IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRYAN PARSLEY, 

Petitioner, CASE NO. 2:11-CV-138

JUDGE MARBLEY

v. MAGISTRATE JUDGE KING

WARDEN, NOBLE 

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, Respondent’s Return of Writ 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:

In the early morning hours of April 3, 2007, Columbus Police Officer

Kevin Genter and his partner were dispatched to a house in

Columbus, Ohio, in response to a 911 call that originated from the

house. En route, the officers learned that the call might involve

domestic violence. Upon arriving, Genter's partner went to the front

of the house. Genter went to the back of the house and observed two

men talking. The men walked inside the house and, within seconds,

one man ran out of the house towards Genter. Genter instructed the

man to stop and get on the ground. The man, later identified as

appellant, complied.

As Genter approached appellant, Genter observed a bag of marijuana

sticking out of appellant's jacket pocket. Genter placed appellant in

handcuffs, stood him up, and began to search him. Genter felt an

object in appellant's right front pants pocket that he thought was

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narcotics. Genter removed a baggie from appellant's pants pocket that

he suspected contained crack cocaine. Later testing of the substance

in the baggie confirmed that it was crack cocaine.

A Franklin County Grand Jury indicted appellant with one count of

possession of cocaine in violation of R.C. 2925.11. Appellant entered

a not guilty plea and proceeded to a jury trial. Before trial, appellant

filed a motion to suppress the crack cocaine Genter found in

appellant's pants pocket. The motion alleged that Genter did not have

reasonable suspicion to search appellant. Appellant also argued that

Genter had no reason to believe that the object in appellant's pants

was a weapon. The trial court denied appellant's motion, finding that

Genter acted in a reasonable manner.

At trial, Genter testified to the version of events described above.

Kathleen Stuebe, a forensic scientist with the Columbus Police

Department Crime Lab, was the only other witness to testify. She

tested the substance in the baggie found in appellant's pants pocket

and concluded it was 13 grams of crack cocaine. The jury convicted

appellant of possession of between 10 and 25 grams of cocaine and

the trial court sentenced appellant accordingly.

State v. Parsley, No. 09AP-612, 2010 WL 1510197, at *1 (Ohio App. 10th Dist. April 15, 2010). 

Petitioner filed a timely appeal, raising the following assignments of error:

1. THE TRIAL COURT ERRED BY DENYING

APPELLANT'S MOTION TO SUPPRESS THEREBY

VIOLATING APPELLANT'S RIGHTS UNDER THE

FOURTH AMENDMENT OF THE U.S. CONSTITUTION

AND ARTICLE I, SECTION 14 OF THE OHIO

CONSTITUTION AGAINST UNREASONABLE

SEARCHES AND SEIZURES.

2. THE TRIAL COURT ABUSED ITS DISCRETION WHEN

IT ADMITTED THE STATE'S EXHIBITS.

3. THE TRIAL COURT PLAINLY ERRED WHEN IT

ALLOWED THE STATE'S DRUG ANALYST TO OFFER

AN OPINION AS TO THE WEIGHT OF THE CRACK

COCAINE AFTER SHE ONLY TESTED A SMALL

SUBSET OF THE CONTRBAND PURSUANT TO A

SAMPLING PLAN IN VIOLATION OF EVID.R. 104,

EVID.R. 702(C), THE FEDERAL GATEKEEPING

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PRINCIPLES AS SET FORTH IN DAUBERT V. MERRELL

DOW PHARMACEUTICALS, INC. (1993), 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469, THE DUE PROCESS CLAUSE

OF THE 14TH AMENDMENT TO THE U.S.

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE

OHIO CONSTITUTION.

4. APPELLANT'S CONVICTION WAS BOTH AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE AND

WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE

EVIDENCE, IN VIOLATION OF THE DUE PROCESS

CLAUSE OF THE 14TH AMENDMENT TO THE U.S

CONSTITUTION, AND ARTICLE I, SECTIONS 1 & 16 OF

THE OHIO CONSTITUTION.

5. THE TRIAL COURT ERRED WHEN IT FAILED TO

CREDIT APPELLANT WITH 234 DAYS OF JAIL TIME

CREDIT THAT THE COURT SOLELY CREDITED TO

ANOTHER CASE THAT THE COURT SENTENCED

APPELLANT CONCURRENTLY WITH THIS CASE. THE

FAILURE TO ACCORD JAIL TIME CREDIT AGAINST

ALL CONCURRENT TERMS VIOLATES R.C. § 2967.191

AND THE EQUAL PROTECTION CLAUSES OF THE

14TH AMENDMENT TO THE U.S. CONSTITUTION AND

ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.

6. THE TRIAL COURT ERRED IN FINING APPELLANT AT

SENTENCING DUE TO HIS INDIGENT STATUS AND

INABILITY TO PAY.

7. TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE

6TH AMENDMENT TO THE U.S CONSTITUTION AND

ARTICLE I, SECTIONS 10, 16 OF THE OHIO

CONSTITUTION.

Id. at *1-2. On April 15, 2010, the appellate court overruled all of Petitioner’s claims, except that

it sustained in part his seventh assignment of error and remanded the case to the trial court for resentencing and to provide Petitioner an opportunity to file an affidavit of indigency prior to

sentencing. Id. Petitioner did not file a timely appeal from that decision to the Ohio Supreme Court. 

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 On June 24, 2010, Petitioner filed a motion for delayed appeal, Exhibits 11, 12 to Return of

Writ, which the Ohio Supreme Court granted on August 25, 2010. State v. Parsley, 126 Ohio St.3d

1542 (2010). On January 19, 2011, the Ohio Supreme Court dismissed the appeal as not involving

any substantial constitutional question. State v. Parsley, 127 Ohio St.3d 1503 (2011). The trial

court re-sentenced Petitioner, finding him indigent and waiving the fine. Exhibit 15 to Return of

Writ. Petitioner did not file an appeal from that re-sentencing. 

On February 12, 2011, Petitioner filed his 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. Trial court erred by denying motion to suppress thereby

violating 4th Am[endment] not limited to because of unlawful

arrest and search.

2. Trial counsel rendered ineffective assistance of counsel in

violation of the 6th Am[endment] not limited to for failing to

investigate coc[aine] and submitting reversible error of 4th

Am[endment] violation and objecting to unlawful sentence

and conviction. 

3. Insufficient evidence in violation of the 14th Am[endment]

and due process. Conviction was against the manifest weight

of the evidence and not supported by sufficiency of the

evidence.

4. Trial court violated, as well as the lower courts violated fair

trial [and/or] review for failing to review or hold a hearing on

the constitutional violation and accusation or to argue a

miscarriage of justice from occurring.

It is the position of the Respondent that Petitioner’s claims have been waived or offer no basis for

federal habeas corpus relief. 

CLAIM ONE

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In claim one, Petitioner asserts that he was denied a fair trial due to the admission of

evidence obtained in violation of the Fourth Amendment. This claim fails to present an issue for

federal habeas corpus review. 

In Stone v. Powell, 428 U.S. 465 the United States Supreme Court held that federal habeas

review is not available to a state prisoner alleging that his conviction rests on evidence obtained

through an unconstitutional search or seizure, as long as the state has given the petitioner a full and

fair opportunity to litigate the Fourth Amendment claim. Id. In Riley v. Gray, 674 F.2d 522, 526

(6th Cir. 1982), the United States Court of Appeals for the Sixth Circuit held that Ohio’s mechanism

for resolving Fourth Amendment claims is, “in the abstract, clearly adequate.” Id. Petitioner does

not allege, and it does not appear from the record, that the State’s mechanism failed to resolve his

Fourth Amendment claim. To the contrary, the state trial court denied Petitioner’s motion to

suppress and the Ohio Court of Appeals affirmed that decision. State v. Parsley, 2010 WL

1510197, at *2-4. Moreover, the Sixth Circuit has held the doctrine of Stone v. Powell applies, even

if the federal court deems the state-court determination of the Fourth Amendment claim to have been

in “egregious error.” Gilbert v. Parke, 763 F.2d at 824 (citing Riley v. Gray, 674 F.2d at 526)). 

 Petitioner’s claim of illegal search and seizure is not cognizable on habeas review.

PROCEDURAL DEFAULT

Respondent contends that the remainder of Petitioner’s claims are waived because he failed

to file a timely appeal to the Ohio Supreme Court and the Ohio Supreme Court denied his motion

for a delayed appeal. See Return of Writ. As noted supra, however, the Ohio Supreme Court

granted Petitioner’s motion for a delayed appeal, although it thereafter dismissed that appeal. 

Therefore, this Court will address the merits of Petitioner’s remaining claims.

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CLAIM TWO

In claim two, Petitioner asserts that he was denied the effective assistance of trial counsel

based on his attorney’s “failure to investigate cocaine,” “reversible error of Fourth Amendment

violation and objecting to unlawful sentence” and “conviction.” See Petition. While these claims

are not entirely clear, the Court presumes that Petitioner intends to assert in these proceedings the

same allegations of ineffective assistance of counsel that he raised on direct appeal. The state

appellate court rejected most of these claims, reasoning as follows: 

[A]ppellant contends in his seventh assignment of error that he

received ineffective assistance of trial counsel.

To prevail on a claim of ineffective assistance of counsel, appellant

must satisfy the two-prong test enunciated in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;

accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

Initially, appellant must show that counsel's performance was

deficient. To meet that requirement, appellant must show counsel's

error was so serious that counsel was not functioning as the “counsel”

guaranteed by the Sixth Amendment. Appellant may prove counsel's

conduct was deficient by identifying acts or omissions that were not

the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally

competent assistance. Strickland at 690. Appellant's failure to satisfy

one prong of the Strickland test negates a court's need to consider the

other. Id. at 697.

In analyzing the first prong under Strickland, there is a strong

presumption that defense counsel's conduct falls within a wide range

of reasonable professional assistance. Id. at 689. Appellant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. Id., citing

Michel v. Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100

L.Ed. 83. Tactical or strategic trial decisions, even if ultimately

unsuccessful, do not generally constitute ineffective assistance. State

v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965.

If appellant successfully proves that counsel's assistance was

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deficient, the second prong under Strickland requires appellant to

prove prejudice in order to prevail. Id. at 692. To meet that prong,

appellant must show counsel's errors were so serious as to deprive her

of a fair trial, “a trial whose result is reliable.” Id. at 687. Appellant

would meet this standard with a showing “that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”

Id. at 694.

Appellant first claims that trial counsel was ineffective for failing to

argue that he was unlawfully arrested without probable cause in

support of his motion to suppress. We disagree.

The failure to make an argument to the trial court may be ineffective

assistance of counsel if, based on the record, the argument would

have been meritorious. State v. Justice (Dec. 24, 1996), 10th Dist.

No. 96APA05–616 (“Counsel is not ineffective for failing to raise a

claim that was not meritorious.”). Cf. State v. Hillman, 10th Dist. No.

06AP–1230, 2008–Ohio–2341, ¶ 46 (noting that the failure to file a

motion to suppress constitutes ineffective assistance of counsel only

if, based on the record, the motion would have been granted). Here,

trial counsel was not ineffective for failing to argue that appellant

was arrested when he was handcuffed because, based on the record,

such an argument would not have been successful.

At some point in a Terry stop, the investigatory detention may

convert into an arrest that must be supported by probable cause. State

v. Davis, 10th Dist. No. 08AP–102, 2008–Ohio–5756, ¶ 13. That

issue is to be decided on a case-by-case basis. Id. Appellant contends

that he was arrested when he was stopped and handcuffed. We

disagree.

First, we reiterate that appellant does not dispute the validity of the

initial Terry stop. While Genter did place appellant in handcuffs, the

use of handcuffs does not automatically convert an investigative

Terry stop into an arrest. Id.; State v. Pickett (Aug. 3, 2000), 8th Dist.

No. 76295 (noting that handcuffing does not make detention an arrest

as long as handcuffing was reasonable under the circumstances).

Even the complete deprivation of a suspect's freedom does not

automatically convert a Terry stop into an arrest if the method of

restraint is reasonable under the circumstances and not excessive.

State v. Boykins (Oct. 29, 1999), 1st Dist. No. C–990101; Davis at ¶

13. When judging the reasonableness of the officer's actions, courts

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must focus on the totality of the circumstances. These circumstances

are to be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.

State v. Williams, 2d Dist. No. 22601, 2008–Ohio–5511, ¶ 15.

Here, Genter observed appellant run out of a house from which a

suspected domestic violence 911 call had been made. Genter ordered

appellant to stop and get down on the ground. As he approached

appellant, Genter observed a bag of marijuana sticking out of

appellant's coat pocket. Genter then handcuffed appellant. Under

these circumstances, especially in light of the marijuana Genter

observed in plain view, his use of handcuffs in order to effectuate the

investigative Terry stop was reasonable and not excessive.

Accordingly, Genter's use of handcuffs did not immediately convert

the investigative stop into an arrest. For these reasons, trial counsel

was not ineffective for failing to argue that appellant was arrested

when he was placed in handcuffs.

Appellant next argues that trial counsel was ineffective for failing to

ask for a Daubert hearing for Stuebe's testimony. Again, we disagree.

There is nothing in the record that calls into question the reliability

of her testing method. Consequently, there is no indication that her

testimony would have been excluded on those grounds. State v.

Sands, 11th Dist. No.2007–L–003, 2008–Ohio– 6981, ¶ 108 (noting

also that the decision to raise a Daubert challenge is a matter of trial

strategy).

Lastly, appellant contends that trial counsel was ineffective for failing

to file an affidavit of indigency in order to avoid the trial court's

imposition of a fine. We agree. The failure to file an affidavit of

indigency prior to sentencing may constitute ineffective assistance of

counsel in a case where the record establishes a reasonable

probability that the trial court would have found the defendant

indigent, thereby relieving him of the obligation to pay a mandatory

fine. State v. Gilmer, 6th Dist. No. OT–01–015, 2002–Ohio–2045;

State v. McDowell, 11th Dist. No.2001–P–0149, 2003–Ohio–5352,

¶ 75.

Here, the presentence investigation report provides evidence of

appellant's employment history and background. Id. at ¶ 76 (looking

at presentence investigation report to determine whether or not trial

counsel was ineffective for failing to file affidavit of indigency). The

report shows that appellant had no source of income and no

employment at the time of this offense. The report also indicated that

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he had no prior employment. Selling drugs was his only means of

financial support. Appellant had only a high school education.

In light of the presentence investigation report, there is a reasonable

probability that the trial court would have found the defendant

indigent, thereby relieving him of the obligation to pay a mandatory

fine. Therefore, we conclude that appellant did receive ineffective

assistance of counsel, but only to the extent that his trial counsel

failed to file an affidavit of indigency in order to avoid the trial

court's imposition of a fine. Id.; Gilmer.

Appellant's seventh assignment of error is overruled in part and

sustained in part.

State v. Parsley, 2010 WL 1510197, at *11-13. 

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.

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 28 U.S.C. § 2254(d). The United States Supreme Court has explained: 

"[A]n unreasonable application of federal law is different from an

incorrect application of federal law." Williams v. Taylor, 529 U.S.

362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or

incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application must

be "objectively unreasonable." Id., at 409, 120 S.Ct. 1495. This

distinction creates "a substantially higher threshold" for obtaining

relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473,

127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes a

"highly deferential standard for evaluating state-court rulings," Lindh

v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481

(1997), and "demands that state-court decisions be given the benefit

of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357,

154 L.Ed.2d 279 (2002) ( per curiam ).

Renico v. Lett, 559 U.S. –, 130 S.Ct. 1855,1862 (2010)(footnote omitted.)

"[C]learly established" law under § 2254(d)(1) consists of "the

holdings, as opposed to the dicta, of this Court's" cases. Williams v.

Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An "unreasonable application" of that law involves not just an

erroneous or incorrect decision, but an objectively unreasonable one.

Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).

Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). “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. Harrington v. Richter, – U.S. –, –,

131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

The right to counsel guaranteed by the Sixth Amendment is the right to the effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for

reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

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that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177 (6th

Cir.1987). “Because of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689.

 To establish prejudice, it must be shown that there is a reasonable probability that, but for

counsel's errors, the result fo the proceedings would have been different. Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 697. Because

petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of

counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider

the other. Id. at 697.

 Petitioner asserts that he was denied the effective assistance of counsel because his attorney

failed to argue, in his motion to suppress the cocaine found in his pocket, that police unlawfully

arrested him by placing him in handcuffs prior to searching him and finding the cocaine.1

 This

1

 The state appellate court affirmed the trial court’s denial of Petitioner’s motion to suppress evidence in

relevant part as follows: 

Appellant claims in his first assignment of error that the trial court erred by denying his motion to

suppress the crack cocaine Genter found in appellant's pants pocket. We disagree.

***

Appellant first claims that the trial court erred by finding Genter's testimony credible. We disagree.

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Appellant does not identify any specific facts supporting his contention that Genter's testimony was

not credible. The trial court is in the best position, as the trier of fact, to determine witness credibility.

The trial court observed Genter testify and chose to believe his testimony. We see no reason to disturb

that determination. State v. Heard, 2d Dist. No. 19322, 2003–Ohio–906, ¶ 35.

Second, appellant claims that Genter did not have reasonable suspicion to search him and, even if he

did, his seizure of the drugs violated the “plain-feel” doctrine. We disagree.

Initially, we note that appellant does not dispute that Genter legally stopped him after he ran out of

the house. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States

Supreme Court held that a police officer may stop an individual if the officer has a reasonable

suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is

imminent. Based on the totality of the circumstances in the present case, we agree that Genter had

reasonable suspicion to stop appellant. See State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d

489 (reviewing propriety of Terry stop based on totality of circumstances). However, Genter's search

of appellant requires additional analysis. See State v. Jones, 8th Dist. No. 80685, 2002–Ohio–4785,

¶ 14 (distinguishing Terry stop from Terry search); State v. Atchley, 10th Dist. No. 07AP–412,

2007–Ohio–7009, ¶ 16.

After an officer makes a lawful Terry stop, the officer may conduct a limited protective search for

weapons if the officer has a reasonable suspicion that the suspect might be armed and dangerous.

Terry at 27; State v. Lawson, 180 Ohio App.3d 516, 906 N.E.2d 443, 2009–Ohio–62, ¶ 21. The

purpose of the search is not to discover evidence of crime, but to allow the officer to pursue his

investigation without fear of violence. Bobo at 180, 524 N.E.2d 489 (quoting Adams v. Williams

(1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612.

Appellant claims that Genter did not have reasonable suspicion to believe he was armed. We disagree.

Genter testified that he searched appellant for weapons because he observed marijuana in appellant's

jacket pocket, and that he had “been in situations where I've recovered narcotics and weapons on

people.” (Tr. 17.) Indeed, the Supreme Court of Ohio had noted that “[t]he right to frisk is virtually

automatic when individuals are suspected of committing a crime, like drug trafficking, for which they

are likely to be armed.” State v. Evans, 67 Ohio St.3d 405, 413, 618 N.E.2d 162, 1993–Ohio–186.

This court has also noted that “‘persons who engage in illegal drug activities are often armed with a

weapon.’” State v. McClendon, 10th Dist. No. 09AP–554, 2009–Ohio–6421, ¶ 22 (quoting State v.

Hansard, 4th Dist. No. 07CA3177, 2008–Ohio–3349, ¶ 26).

In light of the nature of the 911 call to which the officers were responding, appellant's flight from the

house, and most importantly, the observance of drugs in appellant's jacket pocket, Genter had

reasonable suspicion to believe appellant might be armed. Bobo at 181, 524 N.E.2d 489 (reviewing

propriety of Terry search based on totality of circumstances). Accordingly, pursuant to Terry, Genter

was entitled to conduct a limited protective search for weapons so that he could safely conduct his

investigation.

Appellant argues, however, that even if Genter's initial protective search was proper, the seizure of

the crack cocaine was illegal. Appellant claims that Genter illegally seized the crack cocaine because

he did not immediately recognize the item in appellant's pants pocket as contraband but had to first

manipulate the item. The evidence does not support appellant's argument.

A police officer conducting a Terry search for weapons who feels an object, the shape or mass of

which makes its identity as illegal contraband immediately apparent without manipulating the object,

may seize the object pursuant to the “plain feel” exception to the warrant requirement. Heard at ¶ 27

(citing Minnesota v. Dickerson (1993), 508 U.S. 366, 375–76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d

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Court is not so persuaded. 

As noted by the state appellate court, “[d]uring a Terry stop, officers may draw their weapons

or use handcuffs ‘so long as circumstances warrant that precaution.’ ” Dorsey v. Barber, 517 F.3d

389, 399 (6th Cir. 2008)(citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir.

2005); Houston v. Clark County Sheriff Deputy John Does 1–5, 174 F.3d 809, 815 (6th Cir.1999));

see also Graham v. Connor, 490 U.S. 386, 396 (1989)(“the right to make an arrest or investigatory

stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to

effect it.”) [F]or the use of handcuffs during a Terry stop, the Fourth Amendment requires some

reasonable belief that the suspect is armed and dangerous or that the restraints are necessary for

some other legitimate purpose, evaluated on the facts of each case.” The state appellate court did

not unreasonably conclude that such were the circumstances here. Moreover, police had probable

cause to arrest Petitioner upon observing marijuana sticking out of his coat pocket. 

334).

Genter testified that he felt a large bulge inside of appellant's right front pants pocket as he conducted

his protective search for weapons. Genter testified that he used a “crushing motion” to search

appellant. He testified that he could tell the bulge was consistent with narcotics. Although he could

not tell from the pat down what kind of narcotics were in appellant's pants pocket, he immediately

recognized the material as illegal contraband. He did not indicate that he had to manipulate the

material in appellant's pants pocket to determine its nature. Accordingly, Genter could seize the item

pursuant to the “plain-feel” doctrine set forth in Dickerson. See State v. Stewart, 2d Dist. No. 19961,

2004–Ohio–1319, ¶ 22–25.

Lastly, appellant claims that his encounter with Genter illegally matured from a lawful Terry stop into

an illegal arrest when Genter handcuffed him. Appellant did not make this argument in his motion to

suppress or during the hearing on his motion to suppress. A defendant's failure to raise an issue before

the trial court forfeits the right to raise that issue on appeal. State v. Vanhoose, 4th Dist. No. 07CA765,

2008–Ohio–1122, ¶ 18; Atchley at ¶ 8–9. Because appellant failed to present this argument in support

of his motion to suppress, he has forfeited it, and we need not consider it here for the first time. Id.

For all of these reasons, the trial court did not err by denying appellant's motion to suppress.

State v. Parsley, 2010 WL 1501097, at *2-4

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“Probable cause exists if the facts and circumstances known to the

officer warrant a prudent man in believing that an offense has been

committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168,

4 L.Ed.2d 134 (1959). “Whether probable cause exists depends on the

reasonable conclusion to be drawn from the facts known to the

arresting officer at the time of the arrest.” Devenpeck v. Alford, 543

U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). 

United States v. McGhee, 672 F.Supp.2d 804 (S.D. Ohio 2009). Such were the circumstances here. 

Thus, even had Petitioner been placed under arrest when handcuffed by police, the search would

have been permissible as a search incident to arrest. See Arizona v. Gant, 556 U.S. 332 (2009)(a

search incident to arrest is among the exceptions to the warrant requirement). Petitioner has failed

to establish the ineffective assistance of counsel on this basis. 

Petitioner also asserts that he was denied the effective assistance of counsel because his

attorney failed to request a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S

579 (1993)(addressing admissibility of evidence under Rule 702 of the Federal Rules of Evidence)

prior to the admission of testimony by Kathleen Stuebe, the State’s forensic scientist, that the

substance found inside Petitioner’s pocket was crack cocaine. There is nothing in the record, and

Petitioner refers to nothing that would suggest or support his allegation that Steube’s testimony

would not have been admitted even if his attorney had requested such a hearing. Petitioner has 

therefore failed to establish the ineffective assistance of counsel in this regard.

Finally, Petitioner asserts that he was denied the effective assistance of counsel because his

attorney failed to object to the imposition of a fine due to his indigent status. This claim is moot,

as the state appellate court sustained this assignment of error and remanded the case to the trial court

for re-sentencing on this issue. 

Claim two is without merit. 

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CLAIM THREE

In claim three, Petitioner asserts that his conviction was against the manifest weight of the

evidence and that the evidence was constitutionally insufficient to sustain his conviction. The state

appellate court rejected this claim, reasoning in relevant part as follows:

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; 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. In this case, the jury found that

appellant possessed between 10 and 25 grams of crack cocaine,

making the offense a second degree felony. Appellant claims the state

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failed to establish that he possessed between 10 and 25 grams of

crack cocaine because Steube did not test the substance in all the

baggies for crack cocaine. We disagree.

The random sampling method of testing has withstood similar

sufficiency challenges in this court. See State v. Samatar, 152 Ohio

App.3d 331, 2003–Ohio–1639, ¶ 81; State v. Smith (Dec. 23, 1997),

10th Dist. No. 97APA05–660. The random sampling method of

testing “creates a reasonable inference that all similar contraband

contains the same controlled substance as that tested, at least when

the contraband is recovered together and similarly packaged.

Accordingly, evidence of the random-sampling method is sufficient

as a matter of law to support a determination that the entire substance

recovered together and similarly packaged is the same controlled

substance as that tested.” Samatar; State v. Coppernoll, 6th Dist. No.

WM–07–010, 2008–Ohio–1293, ¶ 13–14.

In this case, the evidence presented at trial supported the reasonable

inference that all of the substance in the seized baggies was crack

cocaine. Steube testified that each of the samples she tested were

crack cocaine. The samples came from materials that were recovered

together and similarly packaged. Appellant did not present any

evidence to rebut this inference. This evidence is sufficient for

reasonable minds to conclude that all of the seized contraband was

crack cocaine, and that appellant knowingly possessed between 10

and 25 grams of crack cocaine. Smith. Accordingly, appellant's

conviction is supported by sufficient evidence.

***

Appellant's conviction is supported by sufficient evidence and is not

against the manifest weight of the evidence. Therefore, we overrule

appellant's fourth assignment of error.

State v. Parsley, 2010 WL 1510197, at *6-9. 

 

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 sufficient

proof 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). In the context of a claim alleging a violation of due process,

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“sufficiency of the evidence” refers to the due process requirement that there be enough evidence

introduced in favor of the prosecution for a rational trier of fact to find each element of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing a

sufficiency of the evidence claim, a federal habeas court must defer to the trier of fact with respect

to issues of conflicting testimony, weight of the evidence and the credibility of the witnesses. 

Jackson, 443 U.S. at 319; Walker,703 F.2d at 969.

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

Constitution, there must be sufficient evidence to justify a reasonable trier of fact in finding 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 guilt.” Id.

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(quoting Jackson, at 326). “[A] reviewing court ‘faced with a record that supports conflicting

inferences must presume-even 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, announced in 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, for the reasons

discussed by the state appellate court, Petitioner has not done so here. 

Claim three is without merit. 

CLAIM FOUR

This Court is unable to discern the basis for the alleged constitutional violation set forth in

claim four. “Liberal construction does not require a court to conjure allegations on a litigants

behalf[.]” Erwin v. Edwards, 22 Fed.Appx. 579, 580, unpublished, 2001 WL 1556573 (6th Cir. Dec.

4, 2001)(citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989)) .

 Therefore, claim four is without merit. 

 

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WHEREUPON, 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 orinpart,

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

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

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February 3, 2012

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