                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0576n.06

                                         Case No. 18-4041

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                    Nov 19, 2019
TIMMY STEVENS,                                         )                        DEBORAH S. HUNT, Clerk
                                                       )
        Petitioner-Appellant,                          )
                                                       )      ON APPEAL FROM THE UNITED
v.                                                     )      STATES DISTRICT COURT FOR
                                                       )      THE SOUTHERN DISTRICT OF
WARDEN. PICKAWAY CORRECTIONAL                          )      OHIO
INSTITUTION,                                           )
                                                       )
        Respondent-Appellee.                           )

____________________________________/

Before: COLE, Chief Judge; MERRITT and LARSEN, Circuit Judges

        MERRITT, Circuit Judge. Petitioner Timothy Stevens, the defendant in an Ohio state
criminal trial, appeals the District Court’s dismissal of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. The District Court dismissed Stevens’ habeas petition but granted a
certificate of appealability as to whether Stevens was denied a fair trial because a juror in the state
trial, Noah Matthews, failed to disclose during voir dire that Stevens’ alleged cousin, Travis
Fischer, murdered Matthews’ sister. For the following reasons, we AFFIRM.

                                                  I.

        On July 8, 2013, a Morgan County, Ohio, jury convicted Stevens of murder with a firearm
specification, felonious assault with a firearm specification, having weapons while under
disability, tampering with evidence, grand theft of a motor vehicle, and abuse of a corpse. He was
also found to be a repeat offender. The trial court sentenced Stevens to an aggregate prison term
of 36 years to life.
Case No. 18-4041, Stevens v. Warden, Pickaway Correctional Inst.


         Stevens moved the court on several grounds, but at issue here is his motion for a new trial.
Stevens attached to the motion for a new trial an affidavit from Gregory Meyers, Stevens’ trial
counsel, and obituaries indicating that Noah Matthews was the brother of Abi Matthews.1 The
trial court denied Stevens’ motion for a new trial without holding an evidentiary hearing.

         Stevens appealed to the state court of appeals, arguing that the trial court erred by (1) not
granting a new trial and (2) not merging the charges of murder and felonious assault for sentencing
purposes. The state court of appeals affirmed the issue of merger but reversed on the issue of the
new trial, remanding to the state trial court to hold a hearing on the matter.

         On June 17, 2014, the state trial court held a hearing on the motion for a new trial. Meyers
and Matthews testified at the hearing. The trial court denied the motion for a new trial. Stevens
again appealed to the state court of appeals.

         The state court of appeals affirmed the trial court. Stevens then appealed to the Supreme
Court of Ohio, which declined to accept jurisdiction. Finally, Stevens applied to the state court of
appeals to reopen his direct appeal, which denied Stevens’ application. Stevens then sought relief
in the federal courts.

         On September 20, 2016, Stevens filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The Magistrate Judge issued a Report and Recommendation recommending
that the action be dismissed. Over Stevens’ objections, the District Court adopted the Report and
Recommendation and dismissed the action but granted the certificate of appealability as to this
one issue.




1
         The affidavit states that, based on information received by Meyers after the verdict, he believes that Noah
Matthews failed to disclose that his sister, Abi Matthews, was the victim of a rape and murder in 2009, and that if he
had known, he would have moved to have Matthews excused for cause, and failing that, he would have tried to remove
him by peremptory challenge. We note that peremptory challenges are not of constitutional dimension. United States
v. Martinez-Salazar, 528 U.S. 304, 311 (2000).
         Further, Meyers states that, on additional information received after the verdict, he believes Stevens is related
to Travis Fischer, who pled guilty to raping and murdering Matthews’ sister. Meyers claims in his affidavit that he
learned such information from Stevens, and Elizabeth Stevens, Stevens’ mother.

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Case No. 18-4041, Stevens v. Warden, Pickaway Correctional Inst.


                                                             II.

         The question on appeal is whether Stevens was denied a fair trial based on Matthews’
failure to disclose during voir dire that his sister was murdered by Stevens’ purported cousin.

         “A district court’s grant or denial of a petition for a writ of habeas corpus is reviewed de
novo.” Adams v. Bradshaw, 826 F.3d 306, 309 (6th Cir. 2016).

         Habeas corpus relief shall not be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) 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 U.S.C. § 2254(d)(1)–(2). The “contrary to” provision allows a federal habeas court to “grant
the writ if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts.” See Williams v. Taylor, 529 U.S. 362, 412–13
(2000). The “unreasonable application” clause permits a federal habeas court “to grant the writ if
the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts[.]” Id. at 413. A state court’s finding of fact is
presumed correct unless petitioner rebuts the presumption by “clear and convincing evidence.”
§ 2254(e)(1).

         Petitioner claims that Matthews intentionally omitted information during voir dire about
his sister’s murder. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) governs
claims of a juror intentionally omitting information. See Dennis v. Mitchell, 354 F.3d 511, 520
(6th Cir. 2003) (citing Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995)). The McDonough test
requires that, to obtain a new trial based on a juror’s non-disclosure during voir dire, the defendant
must show that (1) “a juror failed to answer honestly a material question on voir dire,” and (2) “a
correct response would have provided a valid basis for a challenge for cause.” Id. at 521 (internal
citations omitted).2


2
         In Ohio, a potential juror may be challenged for cause because the juror evinces “enmity or bias toward the
defendant or the state” unless the court is satisfied that the juror will render an impartial verdict according to the law
and the evidence; or “the juror is otherwise unsuitable for any other cause to serve as a juror.” Ohio Crim. Rule

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Case No. 18-4041, Stevens v. Warden, Pickaway Correctional Inst.


        Whether the juror intentionally omitted the information affects how bias may be
determined. “[W]here the omission was intentional, bias may be inferred.” English v. Berghuis,
900 F.3d 804, 813 (6th Cir. 2018) (citing Zerka, 49 F.3d at 1186)). Bias may also be inferred in
extreme situations, such as where the juror works for the prosecuting authority, is a close relative
of a participant in a criminal trial, or “was a witness or somehow involved in the criminal
transaction.” Smith v. Phillips, 455 U.S. 209, 222 (O’Connor, J., concurring). In the absence of
an extreme situation or an intentional omission, the petitioner must show actual bias. See English,
900 F.3d at 813. “Actual bias is bias in fact—the existence of a state of mind that leads to an
inference that the person will not act with entire impartiality.” Teesh v. Bagley, 612 F.3d 424, 437
(6th Cir. 2010) (internal quotation marks and citation omitted)

        The first prong of McDonough is satisfied. Although Matthews did not answer a question
untruthfully, he did fail to answer a material question asked by Meyers to the venire:

        How about family and friends? Who’s had a person you would call close, whether
        friend, family, now or formerly, good friend that was the victim of a violent
        offense?

No one responded to the question.

        Stevens fails McDonough’s second prong, however. Stevens’ claim is based mostly on
Matthews’ failure to answer the above question. At the hearing on the motion for a new trial,
Matthews stated why he did not respond. When asked by defense counsel, Matthews stated, “I’m
not -- I’m not biased. I mean, what happened in the past, happened in the past.” Mathews also
stated that he understood the question but decided not to answer it. In response to the state’s
questioning, Matthews said that, because the question was posed to the entire venire, he thought
answering the question was voluntary. Matthews claimed that he was not trying to conceal his
sister’s murder and that although he still thinks about his sister’s death, “you got to move on in
life.” The state trial court found this testimony credible and, consequently, concluded that there
was “no basis for a for cause challenge and that any nondisclosure of material information by Noah
Matthews did not prejudice [Stevens] in any manner.”




24(C)(9); (14). Defense counsel, at the hearing on the motion for a new trial, focused on the “bias” part of the
provision.

                                                     -4-
Case No. 18-4041, Stevens v. Warden, Pickaway Correctional Inst.


       Based on the record, and considering the deference given to the state trial court’s finding
that Matthews did not intentionally omit information, we cannot infer bias. Nor do we find an
“extreme situation” under these facts “that would justify a finding of implied bias.” See Smith,
455 U.S. at 222 (O’Connor, J., concurring). Matthews’ circumstances are not comparable to those
mentioned by Justice O’Connor, especially considering that Matthews stated he did not know
Stevens before trial, and there is no evidence of a familial relationship between Stevens and
Fischer.

       Finally, Stevens cannot prevail on actual bias. Matthews stated that his sister’s murder did
not affect his thought process when deciding the case and that he never harbored any ill will against
Stevens or Fischer. Stevens argues that Matthews showed bias when he stated that criminals have
too many rights and that the solution is to “lock them up.” Matthews, however, claimed he had no
preconceived notion about how the case should turn out and promised to adhere to the judge’s
instructions. Thus, the record supports a finding that Matthews did not exhibit a state of mind
sufficient to indicate his inability to be entirely impartial. See Teesh, 612 F.3d at 437.

       The trial court found Matthews credible and determined that he was not biased. This
finding was not contrary to, or an unreasonable application of, Supreme Court precedent, nor was
it an unreasonable determination in light of the record. See § 2254(d)(1)–(2). Moreover, this
finding is entitled to “special deference” and the presumption of correctness, and Stevens has not
shown otherwise. § 2254(e)(1); Dennis v. Mitchell, 354 F.3d 511, 518 (6th Cir. 2003) (internal
citations omitted). Stevens therefore fails the second prong of McDonough.

       Stevens also argues that Matthews was biased because Stevens is related to Fischer, the
murderer of Matthews’ sister. The State asserts that this argument is procedurally defaulted and,
alternatively, that there is no evidence in the record to support it. We agree.

       An application for a writ of habeas corpus pursuant to the judgment of a state court shall
not be granted unless the applicant exhausted the remedies available in state courts.
§ 2254(b)(1)(A). “A claim is ‘fairly presented’ for exhaustion purposes where the petitioner
presented both the factual and legal basis for his claim to the state courts.” Hanna v. Ishee, 694
F.3d 596, 606 (6th Cir. 2012) (internal citations omitted).

       Stevens did not fairly present to the state courts the factual and legal basis of his claim that
Matthews was biased because Stevens and Fischer are related. Stevens briefly mentioned this

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Case No. 18-4041, Stevens v. Warden, Pickaway Correctional Inst.


claim only once in state proceedings, in his memorandum in support of the motion for a new trial.
Stevens did not address this issue in either his brief or reply brief filed before the hearing on the
motion for a new trial, nor did he do so in his brief or reply brief filed after the hearing. Moreover,
Stevens did not file a reply brief in this Court rebutting the State’s argument that this claim is
procedurally defaulted. Because Stevens did not present these factual allegations and theory in
state court proceedings, his claim that Matthews was biased because of the alleged relationship
between Stevens and Fischer is procedurally defaulted. See Hanna, 694 F.3d at 606.

       Even if this claim was not procedurally defaulted, it fails on the merits. There is no
evidence in the record, beyond mere word of mouth, to support a familial relationship between
Stevens and Fischer. Meyers, in his affidavit in support of the motion for a new trial, stated that,
based on information from Stevens and Stevens’ mother, he believes Stevens and Fischer are
related. When asked at the hearing on the motion for a new trial about his knowledge on the
matter, Meyers stated that he “know[s] only what [he] said in that affidavit[,]” that he never had
any personal knowledge of the alleged familial relationship, and that he “didn’t independently
attempt to research [the relationship] in any way, shape, or form.” Thus, Stevens’ argument that
Matthews was biased because Stevens and Fischer are related fails.



                                                   III.

       For the foregoing reasons, we AFFIRM.




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