# Grim

> District Court, S.D. Ohio · February 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11277649

## Case

- **Full name:** Ethan Grim v. Warden, Belmont Correctional Institution
- **Court:** District Court, S.D. Ohio
- **Decided:** February 9, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11277649. Public record. Not legal advice.