The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
COTTRELL MARSHALL, JR.,
Petitioner, : Case No. 2:24-cv-401
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
BILL COOL, WARDEN, Ross Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case under 28 U.S.C. § 2254, brought by Petitioner Cottrell Marshall,
Jr., with the assistance of counsel, is before the Court for decision on the merits. Relevant
pleadings are the Petition (ECF No. 8), the State Court Record (ECF No. 13) and the Return of
Writ (ECF No. 14). The Court set a date for the filing of a traverse/reply of twenty-one days after
the Return was filed, but Petitioner’s counsel has failed to file a traverse, rendering the case ripe
for decision.
Litigation History
On December 20, 2017, the Franklin County grand jury indicted Marshall on one count of
engaging in a pattern of corrupt activity in violation of Ohio Rev. Code § 2923.32 (count 1), seven
counts of promoting prostitution in violation of Ohio Rev. Code § 2907.22 (counts 2, 5, 8, 9, 12,
15 and 18), five counts of trafficking in persons in violation of Ohio Rev. Code § 2905.32 (counts
3, 6, 10, 13 and 16) and five counts of compelling prostitution in violation of Ohio Rev. Code §
2907.21 (counts 4, 7, 11, 14 and 17). (Indictment, State Court Record, ECF No. 13, Ex. 1). On
March 10, 2020, the trial jury found Marshall guilty of one first-degree felony charge of engaging
in a pattern of corrupt activity, three first-degree felony charges of trafficking in persons, two third-
degree felony charges of compelling prostitution, and three fourth-degree felony charges of
promoting prostitution. On July 27, 2020, the trial court sentenced Marshall to a total of forty
years in prison.
Marshall took a direct appeal to the Ohio Tenth District Court of Appeals which affirmed
the conviction. State v. Marshall, 2022-Ohio-3795 (10th Dist. Oct. 25, 2022). The Ohio Supreme
Court declined jurisdiction of a further appeal. State v. Marshall, 169 Ohio St. 3d 1426 (2023).
Marshall filed his Petition in this Court on February 27, 2024, pleading the following single
ground for relief:
Ground One: There was insufficient evidence to sustain a guilty
verdict against Petitioner.
Supporting Facts: There is no evidence of sexual activity or
conduct as a result of payment by Petitioner. There is no witness
testimony that they were compelled by Petitioner to engage in
prostitution. There is no evidence of a specific date or time that
payment was made to witnesses or to Petitioner in exchange for
sexual services.
(Petition, ECF No. 8, Page ID 65). Respondent defends the case on the merits, asserting the Tenth
District’s decision is entitled to deference under the Antiterrorism and Effective Death Penalty Act
of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")(Return, ECF No. 14).
Analysis
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Respondent’s Return quotes at length from the Tenth District’s opinion which in turn recites
the testimony of many witnesses and explains in detail how Petitioner ran a prostitution ring in
hotels on State Route 161 in the Columbus area. That court explicitly found that Petitioner’s
conduct as testified to by multiple victims and by his girlfriend/co-defendant satisfied the elements
of the offenses with which he was charged. This Court is bound to accept the Tenth District’s
interpretation of Ohio law in that regard. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting
Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir.
2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-
36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).
Petitioner’s single ground for relief is without any arguable merit. The Tenth District’s
decision is a clearly reasonable application of Jackson, supra, entitled to deference from this Court.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
July 29, 2024.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal. #
s/ Michael R. Merz
United States Magistrate Judge