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 ON MOTION TO EXPAND;
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Dunbar with the assistance of counsel1 , is
before the Court on Petitioner’s Request for Evidentiary Development to Add Video of Traffic
Stop (“Request”) which is embedded in Petitioner’s Traverse (ECF No. 15). 	The requested
expansion includes “(a) the dash-cam recording(s) in native format; (b) integrity hash(es); (c)
export log(s) and basic file metadata; and (d) chain-of-custody documentation sufficient to
authenticate the exhibit that the state courts considered.” Id. at PageID 381.
To ensure compliance with the record limitations imposed by Cullen v. Pinholster, 563
U.S. 170 (2011), the Court directed Respondent, in any response to the Request, to advise the
Court whether the dash cam footage was before the Ohio Fourth District Court of Appeals when
it affirmed denial of Petitioner’s motion to suppress (Order on Motion to Supplement, ECF No.
1 Current counsel assumed representation in this case at the time of direct appeal.
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16, PageID 384). Respondent replied that “Ms. Madison Ward, Deputy Clerk of Court for Gallia
County, Ohio informed the Office of the Ohio Attorney General that the dash cam footage was
provided to the Fourth Appellate District Court of Appeals.” (Response in Opposition, ECF No.
17, PageID 385-86). Thus expanding the record to include the dash cam footage would not violate
the evidence restriction imposed by Pinholster.
Respondent nonetheless opposes the Request to Expand on the ground that review of the
dash cam footage by this Court would violate the bar on habeas consideration of Fourth
Amendment claims imposed by Stone v. Powell, 428 U.S. 465 (1976). Petitioner has replied that
this case comes within the exception recognized in Stone allowing Fourth Amendment claims in
habeas where the state courts did not allow a petitioner a “full and fair” opportunity to litigate his
or her Fourth Amendment claims (Reply, ECF No. 19, PageID 396).
For reasons given below, the undersigned accepts Respondent’s position that Stone bars
merits consideration of Petitioner’s Fourth Amendment claims. 	Accordingly the Request to
Expand2 is denied and the Court proceeds to the substance of Petitioner’s claims. 	Given the
Court’s denial of the Request to Expand, the case is ripe for decision on the merits.
Litigation History
Sometime after June 25, 2020, a Gallia County Grand Jury returned an indictment charging
Petitioner with one count of possession of cocaine in violation of Ohio Revised Code §
2925.11(A); 	one 	count 	of 	trafficking 	in 	cocaine 	in 	violation 	of 	Ohio 	Revised 	Code 	§
2 Although not formally separating the two requests, Petitioner sought both an expansion of the record under Habeas
Rule 5 and discovery of the dash cam footage under Habeas Rule 6. The scope of both of those procedures is limited
by both Pinholster and Stone. Separating them for analysis would add nothing of substance. It appears, however, that
Petitioner has already received the dash cam footage in discovery in the trial court.
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2925.03(A)(2); one count of possession of heroin in violation of Ohio Revised Code § 2925.11(A);
and 	one 	count 	of 	trafficking 	in 	heroin 	in 	violation 	of 	Ohio 	Revised 	Code 	§
2925.03(A)(2)(Indictment, State Court Record, ECF No. 8, Ex. 1, PageID 93). Petitioner initially
pleaded not guilty and filed three motions to suppress evidence seized during a June, 2020, traffic
stop. The first of these motions sought to exclude evidence of controlled substance testing pursuant
to Ohio R. Evid. 702 and “constitutional principles of due process” (Motion, State Court Record,
ECF No. 8, Ex. 5, PageID 104) 3 . The second and third motions claimed the evidence was seized
in violation of Petitioner’s rights under the Fourth Amendment and the parallel provision of the
Ohio Constitution (Motion, State Court Record, ECF No. 8, Exs. 6 and 7, PageID 109, 113).
In separate journal entries, the trial court denied all three motions (State Court Record, ECF
No. 8, Exs. 9, 10, and 11, PageID 121, 133, 146). Petitioner then withdrew his not guilty plea and,
pursuant to a plea agreement, pleaded no contest to the trafficking in cocaine charge with the
remaining counts dismissed (State Court Record, ECF No. 8, Ex. 12, PageID 148). He appealed
to the Ohio Fourth District Court of Appeals, pleading the following assignments of error:
Assignment of Error: The trial court erred in denying Appellant-
Dunbar's motion to suppress.
Issue for Review
Under the Fourth and Fourteenth Amendments and Oh. Const. Art.
1, sec. 14, officers violate the Fourth Amendment if they (1) conduct
an inquiry that is unrelated to the traffic stop, but instead is aimed at
investigating other crimes, (2) that prolongs the stop, (3) without
reasonable suspicion.
Assignment of Error: The trial court erred in denying Appellant-
Dunbar's Daubert motion under Evid.R. 702.
Issue for Review
3 While styled as a motion to suppress, the substance of the motion was more in the nature of a motion in limine.
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Under Evid.R. 702, the Daubert decision, and the notice and
confrontation clauses of the Sixth Amendment, a trial court can only
admit scientifically reliable evidence. Here, inter alia, the massive
unexplained discrepancy in the tested weights of the contraband at
bar indicates scientific unreliability.
(Appellant’s Brief, State Court Record, ECF No. 8, Ex. 15, PageID 166).
The Fourth District affirmed. State v. Dunbar, 242 N.E. 3d 70 (Ohio App. 4th Dist. Apr.
10, 2024). The Ohio Supreme Court declined to exercise jurisdiction over a further appeal. State
v. Dunbar, 176 Ohio St. 3d 1411 (Nov. 26, 2024). 	Petitioner filed his amended habeas corpus
petition in this Court May 5, 2025, pleading the following grounds for relief:
Ground One: The petitioner’s Fourth Amendment rights were
violated when the traffic stop was unlawfully prolonged without
reasonable suspicion, as the officer’s inquiries went beyond the
scope of the initial stop and extended the detention without
sufficient cause.
Supporting 	Facts: 	The 	traffic 	stop 	was 	prolonged 	without
reasonable suspicion when Trooper Day, after addressing the
lighting violation, questioned the petitioner about unrelated matters,
including his travel plans and the rental agreement. Despite having
all necessary information, the officer continued the detention by
requesting the petitioner’s exit from the vehicle and conducting a
canine search. The officer relied on subjective factors such as
nervousness and inconsistencies in travel plans, which do not
constitute reasonable suspicion. This extension of the stop violated
the petitioner's Fourth Amendment rights.
Ground Two: The petitioner’s Sixth Amendment rights were
violated by the admission of scientifically unreliable evidence, as
discrepancies in the weight of the contraband were unexplained,
undermining the integrity of the forensic testimony and denying the
petitioner the ability to effectively challenge the evidence.
Supporting Facts: The forensic expert, Kara Klontz, testified that
there were significant discrepancies in the weight measurements of
the contraband, with one analyst recording a much higher weight
than another. Despite this, the prosecution failed to explain the cause
of the discrepancy. The crime lab director, Brandon Werry, also
could not determine the root cause of the weight difference, casting
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doubt on the reliability of the drug testing. The trial court admitted
this 	evidence 	without 	addressing 	these 	issues, 	violating 	the
petitioner’s right to confront and challenge the evidence.
(Amended Petition, ECF 4, PageID 61, 63).
Analysis
Ground One: Evidence Seized in Violation of the Fourth Amendment
In his First Ground for Relief, Petitioner alleges he was convicted on the basis of evidence
seized in violation of his Fourth Amendment rights during the traffic stop which yielded the
cocaine which formed the basis of his conviction.
Respondent asserts merits review of this Ground for Relief is barred by the Supreme
Court’s decision in Stone. Stone held 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 requires the district court to determine
whether state procedure in the abstract provides a 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 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,
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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.
Upon initial review of the Petition filed by counsel, the Court noted that it was not signed
and ordered that a signed version be filed and that the Petition be supplemented with a
“memorandum explaining (1) why his First Ground for Relief is not barred by Stone, and (2) what
federal constitutional authority supports his Second Ground for Relief.” (Order to Supplement,
ECF No. 2, PageID 25).
In response Petitioner asserted that the Sixth Circuit had crafted an “egregious error”
exception to Stone in Riley. At the cited place in Riley, Judge Celebrezze wrote:
Similarly, we decline to adopt the petitioner's interpretation of
Stone. We believe that a limited inquiry into the correctness of state
court decisions, occurring as a matter of course in the district courts,
would be inconsistent with Stone. Id. at 493 n.35, 96 S.Ct. at 3052
n.35. The language of Gamble, however, entails an examination of
each state decision which precipitates a habeas petition. This case
by case review is inconsistent with Stone's assumption that state
courts are as capable of deciding fourth amendment issues as federal
courts. When a petitioner alleges egregious error in the application
of fourth amendment principles, of a magnitude and nature similar
to the state court error present in Gamble, however, a federal habeas
court might be justified in concluding that an opportunity for a full
and fair hearing had not been afforded the petitioner.
674 F.2d at 526. Petitioner also cites Abdul—Mateen v. Hofbauer, No. 98-2323, 2000 U.S. App.
LEXIS 11788, 2000 WL 687653, at *3 (6th Cir. May 19, 2000). In both of these cases, the Sixth
Circuit upheld the Stone bar, despite recognizing a possible exception under Riley.
Petitioner also relies on Judge Douglas Cole’s decision suppressing evidence seized in an
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improperly extended traffic stop in United States v. Chivers, 2020 WL 5757135 (S.D. Ohio, Sept.
28, 2020). Judge Cole was, of course, directly applying the Fourth Amendment as the Supreme
Court interpreted it in Rodriguez v. United States, 575 U.S. 348 (2015), rather than considering
the Stone bar. The trial court and the Fourth District in this case were aware of Chivers and
Rodriquez and distinguished Chivers on the facts.
In Riley the Sixth Circuit referred to Gamble v. Oklahoma, 583 F.2d 1161(10th Cir. 1978),
as providing an example of egregious error in the application of Fourth Amendment principles
which might overcome the Stone bar. In that case the state courts had failed to discuss a recent
United States Supreme Court decision which was cited to them and was directly in point.
Whether or not the Fourth District misapplied Rodriquez or other Fourth Amendment
precedent in this case, it plainly considered Rodriquez and Chivers and distinguished them in
appropriate judicial fashion. Nothing like the egregious police misconduct in Gamble was present
here. Petitioner has not shown this case comes within the exception to Stone recognized in Riley.
As the Supreme Court explained in Stone, it was engaged in a cost-benefit analysis and
concluded extending the exclusionary rule to be applied to Fourth Amendment claims in habeas
was too costly of judicial time to be worth the additional possible corrective impact on police
behavior. 	Recognizing the Stone bar in this case is completely consistent with that rationale.
Petitioner’s First Ground for Relief should therefore be dismissed.
Ground Two: Violation of the Confrontation Clause: Scientifically Unreliable Evidence
In his Second Ground for Relief, Petitioner asserts that denial of his Daubert motion
violated Ohio R. Evid. 702 and his rights under the Confrontation Clause of the Sixth Amendment.
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In its Order to Supplement, the Court asked Petitioner’s counsel to state “what federal
constitutional authority supports his Second Ground for Relief.” (Order to Supplement, ECF No.
2, PageID 25). Petitioner’s counsel responded:
At trial, significant discrepancies arose regarding the tested weights
of contraband evidence. Expert Kara Klontz testified to substantial
weight differences (approximately 85 grams) between separate
analyses. The lab director, Brandon Werry, admitted uncertainty
regarding 	these 	discrepancies. 	These 	unexplained 	differences
undermined the reliability of the forensic testimony.
Consequently, the trial court erred by admitting scientifically
unreliable evidence. 	Admission of unreliable forensic testimony
directly 	violated 	standards 	under 	Daubert 	v. 	Merrell 	Dow
Pharmaceuticals. Daubert requires scientifically validated methods
and reliable application. The discrepancies in this case prevent
assurance of methodological reliability. Without reliability, Mr.
Dunbar could not meaningfully challenge or confront the evidence
against 	him. 	Therefore, 	admitting 	this 	evidence 	violated 	Mr.
Dunbar’s constitutional rights to a fair trial. This violation mandates
relief under Ground Two.
(Supplemental Memorandum, ECF No. 3-2, PageID 44-45).
Petitioner filed a Motion to Suppress and/or Exclude Evidence of Controlled Substance
Testing on October 27, 2020, listing thirty-two objections to the testing, and requesting an
evidentiary hearing prior to trial (Motion, State Court Record, ECF No. 8, Ex.5, PageID 104-07).
The trial judge filed an Entry denying the Motion on April 28, 2022. Id. at Ex. 11. 	The Entry
adverts to testimony by Kara Klontz, a Chemical Lab Supervisor at the Ohio State Highway Patrol
lab, and Brandon Werry from the same lab, implying that a hearing outside the presence of a jury
was held. Id. at PageID 146.
This is the testimony of which Petitioner complains. He states
At trial, significant discrepancies arose regarding the tested weights
of contraband evidence. Expert Kara Klontz testified to substantial
weight differences (approximately 85 grams) between separate
analyses. The lab director, Brandon Werry, admitted uncertainty
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regarding 	these 	discrepancies. 	These 	unexplained 	differences
undermined the reliability of the forensic testimony. Consequently,
the trial court erred by admitting scientifically unreliable evidence.
(Memorandum in Support, ECF No. 3-2, PageID 44, emphasis supplied).
What trial? 	Petitioner gives no record reference for this testimony, but the Magistrate
Judge assumes it is from the hearing on the Daubert motion. 	No transcript of that hearing was
filed with the State Court Record, but neither has Petitioner sought to have the record expanded
with the hearing transcript. 	The Fourth District adverts to testimony at the Daubert hearing
(Dunbar, supra, ¶ 4), so it must have had a transcript. Its opinion indicates the hearing was begun
on March 10, 2021, but then continued to April 11, 2022. Dunbar, supra at ¶¶ 58-59. The State
Court Record shows the Daubert motion was denied April 28, 2022, and the very next entry was
the Plea Agreement on September 9, 2022. 	(State Court Record, ECF No. 8, Exs. 11 and 12,
PageID 146, 148).
There was no trial in this case. Therefore the Confrontation Clause does not apply. The
crime lab witnesses whose testimony Dunbar challenges never became actual witnesses against
him because he did not take the case to trial, but pleaded no contest pursuant to a plea agreement.
In that written agreement, Dunbar expressly waived his confrontation right:
I understand by pleading no contest that I give up my right to a jury
trial or court trial, where I could confront and have my attorney
question witnesses against me, and where I could use the power of
the court to call witnesses to testify for me.
(Plea Agreement, State Court Record, ECF No. 8, Ex. 12, PageID 149).
Aside from waiver, there is the question of cognizability. Under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), a federal trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable." 	Id. at 589. 	But
Daubert is a decision interpreting the Federal Rules of Evidence. 	Those Rules apply only in
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federal court. 	Although Ohio has an evidence rule paralleling Daubert, no court has held that
Daubert itself is binding on Ohio courts, much less that failure to satisfy the Daubert standard
violates any part of the federal Constitution.
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,
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). Moreover, since
adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA"), a petitioner can prevail only if he or she can show the state court
decision is an objectively unreasonable application of Supreme Court holdings. Because there is
no Supreme Court holding in point, Ground Two fails to state a claim upon which habeas corpus
relief can be granted and must therefore be dismissed.
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
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the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
December 8, 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. 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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