Gasper v. Warden, Madison Correctional Inst.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MARK GASPER,
Petitioner, 	: 	Case No. 1:25-cv-00731
- vs - 	District Judge Jeffery P. Hopkins
Magistrate Judge Michael R. Merz
WARDEN,
Madison Correctional Institution,
:
Respondent.
DECISION AND ORDER; REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Mark Gasper to obtain relief from his
conviction for rape in the Hamilton County Court of Common Pleas, is before the Court on
Petitioner’s Motion for a Stay of these proceedings pending exhaustion of claims in the Ohio courts
(ECF No. 19).
Litigation History
On November 21, 2019, the Hamilton County Grand Jury returned an indictment charging
Gasper with seven counts of rape in violation of Ohio Revised Code § 2907.02(A)(1)(c)(State
Court Record, ECF No. 11, Ex. 1). A trial jury found Gasper guilty on Count One, but otherwise
not guilty (Verdict, State Court Record, ECF No. 11, Ex. 13). The trial court sentenced Gasper to
eleven years imprisonment on Count One. Id. at Ex. 18.
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Through new counsel, Gasper appealed to the Ohio First District Court of Appeals, raising
the following five assignments of error:
1. 	The trial court erred in failing to suppress the trial testimony of
the State’s expert witness.
2. 	The State of Ohio failed to introduce sufficient evidence to
sustain a conviction in violation of Appellant’s right to Due
Process of Law as guaranteed by Article I, Section 10 of the
Ohio Constitution and Fourteenth Amendment to the United
States Constitution.
3. 	The 	conviction 	for 	Rape 	under 	R.C. 	2907.02(A)(1)(c) 	is
contrary to the manifest weight of the evidence.
4. 	The trial court committed plain error by admitting evidence that
violated Evid.R. 404.(B).
5. 	The trial court erred in overruling Appellant’s Motion for New
Trial.
(Appellant’s Brief, State Court Record, ECF No. 11, Ex. 20, PageID 164-65). The First District
affirmed. State v. Gasper, 2023-Ohio-1500 (Ohio App. 1st Dist. May 5, 2023).
Gasper appealed to the Ohio Supreme Court, pleading as his sole proposition of law that “In
a prosecution for rape under R.C. 2907.02(A)(1)(c), the definition of substantial impairment in
State v. Zeh, 31 Ohio St.3d 99, 209 N.E.2d 414 (1987), does not apply to an impairment from a
permanent mental condition.” (Memorandum in Support of Jurisdiction, State Court Record, ECF
No. 11, Ex. 25, PageID 277). The Ohio Supreme Court accepted jurisdiction but affirmed. State
v. Gasper, 176 Ohio St.3d 563 (Oct. 8, 2024).
Gasper filed his Petition in this Court by depositing it in the prison mailing system on
October 3, 2025. He pleads the following grounds for relief:
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Ground One: The State of Ohio erred by failing to suppress
Nestheide's testimony involving the GSKQ.
Supporting Facts: Petitioner, Gasper argued in his first assignment
of error that the GSKQ is not an objectively verifiable measure of
sexual knowledge for purposes of assessing a person's capacity to
consent, 	that 	it 	is 	not 	generally 	accepted 	testimony 	in 	the
psychological field and therefore, Nestheide's report and testimony
involving 	the 	GSKQ 	was 	inadmissible. 	The 	State 	ultimately
decided, after some hard faught [sic] search for supporting case law,
that there is no single generally-accepted test that is better than
another. 	Nestheide also offered that a 2017 scientific paper
identified the GSKQ as a commonly-used tool to assess. sexual
knowledge. Nestheide used multiple tests to conclude that K.W. was
unable to consent. Moreover, Nestheide interviewed K. W. and
evaluated her personally to conclude that she was unable to consent.
Additionally, Gasper was able cross-examine [sic] Nestheide about
the GSKQ. The States decision creates a pure question of law that
resulted in a decision that was contrary to, or a mixed question of
law and facts that involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States under 28 USCS 2254 (d)(l).
Ground Two: The State of Ohio erred convicting Gasper based on
insufficient evidence of a substantial impairment.
Supporting 	Facts: 	Petitioner 	asserts 	that 	the 	evidence 	was
insufficient to convict him because the state failed to prove both that
K.W.'s 	ability 	to 	consent 	was 	substantially 	impaired 	by 	her
medication or low I.Q. and that Gasper had knowledge of any
impairment. The State subsequently found that although substantial
impairment may be established through expert testimony, it is not
required. Substantial impairment also may be established through
lay testimony. Id. K.W.'s I.Q. was 66 in 2003 and 76 by 2019.
Dreyer and Nestheide agree that K.W. has borderline intellectual
functioning. Additionally, K.W., who was in her 30s, had never
lived independently. Her "constellation of physical conditions"
required regular support. 	K.W. received services through DDS at
least until the age of majority and became eligible for DDS services
again in August 2019. K.W. testified that her DDS services should
never have been discontinued. And the Mayerson Center does not
evaluate normally functioning adults. 	Even through Petitioners
expert testifying that K.W. could consent to sex, Nestheide testified
that she could not. This case truly was a battle of the experts But
when the court viewed it in a light most favorable to the prosecution,
testimony that a victim had a learning disability satisfied the "mental
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condition" component of Ohio's Law. The States decision creates a
mixed question of law and facts that involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States under 28 USCS 2254 (d)(l).
GROUND THREE: The State of Ohio erred by admitting other-
acts that was [sic] prejudicial in swaying the jury against him.
Supporting Facts: Petitioner argues that the other-acts evidence in
which K. W. asserted that Gasper had killed her dog, Candy, should
have been excluded because it was not relevant to whether K.W. had
the 	ability 	to 	consent 	or 	resist 	due 	to 	a 	substantial 	mental
impairment. He further argues that this evidence was prejudicial in
swaying the jury against him. 	The State determined that the
accusation that Gasper killed K.W.'s dog was intrinsic to the offense.
K.W. testified that she believed Gasper had killed Candy so that
K.W. would move to Tennessee with him and because Candy barked
at Gasper when he was in K.W.'s bed, which was in her parents'
home. The testimony did not involve acts extrinsic to the offenses
for which Gasper was accused. Instead, they involved an act that, if
it occurred, would have helped facilitate Gasper's engaging in sex
with K.W.
The States decision creates a mixed question of law and facts that
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States under
28 USCS 2254 (d)(l) or it involved a question of pure fact which
resulted 	in 	a 	decision 	that 	was 	based 	on 	an 	unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding, 28 USCS 2254 (d)(2).
GROUND FOUR: The State Of Ohio Denied Petitioner His 5th
Amendment To The United States Constitution, Right To A Fair
Trial, Present A Complete Defense And Due Process As Has Been
Held In The 14th Amendment To The United States Constitution
When 	It 	Denied 	His 	Motion 	For 	New 	Trial 	Due 	To 	The
Misrepresentation To The Jury Concerning The Use Of Regularly
Prescribed Medicine.
Supporting Facts: Petitioner argued to the Supreme Court of Ohio
that the standard jury instruction on substantial impairment is flawed
because it implies that the term can relate only to a temporary
condition and that the use of that instruction in this case opened the
door for Gasper to be improperly convicted based on evidence of
K.W.'s having taken her usual, prescribed medication, which was
contrary to the State's original theory of the case.
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The Ohio Supreme Court found first clarified that the impairment
must exist at the time of the events in question. Gasper failed to
identify any decision or other source (outside of his own argument)
indicating that the language caused confusion for anyone in the 37
years since that decision was announced. Furthermore, Gasper failed
to object at trial to the jury instruction that he now challenges and
has not established that he suffered any prejudice from the trial
court's jury instruction that affected his substantial right. Thus
petitioner could not demonstrate plain error.
The states judgement creates a pure question of law that resulted in
a decision that was contrary to United States Supreme Court Law.
Even more, there may also be a mixed question of law and facts that
resulted in its decision being an unreasonable application. If this is
the case then AEDPA Deference does not apply because the state
arrived at a factual conclusion based upon an incomplete or incorrect
set of facts.
(Petition, ECF No. 1, PageID 5-12.)
In the Return of Writ, Respondent asserts Grounds One, Three, and Four are not cognizable
in habeas corpus because they do not state claims arising under the United States Constitution
(Return, ECF No. 12, PageID 2341). 	Respondent further asserts that all four of Petitioner’s
Grounds for Relief are barred by procedural default in failing to present them to the Ohio Supreme
Court for its discretionary review. Id. at PageID 2350.
In the Order for Answer, the Court set a deadline for Petitioner to file a reply to the Return
of Writ and in support of his Petition: twenty-one days after the Return was filed (Order, ECF No.
3, PageID 22-23). When the Return was filed, the Court reminded Petitioner and calculated the
reply date as February 16, 2026 (Order, ECF No. 13). On February 9, 2026, Petitioner sought and
received an extension of the reply date to March 9, 2026 (ECF No. 16). 	On March 4, 2026,
Petitioner sought a second extension of the reply date (ECF No. 17) which the Court denied
without prejudice because it was not signed as required by Fed.R.Civ.P. 11 (ECF No. 18). Instead
of signing and re-filing his request for a second reply date extension, Petitioner filed the instant
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Motion for Stay and Abeyance (ECF No. 19).
Motion to Stay and Hold in Abeyance
Petitioner seeks a stay of these proceedings to permit him to exhaust state court remedies on
Grounds One and Three (Motion, ECF No. 19, PageID 4662). 	In the alternative, he moves to
amend the Petition to assert only Grounds Two and Four. Id.
Before bringing a claim in habeas corpus under 28 U.S.C. § 2254 a petitioner must first
present that claim to the state courts for one complete round of ordinary appellate review.
O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999); see also Deitz v. Money, 391 F.3d 804, 808
(6th Cir. 2004) ("A federal court is also barred from hearing issues that could have been raised in
the state courts, but were not[.]"). If a habeas petitioner presents a claim on which he still has an
available state court remedy, that claim is said to be “unexhausted”. 	If on the other hand, a
petitioner makes a claim which he did not present for a full round of state review and there is no
state remedy available, the claim is said to be “procedurally defaulted.”
When there are unexhausted claims, it can be appropriate for the habeas court to stay its
proceedings under Rhines v. Weber, 544 U.S. 269 (2005), to allow a petitioner to exhaust without
risking the bar of the statute of limitations.
However, the Respondent does not assert any of Petitioner’s claims are unexhausted, but
rather that they are procedurally defaulted. 	Petitioner himself does not suggest any possible
remaining state court remedy for any of his claims and he has not filed any new state court
proceedings, so far as this Court is advised, since the Ohio Supreme Court affirmed his conviction
October 8, 2024.
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In correspondence with the Ohio State Public Defender’s Office1 , Petitioner learned of the
possibility of filing a delayed application to reopen his direct appeal under Ohio R. App. P. 26(B).
Rule 26(B) provides the sole remedy in Ohio law for ineffective assistance of appellate counsel.
State v. Murnahan, 63 Ohio St. 3d 60 (1992). That rule requires that an application be filed within
ninety days of judgment or August 3, 2023, in this case, more than two and one-half years ago. In
this Court’s experience, the First District Court of Appeals is unlikely to excuse that much delay.
Moreover the Public Defender was not optimistic on the merits.
Because Petitioner has not shown that there are any unexhausted state court remedies for
any of his claims, the Motion to Stay is DENIED.
MERITS
Petitioner has now missed the extended deadline for filing a reply, has not sought a deadline
beyond the one proposed in his unsigned motion, and has not filed a reply. The Magistrate Judge
will accordingly proceed to consider the merits of the case on the basis of the present record
without further delay.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
1 Attached to the Motion. Considering this correspondence is not prohibited by Cullen v. Pinholster, 563 U.S. 170
(2011), since it does not go to the merits of Petitioner’s claims, but to the issue of procedural default.
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demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6 th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). 	“Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] 	federal 	court 	may 	not 	review 	federal 	claims 	that 	were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). 	This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. 	The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. 	See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6 th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521, 527(2017)). Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002).
As Respondent notes in the Return, none of Gasper’s four grounds for relief was presented
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to the Ohio Supreme Court in Petitioner’s appeal to that Court. 	In his Motion for Stay and
Abeyance, he appears to blame that on omissions by his appellate attorney. 	But ineffective
assistance of appellate counsel can only act as excusing cause for a procedural default when it
occurs in a proceeding in which a litigant is entitled to appointed counsel. The right to appointed
counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). 	Ineffective assistance of counsel can excuse
procedural default only when it occurs in a proceeding where a defendant is constitutionally
entitled to counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where
there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins
v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d
708, 714 (N.D. Ohio 2002).
Because Petitioner’s Grounds for Relief were not presented to the Ohio Supreme Court on
direct appeal, they are procedurally defaulted. 	Petitioner has not offered excusing cause and
prejudice. Therefore the Petition must 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
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
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be permitted to proceed in forma pauperis.
March 16, 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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