Griffin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

MICHAEL GRIFFIN,

Petitioner, : Case No. 1:25-cv-00793

- vs - District Judge Jeffery P. Hopkins

Magistrate Judge Michael R. Merz

GARY GALLOWAY, WARDEN,

Chillicothe Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Michael Griffin, is before the Court

for decision on the merits on the Petition (ECF No. 3), the State Court Record (ECF No. 7), the

Warden’s Return of Writ (ECF No. 8), and Petitioner’s Traverse (ECF No. 11). The Magistrate

Judge reference in this case was recently transferred to the undersigned to help balance the

Magistrate Judge workload in the District (Transfer Order, ECF No. 13).

Litigation History

On September 21, 2023, a Clermont County grand jury indicted Griffin on four counts of

breaking and entering, four counts of safecracking, one count of grand theft, and two counts of

theft (Indictment, State Court Record, ECF No. 7, Ex. 1). Griffin was convicted by a trial jury on

all counts and sentenced to eight years imprisonment (State Court Record, ECF No. 7, Exs. 4 &

5).

Griffin appealed to the Ohio Twelfth District Court of Appeals. After counsel had briefed

the appeal, he was granted leave to withdraw at Griffin’s request and Griffin proceeded pro se.

On April 21, 2025, the Twelfth District affirmed the conviction. State v. Griffin, 2025-Ohio-1403

(Ohio App. 12th Dist. Apr. 21, 2025). After several unsuccessful attempts to obtain reconsideration

at the intermediate appellate level, Griffin appealed to the Ohio Supreme Court which declined to

exercise jurisdiction. State v. Griffin, 179 Ohio St. 3d 1491 (Sept. 30, 2025).

On February 21, 2025, Griffin filed a petition for post-conviction relief under Ohio Revised

Code § 2953.21 which was still pending when the State Court Record was filed here.

On November 3, 2025, Griffin filed his Petition in this Court, pleading the following

grounds for relief:

Ground One: A Pending Charge Cannot Be Used As Evidence and

Using It Violated Griffins [sic] Right to Due Process.

Supporting Facts: The trial court allowed the use of unproven

allegations from a pending charge from another county as other act

evidence to prove Griffin was guilty of the charges he was on trial

for.

Ground Two: Griffins [sic] Right to Due Process Was Violated By

The Use of Legally Insufficient Evidence.

Supporting Facts: The other act evidence which was a pending

charge were unproven allegations which cannot support inferences.

Detective McAllisters [sic] testimony in regards to the Amazon

business record is not supported by the Amazon business record,

which Griffin claims is conjecture.

Ground Three: Griffin was denied The Right To Use The Fifth

Amend. Privilege Against Self-Incrimination In A Matter He Is Not

On Trial For. [sic]

Supporting Facts: The trial court denied Griffin the right to plead

the Fifth Amend. in regards to a matter he was not on trial for and

stated he had to answer questions about that matter and stated the

answers he gave could be used to prosecute him in that matter.

(Petition, ECF No. 3, PageID 28-31).

Petitioner sought to expand the record with the Amazon business record referenced in

Ground Two, but the Court decided that document was not necessary to decide the case (Decision

and Order, ECF No. 14).

Analysis

Ground One: Improper Use of Other Act Evidence

In his First Ground for Relief, Griffin asserts he stands convicted on improperly introduced

evidence of other bad acts, to wit, testimony about a breaking and entering charge against him in

Hamilton County.

Respondent asserts this claim is procedurally defaulted because Griffin’s counsel made no

objection at trial (Return, ECF No. 8, PageID 854-56). In his Reply, Griffin makes no response to

this argument, although he argues this Ground for Relief at length.

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

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

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

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

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

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

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

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

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

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

(1979).

Third, the court must decide whether the state procedural forfeiture

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

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

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

he was actually prejudiced by the alleged constitutional error.

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

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

Under Ohio law, if an appellant could have made an objection to a ruling at trial but failed

to do so, the appellant has waived appellate review of the challenge. State v. Murphy, 91 Ohio St.

3d 516, 2001 Ohio 112, 747 N.E.2d 765, 788 (Ohio 2001). Ohio has a long-standing and

consistently enforced contemporaneous objection rule prohibiting the review on the merits of a

claim when no objection was made at trial. State v. Murphy, 91 Ohio St. 3d 516, 532 (“The waiver

rule requires that a party make a contemporaneous objection to alleged trial error in order to

preserve that error for appellate review. The rule is of long standing, and it goes to the heart of an

adversary system of justice.”).

If an arguable trial error is not objected to when it happens, a defendant has waived all but

a plain error review on appeal. Ohio R.Crim. P. 52; State v. Mason, 82 Ohio St. 3d 144, 162 (1998).

The purpose of the rule is to allow correction at the trial court level before the error infects the

verdict. States have a very strong interest in the contemporaneous objection rule. Scott v. Mitchell,

209 F.3d 854 (6th Cir. 2000), quoting extensively from Wainwright v. Sykes, 433 U.S. 72, 88-90

(1977). Ohio’s contemporaneous objection rule is an adequate and independent state ground of

decision. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th

Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982).

An Ohio state appellate court’s review for plain error, which occurred in this case, is

enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th

Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754,

765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379,

387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001).

Plain error review is not equivalent to a review on the merits and does not constitute a

waiver of state procedural default rules. Thus, plain error review by a state appellate court does

not open a claim to consideration on federal habeas when the state court rests its decision on a

procedural bar—e.g., the contemporaneous objection rule. See, Scott v. Mitchell, 209 F.3d 854 (6th

Cir. 2000), (quoting Harris v. Reed, 489 U.S. 255, 257 (1989); Seymour v. Walker, 224 F.3d 542,

(6th Cir. 2000); Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989).

In this case Griffin’s trial counsel made no contemporaneous objection and the Twelfth

District reviewed only on a plain error basis. State v. Griffin, supra, at ¶ 11. Griffin has offered

no excusing cause and prejudice and accordingly his First Ground for Relief should be dismissed

as procedurally defaulted.

Reviewing this claim for plain error, the Twelfth District held:

{¶ 15} In this case, the other-acts evidence from the Hamilton

County offense was properly admissible under Evid.R. 404(B) to

establish Griffin's identity as the offender in the Clermont County

offenses, as there were key similarities constituting a modus

operandi. Modus operandi evidence refers to “signature, fingerprint-

like characteristics unique enough ‘to show that the crimes were

committed by the same person.’ ” Hartman at ¶ 37, quoting

Weissenberger, Federal Evidence, Section 404.17 (7th Ed.2019).

{¶ 16} Griffin does not dispute that the offenses committed in

Clermont County and Hamilton County were virtually identical.

Instead, he argues that the other-acts evidence from Hamilton

County should not have been admissible because he had not yet

stood trial for that offense and therefore was entitled to a

presumption of innocence. However, this argument is without merit,

as other-acts evidence does not require a conviction to be

admissible. Evid.R. 404(B) clearly states that other “crimes” or

“wrongs” may be admissible for a permissible purpose. As this court

has stated previously, “[o]ther-acts evidence need be proved only by

substantial proof, not proof beyond a reasonable doubt.” State v.

Hignite, 2015-Ohio-5204, ¶ 18 (12th Dist.). Indeed, other-acts

evidence can be admitted even if the accused was acquitted of the

charge constituting the other-acts evidence. State v. Smith, 2018-

Ohio-4615, ¶ 14 (1st Dist.).

{¶ 17} Here, the evidence regarding the Hamilton County offense

was both relevant and introduced for a purpose other than

propensity, i.e., identity. In addition, although the other-acts

evidence was certainly unfavorable to Griffin, it possessed a high

probative value that was not substantially outweighed by a risk of

unfair prejudice. See State v. Barahona-Lara, 2024-Ohio-3048, ¶ 53

(12th Dist.)(“[U]nfavorable evidence is not equivalent to unfairly

prejudicial evidence.”)

{¶ 18} Finally, we note the record reflects that the trial court took

steps to minimize the danger of unfair prejudice and to ensure that

the evidence was considered only for its proper purpose. As the

supreme court has held, “an appropriate jury instruction geared

toward the specific purpose for which the evidence has been

admitted will help reduce the risk of confusion and unfair

prejudice.” Hartman, 2020-Ohio-4440 at ¶ 34. In this case, the trial

court provided a limiting instruction to the jury, clarifying that the

evidence was admissible solely for the purpose of establishing

identity and not for proving Griffin's character. It is well established

that a jury is presumed to follow and comply with instructions given

by the trial court. Hignite at ¶ 20. Accordingly, there was

no error, plain or otherwise, in the admission of the other-acts

evidence, and Griffin's second assignment of error is overruled.

State v. Griffin, supra.

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

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

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

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

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

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

(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). This is true even if the state decision

is on plain error review. Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009); Kittka v. Franks,

539 Fed. Appx. 668, 672 (6th Cir. 2013); Bond v. McQuiggan, 506 Fed. Appx. 493, 498 n. 2 (6th

Cir. 2013); Stojetz v. Ishee, 2014 U.S. Dist. LEXIS 137501 *231 (S.D. Ohio Sept. 24, 2014)(Frost,

D.J.).

Griffin argues that admitting evidence of what was at the time a pending charge in

Hamilton County into the trial of these Clermont County cases went beyond the jurisdiction of the

Clermont County Court of Common Pleas and interfered with his presumption of innocence in the

Hamilton County case. Not so. The Clermont County court did not purport to exercise jurisdiction

over the Hamilton County case. It merely allowed testimony about the facts of that case for the

purpose of proving identity through modus operandi which is clearly permissible under Ohio rules

of evidence. See Ojhio R. Evid. 404(B)(2). Griffin presents no Supreme Court precedent

questioning this evidentiary ruling. And whenever the Hamilton County case came on for trial, if

it did, the fact that its facts had been used to prove identity in the Clermont County case could not

have been used to overcome Griffin’s presumption of innocence. There is no relevant Supreme

Court precedent known to the undersigned which calls this ruling into question on a constitutional

basis. In addition to being procedurally defaulted, Griffin’s First Ground for Relief is without

merit.

Ground Two: Conviction on Insufficient Evidence

In his Second Ground for Relief, Griffin claims he was convicted on constitutionally

insufficient evidence. He presented this claim to the Twelfth District Court of Appeals on direct

appeal and that court decided the question as follows:

¶ 20} In his first assignment of error, Griffin alleges that his

convictions are not supported by sufficient evidence. He argues that

there was impermissible inference stacking, particularly with

respect to his Amazon purchase history to link him to the crimes.

Griffin also argues that the other-acts evidence is not sufficient

evidence to support his conviction, again, because he was entitled to

a presumption of innocence.

{¶ 21} It is well settled that to warrant a conviction, the evidence

must establish beyond a reasonable doubt the identity of the accused

as the person who committed the crime at issue. State v. Hibbard,

2023-Ohio-983, ¶ 20 (12th Dist.). The identity of the accused as the

perpetrator of the crime may be established by direct or

circumstantial evidence. Id. Circumstantial and direct evidence

have the same probative value. State v. Lee, 2021-Ohio-2544, ¶ 25

(12th Dist.).

{¶ 22} Whether the evidence presented at trial is legally sufficient

to sustain a verdict is a question of law. State v. Grinstead, 2011-

Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of the

evidence underlying a criminal conviction, an appellate court

examines the evidence to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt

beyond a reasonable doubt. State v. Paul, 2012-Ohio-3205, ¶ 9 (12th

Dist.). Therefore, “[t]he relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Marshall, 2024-

Ohio-4445, ¶ 45 (12th Dist.).

{¶ 23} “Impermissible inference stacking” involves drawing an

inference based entirely upon another inference, unsupported by any

additional facts or another inference derived from facts. State v.

Everhart, 2020-Ohio-4948, ¶ 17 (12th Dist.). The rule is “extremely

limited” and does not prohibit drawing parallel inferences in

combination with additional facts or drawing multiple, separate

inferences from the same facts. State v. Braden, 2014-Ohio-3385, ¶

12-13 (12th Dist.).

{¶ 24} Following review, we find that the jury was not required to

impermissibly stack inferences to find Griffin guilty. The state

presented evidence that a man fitting Griffin's description

committed a series of break-ins using the same modus operandi. The

man wore dark clothing, a balaclava face mask, a hat, and used

a yellow circular saw with a red blade to carry out the offenses

in an identical manner.

{¶ 25} The suspect evaded capture for several months; however, law

enforcement eventually identified Griffin as a prime suspect.

Authorities obtained evidence that Griffin made multiple purchases

from Amazon for items consistent with those used or worn during

the offenses. These purchases included Crysully pants, a balaclava

face mask, and a matching backpack. He also bought saw blades

compatible with the circular saw and parts for the electric scooter.

Moreover, as previously discussed, other-acts evidence related to

the Hamilton County offense was properly admissible to identify

Griffin through his modus operandi. From this evidence, the jury

could reasonably infer that Griffin was the individual responsible.

Griffin's arguments that the jury engaged in impermissible inference

stacking are without merit. Accordingly, we find that Griffin's

convictions are supported by sufficient evidence, and his first

assignment of error is overruled.

State v. Griffin, supra. (emphasis supplied)

An allegation that a verdict was entered upon insufficient evidence states a claim under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he 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 . . . . This familiar 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.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

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

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits 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.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). When reviewing a claim for sufficient

evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,

567 U.S. 37, 43 (2012) (per curiam).

In a sufficiency of the evidence habeas corpus case, deference should be given to the trier-

of-fact's verdict under Jackson v. Virginia and then to the appellate court's consideration of that

verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis

v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012).

Notably, “a court may sustain a conviction based upon nothing more than circumstantial

evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

“To evaluate a sufficiency-of-the-evidence claim, we consider ‘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.’” Smith v. Nagy, 962 F.3d 192, 205

(6th Cir. 2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “must be

applied with explicit reference to the substantive elements of the criminal offense as defined by

state law.” Id. (quoting Jackson, 443 U.S. at 324).”

In this case the critical element of the crimes in question at trial was the identity of the

perpetrator. From the description of the crime provided by the Twelfth District, that was the key

issue. While there was no eyewitness1 to say positively Griffin was the perpetrator, there was

video evidence to prove facts related to identity: from the video it was possible to identify the

colors and types of clothing worn and of the criminal tools used. The video also demonstrated

several elements of the modus operandi: method of entry, target of attack (ATM machine), method

of attack on the ATM machine (circular saw with red blade) and mode of escape transportation

(electric scooter). Griffin does not dispute several items of identity accepted as proven by the

video – gender and build. He points out that two other men were identified as having been in the

vicinity of one of the offenses near the time of the offense. However, he himself did not offer what

would have been an ironclad proof of non-identity: a corroborated alibi showing he was

somewhere else at the time of the offenses.

As the Twelfth District found, Griffin had made purchases from Amazon “consistent with

those used or worn during the offenses.” Griffin sought to expand the record to include the exhibit

the State had obtained from Amazon about his purchase history. The undersigned determined that

was unnecessary because Griffin does not claim the purchase history shows details inconsistent

with the videos. Rather he claims that the exhibit does not show detail such as the color of items.

He asserts this proves that testimony about the details of those items is “conjecture.” Not so. The

purchase history descriptions were found to be consistent with the videos, not identical. Without

1 Widespread popular confidence in direct eyewitness identification is not always warranted. Of the first three hundred

Americans whose convictions were overturned when DNA exonerated them, a substantial majority had been

misidentified by eyewitnesses. In each of those cases, the beyond a reasonable doubt standard had been applied.

BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG

(2012).

proof that Amazon described them as having a different color or otherwise differed in description

or perhaps that Amazon usually includes color descriptions, the actual purchase history document

would add nothing.

Griffin relies heavily on comparing his case with Newman v. Metrish, 543 F.3d 793 (6th

Cir. 2008). In a divided opinion2, the court held there was neither direct nor circumstantial

evidence placing the petitioner at the scene of the crime.3 It therefore affirmed the grant of the

writ by the District Court. It noted that in a case where there is only circumstantial evidence it is

especially challenging to apply the Jackson v. Virginia standard, and “even more so when that

evidence supports a host of permissible inferences.” It noted that there was evidence a firearm

similar to the murder weapon had been seen in Newman’s possession several weeks before the

murder, but no account of what had happened with it in between. It also noted Newman had

presented several alibi witnesses at trial. As a general rule for evaluating circumstantial evidence

cases, it held “although the [circumstantial] evidence need not exclude every reasonable hypothesis

except that of guilt, it must be enough for any rational trier of fact to have found proof of guilt

beyond a reasonable doubt.” 543 F.3d at 797.

Important factual findings distinguish this case from Newman. In that case, there was only

one crime whose perpetrator needed to be identified. In this case there are five – the four in

Clermont County and the remarkably similar one in Hamilton County. In this case there are five

substantially identical crimes from which to draw inferences about identity. For example, from

how many break-ins is there good video evidence of an electric scooter used to get away?

Newman offered substantial alibi evidence, but Griffin has offered none. It is common

2 Judge (now Chief Judge) Sutton dissented, finding there was ample evidence to support the conviction.

3 Newman was a murder case. Those cases always have one eyewitness who is unavailable to testify, the

victim.

knowledge that police routinely use good alibi evidence to exclude persons otherwise of interest.

Did Petitioner have no evidence he was elsewhere for any of these five crimes?

Griffin does not explain what he means by “stacking” inferences, but the Twelfth District’s

opinion shows the evidence presented parallel inferences: how likely is it that different men whose

build fits surveillance videos would use such an identical modus operandi to break in to five

convenience stores in a relatively short period of time and geographical area and have no alibi?

The conclusion of the Twelfth District that the jury’s conclusion on identity was adequate

is entitled to deference because it is a reasonable determination based on the evidence presented.

Griffin’s second ground for relief should be dismissed on the merits.

Ground Three: Violation of Privilege Against Self-Incrimination

In his Third Ground for Relief, Griffin claims his Fifth Amendment privilege against self-

incrimination was violated when the Common Pleas Court would not let him testify in his own

defense while protecting him from cross-examination.

Griffin raised this claim on direct appeal and the Twelfth District decided it as follows:

{¶ 27} In his third assignment of error, Griffin contends that his

Fifth Amendment right against self-incrimination was violated

because the trial court did not allow him to take the stand and avoid

cross-examination on the Hamilton County offense. However, it is

well established that criminal defendants who voluntarily take the

stand in their own defense voluntarily subject themselves to cross-

examination. State v. Roten, 2002-Ohio-4488, ¶ 12 (12th

Dist.); State v. Madison, 2020-Ohio-3735, ¶ 125 (“A defendant has

no right to set forth to the jury all the facts which tend in his favor

without laying himself open to a cross-examination upon those

facts.”). In this case, Griffin was not entitled to restrict the state's

cross-examination regarding the Hamilton County offense. After

learning that he would not be entitled to restrict the scope of the

state's cross-examination, Griffin invoked his right not to testify.

Accordingly, there was no violation of his Fifth Amendment right

against self-incrimination. Griffin's third assignment of error is

overruled.

State v. Griffin, supra.

Because the Twelfth District decided this claim on the merits, Griffin can prevail in habeas

only if he shows the Twelfth District’s decision was an objectively unreasonable application of

clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

Griffin first cites Thompson v. Whitman, 85 U.S. 457, 467 (1873), holding that a court

without jurisdiction, whether subject matter or personal, cannot lawfully act in a case. That

certainly remains good law, but the authority supports what was done here. There is no doubt that

the Clermont County Court of Common Pleas had subject matter jurisdiction over the felony

crimes on which Griffin was indicted in that county and personal jurisdiction over Griffin himself.

The decision of which Griffin complains – a holding that if he voluntarily took the stand to defend

himself on those Clermont County charges, he would subject himself to cross-examination which

could include anything he said about the Hamilton County charges – was a decision the Clermont

County judge made in a case properly pending before him. Whether that decision was correct or

incorrect is not determined by the fact that he had no subject matter jurisdiction over the Hamilton

County case. He did not purport to make a decision binding in the Hamilton County case. If

Griffin had taken the stand and made admissions relating to the Hamilton County case, it would

have been up to the trial judge in that case to decide whether the admissions were admissible or

whether they should be excluded to protect Griffin’s claim of privilege.

Griffin next relies on Lefkowitz v. Turley, 414 U.S. 70 (1973). In that case four New York

statutes required “public contracts to provide that if a contractor refuses to waive immunity or to

answer questions when called to testify concerning his contracts with the State or any of its

subdivisions, his existing contracts may be canceled and he shall be disqualified from further

transactions with the State for five years.” Id. at 71. The Supreme Court upheld the lower court

decision that these statutes were unconstitutional because they compelled testimony which could

be incriminating. But nothing in the decision holds that a person may voluntarily decide to testify

and then limit cross-examination.

Griffin was not compelled to testify at all. He chose not to for the same reason most

defendants choose not to testify: it exposes them to cross-examination on their testimony. The

Fifth Amendment does not give a defendant the privilege of choosing to put favorable testimony

before a jury but then keeping to themselves the facts that would be revealed by proper cross-

examination.

When a habeas court decides whether a state decision is contrary to Supreme Court

decisions, it is the holdings of those cases which count, not dicta. Only holdings of the Supreme

Court, not dicta in its opinions, can warrant habeas corpus relief. Bryan v. Bobby, 843 F.3d 1099

(6th Cir. 2016), citing White v. Woodall, 572 U.S. 415 (2014).

In analyzing whether a state-court decision is contrary to or an

unreasonable application of federal law, we look only to clearly

established Supreme Court precedent that existed when the state

court rendered its decision. Greene v. Fisher, 565 U.S. 34, 38

(2011). A state-court decision is contrary to that precedent if the

state court’s reasoning or result contradicts that precedent. Early v.

Packer, 537 U.S. 3, 8 (2002). And the state court unreasonably

applies clearly established law when it correctly identifies the

governing legal rule but applies it unreasonably to the facts. White

v. Woodall, 572 U.S. 415, 426 (2014). The application must have

been “objectively unreasonable” such that the state court’s ruling

“was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 419–420 (quoting

Harrington, 562 U.S. at 103).

Coleman v. Bradshaw, 974 F. 3d 710, 716 (6th Cir. 2020). “Federal law is clearly established only

when it is embodied in a holding of the Supreme Court; dicta does not count.” Jones v. Bell, 801

F.3d 556, 564 (6th Cir. 2015) (quoting Thaler v. Haynes, 559 U.S. 43, 47 (2010)) (quotation marks

omitted).

Griffin has not shown that the Twelfth District’s decision on his privilege claim is contrary

to any Supreme Court holding. Ground Three should be dismissed as without merit.

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 25, 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.