The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
BENJAMIN CUTLIP,
Petitioner, : Case No. 2:23-cv-2574
- vs - District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN, Correctional Reception
Center,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus action, brought pro se by Petitioner Benjamin Cutlip under § 28 U.S.C.
2254, is before the Court for decision on the merits. Relevant filings are the Petition (ECF No. 1),
the State Court Record (ECF No. 9), the Return of Writ (ECF No. 10) and Petitioner’s Reply (ECF
No. 17). Also pending for decision is Petitioner’s Motion to Supplement the Record (ECF No.
16).
Litigation History
On September 2, 2020, a Belmont County grand jury indicted Petitioner on three charges:
aggravated trafficking in drugs with forfeiture and major offender specifications (Count One),
aggravated possession of drugs with a major offender specification (Count Two), and aggravated
trafficking in drugs with a forfeiture specification (Count Three)(Indictment, State Court Record,
ECF No. 9, Ex. 1).
On January 21, 2021, the trial court overruled a number of defense motions, including a
motion to suppress. Id. at Ex. 14. A petit jury found Petitioner guilty on all counts and he was
sentenced to fourteen to nineteen and one-half years imprisonment (Judgment, State Court Record,
ECF No. 9, Ex. 17). Petitioner then appealed to the Ohio Seventh District Court of Appeals. That
court affirmed the conviction and sentence. State v. Cutlip, 2022 Ohio 3524 (Ohio App. 7th Dist.
Sept. 30, 2022). The Ohio Supreme Court declined to exercise further appellate jurisdiction. State
v. Cutlip, 169 Ohio St. 3d 1424 (2023).
On January 11, 2023, Petitioner filed an Application to Reopen the direct appeal under
Ohio R. App. P. 26(B), the correct method for raising claims of ineffective assistance of appellate
counsel. The Seventh District denied the Application on grounds it was untimely and alternatively
on the merits. State v. Cutlip, 2023-Ohio-914 (Ohio App. 7th Dist. Mar. 21, 2023). The Ohio
Supreme Court declined to exercise further appellate jurisdiction. State v. Cutlip, 170 Ohio St. 3d
1481 (July 5, 2023).
Petitioner filed his Petition in this Court on August 8, 20231, pleading the following
grounds for relief:
Ground One: Ineffective assistance of counsel in violation of the
Sixth Amendment.
Supporting Facts: Whether applicant was deprived of the effective
assistance of counsel on appeal where, under the first assignment of
error: lacked probable cause to issue search warrant, counsel failed
to point to other findings in the record demonstrating how the trial
court erred and why the search warrant affidavit lacked probable
cause.
Ground Two: Potential juror’s damaging statement denied
petitioner his Sixth Amendment right to an impartial jury.
1 Petitioner declares he deposited his Petition in the prison mail system on that date.
Supporting Facts: Potential juror stated during voir dire that he had
arrested appellant several. (sic)
Ground Three: Insufficient evidence under the Due Process clause
of the Fifth Amendment.
Supporting Facts: Petitioner’s conviction for trafficking (count 1)
was unsupported by sufficient evidence.
Ground Four: Judge invaded the province of the jury in violation
of the due process (sic) under the Sixth Amendment.
Supporting Facts: The trial court responded to a jury question, after
closing arguments during deliberations.
Ground Five: ineffective assistance of trial counsel in violation of
the Sixth Amendment.
Supporting Facts: Counsel failed to file a financial affidavit with
the motion to waive fines, had he done so a reasonable probability
exist[s] the proceeding would have been different.
Ground Six (2ND #FIVE): Lack of probable cause to issue the
search warrant in violation of the Fourth Amendment.
Supporting Facts: The trial court lack (sic) probable cause to issue
the warrant that led to the search of the camper for two reasons: (sic)
(Petition, ECF No. 1).
Analysis
Ground One: Ineffective Assistance of Appellate Counsel
In his First Ground for Relief, Petitioner argues he received ineffective assistance of
appellate counsel when his appellate attorney did not correctly argue his First Assignment of Error
regarding Fourth Amendment violations.
Respondent asserts merits review of this Ground for Relief is barred by procedural default:
Petitioner’s untimely filing of his 26(B) Application.
In his Reply, Petitioner first concedes that he has procedurally defaulted Ground One, but
then claims “that the default must be set aside.” (Reply, ECF No. 17, PageID 852). He argues:
"A petitioner may avoid this procedural default only by showing that
there was cause for the default and prejudice resulting from the
default, or that a miscarriage of justice will result from enforcing the
procedural default in the petitioner's case." Kissner v. Palmer, 826
F.3d 898, 904 (6th Cir. 2016). "[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule. " Murray
v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91L. Ed. 2d 397
(1986).
Id. at PageID 853. This argument is correct as far as it goes, but Petitioner, instead of presenting
some “objective factor external to the defense,” proceeds instead to argue the merits of his
ineffective assistance of appellate counsel claim. Id. at PageID 753-57.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Applying the required Maupin analysis, the Magistrate Judge notes that Ohio does have a
relevant procedural rule which places a ninety-day time limit on filing applications for reopening.
The Seventh District Court of Appeals enforced that rule by dismissing Petitioner’s 26(B)
application as untimely. “A procedural rule is adequate only when it is firmly established and
regularly followed at the time it was applied.” Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001)
citing Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998); Willis v. Smith, 351 F.3d 741, 745 (6th
Cir. 2003). However, the Sixth Circuit has held the time limit on 26(B) applications is firmly
established and regularly followed. Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010).
Petitioner has offered no cause and prejudice to excuse his failure to file on time. Ground One
should therefore be dismissed with prejudice as procedurally defaulted.
Ground Two: Sixth Amendment: Denial of an Impartial Jury
In his Second Ground for Relief Petitioner claims he was denied an impartial jury because
one of the veniremen commented during voir dire that he has arrested Cutlip on several occasions
in the past. Cutlip presented this claim as his Second Assignment of Error on direct appeal and
the Seventh District decided it as follows:
[*P57] Appellant's second assignment of error asserts:
"The trial court erred by overruling Appellant's motion for a mistrial
when a potential juror stated during voir dire that he had arrested
Appellant several times."
[*P58] Appellant asserts he was denied his Sixth Amendment
Right to an impartial jury based on the potential juror's derogatory
statement about him at the beginning of the proceedings. He claims
the trial court abused its discretion by not declaring a mistrial.
[*P59] A mistrial is appropriate when the substantial rights of the
accused or prosecution are adversely affected making a fair trial no
longer possible. Illinois v. Somerville, 410 U.S. 458, 462-463, 93
S.Ct. 1066, 35 L. Ed. 2d 425 (1973); State v. Franklin, 62 Ohio St.3d
118, 127, 580 N.E.2d 1 (1991). The decision to grant a mistrial "is
an extreme remedy only warranted in circumstances where a fair
trial is no longer possible and it is required to meet the ends of
justice." State v. Jones, 83 Ohio App.3d 723, 615 N.E.2d 713 (2d
Dist.1992).
[*P60] Because the trial court is afforded broad discretion upon
considering a motion for a mistrial, we review that decision for an
abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d
54 (1990), paragraph one of the syllabus.
[*P61] During the initial questioning of the jury pool at the
beginning of voir dire, the judge asked if any of the potential jurors
were acquainted with the parties. One juror raised his hand
indicating he knew the defendant. A while later, while speaking
directly to this potential juror in the presence of the other potential
jurors, the following exchange took place:
THE COURT: All right. Mr. Burns, * * * I believe the first
[issue] was you had an acquaintance with the case and/or
the parties?
PROSPECTIVE JUROR BURNS: Yes.
THE COURT: And how's that? I don't want you to go into
details about what you know, just how you know.
PROSPECTIVE JUROR BURNS: As [a] former police
officer, I've arrested the defendant on several occasions.
[*P62] Counsel and the judge immediately conducted a sidebar
conference out of the presence of the jury, and Appellant's attorney
asked for a mistrial or in the alternative, for a curative instruction
directing the jury to disregard Mr. Burns' statement. The state agreed
a curative instruction was appropriate, and the court directly
thereafter addressed the jury pool and stated:
Mr. Burns has just indicated a prior relationship or
interaction with Mr. Cutlip. You are to disregard that
comment. Remember, I told you earlier, you decide guilt
or innocence based on the evidence that you hear from the
witness stand, that you see from the witness—as presented
by the witnesses. So you are to disregard the comment by
Mr. Burns or the answer to the question that he gave. That
is to have no impact whatsoever upon anything else that
occurs during the trial of this case.
The court then excused Mr. Burns as a potential juror and
immediately proceeded to address a different prospective juror.
(Trial Tr. 12, 27-30.)
[*P63] As stated, Appellant claims it was an abuse of discretion
not to grant a mistrial based on Mr. Burns' statement. Alternatively,
he contends the court should have individually polled the jurors to
ensure their impartiality was not tainted by his statement.
[*P64] The Ohio Supreme Court in State v. Garner , 74 Ohio St.3d
49, 59, 1995-Ohio-168, 656 N.E.2d 623 (1995) addressed a
comparable issue. In Garner, a police investigator inadvertently
testified during trial the defendant had been previously arrested. The
officer said in part upon researching the phone number associated
with a certain address, "it came back [to] William Garner using that
address in one of his arrests." (Emphasis added.) The officer
essentially told the jurors Garner had been arrested at least twice.
Garner's attorney objected to this reference and moved for a mistrial.
The court overruled the motion but sustained the objection to this
line of testimony. It immediately instructed the jury to disregard the
officer's statement. Id. at 58. On appeal, the Supreme Court upheld
the decision denying the motion for mistrial. It held there was no
abuse of discretion because the reference to the defendant's prior
arrests was fleeting and promptly followed by curative instructions.
Id.
[*P65] This court reached the same outcome in another case. In
State v. Loterbaugh, 7th Dist. Carroll No. 19 CA 0931, 2020-Ohio-
1104, we found the defendant was not denied a fair trial based on
his mother's inadvertent statement during her testimony that the
defendant (her son) had previously been in jail. We noted the
reference was brief, isolated, and did not unfairly prejudice the
defendant. Id. at ¶ 57-58.
[*P66] Consistent with Garner and Loterbaugh, the potential
juror's statement about arresting Appellant in this case was limited
in duration and detail. It provided no information about Appellant's
prior arrests or what the alleged offenses were, and the trial court's
curative instruction was given immediately and before the court
began addressing another potential juror. The trial court also swiftly
overruled Appellant's motion for a mistrial, and discharged Mr.
Burns as a potential juror.
[*P67] When the jury was selected and after they entered the
courtroom together for the first time, the court reminded the jurors
they had not yet heard any evidence in the case and all of the
preliminary jury selection comments and questions were not
evidence in this case. (Trial Tr. 165.) The jurors verified they would
abide by the court's instructions, apply the law, and limit their
determination to only the evidence presented at trial.
[*P68] And the Supreme Court has held, "[i]f an error occurs, such
as the jury hearing improper testimony, the 'jury is presumed to
follow the instructions, including curative instructions, given it by a
trial judge.'" State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076,
75 N.E.3d 1185, ¶ 89, quoting Garner, supra, 59. Thus, we presume
the jurors disregarded Mr. Burns' statement during voir dire.
[*P69] Moreover, Officer Duplaga testified during trial that he
asked Durbin if he could act as an informant on Appellant. Durbin
said he would try and he had met Appellant while the two were in
jail together. (Trial Tr. 307-308.) Thus, evidence Appellant had
previously been arrested was before the jury thereby reducing any
affect [sic] Mr. Burns' statement may have had.
[*P70] Appellant contends the court should have polled the jurors
to ensure each was able to perform their role as impartial jurors and
disregard the comment during the proceedings. While this may have
helped ensure the jurors understood their obligation, the questioning
proposed by Appellant may have highlighted the substance of Mr.
Burns' statement, and the repetition of it may have amplified the
alleged damage.
[*P71] Based on the foregoing, the trial court did not abuse its
discretion by overruling Appellant's motion for a mistrial, and
Appellant had a fair trial notwithstanding the potential juror's
comment. This assignment of error lacks merit.
State v. Cutlip, 2022 Ohio 3524 (Ohio App. 7th Dist. Sept. 30, 2022).
Respondent defends on Ground Two on the merits and by asserting that review of a state
court’s discretionary decision is not cognizable in habeas corpus (Return of Writ, ECF No. 10,
PageID 772-74). Petitioner does not respond to the non-cognizability argument and asserts on the
merits that the voir dire was not thorough enough (Reply, ECF No. 17, PageID 857-61).
If Petitioner were asking this Court to review the Seventh District’s decision or the
underlying trial court decision for an abuse of discretion, that claim would indeed not be
cognizable. A claim of abuse of discretion by a state court judge is not sufficient to state a
constitutional violation. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
However, Petitioner’s claim is not that either of those courts abused it discretion, but that
the trial court permitted the jury to return a verdict without sufficient guarantees that it was
impartial. Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the "AEDPA"), when a state court decides on the merits a federal constitutional
claim later presented to a federal habeas court, the federal court must defer to the state court
decision unless that decision is contrary to or an objectively unreasonable application of clearly
established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v.
Richter, 562 U.S. 86 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S.
685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000) Hendrix v. Palmer, 893
F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the
state court decision was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.
There is no indication in the record of any prosecutorial misconduct2 leading to the
potentially prejudicial comment; it was apparently unexpected, but responsive to the question
about acquaintance with Petitioner. One the response had been volunteered, the trial judge had
several possible responses. Although a mistrial was one, a curative instruction was another, far
less costly to the system in terms of both expense and delay. When the choice was put to counsel,
Petitioner’s attorney offered the judge the choice of a mistrial or a curative instruction. Cutlip,
supra, at ¶ 62. The judge gave a curative instruction to which neither party objected. On appeal,
Petitioner’s counsel argued that there should have been a mistrial or an individual poll of the jury
about impact of the statement. Id. at ¶ 63. But there is no record of trial counsel’s having asked
for a poll and he agreed to the creative instruction. As the Seventh District noted, conducting an
individual poll would probably have exaggerated the importance of the comment. As the Seventh
District also indicated, the content of the remark was bland; the “arrests” could have been simple
traffic violation stops.
In his Reply, Petitioner argues “[t]he failure to address Burn's history of arresting the
defendant during the voir dire raises concerns about the potential bias and impartiality, violating
Cutlip's right to a fair and impartial trial” (Reply, ECF No. 17, PageID 860).
Petitioner cites Morgan v. Illinois, 504 U.S. 719 (1992), in which the Supreme Court
regulated the scope of voir dire in capital trials. Morgan is not apposite. First of all, Morgan was
a capital case and capital jurisprudence is not directly applicable to non-capital cases. “Death is
different” as the Supreme Court has reminded us with its persistent citation of Woodson v. North
Carolina, 428 U.S. 280, 305 (1976). But more directly, this is not a case where a person whose
If a prosecutor were attempting to avoid the rule against evidence of prior bad acts and knew that a potential juror
would answer as this venireman did, one might have a basis for a prosecutorial misconduct claim, but there is no
evidence here to support such a claim.
impartiality could reasonable be questioned was actually seated. Potential juror Burns was
excused immediately for cause as soon as he volunteered his comment. The other jurors were
given a curative instruction and then asked if they could limit their consideration to the evidence
alone. In sum, Petitioner has cited no Supreme Court precedent requiring a mistrial under parallel
circumstances. Zafiro v. United States, 506 U.S. 534 (1993), which he does cite, does not concern
juror prejudice but possible prejudice resulting from failure to sever. Petitioner criticizes the
Seventh District’s reliance on presumptions, but he offers no evidence to overcome the
presumption that the jury followed the curative instruction.
The Seventh District’s decision is not an unreasonable application of Supreme Court
precedent and thus is entitled to deference. Ground Two should be dismissed with prejudice.
Ground Three: Conviction Upon Insufficient Evidence
In his Third Ground for Relief, Petitioner claims that insufficient evidence was presented
to the jury to justify its verdict. Respondent defends this claim on the merits, relying on the
authority of Jackson v. Virginia, 443 U.S. 307 (1979). Petitioner replies by questioning inferences
on which the jury would have had to rely and asserting as the controlling law “the nuanced standard
of review outlined in Thomas v Stephenson, 989 F. 3d 693, 698 (6 Cir. 2018), for federal Habeas
cases challenges the sufficiency of evidence under the AEDPA” (Reply, ECF No. 17, PageID 864).
The Seventh District considered this claim is deciding Petitioner’s Fourth Assignment or
Error as follows:
Fourth Assignment of Error: Insufficient Evidence
“Appellant's conviction for trafficking (Count 1) was unsupported
by sufficient evidence.”
{¶95} Appellant asserts there was insufficient evidence to convict
for count one, contending the only way to reach the finding was to
stack an inference upon an inference. Thus, he claims his conviction
in violation of R.C. 2925.03(A)(1) must be reversed.
{¶96} Whether evidence is legally sufficient to sustain a verdict is a
question of law, which appellate courts review de novo. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); In re
J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 3. On
appeal we determine whether the evidence presented, viewed in a
light most favorable to the prosecution, allows a rational trier of fact
to find the essential elements of the crime established beyond a
reasonable doubt. State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-
6670, 170 N.E.3d 816, reconsideration denied sub nom. State v.
Walker, 160 Ohio St.3d 1517, 2020-Ohio-6946, 159 N.E.3d 1179.
{¶97} The only count Appellant challenges here is count one,
aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2)
and (C)(1)(f), a first-degree felony with a major drug offender
specification and forfeiture of money specification, which provide:
(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare
for distribution, or distribute a controlled substance or a
controlled substance analog, when the offender knows or
has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
* * *
(C) Whoever violates division (A) of this section is guilty
of one of the following:
(1) If the drug involved in the violation is any compound,
mixture, preparation, or substance included in schedule
I or schedule II, * * * whoever violates division (A) of
this section is guilty of aggravated trafficking in drugs.
The penalty for the offense shall be determined as
follows:
* * *
(f) If the amount of the drug involved equals or exceeds
one hundred times the bulk amount * * *, aggravated
trafficking in drugs is a felony of the first degree, the
offender is a major drug offender, and the court shall
impose as a mandatory prison term a maximum first degree
felony mandatory prison term.
R.C. 2925.03.
{¶98} Because Appellant limits his challenge in this assignment to
the first count, we likewise limit our review. Appellant contends in
order to convict him of count one, the jury had to stack inferences,
claiming it had to infer Appellant had access to the drugs inside the
camper and infer he packaged them for sale. He claims the jury
could not have reached this conclusion any other way. We disagree.
{¶99} In support, Appellant relies on State v. Cowans, 87 Ohio St.3d
68, 78, 717 N.E.2d 298 (1999), which held in part:
A trier of fact may not draw “[a]n inference based * * *
entirely upon another inference, unsupported by any
additional fact or another inference from other facts[.]”
Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St.
329, 58 O.O. 122, 130 N.E.2d 820, paragraph one of the
syllabus. However, “[a]n inference * * * based in part upon
another inference and in part upon facts is a parallel
inference and, if reasonable, may be indulged in * * *.” Id.,
paragraph two of the syllabus.
The Supreme Court in Cowans agreed because the state relied on the
victim's lack of defensive wounds to argue and allow the jury to infer
her attacker used a weapon to subdue her. Then the state used a
second inference, i.e., “that the BB gun found in Cowans’ truck was
the weapon used.” Id. at 79.
{¶100} Here, there is no such inference stacking necessary. To the
contrary, there was direct evidence Appellant had access to the
camper and sold Durbin methamphetamine from that location.
Appellant told Durbin to meet him at the camper. Appellant met
Durbin there and escorted him inside. Further, the owner of the RV
site testified Appellant paid the fee for renting the site and believed
Appellant owned the camper. Moreover, pill bottles with
Appellant's name on them were found in the bedroom area of the
camper that also contained a large quantity of drugs. Some of the
methamphetamine found inside the camper was packaged for sale in
individualized baggies.
{¶101} During the video Appellant can be heard offering to sell
Durbin a larger quantity at a discount, and Appellant suggests
Durbin could then sell the drugs to his co-workers. Digital scales
and other drug paraphernalia were also found in the camper, and
during Durbin's visit, Appellant weighed the drug in front of Durbin
to show him how much he was buying. (Trial Tr. 606-607.)
{¶102} There was more than enough direct and circumstantial
evidence presented at trial showing Appellant either owned the
camper or lived there and he sold drugs from that location. Thus, the
only inference the jury arguably had to make was Appellant
packaged or prepared the methamphetamine in the individual
baggies found in the camper for sale. This conclusion was
reasonable in light of Appellant's recorded statements touting the
quality and quantity of the drugs he sold. Further, Taggart testified
as to the quantity or weight of each container and verified the state's
exhibits one through eight and twelve each were found to contain
methamphetamine. Collectively, state's exhibits one through eight
were found to contain more than 400 grams of methamphetamine, a
Schedule II drug. (Trial Tr. 542-543 & 547.)
{¶103} Thus, Appellant's argument claiming improper stacking of
inferences has no merit. When viewed in a light most favorable to
the prosecution, the evidence at trial allowed the jury to find the
essential elements of the crime established beyond a reasonable
doubt, and as such, this assignment is overruled.
State v. Cutlip, supra.
Considering the totality of the evidence, the Magistrate Judge concludes the Seventh
District’s decision is not an unreasonable application of Jackson v. Virginia, which the Seventh
District applied through Ohio’s adoption of the Jackson standard in Thompkins.
Petitioner argues the State could have submitted more forensic evidence for analysis, citing
California v. Trombetta, 467 U.S. 479 (1984). In Trombetta the defendants sought habeas corpus
relief where they had been convicted of driving under the influence of alcohol because the State
had not preserved the breath samples taken and tested by the Intoxilyzer machine for further
possibly exculpatory testing. The Supreme Court held such preservation was not necessary. When
dealing with the failure of the state to preserve evidence which could have been subjected to tests
which might have exonerated the defendant, there is no due process violation unless the defendant
can show bad faith on the part of the police. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
Petitioner has not attempted to show any bad faith.
Petitioner argues the testimony of David Wise, owner of the land where the camper was
parked, did not meet the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), but it was not required to. Wise was offered as a lay witness, not an expert, and in any
event Daubert is not binding on the States as a matter of constitutional law. “The Supreme Court
has never held that admitting evidence of questionable reliability against a criminal defendant
without holding a Daubert hearing or similar procedure violates due process. . . .The Supreme
Court did not set a constitutional floor for the reliability of scientific evidence in Daubert, see
Norris v. Schotten, 146 F.3d 314, 335 (6th Cir. 1998), and screening evidence through Daubert’s
standards is not constitutionally required.” Bojaj v. Berghuis, 2017 U.S. App. LEXIS 13474 *12-
13 (6th Cir. Jul. 24, 2017).”
Petitioner’s Third Ground for Relief is without merit and should be dismissed with
prejudice.
Ground Four: Judicial Invasion of the Province of the Jury by Answering their Question
In his Fourth Ground for Relief, Petitioner asserts he was denied due process when the trial
judge invaded the province of the jury by answering a question they put to him. The Seventh
District agreed the judge had committed error by answering the question as he did rather than
reading back the relevant testimony. It also held the error was harmless, applying the standard
from Brecht v. Abrahamson, 507 U.S. 619 (1993).
Respondent claims the Seventh District’s decision was a not unreasonable application of
Brecht (Return, ECF No. 10, PageID 787). Petitioner agrees that Brecht is the correct standard to
apply, but disagrees with the reasonableness of the decision (Reply, ECF No. 17, PageID 866-73).
In deciding that the error was harmless, the Seventh District held that by the time it asked
its question, the jury has already have decided Petitioner was guilty and was trying to decide about
the degree of the offense. Petitioner does not disagree with this inference and indeed emphasizes
the important of the quantities in deciding what level of felony he was guilty of. The Seventh
District noted that the quantities defense counsel proposed using in responding to the question
were sufficient to warrant conviction on Count One as indicted. State v. Cutlip, supra, at ¶ 122.
The record supports that finding and the consequent conclusion of harmlessness. The Seventh
District’s decision is therefore a reasonable application of Brecht.
Moreover, Brecht applies only to evaluation of constitutional error. In the Seventh District
Petitioner argued that answering the question as the trial judge did was an abuse of discretion and
that was the standard the Seventh District applied in finding there was error. But not all error is
constitutional error. “A state cannot be said to have a federal due process obligation to follow all
of its procedures; such a system would result in the constitutionalizing of every state rule, and
would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied,
509 U.S. 907 (1993). Petitioner cites no Supreme Court decision constitutionalizing a rule about
answering jury questions.
Petitioner’s Fourth Ground for Relief should be dismissed with prejudice.
Ground Five: Ineffective Assistance Of Trial Counsel: Failure to File a Financial Affidavit
Regarding Fines
In his Fifth Ground for Relief, Petitioner asserts he received ineffective assistance of trial
counsel when his trial attorney did not file a financial affidavit with his motion to waive fines.
Respondent argues this claim is not cognizable in habeas because Petitioner is not in
custody on this portion of the judgment. Petitioner concedes he cannot obtain habeas relief on this
ground (Reply, ECF No. 17, PageID 873). The Fifth Ground for Relief should therefore be
dismissed with prejudice.
Ground Six: Denial of Rights Under the Fourth Amendment: Search Warrant Not Based
on Probable Cause
In his Sixth Ground for Relief, Petitioner argues his conviction is based in part on evidence
obtained in violation of the Fourth Amendment. For the reasons argued by Respondent, this claim
is not cognizable in habeas corpus. Stone v. Powell, 428 U.S. 465 (1976); Riley v. Gray, 674 F.2d
522 (6th Cir. 1982).
Because Sixth Ground for Relief is not cognizable in habeas corpus, Petitioner’s Motion
to Supplement the Record (ECF No. 16) is DENIED.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that 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.
September 12, 2024.
s/ Michael R. Merz
United States Magistrate Judge
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
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