UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION 

JASON GLEN, Case No. 1:18-cv-496 

 Petitioner, 

 Black, J. 

 vs. Bowman, M.J. 

 

WARDEN, CHILLICOTHE REPORT AND

CORRECTIONAL INSTITUTION, RECOMMENDATION 

Respondent. 

 Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, through 

counsel, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

(Doc. 1). This matter is before the Court on the petition and respondent’s return of writ (Doc. 6), 

to which petitioner has not responded. 

 For the reasons stated below, it is recommended that the petition be denied. 

I. FACTUAL BACKGROUND 

 The Ohio Court of Appeals set forth the following set of facts leading to petitioner’s 

conviction and sentence:1

Veteran Cincinnati Police Officer Jerry Turner stopped Glenn for two traffic 

violations committed while Glenn operated his brother’s Toyota Corolla. After 

Glenn pulled over, Officer Turner observed him make excessive, furtive 

movements down to his right, then behind towards the back of the vehicle, and then 

to the glove box. When Officer Turner approached, Glenn provided his driver’s 

license, but appeared nervous and lied to Officer Turner about where the occupants 

had been. After running Glenn’s information through the police data base, Officer 

Turner learned that Glenn was on federal parole and had multiple felony 

convictions. Two additional officers arrived on the scene and Glenn and the other 

occupants were removed from the Corolla and briefly questioned, but not placed 

under arrest or in a police vehicle. Believing that Glenn might have been hiding a 

1

 28 U.S.C. § 2254(e)(1) provides that “[i]n 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 correct” unless petitioner rebuts the presumption by “clear and convincing evidence.” Because 

petitioner has neither cited nor presented clear and convincing evidence to rebut the Ohio Court of Appeals’ factual 

findings quoted herein, the state appellate court’s factual findings are presumed to be correct. See McAdoo v. Elo,

365 F.3d 487, 493-94 (6th Cir. 2004). 

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weapon in the Corolla, Officer Turner performed a protective search of the area 

around the driver’s seat about ten minutes after the stop. After finding a plastic 

baggie containing heroin under the driver’s seat, Officer Turner arrested Glenn and 

advised him of his Miranda rights. An inventory search of the Corolla revealed a 

drug scale, a drug press, baggies, and plastic gloves. One of the passengers was 

also found to have a large amount of heroin. In a recorded statement to the police, 

Glenn admitted that he had supplied the heroin. 

Prior to trial, Glenn unsuccessfully moved to suppress the evidence. At trial, a 

DVD recording of the stop and arrest captured from Officer Turner’s dashboard 

camera was played for the jury. At a sidebar, defense counsel, who had objected 

generally before trial to the playing of any portion that referenced Glenn’s federal 

parole status or his prior conviction, complained that he had heard an officer 

mention that Glenn was on federal parole. But defense counsel admitted that he 

“d[id]n’t think it [wa]s clear,” and that he “d[id]n’t think [the jury] heard it” or 

“understood the import” of what the officer had said. The trial court judge and the 

prosecutor both stated that they had not heard the allegedly redacted inadmissible 

statements. 

Later in the trial, a juror came forward and told the court that she had heard an 

officer state that someone was on parole, but that she did not know to whom the 

officer had been referring. Ultimately, the juror indicated that she could put aside 

what she had heard, and the defense agreed that she could remain on the case. The 

trial court discreetly questioned the other the jurors about their observations 

concerning the DVD, ordered any additional necessary redactions, and informed 

the jury that the copy admitted into evidence would not contain anything 

inadmissible. 

The trial court twice overruled Glenn’s motion for a mistrial based on the jury’s 

hearing of the insufficiently redacted DVD, a copy of which was not made a part 

of our record. 

(Doc. 5, Ex. 7 at PageID 761–63). 

II. PROCEDURAL HISTORY 

State Trial Proceedings and Direct Appeal

 On August 19, 2014, the Hamilton County, Ohio, grand jury returned a two-count 

indictment, charging petitioner with two counts of trafficking and possession of heroin. (Doc. 5, 

Ex. 1). Petitioner, through counsel, entered a plea of not guilty to both counts. 

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 Following a jury trial, petitioner was found guilty as charged in the indictment. On 

August 17, 2015, petitioner was sentenced to a total aggregate prison sentence of eight years in 

the Ohio Department of Corrections. (Doc. 5, Ex. 3). 

 On September 2, 2015, petitioner, through counsel, filed a notice of appeal to the Ohio 

Court of Appeals. (Doc. 5, Ex. 4). Petitioner raised the following two assignments of error: 

1. The trial court erroneously denied Appellant Glenn’s motion to suppress 

evidence and supplemental motion to suppress evidence. 

 

2. The trial court committed reversible error by denying the appellant’s motion for 

mistrial after it had allowed the prosecution to play to the jury, over defense 

objection, a video recording which included references to the appellant being 

on parole at the time of his arrest with several felonies on his record. 

(Doc. 5, Ex. 5 at PageID 723–24). On November 4, 2016, the Ohio Court of Appeals overruled 

petitioner’s assignments of error and affirmed the judgment of the trial court. (Doc. 5, Ex. 7). 

Ohio Supreme Court 

On December 15, 2016, petitioner, through counsel, filed a notice of appeal to the Ohio 

Supreme Court. (Doc. 5, Ex. 8). In his memorandum in support of jurisdiction, petitioner raised 

the following two propositions of law: 

1. To Conduct A Lawful Protective Search for Weapons In A Vehicle, Police 

Officers Must Have Some Evidence Beyond Mere Furtive Movements To 

Justify An Otherwise Unlawful Intrusion. 

2. The Admission Of A Defendant’s Parole Status And Prior Criminal History 

Over Defense Objection Without Any Statutory Justification Violates The 

Defendant’s Fundamental Right To A Fair Trial. 

(Doc. 5, Ex. 9). On July 26, 2017, the Ohio Supreme Court declined jurisdiction of the appeal. 

(Doc. 5, Ex. 10). 

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Federal Habeas Corpus 

 On July 23, 2018, petitioner commenced the instant federal habeas corpus action. (Doc. 

1). Petitioner raises the following single ground for relief in the petition: 

GROUND ONE: The trial court violated Defendant Glenn’s Fourteenth 

Amendment due process right to a fair trial by admitting evidence of his parole 

status at the time of his arrest and his several prior felony convictions. 

Supporting facts: At trial, over defense objection, the court admitted a video

recording which included several references to the defendant’s parole status at the 

time of his arrest and his felony criminal history. Initially, Cincinnati police officer 

twice states on the recording that the appellant was on federal parole at the time and 

had an extensive criminal record. Next, the same officer tells other officers that the 

defendant “is on federal parole with six or seven felonies.” Finally, that officer, 

after searching the car that Glenn had been driving, asks him “am I going to find 

anything else in the car? You’ve been on federal parole.” 

(Doc. 1 at PageID 25). 

 Respondent has filed a return of writ, to which petitioner has not responded. According 

to respondent, petitioner’s single ground for relief is procedurally defaulted and without merit. 

(Doc. 6). 

III. THE PETITION SHOULD BE DENIED. 

 In his single ground for relief, petitioner claims that he was denied his due process right 

to a fair trial when the state trial court admitted other-acts evidence in the form of a video 

recording which included references to his parole status and criminal record. Respondent 

contends that petitioner procedurally defaulted and waived this claim by failing to present the 

claim as a constitutional issue on direct appeal. 

 As detailed below, the undersigned recommends that the petition be denied on the basis 

that petitioner failed to fairly present his constitutional claims to the Ohio courts and, in any 

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event, his single ground for relief is without merit. 

 In recognition of the equal obligation of the state courts to protect the constitutional rights 

of criminal defendants, and in order to prevent needless friction between the state and federal 

courts, a state defendant with federal constitutional claims must fairly present those claims to the 

state courts for consideration before raising them in a federal habeas corpus action. See 28 

U.S.C. § 2254(b)(1), (c); see also Anderson, 459 U.S. at 6; Picard v. Connor, 404 U.S. 270, 275-

76 (1971). “Federal courts do not have jurisdiction to consider a claim in a habeas petition that 

was not ‘fairly presented’ to the state courts.” Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 

2006) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also 28 U.S.C. § 

2254(b), (c); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 

270, 275-76 (1971). A constitutional claim for relief must be presented to the state’s highest 

court in order to satisfy the fair presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 

838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 

757 F.2d 94, 97, 99-100 (6th Cir. 1985). Moreover, it is well-settled that in order to satisfy the 

“fair presentation” requirement, a habeas corpus petitioner must present both the factual and 

legal underpinnings of his claims to the state courts. Fulcher, 444 F.3d at 798; McMeans v. 

Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). 

A set of four guidelines has been developed for determining whether a claim was 

presented in such a way as to alert the state courts of the claim’s federal nature. McMeans, 228 

F.3d at 681. Under those guidelines, the fair presentation requirement is satisfied if the petitioner 

raised the federal issue in the state courts by (1) relying on federal cases employing 

constitutional analysis; (2) relying on state cases employing constitutional analysis in similar 

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factual contexts; (3) phrasing the claim in terms of constitutional law or in terms sufficiently 

particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the 

mainstream of constitutional law. Id. (citing Franklin, 811 F.2d at 326). 

In this case, the undersigned agrees with respondent that petitioner did not fairly present 

his claim regarding other acts or other crimes evidence for relief as a constitutional issue on 

direct appeal. First, a review of petitioner’s direct appeal brief indicates that petitioner did not 

rely on federal or state cases that would apprise the Ohio appeals court of any constitutional 

issue. Petitioner instead cited to two Ohio Supreme Court cases, neither of which relied on 

federal or state law applying constitutional analysis.2

 Because petitioner did not rely on federal 

or state cases employing constitutional analysis or otherwise phrase his claim in terms of 

constitutional law or allege facts well within the mainstream of constitutional law, petitioner 

failed to fairly present the constitutional claim to the Ohio courts.3

 Even if petitioner raised the evidentiary issue on constitutional grounds in his subsequent 

appeal to the Ohio Supreme Court, petitioner was unable to satisfy the “fair presentation” 

requirement at that late juncture because the Ohio Supreme Court lacked jurisdiction to consider 

the constitutional issue, which had not been raised to or considered by the intermediate appellate 

2

 Petitioner cited State v. Allen, 506 N.E.2d 199 (Ohio 1987) and State v. Bayless, 357 N.E.2d 1035 (Ohio 1976). In 

Allen, the Ohio Supreme Court held that “where the existence of a prior conviction enhances the penalty for a 

subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the 

subsequent offense, and need not be alleged in the indictment or proved as a matter of law.” Allen, 506 N.E.2d at 

201. Bayless was cited for the proposition that the alleged error was not harmless error under Ohio law. (See Doc. 

5, Ex. 5 at PageID 737). 

3 Although petitioner does mention that the evidentiary issue may have “unduly prejudice[d] his right to a fair trial” 

in his appellate brief (see Doc. 5, Ex. 5 at PageID 724, 734), “[g]eneral assertions of the denial of rights to a ‘fair 

trial’ and ‘due process’ do not ‘fairly present’ claims that specific constitutional rights were violated.” McMeans,

228 F.3d at 681. 

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court. See Ohio Const. art. IV, § 2(B)(2); State v. Jones, 211 N.E.2d 198 (Ohio 1965); see also 

Rigdon v. Ohio Adult Parole Authority, No. 1:08-cv-716, 2010 WL 3910236, at *9 (S.D. Ohio 

July 7, 2010) (Wehrman, J.) (citing Leroy, 757 F.2d at 99; Fornash v. Marshall, 686 F.2d 1179, 

1185 n.7 (6th Cir. 1982)), adopted, 2010 WL 3910230 (S.D. Ohio Oct. 4, 2010) (Dlott, J.); 

Harsh v. Warden, Chillicothe Corr. Inst., No. 1:08-cv-433, 2009 WL 3378246, at *1, *9 n.8 

(S.D. Ohio Oct. 15, 2009) (Beckwith, J.; Black, M.J.) (and cases cited therein).4

 Because petitioner failed to provide the state’s highest court with an opportunity to 

correct the alleged violations of his constitutional rights, he procedurally defaulted and has 

waived the ground for relief absent a showing of cause and prejudice for the default in the state 

courts, or that a fundamental miscarriage of justice will occur if the claim is not considered 

herein. See, e.g., Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262. No such showing has been 

made in this case. 

 In any event, even if the Court could conclude that petitioner fairly presented the claim to 

the Ohio courts, petitioner is not entitled to federal habeas relief. This Court may only grant 

relief if petitioner demonstrates that the state court adjudication of his claim “resulted in a 

decision that was contrary to, or involved an unreasonable application of, clearly established 

federal law, as determined by the United States Supreme Court.” 28 U.S.C. § 2254(d)(1). 

4 Cf. Mayes v. Hudson, No. 1:07-cv-315, 2010 WL 55963, at *9 & n.1 (N.D. Ohio Jan. 4, 2010) (in holding that the 

petitioner’s “failure to raise [a] ground for relief . . . in the state appellate court on direct appeal procedurally 

defaulted that claim,” the district court noted: “Even if [the] memorandum in support of jurisdiction in the Ohio 

Supreme Court could be read as having raised the claim . . ., [the petitioner’s] failure to raise that claim in the 

appellate court resulted in its default,” because it must be assumed from the Ohio Supreme Court’s silence as to the 

reasons for denying the claim that it did not “ignore its own procedural rules and . . . enforced the procedural bar” 

prohibiting review of claims that are “not raised in the underlying appellate proceeding”) (citing Simpson v. 

Sparkman, 94 F.3d 199, 203 (6th Cir. 1996)). 

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Petitioner cannot demonstrate that the state court’s rulings on his claim was contrary to Supreme 

Court precedent, because “[t]here is no clearly established Supreme Court precedent which holds 

that a state violates due process by permitting propensity evidence in the form of other bad acts 

evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). See also Bailey v. Lafler, 722 

F.App’x 425, 435 (6th Cir. Jan. 19, 2018) (rejecting claim that admission of other bad acts 

evidence, finding no Supreme Court authority establishing that admission of such evidence 

violates due process); Bower v. Burt, No. 19-1363, 2019 WL 4943758, at *2 (6th Cir. Aug. 6, 

2019) (same); Cowans v. Bagley, 624 F.Supp.2d 09, 802 (S.D. Ohio 2008) (holding that the state 

court’s denial of petitioner’s claim regarding reference to the petitioner’s status as a parolee at 

trial did not amount to an unreasonable application of Supreme Court precedent in light of 

Bugh.). Even assuming arguendo that petitioner could make such a showing, petitioner has not 

shown that contested evidence was “material in the sense of a crucial, critical highly significant 

factor.” Burger v. Woods, 515 F. App’x 507, 510 (6th Cir. Feb. 20, 2013) (quoting Brown v. 

O’Dea, 227 F.3d 642, 645 (6th Cir. 2000)). Rather, the undersigned agrees with the Court of 

Appeals that there was no reasonable probability that the other-act evidence contributed to 

petitioner’s conviction in light of the evidence offered in support of his conviction and sentence.5 

(See Doc. 5, Ex. 7 at PageID 763–64). 

 Accordingly, in sum, petitioner is not entitled to federal habeas relief based on his single 

ground for relief. 

5

 As noted by the Ohio Court of Appeals, the arresting officer testified that he witnessed petitioner making furtive 

movements within the vehicle after he pulled him over; the officer found a bag of heroin under his seat and a scale, 

drug press, baggies and plastic gloves were subsequently discovered in an inventory search of the vehicle; and 

petitioner admitted that he had supplied a large amount of heroin found on one of the passengers in the car in a 

recorded statement to police. (See Doc. 5, Ex. 7 at Page ID 761–62). 

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IT IS THEREFORE RECOMMENDED THAT: 

1. The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be 

DENIED with prejudice. 

2. A certificate of appealability should not issue with respect to the claims alleged in the 

petition, which this Court has concluded are waived and thus procedurally barred from review, 

because under the first prong of the applicable two-part standard enunciated in Slack v. 

McDaniel, 529 U.S. 473, 484–85 (2000), “jurists of reason” would not find it debatable whether 

this Court is correct in its procedural ruling.6

 A certificate of appealability should not issue with respect to the claims alleged in the 

petition, which have been addressed on the merits herein, because petitioner has not stated a 

“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to 

deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000) 

(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed. 

R. App. P. 22(b). 

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting 

this Report and Recommendation would not be taken in “good faith,” and therefore DENY

6

 Because this Court finds that the first prong of the Slack standard has not been met in this case, it need not address 

the second prong of Slack as to whether or not “jurists of reason” would find it debatable whether petitioner has 

stated a viable constitutional claim in any of his grounds for relief. See Slack, 529 U.S. at 484. 

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petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. 

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). 

 s/Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

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UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION 

JASON GLEN, Case No. 1:18-cv-496 

 Petitioner, 

 Black, J. 

 vs. Bowman, M.J. 

 

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

Respondent. 

NOTICE 

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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