Allen v. Warden, Southeastern Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

BRYAN S. ALLEN,

Petitioner, : Case No. 1:24-cv-185

-vs - District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

WARDEN, Southeastern Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought by Petitioner Bryan Allen with the assistance of

counsel to obtain relief from his conviction in the Scioto County Court of Common Pleas for

aggravated trafficking in drugs, aggravated possession of drugs, possessing criminal tools, and

conspiracy. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF

No. 10), and the Warden’s Return of Writ (ECF No. 11). When ordering the Warden to answer,

Magistrate Judge Litkovitz set a reply deadline of twenty-one days after the Return was filed

(Order, ECF No. 6, PageID 39). That deadline passed July 23, 2024, but Petitioner has not filed a

reply.

The Magistrate Judge reference in this case was recently transferred to the undersigned to

help balance the Magistrate Judge workload in the District.

Litigation History

On February 12, 2020, the Scioto County grand jury indicted Allen on one count of

aggravated trafficking in drugs in violation of Ohio Rev. Code § 2925.03(A)(2) and §

2925.03(C)(1)(c) (count 1), one count of aggravated possession of drugs in violation of Ohio Rev.

Code § 2925.11(A) and § 2925.11(C)(1)(d) (count 2), one count of possessing criminal tools in

violation of Ohio Rev. Code § 2923.24(A) and § 2923.24(C) (count 3), and one count of conspiracy

in violation of Ohio Rev. Code § 2923.01(A)(1) and § 2923.01(J)(2) (count 4)(Indictment, State

Court Record, ECF No. 10, Ex. 1).

Allen initially pleaded not guilty and filed a motion to suppress. After that motion was

denied, he changed counsel and filed a new motion to suppress which was also denied. Allen then

pleaded no contest to four charges pursuant to a plea agreement. (State Court Record, ECF No. 10,

Ex. 12). The plea included a recommended sentence of six years and merger of counts one and

two, the aggravated trafficking and possession charges. Under Ohio law, a defendant can plead

no contest and preserve his right to appeal a ruling on a motion to suppress, which is what Allen

did.

Two days before his scheduled sentencing, Allen changed counsel again and moved to

withdraw his no contest plea. That motion was denied and the trial court sentenced Allen to a

mandatory minimum prison term of nine years to an indefinite maximum prison term of up to

thirteen years and six months on the aggravated trafficking count with a concurrent six month

sentence for possessing criminal tools.

Allen appealed to the Ohio Fourth District Court of Appeals which affirmed the conviction

(Decision, State Court Record, ECF No. 10, Ex. 21). The Ohio Supreme Court declined to exercise

jurisdiction over a subsequent appeal. State v. Allen, 169 Ohio St.3d 1492 (2023). Petitioner then

filed his Petition in this Court, pleading the following grounds for relief:

Ground One: Petitioner asserts his Due Process Clause rights under

the Fifth and Fourteenth Amendments to the United States

Constitution were violated by the state trial and appellate courts in

ruling on Petitioner's motion to suppress evidence under the Fourth

Amendment to the United States Constitution. Petitioner moved to

suppress evidence on the ground that the vehicle in which the

evidence was hidden was stopped without probable cause, and

therefore the evidence was seized in violation of the Fourth

Amendment to the United States Constitution.

Grounds Two and Three: Petitioner asserts ineffective assistance

of appellate counsel under the Sixth Amendment to the United

States Constitution as to Petitioner's state court retained appellate

attorney in failing to argue denial of motion to suppress

evidence/Fourth Amendment violation on appeal to Ohio Supreme

Court and in failing to argue Due Process Clause violation in Fourth

District Court of Appeals.

Ground Four: Petitioner asserts a violation of his Sixth

Amendment right to jury trial and violation of the Fifth Amendment

Due Process Clause by virtue of the denial of Petitioner's motion

prior to sentencing to withdraw plea of no contest. Petitioner asserts

ineffective assistance of trial counsel and discord between himself

and trial counsel and innocence as reasons to withdraw the plea.

Petitioner also asserts his innocence as a claim in this Petition.

(Petition, ECF No. 1, Page ID 3)1.

Analysis

Ground One: Denial of Due Process: Failure to Follow Precedent

Procedural Default

1 Petitioner has not filed his Petition in the form required by the Rules Governing § 2254 Cases. Instead, he has filed

a narrative Petition and incorporated by reference an attached Memorandum. The Magistrate Judge has copied the

above statement of claims directly from the Petition as pleaded.

In his first Ground for Relief, Petitioner asserts his Fourth Amendment rights were violated

when he was convicted on the basis of evidence seized in violation of the Fourth Amendment.

Respondent asserts any Fourth Amendment claims are barred by the Supreme Court’s

decision in Stone v. Powell, 428 U.S. 465 (1976)(Return, ECF No. 11, PageID 594-97, citing Stone

and its progeny). Petitioner, however, does not seek to litigate a Fourth Amendment claim directly.

Instead, he asserts “[t]he Fourth Amendment issue is not raised herein but is discussed because it

forms the foundation for the Fifth/Fourteenth Amendment Due Process Clause violation in this

case and various Sixth Amendment ineffective counsel issues.” (Memorandum, ECF No. 2,

PageID 16).

Petitioner’s argument is that his due process rights2 were violated when the Fourth District

Court of Appeals failed to follow the decision of the Ohio Supreme Court interpreting the statute

governing driving with respect to so-called fog lines3 in State v. Turner, 163 Ohio St.3d 421 (Dec.

22, 2020).

Petitioner presented this claim to the Fourth District Court of Appeals as follows:

Second Assignment of Error: The trial court abused its discretion

in denying defendant-appellants motion to suppress.

Issues Presented

Whether the trial court abused its discretion in denying defendant-

appellant's motion to suppress.

Whether the trial court abused its discretion in denying Defendant-

Appellant's motion to suppress after State v. Turner, 163 Omo St.

3rd 421, was issued in light of the fact that the state trooper testified

that the wheels of the vehicle were touching the fog line at all times.

2 Although Petitioner cites both the Fifth and Fourteenth Amendment Due Process Clauses, only the Fourteenth

prohibits state actions. Barron ex rel Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833)(Marshall).

3 The Court takes judicial notice that the painting of fog lines on state highways in Ohio was a safety feature of Ohio

highway administration introduced by former Governor James A. Rhodes (1963-1971 and 1975-1983). Whatever

impact it has had on drug trafficking enforcement, it has undoubtedly contributed to highway safety and has been

widely adopted both in the United States and in other countries.

(Appellant’s Brief, State Court Record, ECF No. 10, PageID 172).

The Fourth District decided the Second Assignment of Error as follows:

{¶ 31} In his second assignment of error, Allen contends that the

trial court erred in denying his motion to suppress. More

specifically, Allen argues that the trial court's findings of fact

regarding the circumstances leading up to the initial stop were

against the manifest weight of the evidence. Although he concedes

that this Court deferentially reviews questions of fact when

considering an appeal from the denial of a motion to suppress, he

argues that such deference must only be afforded when the factual

findings are supported by competent, credible evidence, which

Allen argues the record here lacks. Allen ultimately contends that

the troopers lacked the requisite reasonable suspicion to warrant an

investigative stop, that the stop therefore constituted an unlawful

investigative stop, and that the trial court erred in denying his motion

to suppress. The State responds by arguing that the trial court

properly found that the vehicle in which Allen was riding "crossed

over the right outside edge of the fog line." The State further points

out that the trial court found "that the vehicle traveled for a

considerable amount of distance across that line" and "that that

would be an additional danger and would be unsafe conduct, as

discussed in the statute." Thus, the State argues that the trial court's

ruling on the motion to suppress was in accordance with both

statutory and case law and that its decision denying the motion to

suppress should be affirmed.

Standard of Review

{¶ 32} In general, "appellate review of a motion to suppress presents

a mixed question of law and fact." State v. Codeluppi, 139 Ohio

St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, 17. "When considering

a motion to suppress, the trial court assumes the role of trier of fact

and is therefore in the best position to resolve factual questions and

evaluate the credibility of witnesses." State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, 18. "Consequently, an

appellate court must accept the trial court's findings of fact if they

are supported by competent, credible evidence." Id. " 'Accepting

these facts as true, the appellate court must then independently

determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.' " Codeluppi

at 17, quoting Burnside at 18.

Fourth Amendment Principles

{¶ 33} To determine whether the trial court erred in denying the

motion to suppress we must consider the reasonableness of the

traffic stop. "The Fourth Amendment to the United States

Constitution and the Ohio Constitution, Article I, Section 14

prohibit unreasonable searches and seizures." State v. Emerson, 134

Ohio St.3d 191, 2012-0hio-5047, 981 N.E.2d 787,115. This

constitutional guarantee is protected by the exclusionary rule, which

mandates the exclusion at trial of evidence obtained from an

unreasonable search and seizure. Id.

{¶ 34} This case involved an investigatory stop, which must be

supported by a reasonable, articulable suspicion that the driver has,

is, or is about to commit a crime, including a minor traffic violation.

See State v. Hudson, 4th Dist. Gallia No. l 7CA19, 2018-Ohio-2717,

114; State v. Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241,

¶ 16, citing United States v. Williams, 525 Fed.Appx.330,332 (6th

Cir.2013), and Florida v. Royer, 460 U.S. 491, 501-507, 103 S.Ct.

1319, 75 L.Ed.2d 229 (1983). "To justify a traffic stop based upon

reasonable suspicion, the officer must be able to articulate specific

facts that would warrant a person of reasonable caution to believe

that the driver has committed, or is committing, a crime, including

a minor traffic violation." State v. Taylor, 2016-Ohio-1231, 62

N.E.3d 591, 'IJ 18 (4th Dist.). The existence of reasonable suspicion

depends on whether an objectively reasonable police officer would

believe that the driver's conduct constituted a traffic violation based

on the totality of the circumstances known to the officer at the time

of the stop. Id.

{¶ 35} Moreover, a police officer may stop the driver of a vehicle

after observing even a de minimis violation of traffic laws. See State

v. Williams, 4th Dist. Ross No. 14CA3436, 2014-Ohio-4897, ¶ 9,

citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135

L.Ed.2d 89 (1996), and Dayton v. Erickson, 76 Ohio St.3d 3, 665

N.E.2d 1091, syllabus {1996). "(A] traffic stop with the proper

standard of evidence is valid regardless of the officer's underlying

ulterior motives as the test is merely whether the officer 'could' have

performed the act complained of; pretext is irrelevant if the action

complained of was permissible." State v. Koczwara, 7th Dist.

Mahoning No. 13MAl49, 2014-Ohio-1946, ¶ 22, citing Erickson at

7 and 11.

{¶ 36} Here, the trial court made a factual determination based upon

the dashcam video and the trooper's testimony that the vehicle in

which Allen was a passenger had travelled across the white fog line

on two separate occasions. Because the trial court is the trier of fact

and is in the best position to resolve factual questions, we must

accept the trial court's findings of fact if they are supported by

competent, credible evidence. See State v. Burnside at ¶ 8.

Legal Analysis

{¶ 37} We initially note that Allen not only contends that the record

fails to support the trial court's finding that the vehicle at issue

travelled over the white fog line twice, he also argues that the stop

was pretextual and was actually part of a wider drug interdiction

effort. However, that argument was not properly preserved for

purposes of appeal. Moreover, the Supreme Court of Ohio has

clearly stated as follows:

Where a police officer stops a vehicle based on probable

cause that a traffic violation has occurred or was occurring,

the stop is not unreasonable under the Fourth Amendment

to the United States Constitution even if the officer had

some ulterior motive for making the stop.

Dayton v. Erickson, supra, at paragraph one of the syllabus.

{¶38} On appeal, Allen argues that the testimony of the state trooper

during the suppression hearing "is directly controverted by the video

tapes that were submitted as exhibits during the first suppression

hearing." He argues that the video demonstrates that "the right side

tires of the vehicle never intersect the line" and that "at no time was

the full tire over the line." Thus, Allen contends that "[g]iven that

the tire was in contact with the line at all times, its clear that * * *

there was no probable cause or reasonable articulable suspicion that

a traffic infraction occurred * * * ." The State contends that the trial

court properly found that the tire of the vehicle crossed the white fog

line by half a tire width and thus, that the stop was therefore valid.

{¶39} Here, the record before us indicates that the stop was initiated

as a result of a traffic violation, in particular R.C. 4511.33, which

requires drivers to drive their vehicles entirely within a single lane

of traffic and to remain within the lane markings "as nearly as

practicable." R.C. 4511.33 also provides in section (A)(l) that

vehicles "shall not be moved from such lane or line until the driver

has first ascertained that such movement can be made with safety."

Importantly, the Supreme Court of Ohio recently considered the

"legal question of whether touching the solid white longitudinal

line-the fog line- violates R.C. 4511 .33(AXI)." State v. Turner, 163

Ohio St.3d 421, 2020-Ohio-6773, 170 N.E.3d 842, ¶1 s. The Court

ultimately determined that a police officer does not have reasonable

articulable suspicion to execute a traffic stop when the officer

observes a vehicle "driving on" or "touching" the fog line. Id. at ¶ 3.

However, the Court also held that the plain language of R.C.

4511.33(A)(l), read in conjunction with the definitions set forth in

R.C.4511.01," 'discourages or prohibits' a driver from 'crossing [the

fog line.]'" Id., citing Manual of Uniform Traffic Control Devices

("MUTCD"), Section 3A.06(B) (Jan 13, 2012). The Court reasoned

that because Turner "did not cross the single solid white longitudinal

line - the fog line - and driving on it or touching it is not prohibited

under R.C.451l.33(A)(l), no violation occurred." Turner at ¶ 35. The

Court did not elaborate further regarding to what extent a driver

must cross the fog line for there to be a violation of R.C. 4511.33.

That is essentially now the area of dispute in the present appeal, i.e.,

whether crossing the fog line by half a tire width constitutes a

violation or whether the entire tire must cross over the line in order

for there to be a violation.

{¶ 40} In its decision denying Allen's first motion to suppress, the

trial court noted that Trooper Day testified that he observed the

vehicle at issue travel across the white fog line two times. The trial

court also noted that the dashcam video supported the trooper's

testimony as to the fog line violations, stating that while the video

was hard to see, it did not contradict the trooper's testimony. As set

forth above, after the Turner decision was released, another

suppression hearing was held focusing specifically on the fog line

issue.

{¶ 41} At the second suppression hearing, Trooper Day testified that

the vehicle at issue traveled across the white fog line twice, the first

time for a distance of about 50 to 75 feet, and the second time for a

distance of about 50 feet. The trooper explained that the first time

the vehicle crossed over the fog line, the right half of the tire was

"over the line" and about a half a tire width was on the line. The

trooper further testified that the second time the vehicle crossed the

fog line there was "a half a tire width outside the right lane." After

listening to additional testimony and reviewing the dashcam video

for a second time, the trial court stated on the record as follows:

I'm going to find that the evidence offered supports that this

vehicle in question crossed on two occasions the right

outside edge of that fog line by half a tire width, with half

a tire width over that line, and half a tire width on or within

that lane of travel.

I'm going to find that that is a violation of the statute in

question, and as such, the Trooper did have reasonable,

articulable suspicion.

I'm going to also find (inaudible) in particular as to the first

of those lines - times that this vehicle is shown in that

video, the video shows that car traveling for a considerable

distance across that line. I'm going to find that that would

also be an additional danger and would be unsafe conduct

as discussed in that statute. The Trooper described it as 50

to 75 feet. I'm going to accept that, even though it appeared

it was much longer distance from watching the video.

Based on that, I am again going to deny the Defendant's

Motions to Suppress in this matter.

{¶42} Thereafter, in its decision denying Allen's supplemental

motion to suppress, the trial court noted that the trooper observed

the vehicle travel across the white fog line two times and stated that

the video "supports" and "bolsters" the trooper's testimony. The trial

court specifically stated in its order that it found the trooper's

testimony regarding the fog line to be credible and further stated that

the video did not contradict the testimony. Thus, the trial court found

that the initial stop was valid. After reviewing the video, we agree

with the trial court's assessment. Although it was difficult for this

Court to determine from the video the exact amount of tire width

that crossed over the fog line, it was apparent that the vehicle had

traveled across the line. Contrary to Allen's arguments, the video

certainly does not directly contradict Trooper Day's testimony.

Moreover, we cannot conclude that the trial court legally erred by

applying the Turner holding to prohibit crossing over the fog line by

half a tire width, as opposed to requiring that the entire tire cross

over the line in order to find there was a violation of the statute at

issue. To the contrary, we find the trial court reasonably applied the

Turner holding to find that a violation of R.C. 4511.33(A)(l)

occurred. Therefore, we cannot conclude, based upon the record

before us, that the trial court's factual findings were against the

manifest weight of the evidence in the record or that the trial court

erred in denying Allen's motion to suppress.

{¶ 43} [ Omitted because related to issues not before this Court.]

{¶ 44} We can glean from the record that Allen's first motion to

suppress appears to have primarily challenged the duration of the

search, but not the initial stop or the K9 sniff of the vehicle. It was

not until the Turner decision was released that another motion to

suppress was filed, challenging primarily the initial stop. Although

Allen's counsel attempted to raise some additional substantive issues

regarding the stop, detention and search at that time, they were

disallowed by the trial court. Instead, the second suppression

hearing was limited to the issue of the alleged fog line violation and

whether the statute was in fact violated or not in light of the Turner

decision.

{¶ 45} Thus, although we have reviewed the record to the extent

possible, it does not appear that the arguments regarding the

propriety of the K9 sniff were properly preserved for purposes of

appeal. Moreover, "'[i]t is well settled that issues not raised in an

original motion to suppress cannot be raised for the first time on

appeal.' " State v. Meadows, 2022-Ohio-287, 184 N.E.3d 168, 121

(4th Dist.), quoting State v. Jones, 4th Dist. Highland No. 04CA9,

2005-Ohio-768, 2005 WL 433433, ¶ 18. See also State v. Markins,

4th Dist. Scioto No. I 0CA3387, 2013-Ohio-602, ¶ 25; State v.

Daboni, 4th Dist. Meigs Nos., I 8CA3, 18CA4, 18CA5, 2018-Ohio-

4155, ¶ 16. Accordingly, having found no merit to Allen's second

assignment of error, it is overruled.

State v. Allen, supra.

To summarize, Petitioner argues the trial court did not follow Turner in deciding his second

motion to suppress and the Fourth District violated his due process rights when it did not reverse

the trial court’s decision on the basis of stare decisis.

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.

If Allen’s “due process requires stare decisis” claim was fairly presented to the Fourth

District, this Court must decide whether the Fourth District decided that issue on the merits and

whether its decision is contrary to or an objectively unreasonable application of United States

Supreme Court precedent. On the other hand, if Allen did not fairly present the claim to the Fourth

District, he is precluded by procedural default from presenting it here unless he can show excusing

cause and prejudice.

Allen claims he did fairly present the claim to the Fourth District by “federalizing” it:

“Appellate counsel did federalize this issue with references to Kimble and other cases declaring a

due process right in adherence to precedent in the Ohio Supreme Court.” (Memorandum, ECF No.

2, PageID 19). However, he gives no reference to any Supreme Court precedent except to Kimble

v. Marvel Entertainment, LLC, 576 U.S. 446 (2015), which was not cited in his appellate brief

(See Appellant’s Brief, State Court Record, ECF No. 10, Ex. 19, Table of Authorities, PageID

170). Upon review of the entire Brief, the undersigned finds no reference to an argument that the

trial court or the appellate court was bound as a matter of due process to apply Turner as Allen

now argues it should have been applied. Because it was available to be presented to the Fourth

District and was not, it is procedurally defaulted and cannot be heard here on the merits. State v.

Perry, 10 Ohio St. 2d 175 (1967); Ohio’s doctrine of res judicata in criminal cases, enunciated in

Perry, is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423,

432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d

417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d

155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913

(S.D. Ohio 2001).

Petitioner may be arguing in the alternative that the procedural default is excused by the

ineffective assistance of appellate counsel in failing to present that issue to the Fourth District.

However, while ineffective assistance of appellate counsel can excuse a procedural default, the

ineffective assistance of appellate counsel claim must first be presented to the state courts.

Edwards v. Carpenter, 529 U.S. 446 (2000); Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir.

2020); Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007). In Ohio law, the sole means for

presenting such a claim is by application for reopening under Ohio R.App. P. 26(B). Allen has

never filed such an application, much less prevailed on an ineffective assistance of appellate

counsel claim.

Federal habeas courts are not permitted to hear procedurally defaulted claims. Davila v.

Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that were

procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing

Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.

Davis, 582 U.S. 521, 527(2017)). Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002).

Merits

Should the District Court reject the foregoing procedural default analysis, the Magistrate

Judge offers the following analysis of the merits.

Petitioner asserts that the doctrine of stare decisis is a part of due process: “The United

States Supreme Court has held that Due Process requires adherence to precedent” (Brief, ECF No.

2, PageID 18). In support, he cites Kimble v. Marvel Entertainment, LLC, 576 U.S. 446 (2015).

In Kimble, the Supreme Court declined to overrule one of its own precedents, Brulotte v.

Thys Co., 379 U.S. 29 (1964), which had held that a patentee could not continue to collect royalties

after the patent had expired. Allen quotes from Justice Kagan’s majority opinion:

Overruling precedent is never a small matter. Stare decisis-in

English, the idea that today's Court should stand by yesterday's

decisions-is "a foundation stone of the rule of law." Michigan v. Bay

Mills Indian Community, 572 U.S. 782, 134 S.Ct.2024, 2036, 188

L.Ed.2d 1071 (2014). Application of that doctrine, although "not an

inexorable command," is the "preferred course because it promotes

the evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and contributes to

the actual and perceived integrity of the judicial process." Payne v.

Tennessee, 501 U.S. 808, 827-828, 111 S.Ct. 2597, 115 L.Ed.2d 720

(1991). It also reduces incentives for challenging settled precedents,

saving parties and courts the expense of endless relitigation.

(Brief, ECF No. 2, PageID 18). Although the Court decided to adhere to its own precedent as a

matter of policy (sometimes referred to as horizontal stare decisis), there is no hint that it was

required to do so as a matter of due process; Kimble does not support the proposition for which

Petitioner cites it.

Petitioner also cites Patterson v. McLean Credit Union,491 U.S. 164 (1989)(Brief, ECF

No. 2, PageID 19). In Patterson the Supreme Court declined, on the basis of stare decisis, to

overrule its decision in Runyon v. McCrary, 427 U.S. 160 (1976), interpreting 42 U.S.C. § 1981.

In his majority opinion Justice Kennedy offered the following encomium to stare decisis:

The Court has said often and with great emphasis that “the doctrine

of stare decisis is of fundamental importance to the rule of law.”

Welch v. Texas Dept. of Highways and Public Transportation, 483

U.S. 468, 494, 107 S.Ct. 2941, 2957, 97 L.Ed.2d 389 (1987).

Although we have cautioned that “stare decisis is a principle of

policy and not a mechanical formula of adherence to the latest

decision,” Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 241,

90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970), it is indisputable that

stare decisis is a basic self-governing principle within the Judicial

Branch, which is entrusted with the sensitive and difficult task of

fashioning and preserving a jurisprudential system that is not based

upon “an arbitrary discretion.” The Federalist, No. 78, p. 490 (H.

Lodge ed. 1888) (A. Hamilton). See also Vasquez v. Hillery, 474

U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986) (stare

decisis ensures that “the law will not merely change erratically” and

“permits society to presume that bedrock principles are founded in

the law rather than in the proclivities of individuals”).

491 U.S. at 172. While this is a strong statement of policy (again of horizontal stare decisis), it

nowhere suggests stare decisis is required by the Due Process Clause. To prevail in habeas corpus

on a constitutional claim decided by a state court on the merits, a petitioner must show that the

state court decision is contrary to or an objectively unreasonable application of United States

Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Petitioner’s argument fails at the first stage of

such a demonstration: he has not shown there is any Supreme Court precedent for his basic

proposition that failure to follow precedent is a violation of the Due Process Clause.

Petitioner has not shown that either the trial court or the Fourth District failed to correctly

interpret and apply Turner. After all, the Ohio Supreme Court, if it believed the Fourth District

had misread Turner, had an opportunity to correct any misreading and declined to exercise it. If,

as Allen argues, the Ohio Supreme Court took the Turner case to clear up confusion about the fog

line rule, it surely would have been motivated to accept jurisdiction in this case if the Fourth

District’s decision was so patently a misinterpretation of Turner.

Grounds Two and Three: Ineffective Assistance of Appellate Counsel

In his Second and Third Grounds for Relief, Allen asserts he received ineffective assistance

of appellate counsel when his appellate attorney failed to raise several issues on direct appeal. As

noted above under Ground One, these claims are procedurally defaulted because Allen never filed

an application to reopen his appeal under Ohio R. App. P. 26(B) which is the sole method of raising

such claims in Ohio and his time to do so has long since expired.

Allen asserts his procedural default is excused by his actual innocence4. The controlling

precedent on this point is now the Supreme Court’s decision in McQuiggin v. Perkins, 569 U.S.

383 (2013).

[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup and House, or, as in this case, expiration of the

statute of limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[A] petitioner does not meet the

threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.

S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,

at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the

Schlup standard is “demanding” and seldom met). And in making

an assessment of the kind Schlup envisioned, “the timing of the

[petition]” is a factor bearing on the “reliability of th[e] evidence”

purporting to show actual innocence. Schlup, 513 U. S., at 332, 115

S. Ct. 851, 130 L. Ed. 2d. 808.

McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013). Allen has submitted no new evidence to this

Court of his actual innocence, much less evidence of the quality required by Schlup. The fact that

he has claimed to be innocent from the outset of the case in itself proves nothing and is less than

credible given the recorded conversation between him and the co-defendant during the search.

Ground Four: Denial of Trial by Jury

In his Fourth Ground for Relief, Petitioner asserts he was denied his right to a jury trial by

the trial court’s refusal to allow him to withdraw his no contest plea. He raised this claim as his

4 Allen writes: “Petitioner also asserts his innocence as a claim in this Petition.” However, the claim of actual

innocence as a stand alone claim is nowhere pleaded as a ground for relief in the Petition and the Supreme Court of

the United States has not recognized actual innocence as a stand-alone claim under the Constitution. Herrera v.

Collins, 506 U.S. 390, 408-11 (1993).

First Assignment of Error on direct appeal and the Fourth District decided the trial court had not

abused its discretion in denying the motion to withdraw, applying a nine-factor abuse of discretion

test based on Ohio law. State v. Allen, supra, §§ 13-30.

Although the Petition phrases this Ground for Relief in terms of denial of a right to jury

trial and ineffective assistance of trial counsel, his Brief argues “the denial of the motion to

withdraw plea before sentencing resulted in a decision that was contrary to, or involved an

unreasonable application of clearly established federal law regarding due process clause and

ineffective counsel.” (ECF No. 2, PageID 27).

Petitioner cites no Supreme Court authority against which the Fourth District’s decision

can be evaluated. 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).

We cannot review the Fourth District’s abuse of discretion ruling because abuse of discretion is

not a denial of due process. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). There is no due process

right to withdraw a no contest plea which has been entered knowingly and voluntarily. In sum,

Petitioner’s Ground Four is without merit.

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.

June 2, 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. #

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