Rodano v. Marquis

Filing 26

Order Adopting Report and Recommendation as to Dale Rodano. For the reasons set forth in this Order, Rodano's Objections (Doc. No. 25 ) are OVERRULED. Accordingly, the Magistrate Judge's Report & Recommendation (Doc. No. 23 ) is ADOPTED, and the Petition (Doc. No. 1 ) is DENIED. Judge Pamela A. Barker on 6/7/2021. (P,K)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DALE RODANO,
-vs-

CASE NO. 1:18-CV-02770
Petitioner,

WARDEN DAVID MARQUIS,
Respondent.

JUDGE PAMELA A. BARKER
MAGISTRATE JUDGE
THOMAS M. PARKER
MEMORANDUM OF OPINION AND
ORDER

This matter is before the Court upon the Report & Recommendation (“R&R”) of Magistrate
Judge Thomas M. Parker (Doc. No. 23), which recommends denying the Petition for Writ of Habeas
Corpus (Doc. No. 1) of Petitioner Dale Rodano (“Rodano”). Rodano has filed Objections to the
R&R.

(Doc. No. 25.)

For the following reasons, Rodano’s Objections (Doc. No. 25) are

OVERRULED, the Magistrate Judge’s Report & Recommendation (Doc. No. 23) is ADOPTED, and
the Petition (Doc. No. 1) is DENIED.
I.

Background
a. Factual Background
The Court of Appeals for the Eighth District of Ohio summarized the facts underlying

Rodano’s state court conviction as follows:
{¶ 2} On November 7, 2013, five weeks after Rodano obtained insurance on his house
in Parma, Ohio from Allstate Insurance, a fire erupted in the house around 2:00 p.m.
Twenty-three firefighters in Parma’s fire department responded to the fire.
{¶ 3} Rodano claimed the fire started when one of his pets knocked over a candle on
a living room table while he was asleep in a chair in the living room. However, Agent
Joanna Lambert of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
issued a report that opined that the fire was incendiary; State Fire Marshall Jeffrey
Koehn investigated the fire and reached the same conclusion.

{¶ 4} On October 28, 2014, the grand jury indicted Rodano of four counts of
aggravated arson and one count of insurance fraud.
{¶ 5} The trial was initially scheduled for June 1, 2015. On the day of trial, Rodano’s
appointed counsel moved to withdraw because Rodano was unhappy with counsel’s
performance. The trial was continued to January 19, 2016. While preparing for the
trial, Agent Lambert reviewed her report and, upon further review, she changed the
conclusion of her report from “incendiary” to “undetermined” and issued a second
report concluding the cause of the fire was “undetermined.” Fire Marshall Jeffrey
Koehn, however, did not change his report and did not testify at trial.
{¶ 6} At the week-long trial, the state presented testimony from Rodano’s
acquaintance Lawrence Scott Allen, his girlfriend at the time Tracy Correll, his brother
David Rodano, his neighbor Scott Thom, whose house sustained damage in the fire,
four firefighters, two Allstate employees, and Agent Joanna Lambert. Rodano
presented three witnesses to testify on his behalf.
Trial Testimony
{¶ 7} Lawrence Scott Allen, an acquaintance of Rodano, testified that he told Jeffrey
Koehn, the state fire marshall [sic] in charge of the investigation of this case, about a
conversation he had with Rodano in the summer of 2012. In the conversation Rodano
entertained the idea of torching his house to collect on the insurance. Rodano
specifically mentioned a scenario where “a Christmas tree could conveniently fall over
and knock a candle over.” Scott Allen later did some plumbing work on Rodano’s
house. After the fire, he received a call from Rodano. Rodano told him the fire started
when he was asleep and one of the pets knocked over a candle and the couch caught
on fire. On cross examination, Allen admitted there was tension between the two after
he asked Rodano to file an insurance claim for an injury Allen sustained in Rodano’s
home but Rodano refused.
{¶ 8} Tracy Correll lived in Rodano’s Parma house for almost seven years. She moved
out in the first week of October 2013 because of Rodano’s problems with alcohol. She
testified that they had candles in the house, but they were mostly for decoration and
lit only at Christmas. She recalled Rodano talked about fire, remarking that “people
light their stuff on fire all the time, Tracy. You know, they can’t [really] prove nothing
if you don’t use an accelerant * * *.” Before she moved out in October of 2013, she
asked to take her personal belongings, to which Rodano responded, “Bitch, I’ll burn
your shit down before I give it back to you.”
{¶ 9} Dale Rodano’s brother, David Rodano, testified that in September or October of
2013, his brother Dale told him that “he’s going to be rich” and that “he was going to
set his house on fire and that he was going to tell anybody that asked that the cat and
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the dog were running around the house and knocked a candle over and that’s what
caused the fire.” When David Rodano commented that the excuse sounded “phoney,”
his brother responded that “it doesn’t really matter because you’re innocent until
proven guilty” and “nobody would be able to prove that he burned his house down.”
David Rodano described his brother as drunk and angry at the time he made these
statements. Two weeks after the fire, Dale Rodano told his brother “not only that he
was going to get money from it, but that he had raised the payout on his insurance
company.” As David Rodano testified, “[Dale] was laughing about it because * * * it
was like he tricked the insurance man,” and he felt that he “was going to get away with
this because the report that the fire marshal[l] [sic] made said that the fire originated
on the front porch, and [Dale] says that he knew for a fact that that was incorrect and
that the fire started in his living room.” David Rodano testified that his brother did
not tell him how the fire started but only that “he was going to tell people that the cat
and the dog were running around and knocked a candle over and that’s what caused
the fire.”
{¶ 10} Four firefighters of Parma’s fire department testified regarding their response
to the fire and the scope, intensity, duration, and spread of the fire. The state’s exhibits
included photographs of the house in flames and the extensive damages to the house.
{¶ 11} Although Counts 2 and 3 of the indictment alleged victims Scott Thom and
Norman Thom, only the former testified. Scott Thom was Rodano’s next-door
neighbor. He testified that around the time of the fire, he was recovering from back
surgery. Sometime in the afternoon on the day of the fire, Rodano pounded on Thom’s
door. By the time he answered the door, Rodano had already gone to another neighbor,
Len Ziegler, who lived two doors down from Rodano’s house. Thom saw Rodano on
his knee in the yard, yelling for people to call 911. The fire department responded
within minutes. Thom’s house sustained damage from the fire—its vinyl siding
melted from the intense heat.
{¶ 12} Two Allstate Insurance employees also testified. Their testimony indicated
that Rodano obtained a homeowner policy for his residence on October 2, 2013.
Initially, Tracy Correll was on the policy as well. After she moved out, Rodano made
frequent phone calls to the insurance company to ensure that she was removed from
the insurance policy. She was removed on October 25, 2013. After the fire, Rodano
frequently expressed his frustration about the slow process of being paid on his policy.
In addition to the value of the home, he claimed over $77,000 in personal property
damaged by the fire.
{¶ 13} Agent Joanna Lambert of the ATF conducted an investigation on the cause of
the fire. She testified that she initially concluded that a couch on the porch was the
origin of the fire and the fire was incendiary, after she eliminated all other reasonable
sources of ignition. As she prepared for the trial and reviewed her initial report,
however, she began to have concerns about the origin of the fire due to the extent of
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damage sustained by the couch in the living room. When she further analyzed the data
collected from the scene, she placed the origin of the fire in a living room couch, which
was by the window looking out to the porch. Agent Lambert’s further research and
analysis focused on a candle on a living room table.
{¶ 14} From this further investigation, Agent Lambert issued a second report. She
opined that there was a viable ignition source in the living room. However, she did
not know where the candle was located and how and where it had ended up, because
the fire department personnel could not recall whether the glass base of the candle was
recovered from inside the footprint of the couch or outside. She could not conclusively
eliminate the cause of fire as an accident. However, she was unable to eliminate the
fire as incendiary either. As a result, she ruled the cause of the fire as undetermined.
{¶ 15} The state solicited testimony from Agent Lambert regarding the rarity of a fire
caused by a candle being knocked over. Her research indicated that out of the
approximately 10,000 fires per year caused by candles, only two percent could be
attributable to a candle being knocked over. Lambert did acknowledge that there were
documented fire incidents caused by pets knocking over candles.
{¶ 16} The defense called four witnesses. Leonard Ziegler testified he lived two doors
down from Rodano’s house. Rodano told him the fire started while he was asleep in
the living room when one of his pets knocked a candle off a table onto an adjacent
couch. Ziegler remembered having seen a dog in Rodano’s yard on a prior occasion.
Emily Henceroth, whose family were the prior owners of the home that was the subject
house, testified that she sold the house in 1999 to Rodano. Rodano made several
improvements to the house between 2010 and 2013. The third defense witness was
Matthew Slotka, Vice President of Ohio Fire Claims, a public adjusting company hired
by Rodano to represent him in submitting claims to Allstate. He testified that he
conducted an inventory of proof of loss but Allstate denied his claim.
{¶ 17} The defense’s arson expert, John Agosti, presented his finding that the candle
in the living room was the source of the fire and its flame ignited the couch. Agosti
testified that the fire department’s removal of the candle from the spot it was originally
found made it impossible for him to determine whether the fire was intentionally or
accidentally started. He also concluded that the cause of the fire was “undetermined.”
{¶ 18} The defense moved for Crim.R. 29 dismissal after the state presented its case
in chief and again after the defense presented its evidence. The trial court denied the
motions. The state dismissed Count 4, which related to a purported victim Norman
Thom. After deliberation, the jury found Rodano guilty of the remaining four counts:
three counts of aggravated arson and one count of insurance fraud. The trial court
sentenced him to 6 years in prison on each aggravated arson count and 36 months on
the insurance fraud, to be served concurrently. The court also imposed postrelease
control and advised Rodano of his duties to register as an arson offender.
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State v. Rodano, 86 N.E.3d 1032, 1034-37 (Ohio Ct. App. 8th Dist. 2017).
b. Procedural History
i. State Trial Court Proceedings
On October 28, 2014, a Cuyahoga County, Ohio grand jury returned an indictment charging
Rodano with two counts of aggravated arson in violation of Ohio Rev. Code § 2909.02(A)(2), two
counts of aggravated arson in violation of Ohio Rev. Code § 2902.02(A)(1), and one count of
insurance fraud in violation of Ohio Rev. Code § 2913.47(B)(1). State v. Rodano, Cuyahoga County
Court of Common Pleas, Case No. CR-14-590106 (indictment). Rodano pled not guilty. (Doc. No.
10-1 at 95.)
On May 28, 2015, through his first trial attorney, Rodano moved to dismiss the indictment.
(Id. at 5-7.) Based on the revised report of ATF Agent Joanna Lambert (“Lambert”)—which
concluded that the cause of the fire was undetermined rather than incendiary (i.e., intentional) as she
had opined in her original report—Rodano argued that the State would not be able to establish the
elements of arson beyond a reasonable doubt. (Id.) Shortly thereafter, on June 1, 2015, Rodano’s
attorney withdrew from representing him, and the trial court appointed new counsel. (Id. at 91.)
Rodano’s new counsel did not renew or otherwise further pursue the motion to dismiss, and the trial
court did not journalize any ruling on the motion. State v. Rodano, No. 104176, 2017 WL 4711460,
at *2 n.2 (Ohio Ct. App. 8th Dist. Oct. 17, 2017).
The case later proceeded to trial, after which the jury returned a verdict of guilty on two counts
of aggravated arson in violation of Ohio Rev. Code § 2909.02(A)(2), one count of aggravated arson
in violation of Ohio Rev. Code § 2909.02(A)(1), and one count of insurance fraud in violation of
Ohio Rev. Code § 2913.47(B)(1). (Doc. No. 10-1 at 52.) On February 23, 2016, the trial court
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sentenced Rodano to serve concurrent six-year prison terms on each of the three aggravated arson
convictions. (Id. at 80.) The trial court also sentenced Rodano to serve a thirty-six-month prison
term for the insurance fraud conviction, to be served concurrently with the aggravated arson prison
terms. (Id.)
ii. Direct Appeal
Rodano appealed his convictions to the Ohio court of appeals. (Id. at 96-134.) On August
19, 2016, through new counsel, Rodano raised three assignments of error:
1. The prosecution erred in proceeding on the October 23, 2013 indictment because
it was issued in violation of Rodano’s Fifth Amendment right to be indicted by an
independent and unbiased grand jury and because that violation prejudiced
Appellant.
2. The evidence is insufficient to support Appellant’s conviction of aggravated arson
in Count 1.
3. The evidence is insufficient to support convictions of aggravated arson in Counts
2 and 3.
(Id. at 101.) The state filed a brief in response. (Id. at 135-52.) On March 23, 2017, the court of
appeals rejected Rodano’s assignments of error and affirmed the trial court’s judgment. Rodano, 86
N.E.3d at 1037-41. Rodano did not appeal to the Ohio Supreme Court.
iii. Application to Reopen
On May 3, 2017, Rodano filed a pro se application to reopen his direct appeal pursuant to
Ohio App. R. 26(B) alleging that he had received ineffective assistance of appellate counsel. (Doc.
No. 10-1 at 166-76.) Specifically, Rodano asserted that his appellate counsel on his direct appeal was
ineffective for two reasons:
1. Rodano was denied effective assistance of counsel on appeal when appellate
counsel failed to raise trial counsel’s failure to move to dismiss the indictment after
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learning it was obtained through materially false evidence in violation of the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution.
2. Rodano was denied effective assistance of appellate counsel when counsel failed
to raise a violation of the Confrontation Clause that was clear on the face of the
record, in violation of the Sixth, and Fourteenth Amendments to the United States
Constitution.
(Id. at 168, 173.) The state filed a memorandum in opposition, and Rodano filed a reply. (Id. at 17791.) On October 17, 2017, the Ohio court of appeals denied Rodano’s application to reopen. Rodano,
2017 WL 4711460, at *2-3.
On November 16, 2017, Rodano filed a pro se notice of appeal in the Ohio Supreme Court.
(Doc. No. 10-1 at 202-04.) His memorandum in support of jurisdiction set forth two propositions of
law:
1. When appellate counsel failed to raise trial counsel’s failure to move to dismiss
the indictment after trial counsel learned the indictment was obtained through
different facts then [sic] those introduced to the grand jury, the conviction was
obtained in violation of the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution.
2. When appellate counsel failes [sic] to raise a violation of the Confrontation Clause
that is clear on the face of the record, in violation of the Sixth and Fourteenth
Amendments to the United States Constitution Rodano was denied effective
assistance of appellate counsel.
(Id. at 205-16.) On February 14, 2018, the Ohio Supreme Court declined jurisdiction and dismissed
the case pursuant to Ohio S. Ct. Prac. R. 7.08(B)(4). (Id. at 227.)
iv. Motion for New Trial
On August 6, 2018, Rodano filed a pro se motion for a new trial pursuant to Ohio R. Crim. P.
33(A) and a motion for leave to file a delayed motion for a new trial pursuant to Ohio R. Crim. P.
33(B). (Id. at 229-59.) Rodano asserted two grounds in support of his request for a new trial:

7

1. Rodano was denied his Sixth Amendment right to maintain his innocence as
outlined in McCoy v. Louisiana, 138 S. Ct. 1500, 200 L. Ed. 2d 821.
2. Rodano was denied his Sixth Amendment right to testify on his own behalf as
outlined in McCoy v. Louisiana, 138 S. Ct. 1500, 200 L. Ed. 2d 821.
(Id. at 235, 239.) On October 22, 2018, the trial court denied Rodano’s motion for leave to file a
delayed motion for a new trial because he had not shown by clear and convincing evidence that he
was unavoidably prevented from discovering any new evidence. (Id. at 260.) The trial court also
denied his motion for a new trial as moot. (Id.)
On November 7, 2018, Rodano filed a notice of appeal of the trial court’s decision to the Ohio
court of appeals. (Id. at 261.) His brief asserted three assignments of error:
1. Rodano was denied his Fifth, Sixth and Fourteenth Amendment rights when the
trial court abused its discretion by denying him leave to file a delayed motion for
new trial without a hearing.
2. Rodano was denied his Sixth Amendment right to maintain his innocence as
outlined in McCoy v. Louisiana, 138 S. Ct. 1500.
3. Rodano was denied his Sixth Amendment right to testify on his own behalf as
outline[d] in McCoy v. Louisiana, 138 S. Ct. 1500.
(Id. at 270-83.) The state filed a responsive brief, and Rodano filed a reply. (Id. at 284-305.) On
May 30, 2019, the Ohio court of appeals affirmed the decision of the trial court. State v. Rodano, No.
107880, 2019 WL 2317172 (Ohio Ct. App. 8th Dist. May 30, 2019). Rodano did not appeal to the
Ohio Supreme Court, but he asserts that he never received the journal entry from the Ohio court of
appeals required to file his appeal. (Doc. No. 22 at 11-12.)
v. Federal Habeas Petition
On November 27, 2018, Rodano filed a pro se Petition for Writ of Habeas Corpus in this
Court, raising three grounds for relief:
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GROUND ONE: Rodano was denied his Sixth Amendment right to the effective
assistance of appellate counsel when counsel failed to raise a clear claim of trial
counsel error that appeared on the face of the record.
GROUND TWO: Rodano was denied the effective assistance of appellate counsel
when counsel failed to raise a violation of the Confrontation Clause that was clear on
the face of the record, in violation of the Sixth, and Fourteenth Amendments to the
United States Constitution and Fourteenth Amendment rights.
GROUND THREE: Rodano was denied his Sixth Amendment right to maintain his
innocence and testify on his own behalf as outlined in McCoy v. Louisiana, 138 S Ct.
1500, 200 L.Ed.2d 821.
(Doc. No. 1 at 19-27.)
On March 2, 2020, the Court denied Rodano’s Motion to Stay and Respondent’s Motion to
Dismiss. (Doc. No. 14.) Shortly thereafter, Rodano filed a supplement to his Petition setting forth
arguments as to why Ground Three of his Petition was not procedurally defaulted. (Doc. No. 17.)
Respondent filed an Answer/Return of Writ on April 15, 2020, and Rodano filed a Reply to
Respondent’s Answer/Return of Writ on July 7, 2020. (Doc. Nos. 18, 22.)
On September 24, 2020, the Magistrate Judge issued an R&R recommending that the Petition
be denied. (Doc. No. 23.) The Magistrate Judge concluded that all of Rodano’s claims either lacked
merit and/or were procedurally defaulted. (Id.) After receiving an extension of time, Rodano filed
Objections to the R&R on October 22, 2020. (Doc. No. 25.) In his Objections, Rodano objects to
the Magistrate Judge’s recommended holdings only with respect to Grounds One and Two of his
Petition. (See id.)
II.

Standard of Review
Parties must file any objections to a report and recommendation within fourteen days of

service. Fed. R. Civ. P. 72(b)(2). Failure to object within this time waives a party’s right to appeal

9

the district court’s judgment. See Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters,
638 F.2d 947, 949-50 (6th Cir. 1981).
When a petitioner objects to a magistrate judge’s resolution of a dispositive matter, the district
court reviews those objections de novo. Fed. R. Civ. P. 72(b)(3). Specifically, a district judge:
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id. “A party who files objections to a magistrate [judge]’s report in order to preserve the right to
appeal must be mindful of the purpose of such objections: to provide the district court ‘with the
opportunity to consider the specific contentions of the parties and to correct any errors immediately.’”
Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio Apr. 7, 2006) (quoting
Walters, 638 F.2d at 949-50). An objection “that merely restates the arguments previously presented”
or “does nothing more than state a disagreement with a magistrate’s recommendation” is not
sufficient. Id.
When a party fails to raise a specific objection to a finding of a magistrate judge on a dispositive
matter, “the court need only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.” Fed. R. Civ. P. 72(b)(3), Advisory Committee Notes; see also
Thomas, 474 U.S. at 150 (stating that “[i]t does not appear that Congress intended to require district
court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings”).

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III.

Analysis
a. Ground One
In Ground One of his Petition, Rodano claims that his appellate counsel on direct appeal was

ineffective for failing to argue that his trial counsel was ineffective for not moving to dismiss the
indictment. (Doc. No. 1 at 19-20; Doc. No. 8-1.) Specifically, Rodano argues that he was indicted
based on Lambert’s initial report that concluded the fire had been intentional and that the indictment
should have been dismissed once Lambert revised her opinion to conclude that the cause of the fire
was undetermined. (Id.) Although Rodano’s first trial attorney moved to dismiss the indictment on
that basis, his second trial attorney did not pursue the motion, which Rodano asserts his appellate
counsel should have raised as an issue on appeal. (Id.) The Magistrate Judge concluded that the Ohio
court of appeals had not erred in denying Rodano’s claim of ineffective appellate counsel on this
basis because the underlying argument to dismiss the indictment was meritless and appellate counsel
did in fact challenge the propriety of the indictment, just under a slightly different framework. (Doc.
No. 23 at 17-19.) In his Objections, Rodano asserts that the Magistrate Judge did not fully address
his argument and that there is a reasonable probability that the indictment would have been dismissed
had his trial counsel pursued the motion to dismiss, which supports his ineffective assistance of
appellate counsel claim. (Doc. No. 25 at 3-7.) Upon review, the Court agrees with the conclusions
of the Magistrate Judge.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “dictates a highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions be
given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal citation and

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quotations omitted). Pursuant to AEDPA, habeas corpus relief is unavailable with respect to any
claim adjudicated on the merits in state court unless the adjudication:
(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).
“[F]or a state court’s decision to be ‘contrary to’ clearly established Supreme Court precedent,
it must ‘arrive[ ] at a conclusion opposite to that reached by [the Supreme Court] on a question of
law[,]’ or it must face a set of ‘facts that are materially indistinguishable from a relevant Supreme
Court precedent and’ still arrive at an opposite result.” Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.
2001) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
This is distinct from an “unreasonable application of” Supreme Court precedent, which occurs
“when the state court correctly identifies the governing legal principle in the case, yet it unreasonably
applies that principle to the facts of the defendant’s case.” Id. Under this standard, federal courts
may not overturn a state court’s decision simply because they believe that the state court applied
Supreme Court precedent incorrectly. Id. “Instead, the state court’s application of Supreme Court
precedent must also be objectively unreasonable.” Id. This means “even a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “[A] state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

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As noted above, applying this highly deferential standard of review, the Magistrate Judge
concluded that the Ohio court of appeals had not misapplied any clearly established federal law in its
denial of Rodano’s ineffective assistance of appellate counsel claim. (Doc. No. 23 at 21.) Generally,
in order to establish ineffective assistance of counsel, a petitioner must demonstrate that his counsel’s
conduct was so below acceptable standards of representation that counsel was not functioning as
“counsel” guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner also must demonstrate that a trial counsel’s
performance prejudiced the petitioner’s defense to such an extent that it rendered the proceeding
unfair. Id. To establish prejudice, 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.”
Id. at 694. In other words, a counsel’s deficient performance must have “caused the defendant to lose
what he otherwise would probably have won” and it must have been “so manifestly ineffective that
defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222,
229 (6th Cir. 1992).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere
disagreements by a defendant with tactics or strategies employed by counsel are not enough to support
a claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of
a petitioner’s counsel was a matter of strategy. Id. at 689; see also United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990).
The Supreme Court has held a defendant is entitled to effective assistance of counsel in his
first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Thus, the two-part test
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enunciated in Strickland is applicable to claims of ineffective assistance of appellate counsel. Smith
v. Robbins, 528 U.S. 259, 285 (2000). An appellant has no constitutional right, however, to have
every non-frivolous issue raised on appeal, Jones v. Barnes, 463 U.S. 745, 750-54 (1983), and tactical
choices regarding issues to raise on appeal are properly left to the sound professional judgment of
counsel, Perry, 908 F.2d at 59. “[O]nly when ignored issues are clearly stronger than those presented,
will the presumption of effective assistance of [appellate] counsel be overcome.” Joshua v. DeWitt,
341 F.3d 430, 441 (6th Cir. 2003) (citations omitted).
Importantly, “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential’
and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations
omitted); see Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011).
Rodano raised the same argument set forth in Ground One regarding the ineffectiveness of
his appellate counsel before the Ohio court of appeals, which rejected Rodano’s claim, reasoning:
{¶ 9} Rodano’s first argument is that he was indicted on materially false evidence,
that the fire was incendiary. He argues that when the ATF agent revised her report to
conclude that the origin was undetermined, the foundation of the indictment was so
undermined that it was no longer reliable and should have been dismissed.
{¶ 10} Rodano’s appellate counsel did raise the issue, but raised it through the lens of
Rodano’s right to be indicted by an independent and unbiased grand jury. The
gravamen of appellate counsel’s argument was that the
grand jurors were most certainly predisposed to indict after hearing that the
state founded its case on the expert opinion of the ATF Agent Lambert that the
cause of the * * * fire was “incendiary” * * *. Thus, it is clear that the improper
information “substantially influenced the * * * grand jury’s decision to indict.”
Bank of Nova Scotia, 487 U.S. at 256. [487 U.S. 250, 108 S.Ct. 2269, 101
L.Ed.2d 228 (1988)] * * * Allowing the indictment to stand under these
circumstances mocks the entire grand jury process and would render the Fifth
Amendment’s Grand Jury clause a nullity. Accordingly, the Court should find
that Appellant’s convictions must be vacated and the * * * indictment
dismissed without prejudice.
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Appellant’s br. 24–25.
{¶ 11} Rodano now argues that his appellate counsel bungled the argument by
narrowing its focus too much. He should have argued it through the lens of ineffective
assistance of trial counsel for not pursuing a motion to dismiss. Appellate counsel’s
particular argument, Rodano implies, allowed this court to skirt around the issue,
employ plain error analysis, and deny the assignment of error.
{¶ 12} However, that is not what the court ruled. The court acknowledged that the
grand jury did not have, could not have had, the benefit of the ATF agent’s revised
report. Nevertheless,
the prosecution’s evidence was tested at trial, not in the grand jury proceeding.
* * * At trial, Agent Lambert testified at great length before the jury regarding
her change of opinion regarding the cause of the fire from “incendiary” to
“undetermined.” Based on the record before us, we do not find the grand jury
proceeding in this case fundamentally unfair resulting in prejudice to the
defendant. There is no reversible error, plain or otherwise, regarding the grand
jury proceeding.
Rodano, 8th Dist. Cuyahoga No. 104176, 2017–Ohio–1034, at ¶ 28.
{¶ 13} Thus, Rodano has not established prejudice. The court examined the
irregularity and determined there was no error. Reframing the issue would not have
made a difference. Moreover, this court will follow the Supreme Court’s admonition
and not second-guess counsel’s decisions in strategy and tactics.
Rodano, 2017 WL 4711460, at *2-3.
Rodano has not shown this decision was contrary to or an unreasonable application of
Strickland. To wit, the Ohio court of appeals noted that Rodano’s appellate counsel on direct appeal
had in fact raised a challenge to the propriety of the indictment based on Lambert’s revised report,
that the court on direct appeal rejected that argument, and that reframing the issue in the manner
suggested by Rodano would not have changed the outcome of his direct appeal. Thus, Rodano cannot
show that he was prejudiced as a result of his appellate counsel’s failure to raise a meritless argument.
Further, given the high degree of deference to counsel’s strategic decisions under Strickland, Rodano
cannot show that his appellate counsel’s decision to challenge the indictment in the manner that he
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did was unreasonable, as the framing suggested by Rodano is not a clearly stronger argument.
Accordingly, the Ohio court of appeal’s decision not to second guess his appellate counsel’s strategic
choices on direct appeal was not an unreasonable application of Strickland or any other clearly
established federal law. Thus, the Court agrees with the Magistrate Judge that Ground One of
Rodano’s Petition fails on the merits.
b. Ground Two
In Ground Two of his Petition, Rodano asserts that his appellate counsel on direct appeal was
ineffective for failing to “raise a violation of the Confrontation Clause that was clear on the face of
the record.” (Doc. No. 1 at 21.) Specifically, Rodano contends that the report of State Fire Marshal
Jeffrey Koehn (“Koehn”)—which concluded that the fire was intentional—was presented at trial
through the testimony of Scott Allen (“Allen”), but that Koehn himself never testified and Rodano
therefore had no opportunity to cross-examine or confront Koehn. (Id. at 21-23.) In his R&R, the
Magistrate Judge determined that no Confrontation Clause violation occurred, as neither Koehn’s
report nor any other out-of-court statements by him were offered in evidence. (Doc. No. 23 at 2021.)

Accordingly, the Magistrate Judge concluded that Rodano’s appellate counsel was not

ineffective for failing to raise a meritless argument and that Rodano suffered no prejudice from his
appellate counsel’s failure to raise the argument. (Id.) Rodano does not dispute that Koehn’s
statements and report were not introduced as evidence at trial. Instead, in his Objections, Rodano
speculates as to whether the jury was somehow still aware of Koehn’s report. (Doc. No. 25 at 8.)
Rodano also points out that the Ohio court of appeals noted in its opinion on his direct appeal that
Koehn did not change his report, and Rodano questions how the appellate court could have known
this if the report was not made part of the record at trial and whether this knowledge influenced the
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opinion of the appellate court. (Id.) The Court finds no merit to Rodano’s objections with respect to
Ground Two.
The Confrontation Clause of the Sixth Amendment “guarantees a criminal defendant the right
‘to be confronted with the witnesses against him.’” United States v. Johnson, 581 F.3d 320, 324 (6th
Cir. 2009) (quoting U.S. Const. amend. VI). Generally, “[t]his clause prohibits the government from
introducing some out-of-court statements by individuals who do not testify at trial and whom the
defendant has not had the opportunity to ‘confront.’” United States v. Miller, 982 F.3d 412, 434 (6th
Cir. 2020).
The Ohio court of appeals rejected Rodano’s Confrontation Clause argument, finding that
Koehn did not testify, that his report was not introduced into evidence, and, that, at most, a witness
referenced Koehn when testifying as to what the witness told Koehn, not anything that Koehn said.
Rodano, 2017 WL 4711460, at *3. The Magistrate Judge came to the same conclusion. (Doc. No.
23 at 20.) The Court agrees as well, as the trial transcript shows that Koehn’s report was specifically
excluded from being introduced and that neither Koehn’s report nor any of his out-of-court statements
were introduced at trial.

(See Doc. No. 18-3 at 36-38; Doc. No. 18-4 at 20-42.) Thus, no

Confrontation Clause violation occurred, and both the Magistrate Judge and the Ohio court of appeals
correctly concluded that Rodano’s appellate counsel was not ineffective for failing to raise a meritless
argument.
Rodano’s objections on the issue are either entirely unsupported or irrelevant to the issue of
whether his constitutional rights were violated at trial or on appeal. First, Rodano speculates as to
whether the jury was aware of Koehn’s report and the fact that Koehn never changed the conclusion
in his report that the fire at Rodano’s house was intentionally set. (Doc. No. 25 at 8.) However,
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Rodano does not provide any explanation as to how the jury could have been of aware of the report
when it was never introduced in any manner at trial. Second, Rodano questions how the Ohio court
of appeals could have known that Koehn never changed his report when the report was not introduced
into the record. (Id.) But the appellate court’s knowledge of the report is irrelevant to any alleged
violation that may have occurred at trial. Moreover, the trial transcript includes a discussion of
Rodano’s motion in limine to exclude Koehn’s report during which it is mentioned that the report
was never changed. (Doc. No. 18-3 at 36-38.) Presumably, the Ohio court of appeals had access to
this transcript. Thus, the Court finds that Rodano’s objections with respect to Ground Two are
meritless, and the Court adopts the Magistrate Judge’s recommendations regarding Ground Two.
c. Ground Three
In Ground Three of his Petition, Rodano claims that his Sixth Amendment rights to maintain
his innocence and to testify on his own behalf were violated, relying on the Supreme Court’s holding
in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). (Doc. No. 1 at 24-27.) The Magistrate Judge
concluded that Rodano’s claims in this regard should be denied because they were procedurally
defaulted and, alternatively, because they lacked merit. (Doc. No. 23 at 21-34.) Rodano does not
object to any of the Magistrate Judge’s findings with respect to Ground Three. (See Doc. No. 25 at
8-9.) Instead, Rodano states: “At pages 25 through 30 of his R&R, Magistrate Parker gave a thorough
analysis of Rodano’s attempted application of the Supreme Court’s decision in McCoy. After
reviewing Magistrate Parker’s McCoy analysis, and researching the case authorities cited therein,
Rodano respectfully submits that no further arguments related to the McCoy decision will be
forthcoming.” (Id. at 9.)

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Because Rodano has not objected to the Magistrate Judge’s recommendations with respect to
Ground Three, the Court need only satisfy itself that there was no clear error in order to accept the
R&R. Fed. R. 72(b)(3), Advisory Committee Notes; see also Thomas, 474 U.S. at 150. The Court
has reviewed the Magistrate Judge’s findings with respect to Ground Three and finds no clear error.
Accordingly, the Court adopts the Magistrate Judge’s conclusions that Ground Three is procedurally
defaulted and meritless, as set forth in the R&R.
IV.

Conclusion
For the reasons set forth above, Rodano’s Objections (Doc. No. 25) are OVERRULED.

Accordingly, the Magistrate Judge’s Report & Recommendation (Doc. No. 23) is ADOPTED, and
the Petition (Doc. No. 1) is DENIED. Furthermore, the Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no
basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
U. S. DISTRICT JUDGE

Date: June 7, 2021

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