Jeffrey B. Dahms, Petitioner v. Warden Lyneal Wainwright Respondent. (2022)

ORDER

Pro se Petitioner Jeffrey Dahms is serving an aggregate sentence of 102 months following his conviction by a Seneca County, Ohio jury on charges of complicity to commit breaking and entering, bribery, and intimidation of a witness. On June 28, 2018, he filed a petition for habeas corpus relief. (Doc. 1). Respondent Warden Lyneal Wainwright filed a Return of Writ on November 21, 2018. (Doc. 7) Petitioner filed his Traverse on January 25, 2019. (Doc. 13).

Magistrate Judge William Baughman, who concluded that the petition lacked merit and recommended dismissal, filed his Magistrate Judge's Report & Recommendation on July 19, 2021. (Doc. 16). Thereafter, Petitioner filed Objections on August 23, 2021 (Doc. 18), Respondent filed a Response thereto on December 14, 2021. (Doc. 19), and Petitioner filed his Response in support of the petition on February 11, 2022. (Doc. 21).

The petition asserts eight grounds for relief:

Ground 1- Insufficiency of the Evidence (5th, 6th, & 14th Amendments):

There was insufficient evidence to support Petitioner's convictions beyond a reasonable doubt as to the offense of Bribery R.C. 2921.02(C) and the offense of Intimidation of a Witness R.C. 2921.01(B)(2), thus violating Petitioner's Fifth, Sixth and Fourteenth Amendment rights to the United States Constitution.

Ground 2 – Wrongful Use of an Incarcerated Informant (Fair Trial; Proof Beyond a Reasonable Doubt):

The State violated Petitioner's right to a fair trial and proof beyond a reasonable doubt when the state used an incarcerated informant as a witness against the Petitioner, after the informant was present at Petitioner's evidentiary hearing with no purpose for being there, and this informant then used hearsay, inadmissible and speculative evidence discussed at this evidentiary hearing, by testifying to the veracity of evidence as first hand knowledge. This being in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to the United States Constitution.

Ground 3 – Suppression of Evidence (5th, 6th, & 14th Amendments (Due Process; Brady Violation)):

The state violated Petitioner's rights to due process, and his right to a fair trial when the state suppressed evidence under Brady as well as in violation of Fed. Crim. Rule 16. This is in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to the United States Constitution.

Ground 4 - Modified (Incomplete) Video (5th, 6th, 14th Amendments):

The state introduced third party modified video evidence in the form of a crime scene surveillance video which was edited/altered and partially destroyed without documentation of the missing footage, or establishing that a proper chain of custody was maintained. This violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights to the United States Constitution.

Ground 5 – Prosecutorial Misconduct: Improper Arguments; Vouching (5th, 6th, 14th Amendments):

The State committed prosecutorial misconduct on numerous occasions when the prosecutor in her opening statement expressed her belief in the Petitioner's credibility, made false and misleading statements in closing that were not supported by any evidence presented, made inappropriate statements towards the Petitioner in closing, then vouched for each of the state's witnesses credibility in closing, thus violating Petitioner's Fifth, Sixth and Fourteenth Amendment rights to the United States Constitution.

Ground 6 – Ineffective Assistance of Counsel (IAC) (Failure to File Speedy Trial Dismissal Motion) (6th, 14th Amendments; § 10, Art. 1 Ohio Constitution):

Trial counsel was ineffective when trial counsel failed to file a motion to dismiss when Petitioner's right to a fast and speedy trial was violated. Violating Petitioner's Sixth and Fourteenth Amendment rights to the United States Constitution, and section 10, article 1 of the Ohio Constitution.

Ground 7 – Ineffective Assistance of Counsel (Failure to File Motion in Limine re: Informant's Testimony and Use of Incomplete Video; Failure to Object to Prosecutorial Misconduct) (5th, 6th, 14th Amendments):

Trial counsel was ineffective for failing to file a motion in limine to prevent jailhouse informant from testifying after that informant was present at Petitioner's evidentiary hearing, for failing to demonstrate that there was missing footage from the crime scene video and failing to object to that video being presented as it was edited/altered and partially destroyed, also ineffective for failing to object to numerous prosecutorial misconduct issues throughout Petitioner's trial that severely prejudiced Petitioner; thus violating Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to the United States Constitution.

Ground 8 – Improper Imposition of Consecutive Sentences (Due Process; Statutory Rights):

Petitioner's rights to due process of the law as well as his statutory rights were violated when the trial court imposed consecutive sentences for multiple offenses without making the statutory mandated findings pursuant to R.C. 2929.14(C)(4). This being a violation of Petitioner's Fifth and Fourteenth Amendment rights to the United States Constitution. (Doc. 1-2, pgID 1-15).

For the reasons that follow, I find, on de novo review and consideration of the merits, that the Magistrate Judge adjudicated the issue as correctly as he did thoroughly. Accordingly, I deny and dismiss the petition and decline to grant a Certificate of Appealability.

Discussion

In general, Petitioner's 47-page Objections and 20-page Response to Respondent's Response are, like his 51-page Traverse, a compound of a distorted vision of the trial record and evidence and his own subjective view of what the law is. These circumstances so thoroughly permeate his Objections that I decline to undertake a point-by-point refutation of each and every contention. Given how firmly the Magistrate Judge's Report & Recommendation stands on a fundamentally accurate recitation of the record and clearly established, legal doctrines, to do otherwise would serve no useful purpose.

In sum, my obligation, when conducting de novo review, is to determine, giving due consideration to the substance of Petitioner's objections and Respondent's counter-contentions, whether the Report & Recommendation accurately reflects the facts of record, correctly applies applicable legal doctrines, and reaches sustainable conclusions.

Applicable Legal Doctrines

1. Exhaustion of State Remedies/Fair Presentment Requirement

Before seeking habeas relief, a petitioner must have exhausted all available state court remedies. Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982); see also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Under certain circumstances, a federal court may hold a habeas proceeding in abeyance pending the petitioner's presentation of an unexhausted claim to the state courts. Rhines v. Weber, 544 U.S. 269, 277 (2005).

To satisfy the exhaustion of state court remedies requirement, the petitioner must show that he fairly presented his federal constitutional claim to the state courts. Picard v. Connor, 404 U.S. 270, 275-78 (1971). Fair presentation does not occur simply because state and federal claims are somewhat similar, both claims arise out of the same set of facts, or the existence of the federal claim would have been self-evident from the ramifications of the state law claim. See McMeans v. Brigano, 228 F.3d 674, 681-82 (6th Cir. 2000) (holding that a “claim may only be considered ‘fairly presented’ if the petitioner asserted both the factual and legal basis for his claim to the state courts”).

2. Procedural Default

Subject to limited exceptions, to preserve a potential habeas claim for later federal court review, a petitioner must have complied with all applicable state law rules and requirements. Martinez v. Ryan, 566 U.S. 1, 9-10 (2012); see also West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015).

Submission of a potential habeas claim – as a federal constitutional claim – is a matter of comity: before seeking habeas relief, a petitioner must have given the state courts opportunity to hear and adjudicate the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995). To accomplish this, the petitioner must run the complete course of establish appellate review without bypassing an available hurdle. Otherwise, he will have defaulted on such claim and normally cannot present it for habeas review.

To determine whether procedural default will bar federal habeas review, I consider whether: 1) the petitioner failed to follow an applicable state court procedural rule; 2) the state court enforced the rule; 3) the rule is an adequate and independent state ground for foreclosing federal habeas review; and 4) the petitioner can show cause for failing to follow the rule and actual prejudice from the alleged constitutional violation. Maupin v. Smith, 785 F.2d 135, 139 (6th Cir 1986).

3. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), a petitioner can overcome the preclusive effect of a state court adjudication of his claim only if he can show that the state court decision either: 1) was contrary to or an unreasonable application of clearly established federal law, as determined by the U.S. Supreme Court; or 2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

“Contrary to law” means the state court reached a conclusion opposite to that that the Supreme Court has reached on either a question of law or on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

The “unreasonable application clause” enables a federal court, applying an objective standard to grant habeas relief where the state court unreasonably applied a correctly identified governing principle to the petitioner's case. Id. at 409, 413.

To meet this standard, the federal court must conclude that the state court's application was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fair-minded disagreement. Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

4. State Law Violations Not Cognizable

A petitioner can obtain federal habeas relief only if he establishes that a violation of a federal constitutional provision affected the outcome at trial – i.e., that such violation, for which the state was responsible, caused prejudice. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-69 (1991).

Habeas relief is not available for errors of state law, id. at 67, unless such error rises to the level of a violation of due process of law. See, e.g., Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). To date, however, the Supreme Court has yet to hold in a non-capital case that a trial court's admission of relevant evidence, no matter how prejudicial, contravened due process. Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012).

Thus, the doctrine of non-cognizability applies, e.g., to violations of state law as to the admission of evidence, see, e.g. Estelle, 502 U.S. at 67-70, violations of state speedy trial acts, see, e.g., Norris v. Schotten, 146 F.3d 314, 328-29 (6th Cir. 1998), and sentencing. See, e.g., Rashad v. Lafler, 675 F.3d 564, 570-71 (6th Cir. 2012); Middleton v. Fender, 2020 WL 5441586, *5 (N.D. Ohio April 20, 2020) (Burke, J.) (re. error re. consecutive sentences).

Where a state appellate court has affirmed a conviction on the basis of its interpretation of state law, that interpretation binds a federal habeas court. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Middleton, supra, 202 WL 5441586, *5.

Discussion

A. Default in This Case Does Not Foreclose Consideration of the Merits

Respondent contends that Grounds Two, Four, Five, and Seven are defaulted due to Petitioner's failure to present them when first able to do so and thereafter (i.e, in this case, to the Ohio Supreme Court in a motion for discretionary review).

Respondent cites and relies on the Supreme Court's statement in O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999), which states that a petitioner must have pursued “one complete round of the State's established appellate review process․”

That did not happen here, because Petitioner did not seek discretionary review of the appellate court's denial of his Ohio App. Rule 26(B) motion. Thus, Respondent, relying on the O'Sullivan court's statement, insists that the defaults preclude merits review here as to those Grounds

The Magistrate Judge disagreed that the statement from O'Sullivan was controlling. Instead, he found support for merits review in Harris v. Reed, 489 U.S. 255, 263 (1989). In Harris the Court held that a procedural default does not exist unless the last state court rendering a judgment on this issue “clearly and expressly states that its judgment rests on the procedural bar.” Id.

I agree with the Magistrate Judge that, in light of Harris, the statement Respondent excerpts from O'Sullivan, which related to and ruled on an exhaustion-related issue, is not on point and is much less controlling here.

That is so because that case addressed the question of, when exhausting state remedies, whether a petitioner has to seek discretionary review in a state's highest court when available, or whether, as some circuits had held, exhaustion of one's appeal of right sufficed. O'Sullivan, 526 U.S. at 848.

That is not the situation here, and Respondent's reliance on O'Sullivan is misplaced.

In any event it does not matter. For the reasons that follow, I agree with the Magistrate Judge that Petitioner's constitutional claims are meritless.

B. None of Petitioner's Claims Have Merit

1. Insufficiency of the Evidence

The Report & Recommendation thoroughly and accurately reviewed the evidence, As the Report & Recommendation makes clear, Petitioner's challenge to the sufficiency of the evidence supporting his convictions for bribery and witness intimidation is unavailing. This is so, despite Petitioner's criticisms of the inadequacies of the Magistrate Judge's careful and comprehensive review of the trial record,

The essence of Petitioner's insufficiency challenge is that the law is as he subjectively believes it to be. The Magistrate Judge recommended that I conclude that the appellate court's determination that the evidence sufficiently establishes petitioner's guilt was not an unreasonable application of clearly established federal law. Contrary to Petitioner's contention, I must accept the state court's analysis of Ohio law, rather than his subjective rewriting of that law.

The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

2. Use of Informant Testimony

Petitioner claims that the trial judge should not have admitted the testimony of a witness who had sat through a two hour hearing in Petitioner's case. During the hearing the witness was exposed to several aspects of Petitioner's upcoming trial.

In his Objections, Petitioner asserts that allowing the witness to testify violated his right to due process. He implores me to make a “just ruling.”

That is what Petitioner already received before the Magistrate Judge, who considered every pertinent aspect of Petitioner's contentions vis-a-vis this witness. This included, inter alia, the decision to allow the witness to testify, evidentiary aspects of his testimony, and the judge's exercise of control over cross-examination.

In any event, a judge's decision to allow a witness to testify and his rulings on evidentiary issues are, as noted, non-cognizable state law matters. Nothing in the decisions in this case involved violation of Petitioner's right to due process. The state court's decision accordingly was not contrary to established law; nor did it rest on an unreasonable determination of the facts.

Petitioner intertwines a Sixth Amendment ineffective assistance of counsel claim with his Confrontation Clause claim. The Magistrate Judge recommended rejection of that contention on the basis that Petitioner had never fairly presented that issue in the state courts. I agree.

In any event, though couched in misdirected due process terms, the Petitioner's challenge to the trial judge's decision to allow the witness to testify and evidentiary rulings on the scope of cross-examination (which did not violate the Confrontation Clause) are not cognizable in this proceeding.

There is no merit to Petitioner's objections as to Ground Two. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

3. Suppression of Exculpatory Evidence

Petitioner claims that the State's last-minute delivery of recordings of jailhouse phone calls constituted suppression of exculpatory evidence and violated Brady v. Maryland, 373 U.S. 83 (1963).

I disagree. As the Magistrate Judge pointed out, Brady only relates to post-trial disclosures of exculpatory evidence. The disclosure here, coming as it did before trial, and even if provided later than arguably it should have been, falls outside Brady. In any event, as the Magistrate Judge also noted, Petitioner failed timely to assert a Brady claim before the state courts.

As importantly, to state a viable Brady claim, the claimant has to show that the unprovided materials were material on the issue of guilt or innocence. Brady v. Maryland, 373 U.S. 83, 87 (1963). Petitioner claims the later-disclosed recordings would have clarified inconsistencies in the evidence. But he has not shown how that would have been so. He fails to point out, as he must, how anything in the “suppressed” recordings was material or exculpatory in any way. So his claim also fails for that reason.

Alternatively, Petitioner claims that the trial court committed constitutional-level error when it denied a request for a continuance to enable counsel to review the recordings. The Magistrate Judge concluded that the trial court's handling of this issue – refusal to allow the prosecution to use the late-provided recordings – does not raise a federal constitutional issue.

That is correct. The trial judge's resolution of this dispute involves a state-law, not a federal constitutional issue. Hence, it is not cognizable here.

Petitioner's objection claims that Judge Baughman's recommendation that I find no merit to this claim was a “copying and pasting” exercise on the Magistrate Judge's part. Excerpting the appellate court's decision is commonplace. It is the most effective way for a reviewing District Judge (and higher courts) initially to learn about prior state court proceedings. Paraphrasing would waste judicial resources and create omissions that could cause problems. It could also leave open the risk that a petitioner could complain that the Magistrate Judge or District Judge overlooked or was unaware of something important in the state court's review of the record.

In sum, digitally cutting and pasting the salient portions of a state reviewing courts’ opinions is worthwhile – indeed essential – to informing a reviewing court fully and efficiently about those proceedings.

Petitioner continues wrongly to claim that what happened here was suppression of evidence. It was not. In the end, nothing was hidden, and Petitioner has failed to show that the State's delay caused him any prejudice.

The state court's adjudication of these issues was not contrary to established law. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

4. Modified Video

Petitioner claims that his attorney failed to provide constitutionally adequate assistance of counsel by failing to object to introduction of an incomplete store surveillance video. The Magistrate Judge found this contention to be without merit, as had the state appellate court when petitioner raised the issue in his Rule 26(B) motion. That decision, though unadorned by reasoning, is entitled to deference.

Moreover, it is correct.

First, when the State obtained the video, it was incomplete – it had nothing to do with the “modification.” No one knows what happened to make it incomplete. Thus, the decision in California v. Trombetta, 467 U.S. 479 (1984), does not apply.

Second, the real issue here is that the admission of an incomplete video is an evidentiary issue that is non-cognizable in this proceeding. Thus, Petitioner has the burden of showing that its admission violated due process. He has not met that burden. He speculates, but provides no evidentiary basis on which a finding of a due process violation could rest. Thus, he has failed to meet either prong of the test the Supreme Court established in Trombetta, supra.

I agree with the Magistrate Judge that there is no merit to this claim. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented. This is so, whether viewed ab initio as a free-standing claim or, as formally presented, as an IAC claim.

5. Prosecutorial Misconduct

Petitioner points to five instances of alleged prosecutorial misconduct to which his attorney should have objected. His failure to do so, Petitioner claims, constituted IAC. I agree with the Magistrate Judge that Petitioner failed as to all of his contentions to meet the Strickland v. Washington, 466 U.S. 668 (1984), standards of either constitutionally defective assistance or resultant prejudice.

In essence, this is so because nothing the prosecution did violated Petitioner's constitutional rights. Therefore, there was neither a constitutional basis for objecting nor resultant prejudice. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

a. Opening Statement re: Jail Calls

Petitioner claims that his trial attorney should have objected to the prosecutor telling the jury in his opening statement that the jurors would here jail calls in which Petitioner was making up false stories. Petitioner claims this was an improper allusion to the Petitioner's failure to testify.

It was not; Petitioner had yet to exercise his Fifth Amendment right not to testify. The fact that he knew that the state had impeachment evidence at hand left him free to take the stand if he wanted to do so. That option remained open to him. There is no indication, in any event, that the prosecutor's statement influenced Petitioner's decision. He has failed to show that it did. Indeed, Petitioner does not contend that he learned about the risk of impeachment for the first time during the State's opening statement.

Thus, reviewing this issue de novo, I perceive no basis for relief.

The appellate court concluded that the trial court's cautionary instruction sufficed to avoid any prejudice. That decision was not contrary to established law.

Petitioner fails to show, as the Magistrate Judge found, either error in allowing the jury to hear this comment or resultant prejudice. The Magistrate Judge correctly concluded that there was no merit to this claim. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

b. Cross-Examination

Petitioner claims that his trial attorney failed to object to the prosecutor's cross-examination of a witness who had testified that Petitioner had had his life together. The questions permissibly called the jurors’ attention to several aspects of the Petitioner's recent life that suggested that was not the case.

The witness had, at least by implication, been improperly testifying as to Petitioner's good character. That being so, the prosecutor's challenge to that inference was entirely proper.

That aside, as the Magistrate Judge pointed out, the record showed that the attorney had in fact objected, so there is no basis for claiming ineffective assistance as to this issue.

The Magistrate Judge's finding of no merit to this contention is correct. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

c. Closing Argument

Petitioner claims that the prosecutor's statements to the jury violated his due process rights in a variety of ways. I disagree.

First, he complains about the observation that the State doesn't get to choose its witnesses. That is simply a statement of indisputable fact. It properly calls that fact to the juror's attention.

Next, Petitioner claims that the prosecutor impermissibly vouched for the witnesses. The state court found nothing improper in the challenged statements. That decision was not contrary to established law.

This was particularly so in light of the trial court's cautionary instruction to disregard counsel's opening statements and closing arguments. The law presumes that such instructions efficaciously keep the jurors from considering anything but the testimony and other evidence. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).

In any event, Petitioner's objection that the prosecutor improperly vouched for his witnesses is mistaken. The Magistrate Judge's conclusions as to this contention were correct.

The same is true with regard to Petitioner's mark-missing analysis as to the prosecutor's review of each witness's testimony. No vouching occurred during that review, much less flagrant vouching. Here, again, the state court's decision was not contrary to established law, and the Magistrate Judge's finding of no merit was likewise in accord with established law.

Petitioner also claims that the prosecutor mischaracterized the evidence in various ways. The Magistrate Judge rejected these contentions that any purported misstatements violated his due process rights. I have reviewed Petitioner's contentions de novo and agree with the Magistrate Judge, whose conclusion is manifestly correct.

Nor, as the Magistrate Judge also concluded, has Petitioner shown any reason to believe that his appellate counsel failed to provide constitutionally effective assistance when he did not assert the alleged mischaracterization in closing argument as an assignment of error on appeal.

I agree with the Magistrate Judge that the appellate court's decision was not contrary to clearly established law.

Petitioner's objection once again misses the mark. The Magistrate Judge carefully and accurately analyzed the challenged statements. Petitioner's lengthy discussion simply restates assertions he made in his Traverse. The Magistrate Judge found those argument unavailing. So do I.

Finally, I do not agree with Petitioner's interpretation of the Sixth Circuit's decision in U.S. v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994). First, I find nothing improper in the challenged remarks. Applying Carroll's four factors, I conclude that the remarks: 1) did not mislead the jury; 2) were isolated and did not permeate the closing argument; 3) though deliberately made, were not prejudicial; and 4) could not have affected the outcome because the evidence was strong. Id. at 1384.

I agree with the Magistrate Judge that there is no merit to this claim. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

6. Failure to Claim Denial of Speedy Trial

The state appellate court found that there was no violation of Ohio's speedy trial requirements. That being so, there was no failure on his attorney's part to assert such violation had occurred.

The Magistrate Judge also concluded that the state appellate court's decision did not constitute a clear misapplication of established federal constitutional law. I agree. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

Petitioner's objection and complaints do not undercut the propriety of the Magistrate Judge's recommendation.

In any event, violation of a state speedy trial act, being solely a state-law matter, is not cognizable in a § 2254(d) proceeding. Norris, 146 F.3d at 328-29.

7. Failure to File Motions in Limine

Petitioner claims that his attorney failed to provide effective assistance when he did not file a motion in limine to exclude the testimony of the witness who had attended a prior evidentiary hearing involving Petitioner. The Magistrate Judge found that Petitioner had failed to meet the very high standard for excluding otherwise probative evidence.

Aside from the fact that the trial court likely would have denied such motion, the Magistrate Judge also pointed out that Petitioner's attorney had vigorously cross-examined the witness.

Here, again, the Magistrate Judge concluded that the state court's decision did not contravene clearly established federal law. Nor did it involve an unreasonable determination of the pertinent factual issues.

Next, Petitioner claims counsel should have objected to the use of the incomplete video and objecting to other alleged instances of prosecutorial misconduct during the trial. The Magistrate Judge noted that these contentions essentially repeated claims that he had resolved earlier in his Report & Recommendation. I agree.

Petitioner's attempt through his objections to repackage this as a free-standing claim is unavailing. Ruling on a motion in limine involves an exercise of judicial discretion within the parameters of non-cognizable state evidence law.

As I have already discussed and noted above with reference to Petitioner's challenge to the testimony of the jailhouse informant, neither his substantive claim nor this intertwined ineffectiveness claim have merit. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

8. Consecutive Sentences

Petitioner challenges the content of the trial court's sentencing order on remand for resentencing. This is despite the fact, as Respondent makes clear, that no violation of the state's requirements occurred.

In any event, as previously noted, sentencing issues generally raise matters exclusively of state law and, as such, are non-cognizable in this proceeding.

The attorney's decision not to appeal was appropriate. As Respondent points out, there was no error in the sentence the court imposed on remand. The state court did not act contrary to or unreasonably apply clearly established federal law, nor did it reach a decision based on an unreasonable determination of the facts in light of the evidence presented.

Conclusion

For the foregoing reasons, I find no merit whatsoever in any of Petitioner's objections. Accordingly, it is hereby

ORDERED THAT:

1. The Petitioner's Objections (Doc. 18) to the Magistrate Judge's Report & Recommendation (Doc. 16) be, and the same hereby are overruled;

2. I adopt the Report & Recommendation as the Order of this court; and

3. The petition for habeas corpus relief under 28 U.S.C. § 2254(d) be, and the same hereby is denied.

Further, jurists of reason could not rationally dispute this decision or its reasoning and rationale. Accordingly, I decline to issue a certificate of Appealability.

So ordered.

James G. Carr Sr. U.S. District Judge