Tanner v. Haughey

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RAYMOND TANNER,

Petitioner,

Case No. 1:24-cv-114

v.

JUDGE DOUGLAS R. COLE

THE HONORABLE DANIEL E. Magistrate Judge Merz

HAUGHEY,

Respondent.

ORDER

Before the Court is Magistrate Judge Merz’s April 30, 2025, Report and

Recommendation (R&R, Doc. 17), which recommends that the Court dismiss

Petitioner Raymond Tanner’s Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2254 (Doc. 1) because the state appellate court’s merits decision did not

unreasonably apply clearly established Supreme Court precedent and was not based

on an unreasonable determination of the facts. For the reasons stated more fully

below, and especially given the lack of objections, the Court ADOPTS the R&R (Doc.

17), and DISMISSES Tanner’s Petition (Doc. 1) WITH PREJUDICE.

To start, the R&R advised Tanner that failing to object within fourteen days

could result in a forfeiture of his right to the Court’s de novo review of the R&R as

well as his right to appeal this decision. (Doc. 17, #823); see Thomas v. Arn, 474 U.S.

140, 152–53 (1985); Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (“[F]ail[ure]

to file an objection to the magistrate judge’s R & R … [constitutes a] forfeiture.”

(emphasis omitted)); 28 U.S.C. § 636(b)(1)(C). No party objected to the R&R within

that fourteen-day window.

But the advisory committee notes to Federal Rule of Civil Procedure 72(b)

suggest that the Court still must “satisfy itself that there is no clear error on the face

of the record in order to accept the recommendation.” Redmon v. Noel, No. 1:21-cv-

445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (collecting cases). Consistent

with that charge, the Court has reviewed the R&R and has determined that it does

not contain any “clear error on [its] face.” Fed. R. Civ. P. 72(b) (advisory committee

notes).

This habeas petition arises from a tragic set of facts. In 1990, Tanner murdered

his wife by decapitating her. (State Ct. R., Doc. 15, #750). The state court found him

not guilty by reason of insanity on account of his schizophrenia diagnosis. (Id. at

#429). The state court further declared him a mentally ill person subject to court order

under Ohio Revised Code §§ 2945.40 and 5122.01. (Id. at #430). Tanner was therefore

committed to the Dayton Mental Health Center Forensic Unit for treatment. (Id.).

From 1990 to 1996, Tanner remained committed but was periodically

transferred to less restrictive facilities. State v. Tanner, 2022-Ohio-4224, ¶ 4 (12th

Dist.). During that time, his diagnosis frequently changed, as treating psychologists

and psychiatrists could not agree on a diagnosis. Id. That said, “major depressive

disorder, single episode, severe with psychotic features” has been the “most accepted”

diagnosis since 1996. Id. In 1996, Tanner was granted conditional release and re-

entered the community. Id. ¶ 5.

Since his release, Tanner has appeared before the state trial court every two

years for periodic reviews of his release status and conditions of release. Id. Although

the trial court has, over the years, decreased Tanner’s conditional release

requirements, it has repeatedly concluded that Tanner remains a mentally ill person

subject to court order. Id. At this point, Tanner is required only to meet with a mental

health professional once every four months. Id.

But Tanner believes the state trial court should terminate his commitment

order altogether. Three psychologists’ opinions are relevant to that belief. Start with

Dr. Myron Fridman—a designee of the Department of Mental Health and Addiction

and the forensic monitor for the Butler County Mental Health Board. Id. ¶ 6. In 2020,

he submitted a report recommending that the state trial court terminate Tanner’s

commitment. Id. ¶ 7. Dr. Jennifer O’Donnell—the director of forensic services at the

Forensic Evaluation Service Center—concurred in that recommendation. Id. ¶¶ 6, 8.

Both agreed that Tanner no longer suffers from a severe mental illness or defect. Id.

¶¶ 7–8. A third court-retained psychologist, Dr. Terrance Kukor, independently

analyzed Tanner, concluding that Tanner’s “mental illness [was] in a state of

remission” and would likely stay that way even if the state court altered the

commitment conditions. Id. ¶¶ 9–10.

All three psychologists testified to those conclusions at Tanner’s 2021 biennial

review hearing. Id. ¶ 11.1 Ultimately, though, the trial court found “clear and

convincing evidence that Tanner remains a mentally ill person subject to court order.”

1 The Twelfth District’s opinion affirming the trial court’s decision not to terminate Tanner’s

commitment order thoroughly recounts the testimonies. Tanner, 2022-Ohio-4224, ¶¶ 11–26.

Id. ¶ 27. While the trial court considered the psychologists’ reports and testimonies,

it concluded that “the entire history of Tanner’s case including testimony and reports

entered into evidence at prior commitment review hearings,” plus an angry outburst

Tanner had during Dr. Kukor’s cross-examination, indicated that Tanner was not

ready for release from commitment. Id. (quoting State v. Tanner, 2019-Ohio-1193,

¶ 26 (12th Dist.)). Specifically, the trial 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 [murder] 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.” Id.

The Ohio Twelfth District Court of Appeals affirmed, concluding that the state

trial court’s determination did not violate Tanner’s due process rights. Id. ¶¶ 50–51.

And the Ohio Supreme Court declined to exercise jurisdiction over Tanner’s appeal.

State v. Tanner, 204 N.E.3d 571 (Ohio 2023) (Table). So Tanner turned to the federal

courts and filed this habeas petition, asserting one ground for relief: that he is “no

longer mentally ill and has been denied release from commitment under [the] Due

Process Clause of the 14th Amend., U.S. Constitution.” (Doc. 1, #3).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “erects a

formidable barrier to federal habeas relief” for individuals like Tanner. White v.

Plappert, 131 F.4th 465, 476 (6th Cir. 2025) (quoting Burt v. Titlow, 571 U.S. 12, 19

(2013)). That’s because the state court denied his claim on the merits, which means

AEDPA’s “relitigation bar” applies. Id. And clearing that bar is no easy task: Tanner

must prove either that the state court “contravened or unreasonably applied clearly

established Supreme Court precedent,” id. (citing 28 U.S.C. § 2254(d)(1)), or that the

state court based its decision “on an unreasonable determination of the facts in light

of the evidence presented,” 28 U.S.C. § 2254(d)(2). Under the latter option—

§ 2254(d)(2)—federal habeas courts must “accord the state trial court substantial

deference.” Brumfield v. Cain, 576 U.S. 305, 314 (2015).

After reviewing the R&R, the Court sees no error, much less clear error, in its

determination that Tanner has not made the necessary showing. For one, Tanner has

made no argument that the Twelfth District’s decision was an objectively

unreasonable application of, for example, Jones v. United States, 463 U.S. 354 (1983),

or Foucha v. Louisiana, 504 U.S. 71 (1992)—cases on which Tanner relied in his state-

court appeal. (Doc. 17, #820–22).2

For another, if Tanner meant to argue that the state court made unreasonable

factual determinations (the petition is unclear about whether Tanner seeks relief

under § 2254(d)(1) or (d)(2)), he likewise fails to make that showing. To be sure,

Tanner’s petition focuses primarily on the three psychologists’ opinions that he is no

longer mentally ill and that his commitment should be terminated. (Doc. 1, #2). But

as the R&R explains, in finding that Tanner remains a mentally ill person subject to

court order, the state trial judge considered the psychologists’ testimonies. (Doc. 17,

#822). He concluded that those testimonies both (1) conflicted on Tanner’s diagnosis

2 Tanner didn’t bother filing a reply to Respondent’s Return of Writ (Doc. 12), which, as the

Magistrate Judge notes, “would have been a principal opportunity to show contrary Supreme

Court precedent.” (Doc. 17, #822).

and the likelihood of Tanner’s mental illness recurring, and (2) suggested that Tanner

was unlikely to engage in voluntary treatment if not under court order. (/d.). Plus,

the trial judge “was able to observe personally Tanner’s erratic behavior.” (/d.). Given

the significant deference a federal habeas court owes the state trial court under

§ 2254(d)(2), the Court cannot conclude that the state trial judge’s determination or

the Twelfth District’s affirmance were “unreasonable.” And Tanner offers no reason

to conclude otherwise.

Accordingly, the Court ADOPTS the R&R (Doc. 17), and DISMISSES WITH

PREJUDICE Tanner’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254

(Doc. 1). The Court also DENIES Tanner a certificate of appealability under 28

U.S.C. § 2253(c). Finally, the Court DIRECTS the Clerk to enter judgment and

TERMINATE this case on its docket.

SO ORDERED.

June 16, 2025

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT\JUDGE