The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RAYMOND TANNER,
Petitioner, : Case No. 1:24-cv-114
-vs - District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz
DANIEL HAUGHEY, JUDGE1, :
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case pursuant to 28 U.S.C. § 2254 brought by Petitioner Raymond
Tanner with the assistance of counsel. It is before the Court for decision on the Petition (ECF No.
1), the Amended State Court Record (ECF No. 15), and Respondent’s Amended Return of Writ
(ECF No. 12). Although Magistrate Judge Peter Silvain, to whom the case was originally referred,
set a reply date of twenty-one days after the Return was filed, Petitioner has not filed a reply.
The Magistrate Judge reference in this case was transferred to the undersigned January 13,
2025, under authority of Amended General Order 22-05 to help balance the Magistrate Judge
workload in the District (ECF No. 13). Thereafter the undersigned confirmed that the case was,
from the perspective of both parties, ripe for decision (ECF No. 16).
1 Judge Haughey is the Butler County Common Pleas Judge presently presiding over Petitioner’s criminal case in that
court. Pursuant to Fed.R.Civ.P. 25(a) and acting sua sponte, the Court hereby substitutes Judge Haughey for Judge
Muench McElfresh as Respondent in this case and the caption is amended accordingly.
Litigation History
In 1990 Petitioner murdered his wife in their home by decapitating her. State v. Tanner,
Case No. CA2021-12-167 (Ohio App. 12th Dist. 11/28/2022) at ¶ 2. As a result he was indicted
for aggravated murder, pleaded not guilty by reason of insanity (NGRI). Id. He was found NGRI,
apparently without opposition by the State, diagnosed with schizophrenia, paranoid type, found to
be a mentally ill person subject to court order pursuant to Ohio Revised Code §§ 2945.40 and
5122.01, and committed to the Dayton Mental Health Center Forensic Unit for treatment. Id.
The cited Ohio statutes provide for periodic review of the continued supervision of those
committed upon a verdict of NGRI. The State Court Record confirms that those have occurred
over the period of years since Petitioner’s initial commitment, resulting in a gradual reduction of
the restrictions on Petitioner’s liberty such that Petitioner is now only obliged to meet with a mental
health professional once every four months to monitor his mental health. Id. at ¶ 5.
The most recent Common Pleas Court evaluation of Petitioner’s conditions of release
occurred on October 5 and 21, 2021. Id. at ¶ 11. The Twelfth District’s opinion recounts at length
the evidence presented on those occasions. Id. at ¶¶ 12-25. It notes that Tanner disrupted the
proceedings, interrupting the prosecutor’s examination of one of the psychologists with “I’m not
on trial.” Id. at ¶ 26.
After hearing the evidence, the trial judge, Respondent Haughey, declined to terminate
court supervision of Petitioner. His decision was summarized by the Twelfth District as follows:
¶ 27 On November 30, 2021, the trial court issued a decision finding
clear and convincing evidence that Tanner remains a mentally ill
person subject to court order. The trial court therefore denied
Tanner's request to terminate his commitment and continued his
conditional release with the requirement that he engage in
appointments with Idol once every four months. In reaching its
decision, the trial court considered the testimony and 2020 reports
from Drs. Fridman and O'Donnell, the testimony and 2021 report of
Dr. Kukor, Dr. Fridman's 2015 report, and "'the entire history of
Tanner's case' including testimony and reports entered into evidence
at prior commitment review hearings," as allowed under R.C.
2945.401. See Tanner, 2019-Ohio-1193 at ¶ 26. The trial court also
considered Tanner's angry outburst during Dr. Kukor's cross-
examination. The court found that Tanner's "disturbing and erratic
behavior" was evidence of his lack of insight into his illness and
reminiscent of prior evaluations during which Tanner referred to the
offense as an incident or mishap, did not feel particularly guilty
about the offense, and instead was irritated he had to go through
court hearings because this was over and done.
Tanner, supra, ¶ 27.
Tanner appealed and the Twelfth District affirmed in the opinion cited above. Tanner then
sought review in the Ohio Supreme Court, but that court declined to exercise jurisdiction (Entry,
State Court Record, ECF No. 15, Ex. 13). Tanner then filed his Petition in this case pleading one
ground for relief:
Tanner is no longer mentally ill and has been denied release
from commitment under [the] Due Process Clause of the 14th
Amend., U.S. Constitution.
(Petition, ECF No. 1, PageID 3).
Analysis
The Court reads Tanner’s Petition as asserting that because he is not presently mentally ill,
he is entitled by virtue of the Due Process Clause to release from the condition imposed on him by
the Butler County Court of Common Pleas, meeting every four months with a mental health
professional to monitor his condition.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions. In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring). Tanner’s Petition
plainly states a claim under the Due Process Clause of the Fourteenth Amendment.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
A claim is fairly presented if the petitioner
(1) relied upon federal cases employing constitutional analysis; (2)
relied upon state cases employing federal constitutional analysis; (3)
phrased the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional
right; or (4) alleged facts well within the mainstream of
constitutional law.
Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017).
On appeal to the Twelfth District, Tanner raised only one assignment of error: the trial
court erred in finding that Appellant Raymond Tanner remained mentally ill and subject to court
order (Appellant’s Brief, State Court Record, ECF No. 15, Ex. 7, PageID 713). In arguing this
Assignment, Tanner relied on both federal and state case law.
First of all he relied on Jones v. United States, 463 U.S. 354 (1983). There the Supreme
Court affirmed an order of the Superior Court of the District of Columbia which continued the
hospital confinement of a person found NGRI, holding “the due process clause permitted the
Government, on the basis of the insanity judgment, to confine him to a mental institution until such
time as he had regained his sanity or was no longer a danger to himself or society.” Jones had
been charged with petty theft, a crime punishable by imprisonment for up to one year. Under
federal law at the time, the burden of proof of NGRI was on a defendant by a preponderance of
the evidence. The Court reaffirmed its decision in Addington v. Texas, 441 U.S. 418 (1979), that
an NGRI acquittee could be confined longer than the possible maximum term of imprisonment for
the underlying offense because he was not being punished, but confined for treatment and to
protect society.
Next Tanner relied on Foucha v. Louisiana, 508 U.S. 71 (1992)2, in which the Supreme
Court held it was a violation of due process for Louisiana to continue the commitment of an
insanity acquittee “on [the] basis of his antisocial personality, after a hospital review committee
had reported no evidence of mental illness and recommended conditional discharge.” Justice
White based the decision on “the substantive component of the Due Process Clause [which] bars
certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to
implement them.” Foucha at 72, citing Zinermon v. Burch, 494 U.S. 113, 125 (1983).
In Levine v. Torvik, 986 F.2d 1506 (6th Cir. 1993), also cited in Tanner’s appellate brief,
the Sixth Circuit upheld a grant of habeas relief from this Court. The circuit court in turn relied
on In re Burton, 11 Ohio St. 3d 147 (1984), where the Ohio Supreme Court held
Ohio statutes regarding court-ordered hospitalization . . . mean that
2 The decision in Foucha is quite narrow, with only five Justices concurring in Parts 1 and 2 of Justice White’s opinion.
a person subject to hospitalization must represent a substantial risk
of physical harm to himself or other members of society at the time
of the commitment hearing. The individual's present mental state
must be evaluated upon current or recent behavior as well as prior
dangerous propensities of the person. The General Assembly has ...
provided the trial court with broad discretion to review the
individual's past history in order to make a well-informed
determination of his present mental condition.
A court should apply a “totality of the circumstances” test in making
this determination, considering:
(1) whether, in the court's view, the individual currently
represents a substantial risk of physical harm to himself
or other members of society; (2) psychiatric and
medical testimony as to the present mental and physical
condition of the alleged incompetent; (3) whether the
person has insight into his condition so that he will
continue treatment as prescribed or seek professional
assistance if needed; (4) the grounds upon which the
state relies for the proposed commitment; (5) any past
history which is relevant to establish the individual's
degree of conformity to the laws, rules, regulations and
values of society; and (6) if there is evidence that the
person's mental illness is in a state of remission, the
court must also consider the medically suggested cause
and degree of the remission and the probability that the
individual will continue treatment to maintain the
remissive state of his illness should he be released from
commitment. The trial court is not limited to
considering any of the above factors. The court may, in
its discretion, consider other relevant evidence....
Id. at 149–50.
Levine at 1512-13. Considering the case authority cited, the Magistrate Judge concludes Tanner
fairly presented his due process claim to the Ohio courts.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000) Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
The Twelfth District decided this case on the merits, reviewing the cited federal case law
and the conflicts in the evidence before Judge Haughey. Tanner has not shown its decision was
an objectively unreasonable application of Jones, Fouchia, or any other relevant Supreme Court
precedent. Filing a reply would have been a principal opportunity to show contrary Supreme Court
precedent, but Tanner did not file a reply.
Tanner’s Petition focuses, as did his argument in his appeal brief, on the testimony of the
three psychologists at the hearing. The Twelfth District noted the conflicts in that testimony on
diagnosis and whether Tanner’s mental illness was likely to recure, but one of them testified that
for the most likely diagnosis, additional episodes were likely. The trial judge also found, based on
the testimony, that Tanner was unlikely to engage in voluntary treatment and appeared to have
little insight into his behavior.
The Magistrate Judge also notes that Judge Haughey was able to observe personally
Tanner’s erratic behavior. If a person who has committed as heinous a crime as decapitation of
another human being cannot control his anger in order to behave properly during a court
proceeding, surely his outburst is relevant.
As a matter of substantive due process, the Court must also consider the degree to which
Petitioner’s liberty has been restricted. It is one thing to be involuntarily committed to a lock-
down mental health hospital and a different thing entirely to be required to see a mental health
professional four times a year. Considering the “totality of the circumstances,” Tanner’s
deprivation of liberty is minimal compared with the harm he inflicted and could inflict again if he
has another episode.3
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
April 30, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.
3 Tanner’s theory that his killing of his second wife was caused by his reaction to a steroid injection is unsupported
by any scientific evidence of record.