Samatar v. Clarridge

Full title: MAHAD SAMATAR, Petitioner, v. MARK CLARRIDGE, Warden, Respondent

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Feb 16, 2006

Case No. 2:04-cv-1108 (S.D. Ohio Feb. 16, 2006)

Opinion

Case No. 2:04-cv-1108.

February 16, 2006

ORDER AND REPORT AND RECOMMENDATION

NORAH KING, Magistrate Judge

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's traverse, petitioner's motion for discovery, respondent's opposition, petitioner's reply, and the exhibits of the parties.

For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's requests for discovery, Doc. No. 13, and for an evidentiary hearing are DENIED.

I. FACTS

This case involves the following facts, as summarized by the Tenth District Court of Appeals:

Columbus Police Detective Jerry Peters, a member of the Ohio Organized Crime Investigations Commission, Package Interdiction Task Force, testified[FN2] that on February 15, 2001, he received a call from an employee of a local Federal Express ("FedEx") facility regarding a suspicious package. The FedEx International Air Waybill ("waybill") indicated that the package was shipped from Great Britain to "John Goodman" at "84 East Morrill Avenue, Apartment B, Columbus, Ohio, 43207" and contained "wiring equipment." Delivery of the package had been unsuccessful because the address was invalid. Protruding from the package were brownish-red stems of vegetation. Believing the vegetation to be khat (pronounced "cot"), Detective Peters arranged for the package to be picked up under controlled conditions.

FN2. Detective Peters's testimony was stipulated.

"Khat" is the popular name of the plant catha edulis, "a shrub which grows wild and as a cash crop in Kenya, Somalia, Yemen, Djibouti and other countries of Northeastern Africa." (Defendant's post-trial brief, at 4.) Khat leaves are typically chewed, a tradition deeply rooted in the social lives of persons in the Middle East and southeastern Africa. It is estimated that approximately 60 to 70 percent of Somalis in Somalia chew khat on a regular basis and/or brew it into tea and drink it.

Khat contains the psychoactive chemical cathinone, a stimulant. Cathinone is listed as a Schedule I controlled substance under Ohio law. See R.C. 3719.41, Schedule 1, (E)(2). Khat also contains the less potent stimulant, cathine, a Schedule IV controlled substance under Ohio law. See R.C. 3719.41, Schedule IV, (D)(1).

At approximately 8:50 p.m. on February 15, 2001, defendant arrived at the FedEx facility and presented a napkin upon which, among other things, a shipment control number matching that on the waybill and an address, "684 East Morrill Avenue, Apartment # B, 43207," were written. Defendant signed the name "John Goodman" on the signature record and took possession of the package. Defendant was subsequently arrested for possession of a controlled substance. The package was seized and the contents submitted for analysis to the laboratory at the Ohio Bureau of Criminal Investigation ("BCI").

According to Detective Peters, controlled substances are often shipped via a package delivery company such as FedEx. False names and addresses and invoices describing fictitious package contents are often used in the process. Detective Peters further testified that a bundle of fresh khat is generally sold in Columbus for $25 to $40. The price decreases to $15 per bundle as the khat ages and loses its freshness.

Gregory Kiddon, a forensic scientist with over 20 years of experience at BCI, conducted a chemical analysis of the khat. According to Kiddon, the package seized from defendant contained two smaller boxes, each of which contained several small bundles of khat shoots and stems. As part of his chemical analysis, Kiddon weighed each individual bundle and took a representative sample consisting of 10 or 11 grams from each bundle. Each of the samples was chopped into small pieces and ground together. The mixture was then tested. The samples were removed from the boxes on February 16, 2001, and were frozen until the chemical analysis was performed on July 24, 2001. Pursuant to the chemical analysis, Kiddon identified the Schedule I controlled substance known as cathinone in each sample. Kiddon further testified that he found no cathine in any of the samples.

Kiddon prepared a report of his findings, which was submitted as state's Exhibit 7. The report indicates that one of the boxes contained 85 leaf-wrapped bundles of shoots with a gross weight of 13,853 grams. Ten bundles were removed for testing with a net weight of 1,278.04 grams. The report further indicates that the other box contained 85 leaf-wrapped bundles of shoots with a gross weight of 14,292 grams. Ten bundles were removed for testing with a net weight of 1,351.35 grams. According to the report, all of the samples were found to contain cathinone.

Defense counsel attempted to impeach Kiddon's testimony with an article issued by the United States Department of Health and Human Services, entitled "Basis For The Recommendation For Control of Cathinone Into Schedule I Of The Controlled Substances Act" ("HHS report"). Kiddon acknowledged that the article was authoritative. The report expressed the opinion that 100 grams of fresh khat is estimated to contain 36 mg of cathinone and 120 mg of cathine, among many other chemicals. According to the report, within 72 hours of harvest, the naturally occurring cathinone rapidly decomposes into cathine. The report further stated that fresh khat contains 100 times more cathinone than dried khat.

Kiddon acknowledged the foregoing information contained within the report. Kiddon testified that he froze the plant material until the chemical analysis could be performed because he was aware that in the cathinone-to-cathine conversion process, some of the plant's psychotropic potency was lost. When pressed about his finding that the samples he tested contained cathinone, but no cathine, Kiddon admitted that he was surprised by the results but remained firm in his conviction that his chemical analysis was correct. Specifically, Kiddon stated that he could not "find any peaks that I could identify as cathine," and rejected defense counsel's suggestion that he misidentified the cathine as cathinone.

Defendant testified that he came to the United States in June 1998 from his native country of Somalia. He stated that he was familiar with the khat plant, as it was grown and chewed or used to brew tea in Somalia. Defendant further testified that it is a cultural tradition to chew khat at weddings. He further claimed that there was no stimulant effect in khat. According to defendant, khat possession is not illegal in Somalia. He further averred that he had never heard of cathinone and was unaware that khat contained cathinone.

Defendant testified that the khat at issue in this case was sent to the United States by a resident of London, England, named "Abdid," for use at a Somali wedding ceremony. Abdid asked defendant to pick up the package containing khat at the airport. According to defendant, Abdid gave him the shipment control number of the package but did not tell him the name that was on the package. Upon arrival at the FedEx facility, he presented the shipment control number he had been given. When the package was brought to him, he noticed the name written on it. He signed the log with the name that was written on the package.

According to defendant, the khat was harvested in Kenya and shipped to London by airplane. Defendant estimated that the khat was probably kept in Kenya for two to three days before it was shipped to England. Defendant agreed that khat is sold in the Columbus Somali community for $20 to $40 a bundle.

Exhibit 1 to Return of Writ.

II. PROCEDURAL HISTORY

The Tenth District Court of Appeals summarized the procedural history of this case as follows:

[D]efendant was indicted on February 26, 2001, on two counts of drug possession. Count one alleged that defendant knowingly obtained, possessed, or used a Schedule I controlled substance, cathinone, in violation of R.C. 2925.11, in an amount equal to or exceeding 100 times the bulk amount as defined in R.C. 2925.01. Count two alleged that defendant knowingly obtained, possessed, or used a Schedule IV controlled substance, cathine, in violation of R.C. 2925.11, in an amount equal to or exceeding 50 times the bulk amount but less than 100 times the bulk amount as defined in R.C. 2925.01.

Pursuant to defendant's written waiver of jury trial, the matter was tried to the court on August 14, 2001. Prior to the presentation of evidence, the prosecution moved to dismiss count two of the indictment. At the conclusion of the evidence, the court granted the parties' request to file post-trial briefs. After consideration of the evidence and the parties' post-trial briefs, the court issued a decision on November 30, 2001. Therein, the court found defendant guilty of count one and, pursuant to the prosecution's recommendation, entered a nolle prosequi as to count two. By judgment entry filed December 3, 2001, the court sentenced defendant to a prison term of 10 years and ordered him to pay a mandatory fine of $10,000. On December 14, 2001, defendant filed a motion for a new trial, which was denied by the court via judgment entry filed January 29, 2002.

Exhibit 1 to Return of Writ; see also Exhibits 3, 4, 5, and 7 to Return of Writ. In his motion for a new trial, petitioner asserted as follows:

1. Insufficiency of the evidence because testimony of State's expert witness regarding the presence of cathinone and the absence of cathine in khat is scientifically impossible.

2. Petitioner denied due process due to lack of fair warning of nature of offense.

3. Trial court erred in sentencing petitioner to mandatory minimum term.

Exhibit 5 to Return of Writ. On January 29, 2002, the trial court denied petitioner's motion for a new trial. Exhibit 7 to Return of Writ. Represented by new counsel, petitioner filed a timely appeal of his conviction and sentence to the Tenth District Court of Appeals. He asserted the following assignments of error:

1. The trial court erred and abused its discretion in failing to grant the motion for new trial. The denial of the motion for new trial denied appellant due process, the right to present a defense and the effective assistance of counsel in violation of the state and federal constitutions.

2. The appellant was denied the effective assistance of counsel guaranteed by the federal and state constitutions.

A. Counsel failed to present substantive evidence on the scientific makeup of khat which would have established the state's expert's was unreliable and erroneous requiring an acquittal.

B. Counsel failed to properly investigate the chemical analysis provided by the State.

C. Counsel failed to request a continuance mid trial when he learned that the State chemist's test was most probably unreliable and erroneous.

3. To apply a statute banning knowing possession of cathinone to the possession of khat violates due process of law because it fails to give defendants fair warning of what behavior is prohibited, nor a fair opportunity to avoid criminal acts by an acquaintance with the published law.

4. The trial court erred in failing to grant the Crim.R. 29 motion for acquittal as the evidence was insufficient as a matter of law. Additionally, the conviction was against the manifest weight of the evidence.

5. The trial court erred in sentencing appellant to a mandatory minimum ten year sentence because the state failed to prove beyond a reasonable doubt that appellant possessed 100 times bulk amount cathinone.

6. A minimum mandatory ten year sentence for possession of khat violates the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I, § 9 of the Ohio Constitution.

Exhibit 9 to Return of Writ. On September 23, 2002, petitioner filed a supplemental brief in which he asserted the following additional claim:

7. The evidence was insufficient as a matter of law in that the state failed to prove that the quantity of cathinone allegedly possessed by appellant had a stimulant effect. Additionally, the conviction was against the manifest weight of the evidence.

Exhibit 12 to Return of Writ. On March 31, 2003, the appellate court affirmed the judgment of the trial court. Exhibit 1 to Return of Writ. Still represented by counsel, petitioner filed a timely appeal of the appellate court's decision to the Ohio Supreme Court. He asserted the following propositions of law:

1. When significant evidence is presented that weighs heavily against the conviction and directly refutes testimony of a chemist on an essential element of a criminal charge, a court should grant a new trial or at a minimum hold an evidentiary hearing.

2. Reasonable doubt exists when a critical expert witness cannot explain the absence of a known chemical. A conviction based on such testimony violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

3. Trial counsel is ineffective under Strickland v. Washington (1984), 466 U.S. 668, when he fails to present expert testimony at trial which would establish the state's expert's testing was erroneous and unreliable and fails to request a mid-trial continuance when he is surprised by the state's expert's testimony which does not comport with known scientific principles.

4. When the state fails to prove that khat possessed by appellant contains `cathinone', the court cannot find the entire weight of khat should be counted as cathinone in accordance with the fair notice requirement of the Due Process Clause and the Eighth Amendment to the United States Constitution.

5. A minimum mandatory ten year sentence for possession of khat violates the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I, § 9 of the Ohio Constitution.

Exhibit 16 to Return of Writ. On July 16, 2003, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit 18 to Return of Writ. Again represented by the same counsel, on October 8, 2002, petitioner also filed a petition for post conviction relief with the trial court. He asserted the following claims:

1. Trial counsel's performance was deficient in that he failed to properly prepare for the trial and failed to fully investigate the State's case against petitioner.

2. Trial counsel's performance was deficient in that he failed to consult with and present an expert witness on the organic makeup of khat and the State's flawed testing of the material.

3. Trial counsel's performance was deficient in that he failed to request a continuance mid trial when he learned that the State's expert had failed to find cathine although he had tested for the chemical.

4. Trial counsel's performance was deficient in that he failed to request a hearing pursuant to Daubert v. Merrill Dow Pharmeceuticals, Inc., or to file a motion in limine to prevent the admission of Gregory Kiddon's testimony.

5. Trial counsel's performance was deficient in that he failed to argue an Eighth Amendment violation when petitioner was sentenced to an excessive sentence of imprisonment which is grossly disproportionate to the crime and to other state, federal and county sentences for the same offense.

6. Petitioner's sentence violates his constitutional right to protection from cruel and unusual punishment as guaranteed by the Eighth Amendment and due process and equal protection clauses.

7. Trial counsel's performance was deficient in that he failed to present evidence that petitioner was staying at his sister-in-law's residence located at 684 East Morrill Avenue, Apartment B, Columbus, Ohio, when he was arrested.

Exhibit 19 to Return of Writ. On September 30, 2003, the trial court denied the petition. Exhibit 25 to Return of Writ. Petitioner filed a timely appeal of the trial court's decision to the Tenth District Court of Appeals. He asserted the following assignments of error:

1. The trial court erred when it denied appellant Samatar an evidentiary hearing on his petition for post conviction relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution.

2. The trial court erred in its application of the doctrine of res judicata to appellant's claims for relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution and Article I, §§ 1, 2, 5, 9, 10, and 20 of the Ohio Constitution.

3. The trial court abused its discretion in denying appellant Samatar discovery thereby violating his right to an adequate and corrective process for testing the constitutional validity of a criminal conviction or sentence.

Exhibit 27 to Return of Writ. On May 25, 2004, the state appellate court affirmed the judgment of the trial court. Exhibit 30 to Return of Writ. Still represented by counsel, petitioner filed a timely appeal of the appellate court's decision to the Ohio Supreme Court, in which he raised the same propositions of law. Exhibits 31 and 32 to Return of Writ. On September 29, 2004, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit 34 to Return of Writ.

On November 22, 2004, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:

1. Petitioner was deprived of the effective assistance of trial counsel in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

A. Trial counsel failed to properly prepare for the trial by failing to investigate the State's expert report.

B. Trial counsel failed to offer substantive evidence of the organic makeup of khat.

C. Trial counsel failed to present an expert witness on the defendant's behalf.

D. Trial counsel failed to request a mid trial continuance when he was surprised by the State's expert witness.¹

2. The criminal prosecution and conviction of petitioner for the felony crime of aggravated possession of a controlled substance, to wit, cathinone, deprived him of his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution because the language of the statute defining the offense failed to give him fair warning that the simple possession of the dried khat plant would be deemed conduct within its prohibitions and/or failed to give him a fair opportunity to avoid criminal liability by familiarizing himself with the published law.

3. Petitioner was deprived of his right to due process of law under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution for the reason that his conviction for aggravated possession of a controlled substance, to wit, cathinone, in an amount over 100 times the bulk amount, was not supported by sufficient evidence.

4. The imposition of a minimum mandatory ten year prison term for petitioner's possession of the khat plant constituted cruel and/or unusual punishment and violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution.

1 Petitioner initially also raised a claim of ineffective assistance of trial counsel based upon his attorney's failure "to raise an Eighth Amendment challenge to the mandatory sentence imposed on petitioner." See Petition. However, petitioner has withdrawn this claim from the petition. Traverse, at 12.

It is the position of the respondent that petitioner's claims are either procedurally defaulted or without merit.

III. DISCOVERY REQUEST

Petitioner seeks to conduct discovery in support of claims one and three. Both of these claims involve petitioner's allegation that testimony of the State's chemist was flawed. In claim one, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to properly investigate or prepare for trial, and failed to call an expert witness to discredit the State's expert. In claim three, petitioner asserts that the evidence is constitutionally insufficient to sustain his conviction on possession of cathinone in an amount over 100 times the bulk amount. Petitioner requests:

1. All Bureau of Criminal Identification notes, charts, assays, test results used, prepared, or created by Gregory Kiddon in the tests performed on the substance seized from petitioner and any other notes, charges, assays, test results used, prepared, or created by Gregory Kiddon or any other chemist testing khat or catha edulis or testing for cathine or cathinone.

2. Proficiency test results for all BCI chemists or other employees measuring proficiency in testing for cathinone or cathine.

3. Deposition of BCI chemist Gregory Kiddon.

See Discovery Request, Doc. No. 13.

The discovery processes contained in the Federal Rules of Civil Procedure do not automatically apply to habeas corpus actions. "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). In Harris v. Nelson, 394 U.S. 286, 295 (1969), the United States Supreme Court held that the "broad discovery provisions" of the Federal Rules of Civil Procedure did not apply in habeas corpus proceedings. Following Harris, the Rules Governing Section 2254 Cases In United States District Courts were promulgated in 1976.

Specifically, Rule 6(a) provides —

A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.

Under this "good cause" standard, a district court should grant leave to conduct discovery in habeas corpus proceedings only "`where specific allegations before the court show reason to believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that he is . . . entitled to relief. . . .'" Bracy, 520 U.S. at 908-909 (quoting Harris, 394 U.S. at 300). See also Stanford v. Parker, 266 F.3d 442, 460 (6^th Cir. 2001).

"The burden of demonstrating the materiality of the information requested is on the moving party." Stanford, 266 F.3d at 460. Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d at 460. "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact." Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).

Williams v. Bagley, 380 F.3d 932, 975 (6^th Cir. 2004). Upon review of the entire record, this Court is not persuaded that petitioner has met this standard.

Petitioner's request for discovery is therefore DENIED.

IV. PROCEDURAL DEFAULT

Respondent contends that certain claims have been procedurally defaulted. In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both cause for the procedural default, as well as actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986). "First, the court must decide that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6^th Cir. 1985).

Respondent contends that petitioner's allegations in claim one of ineffective assistance of counsel due to counsel's failure to prepare for trial by properly investigating the chemist's report, (claim one A) and failure to present evidence of the chemical composition of khat (claim one B) are procedurally defaulted because petitioner failed to present these claims the Ohio Supreme Court. This Court disagrees.

Petitioner argued in his second proposition of law before the Ohio Supreme Court that he had been denied the effective assistance of counsel because his attorney failed to call an expert witness to refute testimony of the State's expert, and because his attorney failed to request a continuance when he was surprised by that testimony. Petitioner stated:

Trial counsel submitted an affidavit in the Motion for New Trial wherein he stated that he was surprised by Kiddon's testimony even though he had received the chemist's report prior to trial. Although he received the report, the report merely noted a finding of cathinone — it did not note that Kiddon had tested for cathine or that he had not found cathine. In light of the State's dismissal of the count involving cathine, trial counsel believed that the dismissal was to avoid double jeopardy/sentencing concerns arising from conviction of Schedule I and Schedule IV drugs.

Exhibit 16, at 7. Petitioner went on to argue that a defense expert witness would have cast doubt upon the reliability of the State's test results. Id. Inherent in petitioner's claim of ineffective assistance of counsel due to his attorney's failure to call an expert witness, which claim respondent concedes is properly before this Court, is petitioner's allegation that counsel should have investigated further when he saw that the chemist's report did not indicate the presence of cathine, and that an expert witness would have testified, inter alia, regarding the chemical nature of khat in order to discredit the State's expert. This Court therefore concludes that petitioner's claims of ineffective assistance of counsel due to his attorney's failure to investigate and his failure to present evidence of the chemical composition of khat (claims one A and B) were fairly presented to the Ohio Supreme Court. The Court will therefore address the merits of such allegations.

However, in claim two, petitioner asserts that he was denied due process because Ohio's statute prohibiting possession of cathinone fails to provide fair warning that possession of dried khat constitutes a criminal offense. This claim was never presented to the Ohio Supreme Court. Such claim is readily apparent from the face of the record, and was properly raised on direct appeal. See Exhibit 9 to Return of Writ. However, as noted by respondent, petitioner failed to raise this same claim on appeal to the Ohio Supreme Court. Instead, he argued:

When the State fails to prove that all khat possessed . . . contains cathinone, the court cannot find the entire weight of khat should be counted as cathinone in accordance with the fair notice requirement of the Due Process Clause and the Eighth Amendment to the United States Constitution.

Exhibit 16 to Return of Writ, at 8. This is not the same argument that petitioner seeks to raise before this Court, and petitioner may now no longer present claim two to the state courts under Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1982); State v. Perry, 10 Ohio St.2d 175 (1967).

In claim four, petitioner asserts that imposition of a mandatory minimum ten year prison sentence for possession of khat constitutes cruel and unusual punishment in violation of the Eighth Amendment. This claim was raised properly on direct appeal; however, the state appellate court explicitly refused to address the merits of the claim because petitioner had failed to raise the issue in the state trial court:

In his sixth assignment of error, defendant contends that the controlled substances statutory scheme under which he was sentenced to a mandatory minimum of ten years' imprisonment constitutes cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Section 9, Article I of the Ohio Constitution.[FN6] The question of the constitutionality of a statute must generally be raised in the trial court. State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524. The record reveals that defendant did not raise the constitutionality of the statutory scheme at the trial court level. Indeed, the trial court noted in its decision overruling the motion for new trial that "no Eighth Amendment argument is before the court * * *." (Jan. 29, 2002 decision, at 13, fn. 6.) In State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus, the Ohio Supreme Court held that "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." This rule applies to defendant's claim that the controlled substances statutory scheme is unconstitutional as applied to him. The claim was apparent but yet not made before the trial court. Accordingly, defendant's sixth assignment of error is not well taken.

FN6. Defendant has not asserted a facial challenge to the constitutionality of the statutory scheme. Rather, defendant asserts his constitutional challenge only as applied to him.

Exhibit 1 to Return of Writ.

Petitioner nonetheless argues that claim four was properly presented to the state courts in a petition for post conviction relief, which action was denied on the merits by the state trial court. Traverse, at 85; Exhibit 25 to Return of Writ. Regardless, however, of whether the state trial court addressed the merits of claim four in post conviction, the state appellate court explicitly refused to consider the merits of the claim as barred under Ohio's doctrine of res judicata:

Pursuant to the doctrine of res judicata, a defendant who was represented by counsel is barred from raising issues in a petition for post-conviction relief if the appellant raised or could have raised the issue at trial or on direct appeal. State v. Szefcyk (1996), 77 Ohio St.3d 93. The fact that appellant now attaches additional evidence in support of his claims does not make the doctrine of res judicata inapplicable. Appellant cannot simply continue submitting additional evidence in support of his arguments on multiple occasions. As such, this court finds that the doctrine of res judicata does apply to appellant's first and second assignments of error and those assignments of error are hereby overruled.

* * *

Based on the foregoing, this court overrules appellant's first and second assignments of error on the basis that res judicata applies. Appellant's third assignment of error is overruled on the basis that the trial court did not abuse its discretion in refusing to order discovery. Therefore, the judgment of the Franklin County Court of Common Pleas dismissing his petition for post-conviction relief is hereby affirmed.

Exhibit 30 to Return of Writ. In order to determine whether procedural default was enforced, this Court looks to the last explained state court decision. Couch v. Jabe, 954 F.2d 94, 96 (6^th Cir. 1991), citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000).

This Court concludes that claim two has been waived due to petitioner's failure to present that claim to the Ohio Supreme Court. The state courts were never given an opportunity to enforce the procedural rules, due to the nature of petitioner's procedural default of this claim. Claim four has been waived because petitioner failed to raise the issue in that claim to the state trial court. The state appellate court explicitly refused to consider claim four on direct appeal due to petitioner's failure to raise the claim in the trial court. Further, the state appellate court explicitly rejected claim four as barred under the doctrine of res judicata when petitioner attempted to again present such claim in his petition for post conviction relief. This Court therefore deems the first and second parts of the Maupin test to have been met as to claims two and four.

The Court also must decide whether the procedural rules at issue constitute adequate and independent bases upon which to foreclose review of petitioner's federal constitutional claims. This task requires the Court to balance the state's interests behind each procedural rule against the federal interest in reviewing federal claims. See Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rules barring claims two and four constitute adequate and independent state grounds for denying relief. The state courts must be given a full and fair opportunity to remedy alleged constitutional defects. The requirement that all available claims be asserted in the first proceedings serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. The rule that constitutionality of a state statute be raised in the state trial court furthers important state interests in developing a record for appeal and, under certain circumstances, giving the trial judge an opportunity to correct an error at the earliest possible opportunity. Finally, the rule is independent of federal law. Further, the doctrine of res judicata is stated in unmistakable terms in numerous Ohio decisions and Ohio courts have consistently refused to review claims on the merits under that doctrine. See State v. Cole, supra; State v. Ishmail, supra; State v. Perry, supra. Petitioner has waived his right to present claims two and four for federal habeas corpus review; however, he can still secure review of these claims on the merits if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the constitutional violations that he alleges. Petitioner has failed to establish cause or prejudice for his procedural default of claims two and four.

Beyond the four-part Maupin analysis, this Court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333. After review of the record, the Court does not deem this to be such a case.

V. CLAIM ONE: INEFFECTIVE ASSISTANCE OF COUNSEL

In claim one, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to question the State's chemist prior to trial regarding his lab report, which did not reflect the presence of any cathine in the khat material that was analyzed, failed to submit into evidence any "substantive evidence" of the chemical composition of khat, failed to call an expert witness to discredit the State's chemist, and failed to request a continuance when he was surprised by the chemist's testimony the khat material with which petitioner was charged contained no cathine. In support of his claim of ineffective assistance of counsel, petitioner refers to the affidavit of his trial attorney, Sidney L. Moore, Jr., which states in relevant part:

2. Mr. Samater [sic] was originally indicted on both "cathinone" and "cathine".

3. At the outset of the trial the prosecution announced that the "cathine" charge was being dropped.

4. I believed at the time that the state was merely making a choice to go with the schedule I substance rather than the schedule IV substance to avoid problems of double jeopardy.

5. The state's witness then testified that he tested for both cathinone and cathine and that he found cathinone but no cathine.

6. I was totally surprised by this testimony because I had not known prior to that about the zero cathine test.

7. I knew from my reading of khat literature, including DEA literature, that while cathinone is unstable and deteriorates quickly into cathine, the cathine is stable and does not deteriorate, which means that at any point in time the khat would contain its original level of cathine plus any cathine produced by the deterioration of cathinone, with the level of cathine increasing constantly until no more cathinone was left in the plant.

8. In the midst of the trial, however, all I could do is cross-examine the chemist on this anomaly, as will be shown in the transcript.

Exhibit A to petitioner's Motion for a New Trial, Exhibit 5 to Return of Writ. Petitioner also refers to the affidavit of proposed expert witness Michael Jon Kell, MSCHE, M.D., PH.D. which states in relevant part:

7. I am familiar with the plant chemistry of plant catha edulis, otherwise known as "Khat". . . .

8. Based on present scientific knowledge it is uncontroverted that fresh khat, while growing, contains both cathine and cathinone.

9. The ratio of cathine to cathinone in growing khat is between three and four parts cathine for one part cathinone.

10. The cathinone in khat is a precursor chemical which is highly unstable.

11. Within three days after the harvest of khat, the cathinone therein rapidly converts to cathine, so that over time there is less and less cathinone and more and more cathine.

12. The cathine, on the other hand, is a stable chemical and there is no evidence that it [illegible], deteriorates or metabolizes on its own. Cathine in khat will remain in the plant for an extended period of time with no marked reduction.

13. I have been informed that in a recent trial . . . a chemist testified that he had tested a quantity of khat for both cathinone content and cathine content some months after harvest, and that he found cathinone but found no detectable quantity of cathine.

14. I have been informed that the harvested khat in question was seized approximately one week after harvest and that it was refrigerated or frozen thereafter until approximately the time of the testing, some months later.

15. Based on the current scientific knowledge of the khat plant, cathine, cathinone, and the conversion of cathinone to cathine over time I am of the professional opinion, to a reasonable certainty, that it is not chemically possible to have a quantity of harvested khat which contains cathinone but which contains no cathine.

16. Based on the current scientific knowledge of the khat plant, cathine, cathinone, and the conversion of cathinone to cathine over time I am of the professional opinion, to a reasonable certainty, that a finding of cathinone in a quantity of harvested khat which contained no cathine would indicate mistaken testing methodology.

Exhibit B to petitioner's Motion for a New Trial, Exhibit 5 to Return of Writ. Additionally, petitioner refers to the affidavit of Dr. Alfred Staubus in support of this claim. See Traverse, at 27; Exhibit B to petition for post conviction relief, Exhibit 19 to Return of Writ. Staubus avers in his affidavit as follows:

The BCI analysis of khat in [this case] reported only the presence of cathinone without any quantification of the amount detected. The detection of only cathinone without at least some detection of cathine is highly questionable and likely indicates that the BCI laboratory chromatographic separation of cathinone and cathine is worst [sic] than the published DEA laboratory chromatographic separation. The BCI laboratory information provided lacks any actual chromatograms or other details that would permit evaluation of the BCI chromatographic methods used in the analysis of this particular case. The assay used by the BCI laboratory is a gas chromatographic assay having admittedly poor chromatographic separation, not the HPLC assay of choice for the analysis of khat samples. In addition, the BCI laboratory provided no proficiency testing results conducted by any of its staff with regard to the analysis of khat samples. Therefore . . . it would appear that the BCI laboratory has likely misidentified cathine (a Schedule IV compound) as the reported cathinone (a Schedule I compound).

Independent of whether or not the BCI assay has misidentified cathine as cathinone, the BCI laboratory reported no quantification of whatever they are detecting. Consequently, without the knowledge of how much of either cathinone or cathine is present in the sample, it is impossible to determine the number of doses found in the confiscated khat.

Had I been retained by trial counsel prior to the trial, I could have reviewed Gregory Kiddon's lab report. The unexpected reporting of only cathinone would have raised serious questions causing further investigation re: the lack of apparent scientific validity in the assay procedures used by the BCI laboratory in the analysis of khat samples. The information contained in the body of this affidavit and the exhibits would have permitted trial counsel to attack the scientific validity of the test and likely would have prevented its admission under Daubert v. Merril Dow Pharmaceuticals, Inc.

Id. However, the state courts refused to consider Staubus' affidavit, first presented in petitioner's petition for post conviction relief, because petitioner's claim of ineffective assistance of trial counsel had been considered on direct appeal and consideration of the same issue therefore was barred under the doctrine of res judicata, and because petitioner had failed to present Staubus' affidavit earlier in support of his motion for a new trial, when he had the opportunity to do so:

In his first two assignments of error before this court, appellant asserts that he provided sufficient evidence with his petition for post-conviction relief to support his claims that trial counsel had been ineffective in the manner in which counsel handled Kiddon's testimony regarding the "no cathine" finding and counsel's failure to submit expert testimony contradicting Kiddon. Previously in his motion for a new trial, appellant submitted the affidavit of Dr. Kell in support of his theory that Kiddon's testimony was not credible and that counsel was ineffective for not presenting such evidence at trial. As found by the trial court, in its entry denying post-conviction relief, appellant raised these issues in his motion for new trial and they were rejected. Furthermore, on appeal before this court, these issues were raised and thoroughly addressed.

Pursuant to the doctrine of res judicata, a defendant who was represented by counsel is barred from raising issues in a petition for post-conviction relief if the appellant raised or could have raised the issue at trial or on direct appeal. State v. Szefcyk (1996), 77 Ohio St.3d 93. The fact that appellant now attaches additional evidence in support of his claims does not make the doctrine of res judicata inapplicable. Appellant cannot simply continue submitting additional evidence in support of his arguments on multiple occasions. As such, this court finds that the doctrine of res judicata does apply to appellant's first and second assignments of error and those assignments of error are hereby overruled.

Exhibit 30 to Return of Writ. Thus, although neither party has addressed the issue, this Court must consider whether Staubus' affidavit, i.e., evidence not considered by the state courts, may now nonetheless properly be considered by this Court in addressing petitioner's claim of ineffective assistance of counsel in federal habeas corpus review.

Under 28 U.S.C. § 2254(e),

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Id.

Additionally, Rule 7 of the Rules Governing Section 2254 Cases provides:

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.

(b) Types of Materials. The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record.

(c) Review by the Opposing Party. The judge must give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.

In Holland v. Jackson, 542 U.S. 649 (2004), the United States Supreme Court reversed a decision of the United States Court of Appeals for the Sixth Circuit granting a petition for a writ of habeas corpus on the basis of evidence not considered by the state courts. In Holland, the defendant filed — seven years after his murder conviction and after the denial of a petition for post conviction relief wherein the defendant asserted the ineffective assistance of counsel due to trial counsel's failure to investigate — a motion for new trial based on allegedly newly discovered evidence of a witness whose testimony could have impeached that of the State's key witness to the crime. The state courts had refused to consider such evidence in denying the motion for a new trial, stating that

there was "no satisfactory reason given for the defendant's failure to locate this witness"

earlier. Id., at 2736. The United States Court of Appeals for the Sixth Circuit characterized the state court's decision as an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court, however, reversed the Sixth Circuit's decision as follows:

The Sixth Circuit erred in finding the state court's application of Strickland unreasonable on the basis of evidence not properly before the state court. Although the state court had ventured that it would deny relief on the merits even taking Gooch's statement into account, its judgment also rested on the holding that the statement was not properly before it. See App. to Pet. for Cert. 86-89, 95-98. Granting relief in disregard of this independent basis for decision was error.

The "unreasonable application" clause of § 2254(d)(1) applies when the "state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this and related contexts we have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it. See Yarborough v. Gentry, 540 U.S. 1, ____, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam) 124 S.Ct., at 4 (denying relief where state court's application of federal law was "supported by the record"); Miller-El v. Cockrell, 537 U.S. 322, 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (reasonableness of state court's factual finding assessed "in light of the record before the court"); cf. Bell v. Cone, 535 U.S. 685, 697, n. 4, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).

Under the habeas statute, Gooch's statement could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met. See Williams v. Taylor, 529 U.S. 420, 431-437, 120 S.Ct. 1479 (2000). Those same restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing. See, e.g., Cargle v. Mullin, 317 F.3d 1196, 1209 (C.A.10 2003), and cases cited. Where new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer. See, e.g., Monroe v. Angelone, 323 F.3d 286, 297-299, and n. 19 (C.A.4 2003). Assuming, arguendo, that this analysis is correct and that it applies where, as here, the evidence does not support a new claim but merely buttresses a previously rejected one, it cannot support the Sixth Circuit's action.

The District Court made no finding that respondent had been diligent in pursuing Gooch's testimony (and thus that § 2254(e)(2) was inapplicable) or that the limitations set forth in § 2254(e)(2) were met. Nor did the Sixth Circuit independently inquire into these matters; it simply ignored entirely the state court's independent ground for its decision, that Gooch's statement was not properly before it. It is difficult to see, moreover, how [defendant] could claim due diligence. . . .

Id., at 2737-38. See also Owens v. Frank, 394 F.3d 490, 497 (7^th Cir. 2005):

[A]ffidavits providing new information in a habeas petition will rarely permit resolution of a claim without an evidentiary hearing to assess credibility. See, e.g., Rules Governing § 2254 Cases, Rule 7, advisory committee note ("When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive." (quoting Raines v. United States, 423 F.2d 526, 529-30 (4th Cir. 1970))); Smith v. Zant, 887 F.2d 1407, 1433 n. 15 (11th Cir. 1989) (". . . We previously have expressed doubts as to whether a credibility determination can be fairly made on a paper record."). Therefore, the information that [petitioner] wishes to present by affidavit actually requires testimonial evidence that necessitates not only inclusion of documents into the expanded record, but also concomitant credibility determinations.

. . . When expansion of the record is used to achieve the same end as an evidentiary hearing, the petitioner ought to be subject to the same constraints that would be imposed if he had sought an evidentiary hearing." Id. at 790 (citations and footnote omitted). We therefore held that the petitioner must satisfy § 2254(e)(2)'s "requirements before he may place new factual information before the federal court."

Owens v. Frank, supra, 394 F.3d at 498, quoting Boyko v. Parke, 259 F.3d 781, 790 (7^th Cir. 2001); Cargle v. Mullin, supra, 317 F.3d at 1209, citing Boyko v. Parke, supra, and Dorsey v. Chapman, 262 F.3d 1181, 1190 (11^th Cir. 2001); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1141-42 (9^th Cir. 2005).

In the case presently before this Court, petitioner has failed to demonstrate that he meets the requirements of 2254(e) for this Court's consideration of the Staubus affidavit.

Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court . . . Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see 2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see § 2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute's later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not.

Williams v. Taylor, 529 U.S. 420, 435 (2000). As noted by the state appellate court, see Exhibit 30, petitioner has advanced no reason that he could not have presented the Staubus affidavit when he first had the opportunity to do so, i.e., in support of his motion for a new trial. Accordingly, the Magistrate Judge concludes that this Court, likewise, may not now consider such evidence in support of petitioner's claim.

Petitioner's request for an evidentiary hearing must likewise be denied under 28 U.S.C. § 2254(e).

Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.

Williams v. Taylor, supra, 529 U.S. at 437. It appears from the record that petitioner never requested an evidentiary hearing upon submission of the Kell affidavit in his motion for a new trial. The state appellate court therefore held that the issue of whether the trial court should have conducted an evidentiary hearing prior to dismissing petitioner's motion for a new trial had been waived. See Exhibit 1 to Return of Writ; State v. Samatar, 152 Ohio App.3d 311, 327 n. 3 (10^th App. District, 2003).

The state appellate court rejected petitioner's claim of ineffective assistance of counsel as follows:

[D]efendant contends that he was denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and Section 11, Article VIII of the Ohio Constitution. In particular, defendant maintains that defense counsel was ineffective in failing to interview Kiddon before trial, in failing to present substantive evidence on the organic makeup of khat via an expert witness, and in failing to request a continuance after Kiddon's "no cathine" testimony.

In State v. Johnson (May 30, 2000), Franklin App. No. 99AP-753 and 99AP-754, this court explained the applicable standard for addressing a claim of ineffective assistance of counsel:

"In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Initially, defendant must show that counsel's performance was deficient. To meet that requirement, defendant must show that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Defendant may prove counsel's conduct was deficient by identifying acts or omissions that were not the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690.

"Next, if defendant successfully proves that counsel's assistance was ineffective, the second prong of the Strickland test requires defendant to prove prejudice in order to prevail. Id. at 692 [ 104 S.Ct. 2052, 80 L.Ed.2d 674]. To meet that prong, defendant must show counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. Id. at 687. See, also, State v. Underdown (1997), 124 Ohio App.3d 675, 679. A defendant meets the standard with a showing `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. at 694."

A properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301. Moreover, there is "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *.'" State v. Bradley (1989), 42 Ohio St.3d 136, 142, quoting Strickland at 689. Additionally, the effective assistance of counsel does not guarantee results. State v. Longo (1982), 4 Ohio App.3d 136. "A failure to prevail at trial does not grant an appellant license to appeal the professional judgment and tactics of his trial attorney." State v. Hart (1988), 57 Ohio App.3d 4, 10. Moreover, reviewing courts must not use hindsight to second-guess trial strategy, and must keep in mind that different trial counsel will often defend the same case in different manners. See Strickland at 689.

Defendant first asserts that because defense counsel had Kiddon's report 12 days prior to trial, he should have called Kiddon before trial and questioned him about the report. Reasonable trial tactics can explain defense counsel's failure to interview the state's expert witness before trial. Pretrial questioning of Kiddon could have alerted him to particular lines of inquiry, thereby allowing Kiddon to prepare further and/or rob defense counsel's cross-examination of some of its force. In addition, defense counsel has admitted familiarity with the organic makeup of khat and, under the circumstances, could have reasonably anticipated that he would be fully prepared to handle all conceivable eventualities in Kiddon's testimony. Although defense counsel has asserted in his affidavit that he was "totally surprised" by Kiddon's testimony, nothing in that affidavit precludes the notion that defense counsel may have had reasonable grounds for not interviewing Kiddon before trial. Indeed, defense counsel does not admit that he should have interviewed Kiddon prior to trial. Even if hindsight suggests that defense counsel should have interviewed Kiddon, we have already noted that such hindsight is inappropriate under Strickland. Moreover, defense counsel thoroughly cross-examined Kiddon at trial on his "no cathine" finding.

Defendant next asserts that defense counsel was ineffective in failing to seek a continuance after Kiddon's "no cathine" testimony and call an expert witness such as Dr. Kell. Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if a better strategy had been available. See State v. Phillips (1995), 74 Ohio St.3d 72, 85. The decision whether to call a witness is generally a matter of trial strategy and, absent a showing of prejudice, does not deprive a defendant of effective assistance of counsel. State v. Williams (1991), 74 Ohio App.3d 686, 694. Further, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Hartman (2001), 93 Ohio St.3d 274, 299. In fact, in many criminal cases trial counsel's decision not to seek expert testimony "is unquestionably tactical because such an expert might uncover evidence that further inculpates the defendant." State v. Glover, Clermont App. No. CA2001-12-102, 2002-Ohio-6392, 2002 WL 31647905, at ¶ 95. "Further, even if the wisdom of such an approach is debatable, `debatable trial tactics' do not constitute ineffective assistance of counsel." Id., quoting State v. Clayton (1980), 62 Ohio St.2d 45, 49.

As we have already mentioned, defense counsel effectively cross-examined Kiddon at trial. Further, Dr. Kell's affidavit was before the trial court on defendant's motion for new trial. Accordingly, the trial court was aware of what Dr. Kell would have testified to at trial. Even after review of Dr. Kell's affidavit testimony, the trial court continued to find Kiddon's testimony credible.

Because it appears that defendant cannot establish that trial counsel's decision not to interview Kiddon before trial or to seek a continuance for the purpose of calling an expert witness was anything more than sound trial strategy, the issue of whether trial counsel's decision prejudiced defendant's defense need not be considered. See State v. Madrigal (2000), 87 Ohio St.3d 378, 389. ("A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other."). We thus reject defendant's claims of ineffective assistance of trial counsel. Accordingly, defendant's second assignment of error is not well taken.

Exhibit 1 to Return of Writ.

The factual findings of the state appellate court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). Further,

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim —

(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).

A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.

Williams v. Taylor, supra, 529 U.S. at 405-406.

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 relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id., at 411. Petitioner has failed to establish that the state court's findings are so unreasonable as to justify federal habeas corpus relief.

The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668 (1983); see also Blackburn v. Foltz, 828 F.2d 1177 (6^th Cir. 1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.

To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., at 697. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697.

Petitioner argues that trial counsel's failure to question Kiddon upon review of the lab report, and his failure to request a continuance to present expert testimony, could not constitute "sound trial strategy," and that the state appellate court's conclusion to the contrary is an unreasonable application of federal law or an unreasonable determination of the facts in view of the evidence presented. Traverse, at 16-17. This Court is not persuaded by petitioner's argument.

It is well-established that "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The duty to investigate derives from counsel's basic function, which is "`to make the adversarial testing process work in the particular case.'" Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at 690). This duty includes the obligation to investigate all witnesses who may have information concerning his or her client's guilt or innocence. See Bryant v. Scott, 28 F.3d 1411, 1419 (5th Cir. 1994) (citing Henderson v. Sargent, 926 F.2d 706, 711 (8th Cir. 1991)). "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. "The relevant question is not whether counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); accord Clinkscale, 375 F.3d at 443. A purportedly strategic decision is not objectively reasonable "when the attorney has failed to investigate his options and make a reasonable choice between them." Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (cited in Combs, 205 F.3d at 288).

Courts have not hesitated to find ineffective assistance in violation of the Sixth Amendment when counsel fails to conduct a reasonable investigation into one or more aspects of the case and when that failure prejudices his or her client. For example, in the recent case of Wiggins v. Smith, the Supreme Court held that the petitioner was entitled to a writ of habeas corpus because his counsel had failed to conduct a reasonable investigation into potentially mitigating evidence with respect to sentencing. 539 U.S. at 524-29. According to the Court, "counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentence strategy impossible." Id. at 527-28. Consistent with Wiggins, we have held, in a variety of situations, that counsel's failure to investigate constituted ineffective assistance in violation of the Sixth Amendment. See, e.g., Combs, 205 F.3d at 287-88 (holding that defense counsel was constitutionally ineffective for failing to investigate adequately his own expert witness, who testified that, despite the defendant's intoxication at the time of the crime, the defendant nevertheless was capable of forming the requisite intent to commit the crimes); Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir. 1992) (holding that counsel was constitutionally ineffective for failing to conduct an investigation into certain physical evidence that would have undermined the prosecution's theory that the victim was shot at a distance); Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) (holding that counsel's failure "to investigate a known and potentially important alibi witness" constituted ineffective assistance because "[c]ounsel did not make any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason investigation was not necessary"); see also Clinkscale, 375 F.3d at 443 (collecting cases in which counsel's failure to investigate a potentially important witness constituted ineffective assistance).

Towns v. Smith, 395 F.3d 251, 258-59 (6^th Cir. 2005). However,

[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

* * *

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, supra, 466 U.S. at 689-90.

As noted by the state appellate court, the record in this case reflects that trial counsel was familiar with the substances at issue and therefore may have reasonably anticipated being able to effectively cross-examine the State's chemist regarding any issues which may have arisen. Trial counsel mailed a copy of a study by the Department of Heath and Human Services ["the HHS study"] on cathinone to Kiddon prior to trial, which document Kiddon recognized as an authoritative source of information on the substances at issue, and with which trial counsel attempted to impeach Kiddon. Transcript, at 23-25. Further, and contrary to petitioner's allegations here, the record offers support for the state appellate court's conclusion that trial counsel's decisions not to present an expert witness, request a continuance, or offer the HHS study into evidence, were decisions of trial strategy. Although trial counsel states in his affidavit that he was "totally surprised" by Kiddon's trial testimony regarding the no-cathine finding, the state appellate court concluded as follows:

Kiddon's report was provided to the defense on August 2, 2001, 12 days before trial. In the report, Kiddon stated that he tested the khat samples and found cathinone. The report was silent on cathine. The trial court concluded that Moore could not have been surprised by Kiddon's testimony because, given that defendant was originally charged with possession of both cathinone and cathine, Moore (who admitted familiarity with the organic makeup of the khat plant), in ordinary prudence, could have anticipated that there might have been a problem with Kiddon's findings. Defendant points to Moore's affidavit testimony wherein he stated that he believed that Kiddon's failure to mention cathine in the report was due to the prosecution's decision to stop testing for cathine after finding cathinone so as to avoid potential double jeopardy arguments if convicted on both and that he did not learn of the "no cathine" finding until trial, as proof that he was unaware that Kiddon's testimony might prove problematic until he was confronted with the testimony at trial. Moore's affidavit was before the trial court when it ruled on the motion for new trial. As with any testimony, the trial court was free to believe or disbelieve any or all of Moore's testimony. In the instant case, it is entirely possible that the trial court disbelieved Moore's testimony on this issue. Such is the purview of the trial court. DeHass, supra.

Exhibit 1 to Return of Writ. Additionally, the state appellate court noted:

Defense counsel cross-examined Kiddon extensively about the "no cathine" finding. . . . The defense was apparently satisfied that cross-examination of Kiddon, including use of the HHS report to impeach his testimony, was sufficient to counter his testimony on the issue. Further, the trial court took the case under advisement to allow post-trial briefing. The trial court did not render its decision for over three months, yet the defense never sought to reopen its case to call an expert. . . . [D]efense had ample opportunity to counter Kiddon's [testimony]. . . .

Id. Although trial counsel's decision to rely on his cross-examination of Kiddon to persuade the trial judge that the lab report was inaccurate was ultimately unsuccessful, this Court cannot view trial counsel's performance through the prism of hindsight. See Strickland, supra. The Court is unable to characterize trial counsel's performance as unreasonable.

Even assuming that trial counsel's performance was unreasonable under the first prong of Strickland, petitioner has nevertheless failed to establish that he was prejudiced thereby.

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Id., at 686.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 866-867 (1982), and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

* * *

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. . . . Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id., at 693-96. As discussed by the state appellate court in its decision affirming the trial court's refusal to grant petitioner's motion for a new trial:

"* * * The fact that another expert witness may insist that his or her view of a scientific area is the only scientifically acceptable view is not conclusive. Here, belatedly, the defendant has offered opinion testimony which differs from the opinion testimony given by an expert witness at trial. To accept the view of Dr. Kell and reject the testimony of the state's witness would require the court to find that the non-appearing affiant was somehow more credible than the witness who did appear and did testify at trial. There is no basis for the court to conclude that only Dr. Kell's opinion counts or that Dr. Kells's [sic] view of the correct scientific standard is the only view that is acceptable. He may be correct. He may be incorrect. That he differs with the opinion of the state's witness does not mean the state's witness committed misconduct." (Jan. 29, 2002 decision, at 5.)

* * *

We . . . note that defendant was found guilty of possession of cathinone, not cathine. Kiddon's alleged improper finding of "no cathine" does not inherently or necessarily cast doubt on his finding that the khat in defendant's possession contained cathinone. It was not impossible for Kiddon to legitimately find cathinone but then make a mistake regarding cathine. Kiddon was cross-examined extensively on this issue and, although he admitted being "surprised" in finding no cathine in the khat, he was unwavering in his testimony that he was correct regarding his finding of cathinone. Thus, even if it had been "scientifically impossible" for Kiddon to fail to find cathine, it was not impossible for him to find cathinone. In addition, we note that Dr. Kell's affidavit does not dispute Kiddon's finding that the khat could have contained cathinone. Dr. Kell did not state that cathinone ever completely disappears from khat. Dr. Kell disputes only Kiddon's "no cathine" finding.

In addition, we agree with the trial court's finding that the mere fact that Kiddon's expert testimony conflicted with that of Dr. Kell and/or the information provided in the HHS study did not connote that Kiddon's testimony constituted witness misconduct. As the trial court noted, each of the experts in this case was entitled to his opinion on the methodology to be employed in analyzing the khat and the conclusions to be drawn from such an analysis. Conflicting testimony, including differing opinions offered by expert witnesses, merely places the credibility of the witnesses in issue. See State v. Mattison (1985), 23 Ohio App.3d 10. As the trial court noted, when the opinions of expert witnesses differ on methodology, analysis employed, or ultimate opinion, the trier of fact must determine which expert to believe. The determination of witness credibility and the weight to be accorded to that testimony is solely within the province of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In the instant case, the trial court chose to believe Kiddon's testimony and reject that of Dr. Kell. The trial court was clearly entitled to do so, and we decline to substitute our judgment for that of the trial court.

In addition, the HHS study upon which defendant relies does not constitute substantive evidence that Kiddon's finding of "no cathine" was "scientifically impossible.". . . .

In the instant case, there was no stipulation that the contents of the report were true or accurate. In addition, although Kiddon acknowledged the report as an authoritative source of information regarding the khat plant, the report does not, as defendant suggests, constitute "scientifically established fact" (appellant's brief at 12), that is, substantive evidence of the organic makeup of the khat plant. The report could only be used for the limited purpose of impeachment. Id. As noted previously, defense counsel attempted to impeach Kiddon's testimony through use of the report. However, Kiddon remained firm in his conviction that his chemical analysis was correct and rejected the suggestion that he misidentified the cathine as cathinone. Further, the report does not definitively state whether cathinone or cathine ever completely disappear from khat.

* * *

Defendant was convicted of possession of cathinone, not cathine. Kiddon's "no cathine" finding did not inherently cast doubt on his finding that the khat contained cathinone. Kiddon could have legitimately found cathinone while being mistaken about cathine. Further, Moore admitted in his affidavit that he cross-examined Kiddon at length about the alleged anomaly. In addition, Moore did not raise the issue of surprise during Kiddon's testimony (or in the three-month period between trial and release of the trial court's decision).

Exhibit 1 to Return of Writ.

In sum, nothing in the record before this Court establishes conclusively that Kiddon's testimony regarding the presence of cathinone was erroneous, or that presentation of an expert witness or other evidence would have doubt cast on his test results beyond that already cast by the HHS study. In view of the foregoing, and for the reasons discussed at length by the state appellate court, this Court concludes that petitioner has failed to establish that the decision of the state appellate court is contrary to or an unreasonable application of clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d), (e); Williams v. Taylor, supra, 529 U.S. at 362.

Claim one is without merit.

VI. CLAIM THREE: SUFFICIENCY OF THE EVIDENCE

In claim three, petitioner contends that the evidence is constitutionally insufficient to sustain his conviction for aggravated possession of a controlled substance, i.e., cathinone, in an amount over 100 times the bulk amount, in violation of O.R.C. § 2925.11.

Before a criminal defendant can be convicted consistent with the United States Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine whether the evidence was sufficient to support a conviction, this Court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, at 326). "[A] reviewing court `faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. (quoting Jackson, at 326).

Petitioner first asserts that the evidence is constitutionally insufficient to sustain his conviction because Kiddon's testimony was inaccurate and based on faulty scientific methods, and would have been inadmissible under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Traverse, at 61. Petitioner's argument is not persuasive.

The state appellate court rejected petitioner's argument that the trial court should have granted his motion for a new trial because Kiddon's testimony was inadmissible under Daubert:

[D]efendant maintains that the trial court abused its discretion in accepting Kiddon's testimony when, in defendant's view, that testimony was not credible. This argument basically repackages defendant's contention that the trial court should have accepted defendant's impeachment material and Dr. Kell's testimony, rather than the testimony of Kiddon. As we have previously observed, impeachment material may not be considered as substantive evidence. Further, the trial court was free to accept Kiddon's testimony and reject that of Dr. Kell. Indeed, the trial court noted in its decision denying the motion for new trial that it found Kiddon's testimony credible and that it was not required to, and did not, accept the views espoused by Dr. Kell. Having found Kiddon's testimony credible, there was sufficient evidence to support the prosecution's contention that the khat possessed by defendant contained cathinone.

Exhibit 1 to Return of Writ. The state appellate court likewise rejected petitioner's argument that the evidence was constitutionally insufficient to sustain his conviction because Kiddon's testimony was not trustworthy:

In reviewing a claim that a criminal conviction is against the sufficiency of the evidence, an appellate court must determine whether the evidence presented at trial, viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. In other words:

"A challenge to the sufficiency of evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial. On review for sufficiency, courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. * * *" Thompkins, supra, 78 Ohio St.3d at 390 (Cook, J., concurring).

Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. at 386.

R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a controlled substance." The evidence at trial established that defendant took possession of over 28,000 grams of khat. The state's expert, Kiddon, testified that the khat contained cathinone. R.C. 3719.41 provides that cathinone is a Schedule I controlled substance. Under his sufficiency argument presented in his fourth assignment of error, defendant does not contend that he did not knowingly possess khat and/or cathinone, nor does he argue that cathinone is not a controlled substance. Rather, defendant contends only that Kiddon's testimony that the khat contained cathinone was not credible. In support of his contention, defendant cites the testimony provided in Dr. Kell's affidavit and the information contained in the HHS report. As noted previously, in reviewing sufficiency of the evidence, this court does not assess the credibility of witnesses. See Jenks, supra; Thompkins, supra. Kiddon's testimony that the khat seized from defendant contained cathinone was sufficient for a rational trier of fact to conclude that defendant possessed a controlled substance.

Exhibit 1 to Return of Writ.

To the extent that petitioner now argues that Kiddon's testimony was constitutionally prohibited under Daubert and therefore improperly relied upon as a basis to sustain his conviction on possession of cathinone, his argument was not raised at trial, has never been presented to the state courts and does not appear in petitioner's initial habeas corpus petition. Petitioner attempted to raise a claim of ineffective assistance of counsel due to his attorney's failure to object to Kiddon's testimony as inadmissible under Daubert in his October 8, 2002, petition for post conviction relief; however, the state courts refused to address such claim as barred under Ohio's doctrine of res judicata. See Exhibits 25 and 30 to Return of Writ. Thus, petitioner's allegation that Kiddon's testimony was inadmissible under Daubert may be procedurally defaulted. Further, the Court will not permit petitioner, who is represented by counsel, to effectively amend his habeas corpus petition by re-casting his arguments in the traverse. Moreover, the Supreme Court's decision in Daubert concerns the admissibility of evidence under Federal Rule of Evidence 702, and therefore arguably is inapplicable here.

Like the state appellate court, a federal habeas court reviewing a sufficiency of the evidence claim must defer to the trier of fact with respect to issues of conflicting testimony, weight of the evidence and the credibility of the witnesses. Jackson, 443 U.S. at 319; Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983). For the reasons discussed by the state appellate court, this Court therefore likewise concludes that, when viewing all of the evidence, including the testimony of Kiddon, in the light most favorable to the prosecution, see Jackson v. Virginia, supra, the evidence is constitutionally sufficient to sustain petitioner's conviction on aggravated possession of cathinone.

Petitioner asserts that the evidence is constitutionally insufficient to sustain his conviction on possession of cathinone in more that 100 times the bulk amount, because

[t]he State failed to prove that all of the khat possessed by petitioner contained "cathinone", and that therefore the entire weight of the khat should be counted as cathinone.

Petition, at 21; Traverse, at 65-70. Additionally, petitioner asserts that

[t]he State failed to prove that the quantity of cathinone in petitioner's possession was capable of having a stimulant effect on the central nervous system.

Petition, at 23.

The state appellate court rejected these claims in relevant part as follows:

[D]efendant contends that the trial court erred in denying his motion for new trial on grounds that the sentence imposed upon him was not applicable to the facts of the case. Specifically, defendant contends that the state failed to prove beyond a reasonable doubt that he possessed cathinone in a quantity equal to or exceeding 100 times the bulk amount. Defendant raises the same arguments in his fifth assignment of error.

This court adopts the well-reasoned conclusion of the trial court:

"The defendant was charged with possession of drugs, R.C. 2925.11, in that he knowingly possessed a controlled substance. The penalty for knowing possession of a controlled substance depends upon the type and amount of the controlled substance possessed. Thus, pursuant to R.C. 2925.11(C)(1)(e):

"`[I]f the drug involved * * * is a compound, mixture, preparation or substance included in schedule * * * (and if) * * * the amount of the drug involved exceeds one hundred times the bulk amount, aggravated possession of drugs is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree * * *.'

"`Bulk Amount' of a controlled substance is defined in R.C. 2925.01(D). The term `bulk amount' applies to the gross amount of `* * * any compound, mixture, preparation or substance * * *' not merely the specific chemical compound in its purest form. Thus, in the case of a Schedule I stimulant (the instant case), bulk amount is:

"`An amount equal to or exceeding thirty grams or ten unit doses of a compound, mixture, preparation, or substance that is or contains any amount of a schedule I * * * stimulant * * *' R.C. 2925.01(D)(1)(c).

"The defendant argues that plant material, (khat), does not fall within the words `compound, mixture, preparation or substance' and therefore, he is guilty of at most, simple possession, a felony of the fifth degree.

"From a review of the foregoing statutes, it is clear that the legislature intended to prohibit the possession of any amount of a controlled substance, whether the substance occurs in its purest state or when mixed with or contained in another form. While vegetation may not readily fall within the definition of the words compound, mixture or preparation, vegetation does fall within the common definition of substance. Substance is defined in the Oxford Dictionary as follows: `substance/n. 1a. the essential material * * *.' Here the `essential material' is the vegetation containing cathinone. Therefore, the entire amount is included to determine the quantity involved and the penalty to be imposed." (Jan. 29, 2002 decision, at 11-13; footnotes omitted.)

Defendant attempts to draw a distinction between the use of the word "material" in the Schedule I list and the word "substance" in the definition of "bulk amount." As noted by the trial court, however, defendant's argument is flawed. Defendant assumes that khat can qualify as "any material * * * that contains any quantity" of cathinone for purposes of Schedule I. Even though khat would thereby qualify as a Schedule I "material," defendant contends that khat would not be included in the "bulk amount" definition for Schedule I stimulants, since the "bulk amount" definition refers, without reference to "material," to "[a]n amount * * * of a compound, mixture, preparation, or substance that is or contains any amount of * * * a schedule I stimulant." However, as the trial court recognized, "material" is one way of defining "substance," and so "material" and "substance" are substantially equivalent.

The state contends, and we agree, that defendant's argument would create an absurd result. It assumes that khat is banned as a Schedule I "material" but that no "bulk amount" has been established. The "bulk amount" definitions support the view that the General Assembly meant to provide an exhaustive list for "bulk amounts" for each drug schedule. The General Assembly would not have banned khat/cathinone under Schedule I and then not provide an appropriate "bulk amount" by which to prosecute the most egregious offenses. The schedules and "bulk amount" definitions were meant to work together.

Defendant also contends that the state failed sufficiently to prove that he possessed an amount of cathinone equal to or exceeding the bulk amount because Kiddon tested only a sample of the seized khat and did not test each individual stem.

The random-sampling method of testing has been upheld by several courts, including this one. State v. Smith (Dec. 23, 1997), Franklin App. No. 97APA05-660, 1997 WL 798301; State v. Rose (2001), 144 Ohio App.3d 58; State v. Mattox (Nov. 18, 1983), 13 Ohio App.3d 52; In re Lemons (1991), 77 Ohio App.3d 691; State v. Smith (Oct. 4, 1990), Cuyahoga App. No. 57572, 1990 WL 145618. These cases hold that the random-sampling method of testing creates a reasonable inference that all similar contraband contains the same controlled substance as that tested, at least when the contraband is recovered together and similarly packaged. Accordingly, evidence of the random-sampling method is sufficient as a matter of law to support a determination that the entire substance recovered together and similarly packaged is the same controlled substance as that tested. See Smith, supra.

In the instant case, evidence was introduced at trial sufficient to support the inference that all of the khat seized contained cathinone. As noted above, Kiddon testified that the package seized from defendant contained two smaller boxes, each of which contained 85 bundles of khat. He weighed the contents of each box separately. He then performed tests on a total of 20 random samplings taken from the boxes. Kiddon testified that he chopped each sample into small pieces and ground the pieces together. All 20 tests indicated the presence of cathinone. Kiddon further testified that the gross weight of the first box was 13,853 grams and the gross weight of the second box was 14,292 grams. Thus, the total gross weight of the seized khat was 28,145 grams, more than 100 times the bulk amount for a Schedule I stimulant at the time the offense was committed. See R.C. 2925.01(D)(1)(c) (establishing bulk amount of a Schedule I stimulant as 30 grams). Accordingly, the evidence presented at trial was sufficient to support the trial court's determination that defendant possessed more than 100 times the bulk amount of cathinone.

Defendant raises an additional sufficiency argument in his seventh assignment of error. Specifically, defendant maintains that the evidence at trial was insufficient to support his conviction because the state failed to offer any proof that the quantity of cathinone possessed by defendant was sufficient to have a stimulant effect on the central nervous system. It is undisputed that the state offered no such proof; however, the state argues that the statute imposes no such requirement. The question resolves, then, to one of statutory construction.

The interpretation of a statute is a question of law subject to de novo review. Neiman v. Donofrio (1992), 86 Ohio App.3d 1. "In construing a statute, a court's paramount concern is the legislative intent in enacting the statute." State v. S.R. (1992), 63 Ohio St.3d 590, 594. To determine the legislative intent, a court must look to the language of the statute. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 104. Words used in a statute are to be taken in their usual, normal, and customary meaning. State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 173. Further, unless a statute is ambiguous, the court must give effect to the plain meaning of a statute. Id. When a court must interpret a criminal statute, which defines offenses or penalties, the language should be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04(A); State v. Hill (1994), 70 Ohio St.3d 25, 31. However, a court's interpretation should not be unduly technical, arbitrary, severe, artificial, or narrow. State v. Brown (App. 1960), 85 Ohio Law Abs. 85.

A person may be found guilty of aggravated possession of drugs "[i]f the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I * * *." R.C. 2925.11(C)(1). Cathinone is listed as a Schedule I drug:

"(E) Stimulants

"Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers:

"* * *

"(2) Cathinone. * * *" (Emphasis added.) R.C. 3719.41 Schedule I, (E)(2).

Ohio's schedule of controlled substances classifies a number of different substances using phrases like the one at issue here. For example, R.C. 3719.41, Schedule I(D), Schedule II(D), and Schedule III(B) classify various depressants as "[a]ny material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system." (Emphasis added.) R.C. 3719.41 Schedule I(C), Schedule II(C), Schedule III(A), Schedule IV(D), and Schedule V(C) classify various stimulants as "any material, compound, mixture, or preparation that contains any quantity of the following substances having a stimulant effect on the central nervous system." (Emphasis added.) We can find no Ohio decision, nor was any cited to us, which addresses the issue raised by defendant. There is, however, authority from other jurisdictions that is helpful, and certainly reference to decisions of courts in other jurisdictions as a means of interpreting a body of law is an accepted practice. Ohio Ins. Guar. Assn. v. Simpson (1981), 1 Ohio App.3d 112, 113.

Defendant relies on Commonwealth v. Teada (1975), 235 Pa.Super. 438, 344 A.2d 682, in support of his argument that the phrase "having a stimulant effect" adds an element that must be proven by the state. In Teada, the court interpreted a statute which included in the class of Schedule III controlled substances "[a]ny material, compound, mixture, or preparation unless specifically excepted or unless listed in another schedule which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system * * *." Id. at 683. The court held that the phrase "having a potential for abuse associated with a depressant effect" modified the word "quantity"; thus, the state was required to prove that the quantity of the controlled substance possessed was sufficient to have a depressant effect on the central nervous system. In so holding, the court reasoned that the statutory scheme evinced the legislature's intent to impose greater restrictions on the more dangerous substances and greater proof requirements on the prosecution as the criminal inquiry moved from the most dangerous substances to the least dangerous ones. Id. at 684. The court also concluded that its interpretation prevented the phrase from being mere surplusage. Id. This reasoning has, however, been uniformly rejected by courts in other jurisdictions.

Indeed, most jurisdictions faced with a similar interpretation question have concluded that the government is not required to prove that the quantity of the drug in question had a stimulant or depressant effect. See, for example, United States v. Durham (C.A.9, 1991), 941 F.2d 886; United States v. Picklesimer (C.A.3, 1978), 585 F.2d 1199; United States v. White (C.A.7, 1977), 560 F.2d 787; United States v. Nickles (C.A.5, 1975), 509 F.2d 810; State v. Light (App. 1993), 175 Ariz. 62, 852 P.2d 1246; State v. Hernandez (App. 1986), 104 N.M. 97, 717 P.2d 73; State v. Ali (Minn.App. 2000), 613 N.W.2d 796; State v. Collinsworth (1975), 96 Idaho 910, 539 P.2d 263; People v. Moran (Colo.App. 1999), 983 P.2d 143.

Several of these jurisdictions have determined that phrases such as the one at issue here are intended to guide the legislature in classifying and categorizing new controlled substances and are not an element required to be proven by the government. See, e.g., Picklesimer, supra, 585 F.2d at 1203; Moran, supra, 983 P.2d at 147; Collinsworth, supra, 539 P.2d at 267. Likewise, courts have determined that such phrases represent a legislative determination that the controlled substance at issue actually had actual depressive or stimulant effects; thus, further proof is not required. See, e.g., White, supra, 560 F.2d at 780-790; Nickles, supra, 509 F.2d at 811; Light, supra, 852 P.2d at 1247. In addition, several courts have determined that the placement of the challenged phrase near the word "substance" rather than the word "quantity" supports the construction urged by the state here, i.e., that proof of any quantity of the controlled substance would satisfy the requirements of the statute. See Hernandez, supra, 717 P.2d at 76 (adopting this view and citing other jurisdictions that have adopted similar rationale).

We find the reasoning in these cases to be persuasive, as Ohio's statute is similarly phrased. The aforementioned federal cases are a particularly valid source of guidance for this court, since the Ohio controlled-substances statutes parallel those of the federal equivalent and are worded to ensure that Ohio law evolves in step with federal provisions. State v. Klinck (1989), 44 Ohio St.3d 108. Thus, we conclude that the phrases "having a stimulant effect" or "having a depressant effect" were intended to provide guidance to the Ohio General Assembly in classifying and categorizing new controlled substances and/or evinces the General Assembly's determination of the actual stimulant or depressant effect of the specifically listed substances, including cathinone. In addition, as noted by the court in Ali, such an interpretation is supported by practical reasons — "As with other substances, the effect of a given amount of cathinone depends on the amount of cathinone already consumed, other substances consumed by a person, the person's sensitivity to cathinone, and the person's size. Thus, the interpretation advocated by defendants would necessarily result in inconsistent and irregular prosecutions." Id. at 799. In short, we hold that the state was not required to prove that cathinone was present in a quantity sufficient to have a stimulant effect on the central nervous system in order to support the conviction for possession of cathinone, a controlled substance.

Exhibit 1 to Return of Writ. Again, these findings are entitled to a presumption of correctness, and petitioner has failed to establish that the state court's decision is so unreasonable as to warrant federal habeas corpus relief. See Williams v. Taylor, supra.

As discussed by the state appellate court, petitioner was convicted under O.R.C. § 2925.11, which provides in relevant part:

(A) No person shall knowingly obtain, possess, or use a controlled substance.

* * *

(C) Whoever violates division (A) of this section is guilty of one of the following:

(1) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I. . . . whoever violates division (A) of this section is guilty of aggravated possession of drugs. The penalty for the offense shall be determined as follows:

* * *

(e) If the amount of the drug involved equals or exceeds one hundred times the bulk amount, aggravated possession of drugs is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree and may impose an additional mandatory prison term prescribed for a major drug offender under division (D)(3)(b) of section 2929.14 of the Revised Code.

Additionally,

R.C. 3719.41, Ohio's schedule of controlled substances, places within Schedule I "any material, compound, mixture, or preparation that contains any quantity of". . . cathinone. . . . R.C. 3719.41, Schedule I, (E)(2).

Exhibit 1 to Return of Writ; O.R.C. § 3719.41(E)(2) (emphasis added). Further, under O.R.C. § 2925.01:

(D) "Bulk amount" of a controlled substance means any of the following:

(1) For any compound, mixture, preparation, or substance included in schedule I, . . .

(c) An amount equal to or exceeding thirty grams or ten unit doses of a compound, mixture, preparation, or substance that is or contains any amount of . . . a schedule I stimulant.

* * *

(E) "Unit dose" means an amount or unit of a compound, mixture, or preparation containing a controlled substance that is separately identifiable and in a form that indicates that it is the amount or unit by which the controlled substance is separately administered to or taken by an individual.

Id. (Emphasis added.)

Petitioner again argues, as he did before the state appellate court, that the actual weight of the cathinone he possessed was quite minimal. While he concedes that the Ohio statutes at issue prohibit the possession of any material that contains any quantity of cathinone, see Traverse, at 68, petitioner nonetheless asserts that testing of the khat stems was inadequate in this case because the chemist mixed together samples from all of the bundles of khat. Traverse, at 69. The record, however, does not appear to support this argument:

Q. Did you conduct any chemical analysis or tests on the matter contained in State's Exhibit 6-A and 6-B?

A. Yes, Sir. When it was submitted, I opened up the package, the large box, which was 6-A, and I took the samples out, weighed the samples.

. . . The large box contained two smaller boxes. And one box, which I designated 1-A, contained 24,853 grams of small bundles of shoots and leaves.

Item 1-B was a cardboard box, also, and it contained 14,292 grams of small bundles of shoots and leaves.

Item 6-B, your 6-B, are the samples that I took from the larger box, a representative sample of the bundles of shoots and stems. I used that for my analysis.

* * *

First I weighed each individual bundle of shoots and stems, and then I took a sample, I think 10 or 11 grams, from each bundle of shoots and stems. I chopped them up into small pieces, and then I ground them in a mortar and pestle, and then I [tested them for the presence of cathinone]. . . .

* * *

. . . and I obtained the result that I identified as cathinone in each sample.

* * *

We don't quantiate it, so I don't know exactly how much of the substance was in each sample. . . .

Transcript, at 14-15. Further, as discussed by the state appellate court, under Ohio law, random testing of the khat is sufficient to establish that the entire quantity of khat confiscated contained cathinone. See also United States v. Fitzgerald, 89 F.3d 218, 223 n. 5 (5^th Cir. 1996) ("Random sampling is generally accepted as a method of identifying the entire substance whose quantity has been measured"), citing United States v. Roach, 28 F.3d 729 (8th Cir. 1994), United States v. Scalia, 993 F.2d 984 (1st Cir. 1993), and United States v. Madkour, 930 F.2d 234 (2d Cir. 1991)). The remainder of petitioner's arguments involving construction of the state statutes; however, "the construction of the language of a state statute is the prerogative of that state's courts." In re Grand Jury Proceedings, 810 F.2d 580, 586 (6^th Cir. 1987).

When assessing the intent of a state legislature, a federal court is bound by a state court's construction of that state's own statutes.

Banner v. Davis, 886 F.2d 777, 780 (6^th Cir. 1989), citing Missouri v. Hunter, 459 U.S. 359, 368 (1983); O'Brien v. Skinner, 414 U.S. 524, 531(1974); see also McCloud v. Deppish, 409 F.3d 869, 874-75 (7^th Cir. 2005) (citations omitted).

In view of all of the foregoing, and for the reasons discussed at length by the state appellate court, this Court likewise concludes that, when viewing all the evidence in the light most favorable to the prosecution, the evidence is constitutionally sufficient to sustain petitioner's conviction.

In view of all of the foregoing, the Magistrate Judge DENIES petitioner's request for discovery, Doc. No. 13, and RECOMMENDS that this action be DISMISSED.

If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).