Clyde v. Miller

Filing 22

Opinion & Order signed by Judge James S. Gwin on 5/22/19. The Court, for the reasons set forth in this order, adopts in part and overrules in part petitioner's objections to the Report and Recommendation, adopts in part and overrules in part the Report and Recommendation, and dismisses petitioner's Section 2254 petition. The Court denies as moot petitioner's objection the Magistrate Judge Baughman's 5/31/17 Order. 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. Moreover, the Court certifies that no basis exists upon which to issue a certificate of appealability. (Related Docs. 1 , 17 , 19 , and 21 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

JEFFREY CLYDE,
Petitioner,
vs.
MICHELLE MILLER,
Respondent.

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CASE NO. 3:16-cv-2039
OPINION & ORDER
[Resolving Docs. 17, 21]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Jeffrey Clyde, acting pro se, petitions for habeas corpus relief under 28 U.S.C.
§ 2254.1 On October 23, 2018, Magistrate Judge William H. Baughman, Jr. issued a report
and recommendation (“R&R”).2 Judge Baughman recommended that the Court dismiss the
Clyde’s petition. Petitioner Clyde timely objected.3
For the following reasons, the Court ADOPTS IN PART and OVERRULES IN PART
Petitioner’s objections to the R&R, ADOPTS IN PART and OVERRULES IN PART the R&R,
and DISMISSES Petitioner’s § 2254 petition.
I. Background
In the R&R, Magistrate Judge Baughman found that Petitioner Clyde procedurally
defaulted all ten grounds for relief and that this default stopped federal habeas review.
Petitioner objects to these findings for all grounds except Ground Two, that is moot.4 The

1

Doc. 1. Respondent filed a return of writ. Doc. 12. Petitioner Clyde filed an untimely traverse. Doc. 20.
Doc. 19.
3
Doc. 21.
4
Clyde’s two attempted pandering obscenity convictions were overturned before he filed this habeas petition.
Doc. 12-1, Ex. 8. Accordingly, it is unclear why Clyde included Ground Two, which challenges these convictions.
2

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Gwin, J.
Court reviews de novo the R&R objections.5
In his habeas petition, Petitioner Clyde challenges his state sex offense convictions
and sentences. In the state case, Ohio convicted Petitioner of sexually abusing his minor
daughter and making sexual comments to his live-in girlfriend’s minor daughter and her
minor boyfriend. Clyde’s habeas petition raises ten grounds for relief:
1. The remaining convictions for compelling prostitution are not supported by
sufficient evidence in violation of U.S. Constitutional Amendment(s) 4, 5, 6, and 14
(as applicable).
2. The remaining convictions for attempted pandering obscenity are not supported by
sufficient evidence in violation of U.S. Constitutional Amendment(s) 4, 5, 6, and 14
(as applicable).
3. Plain error occurred when the trial court tried two indictments together absent an
order to do so, and absent a State’s motion to do so, in violation of U.S.
Constitutional Amendment(s) 4, 5, 6, and 14 (as applicable).
4. Trial counsel committed prejudicial ineffective assistance through multiple failures,
in violation of the Sixth Amendment to the U.S. Constitution.
5. The convictions with respect to the victim K.T. were not supported by sufficient
evidence in violation of U.S. Constitutional Amendment(s) 4, 5, and 14 (as
applicable).
6. The trial court violated the Petitioner’s U.S. Constitution’s 5th and 6th
Amendment(s) by imposing consecutive sentences without proper fact-findings.
7. The trial court erred in denying Petitioner’s petition for post-conviction relief even
though it permitted the State to ask various witnesses if they believed the
complaining witness was credible in her allegations in violation of U.S.
Constitutional Amendments 4, 5, and 14.
8. The trial court erred in denying Petitioner’s petition for post-conviction relief despite
evidence about the complaining witness passing a polygraph being admitted into
evidence at trial, in violation of the Sixth Amendment to the U.S. Constitution.
9. The trial court erred in denying Petitioner’s petition for postconviction relief despite
the fact that the State gave defense counsel additional discovery on at least five
different days during trial when the indictment was issued over two years earlier in
violation of U.S. Constitutional Amendments 4, 5, and 14.
10. Appellate counsel was ineffective for failing to raise assignments of error (dead-bang
winners) on appeal that were much stronger with a better chance at gaining a
reversal of Petitioner’s convictions in violation of Petitioner’s U.S. Sixth Amendment
5

28 U.S.C. § 636(b)(1).

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right to the effective assistance of counsel on direct appeal.6
The Court reviews the state court procedural history in detail, as it is central to Petitioner
Clyde’s procedural default objections.
A. State Court Convictions & Direct Appeal
On September 6, 2013, after a bench trial, the Ohio trial court found Clyde guilty of
compelling prostitution, attempted pandering obscenity involving a minor, sexual battery,
corrupting another with drugs, and disseminating matter harmful to juveniles.7 On
December 12, 2013, the trial court imposed an aggregate sentence of twenty years.8
Represented by different counsel, Clyde appealed his conviction and sentence.9 His
state court appellate claims were Grounds One through Six of the habeas petition.10
On May 15, 2015, the Ohio Court of Appeals affirmed in part and reversed in part
the trial court judgment.11 With its decision, Court of Appeals found that one of the two
counts of compelling prostitution and both counts of attempted pandering obscenity were
not supported by sufficient evidence. The court overturned those convictions, vacated
Clyde’s sentence, and remanded Clyde’s case for resentencing on the remaining seven
counts. In addition, the Court of Appeals instructed the trial court to set out factual findings
supporting consecutive sentencing as required by state law. The Ohio trial court had not
originally given findings supporting the consecutive sentences.
At the resentencing, the trial court sentenced Clyde to an aggregate term of eighteen

6

Doc. 1 (edited for relevance).
Doc. 12-1, Ex. 3, (finding Clyde guilty of ten of the seventeen counts).
8
Doc. 12-1, Ex. 4.
9
Doc. 12-1, Ex. 5 (Case No. E.14-006).
10
Doc. 12-1, Ex. 6.
11
Doc. 12-1, Ex. 8.
7

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years.12
With regard to the upheld convictions, Clyde, pro se, filed an untimely notice of
appeal to the Ohio Supreme Court.13 On September 16, 2015, the Ohio Supreme Court
denied Clyde’s motion for delayed appeal and dismissed the case.14
B. State Post-Conviction Relief Proceedings
On January 12, 2015, and while Clyde’s direct appeal was still pending, Clyde
petitioned the trial court for post-conviction relief.15 Represented by different counsel,
Clyde claimed ineffective assistance of trial counsel and prejudicial prosecutor
misbehavior. On March 13, 2015, the trial court denied the post-conviction relief
petition.16
Clyde appealed, raising each error from below and adding the claims found as
Grounds Seven, Eight, and Nine in the habeas petition.17 On January 6, 2016, the Ohio
Court of Appeals found res judicata stopped relief and found that Clyde could have raised
the Grounds Seven, Eight, and Nine claims on direct appeal.18
C. Ohio Appellate Rule 26(B) Application to Reopen
On August 10, 2016, Clyde, pro se, filed a delayed Ohio Appellate Rule 26(B)
application to reopen his direct appeal. In his Ohio Appellate Rule 26(B) application,
Clyde additionally alleged ineffective assistance of appellate counsel. In this habeas case,

12

Doc. 12-1, Ex. 21. Petitioner’s appeals from the resentencing are not relevant to this habeas petition.
Doc. 12-1, Ex. 18.
14
Doc. 12-1, Ex. 20.
15
Doc. 12-1, Ex. 9.
16
Doc. 12-1, Ex. 12.
17
Doc. 12-1, Exs. 13, 14 (Case No. E-15-22).
18
Doc. 12-1, Ex.17. Clyde did not appeal this decision to the Ohio Supreme Court. See Doc.12-1, Ex. 31.
13

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Clyde makes this argument as Ground Ten in the habeas petition.19 As to this claim, Clyde
argues that his appellate counsel incorrectly represented that some errors from the trial
court proceedings—including Grounds Seven and Nine—could only be raised in a postconviction petition and did not raise them on direct appeal.
On September 13, 2016, the Court of Appeals denied Clyde’s App. R. 26(B)
application to reopen as untimely.20 Clyde appealed and the Ohio Supreme Court
declined to accept appeal jurisdiction.21
D. Section 2254 Habeas Petition
On August 15, 2016, Clyde, pro se, filed this § 2254 habeas petition. On
December 22, 2016, after reviewing Respondent’s return of writ, Petitioner Clyde moved
to stay the proceedings and deadlines to allow Clyde to exhaust Ground Six in the state
courts.22
In a May 31, 2017 order, Magistrate Judge Baughman denied the motion to stay and
found that Petitioner’s Ground Six was a “plainly meritless” claim.23 Petitioner objected.24
Over a year later, on October 22, 2018, Petitioner filed his traverse.25 In it,
Petitioner noted that this Court had still not reviewed his objection to the stay denial order
but that the objection had become moot because he had since exhausted the claim.26 With

19

Doc. 12-1, Ex. 25 (Case No. E-14-006).
Doc. 12-1, Ex. 28. It then denied Clyde’s timely motion for reconsideration. Doc. 20-27.
21
Doc. 20-30.
22
Doc. 13. Respondent opposed. Doc. 14. Petitioner replied. Doc. 15.
23
Doc. 16 (finding that the unexhausted sentencing claim did not raise a federal issue and thus was not a
cognizable ground for relief).
24
Doc. 17. See also Fed. R. Civ. P. 72 (requiring district courts to consider timely objections to a magistrate
judge’s decision).
25
Doc. 20.
26
The Court agrees and now denies his objection as moot.
20

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all claims exhausted, Petitioner’s traverse also replied to Respondent’s return of writ.
On October 23, 2018, but technically before the traverse was electronically
docketed, Magistrate Judge Baughman issued an R&R recommending that the Court
dismiss Clyde’s petition.27 Petitioner objected to the R&R.28 Petitioner’s filing incorporates
by reference specific sections from his untimely traverse for each objection.29
II. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls
habeas review of state court proceedings.30 A federal court may grant a writ of habeas
corpus under 28 U.S.C. § 2254(d)(1) “if the state courts ruled in a way contrary to, or
involving an unreasonable application of, clearly established federal law.”31 Habeas relief
may not be granted solely based on alleged state law error.32
A federal court also may not hear a petitioner’s habeas claim if that claim is
unexhausted or procedurally defaulted.33 A petitioner exhausts his available state court
remedies by first giving each appropriate state court an opportunity to consider and correct
the alleged federal law violation.34 To avoid procedural default, a petitioner must properly

27

Doc. 19.
Doc. 21.
29
Although incorporating arguments from an earlier-filed brief is disfavored, the Court may allow it in the
present case because Petitioner’s objections are sufficiently clear and specific. See Cowherd v. Million, 380 F.3d 909,
912 (6th Cir. 2004) (allowing the party to incorporate arguments from an earlier-filed brief in his objection because the
party’s arguments were clear); Neuman v. Rivers, 125 F.3d 315, 321–23 (6th Cir. 1997) (denying a party’s attempt to
incorporate parts of an earlier-filed brief because the district court “did not acknowledge that it was able to understand the
specific determinations of the magistrate objected to by the petitioner”). The R&R largely adopted the Respondent’s
positions—the same positions that Petitioner opposed in the traverse.
30
28 U.S.C. § 2254; Haliym v. Mitchell, 492 F.3d 680, 690 (6th Cir. 2007).
31
Parker v. Renico, 506 F.3d 444, 447 (6th Cir. 2007) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529
U.S. 362, 404–05 (2000)).
32
Haliym, 492 F.3d at 690 (discussing 28 U.S.C. § 2254(d)); see Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(explaining that, to the extent a petitioner’s argument is based upon state law, the petitioner has failed to state a claim
upon which habeas corpus relief may be granted); Smith v. Morgan, 371 F. App’x 575, 582 (6th Cir. 2010).
33
Daniels v. United States, 532 U.S. 374, 381 (2001).
34
28 U.S.C. § 2254(b), (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004).
28

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present the claim to the court at each level of the state’s established appellate review
process, allowing the state courts to consider the merits of the claim.35
A petitioner procedurally defaults a claim if:
1) the petitioner fails to comply with a state procedural rule;
2) the state courts enforce the state procedural rule;
3) the state procedural rule is an adequate and independent state ground for denying
review of a federal constitutional claim; and
4) the petitioner cannot show cause for the default (i.e., the failure to comply with
the rule) and actual prejudice as a result of the alleged violation of federal law.36
Demonstrating cause needs a showing that an objective factor external to the
petitioner—something that cannot be fairly attributed to him—impeded his efforts to
comply with the state procedural rule.37 “Demonstrating prejudice requires showing that
the trial was infected with constitutional error.”38
Even where a petitioner does not show cause and prejudice, a court must still
consider whether a fundamental miscarriage of justice will result through enforcement of
the procedural default.39
III. Discussion
In the R&R, Magistrate Judge Baughman found that Petitioner Clyde had
procedurally defaulted all grounds for relief. He also found that Petitioner did not try to
show cause and prejudice or a miscarriage of justice to excuse the defaults.
The Court finds that Clyde has made arguments for cause and prejudice40 and

O'Sullivan v. Boerckel, 526 U.S. 838, 845–848 (1999).
Wogenstahl v. Mitchell, 668 F.3d 307, 321 (6th Cir. 2012) (citations omitted).
37
Coleman v. Thompson, 501 U.S. 722, 753 (1991).
38
Franklin v. Anderson, 434 F.3d 412, 417 (6th Cir. 2006) (citation omitted).
39
Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006).
35
36

40

Petitioner elaborated on some in his untimely traverse, which is incorporated as his objections.

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considers them for the first time here.
A. Grounds One, Three, Four, Five, and Six
Petitioner procedurally defaulted Grounds One, Three, Four, Five, and Six when he
did not present these grounds to the Ohio Supreme Court on direct review. Under Ohio
Sup. Ct. R. II, § 2(A)(1)(a), Clyde had 45 days following the Court of Appeal’s decision to
file his appeal. The Ohio Supreme Court Clerk’s Office received Clyde’s notice of appeal
two days after his June 29, 2015 deadline. The Ohio Supreme Court subsequently denied
Clyde’s motion for leave to file a delayed appeal, and this procedural ruling is an adequate
and independent state ground for denying federal habeas review.41
Petitioner says he has shown cause and prejudice to excuse his default for these five
claims.
1. Cause for the Procedural Default
As for cause, Petitioner says his prison failed to promptly process his outgoing legal
mail and says that this delay caused his untimely notice of appeal to the Ohio Supreme
Court. Prison officials’ interference can be an external factor for cause.42
Petitioner gave the notice of appeal to the prison mailing office on June 24, 2015.
The record shows that the prison mailing office “processed” this mail on June 26, 2015 and
that the Clerk’s office received it on July 1, 2015—two days after the June 29, 2015 filing
deadline.43 According to an analogous Sixth Circuit decision, the prison mailing office’s at
least two-day delay in mailing Petitioner’s two-day-late filing can be cause for the default

41
Doc. 12-1, Ex. 20; Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (finding that the Ohio Supreme
Court’s entry denying motion for leave to file a delayed appeal constitutes a procedural ruling sufficient to bar federal
habeas review).
42
Wogenstahl, 668 F.3d at 321.
43
Doc. 12-1, Ex. 8, at 295; Doc. 12-1, Exs. 18 & 19. Petitioner claims that prison officials did not actually mail
it until the June 29, 2015 deadline date, but the record does not support this.

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because it would have otherwise been timely filed.44
2. Actual Prejudice as a Result of the Alleged Federal Law Violation
Having shown cause for the default, the Court considers whether Petitioner Clyde
shows prejudice. To infect a trial with constitutional error, the alleged prejudice must
work to the defendant’s “actual and substantial disadvantage.”45 There is no prejudice
where the petitioner does not show a reasonable probability of a different judgment.46
a. Grounds One and Five: Sufficiency of the Evidence
Grounds One and Five challenge the sufficiency of the evidence. For this inquiry,
the Court asks whether, viewing the record 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.47 “[A] state-court decision rejecting a sufficiency challenge may
not be overturned on federal habeas unless the decision was objectively unreasonable.”48
The Court applies this standard “with explicit reference to the substantive elements
of the criminal offense as defined by state law.”49 The Ohio Court of Appeals’ factual
findings are presumed to be correct.50
In Ground One, Petitioner claims that there was insufficient evidence to find him
guilty of the remaining compelling prostitution count under Ohio Revised Code
§ 2907.21(A)(3)(a).51 This statute prohibits any person from knowingly doing the following:
See Maples v. Stegall, 340 F.3d 433, 438–39 (6th Cir. 2003) (finding that prison officials’ inaction constituted
cause to excuse pro se prisoner’s default based on an untimely notice of appeal when the materials otherwise would have
been timely filed within the normal course of events).
45
Fautenberry v. Mitchell, 515 F.3d 614, 629 (6th Cir. 2008).
46
Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003).
47
Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
48
Parker v. Matthews, 567 U.S. 37, 43 (2012) (internal quotation marks omitted).
49
Joseph v. Coyle, 469 F.3d 441, 454 (6th Cir. 2006).
50
28 U.S.C. § 2254(e)(1); see Mason, 320 F.3d at 614 (noting that facts found by the state appellate court based
on its review of the record are presumed correct by the federal habeas court).
51
Although Petitioner was originally convicted of two counts of this offense, the Ohio Court of Appeals
44

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Pay or agree to pay a minor, either directly or through the minor’s agent, so that the
minor will engage in sexual activity, whether or not the offender knows the age of
the minor.
“‘Sexual activity’ means sexual conduct or sexual contact, or both.”52 The statutory
definitions of “sexual conduct” and “sexual contact” both involve some type of physical
contact between persons.53
Petitioner does not dispute the Ohio Court of Appeals’ factual findings. At trial,
victims B.M. and D.B—Petitioner’s live-in girlfriend’s minor daughter and her minor
boyfriend, respectively—testified that they were in B.M.’s bedroom when Petitioner came
in and asked them if they wanted to “make a porno” for him. Petitioner said that he would
give B.M. and D.B. $200 if they made it for Petitioner and that Petitioner would give them
$300 if they let Petitioner join in. Nobody laughed, and B.M. and D.M. believed Petitioner
was not joking.
Petitioner argues that the “sexual activity” definition necessarily involves some sort
of physical contact between people and that Petitioner’s agreement to pay B.M. and D.B.
to “make a porno” did not necessarily encourage such physical contact. Petitioner says
that B.M. and D.B. did not specifically testify as to what “make a porno” meant and that
many types of pornography involving multiple individuals do not depict individuals
engaged in physical contact with another (e.g., group masturbation).
Petitioner appears to treat this issue as a statutory interpretation question. It is not.

overturned one of the convictions on direct appeal due to insufficient evidence.
52
Ohio Rev. Code § 2907.01(C).
53
“‘Sexual conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part
of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.” Id. § 2907.01(A). “‘Sexual contact’ means any
touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if
the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.” Id. § 2907.01(B).

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Certainly, the definition of “pornography” is relevant to whether Petitioner’s agreement to
pay the victims to “make a porno” was an offer of payment to engage in “sexual activity.”
However, the surrounding circumstances also inform the intended and perceived meaning
of “make a porno.” Although there is a universe in which the statement would not
reference any physical contact between people, the state court made the factual findings
that the offer suggested physical contact.
A rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. B.M. and D.B., a couple, were alone in a bedroom when Petitioner
told them that he would pay them to make a porno and asked to “join in.” Since this is
evidence that Petitioner’s “make a porno” statement contemplated physical touching
between people, Petitioner does not show actual prejudice for Ground One.
In Ground Five, Petitioner claims that insufficient evidence supports the six
convictions involving his daughter K.T.
Four of the six counts charged sexual battery, defined as sexual conduct with a
natural parent. According to the Ohio Court of Appeals’ decision, Petitioner’s daughter
K.T. testified that she and her father had sexual intercourse on multiple occasions. K.T.’s
former friend also testified that she saw them having sex, and Petitioner’s former brother-inlaw testified that Petitioner admitted to having had sex with K.T.
Petitioner mainly argues that a “new” January 10, 2017 affidavit from his daughter
K.T.—which he attaches to his traverse—shows that these allegations were false.54 In the
affidavit, K.T. recants her trial testimony.

54

Doc. 20, Ex. 28.

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The Court may not consider this evidence. The Court’s review under 28 U.S.C.
§ 2254(d)(1) looks to the state court record; “evidence introduced in federal court has no
bearing on § 2254(d)(1) review.”55
Petitioner also seems to argue that K.T.’s friend did not actually witness Clyde
having sex with his daughter. However, Petitioner gives no support for this challenge and
has not rebutted the presumed correctness of the appellate court’s factual findings on this
point.56
Given K.T. and two corroborating witnesses’ trial testimony, a rational factfinder
could find Petitioner’s guilt of sexual battery beyond a reasonable doubt.
Petitioner also claims that the other two convictions involving K.T. were based on
insufficient evidence because they were based solely on K.T.’s testimony. But the
testimony of a victim alone is constitutionally sufficient to sustain a conviction.57
Petitioner has not shown prejudice for Grounds One and Five, and thus the Court
may not consider these procedurally defaulted grounds for relief.
b. Ground Four: Ineffective Assistance of Trial Counsel
Petitioner claims that his trial counsel was ineffective in violation of his Sixth
Amendment right to counsel. “Th[is] right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby prejudices
the defense.”58 When, as here, a state court has already rejected an ineffective-assistance

Cullen v. Pinholster, 563 U.S. 170, 181–86 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.”).
56
See Mason, 320 F.3d at 614 (explaining that state court factual findings “are presumed to be correct and can
be contravened only if the habeas petitioner can show by clear and convincing evidence that the state court's factual
findings were erroneous” (citing 28 U.S.C. § 2254(e)(1)).
57
Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008).
58
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
55

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claim, the state court’s application of federal law “must be shown to be not only erroneous,
but objectively unreasonable.”59
The Ohio Court of Appeals’ denial of Petitioner’s ineffective assistance of trial
counsel claim was not “objectively unreasonable.” The court found that trial counsel’s
failure to object to the joint trial of the two indictments did not prejudice Petitioner
because, inter alia, the trial court in the non-jury case could easily distinguish the evidence
relevant to each indictment. Further, even though Petitioner’s counsel did not specifically
object to the “other acts” testimony, his counsel did challenge the testimony in other ways.
Finally, Petitioner did not show how trial counsel’s failure to object to the
polygraph-related testimony and the hearsay statements fell below a reasonableness
standard or affected the trial outcome. Both types included evidence related to charges for
which Petitioner was acquitted, and there was ample other evidence for the remaining
convictions.60
Even considering all of the perceived errors cumulatively, the appellate court
reasonably concluded that Petitioner’s trial counsel’s performance was not ineffective.
c. Ground Three: Plain Error
Petitioner claims that the state trial court committed plain error by trying Petitioner’s
two indictments together without a motion by the state or an order under Ohio Criminal
Rule 13. However, for the reasons above, Petitioner has not shown prejudice that excuses
his procedural default.61 In addition, this alleged state law error does not state a

59
60

Id.
See Doc. 12-1, Exs. 6–8; Perkins, 58 F.3d at 219 (“[The] prejudice test is not satisfied if there is strong

evidence of a petitioner's guilt and a lack of evidence to support his claim” (internal quotation marks omitted).
61
Petitioner also procedurally defaulted this claim on another ground: he did not object to this perceived error
during the trial court proceedings and the appellate court conducted only a plain error review. See Hinkle v. Randle, 271
F.3d 239, 244 (6th Cir. 2001). And because Petitioner’s ineffective trial counsel claim does not succeed for the reasons

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cognizable ground for federal habeas relief.
d. Ground Six: Sentencing Error
Petitioner claims that the imposition of consecutive sentences violated state law.
But any state law consecutive sentencing error does not show a federal constitutional
issue.62
B. Ground Ten: Ineffective Assistance of Appellate Counsel
The R&R concluded that Petitioner procedurally defaulted his ineffective assistance
of appellate counsel claim. The Court agrees. Petitioner correctly raised his ineffective
assistance of appellate counsel claim in an App. R. 26(B) application to reopen his direct
appeal, but did so about a year too late.63 The Court of Appeals denied the application as
untimely, and non-compliance with this App. R. 26(B)(2)(b) time limitation is an adequate
and independent state ground foreclosing federal habeas review.64
C. Grounds Seven, Eight, and Nine
Petitioner procedurally defaulted Grounds Seven, Eight, and Nine by raising them
for the first time in his post-conviction relief proceedings, rather than on direct appeal.65
In his objection, Petitioner argues that his appellate counsel’s ineffectiveness

above, he cannot rely on it to excuse the default.
62
See Oregon v. Ice, 555 U.S. 160, 169 (2009); Terry v. Trippett, 62 F.3d 1418 (6th Cir. 1995). In any event,
upon remand, the trial court made the factual findings that it had erroneously omitted during the first sentencing. See
Doc. 12-1, Ex. 21, at 299.
63
Doc. 12-1, Ex. 28, at 399; see Ohio App. R. 26(B); James v. Brigano, 470 F.3d 636, 640 (6th Cir. 2006).
64
Landrum v. Mitchell, 625 F.3d 905, 916–17 (6th Cir. 2010). Further, that Petitioner was not represented by
counsel cannot excuse a failure to comply with this time limitation. See Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir.
2005) (explaining that there is no federal constitutional right to assistance of counsel in a Rule 26(B) application to
reopen, as the proceeding is a collateral matter rather than a part of direct review).
Contrary to the R&R’s finding, Petitioner timely appealed the Ohio Court of Appeal’s denial of his App. R. 26(B)
application to the Ohio Supreme Court. See Docs. 20-24, 20-27 (motion for reconsideration); Docs. 20-28, 20-30 (Ohio
Supreme Court appeal). But this does not excuse Petitioner’s default.
65
Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (finding that Ohio courts’ default rule barring
consideration of claims that should have been raised on direct appeal is an adequate and independent state law ground
precluding federal habeas relief).

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excuses his procedural default. However, “an ineffective-assistance-of-counsel claim
asserted as cause for the procedural default of another claim can itself be procedurally
defaulted.”66 As explained above, Petitioner has procedurally defaulted his ineffective
assistance claim. Absent a showing of cause and prejudice, the Court may not consider
these procedurally defaulted grounds for relief.
D. No Fundamental Miscarriage of Justice
Federal courts may consider an otherwise procedurally defaulted claim if enforcing
the procedural bar would result in a miscarriage of justice. To satisfy this standard,
Petitioner must show that a constitutional violation “probably resulted” in his conviction,
despite his actual innocence of the offense.67
Petitioner again points to his daughter K.T.’s “new” affidavit that Petitioner says
exonerates him. However, Petitioner does not show that he meets the 28 U.S.C.
§ 2254(e)(2) requirements to introduce this new evidence that has not been considered by
the state courts.68 Further, even if the Court could consider the affidavit, Petitioner has not
shown “that but for constitutional error no reasonable juror would have found him guilty of
the crime.”69 K.T.’s affidavit recanting her trial testimony does not contain any information
not addressed at trial; K.T. had tried to recant in the past and had given the same story.70

Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
Dretke v. Haley, 541 U.S. 386, 393 (2004).
68
See 28 U.S.C. § 2254(e)(2) (stating that, where a petitioner has failed to develop the factual basis of a claim in
66
67

state court proceedings, the court may not hold an evidentiary hearing on the claim unless the petitioner shows that the
claim relies on a new rule of constitutional law or a factual predicate that could not have been previously discovered
through the exercise of due diligence); Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (“At a minimum, therefore,
§ 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that
were not adjudicated on the merits in state court.”). Petitioner does not allege new constitutional law made retroactive or
that he exercised due diligence with respect to this “new” evidence.
69
Schlup v. Delo, 513 U.S. 298, 327 (1995); Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006).
70
Compare Doc. 20-31 (noting that K.T. had told the prosecutors before trial that she made up the sexual abuse
allegations so that she would be removed from her father’s home and placed in a home with her father’s 42-year-old
friend Steve Rose, with whom K.T. had a sexual and romantic relationship, and that one of the prosecutors threatened

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Case No. 3:16-cv-2039
Gwin, J.
Because Petitioner has neither shown cause and prejudice nor a fundamental
miscarriage of justice to excuse his procedurally defaulted claims, the Court dismisses
Clyde’s § 2254 petition.
Conclusion
For the reasons stated, the Court ADOPTS IN PART and OVERRULES IN PART
Petitioner’s objections to the R&R, ADOPTS IN PART and OVERRULES IN PART the R&R,
and DISMISSES Petitioner’s § 2254 petition. Further, the Court DENIES AS MOOT
Petitioner’s objection to Magistrate Judge Baughman’s May 31, 2017 order. 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. Moreover, the Court certifies that no basis exists upon which to issue a
certificate of appealability.71
IT IS SO ORDERED.

Dated: May 22, 2019

s/

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

K.T. with prosecution), with Doc. 12-1, Ex. 6 (direct appeal merits brief mentioning same). Further, Petitioner does not
claim that the K.T. affidavit shows a constitutional violation probably resulted in his wrongful conviction, and the Sixth
Circuit has so far refused to recognize that a “free-standing” actual innocence claim may state a ground for federal habeas
relief. See D'Ambrosio v. Bagley, 527 F.3d 489, 498 n.6 (6th Cir. 2008); Davis v. Burt, 100 F. App'x 340, 350 (6th Cir.
2004).
71
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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