# Malvasi v. Warden David W. Gray

> District Court, N.D. Ohio · November 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10739376

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** November 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10739376

## How later opinions describe it (automated extraction)

- reversing the trial court’s exclusion of an expert opinion

## Opinion text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10739376. Public record. Not legal advice.