NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0891n.06 No. 09-3551 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

CRAI G HRUB Y, Petitioner-Appellant ,

v. J UL I US WI L SON, Warede n, Respondent-

Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT C O U R T F O R T H E NOR THERN DI STRI CT OF OHI O O P I N I O N

BEF ORE: COL E and DO NAL D, Circuit J udg es; SARGUS, District J udg e. * COL E, Circuit J udg e. Def endant- Appellant Craig Hruby , convicted of two counts of g ross sexual im position i n violation of Ohio Revised Code § 2907.05, appea ls the district c ourt’s denia l

o f h i s petition for a writ of habea s corpus. On habea s revie w, Hruby challeng es the trial co u rt ’s admission of prior bad acts under Ohio Rule of Evidence 404(B ) and the admission of expert witness testimony , asser

ting that the trial court’s decisions denied him a fair t ri al , i n v i o l ati on of his due
proce ss rig ht under the Fifth and Four teenth Amendments. Hruby failed to a dequate ly

raise the se due proce ss claims befor e the state courts, and they are , there fore , proce durally defa ulted. Be cause Hruby has not demonstrated cause and prejudice sufficie nt to overc ome procedural defa ult, we AFF I RM the district court’s denia l of Hruby ’s petition for a w rit of habe as cor pus.

The Honora

ble Edmund A. Sarg us, J r., United States District J udg e for the S outhern * District of Ohio, sitting by desig nation

.No. 09-3551

Craig Hruby v. Julius W

ilson I . BA CKGROUND A. Factual Back

ground I n 2001, Hruby was indicted in Cuy ahog a County , Ohio, on one count of rape and six ty -six
counts of g ross sexual imposit ion. State v. Hruby , No. 81393, 2003 WL 360936, at * 1 (Ohio Ct. App. Fe b. 20, 2003). The state alleged t h at Hr u by committed these improper sexual acts on his stepdaug hter betwee n J anuar y 1992 and Dec ember 1996, when she was betwee n five and nine y ear s old. Id. During the trial, the court g rante d Hruby ’s pretria l motion in limine to exclude evidenc e of th e s te pdaug hter’s medical examination on the basis that the examination, which occ u r r e d e ig h t y e a r s afte r the alleg ed sexual misconduct, was confusing , mi s le a d in g , in c o n c lu s iv e , a n d highly prejudicia l. Id. at *1-2. Unable to prese nt a case without this evidenc e, the pros ec u t i o n ap peale d under Ohio Rule of Criminal Procedure 12(K), lost, and dismissed the ca se. Id. I n 2003, an Ottawa County , Ohio, g rand jury indicted Hruby on four counts of g ross sexual imposit ion. Hruby v. W

ilson , No. 3:06-cv-1362, 2009 WL 961181, at *1 (N.D. Ohio Apr. 8, 2009). This indictment alleg ed that betwee n J uly and September 1998 Hruby eng ag ed in four separ ate acts ag ainst his then eleve n-y ear -old stepdaug hter, in violation of Ohio Revised Code § 2 9 0 7

. 0 5

. Id. Prior to trial, Hruby filed a motion in limine reque sting the ex clusion of the prior ba d acts a lleg ed in the C uy ahog a C ounty case . Id. The trial court denied the m otion, and during the course of t he three -day trial, the jury hear d testimony reg arding those acts. Def ense cou n s el objected to the admission of this evidenc e, based on t h e d efendant’s pretria l motion in limine, but the trial court

overr uled this continuing objec tion.

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Craig Hruby v. Julius W

ilson The state also prese nted the testimony of an expert witness , L e s lie Wit here ll, a licensed social worke r and mental health t h era pist who counsele d the victim. Hruby contends that Wit here ll, at various points during her testimony , commented on the “ver acity ” of th e stepdaug hter’s acc usations. Be lieving the expert witnes s to be improperly testify ing as to the vera city of the acc user, defe nse counsel objec ted and moved f or a mistrial. Althoug h the trial court noted the prec arious nature of Wit here ll’s testimony , it denied the motion for a mistrial an d instructed the prosec utor to “re in Wit here ll in” to prevent fur ther improper

testimony

. The jury acquitted Hruby of one count of g ross sexual imposit ion, co n v icted him of two counts, and the court gra

nted Hruby ’s m otion for acquittal on the fourth count, due to insufficient evidenc e. The court later sentenc ed Hruby to two four- y ear concur rent sentenc es of imprisonment

as we ll as up to five y ear s of post-re lease control and de signa tion as a sexually oriented of

fende r. B. Proce dural History Hruby appea led his convictio n an d s en tence to the state court of appea ls, prese nting six assig nments of er

ror. Of these c laims, only

one—the third a ssignment of err or—is rele vant to the i ssue before us: “The trial court erre d in deny ing defe ndant-a ppellant’s mot ion for mis trial in that the prejudice cre ated by the testimonial evidenc e of the expert witness far outweig hed its probative value.” The state court of appea ls reje cted all six arg uments and aff irmed the judgme nt and sentenc e of the trial c ourt. Hruby

then appe aled to the Supre me Court of Ohio, ra ising two c laims, but that court de clined to hea

r the c ase a

nd dismiss ed the a

ppeal. Procee d i n g p ro s e, Hruby timely filed a petition for a writ of habea s corpus in the United States District Court for the Nor thern District of O hio. Hruby ’s petition raised two c laims:

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Craig Hruby v. Julius W

ilson 1. [C ]onvi ct[io n ] o b t ained in violation of the Fe dera l Constit ution’s Fifth and Four teenth Amendme nts where the state trial court de prived pe titioner due proc ess of law by err oneously admitting highly prejudicia l eviden ce of ‘prior bad acts’ the eff ect of which deprive d petitioner of a fundame ntally fair trial. see U.S.C.A. Const. Amend. 5, 6, and 14. 2. [C ]onvi ction obtained in violat[ ion] o f t h e Fifth and Four teenth Amendments wher e the state trial court, and i n ac ting ‘ar bitrarily and unconsciona bly ’ patently failed to make specific ruling s reg arding the admissibili ty and introduction of cer tain highly prejudicia l evidenc e, whic h e v id e n c e , b e in g u n s u b s ta n ti a te d a n d ir r e levant, did deprive petitioner of a fundame ntally fair trial. see: U.S.C.A. Const. Amends. 5, 6, and 14. Hruby , 2009 WL 961181, at *2. Th e d i s trict court denied the claims, deeming them both
proce durally defa

ulted. As for the second claim, Hruby arg ued that the claim was not proce durally defa ulted beca

use “his second g round for habea s relief

is identical to his third assignment of e rror that he prese nted on direc t appea l

. . . .” Id. at *6. Rejecting this arg ument, the district court noted “that the claim prese nted to the state court of appea ls wa s a wh olly differ ent theory than the one Hruby now prese nts befor e the Court.” Id. “Hr uby asked the state court of appea ls to deter mine whether the trial court abused its discretion in deny ing his motion for a mistrial—a state law claim, wher eas he now asks this Court to de termine whether the trial court violated his r ight to a fair trial in deny ing his motion for a mistrial—a fede ral constitutional claim. ” Id

. T h e d istrict court then deeme d the claim proce durally defa ulted beca

use Hruby failed to “fa irly prese nt” the claim in state
court a nd could not establish cause and pre judice to excuse the proc edura l defa ult. Id. We g rante d a Certifica

te of Appea lability on the limit ed issue of “whe ther petitioner ’ s s e c o nd claim for relief (that the state trial court’s failure to make specific ruling s reg arding the admissibili ty of cer tain evidenc e deprive d petitioner of a fundame ntally fair trial) was proce durally defa ulted.”

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Craig Hruby v. Julius W

ilson I I . ANAL YSI S Be cause Hruby filed his habea s petition in J une 2006, the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (“A EDPA”) g overns our revie w of his c laims. Under AEDPA, we may g rant the writ only if the state court judgme nt is contra ry to or involves an unrea sonable application of clea rly established law or

“wa s based on a

n unrea sonable de termination of the facts in light of the evidenc e . . . .” 28 U.S.C. § 2254(d)( 2); see W illiams v. Taylor , 529 U.S. 362 (2000). Fur thermore ,

we revie w a district court’s deter mination that “a petitioner’s fede ral habea s claim is barr ed beca use the petitioner proce durally defa ulted

. . . de novo .” Abela v. Martin , 380 F.3d 9 1 5 , 9 2 2 (6t h Cir. 2004). A petitioner may proce durally defa ult a claim by failing to raise it in state court and pursue it throug h the state’s “esta blished appellate revie w proce ss.” O’Sullivan v. Boerck el , 526 U.S. 838, 845 (1999). “The proce dural defa ult doctrine applies to bar a fede ral cou rt ’s revie w of a state prisoner’ s fede ral claim wher e that prisoner failed to g ive the state courts a ‘full and fair’ opportunity to resolve that c laim .

. . and the prisoner c annot cur e that fa ilure bec ause state -cour t remedie s are

no longe r available .” Hicks v. Straub , 377 F.3d 538, 5 5 1 (6 t h C i r. 2 004). To avoid proce dural defa ult, a “petitioner must fairly prese nt to the state courts either the substance of or the substantial equivalent of

the fe dera l claim that he is prese nting to a f eder al habe as cour

t.” Id. at 552. I n his petition for writ of habea s corpus, Hruby raises a claim under the Due Process Clauses of the Fifth and Four

teenth Amendments, alleg ing that the trial court’s admission of evidenc e without “specific ruling s reg arding the admissibilit y and int roduction of cer

tain highly prejudicia l evidenc e” deprived him of a fundame ntally fair trial. Hruby ’s ref ere nce to highly prejudicia l
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Craig Hruby v. Julius W

ilson evidenc e seems to ref

er to the admission of the C uy ahog a County acts and Wit here ll’s expert testimony

. Howeve r, these claims wer e not fully an d fairly prese nted to the state courts and are , there fore , proce durally

defa ulted. I n seeking to a

void pr ocedur al defa

ult, Hr uby alleg es that his due proce ss c laim w as raised
to the state appellate court in his third assig nment of err or. This third assig nment of err or contends that “[t] he court err ed in deny i n g defe ndant-a ppellant’s motion for mistrial in that the prejudice

cre ated by the testimonial evidenc e of the expert witness far outweig hed its probative value.” Such

an alleg ation does not proper ly raise a fede ral cl ai m . A full and fair prese ntation of the claim require s the petitioner to “pre sent his claim to the state courts as a fede ral constitutional issue—not

mere ly as an issue a

rising unde r state law .” Koontz v. Glossa , 731 F.2d 365, 368 (6th Cir. 1984). Whether a claim is fairly prese nted to a state court as a fede ral constitutional issue is deter mined by th e claim’s: (1) relianc e on fede ral case s employ ing constitutional analy sis; (2) relianc e on sta te c a s e s employ ing fe d er al constitutional analy sis; (3) phrasing in terms of constitutional law; or (4) alleg ations of fac ts that are well within the mainstream of constitutional law. See Newton v. Million , 349 F.3d 873, 877 ( 6th Cir. 2003). A revie w of Hruby ’s arg ument befor e t h e state appellate court confirms that his third assig nment of er ro r wa s l imited exclusively to state law claims. The claim is predic ated on a violation of state law—the denial of a motion of a mistrial—and fails to cite to any fede ral law, cite
to a state or fede ral case rely ing on constitutional analy sis, or make any ref ere nce to due proce ss or any constitutional protec tion. As the district court corr ectly noted, “the claim prese nted to the state
court of appea ls was a wholly differ ent theory than the one Hruby now prese nts befor e the Court.”
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Craig Hruby v. Julius W

ilson Hr u b y , 2 0 0 9 WL 961181, at *6. Hruby asked the state appellate court to revie w the denial o f a motion for mis trial and her e cha ng es cour se, asking us to find a Fif th and Four

teenth Amendme nt violation. Although Hruby now couche s his claim as a fede ral due proce ss violation, he failed to advanc e those fe dera l claims in the state cour t and is now barr ed fr om doing so. Moreove r, Hruby ’s due proce ss claims as made to the Ohio Supreme Court did not constitute full and fair prese ntment beca use they wer e not raised befor e the Ohio Court of Appea ls. A habea s petitioner’s submission of a new claim to the state’s hig hest court on discr etionary revie w is not a fair prese ntation to the state’s courts. See Castil le v. Peoples , 489 U.S. 346, 351 (1989). “[Hruby ] did not arg

ue the claims asser

ted here in in fede ral constitutional terms in the Ohio Court of Appea ls. Whil e [Hruby ] asser

ted his claims befor e the Ohio Supreme Court on discretionar y revie w, this does
not constitute fair prese ntation of his fede ral claims to Ohio courts.” Troutman v. Turner , 1995 WL 728182, at *2 (6th Cir. Dec . 7, 1995). There fore , beca

use Hruby failed to fully and fairly prese nt his due proce ss claim to the state appellate co u rt , this claim is proce durally defa ulted. “I n all case s in which a state prisoner has defa ulted his fede ral claims in state court

. . . fede ral habea s revie w of the claims is barr ed unless the prisoner can demonstrate cause for the defa ult and actua l prejudice as a result of the alleg ed violation of fede ral law

. . . .” Coleman v. Thompson , 501 U.S. 722, 7 5 0 (1 9 9 1 ). Hr u by has made no alleg ation of either

cause or pre

judice and, the ref

ore, c annot over come the pr ocedur al def ault. I I I . CONCL USI ON The district cour

t’s denial of H ruby ’s petition for a w rit of habe as cor pus is AFF I RMED.

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