Garrison v. Gray, Case No. 2:18-cv-1152

• Decision Date: 01 August 2019
• Docket Number: Case No. 2:18-cv-1152
• Parties: STEPHEN M. GARRISON, Petitioner, v. DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

STEPHEN M. GARRISON, Petitioner, v. DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

Case No. 2:18-cv-1152

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

August 1, 2019

District Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

SUBSTITUTED REPORT AND RECOMMENDATIONS

This habeas corpus case was brought by Petitioner Stephen M. Garrison pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Muskingum County, Ohio, Court of Common Pleas on February 15, 2017 (Petition, ECF No. 3, PageID 37, ¶¶ 1-2). On order of Magistrate Judge Kimberly Jolson (ECF No. 2), the Respondent has filed the State Court Record (ECF No. 7) and a Return of Writ (ECF No. 8). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the workload in the District (ECF No. 13). Petitioner filed a Reply (ECF No. 14), making the case ripe for decision.

Litigation History

Garrison was indicted by a Muskingum County, Ohio, grand jury on one count of domestic violence with the specification that he had two or more prior domestic violence convictions (Indictment, State Court Record, ECF No. 7, PageID 69). Convicted by a trial jury, he was sentenced to thirty-six months imprisonment. He took a direct appeal to the Ohio Court of Appeals, which affirmed the conviction and sentence. State v. Garrison, Muskingum No. CT2017-18, 2018-Ohio-463, ¶¶ 6, 8, 64 (Ohio App. 5^th Dist. Feb. 2, 2018). Garrison did not timely appeal to the Supreme Court of Ohio, and that court denied his motion for delayed appeal. State v. Garrison, 153 Ohio St. 3d 1429, 2018-Ohio-2418. Garrison next filed his Petition in this Court, pleading the five grounds for relief discussed below. (Petition, ECF No. 3.)

The Petition contains extensive pleading of supporting facts which are reproduced below with the Ground for Relief to which they pertain.

Analysis

Procedural Default for Failure to Timely Appeal to the Supreme Court of Ohio

Respondent asserts all of Garrison's five grounds for relief are barred by his procedural default in failing to present them to the Supreme Court of Ohio in a timely direct appeal (Return of Writ, ECF No. 8, PageID 600, et seq.). Garrison responds that he "will not only demonstrate cause for any perceived default and actual prejudice, but additionally, will demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." (Traverse, ECF No. 14, PageID 657.)

In the initial Report and Recommendations filed in this case, the Magistrate Judge recommended upholding the Warden's procedural default defense on the basis of this particular default (ECF No. 19). That Report was filed after receiving materials filed by the Warden inresponse to the Court's Order to Expand the Record (Order, ECF No. 15; Warden's Response, ECF No. 18), but before receiving materials tendered by Petitioner in reaction to that Order (ECF Nos. 20, 21). Only the Warden was ordered to expand the record, but the Magistrate Judge believes in fairness the Court should consider Petitioner's responsive materials.

The materials added by expansion relate to whether Garrison's failure to timely file in the Supreme Court of Ohio is to be excused by failure of prison personnel to mail his appeal in time. The conflicting affidavits filed on this issue present a factual dispute which cannot be resolved on paper affidavits because resolution would depend on a credibility determination. Because procedural default in this case is a federal question on which the state courts did not develop a factual record, this Court is not precluded from hearing evidence by Cullen v. Pinholster, 563 U.S. 170 (2011). However, conducting such a hearing would waste scarce judicial resources as it would require issuance of writs of habeas corpus ad testificandum for Petitioner and his inmate witness as well as requiring the testimony of several prison employees. The Magistrate Judge believes the issue of procedural default based on failure to appeal to the Supreme Court of Ohio can, in the interest of judicial economy, be set to one side and the case resolved on the merits and/or on procedural default defenses on other bases.

Analysis

Ground One: Improper Admission of Photographs

Petitioner pleads his First Ground for Relief as follows:

Ground One: The trial court erred by admitting State's Exhibits one (1) through five (5) in violation of Evid. R. 402 and 403, and in violation of equivalent and corresponding Federal Rules 402 and 403, as these exhibits did not accurately depict the contents purported and is a violation of Petitioner's right to a fair and impartial trial.

Supporting Facts: The State's Exhibits One (1), Two (2), Three (3), Four (4) and Five (5) were declared by the State to depict the alleged victim's speculative injuries, that of Nikki Dickinson. These photographs were taken by Deputy Hamilton while he was at the scene of the alleged domestic violence call.

Deputy Hamilton testified at trial. As these exhibits did not depict any injuries whatsoever, Deputy Hamilton testified that what he saw visually on scene is not depicted in the photographs and went on to state that he observed substantial injuries.

Defense Counsel objected to the admission of these photographs as exhibits. The trial court ruled and admitted the photographs, it specified the accuracy would have to be argued (Trial, Vol. I, P. 237).

The trier of fact, here - the jury - weighs heavily the testimony of law enforcement officials. The deputy testified that he visually saw injuries that were not present in the photographs. The photographs should not have been admitted as they violation Evid. R. 402 which states that "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible." And Evid. R. 403 which states that "(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."

The Appellate Court determined that there was no prejudice to the Defendant in admitting these exhibits into the record.

However, Evid. R. 402 and 403 does [sic] not state that there must be prejudice, there are two other exclusions to these rules where there is confusion of the issues and misleading the jury. Clearly, the admission of this evidence would mislead jurors.

There is a conflict that is unresolved as it relates to this issue. The trial judge even acknowledged that this would be a contentious issue leaving it to be argued on appeal.

(Petition, ECF No. 3, PageID 42.)

The Warden defends on the merits of Ground One by asserting that questions of the admission of evidence raise state evidentiary law questions which are not cognizable in habeas corpus (Return, ECF No. 8, PageID 612-15).

Garrison responds generally that the photographs were misleading precisely because the jury would have to wonder why Deputy Hamilton took the photographs. (Traverse, ECF No. 14, PageID 673-77.)

Both parties agree that the relevant law is summarized in Wilson v. Sheldon, 874 F.3d 470 (6^th Cir. 2017), where the court held:

With regard to evidentiary rulings, the standard for habeas relief is not easily met. "[F]ederal habeas courts review state court evidentiary decisions only for consistency with due process." Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). "A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights." Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Moreover, such rulings "are usually not to be questioned in a federal habeas corpus proceeding." Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988)). Even if errors are made in the application of state law, "[such] errors . . . especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus." Walker v. Engle, 703 F.2d 959, 962 (6th Cir.), cert. denied, 464 U.S. 962, 104 S. Ct. 396, 78 L. Ed. 2d 338 (1983). If a ruling is especially egregious and "results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citing Coleman, 244 F.3d at 542). Importantly, however, as a general matter, "state-court evidentiary rulings cannot rise to the level of due process violations unless they 'offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour, 224 F.3d at 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 135 L. Ed. 2d 361(1996)). Ultimately, states have wide latitude with regard to evidentiary matters under the Due Process Clause. Id.

874 F. 3d at 475-76. Fundamentally, a federal habeas court does not sit as a court of appeals with respect to state court rulings on questions of state law. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10...