Malvasi v. Warden David W. Gray

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL MALVASI, CASE NO. 4:24-cv-474

Petitioner, DISTRICT JUDGE

JAMES R. KNEPP II

vs.

MAGISTRATE JUDGE

WARDEN DAVID W. GRAY,1 JAMES E. GRIMES JR.

Respondent.

REPORT &

RECOMMENDATION

Pro se Petitioner Michael Malvasi filed a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2254. Doc. 1. Malvasi is in custody at the Belmont

Correctional Institution due to a journal entry of sentence in the case State v.

Malvasi, Mahoning County Court of Common Pleas, Case No. 2018 CR 584.

The Court referred this matter to a Magistrate Judge under Local Rule 72.2

for the preparation of a Report and Recommendation. For the following

reasons, I recommend that the Petition be dismissed.

Summary of facts

In habeas corpus proceedings brought by a person under 28 U.S.C. §

2254, factual determinations made by state courts are presumed correct. 28

1 Shelbie Smith is the Warden at the Belmont Correctional Institution, so

Smith is the proper named Respondent. See Rumsfeld v. Padilla, 542 U.S. 426,

434–35 (2004).

U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that

presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d

439, 447 (6th Cir. 2012).

The Ohio Court of Appeals for the Seventh Appellate District

summarized the facts underlying Malvasi’s conviction as follows:

{¶2} On November 18, 2017, just after 2:45 a.m., a

white Mercedes crossover SUV, which was

registered to Appellant’s father, failed to negotiate

the second portion of the S-curve heading west on

Shields Road (U.S. 62) in Canfield Township. The

vehicle left the road, traveled down an embankment,

hit a tree, and then rolled at least two times. Ryan

Lanzo (the decedent) died at the scene from his

injuries sustained in the crash. The state believed he

was the front seat passenger and Appellant was the

driver.

{¶3} A bystander passed the scene sometime after

the crash occurred and called the police. Before the

police arrived, a vehicle arrived at the scene, and the

decedent’s body was retrieved. Appellant’s father

eventually transported the decedent’s body to an

Austintown health care center (variously called

urgent care or emergency care by witnesses).

***

{¶5} The case was tried to a jury in July 2021. The

decedent’s friend, Dante, testified about their night

in the hours before the crash. He went to the

decedent’s apartment where he consumed a mixed

drink with Appellant, the decedent, and another

friend. (Tr. 257-258). He also observed Appellant

and the decedent smoke marijuana. (Tr. 258-259).

Dante was originally planning to drive the group to

some bars but decided he wanted to drink that night.

When he mentioned using the services of Uber to

reach the bars, Appellant said not to worry because

he would drive. (Tr. 260-261). Dante testified he felt

unsafe in Appellant’s white Mercedes on the way to

the bar because Appellant had the music on the

highest volume, drove aggressively, took a turn at a

high speed, and failed to make a complete stop at a

traffic signal. (Tr. 262-263).

{¶6} At the first bar (Blue Wolf Tavern), Dante

observed Appellant drink a beer; he then spent his

time separate from Appellant (as he had just met

him that night). (Tr. 266). The decedent drank Long

Island iced tea at the bar. (Tr. 282). Eventually,

Dante walked next door to another bar (Suzie’s Dogs

and Drafts).

{¶7} After Appellant arrived at the second bar,

Dante saw him have one or two drinks and a shot.

(Tr. 270). Near the end of the night, the decedent

learned Dante would be getting a ride home from his

friend Jackie and asked if he could also obtain a ride

from this friend. Dante offered to call the decedent

an Uber. (Tr. 270-271).

{¶8} At that point, Appellant said he would be

leaving soon and he could take the decedent home.

(Tr. 272). Dante suggested the decedent should

decline the ride. The decedent replied, “don’t worry.

Mike’s the best drunk driver I know.” The decedent

and Appellant thereafter walked out of the bar. (Tr.

273).

{¶9} Jackie testified she met Dante at Blue Wolf

Tavern at 11:45 p.m. (Tr. 290-291). She said she only

had one glass of wine early in the night and noticed

the decedent consume three drinks at this bar. (Tr.

290, 293). She opined they left Blue Wolf Tavern for

Suzie’s Dogs and Drafts around 1:30 a.m. (Tr. 294).

She confirmed the decedent asked for a ride at the

end of the night and Dante offered to call him an

Uber. (Tr. 297). Jackie also heard Appellant offer to

drive the decedent home, noting Appellant seemed

in a rush to leave. (Tr. 298-301). After Appellant’s

offer, the decedent unsuccessfully offered to pay

people at her table for a ride home. (Tr. 299). She

believed this occurred after the lights came on at last

call around 2:30 a.m. (Tr. 301).

{¶10} A patron at Suzie’s Dogs and Drafts, Lauren,

testified she met Appellant on a prior occasion.

When he and the decedent first sat at her table on

the night at issue, Appellant seemed intoxicated.

Lauren had shots of Crown Royal with Appellant. By

the end of the night, he seemed “very intoxicated.”

(Tr. 318). Lauren was also intoxicated but said it was

not to an extreme level. (Tr. 317). When they all got

up to leave, Appellant fell into a table, which caused

a commotion involving Appellant, the patrons at

that table, and security. (Tr. 319). Opining he should

not drive, Lauren used Appellant’s phone to order

him an Uber to his address on Timber Run Drive in

Canfield. (Tr. 320-321).

{¶11} Lauren’s friend, Macy, testified she watched

Appellant drink beer and multiple shots. (Tr. 350).

She described Appellant as acting “blacked-out

drunk”; he was unable to form a sentence, slurred

his words, and was unsteady on his feet. (Tr. 346).

Macy said she had one beer at this bar and five beers

(or less) during an earlier six-hour period. (Tr. 347).

She was concerned because Appellant drove that

night and asked Lauren to leave with him and the

decedent. (Tr. 351). When she voiced her concerns

about Appellant’s intoxicated state and asked the

decedent to seek a ride with Dante, the decedent

said Appellant “is the best drunk driver that he

knows.” (Tr. 353-355). While watching a bar

surveillance video on the stand, Macy pointed out

Lauren using Appellant’s phone and Appellant

falling into a table. (Tr. 364-366).

{¶12} A resident near the scene of the crash testified

he fell asleep in his den while watching television

and woke at 2:46 a.m. As he stood up, he saw a

vehicle heading west around the first S-curve and

heard it accelerate. As he turned to leave the room,

he heard a lot of noise and then a loud thud. (Tr.

438). He opened the window but could not see or

hear anything, noting the crash site sits lower than

the roadway. (Tr. 438-439, 441). This witness went

to bed and heard about the crash the next morning.

{¶13} A passerby, who described herself as a

designated driver, testified she noticed tracks

leading off the road and a vehicle in a yard. (Tr. 400-

401). After she dropped off her passengers and drove

past the scene, she saw a different vehicle parked in

a driveway and legs on the ground near the two open

doors on the driver’s side of the car. (Tr. 403). She

stopped at Argus Park and called 911 at 3:12 a.m.

(Tr. 403); (St.Ex. 4). She then turned around and

drove back past the scene, but the car was no longer

in the driveway. (Tr. 406).

{¶14} The first responding officer from the sheriff’s

department did not notice the crash when

approaching from the west but found it after turning

around and approaching from the east. They found

no victims at the scene of the crashed white

Mercedes; the fire department assisted in the search

using thermal imaging cameras. (Tr. 382, 385).

{¶15} Because the vehicle was registered to

Appellant’s father, police officers were dispatched to

the Malvasi residence on Timber Run Drive in

Canfield, where Appellant lived with his parents.

(Tr. 450-451, 854). A Canfield police officer testified

he saw Appellant talking on the phone through the

front window while another officer knocked on the

door around 3:45 a.m. Appellant looked at the officer

and then walked away down a hallway. They

continued knocking, but the occupants would not

come to the door. The officer thereafter saw

Appellant peek down the hall. (Tr. 450-454).

{¶16} At 3:52 a.m., Appellant’s father arrived at a

health center in Austintown, Ohio with the

decedent’s body; he was driving a four-door Toyota

sedan registered in his name. (Tr. 540, 841). There

were towels and dark stains on the seat; blood was

collected from inside the vehicle and from an object

in the trunk. (Tr. 609, 620-621).

{¶17} A stipulation was entered into the record

which stated the following: Appellant’s father was

asleep when Appellant woke him; he went outside

where the Toyota used by his son was parked in the

driveway; the decedent, who appeared unconscious,

was in the backseat; and the father immediately

drove the vehicle alone to St. Elizabeth’s Emergency

Care. (Tr. 504).

{¶18} Surveillance footage recovered from a

neighboring house on Timber Run Drive showed the

garage of the Malvasi residence. This video showed

the following events: a car leaving the Malvasi

residence at 3:09 a.m.; the car returning at 3:16 a.m.;

the car leaving the residence again at 3:40 a.m.; and

headlights in the drive at 3:46 a.m. (upon the arrival

of the Canfield police). (Tr. 587-593). These times

were calculated after the witness found the camera

time was four minutes slow. (Tr. 588)

{¶19} A different surveillance video, from the house

across from the Malvasi residence, showed the

following events in the street: a subject walking

toward the Malvasi residence from the west (from

the direction of the crash) at 3:06 a.m.; a car heading

east (toward the crash) at 3:10 a.m.; a car heading

west (toward the house) at 3:16 a.m.; a car heading

east (toward the health center) at 3:41 a.m.; and two

Canfield police cruisers approaching at 3:45 a.m.

(Tr. 579-584). The times were calculated after the

witness found the camera time was five minutes

fast. (Tr. 505, 575).

{¶20} A business’s surveillance camera facing the

intersection of Shields Road and Route 46 recorded

a figure headed west (from the direction of the crash

site toward Appellant’s residence) at 2:56 a.m. This

footage also showed a vehicle headed east at 3:12

a.m., a vehicle headed west at 3:15 a.m., and a

vehicle headed east and turning north (toward

Austintown) at 3:42 a.m. (Tr. 699-704). The times

were calculated after the witness found the camera

time was one hour and eight minutes fast. (Tr. 696).

{¶21} Not long after the Canfield police officers left

the Malvasi residence upon their unsuccessful

attempt to make contact with Appellant, one of the

officers returned for a stakeout to ensure Appellant

did not leave. A highway patrol trooper, who spoke

to Appellant’s father at the health center, went to

the house after the father called home to inquire

about his son’s condition and injuries. (Tr. 483, 486-

487). At 5:45 a.m., the Canfield police officer

knocked on the door accompanied by the trooper.

(Tr. 456-457).

{¶22} Appellant’s sister answered the door and let

them in the house. Appellant’s mother and sister

used a key to unlock the door to Appellant’s bedroom

where he was sleeping and groaning. (Tr. 459-460,

488). After Appellant complained of side pain, he

was evaluated by an emergency medical technician

(EMT) and transported to the hospital. (Tr. 460).

The Canfield police officer heard Appellant tell the

EMT he smoked marijuana and drank three to four

beers plus six shots. (Tr. 462).

{¶23} Two hours later, Appellant spoke to a trooper

at the hospital. He identified the decedent and said

he had no memory of the crash. He claimed the

decedent was the driver, alleging the decedent

started driving from the parking lot at Suzie’s Dogs

and Drafts. (Tr. 846). After a short break in the

interview, Appellant said the decedent argued with

him about driving while in the bar’s parking lot. (Tr.

851). He admitted smoking weed and said his

memory was lacking because of all the beer,

whiskey, and tequila he drank. (Tr. 852). The

trooper testified it took him seven minutes to drive

3.4 miles to the crash site from Suzie’s Dogs and

Drafts while traveling the speed limit. (Tr. 864). He

said the drive from the crash site to Appellant’s

house takes approximately two minutes. (Tr. 866).

{¶24} The forensic pathologist testified the decedent

suffered brain hemorrhaging of various types, a

lacerated blood vessel at the heart, lung contusions,

a lacerated liver, hemorrhaging in the pleural cavity

and abdomen, and fractured ribs and clavicle. (Tr.

518-519). The external injuries were mostly pre-

death abrasions. (Tr. 522-523). She believed he died

“seconds to minutes” after receiving the injuries,

with five minutes being the maximum. (Tr. 520).

{¶25} An agent from the Ohio Department of Public

Safety testified to his review of surveillance videos

from the two bars (after the bar owners and their

contracted technology representatives testified

about providing the videos to law enforcement).

(St.Ex. 152, 153). After viewing BMV photographs of

Appellant and the decedent, this agent spotted them

arriving at Blue Wolf Tavern at 11:46 p.m. (Tr. 640-

641). At 12:20 a.m., Appellant was seated at the bar.

At 1:24 a.m., Appellant and the decedent exited Blue

Wolf Tavern. (Tr. 642). The time on the video was

found to be accurate. (Tr. 639).

{¶26} The video from Suzie’s Dogs and Drafts shows

a white SUV entering the parking lot around 1:30

a.m. (calculated after the agent found the camera

time was 14 minutes slow). (St.Ex. 153); (Tr. 651).

The agent noted he could see the clothing worn by

the driver and passenger as they exited the vehicle

and approached the entrance to the bar. (Tr. 651-

658). Macy confirmed the identity of Appellant and

the decedent (including the clothing worn that

night) from the video for the agent. (Tr. 349, 359,

664-665). Jackie identified the two (and their

clothing) from still shots taken from the video. (Tr.

303-304). Appellant can be seen in the bar with the

decedent and other witnesses.

{¶27} Just prior to exiting the bar, Appellant

stumbled into his own table. While walking toward

the door, he staggered to the side, knocked over a

chair, and landed on a seated male patron while

causing the patron’s table to move from its position.

The decedent had to pull him off the patron. The

outside video thereafter shows Appellant and the

decedent exit the bar and walk to the white SUV

where it can be discerned that the decedent entered

the front passenger side of the vehicle and Appellant

entered the front driver’s side of the vehicle. The

agent also testified to this observation. (Tr. 663). The

car drove away at 2:39 a.m.

{¶28} The jury also watched videos Appellant posted

to Snapchat earlier in the night. (St.Ex. 151). The

first video clip had a 9:25 p.m. timestamp and

showed Appellant drinking a shot of Crown Royal;

the next clip in the sequence showed him do another

shot, spilling some down his chin. Another clip was

shot from inside a vehicle stopped at a red light with

the camera held at a position near the center

armrest, which allowed the viewer to see the

Mercedes emblem on the steering wheel and the

vehicle’s clock reading 10:06; the camera then

turned to show Appellant singing to the music. (Tr.

713-715).

{¶29} A knit hat with an Arctic Cat logo was found

on the driver’s seat of the wrecked Mercedes. (Tr.

686-687, 900). The still shot taken from the bar video

showed Appellant wearing a knit cap with an

emblem on it. (Tr. 900). A phone attributed to the

decedent was found between the driver’s seat and

the driver’s door of the Mercedes. (Tr. 594, 613).

{¶30} The accident reconstruction expert testified

the crash occurred at the second 45-degree turn

heading west on Shields Road after Argus Park. At

the curves, there were warning signs, an overhead

light, and a suggested speed of 25 mph. (Tr. 744).

The expert documented three tire[] marks beginning

on the road and leading off the north side of the road

into the grass and down an embankment. He

explained the tracks showed the vehicle did not

drive straight off the road at the curve but tried (and

failed) to negotiate the curve. (Tr. 745). He believed

the vehicle was traveling at 43 to 45 miles per hour

through the crash site if it was not braking and 60

to 65 miles per hour if it had the brakes locked, but

he did not believe the brakes were locked due to the

curvature of the tire marks. (Tr. 787-788).

{¶31} Ninety feet after the vehicle started through

the grass, its right side near the front corner hit a

pine tree (standing 17 to 20 feet in height), shearing

the tree off at the base and uprooting the stump. (Tr.

746, 748). The vehicle then overturned, striking the

ground very hard on its left side and rolling at least

twice while in the grass and then probably again

over a gravel driveway. (Tr. 746-747, 797-798, 812).

Evidence of the overturns included missing tire

marks, the gouges in the grass, the debris field, and

the condition of the vehicle (including dirt on certain

parts of the vehicle and the missing driver’s side

mirror). (Tr. 747, 830). The vehicle landed upright

on its wheels on the other side of the gravel driveway

(facing the direction from which it was originally

driving on the road). The expert said the debris field

and crash scene spanned roughly 280 feet. (Tr. 747).

{¶32} The dashboard showed evidence of impacts

with the occupants; their denim pants left imprints,

which indicated they were not wearing seatbelts.

(Tr. 776). The imprint on the driver’s side was under

the steering wheel. There was a separate imprint on

the passenger side, which seemed to slide up the

dashboard (where the glove compartment met the

console). (Tr.768-769). The expert explained the

occupants were thrown to the left, toward the

driver’s side, as the vehicle rolled upside down. (Tr.

797-798, 801-802, 813).

{¶33} The side airbags were deployed. The driver’s

window was missing, but the expert said an ejection

through the driver’s window during the roll was

unlikely due to the door and the deployed side

airbag, which had dirt on the outside. (Tr. 749, 798).

The rear window was missing, but a cargo cover was

crushed into the space, which blocked that potential

ejection route.

{¶34} The sunroof was expelled from the top of the

vehicle, and there was damage to the left rear

sunroof frame. For instance, the fabric around the

interior sunroof corner indicated an impact with and

abrasion by an object being ejected through the hole

in the roof. (Tr. 750). The outside of this sunroof

corner was free of mud and sod, suggesting someone

was caught between the roof and the grass as the

vehicle rolled. (Tr. 777). One of the injuries running

down the decedent’s left leg was angled in a shape

matching the sunroof’s angled support arm. (Tr. 775-

777). The spacing between the injuries at the bottom

of the decedent’s leg and pant leg corresponded to

the layout of the sunroof frame. (Tr. 782, 798-799).

The expert opined to a reasonable degree of scientific

certainty the decedent had been in the passenger

seat and was then thrown to the left through the

sunroof. (Tr. 797).

State v. Malvasi, 203 N.E.3d 823, 827–32 (Ohio Ct. App. 2022).

Procedural background

Trial court proceedings

In June 2018, the Mahoning County Grand Jury issued an indictment

charging Malvasi with aggravated vehicular homicide, vehicular homicide, two

counts of not stopping after an accident, tampering with evidence, and

operating a vehicle impaired. Doc. 8-1, at 3–5 (Exhibit 1).2 Malvasi retained

counsel and pleaded not guilty. Id. at 6 (Exhibit 2).

Malvasi filed two motions to suppress. In the first motion, he moved to

suppress his blood-draw results and statements that he made to the police.

Doc. 8-1, at 8–12 (Exhibit 4-A). In the second motion, he moved to suppress all

of the evidence and testimony related to the police searches of his cell phone

records, Snapchat account, and the Mercedes. Id. at 149–54 (Exhibit 4-C). The

2 In this report and recommendation, all of the citations to the docket refer

to the ECF document and page number shown at the top of the page.

court sustained the first motion as to Malvasi’s blood-draw results but

overruled the motion as to Malvasi’s statements. Id. at 188–90 (Exhibits 4-E,

4-F). The court overruled the second motion. Id. at 188–99.

Malvasi filed a motion for a Daubert hearing3 to challenge the reliability

of the State’s accident reconstructionist. Doc. 8-1, at 191–92 (Exhibit 5-A). The

court held a hearing, Doc. 8-2, at 199–252, and overruled Malvasi’s motion to

exclude the reconstructionist, Doc. 8-1, at 239 (Exhibit 6).

The case proceeded to trial, and the jury found Malvasi guilty on all

counts.4 Doc. 8-1, at 240–41. The trial court sentenced Malvasi on each of the

counts; ordered some of the sentences to run concurrently and some of them to

run consecutively; and sentenced Malvasi to an aggregate term of 12 years in

prison and a mandatory lifetime driver’s license suspension. Id. at 242–44.

Direct appeal

Malvasi, through new counsel, appealed to the Ohio court of appeals.

Doc. 8-1, at 245–46 (Exhibits 9, 10). In his brief, he raised the following

assignments of error:5

1. The trial court erred in permitting Trooper

Christopher Jester to testify concerning his opinion

that Appellant had been driving the car at the time

3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

4 One of the not “stopping after accident” counts was “decreased to a third-

degree felony due to a special finding that Appellant did not know the accident

resulted in a death when he left the scene.” Malvasi, 203 N.E.3d at 832–33.

5 In this report and recommendation, Malvasi’s grounds for relief are

reproduced as written.

of the accident and the decedent had been a

passenger in the car.

2. The trial court erred and abused its discretion by

permitting various witnesses to testify that the

decedent stated that Appellant was the “best drunk

driver” he knew.

3. The trial court erred and abused its discretion by

giving a flight instruction to the jury over the

objections of Appellant.

4. Appellant’s convictions are against the manifest

weight of the evidence.

Doc. 8-1, at 249. On December 14, 2022, the Ohio court of appeals affirmed the

trial court’s judgment. Id. at 307–31 (Exhibit 12).

On January 30, 2023, Malvasi appealed to the Ohio Supreme Court. Doc.

8-1, at 333. In his memorandum in support of jurisdiction, Malvasi set forth

the following propositions of law:

1. A trial court peers by permitting a witness to give

opinion testimony concerning the details of an

automobile accident when the witness is not

qualified to do so.

2. A trial court errs and abuses its discretion by

permitting various witnesses to testify that the

decedent stated that Appellant was the “best drunk

driver” he knew.

3. A trial court errs and abuses its discretion by

giving a flight instruction to the jury where the

evidence reveals that the defendant left the scene of

an accident to obtain medical assistance for another.

4. Appellant’s convictions are against the manifest

weight of the evidence.

Id. at 336 (Exhibit 14). On March 14, 2023, the Ohio Supreme Court declined

under its rule of practice 7.08(B)(4) to accept jurisdiction of Malvasi’s appeal.

Id. at 353 (Exhibit 16).

Federal habeas corpus petition

Malvasi states that on February 29, 2024, he placed in the prison

mailbox his federal habeas corpus petition under 28 U.S.C. § 2254.6 Doc. 1, at

9. He raises the following grounds for relief:

Ground one: The trial court peers by permitting a

witness (trooper Christopher Jester) to give an

opinion testimony concerning the details of an

automobile accident when the witness is not

qualified to do so.

Supporting facts: The Appellant asserts that

the central issue in the case concerning whether or

not petitioner was driving the Mercedes in question

at the time of the accident. In that regard, the

prosecutor presented testimony of an alleged expert

witness to reconstruct the accident and determine

who was sitting where. This was done over the

objection of Petitioner, both in the form of a Daubert

motion and hearing, and an objection at trial.

Petitioner submits that the trial court committed

reversible error by permitting this testimony.

Ground two: The trial court erred and abused its

discretion by permitting various witnesses to testify

that the decedent stated that Appellant was the best

drunk driver he knew.

Supporting facts: The Petitioner asserts that

over objection of trial counsel, several witnesses

were permitted to testify that the decedent had

stated that Petitioner was the best drunk driver that

he knew. At one point during the trial, the parties

argued the merits of Petitioner’s objections in this

6 A petition is deemed filed when a petitioner places it the prison mailing

system. Houston v. Lack, 487 U.S. 266, 270 (1988).

regards. Petitioner argued that the statements

violated the hearsay rules of evidence.

Ground three: The trial court errors and abuses its

discretion by giving a flight instruction to the jury

where the evidence reveals that the defendant left

the scene of an accident to obtain medical assistance

for another.

Supporting facts: The Petitioner asserts that

the prosecutor sought and obtained a flight

instruction, over the objection of Petitioner.

Petitioner argued that this unsupported fact

indicated that Petitioner walked from the scene of

the accident to his home, took his father’s other

vehicle to retrieve the decedent, did so, and returned

home to have his father take the decedent to the

hospital. The record is devoid of any indication that

Petitioner left the scene in order to avoid

apprehension and, in fact, the evidence actually

reveals that police authorities knew the identity of

Petitioner immediately upon commencing their

investigation.

Doc. 1, at 6–7. The Warden filed a Return of Writ. Doc. 8. Malvasi has not filed

a Traverse and the time to do so has passed.

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain

procedural requirements to have their claims reviewed in federal court. Smith

v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural

barriers, such as statutes of limitations and rules concerning procedural

default and exhaustion of remedies, operate to limit access to review on the

merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381

(2001). Although procedural default is sometimes confused with exhaustion,

exhaustion and procedural default are distinct concepts. Williams v. Anderson,

460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state

remedies are “still available at the time of the federal petition.” Id. (quoting

Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies

are no longer available, procedural default rather than exhaustion applies. Id.

Exhaustion

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A). A state defendant with federal constitutional claims must fairly

present those claims to the state courts before raising them in a federal habeas

corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have

jurisdiction to consider a claim in a habeas petition that was not ‘fairly

presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877

(6th Cir. 2003)). A constitutional claim for relief must be presented to the

state’s highest court to satisfy the fair presentation requirement. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999); Hafley v. Sowders, 902

F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the

factual and legal underpinnings of the claims to the state courts. McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner

must present his claim to the state courts as a federal constitutional issue—

not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,

368 (6th Cir. 1984).

Procedural default

Procedural default may occur in two ways. Williams, 460 F.3d at 806.

First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.

In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors

when determining whether a claim is barred on habeas corpus review due to a

petitioner’s failure to comply with a state procedural rule: whether (1) there is

a state procedural rule applicable to the petitioner’s claim and whether the

petitioner failed to comply with that rule; (2) the state court enforced the

procedural rule; (3) the state procedural rule is an adequate and independent

state ground on which the state can foreclose review of the federal

constitutional claim; and (4) the petitioner can demonstrate cause for failing to

follow the rule and actual prejudice by the alleged constitutional error. 785

F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the

petitioner’s failure to comply with the procedural rule, the state court declines

to reach the merits of the issue, and the state procedural rule is an independent

and adequate grounds for precluding relief, the claim is procedurally

defaulted.”) (citing Maupin, 785 F.2d at 138).

Second, “a petitioner may procedurally default a claim by failing to raise

a claim in state court, and pursue that claim through the state’s ‘ordinary

appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,

526 U.S. at 848). “If, at the time of the federal habeas petition, state law no

longer allows the petitioner to raise the claim, the claim is procedurally

defaulted.” Id. While the exhaustion requirement is satisfied because there are

no longer any state remedies available to the petitioner, see Coleman v.

Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal

claims considered in the state courts constitutes a procedural default of those

claims that bars federal court review, Williams, 460 F.3d at 806.

To overcome a procedural bar, petitioners must show cause for the

default and actual prejudice that resulted from the alleged violation of federal

law that forms the basis of their challenge, or that there will be a fundamental

miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at

750.

Merits review

If a state’s courts adjudicated the merits of a claim, a habeas petitioner

may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish

one of two predicates. To establish the first predicate, the petitioner “must

identify a ‘clearly established’ principle of ‘Federal law’ that” has been

established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,

231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must

then show that state’s court’s adjudication “was contrary to,” or “involved an

unreasonable application of” that “clearly established” precedent. 28 U.S.C. §

2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.

To establish the second predicate, the petitioner must show that the

state’s court’s adjudication “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)(2).

“Under the ‘contrary to’ clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by the

[United States Supreme] Court on a question of law or” based on “a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13

(2000). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal

principle from th[e] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application

of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely

wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419

(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).

“[A] ‘clearly established’ principle of ‘Federal law’ refers to the

“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at

231 (quoting White, 572 U.S. at 419). A state court is not required to cite

Supreme Court precedent or reflect an “awareness” of Supreme Court cases,

“so long as neither the reasoning nor the result of the state-court decision

contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.

Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not

addressed the petitioner’s specific claims, a reviewing district court cannot find

that a state court acted contrary to, or unreasonably applied, Supreme Court

precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,

77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for

instances in which a state court unreasonably applies this Court’s precedent;

it does not require state courts to extend that precedent or license federal

courts to treat the failure to do so as error.”).

In determining whether the state court’s decision involved an

unreasonable application of law, the Court uses an objective standard.

Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks

merit precludes federal habeas review so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

1. Ground one is not cognizable

In ground one, Malvasi argues that the trial court erred when it

permitted the State’s expert witness to testify. Doc. 1, at 7. Malvasi asserts

that the witness, an accident reconstructionist, was not qualified “to

reconstruct the accident and determine who was sitting where.” Id. He submits

that the court made an erroneous ruling over his objection “both in the form of

a Daubert motion and hearing” and during trial. Id.

“[E]rrors in application of state law, especially with regard to the

admissibility of evidence, are usually not cognizable in federal habeas corpus.”

Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); see Estelle v. McGuire, 502

U.S. 62, 67–68 (1991) (a federal habeas court does not “reexamine state-court

determinations on state-law questions,” including the admissibility of

evidence). In Daubert, the United States Supreme Court held that Federal

Rule of Evidence 702 requires a trial judge to ensure that an expert’s testimony

is relevant and based on a reliable foundation. 509 U.S. at 597. But Daubert

doesn’t apply to state criminal proceedings, so ground one, which rests on Ohio

law, is not cognizable. See Norris v. Schotten, 146 F.3d 314, 335 (6th Cir. 1998)

(“Daubert concerned the Federal Rules of Evidence which is not relevant to

[the habeas petitioner’s] conviction”); Hale v. Shoop, No. 1:18-cv-504, 2021 WL

1215793, at *39 (N.D. Ohio Mar. 31, 2021).

“When an evidentiary ruling is so egregious that it results in a denial of

fundamental fairness, it may violate due process and thus warrant habeas

relief.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). To rise to the level

of a due process violation, a state-court evidentiary ruling must “offend[] some

principle of justice so rooted in the traditions and conscience of our people as

to be ranked as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.

2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996), in turn quoting

Patterson v. New York, 432 U.S. 197, 202 (1977)).

Here, Malvasi has not shown that the trial court’s ruling deprived him

of fundamental fairness. The Ohio court of appeals rejected Malvasi’s claim as

follows:

{¶37} Before trial, Appellant filed a motion in limine

seeking to preclude the opinion of the state’s

accident reconstruction expert and asking for a pre-

trial hearing on the issue. The expert testified at a

hearing on October 16, 2021, and the court overruled

Appellant’s motion. (10/19/20 J.E.). At trial, defense

counsel renewed his motion as to the expert, and the

court overruled the motion again. (Tr. 730-731).

{¶38} On appeal, Appellant first contends this

witness was not properly qualified as an expert in

accident reconstruction as required by Evid.R.

702(B). He suggests the witness may have been an

expert in accident investigation but lacked sufficient

training or experience in accident reconstruction.

{¶39} A witness who testifies as an expert must be

“qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding

the subject matter of the testimony * * *.” Evid.R.

702(B). “Neither special education nor certification

is necessary to confer expert status upon a witness.

The individual offered as an expert need not have

complete knowledge of the field in question, as long

as the knowledge he or she possesses will aid the

trier of fact in performing its fact-finding function.”

State v. Hartman, 93 Ohio St.3d 274, 285, 754

N.E.2d 1150 (2001). See also State v. Thompson, 141

Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,

¶127 (the witness need not be the best witness on

the subject to be qualified as an expert).

{¶40} The determination of an expert’s qualifications

to testify on a particular subject is within the sound

discretion of the trial court and reviewable only for

an abuse of discretion. State v. Jones, 90 Ohio St.3d

403, 414, 739 N.E.2d 300 (2000). Under such

standard, the decision is upheld unless it is

unreasonable, arbitrary or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).

{¶41} At the time of the initial hearing, the expert

had been a trooper with the Ohio State Highway

Patrol for over 26 years. He was a crime and crash

scene reconstructionist with almost 1,500 hours in

traffic crash and crime scene training. Of those

hours, 868 were specific to traffic crashes, including

40 specific to the placement of occupants or

pedestrians during a crash. (Hrg.Tr. 3-5). The expert

taught three levels of courses in crash investigation.

(Hrg.Tr. 6). He had previously been qualified to

testify as an expert in accident reconstruction in

Columbiana, Mahoning, and Trumbull Counties.

(Hrg.Tr. 5-6).

{¶42} The expert’s CV shows he engaged in low level

accident reconstruction prior to 2004, at which time

he trained in crash reconstruction and began serving

as an accident reconstructionist. (St.Ex. 1). He

completed over 300 reconstruction cases for local,

state, and federal agencies between 2004 and 2017.

He also served as a reconstruction training officer

for new investigators and developed protocols for the

reconstruction unit. His training courses were listed

on the CV. At trial, he again reviewed his

qualifications as an expert, noting he was a full-time

crash and crime scene reconstructionist since 2012.

(Tr. 734-740).

{¶43} As the state points out, the expert’s

qualifications in accident reconstruction were

established to a greater degree than those in a prior

case where we found an officer was properly

qualified to testify on accident reconstruction. See

State v. Brady, 7th Dist. Mahoning No. 13 MA 88,

2014-Ohio-5721, 2014 WL 7356781, ¶ 46 (where a

police officer of 20 years was assigned to the accident

investigation unit for 13 years, took a reconstruction

course, and was previously qualified as a

reconstruction expert). See also State v. DeWalt, 7th

Dist. Carroll No. 08 CA 852, 2009-Ohio-5283, 2009

WL 3165615, ¶ 24 (finding a trooper was qualified as

an accident reconstruction expert where he took

courses on the subject and previously testified as an

expert on the subject six times).

{¶44} Here, we have an Ohio State Highway Patrol

trooper with a quarter century of accident

investigation experience who was trained in

reconstruction, worked in the crash and crime scene

reconstruction unit since 2004, was a full-time crash

and crime scene reconstructionist since 2012,

completed reconstructions in over 300 cases, and

was previously qualified as an expert in at least

three counties. The trial court did not abuse its

discretion in finding the state’s expert was qualified

to testify on accident reconstruction.

{¶45} Appellant next contends the expert’s

reconstruction methods were not established to be

reliable under Evid.R. 702(C) and the principles in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Appellant claims there was no proof the results were

subject to replication. He points out the decedent’s

location in the vehicle at the time of the crash was a

central issue in the case. In citing case law on expert

testimony, he also mentions the testimony must be

relevant and with a probative value that is not

outweighed by the risks of unfair prejudice,

confusing the issues, or misleading the jury.

{¶46} An expert’s testimony must be based on

“reliable scientific, technical, or other specialized

information.” Evid.R. 702(C). If the testimony

reports the result of a procedure, test, or experiment,

then it is reliable only if: (1) the theory is objectively

verifiable or validly derived from widely accepted

knowledge, facts, or principles; (2) the design

reliably implements the theory; and (3) it was

conducted in a way that will yield an accurate result.

Evid.R. 702(C)(1)-(3).

{¶47} In determining whether the opinion of an

expert is reliable, the trial court examines whether

the expert’s conclusion is based on scientifically

valid principles and methods, not whether the

opinion is correct. Miller v. Bike Athletic Co., 80 Ohio

St.3d 607, 611-613, 687 N.E.2d 735 (1998) (reversing

the trial court’s exclusion of an expert opinion),

citing Daubert, 509 U.S. at 592-593, 595, 113 S.Ct.

2786. Factors to consider when evaluating the

reliability of scientific evidence include whether the

theory or technique has been tested and/or subjected

to peer review, the potential rate of error, and

whether the methodology is generally accepted.

Miller, 80 Ohio St.3d at 611, 687 N.E.2d 735 (the

inquiry is flexible), citing Daubert, 509 U.S. at 593-

594, 113 S.Ct. 2786.

{¶48} The expert testified the speed calculation is a

simple, long-standing concept taught in basic

courses (and is even taught in courses that do not

rise to the level of accident reconstruction). He

explained the equation inputs (for the friction factor

of the surface and the distance the vehicle traveled

over the surface). (Hrg.Tr. 18). He additionally

mentioned using a 3D laser scan and forensic

mapping to record the condition of the vehicle and

the scene; he also took photographs while he

evaluated the vehicle at the scene. (Hrg.Tr. 9, 20-21).

The expert explained his knowledge, gained from

training and experience, that ejection from a vehicle

likely leaves evidence at the edges of the opening,

such as the fabric abrasion at the corner of the

sunroof. He also explained how clothing imprint

marks are left on a dashboard from an impact during

a crash, noting this is a common occurrence on the

inside and outside of vehicles when a person collides

with a vehicle surface at high velocity. (Hrg.Tr. 23-

25).

{¶49} The accident reconstruction expert said his

methods, techniques, equations, and tools were

generally accepted throughout the world in the field

of accident reconstruction and investigation and

were not unique. (Hrg.Tr. 31). Moreover, his report

was subjected to peer review by a supervisor in order

to lower the error rate and verify the conclusions

such as the rolling of the vehicle. (Hrg.Tr. 30, 47, 49).

At trial, he reiterated much of his experience and the

process utilized. In addition, the evidence he relied

on was viewable by the fact-finder in photographs

and in maps he was trained to make (including the

damage to and features of the outside and inside of

the vehicle, the tire marks and gouges in the ground,

the debris field, and the damage to the clothing and

skin).

{¶50} Merely because the expert could not say the

accident “absolutely” occurred as he described or

could not say a future accident would always happen

in this same manner did not mean the

reconstruction opinion was unreliable as to this

particular accident considering all of the

circumstances before the expert. Moreover, the

consideration of reproducible results relates to the

conclusion of an expert who employs a test or

method for the facts at issue. The final

interpretation of all existing data was not an

experiment; nor was it a test in and of itself. We also

note the expert voiced his conclusion to a reasonable

degree of scientific certainty. A “reasonable

certainty” is synonymous with “probability” not

absolutes. State v. Jackson, 92 Ohio St.3d 436, 751

N.E.2d 946 (2001). In fact, “expert witnesses in

criminal cases can testify in terms of possibility

rather than in terms of a reasonable scientific

certainty or probability.” State v. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 77

(applying the probability standard only to civil cases

is constitutionally sound), citing State v.

D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909

(1993). Issues with the certainty of the scientific

opinion are matters of sufficiency or weight of the

evidence. Id.

{¶51} Appellant also briefly complains the expert

failed to mention whether the occupants could have

dislodged from their seats before the vehicle

impacted the tree or evaluate whether the side

airbags could have inadvertently deployed before

the impact, noting there was a front airbag recall

based on inadvertent deployment. He also says the

expert failed to consider the tree strike in making

certain conclusions, such as on trajectory. As to the

latter argument, we note the trajectory was

supported by evidence such as tracks, ground

gouges, debris field, and vehicle condition and

position. Also, the expert explained the general

equation was based on friction without accounting

for strikes; it was not some omission on his part.

(Hrg.Tr. 41). The other subjects involve unsupported

theories raised by Appellant at trial. These were

topics for cross-examination and for the jury in

weighing the evidence. For instance, there is no

indication a front airbag recall (issued for

inadvertent deployment of a front airbag) had any

relation to the deployment of the side airbags in this

case (where the front airbags were not deployed).

Again, the credibility of the expert and the weight to

give his conclusions remained issues for the trier of

fact. Brady, 7th Dist. No. 13 MA 88 at ¶ 45.

{¶52} The trial court reasonably found the expert’s

opinion was reliable under Evid.R. 702(C), and the

decision was not arbitrary or unconscionable.

Moreover, the testimony was relevant under Evid.R.

401, and the probative value was not substantially

outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading of the jury

under Evid.R. 403(A). In sum, the trial court’s

decision to find the trooper was qualified to testify

as an expert in accident reconstruction and to allow

him to testify about the accident and the decedent’s

location in the vehicle was not an abuse of discretion.

Accordingly, this assignment of error is overruled.

Malvasi, 203 N.E.3d at 833–36.

“[A]s a state evidentiary matter, [Malvasi] presents no reason for this

court to believe [that the expert’s] testimony was admitted in error nor any

reason to believe that this testimony denied [him] a fundamentally fair trial.”

See Norris, 146 F.3d at 335. Ground one is not cognizable.

2. Ground two is not cognizable, and, alternatively, fails on the merits

In ground two, Malvasi alleges that the trial court erred when it

permitted witnesses to testify at trial that they heard the decedent state that

Malvasi “was the best drunk driver he knew.” Doc. 1, at 6. The Ohio court of

appeals considered this claim as follows:

{¶54} As set forth supra in our Statement of the

Case, the decedent asked for a ride home from people

other than Appellant at the end of the night. Dante

was getting a ride home from Jackie, but he offered

to summon an Uber for the decedent. At that point,

Appellant said he could transport the decedent and

would be leaving soon. Dante suggested the

decedent should decline the ride. The defense

unsuccessfully objected when Dante quoted the

decedent as follows: “don’t worry, Mike’s the best

drunk driver I know.” The decedent and Appellant

thereafter walked out of the bar. (Tr. 270-273).

{¶55} Macy separately voiced her concerns about the

decedent’s ride home due to Appellant’s intoxication.

She testified over objection that the decedent told

her Appellant was going to drive them. The court

overruled the objection after the state pointed out it

showed the decedent’s intent. The state then asked

Macy what gave her the impression Appellant would

be the driver. The court overruled another defense

objection, allowing Macy to testify the decedent told

her “[Appellant] is the best drunk driver that he

knows.” (Tr. 353-354).

{¶56} Appellant contends the statement about

Appellant being “the best drunk driver” the decedent

knew was inadmissible hearsay. He also claims the

prejudicial effect outweighed the probative value

under Evid.R. 403.

{¶57} We begin by pointing out the decedent’s

statements to his friends before leaving the bar were

non-testimonial; the primary purpose of the

statements was not to create an out-of-court

substitute for trial testimony. See State v. Ash, 7th

Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, 108

N.E.3d 1115, ¶ 72-75 (victim’s statements to

relatives), citing Ohio v. Clark, 576 U.S. 237, 135

S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015) (a

statement cannot fall within the confrontation

clause unless its primary purpose was testimonial);

Giles v. California, 554 U.S. 353, 376, 128 S.Ct.

2678, 171 L.Ed.2d 488 (2008) (statements to friends

not subject to confrontation clause); State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70

N.E.3d 508, ¶ 185 (statement of defendant’s

daughter to the victim’s niece was non-testimonial).

This non-testimonial description does not appear to

be in dispute.

{¶58} Where a non-testimonial statement is

admitted, the confrontation clause does not apply,

and the matter is left to the application of state rules

of evidence such as hearsay rules. Michigan v.

Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 1143, 179

L.Ed.2d 93 (2011). Hearsay, which is generally

inadmissible, is “a statement, other than one made

by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the

matter asserted in the statement.” Evid.R. 801(C);

Evid.R. 802.

{¶59} As below, the state first claims the statement

was not hearsay because it was not offered to show

Appellant was the best drunk driver the decedent

knew. However, the statement also implicitly

indicates Appellant was drunk that night, which

was a fact the state was charged with establishing

at trial.

{¶60} In any case, the state asserts the contested

statement would be admissible under the statement

of intent exception to the ban on hearsay, which the

state also raised at trial in response to the objection.

This exception provides the following type of hearsay

is admissible:

Then Existing, Mental, Emotional, or

Physical Condition. A statement of the

declarant’s then existing state of mind,

emotion, sensation, or physical

condition (such as intent, plan, motive,

design, mental feeling, pain, and bodily

health), but not including a statement

of memory or belief to prove the fact

remembered or believed unless it

relates to the execution, revocation,

identification, or terms of declarant’s

will.

Evid.R. 803(3).

{¶61} “[S]tatements of current intent to take future

actions are admissible for the inference that the

intended act was performed.” State v. Hand, 107

Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 99

(a declarant’s statements that he was going to make

money and “take somebody out” for the defendant,

he had to be ready to go see the defendant, and he

would be right back after he picked up some money

were admissible under Evid.R. 803(3) to show the

declarant intended to meet with the defendant, pick

up money, and later kill a person), citing State v.

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶ 33 (it is a long-standing rule that a

statement of then-existing intent may be used as the

basis for introducing statements showing the

declarant’s forward-looking intent to prove he

thereafter acted in accordance with that intent).

{¶62} As the state points out, the contested

statement constituted a part of the declarant’s

stated intent and plan. Without allowing Dante to

testify to the statement, Dante could not have

disclosed the decedent’s declaration of his plan or

intent to accept Appellant’s offer of a ride and get in

the car with him driving. Presented in the context of

the conversation about who was driving the

decedent that night, the statement was offered to

show the decedent intended to ride with Appellant

notwithstanding the concerns over his drunkenness.

By the time Macy testified, the same statement was

already in the record.

{¶63} It was not an abuse of discretion for the trial

court to conclude the decedent’s reassurances to his

concerned friends not to worry because Appellant

was the best drunk driver he knew demonstrated

the decedent’s “current intent to take future actions”

and were “admissible for the inference that the

intended act was performed.” See Hand, 107 Ohio

St.3d 378, 840 N.E.2d 151 at ¶ 99. As such, the

decedent’s statements indicating he was accepting

Appellant’s offer of a ride were admissible under

Evid.R. 803(3) to prove he then acted in conformity

with his expressed intent.

{¶64} The decedent’s intent to get a ride with

Appellant notwithstanding his intoxication was

certainly relevant evidence. See Evid.R. 401

(relevant evidence is “evidence having any tendency

to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without

the evidence”). The admission or exclusion of

relevant evidence under Evid.R. 403(A) is within the

sound discretion of the trial court. State v. Skatzes,

104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio-

6391, ¶ 107.

{¶65} When an otherwise admissible statement is

relevant, it shall be excluded if its probative value

was not substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of

misleading the jury. Evid.R. 403(A). The contested

statement would not have confused or misled the

jury. It was admittedly prejudicial, including the

implication that the decedent may have witnessed

Appellant drive drunk in the past. Still, it is only

unfair prejudice to be weighed against the probative

value, as the state’s evidence will obviously

prejudice a defendant. Skatzes, 104 Ohio St.3d 195,

819 N.E.2d 215 at ¶ 107. The jury already heard

from Dante that Appellant drove him and the

decedent to the bar after Appellant consumed at

least one mixed vodka drink and smoked marijuana.

Plus, the probative value of the statement evincing

the decedent’s intent to ride with Appellant was very

high. It was reasonable to find the probative value of

the statements was not substantially outweighed by

the danger of unfair prejudice.

{¶66} Finally, the state also persuasively contends

that assuming arguendo there was a hearsay error

in admitting the contested statement, any error

would have been harmless. Appellant drove the

decedent to the bars in a wild manner while driving

a Mercedes owned by Appellant’s father. As

mentioned in reviewing prejudice, the jury already

heard from Dante that Appellant consumed at least

one mixed vodka drink and smoked marijuana

before driving them to the bar. Various witnesses

saw him drink more at the bars and watched him act

drunk, with his staggering and fall captured on

video for the jury. When the decedent sought a ride

from people at the end of the night, Appellant

specifically declared that he would drive the

decedent, and they then left the bar together.

Appellant’s offer of the ride to the decedent was the

defendant’s own statement and was thus non-

hearsay. Evid.R. 801(D)(2)(a).

{¶67} Moreover, before Macy revealed the “best

drunk driver” statement, she had already disclosed

the decedent said he would be driven by Appellant

that night. In addition, the bar’s video (from less

than 10 minutes before the crash) showed Appellant

entering the vehicle through the driver’s door with

the decedent entering on the passenger side. With

these facts and the remainder of the facts collected

in our Statement of the Case, it is clear any error in

admitting the alleged hearsay statement would have

been harmless as there was overwhelming evidence

that Appellant was both intoxicated and the driver.

See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-

5052, 24 N.E.3d 1153, ¶ 32 (even if there was

prejudicial error in admitting evidence, the

overwhelming other evidence rendered the error

harmless). For the various reasons expressed above,

this assignment of error is overruled.

Malvasi, 203 N.E.3d at 836–39.

Malvasi has not explained why he believes that the Ohio court of

appeals’ determination—finding non-testimonial under the “primary purpose”

test that the decedent’s statement to bar patrons that Malvasi was the “best

drunk driver [the decedent] knew,” see id. 836–37—was unreasonable. The

Ohio court of appeals applied the relevant law when making its finding, see

Ohio v. Clark, 576 U.S. 237, 244–45 (2015) (expounding on the “primary

purpose test”), and its conclusion was reasonable, see, e.g., Hand v. Houk, No.

2:07-cv-846, 2011 WL 2446383, at *32 (S.D. Ohio Apr. 25, 2011) (decedent’s

“statements to his relatives, friends, and acquaintances” without intent “of

bearing testimony against [the petitioner]” were non-testimonial), report and

recommendation adopted, 2013 WL 2372180, at *16 (S.D. Ohio May 29, 2013).

Furthermore, as a non-testimonial statement, “the admissibility of [the]

statement is the concern of state and federal rules of evidence, not the

Confrontation Clause.” See Clark, 576 U.S. at 245–46 (quoting Michigan v.

Bryant, 562 U.S. 344, 359 (2011)). The Ohio court of appeals’ resulting

application of state law when evaluating Malvasi’s claim, therefore, was

proper. See Bryant, 562 U.S. at 359. And this means that this claim is not

cognizable. See, e.g., Wilbourn-Little v. Morrison, No. 2:23-cv-11394, 2024 WL

3909360, at *9 (E.D. Mich. Aug. 22, 2024) (petitioner’s challenge to the state

court’s interpretation of state-law hearsay exceptions is not cognizable); Lash

v. Sheldon, No. 1:19-cv-1616, 2020 WL 6712165, at *18 (N.D. Ohio Oct. 20,

2020) (same, citing cases), report and recommendation adopted sub nom. Lash

v. Turner, 2020 WL 6702051 (N.D. Ohio Nov. 13, 2020). And Malvasi hasn’t

shown that the trial court’s state-law evidentiary ruling “offend[s] some

principle of justice so rooted in the traditions and conscience of our people as

to be ranked as fundamental.” See Seymour, 224 F.3d at 552. So ground two is

not cognizable.

Even if the decedent’s statement was testimonial and erroneously

admitted, which it was not, the Ohio court of appeals properly applied

harmless error review. See Malvasi, 203 N.E.3d at 838–39 (applying harmless

error review to any purported error the trial court may have made when

admitting the decedent’s statement); see also Blackston v. Rapelje, 780 F.3d

340, 359 (6th Cir. 2015) (“A violation of the Confrontation Clause does not

warrant automatic reversal but, rather, is subject to harmless-error analysis.”)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 681–82 (1986)). Malvasi doesn’t

identify what about the Ohio court of appeals’ harmless error analysis he

believes was an unreasonable application of United States Supreme Court

precedent. He hasn’t persuaded me that this Court should “harbor grave doubt

about [his] verdict,” see Brecht v. Abrahamson, 507 U.S. 619 (1993), or that

“every fairminded jurist would agree that an error was prejudicial,” see Brown

v. Davenport, 596 U.S. 118, 134, 136 (2022) (explaining that, to prevail on

harmless error, a federal habeas petitioner must satisfy both the AEDPA

standard and the Brecht test).

Ground two is not cognizable and, alternatively, fails on the merits.

3. Ground three is procedurally defaulted and not cognizable

In ground three, Malvasi argues that the trial court erred when it gave

a flight instruction to the jury. Doc. 1, at 7.

“Before seeking a federal writ of habeas corpus, a state prisoner must …

giv[e] the State the opportunity to pass upon and correct alleged violations of

its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal

quotation marks and citations omitted). To do so, the prisoner must “fairly

present” the claim to the state court, “thereby alerting that court to the federal

nature of the claim.” Id.; Koontz, 731 F.2d at 368 (a habeas petitioner “must

present his claim to the state courts as a federal constitutional issue—not

merely as an issue arising under state law”).

Here, Malvasi only presented this ground for relief to the Ohio courts as

a state law violation. He did not allege a federal constitutional violation. See

Doc. 8-1, at 248–49, 261–63 (brief on appeal to the Ohio court of appeals); 348–

49 (memorandum in support of jurisdiction on appeal to the Ohio Supreme

Court). Malvasi’s briefs relied on Ohio case law and Ohio jury instructions, and

the Ohio case that he cited relied, in turn, on other Ohio cases and Ohio jury

instructions. See id. (citing State v. Keller, No. 106196, 2018 WL 4933198, at

*10 (Ohio Ct. App. Oct. 11, 2028)); see Baldwin, 541 U.S. at 33 (“The petition

provides no citation of any case that might have alerted the court to [any

purported] alleged federal nature of the claim”). Because Malvasi failed to

present ground three to the Ohio courts as a federal constitutional violation, it

is procedurally defaulted.

Malvasi has not asserted cause or prejudice to excuse his procedural

default, or shown that his is “an extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who is actually

innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986); see Schlup v. Delo, 513

U.S. 298, 324 (1995) (a claim of actual innocence “requires the petitioner to

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.”).

Ground three is also not cognizable. “[T]he fact that the [jury]

instruction was allegedly incorrect under state law is not a basis for habeas

relief.” Estelle, 502 U.S. at 71–72. To prevail on federal habeas review, a

petitioner must show that “the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process.” Id. at 72 (quoting Cupp

v. Naughten, 414 U.S. 141, 147 (1973)).

Malvasi has not made such a showing. As the Ohio court of appeals

explained:

{¶69} Defense counsel objected to a flight or

consciousness of guilt instruction before the jury was

charged. The court overruled the objection and gave

the following jury instruction:

Testimony has been admitted

indicating that the defendant fled the

scene. You are instructed that fleeing

the scene alone does not weigh the

presumption of guilt, but it may tend to

indicate the defendant’s consciousness

of guilt.

If you find that the facts do not support

the defendant leaving the scene or if

you find that some other motive

prompted their conduct, or if you find

that, or if you are unable to decide what

his motive was, then you should not

consider this evidence for any purpose.

However, if you find that the facts

support that the defendant engaged in

such conduct, and you decide that it

was motivated by consciousness of guilt

you may, but are not required to

consider that evidence in deciding

whether or not he is guilty of the crime

charged. You alone will determine

what weight, if any, to give to this

evidence.

(Tr. 979-980).

{¶70} A trial court’s decision to provide a particular

jury instruction based upon the facts of the case will

not be reversed absent an abuse of discretion,

requiring the decision to be unreasonable, arbitrary

or unconscionable. State v. Wolons, 44 Ohio St.3d 64,

68, 541 N.E.2d 443 (1989). It is well-established

“that the fact of an accused’s flight, escape from

custody, resistance to arrest, concealment,

assumption of a false name, and related conduct, are

admissible as evidence of consciousness of guilt, and

thus of guilt itself.” State v. Williams, 79 Ohio St.3d

1, 11, 679 N.E.2d 646 (1997). Clearly, flight from a

crash scene qualifies as a type of flight. State v.

Miller, 7th Dist. Mahoning No. 13 MA 12, 2014-

Ohio-2936, 2014 WL 2999192, ¶ 139 (fleeing the

scene instead of calling for ambulance), citing State

v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897

(1969) (“Flight from justice, and its analogous

conduct, have always been indicative of

consciousness of guilt”), overruled in part on other

grounds, Eaton v. Ohio, 408 U.S. 935, 92 S.Ct. 2857,

33 L.Ed.2d 750 (1972) (vacating death penalty).

{¶71} Appellant argues a flight instruction was not

warranted because he merely left the scene,

claiming he took no affirmative step to avoid the

police. He relies on the following Eighth District

holding: “a flight instruction should not be given

when a defendant merely departs from the scene of

a crime, unless deliberate flight is proven, such that

the defendant took affirmative steps to avoid

detection and apprehension.” State v. Keller, 8th

Dist. Cuyahoga No. 106196, 2018-Ohio-4107, 2018

WL 4933198, ¶ 63. The court distinguished between

mere departure from the scene and fleeing from the

scene, which is a deliberate act of avoiding detection

or evading the police. Id. at ¶ 63-64. Although the

Eighth District found the instruction should not

have been given, the court then found a lack of

prejudice to the defense and affirmed the conviction.

Id. at ¶ 65-66.

{¶72} The facts of the Keller case have no similarity

to the case at bar. The victim in Keller said: she was

drinking at various places with the defendant and

others; she passed out at 6:00 a.m. next to the

defendant on the couch at her friend’s house; the

defendant raped her while she was passed out; he

was sleeping when she woke up to her alarm; and he

left the house while she was in the bathroom. That

defendant testified the sex was consensual and he

left after waking up at 9:00 a.m. because he was

embarrassed (with the victim’s boyfriend sleeping on

the other couch).

{¶73} Here, Appellant did not merely depart from

the scene of an accident involving a vehicle owned by

his father. There was evidence he used the vehicle to

drive to bars that night after he had an alcoholic

drink and smoked marijuana; there was also

evidence he drank at two bars and was intoxicated

at the end of the night at the final bar. His friend

was fatally injured in the accident, but he did not

call 911 or seek assistance from the nearby houses.

Instead, he walked or ran quite a distance to reach

his house. According to video evidence, it took him

ten minutes to walk to his house from the Route 46

intersection. This was in addition to the walk from

the crash site to that recorded intersection, which

seemed to be a similar distance. Then, when

Appellant arrived home, he still did not call 911.

Instead, he obtained another vehicle to drive back to

the scene where he dragged the decedent’s body into

his vehicle and left the scene a second time.

Appellant then went home again where the body

stayed for 25 minutes in his car (until his father

drove the car to an emergency care center).

{¶74} Furthermore, the police arrived at Appellant’s

house mere minutes after his father left. When they

knocked, Appellant was in the kitchen. Appellant

looked at the officer through the window and walked

away down a hallway instead of answering the door.

He peeked around the corner at the officer minutes

later, still refusing to answer the door despite ten

minutes of knocking. The police subsequently

learned of the fatality after the father reached the

emergency center.

{¶75} Collectively, the situation was more than mere

departure from a scene; there was evidence of

deliberate acts of evasion, concealment, and delay

(potentially in order to provide time to come up with

a story or to postpone alcohol testing). The reason

behind Appellant’s departure from the scene and

related conduct thereafter was a jury question. It

was not an abuse of discretion to conclude that

Appellant’s conduct could rationally be viewed as

constituting flight or “analogous conduct” after

crashing a vehicle while under the influence,

warranting a consciousness of guilt instruction. See

Eaton, 19 Ohio St.2d at 160, 249 N.E.2d 897.

{¶76} Moreover, the jury was specifically instructed

that if the defendant’s conduct of leaving the scene

was prompted by some motive other than

consciousness of guilt, then they should not consider

the conduct. In formulating the jury instructions,

the court was not required to accept the theory from

Appellant’s opening statement that he was merely

“stupid” by trying to “help” his friend in this manner

(or his claim to a trooper that he was not the driver).

The court did not abuse its discretion in providing

the consciousness of guilt instruction on flight. The

instruction would not have prejudiced the defense in

any event under the totality of the evidence as

reviewed in our Statement of the Case and

throughout this Opinion; contrary to his argument,

the other evidence showing he was the driver was

not weak but was overwhelming. This assignment of

error is overruled.

Malvasi, 203 N.E.3d at 839–40. Because Malvasi hasn’t shown that a

constitutional violation occurred, he is not entitled to relief. See Estelle, 502

U.S. at 72.

Conclusion

For the reasons set forth above, I recommend that Malvasi’s Petition be

dismissed.

Dated: September 25, 2024

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).