Golston v. Watson

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RODNEY GOLSTON, ) Case No. 1:24-cv-01127

)

Petitioner, ) JUDGE JEFFREY J. HELMICK

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

TOM WATSON, WARDEN,1 )

)

Respondent. ) REPORT AND RECOMMENDATION

)

I. Introduction

On July 3, 2024, Petitioner Rodney Golston (hereinafter “Golston” 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). Golston filed a Motion for Leave to File an Amended Petition on

November 4, 2024. (ECF Doc. 8). The same day, Respondent filed their Return of Writ. (ECF

Doc. 7). I granted Golston’s Motion to Amend on November 19, 2024. (Non-document entry of

Nov. 19, 2024). Golston filed a Traverse on November 25, 2024. (ECF Doc. 11). Respondent

filed a Return of Writ to Petitioner’s Amended Petition on December 19, 2024. (ECF Doc. 12).

Golston then filed a Traverse to Return of Writ on January 7, 2025. (ECF Doc. 13). Respondent

has not filed a reply. The matter is therefore ripe.

1 Petitioner identified Respondent as Tom Watson, Warden. Petitioner is incarcerated at the

Richland Correctional Institution, where Angela Stuff is the Warden, and, as such, is the proper

party Respondent.

The District Court has jurisdiction over the petition under § 2254(a). On September 5,

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 Sept. 5, 2024).

Because the grounds in Golston’s petition are non-cognizable or otherwise have been

procedurally defaulted and excuse is unavailable to him, I recommend the District Court dismiss

his petition.

II. Factual Background

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

facts on direct appeal. These factual findings are presumed correct unless Golston 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} Golston was indicted for endangering children, a second-degree felony in

violation of R.C. 2919.22(B)(1), and unlawful sexual conduct with a minor, a third-

degree felony in violation of R.C. 2907.04(A). The victim identified for each count

was N.B. Following the presentation of all the evidence at trial, the state moved to

amend the indictment to reflect the evidence regarding the dates of the offenses as

follows: endangering children, October 10, 2013, to January 22, 2014; and,

unlawful sexual conduct with a minor, June 1, 2012, to March 1, 2014. Golston did

not object.

{¶ 3} Golston filed a motion in limine on June 29, 2022, requesting a hearing and

giving “notice [that] he will seek to introduce evidence that falls within the

permissible areas of inquiry as set forth in R.C. 2907.02(D)” at trial. Specifically,

Golston sought to question N.B. regarding her sexual partners prior to having an

abortion. Prior to the commencement of trial on August 1, 2022, the court heard

argument from counsel and denied Golston’s motion.

{¶ 4} Further, during pretrial proceedings the day trial began, Golston’s trial

counsel informed the court that he intended to inquire of N.B. regarding “what

appear to be digital messages that we believe in good faith were authored and

posted by the alleged victim” (the “Messages”). The state of Ohio orally moved to

exclude the Messages, marked as exhibits A, B, C, and D,2 and to limit Golston’s

ability to question N.B. regarding the Messages. A review of the Messages indicates

that some of the content appears to be posted under the username “tigggg.___”, the

account has a photo attached to it, and one of the Messages states:

Lmaoooo, That’s Why You Cant See Your Son Old a** N***a

That’s Why I Lie About the rape she to get my Custody back that’s

why I’m winning my case now b***h The prosecutor told me you

went to Court you about to get locked up b***h[] a** n***a that’s

what you get for trying to take my son from me now who’s over

there [emoji] looking Miserable and lonely knowing your son not at

your house lol you won't be putting that poison in his head about

me[.]

{¶ 5} The state argued Golston “shouldn’t be able to question [N.B.] about these

things when there’s absolutely no authentication * * * regarding who authored these

messages or where they came from.” During trial, out of the presence of the jury,

the court allowed Golston to question N.B. about the authenticity of the Messages.

N.B. claimed that she did not recognize them and that she had not authored them.

The court ruled from the bench as follows: “I will grant the state’s motion and you

will not be permitted to ask her any questions about those exhibits * * *.”

{¶ 6} In response to the court’s ruling, Golston argued:

Your Honor, if I may, and it’s probably premature. I expect the

evidence to show later on if my client were to take the stand that he

will testify as to those messages, and if he knows who those persons

are behind those addresses, and she can be recalled as a rebuttal

witness as the State desires.

I anticipate they will be authenticated. There’s no other way to do

it. He’s the recipient of it. The jury could believe him or not believe

him. Testing her credibility is the heart of the case.

The court maintained its ruling.

{¶ 7} At the conclusion of the trial, the jury found Golston guilty of both counts.

The trial court sentenced Golston to seven years in prison for endangering children

and 36 months in prison for unlawful sexual conduct with a minor. The court ran

the sentences consecutive for an aggregate prison term of ten years.

State v. Golston, No. 112394, 2024 WL 631635 *1-5 (Ohio Ct. App. Feb. 15, 2024).

III. State Court History

A. Trial Proceedings

Golston was indicted on two counts by the September 2021 term of the Cuyahoga County

Court of Common Pleas grand jury. (ECF Doc. 9-1, pp. 29-30). The indictment included one

count of Endangering Children under O.R.C. § 2919.22(B)(1) and one count of Unlwaful Sexual

Conduct With A Minor under O.R.C. § 2907.04(A). (Id. at pp. 29-30). Golston pled not guilty to

the charges. (Id. at p. 31).

On June 29, 2022, Golston filed a motion in limine seeking to introduce evidence, and to

permit cross-examination pertaining to the identity of the biological father of the alleged victim’s

aborted pregnancy in 2014 and the alleged victim’s medical procedure conducted on January 22,

2014. (Id. at pp. 32-33). The State filed a Response to Motion in limine under Ohio’s Rape

Shield Statute on July 7, 2022. (Id. at pp. 34-39). The trial court held a hearing on the Motion in

limine on August 1, 2022, as the trial was commencing, and denied the motion. (Id. at pp. 223-

30). At the hearing, the State made an oral Motion in limine asking the court to exclude evidence

of social media messages purportedly sent by the alleged victim to Golston. (Id. at pp. 230-36).

The Court conducted a voir dire of the alleged victim before her testifying and excluded the

social media messages based on a lack of authentication. (Id. at pp. 442-54)

Before the trial, the State also moved to Amend the Indictment, amending the date of the

offense for Count 2 from October 10, 2013, to between October 10, 2013 to March 1, 2014. (Id.

at p. 40). The trial court granted the Motion without objection from the defense. (Id. at pp. 221-

22).

The case proceeded to trial, and on August 3, 2022, the jury found Golston guilty of both

counts in the indictment. (Id. at p. 43). The jury further found that the defendant did cause

substantial risk of serious physical harm, that the victim was thirteen years or older but less than

sixteen years old at the time of the offense, and that the defendant was ten or more years older

than the victim at the time of the offense. (Id.). On September 1, 2022, the trial court imposed a

7-year prison sentence on count one and a 36-month prison sentence on Count Two. The

sentences were ordered to run consecutively for a total prison sentence of ten years. Golston was

also advised of his duties to register as a tier II sex offender. (Id. at p. 45).

B. Direct Appeal

On October 4, 2022, Golston filed his Notice of Appeal with Ohio’s Eighth District Court

of Appeals. (ECF Doc. 9-1, pp. 48-58). On October 12, 2022, the Eighth District Court of

Appeals dismissed his appeal for failure to file a timely notice of appeal. (Id. at p. 59). Golston

filed a Motion for Leave to File Delayed Appeal on December 28, 2022 (Id. at pp. 60-80). That

Motion was denied the next day. (Id. at p. 81). Golston again filed A Notice of Appeal with the

Eighth District on February 1, 2023 (Id. at pp. 82-91) and Motion for Leave to File Delayed

Appeal on February 10, 2023. (Id. at pp. 92-96). The Motion for Leave to File Delayed Appeal

was granted on March 1, 2023. (Id. at p. 97).

Golston filed his appellant’s brief on June 2, 2023, raising the following three

assignments of error2:

Assignment of Error No. 1: Whether Defendant-Appellant was prejudiced from

preparing a firm defense at trial by the trial court’s failure to abide by the mandatory

time frame of Ohio Revised Code § 2907.02(E), where Defendant timely requested

a hearing 33 days prior to trial.

Assignment of Error No. 2: Whether ruling on Defendant-Appellant’s motion

under Ohio Revised Code § 2907.02(D) on the day of trial, resulting in a denial,

2 Although Golston’s brief included delineation of three assignments of error, Golston did not

separately argue Assignment of Error 2, and that argument was therefore not considered. (ECF

Doc. 9-1, at p. 154).

afforded adequate time to reformulate a strategy for defense or to consider an

Alford plea.

Assignment of Error No. 3: Whether the granting of the State’s oral motion in

limine to exclude social media exhibits added to the cascade of rulings which

denied Defendant-Appellant an opportunity to adequately present a defense at trial.

(Id. at p. 103). The State filed its brief in response on October 18, 2023. (Id. at pp. 140-50).

Golston filed a reply brief. (Id. at pp. 123-39). On February 15, 2024, the state appellate court

affirmed Golston’s conviction and sentence. (Id. at pp. 151-60; see also State v. Golston, No.

112394, 2024 WL 631635, *1-5 (Ohio Ct. App. Feb. 15, 2024)).

C. Appeal to the Ohio Supreme Court

On March 25, 2024, Golston timely filed a pro se Notice of Appeal of the appellate

court’s decision to the Ohio Supreme Court. (ECF Doc. 9-1, p. 161-63). In his Memoradum in

Support of Jurisdiction, he raised the following three propositions of law:

1. On Appeal, this Honorable Court of Appeals has before it an issue of

Defendant-Appellant’s timely request for a hearing under Ohio Revised

Code 2907.02(E), but the trial court’s contrary to the express time frame

imposed by statute, was held at the commencement of trial rather than the

expressed “not less than three days before trial”. The standard of review

regarding the misapplication of law/ statute is de novo. Johnson v.

Abdullah (2019), 166 Ohio St.3d 427, 219-Ohio-4861 at paragraph 38.

2. Defendant Golston was prejudiced from preparing a firm defense at trial by

the court’s failure to abide by the mandatory time frame of the Ohio Revised

Code 2907.02(E), where Defendant timely requested a hearing 33 days prior

to trial.

3. The trial Court’s ruling, in limine, to exclude Defendant Exhibits A, B, C,

D was prejudicial and denied him a fair trial.

(Id. at pp. 164-189). On June 11, 2024, the Supreme Court of Ohio declined to accept

jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).

Golston did not appeal to the United States Supreme Court.

IV. Federal Habeas Corpus Petition

Golston brings five grounds for relief in his Amended Habeas Petition, timely filed in this

Court on November 4, 2024. (ECF Doc. 8-1).

GROUND ONE: Defendant was prejudiced from preparing a firm defense at trial.

Supporting Facts: Defendant-Appellant was prejudiced from preparing a firm

defense at trial by the trial court’s failure to abide by the mandatory time-frame of

Ohio Revised Code § 2907.02(E), where Defendant timely requested a hearing 33

days before trial. (Citing)(for) pursuant to R.C. 2907.02(E) and 2907.02(D), Rape

Shield Statute.

GROUND TWO: The trial court’s ruling in (limine) [sic] to exclude Defendant’s

exhibits.

Supporting Facts: The Petitioner, Rodney Golston, did provide both investigating

police and the State with social-media (messages of evidence) he was sent by this

alleged victim. While there was a (voir-dire) of the victim in which she denied

transmitting the messages; (out of the presence of the jury); this trial court deprived

him the right to present his evidence of Exhibits (A), (B), (C) and (D). This

prejudiced my case; Judge was bias.

GROUND THREE: Prayer for Relief.

Supporting Facts: This Petitioner, sought a reversal of these convictions by the

Supreme Court of Appeals, pursuant to the fact that his Common Pleas Court Judge

demonstrated (Bias) and (Prejudice) with malice toward the Petitioner from the start

of trial and before trial; Petitioner’s evidence should not have been excluded and/or

dismissed. Investigation of his evidence was denied wrongfully.

GROUND FOUR: Due process of law was deprived and impeded and/or

circumvented.

Supporting Facts: Due Process; Procedural Due Process and due proof were all

denied and deprived, against this Petitioner, Rodney Golston, before, during and

throughout his pre-trials, trial and sentencing. “Deprivation of right under color of

law”. (Citing) Title 18, U.S.C. Section 242, did occur, by way and through a (bias)

Judge, demonstrating anticipatory judgment of guilt.

GROUND FIVE: Ineffective assistance of counsel.

Supporting Facts: The ineffective assistance of counsel involved the following:

1) Criminal defense attorney: Gary Levine

2) Eighth District Court of Appeals Attorneys: Charles Ruiz-Bueno CO.

L.P.A. (and) J. Charles Ruiz-Bueno, Esq.

Here, within, this Defendant-Appellant-Petitioner, Rodney Golston, demonstrated

explicit pre-existing mental impairment; Comprehension-Deficit Disorder; lacking

I.Q > Intelligence Quotient; A.D.D.; Attention Deficit Disorder; these challenges

and my other pre-existing conditions, were ignored, and not presented to this

Cuyahoga County Common Pleas Court, within Golston’s pre-trial hearings, trial

and sentencing, nor were they presented by his Appeal Attorney.

(Id. at pp. 5-11).

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 Golston’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 a result,

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). Even so, 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 unavailable 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 on 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 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, 501 U.S. at 750; 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

Golston raises five grounds for relief in his petition before this Court. (ECF Doc. 8-1, pp.

5-11). His first ground for relief relates to timing of the state trial court’s hearing on his motion

in limine as required under Ohio Revised Code § 2907.02(E). (See ECF Doc. 9-1, at pp. 32-39,

223-30). His second ground for relief relates to the state trial court granting the state’s oral

motion in limine to exclude Defendant’s exhibits purported to be social media messages sent by

the alleged victim. (Id. at pp. 230-36, 442-54). His third ground for relief relates to bias and

prejudice of the state court trial judge. (Id. at pp. 203-719 (trial transcript)). Petitioner’s fourth

ground for relief relates to a due process violation brought about by the bias of the state court

trial judge. (Id.) His fifth ground for relief claims ineffective assistance of counsel. (Id.) As the

first, second and third grounds are similar, I address them together. I will consider his fourth and

fifth grounds separately.

A. Golston’s Grounds for Relief One, Two and Three are non-cognizable.

In his first Ground for Relief, Golston argues that the trial court’s failure to abide by the

statutorily defined requirement to hold an evidentiary hearing relative to his Motion in limine

deprived him of the ability to prepare a “firm defense.” (ECF Doc. 8-1, p. 5) As the hearing, and

the trial court’s ruling, were given immediately prior to commencing the trial, Golston contends

he could not consider alternate trial strategies. (Id.). Further, in his second and third grounds for

Relief, Golston argues that the trial court’s decision to exclude evidence consisting of text and

social media messages purportedly sent by the alleged victim, deprived him of the opportunity to

present his evidence at trial. (Id., at p. 7). Golston further claims that the trial court judge

demonstrated “bias” and “prejudice” with “malice toward” Golston when he excluded the

evidence Golston sought to introduce. (Id., at p. 8). Respondent argues that Golston has failed to

demonstrate that any alleged error had a substantial and injurious effect, or that such an alleged

error was contrary to, or involved an unreasonable application of, clearly established Federal law

as determined by the Supreme Court of the United States. Golston is therefore not entitled to

habeas relief on this Ground. (ECF Doc. 9, pp. 13-14).

A petition for a writ of habeas corpus filed by a petitioner imprisoned under the judgment

of a state court is governed by 28 U.S.C. § 2254(a), which permits the state prisoner to challenge

his custody “only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.” (Id.). Federal habeas corpus relief “does not lie for errors of state

law” Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and the federal court is bound by the state

court’s interpretation of state law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84 (1983). A

federal habeas court does not function as another state appellate court reviewing state courts’

decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988) (citing

Oviedo v. Jago, 809 F.2d 328 (6th Cir. 1987). “[F]ederal courts must defer to a state courts

interpretation of its own rules of evidence and procedure” in considering a habeas petition. Allen,

845 F.2d at 614). A claim that alleges only errors of state law are cognizable only to the extent

that the “error amounts to a fundamental miscarriage of justice or a violation of the right to due

process.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008).

“In general, alleged errors in evidentiary rulings by state courts are not cognizable in

federal habeas review,” but habeas relief may be granted if “the state’s evidentiary ruling is so

fundamentally unfair that it rises to the level of a due process violation.” Wood v. Morrison,

2021 WL 1327841, at *3 (6th Cir. Jan. 11, 2021); see also Moreland v. Bradshaw, 699 F.3d 908,

923 (6th Cir. 2012). In his Grounds for Relief One, Two and Three, Golston is seeking relief

based on the state court’s interpretations of the rule of procedure governing hearings for Motions

in limine in state court, and the state’s Rules of Evidence. He has failed, however, to show that

any error by the state trial court in applying Ohio evidentiary law was egregious enough to

amount to a denial of a constitutional right. (Id.). He has not identified how these interpretations

rise to the level of fundamental miscarriages of justice or demonstrated any violations of a due

process right. Rather, he has asserted that the substance and timing of the rulings pertaining to

evidence questions impaired his ability to consider all potential trial strategies and present his

case to the jury. Possible restrictions to developing trial tactics based on such rulings do not

implicate the Constitution or laws or treaties of the United States. These challenges therefore do

not entitle him to habeas relief, and I recommend the District Court deny these grounds as not

cognizable.

B. This court may not reach the merits of Golston’s Grounds for Relief Four

and Five because they were procedurally defaulted in state court.

In his fourth Ground for Relief, Golston argues he was denied due process of law because

the trial court’s evidentiary rulings demonstrated “anticipatory judgment of guilt”. (ECF Doc. 8-

1, at p. 10). He argues in his fifth Ground for Relief that he received ineffective assistance of

counsel at both the trial and appellate levels. (Id. at p. 11). He specifically contends that his

counsel failed to present evidence of his “demonstrated, explicit, pre-existing mental health

impairment” to the trial court during pre-trial, trial or sentencing hearings. (Id.) Further, his

counsel did not raise these impairments in the appellate court. (Id.).

A state prisoner’s federal claim is defaulted if he fails to comply with a state procedural

rule. Johnson v. Bradshaw, 493 Fed. App’x. 666, 669 (6th Cir. 2012). The federal court will not

review claims that were not entertained by the state court either because of the petitioner’s

failure to raise those claims in the state courts while state remedies were available or when the

petitioner’s failure to comply with a state procedural rule prevented the state courts from

reaching the merits of the claims. Smith v. State of Ohio Dept. of Rehab. and Corrections, 463

F.3d 426, 430-31 (6th Cir. 2006); Lundgren, 440 F.3d at 763. For noncompliance with a state

procedure to bar habeas review, the state procedure must satisfy the standards set forth in

Maupin. Under Maupin, a petitioner procedurally defaults a claim if: (1) the petitioner fails to

comply with a state procedural rule; (2) the state courts actually 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.

Maupin, 785 F.2d at 138. If the first three prongs of the Maupin analysis are satisfied, the

petitioner can overcome the procedural default by either “demonstrat[ing] cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrat[ing] that

failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501

U.S. at 750.

“The determination of whether a state procedure – including a procedure governing the

timing of appeals – is adequate requires an application of the Maupin factors to the specific state

procedure invoked and to the operation of that procedure in practice.” Smith, 463 F.3d at 431.

In applying the Maupin analysis to this case, the first step is satisfied by Golston’s failure

to timely file his direct appeal in Ohio’s Eighth District Court of Appeals. (ECF Doc. 9 at 59).

Further, his first Motion for Leave to File Delayed Appeal was denied as it was filed without a

new notice of appeal attached. (Id. at 81). Golston did, however, file a second Motion for Leave

to File Delayed Appeal along with a Notice of Appeal, and that motion was granted on March 1,

2023. (Id. at 97). As Maupin states as the second prong of its analysis, “the court must decide

whether the state courts actually enforced the state procedural sanction.” Maupin, 785 F.2d at

138 (emphasis added). Because Golston remedied the deficiencies giving rise to his failure to

comply with the state procedural rule, and he was ultimately able to file his direct appeal and

have it considered on its merits at the state appellate court level, enforcement of this procedural

rule only delayed, rather than denied, review of Golston’s issue. This case therefore does not

meet the enforcement requirement of the second step of the Maupin analysis. Accordingly,

Golston survives Maupin review, and the analysis of whether his fourth and fifth Grounds for

relief were exhausted must continue.

1. Golston’s Ground for Relief Five was not fairly presented to the state

courts and is now procedurally defaulted.

In his fifth ground for relief, Golston argues he was provided ineffective assistance of

counsel in the trial court because his attorney failed to investigate and present evidence of his

“demonstrated explicit pre-existing mental impairment”. (ECF Doc. 8-1, p. 11). Golston claims

his mental impairment rendered him incapable of understanding the case being presented against

him and he was denied court-ordered competency testing. (Id. at p. 15). Golston further argues

that his appellate counsel was also ineffective as he too failed to raise the issue of Petitioner’s

mental impairment. (Id.). Respondent contends that Golston’s ineffective assistance of counsel

ground was not raised at any level in the state courts and is therefore procedurally defaulted.

(ECF Doc. 12, p. 26). Respondent further argues that Golston has failed to demonstrate cause or

prejudice, nor has he presented any evidence of actual innocence that would allow this court to

hear his procedurally defaulted claim. (Id. at pp. 26-27).

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 on federal cases

employing constitutional analysis; (2) relying on 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, whatever 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.

Having reviewed the state court record, Golston nowhere claimed that his trial or

appellate counsel provided ineffective assistance. Nor is there any mention of the type of “mental

impairment” that he raises as the basis of his ineffective assistance of counsel claims before this

court. The exhaustion requirement demands that Golston first utilize any state court process

available prior to presenting that claim in federal habeas proceedings. Brandon v. Stone, 226 Fed.

Appx. 458, 460 (6th Cir. 2007). These unexhausted claims become procedurally defaulted where

remedy is no longer available in state court. Having failed to exhaust his claims, and now having

no remedy available to him, Ground for Relief Five is procedurally defaulted.

2. Golston’s Ground for Relief Four was not fairly presented to the state

courts and is now procedurally defaulted.

In his fourth ground for relief, Golston contends that he was deprived of due process

because the trial court “demonstrate[ed] anticipatory judgment of guilt.” (ECF Doc. 8-1, p. 10).

Again, when comparing this ground to issues raised with the state Appellate and Supreme courts,

no claim that is the same or substantially equivalent was presented at those levels. Golston

therefore has not met the O’Sullivan requirement of granting state courts the first opportunity to

review his claim and provide any necessary relief. Accordingly, this claim is also procedurally

defaulted.

3. Neither cause and prejudice nor actual innocence excuse procedural

default of his Grounds for Relief.

Because the procedural default bar is harsh, as noted above, the petitioner 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, 501 U.S. at 750; Wogenstahl, 668 F.3d at 337. A petitioner may 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, 440 F.3d at 764 (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, 523 U.S. at 623.

“[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, 513 U.S. at 324.

Golston 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. 8-1, 13). Here, my review of Golston’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. 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 prejudice. Smith v. Murray, 477

U.S. 527, 533 (1986). I therefore decline to address whether prejudice would excuse procedural

default.

Nor has Golston demonstrated actual innocence. He has not asserted his factual

innocence, rather, he asserts only that he was unable to properly prepare and present his defense

because of the timing of his evidentiary hearing, the trial court’s interpretation of the rules of

evidence, and the perceived ineffective assistance he received from trial and appellate counsel.

(See ECF Docs. 8-1, 13). 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 these grounds in Golston’s petition as

procedurally defaulted.

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, Golston has procedurally defaulted grounds four and five raised

in this petition and has not shown that he is entitled to excuse that default. Moreover, his first,

second and third grounds for relief are 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, Golston will not be able to show that my conclusions in this Report and

Recommendation are debatable. I therefore recommend that no certificate of appealability issue

in this case.

IX. Recommendation

For these reasons, I recommend dismissing Golston’s federal habeas corpus petition with

Grounds Four and Five as procedurally defaulted, and denying as to Grounds One, Two and

Three as not cognizable. I further recommend he be denied a certificate of appealability.

1)

Dated: January 29, 2025 Uy

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.

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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

23

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 entire 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).