Anderson v. Warden Noble Correctional Institution

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 1 of 6 PAGEID #: < pageID>
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
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.
DECISION AND ORDER
This habeas corpus action, brought pro se by Petitioner Brian Anderson to obtain relief from his convictions for drug and firearms offenses, is before the Court on Petitioner's Objections (ECF No. 15) to the Magistrate Judge's Report and Recommendations recommending dismissal (ECF No. 14).
As required by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b), the Court has reviewed the case de novo with particular attention to Petitioner's Objections. The Report focuses on Petitioner's two grounds for relief: failure to suppress seized evidence, asserted by Petitioner to violate the Fourth, Fifth, and Fourteenth Amendments, and conviction upon insufficient evidence in violation of the Due Process Clause of the Fourteenth Amendment. The Report concludes review of the merits of the Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976), and the Ohio Seventh District's decision that there was sufficient evidence is entitled to deference under the Antiterrorism and Effective Death Penalty Act of
1
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

2
1996 (Pub. L. No 104-132, 110 Stat. 1214) (the “AEDPA”).
Petitioner begins his Objections by noting that the courts used to expand the
scope of habeas corpus, but have recently constricted that scope. That is certainly
true of the Stone v. Powell decision and of AEDPA. But lower federal courts such as
this one must conform its decisions to those of Congress and the United States
Supreme Court. The Supreme Court has said "Unless we wish anarchy to prevail
within the federal judicial system, a precedent of this Court must be followed by the
lower federal courts no matter how misguided the judges of those courts may think
it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982); Litman v. Massachusetts Mut.
Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987).
I. Fourth Amendment Claim
Petitioner objects to the application of Stone because he claims he did not get
a full and fair opportunity to litigate his Fourth Amendment claims in that the
state courts did not allow introduction of the searching officer’s body cam footage or
the transcript of Petitioner’s municipal court preliminary hearing.
The motion to suppress hearing has been transcribed and is filed at State
Court Record, ECF No. 10-1. It contains no reference to proffering the preliminary
hearing transcript or the body cam footage. Challenged on this point in the Report,
Petitioner objects that he did indeed call these exclusions to the attention of the
Court of Appeals, but he cites filings made long after trial in variously titled pro se
filings treated by the Ohio courts as post-conviction petitions under Ohio Revised
Code § 2953.21. (See ECF No. 15, PageID 1016).
Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 2 of 6 PAGEID #: <pageID>

3
Ohio’s procedure for litigating Fourth Amendment claims parallels that in
the federal courts in prosecutions brought by the United States. The Ohio Rules of
Criminal Procedure provide for filing a pre-trial motion to suppress and for a
hearing on that motion outside the presence of a jury. Petitioner received that
process, including a hearing at which he could have called witnesses or tendered
exhibits. A trial court’s ruling on that motion is subject to appeal and the ruling was
appealed in this case. No case law known to this Court requires that the “full and
fair opportunity” requirement is satisfied only if a State allows Fourth Amendment
issues to be considered de novo after conviction. Because Ohio’s doctrine of res
judicata bars collateral consideration of matters which could have been raised on
direct appeal (See State v. Perry, 10 Ohio St. 2d 175 (1967)), Petitioner’s objection to
applying Stone is without merit. The Magistrate Judge’s recommendation to bar
consideration of Fourth Amendment claims is adopted and Petitioner’s Objections to
that application are overruled.
II. Due Process Claims (Fifth and Fourteenth Amendments)
The Magistrate Judge limited his consideration of Ground One to the Fourth
Amendment claim it contains. Petitioner objects that, as pleaded, Ground One also
includes due process claims under the Fifth and Fourteenth Amendments. The
substance of these clams again appears to be the failure or refusal to consider the
preliminary hearing transcript and the bodycam footage (or at least some portion of
the footage).
To prevail on such a claim, a habeas petitioner must show that the state
Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 3 of 6 PAGEID #: <pageID>

4
court decision of the claim was contrary to or an objectively unreasonable
application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
Petitioner has not made that showing. In particular, there is no Supreme Court
precedent known to the Court which requires admission of a preliminary hearing
transcript or an entire length of body cam footage at trial as a matter of due
process.
At several points in his Objections, Petitioner complains that he was not
allowed to participate during times when he was represented by counsel, which he
claims violates Faretta v. California, 422 U.S. 806, 835 (1975). Faretta protects the
right of a criminal defendant to represent himself in a criminal case. But there is no
constitutional right to hybrid representation, with a defendant representing himself
and also having counsel. McKaskle v. Wiggins, 465 U.S. 168 (1984). From many
examples in the State Court Record, it appears that Petitioner wished to participate
even when he had counsel. The Constitution does not recognize such a right.
III. Insufficient Evidence
In his Second Ground for Relief, Petitioner asserts he was convicted on
insufficient evidence. The Report concluded that the Seventh District Court of
Appeals applied the correct governing standard set forth in Jackson v. Virginia, 443
U.S. 307 (1979), and its application was objectively reasonable and therefore
entitled to deference under AEDPA.
The Objections focus on the asserted failure of the State to prove that
Petitioner knowingly possessed the shotgun he was convicted of possessing.
Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 4 of 6 PAGEID #: <pageID>

5
“Knowingly” is an essential element of the one of the offenses of which Petitioner
was convicted: Petitioner was charged and convicted of knowingly possessing a
piece of dangerous ordnance, a shotgun. But on direct appeal Petitioner did not
challenge proof of the knowingly element, only whether the weapon had been shown
to be operable. State v. Anderson, supra, ¶ 55. The Court went on to find there was
indeed sufficient proof of the other elements, including a stipulation that Anderson
was under a disability by virtue of a pending drug indictment in another county. Id.
Petitioner contests the finding that he knew he was in possession of the
shotgun (which was found between the passenger seat where he was seated and the
passenger door) by claiming it was covered by debris. (ECF No. 15, PageID 1023).
He cites no record reference for that asserted fact. He certainly did not testify to
that fact at trial: the trial transcript shows he did not testify. (ECF No. 10-2,
PageID 744).
IV. Conclusion
Having reviewed the Report de novo, the Court adopts it and overrules
Petitioner’s Objections. The Clerk will enter judgment dismissing the Petition with
prejudice. Because reasonable jurists would not disagree with this conclusion, the
Petitioner is denied a certificate of appealability and the Court certifies to the Sixth
Circuit that any appeal would be objectively frivolous and should not be permitted
to proceed in forma pauperis.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE
Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 5 of 6 PAGEID #: <pageID>

Case: 2:25-cv-00459-SDM-MRM Doc #: 16 Filed: 01/06/26 Page: 6 of 6 PAGEID #: < pageID>
6