1

MATHIAS D. PETTY,

Petitioner, : Case No. 2:18-cv-586

- vs - Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

LYNEAL WAINWRIGHT, WARDEN, 

Marion Correctional Institution,

:

Respondent.

On April 9, 2019, the Magistrate Judge issued a Report and Recommendation (“R&R”) 

recommending that Mathias D. Petty’s pro se petition for a writ of habeas corpus under 28 

U.S.C. § 2254 be denied. (ECF No. 18). After Petitioner filed Objections to the R&R (ECF No. 

19), the matter was recommitted, and the Magistrate Judge issued a Supplemental Report and 

Recommendation (“Supplemental R&R”) (ECF No. 21). After Petitioner filed Objections to the 

Supplemental R&R (ECF No. 22), the matter was again recommitted, and the Magistrate Judge 

issued a Substituted Report and Recommendation (“Substituted R&R”) (ECF No. 25). Petitioner 

has filed Objections to the Substituted R&R. (ECF No. 26). Pursuant to 28 U.S.C. § 636(b), the 

Court has conducted a de novo review. For the following reasons, Petitioner’s Objections (ECF 

Nos. 19, 22, 26) are OVERRULED. The Substituted R&R (ECF No. 25) is ADOPTED and 

AFFIRMED. The petition is DENIED, and this action is DISMISSED WITH PREJUDICE. 

The Court further DECLINES to issue a certificate of appealability (“COA”). 

Petitioner’s motion for a COA (ECF No. 26) is DENIED. 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

OPINION AND ORDER
2

ANALYSIS

Litigation History

In July 2014, Petty was indicted by a Franklin County, Ohio, grand jury on one count of 

rape in violation of Ohio Revised Code § 2907.02 with the specifications that (1) the victim was 

less than thirteen and (2) that Petty was a repeat violent offender by virtue of his prior conviction 

for aggravated robbery. He was also charged with one count of importuning in violation of Ohio

Revised Code § 2907.07. (State Court Record, ECF No. 12, Ex. 1, PageID 113-14). Petty was 

convicted on all counts and sentenced to fifteen years to life imprisonment. Although his first 

appeal resulted in a remand for proper sentencing findings, the Ohio Tenth District Court of 

Appeals affirmed on his second appeal. 

Petty pleads the following grounds for relief:

GROUND ONE: [C]onviction obtained in violation of evidentiary

rule implicates due process and resulting in a trial that was/is

fundamentally unfair. see: United States v. Allen, 106 F.3d 695 (6th

Cir. 1997). 1

GROUND TWO: Conviction obtained in violation of Fourteenth

Amendment’s Due Pro[cess] Clause, wherein the evidence admitted

at trial was manifestly insufficient to support a conviction. see: In re

Winship (1970), 397 U.S. 358, 364; 90 S. Ct. 1068; and Jackson v.

Virginia (1979), 443 U.S. 307, 319, 99 S. Ct. 2781.

GROUND THREE: [C]onviction obtained in violation of due

process and fundamental fairness where petitioner’s convictions for

“repeat violent offender” “use of force” and “rape and importuning”

were against the manifest weight of the evidence.

GROUND FOUR: [C]onviction obtained in violation of Fourteenth 

Amendment Due Process Clause, and that of the Federal

Constitution’s Fifth Amendment Double Jeopardy protections and

prohibitions where the underlying sentence(s) were/are ‘declared

void’ by operation of law, contrary to law, and patently exceed both

state statutory and federal constitutional requirements. see: Whalen

 1 All citations are as they appeared in the Petition.
3

v. United States (1980), 445 U.S. 684, 689, 100 S. Ct. 1432; and,

U.S. SENTENCING GUIDELINES MANUAL, ch. 1, pt. A(4)(e) (2012).

(Petition, ECF No. 1, PageID 14, 18, 27, 29 (alterations in original)).

Ground One: Violation of Evidence Rules

In his First Ground for Relief, Petty claims he was denied due process and a fair trial 

when Police Officer David Schulz was permitted to testify about the content of text messages he 

saw on the cellphone of the victim when he was called to the scene of the offenses shortly after 

they occurred. On appeal, the Tenth District Court of Appeals overruled several evidentiary 

objections to this testimony, including that it was hearsay, that it lacked a proper foundation, and 

that its admission violated the best evidence rule. State v. Petty, No. 15AP-950, 2017-Ohio-1062 

(Ohio App. 10th Dist. Mar. 23, 2017), appellate jurisdiction declined, 151 Ohio St. 3d 1455, 

2017-Ohio-8842 (“Petty I”).

The Magistrate Judge recommended that Ground One be dismissed because it did not 

state a claim arising under the United States Constitution and two of the three evidence 

objections were procedurally defaulted for lack of a contemporaneous objection. (Substituted 

R&R, ECF No. 25, PageID 1536-44). Petitioner objects that these violations of the evidence 

rules denied him “a fair trial in a fair tribunal” which rises to the “level of a constitutional 

infringement cognizable in federal habeas corpus.” (Objections, ECF No. 26, PageID 1562). 

However, invoking the constitutional principle of a fair trial in a fair tribunal is only the 

beginning of the analysis in habeas corpus. To obtain relief in habeas from a state court 

conviction, a petitioner must show that the state court’s decision is contrary to or an 

unreasonable application of some clearly established holding of the United States Supreme 

Court. The Supreme Court has indeed held that a fair trial in a fair tribunal is a basic requirement 

of due process. Offutt v. United States, 348 U.S. 11, 14 (1954). But the Supreme Court has never 
4

held this implies that the best evidence rule, the prohibition on hearsay, or the personal 

knowledge (foundation) rule are required by the Sixth or Fourteenth Amendments. Moreover, as 

the Tenth District found, admission of the portions of the text messages which came from 

Petitioner was not a violation of the hearsay rule because that rule permits admission of 

statements of party opponents. Ohio R. Evid. 801(D)(2).

Petitioner’s Objections regarding the First Ground for Relief are overruled.

Ground Two: Insufficient Evidence to Convict

In his Second Ground for Relief, Petty argues there was insufficient evidence to convict 

him of rape because it was not shown his conduct was an offense of violence. It was stipulated at

trial that Petty had previously been convicted of aggravated robbery, which is plainly a crime of 

violence. The Tenth District denied this claim because it found

The term “offense of violence” is defined in R.C. 2901.01(A)(9) as 

a violation of a number of sections of the Ohio Revised Code,

including R.C. 2907.02, rape. Thus, it is not necessary to prove that

a rape was committed with violence in order to qualify as an offense

of violence. State v. Tayse, 9th Dist. No. 23978, 2009-Ohio-1209, ¶

32 (“Under Ohio law, such conduct [sexual conduct with another

person who is less than 13 years of age] is defined as rape, an offense

of violence.”).

Petty I, 2017-Ohio-1062, ¶ 59. The Magistrate Judge found this ground for relief should be 

dismissed for a number of reasons with which the Court agrees. 

First, it is a matter of state law to define crimes and their elements. Nothing in the United 

States Constitution forbids a State from classifying sex with a person under thirteen as an act of 

violence. Petty also objects that he was sentenced under the wrong statute (Objections, ECF No. 

26, PageID 1565-66), but as the Magistrate Judge pointed out, the Tenth District expressly held 

that the statute the trial court referred to was the correct one under Ohio law. Petty I, 2017-Ohio1062, ¶ 71.
5

Additionally, Petty attempts to raise as a defense that the victim fraudulently represented 

herself to be an adult in texting with him about oral sex. As the Magistrate Judge concluded, 

Ohio has never recognized such a defense to child sexual abuse nor has the Supreme Court of the 

United States ever held recognition of such a defense is constitutionally mandated. (Substituted 

R&R, ECF No. 25, PageID 1547). Further, Petty objects that because this is a case of first 

impression, he should be given an evidentiary hearing on this defense. (Objections, ECF No. 26, 

PageID 1567). However, in a habeas corpus case, to show constitutional error in a state court 

decision a petitioner must show the decision was contrary to or an unreasonable application of 

Supreme Court precedent at the time the state court decision was made. Lockyer v. Andrade, 538 

U.S. 63, 71 (2003). That was not done here.

Petitioner’s Objections regarding the Second Ground for Relief are overruled.

Ground Three: Manifest Weight of the Evidence

The Magistrate Judge recommended this Ground for Relief be dismissed insofar as it 

raised a claim that the verdict was against the manifest weight of the evidence because that claim 

is not cognizable in habeas corpus. Insofar as the claim is that there was insufficient evidence, 

the Substituted R&R recommends it be dismissed on the merits. (ECF No. 25, PageID 1548-54). 

Petitioner makes no specific objection to the Magistrate Judge’s recommendation except for his 

continued claim that there was no showing of actual physical force. That objection is dealt with 

above: no such showing is required under Ohio law for sexual conduct with a person under 

thirteen.

Petitioner’s Objections regarding the Third Ground for Relief are overruled.

Ground Four: Invalid Sentence

In his Fourth Ground for Relief, Petty argues that the trial judge sentenced him without 
6

exercising the discretion allegedly required by Ohio Revised Code § 2929.14. As the Substituted 

R&R notes, this is a question of Ohio law which the Tenth District resolved against Petty.

(Substituted R&R, ECF No. 25, PageID 1554). 

Petitioner’s Objections regarding the Fourth Ground for Relief are overruled.

CONCLUSION

For all these reasons, the Court concludes that Petitioner’s Objections are without merit

and are hereby OVERRULED. (ECF Nos. 19, 22, 26). The Substituted R&R is ADOPTED and 

AFFIRMED (ECF No. 25), and the Petition (ECF No. 1) is DISMISSED WITH 

PREJUDICE.

Petitioner has also moved for COA. (ECF No. 26). A state prisoner who seeks a writ of 

habeas corpus in federal court does not have an automatic right to appeal a district court’s 

adverse decision unless the court issues a COA. 28 U.S.C. § 2253(c). When a claim has been 

denied on the merits, a COA may be issued only if the petitioner “has made a substantial 

showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make such a showing, a 

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). 

The Court is not persuaded that reasonable jurists could debate whether the Petition 

should have been resolved differently. Accordingly, the Court DECLINES to issue a COA on all 

grounds raised in the Petition.

The Court also CERTIFIES that an appeal would not be in good faith and that an 

application to proceed in forma pauperis would be DENIED. 
7

IT IS SO ORDERED.

/s/ Sarah D. Morrison____________ 

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE