Etherson-Tabb v. Warden, Southeastern Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RYAN C. ETHERSON-TABB,
Petitioner, 	: 	Case No. 1:25-cv-00409
- vs - 	District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
NORMAN ROBINSON, WARDEN,
Southeast Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus action brought pro se by Petitioner Ryan Etherson-Tabb to obtain
relief from his convictions in the Scioto County Court of Common Pleas for drug trafficking and
possession of drugs and criminal tools (Petition, ECF No. 1). On the Court’s Order (ECF No. 3),
the Warden has filed the State Court Record (ECF No. 11) and a Return of Writ (ECF No. 12). In
the same Order, the Court set a reply date of twenty-one days after the Return was filed and then
reminded Petitioner of that deadline when it received the Return (ECF No. 13). 	However,
Petitioner has filed no reply.
Litigation History
On August 25, 2021, the Scioto County Grand Jury indicted Etherson-Tabb for aggravated
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drug trafficking in violation of Ohio Revised Code §§ 2925.03(A)(3) and (C)(1)(d) (Count 1),
aggravated drug possession in violation of Ohio Revised Code §§ 2925.11(A), and (C)(1)(c)
(Count 2), and possessing criminal tools in violation of Ohio Revised Code §§ 2923.24(A) and (C)
(Count 3).
After Petitioner waived his right to a jury trial, the parties agreed the trial judge should hear
together the evidence in support of his motion to suppress and evidence on the merits. After the
trial, Petitioner was found guilty and sentenced to the term of imprisonment he is now serving
(Judgment, State Court Record ECF No. 11, Ex. 7). 	Represented by new counsel, Petitioner
appealed to the Ohio Court of Appeals for the Fourth District, raising the following assignment of
error:
Whether the trial Court erred in denying appellant motion to
suppress which deprived him of substantial rights of the Fourth
Amendment 	of 	the 	United 	States 	Constitution 	and 	the 	Ohio
Constitution, Article 1, Section 14.
(Appellant’s Brief, State Court Record, ECF No. 11, Ex. 13, PageID 125). 	The Fourth District
affirmed (State v. Etherson-Tabb, 2024-Ohio-550 (4th Dist. Feb. 9, 2024) and the Ohio Supreme
Court declined jurisdiction over a further appeal. State v. Etherson-Tabb, 174 Ohio St. 3d 1403
(2024).
Petitioner filed his Petition in this Court on June 16, 2025, pleading one ground for relief
GROUND ONE: Whether Petitioner was deprived of due process
of his substantial rights of the 4th Amendment of the United States
and Ohio Constitution.
Supporting Facts: A traffic stop must comply with the Fourth
Amendment’s general reasonableness requirement, and must not go
beyond temporary detention when a reasonable prudent person
would not believe a crime had been committed; Thereby denying
petitioner’s motion to suppress a traffic stop that did not comply
with the fourth amendments general reasonableness requirement
violated due process.
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(Petition, ECF No. 1, PageID 5).
Analysis
Respondent asserts the merits review of the Petition is barred by Stone v. Powell, 428 U.S.
465 (1976), where the Supreme Court held that 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. In Riley v. Gray, 674 F.2d 522
(6th Cir. 1982), the Sixth Circuit 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 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. Here the state trial court did provide an evidentiary hearing and the Fourth District
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considered the Fourth Amendment claim on appeal. 	Petitioner has not filed a reply to contest
Respondent’s defense.
The Magistrate Judge concludes the State afforded Petitioner a full and fair opportunity to
litigate his Fourth Amendment claim and therefore merits review of that claim is barred by Stone.
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 28, 2026.
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
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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