Thomas DiBiase v. LaShann Eppinger

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0482n.06

No. 15-3666
FILED
UNITED STATES COURT OF APPEALS Aug 17, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

THOMAS C. DIBIASE, )
)
Petitioner-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE NORTHERN
LASHANN EPPINGER, Warden, )
DISTRICT OF OHIO
)
Respondent-Appellee. )
)

BEFORE: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

GRIFFIN, Circuit Judge.

After Dale McNaughton pleaded guilty to committing several burglaries in the Cleveland

area, the State of Ohio turned its attention to his suspected accomplice—petitioner Thomas

DiBiase. The state charged DiBiase with three counts of burglary and receiving stolen property,

as well as two counts of engaging in a pattern of corrupt activity. Its case was based solely on

circumstantial evidence: cell phone records, eyewitness testimony, and stolen property found in

his home. The jury convicted petitioner of two of the three burglaries. Thereafter, the Ohio

Court of Appeals affirmed his convictions, State v. DiBiase, No. 2011-L-124, 2012 WL 6727335

(Ohio Ct. App. 2012), and the Ohio Supreme Court denied discretionary review, State v.

DiBiase, 986 N.E.2d 31 (Ohio 2013).
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DiBiase now seeks habeas relief, claiming that the state court unreasonably applied the

sufficiency-of-the-evidence standard established in Jackson v. Virginia, 443 U.S. 307 (1979).

The district court denied the petition. We affirm.

I.

In February and March 2010, the Cleveland area experienced a string of burglaries that

followed a similar modus operandi. The M.O. was not particularly innovative. The burglar

would canvas neighborhoods for unoccupied homes under the auspices of soliciting signatures

for a voter initiative. When he found a suitable unoccupied house, he would force his way

inside, ransack the home for valuables, and fence the stolen items at nearby pawn shops and

precious metals dealers.

This continued for several weeks until the police learned the name of the suspected

burglar: Dale McNaughton. He was the prime suspect in at least ten burglaries in the area. For

three of them, police believed that he was assisted by petitioner Tom DiBiase. The Ohio Court

of Appeals recounted the facts of each burglary as follows:

The Ritchey Burglary

{¶ 4} In February 2010, John Vaughan was watching over the Willoughby Hills
home of his friend Stephan Ritchey. Mr. Ritchey and his wife own another home
in Utah, and were residing there during the month of February. Mr. Vaughan
checked on the home in mid to late February and found the Ritchey home had
been burglarized. The back door had been kicked in, and items including a flat-
screen television had been taken. Mr. Vaughan called the police immediately and
placed a report. Officer Neath of the Willoughby Hills Police Department
responded to the call, spoke to Mr. Vaughan, and collected evidence. No
fingerprints, blood, or other physical evidence were recovered from the Ritchey
house. During the course of his immediate investigation, Officer Neath was
informed that a large brown vehicle had been seen in the area that day.

{¶ 5} Mr. Ritchey arrived home a few days after the burglary was discovered to
take stock of the home and survey the damage. He indicated that the items stolen

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included the flat-screen television, jewelry and jewelry boxes, and cash; he and
his wife estimated the value of the stolen items at $5,900.

{¶ 6} A few weeks later, Mr. and Mrs. Ritchey located one of their missing items
at George’s Pawn Shop in Euclid. The receipt for the item indicated that it had
been sold to the shop by a man named Dale McNaughton.

The Stewart Burglary

{¶ 7} On March 2, 2010, Sandra Stewart returned home from work to find that
her home, located in Mentor, had been burglarized. Various items, including
jewelry, jewelry boxes, personal records, and collectible coins, had been taken
from her home. She estimated the value of the items taken at close to $10,000. It
appeared that the burglar had gained entry via a side door leading to the laundry
room, but a window in the family room had also been broken. She later
discovered that there was also damage to her sliding glass door.

{¶ 8} Mrs. Stewart alerted authorities, who began an investigation. The police,
among other efforts to collect evidence, took molds of the damage to the window
and sliding glass door, as well as foot prints found in the snow outside. They
eventually connected the damage to the door and window to a blue pry tool
recovered from a silver Buick driven by a young man named Sergio Reynolds,
Mr. DiBiase’s son, and the foot prints to shoes owned by Mr. DiBiase’s friend
Dale McNaughton.

{¶ 9} During the course of their investigation, Mentor Police were provided
useful information from Bonivere Stewart and Patricia Wigand. Bonivere
Stewart, Mrs. Stewart’s mother-in-law and across-the-street neighbor, told police
that a young man had knocked on her door around 1:30 p.m. on March 2, 2010.
She answered the door and found a college-aged man asking her to sign a petition
against casinos in Ohio. He held a spiral bound notebook with the words “No
Casinos in Ohio” handwritten on the front cover. Bonivere Stewart declined to
sign the petition, and then observed the young man walk through her yard and on
to the next house. She later identified this individual as Dale McNaughton.

{¶ 10} Patricia Wigand, a neighbor of the Stewarts, told police that she had
observed some concerning activity on the afternoon of March 2, 2010. Ms.
Wigand observed a man wearing a hoodie walk down the Stewarts’ driveway and
across the street carrying a plastic bag containing something. She watched the
man cross the street, sit in the snow, and place a call on a cell phone. A few
minutes later, Ms. Wigand observed a silver or grey Buick pick up the hoodie-

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clad man. She did not see the person driving the car, as he did not exit the
vehicle. Ms. Wigand also stated to police that, earlier in the day, she had
observed a different, darker colored vehicle driving up and down the street.

{¶ 11} Mrs. Stewart and her husband were able to recover some of the missing
jewelry from Great Lakes Coin and Jewelry, a precious metals dealer in
Willoughby. They were informed by Great Lakes Coin and Jewelry that Dale
McNaughton had sold the jewelry to the store.

The Ivancic Burglary

{¶ 12} On March 12, 2010, Eileen Ivancic learned that her home in Willoughby
Hills had been burglarized. A police officer had been called to the area to
investigate suspicious activity and found the Ivancic’s front door kicked in. Mrs.
Ivancic and her husband were in Florida at the time; they returned home to
evaluate the damage and determine what had been taken from them. The Ivancics
identified that the items stolen included jewelry, coins, cash, and a black Luger
handgun. They estimated the value of the stolen items to be between $25,000 and
$30,000.

{¶ 13} The police took evidence from the Ivancic’s home, including a lift of a
large shoe print found on the front door of the house. The shoe print was
submitted to the Lake County Crime Lab.

{¶ 14} Willoughby Hills Police were informed by Denise Penza, a resident of
Kirtland, that she had observed a suspicious young male hiding behind a guardrail
on March 12, 2010, at approximately 8:00 p.m. The young man was carrying a
white sack that appeared to be full. She observed him get into a vehicle driven by
someone else, but was unable to describe the vehicle.

DiBiase, 2012 WL 6727335, at **1–3.

Police caught a break in the case on March 17, when a local precious metals dealer,

Michael Ponsart, identified Dale McNaughton as the seller of several pieces of stolen jewelry.

He told police that McNaughton would usually come with DiBiase, describing the two as a

“team.” Ponsart testified that petitioner visited his store “quite a few” times with McNaughton.

A “handful” of times DiBiase sold items; other times, he simply accompanied McNaughton. He

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explained that “DiBiase usually drove” and that “there was always a silver Buick that they would

come in.”

Police also spoke with an employee at another local precious metals shop, Michelle

Flaisman. She remembered DiBiase visiting her store about five or six times, trying to sell coins

and jewelry. On March 3, the day after the Stewart burglary, DiBiase sold roughly $430 worth

of jewelry. She testified that DiBiase would sometimes come with McNaughton, who he told

Flaisman was his son.

On March 19, four days after DiBiase began serving an unrelated jail sentence,

McNaughton visited Ponsart’s shop in the silver Buick. Ponsart contacted the police, who

arrived in time to obtain the vehicle’s license plate number. The next day, police stopped the

vehicle. Inside were Sergio Reynolds, DiBiase’s son, and Val Bencivenni, Sergio’s friend.

Police also recovered McNaughton’s driver’s license, a blue pry bar, which police later matched

to the forced-entry marks at the Stewarts’ home, a spiral notebook with “anti-abortion” written

atop one of the pages, and a small bag of jewelry.

Police executed search warrants for McNaughton’s and DiBiase’s homes, which were

down the street from each other. Police recovered some of the Stewarts’ stolen jewelry at both

homes. They also found some of the Ivancics’ property at DiBiase’s home.

Patricia Hale, McNaughton’s fiancée, spoke with DiBiase on the phone in the wake of the

search warrant execution. Speaking “in code,” Hale asked about the location of “the black guy,”

referencing a gun that McNaughton had hidden at DiBiase’s house. During another call, DiBiase

instructed Hale to tell McNaughton to keep quiet and not to talk to the police, warning her that

“loose lips sink ships.” At trial, she testified that DiBiase would pick McNaughton up “every

day” during February and March 2010 and that he drove a silver, four-door car.

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Police also obtained McNaughton’s and DiBiase’s cell phone records. To assist the jury

in understanding the records, the state presented testimony from an expert, Detective Juanita

Vetter. According to Vetter, cell phones operate by sending a signal to the nearest cell phone

tower, which then relays the signal to the tower nearest to the receiving phone, which in turn

relays the call to that phone. Although calls are normally routed through the nearest tower, if

that tower is at full capacity, the signal will be sent to the next closest tower. Cell phone towers

in the Cleveland area have a typical range of three to five miles. Because McNaughton and

DiBiase had the same service provider, and in fact were on a shared plan, the records captured

the tower information for each outgoing and incoming call made between the two.

Cell phone records from March 2, the day of the Stewart burglary, showed that

McNaughton called DiBiase on his home phone at 10:02 and 10:30 a.m. McNaughton’s end of

the call routed through the Lakeshore tower, which covers his and DiBiase’s homes. Then,

“shortly after 1 o’clock,” McNaughton called DiBiase on his cell phone, and each phone was

routed through the Reynolds tower, which covers the area of the Stewart residence. Over the

next twenty-seven minutes, McNaughton placed three short calls to DiBiase, all of which

continued to route through the Reynolds tower. Shortly after that, McNaughton called an

unknown number and his call routed through the St. Clair Street tower; forty minutes after that,

he made another call that routed through the Lakeshore tower. DiBiase made no calls during this

time.

Regarding the day of the Ivancic burglary, the March 12 cell phone records established

that McNaughton and DiBiase called each other throughout the day, each time routing through

the Lakeshore tower. Then, at 7:59 p.m., McNaughton called DiBiase. McNaughton’s end of

the call routed through the Kirtland tower and DiBiase’s end routed through the nearby Par Lane

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tower—both of which covered the Ivancics’ residence. Two minutes later, McNaughton called

DiBiase again. This call, like the first, was short in duration. McNaughton’s end routed through

both the Par Lane and Kirtland towers, and DiBiase’s end again routed through the Par Lane

tower.

Based on this evidence, the state issued an eight-count indictment against DiBiase.

Counts one and two charged him with burglary and receiving and concealing stolen property of

the Ritcheys in February 2010. Counts three and four charged petitioner with the same offenses

for the Stewart burglary on March 2, and counts five and six did the same for the Ivancic

burglary on March 12. Count five included a firearm specification for the alleged possession of

a firearm during the burglary (the Luger that was taken during the Ivancic burglary). Counts

seven and eight charged DiBiase with engaging in a pattern of corrupt activity (Ohio’s RICO

analogue) relating to the series of charged burglary and receiving stolen property offenses.

The case proceeded to trial, at which the facts recited above were presented to the jury.

The jury acquitted DiBiase of counts one and two (the Ritchey burglary), but found him guilty of

counts three through eight (the Stewart and Ivancic burglaries).

In his habeas petition, DiBiase raised two grounds for relief. In Ground One, DiBiase

alleged that “[he] was denied due process of law under the Fourteenth Amendment to the United

States Constitution when his conviction was not supported by sufficient evidence.” In Ground

Two, petitioner alleged ineffective assistance of trial and appellate counsel.1 The Warden filed a

return, contesting DiBiase’s first ground for relief as “nothing more than a disagreement with the

credibility determinations of the jury” and therefore “void of merit.”

1
DiBiase did not object to the magistrate’s recommendation that relief be denied on this
ground, and he does not try to resurrect this claim on appeal. We therefore do not discuss it
further.
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The magistrate judge issued a report and recommendation (R&R). She concluded that

petitioner was not entitled to relief on his convictions for engaging in a pattern of corrupt

behavior (counts seven and eight) or for receiving stolen property (counts four and six).

However, with respect to the burglary convictions, the magistrate judge concluded that “th[e]

jury made some impermissible inferences and assumed facts not in evidence, thereby failing to

arrive at a plausible verdict on Counts 3 [and 5].” According to the magistrate judge, the only

evidence connecting DiBiase to the burglaries was expert testimony that his cell phone routed

through the tower nearest to the Stewart residence. There was no other physical evidence

inculpating DiBiase. Therefore, the magistrate judge recommended that the district court grant

habeas relief with respect to counts three and five, but deny relief in all other respects.

The Warden filed objections to the R&R, but petitioner did not. The Warden argued that

the magistrate judge failed to administer the double dose of deference afforded to state courts in

assessing sufficiency of the evidence claims and, in fact, failed to acknowledge the Ohio Court

of Appeals opinion at all. DiBiase filed a response, countering that the magistrate cited and

applied the correct, deferential standard.

The district court issued an opinion and order sustaining the Warden’s objections and

denying habeas relief in all respects. The district court agreed that “the magistrate judge failed to

properly pay deference to the state court judgment.” After reciting the evidence presented at trial

and the state court’s analysis of DiBiase’s claim, the court determined that the “record evidence

amply supports both of Mr. DiBiase’s burglary convictions” and that “the state court’s

sufficiency determination was not unreasonable.” However, it recognized that “reasonable

jurists could find it debatable whether the petition presents a valid claim that the evidence was

insufficient to support Mr. DiBiase’s convictions for burglary and burglary with a firearms

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specification” and granted a certificate of appealability “as to that claim only.” It concluded that

there was no basis to grant a COA on the remaining issues.

DiBiase filed a notice of appeal, which we construed as an application for an expanded

COA. DiBiase v. Eppinger, No. 15-3666 (6th Cir. Nov. 17, 2015) (order) at 1. This court

declined to expand the COA to include sufficiency-of-the-evidence claims relating to his

convictions for engaging in a pattern of corrupt activity and for receiving stolen property, as well

as his ineffective assistance of counsel claim. Id. at 3–4. In the same order, we granted

DiBiase’s request for appointed counsel, id., who ably represented Mr. DiBiase before this court.

II.

DiBiase’s habeas petition is governed by the Antiterrorism and Effective Death Penalty

Act (AEDPA). Under AEDPA, a federal court may grant habeas relief to a state prisoner, like

DiBiase, only if he establishes that the state court’s “adjudication of the claim . . . 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[.]” 28 U.S.C.

§ 2254(d)(1).

Petitions for habeas relief based on insufficient evidence are reviewed under the

“unreasonable application” prong of § 2254(d)(1). Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.

2008). Under this standard, it is not enough that the state court decision was “erroneous[] or

incorrect[].” Renico v. Lett, 559 U.S. 766, 773 (2010). Rather, a petitioner must establish that it

was “objectively unreasonable.” Id. This requires a showing that the state court’s handling of

the claim “was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter, 562 U.S. 86, 103 (2011). AEDPA “imposes a highly deferential standard for

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evaluating state-court rulings,” Renico, 559 U.S. at 773, and, consequently, a “substantially

higher threshold” for those seeking to set them aside, Schriro v. Landrigan, 550 U.S. 465, 473

(2007). That threshold is highest when the legal standard at issue is “general” in nature, since

there is “greater . . . potential for reasoned disagreement among fair-minded judges.” Renico,

559 U.S. at 776. The constitutional standard for sufficient evidence—once described by this

court as “exceedingly general,” Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011) (en banc)—

fits that description. Therefore, petitioner bears a heavy burden in seeking to set aside the Ohio

Court of Appeals decision.

The “clearly established law” at issue is the constitutional standard for sufficient evidence

established in Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, evidence is sufficient to

support a guilty verdict if, “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” 443 U.S. at 319. We apply this standard by “reference to the

substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. The

criminal offense in this case is Ohio’s burglary offense, Ohio Rev. Code § 2911.12(A)(2).

DiBiase was tried under Ohio’s complicity statute, Ohio Rev. Code § 2923.03, which provides

that “[n]o person, acting with the kind of culpability required for the commission of an offense,

shall . . . [a]id or abet another in committing the offense[.]” Id. § 2923.03(A)(2). Here, “the kind

of culpability required for the commission of [the burglary] offense” is “the purpose to commit

. . . a theft offense . . . or any felony” while inside the structure. See State v. Wilson, 388 N.E.2d

745, 749 (Ohio 1979); Ohio Rev. Code § 2911.12(A)(2). In other words, the state had to prove

that DiBiase assisted McNaughton with the intent that he commit a theft in the Stewarts’ and

Ivancics’ homes.

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When reviewing whether the state court’s sufficiency-of-the-evidence determination was

“objectively unreasonable,” we use a two-step approach. Stewart v. Wolfenbarger, 595 F.3d

647, 653 (6th Cir. 2010). First, we ask whether the evidence itself was sufficient to convict

under Jackson. Id. If so, the inquiry ends. If, however, this court concludes that the evidence

was insufficient to convict, we must then apply AEDPA deference and ask whether the state

court was “objectively unreasonable” in concluding that a rational trier of fact could find the

petitioner guilty beyond a reasonable doubt. Id.

A.

We begin with the Stewart burglary. Viewed in the light most favorable to the

prosecution, the evidence at trial showed that: McNaughton committed the Stewart burglary,

according to McNaughton himself; on the afternoon of the Stewart burglary, McNaughton was

picked up from the Stewart residence by someone driving a silver Buick shortly after calling

someone on the phone, according to Patricia Wigand; McNaughton called DiBiase several times

during that same period and each’s phone routed through the same tower covering the Stewart

residence, according to Detective Vetter; DiBiase drove a silver, four-door Buick, according to

Hale and Ponsart; and police recovered several pieces of the Stewarts’ jewelry at DiBiase’s

home, according to Detective James Collier.

Petitioner argues that this was all circumstantial evidence. However, circumstantial

evidence is sufficient to establish all the elements of an offense, including proof of criminal

intent, the element DiBiase challenges most strenuously. See State v. Haller, 982 N.E.2d 111,

117 (Ohio Ct. App. 2012) (“[T]he defendant’s criminal intent may be inferred from his or her

presence, companionship, and conduct before and after the offense is committed.”).

McNaughton, whom the jury knew committed the Stewart burglary, called DiBiase several times

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in succession during the suspected period of the burglary. Faced with these two facts—

McNaughton’s role and his brief, successive communications with DiBiase—a rational juror

could infer that McNaughton’s calls to DiBiase were not social in nature, but in furtherance of

the burglaries he was committing. Moreover, DiBiase was in the same area as McNaughton

when he made the calls. Although circumstantial, the totality of the evidence leads to a

reasonable inference that DiBiase was McNaughton’s knowing accomplice in the Stewart

burglary.

The evidence with respect to the Ivancic burglary is also sufficient. Again, viewed most

favorably to the prosecution, the evidence established that: McNaughton committed the Ivancic

burglary, according to McNaughton himself; at 8:00 p.m. on the evening of the Ivancic burglary,

McNaughton called DiBiase twice, and each time their calls routed through the towers covering

the Ivancic residence, according to Detective Vetter; at the same time, McNaughton was seen

waiting to be picked up near the Ivancic residence, according to Denise Penza; and police

recovered the Ivancics’ stolen property at DiBiase’s home, according to Sergeant Jamie Tavano.

Furthermore, we recognize that the jury did not assess this evidence in a vacuum. After

reviewing the evidence relating to the Stewart burglary, the jury was convinced beyond a

reasonable doubt that DiBiase was McNaughton’s accomplice for that offense. Add to that

premise the fact that the Ivancic evidence followed a similar modus operandi, and it was rational

for the jury to infer that DiBiase played the same role in the Ivancic burglary.

Other features of the state’s case against DiBiase buttressed these conclusions. First, the

cell phone records also show that each was at home at the same time on the days of the

burglaries, but then simultaneously traveled to the same geographic area as the burglaries.

Because it was undisputed that one of these two men committed the burglaries, it was rational for

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the jury to conclude that his “team”-member, who happened to travel to the same area, assisted

him in the burglaries. Second, McNaughton fenced the stolen items at various pawn and

precious metals shops shortly after each heist, and DiBiase usually drove him there. Flaisman

also testified that DiBiase sold jewelry the day after the Stewart burglary, and visited four or five

other times during that period. DiBiase’s continued assistance in fencing the stolen items further

reinforces the inference that DiBiase intended to aid McNaughton in committing theft offenses.

See Haller, 982 N.E.2d at 122 (evidence of acting as get-away driver and selling stolen items

supported convictions for burglary as an accomplice). And third, in recorded jail calls played to

the jury, DiBiase made statements that either contradicted the other evidence or other statements

he made, including the existence of a firearm at his home (compare Appendix, A9 (“I never had

the black guy over there.”), with Appendix, A10 (“Oh, [the fake old black guy.] . . . Yeah I don’t,

you know.”)); the number of times he accompanied McNaughton on trips relating to the

burglaries (compare ID 1070–71 (Ponsart describing the numerous times DiBiase visited his

shop with McNaughton), with Appendix, A8 (“[I rode] Dale once, you know what I mean. [To

a] store to get shoes, that was it.”)); and whether he was involved in the burglary scheme at all

(compare Appendix, A21 (“I didn’t do nothing. I know that for sure.”), with Appendix, A63–64

(“[T]hey [the police] better realize, I don’t shit in my own backyard.”)).

By the time the state rested its case, the jury knew that McNaughton committed both

crimes; that DiBiase spoke with McNaughton during or shortly after the burglaries; that he was

close by and even picked McNaughton up; that he transported McNaughton to pawn shops and

precious metals dealers; and that he had the victims’ stolen property at his home. The jury was

entitled to credit each piece of evidence, and Jackson prohibits a reviewing court from second-

guessing its assessment. 443 U.S. at 319. Indulging the reasonable inferences in favor of the

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jury’s verdict, we conclude this evidence was sufficient for a rational juror to rule that DiBiase

assisted McNaughton with the intent that McNaughton commit theft offenses inside the Stewart

and Ivancic residences.

B.

The Ohio Court of Appeals came to the same conclusion, and, under AEDPA, its

determination is entitled to “deference and latitude.” Harrington, 562 U.S. at 101. In its

decision, the state court of appeals addressed DiBiase’s claim as follows:

{¶ 41} The evidence presented by the state at trial painted a picture in which Mr.
DiBiase purposefully assisted Mr. McNaughton and Mr. Reynolds in the
commission of the burglaries by being present in the area during the times the
homes were broken into, providing logistical support via the telephone, and
picking up the assailant upon leaving the homes with stolen property. Further,
Mr. DiBiase accompanied Mr. McNaughton to various pawn shops and precious
metal[s] dealers the day after the commission of each of the three burglaries in
this case, selling items for cash. Some of those items were identified by their true
owners as stolen from their homes. Further, Mr. DiBiase’s silver Buick was
regularly seen in the vicinity of the burglaries the day of the break-ins. Lastly,
some of Ms. Stewart’s jewelry was recovered from Mr. DiBiase’s bedroom upon
execution of the search warrant, further tying him to these crimes. Couple this
with the phone conversations he had with Mr. Reynolds and Ms. Hale, which
suggested his knowledge and ultimate complicity in the burglaries, it is
impossible to say the jury lost its way in finding Mr. DiBiase guilty.
{¶ 42} We further find it noteworthy that the jury did not convict Mr. DiBiase of
counts one and two of the indictment. This outcome suggests that the jury took its
job seriously and engaged in an appropriate weighing of the evidence. It is clear
that the jury found the evidence supporting counts three through eight much more
compelling, and thus convicted him on those six counts.
{¶ 43} A review of the record demonstrates that the state submitted substantial
evidence as to the six counts Mr. DiBiase was convicted of, and the jury did not
lose its way in delivering a guilty verdict. The assignment of error is without
merit and the judgment of the Lake County Court of Common Pleas is affirmed.
DiBiase, 2012 WL 6727335, at **7–8.

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On habeas review, AEDPA requires DiBiase to establish that this analysis and conclusion

“was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

DiBiase raises a variety of arguments challenging the reasonableness of the court of

appeals decision, but they all suffer from a common, fatal flaw: they fail to take into account the

deference owed to the jury and the state appellate court that reviewed its verdict. DiBiase

stresses that “[m]ere association with the principal is not enough,” State v. Sims, 460 N.E.2d 672,

675 (Ohio Ct. App. 1983), and that the Ohio Court of Appeals affirmed his conviction based on

nothing more than “[v]ague proximity to the scene of the crime and association with the culprit.”

However, the evidence—viewed in the light most favorable to the prosecution—shows much

more than simply associating with McNaughton or merely being present at the scene. He drove

McNaughton to the precious metals shops on multiple occasions, and he had several pieces of the

victims’ jewelry. DiBiase also fielded several calls from the burglar during the suspected time of

the burglary and was in the same area as the burglary, leading to the (not unreasonable) inference

that DiBiase provided transportation and logistical services. See DiBiase, 2012 WL 6727335, at

*7.

Next, DiBiase challenges this last genre of evidence, arguing that the cell phone tower

records do not establish his presence at the scene, only within three to five miles of the cell tower

in question. Viewed in the prosecution’s favor, however, the cell phone evidence shows that

both DiBiase and McNaughton were at their respective homes before each burglary, and that

they each left and traveled to the same area at the same time. Couple that with the fact that the

jury knew McNaughton was at each residence, and it was reasonable to infer that DiBiase was as

well. Regardless, the state did not need the cell phone records to place DiBiase at the scene. It

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had two eyewitnesses who observed someone pick up McNaughton, and one of the

eyewitnesses’ description of the vehicle matched DiBiase’s.

Petitioner parries that the state never proved that he owned the silver Buick. However,

police observed the silver Buick in DiBiase’s driveway, Ponsart stated that DiBiase drove a grey

or silver Buick, and Hale testified that DiBiase drove a silver four-door vehicle. Viewed in the

prosecution’s favor, this evidence shows DiBiase had dominion over the silver Buick during the

period in question.

Also, he contends that, even assuming he was McNaughton’s driver on the night of the

Ivancic burglary, the state court “failed to note any evidence to exclude the possibility that Dale

simply asked Tom for a ride, without mentioning his involvement in a burglary.” But that asks

too much of the state court of appeals. The question for the state court was not whether the

prosecution “rule[d] out every hypothesis except that of guilt beyond a reasonable doubt.”

Jackson, 443 U.S. at 326. The question was whether any rational juror could conclude that

DiBiase assisted McNaughton with the intent that McNaughton burgle the Ivancics’ home. The

pattern of calls supported an inference that DiBiase was providing nearby logistical support, and

the evidence of DiBiase’s knowing assistance in the Stewart burglary ten days earlier supported

the inference that DiBiase knew McNaughton intended to burgle the Ivancics.

Next, DiBiase argues that the state failed to present any evidence that he was with

McNaughton at the precious metals shop when McNaughton sold the victims’ stolen items.

However, Ponsart kept a log of DiBiase’s and McNaughton’s visits and testified about the dates

that each sold items. He estimated that DiBiase accompanied McNaughton at least 75 to 80

percent of the time McNaughton sold items. He also said that “[DiBiase] very well could have

been [with McNaughton], because he was most often there with him.” Accepting this testimony

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as true, it was reasonable for the jury to conclude that, of the 75 to 80 percent of the time that

DiBiase was with McNaughton, McNaughton sold stolen items.

Petitioner also asserts that the Ohio Court of Appeals improperly relied on the fact that he

advised McNaughton and others to stay quiet and not talk with police. He contends that he was

merely conveying sound legal advice. That, of course, is one way to interpret DiBiase’s

statements. However, another reasonable interpretation of DiBiase’s advice that “loose lips sink

ships” is that DiBiase was a crewmember of that “ship” and that he did not want others to scuttle

the enterprise of which he was a part.

Finally, that the jury acquitted DiBiase of the Ritchey burglary does not mean it lost its

way in finding him guilty of the Stewart and Ivancic heists, as petitioner contends. In fact, there

appears to be a rational explanation. At trial, Detective Vetter testified that McNaughton made

several calls to DiBiase on the day of the Ritchey burglary. She initially testified that

McNaughton’s calls routed through the Kirtland tower. However, later in her testimony, she

identified another tower—the Par Lane tower—as covering the Ritchey residence and as the one

through which McNaughton’s calls were routed. The jury presumably picked up on this

inconsistency in the state’s proofs. Add to that the fact that McNaughton never confessed to the

Ritchey burglary, and the jury had a legitimate basis to reasonably doubt defendant’s guilt as an

accomplice.

In the final analysis, Jackson and AEDPA require us to give deference to both the trier of

fact and reviewing state court. None of DiBiase’s arguments pierce this double layer of

deference. Viewing the evidence in the light most favorable to the prosecution, a rational juror

could conclude that DiBiase assisted McNaughton with the intent that McNaughton commit theft

offenses inside the Stewart and Ivancic residences. What’s more, such a conclusion is not “so

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lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Accordingly, DiBiase is not entitled to habeas relief with respect to his burglary convictions.

C.

Petitioner makes several other arguments in support of his petition for habeas relief.

None have merit.

DiBiase contends that the state failed to present sufficient evidence regarding the firearm

specification in count five. He argues that, “‘[w]ithout knowing of the existence’ of the weapon,

Tom ‘could not possibly share the culpability required’ for the firearm enhancement.’”

Appellant Br., p. 35 (quoting State v. Frymire, No. CA2014-02-034, 2015 WL 240483, at *3

(Ohio Ct. App. 2015)). We are not persuaded. Ohio’s firearm specification does not require “a

culpable mental state,” State v. Cook, No. 24058, 2008 WL 4335675, at *2 (Ohio Ct. App.

2008), but rather imposes strict liability, State v. Gilbert, No. 90615, 2009 WL 270522, at *4

(Ohio Ct. App. 2009). For that reason, the Ohio Court of Appeals has previously rejected the

precise argument DiBiase makes here, i.e., that the state must prove an accomplice knew the

principal possessed a firearm in order to impose the specification:

Contrary to [the defendant]’s argument, however, once the state proved that [the
defendant] was complicit in the commission of the underlying offenses, the state
did not then also need to separately prove [the defendant]’s complicity as to the
associated firearm specifications, i.e., that [the defendant] “specifically aided and
abetted [the principal] in brandishing, possessing or using the firearm at the time
of the shooting incident.”
State v. Capp, No. 102919, 2016 WL 541444, at *7 (Ohio Ct. App. 2016) (citing State v. Moore,

990 N.E.2d 625, 638 (Ohio Ct. App. 2013) (“[A]n unarmed person can be sentenced for a

firearm specification if they were only complicit in committing the offense to which the

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specification attached.”)). Because the firearm specification statute imposes no mens rea

requirement, there is no culpability that DiBiase was required to share with McNaughton for

purposes of the complicity statute. DiBiase’s key case, Frymire, is distinguishable on this basis.

Frymire involved the substantive offenses of aggravated burglary and aggravated robbery, and it

is clear from Frymire that Ohio imposes a mens rea requirement for the firearm possession

element of those offenses. 2015 WL 240483, at **2–3. But it is equally clear that Ohio’s

firearm specification statute imposes no mens rea requirement. See Cook, 2008 WL 4335675, at

*2. Therefore, unlike in Frymire, the state was not required to prove that DiBiase knew

McNaughton intended to possess a firearm during the Ivancic burglary.

DiBiase also raises insufficient-evidence claims regarding count six (receiving stolen

property of the Ivancics), and counts seven and eight (engaging in a pattern of corrupt activity).

However, this court previously denied DiBiase’s request to expand the certificate of

appealability to include these issues. DiBiase, No. 15-3666 at 4. This panel is therefore without

authority to address these claims. See Hill v. Mitchell, 400 F.3d 308, 329 (6th Cir. 2005) (stating

that “Congress has not given us authority to address [a] claim” not specified in the certificate of

appealability); 28 U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals . . . .”).

DiBiase argues that we may nonetheless consider the claims sua sponte because the

original order denying the request to expand the COA was merely interlocutory in nature and

therefore “subject to revision.” See, e.g., Kraus v. Taylor, 715 F.3d 589, 594 (6th Cir. 2013).

Yet, he provides no basis for this panel to reconsider the earlier decision. This court refused to

expand the COA because DiBiase failed to object to this aspect of the magistrate judge’s

recommendation, much less attempt to demonstrate excusable neglect and good cause for his

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failure. DiBiase, No. 15-3666 at 3 (“[F]ailure to object to the magistrate’s report and

recommendation prior to the district court’s adoption of such report constitutes a waiver of a

right to appeal the district court’s order.” (quoting United States v. Walters, 638 F.2d 947, 949

(6th Cir. 1981))). In his reply brief, DiBiase observes that he was proceeding pro se in the district

court. But that is not a sufficient basis to overlook his waiver, see Peoples v. Hoover, 377 F.

App’x 461, 463 (6th Cir. 2010) (collecting cases enforcing this rule against pro se litigants),

especially considering that petitioner was able to file a response to the Warden’s objections

arguing that the recommendation was “well-reasoned and applied the correct law/analysis.” See

Javaherpour v. United States, 315 F. App’x 505, 510 (6th Cir. 2009) (finding the petitioner’s pro

se status a “self-defeating” excuse because he filed objections to other aspects of the R&R).

III.

For these reasons, we affirm the judgment of the district court.

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