The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALEX BUGNO, ) Case No. 4:24-cv-348
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) James E. Grimes Jr.
ANGELA HUNSINGER-STUFF, )
Warden, )
)
Respondent. )
)
OPINION AND ORDER
Petitioner Alex Bugno, through counsel, objects to the Magistrate Judge’s Report
and Recommendation that the Court dismiss Petitioner’s habeas petition. For the
reasons that follow, the Court OVERRULES Petitioner’s objections, ADOPTS the
Magistrate Judge’s Report and Recommendation, and DENIES the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Magistrate Judge set forth the factual and procedural history of this case
in his Report and Recommendation. (ECF No. 11, PageID #2669–91.) In short, on
April 19, 2018, a grand jury indicted Mr. Bugno on thirty-four felony counts: six
counts of pandering obscenity involving a minor in violation of Section
2907.321(A)(5)(c) of the Ohio Revised Code, fourteen counts of compelling prostitution
in violation of Section 2907.21(A)(2)(a), and fourteen counts of importuning in
violation of Section 2907.21(B)(2). (ECF No. 8-1, PageID #100–10). The grand jury
charged that Mr. Bugno solicited and recorded by video improper sexual conduct with
three minors in exchange for money. (ECF No. 8-1, PageID #117–27.)
A. Conviction in State Court
On April 24, 2018, Petitioner entered a plea of not guilty to all counts. (ECF
No. 8-1, PageID #112.) On June 19, 2018, the State amended the indictment to
correct citations to the correct in the caption of the indictment the list of the
provisions of the Ohio Revised Code that Mr. Bugno allegedly violated. (Id., PageID
#114.) Later, a superseding indictment added an additional charge of pandering
obscenity in Count 35. (Id., PageID #127.) Petitioner entered a plea of not guilty to
the superseding indictment. (Id., PageID #129.)
On February 25, 2019, Petitioner filed a motion for relief from improper
joinder, asking the State trial court to sever Counts One through Six from the
remaining counts, arguing that joinder was improper because there were no
allegations contained within the indictment, bill of particulars, or discovery
connecting the two juveniles involved in Counts Seven through Thirty-Four with
Counts One through Six. (Id., PageID #131–33.) The State opposed Petitioner’s
motion. (Id., PageID #148–57.) In May 2019, the State trial court denied Petitioner’s
motion for relief from improper joinder, determining that the joinder of Counts One
through Six with Counts Seven through Thirty-Five would not unfairly prejudice
Petitioner “since the evidence as to each count [was] simple and direct.” (Id., PageID
#159–63.)
Petitioner also moved to suppress evidence seized pursuant to warrants used
to search three locations. (Id., PageID #596–671.) Petitioner made two main
arguments: (1) the search warrants and affidavits supporting them lacked probable
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cause; and (2) they failed to provide legal authorization to search certain electronic
devices. (Id., PageID #603-04.) On April 18, 2019, the State trial court held a
suppression hearing. (Id., PageID #673–92.) On July 1, 2019, the State trial court
denied the motion to suppress. (Id., PageID #722–27.)
On December 23, 2019, Petitioner renewed his motion for relief from improper
joinder, arguing that expert analysis conducted on the computer files supporting the
charges in Counts One through Six rendered the evidence neither simple nor direct.
(Id., PageID #165.) Petitioner argued again that joinder of Counts One through Six
with the remaining counts would confuse the jury and deny his rights under the Fifth
and Fourteenth Amendments. (Id., PageID #167.) On January 7, 2020 the State
agreed to severance of Counts One through Six from Counts Seven through Thirty-
Five. (Id., PageID #178.) This time, the State trial court granted Petitioner’s motion
to sever Counts One through Six from Counts Seven through Thirty-Five. (Id.,
PageID #181.)
In January 2020, the State moved to amend the superseding indictment to
include the word “knowingly” in Counts Seven through Twenty (which charged
compelling prostitution), arguing that the original omission of the word was a
typographical error. (Id., PageID #183.) Over Petitioner’s objections, the State trial
court granted the motion. (Id., PageID #202–16.) Additionally, Petitioner moved for
relief from the improper joinder of Count Thirty-Five, arguing that the State failed
to contact the alleged victim involved in Count 35 before identifying the individual as
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an alleged victim. (Id., PageID #187–93.) The State trial court denied this motion.
(Id., PageID #220.)
On January 24, 2020, a jury convicted Petitioner on fourteen counts of
compelling prostitution and one count of pandering obscenity involving a minor. (Id.,
PageID #250–54.) On January 31, 2020, Petitioner filed a motion for judgment of
acquittal or, in the alternative, for a new trial. (Id., PageID #222.) Petitioner argued
that he was entitled to an acquittal because the State “failed to delineate separate
acts or occurrences to support each Count of Compelling Prostitution” and “failed to
produce any evidence that there was an obscene performance as defined under Ohio
law” with respect to Count 35. (Id., PageID #222.) The State trial court denied
Petitioner’s motion. (Id., PageID #250.) On February 5, 2020, the State trial court
sentenced Petitioner to an aggregate term of seventeen years of imprisonment. (Id.,
PageID #250–54.)
B. Direct Appeal
On March 3, 2020, Petitioner timely appealed his conviction. (Id., PageID
#262–63.) Petitioner raised seven assignments of error. (Id., PageID #275–335.) As
relevant to his objection, Petitioner argued that the trial court “erred in denying [his]
motion to suppress as it related to the search and seizure of items at the E. Indianola
address and the computer.” (Id., PageID #297–311.) Also, he challenged the
availability of the good-faith exception to the exclusionary rule where the warrant did
not command the seizure of specified property.”
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On June 9, 2020, the State appellate court overruled Petitioner’s assignments
of error and affirmed the State trial court’s judgment. (Id., PageID #379–402.) After
the appellate court’s ruling, Petitioner timely appealed to the Ohio Supreme Court.
(Id., PageID #404–24.) In his memorandum in support of jurisdiction, he asserted
two propositions of law: (1) search warrants that fail to include command sections
authorizing the seizure of particular items are facially defective and, therefore,
require suppression of any evidence seized; and (2) the good faith exception to the
exclusionary rule does not apply in a case where the search warrant for a computer
is facially deficient based on lack of a command to seize property and is so lacking in
particularity that, on its face, it violates the Fourth Amendment. (Id., PageID #412
& #418.) On September 27, 2022, the Ohio Supreme Court declined to exercise
jurisdiction. (Id., PageID #442.) Subsequently, in December 2022, Petitioner filed a
petition for writ of certiorari to the Supreme Court of the United States, raising the
same propositions as in his appeal to the Ohio Supreme Court. (Id., PageID #444–74;
ECF No. 11, PageID #2678.) In February 2023, the United States Supreme Court
denied further review. (ECF No. 11, PageID #2678.)
C. Post-Conviction Motions
On February 27, 2024, Petitioner filed a motion requesting that the State trial
court declare his judgment of conviction void and grant him a new trial or, in the
alternative, grant him leave to pursue discovery “to more fully develop the factual
basis demonstrating the constitutional violations that render his conviction and
sentence void or voidable.” (ECF No. 8-1, PageID #506–33.) In November 2024, the
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State trial court denied Petitioner’s post-conviction petition as untimely, and
Petitioner appealed that ruling. See Ohio v. Bugno, Mahoning C.P. No. 18 CR 425
(November 20, 2024).
D. Federal Habeas Petition
On February 25, 2024, Mr. Bugno, filed a petition for a writ of habeas corpus
asserting various grounds for relief. (ECF No. 1.) In his memorandum in support of
his petition, Petitioner raised three grounds for relief. (ECF. No. 1-1.) First,
Petitioner argues that the denial of his motion to suppress, relating to the search and
seizure of items at the East Indianola address and his computer, constituted a
“foundational error.” (Id., PageID #28.) Specifically, Petitioner argues that two of
the four warrants lacked a command section that explicitly empowered law
enforcement officials to seize items, thereby contravening the particularity
requirement of the Fourth Amendment. (Id.)
Second, Petitioner argues that the prosecutor engaged in prosecutorial
misconduct during trial and closing arguments, thereby depriving Petitioner of his
right to a fair trial. (Id., PageID #45.) Third, Petitioner argues that the State trial
court erred by allowing evidence during the State’s case-in-chief regarding
Petitioner’s pre-arrest silence and abused its discretion in failing to grant a mistrial
based on the admission of that evidence. (Id., PageID #51.)
On January 21, 2025, the Magistrate Judge issued a Report and
Recommendation that the Court deny the petition because Petitioner’s first ground
for relief is not cognizable and lacks merit in any event. (ECF No. 11, PageID
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#2685–89.) As to Grounds Two and Three, the Magistrate Judge determined that
each was procedurally defaulted because Petitioner failed to present them to the Ohio
Supreme Court. (Id., PageID #2689.) On February 4, 2025, Petitioner filed objections
to the Magistrate Judge’s Report and Recommendation. (ECF No. 12, PageID #2692–
701.) Specifically, Petitioner raises three objections. (Id., PageID #2694.) With
respect to the first ground for relief, the Fourth Amendment claim, Petitioner objects
that he did not have a full and fair opportunity to litigate his claim in the State courts,
making his claim cognizable in habeas. (Id.) Relatedly, his second objection argues
that his traverse did not introduce a new claim but merely clarified the structural
problem he contends foreclosed review of the issue in the State courts. (Id.) Finally,
he requests discovery and a hearing to develop the record in support of this ground
for relief. (Id.)
STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition, by a judge of the court,” 28
U.S.C. § 636(b)(1)(B), of a petition for a writ of habeas corpus, which the Court does
by local rule, see Local Rule 72.2. When reviewing a report and recommendation, if
a party objects within the allotted time, the district court is required to “make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); United States
v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). “Objections must be specific, not
general” and should direct the Court’s attention to a particular dispute. Howard v.
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Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing of
objections to a magistrate’s report enables the district judge to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).
Upon review, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). Importantly, the Court’s job is not to conduct a free-wheeling
examination of the entire report and recommendation, but only to address any
specific objections that a party has advanced to some identified portion of it.
Accordingly, it is the Court’s task in this matter to review the Magistrate Judge’s
report and recommendation de novo, based on the specific objections the party raises.
ANALYSIS
Where a petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.
§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the
State court proceedings resulting in the deprivation of the petitioner’s liberty. See,
e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388
(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)); Skaggs v.
Parker, 235 F.3d 261, 266 (6th Cir. 2000).
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
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with respect to any claim that was adjudicated on the merits in State
court proceedings 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.
“With the AEDPA, Congress limited the source of law for habeas relief to cases
decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000). Under Section
2254(d)(1), an unreasonable application of federal law is different from an incorrect
application of federal law. See Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Williams, 529 U.S. at 410). A State court adjudication involves “an unreasonable
application of” Supreme Court precedent under Section 2254(d)(1) in one of two ways:
(if) if the State court identifies the correct governing legal rule from the Supreme
Court’s cases but unreasonably applies it to the facts of the particular State prisoner’s
case; or (2) if the State court either unreasonably extends a legal principle from the
Court’s precedent to a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply. See Williams, 529
U.S. at 407.
I. Substantive Objections
Petitioner objects to the Magistrate Judge’s Report and Recommendation
regarding the challenges to the alleged facial defects in the search warrants at issue.
(ECF No. 12, PageID #2694–97.) He argues that his Fourth Amendment claim
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survives the bar of Stone v. Powell, 428 U.S. 465 (1976). (Id., PageID #2695.)
Petitioner concedes that he received an opportunity to present his Fourth
Amendment claim but argues that the State courts only addressed it superficially
and did not resolve the fundamental error. (Id., PageID #2696.)
Fourth Amendment claims relating to alleged warrant defects are barred from
federal habeas corpus review where a petitioner “had available [an] avenue . . . to
present his claim to the state courts.” Good v. Berguis, 729 F.3d 636, 639 (6th Cir.
2013) (citing Powell, 428 U.S. at 494). In Powell, the Supreme Court held that, “where
the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief
on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” Powell, 428 U.S. at 494. To evade this clearly established
legal principle, Petitioner instead argues that the adequacy of available State court
review mechanisms effectively foreclosed review or, more accurately, only permitted
superficial review. (ECF No. 12, PageID #2694–97.) Specifically, Petitioner argues
that “the Ohio courts misapplied federal constitutional standards by upholding a
warrant that failed to expressly incorporate the affidavit as required by Groh v.
Ramirez,” 540 U.S. 551, 557–58 (2004). (ECF No. 12, PageID# 2697.) But Petitioner’s
quarrel lies with the merits of the State courts’ adjudication. “An argument directed
solely at the correctness of the state court decision ‘goes not to the fullness and
fairness of his opportunity to litigate the claim[s], but to the correctness of the state
court resolution, an issue which Stone v. Powell makes irrelevant.’” Brown v.
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Berghuis, 638 F. Supp. 2d 795, 812–13 (E.D. Mich. 2009) (quoting Siripongs v.
Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994)). “[A]n erroneous determination of a
habeas petitioner’s Fourth Amendment claim does not overcome the Stone v. Powell
bar.” Id. (quoting Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986)).
Under the law of this Circuit, “the Powell ‘opportunity for full and fair
consideration’ means an available avenue for the prisoner to present his claims to the
state courts, not an inquiry into the adequacy of the procedure actually used to resolve
that particular claim.” Good, 729 F.3d at 639. In the absence of a sham proceeding,
which Petitioner has not alleged and the record does not support in any event, there
is no need to question the rigor of the State courts’ proceedings. Id. Accordingly,
Petitioner’s dissatisfaction with the State courts’ adjudication does not equate to lack
of “full and fair” review. Powell, 428 U.S. at 494. As the record shows, Petitioner
raised his Fourth Amendment argument at the State trial court level, to the State
appellate level, and at the Ohio Supreme Court, though it declined review. (ECF
No. 8-1, PageID #297–311, #596–671 & #408.) He had ample opportunity to raise,
develop, and pursue the constitutional issue at the heart of his habeas petition and
objections. Accordingly, Petitioner has received “full and fair” review, therefore, his
Fourth Amendment claim is not cognizable on federal habeas review. Stone, 428 U.S.
at 494. For these reasons, the Court OVERRULES Petitioner’s objection.
II. Procedural Objections
Although the Magistrate Judge’s Report and Recommendation determined
that the Powell bar disposed of Petitioner’s claim, he also identified a procedural
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problem with the argument. (ECF No. 11, PageID #2687.) According to the
Magistrate Judge, Petitioner failed to raise “discernable” arguments regarding the
incorporation doctrine and good faith exception in relation to the alleged warrant
defects until he filed his traverse. (ECF No. 11, PageID #2687.) At that point, the
issue is waived. (Id.) Petitioner objects to this recommendation. (ECF No. 12,
PageID #2697–99.) Because Petitioner’s Fourth Amendment argument runs into the
Powell bar, the Court need not resolve this objection and, therefore, OVERRULES
it AS MOOT.
Additionally, Petitioner objects that he should be afforded the opportunity to
conduct additional discovery, specifically regarding the warrant, and develop the
record through a hearing. Issues regarding the lawfulness of warrants are typically
resolved on the face of a warrant, with further evidentiary development coming only
in rare cases involving, for example, misconduct of some sort. Because the record
does not require further evidentiary development to support the habeas petition, the
Court OVERRULES this objection.
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This means that the petitioner must
show that reasonable jurists would find the district court’s determination of the
relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.
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274, 282 (2004). The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003). A substantial showing of the denial of a constitutional right requires that a
petitioner demonstrate “that jurists of reason 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.” Miller-El, 537
U.S. at 327.
Here, reasonable jurists could disagree whether the omission of key
information from the command section of a search warrant violated the particularity
requirement of the Fourth Amendment, particularly in the context of the searches of
electronic information and devices at issue. However, no such debate attends
application of the bar to review of that issue in habeas proceedings. Therefore,
Petitioner fails to make a showing of a substantial showing of the denial of a
constitutional right to warrant the certification of an appeal.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections
(ECF No. 12, PageID #2692–701), ADOPTS the Report and Recommendation (ECF
No. 11, PageID #2669–91), and DENIES the petition (ECF No. 1.). Further, the
Court DECLINES to issue a certificate of appealability.
SO ORDERED.
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Dated: July 28, 2025
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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