IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL M. MOSHOS, 

Petitioner, CASE NO. 2:11-CV-663

JUDGE MARBLEY

v. MAGISTRATE JUDGE KING

ROBIN KNAB, WARDEN, 

CHILLICOTHE CORRECTIONAL 

INSTITUTION, 

Respondent.

OPINION AND ORDER

On February 15, 2012, the Magistrate Judge denied Petitioner’s request for an evidentiary

hearing and recommended that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

be dismissed. Order and Report and Recommendation, Doc. No. 11. Petitioner has filed objections

to the Order and Report and Recommendation. Objection, Doc. No. 12. For the reasons that follow,

Petitioner’s objections are OVERRULED and the Order and Report and Recommendation is

ADOPTED and AFFIRMED. 

Petitioner objects to all of the Magistrate Judge’s recommendations, as well as to the denial

of his request for an evidentiary hearing. Petitioner again raises all the same arguments that he

presented to the Magistrate Judge. Petitioner specifically objects to the Magistrate Judge’s

conclusion that his claims are without merit. He again argues that he was denied a constitutionally

fair trial because the trial court permitted the jury to hear an audio recording of a conversation

between Petitioner and an alleged victim. He contends that the audio recording was inadmissible

in evidence and asserts that the prosecution never expressly proffered the recording for admission

into evidence. Objection, p.3. Although the prosecution apparently failed to separately proffer the

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audio recording for admission into the record, the recording was in fact played for the jury during

trial, see Trial Transcript, at 308, and the state appellate court, in rejecting Petitioner’s claim,

considered the recording to have been admitted into evidence. As the Magistrate Judge noted, a

“state court evidentiary ruling will rise to the level of a constitutional violation only where it violates

a bedrock principle of justice so as to deprive the defendant of a fundamentally fair trial.” Order

and Report and Recommendation, p. 8. This Court agrees that Petitioner’s claim in this regard does

not meet that standard.

Petitioner also again argues that he was denied a fair trial because the trial court refused to

sever the counts against him for trial. The state appellate court held that the trial court’s

determination in this regard did not so prejudice Petitioner as to deprive him of due process. This

Court agrees with that conclusion. 

Finally, Petitioner again contends that relief is warranted on the basis of cumulative error and

that an evidentiary hearing is required. This Court agrees with the Magistrate Judge that, because

the individual errors alleged by Petitioner do not warrant habeas corpus relief, the cumulative effect

of those alleged errors does not warrant habeas corpus relief. Moreover, there is no basis for

conducting an evidentiary hearing in this case. 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review of the matter. For

the reasons addressed in the Magistrate Judge’s Order and Report and Recommendation, the Court

concludes Petitioner has failed to establish that he is entitled to federal habeas corpus relief on any

of his claims, or that an evidentiary hearing is warranted to resolve any of the issues raised in the

Petition. Petitioner’s objections are therefore OVERRULED.

Petitioner has asked that the Court issue a certificate of appealability. Where a claim has

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been denied on the merits, a certificate of appealability may issue only if the petitioner "has made

a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard

is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See Slack v. McDaniel, 529 U.S. 473,

484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial

showing of the denial of a constitutional right, a petitioner must show " that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'"

Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893, & n.4). This Court is not persuaded that

Petitioner has met this standard here. 

Petitioner’s Objection, Doc. No. 12, is OVERRULED. The Order and Report and

Recommendation, Doc. No. 11, is ADOPTED and AFFIRMED. This action is hereby

DISMISSED. 

Petitioner’s request for a certificate of appealability is DENIED. 

The Clerk shall enter FINAL JUDGMENT.

 s/Algenon L. Marbley 

ALGENON L. MARBLEY

United States District Judge

 

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