Pope v. Warden, Pickaway Correctional Institution

Filing 13

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Trenton Edward Pope: that petition be DENIED; certificate of appealability SHOULD NOT ISSUE and IFP DENIED. Objections to R&R due by 12/17/2012. Signed by Magistrate Judge Stephanie K. Bowman on 11/29/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TRENTON EDWARD POPE,
Petitioner,

Case No. 1:11-cv-866
Dlott, J.
Bowman, M.J.

vs
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, who is currently incarcerated at the Pickaway Correctional Institution in
Orient, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The case was transferred to this Court from the Eastern Division of this federal judicial district
on December 12, 2011. This matter is now before the Court on the petition and respondent’s
return of writ with exhibits. (Docs. 2, 9). 1
I. PROCEDURAL HISTORY
1998-1999: State Trial Proceedings and Direct Appeal
On August 13, 1998, the Hamilton County, Ohio, grand jury returned a fifteen-count
indictment against petitioner and five co-defendants, including petitioner’s brother, Timothy
Pope, based on their involvement in an armed robbery of a Fifth Third Bank on August 4, 1998.
(Doc. 9, Ex. 1). The defendants were all charged with two counts of kidnapping in violation of
1

It is noted that petitioner filed a “traverse” brief in reply to respondent’s return of writ on November 23,
2012. (See Doc. 12). Although petitioner was granted a 20-day extension in which to file his “traverse” brief (see
Doc. 11), the brief was not filed until after the deadline had passed and the undersigned had drafted the Report and
Recommendation in this matter. Because the brief was not filed within the allotted time frame, it will not be
specifically addressed in this Report and Recommendation. The Court has reviewed petitioner’s additional
pleading, but is not persuaded by any of petitioner’s arguments to change its recommendations regarding his claims
for relief. To the extent that petitioner disagrees with any of the undersigned’s recommendations, petitioner will
have the opportunity to present his arguments (including those asserted for the first time in his “traverse” brief) by
way of objections to this Report and Recommendation.

Ohio Rev. Code § 2905.01(A)(2) with firearm specifications (Counts 1 and 2); four counts of
aggravated robbery in violation of Ohio Rev. Code § 2911.01(A)(1) with firearm specifications
(Counts 3, 5, 7, 9); and four counts of robbery in violation of Ohio Rev. Code § 2911.02(A)(2)
(Counts 4, 6, 8, 10). (Id.). Petitioner was also individually charged with having weapons while
under disability in violation of Ohio Rev. Code § 2923.13(A)(2) with firearm specifications
(Count 11). (Id.). In the remaining counts, co-defendant Sarah Schmidt was charged with
escape in violation of Ohio Rev. Code § 2921.34(A) with firearm specifications (Count 12); codefendant Christina Blanton was charged with obstructing justice in violation of Ohio Rev. Code
§ 2921.32(A)(1)(2) with firearm specification (Count 14); and both Schmidt and Blanton were
charged with kidnapping a minor under 13 years of age in violation of Ohio Rev. Code §
2905.01(B)(1)(2) with firearm specifications (Count 13), as well as with receiving stolen
property in violation of Ohio Rev. Code § 2913.51(A) with firearm specification (Count 15).
(Id.).
On October 26, 1998, petitioner entered a guilty plea to the kidnapping counts charged
against him (Counts 1 and 2), two of the aggravated robbery counts (Counts 5 and 7), and one of
the firearm specifications attached to those charges. (Doc. 9, Ex. 3). In exchange for his guilty
plea, the remaining counts and specifications charged against petitioner were dismissed. (See id.
& Ex. 4). At the plea hearing, the prosecutor provided the following statement of facts regarding
the circumstances giving rise to the criminal charges:
[T]his offense occurred in the early morning hours of August 4, 1998, within
Hamilton County, Ohio, at the Fifth Third Bank location, which is in the 1200
block of Harrison Avenue. . . .

2

On that date, time, and location, this defendant, along with the other codefendants named in the indictment, other than Christina Blanton, went to that
bank for the purpose of robbing them and they – as you will recall from the prior
statements I made with the prior defendants, there had been a plan to rob the bank
that had been ongoing for approximately a month.
One of the defendants – at least one of the defendants, Clifford Jones, had gone to
the bank on a number of occasions prior to the date they robbed it and scoped it
out. He was aware of when the employees came to work, how they got into the
bank.
On the date in question, these defendants went there in an automobile that was
operated by Sarah Schmidt. They were armed with sawed-off shotguns, although
Trenton Pope – I do not believe the evidence would show he actually had a
sawed-off shotgun on his person. The other three males were armed with sawedoff shotguns.
His role in this robbery was to be the lookout. Clifford Jones and Timothy Pope,
his brother, went inside of the bank. They held two bank employees at gunpoint
and demanded cash. He was stationed at the front door.
Mr. Trenton Pope was the lookout holding the door open for them – or at the door
they entered, I should say, and at some point, they, the inside robbers, began to
come out of the bank with money. A duffel bag containing currency that was
taken was handed to this defendant along with one of the weapons. He put those
items in the car that was operated by Ms. Schmidt.
As you will recall from the prior statements I made, during the course of the
robberies some people that were working in other locations near the bank had
noticed what was going on. The police had been called in.
This defendant ultimately got – drove away with Ms. Schmidt in her automobile.
The car they were in was stopped a short time later by Sergeant Bell from District
Five, I believe.
Sergeant Bell approached the car on Ms. Schmidt’s side. He noticed a sawed-off
shotgun in the car. There was a one-and-a-half-year-old child in the back seat in a
car seat. Mr. Pope was seated in the front passenger’s seat.
At some point the police officer pulled Ms. Schmidt out of the car. He was in the
process of arresting her, putting handcuffs on her. Mr. Pope got out and began to
run. Officer Bell . . . gave chase to him. He lost him, but this defendant was
3

located a short time later. Officer Bell had given a complete description of him,
and he was located a short time later and was arrested.
Initially, he tried to minimize his involvement in this offense. He initially told the
police that he knew about the robbery but wasn’t involved and he went there
because he knew it was going to go on and he was just going to watch and see
what happened. But then he ultimately confessed that he was involved and that
he knew what was going on and he was acting in a lookout capacity.
(Id., October 26, 1998 Hearing Tr. 7-10).
Neither petitioner nor his trial counsel disputed the prosecutor’s account pertaining to
petitioner’s involvement in the bank robbery, except that defense counsel did point out that
petitioner had made a statement that he was only “minimally involved” in the scheme. (See id.,
Tr. 10-11). Specifically, counsel stated that although petitioner’s brother had previously told
petitioner “about th[e] plan,” petitioner “didn’t really think it was going to happen” and only
went to co-defendant Eric Chaffer’s house “for the purposed of getting a tattoo.” (Id.).
However, defense counsel also went on to state that petitioner “does recognize his involvement
at the time that this happened.” (Id., Tr. 11).
On November 23, 1998, the trial court entered felony sentencing findings and issued a
judgment entry sentencing petitioner to an aggregate prison term of thirty-one (31) years. (Doc.
9, Exs. 5-6). Specifically, petitioner was sentenced to concurrent prison terms of eight (8) years
for the kidnapping offenses; consecutive prison terms of ten (10) years for each aggravated
robbery offense, to be served consecutively to the concurrent terms of imprisonment imposed for
the kidnapping offenses; and concurrent prison terms of three (3) years for the firearm
specification attached to each count, which was to be served consecutively to the sentences
imposed for the underlying offenses. (Id., Ex. 6).
4

With the assistance of new counsel for appeal purposes, petitioner filed a timely appeal to
the Ohio Court of Appeals, First Appellate District. (Doc. 9, Ex. 7). In the appellate brief filed
by counsel on petitioner’s behalf, petitioner raised the following assignments of error:
1. The trial court erred to the prejudice of Defendant-Appellant by imposing the
maximum sentence on each count and ordering three of the four sentences to run
consecutively.
2. The trial court erred to the prejudice of Defendant-Appellant by convicting
Defendant-Appellant of two offenses that were allegedly committed with the
same animus.
(Id., Ex. 8).
On October 13, 1999, the Ohio Court of Appeals issued a Judgment Entry overruling
petitioner’s assignments of error and affirming the trial court’s judgment. (Id., Ex. 10).
Petitioner did not pursue a further appeal to the Ohio Supreme Court. (See id., Ex. 41).
2002-2003: Application For Delayed Reopening Of Appeal
Nearly three years later, on September 12, 2002, petitioner filed a pro se application for
delayed reopening of his appeal with the Ohio Court of Appeals, First Appellate District. (Doc.
9, Ex. 11). In the application filed pursuant to Ohio R. App. P. 26(B), petitioner alleged that his
appellate counsel provided ineffective assistance because “he refused to raise issues on appeal
that were critical in the sentencing phase” and failed to argue on appeal that petitioner’s trial
counsel was ineffective for not objecting to a “deficient indictment” or to the prosecutor’s
misconduct in “present[ing] to the court false evidence of multiple crimes, [w]hen in fact the
issue of double jeopardy was present.” (Id., p. 2). Petitioner also claimed that Ohio R. App. P.
26 “is unconstitutional as applied in Ohio, because it deprives indigent incarcerated, uncounseled
inmates due process and equal protection of the law where injustice is the result.” (Id., p. 3).
5

On March 11, 2003, the Ohio Court of Appeals denied petitioner’s reopening application
on the ground that the application was untimely, and petitioner had failed to demonstrate good
cause for the filing delay. (Id., Ex. 13). Petitioner did not pursue an appeal from that ruling to
the Ohio Supreme Court. (See id., Ex. 41).
2005-2007: State Post-Conviction Proceedings
On June 5, 2005, over two years after the reopening proceedings concluded, petitioner
filed a pro se petition for post-conviction relief with the trial court, claiming that the trial court
erred when it sentenced him to non-minimum sentences based on facts “not found by the jury or
admitted to by petitioner pursuant to Blakely v. Washington[, 542 U.S. 296 (2006),] and United
States v. Booker[, 543 U.S. 220 (2005)].” (Doc. 9, Ex. 14). On July 15, 2005, the trial court
denied petitioner’s post-conviction petition on the ground that Blakely “is not retroactive.” (Id.,
Ex. 18).
Petitioner was permitted to appeal the trial court’s ruling to the Ohio Court of Appeals,
First Appellate District. (See id., Exs. 19, 21). In an amended appellate brief, petitioner
presented the following assignments of error: 2
1. Appellant . . . was denied his Sixth Amendment right to due process, and his
Fourteenth Amendment right to equal protection of the law, where the trial court
abused its discretion by sentencing Appellant to maximum and consecutive
sentences based upon unsupported facts found by the sentencing court.
2. The trial court erred to the substantial prejudice of Appellant . . ., by
overruling and denying his petition to vacate or set aside judgment of conviction
or sentence, by sentencing Appellant to non-minimum sentences.

2

As respondent noted in the return of writ, the Ohio Court of Appeals ordered that petitioner’s initial
appellate brief be stricken because petitioner failed to append the judgment being appealed to the pleading. (See
Doc. 9, Brief, p. 5 n.3 & Exs. 22-23).

6

3. Appellant . . . was denied his Sixth Amendment right to the effective
assistance of counsel, where trial counsel failed to adequately prepare a defense
[o]n behalf of appellant, nor properly advised appellant so that his plea could be
intelligent, knowing, and voluntary.
(Id., Ex. 24).
On November 29, 2006, the Ohio Court of Appeals overruled the assignments of
error and affirmed the trial court’s judgment on the ground that the post-conviction
petition was untimely. (Id., Ex. 26). The court also found that petitioner’s first and third
assignments of error were barred from review on the merits because petitioner had not
presented them to the trial court. (See id.).
Petitioner pursued a further appeal to the Ohio Supreme Court. (See id., Exs. 2728). He alleged as propositions of law that (1) the trial court abused its discretion by
sentencing him “beyond the statutory maximum based upon unsupported facts not
determined by a jury beyond a reasonable doubt;” and (2) his trial counsel was ineffective
by failing “to adequately prepare a defense” and failing “to properly advise Appellant . . .
regarding those factors that must be proven to a jury beyond a reasonable doubt.” (Id.,
Ex. 28). On May 2, 2007, the Ohio Supreme Court declined jurisdiction to hear the case
and summarily dismissed the appeal “as not involving any substantial constitutional
question.” (Id., Exs. 29, 43).
2009-2010: Resentencing – State Trial And Appeal Proceedings
On September 14, 2009, petitioner filed a pro se motion “to void judgment” with the trial
court. (Doc. 9, Ex. 30). In that motion, petitioner contended that his sentence was void because

7

(1) he was improperly sentenced for “allied offenses of similar import[] committed with a single
animus;” and (2) “Post Release Control [was] not properly included in [his] sentence.” (Id.).
The trial court responded to the motion by holding a resentencing hearing on October 26,
2009. (See id., October 26, 2009 Hearing Tr.). At the hearing, petitioner, who was represented
by new counsel, argued that he was improperly convicted and sentenced for the allied offenses of
kidnapping and aggravated robbery based on a state supreme court precedent. (Id., Tr. 3). The
court rejected that contention, reasoning that the state supreme court case was factually
distinguishable because in this case, the petitioner “not only robbed the place, but [also] forced a
lady on the ground and a shotgun was held to her head.” (Id.). However, the court explained
that because the law had changed regarding post-release control since the time petitioner was
initially sentenced, the court was required to inform the petitioner at sentencing that he was
subject to a five-year term of post-release control supervision upon his release from prison. (Id.,
Tr. 6).
At the hearing, the court advised petitioner about post-release control and then
resentenced him to the same terms of imprisonment that had previously been imposed. (See id.,
Tr. 3-6). The court’s resentencing entry, which included a provision on post-release control, was
filed on October 30, 2009. (Id., Ex. 31).
Petitioner filed a timely pro se notice of appeal to the Ohio Court of Appeals, First
Appellate District. (Id., Ex. 32). With the assistance of new counsel for appeal purposes,
petitioner filed an appellate brief, in which he raised the following assignments of error:
1. The trial court erred by sentencing Appellant without considering the
sentencing factors set forth in R.C. §2929.11 and R.C. §2929.12.
8

2. The trial court erred by imposing maximum, consecutive sentences upon
Appellant.
3. The trial court erred by imposing punishment upon Appellant that is
inconsistent with the sentences imposed for similar crimes by similar offenders.
4. The trial court erred by imposing multiple punishments for allied offenses of
similar import.
5. Appellant was denied effective assistance of counsel [at the resentencing
hearing].
(Id., Ex. 33).
In the appellate brief, counsel also provided an account of the bank robbery, which
differed from the account relayed to the trial court at petitioner’s plea hearing. The Ohio Court
of Appeals, First Appellate District, made the findings that were quoted in petitioner’s appellate
brief based on evidence presented during the trial proceedings held in co-defendant Eric
Chaffer’s case. According to that account, petitioner did not serve as a “lookout” during the
armed robbery, as was reported to the trial court, and instead was the individual who entered the
bank with Clifford Jones and assisted in committing the robbery inside the bank. (See id., pp. 23). Specifically, the following findings from the appellate court’s decision in Chaffer were
quoted in petitioner’s appellate brief:
. . . .As bank employees Kevin Murray and Tracy Insprucker arrived to open the
bank, two co-defendants, Clifford Jones and Trenton Pope, entered the bank.
Jones pointed a shotgun at Murray and Insprucker and ordered them to get down
on the ground. Murray was forced at gunpoint to collect all the cash that was in
the bank. Then Murray was ordered to get on the ground next to Insprucker.
Meanwhile, Chaffer stood outside the bank, acting as a lookout, while codefendants Timothy Pope and Sarah Schmidt sat in the getaway car, with a oneand-one-half-year-old child in the back seat. At one point, Chaffer got the keys to
Insprucker’s sport utility vehicle, entered her vehicle and waited, with the engine
running, outside the back door of the bank. When Jones and Trenton Pope ran out
9

of the bank with $76,000 and a shotgun, Chaffer and his co-defendants fled from
the area in both the Schmidt and Insprucker vehicles.
(Id.) (quoting State v. Chaffer, No. C-980952, 1999 WL 518553, at *1 (Ohio Ct. App. July 23,
1999)).
On June 30, 2010, the Ohio Court of Appeals issued a Judgment Entry overruling
petitioner’s assignments of error and affirming the trial court’s judgment. (Id., Ex. 35). In
rejecting the claim that petitioner had been improperly sentenced for the allied offenses of
kidnapping and aggravated robbery, the court made findings of fact, which are presumed
correct, 3 and reasoned in pertinent part as follows:
The commission of a robbery necessarily entails the restraint of the victim’s
liberty for a sufficient amount of time to complete the robbery. But where the
restraint is prolonged, the confinement is secretive, or the movement is so
substantial as to demonstrate a significance apart from the other offense, there
exists a separate animus to support convictions for both offenses.
The facts of this case reflect a separate animus for kidnapping. Pope and Jones
had already taken the cash when they ordered the bank employees to lie prone on
the floor of the vault. They prolonged the restraint when they ordered the
employees to remain in the vault after they had left. Under these circumstances,
the restraint of the victims was sufficient to have demonstrated a significance
apart from the robberies. . . .
(Id., p. 3) (footnote citations to Ohio cases omitted). The court also addressed the merits of
petitioner’s ineffective assistance of trial counsel claim as follows:
To establish ineffective assistance of counsel, the defendant must demonstrate
that counsel’s performance fell below an objective standard of reasonable
performance and that prejudice arose from counsel’s performance.
3

28 U.S.C. ' 2254(e)(1) provides that A[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed correct@ unless petitioner rebuts the presumption by Aclear and convincing evidence.@
Because petitioner has not presented clear and convincing evidence to rebut the Ohio Court of Appeals= factual
findings, those findings are presumed to be correct. See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).

10

Pope first argues that his attorney was ineffective in failing to argue in mitigation
of sentence. This argument is without merit. Pope’s original trial counsel offered
mitigation at the first sentencing hearing in 1998, and the same trial court presided
over the resentencing. The court demonstrated that it was familiar with the prior
proceedings, and Pope has failed to suggest any further mitigating circumstances
that counsel might have offered.
He also argues that counsel was deficient in failing to argue that aggravated
robbery and kidnapping were allied offenses of similar import. This argument is
also without merit. As we have already held, the trial court did not err in
imposing sentences for both offenses, and any failure on the part of counsel to
raise the issue was therefore inconsequential.
(Id., p. 4) (footnote citation omitted).
Petitioner filed a timely pro se appeal to the Ohio Supreme Court. (See id., Ex. 36). In
his memorandum in support of jurisdiction, petitioner presented two propositions of law. He
claimed that (1) his multiple convictions and consecutive sentences for the allied offenses of
aggravated robbery and kidnapping violated his due process rights and the Fifth Amendment’s
Double Jeopardy Clause; and (2) his trial counsel provided ineffective assistance by failing “to
adequately prepare a defense.” (Id., Ex. 37). Petitioner cited as examples of his counsel’s
ineffectiveness that counsel failed to object to “the duplicity of the charges that subvert the
protection against Double Jeopardy” and failed to present arguments in mitigation of petitioner’s
sentence at the resentencing hearing. (Id., pp. 7-8).
On October 27, 2010, the Ohio Supreme Court denied petitioner leave to appeal and
summarily dismissed the appeal “as not involving any substantial constitutional question.” (Id.,
Ex. 39).

11

Federal Habeas Corpus
The instant habeas corpus action commenced in December 2011. In the petition,
petitioner alleges the following grounds for relief:
Ground One: The trial court erred to the prejudice of Appellant’s rights to due
process under the Eighth and Fourteenth Amendment[s], in entering judg[]ment
of conviction on the aggravated robbery and kidnapping counts, as those offenses
are allied offenses of similar import, and by sentencing Appellant consecutively
on allied offenses, the court violated his Fifth Amendment right to protection
against double jeopardy.
Ground Two: Appellant Pope was denied his Sixth Amendment right to the
effective assistance of counsel in violation of . . . due process and equal protection
of the law, as guaranteed by the United States and Ohio Constitution[s], where
trial counsel failed to adequately prepare a defense on behalf of Appellant.
(Doc. 2, pp. 5-6(b)). Respondent has filed a return of writ addressing the merits of petitioner’s
claims. (Doc. 9).
II. OPINION
Petitioner’s two grounds for federal habeas relief were raised by petitioner on appeal
from the trial court’s October 2009 resentencing decision and were addressed on the merits by
the Ohio Court of Appeals. (See Doc. 9, Exs. 33, 35). Therefore, the standard of review to be
applied in this case is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas
corpus may not issue with respect to any claim adjudicated on the merits by the state courts
unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
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28 U.S.C. § 2254(d).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)), cert. denied, 132 S.Ct. 1743 (2012). “A state court’s
adjudication only results in an ‘unreasonable application’ of clearly established federal law when
‘the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.’” Id. at 599600 (quoting Williams, 529 U.S. at 413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit recently explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, U.S. , 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the
record before the state court where a claim has been adjudicated on the merits by
the state court). It is not enough for us to determine that the state court’s
determination is incorrect; to grant the writ under this clause, we must hold that
the state court’s determination is unreasonable. . . . This is a “substantially higher
threshold.”. . . To warrant AEDPA deference, a state court’s “decision on the
merits” does not have to give any explanation for its results, Harrington v.
Richter, U.S. , 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need
to cite the relevant Supreme Court cases, as long as “neither the reasoning nor the
result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3,
8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).
Id. (emphasis in original).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
13

bar on federal court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 131 S.Ct.
at 786. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-87.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher,

U.S.

, 132 S.Ct. 38, 44-45 (2011); cf. Otte, 654

F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a
claim addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). In Greene, 132 U.S. at 44, the
Court explained:
[W]e held last term in Cullen v. Pinholster, 563 U.S. , 131 S.Ct. 1388, 179
L.Ed.2d 557 (2011), that review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the prisoner’s claim on the merits. We
said that the provision’s “backward-looking language requires an examination of
the state-court decision at the time it was made.” Id., at , 131 S.Ct. at 1398. The
reasoning of Cullen determines the result here. As we explained, § 2254(d)(1)
requires federal courts to “focu[s] on what a state court knew and did,” and to
measure state-court decisions as of ‘the time the state court renders its decision.’”
Id., at , 131 S.Ct. at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .;
emphasis added).
Decisions by lower courts are relevant “to the extent [they] already reviewed and
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interpreted the relevant Supreme Court case law to determine whether a legal principle or right
had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010), cert. denied, 132 S.Ct. 127 (2011)). The writ may
issue only if the application of clearly-established federal law is objectively unreasonable “in
light of the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of
the relevant state court decision.” McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing
Williams, 529 U.S. at 412).
The Court turns now to address each of petitioner’s claims for relief in accordance with
the standard of review enunciated in 28 U.S.C. § 2244(d), as interpreted by the Supreme Court.
A. Petitioner Has Not Demonstrated He Is Entitled To Relief Based On His Claim In
Ground One That He Was Multiply Punished For The Same Offense When He Was
Convicted And Sentenced For Both Aggravated Robbery And Kidnapping
In Ground One of the petition, petitioner essentially claims that he was multiply punished
for the same offense in violation of the Fifth Amendment’s Double Jeopardy Clause when the
trial court did not merge his kidnapping and aggravated robbery convictions for sentencing
purposes in accordance with Ohio’s multiple-count statute, Ohio Rev. Code § 2941.25. (Doc. 2,
pp. 5-5(b)). Initially, petitioner failed to exhaust the issue after raising it on direct appeal in
1998-1999, because he did not pursue a further appeal at that time to the Ohio Supreme Court.
(See Doc. 9, Exs. 8, 10, 41). However, the ground for relief is now subject to review on the
merits because petitioner did exhaust his state court remedies in 2009-2010 by reasserting the
claim of constitutional error in the resentencing proceedings and on appeal from the trial court’s
resentencing decision to both the Ohio Court of Appeals and Ohio Supreme Court. (See id., Exs.
30, 32, 37 & October 26, 2009 Hearing Tr. 3).
15

The constitutional issue that petitioner has raised involves the Fifth Amendment’s Double
Jeopardy Clause, which was made applicable to the states through the Fourteenth Amendment,
Benton v. Maryland, 395 U.S. 784, 794 (1969), and among other things, protects against
“multiple punishments for the same offense” imposed in a single proceeding. Missouri v.
Hunter, 459 U.S. 359, 366 (1983) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
In the “multiple punishment” context, the protection is limited to ensuring that
“sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by
the legislative branch of government, in which lies the substantive power to define crimes and
prescribe punishments.” Jones v. Thomas, 491 U.S. 376, 381 (1989); see also Ohio v. Johnson,
467 U.S. 493, 499 (1984); Brown v. Ohio, 432 U.S. 161, 165 (1977). Therefore, “the question
under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of
legislative intent.” Johnson, 467 U.S. at 499; see also Palmer v. Haviland, 273 F. App’x 480,
484 (6th Cir. 2008) (unlike other double jeopardy protections prohibiting re-prosecution for the
same offense, “the multiple punishments category of double jeopardy is primarily one of
legislative intent”).
In the federal courts, the test established in Blockburger v. United States, 284 U.S. 299,
304 (1932), is normally used to determine whether two offenses are sufficiently different to
allow the imposition of cumulative punishment. Johnson, 467 U.S. at 499 n.8; see also Brown,
432 U.S. at 166. However, the Blockburger test, a rule of statutory construction for federal
statutes, does not necessarily control the inquiry into the intent of a state legislature. Johnson,
467 U.S. at 499 n.8; Banner v. Davis, 886 F.2d 777, 780-82 (6th Cir. 1989).

16

Instead, when assessing the intent of a state legislature, the federal courts must defer to
and are bound by the state courts’ construction of their own statutes. Hunter, 459 U.S. at 368
(citing O’Brien v. Skinner, 414 U.S. 524, 531 (1974)); see also Johnson, 467 U.S. at 499; Brown,
432 U.S. at 167; Banner, 886 F.2d at 780; Palmer, 273 F. App’x at 486 (on federal habeas
review, “[w]e cannot independently apply typical rules of statutory construction, including the
Blockburger test, to a state statute and conclude that the state courts were wrong in their reading
of legislative intent”). A state legislature may create substantive crimes and punishments that
overlap to some degree without violating the Double Jeopardy Clause. Therefore, “[e]ven if the
crimes are the same under Blockburger, if it is evident that a state legislature intended to
authorize cumulative punishments [for them, the federal] court’s inquiry is at an end.” Johnson,
467 U.S. at 499 n.8.
In Ohio, the legislature’s intent in the multiple punishment area may be discerned from
Ohio Rev. Code § 2941.25, which was enacted “to prevent ‘shotgun’ convictions” or, in other
words, “multiple findings of guilt and corresponding punishments . . . for closely related offenses
arising from the same occurrence.” See State v. Johnson, 942 N.E.2d 1061, 1064-65 & n.2, 1069
(Ohio 2010) (citing State v. Botta, 271 N.E.2d 776 (Ohio 1971), and State v. Logan, 397 N.E.2d
1345 (Ohio 1979), and quoting Legislative Service Commission comments to § 2941.25); see
also State v. Brown, 895 N.E.2d 149, 153 (Ohio 2008) (pointing out that the standards set forth
in Ohio’s multiple-count statute “answered both the constitutional and state statutory inquiries
regarding the General Assembly’s intent to permit cumulative punishments for the same
conduct”). The statute provides:

17

(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
Ohio Rev. Code § 2941.25.
The statutory provision permits the trial court to convict and impose cumulative
sentences for two or more offenses arising from the same incident only if the offenses (1) are of
dissimilar import; or (2) are of similar import, but were committed separately or with separate
animus. Brown, 895 N.E.2d at 153. The applicable test for deciding the issue potentially
involves a two-step inquiry. See id. at 153-54 (and Ohio Supreme Court cases cited therein); see
also Johnson, 942 N.E.2d at 1065-66, 1070; State v. Harris, 911 N.E.2d 882, 884 (Ohio 2009)
(citing State v. Blankenship, 526 N.E.2d 816 (Ohio 1988)). Under the first step of the inquiry,
the court must determine whether the various offenses are of similar or dissimilar import; if the
offenses are found to be of dissimilar import, the multiple convictions and punishments are
permitted and the court’s inquiry ends. See State v. Rance, 710 N.E.2d 699, 703 (Ohio 1999),
overruled on other grounds by State v. Johnson, 942 N.E.2d 1061 (Ohio 2010). On the other
hand, if the multiple offenses are found to be of similar import, the second level of inquiry is
triggered requiring the court to determine whether or not the defendant may be cumulatively
punished for the offenses because they were committed separately or with a separate animus.
See, e.g., Johnson, 942 N.E.2d at 1065-66; Harris, 911 N.E.2d at 884; State v. Cabrales, 886
N.E.2d 181, 184-85 (Ohio 2008); Blankenship, 526 N.E.2d at 817.
18

The test to apply in resolving whether offenses are of similar or dissimilar import under
the first step of the state statutory inquiry has evolved over time. In June 1999, during the
pendency of petitioner’s initial direct appeal, the Ohio Supreme Court issued its decision in
Rance, holding that the first inquiry required courts to compare the statutory elements of the
various crimes “in the abstract,” without regard to the particular facts of the case, in determining
whether the offenses were of similar or dissimilar import. Rance, 710 N.E.2d at 703; see also
Johnson, 942 N.E.2d at 1066; Brown, 895 N.E.2d at 154; Cabrales, 886 N.E.2d at 184. Under
the Rance “abstract elements-comparison test,” multiple offenses were deemed to be dissimilar if
they failed to “correspond to such a degree that the commission of one crime will result in the
commission of the other.” Rance, 710 N.E.2d at 703 (internal citations and quotations omitted).
In the ensuing years, the Rance standard proved to be unworkable, producing
“inconsistent, unreasonable, and, at times, absurd results.” Cabrales, 886 N.E.2d at 186; see also
Johnson, 942 N.E.2d at 1066-67. Therefore, in subsequent cases decided prior to the Ohio
Supreme Court’s entry on October 27, 2010, disposing of petitioner’s final state-court appeal in
the 2009-2010 resentencing matter, the Ohio Supreme Court modified and created exceptions to
the Rance standard, without directly overruling Rance, “in order to avoid its attendant absurd
results.” See Johnson, 942 N.E.2d at 1066-69 (discussing post-Rance decisions by the Ohio
Supreme Court). 4

4

In Johnson, 942 N.E.2d at 1069, the Ohio Supreme Court overruled Rance “to the extent it calls for a
comparison of statutory elements solely in the abstract.” Now, “[w]hen determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.”
Id. Under the new test adopted in Johnson, the inquiry turns on “whether it is possible to commit one offense and
commit the other with the same conduct.” Id. at 1070. “If the offenses correspond to such a degree that the conduct
of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are
of similar import.” Id. Johnson, which was decided in December 2010, after petitioner’s appeal in the resentencing

19

Of particular relevance to the instant case, in April 2008, the Ohio Supreme Court held in
Cabrales, 886 N.E.2d at 188, that “in determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), Rance requires courts to compare the elements of offenses in the
abstract, i.e., without considering the evidence in the case, but does not require an exact
alignment of elements.” In so ruling, the court concluded that some intermediate appellate
courts, including the First District Court of Appeals, had misinterpreted the Rance test as
requiring a “strict textual comparison” of the elements. See id. at 185-87 (overruling State v.
Palmer, 772 N.E.2d 726, 728 (Ohio Ct. App. 1 Dist. 2002)). In rejecting such an interpretation
of Rance as “overly narrow,” the Cabrales court reasoned in pertinent part:
[N]owhere does Rance mandate that the elements of compared offenses must
exactly align for the offenses to be allied offenses of similar import under R.C.
2941.25(A). To interpret Rance as requiring a strict textual comparison would
mean that only where all the elements of the compared offenses coincide exactly
will the offenses be considered allied offenses of similar import under R.C.
2941.25(A). Other than identical offenses, we cannot envision any two offenses
whose elements align exactly.
Id. at 186-87 (emphasis in original).
Thereafter, in March 2009, the Ohio Supreme Court issued another decision in State v.
Winn, 905 N.E.2d 154 (Ohio 2009), which is directly on point to the case-at-hand. In that case,
the state’s highest court held that kidnapping and aggravated robbery are allied offenses of

matter had concluded, applies only prospectively. Therefore, it does not govern the resolution of petitioner’s claim.
Cf. Render v. Warden, S. Ohio Corr. Facility,
F. Supp.2d , No. 1:10cv629, 2012 WL 3627766, at *5, *45 n.10
(S.D. Ohio Aug. 22, 2012) (Spiegel, J.; Bowman, M.J.) (although the district court did not adopt the undersigned’s
recommendation to certify a state-law question to the Ohio Supreme Court regarding the retrospective application of
Cabrales and instead granted a conditional writ in accordance with the respondent’s request, the undersigned noted
in the Report and Recommendation that the Ohio Supreme Court’s later Johnson case, which overruled Rance,
applies “only prospectively”).

20

similar import when “analyzed in the abstract” under Rance as clarified by Cabrales. Id. at 158.
The court reasoned in pertinent part:
In essence the elements to be compared in the abstract are the restraint, by force,
threat, or deception, of the liberty of another to “facilitate the commission of any
felony” (kidnapping, R.C. 2905.01(A)(2)) and having “a deadly weapon on or
about the offender’s person or under the offender’s control and either display[ing]
the weapon, brandish[ing] it, indicat[ing] that the offender possesses it, or us[ing]
it” in attempting to commit or committing a theft offense (aggravated robbery,
R.C. 2911.01(A)(1)). It is difficult to see how the presence of a weapon that has
been shown or used, or whose possession has been made known to the victim
during the commission of a theft offense, does not also forcibly restrain the liberty
of another. These two offenses are “so similar that the commission of one offense
will necessarily result in the commission of the other.” Cabrales, . . . 886 N.E.2d
181, paragraph one of the syllabus. They meet the test for allied offenses as it
was refined by Cabrales.
Holding that kidnapping and aggravated robbery are allied offenses is also in
keeping with 30 years of precedent. State v. Logan (1979), 60 Ohio St.2d 126,
130, . . . 397 N.E.2d 1345, has been considered authority for the proposition that
kidnapping and robbery are allied offenses of similar import. State v. Jenkins
(1984), 15 Ohio St.3d 164, 198, . . . 473 N.E.2d 264, fn. 29 (pre-Rance case,
citing Logan for proposition that “implicit within every robbery (and aggravated
robbery) is a kidnapping”); State v. Fears (1999), 86 Ohio St.3d 329, 344, 715
N.E.2d 136 (kidnapping specification merges with aggravated-robbery
specification unless the offenses were committed with separate animus); State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 204, citing Jenkins . . .
(“kidnapping is implicit within every aggravated robbery”); Cabrales, . . . 886
N.E.2d 181, at ¶ 18, 25.
In Logan, this court concluded: “It is clear from the plain language of the statute
that no movement is required to constitute the offense of kidnapping; restraint of
the victim by force, threat, or deception is sufficient. Thus, implicit within every
forcible rape (R.C. 2907.02[A][1]) is a kidnapping. The same may be said of
robbery (R.C. 2911.02), and, under certain circumstances, of felonious assault
(R.C. 2903.11).” . . .
Nor are we persuaded by the state’s . . . scenarios. These examples lapse into the
strict textual comparison that this court rejected in Cabrales. We would be hard
pressed to find that there is no conceivable situation in which one crime can be
committed without the other.
21

Id. at 158-59.
In the instant case, the Ohio Court of Appeals first addressed petitioner’s claim when it
issued its decision affirming petitioner’s conviction on direct appeal in October 1999, a few
months after Rance was decided. At that time, the court overruled petitioner’s assignment of
error because, under the “strict textual comparison” test then employed by the First District
Court of Appeals, the aggravated robbery and kidnapping offenses, when compared in the
abstract, “required proof of an element that the other did not, and therefore, . . . were not allied
offenses of similar import” under the first step of the statutory inquiry set forth in Ohio Rev.
Code § 2941.25(A). (See Doc. 9, Ex. 10, pp. 3-4). Given the Ohio Supreme Court’s later
decisions in Cabrales and Winn, it appears that the Ohio Court of Appeals’ initial ruling was
made in error based on a misinterpretation of Rance.
However, the Ohio Court of Appeals was able to rectify its error when it revisited the
issue, which was again raised by petitioner as an assignment of error on appeal from the trial
court’s October 9, 2009 resentencing decision. By that time, the court had the benefit of
hindsight based on the Ohio Supreme Court’s decisions in both Cabrales and Winn. Relying on
the state supreme court’s 1979 decision in Logan, the Ohio Court of Appeals properly concluded
in its decision filed June 30, 2010, that the first step of the inquiry was satisfied because “[t]he
commission of a robbery necessarily entails the restraint of the victim’s liberty for a sufficient
amount of time to complete the robbery.” (See id., Ex. 35, p. 3).
The court went on to consider under the second step of the statutory inquiry set forth in
Ohio Rev. Code § 2941.25(B), whether petitioner could nevertheless be cumulatively punished
for the allied offenses of kidnapping and aggravated robbery because the offenses were
22

committed separately or with separate animus. (See id.). The court concluded that cumulative
punishment was permissible because “[t]he facts of this case reflect a separate animus for
kidnapping.” (Id.). Specifically, the court found that “the restraint of the victims was sufficient
to have demonstrated a significance apart from the robberies” to the extent that (1) the victims
were forced “to lie prone on the floor of the vault” after the theft of cash from the bank had
occurred; and (2) the bank robbers “prolonged the restraint” by ordering the victims “to remain
in the vault after they had left.” (See id.) (emphasis added). 5
The Ohio Court of Appeals’ final adjudication of petitioner’s claim, as reasserted in the
2009-2010 resentencing proceedings, comports with the Ohio Supreme Court’s interpretation
and construction of Ohio Rev. Code § 2941.25. Because kidnapping and aggravated robbery are
allied offenses of similar import within the meaning of Ohio Rev. Code § 2941.25(A), as
interpreted by the Ohio Supreme Court in Winn, the lower courts were required to proceed to the
second step of the inquiry set forth in Ohio Rev. Code § 2941.25(B) and assess whether the two
offenses were committed separately or with a separate animus. See, e.g., Johnson, 942 N.E.2d at
1065-66 (holding that if multiple offenses are determined to be of similar import under Ohio
Rev. Code § 2941.25(A) because they “can be committed by the same conduct,” the court must
then “determine whether the offenses were committed by the same conduct, i.e., ‘a single act,
committed with a single state of mind’”) (quoting Brown, 895 N.E.2d at 158 (Lanzinger, J.,

5

It is noted that the trial court rejected petitioner’s claim raised at the resentencing hearing based on other
related circumstances. The court relayed its concern that the restraints used in this case carried a significance apart
from the underlying armed bank robbery by distinguishing the Ohio Supreme Court’s Winn decision on the ground
that in the instant case, petitioner “not only robbed the place, but . . . forced a lady on the ground” and held a
“shotgun . . . to her head.” (Doc. 9, October 26, 2009 Hearing Tr. 3).

23

concurring in judgment only)); see also Harris, 911 N.E.2d at 884; Cabrales, 886 N.E.2d at 18485; Blankenship, 526 N.E.2d at 817.
As both the trial court and Ohio Court of Appeals appear to have understood in the
instant case, it is well-settled in Ohio that defendants may be convicted and sentenced for both
kidnapping and aggravated robbery based on a finding of “separate animus” stemming from
exposure of the victims “to a significantly greater risk of harm than was necessary for the
accomplishment of the aggravated robbery offense.” See, e.g., State v. Champion, No. 24782,
2012 WL 2061590, at *2 (Ohio Ct. App. June 8, 2012) (and cases cited therein). In Logan,
which involved the allied offenses of rape and kidnapping, the Ohio Supreme Court adopted the
following two-prong standard in determining whether “kidnapping and another offense of the
same or similar kind are committed with a separate animus as to each pursuant to R.C.
2941.25(B):”
(a) Where the restraint or movement of the victim is merely incidental to the
underlying crime, there exists no separate animus sufficient to sustain separate
convictions; however, where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions.
Logan, 397 N.E.2d at 1346. In so holding, the court expressly recognized that the “prolonged
restraint [of the victim] in a bank vault to facilitate the commission of a robbery” is an example
of a restraint that could constitute the separate offense of kidnapping under the second,
“substantial increase in risk of harm” prong of the separate-animus test. Id. at 1352.
24

Because petitioner entered a guilty plea in this case, the record does not contain detailed
information about the restraints that were imposed on the two bank employees during the course
of the bank robbery. However, it was reasonable for the Ohio courts to conclude based on the
standards adopted by the Ohio Supreme Court in Logan that petitioner had a separate animus for
the kidnapping offense to the extent that the record reveals that the victims were ordered to lie
face down on the floor of the bank vault and to remain there after the robbery occurred. Cf. id.;
see also State v. Gilbert, No. 08 MA 206, 2012 WL 952243, at *9 (Ohio Ct. App. Mar. 20, 2012)
(“Any restraint or asportation of a victim may constitute a separate offense of kidnapping if it
was not necessary in order to complete the robbery offense.”); State v. Walker, No. L-07-1156,
2008 WL 4183337, at *3 (Ohio Ct. App. Sept. 12, 2008) (finding separate animus existed for
kidnapping that was separate from the underlying aggravated robbery where the victim “was first
robbed and then taken to a different room where her feet and hands were tied, significantly
delaying her escape”).
The record developed in co-defendant Chaffer’s case provides even further support for
the courts’ determination in this case. Specifically, in reviewing an analogous claim that had
been raised by Chaffer on appeal, the Ohio Court of Appeals reported that a review of the record,
which included the “detailed bill of particulars” and “the state’s summary of the facts
surrounding the crimes offered at [Chaffer’s] plea hearing,” demonstrated the following:
Chaffer and his fellow perpetrators confronted Insprucker and Murray in the bank
parking lot. Wielding shotguns, they forced the two to open the bank and to
disable the alarm system. The perpetrators ordered Insprucker to get on the floor
while Murray was to fill bags with cash from the bank vault. They ordered the
two to surrender their car keys to provide getaway vehicles. And they then
“removed [the two] to the vault and ordered them to lie face down on the floor.
The two were ordered to remain where they were and not to move.
25

State v. Chaffer, No. C-0909602, 2010 WL 3722779, at *2 (Ohio Ct. App. Sept. 24, 2010) (per
curiam). Applying the two-prong test developed in Logan, the court ruled in Chaffer that the
kidnapping and aggravated robbery offenses were committed with a separate animus; the court
reasoned in pertinent part as follows:
It is beyond cavil that the bank-robbery scheme was the immediate motive for the
kidnapping. Kidnapping the bank employees was merely incidental to the bank
robbery. . . . And here the restraint and asportation of the victims were limited.
Their detention was brief, the movement was slight.
But we hold, under the second prong of our separate-animus analysis, that by their
actions the perpetrators subjected Insprucker and Murray to a substantial increase
in the risk of harm apart from that involved in the robbery. They moved
Insprucker and Murray, at gunpoint, from the parking lot into the bank building,
and they forced Insprucker to lie on the floor where passersby could not see her.
And to aid their escape, they moved the two to the bank vault and ordered them to
remain there, significantly increasing the risk of harm to the victims.
Id. at *3.
Since Chaffer was decided, the Ohio Court of Appeals, First Appellate District, reached
the opposite conclusion when confronted with the same issue on direct appeal of convictions
stemming from an armed robbery of a bank in 2010. In those later cases, the state court did not
challenge or express any concerns about its finding of separate animus for the kidnappings that
occurred in the instant case; instead, the court found that the circumstances, which supported
Chaffer’s and petitioner’s separate convictions for both kidnapping and aggravated robbery, were
not present in the 2010 bank robbery. Cf. State v. Anderson, 974 N.E.2d 1236, 1243-45 (Ohio
Ct. App. 2012) (no separate animus found where, in contrast to Chaffer, both the aggravated
robbery and kidnapping offenses were based on the defendant’s “actions in jumping over the
counter and taking the bank’s money, while [the co-defendant] brandished a handgun to move
26

[the bank employee kidnapping victim] and others to a common area of the bank” without any
“substantial increase in the risk of harm to [the bank employee] separate from that involved in
the commission of the aggravated robbery”); State v. Cooper, Nos. C-110027 & C-110028, 2012
WL 473132, at *4-6 (Ohio Ct. App. Feb. 15, 2012) (same finding made in disposition of appeal
brought by a co-defendant).
As discussed above, this Court must defer to and is bound by the state courts’
interpretation and construction of Ohio’s multi-count statute. See Hunter, 459 U.S. at 368; see
also Johnson, 467 U.S. at 499; Brown, 432 U.S. at 167; Banner, 886 F.2d at 780; Palmer, 273 F.
App’x at 486. Indeed, it is well-settled that “a state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a federal court sitting in
habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502
U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691(1975)). Therefore, in the absence
of “persuasive data that the highest court of the state would decide otherwise,” this Court must
accept the Ohio Court of Appeals’ state-law determination, stemming from its interpretation and
construction of Ohio Rev. Code § 2941.25(B) in accordance with standards established by the
Ohio Supreme Court in Logan, that a separate animus existed to support petitioner’s convictions
and sentences for both kidnapping and aggravated robbery based on the circumstances presented
in this case. See West v. American Tel. & Tel. Co., 311 U.S. 223, 236-37 (1940) (and cases cited
therein); see also Hicks v. Feiock, 485 U.S. 624, 629-30 & n. 3 (1988) (applying West standard
in federal habeas case); Hampton v. United States, 191 F.3d 695, 701 (6th Cir. 1999) (citing
Hicks, 485 U.S. at 630 n.3). Cf. Lawler v. Fireman’s Fund Ins. Co., 322 F.3d 900, 903 (6th Cir.
2003).
27

Accordingly, in sum, petitioner has not demonstrated that his convictions and sentences
for kidnapping and aggravated robbery exceeded the limits governing the imposition of multiple
punishments in Ohio, as prescribed by the state legislature in Ohio Rev. Code § 2941.25. In the
absence of such a showing, this Court’s inquiry is at an end. See Johnson, 467 U.S. at 499 n.8.
In any event, even assuming that the circumstances of this case present a close question as to
whether a separate animus could be found for each offense under applicable state statutory
standards, thereby triggering federal constitutional double-jeopardy concerns, petitioner has not
shown that the state court’s adjudication of the issue “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” See Harrington, 131 S.Ct. at 786-87. The undersigned, therefore,
concludes that petitioner is not entitled to federal habeas relief based on his claim in Ground One
that he was multiply punished for the same offense in violation of the Fifth Amendment’s
Double Jeopardy Clause.
B. Petitioner Is Not Entitled To Relief Based On His Claim Alleged In Ground Two
That He Was Denied Effective Assistance By His Trial Counsel
In Ground Two of the petition, petitioner alleges that he was denied the effective
assistance of counsel in violation of the Sixth Amendment because his trial attorney “failed to
adequately prepare a defense” on his behalf. (Doc. 2, pp. 6-6(b)).
As an initial matter, respondent contends in the return of writ that although petitioner has
couched his ineffective-assistance-of-counsel claim in general terms, review of the claim is
limited to the specific issues that petitioner raised on appeal from the trial court’s October 30,
2009 resentencing decision. (See Doc. 9, Brief, pp. 18-19). Respondent’s argument has merit.
28

In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state defendant with federal constitutional claims must fairly present those claims to the
state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v.
Connor, 404 U.S. 270, 275-76 (1971); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006)
(quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)) (“[f]ederal courts do not have
jurisdiction to consider a claim in a habeas petition that was not ‘fairly presented’ to the state
courts”). A constitutional claim for relief must be presented to the state’s highest court in order
to satisfy the fair presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848
(1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94,
97, 99-100 (6th Cir. 1985). “Fair presentation” also means that the habeas petitioner has
presented both the factual and legal underpinnings of his claims to the state courts. Fulcher, 444
F.3d at 798; McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Franklin v. Rose, 811 F.2d
322, 325 (6th Cir. 1987).
Furthermore, it is well-settled that the federal habeas court may be barred from
considering an issue of federal law from a judgment of a state court if the judgment rests on a
state-law ground that is both “independent” of the merits of the federal claim and an “adequate”
basis for the state court’s decision. See Harris v. Reed, 489 U.S. 255, 260-62 (1989). In those
cases where the last state court to render a reasoned opinion explicitly relies on an adequate and
independent state procedural bar to review, the federal habeas court will presume that a later
unexplained order did not silently disregard the procedural default and consider the merits of the
29

claim. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); cf. Crawford v. Warden, Warren Corr.
Inst., No. 1:10cv541, 2011 WL 5307408, at *20 (S.D. Ohio Sept. 29, 2011) (Litkovitz, M.J.)
(Report & Recommendation) (citing Ylst, Taqwiim v. Johnson, No. 99-3425, 2000 WL 1234322,
at *3 (6th Cir. Aug. 22, 2000), and Levine v. Torvik, 986 F.2d 1506, 1507 n.8 (6th Cir. 1993),
overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995), in holding that
the “Ohio Supreme Court’s later unexplained entry denying petitioner leave to appeal and
summarily dismissing the appeal ‘as not involving any substantial constitutional question’ must
be presumed to rely on the same procedural ground” that was relied on by the Ohio Court of
Appeals in rejecting the petitioner’s claim), adopted, 2011 WL 5304157 (S.D. Ohio Nov. 3,
2011) (Barrett, J.); Bennett v. Warden, Ross Corr. Inst., No. 1:07cv889, 2009 WL 88831, at *9
(S.D. Ohio Jan. 12, 2009) (Black, J.) (same).
If it appears from the record that the petitioner failed to fairly present his constitutional
claims through the requisite levels of state appellate review to the state’s highest court, or
committed some other procedural default that prevented a merit-based review of the federal
claims by the state’s highest court, the petitioner may have waived his claims for federal habeas
corpus relief. See O’Sullivan, 526 U.S. at 847-48; Harris, 489 U.S. at 260-62; McBee v. Grant,
763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir.
1989). In such a case, in the absence of an available state-court remedy, federal review of the
defaulted claims is precluded unless the petitioner can demonstrate cause for and prejudice from
his procedural default or that failure to consider the defaulted claims will result in a
“fundamental miscarriage of justice.” See, e.g., Coleman v. Thompson, 501 U.S. 722, 750
(1991); Harris, 489 U.S. at 262; Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac,
30

456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, the only ineffective-assistance-of-trial-counsel claims that were fairly
presented by petitioner to the state courts for consideration were those that he raised to both the
Ohio Court of Appeals and the Ohio Supreme Court on appeal from the trial court’s resentencing
decision of October 30, 2009. (See Doc. 9, Ex. 33, pp. 10-11; Ex. 37, pp. 7-8).
Petitioner did not raise any claims challenging his counsel’s conduct on direct appeal
from his conviction and sentence in 1998-1999. Although he later attempted to raise claims of
ineffectiveness by both his trial and appellate counsel in a reopened appeal, petitioner
procedurally defaulted those claims because (1) his application for delayed reopening of the
appeal, filed in September 2002, nearly three years after the Ohio Court of Appeals issued its
direct appeal decision, was denied as untimely by the Ohio Court of Appeals; and (2) petitioner
failed to pursue a further appeal to the Ohio Supreme Court in that matter. (See id., Exs. 11, 13,
41). Petitioner also raised claims challenging the effectiveness of his attorney in the original
1998 criminal trial on appeal from the trial court’s denial of his state post-conviction petition
filed in June 2005. (See id., Exs. 18, 24, 28). However, the Ohio Court of Appeals relied on
adequate and independent state grounds when it concluded that (1) the post-conviction petition
was properly denied as untimely; and (2) in any event, the ineffective-assistance-of-counsel
claim was barred from review on the merits because petitioner had not presented the claim to the
trial court. (See id., Ex. 26). The Ohio Supreme Court’s later unexplained entry declining
jurisdiction to hear the case and summarily dismissing petitioner’s appeal “as not involving any
substantial constitutional question” is presumed to rely on the same procedural grounds. (See id.,
Ex. 29).
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Petitioner has neither argued nor otherwise shown cause for and prejudice from his
procedural defaults in the state reopening and post-conviction proceedings. Petitioner also has
not argued or demonstrated that a fundamental miscarriage of justice will occur if the defaulted
ineffective-assistance-of-counsel claims challenging the effectiveness of his original trial
attorney are not considered herein. 6 Therefore, this Court’s review is limited to the issues
challenging the effectiveness of petitioner’s counsel at the October 2009 resentencing hearing,
which were raised by petitioner on appeal from the trial court’s resentencing decision.
In the resentencing appeal, petitioner specifically alleged that his attorney at the
resentencing hearing was ineffective for (1) failing “to present mitigation on [his] behalf;” and
(2) failing “to argue for the merger of the kidnapping counts with the aggravated robbery counts”
on the ground that they are allied offenses of similar import under Ohio Rev. Code § 2941.25.
(See id., Ex. 33, pp. 10-11; Ex. 37, pp. 7-8). The Ohio Court of Appeals was the only state court
to issue a reasoned decision addressing the merits of those claims. In ruling on the claims, the
court correctly identified and reasonably applied the clearly-established two-part standard of
review enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). (See
id., Ex. 35, p. 4 n.9). As the state court recognized (see id., p. 4), to establish a Strickland
violation, petitioner must demonstrate both (1) his attorney made such serious errors that he was
not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) counsel’s deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687.

6

To demonstrate a “fundamental miscarriage of justice” sufficient to justify excusing a procedural bar to
review, the petitioner must demonstrate that the errors alleged in the defaulted claim “probably resulted in the
conviction of one who is actually innocent.” See Murray, 477 U.S. at 495-96; see also House v. Bell, 547 U.S. 518,
536-37 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995). No such showing has been made in this case.

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Under the first prong of the Strickland test, it must be shown that counsel’s representation
fell below an objective standard of reasonableness based on all the circumstances surrounding
the case. Id. at 688. In determining whether or not counsel’s performance was deficient, the
Court must indulge a strong presumption that the challenged conduct fell within the wide range
of reasonable professional assistance. Id. at 689. To satisfy the second “prejudice” prong of the
Strickland test, petitioner must demonstrate that a “reasonable probability” exists that, but for his
counsel’s errors, the result of the resentencing proceeding would have been different. See
Strickland, 466 U.S. at 694. Petitioner has met his burden if he shows that the result of the
proceeding would ‟reasonably likely have been different absent the errors.” Id. at 695. The
Court need not examine the question of whether counsel’s performance was deficient before
addressing the question of whether petitioner was prejudiced by counsel’s performance. The
Court may dispose of an ineffective assistance of counsel claim by finding that petitioner has
made an insufficient showing on either ground. Id. at 697.
Here, the undersigned finds that the state appellate court’s adjudication of petitioner’s
claims neither was contrary to nor involved an unreasonable application of Strickland and was
based on a reasonable determination of the facts in light of the record evidence.
First, petitioner has not demonstrated that his counsel acted either unreasonably or
prejudicially by failing to offer arguments for mitigation of the sentence at the resentencing
hearing. The Ohio Court of Appeals found that petitioner’s original trial counsel had “offered
mitigation at the first sentencing hearing in 1998,” and that the judge who considered that
evidence at the first hearing was the same person who presided over petitioner’s resentencing.
(See Doc. 9, Ex. 35, p. 4). As the state appellate court reasonably concluded, petitioner has not
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shown that his counsel at the resentencing hearing was ineffective given that the trial court had
already considered mitigation at the first hearing and petitioner had “failed to suggest any further
mitigating circumstances that counsel might have offered” on resentencing. (See id.).
Second, petitioner has not demonstrated that his counsel acted either unreasonably or
prejudicially by failing to argue at the resentencing hearing that the kidnapping and aggravated
robbery counts should be merged as allied offenses under Ohio Rev. Code § 2941.25. It appears
from the record that the argument was in fact raised by petitioner and rejected by the trial court at
the resentencing hearing. (See id., October 26, 2009 Hearing Tr. 3). Moreover, as discussed
above in addressing the underlying allied-offense claim alleged in Ground One of the petition, it
was reasonable for the state courts to conclude based on the circumstances presented in this case
that, pursuant to Ohio Rev. Code § 2941.25(B), a “separate animus” existed for kidnapping that
was sufficient to support petitioner’s convictions for both offenses. Therefore, as the Ohio Court
of Appeals reasonably determined in addressing petitioner’s corollary ineffective-assistance-ofcounsel claim, “any failure on the part of counsel to raise the issue [at the resentencing hearing]
was . . . inconsequential.” (Id., Ex. 35, p. 4). Indeed, given the trial court’s ruling on the issue at
the resentencing hearing, it is not reasonably likely that the result of the resentencing proceeding
would have been different if counsel, instead of petitioner, had presented the argument to the
court.
Accordingly, in sum, the undersigned concludes that petitioner procedurally defaulted
and has waived any claims of error on the part of his original trial counsel that were raised in his
application for delayed reopening of the appeal filed in September 2002 and on appeal from the
trial court’s denial of his state post-conviction petition filed in June 2005. Moreover, upon
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consideration of the merits of petitioner’s non-defaulted claims challenging the effectiveness of
petitioner’s counsel at the resentencing hearing held in October 2009, it was reasonable for the
Ohio Court of Appeals to conclude that petitioner was not denied the effective assistance of
counsel at that hearing. Therefore, petitioner is not entitled to habeas relief based on his claim in
Ground Two of petition that he was denied the effective assistance of trial counsel.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(Doc. 2) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the two grounds for
relief alleged in the petition, which were addressed on the merits herein, in the absence of a
substantial showing that petitioner has stated a “viable claim of the denial of a constitutional
right” or that the issues presented are “adequate to deserve encouragement to proceed further.”
See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893
& n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
In addition, a certificate of appealability should not issue to the extent petitioner has
alleged claims in Ground Two, which this Court has concluded are procedurally barred from
review based on petitioner’s procedural defaults in the state courts. Under the first prong of the
applicable two-part standard enunciated in Slack, 529 U.S. at 484-85, “jurists of reason” would
not find it debatable whether this Court is correct in its procedural rulings. 7

7

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in any defaulted claim for relief. See Slack, 529 U.S. at 484.

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3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, DENY
petitioner leave to appeal in forma pauperis upon any showing of financial necessity. See Fed.
R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TRENTON EDWARD POPE,
Petitioner

Case No. 1:11-cv-866

vs

Dlott, J.
Bowman, M.J.

WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

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