Jackson v. Houk

Filing 80

Order signed by Judge James S. Gwin on 2/23/2021. The Court GRANTS Jacksons petition. The Court ISSUES a writ of habeas corpus under 28 U.S.C. §2254 as to Ground 30 and remands to the state trial court for resentencing. re 14 (S,KM)

Case: 4:07-cv-00880-JG Doc #: 80 Filed: 02/23/21 1 of 42. PageID #: 23836

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
NATHANIEL JACKSON,
Petitioner,
vs.
MARC V. HOUK,
Respondent.

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CASE NO. 4:07-cv-00880
OPINION & ORDER
[Resolving Doc. 64]

JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Nathaniel Jackson, an inmate sentenced to death by the State of Ohio, petitions for
habeas corpus relief under 28 U.S.C. § 2254. 1 He raises 37 Grounds of relief. Respondent
Warden Marc C. Houk answered. 2 Petitioner filed a traverse. 3
The Petitioner Jackson briefing does a markedly poor job. Because of defective
pleading, Petitioner Jackson gives a plausible argument with regard to only a single claim.
Indeed, most of Jackson’s petition suffers two fatal flaws. First, the petition fails to
argue within the AEDPA framework. Jackson’s habeas briefing copies many of his arguments
from his state-court briefs, sometimes verbatim Because Jackson simply copies state court
briefing, Jackson fails to identify the relevant last-in-time state-court adjudication for his
challenges, let alone explain how the relevant adjudications are (1) contrary to or an
unreasonable application of clearly established federal law or (2) based on an unreasonable
interpretation of the facts.

1

Doc. 64; Doc. 65.
Doc. 71.
3
Doc. 73.
2

Second, Jackson’s habeas grounds consist of conclusory,

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sometimes incoherent arguments, and most arguments fail to muster any persuasive factual
or legal support.
Still, in Ground 30, Petitioner Jackson establishes that the state courts violated
Jackson’s constitutional rights when it denied Jackson the opportunity to present updated
mitigation evidence at his 2012 resentencing.
Therefore, the Court GRANTS Jackson’s habeas corpus petition on Ground 30 and
remands to the state trial court for resentencing.
I.

Background
A. Trial Evidence
For expediency, the Court reproduces the Ohio Supreme Court’ summary of the facts

established at trial. Under 28 U.S.C. § 2254, the Court presumes these facts to be correct. 4
{¶ 5} Donna Roberts lived with Robert Fingerhut, her former husband, in
Howland Township, Trumbull County. Fingerhut, who operated Greyhound
bus terminals in Warren and Youngstown, owned two insurance policies on
his life, both of which named Roberts as sole beneficiary. The total death
benefit of the two policies was $550,000.
{¶ 6} At some point, Jackson began an affair with Roberts. In 2001, the affair
was interrupted by Jackson’s confinement in the Lorain Correctional
Institution. While Jackson was in prison, he and Roberts exchanged numerous
letters and spoke on the telephone. Prison authorities recorded many of their
telephone conversations.
{¶ 7} Passages from the letters and telephone calls indicated that the two
plotted to murder Fingerhut. Jackson repeatedly pledged to kill Fingerhut
upon Jackson’s release from prison. In one letter, Jackson wrote, “Donna I
don’t care what you say but Robert has to go! An[d] I’m not gonna let you stop
me this time.” At Jackson’s request, Roberts purchased a ski mask and a pair
of gloves for Jackson to use during the murder. On the day before Jackson was
released, he and Roberts had one final recorded conversation. Jackson told
her, “I got to do this Donna. I got to.” He also told Roberts his plan: “I just
need to be in that house when he come home. * * * Baby it ain’t gonna
happen in the house.”
4

Davis v. Ayala, 576 U.S. 257, 271 (2015) (citing 28 U.S.C. § 2254 (e)(1)).

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{¶ 8} Jackson was released on December 9, 2001. Roberts drove to Lorain to
pick him up, spent that night with him in a motel, and spent much of the next
two days with him as well. On December 11, 2001, Fingerhut was shot to
death at his home.
{¶ 9} When police responded to the crime scene, Roberts was hysterical and
asked them to do whatever was necessary to catch the killer. She also reported
that Fingerhut’s car had been stolen. During a search of the house, the police
found, in a dresser in the master bedroom, 145 handwritten letters and cards
that Jackson had sent to Roberts. In the trunk of Roberts’s car, the police found
a bag with Jackson’s name on it containing clothes and 139 letters that Roberts
had sent to Jackson. On December 12, Fingerhut’s car was found in
Youngstown.
{¶ 10} On December 21, 2001, Jackson was arrested at a friend’s house in
Youngstown. Jackson had a bandage around his left index finger at the time
of his arrest. The police seized a pair of bloodstained gloves with the left index
finger missing and a pair of tennis shoes from the house. The tread pattern on
the shoes was consistent with a shoe print left in blood near Fingerhut’s body.
{¶ 11} During a subsequent police interview, Jackson said, “I just didn’t mean
to do it, man.” He then related his version of what happened, essentially
claiming that he shot Fingerhut in self-defense. Jackson claimed to have
known Fingerhut for a couple of years. Jackson said that on the evening of
December 11, he approached Fingerhut about getting a job at the Youngstown
bus terminal. They met later that evening, and Jackson sold Fingerhut “some
weed.” He then asked Fingerhut if he could go to Fingerhut’s house to “chill”
before starting work the next day, and Fingerhut gave Jackson a ride to
Fingerhut’s home. According to Jackson, after they went inside the home,
Fingerhut started making racial comments and other disparaging remarks
toward him. Fingerhut then pulled a revolver, Jackson tried to grab it, and
Fingerhut shot Jackson in the finger as Jackson reached for the gun. Jackson
then took the gun from Fingerhut during the “tussle” and shot him twice.
Jackson was unsure where the shots hit Fingerhut but said that Fingerhut was
still breathing when Jackson fled the house and drove away in Fingerhut’s car.
{¶ 12} Fingerhut’s autopsy showed that he had been shot three times,
including a penetrating gunshot wound to the top of the head that was
determined to be fatal. There was also a laceration between Fingerhut’s left
thumb and index finger, and further examination showed that the fatal bullet
hit his hand before entering the top of his head. Gunshot residue on the body
indicated that the distance from the muzzle of the firearm to the head wound
was 24 inches or less.

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{¶ 13} Finally, expert testimony established that the DNA profile of
bloodstains found inside Fingerhut’s car and on its trunk-release lever matched
Jackson’s DNA profile. 5
B. Relevant State-Court Procedural History
In separate trials before the same judge, two juries separately convicted Petitioner
Nathaniel Jackson and Donna Roberts of capital murder and recommended death sentences
for both. 6 The trial judge, Judge Stuard, imposed death in both cases. 7 Petitioner Jackson’s
sentence was affirmed after a direct appeal and a postconviction relief petition. 8
1.

Donna Roberts’s Direct Appeal and Resentencing

Petitioner Jackson’s coconspirator, Donna Roberts, appealed her conviction and
sentence. In Roberts’s direct appeal, the Ohio Supreme Court affirmed Roberts’s conviction. 9
However, the Ohio Supreme Court vacated her death sentence based on the following facts:
{¶ 154} At the sentencing hearing, the court read aloud its sentencing opinion
and imposed the death penalty on Roberts. As the court was doing so, defense
counsel noticed that the prosecutor was looking at a document and appeared
to be reading along with the trial judge. At the end of the court’s reading,
defense counsel raised a “vehement” objection to the prosecution’s apparent
ex parte involvement with the sentencing opinion.
{¶ 155} The trial judge conceded that the prosecution had participated in the
drafting of the opinion without the knowledge of defense counsel. The trial
judge stated that he had given notes to the prosecutor and had instructed the
prosecutor, “[T]his is what I want.” The [trial] court added that the opinion
had to be corrected six or seven times. The trial judge apologized to defense
counsel for not providing them with a copy of the opinion before the
sentencing hearing. 10

State v. Jackson (“Jackson III”), 73 N.E.3d 414, 419–20 (Ohio 2016).
Id. at 420.
7
Id. at 420–21.
8
State v. Jackson (“Jackson I”), 839 N.E.2d 362 (Ohio 2006); State v. Jackson, 111 Ohio St.
5
6

3d 1469 (2006).
9

State v. Roberts, 850 N.E.2d 1168, 1188 (Ohio 2006).
State v. Roberts, 850 N.E.2d at 1188.

10

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In its decision vacating Roberts’s sentence, the Ohio Supreme Court observed that
Ohio law gives the trial court sole responsibility for weighing the evidence and drafting
death-sentence opinions. 11 In Roberts’s case, the Ohio Supreme Court concluded that the
trial court’s delegation of responsibility to the prosecution violated Ohio law. 12 The Ohio
Supreme Court explained that its “conclusion is compelled particularly in light of the trial
court’s ex parte communications about sentencing with the prosecutor in preparing the
sentencing opinion.” 13 Accordingly, the Ohio Supreme Court remanded Roberts’s case to
the trial court for resentencing. 14
At the resentencing, Judge Stuard again sentenced Donna Roberts to death. 15
2.

Jackson’s Resentencing and Second Direct Appeal

Following the Ohio Supreme Court’s decision vacating Roberts’s death penalty, on
August 15, 2006, Petitioner Jackson requested the trial court’s permission to move for a new
sentencing hearing. 16 The trial court did not immediately rule on Jackson’s motion.
On October 5, 2006, Jackson filed an affidavit of disqualification in the Ohio Supreme
Court against the trial judge, Judge Stuard, seeking to prevent Judge Stuard from presiding
over any further trial or postconviction proceedings in his case. 17 Judge Stuard responded to
Jackson’s affidavit of disqualification, contending that he could continue to preside over

State v. Roberts, 850 N.E.2d at 1188.
Id. at 1189.
13
Id.
14
Id. at 1190. Notably, in January 2009, the Ohio Supreme Court publicly reprimanded
Judge Stuard for his ex parte communications with a prosecutor in the Roberts case. Jackson III, 73
11
12

N.E.3d at 422.

State v. Roberts, 998 N.E.2d 1100, 1103 (Ohio 2013).
State v. Jackson (“Jackson II”), 941 N.E.2d 1221, 1223 (Ohio Ct. App. 2010).
17
Jackson III, 73 N.E.3d at 421.
15
16

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Jackson’s case. 18
On November 29, 2006, Ohio Chief Justice Moyer denied Jackson’s disqualification
request. 19 ChiefJustice Moyer concluded that the record “does not compel [Judge Stuard’s]
disqualification for any alleged bias or prejudice.” 20 Justice Moyer explained:
[Judge Stuard] acknowledges that he held the same kind of communications
with the prosecuting attorney’s office in both the Roberts and Jackson capital
cases before sentencing each of them to death, and he denies that any hearing
is needed in his courtroom in the Jackson case to establish that fact. The judge
states that he is prepared to reconsider the evidence and impose a new
sentence in this case just as he has been ordered to do in the related Roberts
case. He contends that his ex parte communications with the prosecuting
attorney’s office were administrative rather than substantive, and he states that
the prosecuting attorney’s office simply typed up his notes after he had
independently weighed the evidence and reached a decision about the proper
sentences for the two defendants. 21
As of January 2008, Judge Stuard still had not ruled on Jackson’s request for leave to
move for a new sentencing hearing. On January 8, 2008, Petitioner Jackson brought a
mandamus action to require Judge Stuard to rule on Petitioner’s motion. 22 On February 15,
2008, nearly 18 months after Jackson moved for leave to file a new a new sentencing hearing,
the trial judge granted Jackson’s motion. 23
On February 29, 2008, Jackson moved “for a new trial and/or sentencing hearing” on
the grounds that the prosecution impermissibly collaborated in the drafting of the sentencing
opinion. 24

In re Disqualification of Stuard, 863 N.E.2d 636, 637 (Ohio 2006).
Id. at 638.
20
Id.
21
Id. at 637.
18
19

22

Doc. 48-8 at 49. On April 9, 2008, the Ohio Supreme Court dismissed Petitioner’s
mandamus action. State ex rel. Jackson v. Stuard, 884 N.E.2d 64 (Ohio 2008).
23
Jackson III, 73 N.E.3d at 422.
24
Jackson III, 73 N.E.3d at 422.

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In mid-May 2008, Petitioner Jackson filed a second disqualification affidavit against
Judge Stuard in the Ohio Supreme Court. 25 Petitioner argued, inter alia, that Jackson was
entitled to the same relief afforded by the Ohio Supreme Court in the Roberts case—namely
a resentencing—and implied that Judge Stuard should be disqualified for his failure to grant
this relief. 26
The Chief Justice denied this second disqualification attempt. 27 The Chief Justice
explained that “an affidavit of disqualification is not a vehicle to contest matters of substantive
or procedural law,” and “the judge’s alleged failure to provide timely rulings on motions is
not a concern that can be addressed through an affidavit of disqualification.” 28
On May 4, 2009, Judge Stuard denied Jackson’s motion for a new trial and sentencing
hearing. 29 Jackson appealed the denial to the state appellate court. 30
On October 15, 2010, the Ohio Eleventh District Court of Appeals granted Jackson’s
appeal and reversed Judge Stuard’s denial of Jackson’s motion for resentencing. 31 The state
appeals court held that the trial judge’s use of the prosecutor to assist in preparing the
sentencing opinion in Jackson’s case was improper, vacated Jackson’s sentence, and
remanded for resentencing. 32 The state appellate court mandated:
In the case at bar, . . . the fact pattern is factually the same as that in Roberts.
The record before us establishes that the same drafting procedures involving
the sentencing entry that occurred in Roberts took place in the instant
matter. . . . Based on the Supreme Court of Ohio’s holding in Roberts,
appellant is entitled to the same relief afforded to his co-defendant. Thus, the
25
26
27

Jackson III, 73 N.E.3d at 422; Doc. 47-3 Page ID 8550–8569.
Jackson III, 73 N.E.3d at 422; Doc. 47-3 Page ID 8562–8567.
Doc. 47-9.

Id. at 203 (internal quotation marks and citation omitted).
29
Jackson III, 73 N.E.3d at 422.
30
Id.
31
Jackson II, 941 N.E.2d at 1224.
32
Id. at 1226
28

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trial judge must personally review and evaluate the appropriateness of the
death penalty, prepare an entirely new sentencing entry as required by
R.C. 2929.03(F), and conduct whatever other proceedings are required by law
and consistent with this opinion. 33
On August 14, 2012, the trial court conducted Jackson’s resentencing hearing. 34 At
the start of the hearing, Jackson requested that Judge Stuard recuse himself. 35 Judge Stuard
denied the request. 36
Important to this habeas action, Petitioner Jackson also sought to offer new evidence
at his resentencing hearing. Judge Stuard denied Jackson’s motion to introduce additional
mitigating evidence, though Judge Stuard allowed Jackson to offer an allocution. 37
Judge Stuard resentenced Jackson to death. 38 In his second sentencing opinion,
released later that afternoon, Judge Stuard made only small changes to the original
sentencing opinion that was drafted by the prosecution:
{¶ 91} The 2002 and 2012 sentencing opinions are very similar. The 2002
sentencing opinion summarized the trial-phase evidence, discussed the
aggravating circumstances and mitigating evidence, and explained why the
trial court concluded that “the aggravating circumstances, outweighed, by
proof beyond a reasonable doubt, the collective mitigating factors.” The 2012
sentencing opinion added three new introductory paragraphs explaining the
reasons for Jackson’s resentencing proceedings. Two other paragraphs were
rewritten to discuss the trial-phase evidence in a different way. Otherwise, the
two opinions are almost identical. 39
Additionally, the second sentencing opinion made no references to Jackson’s allocution. 40
On appeal from the resentencing, the Ohio Supreme Court upheld the second death

Jackson II, 941 N.E.2d at 1226.
Jackson III, 73 N.E.3d at 422.
35
Id.
36
Id.; Doc 47-17 Page ID 13507.
37
Jackson III, 73 N.E.3d at 422.
38
Id.
39
Id. at 433.
40
Id. at 430–31.
33
34

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sentence. 41 The Court will describe the Ohio Supreme Court’s affirmance below.
C. Relevant Federal Habeas Procedural History
On October 31, 2007, Petitioner Nathaniel Jackson filed this habeas corpus action.42
On March 20, 2008, Jackson filed a motion for a stay and abeyance, indicating he had
appealed the trial court’s denial of his postconviction relief petition to the Ohio Eleventh
District Court of Appeals. 43 Jackson indicated he had also moved for a new sentencing
hearing before the trial court. 44
On April 18, 2008, the Court granted a stay pending exhaustion of Jackson’s statecourt remedies. 45 The Court ordered Jackson to notify this Court upon exhaustion. 46
On March 2, 2018, Jackson moved for leave to file an amended habeas petition.
Petitioner Jackson said he had finally exhausted his state-court remedies. 47 That same day,
Petitioner filed his amended petition and a brief in support. 48
On March 15, 2018, the Court lifted the stay and construed Petitioner’s amended
petition as a first-in-time habeas petition. 49 On October 1, 2018, the Warden filed his
return. 50 On March 31, 2019, Petitioner Jackson filed his traverse. 51
On February 24, 2020, Petitioner moved to stay his July 15, 2020 execution. 52 On
March 9, 2020, the Court granted Petitioner’s motion to stay his execution pending the
41
42

Jackson III, 73 N.E.3d at 427.

Doc. 14.
Doc. 28 at 2.
44
Id. at 3.
45
Doc. 33.
43

46
47

Id.

Doc. 63.
Doc. 64 (amended petition); Doc. 65 (brief in support).
49
Doc. 67.
50
Doc. 71.
51
Doc. 73.
52
Doc. 76.
48

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Court’s adjudication of his habeas petition. 53
II.

Legal Standards
A. Substantive Law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 54 governs a

federal court’s review of a state prisoner’s habeas corpus petition. AEDPA limits federal
review to a petitioner’s claims that he is in custody in violation of the Constitution, laws, or
treaties of the United States. 55
AEDPA prohibits federal courts from granting a habeas petition for any claim that the
state court adjudicated on the merits unless the state court’s decision:
“(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 upon
an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 56
Under the “contrary to” clause of § 2254(d)(1), “a federal court must find a violation
of law ‘clearly established’ by holdings of the Supreme Court, as opposed to its dicta, as of
the time of the relevant state court decision.” 57 The state court need not have been aware of
the relevant Supreme Court precedent, so long as neither its reasoning nor its result
contradicts it. 58 In order to have an “unreasonable application of . . . clearly established
Federal law,” the state-court decision must be “objectively unreasonable,” not merely
erroneous or incorrect. 59

53

Doc. 79.
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
55
28 U.S.C. § 2254(a).
56
28 U.S.C. § 2254(d); see also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).
57
Miller, 269 F.3d at 614 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
58
Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam).
59
Williams, 529 U.S. at 405.
54

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Under § 2254(d)(2), a state court’s determination of fact will be unreasonable only if
it represents a “clear factual error.” 60 Therefore, the state court’s determination of facts must
conflict with clear and convincing evidence to the contrary. 61 “This standard requires the
federal courts to give considerable deference to state-court decisions.” 62 State court factual
determinations are presumed to be correct. 63
B. Procedural Barriers to Habeas Review
Before a federal court will review the merits of a petition for a writ of habeas corpus,
a petitioner must overcome several procedural hurdles. Specifically, the petitioner must
surmount the barriers of exhaustion, procedural default, and time limitation.
As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas
corpus. 64
To be properly exhausted, each claim must have been “fairly presented” to the state
courts. 65 Fair presentation requires that the state courts be given the opportunity to see both
the factual and legal basis for each claim. 66 Each claim must be presented to the state courts
as a federal constitutional issue, not merely as an issue arising under state law. 67
Moreover, the claim must be presented to the state courts under the same legal theory

Wiggins v. Smith, 539 U.S. 510, 528–29 (2003).
Id.
62
Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007).
63
Ayala, 576 U.S. 271.
64
28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27 (2004).
65
See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343 F.3d
60
61

780, 797 (6th Cir. 2003).
66
Wagner, 581 F.3d at 414.
67
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).

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in which it is later presented in federal court. 68 It cannot rest on a legal theory which is
separate and distinct from the one previously considered and rejected in state court. 69
The procedural default doctrine serves to bar habeas review of federal claims that a
state court declined to address because the petitioner did not comply with a state procedural
requirement. 70

Although procedural default is sometimes confused with exhaustion,

exhaustion and procedural default are distinct concepts. 71 Failure to exhaust applies where
state remedies are still available at the time of the federal petition. 72 In contrast, where state
court remedies are no longer available, procedural default rather than exhaustion applies. 73
Procedural default may occur in two ways. First, a petitioner procedurally defaults a
claim if he fails to comply with state procedural rules in presenting his claim to the
appropriate state court, and the state court enforced that rule and declined to reach the merits
of a petitioner’s claims. 74 Second, a petitioner may procedurally default a claim by failing to
raise a claim in state court and no longer having a remedy available to him to exhaust his
claims. 75
To overcome procedural default, a petitioner must show cause for the default and
actual prejudice that resulted from the alleged violation of federal law. 76 “Cause” is a

Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).
Wong, 142 F.3d at 322.
70
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
71
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
72
Id. at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982)).
73
Williams, 460 F.3d at 806.
74
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
75
Williams, 460 F.3d at 806 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)); see
also Baston v. Bagley, 282 F. Supp. 2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and
every level [of the state courts] cannot be considered in a federal Habeas Corpus Petition.”); see also
State v. Moreland, 50 Ohio St. 3d 58, 62 (1990) (failure to present a claim to a state court of appeals
68
69

constituted a waiver).
76

Coleman v. Thompson, 501 U.S. 722, 730 (1991).

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legitimate excuse for the default, and “prejudice” is actual harm resulting from the alleged
constitutional violation. 77 If a petitioner fails to show cause for his procedural default, the
Court need not address the issue of prejudice. 78 A petitioner may also demonstrate a
fundamental miscarriage of justice will occur if the claims are not considered; a fundamental
miscarriage of justice results from the conviction of one who is “actually innocent.” 79
Simply stated, a federal court may review only federal claims that were evaluated on
the merits by a state court. Claims that were not so evaluated, either because they were
never presented to the state courts (i.e., exhausted) or because they were not properly
presented to the state courts (i.e., were procedurally defaulted), are generally not cognizable
on federal habeas review.
Furthermore, there is a one-year statute of limitation for filing a § 2254 petition. 80 The
limitation period runs from the date on which the judgment became final by the conclusion
of a petitioner’s direct appeals or the date on which the time for seeking such review expired,
whichever later occurs. 81
III.

Discussion
Petitioner Jackson raises 37 claims in his habeas corpus petition. Due to defective

pleading, Jackson fails to satisfy his burden as to most claims. As to Ground 30, however,
Petitioner establishes that the state courts denied Jackson his constitutional rights under the
Eighth and Fourteenth Amendments to the U.S. Constitution.

Castro v. Harris, No. 1:18-CV-1167, 2018 WL 3829101, at *3 (N.D. Ohio Aug. 13, 2018).
See Smith v. Murray, 477 U.S. 527, 532 (1986).
79
Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S.
77
78

478, 496 (1986)).
80
28 U.S.C. § 2244(d)(1) and (2).
81

Id.

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The analysis below explains why Petitioner succeeds on Ground 30, but fails on all
other Grounds. The Court addresses claims that share the same deficiency together. 82
A. Petitioner Establishes in Ground 30 that the Trial Court Violated His
Constitutional Rights When It Denied Jackson the Opportunity to Present New
Mitigation Evidence at His Resentencing.
Ground 30 argues that, at Petitioner’s 2012 resentencing, the trial court
constitutionally erred by not considering “any new evidence that Jackson had proffered in
favor of a sentence of less than death.” 83 Specifically, Petitioner alleges:
The trial judge three times stated that he would not consider any new or
additional evidence that supported a sentence of less than death.
[8/14/12 Tr. 5, 14]. Twice the judge stated that he had already drafted his
sentencing opinion.
[Tr22, 27].
Almost immediately following the
resentencing hearing, the judge filed his sentencing opinion. That opinion
reflected that the judge had not considered any new evidence that Jackson had
proffered in favor of a sentence of less than death. It also reflected that the
judge had not considered any information from Appellant’s allocution. 84
In response, the Warden argues that there is no clearly established law “as to whether
a defendant on resentencing like Jackson is entitled to a complete ‘do-over’ of mitigation.” 85
As a preliminary matter, the Court observes that Petitioner’s Ground 30 is a mere
rewrite of an argument Jackson made to the Ohio Supreme Court. 86

82

Some Grounds are discussed in more than one grouping. ]
Doc. 65 at 99.
84
Id. at 99–100. Because Petitioner copies this argument from a state-court brief, his provided
citations are unhelpful.
85
Doc. 71 at 48. In the alternative, the Warden implies that, to the extent the trial court erred
by not considering mitigation evidence, this error was cured by the Ohio Supreme Court’s
consideration of the evidence in its independent sentencing under O.R.C. 2929.05. Id. at 47. The
Court rejects this alternative argument. Though the Ohio Supreme Court discussed the evidence that
Jackson wanted to introduce at his resentencing, the Ohio Supreme Court held that such evidence
could not be introduced. Jackson III, 73 N.E.3d at 430. Thus, assuming the trial court erred in
excluding the updated mitigation evidence at the resentencing, it is not fair to say that the Ohio
Supreme Court cured the error by considering Jackson’s desired new evidence—because the new
evidence was never in the record.
86
Compare the text of habeas Ground 30, Doc. 65 Page ID 23496–23499, with the text of
Proposition 5, Jackson’s second direct appeal brief, Doc 48-7 Page ID 15409–15416.
83

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Despite Jackson’s responsibility to identify the last reasoned state court opinion on
Ground 30, Petitioner fails to identify the last relevant state-court ruling, let alone explain
how that relevant ruling is contrary to clearly established federal law. Given this briefing
failure, the Court could find that Petitioner defectively pleaded Ground 30. The Court
declines to do so, however, because it is persuaded that it should overlook the briefing
inadequacies to consider the merits.
Clearly established federal law provides that a capital defendant has a constitutional
right to mitigate his sentence. 87 In Lockett v. Ohio, 88 the U.S. Supreme Court overturned an
Ohio death-penalty statute that permitted a sentencer to consider only a limited range of
mitigating circumstances. 89 The Court held that “the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.” 90
In Eddings v. Oklahoma, 91 the U.S. Supreme Court extended its Lockett rule, holding
that sentencers considering capital punishment “may not give [mitigating evidence] no
weight by excluding such evidence from their consideration.” 92 In other words, “[j]ust as the
State may not by statute preclude the sentencer from considering any mitigating factor,

87

(1972).

Lockett v. Ohio, 438 U.S. 586, 608–09 (1978) (plurality); Furman v. Georgia, 408 U.S. 238

88

438 U.S. 586 (1978).

Id.
90
Id. at 604 (emphasis in original).
89

91
92

455 U.S. 104 (1982).

Eddings, 455 U.S. at 115 (emphasis in original).

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neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating
evidence.” 93
In Skipper v. South Carolina, 94 the U.S. Supreme Court applied its Lockett-Eddings
rule to the prison-behavior context. 95 Skipper involved near identical claims to Jackson’s
Ground 30 claim.
South Carolina convicted Skipper of capital murder and rape. 96 The South Carolina
trial court sentenced Skipper to death.
After conviction and at Skipper’s sentencing hearing, the trial court rejected as
irrelevant Skipper’s offer of evidence “regarding [Skipper’s] good behavior during the other
seven months he spent in jail awaiting trial” and testimony that Skipper “made a good
adjustment” while awaiting trial. 97 The jury sentenced Skipper to death. 98
The U.S. Supreme Court vacated Skipper’s death sentence because Skipper had a
right to place before the sentencing jury all relevant evidence in mitigation of punishment—
including his good prison behavior. 99
In the capital context, a sentencing authority may consider a defendant’s past conduct
as indicative of his probable future behavior, so “evidence that the defendant would not pose
a danger if spared (but incarcerated) must be considered potentially mitigating” and, under

Eddings, may not be excluded from the sentencer’s consideration. 100

93
94

Eddings, 455 U.S. at 113–14.

476 U.S. 1 (1986).
Skipper, 476 U.S. at 3.
96
Id. at 2.
95

97

Id. at 4.

Id.
Id. at 4.
100
Id. at 5.
98
99

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In Davis v. Coyle, the Sixth Circuit interpreted Lockett, Eddings, and Skipper and
applied their holdings to a like case. 101 Indeed, Davis concerned a defendant who had been
given an opportunity to present all relevant mitigating evidence at his initial sentencing
hearing, but was denied an opportunity to present new mitigating evidence at his
resentencing. 102 The Sixth Circuit vacated Davis’s second death sentence and held that:
[T]he decision of the three-judge panel to exclude testimony concerning his
exemplary behavior on death row in the time between the two sentencing
hearings violated his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments, and that the state courts’ decisions affirming the panel’s ruling
were contrary to the those of the Supreme Court of the United States in Lockett,
Eddings, and Skipper. 103
The Davis court concluded that “the holding in Skipper . . . requires that, at
resentencing, a trial court must consider any new evidence that the defendant has developed
since the initial sentencing hearing.” 104
In the instant case, the Ohio Supreme Court somehow rejected the Davis Court’s
reading of Lockett, Eddings, Skipper:
To hold, as [Davis v. Coyle] does, that a new mitigation hearing must be held,
even though no constitutional error infected the original one, would transform
the right to present relevant mitigation into a right to update one’s mitigation.
Such a right has no clear basis in Lockett or its progeny. 105
The Ohio Supreme Court said that it was not bound by Davis or any “rulings on
federal statutory or constitutional law made by a federal court other than the United States
Supreme Court.” 106

Davis v. Coyle, 475 F.3d 761, 774 (6th Cir. 2007).
Id. at 768–70.
103
Id. at 770.
104
Id. at 774 (citing Skipper, 476 U.S. at 8).
105
Jackson III, 73 N.E.3d at 429 (quoting Roberts, 998 N.E.2d at 1108).
106
Id. at 428 (quoting Roberts, 998 N.E.2d at 1108).
101
102

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But the Davis Court correctly interpreted the U.S. Supreme Court’s Lockett, Eddings,

Skipper holdings. The Ohio Supreme Court’s finding guts the Supreme Court’s requirement
that “evidence that the defendant would not pose a danger if spared (but incarcerated) must
be considered potentially mitigating” and “[u]nder Eddings, such evidence may not be
excluded from the sentencer’s consideration.” 107
Rejecting the core holdings of Lockett, Eddings, Skipper, 108 the Ohio Supreme Court
rejected Jackson’s claims that he had a right to present new and updated mitigation evidence
at his resentencing:
Jackson was given a full opportunity to present mitigating evidence during his
initial sentencing hearing. Accordingly, Jackson was not entitled to improve
or expand his mitigating evidence simply because the court of appeals
required the judge to resentence him and prepare a new sentencing opinion. 109

Davis v. Coyle interpreted Supreme Court requirements. This Court is bound by
Davis and the Sixth Circuit’s understanding of the dictates of the Supreme Court’s Lockett,
Eddings, and Skipper precedent. In addition, the Ohio Supreme Court’s interpretation
destroys the Supreme Court’s holding that defendants be given a chance to offer mitigating
evidence.
Therefore, the Court finds that the Ohio Supreme Court’s decision to prevent Jackson
from presenting mitigating evidence at his resenting hearing “was both an unreasonable
application of the Skipper decision and contrary to the holding in that opinion and its

107
108

Skipper, 476 U.S. at 5.

The Ohio Supreme Court concluded that “[n]o binding authority holds that the Eighth
Amendment requires a resentencing judge to accept and consider new mitigation evidence at a
limited resentencing when the defendant had the unrestricted opportunity to present mitigating
evidence during his original mitigation hearing.” Id. at 430.
109

Id.

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antecedent cases.” 110
Consequently, the Court grants Jackson’s habeas corpus petition on Ground 30.
B. Petitioner Fails to Meet His § 2254 Burden as to All Other Grounds Due to His
Conclusory Argumentation and His Failure to Argue Within the AEDPA
Framework.
Petitioner, represented by counsel, has submitted defective briefing. There are two
primary problems.
The first problem is that Petitioner employs conclusory argumentation in nearly every
Ground. Throughout the petition and traverse, Petitioner asserts that a prosecutor’s conduct
or a state court’s decision violated his constitutional rights without explaining how his rights
were violated—or pursuant to what U.S. Supreme Court authority.
For example, Ground 24 states, in its entirety:
A free standing Atkins claim has not yet been raised in the Ohio courts in spite
of substantial credible evidence including IQ scores of 70 and 72 in high
school. Petitioner is entitled to the effective assistance of counsel. Strickland,
Evitts, Martinez. 111
Ground 24, like many of Petitioner’s other Grounds, is not a fully developed argument. It
fails to provide any useful factual or legal citations. It fails to explain how it would overcome
a procedural default. It does not explain the standard for effective assistance of counsel or
how Petitioner’s attorneys failed to meet this standard. This Ground is defective on its face.
The second and arguably more significant problem is that Petitioner does not argue
within the AEDPA framework. As explained above, to secure relief under AEDPA, a state
prisoner’s habeas petition cannot be granted with respect to any claim that was adjudicated
on the merits in state court unless the adjudication (1) resulted in a decision that was contrary

110
111

Davis, 475 F.3d at 773.
Doc. 65 at 66.

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to, or involved an unreasonable application of, clearly established federal law or (2) resulted
in a decision that was based upon an unreasonable determination of the facts. 112 In making
this determination, the Court looks to the last reasoned state-court adjudication of a
petitioner’s claim. 113
In his opening brief, Petitioner fails to argue most Grounds within the appropriate
framework. For many Grounds, he merely copies arguments from his various state-court
briefs. With this approach, he does not identify the relevant last-in-time state-court decision,
let alone explain how the decision is (1) contrary to or an unreasonable application of federal
law or (2) based on an unreasonable determination of facts.
For example, with Ground 11, Petitioner challenges the trial court’s adjudication of
his suppression motion. 114 This Ground fails to acknowledge the Ohio Supreme Court’s
consideration (and rejection) of this challenge, 115 let alone explain how the Ohio Supreme
Court’s decision warrants AEDPA relief.
In the Warden’s answer, the Warden argues that the Court should dismiss Jackson’s
petition on the basis of his defective pleading. 116 The Warden argues that to do otherwise
would require the Court to dive through thousands of pages of records, identify which statecourt decisions Petitioner should have challenged, and conjure arguments for Petitioner on
how the relevant state court-decisions violate clearly established law or are based on
unreasonable interpretations of facts. 117 The Warden says that such an exercise would make

112

28 U.S.C. § 2254(d).

See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Williams v. Mitchell, 792 F.3d 606,
612 (6th Cir. 2015).
114
Doc. 65 at 35.
115
Jackson I, 839 N.E.2d at 371–74.
116
See generally Doc. 71; see id. at 102 (concise recitation of Warden’s argument).
117
E.g., id. at 29–31.
113

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the Court act as the Petitioner’s advocate. 118
In the Petitioner’s traverse, Petitioner attempts to cure his AEDPA pleading deficiency
in two ways. 119
First, Jackson argues that AEDPA is unconstitutional. 120 For this proposition, Jackson
relies on a news article, law review articles, and non-binding judicial opinions criticizing
AEDPA. 121
This argument is unpersuasive. Jackson cites no binding authority for his proposition
that AEDPA is unconstitutional. Moreover, the Court observes that the Sixth Circuit and the
U.S. Supreme Court have considered many AEDPA cases—including challenges to the
statute’s constitutionality—and neither court has found the statute to be unconstitutional. 122
On the contrary, “there is universal agreement among each circuit that AEDPA deference is
constitutional.” 123
Jackson’s second attempt to cure his pleading deficiency also fails.

For many

Grounds, Petitioner’s traverse reproduces his opening brief’s argument and tacks on a
perfunctory statement to the effect of “the state court violated AEDPA”—without actually
identifying the appropriate last state-court decision or explaining how the state-court decision

118
119

E.g., Doc. 71 at 39.

Petitioner also simply states that his pleading is not defective: “Mr. Jackson has met his
pleading requirements as reflected in his [filings]. Any argument by the Warden that the pleading
requirements have not been met is unsupported by the record and law.” Doc. 73 at 19. Ironically,
Petitioner’s assertion that his pleading is not defective is unsupported by the record and law.
120
Id. at 13 (“AEDPA violates the federal Constitution and this case must be decided without
its application.”).
121
Id. at 13–14.
122
See, e.g., Felker v. Turpin, 518 U.S. 651, 664 (1997) (holding that AEDPA did not
unconstitutionally suspend the writ).
123
Betts v. Tibbals, No. 1:11-CV-01107, 2014 WL 4794530, at *3 (N.D. Ohio Sept. 24,
2014).

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violates AEDPA. 124
Jackson’s belated, half-hearted attempt to situate his Grounds within the AEDPA
framework misses the mark.
In short, nearly all of Petitioner’s Grounds are defectively pleaded and are denied on
this basis. Though Petitioner has failed to meet his burden as to all but Ground 30, the Court
provides further analysis as to why his other Grounds fail below.
C. Petitioner Defectively Pleads Grounds 1-5, 11-12, 27, 31-32, and 36 by
Repeating His State-Court Arguments Without Challenging the Last Reasoned
State-Court Opinion.
Petitioner’s Grounds 1-5, 11-12, 27, 31-32, and 36 are mere rewrites of his state-court
appellate arguments. 125
•
•
•
•
•
•

Ground 1 copies Jackson’s direct appeal brief Proposition 2. 126
Ground 2 copies Jackson’s direct appeal brief Proposition 3. 127
Ground 3 copies Jackson’s direct appeal brief Proposition 4. 128
Ground 4 copies Jackson’s direct appeal brief Proposition 5. 129
Ground 5 copies Jackson’s direct appeal brief Proposition 6. 130
Ground 11 copies Jackson’s direct appeal brief Proposition 1. 131

124

For example, In Petitioner’s traverse, he repeat’s his Ground 30 argument and adds the
following statement at the end with no further analysis: “The Ohio courts violated 2254(d)(1) and
(d)(2).” Doc. 73 at 49.
125
This list is not comprehensive. The Court considers other arguments Petitioner copied
from his state-court briefs separately.
126
Compare the text of habeas Ground 1, Doc. 65 Page ID 23410–23416, with the text of
Proposition 2, Jackson’s direct appeal brief, Doc 34-14 Page ID 1333–1342.
127
Compare the text of habeas Ground 2, Doc. 65 Page ID 23416–23421, with the text of
Proposition 3, Jackson’s direct appeal brief, Doc 34-14 Page ID 1343–1357. Both arguments assert
the same 10 sub claims with a concluding assertion of “cumulative error.”
128
Compare the text of habeas Ground 3, Doc. 65 Page ID 23421–23422, with the text of
Proposition 4, Jackson’s direct appeal brief, Doc 34-14 Page ID 1358–1362. Both arguments assert
the same 4 sub claims with a concluding assertion of “cumulative error.”
129
Compare the text of habeas Ground 4, Doc. 65 Page ID 23423, with the text of Proposition
5, Jackson’s direct appeal brief, Doc 34-14 Page ID 1363–1368.
130
Compare the text of habeas Ground 5, Doc. 65 Page ID 23424, with the text of Proposition
6, Jackson’s direct appeal brief, Doc 34-14 Page ID 1369-1373.
131
Compare the text of habeas Ground 11, Doc. 65, Page ID 23430–23431, with the text of
Proposition 1, Jackson’s direct appeal brief, Doc 34-14 Page ID 1328–1332.

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•
•
•
•
•

Ground 12 copies Jackson’s application to reopen the first direct appeal. 132
Ground 27 copies Jackson’s second direct appeal brief Proposition 2. 133
Ground 31 copies Jackson’s second direct appeal brief Proposition 6. 134
Ground 32 copies Jackson’s second direct appeal brief Proposition 7. 135
Ground 36 copies Jackson’s application to reopen the second direct appeal.136

Repeating arguments presented to the state courts is not necessarily a problem.
Indeed, to satisfy the exhaustion requirement explained above, petitioners must present
arguments to the federal courts that the state courts have already had an opportunity to
consider below. 137
The problem is that Petitioner repeats his state-court appellate arguments—sometimes
nearly verbatim—without identifying the ultimate outcome of his state-court challenges. By
repeating his arguments without identifying the last relevant state-court decisions, Petitioner
essentially asks this Court to conduct a de novo review.
“We cannot grant relief under AEDPA by conducting our own independent inquiry
into whether the state court was correct as a de novo matter.” 138 “The question under AEDPA
is not whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher threshold.” 139

In

answering this question, “a federal court must ‘review the last state court decision

132

Compare the text of habeas Ground 12, Doc. 65 Page ID 23431–23439 with the text
the application to reopen the first direct appeal, Doc 34-16 Page ID 1640–1653.
133
Compare the text of habeas Ground 27, Doc. 65 Page ID 23477–23491, with the text
Proposition 2, Jackson’s second direct appeal brief, Doc 48-7 Page ID 15382–15396.
134
Compare the text of habeas Ground 31, Doc. 65 Page ID 23499–23501, with the text
Proposition 6, Jackson’s second direct appeal brief, Doc 48-7 Page ID 15416–15419.
135
Compare the text of habeas Ground 32, Doc. 65 Page ID 23501–23501, with the text
Proposition 7, Jackson’s second direct appeal brief, Doc 48-7 Page ID 15420–15423.
136
Compare the text of habeas Ground 36, Doc. 65 Page ID 23505–23506, with the text
the application to reopen the second direct appeal, Doc 48-7 Page ID 15756–15765.
137
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
138
Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).
139
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

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of
of
of
of
of

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adjudicated on the merits.’” 140
By repeating his state-court arguments and ignoring the last reasoned state-court
opinion, Petitioner has defectively pleaded Grounds 1-5, 11-12, 27, 31-32, and 36. The
Court declines to review Petitioner’s state-court challenges de novo. The Court also declines
to identify the relevant state-court adjudications of Petitioner’s challenges and conjure
arguments on Petitioner’s behalf for why these adjudications violate clearly established
federal law or are based on unreasonable determinations of facts.
Accordingly, Grounds 1-5, 11-12, 27, 31-32, and 36 fail.
D. Ground 6 Improperly Challenges Petitioner’s 2002 Sentencing that the Ohio
Supreme Court Vacated.
In Ground 6, Petitioner Jackson attacks the trial court’s December 9, 2002
sentencing. 141 Jackson argues that he “was deprived of the right to individualized sentencing
and his liberty interest in the statutory sentencing scheme when the trial court considered
and weighed both alternatives under R.C. 2929.04(A)(7) in violation of the Fifth, Eighth and
Fourteenth Amendments of the federal Constitution.” 142
Ground 6 fails because the Ohio Supreme Court vacated the trial court’s December
9, 2002 sentencing. Thus, Petitioner attacks a sentencing entry that is no longer operative. 143
Even if Petitioner had attacked the proper judgment, his Ground would still fail.
Jackson’s Grounds 6 takes issue with the weight the trial judge assigned to various sentencing

140

2012)).

141
142
143

Williams, 792 F.3d at 612 (quoting Gagne v. Booker, 680 F.3d 493, 511–12 (6th Cir.
Doc. 65 at 27.

Id.

A § 2254 petitioner “seeks invalidation . . . of the judgment authorizing [his]
confinement.” Wilkinson v. Dotson, 544 U.S. 74, 83 (2005). Petitioner Jackson’s Ground 6
challenges a judgment that is not authorizing his confinement.

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factors, 144 but there is no clearly established federal law mandating how factors must be
weighed. Instead, clearly established federal law says that state courts imposing the death
penalty “must consider all relevant mitigating evidence and weigh it against the evidence of
aggravating circumstances[, but] [federal courts] do not weigh the evidence for them.” 145
E.

Grounds 7 and 8 Argue that Petitioner’s Death Sentence Is Unconstitutional on
Proportionality Grounds, But Clearly Established Federal Law Imposes No
Proportionality Requirement.

In Ground 7, Petitioner argues that his death sentence was disproportional relative to
other Ohio sentences. 146 With Ground 8, Petitioner argues that Ohio’s proportionalityreview process is flawed because it fails to include death-eligible cases in which a life
sentence has been imposed. 147
Grounds 7 and 8 fail because the U.S. Constitution does not require any assessment
of “proportionality.” 148 Absent a showing that the Ohio capital punishment system operates
in an arbitrary and capricious manner, Jackson “cannot prove a constitutional violation by
demonstrating that other defendants who may be similarly situated did not receive the death
penalty.” 149
To the extent Ground 8 challenges Ohio’s proportionality-review scheme directly,
this argument also fails. The Sixth Circuit has upheld the constitutionality of the Ohio
proportionality-review scheme on numerous occasions. 150 In fact, the Sixth Circuit has

144
145
146

Doc. 65 at 27.

Eddings, 455 U.S. at 117 (first alteration in the original).
Doc. 65 at 29.

Id. at 30.
148
Pulley v. Harris, 465 U.S. 37, 44–45 (1984).
149
McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987); accord Getsy v. Mitchell, 495 F.3d
147

295, 305–06 (6th Cir. 2007).
150

cases).

Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 854 (6th Cir. 2017) (collecting

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explicitly held that in “limiting proportionality review to other cases already decided by the
reviewing court in which the death penalty has been imposed, Ohio has properly acted
within the wide latitude it is allowed.” 151
F.

Ground 9 and 10 Argue that Ohio’s Capital Punishment Scheme Is
Unconstitutional, But Clearly Established Federal Law Does Not Support this
Claim.

In Grounds 9 and 10, Petitioner argues that “Ohio’s capital punishment scheme
allows the death penalty to be imposed in an arbitrary and discriminatory manner in violation
of [Furman v. Georgia, 408 U.S. 238 (1972)] and its progeny.” 152 Specifically, Petitioner
argues that Ohio’s scheme unconstitutionally gives trial courts discretion to dismiss deathpenalty specifications when a defendant pleads guilty but not when a defendant goes to
trial. 153
Grounds 9 and 10 fail because the U.S. Supreme Court has never held
unconstitutional a state capital-punishment scheme where a trial judge has discretion to
dismiss death penalty specifications only for defendants who plead guilty.
In support of Grounds 9 and 10, Petitioner relies on a Supreme Court Justice’s
concurring opinion. This concurring opinion was not endorsed by the other justices, so its
rationale is not clearly established federal law. 154
Petitioner relies on Justice Blackmun’s concurrence in Lockett v. Ohio. 155

As

discussed above, in Lockett, a plurality of the Supreme Court held unconstitutional an Ohio

151
152
153
154

Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001).
Doc. 65 at 31--32.

Id. at 32.

“‘Clearly established law,’ as the Supreme Court has reminded us, ‘includes only the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” Frazier v. Jenkins, 770 F.3d
485, 495 (6th Cir. 2014) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)).
155
438 U.S. at 618 (J. Blackmun, concurring).

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death-penalty statute that did not permit individualized consideration of mitigating factors in
capital cases. 156
In the concurrence, Justice Blackmun said that he only partially joined the plurality
and concurred “for an additional reason not relied upon by the plurality.” 157 This “additional
reason” is the argument that Petitioner now makes—that Ohio’s death penalty scheme is
unconstitutional because the scheme gives trial courts discretion to dismiss death penalty
specifications when a defendant pleads guilty, but the scheme does not give this discretion
when a defendant goes to trial. 158
Because the majority did not embrace Judge Blackman’s concurrence’s reasoning, the
reasoning is not clearly established federal law. 159
G. Grounds 10 and 35 Argue that Ohio’s Capital Punishment Scheme Is
Unconstitutional, But Clearly Established Federal Law Does Not So Hold.
In Grounds 10 and 35, Petitioner argues that the death penalty and Ohio’s capital
punishment scheme violate international law. 160

Specifically, Petitioner says that

“[i]nternational law is part of our law,” and he lists a series of about 10 “international law
documents.” 161
Petitioner fails to elaborate on any of these allegedly binding international law
documents. He does not explain what the documents are, what they do, why they are
binding, or how they apply here. He does not even allege that that the documents prohibit

Lockett, 438 U.S. at 605–06 (plurality).
Id. at 613 (J. Blackmun, concurring).
158
Id. at 618 (J. Blackmun, concurring).
156
157

159

“‘Clearly established law,’ as the Supreme Court has reminded us, ‘includes only the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” Frazier, 770 F.3d at 495
(quoting White, 572 U.S. at 419).
160
Doc. 65 at 32–33, 107.
161
Id. at 32.

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the death penalty or Ohio’s capital punishment scheme. For the sake of argument, the Court
assumes that the documents prohibit the death penalty.
Grounds 10 and 35 fail due to their incomprehensibility and underdevelopment. 162
Additionally, the Grounds fail because the Supreme Court has never held that international
law forbids the death penalty. 163 “There is no indication that international law influences
rulings under the federal constitution regarding the death penalty.” 164
H. Ground 13 Argues that the Trial Court Violated the Constitution When It Failed
to Allow Petitioner to Conduct Postconviction Discovery, But Clearly
Established Law Does Not Provide a Constitutional Right to Postconviction
Discovery.
With Ground 13, Petitioner argues that, in his postconviction proceeding, the trial
court violated the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution
by failing to provide the Petitioner with the opportunity to conduct discovery. 165 Petitioner
fails to identify any case, let alone a Supreme Court case, that says that the Constitution gives
a right to postconviction discovery.
Ground 13 fails because there is no federal constitutional right to postconviction
discovery. 166

Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“[I]t is the habeas applicant’s burden to
show that the state court applied Strickland to the facts of his case in an objectively unreasonable
162

manner.”).
163

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer

to the question presented, let alone one in Van Patten’s favor, ‘it cannot be said that the state court
unreasonabl[y] appli[ed] clearly established Federal law.’” [Carey v.] Musladin, 549 U.S. [70] at 77
[(2006)] (quoting 28 U.S.C. § 2254(d)(1)). Under the explicit terms of § 2254(d)(1), therefore, relief
is unauthorized.”).
164
Brinkley v. Houk, 866 F. Supp. 2d 747, 840 (N.D. Ohio 2011), amended in part, No. 4:06
CV 0110, 2012 WL 1537661 (N.D. Ohio Apr. 30, 2012), and aff’d, 831 F.3d 356 (6th Cir. 2016).
165
Doc. 65 at 42–43.
166
Pennsylvania v. Ritchie, 480 U.S. 39, 59–60 (1987) (citing Weatherford v. Bursey, 429
U.S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case, and
Brady did not create one”)).

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I.

Grounds 14, 15, 17, and 18 Are Procedurally Defaulted.

In Grounds 14, 15, 17, and 18, Petitioner challenges alleged errors stemming from
his postconviction relief proceeding. With Ground 14, Petitioner says he was denied
adequate funding for experts. 167 With Ground 15, Petitioner says the state failed to disclose
exculpatory evidence. 168

With Ground 17, Petitioner says the trial court improperly

employed res judicata. 169 With Ground 18, Petitioner rehashes a series of his postconviction
arguments. 170
In his answer, the Warden argues that Petitioner procedurally defaulted Grounds 14,
15, 17, and 18 because the state courts denied the corresponding postconviction claims for
untimely presentation. 171
In his traverse, Petitioner fails to rebut the Government’s procedural default argument.
Petitioner says only the following: “The Petitioner maintains that all issues have been
properly preserved for this Court’s review.” 172
The Warden is correct; Grounds 14, 15, 17, and 18 are procedurally defaulted.
Grounds 14, 15, 17, and 18 stem from Petitioner’s second postconviction relief petition. 173
Petitioner filed this petition after his 2012 resentencing. 174 The petition raised 19 grounds—
18 of which attacked Petitioner’s 2002 conviction, rather than his limited 2012
resentencing. 175

167

Doc. 65 at 44–45.

Id. at 45–46.
169
Id. at 48–51.
170
Id. at 51–62.
171
Id. at 67.
168

172
173
174
175

Doc. 73 at 19.
See Doc. 48-8 at 32–64.

Id.
Id.

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A state trial court rejected these 18 claims as untimely:
Defendant/Petitioner Jackson filed his post-conviction relief petition on June
28, 2013. First, the Court finds Jackson’s petition is untimely pursuant to
R.C. 2953.21(A)(2). Further, the Court finds Jackson’s petition does not fall
within the exception to the one-hundred-eighty day rule as set forth in
R.C. 2953.23(A)(1)(a)&(b) & (A)(2). Despite the re-sentencing in this matter
which took place on August 14, 2012, the time period does not toll again for
post-conviction relief. “Ohio case law indicates that the time limit for a
postconviction relief petition runs from the original appeal of the conviction,
and that a resentencing hearing does not restart the clock for postconviction
relief purposes as to any claims attacking the underlying conviction.”
State v. Piesciuk, 12th Dist. No. CA2009-10-251, 2010-0hio-3136, ¶ 12
(internal citations omitted). 176
A state appeals court upheld the trial court’s denial, and the Ohio Supreme Court declined
to accept jurisdiction. 177
In view of this state-court rejection on timeliness grounds, Petitioner procedurally
defaulted Grounds 14, 15, 17, and 18 when (1) he failed to comply with to
R.C. 2953.21(A)(2), and (2) the state court enforced that rule and declined to reach the merits
of Petitioner’s claims. 178
The Petitioner does not demonstrate cause or prejudice for the procedural default of
these grounds for relief and does not present a viable “actual innocence” claim. 179 Grounds
14, 15, 17, and 18 are procedurally defaulted.

176

Doc. 48-15 at 51.
Id. at 126.
178
Maupin, 785 F.2d at 138.
179
Lundgren, 440 F.3d at 764 (citing Murray, 477 U.S. at 496).
177

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J.

Ground 16 Argues that a Trial Judge Erred by Interjecting Opinions and Personal
Knowledge into Factual Findings, But Petitioner Waived this Ground Because It
Is Conclusory and Undeveloped.

In Ground 16, Petitioner argues that, in his postconviction proceeding, a trial judge
violated Petitioner’s constitutional rights when the judge “relied upon his personal
knowledge to make findings of facts.” 180
Petitioner describes several instances in which the trial judge allegedly improperly
injected his opinion and personal knowledge into the court’s factual findings. For example,
Petitioner says that, for one postconviction claim, Petitioner argued that his counsel had
failed to adequately prepare for interviewing mitigation witnesses, such as family and
friends. 181 In rejecting this claim, the judge allegedly opined that preparation for such
interviews should not take too long. 182 Petitioner says that this opinion interjection, and
others like it, were inappropriate.
Ground 16 fails. Petitioner fails to specifically identify the postconviction decision
that he challenges. Despite the thousands of pages in the record, Petitioner provides no
useful record citations for his factual allegations. 183 But even if he had provided such a
citation, Petitioner fails to identify any case, let alone a Supreme Court case, that says that
the Constitution prohibits the trial judge’s alleged interjections.

180

Doc. 65 at 46.

Id. at 47.
182
Id.
181

183

Petitioner provides two record citation: “(p.25, findings of facts, conclusions of law)” and
“(P. 26).” Id. But Petitioner fails to identify where these pincites come from or where they are on
the Court’s docket.

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“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” 184
K. Grounds 19, 20, 22, 25, 26, 28, and 32 Generally Argue that the Trial Judge
Was Unconstitutionally Biased—Primarily Due to His Reliance on a Prosecutor
to Draft the Death Sentence Opinion—But the Grounds are Defectively Pleaded.
Grounds 19, 20, 22, 25, 26, 28, and 32 generally argue that Jackson’s trial judge,
Judge Stuard, was unconstitutionally biased. The Grounds rely on several bases but focus
on the trial judge’s reliance on a prosecutor to draft the death-sentence opinion.
Grounds 19, 20, 22, 25, 26, and 28 share the same deficiencies as the rest of Jackson’s
petition. Namely, the Grounds uniformly (1) fail to challenge the appropriate state-court
decision, (2) consist of conclusory, sometimes incoherent argument, and (3) rely on
arguments copied, sometimes verbatim, from state-court briefs. As described in subsection
B, these Grounds fail due to their defective pleading.
But even if Petitioner had stated his argument properly, his Grounds would fail.
Properly asserted, Petitioner’s Grounds 19, 20, 22, 25, 26, 28 and 32 would argue that the
Ohio Supreme Court’s affirmance of the trial court’s 2012 resentencing (1) was contrary to,
or an unreasonable application of, clearly established federal law and (2) was based upon an
unreasonable determination of the facts. The Court will discuss why each argument fails in
turn.
1.

In Affirming of the Trial Court’s 2012 Resentencing, the Ohio Supreme
Court’s Rejection of Petitioner’s Judicial Bias Arguments Did Not Violate
Clearly Established Federal Law.

Petitioner’s above-mentioned Grounds implicate two reasons why the Ohio Supreme

184

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (citation omitted).

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Court’s affirmance of the trial court’s 2012 resentencing might have violated clearly
established federal law. First, the Grounds suggest that Jackson’s 2012 resentencing was
tainted by Judge Stuard’s ex parte contacts with the prosecutor. Second, the Grounds suggest
that Judge Stuard was unconstitutionally biased. Neither argument is persuasive.
a)

The U.S. Supreme Court Has Not Held that Ex Parte JudgeProsecutor Communications Violate a Defendant’s Constitutional
Rights.

As a preliminary matter, the Court observes that Petitioner has waived the ex parte
contacts argument by failing to raise this argument in his final Ohio Supreme Court appeal. 185
But even if the argument were properly before this Court, the Ground would fail
because there is no clearly established federal law providing that judge-prosecutor ex parte
communications always violate a defendant’s federal constitutional rights.

Petitioner

identifies no such case, and the Court knows of none.
The only U.S. Supreme Court case that involves ex parte judicial communications—

Rushen v. Spain 186—concerned ex parte communications between a judge and a juror. 187
There, the Supreme Court held that an ex parte judicial communication with a juror was not
structural error requiring reversal. 188 Instead, the Court held that such ex parte contact was
subject to harmless error analysis. 189
Relevant to the instant case, the Rushen Court noted that the Government had

185

Williams, 460 F.3d at 806 (citing O’Sullivan, 526 U.S. at 848); see Baston, 282 F. Supp.

2d at 661 (“Issues not presented at each and every level [of the state courts] cannot be considered in
a federal Habeas Corpus Petition.”); see also Moreland, 50 Ohio St. 3d at 62 (failure to present a
claim to a state court of appeals constituted a waiver).
186
464 U.S. 114 (1983) (per curiam).
187
Id. at 116.
188
Id. at 117–19.
189

Id.

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“apparently conceded, in both federal and state court, that the undisclosed ex parte
communications established federal constitutional error.” 190

The Court thus said they

“assume[d], without deciding, that respondent’s constitutional rights to presence and counsel
were implicated” in such a case. 191
In light of this Supreme Court language, the Supreme Court has not said whether
juror-judge ex parte communications—or any other ex parte communications—violate a
defendant’s constitutional rights. Where Supreme Court cases “give no clear answer to the
question presented, let alone one in [the defendant’s] favor, ‘it cannot be said that the state
court unreasonabl[y] appli[ed] clearly established Federal law.’” 192 Accordingly, the ex parte
contact argument fails.
b)

Petitioner’s Judicial Bias Claim Is Based on Factual Circumstances
that the U.S. Supreme Court Has NotRecognized as Posing an
Unconstitutionally High Risk of Bias.

Petitioner argues that Judge Stuard was unconstitutionally biased. Petitioner raises
various factual bases underlying his judicial bias claim: (1) Judge Stuard relied upon the
prosecution to draft the initial sentencing opinion, and the 2012 revised sentencing opinion
remained almost identical to the initial opinion; (2) Judge Stuard delayed ruling on several
of Petitioner’s motions; 193 (3) Judge Stuard denied Jackson’s motion for a new sentencing
hearing after stating in an affidavit that he was prepared to grant the motion; and (4) the 2012
resentencing opinion did not discuss Petitioner’s 2012 allocution. 194

Rushen, 464 U.S. at 118 n.2.
Id.
192
Van Patten, 552 U.S. at 126 (quoting Musladin, 549 U.S. at 77).
190
191

193

To the extent Petitioner refers to Judge Stuard’s delay in ruling on Jackson’s motion for a
new trial until after a mandamus action was filed against him, this claim is procedurally defaulted.
The Ohio Supreme Court rejected this argument as res judicata. Jackson III, 73 N.E.3d at 423.
194
Doc. 65 at 96; Doc. 73 at 40.

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The U.S. Supreme Court has not clearly established that any of Petitioner’s factual
bases pose an unconstitutionally high risk of judicial bias. The clearly established federal
law of judicial bias is:
“Due process requires a fair trial before a judge without actual bias against the
defendant or an interest in the outcome of his particular case.” 195 Because of the difficulty
in determining “whether a judge harbors an actual, subjective bias,” the courts look to
“whether, as an objective matter, the average judge in [that judge’s] position is likely to be
neutral, or whether there is an unconstitutional potential for bias.” 196
The Supreme Court has recognized constitutionally impermissible, objective indicia
of bias in limited circumstances. The Sixth Circuit has construed the Supreme Court judicial
bias case law narrowly and has held that the Supreme Court recognizes unconstitutional
potential for bias in only four types of circumstances 197:
(1) “when the judge has a financial interest in the outcome of the case”; 198
(2) “when the judge is trying a defendant for certain criminal contempts”; 199
(3) “when a person with a personal stake in a particular case had a significant
and disproportionate influence in placing the judge on the case by raising
funds or directing the judge’s election campaign when the case was pending
or imminent”; 200 and
(4) “where a judge has had an earlier significant, personal involvement as a
prosecutor in a critical decision in the defendant’s case.” 201
The Sixth Circuit characterizes these four situations as “extreme” and instructs that the

U.S. v. Armstrong, 517 U.S. 456, 468 (1996) (emphasis added); see also In re Murchison,
349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process. Fairness
requires an absence of actual bias in the trial of cases.”) (emphasis added)).
196
Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (emphasis added) (internal
quotations omitted); see also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883 (2009).
197
Johnson, 946 F.3d at 918 n.3.
198
Caperton, 556 U.S.at 890 (Roberts, C.J., dissenting).
199
Id. (Roberts, C.J., dissenting).
200
Id. at 884 (majority opinion).
201
Williams, 136 S. Ct. at 1910.
195

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judicial bias precedents must be framed “narrowly.” 202
Petitioner’s allegations, though troubling, do not fall within the four recognized
categories of constitutionally impermissible, objective indicia of bias. Therefore, the Court
cannot conclude that the Ohio Supreme Court’s rejection of Petitioner’s judicial bias claims
was contrary to or an unreasonable application of clearly established federal law.
2.

The Ohio Supreme Court’s Affirmance of Jackson’s 2012 Resentencing
Was Not Based upon an Unreasonable Determination of the Facts in
Light of the Evidence Presented in the State-Court Proceeding.

Having established the Ohio Supreme Court’s rejection of Petitioner’s judicial bias
claims was not contrary to or an unreasonable application of clearly established federal law,
the Court now turns to the second AEDPA argument that Petitioner could have made.
Properly asserted, Petitioner’s Grounds 19, 20, 22, 25, 26, 28, and 32 would argue that the
Ohio Supreme Court’s finding that Judge Stuard’s continued participation in the 2012
resentencing presented an unconstitutional risk of bias given the evidence presented.
The Ohio Supreme Court affirmance found that Jackson had not shown that Judge
Stuard harbored an actual bias against him during the 2012 resentencing: “Despite his bias
claims, Jackson fails to show that Judge Stuard displayed ‘a hostile feeling or spirit of ill will’
toward him.” 203 The Ohio Supreme Court rejected each of Jackson’s actual bias arguments,
stating that (1) “Judge Stuard’s failure to provide the relief that Jackson believes was warranted
does not establish actual bias;” 204 (2) “Judge Stuard’s rulings in Jackson’s case [such as his
rejection of new mitigation evidence at the resentencing hearing] were not inconsistent with

202
203

Williams, 136 S. Ct. at 1910.
Jackson III, 73 N.E.3d at 424 (quoting State ex rel. Pratt v. Weygandt, 132 N.E.2d 191, 192

(Ohio 1956)).
204

Id.

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the court of appeals’ directive and did not display bias;” 205 and (3) Judge Stuard’s failure to
consider Jackson’s allocution “does not prove that Judge Stuard harbored a hostile feeling or
a spirit of ill will against Jackson or his attorneys during the proceedings.” 206
Whether an individual harbors actual bias is a question of fact. 207 State-court findings
of fact are “presumed to be correct.” 208 The petitioner can rebut that presumption, but only
upon a showing of error by clear and convincing evidence. 209 And a habeas court will not
overturn a state-court adjudication unless it “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.” 210
“[A] state-court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.” 211
Here, Jackson, who merely repeats his state-court arguments, offers no clear and
convincing evidence why the state-court finding that Judge Stuard was not actually biased is
incorrect.

Without such argument or evidence, the Court cannot now find that Ohio

Supreme Court’s rejection of the bias argument related to the trial court’s 2012 resentencing
was based upon an unreasonable determination of the facts in light of the evidence presented
in the state-court proceeding.
In sum, even if properly asserted, Petitioner Jackson’s judicial bias Grounds fail on

Jackson III, 73 N.E.3d at 425.
Id.
207
Patton v. Yount, 467 U.S. 1025, 1036-38, 1037 n. 12 (1984) (trial court’s determination
of juror bias during voir dire is question of fact); U.S. v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000)
205
206

(stating that actual bias is a question of fact).
208
28 U.S.C. § 2254(e)(1).
209
210
211

Id.

28 U.S.C. § 2254(d)(2).
Wood v. Allen, 558 U.S. 290, 301 (2010).

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the merits.
L.

Ground 21 and 31 Argue that the Trial Court Violated the Constitution When It
Failed to Refer to His Allocution in the 2012 Sentencing Opinion, But Clearly
Established Federal Law Does Not Provide a Constitutional Right to Allocution.

With Ground 21 and 31, Petitioner argues that, in his 2012 resentencing, the “trial
court denied the [P]etitioner a meaningful opportunity for allocution before imposing a death
sentence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the federal
Constitution.” 212 Petitioner says that he was able to allocute, but the 2012 opinion did not
reference his allocution. 213
Ground 21 and 31 fail because the Supreme Court has not recognized a constitutional
right to allocution, 214 let alone a right to have the allocution referenced in sentencing
opinions.
M. Ground 23 Argues that Jackson’s Execution Would Violate Atkins v. Virginia,
Because Jackson Has Had Low IQ Scores, But Jackson’s Argument Is
Underdeveloped and He Failed to Exhaust this Claim.
With Ground 23, Petitioner argues he is not eligible for the death penalty under Atkins

v. Virginia 215 because of his low IQ. 216
In Atkins, the Supreme Court held that executions of intellectually disabled criminals
were “cruel and unusual punishments” prohibited by Eighth Amendment. 217 The Supreme
Court left ”to the [s]tate[s] the task of developing appropriate ways to enforce the

212

Doc. 65 at 65, 102–04.

See id.
214
United States v. Lawrence, 735 F.3d 385, 407 (6th Cir. 2013).
213

215

536 U.S. 304 (2002).
Doc. 65 at 65–66.
217
Atkins, 536 U.S. at 320-21. This Court uses the term “intellectual disability” in lieu of
“mental retardation.”
216

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constitutional restriction upon [their] execution of sentences.” 218
In State v. Ford, the Ohio Supreme Court mandated that trial courts consider the
following factors in determining death-penalty eligibility:
(1) intellectual-functioning deficits (indicated by an IQ score approximately
two standard deviations below the mean—i.e., a score of roughly 70 or lower
when adjusted for the standard error of measurement), (2) significant adaptive
deficits in any of the three adaptive-skill sets (conceptual, social, and practical),
and (3) the onset of these deficits while the defendant was a minor. 219
In Ground 23, Jackson says, without any citation, that he had IQ test scores of 70 and
72 in high school and has the mind of an 11-year-old child. 220 He says that he therefore
cannot be executed. 221 Jackson acknowledges that he did not raise this claim below. 222
Ground 23 fails for at least two reasons. First, Jackson failed to exhaust his state-court
remedies by not raising his Atkins claim until federal habeas review. 223 Second, Jackson’s
argument is underdeveloped—as evidenced by his failure to offer any citation or support—
and he therefore fails to meet his burden. 224
Moreover, the Court observes that Jackson’s own defense psychologist determined
his IQ was 84. 225

Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17 (1986))
(second and third alterations in original).
219
State v. Ford, 140 N.E.3d 616, 655 (2019).
220
Doc. 65 at 65–66.
221
Id. at 66.
218

Id.
Williams, 460 F.3d at 806.
224
Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden to show that the state court
applied Strickland to the facts of his case in an objectively unreasonable manner.”); McPherson, 125
222
223

F.3d at 995–96 (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” (citation omitted)).
225
Jackson III, 73 N.E.3d at 429 (“Jackson asserts that during his mitigation hearing,
information was presented indicating that he was a good student, had a positive upbringing, and had
average intellectual ability with an IQ score of 84.”); see also Doc. 47-16 Page ID 13007–13013
(defense psychologist Dr. McPherson report).

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N. Ground 24 Argues that Petitioner’s Trial, Appellate, and Postconviction Counsel
Were Ineffective for Failing to Raise the Atkins claim in State Court, But
Petitioner Waived this Ground Because It Is Conclusory and Undeveloped.
Ground 24 states, in its entirety, the following: “A free standing Atkins claim has not
yet been raised in the Ohio courts in spite of substantial credible evidence including IQ
scores of 70 and 72 in high school. Petitioner is entitled to the effective assistance of counsel.

Strickland, Evitts, Martinez.” 226
Ground 24 fails because it is not a fully developed argument. 227
O. Ground 29 Argues that Petitioner’s Constitutional Rights Were Violated When
He Had Only One Attorney at His 2012 Resentencing Hearing, But Clearly
Established Federal Law Does Not Mandate Representation by Two Attorneys at
Such a Hearing.
Ground 29 says that an Ohio statue provides that any defendant who “faces the death
penalty” must be appointed two attorneys. 228 Petitioner says that, at his 2012 resentencing,
only one attorney represented him. 229 He argues that the trial court therefore violated the
Ohio statute. 230 Jackson argues, without elaboration, that this circumstance also violated his
federal constitutional rights. 231
Ground 29 fails because ”federal habeas corpus relief does not lie for errors of state
law.” 232

226

“[I]t is only noncompliance with federal law that renders a State’s criminal

Doc. 65 at 66.

Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden to show that the state court
applied Strickland to the facts of his case in an objectively unreasonable manner.”); McPherson, 125
227

F.3d at 995–96 (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” (citation omitted)).
228
Doc. 65 at 98.
229
Id. at 97–99.

Id.
Id. at 99.
232
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); accord Cooey v. Coyle, 289 F.3d 882, 901–02
230
231

(6th Cir. 2002) (holding that claim that “Ohio court did not apply Ohio law correctly . . . is not
justiciable in federal habeas proceedings”).

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judgments susceptible to collateral attack in the federal courts.” 233
Moreover, Ground 29 fails because the U.S. Supreme Court has never held that the
U.S. Constitution mandates that defendants have two attorneys at a sentencing hearing.
P.

Ground 33 Is a Mere Rewrite of Petitioner’s State-Court Brief and Is Not
Cognizable on Federal Habeas Review.

In Ground 33, Petitioner copies verbatim two paragraphs from a multi-page argument
Jackson presented to the Ohio Supreme Court. 234 In the original argument, Jackson asked
the Ohio Supreme Court to merge certain charges and specifications and then “remand” the
case “to permit the prosecution to elect as to which specification and underlying felony it
wants to go forward with.” 235 Reproduced here, out of context, Jackson’s two paragraphs
make no sense. The Court reviewing this federal habeas petition is not sitting as a supervisory
court over a lower state court and cannot afford the relief Petitioner requests.
Ground 33 fails because it is not a cognizable federal habeas claim. 236
Q. Grounds 34 and 37 Argue that Cumulative Errors in Jackson’s Prosecution
Require His Conviction to Be Reversed and His Death Penalty to Be Vacated,
But Clearly Established Federal Law Does Not Recognize a Cumulative Error
Claim.
In Grounds 34 and 37, Petitioner argues that the cumulative effect of the errors at his
trial and during his appeals has deprived him of his constitutional rights. 237 Petitioner also
argues that, due to the errors’ cumulative effect, his “death sentence is based on a
constitutionally flawed process.” 238

233
234
235

Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam).
Cf. Doc. 65 at 105–06 with Doc. 48-7 Page ID 15423–15429.
Doc. 48-7 Page ID 15429.

Visciotti, 537 U.S. at 25 (“[I]t is the habeas applicant’s burden to show that the state court
applied Strickland to the facts of his case in an objectively unreasonable manner.”).
236

237
238

Doc. 65 at 106, 109, 121–22.

Id. at 106.

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Grounds 34 and 37 fail. “[T]he law of [the Sixth] Circuit is that cumulative error claims
are not cognizable on habeas because the Supreme Court has not spoken on this issue.” 239
IV.

Conclusion
The Court GRANTS Jackson’s petition. The Court ISSUES a writ of habeas corpus

under 28 U.S.C. §2254.

IT IS SO ORDERED.
Dated: February 23, 2021

239

s/

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Williams, 460 F.3d at 816 (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).

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