Ferrell v. Bradshaw
Memorandum Opinion and Order Adopting Report and Recommendation denying in part and dismissing in part petition (related docs 1 , 12 , 16 ). The Court declines to issue a certificate of appealability. Judge Donald C. Nugent 10/27/16(C,KA) Modified text 10/28/2016 (C,KA).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
MARGARET BRADSHAW, WARDEN
CASE NO. 1:15CV1625
JUDGE DONALD C. NUGENT
This matter comes before the Court upon the Report and Recommendation of Magistrate
Judge William H. Baughman. The Report and Recommendation (ECF #12), submitted on August
31, 2016, is hereby ADOPTED by this Court. As such, Petitioner’s 28 U.S.C. § 2254 habeas corpus
petition (ECF # 1) is DISMISSED in part and DENIED in part.
Procedural and Factual Background
In May 2013, the Cuyahoga County Grand Jury indicted Petitioner on eight counts of rape,
four counts of kidnapping, and four counts of gross sexual imposition. (ECF # 8-1, p. 4). The counts
involved both Petitioner’s daughter and niece when they were young children. (Id. at 108). Petitioner
pled not guilty to all counts and the case continued to trial. (Id. at 12). On November 18, 2013, a
jury convicted Petitioner of five counts of rape, one count of kidnapping, and one count of gross
sexual imposition. (Id. at 14). Additionally, the jury convicted Petitioner of the lesser included
offenses of kidnapping, and two additional counts of gross sexual imposition. On November 18,
2013, the trial court sentenced Petitioner to a total of 75.5 years in prison. (Id. at 25).
On November 22, 2013, Petitioner filed a Notice of Appeal and appealed both his conviction
and his sentence. (Id. at 41). He raised five assignments of error:
The jury found, against the manifest of the evidence, that appellant
committed the acts alleged in the indictment.
Because there was insufficient evidence to show venue was proper, the trial
court erred as a matter of law in failing to dismiss counts Three, Four, Five,
Six, Seven, and Eleven as set forth in the indictment.
There was insufficient evidence adduced at trial to show that Mr.
Ferrell engaged in a “Course of Criminal Conduct.”
There was insufficient evidence adduced at trial to establish that any
essential; element of the offense charged in Counts Three, Four, Five,
Six, Seven, and Eleven occurred in Cuyahoga County.
Offenses set forth in Counts Three, Four, Five and Six are allied offenses of
similar import and should have been merged for sentencing purposes.
Appellant was denied effective assistance of counsel in violation of
Amendments VI and XIV, United States Constitution; and Article I, Section
10, Ohio Constitution.
The trial court erred by imposing consecutive sentences.
On appeal, the Eighth District Court of Appeals affirmed the trial court as to the first four
assignments of error. (Id. at 125). However, the Court of Appeals sustained the fifth assignment of
error, remanding the case for a re-sentencing so that the trial court, “may determine whether the facts
and circumstances of the case warrant the imposition of consecutive sentences.” (Id.). At the resentencing, the trial court imposed the same sentence of 75.5 years in prison, and set forth the
appropriate circumstances that warrant the imposition of consecutive sentences. (Id. at 282).
Petitioner also filed a Notice of Appeal to the Supreme Court of Ohio where he again asserted
improper venue in violation of the Fourteenth Amendment to the U.S. Constitution. (Id. at 132). On
March 25, 2015, the Supreme Court of Ohio declined to accept jurisdiction of Petitioner’s appeal.
(Id. at 180).
On November 7, 2014, Petitioner filed an application pro se to re-open his appeal pursuant
to Ohio App. R. 26(B). (Id. at 181). Petitioner raised two assignments of error:
Ferrell was denied effective assistance of appellate counsel when counsel
failed to raise trial counsel’s failure to object to improper opinion testimony
by an expert witness, in violation of the Sixth and Fourteenth Amendments
to the United States Constitution, and Article One, Section 10 of the Ohio
The trial court erred by allowing a social worker to testify she believed the
complaining witness was a victim of sexual abuse in violation of due process
as guaranteed by the Fourteenth Amendment to the United States
Constitution, and Article One, Section Ten of the Ohio Constitution.
On April 15, 2015, the Eighth District Court of Appeals denied Petitioner’s application. (Id. at 242).
On May 8, 2015, Petitioner filed another Notice of Appeal with the Supreme Court of Ohio asserting
the same arguments as the November 7, 2014 application to re-open his appeal. (Id. at 247). On July
8, 2015, the Supreme Court of Ohio declined to accept jurisdiction of Petitioner’s appeal. (Id. at
On August 14, 2015, Petitioner filed the present petition for federal habeas relief. (ECF # 1).
This petition raises three grounds for relief:
Ferrell was denied due process of law under the Fourteenth Amendment to
the United States Constitution when the appellate court affirmed venue on an
erroneous assertion of similarities between crimes, and fails to address or
consider the considerable length of time between the alleged conduct.
Ferrell was denied the effective assistance of appellate counsel, in violation
of the Sixth and Fourteenth Amendments to the United States Constitution,
when appellate counsel failed to raise trial counsel’s failure to object to
improper opinion testimony.
Ferrell was denied due process as guaranteed under the Fourteenth
Amendment to the United States Constitution when the trial court allowed a
social worker to testify she believed the complaining witness was a victim of
sexual abuse, based solely on the victim’s allegations.
On October 28, 2015, Respondent answered Petitioner’s habeas complaint. (ECF # 8).
Pursuant to 28 U.S.C. § 636 and Local Rule 72.2, this matter was referred to Magistrate
Judge William H. Baughman for the preparation of a report and recommendation. Magistrate Judge
Baughman issued his Report and Recommendation on August 31, 2016, recommending that
Petitioner’s Writ of Habeas Corpus be dismissed as to Ground One since it is a non-cognizable state
law claim, and denied as to Grounds Two and Three on the merits. (ECF # 12). Objections to the
Report and Recommendation were to be filed within 14 days of service. This Court granted
Petitioner’s motion for a 30 day extension of time to file objections. (ECF # 15). On September 28,
2016, Petitioner filed objections to the Report and Recommendation. (ECF # 16).
Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable district court standard of review for a magistrate’s report and
recommendation depends upon whether objections were made to that report. When objections are
made to a report and recommendation of a magistrate judge, the district court reviews the case de
novo. FED. R. CIV. P. 72(b) provides this standard of review. It states, in pertinent part, the
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge’s disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.
Accordingly, this Court will review the Report and Recommendation, to which timely objections
have been filed, de novo. See Dacas Nursing Support Sys., Inc. v. NLRB, 7 F.3d 511 (6th Cir. 1993).
The Court has reviewed the Report and Recommendation, and all of the pleadings, affidavits,
motions and filings of the parties de novo, and agrees with the findings of Magistrate Judge
Baughman. The Report and Recommendation of Magistrate Judge Baughman (ECF # 12) is
ADOPTED. Petitioner’s 28 U.S.C. § 2254 habeas corpus petition (ECF # 1) is DISMISSED in part
and DENIED in part.
Petitioner asserts objections to Magistrate Baughman’s decision on all three grounds. As to
Ground One, Petitioner objects that Magistrate Baughman’s “position is in direct conflict with
Williams v. Cook, 2015 U.S. Dist. LEXIS 50265.” (ECF # 16, p. 2). Petitioner’s objection is without
merit. In Williams, although the Southern District of Ohio recognized that state criminal convictions
may be reviewed on a federal habeas appeal under the Fourteenth Amendment, the court also
explained that a state criminal conviction may only be reversed if the conviction was not “supported
by sufficient evidence on each element.”Williams v. Cook, No. 1:14 CV 235, 2015 WL 1737276,
at *7 (S.D. Ohio Apr. 16, 2015). The Williams court also emphasized the deference that federal
courts are to give both state courts and juries when reviewing state law claims. Id. at *8.
Magistrate Judge Baughman’s recommendation does not conflict with the Williams decision.
Magistrate Judge Baughman correctly articulated the relevant law and recognized that although
some state law claims are cognizable in a federal habeas petition, a “failure to establish venue is not
grounds for federal habeas relief, because ‘in the absence of bad faith on the part of the Government
or prejudice to the defendant, improper venue will not ordinarily result in the miscarriage of justice,’
and presents no extraordinary need for post-conviction relief.” (ECF # 12, p. 24-25); see Williams
v. United States, 582 F.2d 1039, 1041 (6th Cir. 1978). Because improper venue is not an appropriate
ground to assert in a habeas petition, Petitioner’s First Ground for relief is DISMISSED.
As to Grounds Two and Three, Petitioner objects to Magistrate Judge Baughman’s
determination that because state courts are the final authority on state law issues, he must defer to
the state appellate court’s decision regarding the ineffective assistance of counsel claims. In his
objections, Petitioner, asserts factual arguments as to why his trial and appellate counsel were
ineffective. (ECF # 16). Magistrate Judge Baughman correctly determined that Petitioner’s Second
and Third Grounds were without merit. Magistrate Judge Baughman extensively reviewed the state
court record and found that the state court reasonably determined Petitioner’s counsel to be effective
under the Strickland test. See Strickland v. Washington, 466 U.S. 668 (1984). Upon review, it is
clear that appellate counsel’s failure to raise issues of trial counsel’s failure to object to a social
worker’s “improper opinion testimony” concerning a victim’s abuse allegations did fall below an
objective standard of reasonableness. This Court agrees that Petitioner “could not establish that the
claim[s] likely would have been successful had counsel raised [them].” (ECF # 12, p. 37). Therefore,
Petitioner’s Second and Third Grounds are DENIED.
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253, the Court must determine whether to grant a certificate of
appealability as to any of the claims presented in the Petition. 28 U.S.C. § 2253 provides, in part,
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from -(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
In order to make “substantial showing” of the denial of a constitutional right, as required
under 28 U.S.C. § 2255(c)(2), a habeas prisoner must demonstrate “that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issue
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529
U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).)
Where a district court has rejected the constitutional claims on the merits, the petitioner must
demonstrate only that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong. Slack, 529 U.S. at 484. For the reasons thoroughly
discussed in the Magistrate Judge’s Report and Recommendation, a reasonable jurist could not
conclude that this Court’s assessment of Petitioner’s claim is debatable or wrong. Accordingly, the
Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
/s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
October 27, 2016
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