Grim

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ETHAN GRIM,

Petitioner, : Case No. 2:25-cv-00258

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

Magistrate Judge Michael R. Merz

WARDEN, Belmont

Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought pro se by Petitioner Ethan Grim to obtain relief from

his conviction in the Logan County Court of Common Pleas (Petition, ECF No. 1). The case is

ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 10), the Warden’s

Return of Writ (ECF No. 11), and Petitioner’s Traverse (ECF No. 40).

Litigation History

The Third District Court of Appeals made the following findings on direct appeal:

[*P2] On November 27th, 2019, four individuals conspired to steal

from a drug dealer in Bellefontaine. Three of the four individuals

unlawfully entered the drug dealer's residence while the fourth

individual waited in the car outside. During the home invasion,

multiple residents were assaulted, and two residents were shot in the

head and killed.

[*P3] One of the home-invaders, Elijah Barrett ("Barrett"), was shot

in the leg during the incident and he was taken to a hospital in

Urbana. Barrett ultimately confessed and named his three

accomplices: Ethan Grim ("Grim"), Austin Allen ("Allen"), and

Josia Bush ("Bush"). Allen, the driver who waited outside during

the home invasion, also confessed to his role and implicated Grim,

Bush, and Barrett as well.

[*P4] Grim was less than a month shy of his 18th birthday when the

crimes were committed. Barrett and Bush were also juveniles but

Allen, the driver, was an adult.

[*P5] A delinquency complaint was filed against Grim charging him

with, inter alia, Complicity to Aggravated Burglary and Complicity

to Murder. On December 30, 2019, the State filed a motion to

relinquish jurisdiction over Grim seeking a discretionary bind over

pursuant to R.C. 2152.12(B).

[*P6] Over objection from Grim, the juvenile court held a joint

probable cause hearing for all three juveniles. The juvenile court

ultimately determined that there was probable cause to believe that

Grim and the two others committed the charged acts.

[*P7] On June 1, 2021, an amenability hearing was held on the

State's motion to relinquish jurisdiction. After hearing the testimony

presented and reviewing the submitted evaluation, the juvenile court

determined that the factors in favor of transfer outweighed the

factors against transfer, that Grim was not amenable to rehabilitation

in the juvenile system, and that the safety of the community required

that Grim be subject to adult sanctions. The juvenile court granted

the State's motion to relinquish jurisdiction and bound Grim over to

the Logan County Common Pleas Court. Prior to the hearing, a

social history investigation and a forensic psychological evaluation

of Grim were conducted.

State v. Grim, 2023-Ohio-4474, ¶¶ 2-7 (Ohio App. 7th Dist. Dec. 7, 2023).

On July 13, 2021, after the transfer of jurisdiction, Grim was indicted for Complicity to

Aggravated Burglary in violation of Ohio Revised Code § 2911.11(A)(1) and Ohio Revised Code

§ 2923.03 (Count 1), Complicity to Aggravated Robbery in violation of Ohio Revised Code §

2911.01(A)(3) and Ohio Revised Code § 2923.03 (Count 2), Complicity to Kidnapping in violation

of Ohio Revised Code § 2905.01(A)(2) and Ohio Revised Code § 2923.02 (Count 3), two counts

of Complicity to Felonious Assault in violation of Ohio Revised Code § 2903.11(A)(2) and Ohio

Revised Code § 2923.03 (Counts 4 and 5), and two counts of Complicity to Murder in violation of

Ohio Revised Code § 2903.02(B) and Ohio Revised Code § 2923.03 (Counts 6 and 7). All seven

counts in the indictment contained three-year firearm specifications pursuant to Ohio Revised

Code § 2941.145(A)(Indictment, State Court Record ECF No. 10, Ex. 28).

Grim pled not guilty and the case was tried to a jury in January 2023 which found Grim

guilty on all counts and specifications. On January 25, 2023, Grim was sentenced to serve an

aggregate, indefinite prison term of 50 years to life, with parole eligibility after 25 years. Id. at Ex.

42).

Represented by new counsel, Grim appealed to the Ohio Third District Court of Appeals,

raising the following assignments of error:

1. Appellant’s rights to due process under the state and federal

constitutions were violated when the juvenile court denied appellant

the ability to confront and cross-examine his accusers.

2. Appellant’s convictions were not supported by the weight of the

evidence.

3. The trial court abused its discretion in admitting hearsay evidence

from a non-testifying codefendant.

4. The trial court abused its discretion in admitting an out-of-court

statement to explain the conduct of an accomplice.

5. The trial court erred by crafting a sentence based on testimony

from a codefendant’s separate trial that was not in the record in this

case.

(Appellant’s Brief, State Court Record, ECF No. 10, Ex. 45, PageID 230-58). The Third District

overruled all of these assignments of error and affirmed the conviction. State v. Grim, supra. More

than a year later, Grim appealed to the Ohio Supreme Court (Notice of Appeal, State Court Record,

ECF No. 10, Ex. 48). The Court denied leave to file a delayed appeal. Id. at Ex. 50. Grim filed

his Petition in this Court on March 17, 2025, pleading the following grounds for relief:

Ground One Appellant's rights to due process under the federal

constitution were violated when the juvenile court denied appellant

the appellant the ability to confront and cross-examine his accuser,

In violation of the Sixth and Fourteenth Amendment of the U.S.

Constitution.

Supporting Facts: In this case the juvenile court held a joint

probable cause hearing for all three juvenile codefendant Ethan

Grim (petitioner), Elijah Barrett, Josia Bush. Grim filed a motion

opposing the joint hearing, [No. 19-JD-119 1/30/20 motion] based

on violations to the Confrontation Clause, for admitting a

codefendant's testimonial confession incriminating the defendant.

The motion was denied. The petitioner renewed continuing

objections in regards to the statements of the codefendants and the

juvenile court granted the continuing motion. [No. 19-JD-l19

7/15/20 motion] (Tr. 227, 230, 244, 252, 254, 319, 321)

1. Throughout the hearing Detective Slayer repeatedly and

pervasively testified about statements from codefendants,

including the adult codefendants Austin Allen, and Barrett

implicating the petitioner. (Tr. 227-228, 230) The prosecution

played recordings of various statements given by Bush, Barrett,

and Allen. (Tr. 244, 252, 254-255, 257) None of these

codefendants testified. The hearsay evidence was the main

evidence implicating the petitioner. Counsel should have had the

opportunity to cross examine the witnesses who were available

to testify instead of relying on hearsay evidence.

The state appellate courts erroneously declined to apply the

confrontation clause and the hearsay rules misconstruing the

juvenile probable hearings by comparing those hearings to

preliminary hearings, Grand jury proceedings in criminal courts.

The state courts failed to identify any U. S, Supreme court decision

that held confrontation rights do not apply in the juvenile bindover

hearing. The State court(s) failed to recognize the procedural

safeguards in the juvenile context are protected through the due

process clause of the fourteenth amendment. The court essentially

held that confrontation clause and the fairness that accompanies due

process does not apply at the probable cause hearing for juveniles in

regards to the Sixth Amendment Confrontation Clause Therefore,

the court has essentially found only part of the Sixth Amendment

applies at the juvenile hearing.

2. The petitioner contends that a juvenile facing bindover to adult

court with the attendant criminal penalties should at least have

equivalent due process protections. The United States supreme court

has recognized that the preliminary hearings are a critical stage in

the trial proceeding, in which the Sixth and the Fourteenth

amendments apply, and the opportunity for cross-examination

afforded at a preliminary examination may satisfy the Confrontation

Clause in at least some circumstances. Therefore, the confrontation

clause can be applied at the preliminary stage and therefore applies

in the juvenile preliminary hearings as well.

The Petitioner contends the state courts analogizing a juvenile

bindover hearing to a preliminary hearing in a criminal case ignores

that juvenile defendants have a liberty interest at bindover hearings

that are far greater than an adult offender facing a preliminary

hearing. An adult offender is merely facing a screening stage; The

offender is already subject to the punitive adult criminal justice

system and the prospect of a lengthy prison term merely by being

charged. As compared to a juvenile at a bindover hearing who at risk

of losing the benefits of the juvenile system with the focus on

rehabilitation and limited confinement options. The Supreme Court

of the United States has held that the bindover hearing is a 'critically

important proceeding' and that the hearing 'must measure up to the

essentials of due process and fair treatment.

The state courts ignored that the United States Supreme Court

confirmed that a juvenile court must recognize a juvenile's due

process rights and that "neither the Fourteenth Amendment nor the

Bill of Rights is for adults alone. The Petitioner contends that

"numerous constitutional safeguards normally reserved for criminal

prosecutions are equally applicable

to juvenile delinquency proceedings."

Ground Two: The trial court abused its discretion in admitting

hearsay evidence from a non-testifying Co-defendant in violation of

his Sixth and Fourteenth amendment of the U.S. Constitution.

Supporting Facts: The Sixth Amendment of the U.S. Constitutions

restricts the use of hearsay evidence used against criminal

defendants. The state courts allowed for a jail nurse to testify that

the petitioner's non-testifying codefendants shaved the residue off

his arms. The Petitioner objected to state substituting the non-

testifying codefendants with that of the Jail nurse. The court

overmled the hearsay objection on the grounds that it was made for

a medical diagnosis. (Tr. 452-453).

The nurse has no personal knowledge as to why the petitioner

shaved his arms. The nurse testimony allows for the jury to assume

that Grim shaved his arms to remove residue. Regardless of if the

evidence may not be used as truth of the matter, it was used in guised

to imply gunshot residue was also removed my Grim because he

shaved his arms. The nurse further contacted law enforcement and

passed the information along. A detective testified at trial that Grim

also had shaved arms when he was interviewed. The state's

presentation of this testimony to the jury shows the materiality of

the statement which a juror could use to determine guilt or

innocence. The testimony was prejudicial and the confrontation

clause was violated.

The court allowed the evidence for purposes of medical diagnosis, "

thus fitting a hearsay exception. (Id. at 452) The court ignored that

the statement it was not introduced at Grim's trial for a medical

diagnosis of the petitioner and is wholly irrelevant and prejudicial.

The Shaved arms was clearly introduced to sway the jury to believe

because Grim shaved his arm is implying he was guilty.

Ground Three The trial court erred in admitting an out-of-court

statement to explain the conduct of an accomplice in violation of his

Sixth and Fourteenth amendment of the U.S. Constitution denying

the petitioner a complete defense.

Supporting Facts: The Trial court over objection allowed

codefendant Allen to testify to out-of-court statements made by

Music of his phone call with Mr. Grim after the incident which

allegedly indicated Grim should kill Allen. There is no evidence in

the record that Music told Allen of the any conversation between

him and Grim. Allen testified he assumed it was his brother. The

court found that Music's Statements were not used as truth of the

matter but were used to show why Allen did what he did in running

away. (Tr. 532-533) Why Allen ran away was irrelevant to the state's

case. The fact that Allen was not actually on the phone to hear what

was actually said and if he overheard anything, that he could have

misinterpreted what he overheard, and those words were never

spoke. This type of evidence should have been excluded it denied

the petitioner his right to a complete defense.

The right to present a complete defense is abridged by evidence rules

that 'infringe upon a weighty interest of the accused' and are

"arbitrary" or "disproportionate to the purposes they are designed to

serve. The state used this hearsay evidence to pile more uncharged

allegations on Grim implying that he was going to kill Allen, too.

This is highly and unfairly prejudicial and directly connected to the

charged offenses by suggesting a plan to kill an untrustworthy

accomplice to cover up his involvement. A jury could have used this

type of prejudicial testimony to determine guilt or innocence where

it should not be weighed at all. The state posed this question where

Allen's conduct in running away was not relevant to guilt on the

charged offenses, was not equivocal, and did not need to be

explained. It was prejudicial and outweighed by the danger of unfair

prejudice and cannot connect the accuse[d] to the crime.

(Petition, ECF No. 1).

Procedural Default

Respondent asserts merits review of the Petition is barred by Petitioner’s failure to timely

appeal to the Supreme Court of Ohio from the decision of the Third District Court of Appeals.

That court handed down its decision December 11, 2023. See State v. Grim, supra. Grim had

forty-five days from that date to appeal to the Ohio Supreme Court under Sup. Ct. Prac. R. 6.01(A)

or until January 25, 2024. Petitioner’s Motion for Delayed Appeal was not filed until December

20, 2024 (Motion, State Court Record, ECF No. 10, Ex. 49). In seeking leave to file a delayed

appeal, Grim claimed that his appellate attorneys had not told him he had lost in the Third District

until about a week before January 25, 2024. Id. at PageID 1372. He characterized this as

ineffective assistance of appellate counsel. In language which is copied virtually verbatim in his

Traverse, he explains he could not afford to hire an attorney and therefore had to rely on inmate

law clerks at his place of incarceration. Id. The Ohio Supreme Court summarily denied the Motion

for delayed appeal. Id. at Ex. 50.

Ineffective assistance of appellate counsel can act as excusing cause for a procedural

default. Attorney error amounting to ineffective assistance of counsel can constitute cause to

excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985); Howard v. Bouchard,

405 F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999); Gravley v.

Mills, 87 F.3d 779, 785 (6th Cir. 1996). However, Murray v. Carrier also holds that the exhaustion

doctrine "generally requires that a claim of ineffective assistance of counsel be presented to the

state courts as an independent claim before it may be used to establish cause for a procedural

default in federal habeas proceedings." 477 U.S. at 489; See also Ewing v. McMackin, 799 F.2d

1143, 1149-50 (6th Cir. 1986). Attorney error cannot constitute cause where the error caused a

petitioner to default in a proceeding in which he was not constitutionally entitled to counsel, e.g.,

a discretionary appeal or state post-conviction proceeding. Coleman v. Thompson, 501 U.S. 722

(1991).

The ineffective assistance claim cannot be presented as cause if it was itself procedurally

defaulted in the state courts, unless one of the standard excuses for that procedural default exists,

to wit, actual innocence or cause and prejudice. Edwards v. Carpenter, 529 U.S. 446 (2000);

Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020); Scuba v. Brigano, 527 F.3d 479, 488 (6th

Cir. 2007). Ineffective assistance of counsel on appeal cannot constitute cause for failure to file a

timely application for reopening of the direct appeal under Ohio R. App. P. 26(B) since a person

is not entitled to counsel for the reopening. Riggins v. Turner, 110 F.3d 64 (6th Cir. 1997).

Ohio has a remedy for ineffective assistance of appellate counsel: an application for

reopening under Ohio R. App. P. 26(B). That rule requires that the application be filed within

ninety days of the relevant court of appeals decision. However, the record reveals Petitioner never

filed an App.R26(B) application. He therefore cannot rely on a claim of ineffective assistance of

appellate counsel to excuse his failure to timely appeal to the Ohio Supreme Court.

Petitioner next claims that “Due To Petitioner's Serious Mental Illnesses, As A Juvenile

(Child Offender), He Was Unabfo [sic] To File Timely Appeal To The Ohio Supreme Court

Without Aid Of Counsel.” This claim evidences several of Petitioner’s unsupported positions.

First of all, while Petitioner may have been a child when he committed the offenses for

which he is imprisoned and was still under the jurisdiction of the juvenile court until the bindover

order was entered, that court relinquished jurisdiction and Petitioner was tried and convicted as an

adult. He was an adult at the time he should have appealed to the Ohio Supreme Court and during

the time when he should have moved under Ohio App. R. 26(B) to litigate his claim of ineffective

assistance of appellate counsel. Any presumption that, as a juvenile, he lacked the capacity to

“understand . . . the legal process” disappeared when he became an adult.

Secondly, he asserts his “severe mental illness” excuses his default, relying on Atta v. Scutt,

662 F.3d 736 (6th Cir. 2011). In Atta, the Sixth Circuit held that a habeas petitioner was entitled

to an evidentiary hearing on his claim that his mental incompetence entitled him to equitable tolling

of the statute of limitations. However, the court required specific allegations of how the

incompetence caused the failure to timely file and noted petitioner’s documented long history of

serious mental illness. Nothing of that sort appears in the record here. The trial record shows no

suggestion that Petitioner was incompetent to stand trial nor was any mental illness issue raised on

direct appeal.

Petitioner faults the undersigned’s prior opinions on procedural default to be

an unreasonable application of Supreme Court precedent because

the Magistrate unreasonably refused to recognize and extend the

legal principle that juveniles are fundamentally different from adults

and should be treated differently during the application of the law.

See, Roper v. Simmons, 543 U.S. 551, 569-70. 125 S. Ct.1183.161

L. Ed. 2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011.

176 L. Ed. 2d 825 (2010). as modified (July 6, 2010); Miller v.

Alabama, 567 U.S. 460. 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012);

Montgomery v. Louisiana, 577 U.S.190, 1365. Ct. 718, 193 L Ed.

2d 599 (2016)).

(Traverse, ECF No. 40, PageID 1871-72).

The premises of this argument is flawed. The lower federal courts do not have authority

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

1214)(the "AEDPA"), to extend principles announced by the Supreme Court. Rather, the question

before a habeas court is whether the State court decision in the case is contrary to or an

unreasonable application of the holdings, not dicta, of relevant Supreme Court decisions.

Petitioner himself recognizes this rule when he writes “Clearly established federal law is to be

determined by the holdings (as opposed to the dicta) of the United States Supreme Court.”

(Traverse, ECF No. 40, PageID 1867, citing Parker v. Matthews, 567 U.S. 37 (2012); Ruimveld v.

Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005)). The Supreme Court of the United States has never

held that juveniles are presumed to be mentally incompetent or that that presumption carries

forward to an adult court when a juvenile court has relinquished jurisdiction.

Petitioner’s next argument against procedural default is “The Lower Court Has Not

Identified Any Independent State Procedural Rule That Petitioner Has Failed to Follow on

Discretionary Review.” (Traverse, ECF No. 40, PageID 1873). In asserting procedural default,

Respondent relied on O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999). Petitioner asserts that

O’Sullivan is “a federally created judicial ruling[,] not an adequate and independent State

procedural rule.” Id. at 1874.

In O’Sullivan the Supreme Court held

Because the exhaustion doctrine is designed to give the state courts

a full and fair opportunity to resolve federal constitutional claims

before those claims are presented to the federal courts, we conclude

that state prisoners must give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round

of the State's established appellate review process. Here, Illinois'

established, normal appellate review procedure is a two-tiered

system. Comity, in these circumstances, dictates that Boerckel use

the State's established appellate review procedures before he

presents his claims to a federal court.

Unlike the extraordinary procedures that we found unnecessary

in Brown v. Allen and Wilwording v. Swenson, a petition for

discretionary review in Illinois' Supreme Court is a normal, simple,

and established part of the State's appellate review process. In the

words of the statute, state prisoners have “the right ... to raise” their

claims through a petition for discretionary review in the State's

highest court. § 2254(c). Granted, as Boerckel contends, Brief for

Respondent 16, he has no right to review in the Illinois Supreme

Court, but he does have a “right ... to raise” his claims before that

court. That is all § 2254(c) requires.

Id.. at 844.

In Illinois, as the Supreme Court makes clear, review by the state supreme court is

completely discretionary. Nonetheless a habeas petitioner must seek to invoke that discretionary

review in order to exhaust his claims. Petitioner argues Ohio is the same and Ohio Supreme Court

review is also discretionary, but that would make O’Sullivan fully applicable to Petitioner’s

situation.

Petitioner next argues that any procedural default is excused by his actual innocence.

Petitioner offers no new evidence of actual innocence of the sort deemed necessary under Schlup

v. Delo, 513 U.S. 298 (1995), but instead purports to rely on evidence adduced in the juvenile court

proceedings which is not before this Court. As noted above, Petitioner’s trial counsel did not raise

a question of competence to stand trial and no such issue was raised on direct appeal.

Petitioner now asserts he received ineffective assistance of trial counsel because his trial

attorney did not explore a not guilty by reason of insanity plea. No such claim of ineffective

assistance of trial counsel was raised on direct appeal. Because it would presumably depend on

evidence dehors the record, such a claim could have been raised in a petition for post-conviction

relief under Ohio Revised Code § 2953.21, but no such petition has been filed and the time for

doing so has expired. The same is true of this claim he was denied his statutory right to a

competency hearing in the adult court.

At about the mid-point of his Traverse, Petitioner inserts an argument that the adult court

lacked subject matter jurisdiction over the “Charges Of Complicity to Aggravated Robbery;

Complicity to Kidnapping, Complicity to Felonious Assault; and three-year firearm specifications

attached to those offenses” (Traverse, ECF No. 40, PageID 1877). It is unclear why this claim is

made at this point in the proceedings. Lack of subject matter jurisdiction is not a pleaded ground

for relief and new grounds for relief cannot be added by including them in a traverse. Jalowiec v.

Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).

Nor would lack of subject matter jurisdiction in the Common Pleas Court excuse Petitioner’s

procedural default in failing to timely appeal to the Ohio Supreme Court.

Merits Analysis

At Page 14 of the Traverse, Petitioner turns to arguing the merits of his claims.

Ground One: Violation of Confrontation Clause

In his First Ground for Relief, Petitioner argues he was denied his right to confront his

accusers when the juvenile court allowed into evidence at the probable cause hearing statements

by co-defendants implicating Grim in the offenses.

This claim was Petitioner’s first assignment of error on direct appeal and the Third District

decided it as follows:

{¶10} In his first assignment of error, Grim argues that his Due

Process rights, and his rights under the Confrontation Clause, were

violated when one of the State's witnesses was permitted to testify

regarding statements elicited from Grim's codefendants at the

probable cause hearing in juvenile court.

Standard of Review

{¶11} Generally, the admission of evidence lies within the broad

discretion of the trial court. State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, ¶ 62. However, we conduct a de novo review of

hearsay evidentiary rulings that implicate the confrontation

clause. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶

97.

Analysis

{¶12} In determining the State's motion for discretionary bindover

in this matter, the juvenile court held a joint probable cause hearing

for Grim, Bush, and Barrett. At the hearing, the State presented the

testimony of eight witnesses, one of whom was a detective with the

Bellefontaine Police Department. The detective testified to

statements made to him by Barrett and Allen that implicated Grim

in the crimes.

{¶13} Objections were made to the detective relaying out-of-court

statements made by Barrett and Allen. Attorneys for the juveniles

argued that since Barrett and Allen were not testifying, the evidence

was in violation of the Confrontation Clause. The State responded

that in a probable cause hearing, rather than a trial, there were

relaxed evidentiary standards and the Confrontation Clause did not

apply. The trial court agreed and permitted the detective to testify

regarding Barrett and Allen's statements to police.

{¶14} Grim now renews his argument on appeal, contending that

the detective's testimony recounting statements made by Grim's

codefendants was in violation of the Confrontation Clause.

However, Grim does acknowledge in his brief that Ohio Appellate

Districts have repeatedly declined to apply the Confrontation Clause

and strict hearsay rules to juvenile probable cause hearings. The

Twelfth District Court of Appeals recently addressed the issue as

follows:

The United States Supreme Court has explained that “[t]he

right to confrontation is basically a trial right.” Barber v.

Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255

(1968). A juvenile transfer hearing “is not a trial as it does

not ‘find as a fact that the accused minor is guilty of the

offense charged. It simply finds the existence of probable

cause to so believe.’ ”

State v. Garner, 6th Dist. Lucas No. L-18-1269, 2020-Ohio-4939, ¶

19, quoting State v. Iacona, 93 Ohio St.3d 83, 93 (2001).

The United States Supreme Court “has repeatedly declined

to require the use of adversarial procedures to make

probable cause determinations.” Kaley v. United States,

571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014).

The federal courts have repeatedly held that the Sixth

Amendment's Confrontation Clause does not apply to

preliminary hearings.4 Likewise, the Ohio Supreme Court

has held that the constitutional right to confront one's

accusers “relates to the actual trial for the commission of

the offense and not to the preliminary examination * * *.”

(Emphasis added.) Henderson v. Maxwell, 176 Ohio St.

187, 188, 198 N.E.2d 456 (1964).

State v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-

1627, ¶ 29-30, appeal allowed, 164 Ohio St.3d 1419, 2021-Ohio-

2923, and appeal dismissed as improvidently allowed, 168 Ohio

St.3d 631, 2022-Ohio-1607.

{¶15} Similar to the appellant in Fuell, Grim cannot cite a single

Ohio case determining that the Confrontation Clause applies at

juvenile transfer/probable cause hearings, or that a detective's

“hearsay” testimony at a juvenile probable cause hearing creates a

Due Process issue. Id. at ¶ 32. In fact, contrary to Grim's

unsupported claim on appeal, other Ohio Appellate Courts have

made similar findings to Fuell. See In re B.w., 7th Dist. Mahoning

No. 17 MA 0071, 2017-Ohio-9220, ¶ 48 (going so far as to state a

juvenile court erred by not considering incriminating statements

made to a detective from another source in a juvenile bindover

proceeding); State v. Powell, 4th Dist. Gallia No. 20CA3, 2021-

Ohio-200, ¶ 23; State v. LaRosa, 11th Dist. Trumbull No. 2018-T-

0097, 2020-Ohio-160, ¶ 38-39; State v. Garner, 6th Dist. Lucas No.

L-18-1269, 2020-Ohio-4939; State v. Dell, 5th Dist. Licking No.

2021CA00079, 2022-Ohio-2483.

{¶16} After reviewing the applicable legal authority, we agree with

the other Ohio Appellate Districts, and the statements from the

Supreme Court of the United States, that confrontation is essentially

a “trial right.” As the probable cause hearing here did not constitute

a trial, the Confrontation Clause does not warrant reversal.

Similarly, we find no Due Process violation here because Grim was

afforded all proper procedures in the juvenile proceedings pursuant

to statute. Therefore, Grim's first assignment of error is overruled.

State v. Grim, 2023-Ohio-4474 (Ohio App. 3d Dist. Dec. 11, 2023).

Petitioner offers no authority to show that this decision is an objectively unreasonable

application of the relevant Supreme Court precedent. He argues that juveniles facing bindover to

adult court have an important liberty interest in remaining in the juvenile system, but the Supreme

Court has not made that the test for applying the Confrontation Clause. Homeowners have

important Fourth Amendment interests in the privacy of their homes, but the Supreme Court has

never held that meant search warrants could be issued only on a probable cause finding tested by

cross-examination.

Petitioner’s First Ground for Relief is without merit.

Manifest Weight of the Evidence

In his Traverse, Petitioner interjects between his argument on Ground One and the

argument on Ground Three, his claim that his conviction is against the manifest weight of the

evidence (Traverse, ECF No. 40, PageID 1879-80). No manifest weight claim is pleaded in the

Petition. If it were, it would be dismissable as stating a claim not cognizable in habeas corpus.

Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). It cannot be deemed added to the Petition

either as a sufficiency of the evidence clam or as a manifest weight claim because amendments

cannot be made in a traverse. Jalowiec, supra.

Ground Two: Abuse of Discretion in Admitting Hearsay About Shaved Arm

In his Second Ground for Relief, Petitioner asserts the trial court abused its discretion in

admitting testimony by a nurse regarding a co-defendant’s shaving of his arm after the offenses.

Grim raised this as an assignment of error on direct appeal and the Third District decided it as

follows:

{¶43} In his third assignment of error, Grim argues that the trial

court improperly admitted hearsay evidence at trial from a non-

testifying codefendant.

Standard of Review

{¶44} As stated previously, a trial court's evidentiary rulings are

generally reviewed under an abuse of discretion standard. State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97. An abuse of

discretion is a decision by the trial court that is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

Analysis

{¶45} On November 29, 2019, Bush and Grim were brought to JDC

and a nurse conducted a medical evaluation of them. The nurse

testified at trial that when she was putting the blood-pressure cuff on

Bush's arm, she noticed that Bush had some “open nicks” on his

arm. (Tr. at 452). The nurse asked Bush if he shaved his arms and

Bush responded that he did because he was “shaving the residue

off.” (Id. at 453). The nurse contacted law enforcement and passed

the information along. A detective testified at trial that Grim also

had shaved arms when he was interviewed.

{¶46} Grim's attorney objected to the statements of Bush “shaving

the residue off” being brought in through the JDC nurse, and the trial

court overruled the objection finding that the statement “was done

for purposes of medical diagnosis,” thus fitting a hearsay exception.

(Id. at 452). Grim renews his argument on appeal, contending that

the trial court erred because removing “residue” was not reasonably

pertinent to diagnosis or treatment under Evid.R. 803(4).

{¶47} The State counters by reasserting that the nurse was asking

Bush about the cuts on his arms for purposes of medical diagnosis

under Evid.R. 803(4). In addition, the State argues that the “shaved

arms” issue does not go directly to the truth of the matter asserted.

{¶48} We note that we do not agree with the State's argument that

the evidence does not go to the truth of the matter asserted as the

shaved arms for purposes of removing “residue” constitutes

circumstantial evidence to establish identity of the perpetrators.

However, as the trial court indicated, there could be some medical

purpose for asking a juvenile why he has cuts on his arms when

conducting a medical evaluation, such as ensuring the cuts were not

self-inflicted. Therefore the trial court's ruling that the hearsay

exception for medical diagnosis was applicable was not

unreasonable or arbitrary.

{¶49} Nevertheless, even if we determined that the testimony that

went beyond Bush shaving his arms to his statement that he wanted

to get the “residue off” was inadmissible hearsay, we still find that

the remaining evidence overwhelmingly supports the convictions

beyond a reasonable doubt, thus the error would be harmless

because it is so inconsequential compared to the remaining

compelling evidence. See State v. Boaston, 160 Ohio St.3d 46,

2020-Ohio-1061 (setting forth harmless error parameters in

situations where evidence was erroneously admitted). For these

reasons, Grim's third assignment of error is overruled.

State v. Grim, supra.

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). Whether or not a

state court trial judge has abused his or her discretion in admitting evidence is not a constitutiomnal

question. In other words, abuse of discretion is not a denial of due process. Sinistaj v. Burt, 66

F.3d 804 (6th Cir. 1995). Petitioner’s Second Ground for Relief fails on the merits.

Ground Three: Denial of Right to Present a Complete Defense

In his Third Ground for Relief, Grim complains that the trial court’s admission of testimony

by a co-defendant about the content of a telephone conversation between that co-defendant and

Grim denied Grim his right to present a complete defense.

Grim presented this claim as his Fourth Assignment of Error on direct appeal and the

appellate court decided it as follows:

¶50} In his fourth assignment of error, Grim argues that the trial

court improperly permitted Allen to testify regarding a phone

conversation he overheard Grim having with Grim's older brother

after Barrett had been dropped off at the hospital. Grim argues that

the testimony constituted inadmissible hearsay, and that it was

extremely prejudicial.

Analysis

{¶51} When Allen, the driver, was testifying on direct examination,

the following exchange occurred:

Q. So you dropped [Barrett] off at the hospital. You didn't

drive up to the emergency room doors, did you?

A. No.

Q. Where did you drop him off at?

A. Like I said, there's a side street behind Mercy Health,

and so we pulled up to the stop sign, [Barrett] got out there.

Q. And he walked up to the hospital?

A. Yeah

Q. Okay. So then what happens? What – you and [Grim]

and [Bush] are still in the car. What happens?

A. So, we take that stop sign, we turn right, and we come

down and then we turn left and we get in some suburban

neighborhood. I don't know where we're at. I don't know

Urbana very well. [Grim's] on the phone with I'm going to

assume it was his brother, it was Sway. He gets on the

phone and his brother asked him, he said, do you trust him

with a life sentence?

[DEFENSE COUNSEL]: Objection.

THE WITNESS: He said no.

THE COURT: Hang on one second.

[PROSECUTOR]: So, this doesn't go to the truth of the

matter asserted, it just goes to show what happens in the

next order of events here.

THE COURT: Okay. [Defense Counsel], do you have – do

you want to add to that?

[DEFENSE COUNSEL]: Normally that's used when it's a

police officer in an investigation. I don't think that applies

to a lay witness.

THE COURT: I think it applies. Ladies and gentleman of

the jury, again, what Mr. Allen tells you the person on the

other end of the phone named Sway said is not being

offered for the truth of the matter of what Sway said, it's

being offered to show how Mr. Allen acted in a particular

manner in response to that rather than prove the matter of

proof of what the other person, Mr. Sway said. So you're

not to consider the truth of the matter of what Mr. Sway

said, just consider the testimony about this as to [the] effect

it had on Mr. Allen. You may proceed, [prosecutor].

Q. So what did you overhear?

A. So, I overheard – the radio was off in the car and that

car ran [sic] was a quiet car, so, [Grim's] on the phone with

Sway and he said do you trust him with a life sentence.

[Grim] said no. He [Sway] said then you know what to do.

Q. So what did you do?

A. Next opportunity I got, as soon as I pulled the car over,

I put it in park and I jumped out and said I got to pee. So I

go behind this fenced-in area, and I overheard [Grim] tell

Bush You ready to do this? So I just took off.

(Tr. at 532-534).

{¶52} Grim contends that the trial court erred by permitting Allen

to testify regarding what Allen overheard during Grim's phone

conversation. He argues that Allen's conduct in running away was

not relevant to the guilt on the charged offenses and it did not need

to be explained. He argues that because the testimony suggested that

Grim would have potentially killed Allen, it was highly prejudicial

hearsay and should have been excluded.

{¶53} Even if we assumed, without finding, that Grim was correct

that the evidence should have been excluded, the trial court

minimized any impact of the statements by providing

an immediate limiting instruction, telling the jury that “Sway's”

statements were only to be considered for purposes of why Allen got

out of his vehicle. A jury is presumed to follow curative

instructions. State v. Garner, 74 Ohio St.3d 49, 1995-Ohio-168.

¶54} Moreover, we emphasize that the most damning statement that

occurred in the cited segment was categorically not hearsay, which

was when Allen testified to Grim asking Bush if he was “ready to

do this?” Evid.R. 801(D)(2). Any statement made by Grim's brother

on the phone carries little impact if Grim does not make his own

statement indicating that he may act on it.

{¶55} Finally, the erroneous admission of hearsay is subject to

harmless error analysis. State v. Powell, 132 Ohio St.3d 233, 2012-

Ohio-2577, ¶ 64. Pursuant to Crim.R. 52(A), “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall

be disregarded.” In order to determine whether substantial rights

were affected, we must determine whether there was prejudice,

whether the error was harmless beyond a reasonable doubt, and

whether the remaining evidence provides overwhelming evidence

of guilt. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 25-

31.

{¶56} Here, we unequivocally find that any purported error was

harmless beyond a reasonable doubt. Any prejudice was minimized

by the trial court's instruction, and the remaining evidence provides

overwhelming evidence of guilt. Furthermore, the direct and

circumstantial evidence tying Grim to the crimes is overwhelming

beyond a reasonable doubt establishing Grim's guilt. For these

reasons, Grim's fourth assignment of error is overruled.

State v. Grim. supra.

Federal habeas courts do not sit to correct asserted error in trial court evidentiary rulings

except in rare circumstances. Grim has not shown how the Third District’s ruling here is somehow

contrary to or an objectively unreasonable application of Supreme Court precedent. Indeed his

Traverse cites no Supreme Court authority whatsoever (ECF No. 40, PageID 1881-82). His

pleading is couched in terms of abuse of discretion, but we do not review state court decisions on

that basis. Sinistaj, supra.

Request for Evidentiary Hearing

Grim concludes his Traverse by requesting an evidentiary hearing on his claims that he is

not guilty by reason of insanity and that is trial attorney was ineffective for not pursuing that

defense. An evidentiary hearing is precluded by 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).

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.

February 9, 2026.

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.