Denson v. Smith

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
DAVID LEE DENSON,
Petitioner, 	: 	Case No. 1:24-cv-00434
- vs - 	District Judge Jeffery P. Hopkins
Magistrate Judge Michael R. Merz
SHELBIE SMITH WARDEN,
Belmont Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought pro se by Petitioner David Denson to obtain relief
from his conviction for gross sexual imposition in the Common Pleas Court of Hamilton County,
Ohio (Petition, ECF No. 1-1). The case is ripe for decision on the Petition, the State Court Record
(ECF No. 7), and the Return of Writ (ECF No. 8). As required by Rule 5 of the Rules Governing
Habeas Corpus Proceedings, Magistrate Judge Litkovitz set a date for Petitioner to file a reply to
the return of writ for twenty-one days after the Return was filed (Order, ECF No. 3). That date
was January 6, 2025. That time has expired and Petitioner had not filed a reply.
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 9).
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Litigation History
On August 28, 2020, a Hamilton County Grand Jury indicted Denson on one count of gross
sexual imposition on a victim younger than 13 years old (Indictment, State Court Record, ECF
No. 7, Ex. 1). 	After a jury trial, Petitioner was found guilty as charged and sentenced to the
imprisonment term he is now serving. Id. at Ex. 7. Through new counsel, he timely appealed to
the First District Court of Appeals which affirmed. State v. Denson, 2023-Ohio-847 (Ohio App.
1st Dist., Mar. 17, 2023). Denson did not appeal to the Supreme Court of Ohio until January 24,
2024 (Notice of Appeal, State Court Record, ECF No. 7, Ex. 15). Even though he was more than
eight months late, the Ohio Supreme Court granted a delayed appeal and set a deadline for the
memorandum in support of jurisdiction of April 18, 2024. Id. at Ex. 17. When he failed to file by
that date, the Ohio Supreme Court dismissed his appeal. Id. at Ex. 18.
Denson filed his Petition in this Court on August 24, 2024 (ECF No. 1-1). He pleads the
following two grounds for relief:
The following state court’s decisions are contrary to, or involved an
unreasonable application of clearly established federal law, as
determined by the supreme court of the united states pursuant to 28
U.S.C. 2254(d)(1); and was based on an unreasonable determination
of the facts in light of the evidence. to wit:
1. 	The trial court erred by permitting the state to exercise a
peremptory challenge to strike a prospective juror on the basis
of his race, in violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
Factual Grounds: At trial, the prosecutor told the trial court that he
removed juror 22 because he seemed somewhat hesitant to convict
based 	on 	testimonial 	evidence 	alone. 	This 	is 	a 	race-neutral
explanation. Denson argues that the state’s race-neutral explanation
was a pretext to strike an African-American juror who expressed
support of Denson because of their shared race. The trial court errs
when it accepts the state’s purportedly race-neutral explanation for
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the exercise of a peremptory to strike an African-American from the
jury pool where race-neutral explanation is a pretext for racial
discrimination;
2. 	The trial court deprived him of due process by allowing
testimony from three witnesses that supported the veracity of the
child witness.
Factual Grounds: the trial court deprived him of due process by
allowing testimony from three witnesses that supported the veracity
of the child witness. specifically, denson argues that the testimony
of great-aunt, mother, and jones improperly bolstered the victim’s
credibility. the trial court errs when it permits witnesses to invade
the province of the jury and testify as to the credibility of another
witness;
(Petition, ECF No. 1-1). In the same portion of his Petition where he pleaded these grounds for
relief, he also pleaded cause and prejudice to excuse his failure to timely file the memorandum in
support of jurisdiction in the Ohio Supreme Court:
Petition (sic) has established cause and prejudice for his failure to
prosecute his appeal to the Ohio Supreme Court by not filing timely
memorandum in support of jurisdiction.
Factual 	Grounds: 	Petitioner 	was 	unable 	to 	file 	timely
Memorandum in Support of jurisdiction to the Ohio Supreme Court
due to his placement in segregation where he was deprived of
adequate 	opportunity 	to 	conduct 	research, 	drafting 	of 	his
memorandum, and lacking funds for copies, envelopes, and postage.
Petitioner further asserts that a Manifest injustice would occur due
to the fact that it is clear that the State Court committed plain and
structural error, denied due process right to fair trial and appeal, and
the constitutional error has resulted in the conviction of one whom
(sic) is actually innocent.
Id. at PageID 13.
Respondent asserts Denson’s grounds for relief are procedurally defaulted and without
merit.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
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habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6 th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 	A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015). The Maupin jurisprudence is applied
below with respect to each potential area of procedural default.
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Analysis
Ground One: Racially Discriminatory Exercise of Peremptory Challenge
In his First Ground for Relief, Petitioner asserts he was denied his right to equal protection
under the Fourteenth Amendment when the State exercised a peremptory challenge to excuse Juror
No. 22. Denson presented this as his first assignment of error on direct appeal and the First District
decided it as follows:
{¶12} In his first assignment of error, Denson contends that the trial
court erred by permitting the state to exercise a peremptory
challenge to strike a prospective juror on the basis of his race, in
violation 	of 	the 	Equal 	Protection 	Clause 	of 	the 	Fourteenth
Amendment to the United States Constitution.
{¶13} “The Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to
consider the State's case against a black defendant.” Batson v.
Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
“The Constitution forbids striking even a single prospective juror
for a discriminatory purpose.” Flowers v. Mississippi, ––– U.S. –––
–, 139 S.Ct. 2228, 2244, 204 L.Ed.2d 638 (2019).
{¶14} Batson established a three-step process for evaluating claims
of racial discrimination. Id. at 2241. First, the defendant must
establish a prima facie case of discrimination, and if this burden is
satisfied, 	the 	state 	must 	provide 	race-neutral 	reasons 	for 	its
peremptory strikes. Id. at 2241. Third, the trial court must determine
whether the defendant has proven the prosecutor's stated reasons
were 	the 	actual 	reasons 	or 	instead 	were 	a 	pretext 	for
discrimination. Id.
{¶15} “The court must ‘assess the plausibility of’ the prosecutor's
reason for striking the juror ‘in light of all evidence with a bearing
on it.’” State v. Garrett, Slip Opinion No. 2022-Ohio-4218, ¶ 69,
quoting Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162
L.Ed.2d 196 (2005). “Relevant factors may include ‘the prosecutor's
demeanor; by how reasonable, or how improbable, the explanations
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are; and by whether the proffered rationale has some basis in
accepted trial strategy.” Id., quoting Miller-El v. Cockrell, 537 U.S.
322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
{¶16} 	Since 	peremptory 	challenges 	often 	involve 	a 	juror's
demeanor, the trial court's observations are of great importance in
evaluating credibility. Id. at ¶ 70. We defer to the trial court's
finding, and a finding of no discrimination will not be reversed
unless it is clearly erroneous. Id.
{¶17} At trial, the prosecutor told the trial court that he removed
Juror 22 because he seemed somewhat hesitant to convict based on
testimonial evidence alone, the same reason that other jurors had
been excused. This is a race-neutral explanation. Denson argues that
the state's race-neutral explanation was a pretext to strike an
African-American juror who expressed support of Denson because
of their shared race. Thus the question is whether the state did, in
fact, have a discriminatory motive for striking the juror.
{¶18} First, we defer to the trial court's finding because it is based
on an evaluation of credibility regarding the juror's hesitancy to
commit to convicting based on testimony alone. Reviewing the
record, the facts support the state's explanation. Juror 22 admitted
that it would be difficult for him to convict based on testimony alone
and hard to be fair and impartial, especially because the case
involved a black defendant. A guilty verdict would require choosing
between a black defendant and “calling a young child a liar,” which
would be difficult for him.
{¶19} Additionally, the state used a peremptory challenge on Juror
16, a white, female juror who was also hesitant to accept the
testimony of a child without the ability to question the child or hear
additional evidence. Three additional white jurors were excluded for
cause because they would require more than just testimony to find a
person guilty.
{¶20} On this record, we cannot conclude that the trial court's
determination that Denson failed to establish that the prosecutor had
a discriminatory motive for striking the juror was clearly erroneous.
{¶21} Accordingly, we overrule the first assignment of error.
State v. Denson, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
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federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). 	Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
In deciding Petitioner’s first assignment of error, the First District cited the relevant
Supreme Court precedent, Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits race-based
peremptory challenges by a prosecutor. 	A state criminal defendant can establish a prima facie
case of purposeful racial discrimination in the selection of jurors solely by proof of peremptory
challenges to exclude members of the defendant's race. Batson v. Kentucky, 476 U.S. 79 (1986).
The trial judge here accepted Denson’s prima facie case and required the prosecutor to provide a
race-neutral explanation.
Denson concedes that the prosecutor’s explanations was race neutral, to wit, in a case where
the direct evidence was only testimony from a minor victim, it was plausible that a prosecutor
would be unwilling to accept a juror who could not convict on that sort of testimony alone. Indeed,
the trial judge accepted challenges for cause as to prospective jurors who expressed more doubt
than Juror 22.
Petitioner offers no reason why the First District’s decision is in error. 	Hesitance about
accepting the direct testimony of a minor victim as sufficient for conviction in a sexual abuse case
is not known to be characteristic of African-Americans. 	Here the prosecutor did not have to
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conjure up that excuse after being challenged because Juror 22 had expressed his doubts before
the peremptory challenge was exercised. 	On this record there is no basis for saying the First
District unreasonably applied Batson. Petitioner’s First Ground for Relief should be dismissed.
Ground Two: Improper Bolstering of Victim’s Credibility in Violation of Due Process
In his Second Ground for Relief, Denson claims he was denied due process of law when
the trial court allowed three witnesses to testify to bolster the victim’s credibility. 	The three
witnesses involved are the victim’s mother, Tomika Hoskins; the victim’s great aunt, Schante
Williams; and Cincinnati Police Detective Dana Jones. At the time of the offense, Ms. Williams
was babysitting the victim and was Denson’s girlfriend.
Denson presented this claim on direct appeal and the First District decided it as follows:
{¶22} In his second assignment of error, Denson asserts that the trial
court deprived him of due process by allowing testimony from three
witnesses 	that 	supported 	the 	veracity 	of 	the 	child 	witness.
Specifically, 	Denson 	argues 	that 	the 	testimony 	of 	great-aunt,
mother, and Jones improperly bolstered the victim's credibility.
{¶23} Denson challenges the following testimony of great-aunt and
mother:
Prosecutor: Now, you've known [the victim] obviously her
whole life?
Great-aunt: Mm-hmm.
Prosecutor: Have you ever known her to lie?
Great-aunt: No, never.
Prosecutor: To your knowledge, has she ever told you a lie?
Great-aunt: No.
* * *
Prosecutor: Has [S.P.] ever made any kind of accusations
like this before?
Mother: Never.
Prosecutor: You've obviously known her her whole life?
Mother: Yes.
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Prosecutor: And in terms of telling lies, what can you tell
us?
Mother: That doesn't fit her description.
Prosecutor: Have you ever known her to lie?
Mother: Yes, but she tells on herself.
Denson also contends that Jones improperly bolstered S.P. by
testifying that the victim's ability to demonstrate how Denson made
her touch him and her consistency in reporting the allegations “lead
to her credibility as a child.”
{¶24} Denson did not object to the testimony, so we review for plain
error. See Crim.R. 52(B). Plain error exists where there is an
obvious deviation from a legal rule which affected the defendant's
substantial 	rights, 	or 	influenced 	the 	outcome 	of 	the
proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002). The burden is on the defendant to show a violation of his
substantial rights. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643, ¶ 14. Notice of plain error is taken with the
utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice. State v. Landrum, 53 Ohio
St.3d 107, 111, 559 N.E.2d 710 (1990).
{¶25} In general, a witness may not testify as to the veracity of the
statements of a child victim because it is the fact-finder who bears
the 	burden 	of 	assessing 	the 	credibility 	and 	veracity 	of 	the
witness. State v. Huff, 145 Ohio App.3d 555, 561, 763 N.E.2d 695
(1st Dist.2001). In State v. Boston, the Ohio Supreme Court held that
witness testimony expressing an opinion that the child victim's
allegations were truthful was improper “bolstering evidence.” State
v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (1989).
However, “only statements that directly support the veracity of the
witness are prohibited.” State v. Cashin, 10th Dist. Franklin No.
CA2008-11-138, 2009 WL 4651395, 2009-Ohio-6419, ¶ 20. This
distinction 	recognizes 	that, 	“indirect 	bolstering 	of 	a 	victim's
credibility is not the same as the direct rendering of an opinion as to
a victim's veracity that was involved in Boston.” Id.
{¶26} In this case, none of the witnesses offered an opinion as to the
truth of the sexual-abuse allegations against Denson. Great-aunt and
mother were not asked whether they believed the allegations.
[Cincinnati Police Detective Dana] Jones testified that the victim's
consistency and ability to demonstrate how Denson made her touch
him “lead to her credibility as a child.” Jones did not offer an opinion
on whether the allegations were truthful or whether the child had
been abused. Although the testimony may have indirectly bolstered
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the victim's credibility, the statements did not directly support the
child's veracity. See id. at ¶ 20 .
{¶27} Even if the testimony were improper, Denson did not
establish that the error affected the outcome of the trial. Here, the
victim testified and was subject to cross-examination. The jury was
able to hear the victim's testimony, observe her demeanor, and judge
her credibility independent of the other witnesses’ testimony.
{¶28} We overrule the second assignment of error.
State v. Denson, supra.
As to Ms. Williams and Ms. Hoskins, Denson’s second ground for relief is procedurally
defaulted because his trial attorney did not object to their testimony and the First District therefore
reviewed this assignment of error only for plain error. 	Applying Maupin, Ohio has a relevant
procedural rule requiring contemporaneous objection to trial court error so that error can be
corrected before it poisons the verdict. The First District enforced that rule by reviewing only for
plain error. 	An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a
procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538
F.3d 478, 511 (6 th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6 th Cir. 2006); White v. Mitchell,
431 F.3d 517, 525 (6 th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle,
271 F.3d 239 (6th Cir. 2001). 	Denson offers no excusing cause and prejudice for this procedural
default.
Federal habeas corpus is available only to correct federal constitutional violations. 	28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). 	"[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions. In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,
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67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6 th Cir. Apr. 23, 2018)(Thapar, J. concurring). 	To avoid
procedural default, a habeas petitioner must fairly present all of his habeas claims as constitutional
claims to the state courts.
As to assignment of error two, it is arguable that Denson did not present it as a
constitutional claim to the Ohio courts: his appellate brief cites only Ohio case law and makes the
generalized claim of a “due process” violation. Merely using talismanic constitutional phrases like
“fair trial” or “due process of law” does not constitute raising a federal constitutional issue.
Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th
Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe,
735 F.2d 684, 688-89 (2 nd Cir. 1984). “A lawyer need not develop a constitutional argument at
length, but he must make one; the words ‘due process’ are not an argument.” Riggins v. McGinnis,
50 F.3d 492, 494 (7th Cir. 1995).
Assuming this claim is preserved for merits review in this Court, Denson has not shown it
is contrary to or an objectively unreasonable application of “clearly established federal law.” In
the habeas context, this phrase means the holdings of cases decided by the United States Supreme
Court. No such case were cited in Denson’s brief on appeal or by the First District in deciding this
case. 	In particular, there can be no Confrontation Clause claim because the victim herself testified
and was subject to cross-examination. State v. Denson, supra, at ¶ 27.
Procedural Default as to the Entire Petition
Aside from the defaults of particular issues, Respondent argues the entire Petition is
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procedurally defaulted by Denson’s failure to complete Ohio Supreme Court review by filing a
memorandum in support of jurisdiction. 	To excuse that failure, Petitioner claims he could not
complete the required memorandum “due to his placement in segregation where he was deprived
of adequate opportunity to conduct research, drafting of his memorandum, and lacking funds for
copies, envelopes, and postage.” 	(Petition, ECF No. 1-1, PageID 13). Denson offers no
corroboration of this claim. As far as research, he does not suggests why he could not rely on the
appellate briefs already filed on his behalf. Nor does he offer any reasons why he did not present
this claim to the Ohio Supreme Court to attempt to obtain more time to prepare the memorandum.
In sum Denson has not proven excusing cause and prejudice to overcome his failure to file in the
Ohio Supreme Court. In addition to being without merit, Denson’s Petition should be dismissed
for failure to complete review by the Ohio Supreme Court.
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, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
January 12, 2026.
s/ Michael R. Merz
United States Magistrate Judge
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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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.
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