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.

SUPPLEMENTAL REPORT &

RECOMMENDATION

Pro se Petitioner Michael Malvasi filed a three-ground 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. I issued a

briefing schedule. Doc. 5. The Warden filed a Return of Writ, but Malvasi didn’t

file a Traverse. After the time-frame for him to do so had passed, I issued a

Report recommending that the Court dismiss Malvasi’s petition. Doc. 10.

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).

Almost a month later, Malvasi filed a Motion for relief from judgment

and included verification that he had timely submitted to the prison mailing

system his Traverse, despite the Court never having received it. Doc. 12. He

also included a copy of his Traverse. Doc. 12-2. The District Court granted

Malvasi’s motion and referred to me the matter “for a further Report and

Recommendation addressing the arguments presented by Petitioner’s

Traverse.” Order, 10/28/2024.

I have considered Malvasi’s arguments presented in his Traverse, Doc.

12-2. But none of these arguments change the reasoning or the result of the

initial Report and Recommendation. So for the additional reasons explained

below, I recommend that the Court dismiss Malvasi’s petition.

In my prior Report and Recommendation, I set out the background facts,

procedural history, legal standard, and analysis as to Malvasi’s three grounds

for relief. Doc. 10. Here, I consider Malvasi’s additional argument as to his

three grounds for relief and explain why Malvasi’s new arguments do not

entitle him to relief.

Ground one: “The trial court []e[r]rs 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.” Doc. 1, at 6. In

my Report, I recommended that the Court find this claim not cognizable. Doc.

10, at 21–28.

In his Traverse, Malvasi asserts that “this claim was raised under an

abuse of discretion argument, … which is a federal constitutional claim.” Doc.

12-2, at 5. But Malvasi didn’t raise this as an abuse-of-discretion claim—not in

his petition, Doc. 1 at 6, not to the Ohio court of appeals, Doc. 8-1, at 249, and

not to the Ohio Supreme Court, Doc. 8-1, at 336.

Malvasi may not present a new ground for relief in his traverse. See

Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2000) (claims raised for the first

time in a traverse are improper); see Rice v. Warden, Warren Corr. Inst., 786

F. App’x 32, 38 (6th Cir. 2019). Even if he had raised an abuse-of-discretion

claim in his petition, his failure to present it to the state courts as a federal

constitutional violation means that any such claim is procedurally defaulted.

See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (“Ohio courts have

consistently held that claims that can be adjudicated based on facts in the

record can only be presented on direct appeal”) (citing State v. Lentz, 639

N.E.2d 784, 785 (Ohio 1994)); Brownlee v. Yost, No. 1:19-cv-1993, 2021 WL

4482778, at *10 (N.D. Ohio July 13, 2021) (the petitioner failed to raise his

“abuse of discretion” claim to the state courts as a federal constitutional

violation, so he procedurally defaulted the claim), report and recommendation

adopted sub nom. Brownlee v. May, 2021 WL 4478464 (N.D. Ohio Sept. 30,

2021). Malvasi doesn’t allege cause to excuse this procedural default. And, as

explained in the Report and Recommendation, Doc. 10 at 36, he doesn’t show

actual innocence to overcome a procedural default.

Furthermore, “abuse of discretion” is not a stand-alone federal habeas

constitutional claim, even if Malvasi had raised it. See Sinistaj v. Burt, 66 F.3d

804, 808 (6th Cir. 1995) (while an underlying constitutional claim may

constitute federal habeas relief, whether the state court abused its discretion

in denying the defendant relief on that underlying claim is not itself a federal

constitutional violation).

As for the claim that Malvasi did raise—the trial court erred when it

permitted expert testimony—he argues that “the testimony of Trooper Jester

is the challenge to the admissibility and a challenge pursuant to the applicable

standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113

S. Ct. 2786, 125 L. Ed. 2d 469 (1993) which impose an obligation upon a trial

judge to ‘ensure that any and all scientific testimony is not only relevant, but

reliable.’[] Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167,

143 L. Ed. 2d 238 (1999).” Doc. 12-2, at 5.

As the Report and Recommendation explains:

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).

Doc. 10 at 21. See also Kumho Tire Co., 526 U.S. 137 (evaluating Federal Rule

of Evidence 702); DeJonge v. Burton, No. 1:16-cv-980, 2018 WL 4938722, at *22

(W.D. Mich. May 30, 2018) (Daubert and Kumho Tire “addressed the standard

for admitting expert scientific testimony in trials conducted under the Federal

Rules of Evidence,” and “[t]he 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.”) (quoting

Bojaj v. Berghuis, 702 F. App’x 315, 320 (6th Cir. 2017), and other cases), report

and recommendation adopted, No. 1:16-cv-980, 2018 WL 4929756 (W.D. Mich.

Oct. 11, 2018).

Malvasi submits that the trial court’s ruling “was so fundamentally

unfair as to violate[] due process to a fair trial.” Doc. 12-2, at 6. He submits

that Jester was not qualified to testify as an expert. Id. at 8. But the Ohio court

of appeals disagreed, observing that:

{¶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).

Malvasi, 203 N.E.3d at 834. The court remarked that “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.” Id. (citing cases). The court concluded:

{¶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.

Malvasi, 203 N.E.3d at 834. Malvasi has not shown that the Ohio court of

appeals’ decision “offend[s] some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.” See Seymour v.

Walker, 224 F.3d 542, 552 (6th Cir. 2000).

Malvasi submits that, even if the expert was qualified, he relied on “a

reconstruction method[] that has not been established to be reliable.” Doc. 12-

2, at 8. The Ohio court of appeals rejected this argument as follows:

{¶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.

Malvasi, 203 N.E.3d at 834–36. Other than disagreeing with the court’s

conclusion, Malvasi hasn’t said what about the decision he believes rose to the

level of fundamental unfairness. See Seymour, 224 F.3d at 552.

Malvasi has not shown that he is entitled to relief on ground one.

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.” Doc. 1, at 6. In my Report, I recommended

that the Court find this claim not cognizable and, alternatively, that it failed

on the merits. Doc. 10, at 28–35.

In his Traverse, Malvasi reiterates his assertion that the trial court

erred when it permitted witnesses to testify that “the decedent had stated that

[Malvasi] was the best drunk driver that he knew.” Doc. 12-2, at 9; see Doc. 1,

at 6. He states that the testimony was “inadmissible hearsay.” Doc. 12-2, at 9.

Malvasi also asserts that even if it wasn’t, “out-of-court statements might raise

the specter of a violation of the Confrontation Clause.” Id. But he doesn’t

address the cognizability issue or explain what about the Ohio court of appeals’

decision he believes was unreasonable. See also Doc. 10, at 28–35 (Report and

Recommendation explaining why this claim is not cognizable and, in the

alternative, why it would fail on the merits).

Malvasi has not shown that he is entitled to relief on ground two.

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.” Doc. 1,

at 7. In my Report, I recommended that the Court find that this claim is

procedurally defaulted and not cognizable. Doc. 10, at 35–40. I explained that

the claim is procedurally defaulted because Malvasi didn’t present it to the

state courts as a federal constitutional violation, and it is not cognizable

because it challenges a state-law jury instruction. See id.

In his traverse, Malvasi doesn’t allege cause or prejudice to excuse his

procedural default. See Doc. 12-2, at 11–13. He argues that “no state remedies

remain available to him” and concludes that he “has exhausted state

remedies.” Doc. 12-2, at 13. But that does not mean that Malvasi hasn’t also

procedurally defaulted his claim:

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. Engle v. Isaac,

456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d

783 (1982); see also Coleman v. Thompson, 501 U.S.

at 731-2, 111 S.Ct. 2546. This second type of

procedural default is often confused with

exhaustion. Exhaustion and procedural default,

however, are distinct concepts. AEDPA’s exhaustion

requirement only “refers to remedies still available

at the time of the federal petition.” Engle, 456 U.S.

at 125 n. 28, 102 S.Ct. 1558. Where state court

remedies are no longer available to a petitioner

because he or she failed to use them within the

required time period, procedural default and not

exhaustion bars federal court review. Id. In Ohio, a

petitioner is not entitled to raise claims in post-

conviction proceedings where those claims could

have been raised on direct appeal. Id. Thus, if an

Ohio petitioner failed to raise a claim on direct

appeal, which could have been raised on direct

appeal, the claim is procedurally defaulted. Id.

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

Malvasi alleges that “the flight instruction infected the entire trial that

resulted in a due process right violation.” Doc. 12-2, at 10. He asserts that “[t]he

record is devoid of any indication that [he] left the scene in order to avoid

apprehension and, in fact, the evidence actually reveals that police

authori[ti]es knew the identity of Petitioner immediately upon commencing

their investigation.” Doc. 12-2, at 9–10. But as the Ohio court of appeals

explained:

{¶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 840. Malvasi’s claim that the factual record doesn’t

support the Ohio court of appeals’ decision is belied by the record, which shows

otherwise. See Doc. 8-2, at 724–27, 776–77, 872–86, 992–98. Malvasi also

doesn’t explain what about the Ohio court of appeals’ decision he believes was

“contrary to or an unreasonable application of clearly established Supreme

Court precedent.” See 28 U.S.C. § 2254(d)(1).

Malvasi hasn’t shown that he is entitled to relief on ground three.

Evidentiary hearing. In his Traverse, Malvasi requests an evidentiary

hearing. Doc. 12-2, at 13.

Under 28 U.S.C. § 2254(e)(2):

If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court

shall not hold an evidentiary hearing on the claim

unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due diligence;

and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that

but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the

underlying offense.

28 U.S.C. § 2254(e)(2). Malvasi has not identified what portion of 28 U.S.C. §

2254(e)(2) he believes entitles him to a hearing and no section appears to apply

to his case. So I deny Malvasi’s request for an evidentiary hearing.

Conclusion

For the additional reasons explained above, I recommend that the Court

dismiss Malvasi’s Petition. I deny Malvasi’s request for an evidentiary hearing.

Dated: November 8, 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).