On
March 12, 2015, a Franklin County, Ohio, grand jury indicted
Petitioner on one count of aggravated murder in violation of
Ohio Revised Code § 2903.01, one count of murder in
violation of Ohio Revised Code § 2903.02, one count of
aggravated robbery in violation of Ohio Revised Code §
2911.10, and two counts of kidnapping in violation of Ohio
Revised Code §
2905.01. (Indictment, State Court Record,
ECF No. 7, Ex. 1). A trial jury found Greene guilty of
murder, aggravated robbery, and the two counts of kidnapping,
but not guilty of aggravated murder (Verdicts, State Court
Record, ECF No. 7, Ex. 18). After denying a post-trial motion
for judgment of acquittal and conducting a sentencing
hearing, the trial judge sentenced Greene to fifteen years to
life in prison for the murder conviction, ten concurrent
years in prison for the aggravated robbery conviction, and
ten concurrent years in prison for the kidnapping conviction
(Judgment, State Court Record, ECF No. 7, Ex. 23).
The
Tenth District Court of Appeals allowed Greene to file a
delayed direct appeal, but then affirmed his conviction and
sentence. State v. Greene, 2019-Ohio-4010
(10th Dist. Sept. 30, 2019), appellate
jurisdiction declined, 157 Ohio St.3d 1539 (2020).
Greene
filed his Petition in this case by depositing it in the
prison mailing system on January 186, 2021 (ECF No. 1).
Proceeding pro se, he pleads the following grounds
for relief:
Ground One: The trial court abused its
discretion and denied Petitioner a fair trial and due process
of law contrary to the Ohio and United States Constitutions
by admitting repetitive, gruesome photographs of the
Deceased.
Ground Two: The admission of other acts
testimony violated Petitioner's rights to due process and
a fair trial as guaranteed by the United States and Ohio
Constitutions.
Ground Three: Petitioner was denied his
rights to a fair trial to counsel, to present a defense, and
to due process contrary to the Ohio and United States
Constitutions when the trial court ordered Petitioner to wear
restraints without adequate justification.
Ground Four: Petitioner was deprived of his
right to a fair trial and due process of law by the
introduction of inadmissible community and victim impact
evidence.
Ground Five: Petitioner was deprived of the
effective assistance of trial counsel in violation of
Petitioner's rights under the Sixth and Fourteenth
Amendments to the United States Constitution; and Section 10
and 16, Article 1 of the Ohio Constitution.
Ground Six: The trial court violated
Petitioner's rights to due process and a fair trial when
it entered a judgment of conviction against the manifest
weight of the evidence in violation of Petitioner's
rights under the United States and Ohio Constitutions.
(Petition, ECF No. 1 PageID 5-20).
Claims
under the Ohio Constitution
For
each of his Grounds for Relief, Greene claims a violation of
the Ohio Constitution. However, federal habeas corpus is
available only to correct federal constitutional violations.
28 U.S.C. § 2254(a); Wilson v. Corcoran, 562
U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982),
Barclay v. Florida, 463 U.S. 939 (1983). "[I]t
is not the province of a federal habeas court to reexamine
state court determinations on state law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States." Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); see also
Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160
(1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d
248 (6th Cir. Apr. 23, 2018)(Thapar, J.
concurring).
Therefore
Greene's claims under the Ohio Constitution should be
dismissed without consideration of the merits for failure to
state a claim upon which federal habeas corpus relief can be
granted.
Ground
One: Gruesome Photographs of the Deceased
In his
First Ground for Relief, Greene claims he was denied due
process and a fair trial because the trial court admitted
repetitive gruesome photographs of the deceased.
This
claim was presented to the Tenth District Court of Appeals as
Greene's First Assignment of Error and decided by it as
follows:
{¶ 56} Under the first assignment of error, appellant
asserts the trial court erred by admitting repetitive
gruesome photographs of Seff, thereby denying him a fair
trial and due process of law. Appellant notes Detective Bair
authenticated photographs he took of the crime scene
including a group of 15 pictures shown to the jury depicting
Seff either inside the well or laying on the grass after
being removed from the well. Further, appellant notes,
Detective Green authenticated pictures he took of Seff at the
morgue, and an additional 40 pictures were shown to the jury
and admitted into evidence. Appellant maintains only a few
photographs were necessary, and that the number of
photographs admitted before the jury prejudiced him.
{¶ 57} In response, the state argues the prosecutor
worked with defense counsel to limit the number of
photographs admitted at trial, and several photographs were
withdrawn at defense counsel's request. The state further
argues defense counsel did not object to the admission of
photographs of Seff's body at the crime scene or the
morgue and, therefore, plain error is the appropriate review
on appeal.
{¶ 58} In general, “[d]ecisions on the
admissibility of photographs are ‘left to the sound
discretion of the trial court.'” State v.
Gonzalez, 7th Dist. No. 06 MA 58, 2008-Ohio-2749, ¶
34, quoting State v. Slagle, 65 Ohio St.3d 597, 601
(1992). In this respect, “[t]he test for exclusion of
evidence under Evid.R. 403 is that relevant evidence,
including photographic evidence, should only be excluded
when, ‘its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.' ” Id. See
also State v. Jones, 7th Dist. No. 12 MA 181,
2013-Ohio-5915, ¶ 77 (“in a noncapital case * * *
the admission of potentially prejudicial photographs is
determined under a discretionary balancing test that requires
exclusion only if the
probative value of the photographs is substantially
outweighed by the danger of unfair prejudice”).
{¶ 59} A review of the record indicates defense counsel
raised “no objection” to state's exhibit Nos.
B1 through B63, including the 15 photographs of Seff, nor did
defense counsel object to state's exhibit Nos. C1 through
C47, the morgue photographs. (Tr. Vol. IV at 646.) However,
before the photographs were submitted to the jury, defense
counsel requested the court to limit “the more gruesome
photographs” with respect to state's exhibit Nos.
C1 through C47 (an issue initially the subject of a pre-trial
motion in limine). (Tr. Vol. V at 905.) In response, the
prosecutor stated, based on defense counsel's
“request with our agreement and at the court's
discretion, we will withdraw State's Exhibits C32, C43,
C44, C45, C46, and C47.” (Tr. Vol. V at 907.) The
prosecutor noted that the withdrawn exhibits “are
photographs taken at the morgue by the crime scene
unit.” (Tr. Vol. V at 907.) Finally, we note the
coroner's autopsy photographs (state's exhibit Nos.
E1 through E15) were not admitted into evidence.
{¶ 60} Based on the record presented, appellant has
arguably waived all but plain error with respect to the
admission of the photographs. In accordance with Evid.R.
103(A), “a party's failure to object to the
admission of evidence at trial constitutes a waiver of all
but plain error on appeal.” State v. Mills,
5th Dist. No. 2007 AP 07 0039, 2009-Ohio-1849, ¶ 131.
Pursuant to Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Under
Ohio law, “[p]lain error must be obvious as well as
outcome-determinative.” State v. Frazier, 10th
Dist. No. 05AP-1323, 2007-Ohio-11, ¶ 37. Thus,
“plain error occurs only when, but for the error, the
outcome of the trial clearly would have been
different.” Id.
{¶ 61} As observed by the state, appellant does not
specifically identify which photographs he contends should
have been excluded as unfairly prejudicial. The Supreme Court
of Ohio “has held that ‘ “the mere fact
that [a photograph] is gruesome or horrendous is not
sufficient to render it inadmissible if the trial court, in
the exercise of its discretion, feels that it would prove
useful to the jury.”' ” State v.
Williams, 2d Dist. No. 24548, 2012-Ohio-4179, ¶ 46,
quoting State v. Frazier, 61 Ohio St.3d 247, 252
(1991), quoting State v. Woodards, 6 Ohio St.2d 14,
25 (1966). In this respect, “[s]uch photographs may
help illustrate witness testimony and forensic evidence, or
show the nature and circumstances of the crime.”
Williams. See also State v. Biros, 78 Ohio St.3d
426, 445 (1997) (although gruesome, photographs of the
victim's body were
probative “of contested issues of intent, purpose,
motive, and the cause, manner
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