IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Raymond Douthit, )

) 

Petitioner, ) Case No. 1:00-CR-90(2)

) 1:04-CV-431 

vs. )

)

United States of America, )

)

Respondent. )

Memorandum and Order

This matter is before the Court upon Petitioner

Douthit’s motion, pursuant to 28 U.S.C. § 2255, to vacate, set

aside, or correct his sentence on the ground that defense counsel

was ineffective at trial in that he failed to object to three

types of testimony in violation of Plaintiff’s Sixth Amendment

right. Petitioner asserts that his counsel’s failure prejudiced

the outcome of his trial and that he is entitled to relief from

the judgment imposed by this Court on that basis.

In February 2001, a federal jury convicted Petitioner

of three counts: conspiracy to possess with intent to distribute

in excess of 50 grams of cocaine base and in excess of 500 grams

of cocaine, in violation of 21 U.S.C. § 846; possession with

intent to distribute in excess of 50 grams of cocaine base, in

violation of 21 U.S.C. § 841(b)(1)(A); and traveling in

interstate commerce to facilitate a narcotics transaction, in

violation of 18 U.S.C. § 1952. In July 2001, this Court

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sentenced Petitioner to 292 months in prison on each of the first

two counts and 60 months in prison on the third count, all to run

concurrently.

In June 2003, the Court of Appeals remanded this matter

for resentencing on the basis of its conclusion that the evidence

did not support the inclusion of powder cocaine in the

calculation of the quantity of controlled substance for purposes

of determining Petitioner’s sentence under the United States

Sentencing Guidelines. On remand, this Court reduced

Petitioner’s sentence on each of the first two counts to 240

months. Nine months later, Petitioner filed the present motion.

The basis for Petitioner’s request for relief under 

§ 2255 is his assertion that his counsel failed, on three

occasions, to interpose objections to testimony that, while

irrelevant to the charges against him and not probative of guilt

or innocence, had the effect of increasing the likelihood that

the jury would view Petitioner as involved in the illegal drug

trade. Petitioner contends that the introduction of that

testimony likely prejudiced the outcome of his trial and that his

counsel’s failure to object constituted ineffective

representation in violation of the Sixth Amendment’s guarantee of

a fair trial.

The testimony upon which Petitioner bases his claim

includes an alleged reference to his possession of a small

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quantity of marijuana. The portions of the trial transcript to

which Petitioner cites in support of his first basis for his

claim do not include testimony to the effect that Petitioner

possessed marijuana, however. Those portions include references

to marijuana being found in the house where Petitioner lived in a

search conducted some 11 days after the events that led to his

arrest. They also include testimony by a neighbor of that

residence that she had seen unidentified men bagging marijuana in

the yard. None of the witnesses testified that marijuana was

found on Petitioner’s person, and the evidence at trial made

clear that many people in addition to Petitioner had access to

the house in which he lived.

Petitioner observes that none of the offenses with

which he was charged involved marijuana and that, accordingly,

his possession of marijuana was not probative and had the effect

of prejudicing the outcome by permitting the jury to believe that

Petitioner was a marijuana user. Petitioner’s counsel did not

object to the testimony. 

The second bit of testimony upon which Petitioner bases

his claim is a reference by coconspirator Starrett Palmer to

another alleged drug trafficker, Rico Porter, as Petitioner’s

best friend. Petitioner’s defense counsel did not object to the

reference to Mr. Porter as Petitioner’s best friend, and

Petitioner contends that the jury was likely led to believe that

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he had a close association with a drug trafficker as a result of

the reference. The Court observes that Mr. Palmer later

testified that Rico Porter had helped him and Petitioner with the

weighing and dividing of drugs after buying trips preceding the

one that led to the arrest of Petitioner and Mr. Palmer.

Petitioner bases his ineffective assistance of counsel

claim upon one other alleged error by his trial counsel. 

Starrett Palmer referred to a man named “Ed,” who, he stated, was

a drug courier who was arrested with drugs while working for

Petitioner. Petitioner argues that the fact that he was

connected to a second drug courier increased the likelihood that

the jury would conclude that he was involved in drug trafficking. 

The alleged relationship with “Ed” was, therefore, prejudicial. 

Because it was not relevant to the charges against him, he

argues, it was not probative, and effective counsel would have

objected. 

To prevail on his claim, Petitioner must meet the wellknown standard that (1) his “counsel’s performance fell below an

objective standard of reasonableness, and (2) there is a

reasonable probability that, but for the deficiency, the outcome

of the proceedings would have been different.” Campbell v.

United States, 364 F.3d 727, 730 (6th Cir. 2004)(citing Griffin

v. United States, 330 F.3d 733, 736 (6th Cir. 2003)), cert.

denied, U.S. , 125 S.Ct. 987 (2005). “The objective

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standard of reasonableness is a highly deferential one and

includes a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Mason v.

Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). The Supreme

Court has defined a “reasonable probability” as “a probability

sufficient to undermine confidence in the outcome.” Strickland

v. Washington, 466 U.S. 668, 694 (1984). The Strickland court

further stated that “[t]he benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” id. at

686.

To satisfy the first Strickland requirement, Petitioner

must establish that his counsel’s performance “‘fell below an

objective standard of reasonableness’ as measured by ‘prevailing

professional norms.’” Tinsley v. Million, 399 F.3d 796, 802 (6th

Cir. 2005)(quoting Strickland, 466 U.S. at 687-88). A failure to

object to the introduction of testimony does not fall below an

objective standard of reasonableness unless the testimony

actually had the effect or the likely effect of depriving

Petitioner of a fair trial. See Anderson v. United States, 246

F. Supp.2d 758, 762 (E.D. Mich. 2003)(cited with approval in Reed

v. United States, No. 03-1556, 2005 WL 1312270, *4 (6th Cir. May

13, 2005)).

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Petitioner’s claim fails to the extent that it is based

upon references to marijuana found in or around his residence. 

As the Court has observed, Petitioner argues in his motion that

the testimony in question pertained to his possession of

marijuana. None of the cited testimony relates to actual

possession by Petitioner, however. Indeed, the evidence at

trial, considered as a whole, made quite clear the fact that

numerous persons, identified and unidentified, were present in

and around the residence at various times. Some, other than

Petitioner, were stated to have been seen working with marijuana

or a marijuana-like substance. None of the witnesses mentioned

marijuana use or possession by Petitioner. In short, nothing

about the evidence in question unduly prejudiced the outcome of

the trial by increasing the likelihood that the jury would

perceive Petitioner as a drug user.

Because the evidence in question did not increase the

likelihood that the jury would perceive Petitioner as a drug

user, it was not objectionable on the basis asserted by

Petitioner in support of his § 2255 motion: Rule 404(b) of the

Federal Rules of Evidence, which prohibits the admission of

evidence of other crimes, wrongs, or acts for the purpose of

proving the character of a defendant in order to prove action in

conformity therewith. The evidence in question was not of other

crimes, wrongs, or acts by Petitioner. It was not subject to

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exclusion under Rule 404(b), and Petitioner’s counsel did not err

by failing to object to the evidence in question on that basis.

Petitioner cannot, therefore, establish that his trial

counsel’s performance was deficient on the basis of his failure

to object to the references to marijuana by various witnesses. 

Counsel could not successfully have objected to the evidence in

question under Rule 404(b). Even had the evidence been

technically objectionable under Rule 404(b), its admission was

harmless inasmuch as Petitioner’s connection to the marijuana to

which the witnesses referred was so tenuous that no reasonable

juror would have concluded that the marijuana was intended for

Petitioner’s personal use. Because the evidence was harmless,

counsel’s failure to object was also harmless and cannot be the

basis for relief under § 2255. See Anderson, 246 F. Supp.2d at

762 (cited with approval in Reed, supra).

Equally unavailing is the second basis for Petitioner’s

ineffective assistance of counsel claim. He asserts that his

counsel erred by failing to object to Starrett Palmer’s reference

to Rico Porter as Petitioner’s best friend. Petitioner contends

that the statement that the two were best friends had the likely

effect of prejudicing the outcome of his trial by permitting the

jury to conclude that Petitioner was best friends with a drug

dealer. 

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The Court first notes that Mr. Palmer did, indeed,

refer to Rico Porter as both a drug dealer and Petitioner’s best

friend. He did so upon questioning about the contents of his

date and phone book in which he had listed numerous persons and

their phone numbers. When the questioning turned to the entry

for Rico Porter, Mr. Palmer identified him as a “dealer” and

Petitioner’s best friend. At the time, the testimony was not

relevant to the charges against Petitioner. Petitioner’s counsel

did not object.

The Court observes, however, that a short time later,

Mr. Palmer testified concerning the manner in which he and

Petitioner had handled drugs after past transactions. He

testified that they would go to Mr. Palmer’s house and Petitioner

would call Rico Porter, who would meet them and help Petitioner

divide and weigh the drugs. At that point, Petitioner could no

longer have objected that testimony concerning Rico Porter was

strictly irrelevant. Indeed, Mr. Porter’s existence, his

involvement in drug-trafficking or related activities, and the

fact that he had some relationship with Petitioner had all been

introduced to the jury in the context of relevant evidence,

probative of Petitioner’s involvement with the witness in a drugtrafficking conspiracy. Counsel’s failure to object to the

earlier reference to Rico Porter, to the extent that it was not

harmless at the time, was rendered harmless by the later

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testimony. Petitioner cannot, therefore, prove a Sixth Amendment

violation on the basis of that failure. See Strickland, 466 U.S.

at 686.

The Court’s discussion is academic in any event,

inasmuch as Petitioner does not assert as error counsel’s failure

to object to the reference to Rico Porter as irrelevant. Rather,

Petitioner contends that the testimony was hearsay. Hearsay is

defined in Rule 801(c) of the Federal Rules of Evidence as “a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Nothing about the statement to which

Petitioner contends his counsel should have objected identifies

it as hearsay. The only identifiable declarant is Starrett

Palmer, who was the witness. Nothing about the context in which

the statement was made suggests that Mr. Palmer was repeating a

statement by an absent declarant rather than his own impressions

about the relationship between Mr. Porter and Petitioner. 

Finally, nothing suggests that the United States intended that

the reference to Mr. Porter be made in order to prove that Mr.

Porter was, in fact, Petitioner’s best friend. In short, the

statement was not hearsay, and Petitioner’s counsel’s failure to

object to it on that basis was not an error and cannot be the

basis for relief under § 2255. See Reed, 2005 WL 1312270 at *6.

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The most colorable of Petitioner’s three bases for his

§ 2255 motion is his counsel’s failure to object to the testimony

by Starrett Palmer about “Ed”, another alleged drug courier for

Petitioner. Petitioner contends that the testimony in question

suggested other similar acts of misconduct by Petitioner. His

claim is, apparently, that the testimony was objectionable under

Rule 404(b) of the Federal Rules of Evidence, as evidence of

other crimes, wrongs, or acts.

Having considered the testimony in question, the Court

agrees with Petitioner that the existence of “Ed” and his

activities with Petitioner were not directly relevant to the

charges against Petitioner. Moreover, testimony about

Petitioner’s involvement in unrelated, similar drug transactions

was more prejudicial than probative and would, therefore,

properly have been excluded under Rule 403 of the Federal Rules

of Evidence.

On the other hand, the Court observes that, to the

extent that the United States intended to introduce the evidence,

its intention was not to prove Petitioner’s bad character in

order to show that he likely acted in conformity with it in

committing the offenses in question. Rather, Mr. Palmer’s

testimony related to the reason for his willingness to testify

against Petitioner: the fact that Petitioner had broken his

promise not to abandon Mr. Palmer to law enforcement as he had

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done to Ed. Accordingly, to the extent that the United States

knew that Mr. Palmer would testify about Ed, it did not permit

him to do so for the purpose of establishing Petitioner’s

character. Accordingly, the testimony was not introduced for a

purpose prohibited by Rule 404(b).

The question, then, is whether Petitioner can establish

that he is entitled to relief under § 2255 for the failure of his

counsel to object under Rule 403 to evidence suggesting that he

had been involved with drug transactions involving a second drug

courier. The Court is convinced that he cannot.

Petitioner is entitled to relief only if he can

establish a “reasonable probability” that, but for his counsel’s

failure to object to the testimony about “Ed”, “the outcome of

the proceedings would have been different.” Campbell, 364 F.3d

at 730. In Petitioner’s case, the evidence supporting the

conspiracy count and the cocaine possession count came largely

from Starrett Palmer, Petitioner’s admitted coconspirator. That

evidence was overwhelming in detail and obviously persuaded the

jury that Petitioner and Mr. Palmer were working together in

transporting the drugs with which Mr. Palmer was found at the

time of his arrest. To the extent that that evidence was

bolstered in any sense by the testimony about “Ed”, the effect

was de minimis and not sufficient to establish a reasonable

probability that the outcome of the trial would have been

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The Court observes that Petitioner has also argued that the

cumulative effect of his trial counsel’s errors was to deprive him

of a fair trial in violation of the Sixth Amendment. The Court has

concluded, however, that Petitioner has made just one colorable

claim of error, precluding his assertion of a successful claim

based upon cumulative effect. 

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different had Petitioner’s counsel objected. See Strickland, 466

U.S. at 694. The insertion of the objectionable testimony does

not undermine confidence in the outcome of the trial as having

produced a just result. See id. at 686. See also Reed, 2005 WL

1312270 at *6-7; Campbell, 364 F.3d at 736; United States v.

Bavers, 787 F.2d 1022, 1030 (6th Cir, 1985)(counsel’s performance

did not deprive defendant of an essentially fair trial especially

in light of overwhelming evidence of his guilt). The Court

concludes that Petitioner cannot establish the second prong of

the applicable test under Strickland and that, accordingly, he is

not entitled to relief under § 2255 to the extent that his

counsel erred in not objecting to the testimony about “Ed” under

Rule 403.1

The Court finds no merit in Petitioner’s claim. His

motion (Doc. 89) is, therefore, DENIED for the reasons stated

herein.

IT IS THEREFORE ORDERED THAT

1. Petitioner’s motion to vacate, set aside, or correct

 sentence under 28 U.S.C. § 2255 is DENIED.

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2. A certificate of appealability will not issue with

 respect to Petitioner’s claim for relief because 

 Petitioner has failed to make a substantial showing of

 the denial of a federal constitutional right remediable

 in this federal habeas corpus proceeding. See 28 U.S.C. 

 § 2253(c); Fed. R. App. P. 22(b).

3. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),

 that an appeal of this Order would not be taken in good

 faith and, therefore, denies any application by

 Petitioner to proceed in forma pauperis on appeal. See

 Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d

 949, 954 (6th Cir. 1997). Petitioner remains free to

 apply to the Court of Appeals for leave to proceed in 

 forma pauperis. See id.

 /s/ 

Sandra S. Beckwith, Chief Judge

United States District Court

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