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[[COURTLISTENER_SUBOPINION {"id":"11157274","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBIN STEVENS, JR.,
Petitioner, : Case No. 2:25-cv-24
-vs - District Judge James L. Graham
Magistrate Judge Michael R. Merz
JAY FORSHEY, WARDEN,
Noble Correctional Institution,
:
Respondent.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This case is before the Court on Petitioner’s Objections (ECF No. 23) to the Magistrate
Judge’s Supplemental Report and Recommendations (the “Supplemental Report,” ECF No. 20).
District Judge Graham has recommitted the case for further analysis in light of the Objections
(ECF No. 24).
Ground One: Prosecutorial Misconduct
In his First Ground for Relief, Stevens claims he was denied due process when the trial
judge, as a remedy for the prosecutor’s misstatement, instructed the jury to disregard the statement
instead of declaring a mistrial. On direct appeal, the Ohio Ninth District Court of Appeals followed
the presumption that juries follow instructions given to them. State v. Stevens,
2023-Ohio-2153,
¶27-28
(Ohio App. 9th Dist. Jun. 28, 2023). Both the Report and the Supplemental Report found
this was not an objectively unreasonable application of clearly established Supreme Court
precedent and thus was entitled to deference. In his instant Objections Stevens opposes following
the presumption, asking how we know if the jury followed the curative instruction since they
convicted him (Objections, ECF No. 23, PageID 1136-37). No one polled the jury, so we have no
evidence of whether they followed the instruction. But without evidence, Petitioner’s position
would reverse the presumption and require a mistrial any time a prosecutor makes a misstatement.
Petitioner cites no Supreme Court precedent requiring state trial courts to declare a mistrial every
time a prosecutor misspeaks. Absent any such precedent, this Court must defer to the Ohio courts
under
28 U.S.C. § 2254
(d)(1).
Ground Two: Denial of Continuance
In his Second Ground for Relief, Petitioner asserts he was denied a fair trial when the trial
judge refused a request for continuance on the morning trial was to begin. The Report and
Supplemental Report both recommend deferring to the Ninth District’s decision denying this
claim.
In his instant Objections, Stevens relies on the constitutional right of a defendant to present
witnesses in his behalf (ECF No. 23, PageID 1138, citing Chambers v. Mississippi,
410 U.S. 284
(1973). But as Stevens admits in the Objections, the sought continuance was not to present a
witness, but “wanted time to investigate the claim of the biological father of the alleged victim.”
Regarding the requested continuance, the Ninth District concluded:
{¶33} The record establishes that, on the day of trial, defense
counsel moved for a continuance of trial to review “newly
developed information.” The “newly developed information”
counsel wanted to review was that “the victim of the crime in [a]
North Carolina [case] is the same victim here.” Defense counsel
wanted time to investigate this and explore “whether the mother had
induced the child to make up these allegations against Mr. Stevens
* * *.” Defense counsel speculated that there could be exculpatory
information in the CARE center interview of the out-of-state case
relating to the instant case.
State v.
Stevens, supra.
Thus the trial judge was faced with a morning-of-trial request to continue
the trial to allow investigation of his speculation about what witnesses in a North Carolina case
might say. There was no representation that a known witness had particular testimony to give
about the conduct on trial and that that witness could be produced with a brief continuance . Rather
defense counsel speculated what he might find in CARE interview in a case that arose three years
after the incident in suit.
Petitioner was indicted October 8, 2019 (Indictment, State Court Record, ECF No. 8, Ex.
1). Trial did not commence until March 29, 2022, allowing defense counsel two and one-half
years to investigate and assemble the case. As the transcript shows, at the time of the motion to
continue, a venire had been assembled and was waiting for voir dire (ECF No. 8-1, PageID 306).
This case was tried in the Summit County Court of Common Pleas, one of the busiest urban courts
in Ohio. Anyone familiar with trials in busy urban courts will appreciate how disruptive granting
a continuance on the morning of trial would be in such a court. Given that defense counsel was
only speculating about what his investigation would reveal and the number of persons’ lives which
would have been disrupted by granting a continuance on the morning of trial, the trial judge’s
denial was not an abuse of discretion.
In federal court, the decision to grant or deny a motion for continuance lies within the sound
discretion of the trial court and cannot be reversed absent a showing that the decision was arbitrary,
unreasonable, or unconscionable. Ungar v. Sarafite,
376 U.S. 575, 589
(1964). Factors which
should be considered are the length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing counsel, and the court;
whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the party seeking the continuance contributed to the circumstances which gave
rise to the request; and other relevant factors, depending on the unique facts of each case. State
v. Unger,
67 Ohio St. 2d 65, 67
(1981), citing United States v. Burton,
584 F.2d 485
(D.C. Cir.
1978), and Giacalone v. Lucas,
445 F.2d 1238
(6th Cir. 1971). Given the deference to the state
courts commanded by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-
132,
110 Stat. 1214
)(the "AEDPA"), we must be at least as tolerant of state court decisions on
continuance as we are within our federal system.
In his instant Objections, Stevens again claims it was ineffective assistance of trial counsel
to fail to file an affidavit of Mr. Gulley, the accused in the North Carolina case. Stevens ignores
the conclusion, made in the Supplemental Report to which he is objecting, that this claim is
procedurally defaulted.
This ineffective assistance of trial counsel claim is entirely new at
this stage of the case. It is nowhere mentioned in the Petition (ECF
No. 3). It was not raised on direct appeal (See Appellant’s Brief,
State Court Record, ECF No. 8, Ex. 9, PageID 88). Stevens never
filed a petition for post-conviction relief and his Application for
Reopening under Ohio R. App. P. 26(B) did not plead ineffective
assistance of trial counsel as an underlying omitted assignment of
error.
Id.
at Ex. 20. Any attempt to raise this claim now by petition
for post-conviction relief would be untimely because it is now later
than one year after the record on appeal was filed. Ohio does not
allow a second application for reopening. Therefore the claim of
ineffective assistance of trial counsel as raised in the Objections is
procedurally defaulted by failure to present it to the Ohio courts.
(Supplemental Report, ECF No. 20, PageID 1122-23). Instead of attempting to excuse any of
these procedural defaults, Stevens now asserts his conviction is a “manifest injustice.” (Objections,
ECF No. 23, PageID 1142). But the “manifest injustice” exception to procedural default is limited
to cases in which a habeas petitioner establishes his actual innocence. Calderon v. Thompson,
523
U.S. 538, 557-58
(1998) (holding that "avoiding a miscarriage of justice as defined by our habeas
corpus jurisprudence" requires "a strong showing of actual innocence"); see Sawyer v. Whitley,
505 U.S. 333, 339
(1992). To establish actual innocence, a habeas petitioner must present new
evidence – evidence not presented to the jury – which persuades the court that if he or she heard
such evidence, no reasonable juror would vote to convict. Schlup v. Delo,
513 U.S. 298
(1995).
Stevens has presented no new evidence at all. Stevens’ ineffective assistance of trial counsel claim
is procedurally defaulted without excusing cause and prejudice.
Ground Two is without merit and should be dismissed.
Ground Three: Verdict Against the Manifest Weight of the Evidence
In the initial Report, the Magistrate Judge noted that a claim that a verdict is against the
manifest weight of the evidence is not cognizable in habeas corpus (Report, ECF No. 17, PageID
1032, citing Johnson v. Havener,
534 F.2d 1232
(6th Cir. 1986)). Petitioner responded by
attempting to add an insufficiency of the evidence claim. The Supplemental Report rejected this
approach because no such claim had been presented to the Ohio courts (ECF No. 20, PageID 1127).
In his instant Objections, Stevens again claims his actual innocence excuses his procedural
defaults. However, he has not presented any new evidence, much less evidence of the type and
quality required by Schlup.
Ground Three should be dismissed on the merits.
Grounds Four and Five: Failure to Suppress Unconstitutionally Seized Evidence and Failure
to Disclose Favorable Evidence
Ground Four
The Supplemental Report found Stevens had abandoned Ground Four, his suppression
claim, by not arguing it and not identifying any evidence which should have been suppressed.
(Report, ECF No. 20, PageID 1128). In his instant Objections, he states that he is combining
Grounds Four and Five, but then makes only an argument on Ground Five, failure to disclose under
Brady v. Maryland,
373 U.S. 83
(1963). Ground Four should therefore be dismissed as abandoned.
Ground Five
The original Report noted that no Brady claim had been raised on direct appeal and
concluded the claim was procedurally defaulted, both because Stevens did not raise it on direct
appeal and also did not appeal from denial of this claim when he made it as part of his Ohio R.
App. P. 26(B) proceeding (Report, ECF No. 17, PageID 1034). The Supplemental Report found
that even if Stevens could overcome the procedural defaults, he still had not identified any Brady
material (ECF No. 20, PageID 1130).
In his instant Objections he claims the Summit County prosecutor knew about the
indictment of Andrew Gulley in North Carolina for sexual abuse of R.S. and did not disclose it.
His argument is as follows:
The State of Ohio had access to the new case information about Mr.
Andrew Gulley as a witness and or potential witness. The State of
Ohio willfully failed to produce and conceded to this information
open court. The State of Ohio knew that Mr. Gulley had been
accused of the same exact charges as Mr. Stevens with the same
exact story line by the same alleged victim and wanted to come
forward, but yet the prosecutor did not turn over this exculpatory
evidence to the defense. In this matter the witness was a material
witness.
Stevens's family heard that the prosecutor had Andrew's statements
and they were identical to Stevens's charges and storyline and when
the trial counsel was made aware by his client Mr. Stevens, he raised
it up directly before trail began and asked for a continuance to
investigate the claim and matter. The State of Ohio was well aware
of this information in a significant amount of time enough to
disclose to the defense before the trial began, they did not.
When the prosecution was confronted with the withheld evidence in
open court they made an attempt to sweep it under the rug by saying
it "occurred in another state, North Carolina and two and half years
later". But here is the silver lining is, the fact that the charges against
Mr. Stevens were the same set of facts and circumstances alleged
against Mr. Gulley and that was recorded in an interview of the
alleged victim where she gave identical statements and inferentially
gave a statement that her mother put her up to both. The State of
Ohio was aware of these allegations against Mr. Gulley prior to the
defense's knowledge and yet still did not disclose when the state
knew they would potentially use this interview as evidence. This
was the primary reason that trail counsel requested a continuance
before trial began. Trial Counsel wanted time to secure Mr. Gulley
has a Material Witness.
(Objections, ECF No. 23, PageID 1145-46). These assertion contrast markedly with what the
record shows. For example, defense counsel never identified Andrew Gulley or any other
individual associated with the North Carolina case as a witness, much less made a representation
that Gulley would come voluntarily to Ohio to testify and subject himself to cross-examination
when he was under indictment. If Gulley was willing to give an affidavit, why was not such an
affidavit obtained and presented with a post-conviction petition under Ohio Revised Code §
2953.21? When did Stevens’ family learn of these charges in North Carolina and why did they
wait until the day before trial to tell defense counsel? Stevens does not claim the Summit County
prosecutor had R.S.’s CARE interview nor does he disclose what it actually says. The fact that
Gulley had been indicted would have been a matter of public record, as discoverable by the defense
as by the prosecution and in fact Stevens states his family learned of it before disclosing it to
defense counsel.
Even if the Gulley indictment is Brady material, Gulley has offered no excuse for waiting
until habeas to raise that claim. Ground Five should be dismissed.
Ground Six: Conviction on Unreliable Scientific Evidence
In his Sixth Ground for Relief, Petitioner claims he was convicted on the basis of an
outstated scientific test – the acid phosphatase test. The original Report recommended this claim
be dismissed as procedurally defaulted because it had never been raised in the Ohio courts. In his
Objections to that Report, Stevens did not discuss procedural default at all and the Supplemental
Report reiterated the original recommendation (ECF No. 20, PageID 1130).
Stevens relied heavily on Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579
(1993), as authority for this ground for relief. In the Supplemental Report the Magistrate Judge
noted that Daubert was not a constitutional decision and thus not a basis for habeas corpus relief.
Petitioner objects by again claiming actual innocence, but actual innocence does not convert a non-
constitutional claim into a claim arising under the Constitution.
In his conclusion, Stevens asserts he has shown cumulative error. He claims without
citation that the Fifth Circuit has recognized cumulative error as stating a claim. The Sixth Circuit
does not. Sheppard v. Bagley,
657 F.3d 338, 348
(6th Cir. 2011), cert. denied,
132 S.Ct. 2751
(2011), citing Moore v. Parker,
425 F.3d 250, 256
(6th Cir. 2005), cert. denied sub nom. Moore v.
Simpson,
549 U.S. 1027
(2006).
Conclusion
Having reconsidered the case in light of Petitioner’s instant 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.
October 1, 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. 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.Case Information
- Court
- S.D. Ohio
- Decision Date
- October 1, 2025
- Status
- Precedential