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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

GLASSCO FAIRROW, 

Petitioner, : Case No. 3:18-cv-232 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

SHELBY SMITH, Warden, 

 Correctional Reception Center, 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 Petitioner Glassco Fairrow brings this habeas corpus case pro se pursuant to 28 U.S.C. § 

2254 to obtain relief from his conviction in the Common Pleas Court of Montgomery County. 

Petitioner pleads two grounds for relief: 

Ground One: The state decision was contrary to clearly established 

federal law, as announced in a U.S. Supreme Court ruling and the 

state decision was based on a reading of the facts that was 

“objectively unreasonable.” 

Supporting Facts: The conviction of Petitioner was based on 

misleading and insufficient testimony by an expert witness who was 

unqualified to give an expert opinion outside his field. This was 

allowed by the court and was improperly allowed because it lead 

[sic] the jury to draw conclusions on the erroneous contentions 

interposed by an unqualified expert. Dr. Byrd’s testimony supports 

this in part by stating he was not an expert in seizures and gave a 

layman’s opinion about the subject. He further stated his field of 

expertise was psycology [sic] and neuopsycology [sic], which Dr. 

Byrd described as the study of human behavior, normal and 

abnormal. 

Ground Two: The [sic] was insufficient evidence presented at trial 

to support the convictions. 
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Supporting Facts: Due process rights violated because it was 

constitutionally insufficient to support convictions. 

(Petition, ECF No. 1, PageID 5, 7). 

 Rule 4 of the Rules Governing § 2254 Cases requires initial review of habeas corpus cases 

before the State is required to answer and provides in pertinent part: “[i]f it plainly appears from 

the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, 

the judge must dismiss the petition and direct the clerk to notify the petitioner.” Petitioner’s two 

grounds for relief are analyzed below under this standard. 

Ground One: Admission of Testimony by an Unqualified Expert 

 In his First Ground for Relief, Petitioner asserts that he was convicted in part on the basis 

of the testimony of an unqualified expert, Dr. Byrd, who was presented by the State to rebut 

Fairrow’s claim that he was not guilty by reason of insanity. 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 
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claim he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 

110 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). Absent cause and prejudice, a federal habeas 

petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas 

corpus review. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 

433 U.S. at 87; Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000) (citation omitted). Wainwright

replaced the “deliberate bypass” standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. 

at 724. 

 This claim that Dr. Byrd was not a qualified witness on the subject of Petitioner’s sanity is 

plainly an issue which could and should have been raised on direct appeal. However, it was not 

among the assignments of error that Fairrow raised in the Second District Court of Appeals. See 

State v. Fairrow, 2nd Dist. Montgomery Case No. 26936, 2017-Ohio-220 (Jan. 20, 2017), appellate 

jurisdiction declined, 149 Ohio St. 3d 1434 (2017). 

 Because Fairrow did not raise his claim that Dr. Byrd was an unqualified witness when he 

had the opportunity to do so on appeal, he has procedurally defaulted that claim, and it should be 

dismissed. 

Ground Two: Insufficiency of the Evidence 

 In his Second Ground for Relief, Petitioner asserts the State presented insufficient evidence 

to convict him of the offenses with which he was charged. 

An allegation that a verdict was entered upon insufficient evidence states a claim under the 

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. 

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 
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987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order 

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a 

reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence 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 . . . . This familiar standard gives 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, 443 U.S. at 319; U.S. v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); U.S. v. Somerset, No. 

3:03-po-002, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio Oct. 12, 2007 (Rice, J.)). This rule was 

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law 

which determines the elements of offenses; but once the state has adopted the elements, it must 

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge 

should be assessed against the elements of the crime, not against the elements set forth in an 

erroneous jury instruction. Musacchio v. United States, 577 U.S. ----, 136 S. Ct. 709, 193 L. Ed. 

2d 639 (2016). 

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214) (the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

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. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. 

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
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evaluate the credibility of witnesses, or substitute our judgment for 

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th 

Cir. 1993). Thus, even though we might have not voted to convict a 

defendant had we participated in jury deliberations, we must uphold 

the jury verdict if any rational trier of fact could have found the 

defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, deference should be given to the trier-of-fact’s verdict under Jackson, and then to the 

appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 

F.3d 652 (6th Cir. 2008); accord Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam); Davis 

v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc);. Notably, “a court may sustain a conviction 

based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 

656 (6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 

deference. First, on direct appeal, “it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 

1, 2, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam). And 

second, on habeas review, “a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S. 

766, 773, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012) (per curiam); Parker v. Matthews, 567 U.S. at 43. 

 Ground Two was presented to the Second District as an assignment of error and decided 
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by that court as follows: 

The present appeal stems from an August 5, 2014 assault on a 

woman near Helke Park in Vandalia. The victim, Megan 

Finkelstein, had finished jogging shortly after 7:00 a.m. when she 

noticed Fairrow standing nearby. According to Finkelstein, Fairrow 

asked her to come over and talk to him. She declined. As Finkelstein 

proceeded to walk toward her car, she noticed Fairrow approaching 

her. Finkelstein began to run and scream, but Fairrow caught her. 

She testified that he grabbed her from behind, pulled her to the 

ground, and began choking her with both hands. Three nearby 

residents heard the commotion and assisted her. Two of them, 

Russell Wimmer and Jeffrey Snyder, pulled Fairrow off of 

Finkelstein, who was “turning blue” from being strangled. The third 

neighbor, Ralph Arnett, helped detain Fairrow until police arrived. 

All of the men who assisted Finkelstein sustained minor injuries. 

Fairrow proceeded to struggle with two police officers, resulting in 

one of them using a taser to subdue and arrest him. 

At trial, Fairrow did not dispute the foregoing facts. The defense 

argued that he was not guilty by reason of insanity (NGRI). 

* * * 

. 

In his second assignment of error, Fairrow challenges the legal 

sufficiency of the evidence to sustain his convictions. His entire 

substantive argument in support is as follows: 

In the current case there was not sufficient evidence to 

support that Mr. Fairrow “knowingly” committed these 

crimes that he was convicted of in 2014 CR 1142 [sic]. 

There was insufficient evidence presented by the State to 

sustain Fairrow’s convictions in 2014 CR 1142 [sic]. Mr. 

Fairrow had expert witnesses testify to his mental state at 

the time and believed that he was unable to recognize what 

he was doing. Mr. Fairrow was able to prove that at the 

time of his crime he was not guilty by reason of insanity. 

Therefore, those convictions must be reversed. 

(Appellant's brief at 10). 

When a defendant challenges the sufficiency of the evidence, he is 

arguing that the State presented inadequate evidence on an element 

of the offense to sustain the verdict as a matter of law. State v. Hawn, 

138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An 

appellate court's function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence 
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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” State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. 

 

With the foregoing standards in mind, we conclude that Fairrow’s 

convictions are supported by legally sufficient evidence. As a 

threshold matter, we question whether he can raise the merits of his 

NGRI defense in the context of a legal-sufficiency challenge. “The 

defendant's sanity is not an element” of a criminal offense. State v. 

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 

35. Therefore, the State need not prove “that the defendant was 

sane. To the contrary, insanity is an affirmative defense.” Id. The 

due-process-based "sufficient evidence" standard does not implicate 

affirmative defenses. Id. at ¶ 37. Although Fairrow's brief mentions 

the "knowingly" mens rea, his argument is grounded in his NGRI 

defense. 

In any event, we find legally sufficient evidence even if we consider 

the expert testimony upon which Fairrow relies. He presented 

expert testimony that, when he attacked Finkelstein, he was 

suffering from a mental disease, namely a postictal episode, that 

made him unable to know the wrongfulness of his actions. In 

response, the State presented expert testimony that Fairrow probably 

was not suffering from a mental disease or defect when he attacked 

Finkelstein and that he likely knew the wrongfulness of his actions. 

The opposing experts provided reasons for reaching the conclusions 

they did. Viewing the evidence in a light most favorable to the 

prosecution, the jury reasonably could have found the essential 

elements of the crimes proven beyond a reasonable doubt and 

reasonably could have rejected Fairrow’s NGRI defense. 

Accordingly, the second assignment of error is overruled. 

State v. Fairrow, supra. 

 The Second District’s decision on the sufficiency of the evidence claim is an objectively 

reasonable application of Jackson v. Virginia. There was eyewitness testimony from disinterested 

witnesses to each the elements needed for conviction on the charged offenses. 

 As Judge Hall pointed out, NGRI is an affirmative defense – the State was not required to 
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prove that Fairrow was sane. Instead, the burden of proof was on him on the NGRI defense. It 

certainly cannot be said that on the evidence presented, no rational juror could have concluded he 

was sane. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends the 

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this 

conclusion, Petitioner should be denied a certificate of appealability and the Court should certify 

to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be 

permitted to proceed in forma pauperis. 

July 12, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. . 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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).