Larr

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

MICHAEL L. LARR

Petitioner, : Case No. 2:24-cv-01730

- vs - District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

MISTY MACKEY, WARDEN,

Lake Erie Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case1, brought pro se by petitioner Michael Larr, is before the Court

for decision on the merits. Relevant pleadings are the Petition (ECF No. 1), the State Court Record

(ECF No. 12), the Return of Writ (ECF No. 14), and Petitioner’s Reply (ECF No. 15).

Although Petitioner has filed an appeal with the Sixth Circuit (ECF No. 26) from an

interlocutory order of this Court (ECF No. 22) and that appeal remains pending, the appeal does

not impede the jurisdiction of this Court because the appeal is from an Order of Magistrate Judge

Elizabeth Preston Deavers whose own jurisdiction in the case is under 28 U.S.C. § 636(b) and not

§ 636(c). Magistrate Judge orders on nondispositive matters must be appealed in the first instance

1 The Magistrate Judge reference in this case has recently been transferred to the undersigned to help balance the

Magistrate Judge workload in the District (ECF No. 37).

to the assigned District Judge and not to the circuit court. Hoven v. Walgreen Co., 751 F.3d 778,

782 (6th Cir. 2014). Because the circuit court does not have jurisdiction over Petitioner’s appeal,

his filing does not prevent this Court from proceeding.

Litigation History

A Muskingum County grand jury indicted Petitioner on October 28, 2021, on two counts

of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4). State v. Larr,

2023-Ohio-2128 ¶ 2 (Ohio App. 5th Dist. Jun. 27, 2023). A jury found him guilty and he was

sentenced to two consecutive terms of sixty months each. He took a direct appeal to the Ohio Fifth

District Court of Appeals which affirmed the trial court judgment. Id. The Ohio Supreme Court

granted him a delayed appeal, but then declined to take jurisdiction of the case. State v. Larr, 171

Ohio St. 3d 1474 (2024). Larr filed an Application for Reopening the appeal to litigate issues of

ineffective assistance of appellate counsel (Application, State Court Record, ECF No. 12, Ex. 13).

The Fifth District denied that Application on the merits. Id. at Ex. 15. Larr did not appeal to the

Ohio Supreme Court. Larr also filed a Petition for Post-Conviction Relief under Ohio Revised

Code § 2953.21. Id. at Ex. 17. The trial court denied the Petition, Id. at Ex. 19, and Petitioner did

not appeal.

Larr then filed his Petition for Writ of Habeas Corpus in this Court, pleading the following

grounds for relief:

Ground One: The Petitioner is 100% innocent of the crime. There

was never any innoppropriat [sic] touching/tickling. Petitioner was

arrested and convicted with just unreliable out-of-court statements

that have no corroborating evidence. The touching must have been

under the clothing and for sexual gratifying. Child said in video,

there was no tickling under clothing. and not one thing proves any

tickling was for sexual gratifying. petitioner’s due process of the

fourteenth and fourth amendment of the u.s. constitution was

violated. [sic].

Ground Two: Trial courts poor discretion violated the Due Process

Clause Fourteenth Amendment to the U.S. Constitution, when the

court convicted petitioner with just statements and no cross-

examination. The statute requires separate determination of

reliability and corroborating evidence to support the hearsay

statements when the child is unavailable. The statute bars

conviction where the critical issues at trial were supported only by

ex-parte testimony not subjected to cross-examination. [sic].

Ground Three: Violation of the Appellant’s Fourth Amendment

to the U.S. Constitution was made when appellant was plucked from

his home and jailed with no probable cause. one, the elements of the

crime were not met. two, probable cause could not be established

with just unreliable stand alone hearsay statements. when hearsay

statements are used to establish probable cause, they must have

independent corroborating evidence to show the statements are

trustworthy. there is no independent corroborating evidence to back

the out-of-court statements. leaving no probable cause for an arrest

warrant. leaving plain harmful reversible error. convictions must be

vacated and petitioner released as soon as possible. [sic]

Ground Four: A violation of Due Process Fourteenth Amendment

to the U.S. Constitution when petitioner was held with just

unreliable hearsay statement’s and the elements of the crime were

not met. There was no independent corroborating evidence to show

the trustworthiness of the statements. No corroborating physical

evidence, the statements have evidence and testimony the

statements are unreliable. with just the statements as evidence, this

is harmful, reversible error. Petitioner was vary sic] prejudice.

Petitioners convictions must be overturned. [sic]

Ground Five: Poor discretion of the trial court violated petitioner’s

Sixth Amendment of the U.S. Constitution the Confrontation Clause

when it placed unreliable hearsay statements in front of the jury.

placing unreliable hearsay in front of a jury without cross-

examination of the declarant, violated petitioner’s confrontation

rights. the statements were objected to but over ruled. the unreliable

statements is all the evidence the state had, making this plain

harmful, reversible error. [sic]

Ground Six: Poor discretion of the trial court violated Petitioner’s

Sixth Amendment to the U.S. Constitution the Confrontation Clause

when it submitted hearsay statements that had no ongoing

emergency and no opportunity to cross-examine the declarant. when

there is no ongoing emergency, it violates the Confrontation Clause.

without the statements, there is no evidence, making this prejudice,

plain harmful reversible error. [sic]

Ground Seven: The trial court abused its discretion when it

violate[d] Petitioners Sixed [Sic] Amendment to the U.S.

Constitution the Confrontation Claues [sic] when it placed hearsay

statements in front of the jury that had no terminology unexpected

of a child P.W’s age. There is only the statements as evidence,

without them, there would not have been a trial. Plain harmful

reversible error.

(Petition, ECF No. 1).

Analysis

Petitioner Michael Larr is proceeding pro se in this case and is therefore entitled to liberal

construction of his pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d

292, 295 (6th Cir. 2001). As Petitioner appears to acknowledge in his Reply, his constitutional

issues are spread across several of his Grounds for Relief. This Report will attempt to sort the

claims by issue raised, rather than grouping the analysis under the Grounds for Relief as pleaded

in the Petition.

Only Federal Constitutional Law Is Relevant

As a general matter, habeas corpus courts do not sit as an additional level of general

appellate review of state court criminal decisions. 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). "[I]t is not the province of a federal habeas court to reexamine

state court determinations on state law questions. In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United

States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10

Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23,

2018)(Thapar, J. concurring).

This limitation can be confusing for pro se litigants and sometimes for lawyers as well.

But it means that a federal habeas court cannot set aside a state criminal conviction on the ground

that, for example, a state court violated a state rule of evidence; that is exclusively a question of

state law on which federal courts are bound by the decisions of state courts. Railey v. Webb, 540

F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly

held that a state court’s interpretation of state law, including one announced on direct appeal of

the challenged conviction, binds a federal court sitting in habeas corpus.”), Maldonado v. Wilson,

416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell,

181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).

Nor can a federal habeas court set aside a state conviction for violation of the Federal Rules

of Evidence. Those Rules do not apply in the state courts. Although many States have copied

parts of the Federal Rules of Evidence in adopting their own state rules2, they are not bound to do

so and the Federal Rules of Evidence are not binding on the States as a matter of constitutional

law.

At several places Petitioner asserts the state courts used “poor discretion.” The Magistrate

Judge takes this to be an assertion that a state court judge “abused” his discretion. Where State

2 Ohio did so. The undersigned was a member of the Ohio Supreme Court’s Rules Advisory Committee at the time

and the Committee carefully considered which provisions to copy into Ohio law.

law gives a trial judge discretion to act one way or another on an issue, the Ohio appellate courts

will review the exercise of that discretion for “abuse.” But there is no habeas corpus review of

those decisions. Abuse of discretion is not a denial of due process or any other federal

constitutional right. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).

Insufficient Evidence Versus Manifest Weight of the Evidence

In the Return of Writ, Respondent analyzes the Petition as presenting several claims that

there was insufficient evidence to support a conviction. In the Reply, Petitioner notes that he also

raised claims on direct appeal that the verdict was against the manifest weight of the evidence.

Petitioner correctly represents what was raised on direct appeal and the Court understands he wants

to bring both of those claims forward in habeas corpus. However, he cannot do so. Lack of

sufficient evidence is a federal constitutional claim, but manifest weight is not. A claim of

insufficient evidence to support a conviction states a claim under the Due Process Clause of the

Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307 (1979). However, a weight of the

evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir.

1986).

In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Supreme Court of Ohio reaffirmed

the important distinction between appellate review for insufficiency of the evidence and review on

the claim that the conviction is against the manifest weight of the evidence. It held:

In essence, sufficiency is a test of adequacy. Whether the evidence

is legally sufficient to sustain a verdict is a question of law. State v.

Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.

In addition, a conviction based on legally insufficient evidence

constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31,

45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560. Although a court of appeals may determine that a judgment of

a trial court is sustained by sufficient evidence, that court may

nevertheless conclude that the judgment is against the weight of the

evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-

389, 124 N.E.2d at 149. Weight of the evidence concerns "the

inclination of the greater amount of credible evidence, offered in a

trial, to support one side of the issue rather than the other. It

indicates clearly to the jury that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them. Weight is

not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis added.)

When a court of appeals reverses a judgment of a trial court on the

basis that the verdict is against the weight of the evidence, the

appellate court sits as a " 'thirteenth juror' " and disagrees with the

factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.

at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin

(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d

717, 720-721 ("The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new

trial ordered. The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.").

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited

approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest

weight of the evidence claim:

In considering the claim that the conviction was against the manifest

weight of the evidence, the test is much broader. The court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. …

Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. The consequences of the distinction are important

for a criminal defendant. The State may retry a case reversed on the manifest weight of the

evidence; retrial of a conviction reversed for insufficiency of the evidence is barred by the Double

Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 41 (1982).

Because of this distinction, a federal habeas court can decide whether there was sufficient

evidence to support the conviction, but may not review a state appellate decision that a verdict is

not against the manifest weight of the evidence.

Petitioner presented both claims to the Ohio Court of Appeals as his first and second

assignments of error which decided them as follows:

{¶28} In his First Assignment of Error, Larr maintains that his

convictions for gross sexual imposition are against the manifest

weight of the evidence. In his Second Assignment of Error, Larr

argues that there is insufficient evidence to support his convictions

for gross sexual imposition.

Standard of Appellate Review–Sufficiency of the Evidence.

{¶29} The Sixth Amendment provides, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury....” This right, in conjunction with the Due

Process Clause, requires that each of the material elements of a

crime be proved to a jury beyond a reasonable doubt. Alleyne v.

United States, 570 U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314

(2013); Hurst v. Florida, 577 U.S. 92, 136 S.Ct. 616, 621, 193

L.Ed.2d 504 (2016). The test for the sufficiency of the evidence

involves a question of law for resolution by the appellate court. State

v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124,

¶30. “This naturally entails a review of the elements of the charged

offense and a review of the state's evidence.” State v. Richardson,

150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶30} When reviewing the sufficiency of the evidence, an appellate

court does not ask whether the evidence should be believed. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus, superseded by State constitutional amendment on other

grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684

N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant

inquiry 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 proven beyond a

reasonable doubt.” Jenks at paragraph two of the syllabus. State v.

Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19.

Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the

defendant's guilt beyond a reasonable doubt.’ ” State v. Murphy, 91

Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at

paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds

unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery,

148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the

evidence in the light most favorable to the prosecution, the

evidence, if believed, would convince the average mind that

Larr was guilty beyond a reasonable doubt of Gross Sexual

Imposition in violation of R.C. 2907.05.

{¶31} Larr argues that the only direct evidence presented was the

testimony of the alleged victim. The victim had no physical injuries,

there was no confession by Larr and no proof that the touching was

done for sexual gratification. Larr further points out that he

voluntarily spoke to the police during the investigation.

{¶32} R.C. 2907.05, Gross Sexual Imposition provides,

(A) No person shall have sexual contact with another, not

the spouse of the offender; cause another, not the spouse of

the offender, to have sexual contact with the offender; or

cause two or more other persons to have sexual contact

when any of the following applies:

* * *

(4) The other person, or one of the other persons, is less

than thirteen years of age, whether or not the offender

knows the age of that person.

* * *

{¶33} “ ‘Sexual contact’ means any touching of an erogenous zone

of another, including without limitation the thigh, genitals, buttock,

pubic region, or, if the person is a female, a breast, for the purpose

of sexually arousing or gratifying either person.” R.C. 2907.01(B).

{¶34} Whether touching is done for the purpose of sexual

gratification is a question of fact to be inferred from the type, nature,

and circumstances surrounding the contact. State v. Cochran, 5th

Dist. Coshocton No. 03–CA–01, 2003-Ohio-6863, ¶

15, citing State v. Mundy, 99 Ohio App.3d 275, 289, 650 N.E.2d

502(1994). We have held that the testimony of one witness, if

believed by the factfinder, is enough to support a

conviction. See, State v. Dunn, 5th Dist. Stark No. 2008-CA-

00137, 2009-Ohio-1688, ¶ 133. The weight to be given the

evidence introduced at trial and the credibility of the witnesses are

primarily for the trier of fact to determine. State v. Thomas, 70 Ohio

St.2d 79, 434 N.E.2d 1356 (1982), syllabus.

{¶35} A conviction for rape or gross sexual imposition does not

require proof of trauma or physical injury. See State v. Campbell,

8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181, ¶

44, citing State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-

Ohio-1446, ¶ 46; State v. Schrock, 11th Dist. Lake No. 2007-L-

191, 2008-Ohio-3745, ¶ 23 (“The qualitative nature of these

charges does not necessitate any specific physical injury or trauma

to the genital area.”); Cf. State v. Hines, 6th Dist. Lucas No. L-04-

1234, 2006-Ohio-322, ¶ 20 (“Nevertheless, we find that it is the

incidents of sexual abuse, not the actual physical injury to the

victim's hymen, that the state must prove to establish rape.”).

{¶36} In the case at bar, P.W. told her mother that Larr had tickled

her vagina. P.W. told Larr's wife that Larr touched her “down there.”

P.W. told Celeste Prince that Larr tickled her vagina. She further

showed on diagrams where the touching had occurred. The jury was

able to see the forensic interview as it happened in real time via the

video recording. P.W. indicated that the touching occurred in the

camper and in Larr's bedroom.

{¶37} Viewing this evidence in a light most favorable to the

prosecution, we conclude that a reasonable person could have found

beyond a reasonable doubt that Larr engaged in sexual contact with

P.W. who was five years old at the time. We hold, therefore, that the

state met its burden of production regarding each element of the

crime and, accordingly, there was sufficient evidence to support

Larr's convictions for gross sexual imposition.

Standard of Appellate Review – Manifest Weight

{¶38} As to the weight of the evidence, the issue is whether the jury

created a manifest miscarriage of justice in resolving conflicting

evidence, even though the evidence of guilt was legally

sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), superseded by constitutional amendment on

other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684

N.E.2d 668, 1997-Ohio-355; State v. Issa, 93 Ohio St.3d 49, 67,

752 N.E.2d 904 (2001).

{¶39} Weight of the evidence addresses the evidence's effect of

inducing belief. State v. Thompkins, supra, 78 Ohio St.3d at 386-

387, 678 N.E.2d 541(1997), State v. Williams, 99 Ohio St.3d 493,

2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of appeals

reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as a

“thirteenth juror” and disagrees with the fact finder's resolution of

the conflicting testimony. Thompkins at 387, 678 N.E.2d

541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72

L.Ed.2d 652(1982) (quotation marks omitted); State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244,

¶25, citing Thompkins.

{¶40} Once the reviewing court finishes its examination, an

appellate court may not merely substitute its view for that of the jury,

but must find that “ ‘the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.’ ” State v. Thompkins, supra, 78 Ohio

St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717, 720–721(1st Dist. 1983). The Ohio Supreme

Court has emphasized: “ ‘[I]n determining whether the judgment

below is manifestly against the weight of the evidence, every

reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’

” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d 517,

2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland,

10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5

Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191–

192 (1978). Accordingly, reversal on manifest weight grounds is

reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.” Id.

Issue for Appellate Review: Whether the jury clearly lost their

way and created such a manifest miscarriage of justice that the

convictions must be reversed and a new trial ordered.

{¶41} We find that this is not an “ ‘exceptional case in which the

evidence weighs heavily against the conviction.’ ” State v.

Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541

(1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

Based upon the entire record in this matter we find Larr's

convictions are not against the sufficiency or the manifest weight of

the evidence. To the contrary, the jury appears to have fairly and

impartially decided the matters before them. The jury heard the

witnesses, evaluated the evidence, and was convinced of Larr's guilt.

{¶42} Upon review of the entire record, weighing the evidence and

all reasonable inferences as a thirteenth juror, including considering

the credibility of witnesses, we cannot reach the conclusion that the

trier of facts lost its way and created a manifest miscarriage of

justice. We do not find the jury erred when it found Larr guilty.

Taken as a whole, the testimony and record contain ample evidence

of Larr's responsibility for the alleged crimes. The fact that the jury

chose not to believe the testimony of Larr's expert does not, in and

of itself, render his convictions against the manifest weight of the

evidence. While Larr is certainly free to argue that the forensic

interview was not conducted correctly and that the hospital did not

conduct a fair exploration of alternative hypotheses properly, on a

full review of the record we cannot say that the jury clearly lost its

way or created a manifest injustice by choosing to believe the

testimony of the state's witnesses. The jury was able to observe the

forensic interview in real time as it took place as well as hear Dr.

Stinson subject to cross-examination.

{¶43} The state presented testimony and evidence from which the

jury could have found all the essential elements of the offenses

proven beyond a reasonable doubt. The fact that the state may have

relied on circumstantial evidence in proving Larr's guilt does not

make his convictions any less sound.

{¶44} Finally, upon careful consideration of the record in its

entirety, we find that there is substantial evidence presented which

if believed, proves all the elements of the crimes for which Larr was

convicted.

{¶45} Larr's First and Second Assignments of Error are overruled.

State v. Larr, supra.

Analyzing the Fifth District’s decision for habeas corpus purposes, this Court notes it

decided both the insufficient evidence and manifest weight assignments of error on the merits.

However, to reiterate, its decision on the manifest weight issue is not reviewable in habeas corpus,

Havener, supra.

The Fifth District’s decision on the sufficiency of evidence question is reviewable here.

Jackson, supra. Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No

104-132, 110 Stat. 1214)(the "AEDPA"), a state court decision on the merits of a federal

constitutional question is entitled to deference unless it is an objectively unreasonable application

of federal law clearly established by precedent of the United States Supreme Court. 28 U.S.C. §

2254(d)(1).

When the Fifth District’s decision on the First Assignment of Error is reviewed under this

standard, the Magistrate Judge finds it is clearly entitled to deference. The Fifth District applied

the correct standard of review – the Jackson sufficiency standard as it has been incorporated in

Ohio precedent. See ¶ 30, supra, citing State v. Jenks.

Its application was also objectively reasonable. Petitioner argues at length that there was

no evidence corroborating the victim’s direct testimony. But the Sixth Circuit has long held that

the testimony of the victim alone is constitutionally sufficient to sustain a conviction. Tucker v.

Palmer, 541 F.3d 652 (6th Cir. 2008), citing United States v. Terry, 362 F.2d 914, 916 (6th Cir.

1966) ("The testimony of the prosecuting witness, if believed by the jury, is sufficient to support

a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492, 500 (6th Cir. 2007) (holding that

victim's testimony that habeas petitioner abducted her and raped her was constitutionally sufficient

to sustain conviction despite lack of corroborating witness or physical evidence); United States v.

Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding that even if the only evidence was testimony

of the victim, that is sufficient to support a conviction, even absent physical evidence or other

corroboration); United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (noting that there is

sufficient evidence to support a conviction even if the "circumstantial evidence does not remove

every reasonable hypothesis except that of guilt") (internal quotation marks omitted).

Because the Fifth District’s decision on the merits of Petitioner’s sufficiency of the

evidence claim is entitled to deference, that claim or those claims should be dismissed with

prejudice.

Arrest Without Probable Cause

Petitioner complains repeatedly that he was arrested without probable cause because the

uncorroborated statements of the victim are supposedly insufficient. Petitioner confuses several

constitutional provisions in making these arguments.

It is a violation of the Fourth Amendment to convict someone on the basis of evidence

seized in violation of the Fourth Amendment. Such evidence must be excluded at trial. Mapp v.

Ohio, 367 U.S. 643 (1961). In both federal and Ohio courts, these issues are raised by pre-trial

motion to suppress. No such motion was filed here, presumably because the State did not propose

to use any evidence seized from Petitioner as the result of a search. There is no Fourth Amendment

issue presented by the facts before this Court.

An arrest triggers a person’s right to refuse to incriminate himself or herself, the so-called

right to remain silent. That right is protected by the Fifth Amendment. The arrest triggers a law

enforcement obligation to advise the person arrested of his or her right to remain silent. Miranda

v. Arizona, 384 U.S. 436 (1966). Exclusion of any evidence obtained in violation of Miranda is

sought in both state and federal courts by a motion to suppress. But no such motion was filed here

on that issue either, presumably because the State did not intend to introduce any statements made

by Petitioner without proper Miranda warnings.

From the argument made in the Petition and the Reply, the Court reads Petitioner’s

argument as being that he was deprived of his liberty initially based only on the victim’s

uncorroborated statements which, he says, do not establish probable cause.

The Court cannot tell from the State Court Record as filed whether Petitioner was initially

arrested on a complaint or on a warrant issued on the basis of the Indictment. No documents

relating to the case and prior to the Indictment have been filed. The Arraignment Entry shows

Petitioner was in custody at the time of the arraignment, but that could have been on the basis of a

warrant issued on the indictment or a bindover order from a lower court (See Arraignment Entry,

State Court Record, ECF No. 12, Ex. 2). It ultimately does not matter because Petitioner is not

now being held in custody pursuant to a warrant on a complaint or a warrant on the Indictment.

Instead, he is being held on a commitment warrant issued as a result of his conviction. The relevant

order provides in pertinent part: “The Defendant is therefore remanded to the custody of the

Muskingum County Sheriff and ORDERED conveyed to the custody of the Ohio Department of

Corrections.” (Judgment Entry, State Court Record, ECF No. 12, Ex. 3, PageID 33). The issue

before this Court is whether that judgment is valid, not whether any pre-judgment custody was

constitutional.

Petitioner relies in several places on Mondragon v. Thompson, 519 F.3d 1078 (10th Cir.

2008), in support of his claims about probable cause for arrest. In that case the plaintiff filed a

civil action against the officer who had arrested him, claiming the officer had forged the arrest

warrant. Mondragon was a civil suit brought against Thompson under 42 U.S.C. § 1983 for false

arrest. It was not a habeas corpus case in which Mondragon was seeking release from

imprisonment.

42 U.S.C. § 1983, R.S. § 1979, was adopted as part of the Act of April 20, 1871, and reads,

as amended:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress , except

that in any action brought against a judicial officer, injunctive relief

shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the District of

Columbia.

The statute creates a cause of action sounding essentially in tort on behalf of any person deprived

of a federal constitutional right by someone acting under color of state law. City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School

District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Monroe v. Pape,

365 U.S. 167 (1961). The purpose of § 1983 is to deter state actors from using the badge of their

authority to deprive individuals of their federally guaranteed rights and to provide relief to victims

if such deterrence fails. Wyatt v. Cole, 504 U.S. 158 (1992). In order to be granted relief, a plaintiff

must establish that the defendant deprived him of a right secured by the U.S. Constitution and the

laws of the United States and that the deprivation occurred under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981); Flagg Brothers Inc.

v. Brooks, 436 U.S. 149, 155 (1978).

Petitioner’s claims related to his assertion that he was arrested without probable cause

should be dismissed.

Confrontation Clause

Petitioner claims he was convicted on the basis of evidence admitted in violation of his

right under the Confrontation Clause. He raised this set of claims as his Third Assignment of

Error and the Fifth District decided it as follows:

{¶46} In his Third Assignment of Error, Larr contends the trial court

erred when it permitted the out of court hearsay statements of P.W.

to be admitted through the testimony of several witnesses and by the

playing of her interview at CAC. Further because P.W. did not

testify during his jury trial, the admission of P.W.’s statements

violated his confrontation rights.

Standard of Appellate Review

{¶47} “[A] trial court is vested with broad discretion in determining

the admissibility of evidence in any particular case, so long as such

discretion is exercised in line with the rules of procedure and

evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). “However, we review de novo evidentiary rulings that

implicate the Confrontation Clause. United States v. Henderson,

626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

{¶48} We note that any error will be deemed harmless if it did not

affect the accused's “substantial rights.” Before constitutional error

can be considered harmless, we must be able to “declare a belief that

it was harmless beyond a reasonable doubt.” Chapman v. State of

Cal., 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

{¶49} In Ohio, Evid.R. 807 provides an exception to the general

inadmissibility of hearsay uttered by a child under the age of 12 that

describes any sexual act performed by, with, or on the child. This

exception applies if (1) the court finds that the totality of the

circumstances around the making of the statement provides a

particularized guaranty of trustworthiness comparable at least

to Evid.R. 803 and 804; (2) the child's testimony is not reasonably

obtainable by the proponent of the statement; (3) there is

“independent proof” of the sexual act; and (4) the proponent of the

statement has notified all other parties of the content of the statement

at least ten days before the trial or hearing. Evid.R. 807(A)(1)-(4).

The rule is stated in the conjunctive. In order for the out-of-court

statements to be admitted under the rule, the proponent must

demonstrate all of the above. In re T.W., 8th Dist. No. 106231, 2018-

Ohio-3275, 112 N.E.3d 527, ¶ 7.

{¶50} Larr did not object to the child's statements as testified to by

the child's mother (2T. at 296) or his wife (2T. at 320). Thus, the

trial court was never called upon to determine whether the

statements were inadmissible hearsay or admissible pursuant

to Evid.R. 807.

{¶51} Normally, an appellate court need not consider error that was

not called to the attention of the trial court at a time when the error

could have been avoided or corrected by the trial court. State v.

Williams, 51 Ohio St.2d 112, 117, 364 N.E.2d 1364 (1977).

Accordingly, a claim of error in such a situation is usually deemed

to be waived absent plain error. See Crim.R. 52(B). Larr did not

raise plain error with respect to any of the child's statements, in

general and with the child's statements to her mother and

grandmother, in particular. Because he does not claim plain error on

appeal, we need not consider it. See, State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17–20 (appellate

court need not consider plain error where appellant fails to timely

raise plain-error claim); State v. Gavin, 4th Dist. Scioto No.

13CA3592, 2015-Ohio-2996, 2015 WL 4549872, ¶

25, citing Wright v. Ohio Dept. of Jobs & Family Servs., 9th Dist.

Lorain No. 12CA010264, 2013-Ohio-2260, 2013 WL 2407158, ¶

22 (“when a claim is forfeited on appeal and the appellant does not

raise plain error, the appellate court will not create an argument on

his behalf”); State v. Carbaugh, 5th Dist. Muskingum No. CT2022-

0050, 2023-Ohio-1269, ¶67; State v. Fitts, 6th Dist. Wood Nos.

WD18-092, WD18-093, 2020-Ohio-1154, ¶21; Simon v.

Larreategui, 2nd Dist. Miami No. 2021-CA-41, 2022-Ohio-1881,

¶41.

{¶52} The only objection raised by Larr in the trial court was to the

child's statements to Celeste Prince and the video of her interview at

CAC with the child. 1T. at 246.

Issue for Appellate Review: Whether the trial court violated Larr's

right to confrontation by allowing the state to introduce the forensic

interview of the child when the child did not testify at trial

{¶53} The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right * * * to be confronted with the witnesses against him.”

{¶54} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177 (2004), the Supreme Court of the United States

held that out-of-court statements that are testimonial are barred,

under the Confrontation Clause, unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the

witness, regardless of whether the statements are deemed reliable by

the trial court. The Court defined these “testimonial” statements to

include “ex parte in-court testimony or its functional equivalent-that

is, material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine, or similar

pretrial statements that declarants would reasonably expect to be

used “prosecutorially” and “extrajudicial statements * * * contained

in formalized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions,” and “statements that were made

under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use

at a later trial.” 541 U.S. at 51-52.

{¶55} Thus, as to “testimonial evidence,” “the Sixth Amendment

demands what the common law required: unavailability and a prior

opportunity for cross-examination.” 541 U.S. at 68. “To trigger a

violation of the Confrontation Clause, an admitted statement must

be testimonial in nature, and must be hearsay.” United States v.

Deitz, 577 F.3d 672, 683 (6th Cir. 2009). A statement is testimonial

where a reasonable person would anticipate that his or her statement

would be used “against the accused in investigating and prosecuting

the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.

2004). See also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482,

855 N.E.2d 834, at paragraph two of the syllabus.

{¶56} Evid.R. 803(4) provides that the following are not excluded

by the hearsay rule: “Statements made for purposes of medical

diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.”

{¶57} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742,

933 N.E.2d 775, the Ohio Supreme Court considered the

admissibility of statements made during interviews at child-

advocacy centers. Arnold involved a Confrontation Clause

challenge rather than Evid.R. 803(4), but the pertinent analysis is

similar in many respects. The issue in Arnold was whether a child's

statements during an interview were for medical diagnosis or

treatment, making them “non-testimonial,” or whether they

primarily served a forensic or investigative purpose, making them

“testimonial” in violation of the defendant's confrontation rights.

{¶58} The Supreme Court first noted that child-advocacy centers

are unique insofar as a single interview with a child serves “dual

purposes,” which are: “(1) to gather forensic information to

investigate and potentially prosecute a defendant for the offense and

(2) to elicit information necessary for medical diagnosis and

treatment of the victim.” Arnold at ¶ 33. The majority then turned to

the substance of the child's interview. It reasoned that some of the

child's statements primarily had a forensic or investigative purpose.

They included the child's assertion that the defendant had “shut and

locked the bedroom door before raping her; her descriptions of

where her mother and brother were while she was in the bedroom

with Arnold, of Arnold's boxer shorts, of him removing them, and

of what Arnold's ‘pee-pee’ looked like; and her statement that

Arnold removed her underwear.” Id. at ¶ 34. The Ohio Supreme

Court reasoned that “[t]hese statements likely were not necessary

for medical diagnosis or treatment. Rather, they related primarily to

the state's investigation.” Id.

{¶59} The Arnold Court also found, however, that “other

statements provided information that was necessary to diagnose and

medically treat” the child victim. Id. at ¶ 37. It noted that “[t]he

history obtained during the interview is important for the doctor or

nurse practitioner to make an accurate diagnosis and to determine

what evaluation and treatment are necessary. For example, the nurse

practitioner conducts a ‘head to toe’ examination of all children, but

only examines the genital area of patients who disclose sexual

abuse. That portion of the exam is to identify any trauma or injury

sustained during the alleged abuse.” Id. In particular, the Ohio

Supreme Court held that the following statements by the victim

during the interview were necessary for medical diagnosis or

treatment: “statements that described the acts that Arnold

performed, including that Arnold touched her ‘pee-pee,’ that

Arnold's ‘pee-pee’ went inside her ‘pee-pee,’ that Arnold's ‘pee-pee’

touched her ‘butt,’ that Arnold's hand touched her ‘pee-pee,’ and

that Arnold's mouth touched her ‘pee-pee.’ ” Id. at ¶ 38. The fact

that the victim already had undergone a “rape-kit examination” did

not dissuade the majority from finding that the foregoing statements

were necessary for subsequent medical diagnosis or treatment. Id. at

¶ 39. The majority also found nothing objectionable about

considering the child's statements individually to determine which

ones were for medical diagnosis or treatment and to exclude those

that were not. Id. at ¶ 42. Finally, the Ohio Supreme Court found

nothing objectionable about the fact that police watched the

interview or the fact that information obtained for medical purposes

ultimately was used to prosecute the defendant. These

considerations did “not change the fact” that some of the child's

statements “were made for medical diagnosis and treatment.” Id. at

¶ 43.

{¶60} As in Arnold, a portion of P.W.’s statements described the

sexual acts Larr performed on her and were thus relevant to medical

diagnosis or treatment and, hence, admissible. As to young children,

the identity of the perpetrator of abuse is a treatment issue. This is

an exception to the general rule that the identity of the perpetrator is

not relevant to diagnosis/treatment. Ohio v. Clark, 576 U.S. 237,

247–48, 192 L.Ed.2d 306, 135 S.Ct. 2173, 2182 (“Statements by

very young children will rarely, if ever, implicate the Confrontation

Clause.”); United States v. Joe, 8 F.3d 1488, 1494 (10th Cir.

1993) (citing cases from the 4th, 8th and 9th Circuits).

{¶61} We find under the facts of this case that the statements made

by P.W. to Celeste Price an interviewer at the child-advocacy center

were made for medical diagnosis and treatment, and therefore

admissible under Evid.R. 803(4). The statements are therefore

nontestimonial and are admissible without offending the

Confrontation Clause.

{¶62} Larr's Third Assignment of Error is overruled.

State v. Larr, supra.

Procedural Default

Thus the Fifth District found portions of Petitioner’s Confrontation Clause claims barred

by his procedural default in failing to make objections in the trial court.

The procedural default doctrine in habeas corpus is described by the Supreme Court as

follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,

456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 582 U.S. 521, 527 (2017).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);

Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th

Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261

F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

can overcome a procedural default by showing cause for the default and prejudice from the asserted

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

Ohio has a relevant procedural rule: parties must object during trial in order to preserve

error for review. Ohio’s contemporaneous objection rule — that parties must preserve errors for

appeal by calling them to the attention of the trial court at a time when the error could have been

avoided or corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the

syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and

independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012),

citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315

(6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482

F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell,

320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v.

Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982).

The Fifth District enforced this rule against Petitioner by declining to rule on the merits of

his Confrontation Clause claims where there had been no contemporaneous objection. As noted,

it has been held to be an adequate and independent ground of decision.

Petitioner offers no excusing cause and prejudice but claims his procedural default is

excused by his actual innocence. 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).

While Petitioner claims he is actually innocent, he has produced no new evidence at all of

actual innocence, much less evidence of the sort described in Schlup. Petitioner’s actual innocence

claim has not been established and accordingly he has procedurally defaulted all Confrontation

Clause claims not actually ruled on by the Fifth District.

Confrontation Clause Merits

For those Confrontation Clause claims decided on the merits by the Fifth District,

Petitioner must show that the decision is an objectively unreasonable application of Supreme Court

precedent. He has failed to do so. The Fifth District found the victim’s statements to Celeste

Prince were properly found to have been made for purposes of diagnosis and therefore non-

hearsay. Petitioner has not shown this is contrary to any relevant Supreme Court precedent or,

under § 2254(d)(2), unreasonable in light of the state court evidence.

Petitioner’s Confrontation Clause claims should therefore be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that 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.

December 5, 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.