                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0472n.06
                              Filed: July 2, 2007

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                            No. 06-3784


SURENDRA RAMJIT,                            )
                                            )
         Petitioner-Appellee,               )
                                            )
                 v.                         )                       ON APPEAL FROM THE
                                            )                       UNITED STATES DISTRICT
ERNIE MOORE, Warden of Lebanon Correctional )                       COURT FOR THE NORTHERN
Institution,                                )                       DISTRICT OF OHIO
                                            )
         Respondent-Appellant.              )
                                            )
________________________________________


BEFORE: GILMAN, GIBBONS and GRIFFIN, Circuit Judges.

       PER CURIAM.

       Clifford Beller was found shot to death behind the steering wheel of his Jeep in a Cleveland,

Ohio, park early one morning in January 1999. The State charged that petitioner Surendra Ramjit

and co-defendant Bobby Johnson (who was tried separately) lured Beller to a Cleveland Metroparks

parking lot, where Ramjit fired three gunshots into the back of Beller’s head.1 An Ohio state jury

       1
         The Ohio Court of Appeals’ decision disposing of Ramjit’s direct appeal described the
events and personal associations leading to Clifford Beller’s death and Ramjit’s indictment for his
murder. We presume that a state trial court’s factual findings are correct unless the habeas petitioner
rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “The
presumption of correctness also applies to factual findings made by a state appellate court based on
the trial record.” Matthews v. Ishee, No. 06-3451, – F.3d –, 2007 WL 1296732, at *6 (6th Cir.
May 4, 2007) (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). Ramjit has not attempted to




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Case No. 06-3784
Ramjit v. Moore


convicted petitioner of aggravated murder in violation of OHIO REV . CODE ANN . § 2903.01 (1998),

with a firearm specification. Ramjit exhausted his state judicial remedies to no avail.2

        Ramjit filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Ohio, contending that his conviction should be set

aside because, inter alia, (1) the state court violated Ramjit’s Sixth Amendment right of

confrontation by admitting an alleged accomplice’s out-of-court statements without affording Ramjit

the opportunity for cross-examination, (2) he suffered ineffective assistance of counsel at trial, in part

because of trial counsel’s failure to object to the Confrontation Clause violation, and because of trial



rebut the presumption, so we join the district court (slip op. at 4 n.2) in treating the Ohio Court of
Appeals’ version of events as correct and complete. We do not recite that account here, because it
is not material to the purely legal issues addressed by the district court in granting the petition.
        2
        Ramjit timely appealed his conviction to the Ohio Court of Appeals for the Eighth District,
raising nine assignments of error, and in February 2001, the Ohio Court of Appeals affirmed his
conviction. Ramjit timely sought review in the Ohio Supreme Court, and in June 2001, the Ohio
Supreme Court denied leave to appeal, holding that the appeal did not involve any substantial
constitutional question. Ramjit filed a motion to reopen the appeal, which the Ohio Court of
Appeals denied, and the Ohio Supreme Court denied review. Ramjit filed a motion for
reconsideration, which the Ohio Supreme Court denied. See State of Ohio v. Ramjit, No. 77337,
2001 WL 128081 (Ohio App. 8th Dist. Feb. 15, 2001), app. not allowed, 749 N.E.2d 756, recon.
denied, 755 N.E.2d 357 (Ohio 2001).

        In May 2001, Ramjit applied to reopen his direct appeal with the Ohio Court of Appeals,
contending that his appellate counsel had been ineffective by failing to raise a claim of ineffective
assistance of trial counsel. In October 2001, the Ohio Court of Appeals denied Ramjit’s motion to
reopen; Ramjit timely sought review in the Ohio Supreme Court, and in February 2002, the Ohio
Supreme Court denied leave to appeal. See State of Ohio v. Ramjit, No. 77337, 2001 1399849 (Ohio
App. 8th Dist. Oct. 31, 2001) (denying motion to reopen appeal), app. not allowed, 762 N.E.2d 371
(Ohio 2002).




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counsel’s failure to object to the fact that the court dismissed a regular juror on the last day of

deliberations without giving a supplemental instruction to the jury, and (3) he suffered ineffective

assistance of counsel on direct appeal. The district court referred Ramjit’s petition to a United States

Magistrate Judge for a report and recommendation.

        Thereafter, the district court granted the writ of habeas corpus, holding that the state court

violated Ramjit’s Sixth Amendment right of confrontation by admitting accomplice Johnson’s out-

of-court statements to police without affording Ramjit the opportunity to cross-examine him about

those statements. The district court determined that the Confrontation Clause violation was

exacerbated by the prosecution’s examination of Johnson, who asserted his Fifth Amendment right

not to testify.

        The district court also held that habeas relief was required because trial counsel rendered

ineffective assistance by failing to object to the Confrontation Clause violation, and by failing to

object to the district court’s failure to instruct the jury to begin deliberations anew after a regular

juror was replaced by an alternate. In light of that disposition, the district court properly declined

to consider Ramjit’s claims of ineffective assistance of appellate counsel and actual innocence.

        Respondent Ernie Moore, the warden of the state prison, timely filed a notice of appeal with

this court. Having reviewed the parties’ briefs and the applicable law, we conclude that a panel

opinion further addressing the issues raised would serve no jurisprudential purpose. We affirm for

the reasons stated by the district court. Furthermore, we hold that the confrontation right error was

not harmless, Fry v. Pliler, – U.S. –, 127 S. Ct. 2321 (2007); Brecht v. Abrahamson, 507 U.S. 619,




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637 (1993), and respondent waived this issue due to his failure to object on this ground to the

magistrate judge’s report and recommendation. Thomas v. Arn, 474 U.S. 140, 155 (1985); United

States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005).

       Affirmed.




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