Hashi v. Cook

          IN THE UNITED STATES DISTRICT COURT                            
          FOR THE SOUTHERN DISTRICT OF OHIO                              
             EASTERN DIVISION AT COLUMBUS                                


ABDI HASHI,                                                               

                   Petitioner,  :  Case No. 2:21-cv-2772                 


    - vs -                        Chief Judge Algenon L. Marbley         
                                  Magistrate Judge Michael R. Merz       

BRIAN COOK, Warden,                                                       
  Southeast Correctional Institution,                                    

                               :                                         
              Respondent.                                                
       SUPPLEMENTAL REPORT AND RECOMMENDATION                            

    This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 17) to the 
Magistrate Judge’s Report and Recommendation recommending the Petition be dismissed (Report, 
ECF No. 16).  Chief Judge Marbley has recommitted the case for reconsideration in light of the 
Objections (ECF No. 18).                                                  

Background of the Case                                                    

    The Objections begin with a two-pages recitation of facts which Petitioner regards as 
salient (ECF No. 17, PageID 1159-60).  The Objections do not attempt to show how these 
assertions of fact overcome the findings of fact made by the Ohio Fifth District Court of Appeals 
in affirming the conviction.  State v. Hashi, 2020-Ohio-177 (Ohio App. 5th Dist. Jan. 22, 2020).  Those 
findings are quoted at length in the Report (ECF No. 16, PageID 1139-41).  State court findings 
of fact are binding in later habeas proceedings unless the petitioner shows, by clear and convincing 
evidence, that the state court findings are clearly erroneous.  28 U.S.C.  § 2254(d)(2).  The evidence 
relied on for such a showing must already be within the state court record.  Cullen v. Pinholster, 
563 U.S. 170 (2011).                                                      


                           Analysis                                      

First and Second Grounds for Relief:  Violations of the Fourth Amendment 


    In Grounds for Relief One and Two, Petitioner claims his conviction was obtained with 
evidence seized from him in violation of his Fourth Amendment rights.  The Report concluded 
that consideration of these claims on the merits was precluded by Stone v. Powell, 428 U.S. 465 
(1976)(Report, ECF No. 16, PageID 1139-43).                               
    Petitioner objects that Stone should not be applied here because “[t]he failure of underlying 
courts to properly apply controlling constitutional standards and United States Supreme Court 
precedent undermines the legitimacy of the proceedings resulting in the denial of a fair opportunity 
for consideration.”  (Objections, ECF No. 17, PageID 1160-61).  Petitioner acknowledges that 
Ohio’s system of adjudicating Fourth Amendment claims meets Stone’s standards (Objections, 

ECF No. 17, PageID 1161, citing Riley v. Gray, 674 F.2d 522, 526 (6th Cir.1982).  Nevertheless, 
Hashi argues:                                                             
         The  failure  of  underlying  courts  to  properly  apply  controlling 
         constitutional standards and United States Supreme Court precedent 
         undermines the legitimacy of the proceedings resulting in the denial 
         of a fair opportunity for consideration. . . . This issue, however, 
         hinges on whether consideration which incorrectly applies the law 
         amounts  to  the  requisite  level.  .  .  .  There  exists  a  fundamental 
         distinction between the ability to access a hearing and the ability to 
         access a fair hearing. The misapplication of prevailing law blunts the 
         otherwise sharp blade of the judicial system and erodes confidence in 
         the decisions rendered thereby.                                 

Id. at PageID 1160-61.                                                    
    Paraphrased, this amounts to arguing that if the state courts got the Fourth Amendment 
issues really wrong, the habeas court can put Stone aside and decide the merits of the Fourth 
Amendment claims.                                                         
    Hashi cites no authority in support of this supposedly “fundamental distinction.”  Instead 
he cites United States v. Frady, 456 U.S. 152, 165 (1982), and Jackson v. Virginia, 443 U.S. 307, 
332 (1979)(Objections, ECF No. 17, PageID 1161).  These cases come nowhere near recognizing 
any such distinction.  Frady holds the procedural default analysis developed in § 2254 cases by 
Wainwright v. Sykes, 433 U.S. 72 (1977) and its progeny is fully applicable to § 2255 motions.  
Jackson holds the requirement for proof beyond a reasonable doubt in criminal cases is a 
constitutional requirement under the Due Process Clause.  Thus Hashi has not shown the existence 
of the fundamental distinction he claims.  Moreover, the Objections make no attempt to apply thus 
distinction:  they do not attempt to show where the Fifth District’s analysis of the Fourth 
Amendment claims is wrong.                                                
    Hashi’s Objections to the dismissal of Grounds One and Two are without merit. 

Ground Three: Admission of Evidence in Violation of the Confrontation Clause 

    Hashi claimed on direct appeal that his “confrontation right was violated by the trial court's 
decision to allow surrogate testimony regarding two reviews by other chemists of the testing 
analyst's work.”  The Fifth District decided this claim on the merits and the Report concluded that 
decision was a reasonable application of relevant Supreme Court precedent.  The Report noted that 
Hashi’s argument conflated the Confrontation Clause question with the question of whether a 
proper foundation had been laid for admitting expert testimony on analysis of the drugs in suit 
(Report, ECF No. 16, PageID 1147-49).  The Report noted these issues had to be separated because 

the Confrontation Clause claim raised a constitutional question, but the foundation argument did 
not because Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), did not impose 
a constitutional rule Id. at PageID 1148.                                 
    Petitioner’s Objections continue to conflate these two questions (Objections, ECF No. 17, 
PageID 1162).  Agent Congleton was permitted to testify about the results of the tests he 
conducted.  Whether there was an adequate scientific or other expert basis for that opinion is a 
non-constitutional Daubert question not cognizable in habeas.             
    Congleton was also permitted to testify that his work was reviewed, but not the results of 
that review.  The Report concluded Supreme Court authority cited by Petitioner, Williams v. 

Illinois, 567 U.S. 50 (2012), supported the Fifth District’s Confrontation Clause ruling in this case 
(ECF No. 16, PageID 1147-48).  The Objections do not respond to this analysis of Williams, merely 
quoting its Daubert-parallel language (ECF No. 17, PageID 1162).          
    The test for whether a state court decision on a constitutional claim is entitled to deference 
is whether or not it is an objectively reasons application of clearly-established Supreme Court 
precedent.  28 U.S.C. § 2254(d)(1).  Crawford v. Washington, 541 U.S. 36 (2004), represented a 
major change in Confrontation Clause law, overruling as it did Ohio v. Roberts, 448 U.S. 56 
(1980).  The proper application of the Confrontation Clause has continued to divide the Court.  See 
Michigan v. Bryant, 562 U.S. 344 (2011); Bullcoming v. New Mexico, 564 U.S. 647 (2011); 
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); and Giles v. California, 554 U.S. 353 
(2008).   Petitioner cites no Supreme Court case holding that testimony such as Agent Congleton’s 
that his analysis was reviewed, without stating the results of the review, violates the Confrontation 
Clause.  Ground Three is therefore without merit.                         


Ground Four:  Insufficient Evidence to Convict                            

    Hashi framed his Fourth Ground for Relief as an insufficient evidence claim under Jackson 
v. Virginia, 443 U.S. 307 (1979).  In significant part, however, it was argued as a defective 
indictment claim:  Hashi had been indicted for possession of cathinone, but the statute, he asserted, 
punished possession of “substituted cathinone.”  The Report pointed out that in fact the statute, 
Ohio Revised Code § 3719.41, prohibits the possession of substituted cathinones (plural) and 
defines cathinone as one of those substituted cathinones (Report, ECF No. 16, PageID 1155).  
    The Objections emphasize the claim that Agent Congleton’s testing methods were not 

scientifically  reliable.    This  again  is  a  Daubert  argument  and  Daubert  has  not  been 
constitutionalized by the Supreme Court.  Hashi argues it should be:  “Where the deprivation of 
liberty is at issue, the government should be required to adhere to proven, repeatable, and peer-
reviewed methods.”  (Objections, ECF No. 17, PageID 1163).  Perhaps.  But this is not the Court in 
which to make that argument.  Only the holdings of Supreme Court case law suffice to create rules 
which, if broken, can result in habeas relief.  28 U.S.C. § 2254(d)(1). From Brown v. Allen, 344 U.S. 
443 (1953), until adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 
No 104-132, 110 Stat. 1214)(the "AEDPA"), district courts had authority to consider constitutional 
questions de novo but the AEDPA requires us to rely only on Supreme Court precedent.   
    Aside from this statutory interpretation question, the Objections completely elide the point 
made in the Report that Hashi admitted the substance seized from him was khat. 
    Ground Four is therefore without merit.                              

Conclusion                                                                


    Having reconsidered the case in light of the Objections, the Magistrate Judge again 
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, 2022.                                                         

                                       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.