Marshall v. Moore

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JUANITO MARSHALL, ) Case No. 1:24-cv-00012

)

Petitioner, ) JUDGE JOHN R. ADAMS

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

ROCHELLE MOORE, WARDEN, )

)

Respondent. ) REPORT AND RECOMMENDATION

)

I. Introduction

On December 20, 2023, Petitioner Juanito Marshall (hereinafter “Marshall” or

“Petitioner”), a prisoner in state custody, filed a pro se petition seeking a writ of habeas corpus

under 28 U.S.C. § 2254. (ECF Doc. 1). On April 9, 2024, Respondent filed its Return of Writ.

(ECF Doc. 7). Marshall filed his Traverse on June 11, 2024 (ECF Doc. 11) and an Amended

Traverse on June 25, 2024 (ECF Doc. 12). Respondent filed a sur-reply on June 27, 2024 (ECF

Doc. 13), as did Marshall on July 8, 2024 (ECF Doc. 14). The matter is therefore ripe.

The District Court has jurisdiction over the petition under § 2254(a). On January 11,

2024, pursuant to Local Civil Rule 72.2, this matter was referred to a Magistrate Judge to prepare

a Report and Recommendation. (Non-document entry of Jan. 11, 2024). On April 2, 2024, the

case was reassigned to me pursuant to General Order 2024-05. (Non-document entry of Apr. 2,

2024).

Because the grounds in Marshall’s petition have been procedurally defaulted and excuse

is not available to him, I recommend the District Court deny his petition.

II. Factual Background

The Ohio Court of Appeals, Eighth Appellate District, Cuyahoga County, set forth the

facts of this case on direct appeal. These factual findings are presumed correct unless Marshall

rebuts this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The

Eighth District presented the facts as follows:

{¶ 2} On November 8, 2018, then 16-year-old K.H. revealed that she had been

raped when she was seven. She and her mother, C.E., got into an argument, and

K.H. yelled that her mother did not care about her and did not know she had been

raped in the past. K.H. told C.E. that Marshall was the rapist. C.E. immediately

called Marshall, and then her sister, T.T. Marshall and T.T. had been in a

relationship years ago and share a daughter, Al.M. K.H. and C.E., who had moved

out of state, immediately arranged to return to Ohio. On November 12, 2018, C.E.,

K.H., and T.T. went to the Broadview Heights police station to report the rapes.

{¶ 3} On March 4, 2019, Marshall was indicted as follows: Count 1, rape (fellatio)

by force of a victim under the age of ten; Count 2, kidnapping of a victim under the

age of eighteen with a sexual motivation; Count 3, endangering children, causing

serious physical harm; Count 4, disseminating matter harmful to a juvenile where

the victim was under thirteen years of age; Count 5, rape (fellatio) by force of a

victim under the age of ten; Count 6, rape (anal penetration) by force of a victim

under the age of ten; Count 7, endangering children, causing serious physical harm;

Count 8, kidnapping of a victim under the age of eighteen with a sexual motivation;

Count 9, disseminating matter harmful to a juvenile where the victim was under 13

years of age; Count 10, endangering children.

{¶ 4} The parties filed several pretrial motions. Most relevant to this appeal,

Marshall filed a motion to exclude any testimony regarding his past sexual behavior

with T.T. Marshall argued that testimony from T.T. as to digital anal penetration

during intercourse and asking her to open her mouth wider during oral sex was not

relevant or admissible. In his motion, Marshall argued that the evidence was

inadmissible under the rape shield statute R.C. 2907.02(D) and that it was

inadmissible under both Evid.R. 404(B) and R.C. 2945.59. In response, the state

argued that the evidence was both admissible and relevant and that it would show

Marshall’s plan and modus operandi.

{¶ 5} The trial court heard testimony from T.T. prior to trial. After hearing her

testimony, the trial court held in abeyance its ruling on Marshall’s motion. The

court found that the admissibility of T.T.’s testimony would depend on K.H.’s

testimony.

{¶ 6} The trial began on February 12, 2020, and the testimony was as follows:

Sometime in early 2009, K.H., C.E., and M.M., moved into Marshall’s home in

Broadview Heights. At that time, Marshall, T.T., and their daughter Al.M. lived in

the home. At the time, C.E. had guardianship of M.M., her aunt, who had dementia.

Moving in allowed C.E. to secure T.T.’s assistance in caring for M.M. The home

had five bedrooms. K.H., C.E., and M.M. slept in a downstairs bedroom. Marshall

and T.T. had the master bedroom on the second floor. Al.M.’s bedroom was next

to the master. K.H. would share Al.M.’s room on occasion. Marshall;s four other

children, J.M., Am.M., I.M., and G.M. would periodically stay at the house. When

all the kids were there, the boys would sleep in one room and the girls would sleep

in another.

{¶ 7} K.H. thought of Marshall as an uncle and treated him as such. They had a

good relationship. Marshall would always compare K.H. to T.T., telling her that

they looked a lot alike and that when K.H. grew up she was going to be prettier

than T.T.

The First Offense

{¶ 8} K.H. testified that the first offense happened when C.E. and T.T. had gone

shopping. Al.M. was watching TV on the first floor while K.H. was playing in

Al.M.’s bedroom. Marshall was in the master bedroom, which also had a computer

room. K.H. testified that Marshall called her by name, and she went into the

computer room. When K.H. entered, she saw Marshall seated with his pants open

and his penis exposed. Marshall started moving his penis and said to K.H., “I know

you see it.” K.H. testified she was scared and thought she was in trouble. When she

tried to leave, Marshall grabbed her by the arm and wouldn’t let her go. At that

point, they heard the garage door open. Marshall let her go and K.H. ran out of the

room.

{¶ 9} T.T. testified that Marshall told her about the incident; however, according to

T.T., Marshall told her that K.H. inadvertently saw his penis when he was in the

computer room. He alleged that he was wearing loose pants and his penis was

exposed. Marshall told T.T. that he had an “uncle-niece” conversation with K.H.

about how that was inappropriate. T.T. told C.E. about the incident. C.E. was upset

when she heard, then talked to K.H. about it. Based on the information C.E.

received at the time, she did not feel it was necessary to leave the home or take any

further action.

The Second Offense

{¶ 10} K.H. testified that the second offense happened a couple of months after the

first incident. K.H. was unsure exactly when this happened but was sure that T.T.

was no longer living in the home at that time.

{¶ 11} During the second incident, K.H. testified that she woke up and her mother

and great aunt were still sleeping. K.H. went upstairs to the master bedroom and

started playing cards with Marshall. At some point, Marshall began to pick K.H. up

and throw her on the bed. At one point, he picked her up and digitally penetrated

her anus through her underwear before tossing her on the bed. Marshall asked her

if it hurt and K.H. nodded yes. Marshall then grabbed a DVD that had a picture of

a naked man and woman on it. The woman’s legs were spread open, and the man

was lying between them. K.H. testified that Marshall asked K.H. if she wanted that

picture to be the two of them. K.H. didn't know what to say, so she nodded yes.

After that, they kept playing cards until C.E. called up for K.H. and asked what she

was doing. K.H. told C.E., “nothing, playing cards,” then went back downstairs.

K.H. did not tell C.E. what happened at that time because she was scared.

{¶ 12} On cross-examination, the defense questioned K.H. about a videotaped

interview she gave to the police. K.H. testified that she did not recall some parts of

her interview. On her second day of testifying, K.H. remembered that there were

two incidents of oral sex, not one as she had previously testified. K.H. was not able

to remember the details of the first incident of oral sex, only that it either happened

during the second incident or sometime between the second and third incident.

{¶ 13} The trial court then permitted the defense to show K.H. her videotaped

statement to refresh her recollection. After viewing the video, K.H. recalled telling

two of Marshall’s children, Am.M. and J.M., about performing oral sex on

Marshall. Additionally, she remembered that Am.M. and J.M. advised her to bite

Marshall if he tried to make her do it again.

The Third Offense

{¶ 14} The third offense happened sometime after K.H., C.E. and M.M. moved out

of the Broadview Heights home. K.H. was visiting the home to play with Marshall’s

children. All the kids were in the master bedroom with Marshall. Marshall would

take turns throwing the kids on the bed. Marshall then told all the kids except K.H.

to leave the room. J.M. hesitated, but, per K.H., Marshall yelled at him and J.M.

left.

{¶ 15} Marshall then locked the door and got under the covers. He then pulled his

pants down and made K.H. put her head under the covers. Marshall then told her to

“open” and made her perform fellatio on him. He then proceeded to put his hand

on K.H.’s head and move it up and down. K.H. bit him. Marshall asked her if she

was okay and K.H. told him no. He then asked K.H. if she wanted to continue and

K.H. told him no. K.H. then unlocked the door and ran downstairs.

{¶ 16} After viewing her videotaped statement, K.H. further recalled that before

the third offense, she was sleeping in a bed with Marshall’s two oldest daughters,

Am.M. and I.M. Marshall came into the room and got into bed with them, spooning

K.H. When they all woke up, they went into the master bedroom and Marshall

began throwing them on the bed. Then Marshall kicked the other children out of

the room and made K.H. stay. K.H. testified that the remainder of the third offense

incident occurred as she had testified earlier.

T.T.’s Testimony

{¶ 17} After K.H.’s testimony, the trial court decided to allow T.T.’s testimony

about Marshall’s habits with limits. The trial court permitted her to testify that

Marshall repeatedly compared K.H. to T.T. and suggested that K.H. would grow to

be more beautiful than T.T. The trial court also allowed T.T. to testify about

Marshall’s preference for digital anal penetration. The court found there was

insufficient basis to allow T.T. to testify about Marshall telling her to open her

mouth wider during oral sex.

{¶ 18} T.T. testified that she met Marshall around 2000 or 2001 when she was 18

or 19 years old. They were initially friends and then began seeing one another. T.T.

became pregnant, around January of 2005. T.T. and Marshall moved in together

within a year of Al.M.’s birth.

{¶ 19} T.T. testified that Marshall began comparing K.H.’s looks to hers when K.H.

was five. Marshall would repeatedly say that K.H. and T.T. were “babes,” and that

K.H. would be prettier than T.T. when she grew up.

{¶ 20} T.T. testified that C.E. called her in November 2018 about K.H.’s

allegations. When C.E. and K.H. returned to Ohio, T.T. went with them to the

police station. T.T. talked to Det. Ambrose separately. T.T. testified that she did

not discuss K.H.’s allegations with either K.H. or C.E. T.T. first heard the nature

of the allegations when she spoke to Det. Ambrose. When she learned that K.H.

alleged that Marshall performed digital anal penetration, T.T. recalled that he did

the same thing to her when they had sex.

{¶ 21} At trial, T.T. testified that when she and Marshall began having sex, he

insisted on digital anal penetration. T.T. indicated she was uncomfortable with it at

first and they talked about it. Marshall told T.T. that he did it because he felt it made

his partner more aroused.

Am.M.’s Testimony

{¶ 22} Am.M., Marshall’s oldest daughter, also testified. Am.M. testified that she

became aware that K.H. had disclosed her allegations against Marshall to others in

November of 2018 when she received a call from her stepmother, T.M. Am.M.

spoke to Det. Ambrose on November 21, 2018. Also, Am.M. testified that in either

2008 or 2009, K.H. told her that Marshall and K.H. had touched each other’s private

parts and would watch videos. Am.M. believed that her other siblings, J.M., I.M.,

and G.M. were present during this conversation. Am.M. denied knowing about any

oral sex and did not remember telling K.H. to bite Marshall’s penis. Am.M. did

remember Marshall commenting that K.H. looked like T.T.

{¶ 23} Am.M. specifically remembered one day sitting on the stairs at the

Broadview Heights house, looking up, and seeing Marshall carry K.H. into his

room and close the door. Am.M. testified that Marshall and K.H. were laughing

and joking. Am.M. remembered this incident because it was shortly after K.H. told

her what had been happening with Marshall.

{¶ 24} Am.M. further disclosed that she did not want to be a witness and had not

had contact with Marshall’s side of the family since November 2018.

Defense Case-in-Chief: T.M.’s testimony

{¶ 25} T.M., Marshall’s wife, testified on behalf of the defense. T.M. had known

Marshall for 22 years and is the mother of two of his children, J.M. and I.M. T.M.

testified that Marshall and T.T. were having problems in the beginning of 2009.

She was aware of this because on two separate occasions Marshall stayed with her

to avoid issues at home. T.M. testified that he moved in with her permanently about

June 8, 2009, and they have been together since that date.

{¶ 26} T.M. testified that, except for a four-year period when Marshall was

incarcerated in Texas, he has lived with her. T.M. did not believe anyone lived in

the Broadview Heights house after June 8, 2009, because the house was foreclosed

and was scheduled to be sold at sheriff’s sale on June 29, 2009. However, she

acknowledged on cross-examination that the house did not sell until a few years

later. T.M. was unaware that C.E., K.H., and M.M. lived with Marshall in 2009.

T.M. also was adamant that her children did not visit the Broadview Heights house

after January 2009 and believed the same was true for Marshall’s two other

children, Am.M. and G.M.

The Verdict

{¶ 27} After the state’s case-in-chief, the trial court dismissed one count of

disseminating material harmful to a juvenile pursuant to Crim.R. 29. At the end of

all the testimony, the remaining charges went to the jury.

{¶ 28} The jury found Marshall guilty on all of the remaining counts.

State v. Marshall, No. 109633, 2021 WL 5984420, *1-4 (Ohio Ct. App. Dec. 16, 2021)

(“Marshall I”).

III. State Court History

A. Trial Proceedings

Marshall was indicted on ten counts by the January 2019 term of the Cuyahoga County

Court of Common Pleas grand jury. (ECF Doc. 7-1, pp. 5-10). The indictment included: three

counts of Rape under O.R.C. 2907.02(A)(1)(b); two counts of Kidnapping under O.R.C.

2905.01(A)(4); three counts of Endangering Children under O.R.C. 2919.22(A); and two counts

of Disseminating Matter Harmful to Juveniles under O.R.C. 2907.31(A)(1). (Id. at pp. 5-10).

Marshall pled not guilty to all charges. (Id. at p. 11).

On February 10, 2020, Marshall filed a motion in limine to exclude any evidence relating

to specific instances of his sexual activity, as well as opinion and reputation testimony of his

sexual activity. (Id. at pp. 12-16). On February 12, 2020, the State opposed. (Id. at pp. 17-23).

On February 13, 2020, the trial court denied the motion in limine, stating that other acts evidence

may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. (Id. at p. 24). Accordingly, the court found that the other-act

evidence was relevant, was allowed to show activity in conformity and for a legitimate purpose,

and the probative value of the other-acts evidence was substantially outweighed by the danger of

unfair prejudice.1 (Id.).

1 I note that the trial court’s findings appear to be internally inconsistent, where it both permits

the admission of other-acts evidence but still determines that the probative value of that evidence

was substantially outweighed by the danger of unfair prejudice. (See ECF Doc. 7-1, p. 24).

On February 19, 2020, the jury returned a verdict of guilty of Rape under O.R.C.

2907.02(A)(1)(B) as charged in Counts One, Five, and Six of the indictment; Kidnapping under

O.R.C. 2905.01(A)(4) as charged in Counts Two and Eight; Endangering Children under O.R.C.

2919.22(A) as charged in Counts Three, Seven and Ten; and Disseminating Matter Harmful to

Juveniles under O.R.C. 2907.31(A)(1) as charged in Count Four. (Id. at p. 25). The jury further

found that, at the time of the rape offenses under § 2907.02(A)(1)(B), the victim was under ten

years of age, and that the defendant did purposely compel the victim to submit by force or threat

of force; as to the kidnapping offenses under § 2905.01(A)(4) that the victim was under 18 years

of age and that the defendant did commit the offense with a sexual motivation; and as to the

endangering children charges under § 2919.22, that the defendant caused serious physical harm

to the victim. (Id.). A Rule 29 motion was granted as to Count Nine. (Id. at p. 28).

On February 25, 2020, Marshall was sentenced on Counts One, Four, Five, Six, and Ten.

(Id. at p. 29). Counts One, Two, and Three merged, and the state elected to sentence on Counts

One; Counts Six, Seven, and Eight merged, and the state elected to sentence on Count Six. (Id.).

The court sentenced Marshall to life in prison with eligibility for parole after 25 years. (Id.).

Marshall was required to register as a Tier III sex offender of a child victim. (Id.). He received

jail time credit for seven days. (Id.).

B. Direct Appeal

On March 24, 2020, Marshall filed his notice of appeal with Ohio’s Eighth District Court

of Appeals. (ECF Doc 7-1, pp. 35). He retained counsel to represent him on appeal on April 2,

2020. (See id. at p. 312). On August 26, 2020, Marshall filed his appellant’s brief, and the State

filed its appellee’s brief on October 15, 2020. (See id.). However, both of these briefs were

struck from the record for including the name of Marshall’s minor victim. (Id.). Marshall filed

his redacted brief on November 2, 2020 and raised the following four assignments of error:

Assignment of Error No. 1. The convictions of rape and kidnapping are against

the manifest weight of the evidence.

Assignment of Error No. 2. The trial court erred in its admission of evidence

which did not qualify under the exceptions for propensity evidence under Evid.R.

404(b).

Assignment of Error No. 3. The trial court plainly erred in allowing evidence

under Evid.R. 404(b), but failing to provide the jury with a limiting instruction on

the use of such evidence.

Assignment of Error No. 4. Defense counsel provided ineffective assistance of

counsel, in violation of the 6th Amendment to the United States Constitution, in

failing to object to the trial court’s failure to provide the jury with a limiting

instruct[ion] on the use of 404(b) evidence.

(Id. at p. 49). The State filed its redacted brief in response on November 3, 2020. (Id. at pp. 73-

96). Marshall’s original reply brief was not struck from the record and was filed on October 20,

2020. (Id. at pp. 97-109; see also id. at p. 312). On December 16, 2021, the state appellate court

affirmed Marshall’s convictions and sentence. (ECF Doc. 7-1, pp. 110-36; see also Marshall I,

No. 109633, 2021 WL 5984420).

C. Motion for Reconsideration

On December 27, 2021, with counsel, Marshall filed a motion for reconsideration with

the state appellate court. (ECF Doc. 7-1, pp. 138-47). In this motion, Marshall asserted:

1. The Court’s determination that the evidence was overwhelming was clearly

erroneous; and

2. The Court failed to consider the effect that inadmissible evidence had on

the verdict.

(Id.).

The state filed its brief in opposition on January 25, 2022. (Id. at pp. 148-58). Marshall

filed his reply brief on February 1, 2022. (Id. at 159-67). On February 3, 2022, the state appellate

court denied the motion for reconsideration, finding that Marshall had not identified an obvious

error in its decision nor raised an issue that was not fully considered by the court when it should

have been. (Id. at p. 168).

D. Motion to Reopen Appeal

On March 15, 2022, now with counsel Kenneth D. Myers, Marshall filed an application

to reopen appeal pursuant to Appellate Rule 26(B)(2)(C). (Id. at pp. 169-84). In this motion,

Marshall presented that his appellate counsel should have presented the following assignments of

error:

1. Appellant was denied effective assistance of counsel when trial counsel

failed to object, failed to seek a limiting instruction and failed to move for

a mistrial when a witness revealed that defendant had been incarcerated;

2. The trial court erred by permitting a social worker who had already been

excluded as an expert witness to testify as a fact witness about the reasons

a rape victim may delay reporting the incident and trial counsel was

deficient in failing to ask for a limiting instruction;

3. The trial court erred by allowing inadmissible evidence;

4. Appellant was denied effective assistance of counsel when trial counsel

failed to object to the prosecutor making improper statements in closing

arguments and failed to move for a mistrial or a new trial due to

prosecutorial misconduct.

(See id.). The State opposed on May 4, 2022. (Id. at pp. 187-94). The state appellate court denied

Marshall’s application to reopen on August 1, 2022. (Id. at pp. 195-215; see also State v.

Marshall, No. 109633, 2022 WL 3105845 (Ohio Ct. App. Aug. 1, 2022) (“Marshall II”)).

E. Appeal to the Ohio Supreme Court

Marshall, again acting with Kenneth Myers as counsel, timely appealed the appellate

court’s decision and its denial of his Application for Reconsideration to the Ohio Supreme Court

on March 21, 2022. (ECF Doc. 7-1, pp. 216-18). In his Memorandum in Support of Jurisdiction,

Marshall raised the following two propositions of law:

1. In determining whether the erroneous admission of 404(B) evidence is

harmless error, an appellate court must consider both the impact of the

offending evidence on the verdict and the strength of the remaining

evidence after the tainted evidence is removed from the record. (State v.

Morris, 2015-Ohio-5052, P. 33, 141 Ohio St. 3d 399, 242 N.E. 3d 1153,

followed[)].

2. The uncorroborated testimony and statements to others by the complainant

alone cannot provide “overwhelming” evidence of guilt in harmless error

cases.

(Id. at pp. 219-36; 238-65). On April 18, 2022, Marshall filed a supplement indicating that the

Ohio Supreme Court had accepted a case directly relevant to his case, and requesting the court

accept his case and hold it for decision in the other case. (Id. at pp. 266-69). The State filed its

memorandum in opposition to jurisdiction on April 20, 2022. (Id. at pp. 270-82). On June 7,

2022, the Ohio Supreme Court accepted Marshall’s appeal, sua sponte held his cause for decision

in the related case, No. 2022-0099, State of Ohio v. Juba Mohammed Ali, and denied his motion

to accept the case and hold the decision. (Id. at p. 283; see also State v. Marshall, 188 N.E.3d

181 (Ohio 2022) (table) (“Marshall III”)). On March 30, 2023, the Ohio Supreme Court

dismissed Marshall’s appeal as having been improvidently accepted. State v. Marshall, 217

N.E.3d 781, reconsideration denied, 210 N.E.3d 553 (Ohio 2023) (Mem) (“Marshall IV”).

Marshall, with counsel Kenneth Myers, moved the Ohio Supreme Court for reconsideration

pursuant to S.Ct. Prac.R. 18.02 on April 10, 2023. (ECF Doc. 7-1, pp. 285-95). The State

opposed on April 20, 2023. (Id. at pp. 296-98). On June 6, 2023, the Ohio Supreme Court denied

Marshall’s motion for reconsideration. (Id. at p. 299; see also State v. Marshall, 210 N.E.3d 553

(Ohio 2023) (table) (“Marshall V”)).

Marshall did not appeal to the United States Supreme Court.

IV. Federal Habeas Corpus Petition

Marshall brings three grounds for relief in his Petition, timely filed in this Court on

December 20, 2023. (ECF Doc. 1).

GROUND ONE: The Cuyahoga County, Ohio Court of Appeal made an

unreasonabele [sic] determination of the facts in light of the evidence presented in

the state court proceedings when it found that the erroneously admitted 404(b)

evidence was harmless error under Chapman v. California, thus violating

Petitioners [sic] “substantial rights” to a fair trial. See 28 U.S.C. 2254(d)(2).

Supporting Facts: The court of appeals found this error to be harmless because of

overwhelming evidence. The record does not support this finding. First, the court

does not address any of the credibility issues that Petitioner points to in his appellate

briefs. Secondly, the facts that the court based their decision on were inconsistent

and conflicting, nor, as the court of appeals unreasonably state, was the victims’

statements corroborated by other trial evidence. The record demonstrates that

Petitioner was prejudiced by the erroneously admitted evidence because this

evidence was directly linked to an element of the crime and there was no limited

instruction given to reduce any impact this improperly admitted evidence possibly

had on the jury’s verdict. Essentially, the State failed to meet their burden of

proving beyond a reasonable doubt that the erroneous admission of 404(b) “other

acts” evidence was harmless.

GROUND TWO: The Cuyahoga County, Ohio Court of Appeals unreasonable

[sic] and contrarily applied Chapman v. California, when it ruled that the trial court

erred when it erroneously admitted 404(b) evidence, but found the error to be

harmless beyound [sic] a reasonable doubt, violatinf [sic] Petitioners’ “substantial

rights” to a fair trial. See 28 U.S.C. 2254(d)(1).

Supporting Facts: The court of appeals did not reasonable apply Chapman v.

California by failing to fully assess what impact this erroneously admitted 404(b)

evidence possibly had on the verdict and also by unreasonably concluding that

because of overwhelming evidence, this error was harmless. Essentially, the State

failed to meet their burden of proving beyond a reasonable doubt that the erroneous

admission of 404(b) “other acts” evidence was harmless.

GROUND THREE: The trial court made an unreasonable determination of the

facts in light of the evidence presented in the state court proceedings when it

improperly admitted, over objections, 404(b) evidence, thus violation [sic]

Petitioner’s right to a fair trail [sic]. See 28 U.S.C. 2254(d)(2).

Supporting Facts: The trial court erroneously linked the alleged rape to Petitioner’s

alleged sexual activities for the purpose of admitting 404(b) evidence. This

improper admission violated Petitioner’ s Due Process right to a fair trial as

guaranteed by the 14th Amendment.

(Id. at pp. 4-6).

V. Federal Habeas Corpus Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-

132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), applies to Marshall’s petition for

writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “As amended by AEDPA, 28

U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ

of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

This is so because “[s]tate courts are adequate forums for the vindication of federal rights” and

AEDPA thus acts as a “formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). As such, AEDPA

“dictates a highly deferential standard for evaluating state-court rulings which demands that

state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)

(internal citation and quotation omitted).

Under 28 U.S.C. § 2254, federal courts may “entertain only those applications alleging

that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United

States’” and in most instances, federal courts may not grant habeas relief “unless . . . the

applicant has exhausted state remedies.” Cullen, 563 U.S. at 181, quoting 28 U.S.C. §§ 2254(a),

(b), (c). Further, if an application for writ of habeas corpus involves a claim that was

“adjudicated on the merits in State court proceedings,” the application

shall not be granted . . . unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) 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)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100

(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the

petitioner. Cullen, 563 U.S. at 181.

First, clearly established federal law for purposes of AEDPA review includes “the

holdings, as opposed to dicta, of [U.S. Supreme Court] decisions.” Williams v. Taylor, 529 U.S.

362, 412 (2000). A state court decision is contrary to U.S. Supreme Court precedent if the state

court arrives at a conclusion opposite that reached by the Court on a question of law or if the

state court decides a case differently than the Court despite both cases having materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); White v. Mitchell, 431

F.3d 517, 523 (6th Cir. 2005), cert. denied, 549 U.S. 1047 (2006). However, a state court does

not act contrary to clearly established federal law where U.S. Supreme Court precedent is

ambiguous or otherwise unavailable. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per

curiam).

A state court decision is an unreasonable application of Supreme Court precedent where

the state court’s adjudication was “objectively unreasonable” and not merely erroneous or

incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th

Cir. 2000), cert. denied, 531 U.S. 1089 (2001). Under § 2254(d)(2), a state court’s factual

determination will stand unless it is objectively unreasonable in light of the evidence presented in

state court. Harrington v. Richter, 562 U.S. 86, 100 (2011). “[A] federal habeas court may not

grant relief simply because it concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Williams, 529 U.S. at 365.

Next, “a determination of a factual issue made by a State court shall be presumed to be

correct. [Petitioner] shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U.S.C. § 2554(e)(1). And, as the U.S. Supreme Court has repeated,

“a state court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion.” Burt, 571 U.S. at 18. Federal courts must also defer

to a state court’s judgment on issues of state substantive and procedural law. Murray v. Carrier,

477 U.S. 478, 491 (1986); Engle v. Isaac, 456 U.S. 107, 128-29 (1982).

In all, federal habeas corpus relief is a “guard against extreme malfunctions in the state

criminal justice systems,” and is different in kind from the relief available in direct appeal.

Harrington, 562 U.S. at 102-03; see also Brown v. Davenport, 596 U.S. 118, 133 (2022)

(internal quotation omitted). Thus, to obtain “habeas corpus from a federal court, 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.

When a properly presented federal constitutional claim was not adjudicated on the merits

in the state courts, the reviewing federal court must apply the pre-AEDPA standard, reviewing de

novo questions of law and mixed questions of law and fact. Durr v. Mitchell, 487 F.3d 423, 432

(6th Cir. 2007) (“When the state court has not assessed the merits of a claim properly raised in a

habeas petition, the deference due under AEDPA does not apply.”).

VI. Procedural Barriers to Federal Habeas Corpus Review

Before coming to federal court, a state habeas petitioner must overcome certain

procedural barriers, including exhaustion of state remedies and procedural default. See Daniels v.

United States, 532 U.S. 374, 381 (2001). A federal court sitting in habeas review may review

claims that were evaluated on the merits by the state court. But claims that were not evaluated by

a state court, either because they were never fully presented to the state court (i.e., state court

remedies were unexhausted) or because they were not properly presented to the state court (i.e.,

they are procedurally defaulted) are not available for federal habeas corpus review. Bonnell v.

Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004), aff’d sub nom. Bonnell v. Mitchell, 212 F.

App’x 517 (6th Cir. 2007).

A. Exhaustion

A petitioner must first give the state courts a “fair” opportunity to act on his claims.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (emphasis in original). For a claim to have

been fairly presented, the factual and legal basis of the claim asserted by the petitioner must have

been raised at each and every stage of state review. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir.

2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). It is not enough for the claim

raised in state court to be “somewhat similar” to the one raised in the habeas petition or implicate

the same facts; the state court must have been called upon to apply the legal principles of the

claim now presented to the federal courts. Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir.

2011).

The petitioner also must have presented their “claim to the state courts as a federal

constitutional issue – not merely as an issue arising under state law.” Williams, 460 F.3d at 807

(quotation marks omitted). In this Circuit, this can be done in one of four ways:

(1) reliance upon federal cases employing constitutional analysis;

(2) reliance upon state cases employing federal constitutional analysis;

(3) phrasing the claim in terms of constitutional law or in terms sufficiently

particular to allege a denial of a specific constitutional right; or

(4) alleging facts well within the mainstream of constitutional law.

McMeans, 228 F.3d at 681 (paragraph breaks added).

Failure to exhaust occurs where state court remedies are still “available at the time of the

federal petition.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). This failure to

exhaust can also lead to a petitioner procedurally defaulting his claims. If the petitioner has not

fully utilized his state remedies and has no legal mechanism by which to do so now, the claim he

failed to present is procedurally defaulted, and this Court cannot act on the claim either. See

Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Williams v. Anderson, 460 F.3d 789, 809 (6th

Cir. 2006).

B. Procedural Default

The procedural default doctrine limits federal review if the petitioner has failed to follow

the state’s procedural requirements for presenting his or her claim in state court. See Coleman v.

Thompson, 501 U.S. 722, 732 (1991). This doctrine flows from the insight that courts must have

the authority to insist that “defendants present their arguments on time and according to

established procedures.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019). Thus, a federal

habeas court will not consider a habeas petition if “the last state-court judgment denying relief on

the claim rests on a procedural state-law ground that is ‘independent of the federal question and

is adequate to support the judgement.’” Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013)

(quotation marks omitted).

This Circuit consults a four-part test to determine whether a petitioner has procedurally

defaulted a claim. A petitioner procedurally defaults a claim if: (1) the petitioner fails to comply

with a state procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule is

an adequate and independent state ground for denying review of a federal constitutional claim;

and (4) the petitioner cannot show cause and prejudice excusing the default. See Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986).

Because the procedural-default bar to federal habeas review is harsh, courts have created

safety-valves to permit review in limited circumstances. A petitioner can obtain review of

procedurally defaulted claims if he or she shows: (1) “cause,” i.e. that some external factor kept

him from complying with the state rule or fairly presenting his claim; and (2) “prejudice,” i.e.

that, assuming the petitioner’s constitutional claim has merit, there is a reasonable probability

that a different verdict would have resulted if the alleged constitutional violation hadn’t occurred.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wogenstahl v. Mitchell, 668 F.3d 307, 337

(6th Cir. 2012). A petitioner can also obtain review of a procedurally defaulted claim if the

procedurally defaulted claim is based on new evidence that the petitioner was factually innocent

of the crime of conviction. See Coleman, 501 U.S. at 750 (“fundamental miscarriage of justice”

exception to procedural default); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A

“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim

would establish that the petitioner was “actually innocent.”). But “[A]ctual[] innocen[ce]” means

“factual innocence, not mere legal insufficiency.”; Bousley v. United States, 523 U.S. 614, 623

(1998). To overcome procedural default, an actual innocence claim must be supported by “new

reliable evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

VII. Discussion

Marshall raises three grounds for relief in his petition before this Court. (ECF Doc. 1, pp.

4-6). His first two grounds for relief relate to the state appellate court’s consideration of 404(b)

evidence in light of Chapman v. California. (See id; see also ECF Doc. 11, pp. 5-28 and ECF

Doc. 12, pp. 5-28). His third ground for relief relates to the state trial court admitting the 404(b)

evidence and its harmless error analysis under Brecht v. Abramson. (ECF Doc. 11, pp. 28-32;

ECF Doc. 12, pp. 28-32). Because the first two grounds are closely related, I consider them

together, and address the third separately.

A. Marshall has procedurally defaulted all Grounds for relief.

Marshall presents the following as his grounds for relief:

GROUND 1: The Cuyahoga County, Ohio Court of Appeal made an unreasonabele

[sic] determination of the facts in light of the evidence presented in the state court

proceedings when it found that the erroneously admitted 404(B) evidence was

harmless error under Chapman v. California, thus violating Petitioners [sic]

“substantial rights” to a fair trial. See 28 U.S.C. 2254(d)(2).

GROUND 2: The Cuyahoga County, Ohio Court of Appeals unreasonable [sic]

and contrarily applied Chapman v. California, when it ruled that the trial court erred

when it erroneously admitted 404(B) evidence, but found the error to be harmless

beyound [sic] a reasonable doubt, violatinf [sic] Petitioners’ “substantial rights” to

a fair trial. See 28 U.S.C. 2254(d)(1).

GROUND 3: The trial court made an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings when it improperly

admitted, over objections, 404(b) evidence, thus violation [sic] Petitioner’s right to

a fair trail [sic]. See 28 U.S.C. 2254(d)(2).

(ECF Doc. 1, pp. 4-6Respondent ). In his amended Traverse, Marshall explains that the state

appellate court’s harmless error analysis was an unreasonable determination of the facts in light

of the evidence presented in state court, and, further, that it was contrary to or involved an

unreasonable application of the harmless error analysis presented in Chapman v. California.

(ECF Doc. 12, pp. 1-2). Marshall takes issue with the state appellate court’s finding that the trial

court’s error in admitting 404(b) evidence was harmless because of “overwhelming evidence.”

(Id. at pp. 3-19). He argues that the admission of 404(b) evidence of his prior sexual activities in

his case prejudiced him and prevented him from having a fair trial in violation of the Due

Process Clause of the Fourteenth Amendment as described in Chapman and Brecht. (Id. at pp.

26-28). In Ground Three, Marshall contends that the trial court reached an unreasonable

determination of the facts in light of the evidence presented in state court proceedings. (ECF

Doc. 12, p. 2, citing 28 U.S.C. 2254(d)(2)). He provides extensive review in his Amended

Traverse challenging the facts presented in state court. (ECF Doc. 12, pp. 19-28).

Respondent argues the merits of Grounds One and Two and asserts this Court should

deny Marshall’s grounds for relief because he has not shown the state appellate court

unreasonably applied Chapman. (ECF Doc. 7, pp. 16-26). Respondent elaborated on her merits

argument in her sur-reply, but did not to raise the issue of fair presentation as to Grounds One

and Two. Respondent agrees that Ground Three is procedurally defaulted. (ECF Doc. 7, p. 14).

Despite Respondent’s briefing on the merits of Grounds One and Two, I determine that

this Court, now sitting in federal habeas corpus review, may not reach the merits of these

grounds because they are procedurally defaulted. Procedural default is not jurisdictional and the

court is not obligated to raise it sua sponte. Lovins, 712 F.3d at 295. Nonetheless, the court may

raise procedural default sua sponte even where Respondent has not raised it in his defense. Id.

Moreover, the court may not waive the exhaustion requirement; it is for the state alone to waive

the exhaustion requirement expressly, through counsel. See 28 U.S.C. § 2254(b)(3). Therefore, I

determine Marshall did not fairly present his claims in state court, state court remedies are

unavailable, and thereby Marshall has procedurally defaulted Grounds One and Two.

1. Grounds One and Two were not fairly presented to the state courts

and are now procedurally defaulted.

Exhaustion of state court remedies is a prerequisite for federal habeas relief. See 28

U.S.C. § 2254(b)(1)(A). Thus, for a state prisoner’s claim to be available for federal habeas

corpus review, the petitioner must first give state courts a “fair opportunity” to act on those

claims. O’Sullivan, 526 U.S. at 844, citing 28 U.S.C. § 2254(c) (emphasis in original). “State

courts, like federal courts, are obliged to enforce federal law[,]” therefore, “state courts should

have the first opportunity to review [a petitioner’s] claim and provide any necessary relief.” Id.;

see also Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (“Exhaustion affords States an initial

opportunity to pass upon and correct alleged violations of prisoners’ federal rights . . . .”)

(internal quotations and marks omitted). To satisfy the fair presentation requirement, a petitioner

must do more than present the “‘substance’” of their claim to the state court; the petitioner “is

required to present the state courts with the same claim, or a claim ‘substantially equivalent’ to

the claim” now presented in federal court. Jalowiec, 657 F.3d at 304, quoting Picard v. Connor,

404 U.S. 270, 275-78 (1971). The petitioner must also present the state court with the federal

constitutional basis for their claims, which may be done by (1) relying upon federal cases

employing constitutional analysis; (2) relying upon state cases employing federal constitutional

analysis; (3) presenting the claim in sufficiently particular terms to allege a denial of a specific

constitutional right; or (4) alleging facts well within the mainstream of constitutional law.

McMeans, 228 F.3d at 681; see also Williams, 460 F.3d at 807.

Failure to properly exhaust in state court can lead to procedural default of a federal

habeas corpus petition. Woodford v. Ngo, 548 U.S. 81, 92 (2006). In federal habeas, if a state

court remedy is no longer available, regardless of the reason, that remedy is exhausted; but

technical exhaustion via unavailability of a state court remedy does not automatically entitle the

petitioner to litigate the merits of their claims in federal court. Id.

Here, my review of Marshall’s claims brought in state court reveals that he did not fairly

present those claims in a manner sufficient to meet the fair presentation requirement. In

reviewing his motion for reconsideration, Marshall asserted:

1. The Court’s determination that the evidence was overwhelming was clearly

erroneous;

2. The Court failed to consider the effect that inadmissible evidence had on

the verdict.

(ECF Doc. 7-1, pp. 140, 145). Notably, neither of these assertions provide the same basis for

relief as that requested in his petition before this Court. Moreover, looking within his

memorandum in support of his motion for reconsideration, Marshall does not raise these claims

on the basis of federal constitutional error. (See ECF Doc. 7-1, pp. 140-147). Rather, his claims

are based in evidentiary issues and supported by Ohio law. (See id.).

Again, looking to Marshall’s appeal of the appellate court’s decision and its denial of his

Application for Reconsideration to the Ohio Supreme Court on March 21, 2022, Marshall raised

the following two propositions of law:

1. In determining whether the erroneous admission of 404(B) evidence is

harmless error, an appellate court must consider both the impact of the

offending evidence on the verdict and the strength of the remaining

evidence after the tainted evidence is removed from the record. (State v.

Morris, 2015-Ohio-5052, P. 33, 141 Ohio St. 3d 399, 242 N.E. 3d 1153,

followed[)].

2. The uncorroborated testimony and statements to others by the complainant

alone cannot provide “overwhelming” evidence of guilt in harmless error

cases.

(Id. at pp. 219-36; 238-65). As with his motion for reconsideration in the state appellate court,

these two propositions of law are not the same as the grounds presented in his habeas petition.

This failure to present the same issue in state court is not rectified in his memorandum in support

of jurisdiction. (See id. at pp. 219-65).

Marshall clarifies in his sur-reply brief that the case relied upon in his first proposition of

law – State v. Morris, 24 N.E. 3d 1153, (Ohio 2014) – employs Chapman in its analysis. (ECF

Doc. 14, pp. 6-7). Thus, it may satisfy McMeans where that case permits fair presentation if a

petitioner relies on state cases employing federal constitutional analysis. 228 F.3d at 681.

However, McMeans also instructs that, to meet the fair presentation requirement, the references

in a petitioner’s briefing must be sufficient to put the state court on notice that a constitutional

claim had been asserted. Id. at 682 (“While it is true that a few of the state cases cited by the

petitioner on direct appeal contain references to the Confrontation Clause, the majority of those

cases were concerned with Ohio evidence law. We do not think that a few brief references to the

Confrontation Clause in isolated cases is enough to put state courts on notice that such a claim

had been asserted. Thus, we hold that the petitioner failed to “fairly present” his Confrontation

Clause claim to the Ohio courts.”). As the Sixth Circuit found in McMeans, I also find that

Marshall’s briefing in state court was not enough to put the state court on notice of alleged

constitutional error. While Morris does cite to Chapman in its analysis, citation to this case alone

is not sufficient to permit fair presentation to the state courts. Marshall’s brief in his motion for

reconsideration does not raise a due process error with respect to the 404(b) evidence. The only

reference to due process is in an error not presented to this Court – ineffective assistance of

counsel. (ECF Doc. 7-1, p. 172). Nowhere in his memorandum in support of jurisdiction before

the Ohio Supreme Court does Marshall raise due process, as he does now before this Court. (Id.

at pp. 219-35). Rather, that brief, like in McMeans, focuses on state evidentiary issues. Thus,

reliance on Morris, without more, is not enough for Marshall to fairly present his claims in

federal habeas.

2. Ground Three was not fairly presented to the state courts and is now

procedurally defaulted.

Ground Three fails for the same reasoning as Grounds One and Two. Marshall argues

that the trial court erred in permitting the 404(b) evidence, but he does not raise it as a federal

constitutional error violating his Due Process rights until he reached federal court. (See ECF

Doc. 1, p. 6 and ECF Doc. 12, pp. 19-28). In his motion in limine at trial, Marshall argued the

evidence should not be permitted under Ohio Revised Code § 2907.02(D); § 2945.59; and Ohio

Evidence Rule 404(B). (ECF Doc. 7-1, pp. 13-15). He did not raise federal error at that stage of

his state court proceedings. (See id. (“Assignment of Error No. 2. The trial court erred in its

admission of evidence which did not qualify under the exceptions for propensity evidence under

Evid.R. 404(B)”). Likewise, his brief on direct appeal only raises error in terms of state law.

(Id. at pp. 60-65). But as with the first two Grounds for Relief, this issue is not raised in terms of

constitutional error, nor a violation of Marshall’s Due Process rights. (See id.). At best, the brief

makes passing analogies between Ohio Rule of Evidence 404(b) and the equivalent Federal Rule

of Evidence 404(b) and references a Tenth Circuit case. (See id. at pp. 61-63). But this is not

enough to make a fair presentation to the state sufficient to reach merits review in federal habeas

corpus proceedings.

Thus, despite bringing similar claims to the state court, he has failed to fairly present his

claims to the state court on the same basis as he now asks of this Court. As a result, he has not

given the state courts an opportunity to correct any alleged constitutional error. Marshall no

longer has state court remedies available for relief. As a result, this failure to properly exhaust his

claims in state court has resulted in procedural default of his grounds here.

B. Neither cause and prejudice nor actual innocence serve to excuse procedural

default of his Grounds for Relief.

Even where a petitioner has procedurally defaulted their claim, they may still obtain

review of procedurally defaulted claims by showing: (1) “cause,” i.e., that some external factor

kept him from complying with the state rule or fairly presenting his claim; and (2) “prejudice,”

i.e. that, assuming the petitioner’s constitutional claim has merit, there is a reasonable probability

that a different verdict would have resulted if the alleged constitutional violation hadn’t occurred.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wogenstahl v. Mitchell, 668 F.3d 307, 337

(6th Cir. 2012). A petitioner can also obtain review of a procedurally defaulted claim if his

procedurally defaulted claim is based on new evidence that he was factually innocent of the

crime of conviction. See Coleman, 501 U.S. at 750 (describing the “fundamental miscarriage of

justice” exception to procedural default); see also Lundgren v. Mitchell, 440 F.3d 754, 764 (6th

Cir. 2006) (A “fundamental miscarriage of justice” can occur only when the procedurally

defaulted claim would establish that the petitioner was “actually innocent.”). But even so, it is a

high standard to demonstrate actual innocence. See Bousley v. United States, 523 U.S. 614, 623

(1998). “[A]ctual[] innocen[ce]” means “factual innocence, not mere legal insufficiency.” Id.

Moreover, an actual innocence claim must be supported by “new reliable evidence . . . that was

not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

Marshall has not overcome the procedural default of his claims. He argues only the

merits of his grounds for relief in his Amended Traverse and does not address the procedural

default of his claims in his briefings. (See ECF Docs. 12, 14). He has not presented cause to

excuse his failure to fairly present his claim in state court. Coleman, 501 U.S. at 750. If a

petitioner fails to demonstrate cause for the procedural default, then the court need not reach the

issue of prejudice. Smith v. Murray, 477 U.S. 527, 533 (1986). I therefore decline to address

whether prejudice would excuse procedural default in this case.

Additionally, Marshall has not demonstrated actual innocence. He has not asserted his

factual innocence, rather, he asserts only the legal insufficiency of the evidence at trial once the

propensity evidence is excluded. (See ECF Doc. 12). This is not enough to overcome the

procedural bar to federal review of the merits of his claims.

I therefore recommend the District Court dismiss all grounds in Marshall’s petition as

procedurally defaulted.

C. Even if Ground Three is not procedurally defaulted, it is not cognizable in

federal habeas corpus review.

Marshall brings as his third ground for relief:

Ground Three: The trial court made an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings when it improperly

admitted, over objections, 404(b) evidence, thus violation [sic] Petitioner’s right to

a fair trail [sic]. See 28 U.S.C. 2254(d)(2).

Supporting Facts: The trial court erroneously linked the alleged rape to Petitioner’s

alleged sexual activities for the purpose of admitting 404(b) evidence. This

improper admission violated Petitioner' s Due Process right to a fair trial as

guaranteed by the 14th Amendment.

(ECF Doc. 1, pp. 4-6). However, this claim is not available to him in federal habeas corpus

review. Under AEDPA, an application for a writ of habeas corpus for a state petitioner shall not

be granted unless the state’s adjudication of the claim was contrary to, or involved an

unreasonable application of, clearly established Supreme Court precedent. 28 U.S.C. §

2254(d)(1). The U.S. Supreme Court has not clearly established that a state court’s admission of

propensity evidence is unconstitutional. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)

(“the admission of prior bad acts evidence was not contrary to clearly established Supreme Court

precedent.”). Indeed, the U.S. Supreme Court, in Estelle v. McGuire, stated “[b]ecause we need

not reach the issue, we express no opinion on whether a state law would violate the Due Process

Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged

crime.” 502 U.S. 62, 75 n.5 (1991). A petitioner’s disagreement with the state’s admission of

404(b) evidence does not raise a constitutional claim cognizable in federal habeas corpus review,

even where the petitioner claims, as here, the evidence was sufficiently prejudicial as to deny

him due process. Bey v. Bagley, 500 F.3d 514, 523 (6th Cir. 2007) (holding that the admission of

“other acts” evidence was not contrary to Supreme Court precedent and was not cognizable on

federal habeas review).

For these reasons, I determine Marshall’s claim in Ground Three is not cognizable and

recommend in the alternative that the District Court deny Marshall’s petition as to this ground.

VIII. Certificate of Appealability

Under 28 U.S.C. § 2253(c)(1)(A), this Court will grant a certificate of appealability

(“COA”) for an issue raised in a § 2254 habeas petition only if the petitioner has made a

substantial showing of the denial of a federal constitutional right. Cunningham v. Shoop, 817 F.

App’x 223, 224 (6th Cir. 2020). A petitioner satisfies this standard by demonstrating that

reasonable jurists “could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted);

see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When a claim is denied on procedural grounds, the petitioner must show “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack, 529 U.S. at 484. “Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further. In such a circumstance, no appeal would be

warranted.” Id. at 486.

Here, it is well-established that a petitioner must provide a full and fair presentation of his

claims in the state court on the same grounds as those presented in federal court. O’Sullivan, 526

U.S. at 845. As discussed above, Marshall has procedurally defaulted the grounds raised in this

petition and has not shown that he is entitled to excuse that default. Moreover, his third ground

for relief is not cognizable in this Court, because there is no clearly established Supreme Court

precedent establishing a due process violation for permitting propensity evidence. Bugh, 329

F.3d at 512. Thus, if the District Court accepts my recommendations, Marshall will not be able to

show that my conclusions in this Report and Recommendation are debatable. Therefore, I

recommend that no certificate of appealability issue in this case.

IX. Recommendation

For the foregoing reasons, I recommend dismissing Marshall’s federal habeas corpus

petition as procedurally defaulted, and denying as to Ground Three as not cognizable. I further

recommend he be denied a certificate of appealability.

SU

Dated: December 16, 2024 □□□

Reuben J. Sheperd

United States Magistrate Judge

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28

U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo

by the assigned district judge.

ok

28

Failure to file objections within the specified time may result in the forfeiture or waiver

of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

specific and not merely indicate a general objection to the entirety of the report and

recommendation; “a general objection has the same effect as would a failure to object.” Howard

v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus

on specific concerns and not merely restate the arguments in briefs submitted to the magistrate

judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge

without specific objections ‘wastes judicial resources rather than saving them, and runs contrary

to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL

3018175, *2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific

objections may in rare cases be excused in the interest of justice. See United States v.

Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).