Tumblin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

BRAYDEN J. TUMBLIN,

Petitioner, : Case No. 2:25-cv-00233

- vs - District Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

WARDEN, Noble Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action pursuant to 28 U.S.C. §2254 was brought pro se by Petitioner

Brayden Tumblin to obtain relief from his conviction in the Coshocton County Court of Common

Pleas for aggravated trafficking in drugs (Petition, ECF No. 3). The case is ripe for decision on

the Petition, the State Court Record (ECF No. 5 & 6), the Return of Writ (ECF No. 7) and

Petitioner’s Reply (ECF No. 13). The Magistrate Judge reference in the case was recently

transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF

No. 14).

Litigation History

On March 21, 2022, Petitioner was indicted with on one count of Aggravated Trafficking

in Drugs – methamphetamine – with the specifications that it occurred in the vicinity of a juvenile

and in an amount equal to or greater than the bulk amount but less than five times the bulk amount

in violation of Ohio Revised Code § 2925.03(A)(2)(Indictment, State Court Record, ECF No. 5,

Ex. 1). After Tumblin withdrew his guilty plea, a trial jury found him guilty as charged. (Verdict,

State Court Record 5, Ex. 16).

Tumblin then appealed to the Ohio Fifth District Court of Appeals which affirmed. State

v. Tumblin, 2023-Ohio-4099 (5th Dist. Nov. 14, 2023). The Ohio Supreme Court declined

jurisdiction over a subsequent appeal. State v. Tumblin, 173 Ohio St. 3d 1432 (2024). Tumblin

then filed his Petition in this case, pleading the following three grounds for relief:

Ground One: The jury and trial court erred, respectively, by

returning a verdict of guilty and denying appellant’s Crim. R. 29

motion, as insufficient evidence was presented to sustain a

conviction for aggravated trafficking.

Supporting Facts: The evidence was insufficient to prove beyond

a reasonable doubt that he engaged in aggravated trafficking in

drugs. “Without evidence of any sort of overt act taken to ship,

prepare for shipment, transport, deliver, prepare for distribution, or

distribute the drugs, there is insufficient evidence to sustain a

conviction for drug trafficking.

Ground Two: Motion to suppress was improperly denied, as the

evidence presented showed that the arresting officer(s) failed to

abide by the requirements of R.C. 2935.12 governing nonconsensual

entry when executing the arrest warrant.

Supporting Facts: The trial court erred in overruling his motion to

suppress. Specifically, the officers failed to abide by R.C. 2935.12

when attempting to serve the arrest warrants and entered his home

without consent and forcefully against warrant requirements.

Ground Three: The trial court erred and abused its discretion when

it denied defendant/appellant’s challenge for cause as to a juror who

expressly stated their actual bias to the court, resulting in the

impaneling of a biased juror, to the prejudice of defendant/appellant

and a violation of his right to due process of law.

Supporting Facts: The trial court “abused its discretion” by

impaneling a biased juror. Specifically, that Juror Number 8, L. C.,

expressed bias toward law enforcement and the State of Ohio.

(Petition, ECF No. 3, PageID 45).

Analysis

Ground One: Conviction on Insufficient Evidence

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

evidence. He raised this claim as his First Assignment of Error on direct appeal and the Fifth

District decided it as follows:

{¶22} In his First Assignment of Error, Tumblin argues the evidence

was insufficient to prove beyond a reasonable doubt that he engaged

in aggravated trafficking in drugs.

Standard of Appellate Review–Sufficiency of the Evidence.

{¶23} 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; State v. Jordan, Slip Op. No. 2023-Ohio-3800, ¶13. “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.

{¶24} 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, 152 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 Tumblin was

guilty beyond a reasonable doubt of Aggravated Trafficking in

Drugs in violation of R.C. 2925.03(A)(2)/ (C)(1)(c)

{¶25} Tumblin does not challenge either the identity of the drugs as

methamphetamines, a Schedule II drug, or the weight of drugs found

as bulk amount but less than five times bulk amount. Further,

Tumblin does not challenge the jury's finding that the offense was

committed in the vicinity of a juvenile, i.e. his ten-year-old brother

and thirteen-year-old step-sister. Rather, Tumblin contends,

“Without evidence of any sort of overt act taken to ship, prepare for

shipment, transport, deliver, prepare for distribution, or distribute

the drugs, there is insufficient evidence to sustain a conviction for

drug trafficking, even if the amount possessed is large.” [Appellant's

brief at 11].

{¶26} Tumblin was convicted of Aggravated trafficking in

drugs. R.C. 2925.03(A)(2) provides in relevant part,

(A) No person shall knowingly do any of the following:

* * *

(2) Prepare for shipment, ship, transport, deliver, prepare

for distribution, or distribute a controlled substance or a

controlled substance analog, when the offender knows or

has reasonable cause to believe that the controlled

substance or a controlled substance analog is intended for

sale or resale by the offender or another person.

{¶27} R.C. 2901.22 defines “knowingly” as follows:

(B) A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a

certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware

that such circumstances probably exist.

{¶28} Whether a person acts knowingly can only be determined,

absent a defendant's admission, from all the surrounding facts and

circumstances, including the doing of the act itself.” State v.

Johnson, 56 Ohio St.3d 35, 38, 381 N.E.2d 637, 56 Ohio St.2d 35

(1978) citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313

(1936): State v. Rojas, 64 Ohio St.3d 131, 139, 592 N.E.2d 1376

(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695

(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he tests for whether a

defendant acted knowingly is a subjective one, but it is decided on

objective criteria.” Id. citing State v. Adams, 4th Dist. Ross No. 94

CA 2041, 1995 WL 360247(June 8, 1995) and State v. Paidousis,

10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1,

2001). See also, State v. Butler, 5th Dist. Holmes No. 2012-CA-7,

2012-Ohio-5030, ¶ 25.

{¶29} Circumstantial evidence is that which can be “inferred from

reasonably and justifiably connected facts.” State v. Fairbanks, 32

Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph five of the

syllabus. Circumstantial evidence inherently possesses the same

probative value as direct evidence. State v. Lott, 51 Ohio St.3d 160,

167, 555 N.E.2d 293 (1990); see also State v. Treesh, 90 Ohio St.3d

460, 485, 739 N.E.2d 749 (2001); Hinerman v. Grill on Twenty

First, L.L.C., 5th Dist. Licking No. 2020 CA 00054, 2021-Ohio-859,

2021 WL 1045729, ¶ 88. Moreover, “[a] conviction can be sustained

based on circumstantial evidence alone.” State v. Franklin, 62 Ohio

St.3d 118, 124, 580 N.E.2d 1 (1991).

{¶30} Lay witness testimony of a police officer is admissible

under Evid.R 701 where the officer based his opinion on his police

training and experience. Further, his opinion can be helpful to the

trier-of-fact in determining whether the drugs were for sale or

personal use. State v. McClain, 6th Dist. Lucas No. L-10-1088,

2012-Ohio-5264, ¶13; State v. Walker, 11th Dist. Lake Nos. 2022-

L-077, 217 N.E.3d 79, 2023-Ohio-1949, ¶39; Law-enforcement

officers are “routinely allowed to testify that circumstances are

consistent with [the] distribution of drugs rather than personal

use.” United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir.

2004) (collecting cases).

{¶31} Former Detective Woitel testified that based upon his training

and experience surveillance cameras and monitors are used by

individuals who sell drugs, as opposed to individuals who merely

use drugs. 1T. at 115-116. He further testified that he found in the

bedroom not one, but three digital scales of differing sizes. Id. at

121-122; State's Exhibits 8, 9 and 10. Woitel testified that drug

dealers used such scales to weigh the product before selling it

because it is more accurate than merely “eyeballing the amount.” Id.

In that way, the seller will not lose money by selling too much. Id.

The former detective found Ziplock bags with weights to calibrate

the scales. 1T. at 123-124. Two plastic bags with white residue were

also recovered. Id. at 124; State's Exhibit 12. The former detective

testified that such bags can be used to put drugs in for resale. Id. at

125. The former detective further testified that based upon his

training and experience a user generally buys around 3.5 grams of

methamphetamine at an average cost of $40.00. 2T. at 192-193.

Tumblin had close to 11 grams in his possession. Id. at 193. He

noted that sellers will take that amount and try to sell off some of it

to make money. Id. at 198.

{¶32} In summary, based upon his training and experience, Woitel

testified that the amount of drugs recovered, the scales the baggies

and other containers would indicate drug trafficking as opposed to

possession. Id. at 128-129.

{¶33} Plastic baggies, digital scales, and video surveillance are

often used in drug trafficking which could constitute circumstantial

evidence that Tumblin was using these items to commit that

crime. See, State v. Cutlip, 7th Dist. Belmont No. 21 BE 0032, 2022-

Ohio-3524, ¶101; State v. Kent, 8th Dist. Cuyahoga No. 109118,

2022-Ohio-834, ¶49; State v. Malott, 12th Dist. Nos. CA2007-02-

007, CA2007-02-008, 2008-Ohio-2114, ¶28; State v. Fain, 5th Dist.

Delaware No. 06 CAA 20094, 2007-Ohio-4854, ¶38. The state

presented evidence that in his interview with Woitel, Tumblin

admitted to selling methamphetamines to friends around two months

ago. 1T. at 143.

{¶34} 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 Tumblin was guilty of aggravated

trafficking in drugs in the vicinity of a juvenile, in an amount

equaling or exceeding bulk amount but less than five times the bulk

amount. 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 Tumblin's conviction.

{¶35} When reviewing a challenge to the sufficiency of the

evidence, we do not weigh the credibility of the evidence. State v.

Jordan, Slip Op. No. 2023-Ohio-3800, ¶18. Because the trier of fact

“is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in

weighing the credibility of proffered testimony,” a jury may rely on

circumstantial evidence to reasonably infer an offender's

knowledge. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984); see generally Rehaif v. United States,

588 U.S. ––––, ––––, 139 S.Ct. 2191, 2198, 204 L.Ed.2d 594

(2019); State v. Jordan, Slip Op. No. 2023-Ohio-3800, ¶26.

{¶36} Tumblin's First Assignment of Error is overruled.

State v. Tumblin, supra.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);

Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140

(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379

(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

Respondent concedes Tumblin fairly presented his First Ground for Relief to the Ohio

courts, but asserts the Fifth District’s decision is neither contrary to nor an objectively

unreasonable application of relevant Supreme Court jurisprudence, particularly Jackson v.

Virginia, 443 U.S. 307 (1979)(Return, ECF No. 7, PageID 660-70).

In arguing his First Ground for Relief, Petitioner argues: “In the instance [sic] case there

is no direct or even quality circumstantial evidence that Mr. Tumblin, the petitioner, did ever

actively engage in any drug sales.” (Traverse, ECF No. 13, PageID 701). There is indeed no direct

testimony of Petitioner’s making a sale. However, Tumblin did admit to having previously sold

to two friends. He claims now that those sales were out of his personal “stash,” but the law does

not immunize sales of that sort from being considered as evidence of willingness to sell. There

was competent testimony that Tumblin possessed paraphernalia commonly associated with

trafficking. While possession of scales could be consistent with being a careful purchaser of drugs,

they are also consistent with being a seller. In particular Tumblin had unusually complete exterior

surveillance of the place where he was living. He gave an excuse for that which would have been

consistent with not being a drug dealer, but it was also consistent with trafficking.

Tumblin attempts to detract from the credibility of the former detective who testified

against him by claiming that person left policing to drive a truck. However, he gives no record

reference for that supposed fact. If it is not a fact reflected in the record, this Court cannot consider

it. Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster bars a federal court “from admitting new

evidence upon which to assess the reasonableness of a state court's constitutional analysis.”

Upshaw v. Stephenson, 97 F. 4th 365, 372 (6th Cir. 2024), quoting Mitchell v. Genovese, 974 F.3d

638, 647 (6th Cir. 2020). Even if there is a record reference to support that alleged fact, a habeas

court cannot re-weigh the credibility of witnesses1.

Tumblin is correct that this is a heavily circumstantial evidence case. However,

circumstantial evidence and direct evidence inherently possess the same probative value and

therefore should be subjected to the same standard of proof. When the state relies on circumstantial

evidence to prove an essential element of the offense charged, there is no need for such evidence

1 Petitioner quotes some authority on considering whether a verdict is against the manifest weight of the evidence, but

that claim is distinguished from a sufficiency claim and is not itself cognizable in habeas because a different standard

of review applies. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).

to be irreconcilable with any reasonable theory of innocence in order to support a conviction.

Therefore, where the jury is properly and adequately instructed as to the standards for reasonable

doubt a special instruction as to circumstantial evidence is not required.” (Holland v. United

States, 348 U.S. 121(1954) followed; State v. Kulig, 37 Ohio St. 2d 157 (1974), overruled on other

grounds by State v. Jenks, 61 Ohio St. 3d 259 (1991).)

The Magistrate Judge concludes the Fifth District’s conclusion is entitled to deference.

Petitioner’s First Ground for Relief should therefore be dismissed.

Ground Two: Evidence Obtained in Violation of the Fourth Amendment

In his Second Ground for Relief, Petitioner complains that he was convicted on the basis

of evidence obtained in violation of his rights. In his Traverse he labels the failure to suppress the

evidence as an abuse of discretion. But abuse of discretion is not a denial of due process or any

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

In the Petition, Tumblin claims the warrant issued for his residence was issued without

compliance with Ohio Revised Code § 2935.12. But compliance with state procedural statutes is

not commanded by the United States Constitution. “A state cannot be said to have a federal due

process obligation to follow all of its procedures; such a system would result in the

constitutionalizing of every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d

1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds

by Thompson v. Keohane, 516 U.S. 99 (1995). This Court cannot review the Fifth District’s

decision that Ohio Revised Code § 2935.12 was not violated because he cannot review questions

of state law.

Ground Two should be dismissed for failure to state a claim upon which habeas corpus

relief can be granted.

Ground Three: Failure to Excuse a Biased Juror

In his Third Ground for Relief, Tumblin claims his right to an impartial jury was violated

when the trial court failed to excuse a biased juror. Petitioner raised this claim as his third

assignment of error on direct appeal and the Fifth District denied relief. Respondent asserts this

claim is procedurally defaulted because Tumblin did not carry the claim forward in his appeal to

the Supreme Court of Ohio.

In the portion of his Traverse directed to the biased juror claim,2 Tumblin does not discuss

his failure to appeal this issue to the Ohio Supreme Court. In order to preserve an issue for decision

in habeas, a petitioner must have fairly presented it to the state courts. In Ohio that includes

presentation to the Supreme Court on direct review. O'Sullivan v. Boerckel, 526 U.S. 838, 846-

2 That portion of the Traverse is labeled “Ground Five.” (ECF No. 13, PageID 725-29.)

7(1999). Because Tumblin did not present his biased juror claim to the Ohio Supreme Court and

is now barred from doing so and because Tumblin has offered no excusing cause and prejudice,

his biased juror claim must be dismissed with prejudice.

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.

December 12, 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.