Anderson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

BRIAN L. ANDERSON,

Petitioner, : Case No. 2:25-cv-00459

- vs - Chief Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

JAY FORSHEY, WARDEN, Noble

Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is an action for a writ of habeas corpus; brought pro se by Petitioner Brian Anderson

pursuant to 28 U.S.C. § 2254. He seeks relief from his convictions for drug and firearms offenses

in the Monroe County Court of Common Pleas. The case is ripe for decision on the Petition (ECF

No. 3), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner’s

Reply (ECF No. 13).

Litigation History

On July 15, 2021, Petitioner was indicted for unlawful possession of dangerous ordnance

in violation of Ohio Revised Code § 2923.17(A), and having a weapon while under disability in

violation of Ohio Revised Code § 2923.13(A)(3)(Indictment, State Court Record, ECF No. 10, Ex.

1). This original indictment contained a drug offense count which was replaced August 19, 2021,

when he was indicted for aggravated possession of drugs in violation of Ohio Revised Code §

2925.11, a second-degree felony due to the amount of methamphetamine involved, 25.89 grams

(more than five times the bulk amount of three grams). Id. at Ex. 3.

After denial of motions to suppress evidence alleged to have been unconstitutionally

seized, the case was tried to a jury which convicted Petitioner on all three counts. Id. at Ex. 12.

He was then sentenced to a term of imprisonment of six to nine years. He appealed to the Ohio

Court of Appeals for the Seventh District which affirmed. State v. Anderson, 211 N.E.3d 779

(Ohio App. 7th Dist. Mar. 23, 2023). The Ohio Supreme Court declined jurisdiction over a

subsequent appeal. State v. Anderson, 170 Ohio St.3d 1493 (Jul. 18, 2023).

On April 10, 2023, Petitioner filed pro se a motion for reconsideration of his appeal

pursuant to Ohio App. R. 26(A) which the Seventh District denied. State v. Anderson, 2023 WL

3561395. Subsequently, Petitioner filed an Application for Reopening under Ohio R. App. P.

26(B) which the Seventh District also denied. State v. Anderson, 2023 WL 3561395.

After a number of other post-judgment actions in the Ohio courts were unsuccessful,

Anderson filed his Petition in this case on April 18, 2025.1 Anderson pleads the following grounds

for relief:

Ground One: Petitioner’s rights under the 4th, 5th & 14th

Amendments were violated by the Trial Court’s failure to Suppress

Evidence.

Supporting Facts: The Evidence was located and seized after

Police gained access under false pretenses, alleging a welfare check

that, if real, would have ended prior to the discovery and Seizure of

the evidence.

1 The Petition was not docketed until April 29, 2025, but had been deposited in the prison mail system on the earlier

date.

Ground Two: Petitioner’s convictions are not Supported by

Sufficient Evidence.

Supporting Facts: State failed to submit evidence Sufficient to

prove “operability” as required by Ohio Law, or that the shotgun

was the property or Possession of the Petitioner rather than that of

the car’s owner and operator.

(Petition, ECF No. 3).

Analysis

Ground One: Failure to Suppress Unconstitutionally Seized Evidence

In his First Ground for Relief, Petitioner asserts the Ohio courts violated his Fourth, Fifth,

and Fourteenth Amendment rights by failing and refusing to suppress certain evidence.

Although Anderson litigated both Fourth and Fifth Amendment claims in the trial court

and on direct appeal to the Seventh District, he carried forward only the Fifth Amendment claim

to the Ohio Supreme Court (Compare Appellant’s Brief, State Court Record, ECF No. 10, Ex. 15

with Memorandum in Support of Jurisdiction, Id. at Ex. 21, PageID 207). Although he mentions

the Fifth Amendment in his First Ground for Relief in this Court, he does not argue that claim at

all, but confines his argument to the Fourth Amendment. This Report will treat the Fifth

Amendment claim as abandoned and analyze only the Fourth Amendment claim.

Federal habeas corpus relief is not available to state prisoners who allege they were

convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that

question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court

to determine whether state procedure in the abstract provides full and fair opportunity to litigate,

and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim

was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an

unanticipated and unforeseeable application of a procedural rule prevents state court consideration

of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept

of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of

Fourth Amendment claims is, in the abstract, clearly adequate. Ohio

R. Crim. P. 12 provides an adequate opportunity to raise Fourth

Amendment claims in the context of a pretrial motion to suppress,

as is evident in the petitioner’s use of that procedure. Further, a

criminal defendant, who has unsuccessfully sought to suppress

evidence, may take a direct appeal of that order, as of right, by filing

a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.

5(A). These rules provide an adequate procedural mechanism for the

litigation of Fourth Amendment claims because the state affords a

litigant an opportunity to raise his claims in a fact-finding hearing

and on direct appeal of an unfavorable decision.

Id. at 526.

In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary

hearing in the state court was not required by due process and followed its prior conclusion that

“opportunity means opportunity . . . the state court need do no more than ‘take cognizance of the

constitutional claim and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan,

560 F.2d 1298, 1302 (6th Cir. 1977).

Consistent with Moore and with two of the three votes in Bradley,

we make clear that the Powell "opportunity for full and fair

consideration" means an available avenue for the prisoner to present

his claim to the state courts, not an inquiry into the adequacy of the

procedure actually used to resolve that particular claim.

Id. at 639-40.

Respondent asserts merits review of the Fourth Amendment claim is barred in this case by

the Supreme Court’s decision in Stone. Petitioner responds that Respondent has misread Stone

(Traverse, ECF No. 13, PageID 970-73). He relies on Withrow v. Williams, 507 U.S. 680 (1993),

for the proposition that Stone does not deprive federal courts of jurisdiction over Fourth

Amendment claims, but only decides as a matter of equitable discretion that “the court ought not

to entertain them [Fourth Amendment claims] when the petitioner has already had an opportunity

to litigate them fully and fairly.” 507 U.S. at 718. Petitioner reads Stone as “allow[ing habeas]

relief while making it discretionary rather [th]an mandatory, ‘where the State· has provided an

opportunity for full and fair litigation of a Fourth Amendment claim.’” Id. at PageID 972. He also

read Stone as making habeas relief mandatory when the state courts have not provided a full and

fair opportunity to litigate the claim. Id.

Petitioner provides an additional reading of Stone to supports his position:

discretionary relief would still [be] available under the plain and

unambiguous language of Stone had the Petitioner received a full

and fair opportunity to litigate his claim in the state court, where the

state court's decision violates federal law or involves an

unreasonable application of federal law as defined by the United

States Supreme Court.

Id.

Petitioner’s reading of Stone is not correct. In Stone the Supreme Court exercised its own

equitable discretion on a national basis to preclude habeas consideration of Fourth Amendment

claims in the District Courts if the state court opportunity to litigate had been full and fair; it did

not confer discretion on the District Courts to hear those claims. Sixth Circuit cases which have

followed Stone have made that reading clear; Petitioner cites no case in which the Sixth Circuit

has held Stone confers discretion on the District Courts to hear Fourth Amendment claims.

Going to the merits of the Fourth Amendment claim, Petitioner argues bodycam footage

shows the searching police officer lied “about the shotgun having been in plain sight.” Id. at

PageID 973. However, the bodycam footage has not been made part of the State Court Record

before this Court2. It was part of the appellate record and the Seventh District viewed it as is

evident from its opinion. Regarding visibility of the shotgun, the court found:

{¶7} When the door opened, the deputy viewed a sawed-off shotgun

between the passenger seat and the passenger door. He could see it

violated the law as a dangerous ordnance (a shotgun with less than

18 inches of barrel or less than 26 inches in overall

length). (Supp.Tr. 12-13). The shotgun was within easy access of

Appellant. (Supp.Tr. 13-14). While Appellant stepped from the car,

the deputy asked if the gun was loaded. From the deputy's next

statement on the body cam, it seems Appellant said it was not loaded

(and the deputy testified at trial that Appellant said it was not

loaded).

State v. Anderson, supra. If the body cam showed the officer was lying, it would have been in

Petitioner’s interest to call that contradiction to the attention of the Court of Appeals, but the quoted

finding does not suggest that happened.

Petitioner asserts the state court process was not full and fair because he was not allowed

to present the transcript of his preliminary hearing that occurred in municipal court (Traverse, ECF

No. 13, PageID 974-75). He gives no record reference to show how this preclusion occurred. The

undersigned has read the transcript of the suppression hearing (ECF No. 10-1) and finds no place

where the preliminary hearing transcript was offered into evidence. In any event, Petitioner has

not shown any way in which the exclusion of that transcript made a difference to the outcome; his

statement that it did is completely uncorroborated.

Petitioner argues that the term “occupied structure” in Ohio Revised Code § 2909.0l(C) be

interpreted to cover this case. In interpreting a statute a court should:

1. Decide what purpose ought to be attributed to the statute and to

any subordinate provision of it which may be involved; and then

2 It is uncommon for the State Court Record filed in habeas cases to include trial court exhibits because they are rarely

needed to decide the case and their storage, particularly guns and drugs, would create logistical difficulties for the

Court.

2. Interpret the words of the statute immediately in question so as

to carry out the purpose as best it can, making sure, however,

that it does not give the words either (a) a meaning they will not

bear, or (b) a meaning which would violate any established

policy of clear statement.

Hart and Sacks, THE LEGAL PROCESS (Eskridge & Frickey ed. 1994), p. 1169. It is difficult to

imagine what possible purpose the General Assembly could have had in mind that would support

applying the term “occupied structure” to an unmodified car pulled to the side of the road to

accommodate the drug-induced stupor of its occupants. In any event Petitioner cites no Ohio court

which has adopted such an extreme interpretation.

Because Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim

in the state courts, this Court may not reach the merits of that claim. Petitioner’s First Ground for

Relief should be dismissed.

Ground Two: Insufficient Evidence

In his Second Ground for Relief, Petitioner asserts his conviction is not supported by

sufficient evidence. He claims there was insufficient evidence of operability of the shotgun, of his

ownership of it, or of his possession of it.

On direct appeal, Petitioner claimed both that there was insufficient evidence and that the

convictions related to the firearm were against the manifest weight of the evidence. In this Court

Anderson pleads only the insufficiency claim which is appropriate because a manifest weight claim

is not cognizable in habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).

An allegation that a verdict was entered upon insufficient evidence states a claim under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). Petitioner

is correct that this law was clearly established at the time of his direct appeal. In order for a

conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). When reviewing a claim for sufficient

evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,

567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference

should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate

court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652

(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.

Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing

more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

Petitioner presented his claims regarding the sufficiency and weight of the evidence

together as his second assignment of error. The Seventh District decided the sufficiency claim as

follows:

¶45} Appellant's second assignment addresses two different legal

doctrines, contending:

“APPELLANT'S CONVICTIONS FOR UNLAWFUL

POSSESSION OF A FIREARM AND POSSESSION OF

A FIREARM UNDER A DISABILITY ARE NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND ARE

AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

{¶46} Whether the evidence is legally sufficient to sustain a

conviction is a question of law dealing with adequacy. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An

evaluation of witness credibility is not involved in a sufficiency

review, as the question is whether the evidence is sufficient if taken

as true. State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, ¶

79, 82 (2002); State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d

765 (2001). In other words, sufficiency involves the state's burden

of production rather than its burden of persuasion. Thompkins, 78

Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring). In

reviewing the sufficiency of the evidence, the court views the

evidence in the light most favorable to the prosecution to ascertain

whether some rational juror could have found the elements of the

offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio

St.3d 123, 138, 694 N.E.2d 916 (1998).

{¶47} The elements of having a weapon while under disability are

to “knowingly acquire, have, carry, or use any firearm or dangerous

ordnance, if * * * under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of

abuse.” R.C. 2923.13(A)(3) (“[u]nless relieved from disability”),

(B) (third-degree felony). The parties stipulated Appellant was

under indictment for felony possession of drugs in Summit County

at the time of his arrest in this case. (Tr. 4, 104, 176).

{¶48} The elements of unlawful possession of a dangerous ordnance

are to “knowingly acquire, have, carry, or use any dangerous

ordnance.” R.C. 2923.17(A), (D) (fifth-degree felony). The

definition of dangerous ordnance includes a “sawed-off

firearm.” R.C. 2923.11(K)(1). See also R.C.

2923.11(L)(5) (excluding “a dangerous ordnance that is inoperable

or inert and cannot readily be rendered operable or activated, and

that is kept as a trophy, souvenir, curio, or museum piece”). A

sawed-off firearm is “a shotgun with a barrel less than eighteen

inches long, or a rifle with a barrel less than sixteen inches long, or

a shotgun or rifle less than twenty-six inches long overall.” R.C.

2923.11(F).

{¶49} In the first part of this assignment of error, Appellant contests

whether the state sufficiently demonstrated the gun was operable.

He claims it was mere speculation to find the weapon could have

fired a live round. Without claiming there was supporting evidence

or suggesting this was the case here, Appellant provides an example

situation, claiming a gun could contain a firing pin from a different

brand of gun so that it appears to be operable during a dry-fire but

would not precisely align to fire a live round.

{¶50} A firearm is defined as “any deadly weapon capable of

expelling or propelling one or more projectiles by the action of an

explosive or combustible propellant * * * includ[ing] an unloaded

firearm, and any firearm that is inoperable but that can readily be

rendered operable.” R.C. 2923.11(A) (applicable to R.C.

2923.11 to 2923.24), (B)(1). Clearly, an unloaded firearm meets the

definition of a firearm, and Appellant does not argue otherwise.

{¶51} “When determining whether a firearm is capable of expelling

or propelling one or more projectiles by the action of an explosive

or combustible propellant, the trier of fact may rely upon

circumstantial evidence, including, but not limited to, the

representations and actions of the individual exercising control over

the firearm.” R.C. 2923.11(B)(2). Thus, when a gun is not

recovered, the state can use circumstantial evidence of

operability. See State v. Murphy, 49 Ohio St.3d 206, 209, 551

N.E.2d 932 (1990) (“To require the state to produce the actual

firearm or empirical evidence would frustrate the intent of the

General Assembly.”). The statutory reference to circumstantial

evidence is not limited to cases where a gun was never recovered;

rather, it generally applies in all cases involving the definition of a

firearm. See R.C. 2923.11 (definitions as used in R.C.

2923.11 to 2923.24). Therefore, direct evidence through the test

firing of a live round is not legally mandated, especially where to do

so would be considered unsafe. See, e.g., State v. Coleman, 2d Dist.

Montgomery No. 27702, 2018-Ohio-2214, 2018 WL 2938325, ¶

37 (where the detective testified a test-fire would be

dangerous); State v. Tillman, 6th Dist. Fulton No. F-11-006, 2012-

Ohio-5265, 2012 WL 5508269, ¶ 15 (where an officer testified he

unloaded the recovered gun, pulled the trigger, and observed the

firing pin was working properly).

{¶52} Most notably, the Supreme Court has concluded that although

operability (or capacity to be readily rendered operable) must be

established by the state, “proof of the existence of a firearm may be

based on lay testimony, and is not dependent on an empirical

analysis of the gun.” Murphy, 49 Ohio St.3d at 209, 551 N.E.2d 932,

modifying State v. Gaines, 46 Ohio St.3d 65, 545 N.E.2d 68 (1989).

We additionally point out the Gaines case relied on the former,

stricter rule of circumstantial evidence. Gaines, 46 Ohio St.3d at 72,

545 N.E.2d 68, citing State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d

897 (1974). Currently, “when the state relies on circumstantial

evidence to prove an element of the offense charged, there is no

requirement that the evidence must be irreconcilable with any

reasonable theory of innocence in order to support a

conviction.” State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492

(1991), overruling Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897.

Rather, circumstantial evidence inherently possesses the same

probative value as direct evidence. State v. Treesh, 90 Ohio St.3d

460, 485, 739 N.E.2d 749 (2001).

{¶53} A shotgun with 12 inches of barrel (with a curve handle,

adding only another 6 inches or so) was prominently located in the

space between the front passenger seat and the passenger door.

Appellant was in that passenger seat. Appellant told the deputy the

gun was not loaded, without claiming it was inoperable. (Tr. 129,

136-137). Photographs of the gun (with and without a tape measure)

were admitted into evidence. (St. Ex. 4 & 5). As the deputy

explained, the shotgun had a trigger, a hammer, and an intact firing

pin. He considered it unsafe to attempt to test fire the shotgun with

a live round due to the sawed-off barrel (and what he believed was

a pistol grip modification). He conducted a “dry fire,” cocking the

hammer, pulling the trigger, and noticing the firing pin released as

expected.4 (Tr. 135-137).

{¶54} In conducting our sufficiency review, all of the evidence is to

be considered in the light most favorable to the prosecution,

including reasonable inferences. State v. Filiaggi, 86 Ohio St.3d

230, 247, 714 N.E.2d 867 (1999); Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The question is merely

whether “any” rational trier of fact could have found the contested

elements were adequately established. State v. Getsy, 84 Ohio St.3d

180, 193, 702 N.E.2d 866 (1998), quoting Jackson, 443 U.S. at 319,

99 S.Ct. 2781. Considering the totality of the circumstances, some

rational juror could conclude the shotgun satisfied the definition of

a firearm based upon the totality of the circumstances indicating

operability.

{¶55} The remaining elements of the weapons offenses are not

contested (emphasis sic), but we nevertheless observe the state

presented sufficient evidence of all elements of unlawful possession

of a dangerous ordnance in violation of R.C. 2923.17(A) and having

a weapon while under disability in violation of R.C. 2923.13(A)(3).

Notably, a person can “have” an object through immediate physical

possession or constructive possession, which involves dominion and

control. State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351

(1976). “Ownership does not need to be proven and circumstantial

evidence can be relied upon to establish constructive

possession.” State v. Floyd, 7th Dist. Mahoning No. 18 MA 0106,

2019-Ohio-4878, 2019 WL 6358472, ¶ 16. A rational juror could

find Appellant knowingly possessed a firearm, which was a type of

dangerous ordnance due to the fact the shotgun's measurements

placed it in the category of a sawed-off firearm.

State v. Anderson, supra.

As can readily be seen from the Seventh District’s decision, the only element Petitioner

challenged on direct appeal was the shotgun’s operability. He did not challenge findings about

possession or ownership. In fact, ownership is not an element of the two firearms offenses of

which he was convicted, as the Seventh District held. His claim that there was insufficient

evidence of the element of possession is procedurally defaulted because he did not submit it to the

Seventh District and he has offered no excusing cause and prejudice. Before a petitioner may be

heard on a claim, he must have presented it as a federal constitutional claim to the state courts.

O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999).

Petitioner asserts the State failed to prove the shotgun was operable because the only

testimony was that the arresting officer dry-fired it once. His summary of the facts in evidence is

accurate, but then he relies on cases finding operability and implicitly argues that, because the

evidence here was not similar, it must be insufficient. However, the question of what is required

to prove an element of a state crime is itself a question of state law and the Seventh District held

that under the circumstances of this case, where firing a live round would have been too dangerous,

dry-firing was sufficient.

Petitioner’s Second Ground for Relief should be denied on the merits.

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.

November 21, 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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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.