Anderson v. Warden Noble Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
BRIAN L. ANDERSON,
Petitioner, 	: 	Case No. 2:25-cv-00459
- vs - 	Chief Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz
JAY FORSHEY, WARDEN, Noble
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is an action for a writ of habeas corpus; brought pro se by Petitioner Brian Anderson
pursuant to 28 U.S.C. § 2254. He seeks relief from his convictions for drug and firearms offenses
in the Monroe County Court of Common Pleas. The case is ripe for decision on the Petition (ECF
No. 3), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner’s
Reply (ECF No. 13).
Litigation History
On July 15, 2021, Petitioner was indicted for unlawful possession of dangerous ordnance
in violation of Ohio Revised Code § 2923.17(A), and having a weapon while under disability in
violation of Ohio Revised Code § 2923.13(A)(3)(Indictment, State Court Record, ECF No. 10, Ex.
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1). This original indictment contained a drug offense count which was replaced August 19, 2021,
when he was indicted for aggravated possession of drugs in violation of Ohio Revised Code §
2925.11, a second-degree felony due to the amount of methamphetamine involved, 25.89 grams
(more than five times the bulk amount of three grams). Id. at Ex. 3.
After denial of motions to suppress evidence alleged to have been unconstitutionally
seized, the case was tried to a jury which convicted Petitioner on all three counts. Id. at Ex. 12.
He was then sentenced to a term of imprisonment of six to nine years. He appealed to the Ohio
Court of Appeals for the Seventh District which affirmed. 	State v. Anderson, 211 N.E.3d 779
(Ohio App. 7th Dist. Mar. 23, 2023). 	The Ohio Supreme Court declined jurisdiction over a
subsequent appeal. State v. Anderson, 170 Ohio St.3d 1493 (Jul. 18, 2023).
On April 10, 2023, Petitioner filed pro se a motion for reconsideration of his appeal
pursuant to Ohio App. R. 26(A) which the Seventh District denied. State v. Anderson, 2023 WL
3561395. 	Subsequently, Petitioner filed an Application for Reopening under Ohio R. App. P.
26(B) which the Seventh District also denied. State v. Anderson, 2023 WL 3561395.
After a number of other post-judgment actions in the Ohio courts were unsuccessful,
Anderson filed his Petition in this case on April 18, 2025.1 Anderson pleads the following grounds
for relief:
Ground 	One: 	Petitioner’s 	rights 	under 	the 	4th, 	5th 	& 	14th
Amendments were violated by the Trial Court’s failure to Suppress
Evidence.
Supporting Facts: The Evidence was located and seized after
Police gained access under false pretenses, alleging a welfare check
that, if real, would have ended prior to the discovery and Seizure of
the evidence.
1 The Petition was not docketed until April 29, 2025, but had been deposited in the prison mail system on the earlier
date.
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Ground 	Two: 	Petitioner’s 	convictions 	are 	not 	Supported 	by
Sufficient Evidence.
Supporting Facts: State failed to submit evidence Sufficient to
prove “operability” as required by Ohio Law, or that the shotgun
was the property or Possession of the Petitioner rather than that of
the car’s owner and operator.
(Petition, ECF No. 3).
Analysis
Ground One: Failure to Suppress Unconstitutionally Seized Evidence
In his First Ground for Relief, Petitioner asserts the Ohio courts violated his Fourth, Fifth,
and Fourteenth Amendment rights by failing and refusing to suppress certain evidence.
Although Anderson litigated both Fourth and Fifth Amendment claims in the trial court
and on direct appeal to the Seventh District, he carried forward only the Fifth Amendment claim
to the Ohio Supreme Court (Compare Appellant’s Brief, State Court Record, ECF No. 10, Ex. 15
with Memorandum in Support of Jurisdiction, Id. at Ex. 21, PageID 207). 	Although he mentions
the Fifth Amendment in his First Ground for Relief in this Court, he does not argue that claim at
all, but confines his argument to the Fourth Amendment. 	This Report will treat the Fifth
Amendment claim as abandoned and analyze only the Fourth Amendment claim.
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that
question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court
to determine whether state procedure in the abstract provides full and fair opportunity to litigate,
and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim
was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
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unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept
of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R. Crim. P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.
5(A). These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.
Id. at 526.
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary
hearing in the state court was not required by due process and followed its prior conclusion that
“opportunity means opportunity . . . the state court need do no more than ‘take cognizance of the
constitutional claim and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan,
560 F.2d 1298, 1302 (6th Cir. 1977).
Consistent with Moore and with two of the three votes in Bradley,
we make clear that the Powell "opportunity for full and fair
consideration" means an available avenue for the prisoner to present
his claim to the state courts, not an inquiry into the adequacy of the
procedure actually used to resolve that particular claim.
Id. at 639-40.
Respondent asserts merits review of the Fourth Amendment claim is barred in this case by
the Supreme Court’s decision in Stone. 	Petitioner responds that Respondent has misread Stone
(Traverse, ECF No. 13, PageID 970-73). He relies on Withrow v. Williams, 507 U.S. 680 (1993),
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for the proposition that Stone does not deprive federal courts of jurisdiction over Fourth
Amendment claims, but only decides as a matter of equitable discretion that “the court ought not
to entertain them [Fourth Amendment claims] when the petitioner has already had an opportunity
to litigate them fully and fairly.” 507 U.S. at 718. Petitioner reads Stone as “allow[ing habeas]
relief while making it discretionary rather [th]an mandatory, ‘where the State· has provided an
opportunity for full and fair litigation of a Fourth Amendment claim.’” Id. at PageID 972. He also
read Stone as making habeas relief mandatory when the state courts have not provided a full and
fair opportunity to litigate the claim. Id.
Petitioner provides an additional reading of Stone to supports his position:
discretionary relief would still [be] available under the plain and
unambiguous language of Stone had the Petitioner received a full
and fair opportunity to litigate his claim in the state court, where the
state 	court's 	decision 	violates 	federal 	law 	or 	involves 	an
unreasonable application of federal law as defined by the United
States Supreme Court.
Id.
Petitioner’s reading of Stone is not correct. In Stone the Supreme Court exercised its own
equitable discretion on a national basis to preclude habeas consideration of Fourth Amendment
claims in the District Courts if the state court opportunity to litigate had been full and fair; it did
not confer discretion on the District Courts to hear those claims. Sixth Circuit cases which have
followed Stone have made that reading clear; Petitioner cites no case in which the Sixth Circuit
has held Stone confers discretion on the District Courts to hear Fourth Amendment claims.
Going to the merits of the Fourth Amendment claim, Petitioner argues bodycam footage
shows the searching police officer lied “about the shotgun having been in plain sight.” 	Id. at
PageID 973. However, the bodycam footage has not been made part of the State Court Record
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before this Court 2 . 	It was part of the appellate record and the Seventh District viewed it as is
evident from its opinion. Regarding visibility of the shotgun, the court found:
{¶7} When the door opened, the deputy viewed a sawed-off shotgun
between the passenger seat and the passenger door. He could see it
violated the law as a dangerous ordnance (a shotgun with less than
18 	inches 	of 	barrel 	or 	less 	than 	26 	inches 	in 	overall
length). (Supp.Tr. 12-13). The shotgun was within easy access of
Appellant. (Supp.Tr. 13-14). While Appellant stepped from the car,
the deputy asked if the gun was loaded. From the deputy's next
statement on the body cam, it seems Appellant said it was not loaded
(and the deputy testified at trial that Appellant said it was not
loaded).
State v. Anderson, supra. If the body cam showed the officer was lying, it would have been in
Petitioner’s interest to call that contradiction to the attention of the Court of Appeals, but the quoted
finding does not suggest that happened.
Petitioner asserts the state court process was not full and fair because he was not allowed
to present the transcript of his preliminary hearing that occurred in municipal court (Traverse, ECF
No. 13, PageID 974-75). He gives no record reference to show how this preclusion occurred. The
undersigned has read the transcript of the suppression hearing (ECF No. 10-1) and finds no place
where the preliminary hearing transcript was offered into evidence. In any event, Petitioner has
not shown any way in which the exclusion of that transcript made a difference to the outcome; his
statement that it did is completely uncorroborated.
Petitioner argues that the term “occupied structure” in Ohio Revised Code § 2909.0l(C) be
interpreted to cover this case. 	In interpreting a statute a court should:
1. 	Decide what purpose ought to be attributed to the statute and to
any subordinate provision of it which may be involved; and then
2 It is uncommon for the State Court Record filed in habeas cases to include trial court exhibits because they are rarely
needed to decide the case and their storage, particularly guns and drugs, would create logistical difficulties for the
Court.
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2. 	Interpret the words of the statute immediately in question so as
to carry out the purpose as best it can, making sure, however,
that it does not give the words either (a) a meaning they will not
bear, or (b) a meaning which would violate any established
policy of clear statement.
Hart and Sacks, THE LEGAL PROCESS (Eskridge & Frickey ed. 1994), p. 1169. 	It is difficult to
imagine what possible purpose the General Assembly could have had in mind that would support
applying the term “occupied structure” to an unmodified car pulled to the side of the road to
accommodate the drug-induced stupor of its occupants. In any event Petitioner cites no Ohio court
which has adopted such an extreme interpretation.
Because Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim
in the state courts, this Court may not reach the merits of that claim. Petitioner’s First Ground for
Relief should be dismissed.
Ground Two: Insufficient Evidence
In his Second Ground for Relief, Petitioner asserts his conviction is not supported by
sufficient evidence. He claims there was insufficient evidence of operability of the shotgun, of his
ownership of it, or of his possession of it.
On direct appeal, Petitioner claimed both that there was insufficient evidence and that the
convictions related to the firearm were against the manifest weight of the evidence. In this Court
Anderson pleads only the insufficiency claim which is appropriate because a manifest weight claim
is not cognizable in habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).
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.
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Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). Petitioner
is correct that this law was clearly established at the time of his direct appeal. 	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 v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). 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. 237 (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
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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-
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). 	When reviewing a claim for sufficient
evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,
567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference
should be given to the trier-of-fact's verdict under Jackson v. Virginia 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 Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.
Matthews, 567 U.S. 37, 43 (2012). 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, ___, 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.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
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Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). 	The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Petitioner presented his claims regarding the sufficiency and weight of the evidence
together as his second assignment of error. The Seventh District decided the sufficiency claim as
follows:
¶45} Appellant's second assignment addresses two different legal
doctrines, contending:
“APPELLANT'S 	CONVICTIONS 	FOR 	UNLAWFUL
POSSESSION OF A FIREARM AND POSSESSION OF
A 	FIREARM 	UNDER 	A 	DISABILITY 	ARE 	NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND ARE
AGAINST 	THE 	MANIFEST 	WEIGHT 	OF 	THE
EVIDENCE.”
{¶46} Whether the evidence is legally sufficient to sustain a
conviction is a question of law dealing with adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An
evaluation of witness credibility is not involved in a sufficiency
review, as the question is whether the evidence is sufficient if taken
as true. State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, ¶
79, 82 (2002); State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d
765 (2001). In other words, sufficiency involves the state's burden
of production rather than its burden of persuasion. Thompkins, 78
Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring). In
reviewing the sufficiency of the evidence, the court views the
evidence in the light most favorable to the prosecution to ascertain
whether some rational juror could have found the elements of the
offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio
St.3d 123, 138, 694 N.E.2d 916 (1998).
{¶47} The elements of having a weapon while under disability are
to “knowingly acquire, have, carry, or use any firearm or dangerous
ordnance, if * * * under indictment for or has been convicted of any
felony 	offense 	involving 	the 	illegal 	possession, 	use, 	sale,
administration, 	distribution, 	or 	trafficking 	in 	any 	drug 	of
abuse.” R.C. 2923.13(A)(3) (“[u]nless relieved from disability”),
(B) (third-degree felony). The parties stipulated Appellant was
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under indictment for felony possession of drugs in Summit County
at the time of his arrest in this case. (Tr. 4, 104, 176).
{¶48} The elements of unlawful possession of a dangerous ordnance
are to “knowingly acquire, have, carry, or use any dangerous
ordnance.” R.C. 	2923.17(A), (D) (fifth-degree 	felony). 	The
definition 	of 	dangerous 	ordnance 	includes 	a 	“sawed-off
firearm.” R.C. 	2923.11(K)(1). See 	also R.C.
2923.11(L)(5) (excluding “a dangerous ordnance that is inoperable
or inert and cannot readily be rendered operable or activated, and
that is kept as a trophy, souvenir, curio, or museum piece”). A
sawed-off firearm is “a shotgun with a barrel less than eighteen
inches long, or a rifle with a barrel less than sixteen inches long, or
a shotgun or rifle less than twenty-six inches long overall.” R.C.
2923.11(F).
{¶49} In the first part of this assignment of error, Appellant contests
whether the state sufficiently demonstrated the gun was operable.
He claims it was mere speculation to find the weapon could have
fired a live round. Without claiming there was supporting evidence
or suggesting this was the case here, Appellant provides an example
situation, claiming a gun could contain a firing pin from a different
brand of gun so that it appears to be operable during a dry-fire but
would not precisely align to fire a live round.
{¶50} A firearm is defined as “any deadly weapon capable of
expelling or propelling one or more projectiles by the action of an
explosive or combustible propellant * * * includ[ing] an unloaded
firearm, and any firearm that is inoperable but that can readily be
rendered 	operable.” R.C. 	2923.11(A) (applicable 	to R.C.
2923.11 to 2923.24), (B)(1). Clearly, an unloaded firearm meets the
definition of a firearm, and Appellant does not argue otherwise.
{¶51} “When determining whether a firearm is capable of expelling
or propelling one or more projectiles by the action of an explosive
or 	combustible 	propellant, 	the 	trier 	of 	fact 	may 	rely 	upon
circumstantial 	evidence, 	including, 	but 	not 	limited 	to, 	the
representations and actions of the individual exercising control over
the 	firearm.” R.C. 	2923.11(B)(2). 	Thus, 	when 	a 	gun 	is 	not
recovered, 	the 	state 	can 	use 	circumstantial 	evidence 	of
operability. See State v. Murphy, 49 Ohio St.3d 206, 209, 551
N.E.2d 932 (1990) (“To require the state to produce the actual
firearm or empirical evidence would frustrate the intent of the
General Assembly.”). The statutory reference to circumstantial
evidence is not limited to cases where a gun was never recovered;
rather, it generally applies in all cases involving the definition of a
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firearm. See R.C. 	2923.11 (definitions 	as 	used 	in R.C.
2923.11 to 2923.24). Therefore, direct evidence through the test
firing of a live round is not legally mandated, especially where to do
so would be considered unsafe. See, e.g., State v. Coleman, 2d Dist.
Montgomery No. 27702, 2018-Ohio-2214, 2018 WL 2938325, ¶
37 (where 	the 	detective 	testified 	a 	test-fire 	would 	be
dangerous); State v. Tillman, 6th Dist. Fulton No. F-11-006, 2012-
Ohio-5265, 2012 WL 5508269, ¶ 15 (where an officer testified he
unloaded the recovered gun, pulled the trigger, and observed the
firing pin was working properly).
{¶52} Most notably, the Supreme Court has concluded that although
operability (or capacity to be readily rendered operable) must be
established by the state, “proof of the existence of a firearm may be
based on lay testimony, and is not dependent on an empirical
analysis of the gun.” Murphy, 49 Ohio St.3d at 209, 551 N.E.2d 932,
modifying State v. Gaines, 46 Ohio St.3d 65, 545 N.E.2d 68 (1989).
We additionally point out the Gaines case relied on the former,
stricter rule of circumstantial evidence. Gaines, 46 Ohio St.3d at 72,
545 N.E.2d 68, citing State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d
897 (1974). Currently, “when the state relies on circumstantial
evidence to prove an element of the offense charged, there is no
requirement that the evidence must be irreconcilable with any
reasonable 	theory 	of 	innocence 	in 	order 	to 	support 	a
conviction.” State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492
(1991), overruling Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897.
Rather, circumstantial evidence inherently possesses the same
probative value as direct evidence. State v. Treesh, 90 Ohio St.3d
460, 485, 739 N.E.2d 749 (2001).
{¶53} A shotgun with 12 inches of barrel (with a curve handle,
adding only another 6 inches or so) was prominently located in the
space between the front passenger seat and the passenger door.
Appellant was in that passenger seat. Appellant told the deputy the
gun was not loaded, without claiming it was inoperable. (Tr. 129,
136-137). Photographs of the gun (with and without a tape measure)
were admitted into evidence. (St. Ex. 4 & 5). As the deputy
explained, the shotgun had a trigger, a hammer, and an intact firing
pin. He considered it unsafe to attempt to test fire the shotgun with
a live round due to the sawed-off barrel (and what he believed was
a pistol grip modification). He conducted a “dry fire,” cocking the
hammer, pulling the trigger, and noticing the firing pin released as
expected.4 (Tr. 135-137).
{¶54} In conducting our sufficiency review, all of the evidence is to
be considered in the light most favorable to the prosecution,
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including reasonable inferences. State v. Filiaggi, 86 Ohio St.3d
230, 247, 714 N.E.2d 867 (1999); Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The question is merely
whether “any” rational trier of fact could have found the contested
elements were adequately established. State v. Getsy, 84 Ohio St.3d
180, 193, 702 N.E.2d 866 (1998), quoting Jackson, 443 U.S. at 319,
99 S.Ct. 2781. Considering the totality of the circumstances, some
rational juror could conclude the shotgun satisfied the definition of
a firearm based upon the totality of the circumstances indicating
operability.
{¶55} The remaining elements of the weapons offenses are not
contested (emphasis sic), but we nevertheless observe the state
presented sufficient evidence of all elements of unlawful possession
of a dangerous ordnance in violation of R.C. 2923.17(A) and having
a weapon while under disability in violation of R.C. 2923.13(A)(3).
Notably, a person can “have” an object through immediate physical
possession or constructive possession, which involves dominion and
control. State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351
(1976). “Ownership does not need to be proven and circumstantial
evidence 	can 	be 	relied 	upon 	to 	establish 	constructive
possession.” State v. Floyd, 7th Dist. Mahoning No. 18 MA 0106,
2019-Ohio-4878, 2019 WL 6358472, ¶ 16. A rational juror could
find Appellant knowingly possessed a firearm, which was a type of
dangerous ordnance due to the fact the shotgun's measurements
placed it in the category of a sawed-off firearm.
State v. Anderson, supra.
As can readily be seen from the Seventh District’s decision, the only element Petitioner
challenged on direct appeal was the shotgun’s operability. 	He did not challenge findings about
possession or ownership. 	In fact, ownership is not an element of the two firearms offenses of
which he was convicted, as the Seventh District held. 	His claim that there was insufficient
evidence of the element of possession is procedurally defaulted because he did not submit it to the
Seventh District and he has offered no excusing cause and prejudice. Before a petitioner may be
heard on a claim, he must have presented it as a federal constitutional claim to the state courts.
O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999).
Petitioner asserts the State failed to prove the shotgun was operable because the only
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testimony was that the arresting officer dry-fired it once. His summary of the facts in evidence is
accurate, but then he relies on cases finding operability and implicitly argues that, because the
evidence here was not similar, it must be insufficient. However, the question of what is required
to prove an element of a state crime is itself a question of state law and the Seventh District held
that under the circumstances of this case, where firing a live round would have been too dangerous,
dry-firing was sufficient.
Petitioner’s Second Ground for Relief should be denied on the merits.
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.
November 21, 2025.
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. 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
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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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