Rarden v. Warden, Warren Correctional Institution

Filing 15

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Fourth Ground for Relief in Case No. 1:12-cv-756 be TRANSFERRED to the Sixth Circuit for a determination of whether it may proceed and that the remaining Grounds for Relief be DISMI SSED 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. Objections to R&R due by 1/3/2014. Signed by Magistrate Judge Michael R Merz on 12/17/2013. Associated Cases: 1:12-cv-00660-MRB-MRM, 1:12-cv-00756-MRB-MRM (kpf1)

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

:

- vs -

Case No. 1:12-cv-660/1:12-cv-756
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Lonnie Rarden brought this case pursuant to 28 U.S.C. § 2254 for habeas
corpus relief from his March 2007, conviction in the Butler County Common Pleas Court and
subsequent sentence to a term of imprisonment in Respondent’s custody. Rarden pleads the
following ground for relief in Case No. 1:12-cv-660:
Ground One: The trial court’s sentence was void, therefore the
trial court must conduct a complete de novo sentence hearing.
Supporting Facts: When the trial court sentenced me on March
21, 2007, the trial court failed to properly impose post release
control. On March 26, 2010, I filed a pro se motion requesting that
the trial court re-sentence me. On April 7, 2010, the trial court
tried to simply fix the flawed portion of post release control instead
of conducting a complete de novo re-sentencing hearing.

(Petition in 1:12-cv-660, Doc. No. 1, PageID 5.)
In Case No. 1:12-cv-756, Rarden pleads the following grounds for relief:
Ground One: Appellate counsel was ineffective when he told
Petitioner that it [he] was responsible for filing a subsequent pro se
appeal concerning fines and court cost imposed.
1

Supporting Facts: Petitioner was originally sentenced in the
above captioned case on March 22, 2007. At that sentencing
hearing, the trial court entered in its Judgment of Conviction Entry
that Petitioner was to pay all court cost and fines imposed but,
failed to state on the record at that sentencing hearing that
Petitioner was ordered to pay fines and court cost. On March 26,
2010, Petitioner filed a pro se motion to have the trial court resentence him for failing to to [sic] notifing him of Post Release
Control. On April 14, 2010, the trial court conducted a de novo
sentencing hearing. At that sentencing hearing, the trial court
AGAIN, failed to impose court cost or fines in the instant case but
journalized that it did in fact notify Petitioner that he was ordered
to pay court cost and fines in the instant case.
When Petitioner's Appellate Counsel contacted him in regards as to
what issues that petitioner wanted him, (Mr. Modderman), to raise
on Appeal. Petitioner wrote Mr. Modderman and advised him that
he wanted him to raise as one of his issues the fact that the trial
court stated in its journal entry, that it notified the petitioner that it
was imposing fines and court cost but, on the record the trial court
did not notify the petitioner that it was imposing any fines or court
upon him. Mr. Modderman wrote petitioner back saying that this
issue was a civil matter and if he wished to address this issue that
he would have to hire another attorney or appeal it in pro se.
Ground Two:
negotiations.

A trial court shall not participate in plea

Supporting Facts: Appellate Counsel in the instant case failed to
raise in his merit brief that on March 7, 2007, at a pre-trial hearing,
that if there were to be any discussions about any plea agreement
that they should be done on the record since Petitioner was
proceeding in pro se. But on March 16, 2007 the trial court sent
Defense Attorney David Brewer over to the Butler County Jail to
see if Petitioner would accept a ten year prison sentence. The trial
court also told Mr. Brewer to advise Petitioner, that if did not
accept the ten year deal that the court would impose the maximum
sentence upon him. Petitioner called the trial court judge out on
this in his opening statements to the jury. The trial court or the
prosecution did not object to this assertion.
Ground Three: A Defendant is entitled to have a trial court
instruct a jury on lesser included offenses if he has proven to the
court and jury that he is not guilty of the charges he is being tried
on.

2

Supporting Facts: Petitioner's Appellate Counsel failed to raise
in his merit brief that on February 16, 2007 , Petitioner filed a pro
se motion requesting that the trial court instruct the jury on lesser
included offense instructions if he was entitled to such instructions.
The trial court deferred petitioner's request until the conclusion of
the trial. At the conclusion of the trial on March 22, 2007,
petitioner again requested that the trial court instruct the jury on
lesser included offenses but, the trial court refused to instruct the
jury, citing that petitioner waited too late to instruct the jury and he
(the judge) was not going to re-type another set of jury
instructions. The court did not give any other reasons as to why
petitioner was not ent1tled.
Ground Four: Appellant/Petitioner was entitled to the effective
assistance of counsel on FIRST direct appeal.
Supporting Facts: Petitioner was entitled to the effective
assistance of appellate counsel on his first direct appeal (CA200703-0077). Petitioner's Appellate Counsel in the instant case was
ineffective for failing to raise the fact that Petitioner was the one
who discovered that the trial court fail to properly notify that
petitioner of Post Release Control, and that it was the petitioner in
pro se, made the trial court fix it by conducting a de novo
sentencing hearing.
(Petition in 1:12-cv-756, Doc. No. 1, PageID 5-10.)
After this second Petition was filed, Magistrate Judge Bowman ordered the case
consolidated and all future filings to be made under Case no. 1:12-cv-660 (Doc. No. 2). All
further references herein will therefore be made to the docket entries and PageID numbers under
that case heading. This case was transferred to Magistrate Judge Merz on December 11, 2013
(Doc. No. 14).

Procedural History

In August and September 2006, the Butler County Grand Jury indicted Rarden on one
count of escape, one count of retaliation, two counts of complicity to perjury, one count of
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complicity to tampering with evidence, one count of menacing by stalking, and seventeen counts
of violating a protective order (Return of Writ, Doc. No. 7, Exhibits 1 & 2). On Rarden’s
request, he was permitted to proceed pro se with attorney David Brewer acting as stand-by
counsel. The trial jury convicted Rarden on all counts and he was sentenced to the prison term
he is now serving.1
Represented by new counsel, Rarden appealed to the Twelfth District Court of Appeals
which affirmed the conviction. State v. Rarden, Case No. CA2007-03-077 (Ohio App. 12th Dist.
Apr. 21, 2008)(unreported, copy at Return of Writ, Doc. No. 7, Exhibit 21, PageID 379-382).
The Ohio Supreme Court declined jurisdiction over a subsequent appeal.
On May 6, 2009, Rarden filed a Petition for Writ of Habeas Corpus in this Court pleading
seven grounds for relief as follows:
GROUND ONE: The trial
constitutional right to counsel.

court

violated

petitioner’s

GROUND TWO: The trial court denied petitioner access to a law
library to prepare for his trial, while being incarcerated.
GROUND THREE: The trial court denied petitioner due process
rights to discovery.
GROUND FOUR: The trial court’s sentence is contrary to law; it
violates state and federal constitution as well as the Ohio Revised
Code.
GROUND FIVE: A trial court shall not participate in a plea
bargain.
GROUND SIX: Witness misconduct.
GROUND SEVEN: The trial court denied petitioner his right for
the trial court to instruct jury to lesser included offenses.

1

The Return notes that Rarden is also serving a term of imprisonment upon conviction for aggravated assault and
menacing by stalking, but that conviction is not challenged in these cases. (Return. Doc. No. 1, n. 1, PageID 32.)

4

(Petition in Case No. 1:09-cv-335; copy at Return of Writ, Doc. No. 7, Exhibit 52, PageID 524550.) Magistrate Judge Wehrman recommended that the Petition be dismissed with prejudice.
Rarden v. Warden, 2011 U.S. Dist. LEXIS 60599 (S.D. Ohio, Mar. 9, 2011). District Judge
Beckwith adopted that recommendation over Rarden’s objections. Rarden v. Warden, 2011 U.S.
Dist. LEXIS 60597 (S.D. Ohio June 7, 2011). The United States Court of Appeals for the Sixth
Circuit denied Rarden’s request for a certificate of appealability. Rarden v. Sheets, Case No. 113693 (6th Cir. Jan. 30, 2012)(unpublished; copy at Return of Writ, Doc. No. 7, Exhibit 56,
PageID 597-600).
While his first habeas case was pending in this Court, Rarden filed a Delayed Application
to Reopen his direct appeal, raising four claims of ineffective assistance of appellate counsel
(Return of Writ, Doc. No. 7, Exhibit 57). The Twelfth District found Rarden had not shown
good cause for the delay and the Supreme Court declined jurisdiction over an appeal. On April
22, 2010, Rarden filed a motion to resentence for failure of the trial court properly to impose
post-release control. The trial court then imposed three year post-release control and Rarden
appealed for failure to conduct a complete sentencing hearing. The Twelfth District affirmed
and the Ohio Supreme Court again declined jurisdiction. On May 4, 2011, Rarden filed another
Ohio App. R. 26(B) application to reopen the direct appeal on the resentencing. The Twelfth
District denied the application both originally and on motion for reconsideration and the Ohio
Supreme Court again declined jurisdiction December 21, 2011.

5

Analysis

Grounds Two and Three in Case No. 1:12-cv-756 Should Be Dismissed

As noted above, Rarden has previously filed a petition for writ of habeas corpus relating
to this conviction which was dismissed on the merits and as to which a certificate of
appealability was denied by the Sixth Circuit. In that prior Petition, he raised as Ground Five his
claim that the trial court improperly engaged in plea negotiations and in Ground Seven his claim
that the trial court improperly refused to instruct on lesser included offenses.
28 U.S.C. § 2244(b)(1) provides that “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application shall be
dismissed.”
Rarden asserts that the instant petition is not “second or successive” because he is not
challenging the judgment of conviction he challenged in the 2009 case, but rather “the new resentencing entry’s [sic] the trial court issued on April 26, 2010, …” (Traverse, Doc. No. 11,
PageID 1659). Rarden relies on Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788, 177 L.
Ed. 2d 592 (2010), for the proposition that since he was re-sentenced, the second or successive
bar does not apply to him. In that case, the Court held a habeas petition raising a claim after a
conditional writ and new sentencing hearing which could have been raised on the original
petition is not barred as a second or successive petition because it challenges a new judgment.
Rarden is correct that this Court must decide in the first instance whether the Petitions in
1:12-cv-660 and 1:12-cv-756 are “second or successive.” In re Kenneth W. Smith, 690 F.3d 809
(6th Cir. 2012).
Under Ohio law, Rarden was not entitled to a de novo sentencing hearing and a new
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judgment upon his motion with respect to post release control. When a judge fails to impose
statutorily mandated post-release control as part of a defendant's sentence, that part of the
sentence that is void and must be set aside. State v. Fischer, 128 Ohio St. 3d 92, ¶ 26 (2010).
"A motion to correct an illegal sentence 'presupposes a valid
conviction and may not, therefore, be used to challenge alleged
errors in proceedings that occur prior to the imposition of
sentence.'" Edwards v. State (1996), 112 Nev. 704, 708, 918 P.2d
321, quoting Allen v. United States (D.C.1985), 495 A.2d 1145,
1149. It is, however, an appropriate vehicle for raising the claim
that a sentence is facially illegal at any time. Id. The scope of relief
based on a rule, like Fed.R.Crim.P. 35, is likewise constrained to
the narrow function of correcting only the illegal sentence. It does
not permit reexamination of all perceived errors at trial or in other
proceedings prior to sentencing. See, e.g., Hill v. United States
(1968), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417.
Fischer, ¶ 25, quoted in State v. Harris, 132 Ohio St. 3d 318, ¶ 17 (2012). This Court has
previously held that a re-sentencing to validly impose post-release control under Ohio law does
not create a new judgment such that a habeas petition can then be filed attacking those portions
of the underlying judgment which were not modified. Mackey v. Sheets, 2012 U.S. Dist. LEXIS
126498 (S.D. Ohio, Sept. 6, 2012), and 2012 U.S. Dist. LEXIS 159668 (S.D. Ohio Nov. 7,
2012), adopted 2013 U.S. Dist. LEXIS 5969 (S.D. Ohio Jan. 15, 2013).
The Petition in this case is a “second or successive” petition because the modified
judgment entered by the Common Pleas Court imposing post-release control does not come
within the Magwood decision.
28 U.S.C. § 2244 recognizes two kinds of claims brought in second or successive
petitions: those that were presented in a prior application and those that were not. As to the
prior class of claims, § 2244(b)(1) provides that such claims “shall be dismissed.” Therefore
Grounds for Relief Two and Three, previously presented to this Court in Case No. 1:09-cv-335
and dismissed with prejudice should now again be dismissed with prejudice.
7

Ground Four Should Be Transferred to the Sixth Circuit

In his Fourth Ground for Relief, Rarden claims he received ineffective assistance of
appellate counsel on his first direct appeal. This claim falls within the class of claims made in a
second or successive habeas application which is governed by 28 U.S.C. § 2244(b)(2), to wit, a
claim not made in the prior application. As to such claims, the District Court is without subject
matter jurisdiction to proceed without prior permission of the Court of Appeals. Burton v.
Stewart, 549 U.S. 147 (2007). Ground Four should be therefore transferred to the circuit court
for permission to file. United States v. Alford, Case No. 11-4067 (6th Cir. 11/12/2013)(copy at
3:00-cr-065, Doc. No. 156), citing Gonzalez v. Crosby, 545 U.S. 524 (2005), and In re Sims, 111
F.3d 45 (6th Cir. 1997).2

Ground One in Case No. 1:12-cv-660

In his sole Ground for Relief in Case No. 1:12-cv-660, Rarden claims that the trial court’s
original sentence was void and therefore the trial court was obliged to conduct a complete de
novo sentencing hearing. This claim is not barred by the “second or successive” petition rule
since it arises out of his resentencing to impose post-release control and therefore was not
available to him when he filed Case No. 1:09-cv-335.
However, the claim is completely without merit. Federal habeas corpus is available only to
correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. ___,
131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v.

2

Because the Court lacks subject matter jurisdiction, it cannot decide the merits of the Warden’s statute of
limitations argument.

8

Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province
of a federal habeas court to reexamine state court determinations on state law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). As the Warden notes, Rarden’s sole ground for relief in 1:12-cv-660 is that the trial
court did not give him the de novo sentencing hearing he claimed he was entitled to on the resentencing to impose post-release control.
Rarden argues that a violation of state law is cognizable in federal habeas proceedings “if
error amounts to a fundamental miscarriage of justice or a violation of the right to due process
guaranteed by the United States Constitution.”

(Traverse, Doc. No. 11, PageID 1663,

purportedly quoting Smith v. Ohio Dept. of Rehabilitation and Corrections, 33 F. Supp. 2d at 662
(N.D. Ohio 2004), and Williams v. Smith 2011 U.S. Dist. LEXIS 6423.) The first of these
decisions is actually reported at 331 F.Supp. 2d 605. The matter quoted by Rarden is found at
662, n. 16, which reads in its entirety:
While a violation of state law may be cognizable in federal habeas
corpus actions if such error amounts to a fundamental miscarriage
of justice or a violation of the right to due process guaranteed by
the United States Constitution, see Floyd v. Alexander, 148 F.3d
615, 619 (6th Cir. 1998); Matlock v. Rose, 731 F.2d 1236, 1242
(6th Cir. 1984), neither of the alleged errors of state law, in this
case, rise to that level.
Judge Wells’ full opinion on the two claims in Smith’s petition found not to be cognizable is:
Federal habeas relief is not available for errors of state law as "it is
not the province of a federal habeas court to re-examine state-court
determinations on state-law questions." Estelle v. McGuire, 502
U.S. 62, 67-68, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991).
Accordingly, alleged errors involving a state court's interpretation
of its own procedural rules are not cognizable in federal habeas
corpus review. Simpson v. Jones, 238 F.3d 399, 406-07 (6th Cir.

9

2000); Allen v. Morris, 845 F.2d 610, 614 (6th 1988). As the Sixth
Circuit explained, in Oviedo v. Jago:
Whether or not the [state court] complied with the
procedural requirements of [state] law is not a matter for
this court to decide on a petition for habeas corpus relief.
The federal habeas court does not act as an additional
state appellate court to review a state court's interpretation
of its own law or procedure.
809 F.2d 326, 328 (6th Cir. 1987); see also Johns v. The Supreme
Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985).
In both his third and fourth grounds for relief, Mr. Smith asks this
court to review decisions made by Ohio appellate courts based on
Ohio law. In his third ground, Mr. Smith argues that the "Appellate
Court Erred in the Denial of Petitioner's Motion for Delayed
Application to Reopen Pursuant to App. 26(B)." (Docket # 1, at 6).
Such a claim lies beyond the scope of federal habeas review as it
involves the application of a state procedural rule. Mr. Smith's
fourth ground of relief, arguing that the Ohio Supreme Court's
denial of leave to file a delayed appeal was "a clear and concise
abuse," likewise involves the application of a state procedural rule
which is not cognizable in federal habeas review.
Because Mr. Smith's third and fourth grounds for relief fail to state
cognizable federal habeas claims, they will be dismissed.
331 F. Supp. 2d at 622.
Rarden cites no federal case law authority for the proposition that a person in his position
– a person as to whom an ancillary portion of the judgment has not been properly imposed – is
entitled by the United States Constitution to a de novo resentencing when the error is being
corrected.
Without any case law in point, Rarden does claim that he was denied due process when
the state trial court did not follow State v. Bezak, 114 Ohio St. 3d 94 (2007), which he says was
“good law when the petitioner was resentenced on April 14, 2010, and it required the trial court
to consider those statues [sic],” to wit Ohio Revised Code § 2929.11, 2929.12, 2929.13, and

10

2929.14 (Traverse, Doc. No. 11, PageID 1663.) Rarden notes that State v. Fischer, supra, “did
not come out until eight months after petitioner was resentenced.” Id.
In Bezak the Ohio Supreme Court held that when a mandatory term of post-release
control is conveyed by the trial judge to a defendant at sentencing, the resulting sentence is void
and the trial court may not on remand simply advise the defendant that he is subject to postrelease control and automatically reimpose the same sentence. Instead,
We hold that when a trial court fails to notify an offender that he
may be subject to postrelease control at a sentencing hearing, as
required by former R.C. 2929.19(B)(3), the sentence is void; the
sentence must be vacated and the matter remanded to the trial court
for resentencing. The trial court must resentence the offender as if
there had been no original sentence. When a defendant is convicted
of or pleads guilty to one or more offenses and postrelease control
is not properly included in a sentence for a particular offense, the
sentence for that offense is void. The offender is entitled to a new
sentencing hearing for that particular offense.
Bezak at ¶ 16. Fischer, which held that only that portion of a sentence failing to impose
mandatory post-release control was void, overruled Bezak on this point, was not in fact handed
down until December 23, 2010.
Rarden asserts he made this due process claim when he appealed from the resentencing.
His Brief on Appeal is Exhibit 76 to the Return of Writ (Doc. No. 7-4, PageID 738-742). A
review of that document reveals absolutely no due process or other constitutional claim was
made. Therefore, any claim that the Twelfth District was obliged as a matter of constitutional
law to follow Bezak is procedurally defaulted. In any event, by the time the Twelfth District
reached this case for decision, Fischer rather than Bezak was the law of Ohio; the decision on
appeal was handed down February 7, 2011. State v. Rarden, Case No. CA2010-04-095/CA201005-106/CA2010-05-126 (Ohio App. 12th Dist. Feb. 7, 2011)(unreported; copy at Return of Writ,
Doc. No. 7-4, Exhibit 81.) This Court knows of no principle of constitutional law which requires
11

a state court of appeals to follow a reversed decision from its State’s own supreme court.
Therefore it is respectfully recommended that the sole Ground for Relief in Case No.
1:12-cv-660 be dismissed with prejudice.

Ground One in Case No. 1:12-cv-756

In his First Ground for Relief in Case No. 1:12-cv-756, Rarden asserts he was deprived of
effective assistance of appellate counsel on his direct appeal of his resentencing when his
appellate attorney told him he would have to proceed pro se to raise the claim that the trial court
committed error when it did not notify him it was imposing fines and court costs but included
fines and court costs in the judgment entry.
As with Ground One in Case No. 1:12-cv-660, this claim is not barred by the second or
successive petition statute, 28 U.S.C. § 2244(b), because it raises

claims related to the

resentencing.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.

12

466 U.S. at 687.
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
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 test applies 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,

13

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 failure to raise it amounted to ineffective assistance
of appellate counsel. Id., citing Wilson.
Rarden raised this claim relating to omission of an assignment of error about fines and
court costs when he filed an Application for Reopening under Ohio R. App. P. 26(B) relating to
the resentencing appeal. Applying the Strickland standard, the Twelfth District found there was
no ineffective assistance of appellate counsel in failing to raise this claim because it would have
been barred by Ohio’s criminal res judicata doctrine. State v. Rarden, Case No. CA2010-04-095
(Ohio App. 12th Dist. Aug. 18, 2011)(unreported; copy at Return of Writ, Doc. No. 7-4, Exhibit
90, PageID 871-74.)
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. ___, 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).
The Twelfth District’s decision on this claim is neither contrary to nor an objectively
unreasonable application of clearly established Supreme Court law, to wit, Strickland and its
progeny. There cannot be ineffective assistance of appellate counsel in failing to raise a claim as
to which there is a complete bar under the law, as there was to this claim about fines and costs.

14

Therefore the First Ground for Relief in Case No. 1:12-cv-756 should be dismissed with
prejudice.

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that the Fourth
Ground for Relief in Case No. 1:12-cv-756 be TRANSFERRED to the Sixth Circuit for a
determination of whether it may proceed and that the remaining Grounds for Relief 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.
December 17, 2013.
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).
15