“[I]neffective assistance adequate to establish cause for the procedural default of some constitutional claim is an independent constitutional claim.”
How later courts described this case
- “[I]neffective assistance adequate to establish cause for the procedural default of some constitutional claim is an independent constitutional claim.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
:
DAMON CHAPMAN, JR., : CASE NO. 4:21-cv-01295
:
Plaintiff, : ORDER
: [Resolving Doc. 1, 16]
v. :
:
WARDEN LASHANN EPPINGER, :
:
Defendant. :
:
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Petitioner Damon Chapman, Jr. currently serves an aggregate prison term of thirty-
three years to life for state aggravated murder, murder, felonious assault, discharge of a
firearm, and having weapons while under disability convictions. He brings this habeas
corpus action under 28 U.S.C. § 2254. With his petition, Chapman raises one ground for
relief: that the state trial court violated Chapman’s Sixth Amendment, due process, and fair
trial rights by allowing an expert witness to testify without submitting the appropriate report
under Ohio Rule of Criminal Procedure 16(K).1
The Court referred Chapman’s petition to a Magistrate Judge. In a report and
Recommendation (R&R), the Magistrate Judge recommended denying the petition because
Chapman had procedurally defaulted his sole ground for relief.2 Chapman objected to the
R&R.3 Respondent did not reply.
1 Doc. 15, PageID #: 1669.
2 Doc. 16.
The Court reviews the R&R’s objected-to portions de novo.4 The Court agrees with
the Magistrate Judge’s conclusion that Chapman procedurally defaulted his constitutional
claim related to the fingerprint expert testifying beyond the report, and has not shown cause
to excuse the procedural default. Additionally, Chapman’s sole ground for relief is not
cognizable as a federal habeas claim.
Therefore, for the following reasons, the Court OVERRULES Chapman’s objections,
ADOPTS the R&R, DENIES Petitioner Chapman’s habeas petition in its entirety, and DENIES
any associated certificate of appealability.
I. BACKGROUND
Because the R&R contains a detailed account of the factual and procedural
background in this case,5 the Court recounts only the background relevant to Chapman’s
objections.
A. Factual Background
Chapman’s convictions stem from his conduct as a coordinator of a targeted murder.
Chapman stood near a truck in a gas station parking lot.6 Chapman put his ungloved hands
on the truck’s hood while looking at the gas station. Chapman was later identified by these
prints.7
As the victim exited the gas station, Chapman signaled to a still-unknown individual
to shoot the victim. The victim attempted to flee, but the shooter chased him and fired twice
more.8
4 28 U.S.C. § 636(b)(1).
5 Doc. 16, PageID #: 1675-79.
6 , No. 107375, 2019-Ohio-1452, 2019 WL 1760184, at *1 (Ohio Ct. App. Apr. 18, 2019).
7
Chapman was charged with aggravated murder in violation of R.C. § 2903.01(A)
(count 1); murder in violation of R.C. § 2903.02(B) (count 2); felonious assault in violation
of R.C. § 2903.11(A)(2) (count 3); felonious assault in violation of R.C. § 2923.162(A)(3)
(count 5); and having weapons while under disability in violation of R.C. § 2923.31(A)(2)
(count 6).
Before Chapman’s trial, the state moved for, and was granted, an order allowing the
state fingerprint examiner to take Chapman’s exemplar fingerprints.9 Chapman then moved
for funds to retain his own fingerprint expert, which the state trial court also granted.10
The state examiner confirmed Chapman’s identity twice. First, the lifted prints from
the truck were entered into an Automated Fingerprint Identification System (AFIS), which
provided possible candidates that the examiner used to identified Chapman.11 Second, the
state examiner used the fingerprints taken from Chapman in custody and compared them to
the AFIS fingerprints.12 This also resulted in a match. The state examiner prepared a separate
report for each identification.
At trial, Chapman moved to exclude the state’s fingerprint examiner’s expert
testimony.13 Chapman argued that the state examiner had submitted insufficiently detailed
reports in violation of Ohio Rule of Criminal Procedure 16(K).14 The trial court denied the
motion and allowed the state examiner to testify.15
9 Doc. 10-1, PageID #: 90; 96.
10 at PageID #: 98, 102.
11 at PageID #: 143.
12
13 at PageID #: 108-113.
14 at PageID #: 111-12.
A jury found Chapman guilty on all counts. The state trial court sentenced Chapman
to a term of thirty-three years to life.
B. Procedural History
On direct appeal, Chapman raised six grounds of error. These included:
“1. The trial court erred in allowing the state’s witness to testify as an expert
and erred in allowing her to testify in violation of Crim.R. 16(k) violating
appellant’s due process rights and right to a fair trial.”16
The Ohio Court of Appeals affirmed the trial court’s judgment.17 The appellate court
noted that because the state examiner’s reports were not part of the appellate record, it could
not review whether the trial court erred by allowing the expert’s testimony.18 The appellate
court further reasoned that even if the reports were deficient under [Ohio Rule of Criminal
Procedure] Rule 16(k), defense counsels’ performance at trial indicated a preparedness for
the state examiner’s testimony and analysis.19
Chapman then applied to reopen his appeal under Ohio Appellate Rule 26(B).20 In
his application for reopening, Chapman claimed that his trial counsel was ineffective on
three separate grounds.21 However, none of these grounds involved the state examiner’s
testimony or the deficiency of her reports.
The Ohio Court of Appeals denied Chapman’s application to reopen his appeal.22
16 Doc. 10-1, PageID #: 134.
17 , 2019 WL 1760184, at *2.
18
19 Ohio Rule of Criminal Procedure 16(K) requires that expert witnesses “prepare a written report summarizing the expert
witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications.”
Such reports must be disclosed to opposing parties at least twenty-one days before trial.
20 Ohio App. R. 26(B).
21 Doc. 10-1, PageID #: 207, 21-17.
Chapman then appealed both Ohio Court of Appeal’s denials to the Ohio Supreme
Court.23 In support of the Ohio Supreme Court’s jurisdiction, Chapman asserted that “[w]hen
a witness is permitted to testify in violation of Crim. R. 16(K) a criminal defendant’s Sixth
Amendment right to cross examine witnesses is violated as are their due process rights and
their right to a fair trial.”24
The Ohio Supreme Court declined to accept jurisdiction of Chapman’s appeal.25
On July 13, 2021, Chapman filed this amended petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He raises the following single ground for relief:
Ground 1: The Petitioner’s Sixth Amendment Right to confront witnesses,
as well as his due process rights and his right to a fair trial were violated when
an expert witness was wrongfully permitted to testify.
Supporting Facts: The trial Court permitted the State of Ohio to permit
testimony of a finger-print expert, despite her never having tendered an
appropriate report through the discovery process, nor being adequately
tendered as an expert. This hindered the Petitioner’s ability to prepare a
defense and adequately cross examine the witness.26
In its return of writ, Respondent argued that Chapman had procedurally defaulted this
claim by failing to fairly present it to the state courts, and that Chapman’s sole ground for
relief was otherwise not cognizable on habeas review.27
The Court referred the matter to a Magistrate Judge. In her R&R, the Magistrate Judge
recommended that the Court deny Chapman’s petition, as his sole claim was procedurally
defaulted.28 The Magistrate Judge reasoned that Chapman had not shown cause and
23 at PageID #: 245.
24 at PageID #: 252.
25 at PageID #: 282.
26 Doc. 5, PageID #: 30.
27 Doc. 10, PageID #: 68-74.
prejudice to excuse the procedural default.29 The Magistrate Judge also recommended that
the Court deny Chapman a certificate of appealability.30
Chapman timely objected to the R&R.31 Chapman objects to two of the Magistrate
Judge’s findings: first, that he did not fairly present his constitutional issues on direct appeal;
and second, that the alleged ineffectiveness of his appellate counsel does not overcome the
procedural default of his underlying claim.32
The Court reviews the objected-to R&R portions de novo.
II. LEGAL STANDARD
Under 28 U.S.C. § 2554, Petitioner Chapman may attack the validity of his state
convictions in federal court. However, relief under § 2254 is highly limited.
And, usually before a federal court can consider a habeas claim’s merits, it must first
address the threshold question of procedural default.33 There are two types of procedural
default:
First, a petitioner procedurally defaults a claim when the petitioner has exhausted his
state-court remedies, but the state courts declined to reach the merits of the petitioner’s claim
because the petitioner failed to comply with a state procedural rule.34
Second, a claim is procedurally defaulted when a petitioner has failed to exhaust his
state-court remedies, and those remedies are no longer available under state procedural
rules.35
29 . at PageID #: 1687-88.
30 at PageID #: 1688-89.
31 Doc. 18. Respondent did not reply to Chapman’s objection.
32 at PageID #: 1694.
33 , 712 F.3d 283, 294 (6th Cir. 2013).
34 at 295 (citing , 460 F.3d 789, 806 (6th Cir. 2006)).
Federal courts generally may not consider procedurally defaulted claims on the
merits. The only exception to this rule is if the petitioner can demonstrate “cause for the
default and actual prejudice as a result of the [claimed] violation of federal law,” or if the
petitioner can demonstrate that enforcing the default would “result in a fundamental
miscarriage of justice.”36
Once a federal court moves past the threshold procedural default question and
reaches the merits of a habeas claim, the federal court reviews habeas claims under the
Antiterrorism and Effective Death Penalty Act (AEDPA).37 AEDPA requires federal courts to
be highly deferential to states courts’ decisions. A federal court may grant habeas relief only
when the state court decision either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; 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.38
Only the first of these two standards is relevant here, because Petitioner Chapman does not
argue that the state courts made any factual mistakes.
A state court’s decision is “contrary to” clearly established federal law “if 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.”39
36 , 501 U.S. 722, 750 (1991).
37 , 900 F.3d 754, 767 (6th Cir. 2018).
38 28 U.S.C. § 2254(d).
A state court’s decision is an “unreasonable application” of federal law “if 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.”40
For a decision to be “unreasonable,” it must be more than merely incorrect.41 Rather,
the decision must be “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”42
Finally, even if a state court’s decision is contrary to or an unreasonable application
of clearly established federal law, federal courts may not grant habeas relief if the state court’s
error was harmless.43 The petitioner bears the burden of showing harm and must establish
“actual prejudice.”44 This means that the petitioner must show that the state court’s mistake
“had substantial and injurious effect or influence in determining the jury’s verdict.”45
III. DISCUSSION
A. Procedural Default
The Magistrate Judge found that Chapman’s federal constitutional claim concerning
the state fingerprint examiner’s testimony was procedurally defaulted, because Chapman did
not raise his claim to the state appellate court.46 The Court agrees.
Petitioners must fairly present their claims in each appropriate state court for those
claims to eventually qualify for federal habeas relief.47 “Fair presentation requires that the
40
41 , 900 F.3d at 767–68 (quoting , 559 U.S. 766, 773 (2010)).
42 , 562 U.S. 86, 103 (2011).
43 , 576 U.S. 257, 267 (2015).
44 (quoting , 507 U.S. 619, 637 (1993)).
45 , 507 U.S. at 637 (citation omitted).
46 Doc. 16, PageID #: 1684.
state courts be given the opportunity to see both the factual and legal basis for each claim.”48
To determine when claims have been fairly presented, courts ask whether the petitioner
“(1) relied upon federal cases employing constitutional analysis; (2) relied
upon state cases employing federal constitutional analysis; (3) phrased the
claim in terms of constitutional law or in terms sufficiently particular to allege
a denial of a specific constitutional right; or (4) alleged facts well within the
mainstream of constitutional law.”49
It is not enough to present the claim to a state trial court. Rather, the petitioner must
raise the claim in state court and pursue it through the state’s appellate review procedures.50
Chapman objects to the Magistrate Judge’s conclusion that he did not fairly present
his Sixth and Fifth Amendment claim to the state appellate court.51 He says that the federal
constitutional language used in his appellate assignment of error, considered with his pretrial
motion in limine referencing the Sixth Amendment, satisfies fair presentation.52
However, neither his appellate assignment of error nor his motion in limine satisfy
Chapman’s obligation to fairly present his claims in state court.
Chapman’s assignment of error and related appellate brief language did not
characterize the fingerprint expert’s testimony in constitutional law terms. True, Chapman
did his brief that the expert’s testimony violated his “due process rights” and “right to a fair
trial.”53 However, “[n]aked assertions” and “general allegations of the denial” of broad fair
trial or due process rights are insufficient for fair presentment.54
48 , 994 F.3d 746, 751 (6th Cir. 2021) (quoting , 581 F.3d at 414-15).
49 (quoting , 871 F.3d 390, 418 (6th Cir. 2017) (internal quotation marks omitted)).
50 at 751-52 (quotation omitted).
51 Doc. 18, PageID #: 1694.
52 at PageID #: 1695.
53 Doc. 10-1, PageID #: 139, 142.
Rather, Chapman needed to have presented particularized substantive arguments at
each state review level.55 His claim presentment here did not alert the state appellate court
to a federal constitutional claim. In fact, his assignment of error does not specify whether he
invokes his federal or state due process rights.
Chapman’s brief on direct appeal also does not cite to federal authority, nor does it
cite state cases that rely on federal authority. Chapman’s brief focuses entirely on a Rule
16(K) analysis.56 And, the authority Chapman did cite does not suggest that a Ohio Criminal
Rule 16(K) violation implicates a federal constitutional violation.57 So, Chapman’s claim was
not fairly presented upon direct appeal.
Chapman’s motion in limine also does not fairly present his ground for relief to the
state courts.
A claim is not fairly presented if the state appellate court “must read beyond a petition
or a brief . . . that does not alert it to the presence of a federal claim.”58 Chapman cannot
expect the state appellate court to delve into the trial record in search of potential federal
constitutional claims.
Even if the state appellate court did look at Chapman’s motion in limine brief, it suffers
from the same fair presentation deficiency as his direct appeal first assignment of error: the
motion in limine makes only passing reference to the Sixth Amendment, and otherwise cites
no authority and makes no argument in support of a federal constitutional claim.59
55
56 Doc. 10-1, PageID #: 139-42.
57 , 754 N.E.2d 1150, 1179 (Ohio 2001); , 104 N.E.3d 280, 286-93 (Ohio Ct. App. 2018);
, No. 2014-T-0106, 2017-Ohio-5773, 2017 WL 2951775 (Ohio Ct. App. July 17, 2017); , No.
CA2012-03-044, 2013-Ohio-857, 2013 WL 939539 (Ohio Ct. App. Mar. 11, 2013).
58 , 541 U.S. 27, 32 (2004).
Because Chapman has not fairly presented any federal constitutional claim to the state
appellate court, and the time for doing so has passed, Chapman’s claim is procedurally
defaulted.
B. Cause and Prejudice
Since Chapman defaulted on his claim, the Court may consider it only if Chapman
shows cause and prejudice.60 Chapman can do this by proving ineffective assistance of
appellate counsel.61
For ineffective assistance of counsel to excuse Chapman’s default, Chapman’s
ineffective assistance claim must itself merit habeas relief.62 However, Chapman’s ineffective
assistance claim is not cause to excuse the default of Chapman’s Sixth and Fifth Amendment
claim if the ineffective assistance claim is itself defaulted.63
The Magistrate Judge found that Chapman’s ineffective assistance of counsel claim
regarding the fingerprint expert’s testimony was defaulted, because Chapman did not raise
the ineffective assistance of appellate counsel claim in a petition to reopen his appeal
pursuant to Ohio Appellate Rule 26(B).64
Although Chapman did apply to reopen his appeal based on other ineffective
assistance of appellate counsel claims, none of these claims were based on counsel’s
performance regarding the expert’s fingerprint testimony.65 So, Chapman procedurally
60 , 501 U.S. at 750.
61 , 727 F.3d 517, 530 (6th Cir. 2013) (citing , 477 U.S. 478, 492 (1986)).
62 , 529 U.S. 446, 451 (2000) (“[I]neffective assistance adequate to establish cause for the procedural
default of some constitutional claim is an independent constitutional claim.”) (emphasis in original).
63 at 452-52.
64 Doc. 16, PageID #: 1687.
defaulted the ineffective assistance of appellate counsel claim that he now relies upon to
serve as cause for the procedural default of his Sixth and Fifth Amendment claim.
“A procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause
to excuse the procedural default of another habeas claim only if the habeas petitioner can
satisfy the ‘cause and prejudice’ standard with respect to the ineffective assistance claim
itself.”66
In his objection to the R&R, Chapman argues that cause exists to excuse the
procedural default of the ineffective assistance claim regarding the expert’s testimony,
because his prior motion in limine fairly presented his constitutional claims. Chapman says
that for this reason, it was unnecessary for appellate counsel to address that claim at that
time.67
This reasoning does not stand. As discussed, Chapman’s motion in limine did not
fairly present the matter to state court. And he provides no other justification for why his
counsel did not preserve this ineffective assistance claim via Rule 26(B).68
So, Chapman has not shown cause to excuse his defaulted ineffective assistance of
appellate counsel claim, and so in turn, it cannot serve as cause to excuse his defaulted sole
ground for relief.
C. Cognizability
Even if Chapman’s federal constitutional claim was not procedurally defaulted, it
would still not be cognizable in a federal habeas proceeding.
66 , 668 F.3d 307, 321 (6th Cir. 2012) (cleaned up) (quotation omitted).
67 Doc. 18, PageID #:
68 , 894 N.E.2d 1221, 1225 (Ohio 2008) (Rule 26(B) “creates a special procedure for a thorough determination
Section 2254 permits petitioners to raise only “violation[s] of the Constitution or laws
or treaties of the United States.”69 This means that state-law errors are generally not
cognizable in habeas proceedings.70
Chapman’s sole ground for relief is a quintessential state law question. Although he
attempts to characterize the state trial court’s evidentiary ruling as implicating federal
constitutional issues, Chapman consistently based his law and argument as an Ohio criminal
procedural rule issue.
So, “assuming that the prosecutor did violate Ohio Crim. R. 16, such a claim is not
cognizable on habeas, because it is not a constitutional violation.”71 The United States
Supreme Court has held that “there is no general constitutional right to discovery in a
criminal case.”72 “Rather, all the Constitution requires, per the due process clause, is that
the defendant not be deprived of a fundamentally fair trial.”73
Chapman has not shown that the fingerprint expert’s testimony resulted in a
fundamentally unfair trial. In overruling this assignment of error, the Ohio Court of Appeals
noted that even though it did not have the expert reports in the appellate record, other
information from the trial was enough to determine that the trial court did not err in allowing
the expert to testify.74 Chapman’s trial counsel’s discussion and cross-examination of the
fingerprint expert indicated that counsel was familiar with the expert’s methodology, results,
and reports.75 Chapman also received funds for his own fingerprint expert.76
69 28 U.S.C. § 2254(a).
70 , 502 U.S. 62, 67–68 (1991).
71 , 291 F.3d 416, 440 (6th Cir. 2002).
72 , 844 F.2d 1275, 1281 (6th Cir. 1998) (quoting , 429 U.S. 545, 559 (1977)).
73 , 291 F.3d at 440 (citing , 844 F.3d at 1281).
74 , 2019 WL 1760184, at *2.
75
As discussed, federal courts owe great deference to state-court factual
determinations,77 including those made on appeal.78 State-court factual determinations are
presumed to be correct, and the petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence.79
Chapman has not met his burden to rebut the state appellate court’s findings, nor has
he shown that he was deprived of a fundamentally fair trial. So his claim is not cognizable
for federal habeas relief.
IV. CONCLUSION
For the foregoing reasons, the Court OVERRULES Chapman’s objection. The Court
ADOPTS the R&R. As a result, the Court DENIES Chapman’s habeas petition.
Further, the Court certifies that an appeal from this decision could not be taken in
good faith, and no basis exists upon which to issue a certificate of appealability.80
IT IS SO ORDERED.
Dated: August 5, 2024
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
77 , 257 F.3d 498, 506 (6th Cir. 2001).
78 , 695 F.3d 439, 447 (6th Cir. 2012) (citing , 464 U.S. 114, 120 (1983);
, 449 U.S. 539, 546–47 (1981)).
79 28 U.S.C. § 2254(e)(1).