Opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GEORGE GILBERT HILL, III, CASE NO. 4:25-cv-1408

Petitioner, DISTRICT JUDGE

J. PHILIP CALABRESE

vs.

MAGISTRATE JUDGE

WARDEN SHELBIE SMITH, JAMES E. GRIMES JR.

Respondent.

REPORT AND

RECOMMENDATION

George Gilbert Hill, III, filed a pro se Petition under 28 U.S.C. § 2254

for a Writ of Habeas Corpus. Doc. 1. Hill is currently in custody at the Belmont

Correctional Institution serving a sentence of imprisonment of 15 years to life

imposed by the Mahoning County Court of Common Pleas in State v. Hill, Case

No. 20cr757. The Court referred this matter to a Magistrate Judge under Local

Rule 72.2 for the preparation of a Report and Recommendation. For the

following reasons, I recommend that the Court deny Hill’s petition.

Summary of underlying facts

In habeas corpus proceedings brought under 28 U.S.C. § 2254, factual

determinations made by state courts are presumed correct. 28 U.S.C. §

2254(e)(1). “This presumption also applies to the factual findings that [a] state

appellate court makes on its review of the state trial record.” Johnson v. Bell,

525 F.3d 466, 474 (6th Cir. 2008). The petitioner has the burden of rebutting

that presumption by clear and convincing evidence. Id.

The Ohio Court of Appeals for the Seventh Appellate District

summarized the facts underlying Hill’s conviction following his trial as follows:

{¶2} Appellant and J.M. were in a relationship, and

Appellant was living in J.M.’s house. During their

relationship, multiple friends of J.M. observed she

had various injuries that caused them to be

concerned for her safety. One friend, E.E., testified

that she regularly observed bruises on J.M. E.E.

testified that J.M. also had black eyes on several

occasions, which J.M. attempted to cover with

makeup and dark sunglasses. E.E. testified that the

last time she saw J.M. alive, she noticed an injury

that particularly concerned her, “it was a bruise and

it was on the whole side of her face from up here all

the way down like (indicating). She got real nervous

and she wouldn’t look me in the eyes.” (Trial Tr., p.

513.)

{¶3} J.M.’s best friend, D.C., testified that sometime

after J.M. began dating Appellant, she noticed a

change in her behavior. “She stopped coming around

as much. I had asked her to go out and she would,

like, make up excuses. They actually – he would

come out a lot, too, with us, and then it just stopped.”

(Trial Tr., p. 553) The few times J.M. would stop at

her house, D.C. believed she had “snuck out” and did

not want Appellant to know she was there. Similar

to E.E., D.C. saw various injuries on J.M. and often

noticed J.M. wearing sunglasses, even when indoors.

{¶4} Two incidents stood out to D.C. Once she

observed a significant bruise from the victim’s

buttocks down her entire leg. Although J.M.

conceded that Appellant caused the injury when he

pushed her down a set of porch stairs, she refused to

allow D.C. to photograph the injury. On another

occasion, J.M. and Appellant appeared at D.C.’s

house party. J.M. hugged her and teared up. D.C.

asked her what was wrong, but Appellant had

noticed the encounter and announced that it was

time to leave. D.C. testified that “[t]hey went

upstairs. He was very angry. So I followed. And she

kind of turned around to, like, say she wanted to stay

and he kind of took her by the hair and pushed her.”

(Trial Tr., p. 559)

{¶5} On May 31, 202[0], Appellant and J.M. went to

the Steel Valley Bar and Grill, an establishment

that they regularly visited. Appellant originally told

law enforcement that they left the bar at 2:00 a.m.

because J.M. got into a fight with the bartender. He

later changed his story after videos showed they

were at home around 11:00 p.m. He then claimed

they argued once they arrived home about J.M.’s

fight with the bartender. He said she was highly

intoxicated, and videotaped J.M. stumbling around

the house as evidence. He said she consumed six or

seven long island iced tea drinks while at the bar.

However, the bartender, C.T., testified that she did

not argue with J.M. on that night or any other. In

fact, C.T. described J.M. as quiet and reserved, and

said she only spoke to two people. C.T. testified that

J.M. never ordered long island iced teas but

regularly ordered Tito’s with Sprite. D.C. confirmed

that this is what J.M. typically drank.

{¶6} Appellant conceded to law enforcement that he

and J.M. “got into it” that night. (Trial Tr., p. 402.)

However, officers were unclear whether he meant

they engaged in a physical or verbal altercation.

Regardless, Appellant told them that at some point,

J.M. stumbled in the bathroom, fell, and hit her head

on the toilet. He gave her a towel for the blood and

asked if she wanted to go to the hospital, but she

declined.

{¶7} Detective Greg Stepuk testified Appellant told

him that the morning after the incident:

[H]e woke up, saw that she was in distress,

snoring real loudly, is how he was saying it.

She wouldn’t wake up. He was trying to rouse

her. She wouldn’t wake up. He did describe

something with -- and I believe Attorney Wise

brought this up -- with the spoon. He was

explaining how he was trying to help her

breathe or whatever, putting this or prying into

her mouth or something along those lines. This

happened before he called 911, or that probably

happened within an hour before 911 was

notified.

(Trial Tr., p. 403.)

{¶8} Appellant admitted to the responding officers

that, despite J.M.’s apparent dire condition, he

waited one to two hours before he called 911. In

explanation, he claimed that his phone could not

make outgoing calls and he was forced to charge

J.M.’s phone in order to use it for the 911 call. The

officers found this explanation odd, noting that a

cellular phone charges fairly quickly, and can be

used after minimal charging. Appellant also claimed

that J.M. did not want to go to the hospital the night

before, so he was reluctant to call for help in order to

honor her wishes. Also, prior to calling 911,

Appellant called D.C. four or five times. Appellant

claims that he made the call to 911 an hour or two

after he woke up.

{¶9} Sydney Livermore, an EMT, responded to the

dispatch call. She assumed that the incident

involved a drug overdose due to J.M.’s age and the

information provided as to her condition. Once she

saw J.M., Livermore changed her mind, because

“you couldn’t move her limbs. She was seizing so she

was very rigid, and she was nonresponsive to any

stimuli.” (Trial Tr., p. 294.) Appellant, who was

“fairly relaxed,” provided limited information to

Livermore’s questions, which surprised her. Based

on her experiences, most people attempt to give as

much information as they are able following the

need for emergency help. Livermore did not detect

any odor of alcohol coming from J.M. She noticed

J.M. had a gash and bloody, matted hair on the back

of her head. When she removed J.M. from the bed,

the fitted sheet came off and she noticed the

mattress was soaked in blood.

{¶10} Officer Jamison Diglaw of the Boardman

Police Department testified that he asked Appellant

to see his phone multiple times, but Appellant never

gave him the phone. He also testified that he asked

to photograph areas in the house, but Appellant

“declined any -- allowing me to do any type of

photography or collect any evidence.” (Trial Tr., p.

318) He also noted that Appellant seemed reluctant

to provide much information.

{¶11} Around 7:25 a.m., shortly after J.M. arrived at

the hospital, nurses obtained a blood sample, then a

urine sample around 8:40 a.m. Neither of these

contained a meaningful level of alcohol, showing she

had consumed approximately one-half of an

alcoholic beverage. The only drugs found in her

system were administered by hospital staff.

{¶12} While the officers were still at the scene,

someone from St. Elizabeth’s hospital called and

asked for police personnel to document certain

injuries they discovered on J.M.’s body. Dispatch

sent Officer Daniel Baker of the Boardman Police

Department to the hospital. The nurses positioned

J.M.’s body to allow Officer Baker to photograph the

injuries of concern. Officer Baker testified that he

followed the lead of the nurses. He documented what

they told him to and did not decide, himself, which

areas of J.M.’s body to photograph.

{¶13} At some point after J.M. was taken to the

hospital, D.C. awoke and found she had missed calls

placed with J.M.’s phone. Concerned, she called

J.M., but Appellant answered. He calmly informed

her that J.M. was in a coma at the hospital. D.C.

hung up and immediately called J.M.’s family,

where she learned of J.M.’s grim condition. J.M. was

not expected to survive, and even if she did, would

undoubtedly reside in a nursing facility the

remainder of her life.

{¶14} J.M. did not survive. Dr. Joseph Felo

performed an autopsy and determined the manner

of death was homicide. On [J.M.]’s head, alone, he

discovered trauma associated with three distinct

injuries: one to the left side of her head, one to the

back of her head, and one to the right of her head.

He found nineteen bruises to the trunk area, but

could not give a definitive count as to her extremities

because in several areas the bruises were clustered.

Some of these appeared new, and others appeared to

be older and healing. He performed a drug and

alcohol test using a blood sample and found no drugs

were in the sample but it had an ethanol level of

.012, about one-half of an alcoholic beverage. He

testified that six or seven long island iced tea drinks

would take approximately twenty-four hours to

dissipate for purposes of alcohol testing. Hence, it

was impossible she consumed the drinks Appellant

alleged she had on the night of the incident, which

was less than ten hours before the blood sample was

taken.

{¶15} On December 10, 2020, Appellant was indicted

on one count of murder, an unclassified felony in

violation of R.C. 2903.02(A), (D), R.C. 2929.02(B);

one count of murder, an unclassified felony in

violation of R.C 2903.02(B), (D); one count of

felonious assault, a felony of the second degree in

violation of R.C. 2903.11(A)(1), (D)(1)(a); and one

count of domestic violence, a felony of the fourth

degree in violation of R.C. 2919.25(A), (D)(3).

{¶16} At trial, the state presented testimony from

several witnesses, notably the responding officers

(EMT Livermore, Officer Diglaw, Officer Baker, Det.

Stepuk), the emergency room doctor (Dr. Chad

Donley), the coroner (Dr. Felo), the bartender (C.T.)

and J.M.’s friends (E.E. and D.C.). Dr. Anthony

Pizon (toxicology expert) and J.M.’s father were

witnesses called by Appellant. Following trial, the

jury convicted Appellant on all counts as charged in

the indictment.

{¶17} On June 6, 2022, the trial court filed its

sentencing entry. The court determined that all four

counts merged for purposes of sentencing and the

state elected to proceed on count two, murder. The

court imposed fifteen years to life of imprisonment

with credit for 473 days served.

State v. Hill, 2024-Ohio-1543, 2024 WL 1718027, at *1–3 (Ohio Ct. App. 2024).

Procedural background

After the trial court entered judgment, Hill filed a notice of appeal. Doc.

9-1, at 45. In his supporting brief, Hill raised five assignments of error:

1. The trial court erred as a matter of law and to the

prejudice of Appellant by failing to provide a fair

cross section representative of the community

from the jury pool resulting in a violation of

Appellant’s right to a jury free from racial bias

and to be tried by a cross section of the

community and by his peers.

2. The trial court erred as a matter of law and to the

prejudice of Appellant by permitting Appellee to

introduce impermissible prior bad acts evidence

over objection from Appellant contrary to Rule

404(b) of the Ohio Rules of Evidence.

3. The trial court denied Appellant due process

under the Fourteenth Amendment due to the fact

that his convictions for murder, felonious assault

and domestic violence were against the manifest

weight of the evidence and the jury’s verdict was

inconsistent with the evidence and testimony

presented at trial.

4. The trial court erred as a matter of law and to the

prejudice of Appellant by admitting into evidence

duplicative and gruesome photographs of the

victim over objection from counsel.

5. Appellant’s sentence is unconstitutional

pursuant to Reagan Tokes law, R.C. 2967.271, as

it violates the seperation of powers doctrine and

the Equal Protection Clause of the United States

and Ohio Constitutions.1

Doc. 9-1, at 50–51. In March 2024, the Ohio court of appeals affirmed the trial

court. Hill, 2024 WL 1718027.

Hill later filed a notice of appeal with the Ohio Supreme Court. Doc. 9-

1, at 135–36. In his memorandum in support of jurisdiction, Hill raised four

propositions of law:

1. The trial court and the Seventh District Court of

Appeals erred as a matter of law and to the prejudice

of Appellant by failing to provide a fair cross section

representative of the community from the jury pool

resulting in a violation of Appellant’s right to a jury

free from racial bias and to be tried by a cross section

of the community and by his peers.

2. The trial court and the Seventh District Court of

Appeals erred as a matter of law and to the prejudice

of Appellant by permitting Appellee to introduce

impermissible prior bad acts evidence over objection

from Appellant contrary to Rule 404(b) of the Ohio

Rules of Evidence.

3. The trial court and the Seventh District Court of

Appeals denied Appellant due process under the

Fourteenth Amendment due to the fact his

convictions for murder, felonious assault and

domestic violence were against the manifest weight

of the evidence and the jury’s verdict was

inconsistent with the evidence and testimony

presented at trial.

4. The trial court and the Seventh District Court of

Appeals erred as a matter of law and to the prejudice

of Appellant by admitting into evidence duplicative

1 Unless noted, Hill’s assignments of error, propositions of law, and

grounds for relief are reproduced as written.

and gruesome photographs of the victim over

objection from counsel.

Doc. 9-1, at 141–42. On June 25, 2024, the Ohio Supreme Court declined under

Rule 7.08(B)(4) of its rules of practice to accept jurisdiction. Id. at 196.

Federal habeas proceedings

Hill filed a petition for writ of habeas corpus on June 18, 2025. Doc. 1,

at 17; see Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that an

imprisoned petitioner’s petition is deemed filed when he places it in his prison’s

mailing system). He raises the following four grounds for relief:

GROUND ONE: The trial court denied Petitioner

due process under the Fourteenth Amendment due

to the fact his convictions for murder, felonious

assault and domestic violence were against the

manifest weight of the evidence and the jury’s

verdict was inconsistent with evidence and

testimony presented at trial.

GROUND TWO: The trial court erred as a matter of

law to the prejudice of Petitioner by permitting

Appellee to introduce impermissable prior bad acts

evidence over objection from Petitioner contrary to

Rule 404(B) of the Ohio Rules of Evidence.

GROUND THREE: The trial court erred as a matter

of law and the prejudice of petitioner by failing to

provide a fair cross section representative of the

community from the jury pool resulting in a violation

of Petitioner’s right to a jury free from racial bias

and to be tried by a cross section of the community

and by his peers.

GROUND FOUR: The trial court erred as a matter

of law and to the prejudice of the Petitioner by

admitting into evidence duplicative and gruesome

photographs of the victim over objection from

Petitioner.

Doc. 1, at 8–14. The Warden filed a return. Doc. 9. Hill did not file a traverse.2

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. 104-132, § 104, 110 Stat. 1214 (AEDPA or “the 1996 Act”), habeas petitioners

must meet certain procedural requirements to have their claims reviewed in

federal court. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th

Cir. 2006). “Procedural barriers, such as statutes of limitations and rules

concerning procedural default and exhaustion of remedies, operate to limit

access to review on the merits of a constitutional claim.” Daniels v. United

States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes

confused with exhaustion, exhaustion and procedural default are distinct

concepts. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Failure to

2 After the Court denied Hill’s Motion to expand the record, the Court

received Hill’s reply brief to that motion, Doc. 15. I have reviewed this brief,

but the arguments Hill presents in it do not change the Court’s ruling on the

motion to expand. To the extent that Hill presents argument in this brief that

are responsive to the Respondent’s Return of Writ, see, e.g., Doc. 15, at 6, I have

considered these arguments as a traverse when evaluating the petition.

Finally, to the extent that Hill attempts to raise an actual innocence claim in

this filing, Doc. 15, at 5, 12–13, he did not do so in his petition. See Tyler v.

Mitchell, 416 F.3d 500, 504 (6th Cir. 2000) (claims raised for the first time in a

traverse are improper). Moreover, there is no stand-alone actual innocence

claim in federal habeas. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007)

(stand-alone actual-innocence claims are not cognizable in habeas).

exhaust applies when state remedies are “still available at the time of the

federal petition.” Id. (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)).

But when “state court remedies are no longer available to a petitioner because

he or she failed to use them within the required time period, procedural default

and not exhaustion bars federal court review.” Id.

Exhaustion

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A); Robinson v. Horton, 950 F.3d 337, 343 (6th Cir. 2020). To

exhaust his remedies, a state defendant with federal constitutional claims

must “fairly presen[t]” those claims to the state courts before raising them in

a federal habeas corpus action. Robinson, 950 F.3d at 343 (quoting Duncan v.

Henry, 513 U.S. 364, 365 (1995)); see also Fulcher v. Motley, 444 F.3d 791, 798

(6th Cir. 2006). A constitutional claim for relief must be presented to the state’s

highest court to satisfy the fair presentation requirement. See O’Sullivan v.

Boerckel, 526 U.S. 838, 845–48 (1999); Caver v. Straub, 349 F.3d 340, 345 (6th

Cir. 2003). And a habeas petitioner must “present[] both the factual and legal

basis for [the] claims to the state courts.” Hanna v. Ishee, 694 F.3d 596, 606

(6th Cir. 2012). This means that the “‘petitioner must present his claim to the

state courts as a federal constitutional issue—not merely as an issue arising

under state law.’” Williams, 460 F.3d at 806 (quoting Koontz v. Glossa, 731

F.2d 365, 368 (6th Cir. 1984)). “‘[G]eneral allegations of the denial of rights to

a “fair trial” and “due process” do not “fairly present claims” that specific

constitutional rights were violated.’” Hand v. Houk, 871 F.3d 390, 418 (6th Cir.

2017) (quoting Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006)).

Procedural default

Procedural default may occur in two ways. Williams, 460 F.3d at 806.

First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.

In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors

when determining whether a claim is barred on habeas corpus review because

a petitioner failed to comply with a state procedural rule: whether: (1) there is

a state procedural rule applicable to the petitioner’s claim and whether the

petitioner failed to comply with that rule; (2) the state court enforced the

procedural rule; (3) the state procedural rule is an adequate and independent

state ground on which the state can foreclose review of the federal

constitutional claim; and (4) the petitioner can demonstrate cause for failing to

follow the rule and actual prejudice by the alleged constitutional error. 785

F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the

petitioner’s failure to comply with the procedural rule, the state court declines

to reach the merits of the issue, and the state procedural rule is an independent

and adequate grounds for precluding relief, the claim is procedurally

defaulted.”) (citing Maupin, 785 F.2d at 138).

Second, “a petitioner may procedurally default a claim by failing to raise

a claim in state court and pursue that claim through the state’s ‘ordinary

appellate review procedures.’” Williams, 460 F.3d at 806 (quoting O’Sullivan,

526 U.S. at 848); see Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir. 2015)

(“When a petitioner has failed to fairly present … claims to the state courts

and no state remedy remains, [the] claims are considered to be procedurally

defaulted.”) (citing Gray v. Netherland, 518 U.S. 152, 161–62 (1996)). While

the exhaustion requirement is technically satisfied in this circumstance

because state remedies are no longer available to the petitioner, see Coleman

v. Thompson, 501 U.S. 722, 732 (1991), a petitioner’s failure to have the federal

claims considered in the state courts constitutes a procedural default of those

claims that bars federal court review, Williams, 460 F.3d at 806.

To overcome a procedural bar, a petitioner must show “cause for the

default and actual prejudice as a result of the alleged violation of federal law,”

or show that a “fundamental miscarriage of justice” will result if the

petitioner’s claims are not considered. Coleman, 501 U.S. at 750.

Merits review

If a state’s courts adjudicated the merits of a claim, a habeas petitioner

may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish

one of two predicates. To establish the first predicate, the petitioner “must

identify a ‘clearly established’ principle of ‘Federal law’ that” has been

established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,

231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must

then show that the state court’s adjudication “was contrary to,” or “involved an

unreasonable application of” that “clearly established” precedent. 28 U.S.C. §

2254(d)(1); see Fields, 86 F.4th at 232.

To establish the second predicate, the petitioner must show that the

state’s court’s adjudication “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2).

“Under the ‘contrary to’ clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by the

[United States Supreme] Court on a question of law or” based on “a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13

(2000). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal

principle from th[e] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application

of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely

wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419

(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).

“[A] ‘clearly established’ principle of ‘Federal law’” refers to the

“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at

231 (quoting 28 U.S.C. § 2254(d)(1) and Woodall, 572 U.S. at 419). A state court

need not cite Supreme Court precedent or reflect an “awareness” of Supreme

Court cases, “so long as neither the reasoning nor the result of the state-court

decision contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); see

Lopez v. Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has

not addressed the petitioner’s specific claims, a reviewing district court cannot

find that a state court acted contrary to, or unreasonably applied, Supreme

Court precedent or clearly established federal law. Carey v. Musladin, 549 U.S.

70, 77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy

for instances in which a state court unreasonably applies this Court’s

precedent; it does not require state courts to extend that precedent or license

federal courts to treat the failure to do so as error.”).

In determining whether the state court’s decision involved an

unreasonable application of law, the Court uses an objective standard.

Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks

merit precludes federal habeas review so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

1. Hill’s first ground for relief is not cognizable in part and otherwise

meritless.

In his first ground for relief, Hill asserts that he was denied due process

because his convictions “were against the manifest weight of the evidence and

the jury’s verdict was inconsistent with evidence and testimony presented at

trial.” Doc. 1, at 8. As an initial matter, manifest-weight-of-the-evidence claims

are state-law issues that are not cognizable in federal habeas proceedings.3 See

Johnson v. Havener, 534 F.2d 1232, 1234 (6th Cir. 1976). To the extent,

therefore, that Hill presents a manifest-weight-of-the-evidence argument, his

claim is not cognizable in this forum.

Hill presented his manifest-weight claim to the Ohio Supreme Court and

the Ohio Court of appeals. See Doc. 9-1, at 50, 141. The Sixth Circuit has held

that a manifest-weight-of-the-evidence claim presented on direct review to an

Ohio court of appeals can suffice to preserve an insufficient-evidence

3 A manifest-weight-of-the-evidence claim presents an issue of state law.

Under Ohio law, “[w]eight of the evidence concerns ‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other.’... When a court of appeals reverses a judgment of

a trial court on the basis that the verdict is against the weight of the evidence,

the appellate court sits as a ‘thirteenth juror’ and disagrees with the

factfinder’s resolution of the conflicting testimony.” State v. Thompson, 678

N.E.2d 541, 546–47 (Ohio 1997) (citations omitted). But a federal habeas court

can’t “reweigh the evidence or redetermine the credibility of the witnesses

whose demeanor has been observed by the trial court” because, in habeas

proceedings, “[i]t is the province of the factfinder to weigh the probative value

of the evidence and resolve any conflicts in testimony.” Matthews v.

Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citations omitted).

argument. Nash v. Eberlin, 258 F. App’x. 761, 765 (6th Cir. 2007) (“the

determination by the Ohio Court of Appeals that the conviction was supported

by the manifest weight of the evidence necessarily implies a finding that there

was sufficient evidence”). So Hill’s first ground can fairly be construed to

include a claim that the evidence was insufficient to support his convictions.

In reviewing the sufficiency of the evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). This “standard ‘gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Davis v. Lafler, 658

F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Jackson, 443 U.S. at 319). In

applying the standard, the court defers to the trier-of-fact’s determination.

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). The court does “not reweigh

the evidence, re-evaluate the credibility of witnesses, or substitute [its]

judgment for that of the [fact-finder].” Id.; see also Matthews, 319 F.3d at 788.

“Circumstantial evidence alone is sufficient to support a conviction, and it is

not necessary for the evidence to exclude every reasonable hypothesis except

that of guilt.” Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (internal

quotations and citations omitted); see also Durr v. Mitchell, 487 F.3d 423, 449

(6th Cir. 2007) (“circumstantial evidence is entitled to equal weight as direct

evidence”).

On federal habeas review, an additional layer of deference applies.

Brown, 567 F.3d at 205; see Coleman v. Johnson, 566 U.S. 650, 651 (2012).

First, the Court defers “to the trier-of-fact’s verdict, as contemplated by

Jackson.” Davis, 658 F.3d at 531. And second, the Court defers under the 1996

Act to the state court’s “consideration of the trier-of-fact’s verdict.” Id. So even

if this Court would conclude in the first instance that a rational trier-of-fact

could not have found Hill guilty beyond a reasonable doubt, the Court “must

still defer to the state appellate court’s sufficiency determination as long as it

is not unreasonable.” Brown, 567 F.3d at 205; see also White v. Steele, 602 F.3d

707, 710 (6th Cir. 2009). This doubly deferential “standard erects ‘a nearly

insurmountable hurdle’ for petitioners who ... seek habeas relief on sufficiency-

of-the-evidence grounds.” Keys v. Booker, 798 F.3d 442, 450 (6th Cir. 2015)

(quoting Davis, 658 F.3d at 534)).

With these principles in mind, it bears remembering that when reciting

the factual history of Hill’s case, the court of appeals noted that Hill and J.M.

lived together and were in a relationship. Hill, 2024 WL 1718027, at *1.

“During their relationship,” several of J.M’s friends “observed she had various

injuries that caused them to be concerned for her safety.” Id. These injuries

included “a bruise and it was on the whole side of her face.” Id. They also

included a “bruise from [J.M.’s] buttocks down her entire leg,” which she

“conceded that [Hill] caused … when he pushed her down a set of porch stairs.”

Id. And a friend witnessed an incident at a party in which Hill grabbed J.M.

by her hair and pushed her. Id.

As to the night in question, Hill first said that he and J.M. stayed at a

bar until 2:00 a.m. and that J.M. consumed six or seven Long Island iced teas.

Id. But this wasn’t true. Video evidence later established that they left the bar

at 11:00 p.m. Id. And the bartender did not serve J.M. even one Long Island

iced tea. Id. Indeed, later testing of J.M. showed that she had consumed about

half of one alcoholic drink. Id. at *2.

Hill admitted that after arriving home that night, he and J.M. “got into

it.” Id. He claimed that J.M. fell while intoxicated and hit her head. Id. But the

evidence showed that she was not intoxicated. Id. So Hill’s explanation was

false. According to Hill, when he woke up the next morning, he observed that

J.M. “was in distress, snoring real loudly,” and couldn’t be roused. Id. Even so,

Hill waited an hour or two before call 911. Id. And this delay was allegedly

occasioned by the fact that he needed to charge J.M’s phone for an unusually

long period of time. Id. Once emergency services arrived, Hill’s demeanor was

surprising. Id. He was relaxed and rather unhelpful. Id.

An autopsy revealed multiple injuries. Id. at *3. On J.M’s head, the

medical examiner found three distinct injuries: one to the left side of her head,

one to the back of her head, and one to the right side of her head. Id. He also

found nineteen bruises to J.M.s trunk area, but could not give a definitive

count as to her extremities because in several areas the bruises were clustered.

Id. Some of these appeared new, and others appeared to be older and healing.

Id.

With this background in mind, here’s what the Ohio court of appeals

said about Hill’s weight and sufficiency argument:

{¶36} Appellant contends the jury heard inconsistent

evidence about whether the victim had alcohol in her

system at the time of her death, which if true would

support his defense. Appellant says he took videos of

J.M. stumbling around the house for the purpose of

confronting her the next day about her drinking and

her drunken behavior. Appellant also takes issue

with the lack of a thorough investigation,

particularly since the authorities failed to test

evidence of possible drug use in the house.

{¶37} The state responds that the blood alcohol

testing completed at the hospital and again during

the autopsy showed the equivalent of less than one

alcoholic beverage was in J.M.’s system. Further,

there was evidence that J.M. suffered three distinct

injuries to her head (on the left, right, and back),

thirty-one bruises/blunt trauma injuries, and

contusions to her chest. Medical testimony showed

that injuries of this nature could not be caused based

on Appellant’s theory that the victim fell once and

hit her head on the toilet. The state also emphasizes

Appellant’s dilatory conduct after discovering the

extent of J.M.’s condition.

{¶38} Weight of the evidence concerns “the

inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the

issue rather than the other.” (Emphasis deleted.)

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

N.E.2d 541 (1997). It is not a question of

mathematics, but depends on the effect of the

evidence in inducing belief. Id. Weight of the

evidence involves the state’s burden of persuasion.

Id. at 390, 678 N.E.2d 541 (Cook, J. concurring). The

appellate court reviews the entire record, weighs the

evidence and all reasonable inferences, considers the

credibility of witnesses, and determines whether, in

resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed. State

v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954

N.E.2d 596, ¶ 220, citing Thompkins, at 387, 678

N.E.2d 541. This discretionary power of the

appellate court to reverse a conviction is to be

exercised only in the exceptional case in which the

evidence weighs heavily against the conviction. Id.

{¶39} “[T]he weight to be given the evidence and the

credibility of the witnesses are primarily for the trier

of the facts.” State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of

fact is in the best position to weigh the evidence and

judge the witnesses’ credibility by observing their

gestures, voice inflections, and demeanor. Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984). The jurors are free to believe

some, all, or none of each witness’ testimony and

they may separate the credible parts of the

testimony from the incredible parts. State v.

Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶

42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270

N.E.2d 650 (1971). When there are two fairly

reasonable views of the evidence or two conflicting

versions of events, neither of which is unbelievable,

we will not choose which one is more credible. State

v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125

(7th Dist.1999).

{¶40} Beginning with the expert testimony, the state

offered testimony from Dr. Chad Donley, the

emergency room physician who treated J.M., and Dr.

Felo, who performed the autopsy. The state also

presented physical evidence in the form of blood

alcohol testing results completed by the hospital

shortly after J.M. arrived (both blood test and urine

test) and a blood test completed during Dr. Felo’s

autopsy. To counter this, Appellant offered

testimony from Dr. Anthony Pizon, chief of the

division of medical toxicology at the University of

Pittsburgh Medical Center. However, this testimony

was not based on separate testing, but was based on

information provided by Appellant. Hence, the

matter became a credibility issue for the jury.

{¶41} Dr. Pizon conceded at trial that he did not

evaluate J.M. nor complete any independent testing,

forcing him to rely on statements made by

Appellant. Dr. Pizon testified that “[t]he picture

painted for me sounds like a chronic alcoholic.”

(Trial Tr., p. 698.) However, he also stated that “if

she is not a chronic alcoholic there is no way that she

consumed that much alcohol” and that “drinking

that much and not being a chronic alcoholic are

incompatible.” (Trial Tr., p. 699-700.)

{¶42} Dr. Felo contradicted Appellant’s claim that

J.M. was a chronic alcoholic through testing of her

liver, which revealed no conditions associated with

alcoholism. It was noted that her liver was healthy

enough to be donated for a transplant. Dr. Pizon

conceded that in looking at her medical information,

“[t]here wasn’t anything that, I don’t think, stood out

to me as the stigmata of an alcoholic.” (Trial Tr., p.

702.)

{¶43} As to the three videos taken by Appellant of

J.M. stumbling around the house the night before,

Det. Stepuk testified that the videos did show J.M.

stumbling, but did not indicate if it was due to

intoxication or the result of head trauma. Dr. Pizon,

Appellant’s own expert, testified that it appeared to

him that J.M. was slowly dying when those videos

were taken.

{¶44} Even more significant than the alcohol testing,

a reasonable jury could also have found that the

pattern and extent of the injuries J.M. suffered were

caused by intentional acts. The record contains

evidence of inconsistent statements made by

Appellant of the events on the night of the incident.

The record contains unrebutted evidence there was

clearly a disturbance in the home that night.

Officers found a broken mirror, broken knickknacks,

and significant damage to the bedroom door. This

provides evidence that a physical encounter took

place.

{¶45} Appellant also has no explanation for the

number of bruises on J.M.’s body, both fresh and

healing. These do not support his story J.M.

sustained a single fall. Dr. Felo testified that

“[t]ypically you would need trauma to separate areas

to cause [the injuries suffered by the victim] unless

you were saying a rollover car crash or something

like that, it would be uncommon that injury to the

head would cause that injury to the chest as well.”

(Trial Tr., p. 381) The autopsy revealed J.M.

sustained a plethora of bruises, abrasions, swelling,

and internal bleeding inconsistent with a single fall.

{¶46} In addition, Appellant’s conduct was not what

would be expected under the circumstances. The

record established that he waited at least an hour or

two before calling for help despite J.M.’s serious

condition, claiming that he needed to charge her

phone before making the 911 call, and that she said

(the previous evening) she did not want to go to the

hospital. It is clear from the first responder’s

testimony that J.M. clearly required medical

assistance. Once emergency help arrived,

Appellant’s demeanor was both more calm, and less

forthcoming, than witnesses would have expected.

{¶47} Appellant also complains that the

investigation was incomplete, as possible drug

evidence found in the house was not tested. The only

drugs found in J.M.’s system were administered at

the hospital, and Appellant told police at the scene

that drugs were not involved. Even if there were

drugs in the house, it is equally plausible they

belonged to Appellant. Unlike J.M., Appellant was

not drug tested the day of the incident. Regardless,

there was a plethora of evidence as to J.M.’s cause of

death, none of it drug-related.

{¶48} Accordingly, Appellant’s third assignment of

error is without merit and is overruled.

Hill, 2024 WL 1718027, at *7–9.

Given the above, Hill’s argument doesn’t leave the starting gate. He had

a history of physically abusing J.M. During the night in question, he was alone

with her. He lied about how long he was alone with her and her state of

intoxication. And Hill waited a suspiciously long period of time before calling

911. Further, Hill’s explanation for how J.M. sustained her injuries was

unsupported by the facts. These facts together are sufficient to support Hill’s

conviction. Cf. Johnson, 200 F.3d at 991 (recounting that “Johnson is the last

person known to have seen [his victim] alive” and that “[h]e was angry with

her just after he saw her”).

Against all of the above, Hill does almost nothing to overcome the double

deference this Court owes to the court of appeals adjudication. Instead, he

merely offers the unexplained, conclusory assertions that:

• The trial court gave inconsistent testimony about [a] statement

petitioner gave to detective

• Trial court[’]s evidence and witness testimony was conflicting, vague,

uncertain, and fragmentary

• the witness’s testimony [was] self-serving4

• There is zero direct or physical evidence tying petitioner to the crime

4 In his petition, Hill says that “None of the witness’s testimony is self-

serving.” Hill presumably means that the witness’s testimony was self-serving.

• Inconsistent toxicology and drug screen results

Doc. 1, at 8.

None of these assertions show that the evidence was constitutionally

insufficient. For starters, the fact that any witness provided testimony that

was inconsistent, either internally or with the testimony of other witnesses, is

of no moment. James v. Corrigan, 85 F.4th 392, 397 (6th Cir. 2023)

(“inconsistent testimony is a matter of credibility, not sufficiency”). This Court

considers the evidence in the light most favorable to the prosecution, not in the

light most favorable to Hill. Johnson, 200 F.3d at 991. Inconsistencies can

happen in any trial and it is the jury’s role—not this Court’s—to sift through

those inconsistencies. James, 85 F.4th at 397. The same is true of testimony

that is conflicting, vague, uncertain, or fragmentary. See Samatar v. Clarridge,

225 F. App’x 366, 373 (6th Cir. 2007) (“in reviewing the sufficiency of the

evidence claim, we must defer to the trier of fact with respect to issues of

conflicting testimony, weight of the evidence, and the credibility of witnesses”).

Further, whether a witness’s testimony—and Hill doesn’t bother to

explain to whom he refers—was self-serving is matter for the jury to consider.

While the allegedly self-serving nature of testimony might be fodder for cross-

examination or closing argument, the fact that testimony might be self-serving

does not make the evidence constitutionally insufficient. And it is simply

irrelevant that the prosecution failed to present direct evidence of guilt.

Circumstantial evidence alone can support guilt. Johnson, 200 F.3d at 992.

Finally, like any other evidence, whether toxicology and drug screen results

were inconsistent—and Hill offers no basis to evaluate whether they were—is

of no moment. The jury, not this Court, resolves evidentiary inconsistencies.

Hill’s first ground for relief is not cognizable in part and otherwise

meritless.

2. Hill’s second and fourth grounds for relief are not cognizable.

In his second ground for relief, Hill argues that the trial court violated

Ohio rule of evidence 404(B) by allowing the State to present evidence of prior

bad acts. Doc. 1, at 10. Hill does not cite or rely on any principal of federal law

to support this ground. He raised this issue before Ohio’s courts purely as a

matter of state law. See Doc. 9-1, at 62–66, 149–52.

In his fourth ground, Hill asserts that the trial court erred by admitting

“duplicative and gru[e]some photographs of the victim over” Hill’s objection.

Doc. 1, at 14. As with his second ground, Hill does not cite or rely on any

principal of federal law. Hill raised this issue before Ohio’s courts, arguing that

the admission of the referenced evidence violated Ohio rule of evidence 403.

Doc. 9-1, at 74–76, 157–58.

The problem for Hill with regard to these two grounds is that state law

issues are not cognizable in habeas. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);

Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). Rather, this Court “is

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

treaties of the United States alleged violations of state laws or rules.” Estelle

v. McGuire, 502 U.S. 62, 68 (1991).

It’s true, as Hill states, Doc. 15, at 6–7, that “[w]hen an evidentiary

ruling is so egregious that it results in a denial of fundamental fairness, [the

ruling] may violate due process and thus warrant habeas relief.” Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). But to rise to the level of a due

process violation, a state-court evidentiary ruling must “offend[] some principle

of justice so rooted in the traditions and conscience of our people as to be ranked

as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting

Montana v. Egelhoff, 518 U.S. 37, 43 (1996), in turn quoting Patterson v. New

York, 432 U.S. 197, 202 (1977)).

Hill, however, does not argue in his petition—and did not argue before

the Ohio courts—that the errors he claims offended a fundamental principle of

justice. See Doc. 1, at 10, 14; Doc. 9-1, at 149–52, 157–58. In his reply to his

Motion to expand the record, Hill says that the trial court’s evidentiary rulings

“rise to the level of due process violations.” Doc. 15, at 6. But Hill has not

explained how in his case this occurred. He has therefore not made any

argument that would cause the Court to conclude that these grounds for relief

are cognizable for purposes of this federal habeas petition.

Hill’s second and fourth grounds for relief are not cognizable.

3. Hill’s third ground for relief fails on the merits.

In his third ground for relief, Hill argues that the trial court erred when

it failed to “provide a fair cross section represen[t]ative of the community from

the jury pool.” Doc. 1, at 12. Hill raised this issue before the Ohio Supreme

Court and the Ohio court of appeals. The latter Court rejected the argument:

{¶19} Appellant argues that the jury voir dire in this

matter excluded a distinctive portion of the

community, as no African American jurors were

included. Appellant contends that this is

particularly problematic as he is of African

American descent and accused of killing a white

woman.

{¶20} The state responds that when the issue was

raised, the trial court summoned the assistant jury

commissioner, who testified that the normal

procedure to obtain a jury pool was followed in this

case. The court requested that thirty potential jurors

appear, and the commissioner sent thirty

consecutively-numbered potential jurors to the

courtroom. This process is a “blind” one – the

commissioner would have no knowledge of any

potential juror’s race or ethnicity.

{¶21} The racial makeup of a jury pool is contested

through use of a “Batson” challenge, which has its

genesis from United States Supreme Court law.

The Ohio Supreme Court has set out the steps

for analyzing a race-based challenge pursuant

to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712, 90 L.Ed.2d 69 (1986), as follows:

First, the opponent of the peremptory strike

must make a prima facie case of racial

discrimination. Second, if the trial court finds

that the opponent has fulfilled this

requirement, then the proponent of the strike

must come forward with a racially neutral

explanation for the strike. * * * The

‘explanation need not rise to the level justifying

exercise of a challenge for cause.’ [Batson, 476

U.S.] at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

Third, if the proponent puts forward a racially

neutral explanation, the trial court must

decide, on the basis of all the circumstances,

whether the opponent has proved purposeful

racial discrimination. * * * The burden of

persuasion is on the opponent of the strike.

(Internal citations omitted.)

State v. Herring, 94 Ohio St.3d 246, 255-256, 2002-

Ohio-796, 762 N.E.2d 940; State v. Moore, 7th Dist.

Mahoning No. 22 MA 0013, 2023-Ohio-1000, ¶ 14,

appeal not allowed, 170 Ohio St.3d 1494, 2023-Ohio-

2407, 212 N.E.3d 951.

{¶22} “An appellate court will not reverse the trial

court’s decision of no discrimination unless it is

clearly erroneous.” Moore at ¶ 15, citing State v.

Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310

(1992).

{¶23} In this case, the Batson challenge did not arise

from any attempt by the state to strike potential

jurors. Instead, defense counsel raised a Batson

challenge when the potential jurors entered the

courtroom and counsel became aware no African

Americans were included within the group. The trial

court called Michele Caputo, assistant jury

commissioner, to address the issue. Caputo

explained to the court that while not typical,

occasionally a jury pool will lack diversity. She

explained that in the normal process, 500 summons

are sent out to county citizens blindly, without any

knowledge of their race or ethnicity. When a bailiff

requests a jury, the bailiff will ask to be sent a

specific number of potential jurors, in this case

thirty. The jury commission office selects the first

thirty potential jurors in sequential and numeric

order, again having no knowledge of their race or

ethnicity. She stated that the process used for this

case was the procedure normally used to generate a

random group, and the fact that no African

Americans were included is mere happenstance.

Throughout this entire process, individual potential

jurors are simply referenced as numbers until they

appear in the courtroom.

{¶24} Again, the defense’s objection was made to the

jury pool before either party had begun voir dire.

While this does not involve a typical Batson

scenario, the same law applies. Beginning with the

first prong of the Batson test, Appellant complains

that despite being a large and distinctive group

within the community, no African Americans were

included among the potential jurors. The United

States Supreme Court has held that the Sixth

Amendment guarantee of a jury trial “contemplates

a jury drawn from a fair cross-section of the

community.” Taylor v. Louisiana, 419 U.S. 522, 527,

95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

{¶25} While this is the ideal scenario, Ohio law

provides:

[N]o requirement that petit juries actually

chosen must mirror the community and reflect

the various distinctive groups in the

population. Defendants are not entitled to a

jury of any particular composition, but the jury

wheels, pools of names, panels, or venires from

which juries are drawn must not

systematically exclude distinctive groups in the

community and thereby fail to be reasonably

representative thereof.

State v. Johnson, 88 Ohio St.3d 95, 117, 723 N.E.2d

1054, 1073 (2000), citing Taylor, supra, at 527.

While the ideal situation is to have every jury pool

reflect the diversity of the community, so long as the

group at issue was not excluded based on race,

Appellant does not properly raise a Batson

challenge.

{¶26} As to the second prong, Appellant contends no

reason was given as to why two people were excused

from the jury pool. However, not only is Appellant

unable to link the absence of these two individuals

to some kind of systematic exclusion, it was defense

counsel who stated on the record that those

individuals were excused simply because they failed

to appear. There is no way to determine their race.

Regardless, the assistant jury commissioner

provided a race neutral explanation for the racial

makeup of this jury pool. “The challenge is defeated

so long as discriminatory intent is not inherent in

the explanation.” State v. Nixon, 1st Dist. Hamilton

No. C-020428, 2003-Ohio-3384, ¶ 19, citing Purkett

v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131

L.Ed.2d 834 (1995). There is nothing inherently

discriminatory in a random process where the race

of any potential juror is unknown until they appear

in the courtroom.

{¶27} As to the third Batson prong, Appellant argues

that it is impossible for any defendant to satisfy. We

recently held that “underrepresentation or lack of

representation of a group on a single jury does not

constitute systematic exclusion.” State v. Haywood,

7th Dist. Columbiana No. 21 CO 0035, 2023-Ohio-

1121, ¶ 44; citing State v. Bryan, 101 Ohio St.3d 272,

2004-Ohio-971, 804 N.E.2d 433, ¶ 113; State v.

McNeill, 83 Ohio St.3d 438, 444, 700 N.E.2d 596

(1988). Thus, a defendant must show some indicia of

exclusion before merely alleging

underrepresentation or lack of representation.

Appellant had no evidence to support an indicia of

purposeful race-based discrimination.

{¶28} Because the assistant jury commissioner

provided a race neutral reason for the racial makeup

of the jury pool, and the lack of diversity in a single

jury, alone, does not provide evidence of systematic

exclusion, Appellant’s first assignment of error is

without merit and is overruled.

Hill, 2024 WL 1718027, at *4–5.

Hill’s ground three claim fails at the threshold because he ignores the

court of appeals’ decision and his burden. He makes no argument that the court

of appeals’ decision was contrary to or involved an unreasonable application of

relevant Supreme Court precedent. See Doc. 1, at 12; see also 28 U.S.C. §

2254(d)(1). And he makes no argument that the court of appeals’ decision

involved an “unreasonable application of the facts.” See Doc. 1, at 12; see also

28 U.S.C. § 2254(d)(2). These requirements in Section 2254(d) are notably not

mere suggestions that a court can simply ignore. See Blackmon v. Booker, 696

F.3d 536, 557 (6th Cir. 2012) (chiding a district court for “ignor[ing] the myriad

of limitations that § 2254(d)(1) imposed on its review”). Rather, section 2254(d)

places “a heavy burden for a petitioner to overcome.” Tibbetts v. Bradshaw, 633

F.3d 436, 442 (6th Cir. 2011).

Rather than trying to meet his burden Hill simply recites three factual

assertions. By merely reciting three factual assertions, Hill fails to overcome

the deference this Court owes to the court of appeals’ decision. See 28 U.S.C. §

2254(d).

But even if Hill had attempted to carry his burden, the result would be

the same. Hill identifies no Supreme Court decision that the court of appeals

misapplied. And he identifies no precedent that would support the idea that a

venire from which a particular jury is chosen must have a particular

composition. Rather, the relevant rule, which the Ohio Supreme Court cited

and applied, Hill, 2024 WL 1718027, at *4–5, is that “venires from which juries

are drawn must not systematically exclude distinctive groups in the

community and thereby fail to be reasonably representative therefor.’” United

States v. Dunnican, 961 F.3d 859, 879–80 (6th Cir. 2020) (quoting Taylor v.

Louisiana, 419 U.S. 522, 538 (1975)). Hill does not explain how—or claim

that—the court of appeals misapplied this rule.

Moreover, presenting a prima facie case of underrepresentation of a

particular group in jury selection, requires a criminal defendant to show three

predicates:

(1) that the group alleged to be excluded is a

“distinctive” group in the community; (2) that the

representation of this group in venires from which

juries are selected is not fair and reasonable in

relation to the number of such persons in the

community; and (3) that this underrepresentation is

due to systematic exclusion of the group in the jury-

selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Had he tried to show in his

petition that he attempted to carry this burden before Ohio’s courts, Hill would

fail. As the Ohio court of appeals noted, the trial court’s assistant jury

commissioner testified that African-Americans were not systematically

excluded from jury pools. Hill, 2024 WL 1718027, at *4. Indeed, she said that

it was atypical for a jury pool to “lack diversity.” Id. Hill points to nothing to

rebut this testimony.

Further, the assistant jury commissioner explained that the selection

process involved “blindly” issuing 500 summonses “without any knowledge of

the[] race or ethnicity” of the summoned citizens. Id. Hill also offers nothing to

rebut this testimony.

Given the unrebutted testimony on which the court of appeals relied,

Hill cannot show either the second or third Duren predicates. Hill’s third

ground thus fails on the merits.

Conclusion

For all the above reasons, the Court should deny Hill’s petition.

Dated: March 11, 2026

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).