Dunbar v Warden, Belmont Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
DEMITRI DUNBAR,
Petitioner, 	: 	Case No. 2:25-cv-00435
- vs - 	District Judge James L. Graham
Magistrate Judge Michael R. Merz
SHELBIE SMITH, WARDEN,
Belmont Correctional Institution,
:
Respondent.
DECISION AND ORDER
This habeas corpus case, brought by Petitioner Dunbar with the assistance of counsel, is
before the Court on Petitioner’s Objections (ECF No. 21) to the Magistrate Judge’s Decision and
Order denying expansion of the record and Report and Recommendations recommending that the
Petition be dismissed with prejudice and that the Court deny a certificate of appealability
(“Report,” ECF No. 20).
Standard of Review
Petitioner requests de novo review of the asserted errors by the Magistrate Judge
(Objections, ECF No. 21, PageID 413). 	Ordinarily a request to expand the record is a non-
dispositive pre-trial matter and a magistrate judge’s decision would be reviewed only for clear
error. In this case, however, the Magistrate Judge’s exclusion of the dash cam footage is based on
his recommendation to dismiss the Fourth Amendment claim under Stone v. Powell, 428 U.S. 465
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(1976). The Court has reviewed de novo that recommendation and the recommendation to deny a
certificate of appealability and rules as follows.
Request to Expand
In his Traverse to the Return of Writ, Petitioner had requested that the record be expanded
to include the dash cam footage of the traffic stop which resulted in the charges against Petitioner.
The record to be considered on the merits in habeas corpus is limited to what was before the state
courts which considered the case. 	Cullen v. Pinholster, 563 U.S. 170 (2011). 	Having received
satisfactory assurance that that the dash cam footage had been part of the appellate record, the
Magistrate Judge nevertheless excluded it, concluding Petitioner’s Fourth Amendment claim was
barred from merits consideration by Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d
1067 (1976)(Report, ECF No. 20, PageID 402).
Petitioner objects that “de novo review should direct lodging first.” (ECF No. 21, PageID
413). The Court disagrees. What is being reviewed de novo is the Magistrate Judge’s decision
not to expand the record to include this item. If that decision were erroneous, it would be reversed
and the dash cam footage would come in. 	But Petitioner is not entitled to that relief before
obtaining reversal of the Fourth Amendment recommendation, which is not forthcoming. 	(See
below.)
Petitioner relies on Riley v. Gray, 674 F.2d 522 (6th Cir. 1982), and Abdul-Mateen v.
Hofbauer, No. 98-2323, 2000 WL 687653, at *3 (6th Cir. May 19, 2000), as recognizing a possible
exception to Stone for truly egregious substantive Fourth Amendment violations. 	The Report
considered those two cases, noted that in neither one of them had the Sixth Circuit actually found
the exception applied. 	Petitioner also cites Rodriguez v. United States, 575 U.S. 348 (2015),
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claiming it “supplies a bright-line time-added rule, and the filings frame Ground One around
“seconds and sequence” that the dash-cam exhibit captures.” But Rodriquez is a federal criminal
case to which the Fourth Amendment is applicable without any consideration of the Stone v. Powell
bar. That is, Rodriquez does not even inferentially impact the Stone issue.
Because Stone v. Powell prohibits this Court’s consideration of Petitioner’s Fourth
Amendment claim, the Magistrate Judge’s denial of expansion of the record to include the dash
cam footage is affirmed because consideration of that footage is prohibited by Stone. 	The
Magistrate Judge’s recommendation to decline merits review of Petitioner’s Fourth Amendment
claim is adopted and the Clerk will therefore enter judgment dismissing the Petition with prejudice.
Certificate of Appealability
The Report recommends denying a certificate of appealability “because reasonable jurists
would not disagree with this conclusion” that merits review of Petitioner’s Fourth Amendment
claim is barred by Stone. Petitioner criticizes that language as conclusory, but offers no evidence
of any reasonable jurist who has disagreed with the Magistrate Judge’s conclusions. 	If a legal
proposition is debatable, it seems probable that there would be evidence in the vast collection of
reported and searchable judicial decisions where some judge has in fact debated it. 	If, instead,
“debatable” means only that an issue is contested in the case sub judice, that would please no limit
on appeals at all. Who are the reasonable jurists who support Petitioner’s position? They are not
identified in Petitioner’s filings.
Accordingly, the Magistrate Judge’s recommendation to deny a certificate of appealability
is adopted. Petitioner may, of course, apply to the Sixth Circuit for a certificate.
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Conclusion
Accordingly, the Report and Recommendations (ECF No. 20) are ADOPTED, Petitioner’s
objection (ECF No. 21) is OVERRULED, and the Petition is DISMISSED.
The Clerk will enter judgment dismissing the Petition with prejudice and denying a
certificate of appealability.
March 3, 2026. 	s/ James L. Graham_______
James L. Graham
United States District Judge
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