Application — Stephen Thompson, Applicant v. Christopher LaRose, Warden

Case: 5:18-cv-00895-PAG Doc #: 16 Filed: 09/18/19 1 of 22. PageID #: 956

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHEN THOMPSON,

Petitioner,

v.

CHRISTOPHER LaROSE, Warden

Respondent.

) Case No. 5:18CV895

)

)

) JUDGE PATRICIA GAUGHAN

) MAGISTRATE JUDGE DAVID A. RUIZ

)

)

)

) REPORT AND RECOMMENDATION

Petition Stephen Thompson (“Thompson” or “petitioner”) has filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The petition is before the magistrate judge pursuant

to Local Rule 72.2(b)(2). Petitioner is in the custody of the Ohio Department of Rehabilitation

and Correction pursuant to journal entry of sentence in the case of State of Ohio v. Thompson,

Case No. 13-CR-0137 / 13-CR- 0079 (Wayne County March 17, 2014). (R. 1, PageID #: 1; R. 51, RX 15, RX 27 (resentencing on remand).) Thompson’s petition stems from his conviction for

felonious assault and other crimes in the Wayne County (Ohio) Court of Common Pleas. The

respondent has filed a Return of Writ (R. 5) and Thompson has filed a Traverse (R. 10). For the

following reasons, the magistrate judge recommends that the petition be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment

of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. §

2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) (“State-court

factual findings are presumed correct unless rebutted by clear and convincing evidence.”) The

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Ninth District Court of Appeals (“state appellate court”) summarized the facts underlying

petitioner’s conviction as follows:

Sergeant Chris Conwill of the Wooster Police Department responded to a dispatch

indicating that there was a vehicle at a nearby fast food restaurant with a possibly

intoxicated driver. Thompson was later identified as the driver of the vehicle.

After locating the vehicle identified in the report, Sergeant Conwill followed it as

it drove away from the restaurant and observed the vehicle make several traffic

infractions. Sergeant Conwill saw the vehicle make an abrupt turn into a private

driveway that went through the front yard of a residence. Sergeant Conwill

interpreted this abrupt turn as an effort to evade police so he followed the vehicle,

parked behind it, and pointed a spotlight at it.

Sergeant Conwill approached the vehicle, which was still in the driveway, facing

the residence, and he observed the person in the front passenger seat vomit

outside of the passenger side. Sergeant Conwill positioned himself behind the

driver's side of the vehicle and he made eye contact with Thompson as Thompson

looked over his shoulder. Around the time of this interaction, Trooper Keith

McClintock of the Ohio State Highway Patrol also arrived on the scene, exited his

cruiser, and drew his sidearm as the vehicle's passenger door opened.

After seeing Sergeant Conwill, Thompson revved his vehicle's engine,

accelerated, and started to drive further down the driveway towards the residence.

He then turned left onto the yard and maneuvered his vehicle around a tree before

driving back towards the road as he straddled the driveway and the yard.

Thompson was driving towards the road at approximately 20 to 30 miles per hour

while fishtailing and heading directly toward Trooper McClintock, who was

fearful for his life as he stood in a narrow area between a police cruiser and a

nearby embankment. Trooper McClintock subsequently moved left out of the

vehicle's path and fired three rounds at it. Thompson then crashed the vehicle into

the embankment, got out of the vehicle, and began to flee on foot. Trooper

McClintock chased Thompson on foot and eventually tackled him. During the

ensuing entanglement, Thompson hit Trooper McClintock in the head with a

flashlight before Sergeant Conwill reached their location and used a stun-gun to

immobilize Thompson.

Thompson was arrested and transported to the hospital. After obtaining a warrant,

the hospital staff drew blood from Thompson, which revealed a blood alcohol

content of .17, over twice the legal limit, and the presence of marijuana. Once his

medical treatment was completed, Thompson was escorted to the county jail.

After Sheriff Deputy Kirk Shelly instructed Thompson to use the restroom and

change, Thompson grabbed the deputy by the throat with such force that he drew

blood and tore skin from the deputy's neck.

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The Grand Jury indicted Thompson on the following: (1) two counts of felonious

assault on a peace officer in violation of R.C. 2903.11(A)(2), a felony of the first

degree; (2) two counts of assault on a peace officer in violation of R.C.

2903.13(A), a felony of the fourth degree; (3) one count of obstructing official

business in violation of R.C. 2921.31(A), a felony of the fifth degree; (4) one

count of OVI in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first

degree; and (5) one count of OVI in violation of R.C. 4511.19(A)(1)(c), a

misdemeanor of the first degree.

The matter proceeded to a jury trial during which the trial court allowed the State

to amend the indictment to include an allegation that the offenses occurred in

Wayne County. The trial court also granted Thompson's Crim.R. 29 motion for

acquittal on one of the felonious assault counts. The jury found Thompson guilty

on the remaining counts.

(R. 5-1, RX 22; State v. Thompson, No. 15AP0016, 2016 WL 3570469, at *1-*2 (Ohio Ct. App.

June 30, 2016).)

On direct appeal, Thompson raised seven assignments of error:

1. The jury was denied expert testimony regarding the defendant’s reaction time

and expert testimony regarding the position of Trooper McClintock; as a result,

the jury was deprived of evidence relevant to the issue of the defendant’s intent as

well as the credibility of various prosecution witnesses.

2. The trial court erroneously failed to instruct the jury that, in order to find the

defendant guilty of the peace officer specifications alleged in Counts 1, 3, and 7,

the jury was required to find that the victim was acting in the line of duty at the

time of the assault.

3. The jury verdicts reflect a second-degree felony in Count 1 and first degree

misdemeanors in Count 3 and 7.

4. The trial court erred in amending the indictment to include the allegation that

the offenses were committed in Wayne County.

5. Stephen Thompson’s conviction for felonious [assault] of Trooper McClintock

in Count 1 is not supported by legally sufficient evidence as required by state and

federal due process.

6. The trial court abused its discretion and violated Stephen Thompson’s due

process rights and right to an impartial jury by imposing an arbitrary time limit on

voir dire, and failing to excuse Juror 22.

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7. The trial court failed to make the necessary statutory findings to support the

imposition of consecutive sentences.

(R. 5-1, RX 19, PageID #: 118-119.) On June 30, 2016, the court of appeals affirmed the

criminal convictions, but sustained the seventh assignment of error. (R. 5-1, RX 22, PageID #:

220-223; Thompson, 2016 WL 3570469, at *10-*12.) The judgment of sentencing was reversed

and remanded, insofar as the court found that the judgment of consecutive sentences was not

supported by sufficient findings under Ohio Rev. Code § 2929.14(C)(4). (R. 5-1, RX 22, PageID

#: 223; Thompson, 2016 WL 3570469, at *11.) On remand, Thompson was resentenced on

February 28, 2018. (R. 5-1, RX 27.)

Thompson appealed his convictions to the Supreme Court of Ohio, raising the following

four propositions of law:

1. The physical ability of a motorist to perceive and react while driving is

properly the subject of expert testimony.

2. A criminal defendant is denied his constitutional right to present a full defense

when the trial court completely bars the defense expert from testifying on the

basis that a small portion of the expert report is inadmissible.

3. To obtain a conviction for felonious assault based upon a vehicle’s near

collision with the alleged victim, the State must prove, beyond a reasonable

doubt, that the driver was able to perceive the alleged victim and had adequate

time to react and avoid that individual.

4. Pelfrey errors are not subject to plain error analysis.1

1

In Pelfrey, the Supreme Court of Ohio had ruled: “Pursuant to the clear language of R.C.

2945.75, a verdict form signed by a jury must include either the degree of the offense of which

the defendant is convicted or a statement that an aggravating element has been found to justify

convicting a defendant of a greater degree of a criminal offense.” State v. Pelfrey, 112 Ohio St.

3d 422, 423, 860 N.E.2d 735, 736 (2007) (syllabus).

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(R. 5-1, RX 24, PageID #: 228.) On February 22, 2017, the Supreme Court of Ohio declined

jurisdiction of his appeal. (R. 5-1, RX 26; State v. Thompson, 148 Ohio St.3d 1410, 69 N.E.3d

750 (2017).)

On April 19, 2018, Thompson filed a petition for a writ of habeas corpus in this court,

alleging three grounds for relief:

1. Stephen Thompson was denied his right to present a complete defense when

the trial court excluded all of his experts and their testimony in violation of the

Sixth and Fourteenth Amendments of the federal Constitution.

2. The evidence is insufficient under the Fourteenth Amendment to sustain a

conviction for Felonious Assault on Trooper McClintock under Jackson v.

Virginia, 443 U.S. 307 (1979).

3. AEDPA violates the federal Constitution and this Petition must be decided

without its application.

(R. 1, PageID #: 20, 22, 23.)

II. HABEAS CORPUS REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must

apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal

courts have limited power to issue a writ of habeas corpus with respect to any claim which was

adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided

the following guidance:

Under § 2254(d)(1), the writ may issue only if one of the following two

conditions is satisfied -- the state-court adjudication resulted in a decision that (1)

“was contrary to ... clearly established Federal law, as determined by the Supreme

Court of the United States,” or (2) “involved an unreasonable application of ...

clearly established Federal law, as determined by the Supreme Court of the

United States.” 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 this

Court on a question of law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts. Under the “unreasonable

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application” clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-413 (2002). See also Lorraine v. Coyle, 291 F.3d 416,

421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).

A state court decision is “contrary to” clearly established Supreme Court precedent “if

the state court applies a rule that contradicts the governing law set forth in [Supreme Court]

cases.” Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U.S. 634, 640 (2003). A state

court decision is not unreasonable simply because the federal court considers the state decision to

be erroneous or incorrect. Rather, the federal court must determine that the state court decision is

an objectively unreasonable application of federal law. Williams, 529 U.S. at 410-12; Lorraine,

291 F.3d at 422.

III. LEGAL ANALYSIS

A. CONSTITUTIONALITY OF THE AEDPA

Thompson’s third ground for relief argues that the AEDPA violates the U.S. Constitution

and it should not apply to his petition. (R. 1, PageID #: 23.) The court necessarily addresses this

argument first, as it affects the proper standard of review.

Duly enacted congressional statutes are entitled to a presumption of constitutionality.

United States v. Napier, 233 F.3d 394, 399 (6th Cir. 2000); United States v. Scrushy, No. CR-03BE-0530-S, 2004 WL 2713262, at *2 (N.D. Ala. Nov. 23, 2004). A congressional enactment

will be invalidated only upon a plain showing that Congress has exceeded its constitutional

bounds. Napier, 233 F.3d at 399 (quoting United States v. Morrison, 529 U.S. 598 (2000)).

In support of his argument that the AEDPA unconstitutionally restricts the court’s ability

to remedy alleged constitutional violations, Thompson cites three cases. (R. 1, PageID #: 23.)

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The first citation is to a dissenting opinion in a First Circuit case, Evans v. Thompson, 534 F.3d 1

(1st Cir. 2008) (Lipez, J., dissenting), which dissented from the court’s denial of en banc review.

Although such a dissenting decision may have instructive value, the majority decision upholding

the application of the AEDPA certainly has more precedential value because dissenting opinions

are not binding authority on any court. In addition, decisions from a sister circuit may be

instructive persuasive authority, but they are not binding authority on courts in the Sixth Circuit.

See generally McDermott v. Kerns, No. 3:07CV901, 2008 WL 2600008, at *2 (N.D. Ohio June

26, 2008) (district court is bound by relevant Sixth Circuit precedent, citing Timmreck v. United

States, 577 F.2d 372, 373 n. 6 (6th Cir. 1978), overruled on other grounds by United States v.

Timmreck, 441 U.S. 780 (1979)); Bennett v. E.F. Hutton Co., 597 F. Supp. 1547, 1557 (N.D.

Ohio 1984); In re Brown, 536 F. Supp. 750, 751 (N.D. Ohio 1982).

The second and third citations are to dissenting opinions in the Davis v. Straub case. In

neither case did the Sixth Circuit hold the AEDPA to be unconstitutional. In the first Davis case,

the dissent argued that the majority opinion was overly deferential to the state court’s findings.

Davis v. Straub, 430 F.3d 281, 295-298 (6th Cir. 2005), cert. denied, 549 U.S. 1110 (2007)

(“Davis I”) (Merritt, J., dissenting). Rather than asserting that the statute was unconstitutional

per se, the dissent argued: “The majority’s narrow view of § 2254(d)(1) unconstitutionally

obstructs Article III’s mandate to exercise the judicial power in cases over which the court has

jurisdiction.” Id. at 296. The dissent viewed the majority’s reading of the statute as resulting in

an “undue deference to state court judgments,” id. at 297-298, and asserted that such undue

deference “would render § 2254(d)(1) unconstitutional,” id. at 298. The dissent’s argument, then,

was not that the AEDPA was necessarily unconstitutional, but rather the majority’s reading of

the statute was improper.

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Thompson also relies on a dissenting opinion in the second Davis case, which raised

similar concerns. See Davis v. Straub, 445 F.3d 908 (6th Cir. 2006) (Martin, J., dissenting)

(denial of rehearing en banc). The dissent expressed the opinion that recent Sixth Circuit

opinions had “adopted an overly narrow interpretation of the ‘unreasonable application’ prong of

the AEDPA’s Section 2254(d)(1).” Id. at 908. The dissent argued that the panel decision in Davis

I was “a prime example of the result of such an overly narrow reading of AEDPA.” Id. The

dissent contended that the court’s “narrow reading of the unreasonable application prong offends

the judicial power under Article III.” Id. at 910. However, the dissent did not argue that the

statute was unconstitutional per se, but rather stated, “a proper and constitutional interpretation

of Section 2254(d)(1) would require the writ to issue” in the case before the court. Id. at 912.

The dissent’s argument, again, was not that the AEDPA was unconstitutional, but rather that the

panel’s decision was improper.

Thompson has failed to overcome the presumption of the AEDPA’s constitutionality. See

generally Napier, 233 F.3d at 399; Scrushy, 2004 WL 2713262, at *2. He has not presented any

United States Supreme Court or Sixth Circuit authority supporting “a plain showing that

Congress has exceeded its constitutional bounds,” Napier, 233 F.3d at 399 (quoting Morrison,

529 U.S. 598), nor has he pointed to any binding authority finding the statute to be

unconstitutional. The third ground of the petition is without merit. The court finds that this case

is properly governed by the AEDPA, 28 U.S.C. § 2254, and will apply its standard of review.

See supra.

B. SUFFICIENCY OF THE EVIDENCE

The Sixth Circuit has stated that a sufficiency of evidence argument should be the first

issue ruled upon in a habeas petition. Russell v. Anderson, No. 1:07CV3434, 2008 WL 4534144,

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at *3 (N.D. Ohio Oct. 6, 2008) (citing Joseph v. Coyle, 469 F.3d 441, 453-454 (6th Cir. 2006).

In this case, it was necessary to address the question of the relevant standard of review first.

Having resolved that issue, the court moves to the sufficiency claim.

The second ground of the petition is that “[t]he evidence is insufficient under the

Fourteenth Amendment to sustain a conviction for Felonious Assault on Trooper McClintock

under Jackson v. Virginia, 443 U.S. 307 (1979).” (R. 1, PageID #: 22.) Thompson contends that

there was insufficient evidence presented that Thompson knowingly attempted to cause harm to

Trooper McClintock by attempting to hit McClintock with the car Thompson was driving. Id.

The state court of appeals addressed this contention as follows:

A sufficiency challenge to a criminal conviction presents a question of law that

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). In carrying out this review, our “function * * * is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince

the average mind of the defendant's guilt beyond a reasonable doubt.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to

the prosecution, we must decide whether “any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” Id.

Although we conduct de novo review when considering a sufficiency challenge,

“we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as

both are functions reserved for the trier of fact.” (Internal quotation and citation

omitted.) State v. McMillen, 9th Dist. Summit No. 27666, 2016-Ohio-370, ¶ 5.

The first basis[2] of Thompson’s sufficiency challenge is that the State failed to

offer sufficient evidence that he was aware that his conduct of driving head-on

towards Trooper McClintock would probably result in an attempt to cause

physical harm to Trooper McClintock. This argument implicates the statutory

definitions for “knowingly” and “attempt.” “A person acts knowingly, regardless

of purpose, when he is aware that his conduct will probably cause a certain result

or will probably be of a certain nature.” Former R.C. 2901.22(B).4 R.C.

2923.02(A), meanwhile, relevantly defines “attempt” as “[n]o person, * * *

knowingly, and when * * * knowledge is sufficient culpability for the commission

2

The second basis of Thompson’s state-court challenge to the sufficiency of the evidence

concerned the deadly weapon element of the statute (R. 5-1, RX 19, PageID #: 144; RX 22,

PageID #: 218-220; Thompson, 2016 WL 3570469, at *10), which he does not press in his

habeas petition.

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of an offense, shall engage in conduct that, if successful, would constitute or

result in the offense.”

After reviewing the record, we conclude that it contains sufficient evidence to

establish that Thompson was aware his conduct could result in physical harm to

Trooper McClintock. Although there is no evidence that Trooper McClintock

spoke with Thompson before he drove the vehicle toward him, there is an

indication that Thompson made eye contact with Sergeant Conwill before driving

towards the two sets of headlights behind his vehicle in the driveway. Based on

this, it is reasonable to infer that Thompson was aware of the presence of at least

two officers as he drove away from the residence toward the road. Additionally,

both Sergeant Conwill and Trooper McClintock testified that Thompson’s vehicle

drove directly toward Trooper McClintock while its headlights were on. This,

along with evidence demonstrating that Thompson was able to maneuver his

vehicle around the driveway and yard, indicates that Thompson was able to see

the trooper as he accelerated and drove toward him. From these items of evidence,

we determine that the State offered sufficient evidence to establish the required

mental state of “knowingly.” See State v. Cash, 6th Dist. Lucas No. L-03-1198,

2005-Ohio-1382, ¶ 7 (rejecting sufficiency challenge to felonious assault of a

peace officer conviction where officers believed the vehicle was attempting to hit

them and collision was only avoided because the officers took evasive action).

(R. 5-1, RX 22, PageID #: 218-219; Thompson, 2016 WL 3570469, at *9.)

The state court appeared to rely on state law, rather than federal law, in addressing the

sufficiency of the evidence claim. The standard set forth in State v. Jenks, 61 Ohio St. 3d 259,

259-260, 574 N.E.2d 492, 494 (1991), cited by the state appellate court, incorporated the relevant

standard from Jackson v. Virginia, 443 U.S. 307 (1979). Because the state appellate court

applied the above-referenced standard (R. 5-1, RX 22, PageID #: 218; Thompson, 2016 WL

3570469, at *9), it identified the correct governing legal principle as set forth in Jackson v.

Virginia.

The question for this court, then, is whether the state court decision involved an

unreasonable application of clearly established federal law, as determined by the Supreme Court

of the United States. Under the “unreasonable application” clause, this court may grant the writ if

the state court identified the correct governing legal principle from Supreme Court decisions but

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unreasonably applied that principle to the facts of Thompson’s case. In addition, a sufficiency of

the evidence claim is reviewed under Supreme Court precedent by determining 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, 443

U.S. at 319; see also Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam); Bagby v. Sowders, 894

F.2d 792, 794 (6th Cir.) (en banc), cert. denied, 496 U.S. 929 (1990).

Under Jackson, the habeas court does not make its own subjective determination of guilt

or innocence. Russell, 2008 WL 4534144, at *3 (citing Herrera v. Collins, 506 U.S. 390, 402

(1993)); Talley v. Hageman, 619 F.Supp.2d 407, 416 (N.D. Ohio 2008) (citing Herrera). This

court does not weigh the evidence, evaluate the credibility of witnesses, or substitute its

judgment for that of the jury. White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009), cert. denied,

562 U.S. 858 (2010) (quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)); Dover v.

Warden, Belmont Corr. Inst., No. 5:08CV2130, 2009 WL 1940728, at *14 (N.D. Ohio July 2,

2009).

The Supreme Court has emphasized that “it is the responsibility of the jury—not the

court—to decide what conclusions should be drawn from evidence admitted at trial.” Cavazos,

565 U.S. at 2. The Court stressed that Jackson “unambiguously instructs that a reviewing court

‘faced with a record of historical facts that supports conflicting inferences must presume—even

if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts

in favor of the prosecution, and must defer to that resolution.’” Id. at 7 (quoting Jackson, 443

U.S. at 326). “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.” Coleman v. Johnson,

566 U.S. 650, 651 (2012) (per curiam) (quoting Cavazos).

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On habeas review, “the Jackson v. Virginia standard is so demanding that ‘[a] defendant

who challenges the sufficiency of the evidence to sustain his conviction faces a nearly

insurmountable hurdle.’” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (en banc), cert.

denied, 566 U.S. 947 (2012) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

The Supreme Court has affirmed that “Jackson claims face a high bar in federal habeas

proceedings.” Coleman, 566 U.S. at 651. A federal habeas court may overturn the state court’s

sufficiency of the evidence decision “only if the state court decision was ‘objectively

unreasonable.’” Id. (citing Cavazos, 565 U.S. at 4). The Sixth Circuit has noted that the precise

definition of “objectively unreasonable” in this context “remains elusive.” Davis, 658 F.3d at

534. The court determined that a habeas court is “limited to reviewing whether the state trial

court’s decision was so objectively unreasonable as to be ‘beyond error,’ or ‘outside the

boundaries of permissible differences of opinion,’ or more than ‘clearly wrong,’” to warrant

granting the petitioner habeas relief. Id. at 535-536 (internal citations omitted).

Reviewing the arguments of the parties and the state court’s determination on this matter,

this court cannot find that the state court decision is an objectively unreasonable application of

federal law. The court cannot find that no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Coleman v. Johnson, 566 U.S. at 651; Jackson,

443 U.S. at 319. Thompson has failed to demonstrate that the state court determination resulted

in a decision that involved an unreasonable application of clearly established federal law, as

determined by the Supreme Court of the United States.

The petition should not be granted on the basis of the second ground.

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C. RULINGS ON EXPERT WITNESSES

The first ground of the petition asserts that the petitioner “was denied his right to present

a complete defense when the trial court excluded all of his experts and their testimony in

violation of the Sixth and Fourteenth Amendments of the federal Constitution.” (R. 1, PageID #:

20.) On direct appeal, Thompson framed this first assignment of error as:

The jury was denied expert testimony regarding the defendant’s reaction time and

expert testimony regarding the position of Trooper McClintock; as a result, the

jury was deprived of evidence relevant to the issue of the defendant’s intent as

well as the credibility of various prosecution witnesses.

(R. 5-1, RX 19, PageID #: 118, 132.) Thompson argued that the trial court abused its discretion

in its evidentiary rulings, which he characterizes as unreasonable, arbitrary or unconscionable.

Id. at 132 (citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).) He also states: “It is

axiomatic that a defendant has a right to present evidence in his own behalf. U.S. Const.

Amends. VI, XIV; Ohio Const. Art. I, Sec. 10.” Id. Although Thompson included that reference

to the Sixth and Fourteenth Amendments, he did not raise any federal constitutional arguments

concerning this claim in his operative appellate brief. See generally R. 5-1, RX 19, PageID #:

132-136.

The state appellate court ruled on Thompson’s claim as follows:

In his first assignment of error, Thompson contends that the trial court abused its

discretion by precluding the defense from offering expert testimony regarding the

police’s actions during the incident and his ability to see Trooper McClintock

when driving towards him. We disagree.

Thompson attempted to call three expert witnesses in his defense: Thomas

Tomasheski, Choya Hawn, and Henry Lipian. He argues that these expert

witnesses’ expected testimony would have created a reasonable doubt in regard to

his felonious assault conviction for driving his vehicle towards Trooper

McClintock. The trial court excluded Mr. Tomasheski's testimony as irrelevant

and it excluded Mr. Lipian's and Mr. Hawn's testimony under Evid.R. 403(A).

Accordingly, we consider the trial court's exclusion of Mr. Tomasheski's

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testimony separately from the exclusion of Mr. Hawn's and Mr. Lipian's

testimony.

A. Mr. Tomasheski's Testimony

Evid.R. 402 limits the admission of evidence to relevant evidence. Evidence is

relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Evid.R. 401. Trial courts are “‘vested

with broad discretion’” in regard to the admission or exclusion of evidence, and

“‘an appellate court should not interfere [with the trial court’s evidentiary ruling]

absent a clear abuse of that discretion.’” State v. Yarbrough, 95 Ohio St.3d 227,

767 N.E.2d 216, 2002-Ohio-2126, ¶ 40, quoting State v. Allen, 73 Ohio St.3d 626,

633, 653 N.E.2d 675 (1995). An abuse of discretion “implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable.” Blakemore [v.

Blakemore], 5 Ohio St.3d [217,] 219, 450 N.E.2d 1140 (1983). We may not

substitute our own judgment for that of the trial court when applying the abuse of

discretion standard. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301

(1990).

Here, Mr. Tomasheski’s expert report essentially criticizes the handling of the

incident by Sergeant Conwill and the various law enforcement agencies that

responded to the scene. Mr. Tomasheski opines that Sergeant Conwill violated

protocol by failing to stop Thompson’s vehicle in the fast food restaurant’s

parking lot and by arranging for Trooper McClintock to get involved. Mr.

Tomasheski also opines that “what I see in this investigation makes me sad”

because the responding agencies disputed which agency was the proper one to

handle the investigation.

After reviewing Mr. Tomasheski’s opinions and his report, we conclude that the

trial court did not abuse its discretion by precluding Mr. Tomasheski from

testifying. The report indicates that Mr. Tomasheski’s testimony would have been

irrelevant in regard to Thompson’s felonious assault conviction. Sergeant

Conwill’s failure to stop Thompson’s vehicle in the restaurant’s parking lot and

his decision to involve Trooper McClintock in the traffic stop does not implicate

whether Thompson knowingly drove his vehicle towards Trooper McClintock.

See State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶ 32

(determining that assault victims’ failure to follow the controlling policies of their

employers were irrelevant to the defendant’s guilt and inadmissible). The

responding agencies’ subsequent dispute over the proper authority for the

investigation is also irrelevant as it does nothing to illuminate whether

Thompson’s action of driving towards Trooper McClintock was more probable or

less probable. See State v. McCray, 103 Ohio App.3d 109, 118, 658 N.E.2d 1076

(9th Dist. 1995) (determining that expert testimony regarding the defendant’s

posttraumatic stress disorder after observing murder was properly excluded since

the evidence “would not offer a defense, justification or excuse” of the

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defendant’s conduct). Consequently, we are unable to determine that the trial

court erred by excluding Mr. Tomasheski's expert testimony.

B. Mr. Hawn’s and Mr. Lipian’s Testimony

Turning to Mr. Hawn’s and Mr. Lipian’s testimony, we note that “[a]lthough

relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, or confusion of the issues, or of

misleading the jury.” Evid.R. 403(A). We review the trial court’s exclusion of this

testimony under Evid.R. 403(A) for an abuse of discretion. State v. Norris, 9th

Dist. Lorain No. 14CA010699, 2015-Ohio-5180, ¶ 20. In conducting our review

of this decision, we are mindful that “the exclusion of evidence under Evid.R.

403(A) is even more of a judgment call than determining whether the evidence

has logical relevance in the first place.” Yarbrough, 95 Ohio St.3d 227, 767

N.E.2d 216, 2002-Ohio-2126, at ¶ 40.

Mr. Hawn’s expert report relates to the trajectory of the bullets fired by Trooper

McClintock. While the trajectory of the bullets may have some probative value

regarding Trooper McClintock’s position when he fired the bullets, Mr. Hawn’s

report focuses on Trooper McClintock’s reactions as opposed to Thompson’s

actions, which were the exclusive focus of the indictment. As a result, Mr.

Hawn’s testimony would have confused the jurors in regard to the proper focus of

this criminal matter, which was whether Thompson knowingly caused or

attempted to cause physical harm to Trooper McClintock. See State v. Rodriguez,

12th Dist. Butler No. CA2007-09-222, 2009-Ohio-549, ¶ 34 (determining that the

trial court properly excluded revised domestic relations forms in perjury trial

because the forms did not address “the central issue in the case[, which] involved

[the defendant]’s understanding of the forms she completed and whether she

knowingly made false statements on such documents”). Consequently, we

determine that the trial court did not abuse its discretion by excluding Mr. Hawn’s

expert testimony.

We likewise conclude that the trial court did not abuse its discretion by excluding

Mr. Lipian’s testimony under Evid.R. 403(A). Mr. Lipian’s expert report states

his opinion that Thompson was unable to detect Trooper McClintock during the

incident and that he could not make an “intentional decision” to drive towards

Trooper McClintock. Mr. Lipian’s opinion was partly based on evidence that

Thompson was voluntarily intoxicated at the time of the incident. By couching his

opinion in terms of Thompson’s inability to make an “intentional decision,” Mr.

Lipian plainly used Thompson’s voluntary intoxication as means to disprove that

Thompson “knowingly” drove toward Trooper McClintock.

But, evidence of voluntary intoxication cannot be used in such a way as former

R.C. 2901.21(C) provides that “[v]oluntary intoxication may not be taken into

consideration in determining the existence of a mental state that is an element of a

criminal offense.” See also State v. Mitchell, 8th Dist. Cuyahoga No. 102499,

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2015-Ohio-4379, ¶ 19 (“Voluntary intoxication does not negate the ‘knowing’

state of mind required for a conviction of assault.”). Allowing Mr. Lipian to

testify regarding voluntary intoxication would confuse the jurors regarding the

availability of this defense and it would unfairly prejudice the State since it would

allow the impermissible defense to be presented to the jury. See State v. Rupp,

12th Dist. Butler No. CA2001-06-135, 2002 WL 517968, *6 (Apr. 8, 2002)

(determining that the defendant’s failure to comply with the order of a police

officer was not against manifest weight of the evidence since the trial court could

not consider evidence that the defendant was unable to “willfully elude” the

police officer due to his voluntary intoxication). As a result, the trial court

properly precluded Mr. Lipian from testifying due to “the danger of unfair

prejudice, or confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

In sum, the trial court did not abuse its discretion by precluding the testimony of

Mr. Tomasheski, Mr. Hawn, and Mr. Lipian. Accordingly, we overrule

Thompson's first assignment of error.

(R. 5-1, RX 22, PageID #: 210-214; Thompson, 2016 WL 3570469, at *4-*7 (footnotes

omitted).)

The state court of appeals reviewed Thompson’s claim(s) under an abuse of discretion

standard, which was how he framed his argument in his appellate brief. See generally R. 5-1, RX

19, PageID #: 132. Moreover, the state court grounded its rulings upon Ohio law. (R. 5-1, RX 22,

PageID #: 210-214; Thompson, 2016 WL 3570469, at *4-*7; see also R. 1, PageID #: 20.)

The respondent argues that Thompson failed to fairly present his claim to the state courts

as a federal constitutional claim. (R. 5, PageID #: 41-46.) This court does not have jurisdiction to

consider a federal claim in a habeas petition that was not fairly presented to the state courts.

Baldwin v. Reese, 541 U.S. 27 (2004); Jacobs, 265 F.3d at 415. The Sixth Circuit has stated:

A claim may only be considered “fairly presented” if the petitioner asserted both

the factual and legal basis for his claim to the state courts. This court has noted

four actions a defendant can take which are significant to the determination

whether a claim has been “fairly presented”: (1) reliance upon federal cases

employing constitutional analysis; (2) reliance upon state cases employing federal

constitutional analysis; (3) phrasing the claim in terms of constitutional law or in

terms sufficiently particular to allege a denial of a specific constitutional right; or

(4) alleging facts well within the mainstream of constitutional law.

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McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001)

(citing Franklin v. Rose, 811 F.2d 322, 325-326 (6th Cir. 1987)); see also Hicks v. Straub, 377

F.3d 538, 552-554 (6th Cir. 2004), cert. denied, 544 U.S. 928 (2005). To “fairly present” the

claim to the state courts, a habeas petitioner must present his claim as a federal constitutional

issue, not as an issue arising solely under state law. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.

1984).

Thompson based his argument before the state appellate court entirely on state law,

although his appellate brief contains one citation to the Sixth and Fourteenth Amendments. (R. 51, RX 19, PageID #: 132.) His state court of appeals reply brief also referenced a denial of “his

right to present a full defense,” alleging in one sentence that it “violated his due process and

confrontation rights under the state and federal constitution.” (R. 5-1, RX 21, PageID #: 193-194,

citing Holmes v. South Carolina, 547 U.S. 319, 324 (2006).). The reply brief’s single, general

allegation to a due process violation regarding his “right to present a full defense” was not

sufficiently particular to fairly present a federal claim that specific constitutional rights were

violated. See, e.g., Olson v. Little, 604 Fed. Appx 387, 401-402 (6th Cir. 2015), cert. denied, 136

S.Ct. 551 (2015) (citing Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004); Slaughter v.

Parker, 450 F.3d 224, 236 (6th Cir. 2006), cert. denied, 551 U.S. 1103 (2007) (citing Blackmon).

None of the above-referenced McMeans elements are satisfied and the court cannot conclude that

Thompson fairly presented such a federal due process claim to the state appellate court. See

generally R. 5-1, RX 19, PageID #: 132-136. But even if the court determined that petitioner had

fairly presented such a federal claim to the state courts, the claim would fail on the merits.

The Supreme Court has stated that “[t]he Constitution guarantees a fair trial through the

Due Process Clauses, but it defines the basic elements of a fair trial largely through the several

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provisions of the Sixth Amendment.” Crane, 476 U.S. at 690 (quoting Strickland v. Washington,

466 U.S. 668, 684-685 (1984)). “A defendant’s right to present relevant evidence is not

unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S.

303, 308 (1998). The Court has recognized that states “have broad latitude under the Constitution

to establish rules excluding evidence from criminal trials.” Holmes, 547 U.S. at 324 (citing

Scheffer, 523 U.S. at 308).

The “clearly established rule” is that alleged errors of state law, “especially rulings

regarding the admission or exclusion of evidence,” are not generally within the purview of a

federal habeas court. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); see also Estelle v.

McGuire, 502 U.S. 62, 68-70 (1991); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.), cert.

denied, 540 U.S. 930 (2003); Gott v. Coleman, No. 3:15CV1148, 2016 WL 11384508, at *6

(N.D. Ohio July 21, 2016), adopted by, 2016 WL 6080161 (N.D. Ohio Oct. 18, 2016). This court

must presume that the Ohio state courts correctly interpreted Ohio evidence law in their

evidentiary rulings. Small v. Brigano, No. 04-3328, 2005 WL 1432898, at *5 (6th Cir. June 17,

2005).

In addition, alleged state court evidentiary ruling errors do not rise to the level of

constitutional claims warranting habeas relief “unless the error renders the proceeding so

fundamentally unfair as to deprive the petitioner of due process under the Fourteenth

Amendment.” Broom v. Mitchell, 441 F.3d 392, 406 (6th Cir. 2006), cert. denied, 549 U.S. 1255

(2007). See also Bugh, 329 F.3d at 512; Farraj v. Wolfenbarger, No. 10-13627, 2014 WL

1091752, at *10 (E.D. Mich. Mar. 18, 2014). Courts have defined the category of errors that are

fundamentally unfair very narrowly. Bugh, 329 F.3d at 512. “State-court evidentiary rulings

cannot rise to the level of due process violations unless they ‘offend[ ] some principle of justice

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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), cert. denied, 532 U.S. 989 (2001)

(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)); see also Majid v. Noble, 751 Fed. Appx

735, 747 (6th Cir. 2018), cert. denied, 139 S. Ct. 1360 (2019); Broom, 441 F.3d at 406 (quoting

Seymour).

Thompson does not explicitly contend that the state court evidentiary rulings were so

fundamentally unfair as to deprive him of due process. See generally R. 1, PageID #: 20-21. He

argues, however, that he was not provided an opportunity to provide a complete defense. Id. at

20, citing California v. Trombetta, 467 U.S. 479, 485 (1984); Crane v. Kentucky, 476 U.S. 683

(1986); Holmes v. South Carolina, 547 U.S. 319 (2006); and Mathews v. United States, 485 U.S.

[58,] 63 (1988). The cases petitioner relies upon, however, do not establish that evidentiary

rulings limiting expert witness testimony are so fundamentally unfair as to deprive him of due

process.

In particular, the case law petitioner cites does not support an argument that a

defendant—in order to provide a complete defense under the United States Constitution—must

be permitted to present expert testimony that a trial court has ruled inadmissible under state law.

In Trombetta, the Court held that “the Due Process Clause of the Fourteenth Amendment does

not require that law enforcement agencies preserve breath samples in order to introduce the

results of breath-analysis tests at trial.” Trombetta, 467 U.S. at 491. In Crane, the Court held that

a state is not permitted to exclude competent, reliable evidence bearing on the circumstances and

credibility of a confession when such evidence is central to the defendant’s claim of innocence.

Crane, 476 U.S. at 690. In Mathews, the Court held that “even if the defendant denies one or

more elements of the crime, he is entitled to an entrapment instruction whenever there is

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sufficient evidence from which a reasonable jury could find entrapment.” Mathews, 485 U.S. at

62. In Holmes, the Court found that “a criminal defendant’s federal constitutional rights are

violated by an evidence rule under which the defendant may not introduce proof of third-party

guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a

guilty verdict.” Holmes, 547 U.S. at 321, 327-331. None of these cases are on point.

Thompson’s Traverse cites several federal appellate decisions in support of his argument

that the writ should be granted on the basis of the exclusion of the expert witnesses. (R. 10,

PageID #: 924, citing Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), and other cases.) The

Sixth Circuit in Ferensic asserted that “[t]he right of an accused to present a defense in a

criminal trial derives from the Compulsory Process Clause of the Sixth Amendment to the U.S.

Constitution, and ‘stands on no lesser footing than the other Sixth Amendment rights that we

have previously held applicable to the States.’” Ferensic, 501 F.3d at 475 (quoting Taylor v.

Illinois, 484 U.S. 400, 409 (1988)). The Sixth Circuit ruled in that case that the trial court’s

exclusion of two defense witnesses denied the defendant his Sixth Amendment right to present a

defense.3 Ferensic, 501 F.3d at 480. The court found that the exclusion of evidence in a criminal

trial abridges an accused’s right to present a defense where the exclusion is arbitrary or

disproportionate to the purpose it is designed to serve. Ferensic, 501 F.3d at 475 (quoting

Scheffer, 523 U.S. at 308).

3

The trial court barred an expert on the reliability of eyewitness testimony from testifying

because the defense failed to meet a pretrial deadline for the exchange of expert reports.

Ferensic, 501 F.3d at 471. The Sixth Circuit stated that “a less severe sanction was appropriate

or, at the very least, should have been considered by the trial judge.” Id. at 478. The second

defense witness at issue was not present in the courtroom when the court was ready to move to

that testimony, and the court denied defendant’s motion for a brief adjournment to allow for his

arrival. Id. at 479-480.

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The Supreme Court has repeatedly stated that the AEDPA prohibits federal habeas courts

from relying on precedent from the federal courts of appeals to conclude that a particular

constitutional principle is “clearly established.” See, e.g., Lopez v. Smith, 135 S.Ct. 1, 2 (2014)

(per curiam). The petitioner must demonstrate Supreme Court case law that clearly establishes

the legal proposition needed to grant habeas relief. Lopez, 135 S.Ct. at 4; see also Woods v.

Donald, 135 S. Ct. 1372, 1377 (2015) (indicating that no Supreme Court case addresses “the

specific question presented by this case”). Thompson, however, has not cited Supreme Court

precedent—the only source of clearly established federal law for habeas purposes—supporting

his argument that a defendant must be permitted to present expert testimony that a trial court has

ruled inadmissible under state law.

The cases cited by Thompson do not support a finding that this is the exceptional case

where the state court evidentiary rulings at issue were so fundamentally unfair as to deprive him

of due process. See generally Majid, 751 Fed. Appx at 747 (habeas relief almost never granted

based on state court evidentiary decisions). Because Thompson has not shown that the state court

decision was contrary to clearly established federal law as determined by the Supreme Court of

the United States, the petitioner’s first ground for relief lacks merit.

IV. CONCLUSION

The undersigned recommends that the petition be denied, for the reasons set forth above.

s/ David A. Ruiz

David A. Ruiz

United States Magistrate Judge

Date: September 18, 2019

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OBJECTIONS

Any objections to this Report and Recommendation must be filed with the Clerk of

Courts within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72(a); LR 72.3(a).

Failure to file objections within the specified time WAIVES the right to appeal the Magistrate

Judge’s recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); see also United States v.

Walters, 638 F.2d 947 (6th Cir. 1981).

22