Levingston v. Warden, Warren Correctional Institution

Filing 36

REPORT AND RECOMMENDATIONS - ConclusionBased on the foregoing analysis, it is respectfully recommended that the Amended Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be den ied 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. re 1 Petition for Writ of Habeas Corpus filed by Marty Levingston, 29 Petition for Writ of Habeas Corpus filed by Marty Levingston Objections to R&R due by 11/23/2015. Signed by Magistrate Judge Michael R. Merz on 11/6/2015. (srb)

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

:

- vs -

Case No. 1:12-cv-724
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254. Although the Petition
was filed September 21, 2012, the case only became ripe for decision when Petitioner filed his
Reply in October 2015. The case was assigned upon filing to District Judge S. Arthur Spiegel
and Magistrate Judge Stephanie Bowman. The reference was transferred to the undersigned as
part of the caseload balancing process for Western Division Magistrate Judges (ECF No. 21).
The case was reassigned to District Judge Black upon Judge Spiegel’s death (ECF No. 26).
Levingston was convicted in the Hamilton County Common Pleas Court on two counts of
murder, one count of felonious assault, and one count of tampering with evidence (Petition, ECF
No. 1, PageID 1, ¶ 5). He was sentenced to twenty-three years to life imprisonment. Id. It is
from that conviction that he seeks relief.

1

Procedural History

Michael Grace was shot to death at the Hawaiian Terrace apartment complex in
Cincinnati, Ohio, on December 28, 2007. A Hamilton County grand jury indicted Levingston for
this murder, charging him with two counts of murder, one count of felonious assault, and one
count of tampering with evidence, each with one or more firearm specifications. A trial jury
found Levingston guilty on all counts. He then moved for a new trial prior to sentencing, which
the trial court denied. On appeal the First District ordered the merger under Ohio Revised Code
§ 29541.25 of the murder and felonious assault offenses, but otherwise affirmed. State v.
Levingston, 2011-Ohio-1665, 2011 Ohio App. LEXIS 1479 (1st Dist. Apr. 8, 2011). The Ohio
Supreme Court declined jurisdiction over an additional appeal to it. State v. Levingston, 129
Ohio St. 3d 1477 (2011). Levingston was resentenced on remand, but did not appeal from the
resentencing. Levingston’s Application for Reopening under Ohio R. App. P. 26(B) was denied
as was an appeal from that denial.
After Levingston filed his Petition here, he filed a petition for post-conviction relief under
Ohio Revised Code § 2953.21 in the Hamilton County Common Pleas Court on June 12, 2013,
which Judge Cooper dismissed December 10, 2013 (Supplemental State Court Record, ECF No.
31, PageID 2133). Levingston appealed and the First District affirmed the dismissal. State v.
Levingston, No. C-140914 (1st Dist. Dec. 5, 2014)(unreported, copy at ECF No. 31, PageID
2173-74). The Ohio Supreme Court again declined jurisdiction. State v. Levingston, 142 Ohio
St. 3d 1466 (2015). Judge Spiegel had stayed these proceedings to permit the renewed state
court proceedings (ECF No. 22).

When the Court was notified of conclusion of those

proceedings, the stay was vacated (ECF No. 28 and notation order.)

2

Levingston pleads the following grounds for relief:
Ground One: Petitioner was denied his right to the effective
assistance of counsel under the Sixth and Fourteenth Amendments
to the United States Constitution, by the failures of his trial counsel
to reasonably investigate and obtain eye witness testimony which
would have exonerated Petitioner.
Supporting Facts: One of the state’s primary “witnesses” was a
young woman named Savana Sorrells. Ms. Sorrells testified that
she was not able to identify Petitioner as the perpetrator. During
trial, Ms. Sorrells testified that her cousin Suriyah Dukes had also
been present in the residence and had witnessed the shooting. Trial
counsel had failed to conduct a reasonable investigation regarding
Ms. Dukes as a potential witness and to obtain her highly
exculpatory testimony at trial. In affidavit obtained from Ms.
Dukes post-trial, she clearly exonerated Petitioner as having not
been involved in the shooting. In addition to the deprivation of a
fair trial secured by the due process clause of the Fourteenth
Amendment. Petitioner suffered the loss of his right to the
effective assistance of counsel.
Ground Two: Petitioner was denied his right to the effective
assistance of counsel under the Sixth and Fourteenth Amendments
to the United States Constitution by the failure of his trial counsel
to reasonably investigate and obtain eyewitness testimony that
would have provided an alibi defense for Petitioner at trial.
Supporting Facts: Prior to trial, Petitioner informed trial counsel
that at the time of the shooting, he was at his mother's residence, at
which his mother was present at the time. Despite this knowledge,
trial counsel failed to call this alibi witness to testify.
Ground Three: Petitioner was denied his right to the effective
assistance of appellate counsel under the Sixth and Fourteenth
Amendments to the United States Constitution, by the failures of
his appellate counsel to pursue a petition for post conviction relief.
Supporting Facts: Appellate counsel in this matter completely
abdicated his role by failing to pursue a petition for post conviction
relief on behalf of Petitioner. The failure falls below any
reasonable standard of professional appellate representation.
Ground Four: Petitioner was denied his right to due process of
law under the Fourteenth Amendment to the United States
Constitution by the entry of judgment against him in the absence of
3

proof beyond a reasonable doubt that Petitioner was the person
who committed these offenses.
Supporting Facts: Petitioner was convicted of two counts of
murder, one count of felonious assault, and one count of tampering
with evidence. There was insufficient evidence that he was the
perpetrator of the offenses with which he was charged. Not one eye
witness at the trial identified petitioner as the perpetrator of the
crimes in question. To the contrary, witnesses who testified live at
trial swore under oath that they were not able to identify Petitioner
as the perpetrator. The prosecution then sought to rely upon
recanted recorded statements as their only direct witness evidence
of Petitioner’s involvement in the crime.
Ground Five: Petitioner’s rights to due process and against cruel
and unusual punishment as secured by the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution have
been violated by his conviction and incarceration for an offense of
which he is actually innocent.
Supporting Facts: Petitioner did not commit the offenses of
conviction. The only evidence against him consisted of the
testimony of an incentivized snitch and an eyewitness
identification that had been recanted by the time of trial.
Ground Six: Petitioner was denied his right to a fair trial under the
Sixth and Fourteenth Amendments to the United States
Constitution by the use of an unduly suggestive photographic
identification, the results of which were introduced at trial.
Supporting Facts: The State’s only “witness” against Petitioner
was Savana Sorrells. Ms. Sorrells was an eyewitness to the
shooting. She identified Petitioner as one of the two people
involved in the crimes after being shown a single photograph, that
of Petitioner. That identification was challenged through a pretrial
motion; during the hearing on that motion, Ms. Sorrels recanted
her identification, which was nonetheless introduced at trial as
substantive evidence against Petitioner.
Ground Seven: Petitioner was denied his right to due process
under the Fifth and Fourteenth Amendments to the United States
Constitution by the use of an unduly suggestive photographic
identification, the results of which were introduced at trial.
Supporting Facts: The State’s only “witness” against Petitioner
was Savana Sorrells. Ms. Sorrells was an eyewitness to the
4

shooting. She identified Petitioner as one of the two people
involved in the crimes after being shown a single photograph, that
of Petitioner. That identification was challenged through a pretrial
motion; during the hearing on that motion, Ms. Sorrels recanted
her identification, which was nonetheless introduced at trial as
substantive evidence against Petitioner.
Ground Eight: Petitioner was denied his right to a fair trial under
the Sixth and Fourteenth Amendments to the United States
Constitution when the trial court denied Petitioner’s motion for a
new trial on the basis of newly discovered evidence.
Supporting Facts: For the first time during trial, a witness to the
shooting, Suriyah Dukes, was identified through the testimony of
State’s witness Savana Sorrells. Following the trial, Petitioner's
trial counsel obtained an affidavit from Suriyah Dukes, who
averred that she had witnessed the shooting and that Petitioner was
not present. The trial court ruled that this evidence could not be
considered “newly discovered” and thus could not be the basis for
a new trial.
Ground Nine: Petitioner was denied his right to due process under
the Fifth and Fourteenth Amendments to the United States
Constitution when the trial court denied Petitioner’s motion for a
new trial on the basis of newly discovered evidence.
Supporting Facts: For the first time during trial, a witness to the
shooting, Suriyah Dukes, was identified through the testimony of
State's witness Savana Sorrells. Following the trial, Petitioner’s
trial counsel obtained an affidavit from Suriyah Dukes, who
averred that she had witnessed the shooting and that Petitioner was
not present. The trial court ruled that this evidence could not be
considered “newly discovered” and thus could not be the basis for
a new trial.
Ground Ten: Petitioner was denied due process under the Fifth
and Fourteenth Amendments to the United States Constitution by
the commission of prosecutorial misconduct by the Hamilton
County Prosecutor's Office.
Supporting Facts: As noted earlier in this petition, Petitioner
became aware for the first time at trial of the existence of an
eyewitness whose testimony would exculpate Petitioner. The State
never disclosed the existence of this evidence to Petitioner or his
counsel, despite its clear obligation to do so under Brady v.
Maryland, 373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419
5

(1995). The State also failed to disclose that a jailhouse snitch was
highly incentivized through a plea agreement and was testifying in
multiple cases in Hamilton County. Such evidence, had it been
introduced at trial, would have significantly damaged the snitch's
credibility. [In addition, the prosecutor sought to use evidence
which had been excluded by the trial court. The prosecutor further
introduced inadmissible and inappropriate evidence regarding
Levingston’s alleged gang affiliation in an effort to inflame in
improperly influence the jury.]1
Ground Eleven: Petitioner was denied a fair trial under the Sixth
and Fourteenth Amendments when the trial court instructed the
jury to consider a witness’s taped statement, which the witness had
recanted prior to trial, as well as a law enforcement officer’s
testimony regarding that statement as substantive evidence against
Petitioner.
Supporting Facts: The State called Savana Sorrells to testify
against Petitioner. Although, after being shown a single
photograph, Sorrells had identified Petitioner as one of the two
individuals involved in the commission of the crimes of
commission, Sorrells recanted this identification prior to trial. The
trial court instructed the jury that the testimony of both Sorrells
and a law enforcement officer who witnessed the “identification”
could be considered not just as impeachment evidence against
Petitioner, but as substantive evidence of his guilt.
Ground Twelve: Petitioner was denied due process under the Fifth
and Fourteenth Amendments to the United States Constitution when
the trial court instructed the jury to consider a witness’s taped
statement, which the witness had recanted prior to trial, as well as a
law enforcement officer’s testimony regarding that statement as
substantive evidence against Petitioner.
Supporting Facts: The State called Savana Sorrells to testify against
Petitioner. Although, after being shown a single photograph, Sorrells
had identified Petitioner as one of the two individuals involved in the
commission of the crimes of commission, Sorrells recanted this
identification prior to trial. The trial court instructed the jury that the
testimony of both Sorrells and a law enforcement officer who
witnessed the “identification” could be considered not just as
impeachment evidence against Petitioner, but as substantive evidence
of his guilt.

1

Appears in Petition, but was eliminated from the Amended Petition.

6

Ground Thirteen: Petitioner’s right to a fair trial under the Sixth
and Fourteenth Amendments to the United States Constitution was
violated when the trial court refused to instruct the jury to view the
testimony of an incentivized snitch with “grave suspicion.”
Supporting Facts: There were only pieces of “evidence” against
Petitioner presented at trial: the recanted identification of Petitioner
by Savana Sorrells, and the testimony of an incentivized jailhouse
snitch. The snitch claimed that Petitioner, while in pretrial
detention in the Hamilton County Justice Center, confessed his
involvement in the crimes of conviction. As noted above, that
snitch had been incentivized to testify through a highly favorable
plea agreement disposing of the charges against him in exchange
for this testimony. Moreover, the snitch appeared not just in
Petitioner’s trial, but also claimed to have heard “confessions” by
several other defendants incarcerated at the time in Hamilton
County. Petitioner’s trial counsel requested that the jury be
instructed that such testimony should be viewed with “grave
suspicion.” The trial court refused to give such an instruction.
Ground Fourteen: Petitioner’s right to due process under the
Fifth and Fourteenth Amendments to the United States
Constitution was violated when the trial court refused to instruct
the jury to view the testimony of an incentivized snitch with “grave
suspicion.”
Supporting Facts: There were only pieces of “evidence” against
Petitioner presented at trial: the recanted identification of Petitioner
by Savana Sorrells, and the testimony of an incentivized jailhouse
snitch. The snitch claimed that Petitioner, while in pretrial
detention in the Hamilton County Justice Center, confessed his
involvement in the crimes of conviction. As noted above, that
snitch had been incentivized to testify through a highly favorable
plea agreement disposing of the charges against him in exchange
for this testimony. Moreover, the snitch appeared not just in
Petitioner’s trial, but also claimed to have heard “confessions” by
several other defendants incarcerated at the time in Hamilton
County. Petitioner's trial counsel requested that the jury be
instructed that such testimony should be viewed with “grave
suspicion.” The trial court refused to give such an instruction.
(Petition, ECF No. 1, PageID 6-10; Amended Petition, ECF No. 29, PageID 2091-96.)

7

ANALYSIS

Ground One: Ineffective Assistance of Trial Counsel: Failure to Obtain Testimony of
Suriyah Dukes

In his First Ground for Relief, Levingston asserts he was denied effective assistance of
counsel when his attorney failed to find Suriyah Dukes and present her testimony at trial.
Levingston alleges a post-trial affidavit from Dukes “clearly exonerate(s)” him as Grace’s
shooter.
Respondent asserts Ground One is barred by Levingston’s procedural defaults in
presenting it to the state courts (Amended Answer, ECF No. 32, PageID 2228-32).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
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,

8

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
(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

9

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).
Ohio requires ineffective assistance of trial counsel claims which depend on the trial
record to be raised on direct appeal, but claims depending on evidence dehors the record to be
raised by petition for post-conviction relief under Ohio Revised Code § 2953.21.
Under Ohio law, ineffective assistance of trial counsel claims or indeed any constitutional
claims that depend on evidence outside the appellate record must be raised in a petition for postconviction relief under Ohio Revised Code § 2953.21 because evidence cannot be added to the
record on direct appeal. State v. Hooks, 92 Ohio St. 3d 83 (2001); State v. Hartman, 93 Ohio St.
3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App.
3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, fn. 1 (1985).

Conversely,

constitutional claims including ineffective assistance of trial counsel claims which are supported
by the appellate record must be raised on direct appeal and will be barred by res judicata if
attempted to be raised later in post-conviction. State v. Reynolds, 79 Ohio St. 3d 158, 161
(1997); State v. Steffen, 70 Ohio St.3d 399, 410 (1994); State v. Lentz, 70 Ohio St. 3d 527
(1994); In re T.L., 2014-Ohio-1840, ¶ 16, 2014 Ohio App. LEXIS 1804 (8th App. Dist. 2014).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.

10

2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138 ; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).

Fair Presentation

The Warden’s first procedural default argument is that Levingston did not fairly present
his claims as federal constitutional claims to the state courts (Amended Answer, ECF No. 32,
PageID 2228).

“Although he raised semblances of his fourteen federal grounds in his

postconviction petition in the trial court, he did not assign any of these grounds as error in his
subsequent appeals.” Id.
Levingston responds that in Ohio relief cannot be granted on a post-conviction petition
under Ohio Revised Code § 2953.21(E) without a hearing (Traverse, ECF No. 35, PageID 2262-

11

63). The actual language of that section reads:
(E) Unless the petition and the files and records of the case show
the petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues even if a direct appeal of the case is
pending. If the court notifies the parties that it has found grounds
for granting relief, either party may request an appellate court in
which a direct appeal of the judgment is pending to remand the
pending case to the court.

On its face, the statute does not require a hearing and Levingston presents no Ohio case law
interpreting the statute in the way he suggests. It is easy to imagine constitutional defects in a
judgment which a trial judge might find without a hearing and § 2953.21 appears to contemplate
a remand from an appellate court for granting such relief.
Assuming arguendo, however, that Levingston’s interpretation is correct, he is further
correct in arguing that neither the First District nor the Supreme Court could have granted relief
on his constitutional claims directly, but could only have reversed the trial court’s denial of relief
and remanded for a hearing.
Levingston did fairly present Ground One as a constitutional claim in the trial court. His
first claim for relief in post-conviction reads:
I. INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO
INVESTIGATE
9. Petitioner's trial counsel failed, prior to trial, to investigate the
possibility of eyewitnesses other than Savannah Sorrels. Had such
an investigation been conducted, trial counsel would have learned
that Suriyah Dukes witnessed the shooting and knew that
Petitioner was not involved.
10. No reasonable jury would have convicted Petitioner if it had
the benefit of Dukes's testimony.
11. Counsel's failure to investigate was objectively unreasonable
and denied Petitioner the right to effective assistance of counsel as

12

secured by the Ohio constitution and the Sixth Amendment to the
US Constitution.
(Supplemental State Court Record, ECF No. 31, Ex. 40, PageID 2122.)
This language brings Claim for Relief I well within the Sixth Circuit precedent for fair
presentation. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986
F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds
by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991).

The Court concludes the Warden’s fair presentation procedural default defense on

Ground One is not well taken.

Untimely Filing

The Warden’s second procedural default defense is that Levingston’s post-conviction
petition was untimely filed (Amended Answer, ECF No. 32, PageID 2229). Applying the four
prongs of the Maupin analysis, the Court notes that Ohio has a rule that sets a deadline for filing
a post-conviction petition, 180 days after the date on which the trial transcript is filed in the court
of appeals. Ohio Revised Code § 2953.21(b)(2).2 Although the trial court did not state any
reasons for denying the post-conviction petition, Levingston understood it was because of
untimeliness and argued the case to the First District on that basis (Traverse, ECF No. 35,
PageID 2262). In that court Levingston argued the time for filing under Ohio Revised Code §
2953.21 should be tolled because of actual innocence or on the basis of the Supreme Court
decisions in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), and
Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). The First District
2

This deadline was amended to 365 days by 2014 HB 663, effective March 23, 2015. The shorter deadline applied
to Levingston’s case.

13

refused to accept either argument and affirmed dismissal of the Petition. State v. Levingston, No.
C-140914 (1st Dist. Dec. 5, 2014)(unreported, copy at Supplemental State Record, ECF No. 31,
Ex. 48, PageID 2173-74).
The procedural rule in question – a deadline for filing post-conviction petitions – is well
established – by statute – and is clearly independent of federal law. Timeliness of filing has been
recognized as an adequate state ground of decision in many different contexts. For example, the
forty-five day filing deadline for appeal to the Ohio Supreme Court and the ninety-day deadline
for filing a 26(B) application have both been thus upheld. See Bonilla v. Hurley, 370 F.3d 494
(6th Cir. 2004); Landrum v. Mitchell, 625 F.3d 905 (6th Cir. 2010).
The Warden’s claim that Ground One is procedurally defaulted by Levingston’s failure to
timely file his post-conviction petition is therefore well taken unless he can establish excusing
cause and prejudice or actual innocence, both of which he claims.

Actual Innocence

Levingston claims benefit of the actual innocence exception to procedural default,
asserting he has “established his actual innocence beyond peradventure.” (Traverse, ECF No.
35, PageID 2258). He recites that
The evidence that establishes his innocence is as follows:


The only substantive evidence at trial against him was the
testimony of an incentivized jailhouse snitch whose claim
regarding the manner in which he heard Levingston discuss the
murder strains credulity.



That same snitch offered testimony in multiple cases in
Hamilton County. Either he was lying, or is privy to more
confessions than the typical parish priest.
14



Following Mr. Levingston’s trial, an eyewitness to the murder
came forward to say that Mr. Levingston was not involved in
the crime.



The State relied on an eyewitness who recanted her
identification even prior to trial.



Not a shred of physical evidence linked Mr. Levingston to the
crime.

Id. Any reader of the Traverse will notice at once that this recitation is unaccompanied by any
record references. Where does the record show how many confessions are heard by the typical
parish priest? How does this Court know the “snitch” offered testimony in other cases?
Establishing actual innocence as a gateway to avoid procedural default is about more than
making rhetorical flourishes. The Sixth Circuit has described the actual innocence gateway as
follows:
[I]f a habeas petitioner "presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of
nonharmless constitutional error, the petitioner should be allowed
to pass through the gateway and argue the merits of his underlying
claims." Schlup v. Delo, 513 U.S. 298, 316 (1995). Thus, the
threshold inquiry is whether "new facts raise[] sufficient doubt
about [the petitioner's] guilt to undermine confidence in the result
of the trial." Id. at 317. To establish actual innocence, "a petitioner
must show that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt." Id.
at 327. The Court has noted that "actual innocence means factual
innocence, not mere legal insufficiency." Bousley v. United States,
523 U.S. 614, 623, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). "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, 513 U.S. at 324. The Court counseled
however, that the actual innocence exception should "remain rare"
and "only be applied in the 'extraordinary case.'" Id. at 321.

15

Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). Levingston has not made even an attempt to
comply with the proof requirements for actual innocence under Schlup.

Ineffective Assistance of Post-Conviction Counsel

Levingston also asserts his procedural default of Ground One is excused by the
ineffective assistance he received from post-conviction counsel, an excuse he asserts was
recognized by the Supreme Court in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed.
2d 272 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044
(2013)(Traverse, ECF No. 35, PageID 2259-63).
In Martinez 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 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 the Court extended Martinez to the Texas system where

review of ineffective assistance of trial counsel claims was practically, not legally, consigned to a
collateral proceeding.
The Sixth Circuit has not yet decided whether Trevino applies to the Ohio system for
16

review of ineffective assistance of trial counsel claims. The court recently wrote:
Thus, Ohio law suggests two different ways to look at Trevino. On
the one hand, certain claims can for practical purposes only be
brought in an initial-review collateral attack in a post-conviction
petition. And Trevino recognized that a "meaningful opportunity to
present a claim of ineffective assistance of trial counsel" includes
"the need to expand the trial court record." 133 S. Ct. at 1921.
Ohio courts recognize that claims requiring evidence outside the
record may only be meaningfully litigated in post-conviction
proceedings and may loosen ordinary res judicata principles in
such cases: "although ineffective assistance of counsel ordinarily
should be raised on direct appeal, res judicata does not bar a
defendant from raising this issue in a petition for postconviction
relief if the claim is based on evidence outside the record[,] . . .
even when the issue of ineffective assistance of counsel was raised
on direct appeal." State v. Richmond, 2012-Ohio-2511, No. 97616,
2012 WL 2047991, at *1 (Ohio Ct. App. 2012) (citing State v.
Smith, 17 Ohio St. 3d 98, 17 Ohio B. 219, 477 N.E.2d 1128, 1131
n.1 (Ohio 1985)). Thus, in Ohio, if ineffective assistance cases are
divided into two categories, one could argue that the category
requiring evidence outside the record must be brought on collateral
review in order for review to be meaningful.
On the other hand, in the "ordinary" case, "ineffective assistance of
counsel at mitigation, just like ineffective assistance at trial, is an
issue that can be brought on direct appeal," State v. Combs, 100
Ohio App. 3d 90, 652 N.E.2d 205, 212 (Ohio Ct. App. 1994)
(collecting cases), with a constitutionally required appellate
attorney, see Franklin v. Anderson, 434 F.3d 412, 428 (6th Cir.
2006) (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83
L. Ed. 2d 821 (1985)); see also State v. Davis, 119 Ohio St. 3d
422, 2008 Ohio 4608, 894 N.E.2d 1221, 1226 (Ohio 2008); Ohio
R. App. P. 26(B). Indeed, such a claim was raised on McGuire's
direct appeal, and was treated thoughtfully by the Supreme Court
of Ohio on discretionary review, albeit as part of an ineffective
assistance of appellate counsel claim. Arguably, then, the review of
trial counsel ineffectiveness claims in Ohio is more "meaningful"
than in Texas, because in Ohio there is "ordinarily" the availability
of direct review with constitutionally required counsel, with the
back-up of collateral attack where evidence outside the record is
required. All of this shows that the application of Trevino to Ohio
ineffective-assistance claims is neither obvious nor inevitable.
McGuire v. Warden, 738 F.3d 741, 751-52 (6th Cir. 2013).

17

Ohio has a bifurcated system of dealing with ineffective assistance of trial counsel
claims. Any claim which can be raised on direct appeal (i.e., where the record created in the trial
court is sufficient to permit decision of the issue on direct appeal) must be raised on direct appeal
or it is thereafter barred by Ohio’s criminal res judicata doctrine enunciated in State v. Perry, 10
Ohio St. 2d 175 (1967). Conversely, ineffective assistance of trial counsel claims which rely on
evidence outside the record on direct appeal must be raised in a petition for post-conviction relief
under Ohio Revised Code § 2953.21. State v. Milanovich, 42 Ohio St. 2d 46 (1975); Saylor v.
Overberg, 608 F.2d 670 (6th Cir. 1979); State v. Gibson, 69 Ohio App. 2d 91 (Cuyahoga Cty.
1980). However, the Ohio courts will not consider on a § 2953.21 petition any claim which
could have been raised on direct appeal; such claims are barred by the state doctrine of res
judicata. State v. Perry, 10 Ohio St. 2d at 181; Keener v. Ridenour, 594 F.2d 581 (6th Cir.
1979); State v. Cole, 2 Ohio St. 3d 112 (1982).
Assuming Trevino applies in Ohio, it will not save Levingston’s First Ground for Relief
from procedural default. The claim is that the trial attorney should have found Suriyah Dukes
and presented her testimony at trial. Levingston’s Motion for New Trial was based on the
Suriyah Dukes Affidavit and filed January 30, 2009 (State Court Record, ECF 10-1, PageID 16574). The Motion was denied April 3, 2009, before sentencing. Id. at PageID 197-200. Thus the
question whether it was ineffective assistance of trial counsel to fail to present Dukes at trial was
available in the record on appeal. However, no such assignment of error was raised. (See
Appellant’s Brief, State Court Record, ECF No. 10-1, PageID 244-45.)
Because the First Ground for Relief is a claim which under Ohio law was required to be
raised on direct appeal and it was not, Martinez and Trevino are not available to excuse any
arguable procedural default in failing to raise this claim in post-conviction.

18

Even if this First Ground for Relief were a claim which could have been raised in a
timely post-conviction petition under Ohio Revised Code § 2953.21, it was not ineffective
assistance of post-conviction counsel that caused its omission because Levingston had no postconviction counsel and filed no post-conviction petition within the time allowed by Ohio law. In
other words, it is not as if Levingston filed a petition through counsel but omitted this claim for
relief. Instead he never filed such a petition until well beyond the statute of limitations date.
Ground One for Relief is therefore procedurally defaulted without excusing cause and
should be dismissed with prejudice.

Ground Two: Ineffective Assistance of Trial Counsel: Failure to Call Mother as an Alibi
Witness

In his Second Ground for Relief, Levingston claims he told his trial attorney he was at
home with his mother at the time of the shooting, but she was never called as an alibi witness.
The Warden claims this Ground for Relief is procedurally defaulted on the same bases as the
First Ground for Relief. As with that ground for relief, the Court finds the argument not well
taken as to fair presentation, but correct as regards the failure to timely file a petition for postconviction relief.
The Warden also claims this Ground could have been raised on direct appeal, but
provides no record references to show that this is so (Amended Answer, ECF No. 32, PageID
2232).
Levingston’s actual innocence and Martinez-Trevino excuses are unavailing here for the
same reasons given as to Ground One. The Second Ground for Relief is therefore procedurally
defaulted and should be dismissed with prejudice.

19

Ground Three: Ineffective Assistance of Appellate Counsel: Failure to File Petition for
Post-Conviction Relief

In his Third Ground for Relief, Levingston asserts his appellate attorney provided
ineffective assistance of appellate counsel when he failed to file a petition for post-conviction
relief.
Ohio has one method for raising claims of ineffective assistance of appellate counsel, to
wit, by including them in an Application for Reopening under Ohio R. App. P. 26(B). Such
claims are not cognizable in a petition for post-conviction relief under Ohio Revised Code §
2953.21. State v. Murnahan, 63 Ohio St. 3d 60 (1992). Thus Levingston’s attempt to include
this claim as his Third Claim for Relief in his post-conviction petition (Supplemental State Court
Record, ECF No. 31, PageID 2123) would have been a vain act even if the petition had not been
dismissed as untimely.
Levingston did file a 26(B) Application (State Court Record, ECF No. 10-1, PageID 335
et seq.), but no such claim was raised. Levingston’s claim of actual innocence is unavailing for
the reasons given above. His Martinez-Trevino excuse is unavailable because, even assuming
those cases apply in Ohio, they will not excuse ineffective assistance of appellate counsel.
Hodges v. Colson, 711 F.3d 589, 603 (6th Cir. 2013).
Levingston’s Third Ground for Relief should be dismissed with prejudice because it is
procedurally defaulted.

Ground Four: Insufficient Evidence

20

In his Fourth Ground for Relief, Levingston contends he was convicted on
constitutionally insufficient evidence. The Warden asserts this claim is procedurally defaulted
because it was abandoned on direct appeal to the Ohio Supreme Court (Amended Answer, ECF
No. 32, PageID 2234). Levingston makes no response beyond the unavailing excuses offered as
to Ground One. Although theoretically ineffective assistance of appellate counsel could provide
an excuse, Levingston did not include such a claim in his 26(B) application. Failure to appeal a
claim to the highest state court procedurally defaults that claim. O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999).
Ground Four is procedurally defaulted and should be dismissed with prejudice on that
basis.

Ground Five: Actual Innocence

In his Fifth Ground for Relief, Levingston asserts that he is actually innocent of the
crimes for which he was convicted and that his imprisonment is therefore unconstitutional. This
is a so-called freestanding claim of actual innocence which the Supreme Court has held is not
cognizable in habeas corpus. Herrera v. Collins, 506 U.S. 390, 400-01 (1993). The Warden
cites Herrera as a basis for dismissal of Ground Five (Amended Answer, ECF No. 32, PageID
2225) and Levingston makes no response.
Ground Five should be dismissed for failure to state a claim upon which habeas corpus
relief can be granted.

21

Grounds Six and Seven: Unduly Suggestive Photographic Identification

In his Sixth and Seventh Grounds for Relief, Levingston argues he was convicted in part
on the basis of an unconstitutionally suggestive photographic identification. These claims are
procedurally defaulted on the same basis as Ground Four, to wit, it was abandoned on direct
appeal to the Ohio Supreme Court. They should therefore be dismissed with prejudice.

Grounds Eight and Nine: Denial of New Trial

In his Eighth Ground for Relief, Levingston asserts he was denied a fair trial under the
Sixth and Fourteenth Amendments when the trial court denied his motion for new trial based on
newly-discovered evidence. In his Ninth Ground for Relief, he asserts the same denial deprived
him of due process under the Fifth and Fourteenth Amendments.
The Warden asserts these two grounds for relief are procedurally defaulted because they
were abandoned on direct appeal to the Ohio Supreme Court. Levingston makes no response and
the Warden’s position is well taken. Grounds Eight and Nine should be dismissed with prejudice
as procedurally defaulted.

Ground Ten: Prosecutorial Misconduct

In his Tenth Ground for Relief, Levingston asserts he was denied due process by the acts
of prosecutorial misconduct of the Hamilton County Prosecutor’s Office. The Warden asserts

22

this ground for relief is procedurally defaulted because it was not raised on direct appeal,
although the facts necessary to make the claim were of record (Amended Return, ECF No. 32,
PageID 2236). Levingston makes no response to this argument (Traverse, ECF No. 35, PageID
2266-68). The Warden’s defense is well taken and the Tenth Ground for Relief should be
dismissed with prejudice.

Grounds Eleven: Recanted Identification by Savana Sorrells

In his Eleventh Ground for Relief, Levingston asserts that he was denied a fair trial when
the trial court instructed the jury to listen to a taped statement of Savana Sorrells in which she
identified Levingston as one of two individuals involved in perpetrating the murder as
substantive evidence against Levingston as well as permitting the jury to consider the testimony
of a law enforcement officer regarding Sorrells’ statement (Amended Petition, ECF No. 29,
PageID 2094).
The Warden concedes this claim is preserved for decision on the merits in habeas corpus,
but asserts there is no merit to it.
This claim was presented as part of Levingston’s Fourth Assignment of Error on direct
appeal and the First District decided it as follows:
[*P18] Levingston next argues that the trial court should have
stricken Sorrells's testimony regarding her pretrial identification of
Levingston. Sorrells, however, had been called as a court's witness,
leaving the state free to impeach her testimony with prior
inconsistent statements. Evid. R. 607 and 614(A); State v. Dubose,
1st Dist. No. C-070397, 2008 Ohio 4983, at ¶59. The trial court
instructed the jury on this use of impeachment, and we, therefore,
find no abuse of discretion. Accordingly, we hold that this
assignment of error is without merit.

23

State v. Levingston, 2011-Ohio-1665, 2011 Ohio App. LEXIS 1479 (1st Dist. Apr. 8, 2011). To
the extent there is somewhere in the Fourth Assignment of Error a claim of denial of
Confrontation Clause rights, the First District’s decision is not an objectively unreasonable
application of Crawford v. Washington, 541 U.S. 36 (2004), because Sorrells was present at trial
for cross-examination. Levingston argues in his Traverse that he did not get to cross-examine
her when she first made the statement (ECF No. 35, PageID 2269). However he cites no
Supreme Court precedent finding a Confrontation Clause violation under those circumstances.
To the extent the Eleventh Ground for Relief is a complaint about the instructions the
jury was given about Sorrells’ statements, it does not state a claim upon which relief can be
granted in habeas corpus. In order for habeas relief to be warranted on the basis of incorrect jury
instructions, a petitioner must show more than that the instructions are undesirable, erroneous, or
universally condemned; taken as a whole they must be so infirm that they rendered the entire
trial fundamentally unfair. Henderson v. Kibbe, 431 U.S. 145 (1977). The only question for a
habeas court to consider is "whether the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62 (1991), quoting
Cupp v. Naughten, 414 U.S. 141 (1973). The category of infractions that violate fundamental
fairness is very narrow. Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000), citing Dowling v. United
States, 493 U.S. 342, 352 (1990).

The instruction actually given here did not violate Ohio law

and Petitioner has cited no authority to the effect that it violated the Constitution.
The Eleventh Ground for Relief should be dismissed.

24

Ground Twelve: Recanted Identification by Savana Sorrells

In Ground Twelve, Levingston asserts the same acts by the trial court complained of in
Ground Eleven deprived him of due process in violation of the Fifth and Fourteenth
Amendments

(Amended Petition, ECF No. 29, PageID 2094). In his Traverse, however,

Levingston switches ground and claims that these acts violated his rights under the Confrontation
Clause of the Sixth Amendment (Traverse, ECF No. 35, PageID 2268).
The Warden asserts Ground Twelve is procedurally defaulted because it was never fairly
presented as a federal constitutional claim to the state courts (Amended Answer, ECF No. 32,
PageID 2237-38). In particular, on direct appeal these two acts were alleged to have deprived
Levingston of his right to confront the witnesses against him. Id., citing Appellant’s Brief, State
Court Record, ECF No. 10-1, PageID 257-59. A review of that Brief shows the claim was
argued in terms of conflicting jury instructions. Levingston argued the trial judge first correctly
instructed the jury that they could not consider Sorrells’ unsworn pretrial statement or her grand
jury testimony as substantive evidence. Then, he says, the trial judge instructed the jury they
could consider Detective Thompson’s testimony about Sorrells’ statement and the tape recording
of that statement as substantive evidence. No federal constitutional claim is made in the body of
the argument. Instead, the First District is urged to follow its own prior decision in State v.
Hancock, 2004-Ohio-1492, 2004 Ohio App. LEXIS 1324 (1st Dist. Mar. 26, 2004), to limit
consideration of the statements to Sorrells’ credibility and not Levingston’s guilt. Hancock is
solely involved with interpreting Ohio R. Evid. 607(A) and does not consider any constitutional
issues. This was Levingston’s Sixth Assignment of Error on direct appeal and the First District
decided it as follows:

25

[*P23] In his sixth assignment of error, Levingston argues that
the trial court erred in instructing the jurors that they could
consider the testimony of Detective Thompson regarding Sorrells's
statement to police and the recording of that statement as
substantive evidence.
[*P24] Evid.R. 801(D)(1)(c) specifically allows statements
identifying a person soon after that person is perceived to be
considered as substantive evidence if (1) the declarant testifies at
trial and is subject to cross-examination concerning the statement,
and (2) circumstances demonstrate the reliability of the prior
identification.
[*P25] Sorrells identified Levingston as the second gunman to
police ten days after the shooting, and in light of her detailed
account at the time, the circumstances demonstrated the
reliability of her statement. Additionally, Sorrells testified at trial,
and Levingston was free to cross-examine her regarding the
statement. We, therefore, hold that this assignment of error is
without merit.
State v. Levingston, 2011-Ohio-1665, 2011 Ohio App. LEXIS 1479 (1st Dist. Apr. 8, 2011).
Thus this claim was presented and decided as an Ohio evidence rules question, not as a federal
constitutional question.
It could be argued that, although the federal Constitution was not cited, the pattern of
facts would have called the Confrontation Clause to mind in the appellate court.

But no

Confrontation Clause violation occurred because Ms. Sorrells was present in court and subject to
cross-examination.
Ground Twelve should be dismissed with prejudice.

Grounds Thirteen and Fourteen: Failure to Give Appropriate “Snitch” Instruction

In his Thirteenth Ground for Relief, Levingston asserts his right to a fair trial under the
Sixth Amendment was denied when the trial judge failed to give an appropriately strong
26

cautionary instruction with respect to the “snitch” testimony. In Ground Fourteen he asserts the
same failure deprived him of his due process rights under the Fifth and Fourteenth Amendments
(Amended Petition, ECF No. 29, PageID 2094-95.)
The Warden asserts both grounds for relief are procedurally defaulted because they were
never fairly presented as federal constitutional claims in the Ohio courts and because they were
abandoned on direct appeal to the Ohio Supreme Court (Amended Answer, ECF No. 32, PageID
2238).
Levingston presented a claim related to the request for a jury instruction about the
testimony of Robert Taylor on appeal as his Seventh Assignment of Error as follows:
SEVENTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT INSTRUCTING THE
JURY AS TO VIEWING THE TESTIMONY OF A
WITNESS/INFORMER SCRUPULOUSLY AND WITH GRAVE
SUSPICION
Issue presented: Where two proposed instructions regarding how
the jury is permitted to view the testimony of a witness/informer
properly state the law, it is error to refuse to instruct the jury as
requested.
ARGUMENT
The defense requested two instructions to be given regarding how
the jury may view the testimony of Robert Taylor, the informer
from the justice center.
One instruction was based upon the accomplice instruction and the
other was based upon instructions from the cases of United States
v. Salimine 536 F.2d 703 (6th Cir. 1976) and United States v.
Gomez-Carta 419 F.2d 548 (2d Cir. 1969).
To say the least Taylor's testimony was inconsistent with other
prosecution testimony and forensic evidence. There was no doubt
that Taylor was trying to reduce his potential sentence any way he
could. These instructions would have given the jury the proper way
to evaluate Taylor's testimony.
27

(Appellant’s Brief, State Court Record, ECF No. 10-1, PageID 259.)
The First District decided that assignment as follows:
[*P26] In his seventh assignment of error, Levingston argues that
the trial court erred in not giving the jury Levingston's requested
instruction to consider the testimony of Robert Taylor scrupulously
and with grave suspicion.
[*P27] A trial court should ordinarily provide a jury instruction
requested by the defendant when the instruction contains a correct
and relevant statement of the law and is appropriate to the facts of
the case. State v. Gary, 1st Dist. No. C-090643, 2010-Ohio-5321, ¶
23. We review a trial court's decision whether to provide a
requested instruction for abuse of discretion. Id.
[*P28] No abuse of discretion occurred here because the
requested instruction was not appropriate under the facts of the
case. Levingston sought an instruction provided under R.C.
2923.03(D), which applies only when an alleged accomplice of
the defendant testifies. Taylor, however, was clearly not an
accomplice to the offenses charged in this case. See R.C.
2923.03(A) Accordingly, we overrule this assignment of error.
State v. Levingston, 2011-Ohio-16765, 2011 Ohio App. LEXIS 1479 (1st Dist Apr. 8, 2011.)
Under Ohio law, a judge is required to give a jury instruction which properly states the
law and applies to the facts in trial. State v. Comen, 50 Ohio St. 3d 206 (1990); State v. Madden,
2010-Ohio-176, ¶ 33, 2010 Ohio App. LEXIS 145, **18 (Ct. App. 4th Dist. 2010). Although no
citations of law are offered at this point in the Brief, it is plainly that principle to which
Levingston was appealing. There is no suggestion that any such instruction is required by the
federal Constitution. Levingston’s Thirteenth and Fourteenth Grounds for Relief were not fairly
presented to the First District. Alleged errors in jury instructions normally do not rise to the level
of federal constitutional violations. See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland
Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th

28

Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). When the evidence presented does not
support a requested jury instruction and that determination is based upon a state court’s
interpretation and application of state law, an asserted error relating to the jury instruction is not
cognizable in federal habeas corpus unless the failure amounted to a fundamental miscarriage of
justice. See Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990).
Moreover, these claims were abandoned on direct appeal to the Ohio Supreme Court.
Because Grounds Thirteen and Fourteen were procedurally defaulted, they should be
dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Amended
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.

November 6, 2015.
s/ Michael R. Merz
United States Magistrate Judge

29

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).

30