
a unanimous jury.
Supporting Facts: During a poll of the jurors, one of the jurors told
the trial judge that she felt others [sic] jurors were attempting to
intimidate her. She explained that she had been pressured by jurors
on a number of counts, and was confused about, and had doubts, as
to other counts. The juror’s complaints pervaded the sanctity,
reliability and fairness of the entire deliberative process. The trial
judge’s count-by-count colloquy with the juror failed to cure the
error. As a consequence, Petitioner was convicted of criminal
charges upon verdicts rendered by a non-unanimous jury.
Ground Four: The trial judge’s participation in the investigation of
the offenses charged in the indictments deprived Petitioner of his
rights under the Due Process Clause of the Fourteenth Amendment.
Supporting Facts: The prosecution’s case against Petitioner rested
in substantial part on telephone conversations that were
surreptitiously recorded pursuant to wire interception warrants
approved by the common pleas court judge who subsequently
presided over Petitioner’s jury trial and who sentenced Petitioner.
As part of the warrant process, the judge received periodic progress
reports that included more than 30 statements that witnesses and
informants feared for their safety and more than 50 statements about
individuals who did not wish to testify out of concerns for their
safety. The trial judge’s involvement in the process resulted in actual
bias against Petitioner, or an appearance of bias to an objective
observer.
Ground Five: Petitioner’s conviction for engaging in a pattern or
corrupt activity was not supported by sufficient evidence of the
existence of an enterprise to satisfy the requirements of the Due
Process Clause of the Fourteenth Amendment.
Supporting Facts: The prosecution’s case-in-chief consisted of
evidence of a diverse group of individuals engaged in drug
trafficking and other crimes. Even when viewed in a light most
favorable to the prosecution, this evidence was insufficient for a
reasonable juror to find beyond a reasonable doubt that Petitioner
was a participant in an ongoing association-in-fact with a common
purpose to engage in those crimes, separate and apart from the
pattern of corrupt activity itself.
Ground Six: Petitioner was deprived of his Sixth and Fourteenth
Amendment right to the effective assistance of trial counsel.
Supporting Facts: Petitioner’s [sic] was prejudiced by the
following incidents of deficient performance by his attorney during
the trial proceedings.
1) Trial counsel should have filed a motion to dismiss the engaging
in a pattern of corrupt activity count on grounds that it violated
the Presentment Clause of the Ohio Constitution. The count
incorporated by reference predicate corrupt acts from an earlier
indictment returned by a different grand jury against a different
defendant. As a consequence, Petitioner was denied his right
under the state constitution to be tried on the same essential facts
on which the grand jury found probable cause, and his right
under the federal constitution to adequate notice of the charge.
There is a reasonable probability that a motion to dismiss on
these grounds would have been granted if defense counsel had
made the motion.
2) Trial counsel failed to renew a motion for severance of
defendants when developments during trial demonstrated that
joinder of defendants was prejudicial. In pursuing a “collective
punishment” theory of defense, counsel for a co-defendant
elicited highly prejudicial opinion testimony from the lead
detective and other law enforcement witnesses regarding their
strongly-held opinions of Pippins’ guilty and his girlfriend’s
acquiescence in his criminal conduct. Because these opinions
would not have been admissible in a separate trial, there is a
reasonable probability that a severance would have been granted
if defense counsel had renewed the motion at the close of the
evidence.
3) Trial counsel failed to object to the prosecutor’s eliciting highly
prejudicial testimony from the case detectives regarding their
opinions of Petitioner’s guilt. There is a reasonable probability
that the jury’s verdicts would have been more favorable to
Petitioner if counsel had objected and succeeded in keeping the
opinions out of the trial.
4) Trial counsel failed to object to the prosecutor’s improper efforts
to vouch for the strength of the state’s case by eliciting testimony
regarding procedures followed by the detectives to obtain the
wiretap warrants. This tactic conveyed to the jury that the county
prosecutor, the attorney general, and the administrative judge of
the common pleas court, approved the application for and
issuance of the warrants because they believed, in their
professional judgment, that Petitioner was in fact committing the
crimes charged in the indictments. There is a reasonable
probability that the jury’s verdicts would have been more
favorable to Petitioner if counsel had objected and succeeded in
keeping the vouching testimony out of the trial.
5) Trial counsel failed to object to testimony from the lead
detective about the impact of “major drug dealers” on the local
community, a perceived softness of the courts in sentencing
lower-degree felony offenders, and the futility of criminally
prosecuting low-level drug traffickers and users. These subjects
had no relevance to the issues in the guilt phase of the trial. There
is a reasonable probability that the jury’s verdicts would have
been more favorable to Petitioner if counsel had objected and
succeeded in keeping the community impact testimony out of
the trial.
6) Trial counsel failed to object to the lead detective’s
interpretation of numerous recorded telephone calls in which
Petitioner was a participant. The testimony created substantial
risk that the jury would defer to the detective’s superior
knowledge of the case and past experiences with similar crimes.
There is a reasonable probability that the jury’s verdicts would
have been more favorable to Petitioner if counsel had objected
and succeeded in keeping the detective’s interpretations of the
calls out of the trial.
7) During the poll of the jury, trial counsel failed to move for a
mistrial when one juror complained about intimidation by other
jurors and revealed her confusion and uncertainty about her
verdicts. Counsel did not object to the trial judge’s failure to
obtain an explicit on the record statement from the juror of her
assent to certain guilty verdicts. There is a reasonable probability
that the trial judge would have granted a mistrial as to all counts
if the request had been made, or at the very least, a mistrial on
the counts to which the juror had not explicitly assented.
Ground Seven Petitioner was deprived of his Sixth and Fourteenth
Amendment right to the effective assistance of appellate counsel.
Supporting Facts: The attorney representing Petitioner in the direct
appeal from his convictions and sentence rendered deficient
performance by failing to raise assignments of error directed to:
1) an Equal Protection Clause violation stemming from the
prosecutor’s peremptory strike of an African-American juror for a
racially discriminatory purpose (as set forth in Ground One of this
Petitioner and incorporated herein by reference);
2) a Due Process Clause violation relating to a defective indictment
that failed to provide adequate notice to Petitioner of the predicate
corrupt acts underlying the engaging a pattern of corrupt activity
count (as set forth in Ground Two of this Petition and incorporated
herein by reference) and
3) a violation of Petitioner’s Sixth and Fourteenth Amendment right
to the effective assistance of trial counsel due to the seven instances
of deficient performance listed under Ground Six of this Petition
(and incorporated herein by reference).
Petitioner was prejudiced by appellate counsel’s deficient
performance because there is a reason able probability that he would
have succeeded on the omitted assignments of error for the reasons
stated in Grounds One, Two and Six of this Petition, and obtained
relief in the form of a remand to the trial court for entry of a
judgment of acquittal as to the engaging in a pattern of corrupt
activity count and/or a reversal of his conviction and a remand to the
trial court for a new trial.
(Petition, ECF No. 1).
Analysis
Procedural Default
Respondent asserts that all of Petitioner’s Grounds for Relief except for the Fifth are barred
from merits review by his various procedural defaults in fairly presenting them to the Ohio courts
for decision.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of 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); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521. 527 (2017)).
"A claim may become procedurally defaulted in two ways."
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a
claim is procedurally defaulted where state-court remedies have
been exhausted within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits because
of a petitioner's failure to comply with a state procedural rule. Id.
Second, a claim is procedurally defaulted where the petitioner failed
to exhaust state court remedies, and the remedies are no longer
available at the time the federal petition is filed because of a state
procedural rule. Id.
Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First 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.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
As to Grounds for Relief One, Two, Six, and Seven, Respondent asserts they were never
presented to the Ohio courts at all (Return, ECF No. 11, PageID 5906). As to Grounds Two, Three,
and Four, Respondent asserts they are procedurally defaulted for failure to make a
contemporaneous objection. Moreover, Respondent claims, Petitioner admits that lack of
presentation. Id., citing Petition, ECF No. 1, at PageID 16.
Petitioner responds:
The record discloses that Pippins’ trial attorney failed to preserve
certain issues for review by pretrial motion and/or contemporaneous
objection. His appellate attorney failed to present certain
constitutional claims in the direct appeal.
(Traverse, ECF No. 19, PageID 6803). However, Petitioner argues, these defaults can be excused
if they resulted from ineffective assistance of counsel (Traverse, ECF No. 19, PageID 6803, citing
Murray v. Carrier, 477 U.S. 478, 489-90 (1986)). But to serve as excusing cause, the
ineffectiveness claims must themselves be successfully presented to the state courts just
like any other constitutional claim. Edwards v. Carpenter, 529 U.S. 446 (2000).
Respondent asserts these four claims could all have been adjudicated on the direct appeal
record. Under Ohio law, claims that can be thus adjudicated must be presented on direct appeal
or be found barred by res judicata from later presentation to the Ohio courts. State v. Perry, 10
Ohio St. 2d 175 (1967).
Petitioner does not assert these claims depend on matter dehors the appellate record.
Instead, he asserts his failure to do so was caused by ineffective assistance of appellate counsel.
He attempted to litigate his ineffective assistance of appellate counsel claims by filing an
Application for Reopening under Ohio R. App. P. 26(B). When that Application was unsuccessful,
he attempted unsuccessfully to obtain review in the Ohio Supreme Court.
In his Traverse, Petitioner offers three reasons why his failure to appeal successfully should
not prevent merits review here. Relying on Lee v. Kemna, 534 U.S. 362 (2002), he concedes that
“ordinarily, violation of ‘firmly established and regularly followed’ state rules . . . [—for example,
those involved in this case2—] will be adequate to foreclose review of a federal claim.” (Traverse,
ECF No. 19, [Id. 6804, quoting Lee at 376). However, the Lee Court acknowledged there may be
“exceptional cases in which exorbitant application of a generally sound rule renders the state
ground inadequate to stop consideration of a federal question.” Id., citing Davis v. Wechsler, 263
U.S. 22, 24 (1923)(Holmes, J.).
The Lee exception speaks to application of rules in individual cases rather than the rules
themselves. In Lee itself it was over-rigid enforcement of rules regulating the form of continuance
motions that drew Supreme Court censure, rather than regulation of forms of motions generally.
Lee relied on Osborne v. Ohio, 495 U.S. 103 (1990), where the Ohio courts had been overly rigid
in enforcing Ohio’s contemporaneous objection rule in a situation where the purpose of that rule
– allowing pre-verdict correction of error – had already been served by an earlier objection.
On the other hand, the Sixth Circuit has repeatedly held the contemporaneous objection
rule is an adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d
307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v.
Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010);
Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir.
2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239,
244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S.
2 These are the words omitted and represented by the ellipsis.
107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v.
Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert.
denied, 562 U.S. 876 (2010). Following Lee and Osborne, there may
Insofar as the rule involved here is the 45-day time limit on appealing to the Supreme Court
of Ohio, the Sixth Circuit has already held that is an adequate and independent state procedural
rule. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). Lack of counsel at that stage, lack of a
trial transcript, unfamiliarity with the English language, and short time for legal research in prison
do not establish cause to excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S. 478, 494-
95 (1986).
Petitioner’s attempted appeal of denial of his 26(B) Application was rejected for failure to
include a date-stamped copy of the appellate opinion and judgment entry (Letter from Supreme
Court Clerk dated February 16, 2021, Attachment A to Petition, ECF No. 1, PageID 9). Applying
the Maupin factors, there is no doubt the Ohio Supreme Court has an applicable rule and it was
enforced here. Petitioner questions its “adequacy,” – i.e. its utility in protecting a valid state
interest. However, the rule enables a quick first pass determination of whether the appeal is taken
from a final appealable order as opposed to some interlocutory matter. This would be particularly
useful with pro se litigants. Petitioner knew of the rule. His excuse for not following it is that he
asked the prison staff to make copies for him and they “did not process his request in a timely
manner” (Petition, ECF No. 1, PageID 7). He gives the Court no corroborating detail such as when
he made the request and when the staff responded, nor does he explain why he could not have
attached the original.
After his 26(B) appeal was rejected, Petitioner attempted to file a delayed appeal. This was
rejected because the Ohio Supreme Court will not entertain a delayed appeal from a 26(B) denial.
Petitioner’s counsel points out that the Court rather routinely allows delayed direct appeals and
questions whether the distinction supports a valid state interest. The State of course has a strong
interest in the finality of criminal convictions. See Mackey v. United States, 401 U.S. 667, 690-91
(1971)(Harlan, concurring in the judgment in part). There is nothing unreasonable about being
generous with a first attempt to get high court review and then precluding a delayed 26(B) appeal.
The two rules, taken together, balance the interests of litigants and the public.
Petitioner avers he sent his appeal papers to his family to be typed which suggests he was
aware of the Supreme Court practice rule requiting typescript. Respondent asserts there is no such
rule, but Petitioner’s counsel quotes it. In the final analysis, it is not a procedural rule the Court
enforced against Petitioner, but one he self-enforced, taking it outside the second Maupin factor.
The Sixth Circuit has repeatedly upheld the adequacy and independence of the 45-day time
limit on 26(B) appeals. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008)(noting that Franklin was a
capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir. 2007)(distinguishing holding in capital
cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets, 594 F.3d 900 (6th Cir.
2010), citing Rideau v. Russell, 2009 WL 2586439 (6th Cir. 2009).
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by
calling them to the attention of the trial court at a time when the error could have been avoided or
corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see
also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground
of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell,
455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith
v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003),
citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).
To the extent Petitioner’s claims rely on an assertion of ineffective assistance of appellate
counsel, either standing alone or to excuse another procedural default, they are barred by his
procedural default in failing to timely appeal denial of his 26(B) application.
Ground Five: Insufficient Evidence of an Enterprise
In his Fifth Ground for Relief, Petitioner claims the State produced insufficient evidence
that he had engaged in a pattern of corrupt activity when it failed to prove the existence of the
required “enterprise.”
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Petitioner raised insufficiency of the evidence as his second assignment of error on direct
appeal and the Tenth District decided it as follows:
{¶ 56} Pippins argues in his second assignment of error that the
jury's verdict as to Count 1 was based on insufficient evidence.
Sufficiency is:
“[A] term of art meaning that legal standard which is
applied to determine whether the case may go to the
jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.” * * * In
essence, sufficiency is a test of adequacy. Whether
the evidence is legally sufficient to sustain a verdict
is a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997); Black's Law Dictionary 1433 (6th Ed.
1990). “In reviewing a record for sufficiency, ‘[t]he relevant inquiry
is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’
” State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827
N.E.2d 285, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 57} R.C. 2923.32(A)(1) defines engaging in a pattern of corrupt
activity, in relevant part, as follows:
No person employed by, or associated with, any
enterprise shall conduct or participate in, directly or
indirectly, the affairs of the enterprise through a
pattern of corrupt activity or the collection of an
unlawful debt.
“Corrupt activity” includes incidents of drug
trafficking in violation of R.C. 2925.03 “when the
proceeds of the violation, the payments made in the
violation, * * * or the value of the contraband or other
property illegally possessed, sold, or purchased in the
violation exceeds one thousand dollars” or when the
same is true of “any combination of violations
described in division (I)(2)(c) of [R.C. 2923.31].”
R.C. 2923.31(I)(2)(c). A “pattern of corrupt activity”
is “two or more incidents of corrupt activity, whether
or not there has been a prior conviction, that are
related to the affairs of the same enterprise, are not
isolated, and are not so closely related to each other
and connected in time and place that they constitute
a single event.” R.C. 2923.31(E).
{¶ 58} Not considering the counts we vacate in this decision, the
counts on which Pippins was not found guilty by the jury, and the
counts for which the trial court properly declared a mistrial due to a
lack of unanimity among the jurors, Pippins was still validly
convicted on significant counts of heroin trafficking, cocaine
trafficking, and oxycodone trafficking. Pippins does not argue that
insufficient evidence was introduced of incidents of corrupt activity
but, instead, focuses on whether the state introduced sufficient
evidence of an “enterprise.”
{¶ 59} An “enterprise” is defined as follows:
“Enterprise” includes any individual, sole
proprietorship, partnership, limited partnership,
corporation, trust, union, government agency, or
other legal entity, or any organization, association, or
group of persons associated in fact although not a
legal entity. “Enterprise” includes illicit as well as
licit enterprises.
R.C. 2923.31(C). An enterprise which is not formally established
(as, for example, an LLC or partnership would be) is an
“association-in-fact” enterprise and “has been defined as ‘a group of
persons associated together for a common purpose of engaging in a
course of conduct.’ ” State v. Beverly, 143 Ohio St.3d 258, 2015-
Ohio-219, 37 N.E.3d 116, ¶ 9, quoting United States v. Turkette, 452
U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), citing *1173
Boyle v. United States, 556 U.S. 938, 948, 129 S.Ct. 2237, 173
L.Ed.2d 1265 (2009). For purposes of federal RICO, after which
Ohio's law is modeled, see Beverly at ¶ 3, an “association-in-fact”
enterprise has been defined to require “three structural features: a
purpose, relationships among those associated with the enterprise,
and longevity sufficient to permit these associates to pursue the
enterprise's purpose.” Boyle at 946, 129 S.Ct. 2237.
{¶ 60} “[T]he existence of an enterprise is an element distinct from
the pattern of racketeering activity and proof of one does not
necessarily establish the other.” (Internal quotation marks omitted.)
Beverly at ¶ 10, quoting Boyle at 947, 129 S.Ct. 2237; Turkette at
583, 101 S.Ct. 2524, citing State v. Miranda, 138 Ohio St.3d 184,
2014-Ohio-451, 5 N.E.3d 603, ¶ 13. However, “logically, evidence
that proves one of the elements can sometimes prove the other, even
though it doesn't necessarily do so.” Id. at 10. Thus, depending on
the facts of the case, “an enterprise, sufficient to sustain a conviction
for engaging in a pattern of corrupt activity under R.C.
2923.32(A)(1), can be established without proving that the
enterprise is a structure separate and distinct from a pattern of
corrupt activity.” Id. at ¶ 13.
{¶ 61} In this case, the lead detective testified his wiretapping
investigation revealed a drug-dealing organization led by Morris. As
the investigation continued, the detective developed evidence that
Pippins and Morris were the co-heads of the drug-dealing
organization. Pippins and Morris, he testified, were partners who
used a common supplier of heroin and cocaine. Morris confirmed
that he and Pippins were partners, that they pooled their money in
order to buy drugs, and that they split the profits of dealing evenly
between them. He explained that they had a Mexican connection
from whom they daily purchased heroin and that they also shared
customers. Morris testified another person listed in the indictment
had the role of “[f]lunkey” in the organization, cutting heroin,
cleaning up, and running errands. (Tr. at 2022.) There was also
testimony from another witness to the effect that there was no
organization and that the persons indicted were just individuals
using each other as suppliers and customers in pursuit of their
individual interests. However, sufficiency analysis is not an
opportunity to compare and weigh evidence; the question is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime proved beyond a reasonable doubt. Monroe,
105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, at ¶ 47.
Drawing all inferences in favor of the state, we find that a rational
jury could have concluded that there was a drug-dealing “enterprise”
with which Pippins was “associated” and in which he
“participate[d].” R.C. 2923.32(A)(1). For these reasons, Pippins'
second assignment of error is overruled.
State v. Pippins, supra.
To prevail on his Fifth Ground for Relief, Petitioner must prove this ruling is an objectively
unreasonable application of Jackson v. Virginia, supra. 28 U.S.C. § 2254(d)(1). In attempting to
do so, he relies on the cross-examination of Jack Morris. Morris was a co-defendant who had
agreed to testify against Pippins in return for a favorable plea agreement. Petitioner does not
dispute that Morris gave the testimony summarized by the appellate court, to wit, that “he and
Pippins were partners, that they pooled their money in order to buy drugs, and that they split the
profits of dealing evenly between them. He explained that they had a Mexican connection from
whom they daily purchased heroin and that they also shared customers.” Pippins, supra, at ¶ 61.
This confirmed the analysis offered by the lead detective from the wiretap evidence.
In contrast, the testimony from Morris on which Petitioner relies was elicited by leading
questions from Petitioner’s counsel, e.g., on whether he and Pippins were an “organization” or just
“miscellaneous people.” (Traverse, ECF No. 19, PageID 6825).
Ohio law, like the federal RICO Act upon which it is modeled, does not require that the
“enterprise” have any formal organization; an association in fact is sufficient. Pippins, supra, at ¶
59, citing State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, ¶ 9, quoting United
States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), citing Boyle v.
United States, 556 U.S. 938, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).
There was evidence from which a reasonable jury could have concluded that Pippins
participated in an enterprise within the meaning of Ohio law’s use of that term. A joint purpose
could properly be inferred from the splitting of profits.
The Tenth District’s decision on this issue is a reasonable application of Jackson, supra,
and therefore entitled to deference under 28 U.S.C. § 2254(d)(1). Petitioner’s Fifth Ground for
Relief should be dismissed with prejudice.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
s/ Michael J. Merz
United States District Judge
July 26, 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. #
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