Pokhrel v. Ohio Attorney General

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

PUSPA POKHREL,

Petitioner, : Case No. 2:25-cv-181

-vs - District Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

OHIO ATTORNEY GENERAL, et al.,

:

Respondents.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 was brought by Petitioner Puspa Pokhrel

with the assistance of counsel to obtain relief from his conviction in the Licking County Municipal

Court on one count of sexual imposition (Petition, ECF No. 1). Named as Respondents are Ohio

Attorney General Dave Yost1 and The Honorable David N. Stansbury, Judge of the Licking

County Municipal Court, who tried this case and imposed sentence. Id.

Upon filing, the case was assigned randomly to District Judge Algenon L. Marbley and to

Magistrate Judge Karen L. Litkovitz. Having conducted the preliminary review required by Rule

4 of the Rules Governing § 2254 Cases (the “Habeas Rules”), Judge Litkovitz ordered that an

answer and the state court record be filed (ECF No.2). Accepting responsibility to defend the case,

1 Yost’s address in the caption is listed as the “Roads Office Tower.” The building is actually named after The

Honorable James Rhodes, former Governor of the State of Ohio, who, among his many sagacious acts, in 1977

appointed the undersigned as a Judge of the Dayton Municipal Court.

Judge Stansbury caused the entry of appearance of counsel (ECF Nos. 3, 6, 8). The State Court

Record (ECF No. 7) and a Return of Writ (ECF No. 8) were then filed. Judge Litkovitz set a

deadline for Petitioner to file a reply/traverse of twenty-one days after the Return was filed (ECF

No. 2, PageID 42). That date was June 26, 2025, which has passed without a reply having been

filed. The case is thus ripe for decision.

Pursuant to Amended General Order 22-05, the Magistrate Judge reference in the case was

recently transferred to the undersigned to help balance the Magistrate Judge workload in the

District (ECF No. 9).

Litigation History

A Complaint was filed in the Licking County Municipal Court on March 27, 2023,

charging Petitioner with one count of sexual imposition in violation of Ohio Revised Code §

2907.06(A)(1) allegedly committed on March 24, 2023 (ECF No. 7-1, PageID 55). The case was

tried to a jury on December 7, 2023 (Transcript, State Court Record, ECF No. 7-9, PageID 69, et

seq.) Petitioner was convicted as charged and sentenced to sixty days incarceration with forty days

suspended, placed on probation for one year, and classified as a sex offender required to register

by statute (ECF No. 7-10, PageID 297).

Represented by new counsel, Pokhrel appealed to the Ohio Fifth District Court of Appeals

(ECF No. 7-14, PageID 302). That court affirmed. State v. Pokhrel, 2024-Ohio-3073 (Ohio App.

5th Dist. Aug. 12, 2024)(copy at ECF No. 7-20, PageID 379). Petitioner appealed further to the

Ohio Supreme Court, but that court declined to exercise appellate jurisdiction (Entry, ECF No. 7-

25, PageID 423). The trial court has stayed execution of sentence pending the outcome of this

habeas corpus case (ECF No. 7-23, PageID 416).

Petitioner pleads the following grounds for relief:

Ground 1—Ineffective Assistance of [Trial] Counsel under the

Sixth and Fourteenth Amendments

37. Petitioner avers that his trial counsel provided ineffective

assistance of counsel under the Sixth and Fourteenth Amendments

and Strickland v. Washington in the following ways:

a. Failure to object to the prosecutor’s improper closing arguments

urging the jury to consider improper evidence (the alleged

victim’s inadmissible prior written statement).

b. Failure to request a limiting instruction on the proper use of

alleged victim’s prior written statement(s).

38. Petitioner further avers that the Fifth District Court of Appeals

applied an erroneously high “but for” standard of prejudice that is

contrary to the Supreme Court decision in Strickland v. Washington

and clearly established federal law.

Ground 2—Ohio’s Appellate Review Standards Violate Due

Process and Equal Protection

39. Petitioner avers that Ohio’s application of its harmless error

standard, which (as applied to Petitioner’s case) arbitrarily

differentiates between constitutional and nonconstitutional errors, is

contrary to federal law, and violates Equal Protection and Due

Process under the Fourteenth Amendment.

(Petition, ECF No. 1, PageID 12-13).

The Return of Writ consists of written admissions and denials as is customary with answers

in civil cases2. It then pleads the following affirmative defenses: Res judicata (second defense),

procedural default (third defense), the state court decisions were based on independent state law

grounds, preventing federal review (fourth defense), harmless error (fifth defense), and failure to

state a claim upon which relief may be granted (sixth defense)(ECF No. 8, PageID 426-27).

2 The Ohio Attorney General usually defends habeas corpus cases in this Court and the Return usually consists of a

general denial with affirmative defenses separately pleaded. The form used here is completely acceptable.

Analysis

Standard for Evaluating State Court Decisions

Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,

110 Stat. 1214)(the "AEDPA"),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.

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief Petitioner asserts he received ineffective assistance of trial

counsel when his trial attorney failed to object to the prosecutor’s “improper closing arguments

urging the jury to consider improper evidence (the alleged victim’s inadmissible prior written

statement)” and failed “to request a limiting instruction on the proper use of alleged victim’s prior

written statement(s).”

This claim was Petitioner’s Fourth Assignment of Error on direct appeal and the Fifth

District decided it as follows:

{¶67} In his fourth assignment of error, appellant argues that his

trial counsel was ineffective for failing to object to the prosecutor's

closing argument, in failing to request a jury instruction on the

culpable mental state of purpose, and in failing to request a limiting

instruction on the use of I.H.’s prior written statement.

{¶68} To prevail on a Sixth Amendment claim of ineffective

assistance of counsel, a defendant must meet the now

familiar Strickland standard. To show deficiency, a defendant must

show (1) that his trial counsel's representation fell below an

objective standard of reasonableness and (2) that but for counsel's

unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984); State

v. Bradley, 42 Ohio St.3d 136 (1989).

Failure to object to closing argument

{¶69} During closing argument, the state argued:

He has been in the country he said for sixteen years

and he admitted that if somebody grabbed someone's

breast it would be offensive. I am submitting to you

the testimony that you heard along with the two

exhibits that you will have with you will help you in

reaching your verdict.

{¶70} Tr. 196.

{¶71} While trial counsel objected to the admission of the prior

statement of I.H. [the complaining witness], he did not object to the

state's closing argument. We have found that the admission of the

prior statement of I.H. for the jury's consideration was error. So, too,

the state's closing argument referring to the prior statement was

error.

{¶72} However, we find that the results of the trial would not have

been different. The jury was instructed that the evidence does not

include the complaint, opening statements and closing arguments of

counsel. Tr. 205.

Limiting instruction on jury's use of I.H.'s prior statement

{¶77} Appellant's trial counsel objected to the submission to the jury

of I.H.’s prior statement but failed to request a limiting instruction

on its use by the jury.

{¶78} We find that while a limiting instruction would have been

appropriate, given the extra comments made in the statement that

the wife knew he had done this before, it was reasonable trial

strategy not to call attention to the contents of the statement.

{¶79} Trial counsel effectively argued to the jury that I.H.’s prior

statement was not consistent with her trial testimony.

{¶80} We find that the outcome of the trial would not have been

different if appellant's trial counsel had objected to the closing

argument of the state or requested the jury instructions3 he now

argues were relevant.

{¶81} The fourth assignment of error is overruled.

Pokhrel, supra.

As recognized by the Fifth District, the governing standard for ineffective assistance of

counsel claims is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)

3 On appeal Pokhrel also complained of counsel’s failure to request an instruction on the requisite mental state. That

claim is not brought forward in habeas, but it explains the use of the plural here in the Fifth District’s opinion. See

¶ 67.

counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that

there is a reasonable probability that, but for counsel’s error, the result of the proceeding would

have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.

Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of

a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,

379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

Pokhrel argues the Fifth District applied an incorrect standard for assessing prejudice under

Strickland. He argues:

31. The Fifth District applied an erroneously high “but for” test that

required a showing that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Pokhrel, at ¶68,

72 (emphasis added).

32. As Petitioner argued, federal courts have specifically rejected

this heightened standard. In support of this conclusion, Petitioner

cited Vasquez v. Bradshaw, 345 Fed. Appx. 104, 112 (6th Cir.

2009); Spaulding v. Larson, 704 Fed. Appx. 475, 480 (6th Cir. 2017)

(“the Michigan Court of Appeals never stated the Strickland

standard correctly, and thrice stated it incorrectly.”); and Green v.

Lee, 964 F. Supp. 2d 237, (E.D.N.Y. 2013) (“the County Court

applied an overly demanding standard of prejudice, essentially

rejecting Green’s claim of ineffective assistance of counsel because

Green could not prove to a certainty that he would have been totally

convicted ‘but for’ the trial counsel’s deficient performance.”).

Memorandum in Support of Jurisdiction, p. 5-6, n.3.

(Petition, ECF No. 1, PageID 11).

Petitioner did indeed present this claim about the required standard for proving prejudice

to the Ohio Supreme Court as shown by his quotation from his Memorandum in Support of

Jurisdiction. But the Ohio Supreme Court did not accept jurisdiction and so did not rule on this

claim about the standard of proving prejudice under Strickland. In arguing his ineffective

assistance of trial counsel claim in his Brief on Appeal to the Fifth District, counsel wrote: “If the

defendant succeeds in making this showing [of deficient performance], the court must determine

"whether there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt." (Appellant’s Brief, ECF No. 7-17, PageID 335 quoting

Strickland, 466 U.S. at 695). None of the authority cited in the Memorandum in Support of

Jurisdiction was cirted to the Fifth District. Thus to the extent Petitioner is making a constitutional

claim that he was entitled to the lower standard for proving prejudice, he has procedurally defaulted

that claim by failing to fairly present it to the Fifth District. See Hand v. Houk, 871 F.3d 390 (6th

Cir. 2017). Moreover, none of the authority he cites is precedential, being either unpublished or

from another circuit.

Applying the correct standard, the Fifth District decided Petitioner had not shown prejudice

from either of trial counsel’s omissions of which Petitioner complains here. Objecting to an

opponent’s closing argument can easily be considered “bad form” by a jury and also call attention

to the content of what is objected to. The Magistrate Judge finds that decision is an objectively

reasonable application of Strickland. Therefore Petitioner’s First Ground for Relief should be

dismissed.

Ground Two: Denial of Equal Protection and Due Process by Applying Different Standards

for Evaluating Harmless Error

In his Second Ground for Relief, Petitioner argues the State violated his rights to Equal

Protection and Due Process by using different standards to evaluate the harmlessness of error

depending upon whether the error was constitutional or nonconstitutional.

In his Third Assignment of Error on direct appeal, Petitioner argued it was error for the

trial court to admit the complaining witness’s handwritten statement into evidence. The Fifth

District agreed, but found the error harmless, It wrote:

{¶52} In his third assignment of error, appellant claims that the trial

court erred when it admitted I.H.’s hand written statement as State's

Exhibit 1. He further argues that the state used the statement during

closing argument as substantive evidence that appellant “grabbed

her boobs” when she made no such statement at trial.

{¶53} The hand-written statement of I.H. was first discussed during

the cross examination of I.H.:

Q: Okay, and then did you write then we got out and took

the dishes back washing them and then he was touching my

apron and saying what is that on your shirt and then I said

it is food and then he was acting like he was wiping it off

and then grabbed my boobs. Is that what you wrote.

A: Yes, that is what I wrote.

{¶54} Tr. 118.

{¶55} At the close of the evidence, the state offered the hand-written

statement as evidence under the theory of rebutting the presumption

that she was not truthful. The appellant objected stating that it was

hearsay. Tr. 162.

{¶56} During the closing argument, the state used the hand-written

statement as substantive evidence:

... [He] admitted that if somebody grabbed someone's

breast it would be offensive. I am submitting to you the

testimony that you heard along with the two exhibits that

you will have with you will help you in reaching your

verdict.

{¶57} Tr. 196.

{¶58} It was error to admit the hand-written statement used for

impeachment purposes for the jury's consideration. It was also error

for the state to use it as substantive evidence during closing

argument.

{¶59} The state cites Evid.R. 801(D)(1)(b) for the proposition that

the statement was admissible to rebut a recent fabrication.

{¶60} Evid.R. 801(D)(1)(b) states in part:

A statement is not hearsay if: consistent with declarant's

testimony and is offered to rebut an express or implied

charge against declarant of recent fabrication or improper

influence or motive.

{¶61} Evid.R. 801(D)(1)(b) is not applicable here. I.H. did not

testify that appellant grabbed her boobs. She testified that appellant

touched them with his finger and glided his hand across her breast

when wiping food off her apron.

{¶62} Prior inconsistent statements are hearsay, admissible only for

impeachment purposes. State v. Robledo, 2020-Ohio-5342, ¶ 32

(5th Dist.) citing State v. McKelton, 2016-Ohio-5735, ¶ 128.

{¶63} But the admission of hearsay evidence is harmless if there is

substantial other evidence to support the guilty verdict. State v.

Webb, 1994-Ohio-425, (holding that nonconstitutional error

is harmless if there is substantial other evidence to support the guilty

verdict).

{¶64} After reviewing the record including the testimony of I.H. and

the testimony of appellant, we find that there was more than

sufficient evidence to support appellant's conviction for sexual

imposition.

{¶65} Appellant admitted to touching I.H.’s breast and buttocks

inappropriately at least three times. The issue before the jury was

whether it was done for sexual gratification, not whether the

touching occurred. The admission of the prior written statement of

I.H. was harmless error given the substantial other evidence to

support the verdict.

{¶66} Appellant's third assignment of error is overruled.

Pokhrel, supra.

As can be seen, the Fifth District applied the harmless error standard enunciated by the

Ohio Supreme Court in State v. Webb, 70 Ohio St. 3d 325 (1994), where the court held

nonconstitutional error was harmless if there was substantial other evidence to support the verdict.

Petitioner claims applying this standard denied him equal protection of the laws and due process

of law because a different standard is applied to evaluate the harmlessness of constitutional error.

As Petitioner notes, he raised this claim in Proposition of Law No. 1 in the Ohio Supreme

Court on direct appeal (Petition, ECF No. 1, PageID 9-11, citing Memorandum in Support of

Jurisdiction). However, the Ohio Supreme Court declined to exercise appellate jurisdiction in this

case and thus did not render an opinion on the merits of this constitutional claim.

Petitioner did not present this issue as a constitutional claim to the Fifth District. Instead

he argued that the statement was excludable hearsay and

When a defendant objects to an erroneous evidentiary ruling, the

State "bears the burden of demonstrating that the error did not affect

the substantial rights of the defendant” State v. West, 168 Ohio St.

3d 605, 2022-Ohio-1556, 200 N.E.3d 1048, 1123. The State cannot

meet this high burden for the following reasons.

(Appellant’s Brief, ECF No. 7-17, PageID 333). There is no suggestion in the Brief that applying

the harmless error standard enunciated in Webb would somehow deny Petitioner equal protection

or due process nor is any constitutional authority cited for requiring the same standard for both

constitutional and nonconstitutional error. Petitioner’s Second Ground for Relief is barred by his

procedural default in presenting it to the Fifth District and it should therefore be dismissed.

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.

July 18, 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.