Smith v. Warden of Toledo Correctional Institution

Filing 80

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/15/2016. Signed by Magistrate Judge Michael R. Merz on 8/29/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CHRISTOPHER SMITH,
Petitioner,

:

- vs -

Case No. 1:12-cv-425
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Toledo Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Petitioner has
filed the Petition (ECF No. 1), Traverse (ECF No. 30), and Amended Traverse (ECF No. 63);
Respondent has filed an Answer/Return of Writ (ECF No. 12) and Supplemental
Answers/Returns of Writ (ECF Nos. 25 and 55). The Court heard oral argument which has been
transcribed (ECF No. 78) and both parties filed post-argument briefs (ECF Nos. 77, 78).
Smith pleads the following Grounds for Relief:
Ground One: A Brady due process violation and a Sixth
Amendment violation of Smith’s Right to trial by jury and to
confront all witnesses occurred when the State failed to disclose
the lab notes from the DNA tests conducted prior to trial. The
defense DNA expert’s testimony at the August 11, 2009 hearing
demonstrated the exculpatory nature of the lab notes, which were
specifically requested prior to trial yet never disclosed.
Supporting Facts:
PageID 29-36.

See Petition, ECF No. 1, Appendix F,

Ground Two: The trial court’s factual conclusions underlying the

1

decision to convict Smith and deny his Motion for New Trial
materially varied from the State’s theory enunciated the Indictment
and Bill of Particulars in Violation of Smith’s Fifth, Sixth, and
Fourteenth Amendment Rights and Article 1 Sections 10 and 14 of
the Ohio Constitution.
Supporting Facts:
PageID 36-40.

See Petition, ECF No. 1, Appendix F,

Ground Three: The trial court erred in violation of Smith’s due
process rights by sustaining his conviction against the manifest
weight of the evidence, and based on facts not in the record.
Supporting Facts: See Petition, ECF No. 1, Appendix F, PageID
40-43.
Ground Four: The trial court’s biased conduct denied Smith of
his Fifth, Sixth, and Fourteenth Amendment rights to due process
and a fair trial by an impartial judge.
Supporting Facts:
PageID 43-49.

See Petition, ECF No. 1, Appendix F,

Ground Five: In violation of Smith’s Fifth and Fourteenth
Amendment rights, the trial court used Smith’s decision not to
testify in his own defense against him by stating that the court
could not understand the defense’s theory without hearing Smith
testify.
Supporting Facts: See Petition, ECF No. 1, Appendix F, PageID
49.
Ground Six: The trial court violated Smith’s Sixth Amendment
right to confront all witnesses and evidence against him by
interjecting personal knowledge and facts not in the record as a
basis to vouch for the State’s key eyewitness, render the guilty
verdict, and sustain the conviction following Smith’s Motion for
New Trial and Hearing on same.
Supporting Facts: See Petition, ECF No. 1, Appendix F, PageID
49-50.
Ground Seven: Appellate counsel rendered ineffective assistance
in violation of Smith’s Sixth Amendment right by failing to
properly raise and exhaust the First, Second, Third, Fifth, and Sixth
Grounds for Relief presented in this petition.
2

Supporting Facts: See Petition, ECF No. 1, Appendix F, PageID
50.

Procedural History
Smith was originally indicted by the Hamilton County Grand Jury in 2007 on one count
of aggravated robbery in violation of Ohio Revised Code § 2911.01(A)(1) with specifications
(Count 1); robbery in violation of Ohio Revised Code § 2911.02(A)(2) (Count 2); and having
weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(2) (Count 3)
(Indictment, Return of Writ, ECF No. 12-1, PageID 159-62). On the State’s motion, the trial
court amended the Indictment by adding the word “recklessly” to Count Two. Id. at PageID 165.
Smith waived his right to a jury trial. Id. at PageID 192. Following a bench trial before Judge
Robert Ruehlman in 2008, Smith was found guilty as charged and sentenced to twenty-six years
imprisonment. Id. at PageID 193-95.
Following the verdict, Smith moved for a judgment of acquittal under Ohio R. Crim. P.
29 (Id. at PageID 196-205) and for a new trial pursuant to Ohio R. Crim. P. 33 (Id. at PageID
206-48). Judge Ruehlman denied both. Id. at 253-54.
Smith appealed raising four assignments of error:
1. The trial court erred in repeatedly interjecting and relying on its
own personal observations and memories of facts, distances and
locations, and in considering inadmissible other acts evidence as
substantive proof of guilt, all in violation of the 5th Amendment to
the Federal Constitution and Article I, Section 16 of the Ohio
Constitution.
2. The trial court erred to defendant’s prejudice when it entered
separate convictions and sentences for both aggravated robbery
and robbery from the same incident.

3

3. Defendant was denied the effective Assistance of counsel in
violation of the 6th Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution.
4. The trial court erred to defendant’s prejudice when it denied
counsel’s motions for a verdict of acquittal, and again when it
accepted and journalized verdicts of guilty which were not
supported by relevant and credible evidence.

(Appellant’s Brief, Return of Writ, ECF No. 12-1, PageID 256-75.) Smith had been represented
at trial by Attorney Michele Berry, who represents him in this Court. On direct appeal, however,
he was represented by Attorney Elizabeth Agar. Id. at PageID 275.
The First District found that Smith’s convictions for aggravated robbery and robbery
were for allied offenses of similar import, remanded for re-sentencing on one of those Counts,
and otherwise affirmed. State v. Smith, Case No. C-090645 (1st Dist. May 5, 2010)(unreported,
copy ECF No. 12-1, PageID 298-303.)
On remand, the aggravated robbery and robbery charges were merged and Smith was
resentenced to eighteen years imprisonment (Return of Writ, ECF No. 12-1, PageID 304-06).
Now represented by Attorney Michaela Stagnaro, Smith again appealed to the First District
(Notice of Appeal, ECF No. 12-1, PageID 307) raising two assignments of error:
1. The trial court erred as a matter of law by improperly sentencing
appellant.
2. Appellant was denied effective assistance of counsel in violation
of his constitutional rights thus prejudicing his right to a fair trial.
The First District again remanded for proper calculation and journalization of jail time
credit, but otherwise affirmed.

State v. Smith, Case No. C-100479 (1st Dist. Mar. 11,

2011)(unreported, copy at ECF No. 12-1, PageID 329-32).

4

On August 3, 2010, now represented by Assistant State Public Defender Craig Jaquith,
Smith moved to reopen his appeal under Ohio R. App. P. 26(B), raising the following as
assignments of error assertedly omitted as the result of ineffective assistance of appellate
counsel:
1. Christopher Smith’s convictions are against the manifest weight
of the evidence.
2. The trial court abused its discretion when it overruled the new
trial motion.
3. The conduct of the trial court during closing argument was
improper, and denied Mr. Smith his right to due process of law
guaranteed by the Fifth and Fourteenth Amendments.
(Application, ECF No. 12-1, PageID 334-46.) The First District found Smith had “failed to
demonstrate a genuine issue as to whether he has a colorable claim of ineffective assistance of
counsel on appeal” and denied the Application. State v. Smith, Case No. 090645 (1st Dist. Feb. 7,
2011)(unreported, copy at ECF No. 12-1, PageID 352-54).
Smith moved the First District to certify that its decision on the 26(B) Application
conflicted with decisions of the Van Wert and Highland County Courts of Appeals (Motion, ECF
No. 12-1, PageID 355-57). The First District summarily denied the Motion (Entry, ECF No. 211, PageID 375). Smith then appealed to the Ohio Supreme Court from denial of the 26(B)
Application, pleading two propositions of law:
I. When laboratory notes prepared by the State’s DNA analyst
contain information that tends to exculpate the defendant, and
inculpate a third party, due process requires that the notes be
provided to the defense during discovery.
II. A district court of appeals has jurisdiction to review a direct
appeal claim of actual judicial bias which is supported by evidence
in the record of the trial proceedings.

5

(Memorandum in Support of Jurisdiction, ECF No. 12-1, PageID 380.) The Ohio Supreme
Court dismissed the appeal as “not involving any substantial constitutional question. State v.
Smith, Case No. 2011-0476 (May 25, 2011)(unreported; copy at ECF No. 12-1, PageID 393).
Now again represented by Attorney Michele Berry, Smith filed a petition for postconviction relief under Ohio Revised Code § 2953.21 (ECF No. 12-1, PageID 394-424). Judge
Ruehlman denied the petition (Entry, ECF No. 12-1, PageID 425; Findings of Fact, ECF No. 121, PageID 426-28). Smith appealed, raising the following assignments of error:
1. The trial court abused its discretion by denying Smith’s
postconviction petition, which presented constitutional errors
impacting Smith’s substantial rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution and their
related counterparts in the Ohio Constitution.
Issue Presented for Review: Whether a trial court abuses its
discretion when it denied [sic] a post-conviction petition that
presents a multitude of constitutional errors that prevented the
defendant-petitioner from fully confronting the state’s
evidence and presenting at trial exonerative DNA evidence
against which: (1) conclusively inculpates an alternate suspect;
and (2) undermines the evidence against the defendantpetitioner, and thus, renders the verdict unworthy of
confidence.
First Ground for Relief: A Brady due process
violation and a Sixth Amendment violation of
Smith’s Right to trial by jury and to confront all
witnesses occurred when the State failed to disclose
the lab notes from the DNA tests conducted prior to
trial. The defense DNA expert’s testimony at the
August 11, 2009 hearing demonstrated the
exculpatory nature of the lab notes, which were
specifically requested prior to trial yet never
disclosed.
Second Ground for Relief: The trial court’s factual
conclusions underlying the decision to convict
Smith and deny his Motion for New Trial materially
varied from the State’s theory enunciated the
Indictment and Bill of Particulars in Violation of
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Smith’s Fifth, Sixth, and Fourteenth Amendment
Rights and Article 1 Sections 10 and 14 of the Ohio
Constitution.
Third Ground for Relief: The trial court erred in
violation of Smith’s due process rights by
sustaining his conviction against the manifest
weight of the evidence, and based on facts not in the
record.
Fourth Ground for Relief: The trial court’s biased
conduct denied Smith of Fifth, Sixth, and
Fourteenth Amendment right to due process and a
fair trial by an impartial judge.
Fifth Ground for Relief: In violation of Smith’s
Fifth and Fourteenth Amendment rights, the trial
court used Smith’s decision not to testify in his own
defense against him by stating that the court could
not understand the defense’s theory without hearing
Smith testify.
Sixth Ground for Relief: The trial court violated
Smith’s Sixth Amendment right to confront all
witnesses and evidence against him by interjecting
personal knowledge and facts not in the record as a
basis to vouch for the State’s key eyewitness, render
the guilty verdict, and sustain the conviction
following Smith’s Motion for New Trial and
Hearing on the same.
Seventh Ground for Relief: Christopher Smith is
entitled
to
postconviction
relief
because
incarcerating him, an actually innocent person,
violates his Eighth Amendment right to equal
protection and to be free from cruel and unusual
punishment and his Fourteenth Amendment right to
due process.
2. Appellate counsel rendered ineffective assistance in violation of
Smith’s Sixth Amendment right by failing to properly raise and
exhaust the First, Second, Third, Fifth, Sixth, and Seventh Grounds
for Relief presented in Smith’s June 15, 2012 post-conviction
petition.

7

Issue Presented for Review: Whether ineffective
assistance of appellate counsel attaches when counsel
fails to raise all constitutional errors that rendered
defendant’s trial fundamentally unfair and which resulted
in a verdict unworthy of confidence.
3. Ohio’s procedure for raising delayed claims of ineffective
assistance of appellate counsel is unconstitutional as it deprives a
defendant of due process and equal protection by embedding
meritorious claims for relief in additional layers of deference to the
State, effectively precluding a complete merits review of the issues
appellate counsel failed to raise.
Issue Presented for Review: Whether the procedure for
raising delayed claims of ineffective assistance of
appellate counsel, established in Ohio App. R. 26(B)
deprives a defendant of the due process and equal
protection by embedding meritorious claims for relief in
additional layers of deference to the State, thereby
effectively precluding a complete merits review of issues
appellate counsel failed to raise.

(Appellant’s Brief, ECF No. 25-1, PageID 1699-1701.) The First District affirmed denial of the
post-conviction petition. State v. Smith, Case No. 120491 (1st Dist. Apr. 24, 2013)(unreported,
copy at ECF No. 25-1, PageID 1749 et seq.) Smith appealed, but the Ohio Supreme Court
declined to exercise jurisdiction. State v. Smith, 136 Ohio St. 3d 1475 (2013).
While Smith’s petition for post-conviction relief was pending, he filed a second Rule
26(B) Application for Reopening raising seven assignments of error assertedly omitted as a
result of ineffective assistance of appellate counsel (ECF No. 25-1, PageID 1778-1811). The
First District summarily denied the Application (ECF No. 25-1, PageID 1818). Smith appealed
to the Ohio Supreme Court which again declined to exercise appellate jurisdiction. State v.
Smith, 134 Ohio St. 3d 1471 (2013).
Smith’s habeas petition had been filed then stayed so he complete his state court
proceedings. On notice that those proceedings were complete, Judge Spiegel reopened the case
8

(ECF No. 24). Shortly thereafter the reference was transferred to the undersigned.

Analysis

The facts of the crime in suit are recited as follows by the First District on direct appeal:
One afternoon, a man wearing a wig and sunglasses entered a
Cincinnati Bell Wireless store brandishing a gun. He ordered the
patrons to the floor and demanded money from the store manager.
The manager opened the cash register, and the gunman fled with
the store's till.
Thomas Moore was driving by the store immediately before the
robbery. He saw the man put on the wig and sunglasses and enter
the store. With his suspicion aroused, Moore stopped his car and
observed the store. He saw the man emerge from the store and get
into a blue Ford Expedition. Moore followed the Expedition and
saw the man whom he would ultimately identify as Smith sitting in
the passenger side of the vehicle. When Moore saw Smith, he was
no longer wearing the·disguise.
Soon after the robbery, police found the Expedition in the vicinity
of Smith's residence. Near the vehicle, they found a wig,
sunglasses and a black T-shirt. The Expedition's license plate led
the police to one of Smith's girlfriends, who testified that she had
given the vehicle to Smith.
On the afternoon of the robbery, Smith, a parolee, cut off his
electronic monitoring ankle bracelet and absconded. Cellular
telephone records established that he had told another girlfriend to
report that the Expedition had been stolen.
The theory of the defense was that Charles Allen had borrowed the
car and had committed the robbery without Smith's participation.
Deoxyribonucleic acid (DNA) taken from the wig, sunglasses, and
T-shirt revealed a match with Allen's DNA, whereas none of
Smith's DNA was discovered. The defense also offered the out-ofcourt statements of Allen suggesting that Smith had not been
involved.

9

In rebuttal, the state presented the testimony of Allen, who testified
that he had driven Smith from the crime scene in the Expedition.
(ECF No. 12-1, PageID 298-99.)

Ground One: Failure to Disclose DNA Lab Notes

In his First Ground for Relief, Smith claims his Fourteenth Amendment due process
rights recognized in Brady v. Maryland, 373 U.S. 83 (1963), and his Sixth Amendment rights to
trial by jury and to confront the witnesses against him were violated by the State’s failure to
disclose laboratory notes relating to DNA testing.
Prior to trial, the State submitted the wig, sunglasses, and black T-shirt recovered near
Smith’s residence for DNA testing. That testing excluded Smith as a contributor to any of the
recovered DNA, but identified Charles Allen. Smith’s theory is that with the laboratory notes,
direct examination of a defense DNA expert and cross-examination of the State’s DNA expert
would have shown how strongly associated with these three items Allen was, thereby
undercutting the State’s theory that Allen’s DNA arose from his mere touching of the items.

Procedural Default Defense

The Warden asserts this claim is procedurally defaulted because Smith never presented it
to the Ohio Supreme Court on direct appeal (Return, ECF No. 12, PageID 100).
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:

10

In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413

11

(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court
on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(citations omitted). “Even if the state court failed to reject a claim on a procedural
ground, the petitioner is also in procedural default ‘by failing to raise a claim in state court, and
pursue that claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d
423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting
O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808
(6th Cir. 2004) ("A federal court is also barred from hearing issues that could have been raised in
the state courts, but were not[.]") The corollary to this rule is that where a petitioner raised a
claim in the state court but in violation of a state's procedural rule, a state court must expressly
reject the claim on that procedural ground for a federal court to deem the claim defaulted. See
Williams, 460 F.3d at 806 (noting that a state court's expressed rejection of a petitioner's claim on
procedural basis and petitioner's complete failure to raise a claim in state court are the two ways
a claim can be in procedural default).
Smith’s response to the procedural default defense interleaves arguments about
exhaustion and procedural default (Traverse, ECF No. 30, PageID 1908-17). The State has not
raised a lack of exhaustion defense, so the Court pretermits any discussion of exhaustion.
As to procedural default, Smith asserts all of his “claims are properly before this Court
because Smith pursued his state remedies within the procedures available to present his
ineffective assistance of appellate counsel claims, which consume1 the underlying substantive
claims.” (Traverse, ECF No. 30, PageID 1910.) This response is unavailing for two independent
1

The meaning of the word “consume” in this context makes no sense to the Court. The Court will assume that
counsel instead intended the word “subsume.”

12

reasons.
First of all, even a properly filed Application to Reopen does not preserve the underlying
assignments of error for federal habeas review. An Ohio App. Rule 26(B) application preserves
for habeas review only the ineffective assistance of appellate counsel claims, not the underlying
substantive claims. Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), citing Lott v.
Coyle, 261 F.3d 594, 612 (6th Cir. 2001). “The Lott court explained that permitting an Ohio
prisoner to raise a substantive claim in a Rule 26(B) motion "would eviscerate the continued
vitality of the procedural default rule; every procedural default could be avoided, and federal
court merits review guaranteed, by claims that every act giving rise to every procedural default
was the result of constitutionally ineffective counsel." Id.
Secondly, Smith’s second “Delayed Application to Reopen” was entirely improper under
Ohio law and did not preserve even the ineffective assistance of appellate counsel claims made
in it for review, much less the underlying substantive assignments of error. Ohio allows an
individual defendant only one 26(B) application. Ohio App. R. 26(B) makes no provision for
successive applications. State v. Richardson, 74 Ohio St. 3d 235 (1996). Indeed, “there is no
right to file successive applications for reopening” under App. R. 26(B). State v. Twyford, 106
Ohio St. 3d 176 (2005), quoting State v. Williams, 99 Ohio St. 3d 179, ¶ 12. Once the issue of
ineffective assistance has been raised and adjudicated, res judicata bars its relitigation. State v.
Cheren, 73 Ohio St. 3d 137 (1995), following State v. Perry, 10 Ohio St. 2d 175 (1967).
Smith confuses this issue by asserting there are two “types” of applications for reopening
a direct appeal, one filed within ninety days from judgment and one – the “delayed” type – filed
later. Not so. Ohio has one “type” of 26(B) application which must be filed within ninety days
of judgment. The ninety day deadline can be excused upon a showing of good cause for the

13

delay. But it is by no means automatic and failure to file within ninety days constitutes a
procedural default which the Sixth Circuit has recognized as an adequate and independent
ground of state court decision. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008); Scuba v Brigano,
527 F.3d 479, 488 (6th Cir. 2007)(distinguishing holding in capital cases); Monzo v. Edwards,
281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v.
Russell, 342 Fed. App’x. 998, 2009 WL 2586439 (6th Cir. 2009).
Smith argues this Court must treat the First District’s summary denial of the second
26(B) application as a decision on the merits (Traverse, ECF No. 30, PageID 1913, citing
Harrington v. Richter, 562 U.S. 86 (2011)). But even Smith’s quotation from Harrington belies
that conclusion. The Supreme Court said, as Smith quotes it, “[w]hen a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.” 562 U.S. at 99. But here there are two state-law procedural principles
which fully explain the summary dismissal – Ohio’s disallowance of multiple 26(B) applications
and the delay in filing without a sufficient showing of good cause.
As an alternative excuse for procedural default of his ineffective assistance of appellate
counsel claims, Smith relies on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d
272 (2012), where the Supreme Court held:
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome
14

the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).
132 S. Ct. at 1318-1319.

In Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d

1044 (2013), the Court extended Martinez to the Texas system. However, the Sixth Circuit has
avoided deciding whether Martinez and Trevino apply to the Ohio system for litigating
ineffective assistance of trial counsel claims. McGuire v. Warden, 738 F.3d 741, 751-52 (6th Cir.
2013); Henness v. Bagley, 766 F.3d 550 (6th Cir. 2014); Williams v. Mitchell, 792 F.3d 606 (6th
Cir. 2015); Landrum v. Anderson, 813 F.3d 330, 336 (6th Cir. 2016). Even if those cases do
apply to the Ohio system, they are available only to raise ineffective assistance of trial counsel
claims, not ineffective assistance of appellate counsel claims. See also Hodges v. Colson, 727
F.3d 517, 531 (6th Cir. 2013) (holding Martinez does not permit ineffective assistance of counsel
on post-conviction to excuse default on a claim of ineffective assistance of appellate counsel.)
Finally, Smith claims his actual innocence2 excuses his procedural default of Ground One
(Traverse, ECF No. 30, PageID 1943-45). He refers to the “post-trial DNA discovery” as the
new evidence on which he relies. Id.
The Supreme Court’s most recent decision of the actual innocence gateway appears in
McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013).

[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as
2

Smith alternates between referring to the Schlup “gateway” as creating either one exception to procedural default
or two, actual innocence and miscarriage of justice. See, e.g., PageID 1943 (“exceptions” but also on the same page
“exception”; “Schlup actual innocence gateway and/or the miscarriage of justice exception.”) The “miscarriage of
justice” standard, which is sometimes used synonymously with “actual innocence,” requires some showing of actual
innocence. In other words, they are the same standard, not alternative ways of avoiding a procedural default. Dretke
v. Haley, 541 U.S. 386, 393 (2004); Calderon v. Thompson, 523 U.S. 538 (1998).

15

it was in Schlup and House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable actualinnocence gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513
U. S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U.
S., at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making
an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U. S., at 332,
115 S. Ct. 851, 130 L. Ed. 2d. 808.
Id. at 1928.
The Supreme Court in Schlup described the quality of the evidence required: "To be
credible, such a claim requires petitioner to support his allegations of constitutional error with
new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence -- that was not presented at trial." Schlup v. Delo, 513 U.S.
298, 324 (1995); see also Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).
In the section of the Traverse dealing with Schlup, counsel refers the Court to her
“Complete Statement of Facts” for a description of the new evidence (Traverse, ECF No. 30,
PageID 1943). The Complete Statement portion appears at PageID 1863-1900. That thirtyseven page statement presents Smith’s theory of the facts, interweaving factual conclusions
supported by post-trial evidence with evidence from the trial. The only places where new
evidence3 is referenced are:
PageID 1869 where the lab notes from the county DNA testing and the new DNA
test results on the sunglasses are mentioned.
3

“New evidence” for Schlup purposes is merely evidence not presented at trial, regardless of when it was
discovered. Although there is a circuit split on the question, the Sixth Circuit has at least suggested that “newly
presented” is the proper test. Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012), citing Souter v. Jones, 395
F.3d 577, 596 n. 9 (6th Cir. 2005); Ogle v. Mohr, 2016 U.S. Dist. LEXIS 89701 (S.D. Ohio 2016)(Sargus, Ch. J.)

16

PageID 1870 recounting the post-trial testimony of defense DNA expert Julie
Heinig
There is an entire volume of post-trial testimony about the cash drawer from Cincinnati
Bell and whether it was tested for fingerprints and DNA (ECF No. 12-10, PageID 1464-1503).
Evidence about the cash drawer is not offered to show actual innocence. Rather, the testimony
of Dr. Heinig and the exhibits relevant to her testimony are at Volume X of the transcript (ECF
No. 12-11, PageID 1523, et seq.)
The new evidence presented4 does not persuade this Court that no rational juror would
have convicted Smith had the new evidence been presented with the evidence actually heard at
trial. Already at trial, Smith had been excluded as a contributor of DNA on the wig and T-shirt
and Charles Allen identified as a contributor. The new evidence from Dr. Heinig, interpreting
the lab notes, more strongly identifies Allen as a contributor. Allen was a trial witness for the
State who denied any contact with the wig. The notion that a somewhat firmer scientific basis
for identifying Allen with the disguise would have shifted the balance enough for an acquittal is
speculative. A rational juror would have heard scientific proof that Allen’s DNA was on the wig
and Smith’s was not.

While the additional scientific evidence is perhaps not technically

cumulative, it is unlikely to have persuaded a rational juror to have changed his or her verdict.5
In her Complete Statement of Facts, Smith’s counsel argues the new evidence interwoven
with her interpretation of the trial evidence. This is completely appropriate because a habeas

4

The Court asked the parties to brief the question of whether Smith’s failure to testify in this proceeding in support
of his claim of actual innocence could be used against him. The post-argument briefs do not answer this question to
the Court’s satisfaction. However, Smith’s silence on the Schlup issue has not been considered by the Court in any
way.
5
We know that the new evidence did not persuade the actual trier of fact, Judge Ruehlman, that Smith was innocent,
but the test under Schlup is based on a hypothetical rational juror, not a judge as trier of fact.

17

court considering a Schlup claim, is to weigh all the evidence together in arriving at its
conclusion. However, the Court is not bound to accept a petitioner’s counsel’s characterizations
of the evidence. For example, counsel says the vehicle used in the crime could be “indirectly
traced” to Smith (Traverse, ECF No. 30, PageID 1867). The actual trial testimony from the
registered owner of the car, indisputably one of Smith’s girlfriends, is that “she frequently
allowed Smith to use the Expedition for extended periods of time.” Id.
Smith has not established an actual innocence excuse for his procedural default of
Ground One which should therefore be dismissed with prejudice.

Ground Two: Variance Between Trial Judge’s Findings and the State’s Theory of the Case

In his Second Ground for Relief, Smith argues that the “factual conclusions underlying
the judge’s decision to convict Smith and deny his Motion for New Trial fatally varied from the
theory enunciated in the State’s Indictment and Bill of Particulars.” Smith contends this variance
violated Smith’s Fifth, Sixth, and Fourteenth Amendment rights to
due process, to fully confront the State’s witnesses and evidence,
to full notice of the charges against him, to present a complete
defense, and to a fair trial wherein a conviction will result only
from proof beyond a reasonable doubt of the charges set forth in
the Indictment and particularized in the Bill of Particulars.
(Petition, ECF No. 1-1, Appendix F, PageID 36.)
As evidence of Judge Ruehlman’s “factual conclusions,” Smith adverts to the judge’s
comments at the new trial hearing which are transcribed at ECF No. 12-11, PageID 1580, et seq.
This Court would note that these comments do not constitute “findings.”

Indeed, Judge

Ruehlman said he would not decide the new trial motion that day, but would look at what Smith
had submitted “and then make a decision.” Ultimately, as noted above, he entered a summary
18

denial of the motion for new trial without any opinion or findings of fact (ECF No. 12-1, PageID
254).
Respondent asserts merits consideration of Ground Two is barred by the same procedural
default which bars Ground One. Petitioner responds in part with the same asserted exceptions to
procedural default as are argued with respect to Ground One (Traverse, ECF No. 30, PageID
1908-35). They are unavailing for the same reasons set forth with respect to Ground One.
Separately from the arguments as to Ground One, Smith argues Ground Two is “properly
before this Court pursuant to the ‘unavoidably prevented’ vehicle of [Ohio Revised Code] §
2953.21.”6 (Traverse, ECF No. 30, PageID 1935.)
Smith, through present counsel, filed his post-conviction petition on June 15, 2012 (ECF
No. 12-1, PageID 424). Judge Ruehlman in dismissing the petition found that claims one
through seven “are based on matters in the existing record, could have been raised at trial, and
most of which have been raised on appeal. These claims are therefore barred by res judicata.”
(ECF No. 12-1, PageID 427, citing State v. Cole, 2 Ohio St. 3d 112 (1982), and State v. Perry, 10
Ohio St. 2d 175 (1967)). He also found the eighth claim for relief for ineffective assistance of
appellate counsel was “not a matter properly before this Court.” Id., citing State v. Murnahan, 63
Ohio St. 3d 60 (1992), and State v. Davis, 119 Ohio St. 3d 422 (2008). He says nothing about
the timeliness of the petition.
On appeal, however, the First District concluded
But most significant, and dispositive here, is the fact that Smith
failed to satisfy either the time restrictions of R.C. 2953.21(A)(2)
or the jurisdictional requirements of R.C. 2953.23. Therefore, the
postconviction statutes did not confer upon the common pleas
court jurisdiction to entertain Smith's petition on the merits. See
R.C. 2953.23(A).
6

The “unavoidably prevented” language does not appear in Ohio Revised Code “§ 2953.21(b)” as asserted by
counsel. Indeed. no such statute exists. Instead, the language is found in Ohio Revised Code § 2953.23(A)(1)(a).

19

Smith’s asserts this ruling was plain error because he “met the timing and jurisdictional
elements of Ohio Revised Code § 2953.21.” (Traverse, ECF No. 30, PageID 1935.) Despite that
confident assertion, Smith’s counsel cites no Ohio law for the propositions that (1) when a
petitioner is “unavoidably prevented” from filing a post-conviction petition on time, he can still
raise claims barred by Ohio’s criminal res judicata doctrine or (2) that a post-conviction
petitioner can ever raise ineffective assistance of appellate counsel claims in a 2953.21 petition.
On the latter point, Murnahan, cited by Judge Ruehlman, is directly in point.
Smith makes at several points the assertion that ineffective assistance of appellate counsel
will excuse a procedural default, e.g., Traverse, ECF No. 30, PageID 1939. But the Supreme
Court has held that ineffective assistance of appellate counsel will only excuse a procedural
default if the ineffective assistance of appellate counsel claim is not itself procedurally defaulted.
Edwards v. Carpenter, 529 U.S. 446 (2000). All of the claims of ineffective assistance of
appellate counsel made in the Delayed 26(B) Application are procedurally defaulted by Smith’s
failure to include them in his first 26(B) Application.
Ground Two is therefore procedurally defaulted and should be dismissed with prejudice.

Ground Three: Manifest Weight of the Evidence

In his Third Ground for Relief, Smith asserts his convictions are against the manifest
weight of the evidence. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939
(1983).

A weight of the evidence claim is not a federal constitutional claim. Johnson v.
20

Havener, 534 F.2d 1232 (6th Cir. 1986). Smith’s Third Ground for Relief is therefore not
cognizable in these proceedings and should be dismissed on that basis.

Ground Four: Judge Ruehlman’s Biased Conduct

In his Fourth Ground for Relief, Smith argues Judge Ruehlman was biased against him
and this denied him his constitutional rights to due process and a fair trial.
Ground Four is procedurally defaulted on the same basis as Grounds One and Two and
should be dismissed with prejudice on that basis.

Ground Five: Violation of Smith’s Privilege Against Self-Incrimination

In his Fifth Ground for Relief, Smith claims Judge Ruehlman used his decision not to
testify against him in violation of his privilege against self-incrimination when the judge said he
could not understand the defense theory without hearing Smith testify.
Ground Five is procedurally defaulted on the same basis as Grounds One, Two, and Four
and should be dismissed with prejudice on that basis.

Ground Six: Violation of Confrontation Right

In his Sixth Ground for Relief, Smith claims Judge Ruehlman violated his rights under
the Confrontation Clause by interjecting personal knowledge and facts not supported by evidence
in the record to make and then sustain his verdict.

21

Ground Six is procedurally defaulted on the same basis as Grounds One, Two, Four, and
Five and should be dismissed on that basis.

Ground Seven: Ineffective Assistance of Appellate Counsel

In his Seventh Ground for Relief, Smith asserts he received constitutionally ineffective
assistance of appellate counsel when his appellate attorneys failed to properly raise the
constitutional claims he makes in Grounds One, Two, Three, Five, and Six (Petition, ECF No. 1,
Appendix F, PageID 50).
Respondent argues that Ground Seven is in part procedurally defaulted because Smith
only included three omitted assignments of error in his Application to Reopen, not including
habeas Grounds Two, Five, and Six (Return, ECF No. 12, PageID 110). Of the claims presented
to the court of appeals, only Ground One and a claim that Judge Ruehlman was biased were
carried forward in the appeal to the Ohio Supreme Court, such that only a claim of ineffective
assistance of appellate counsel for failure to present Ground One is preserved for merit review in
this Court. Id. at PageID 112.
In the Traverse Smith makes no response to the claim that most of his ineffective
assistance of appellate counsel are procedurally defaulted by failure to bring them to the Ohio
Supreme Court, instead arguing about the efficacy of presenting them in the Delayed 26(B)
Application or the Petition for Post-Conviction Relief. Because Ohio law requires ineffective
assistance of appellate counsel claims to be brought in a petitioner’s first and only application for
reopening the direct appeal, the Court finds all of Ground Seven is procedurally defaulted except
the claim that appellate counsel was ineffective for failing to present Ground One.

22

The preserved ineffective assistance of appellate counsel claim was decided on the merits
by the First District as follows:
In his application, Smith challenges his appellate counsel's
effectiveness in advancing his assignment of error challenging the
balance struck by the trial court in weighing the evidence adduced
in support of his convictions. Counsel, he insists, should have
brought to this court's attention allegedly self-incriminating out-ofcourt statements made by the state's rebuttal witness during
surreptitiously recorded conversations with Smith and Smith's
brother. But, as Smith acknowledges, these statements were a
featured part of the defense's case. And this court's mandate in
addressing a weight-of-the-evidence challenge includes
review[ing] the entire record [footnote omitted]. In the absence of
some demonstration that appellate counsel's omission somehow
caused this court to neglect its mandate to "review the entire
record," we cannot say that counsel performed deficiently in
arguing Smith's weight-of-the-evidence challenge.
Smith also asserts that appellate counsel was ineffective in failing
to assign as error the overruling of his Crim.R. 33 motion for a
new trial. But to the extent that his new-trial motion was based on
newly discovered evidence, the trial court cannot be said to have
abused its discretion in overruling it, [footnote omitted] because
the record does not disclose a strong probability that the newly
discovered evidence would have changed the outcome if a new
trial had been granted. [footnote omitted] Nor did the court abuse
its discretion in denying a new trial on the ground of prosecutorial
misconduct in failing to disclose to the defense the lab notes
underlying the county's DNA-test results. [footnote omitted]
Nondisclosure of the lab notes did not violate rights secured to
Smith by the Due Process Clause of the Fourteenth
Amendment,[footnote omitted] because the undisclosed evidence
was not "material" in that it could not "reasonably be taken to put
the whole case in such a different light as to undermine confidence
in the verdict(s].'' [footnote omitted] And nondisclosure did not
deny Smith his Sixth Amendment right to confront the witnesses
against him, because the county crime-lab serologist who had
generated the DNA-test report testified at trial. [footnote omitted]
Thus, because the proposed assignment of error would not have
presented a reasonable probability of success if it had been
advanced on appeal, we cannot say that appellate counsel was
ineffective in failing to submit it.
State v. Smith, Case No. C-090645 (1st Dist. Feb. 7, 2011)(unreported; copy at ECF No. 12-1,
23

PageID 352-54.)
Because this decision from the First District is the last explained decision from the Ohio
courts, it is the decision this Court reviews, rather than the unexplained denial of consideration
on appeal by the Ohio Supreme Court. Ylst v. Nunnemaker, 501 U.S. 797 (1991).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
A criminal defendant is entitled to effective assistance of counsel on appeal as well as at
trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey,
469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636
(6th Cir. 2008). The Strickland v. Washington effective assistance of counsel test applies as well
to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776
(1987).
To evaluate a claim of ineffective assistance of appellate counsel, then, the court must
assess the strength of the claim that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th
Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise
an issue on appeal amounts to ineffective assistance only if a reasonable probability exists that
inclusion of the issue would have changed the result of the appeal. Id., citing Wilson. If a
reasonable probability exists that the defendant would have prevailed had the claim been raised
on appeal, the court still must consider whether the claim's merit was so compelling that the

24

failure to raise it amounted to ineffective assistance of appellate counsel. Id., citing Wilson. The
attorney need not advance every argument, regardless of merit, urged by the appellant. Jones v.
Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.") Effective appellate advocacy is rarely
characterized by presenting every non-frivolous argument which can be made. Joshua v. DeWitt,
341 F.3d 430, 441 (6th Cir. 2003); Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert.
denied, 544 U.S. 1003 (2005); see Smith v. Murray, 477 U.S. 527 (1986). However, failure to
raise an issue can amount to ineffective assistance. McFarland v. Yukins, 356 F.3d 688 (6th Cir.
2004), citing Joshua, 341 F.3d at 441; Lucas v. O’Dea, 179 F.3d 412, 419 (6th Cir. 1999); and
Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999).
The First District applied the Strickland v. Washington test, as required by Smith and
Burger, supra. It found the omitted assignments of error would not have changed the result of
the appeal if they had been raised. This Court concludes the First District’s decision was not an
objectively unreasonable application of Strickland.

Smith’s claim in his Application for

Reopening was not that the manifest evidence assignment of error was not raised, but that
appellate counsel provided ineffective assistance by not arguing certain evidence related to
Charles Allen’s rebuttal testimony (See Application, ECF No. 12-1, PageID 335-36). Smith’s
Brady claim about the DNA lab notes is not particularly persuasive for reasons given above: the
DNA from the wig and the T-shirt excluded Smith and included Allen; the lab notes might have
made it possible to strengthen that conclusion, but not enough to make a difference in the verdict.
Because the First District’s decision of Smith’s ineffective assistance of appellate counsel
claims is neither contrary to nor an objectively unreasonable application of Strickland, it is

25

entitled to deference by this Court under 28 U.S.C. § 2254(d)(1). Therefore Smith’s Seventh
Ground for Relief should be dismissed with prejudice on the merits.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

August 29, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
26