IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN A. REED, 

Petitioner, CASE NO. 2:11-CV-263

JUDGE FROST

v. MAGISTRATE JUDGE KING

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, attached to Doc. No. 1,.Respondent’s

Return of Writ, Doc. No. 16, and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this

case as follows: 

On April 16, 2007, appellant picked up Lesslie Harris at her house to

drive her to a wedding. On the way to the wedding, appellant and

Harris stopped to eat some food and to get some money from Harris'

nephew. Harris drove appellant's car as they left her nephew's house.

Shortly thereafter, Officers Andrew Ward and Veronica Logsdon of

the Columbus Police Department stopped Harris for failing to stop at

a stop sign and for not using a turn signal. When the officers

discovered that Harris did not have a valid drivers license and that

appellant had an outstanding arrest warrant, they arrested them and

placed them in the back of their police car.

Because neither appellant nor Harris could drive the car away, the

officers impounded appellant's car. Ward performed an inventory

search of the car. Ward found a white shopping bag inside the car's

trunk that contained a pair of woman's boots and some Chinese food.

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Ward found a large quantity (163.06 grams) of crack cocaine inside

one of the boots. The officers also searched appellant and found $900

cash.

As a result, a Franklin County Grand Jury indicted appellant and

Harris with one count of possession of cocaine in violation of R.C.

2925.11. The count also contained a major drug offender designation

pursuant to R.C. 2941.1410. Appellant entered a not guilty plea and

proceeded to a jury trial. At trial, Ward and Logdson testified to the

version of events previously described. Harris testified that she did not

know there was crack cocaine in the trunk of appellant's car. She

further testified that when appellant and Harris were in the police car

together, appellant asked her to tell the police that the crack cocaine

was hers.

The jury found appellant guilty as charged, and the trial court

sentenced him accordingly. Appellant appeals and assigns the

following errors:

[I]. THE TRIAL COURT ERRED IN NOT GRANTING THE

APPELLANT'S RULE 29 MOTION FOR ACQUITTAL BECAUSE

THERE WAS INSUFFICIENT EVIDENCE PRESENTED BY THE

APPELLEE TO CONVICT SAID APPELLANT OF POSSESSION

OF COCAINE A MAJOR DRUG OFFENDER SPECIFICATION. IN

ADDITION, THE APPELLANT'S CONVICTION WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

[II] THE TRIAL COURT ERRED IN NOT PERMITTING THE

APPELLANT TO CROSS EXAMINE THE TESTFYING

CODEFENDANT ON THE ISSUE OF WHAT SENTENCE SHE

FACED IF SHE WAS FOUND GUILTY OF A FIRST-DEGREE

FELONY OF POSSESSION OF COCAINE AND A MAJOR DRUG

OFFENDER SPECIFICATION.

State v. Reed, No. 09AP-84, 2009 WL 5108834, at *1 (Ohio App. 10th Dist. Dec. 29, 2009). On

December 29, 2009, the appellate court affirmed the trial court’s judgment. Id. On April 14, 2010,

the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Reed, 124 Ohio St.3d

1542 (2010). 

On September 9, 2010, Petitioner filed an application to reopen the appeal pursuant to Ohio

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Appellate Rule 26(B); however, on March 1, 2011, the appellate court denied Petitioner’s Rule 26(B)

application as untimely. See Exhibits 12, 14 to Return of Writ. Petitioner apparently did not file an

appeal from that decision. 

On April 26, 2011, Petitioner filed a motion to vacate and set aside his sentence. Exhibit 15

to Return of Writ. On July 7, 2011, Petitioner filed another motion to vacate his sentence. Exhibit

16 to Return of Writ. On August 15, 2011, the trial court denied these motions as barred under

Ohio’s doctrine of res judicata. Exhibit 19 to Return of Writ. Petitioner’s appeal from that decision

was pending in the Ohio Court of Appeals as of November 8, 2011. See Exhibits 20-22 to Return of

Writ. On July 11, 2011, Petitioner filed the pro se Petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of

the Constitution of the United States based upon the following grounds: 

1. The trial court erred in not granting my Rule 29 motion for

acquittal because of insufficient evidence on possession and major

drug offender specification, where there was no physical evidence

produced at trial linking appellant to drugs, and (Harris) committed

perjury on the witness [stand], denying appellant due process and

equal protection of law. 

2. The trial court erred in improperly limiting his cross-examination

of state witness (Harris) who had motive to lie thereby denying his

right to confront witnesses. Under the circumstances we could not

disprove (Harris) credibility. In sum and I need to be able to argue

this to show bias and prejudice. 

Respondent contends that Petitioner’s claims are without merit.

CLAIM ONE

In claim one, Petitioner alleges that the evidence was constitutionally insufficient to sustain

his convictions due to a lack of physical evidence linking him to the drugs and because his codefendant, Harris, testified untruthfully against Petitioner. The state appellate court rejected this

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claim, reasoning in relevant part as follows:

Appellant contends in his first assignment of error that his conviction

is not supported by sufficient evidence. . . . We disagree.

***

The Supreme Court of Ohio delineated the role of an appellate court

presented with a sufficiency of the evidence argument in State v. Jenks

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

syllabus:

An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction 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. The 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. * * *

Whether the evidence is legally sufficient is a question of law, not

fact. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d

541. Indeed, in determining the sufficiency of the evidence, an

appellate court must give “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 (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560. Consequently, the weight of the evidence and the

credibility of the witnesses are issues primarily determined by the trier

of fact. State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 2002-

Ohio-2126, ¶ 79; State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434

N.E.2d 1356. A verdict will not be disturbed unless, after viewing the

evidence in the light most favorable to the prosecution, it is apparent

that reasonable minds could not reach the conclusion reached by the

trier of fact. Treesh at 484, 739 N.E.2d 749; Jenks at 273, 574 N.E.2d

492.

In order to convict appellant of possession of cocaine, the state had to

prove beyond a reasonable doubt that appellant knowingly possessed

cocaine. R.C. 2925.11(A). Appellant claims the state failed to present

sufficient evidence to prove that he knowingly possessed crack

cocaine. We disagree.

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“A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when

he is aware that such circumstances probably exist.” R.C. 2901.22(B).

“ ‘[P]ossession’ means having control over a thing or substance, but

may not be inferred solely from mere access to the thing or substance

through ownership or occupation of the premises upon which the thing

or substance is found.” R.C. 2925.01(K).

Possession of a controlled substance may be actual or constructive.

State v. Burnett, 10th Dist. No. 02AP-863, 2003-Ohio-1787, ¶ 19

(citing State v. Mann (1993), 93 Ohio App.3d 301, 308, 638 N.E.2d

585). A person has actual possession of an item when it is within his

immediate physical control. Id. (citing State v. Messer (1995), 107

Ohio App.3d 51, 56, 667 N.E.2d 1022). Constructive possession exists

when an individual knowingly exercises dominion and control over an

object, even though that object may not be within his immediate

physical possession. State v. Pilgrim, 10th Dist. No. 08AP-993, 2009-

Ohio-5357, ¶ 27 (citing State v. Hankerson (1982), 70 Ohio St.2d 87,

434 N.E.2d 1362, syllabus). A finding of constructive possession

encompasses a finding that the defendant knowingly possessed the

controlled substance. State v. Alexander, 8th Dist. No. 90509, 2009-

Ohio-597, ¶ 24. In the instant case, because the crack cocaine was not

found on appellant's person, the state was required to establish that

appellant constructively possessed it.

Circumstantial evidence alone may be sufficient to support the

element of constructive possession. Jenks at 272-73, 574 N.E.2d 492;

Alexander at ¶ 25. Absent a defendant's admission, the surrounding

facts and circumstances, including the defendant's actions, constitute

evidence from which the trier of fact can infer whether the defendant

had constructive possession over the subject drugs. State v. Norman,

10th Dist. No. 03AP298, 2003-Ohio-7038, ¶ 31; State v. Baker, 10th

Dist. No. 02AP-627, 2003-Ohio-633, ¶ 23. The mere presence of an

individual in the vicinity of illegal drugs is insufficient to establish the

element of possession, but if the evidence demonstrates that the

individual was able to exercise dominion or control over the drugs, he

or she can be convicted of possession. State v. Wyche, 10th Dist. No.

05AP-649, 2006-Ohio-1531, ¶ 18; Burnett at ¶ 20.

Viewed in a light most favorable to the state, the state presented

sufficient evidence for reasonable minds to find that appellant

constructively possessed the crack cocaine in the truck of the car.

Although there was conflicting evidence regarding whether appellant

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owned the car or rented the car, it was undisputed that appellant drove

to Harris' house to pick her up. It was also undisputed that appellant

was a passenger in the car when it was stopped. When a person is the

driver or a passenger in a car in which drugs are within easy access,

a trier of fact may find constructive possession. State v. Fry, 4th Dist.

No. 03CA26, 2004-Ohio-5747, ¶ 41 (citing State v. Morehouse (Oct.

19, 1989), 8th Dist. No. 56031) (driver found in constructive

possession); State v. Brittman (Feb. 10, 1994), 10th Dist. No. 93AP1005 (passenger in car knowingly possessed drugs found in car); State

v. Kelly (Mar. 25, 1998), 9th Dist. No. 2670-M (defendant, who was

passenger of car, knowingly possessed drugs found in trunk).

Additionally, Harris denied knowing there was crack cocaine in the

trunk and denied owning the woman's boots found in the trunk. She

further testified that appellant asked her to tell the police that the drugs

were hers and that he had nothing to do with it. Finally, there was a

large amount of crack cocaine in the car's trunk. The greater the

amount of illegal drugs involved, the greater the likelihood that the

defendant knew the drugs were present. State v. Barbee, 9th Dist. No.

07CA009183, 2008-Ohio3587, ¶ 28. This is strong evidence that

appellant knew the crack cocaine was in the trunk of the car.FN1

FN1. To the extent that appellant implies that Harris possessed the

drugs, we note that objects such as drugs may be jointly possessed,

when two or more persons have the ability to control an object,

exclusive of others. State v. Fletcher, 9th Dist. No. 23171, 2007-Ohio146, ¶ 20; State v. Callender (Jan. 20, 1998), 10th Dist. No.

97APA03-391; In re Farr (Nov. 9, 1993), 10th Dist. No. 93AP-201.

Viewing the totality of the evidence in a light most favorable to the

state, the evidence is sufficient for reasonable minds to conclude that

appellant knowingly possessed the crack cocaine found in the truck of

his owned or rented vehicle. Accordingly, appellant's conviction is

supported by sufficient evidence.

***

Appellant argues that . . . Harris' testimony was not credible given the

long prison sentence she faced for the same offense. We disagree. The

jury was aware that Harris was charged with the same offense as

appellant and that she potentially faced a long prison term. The jury

was also aware that Harris sought a break on her own case and wanted

to “look good” in her testimony. Nevertheless, the jury apparently

found her testimony credible. That determination is within the

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province of the jury. . . . 

***

Appellant's conviction is supported by sufficient evidence[.]

State v. Reed, 2009 WL 5108834, at *3-6. 

The factual findings of the state appellate court are presumed to be correct.

In a proceeding instituted by an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

 28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state court's

decision was contrary to or an unreasonable application of clearly established federal law, or based

on an unreasonable determination of the facts in light of the evidence that was presented.

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

 28 U.S.C. § 2254(d). In order to obtain habeas corpus relief, Petitioner must show the state court’s

decision was “so lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, – S.Ct. –, 2011

WL 5299458, at *1 (Nov. 7, 2011)(quoting Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct.

770, 786–87 (2011). This bar is “difficult to meet” because “habeas corpus is a ‘guard against

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extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error

correction through appeal.” Harrington v. Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443

U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). In short, “[a] state court's

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court's decision.” Id. (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). 

To the extent that Petitioner asserts in these proceedings that his convictions were against the

manifest weight of the evidence, this claim fails to present an issue appropriate for federal habeas

corpus review. The Due Process Clause does not provide relief for defendants whose convictions are

against the manifest weight of the evidence, but only for those who have been convicted without

proof sufficient to allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v.

Engle, 703 F.2d 959, 969 (6th Cir.1983). Under Ohio law, however, a claim that a verdict was

against the manifest weight of the evidence – as opposed to one based upon insufficient evidence –

requires the appellate court to act as a “thirteenth juror” and review the entire record, weigh the

evidence and consider the credibility of witnesses to determine whether “the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31(1982).

Since a federal habeas court does not function as an additional state appellate court, vested with the

authority to conduct such an exhaustive review, Petitioner's claim that his convictions were against

the manifest weight of the evidence cannot be considered by this Court.

As to Petitioner’s contention that the evidence was constitutionally insufficient to sustain his

convictions, before a criminal defendant can be convicted consistent with the United States

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Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find guilt beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319. To determine whether the evidence was

sufficient to support a conviction, this Court must view the evidence in the light most favorable to

the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution

is not affirmatively required to “rule out every hypothesis except that of guilty.” Id. (quoting Jackson,

at 326). “[A] reviewing court ‘faced with a record that supports conflicting inferences must presumeeven if it does not appear on the record-that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.’ ” Id. (quoting Jackson, at 326).

 Further, there is a “double layer” of deference due to state court determinations about the

sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009),

deference is due to the jury's finding of guilt because the standard, established by Jackson v.

Virginia, is 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.” Even if a de novo review of the evidence leads to the conclusion that no rational

trier of fact could have so found, a federal habeas court “must still defer to the state appellate court's

sufficiency determination as long as it is not unreasonable.” See also White v. Steele, 602 F.3d 707,

710 (6th Cir. 2009). This is a substantial hurdle for a habeas corpus petitioner to overcome, and

Petitioner has not done so here. For the reasons addressed by the state appellate court, when viewing

the evidence in the light most favorable to the prosecution, this Court agrees that the evidence was

constitutionally sufficient to sustain Petitioner’s convictions. 

Claim one is without merit. 

CLAIM TWO

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In claim two, Petitioner alleges that he was convicted in violation of the Confrontation Clause

because the trial court improperly limited his cross-examination of Harris. The state appellate court

rejected this claim, reasoning as follows: 

Appellant contends in his second assignment of error that the trial

court improperly limited his cross-examination of Harris. He claims

that the trial court's limitation prevented his trial counsel from

establishing Harris' motive to lie, thereby denying him his right to

confront witnesses. We disagree.

The Sixth Amendment's right to confront witnesses guarantees a

criminal defendant the right to cross-examine witnesses. City v. Miller

(Sept. 12, 1989), 10th Dist. No. 89AP-111. A criminal defendant's

right to confront and cross-examine a witness is not unlimited. State

v. Albanese, 11th Dist. No.2005-P-0054, 2006-Ohio-4819, ¶ 56 (citing

Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431,

1435, 89 L.Ed.2d 674). The extent of cross-examination with respect

to an appropriate subject of inquiry is within the sound discretion of

the trial court. State v. Green (1993), 66 Ohio St.3d 141, 47 (quoting

Alford v. United States (1931), 282 U.S. 687, 691, 51 S.Ct. 218, 219,

75 L.Ed. 624). A trial court has considerable discretion to impose

reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the

witness' safety, or interrogation that is repetitive or only marginally

relevant. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749,

2001-Ohio-4 (citing Van Arsdal); State v. Kish, 9th Dist. No.

02CA008146, 2003-Ohio-2426, ¶ 12. A trial court's limitation on

cross-examination will not be disturbed in the absence of an abuse of

discretion. Id. An abuse of discretion means more than an error of

judgment; it implies that the trial court's attitude was unreasonable,

arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d

151, 157, 404 N.E.2d 144.

Appellant's trial counsel questioned Harris extensively about her

cooperation with the state in this matter. Harris testified that she was

charged with the same offenses as appellant and that the charges

against her were still pending at the time of appellant's trial.

Appellant's trial counsel repeatedly asked Harris if her testimony was

an attempt to “look good” and to get a break on her own case. Harris

admitted that she wanted to cooperate and that she wanted a break on

her own case. Nevertheless, Harris testified that she had not been

promised anything and that she did not know what would happen with

her own case.

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Appellant contends that the trial court should have allowed his trial

counsel to question Harris about the potential penalties she faced if

convicted of the charges pending against her. Appellant argues the

trial court improperly restricted his counsel's ability to emphasize

Harris' motive to lie. We note, however, that Harris twice admitted on

cross-examination that she faced a potential lengthy prison sentence

in her case. See City v. Bishop, 10th Dist. No. 08AP-300, 2008-Ohio6964, ¶ 20 (no error excluding certain testimony where subject matter

of excluded testimony was admitted as evidence in another way).

First, trial counsel asked her “you know that if you get convicted of

what you're charged with, it's a mandatory ten years in prison, do you

not?” Harris replied “Exactly.” (Tr. 47.) Although the trial court

sustained an objection to the question, the prosecutor did not move to

strike the answer. Nor did the trial court instruct the jury to disregard

Harris' answer. Later, when asked if she wanted a break on her case,

Harris replied “I don't want to go to jail for ten years.” (Tr. 53.) Thus,

the jury was aware that Harris faced a potential lengthy prison

sentence, notwithstanding the trial court's purported limitation.

Therefore, the jury considered that testimony in judging Harris'

credibility.

Although a defendant is entitled to an opportunity to establish a

witness' motive to lie, a trial court may limit cumulative crossexamination if the defendant has already elicited the testimony

demonstrating that potential motive. State v. Gonzales, 151 Ohio

App.3d 160, 783 N.E.2d 903, 2002-Ohio-4937, ¶ 45 (citing United

States v. Nelson (C.A.7, 1994), 39 F.3d 705, 708). A defendant does

not have an unlimited right to emphasize that motive. Id.; Nelson at

708 (once cross-examination reveals motive to lie, “it is of peripheral

concern to the Sixth Amendment how much opportunity defense

counsel gets to hammer that point home to the jury”).

Here, appellant's trial counsel questioned Harris extensively about her

cooperation with the state and her desire to “look good” in order to

receive a reduced sentence in her case. That questioning adequately

established Harris' motive to lie. Id . (cross-examination adequate

where jury had sufficient information to make a discriminating

appraisal of the witness' motives and bias). The trial court did not

abuse its discretion by limiting trial counsel's attempt to further

hammer home Harris' motive by questioning her in greater detail about

the possible penalties she faced, especially in light of the fact that

appellant was charged with the same offenses. See State v. Gresham,

8th Dist. No. 81250, 2003-Ohio-744, ¶ 10 (no error refusing to allow

cross-examination of testifying co-defendant about potential penalties

where penalties were the same as defendant's and would improperly

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inform jury of possible sentence). Cf. Gonzales at ¶ 48 (noting that

federal cases have held that it is not an abuse of discretion to limit

inquiry into potential sentences faced by a cooperating witness).

State v. Reed, 2009 WL 5108334, at *1-3. The factual findings of the state appellate court are

presumed to be correct, 28 U.S.C. § 2254(e), and Petitioner does not dispute these findings.

The Sixth Amendment to the United States Constitution guarantees criminal defendants the

right to physically confront and cross examine adverse witnesses at all stages of the trial. Illinois v.

Allen, 397 U.S. 337, 388 (1970). A criminal defendant’s right to cross-examine witnesses against

him, however, is not unlimited. “Trial judges retain wide latitude. . . to impose reasonable limits on

such cross-examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The Confrontation Clause thus

guarantees the opportunity for effective cross-examination, not cross-examination in whatever way

or to whatever extent the defendant may desire. Id. (quoting Delaware v Fensterer, 474 U.S. 15, 20

(1985)). See also Norris v. Schotten, 146 F3d 314, 330 (6th Cir. 1998)(no Confrontation Clause

violation where relevance of questions prohibited on cross-examination is unclear and the risk of

prejudice real)(citations omitted). 

Where a trial court limits the extent of a criminal defendant’s cross-examination, but does not

bar it completely, the trial court is afforded wider latitude. Dorsey v. Parke, 872 F.2d 163, 167 (6th

Cir.1989). Under such circumstances, the test is “whether the jury had enough information, despite

the limits placed on otherwise permitted cross-examination, to assess the defense theory.” Drummond

v. Houk, 761 F.Supp.2d (N.D. Ohio 2010)(citing Dorsey v. Parke)). 

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As discussed by the state appellate court, the trial transcript in this case indicates that

Petitioner was able to place sufficient facts before the jury reflecting Harris’ possible motive for

testifying against him, i.e., to curry favor with the prosecution and avoid a lengthy jail sentence on

the criminal charges that she, too, was facing. Under these circumstances, it cannot be said that

Petitioner was denied his constitutional right under the Confrontation Clause.

Claim two is without merit. 

WHEREUPON, and for the reasons stated supra, the Magistrate Judge RECOMMENDS

that this action be DISMISSED. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting authority

for the objection(s). A judge of this Court shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is made. Upon

proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver of the right to appeal the decision of the District Court

adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States

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

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

 s/ Norah McCann King 

Norah McCann King

United States Magistrate Judge

 

February 15, 2012

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