                                   NOT FOR PUBLICATION
                                    File Name: 05a0359n.06
                                       Filed: May 6, 2005

                                           NO. 02-4079

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

DONNIE R. NEACE, JR.,
                                                              ON APPEAL FROM THE
       Petitioner-Appellee,                                   UNITED STATES DISTRICT
                                                              COURT FOR THE NORTHERN
v.                                                            DISTRICT OF OHIO

RONALD EDWARDS, Warden,

      Respondent-Appellant.
__________________________________/

BEFORE: SUHRHEINRICH and GIBBONS, Circuit Judges; and LAWSON, District Judge*

       SUHRHEINRICH, Circuit Judge. Respondent-Appellant Ronald Edwards, Warden,

(“Respondent”), appeals from the order of the district court granting a conditional writ of habeas

corpus to Petitioner Donnie R. Neace, (“Petitioner”), in this habeas corpus action brought under 28

U.S.C. § 2254. For the reasons that follow, we REVERSE the decision of the district court.

                                     I. Factual Background

       On the night of July 2, 1998, a boating accident resulted in the death of Mary Neace,

Petitioner’s wife, and Bruce Dysert, Petitioner’s friend. Petitioner was the only other person in the

boat at the time of the accident. The district court adopted the following facts found by the state

court of appeals1:



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
       1
        The parties agree as to these facts.
       Shortly after midnight on the evening of July 2, 1998, Donnie R. Neace left the
       Shingle Shack Inn accompanied by his wife, Mary Neace and his best friend, Bruce
       Dysert. They were headed for Mr. Neace’s boat located in the channels to Grand
       Lake St. Mary’s behind the Shingle Shack Inn. Thomas and Denise Besecker, a
       couple who had also been socializing at the Shingle Shack Inn, left the bar with the
       group of three intent on accompanying them on their midnight “spin” through the
       lake.

               The Besecker boat led the way out of the channel and onto the lake’s main
       body. Neace took his seat as operator of the boat, while his wife Mary sat in the
       passenger seat and Bruce Dysert sat in the back seat. After being seated, Neace
       started his boat and followed Besecker out through the channel. Passing from the
       channel into the bay Neace’s boat passed the Besecker’s and began accelerating at
       a high rate of speed. When Neace passed Besecker he remained in the driver’s seat
       operating the boat. Minutes later the boat crashed.

              The authorities arrived on the scene shortly after the collision. They
       transported all three passengers in Neace’s boat to the hospital. Later that evening,
       Bruce Dysert was pronounced dead from injuries resulting from a violent ejection
       from the boat upon impact into the stone embankment. Several days later, Mary
       Neace was also pronounced dead. Donnie Neace survived.

State v. Neace, No. 10-99-07, 2000 WL 228921, at *1 (Ohio Ct. App. Mar. 1, 2000).

       The state court record established that at approximately 12:30 a.m., Mercer County Sheriff

Sergeant Joe Portz arrived at the emergency room of Coldwater Community Hospital. He had

earlier been at the scene of the accident. Sergeant Portz intended to test Petitioner’s blood alcohol

level (BAC) but Petitioner refused to give a blood, breath, or urine sample. Sergeant Portz later

observed a lab report at the nurses’station indicating that Petitioner’s BAC was above the legal limit.

Sergeant Portz arrested Petitioner at the hospital, charging him with operating a watercraft under the

influence. Neace was later charged with two counts of aggravated vehicular homicide.

       On July 31, 1998, Petitioner pled not guilty to the charges. On September 3, 1998,

Petitioner’s counsel filed a motion to suppress the hospital records and all statements Petitioner

made to law enforcement officers. Petitioner claimed that Sergeant Portz violated his constitutional


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rights in obtaining the BAC because the police had no authority to be at the nurses’ station. The

Court of Common Pleas denied the motion, stating that although the testimony of Sergeant Portz

regarding the lab report was inadmissible as hearsay, Petitioner’s hospital records, and statements

and evidence obtained by law enforcement personnel after Sergeant Portz observed the lab report

were admissible and not “fruits of the poisonous tree.” State v. Neace, 98-CRM-049 (Ct. C.P.

Mercer Cty, OH. Jan. 6, 1999).

       On June 22, 1999, the case was tried before a jury. Both parties agreed that the central issue

was the identity of the person operating the boat at the time of the accident. Petitioner testified he

could not remember whether he was operating the boat at the time of the collision; however, the

primary theory of his case was that he was not operating the boat when it crashed. In support of this

theory, the defense presented expert testimony that, based on the physics of the movement of the

boat and the damage to the boat, the driver would have been ejected from the boat on impact. Since

Dysert, not Petitioner, was ejected at the time of the accident, the expert concluded that Bruce

Dysert must have been driving the boat. The defense expert also contended that the broken driver’s

side windshield caused the lacerations Dysert sustained on his arm.

       The State’s expert countered that Dysert’s lacerations could just as easily have been caused

by the rocks of the embankment, since there was no glass embedded in his arm. The State’s expert

also maintained that defense expert’s accident reconstruction was flawed because it failed to take

into account either the speed of the boat or the fact that the back passenger seat was ejected from

the boat upon impact. In addition, the State also presented the Beseckers, who testified that they

had seen Petitioner driving the boat just prior to the accident.

       As part of its case, the State introduced into evidence a multi-page exhibit–Exhibit 7. The


                                                  3
exhibit consisted of an Ohio Division of Parks and Recreation waiver of rights form and an Ohio

Department of Natural Resources implied consent form. Attached to these forms was a Department

of Natural Resources alcohol influence form numbered DNR 8265. DNR 8265 contained the

question, “Were you operating a vehicle/vessel?” This question had been answered, “Yes.”

Sergeant Portz signed the bottom of this form. The form also indicated that Sergeant Portz advised

Petitioner of his Miranda rights at 2:12 a.m.

        Petitioner’s counsel did not object at trial to the admission of DNR 8265. Although

Sergeant Portz testified at trial, he was not asked to lay a foundation for DNR 8265, nor did

Petitioner’s counsel cross-examine him as to Petitioner’s alleged statement contained in that report.

During jury deliberation, the jury submitted two questions to the court. The first was, “Why wasn’t

the interview stating that [Petitioner] was driving the boat not brought up in the trial?” The court

responded, “[T]he court is not permitted to answer this question.” The second question was, “Does

the Exhibit 7 constitute an admission of guilt?” The court responded, “[Y]ou must decide this case

based upon the evidence admitted at trial . . . Evidence may be direct or circumstantial or both.

Direct evidence . . . includes any exhibits admitted into evidence during the trial.”

       On June 25, 1999, the jury returned guilty verdicts on both counts of aggravated vehicular

homicide and a specification on each count that Petitioner was under the influence of alcohol at the

time he committed the offense. The trial court denied Petitioner’s motion for acquittal and motion

for a new trial. On July 28, 1999, Petitioner was sentenced to two consecutive three-year terms.

                                     II. Procedural History

       On July 29, 1999, Petitioner appealed to the Ohio Court of Appeals, alleging improper jury

instructions and deprivation of the right to effective assistance of counsel. Petitioner specifically


                                                 4
alleged that his counsel was ineffective because he allowed the prejudicial admission statement to

be entered as an exhibit without objecting or cross-examining the officer about the exhibit. On

March 1, 2000, the Ohio Court of Appeals affirmed the judgments of conviction and sentence.

Applying the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), the court

found as follows:

       Neace claims his counsel was ineffective because he failed to object to the admission
       of a statement made by Neace during an interview with Sergeant Portz. The
       statement consisted of an admission that he was indeed driving the watercraft at the
       time of the collision. However, the record reveals that Neace’s attorney filed a
       motion to suppress the evidence obtained by Sergeant Portz at the hospital on the
       night of July 2, 1998. That motion was denied by the trial court. This court,
       therefore, finds no basis in the record for a claim of ineffective assistance of counsel.
       No error having been shown, Neace’s third assignment of error is overruled.

State v. Neace, No. 10-99-07, 2000 WL 228921, at *3. The Ohio Supreme Court subsequently

dismissed Petitioner’s appeal from this decision as not involving any substantial constitutional

question.

       On August 10, 2001, after exhausting all other avenues for relief, Petitioner filed a petition

for writ of habeas corpus in the United States District Court for the Northern District of Ohio,

alleging improper jury instructions and denial of effective assistance of counsel. The district court

rejected Petitioner’s argument as to the jury instructions but held that Petitioner’s ineffective

assistance of counsel claim had merit. As to the first prong of Strickland, the district court held:

               Petitioner contends that since his primary defense was premised on the
       contention that there was insufficient proof that he was driving the boat at the time
       of the accident, counsel’s failure to object to the admission of a police report that
       contained his statement that he was driving the boat constitutes deficient
       performance. Although Ohio Evidence Rule 803(8) provides an exception to the
       hearsay rule for reports of public offices or agencies setting forth “matters observed
       pursuant to duty imposed by law as to which matters there was a duty to report,” the
       rule specifically excludes in criminal cases reports of “matters observed by police
       officers and other law enforcement personnel, unless offered by defendant . . . ” As

                                                  5
      one court explained, allowing the state to prove its case through police records or
      reports in criminal cases would violate both the hearsay rule and the accused’s
      constitutional right of confrontation. State v. Spinks, 79 Ohio App. 3d 720, 729
      (Cuyahoga Cty. 1992).

      [sic] Thus, in light of the defense advanced at trial, failing to object to DNR 8265
      which was offered as part of Trial Exhibit 7 falls below an objective standard of
      reasonableness and cannot be considered “sound” trial strategy. In fact, trial counsel
      indicated that he was not even aware of the statement contained in DNR 8265 and,
      for that reason, did not object. See Poppe Affidavit, PP21 & 18[] (attached to
      Respondent’s Exhibit 24). The Court finds that petitioner has satisfied the first prong
      of Strickland.

State v. Neace, No. 3:01CV7425, at 12-13 (N.D. OH. 2002).

      Regarding the prejudice prong, the district court held that:

      [C]ounsel’s deficient performance prejudiced his defense. As indicated above, this
      requires a showing that “there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have been different.”
      Strickland, 466 U.S. at 694. The defense theory at trial was that petitioner was not
      operating the boat at the time of the accident. As noted by the state appellate court,
      “[i]t is undisputed that the question of who was operating the watercraft at the time
      of the collision was the central issue at trial.” Respondent’s Exhibit 20, p. 6.

              At trial, petitioner’s expert witness testified that he considered the scrape
      marks on the boat as well as damage to the boat in determining the movement of the
      boat and its occupants as it struck the rocky embankment at the time of the accident.
      The expert’s testimony indicated that petitioner could not have been driving the boat.
      He testified that the only person who could have been ejected from the boat,
      consistent with the physics of the movement of and damage to the boat, was the
      driver in a kneeling/standing position. Bruce Dysert, not petitioner, was the only
      occupant of the boat who was ejected at the time of the accident.

               Defense counsel’s failure to object to DNR 8265 substantially undercut
      petitioner’s defense theory and his expert’s testimony. It is clear, as indicated by the
      juror’s questions to the Court, that they took note of the exhibit and at least
      considered the statement may be an admission that petitioner was driving the boat
      at the time of the accident.[] Admission of this document tended to relieve the State
      of its burden of proof on an element of the offense, an element that was the central
      issue at trial. Without DNR 8265, there is a reasonable probability that the jury
      would have credited the expert testimony offered by petitioner and would have had
      a reasonable doubt about whether petitioner was operating the boat and, thus, about
      his guilt. As such, petitioner has demonstrated that his “counsel’s errors were so

                                                 6
       serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland,
       466 U.S. at 687.

Id. at 13-15.

       The district court conditionally granted Petitioner the writ of habeas corpus and ordered that

“respondent shall release the petitioner from further custody unless the petitioner is granted a new

trial within ninety (90) days from the date of this order or, if appealed, from the date on which this

order becomes final.” Id. at 16-17. The district court denied Respondent’s motion to alter or amend

judgment.

       Respondent filed the present appeal.

                                      III. Standard of Review

       We review a district court’s legal conclusions in a habeas corpus proceeding de novo.

Dennis v. Mitchell, 354 F.3d 511, 516-17 (6th Cir. 2003).

                                       IV. AEDPA Standard

       The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 104, 110

Stat. 1214, (“AEDPA”), governs this appeal. Under the AEDPA, an application for writ of habeas

corpus by a state prisoner shall not be granted unless the state court decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s legal decision is

“contrary to” clearly established federal law under § 2254(d)(1) if the state court arrived at the

conclusion opposite to that reached by the Supreme Court on a question of law or if the state court

decided a case differently than the Supreme Court’s decisions on materially distinguishable facts.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable application” occurs when the

state court identified the correct legal principle from the Supreme Court precedent but unreasonably

                                                   7
applied that principle to the facts of the case before it. Id.

          Under § 2254(d)(1)’s “unreasonable application clause,” a federal habeas court may not issue

the writ simply because that court concludes in its independent judgment that the state court decision

applied Strickland incorrectly. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (citing Bell v.

Cone, 535 U.S. 685, 698-99 (2002)), rev’d on other grounds, 125 S. Ct. 847, 850 (2005). “Rather,

it is the habeas applicant’s burden to show that the state court applied Strickland to the facts of his

case in an objectively unreasonable manner.” Id.

                                             V. Analysis

          Respondent contends that the district court erred in finding that the trial counsel’s errors

deprived Petitioner of a fair trial and in granting the writ. Respondent claims that the state appellate

court decision was not an unreasonable application of Strickland because the jury would not likely

have given greater credence to the testimony of Petitioner’s expert even if trial counsel had objected

to the admission of DNR 8265. The question here is whether the state appellate court unreasonably

applied Strickland in holding that trial counsel’s failure to object to the admission of DNR 8265

and/or cross-examine Sergeant Portz did not constitute ineffective assistance of counsel.



          The Sixth Amendment right to counsel entitles a defendant to the effective assistance of

counsel. Strickland, 466 U.S. at 686. Strickland sets forth the two-part test for determining

ineffective assistance of counsel. Id. at 687. First, counsel’s performance must be deficient, falling

below an objective standard of reasonable representation. Id. Second, there must be a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been different. Id.

at 694.


                                                   8
                                             I. Cause

       The Ohio Court of Appeals found no cause under the first prong of Strickland because

Petitioner’s counsel had filed a motion to suppress prior to trial and the court denied that motion.

On appeal, Respondent acknowledges that the state court of appeals erred in relying upon the trial

court’s decision to deny a motion to suppress because the motion pertained only to the admissibility

of Petitioner’s BAC and not to Exhibit 7. Respondent also concedes that this ruling was

“unreasonable.” In any event, because we find no prejudice, we need not address the cause prong

of Strickland. See id. at 697 (stating that it is not necessary to address both performance and

prejudice and that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice . . . that course should be followed”). Therefore, we move directly to the

prejudice prong.

                                           2. Prejudice

       The state appellate court did not analyze the prejudice prong of Strickland, having found no

cause. Therefore, our review of this issue is de novo, and no deference is owed to the state court

decision. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In this case, our review is not

circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts

below reached this prong of the Strickland analysis.”); see also Clinkscale v. Carter, 375 F.3d 430,

436 (6th Cir. 2004) (deferential standard of AEDPA inapplicable when state court has not addressed

merits of ineffective assistance of counsel claim); Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.

2003) (same).

       The district court held that there is a reasonable probability that the outcome of Petitioner’s

trial would have been different but for his trial counsel’s performance because without DNR 8265,


                                                 9
there is a reasonable probability that the jury would have had a reasonable doubt about whether

Petitioner was operating the boat. On appeal, Respondent argues that the district court’s conclusion

was erroneous because there is no evidence to support Petitioner’s theory that he was not the driver

of the boat and therefore trial counsel’s performance did not prejudice him. Respondent also argues

that the testimony of Petitioner’s expert was not convincing enough to rebut the testimony of

witnesses who saw Petitioner in the driver’s seat prior to the accident, and thus, was not likely to

have created a reasonable doubt in the minds of the jurors as to who was driving.

        Under the prejudice prong of Strickland, reasonable probability that the result of the

proceeding would have been different is a probability sufficient to undermine confidence in the

outcome. See Strickland, 466 U.S. at 694. As Strickland notes, trial errors are less likely to affect

a verdict with “overwhelming record support.” Id. at 696. Additionally, our task as a habeas court

is not to upset state court judgments by substituting our judgments or opinions. Barefoot v. Estelle,

463 U.S. 880, 887 (1983) (stating that the role of federal habeas proceedings, while important in

assuring that constitutional rights are observed, is secondary and limited, and that federal courts are

not forums in which to relitigate state trials); see also Payne v. Janasz, 711 F.2d 1305, 1310 (6th Cir.

1983) (recognizing that a federal court of appeals reviewing a state court judgment is not acting as

a “super state supreme court”) (quoting Martin v. Wainright, 428 F.2d 356, 357 (5th Cir. 1970)).

        The district court erred in concluding that counsel’s error caused Petitioner to suffer

prejudice. First, even if counsel had objected to DNR 8265 based on Ohio Rule of Evidence 803(8),

Respondent would almost certainly have sought to admit the statement as a party admission.2 See



        2
        Under Ohio Rule of Evidence 801(d)(2)(A), a statement is not hearsay if the statement is
“offered against a party and is (a) his own statement[.]”

                                                  10
State v. Leonard, 818 N.E. 2d 229, 258 (Ohio 2004) (determining that the trial court erred in

admitting certain police reports because they were inadmissible hearsay, but stating that the police

officer who wrote the reports could have testified to the confession made by the defendant as an

admission); State v. Jackson, 565 N.E.2d 549, 558 (Ohio 1991) (reading of police report into

evidence by officer was error, but the error was harmless because the “trial court could properly

admit into evidence, as an admission” what the defendant told the police officer). Second, if

Respondent had admitted DNR 8265 and Petitioner’s counsel had cross-examined Portz, it is

doubtful that this cross-examination would have changed the outcome in Petitioner’s favor.

Petitioner was sufficiently coherent at 2:12 a.m. to have refused to submit to an incriminating blood

alcohol test; surely within minutes of that time he was equally coherent enough to understand the

incriminating nature of the question, “Were you operating the boat?”

       Additionally, there was strong evidence presented against Petitioner. The record shows that

he had been drinking just before getting in his boat, and police observed beer cans in the boat and

in the lake. The hospital took Neace’s blood alcohol level, which registered .148 and was above the

legal limit. Neace himself testified that he was the last person he remembers driving the boat before

he “lost memory.” The Beseckers, a couple who had been socializing at the Single Shack Inn and

were also out on a boat that evening, saw Neace driving his boat only minutes before the accident.

Thomas Bubp, who lived in a house on the lake, testified that he heard the boat going very fast and

that the boat’s speed was constant until the crash. The testimony of the Beseckers and Bubp

established that it would have been difficult for Neace to change positions with Dysert before the

crash, because the boat was traveling at such a high rate of speed. Finally, both sides presented

expert testimony. The state’s expert testified that the back seat passenger would have been ejected


                                                 11
if the boat had been traveling at sufficient speed, thus supporting the theory that Dysert was thrown

out of the boat from the back seat when the boat crashed. While Petitioner’s expert, Michael Pepe,

concluded that Dysert had been the driver, his analysis was flawed in certain ways. With respect

to the computer program he used to simulate the crash, Pepe testified, “I’m not going to say that

what the computer predicted is exactly what took place. There are just too many variables for that.”

Additionally, Pepe concluded that Dysert was the driver because he had lacerations on his right arm

and the windshield shattered during the crash; however, a coroner never found any glass in Dysert’s

lacerations and the lacerations could also have resulted from Dysert hitting the rocks. Given the

evidence before the jury, even if trial counsel had objected to the admission of DNR 8265, the jury

was not likely to have given greater credence to the testimony of Petitioner’s expert that Dysert was

the driver of the boat, when the state’s expert, eyewitness testimony, and other evidence strongly

pointed to Neace as being the driver of the boat.

       Under these circumstances, we do not believe there is a reasonable probability that, but for

counsel’s error, the jury may have had a reasonable doubt as to whether Petitioner was operating the

boat and may not have convicted Petitioner of two counts of aggravated vehicular homicide.

Therefore, there is no clear prejudice under Strickland.

                                         VI. Conclusion

       For the reasons set forth above, the judgment of the district court conditionally granting

Petitioner’s request for habeas corpus is REVERSED.




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