West v. Warden, Ross Correctional Institution

Filing 14

REPORT AND RECOMMENDATION that the petitioner's 1 Petition for Writ of Habeas Corpus be Denied with prejudice. A certificate of appealability should not issue in this matter, and any appeal of this matter would not be taken in good faith and therefore Deny petitioner leave to appeal in forma pauperis. Objections to R&R due by 4/11/2016. Signed by Magistrate Judge Karen L. Litkovitz on 3/22/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOHN H. WEST, JR.,
Petitioner,

Case No. 1: 15-cv-267
Black, J.
Litkovitz, M.J.

vs.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Ross Correctional Institution in Chillicothe,
Ohio, has filed a prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction and sentence for various drug-related offenses in Scioto County,
Ohio, Court of Common Pleas Case No. 11-CR-799. (Doc. 1). 1 This matter is before the Court
on the petition, respondent's return ofwrit and petitioner's brief in reply to the return of writ.
(Docs. I, 9, 12).

2

I. PROCEDURALBACKGROUND

State Trial Proceeding
In September 2011, the Scioto County, Ohio, grand jury returned an indictment charging
petitioner with one first-degree felony count of trafficking in crack cocaine in violation of Ohio

1

In the return of writ filed in response to the petition, respondent notes that petitioner has been convicted
and sentenced in other criminal cases in Ohio. (See Doc. 9, p. 3 n.3 , at PAGEID#: 618). Ln the fall of20 12,
petitioner was convicted and sentenced to an aggregate three-year prison term upon entry of a guilty plea to two
counts oftrafticking in crack cocaine and one count of possession of criminal tools in Scioto County Court of
Common Pleas Case No. 11-CR-273. (!d.; see also Doc. 8, Ex. 2). In addition, petitioner is " serving two sentences
for other Franklin County convictions: I) endangering children, 4 years, Case No. I OCR-3611 ... ; and 2) having a
weapon while under disability, 3 years, concurrent with previous case, Case No. II CR-2858." (Doc. 9, p. 3 n.3, at
PAGEID#: 618; see also Doc. 8, Exs. 3-4). Petitioner is not challenging those other convictions and sentences in the
instant action. (See Doc. 9, p. 3 n.3, at PAGEID#: 618).
2

Respondent has also separately filed the trial transcript and 32 exhibits obtained from the underlying
state-court record. (See Doc. 8).

Rev. Code§ 2925.03(A)(l)/(C)(4)(t) (Count 1); one fourth-degree felony count of possession of
drugs in violation ofOhio Rev. Code§ 2925.1l(A)/(C)(4)(b) (Count 2); one fourth-degree
felony count of trafficking in drugs/crack cocaine in violation of Ohio Rev. Code §
2925.03(A)(2)/(C)(4)(c) (Count 3); one fifth-degree felony count oftrafficking in drugs in
violation of Ohio Rev. Code§ 2925.03(A)/(C)(4)(a) (Count 4); one fifth-degree felony count of
possession of drugs in violation ofOhio Rev. Code§ 2925.11(A)/(C)(4)(a) (Count 5); and one
fifth-degree felony count of possession of criminal tools in violation of Ohio Rev. Code §
2923 .24(A)/(C) (Count 6). (Doc. 8, Ex. 1). 3 The facts giving rise to the charges were
summarized as follows by the Ohio Court of Appeals, Fourth Appellate District, based on
evidence presented at petitioner's triae
Scioto County authorities have actively investigated the delivery of drugs from
Michigan to Portsmouth and during that investigation, became aware of the
activities of appellant and his then girlfriend, Shelby Nelson. For a number of
months, both appellant and Nelson transported drugs from Franklin County to
Scioto County. Apparently, appellant and Nelson supplied drugs for local sale
from Brandi Woods' Portsmouth apartment.
Portsmouth Police involved with the Southern Ohio Drug Task Force eventually
arranged for three controlled purchases from Brandi Woods. Later, police
obtained a search warrant for Woods' apartment and during the warrant's
execution, encountered several individuals, including appellant. Authorities also
found drugs in the apartment, a jeep parked nearby that appellant and Nelson used
to travel to Columbus, and over $2,000 cash in the pockets of a pair of appellant's
shorts.
. . . . At the jury trial, Shelby Nelson confirmed that, several times a week in 2011,
she and appellant had been "running" cocaine (that they "cooked" into crack) and
3

The indictment also contained a forfeiture specification and was later amended to change the date of the
trafficking offense charged in Count 1. (See Doc. 8, Exs. I, 7).
4

The Ohio appellate court summarized the facts in its direct appeal decision issued May I , 2014. (See
Doc. 8, Ex. 19). 28 U.S.C. § 2254(e)( J) provides that "[i]n a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue
made by a State court shall be presumed correct" unless the petitioner rebuts the presumption by "clear and
convincing evidence." 1n the absence of clear and convincing evidence to rebut the Ohio Court of Appeals' factual
findings quoted below, the appellate court's findings are presumed to be correct. See McAdoo v. Elo, 365 F.3d 487,
493-94 (6th Cir. 2004).

2

other drugs from Columbus to P01ismouth. Usually, they would obtain one and
one half to two ounces of cocaine per unit.
Brandi Woods appears to have provided the most incriminating evidence against
appellant. Woods explained that appellant used her apartment as a base to traffic
drugs in Portsmouth. Woods further related that (I) the drugs that she sold in the
three controlled buys to a police informant all came from appellant, and (2) the
other person present at her apartment during the search warrant's execution,
Breon Kelly, is also a "runner" for appellant who sells drugs in Potismouth.
(!d., Ex. 19, pp. 2-4, at PAGEID#: 161-63).
The matter proceeded to trial before a jury, which found petitioner guilty as charged
except that Counts 2 and 3 were designated as fifth-degree rather than fourth-degree felonies.

(See id., Ex. 12). The jury also found with respect to the first-degree felony trafficking offense
charged in Count 1 that the "weight of the drugs was ... [e]qual to or exceeding 27 grams but
less than 100 grams." (!d. , at PAGEID#: 87; see also id., Ex. 13).
On August 3, 2012, following a sentencing hearing, the trial court issued a Judgment
Entry sentencing petitioner to an aggregate prison term "oftwelve (12) years with ten years
being mandatory." (!d., Ex. 14, at PAGEID#: 99). Specifically, the court merged the possession
offense charged in Count 2 with the trafficking offense charged in Count 1, merged the
trafficking and possession offenses charged in Counts 4 and 5 with the trafficking offense
charged in Count 3, and sentenced petitioner to the following consecutive prison terms: a
mandatory ten-year prison term for the trafficking offense charged in Count 1; a twelve-month
prison term for the trafficking offense charged in Count 3; and a twelve-month prison term for
the possession-of-criminal-tools offense charged in Count 6. (See id. , at PAGEID#: 98-99).
State Appeal Proceedings
Assisted by new counsel, petitioner timely appealed to the Ohio Court of Appeals, Fourth
Appellate District. (See Doc. 8, Ex. 15). In the appellate brief filed by counsel on petitioner's

3

behalf, petitioner asserted the following assignments of error:
I. The trial court committed reversible plain error to the prejudice of Defendant
by failing to instruct the jury pursuant to Ohio Revised Code 2923.03(D).
2. Appellant was deprived of his right to effective assistance of counsel as
provided pursuant to the 14th and 6th Amendments to the U.S. Constitution
[based on trial counsel's failure to request the jury instruction set forth in Ohio
Revised Code 2923.03(D)].
3. The trial court erred to the prejudice of Appellant/Defendant by entering a
guilty finding upon a verdict that was against the manifest weight of the
evidence.
(!d. , Ex. 16).

On May 1, 2014, the Ohio Court of Appeals issued a Decision and Judgment Entry
overruling the assignments of error and affirming the trial court's judgment. (!d., Ex. 19).
Petitioner did not pursue a timely appeal to the Ohio Supreme Court. On July 2, 2014,
over two weeks after the expiration of the 45-day appeal period, he filed a pro se notice of appeal
and motion for leave to file a delayed appeal to the Ohio Supreme Court. (!d. , Exs. 20-21). In
the motion, petitioner generally claimed as "cause" for his delay in filing that his appellate
counsel failed to inform him of the Ohio Court of Appeals' decision and never sent him a copy
of the decision. (See id., Ex. 21, at P AGEID#: 177 -78). Petitioner stated that he ultimately
obtained a copy of the decision by "print[ing it] off ... from the Lexis program." (! d.). On
September 3, 2014, the Ohio Supreme Court denied petitioner's motion for delayed appeal
without opinion. (!d., Ex. 22).
Application To Reopen Appeal
On July 28, 2014, while his motion for delayed appeal was pending before the Ohio
Supreme Court, petitioner filed a prose application with the Ohio Court of Appeals, Fourth
Appellate District, requesting that his appeal be reopened. (Doc. 8, Ex. 23). In the application

4

filed pursuant to Ohio R. App. P. 26(B), petitioner claimed that his counsel on direct appeal was
ineffective for failing to present a claim challenging the sufficiency of the evidence supporting
his conviction for the first-degree felony trafficking offense charged in Count I. (See id.).
Petitioner contended that although the prosecutor "stated that 42 grams of Drugs were found in
order to [c]harge [petitioner] with a First Degree Felony, ... in fact there was never 42 Grams of
any Drugs found in this case, and only 3.9 Grams were presented to the Grand Jury." (ld. , p. 2,
at PA GElD#: 190).
On October 9, 2014, the Ohio Court of Appeals denied petitioner's application to reopen
the appeal. (ld., Ex. 25). The court reasoned:
[E]ven assuming arguendo that appellant's counsel was constitutionally
ineffective for failing to raise a sufficiency of the evidence argument, we
nevertheless considered that issue [when addressing the assignment of error
challenging the weight of the evidence that was asserted on direct appeal] and
found that sufficient evidence was adduced at trial. Appellant can neither show
prejudice nor show that the outcome of his appeal would have been otherwise if
his proposed assignment of error had been raised.
(/d. , p. 5, at PAGEID#: 205).
It appears from the record that petitioner did not pursue an appeal to the Ohio Supreme

Court from the denial ofhis reopening application. (See Doc. 9, p. 6, at PAGEID#: 621).
Federal Habeas Corpus Petition
In April 2015, petitioner commenced the instant federal habeas corpus action. (See Doc.
1). In his signed petition, petitioner presents the following grounds for relief:
Ground One: The trial court committed reversible plain error to the prejudice of
Defendant by failing to instruct the jury pursuant to Ohio Revised Code
2923.03(0).
Ground Two: Appellant was deprived ofhis rights to effective assistance of
counsel as provided pursuant to the 14th and 6th Amendments to the U.S.
Constitution.

5

Ground Three: Manifest weight of evidence.
(Doc.3 , atPAGEID#: 17-19).
Respondent has filed a return of writ in response to the petition, and petitioner has filed a
brief in reply to the return of writ. (Docs. 9, 12).

II. OPINION
A. Petitioner Is Not Entitled To Relief Based On The Claim Alleged In Ground One,
Which Was Procedurally Defaulted In The State Courts And, In Any Event, Does
Not Constitute A Cognizable Ground For Federal Habeas Relief
In Ground One of the petition, petitioner alleges that the trial court "committed reversible
plain error" when it failed to give a jury instruction on accomplice testimony in accordance with
the following provision set forth in Ohio Rev. Code§ 2923.03(D):
If an alleged accomplice of the defendant testifies against the defendant in a case
in which the defendant is charged with complicity in the commission of or an
attempt to commit an offense, an attempt to commit an offense, or an offense, the
court when it charges the jury, shall state substantially the following:
"The testimony of an accomplice does not become inadmissible because of his
complicity, moral turpitude, or self-interest, but the admitted or claimed
complicity may affect his credibility and make his testimony subject to grave
suspicion, and require that it be weighed with great caution.
It is for you, as jurors, in light of all the facts presented to you from the witness

stand, to evaluate such testimony and to determine its quality and worth or its lack
of quality and worth."

(See Doc. 3, at PAGEID#: 17). Respondent contends that the claim is procedurally defaulted
and, in any event, does not constitute a cognizable ground for federal habeas relief. (Doc. 9, pp.
11-16, at PAGEID#: 626-31 ).
As an initial matter, as respondent has argued, it appears that the claim alleged in Ground
One is barred from review due to procedural defaults that occurred in the underlying state court
proceedings. In recognition ofthe equal obligation of the state courts to protect the
constitutional rights of criminal defendants, and in order to prevent needless friction between the
6

state and federal courts, a state defendant with federal constitutional claims must fairly present
those claims to the state courts for consideration before raising them in a federal habeas corpus
action. See 28 U.S.C. § 2254(b)(l), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam); Picard v. Connor, 404 U.S. 270,275-76 (1971). A claim is deemed fairly presented
only if the petitioner presented his constitutional claims for relief to the state's highest court for
consideration. See O 'Sullivan v. Boerckel, 526 U.S . 838, 845, 848 (I 999); Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). It
is also well-settled under the procedural default doctrine that the federal habeas court may be
barred from considering an issue of federal law from a judgment of a state court if the judgment
rests on a state-law ground that is both "independent" of the merits of the federal claim and an
"adequate" basis for the state court' s decision. See, e.g., Harris v. Reed, 489 U.S. 255, 260-62
(1989).
In this case, petitioner committed two procedural defaults. The first default occurred
when petitioner' s trial counsel failed to request any instruction pursuant to Ohio Rev. Code §
2923.03(0) and did not otherwise object to the omission of such an instruction at trial. Ohio' s
contemporaneous objection rule is a firmly-established, adequate and independent state
procedural rule, which serves to foreclose federal habeas review when relied on by the state
courts as a basis for denying relief. See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir.
2011) (citing Hinkle v. Randle, 27 1 F.3d 239, 244 (6th Cir. 2001)); White v. Mitchell, 431 F.3d
517, 525 (6th Cir. 2005) (citing Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)); see also

State v. Murphy, 747 N.E.2d 765, 788 (Ohio 2001) (pointing out that Ohio' s "waiver rule,"
which "requires that a party make a contemporaneous objection to alleged trial error in order to
preserve that error for appellate review," is "of long standing" and "goes to the heart of the

7

adversary system of justice"). The Sixth Circuit has repeatedly held that "plain error" review by
the state appellate court " constitutes enforcement of Ohio' s contemporaneous objection rule."
See, e.g., Williams v. Bagley, 380 F.3d 932, 968-69 (6th Cir. 2004) (and Sixth Circuit cases cited
therein); see also Goodwin, 632 F.3d at 315. In this case, the Ohio Court of Appeals clearly
enforced the state procedural bar to review when it pointed out that petitioner had conceded his
counsel did not request the particular jury instruction and went on to state that, therefore, its
review of the assignment of error was for "plain error." (See Doc. 8, Ex. 19, p. 8, at PAGElD#:
167). Under well-settled Sixth Circuit precedents, the state appellate court' s plain-error review
did "not constitute a waiver of state procedural default rules." See, e.g., Seymour v. Walker, 224
F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989));
see also Goodwin, 632 F.3d at 315.
The second procedural default occurred when petitioner failed to pursue a timely appeal
to the Ohio Supreme Court from the Ohio Court of Appeals' May I , 2014 decision overruling
the assignment of error that was presented on direct appeal. The Sixth Circuit has held that the
Ohio Supreme Court's unexplained entry denying a motion for leave to file a delayed appeal
constitutes an adequate and independent state procedural ruling sufficient to bar review of a
federal habeas corpus petition. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per
curiam); see also Baker v. Bradshaw, 495 F. App' x 560, 565 (6th Cir. 2012) (citing Bonilla in
pointing out that " [t]his court has held that violation of ... the timeliness requirements for an
appeal to the Ohio Supreme Court ... constitute[s] adequate and independent state grounds to
preclude hearing an untimely claim on the merits"). Here, as in Bonilla and Baker, because
petitioner failed to pursue a timely appeal to the Ohio Supreme Court and the Ohio Supreme
Court denied petitioner leave to file a delayed appeal, the state' s highest court was not provided

8

with an opportunity to consider the merits of petitioner's claim.
Because of the procedural defaults that occurred both at trial and on appeal , the claim
alleged in Ground One of the petition is waived and barred from review by this Court unless
petitioner "can demonstrate cause for the default[s] and actual prejudice .. . or demonstrate that
failure to consider the claim[] will result in a fundamental miscarriage of justice." See Hoffner v.
Bradshaw, 622 F.3d 487, 497 (6th Cir. 201 0) (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)); see also Bonilla, 370 F.3d at 497.
Petitioner has neither argued nor otherwise demonstrated that failure to consider the
defaulted claim will result in a "fundamental miscarriage of justice," or in other words, that the
alleged error "probably resulted in the conviction of one who is actually innocent." See Murray
v. Carrier, 477 U.S. 478, 495-96 (1986); see also Schlup v. Delo, 513 U.S. 298, 327 (1995). No
such showing has been made to the extent that petitioner has challenged the weight and
sufficiency of the evidence introduced at trial to establish his guilt, because actual innocence
means factual innocence, not mere legal insufficiency. See House v. Bell, 547 U.S. 518, 538
(2006); Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006) (citing Bousley v. United States,
523 U.S. 614, 623 (1998)); Wright v. Lazaroff, 643 F. Supp.2d 971, 989 (S.D. Ohio 2009)
(Barrett, J. ; Hogan, M.J.); see also Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir.
2011).
Moreover, petitioner has not established cause for his procedural defaults in this case.
Petitioner has contended as "cause" for his default in the trial proceedings that his trial counsel
was ineffective for failing to request a jury instruction under Ohio Rev. Code § 2923.03(D).
Petitioner has also argued as "cause" for his failure to file a timely appeal to the Ohio Supreme
Court that his appellate counsel failed to inform him of the Ohio Court of Appeals' decision and

9

did not provide him with a copy of that decision. Cause for a procedural default may be
established if it is the result of ineffective assistance of counsel in violation of the Sixth
Amendment. See Murray, 477 U.S. at 488. Even assuming, without deciding, that petitioner is
able to establish cause for his failure to file a timely appeal to the Ohio Supreme Court, as
discussed infra in addressing the ineffective-assistance-of-counsel claim alleged in Ground Two
of the petition, petitioner has not demonstrated that his trial counsel 's failure to request the jury
instruction amounted to ineffective assistance under the Sixth Amendment. Therefore, petitioner
has not established cause sufficient to overcome the procedural bar to review.
In any event, as respondent has also argued, the claim alleged in Ground One is not
cognizable in this federal habeas proceeding. In this federal habeas case, the Court has
jurisdiction to review petitioner' s claim only to the extent that petitioner challenges his
confinement based on an alleged violation ofthe Constitution, laws or treaties of the United
States, and not "on the basis of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v.
Harris, 465 U.S. 37,41 (1984); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("it is not the province of a federal court to
reexamine state-court determinations on state-law questions"). Because habeas review is limited
to claims implicating federal concerns, this Court lacks jurisdiction to consider petitioner's claim
to the extent petitioner contends that the trial court erred as a matter of state law by failing to
give the accomplice-testimony instruction set forth in Ohio Rev. Code§ 2923.03(0).
Furthermore, petitioner is unable to prevail on any claim that the trial court's failure to
give the instruction amounted to error of federal constitutional dimension. As the Sixth Circuit
explained in an analogous case, " 'accomplice instructions as a general matter' are not required,
and . .. a trial court does not violate a defendant's constitutional rights by failing to give a

10

specific accomplice instruction so long as the jury instructions ' adequately informed the jury
regarding the credibility ofwitness testimony' and 'alerted the jury to the various considerations
that it should take into account in weighing testimony. " ' Goff v. Bagley, 601 F.3d 445, 469 (6th
Cir. 201 0) (quoting Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000) (internal quotation marks
and citation omitted)); see also Young v. Trombley, 435 F. App'x 499, 503 (6th Cir. 2011). In
the instant case, the trial court gave the following instruction before the jury retired to deliberate:
[Y]ou are the sole judges of the facts, the credibility of the witnesses and the
weight of the evidence. . ..

****
To determine the credibility of the witnesses you will apply the tests of
truthfulness which you are accustomed to apply in your daily lives.
You may consider the appearance of the witnesses upon the stand; the manner of
testifying; the reasonableness of the testimony; the opportunity each witness had
to see, hear and know the things concerning which he testified; accuracy of
memory; frankness or lack of it; intelligence; interest and bias, if any; together
with all the facts and circumstances surrounding the testimony.

****
You are not required to believe the testimony of any witness simply because he or
she was under oath. You may believe or disbelieve all or any part of the
testimony of any witness. It is your province to determine what testimony is
worthy of belief and what testimony is not worthy of belief.
(Doc. 8, Trial Tr. 297-99, at PAGEID#: 538-40). The court also gave a similar instruction at the
opening of petitioner's trial. (See id., Trial Tr. 14-15, at PAGEID#: 251-52).
The jury instructions are virtually identical to the instructions on witness credibility that
were relayed to the jury in Goff See Goff, 601 F.3d at 470. In Goff, the Sixth Circuit
determined that the failure to give a specific accomplice instruction does not amount to a
constitutional violation when such instructions are given because they satisfy the criteria
established in Scott by "both inform[ing] the jury regarding credibility and alert[ing] the jury to
II

what is properly considered when determining credibility." See id. Similarly, here, because the
jury was adequately instructed regarding the credibility determination in weighing witness
testimony, the failure to give the specific accomplice instruction set forth in Ohio Rev. Code§
2923.03(D) does not trigger constitutional concerns. Cf Young, 435 F. App'x at 504 (holding
that because jury instructions were given that "contained the same directives as did the charge
approved in Goff," the failure to give a specific accomplice instruction did not violate the
petitioner's constitutional rights).
Accordingly, in sum, the undersigned concludes that petitioner procedurally defaulted
and has waived the claim alleged in Ground One of the petition in the absence of a showing of
cause for his procedural defaults or that a fundamental miscarriage of justice will occur if the
defaulted claim for relief is not considered by this Court. In any event, the claim is not
cognizable in this federal habeas proceeding because the alleged error did not amount to a
violation of petitioner' s federal constitutional rights.
B. Petitioner Is Not Entitled To Relief Based On The Ineffective-Assistance-Of-Counsel
Claims Alleged In Ground Two Of The Petition, As Specified By Petitioner In His
Brief In Reply To The Return Of Writ

In Ground Two of the petition, petitioner generally alleges that he was deprived of his
Sixth Amendment right to the effective assistance of counsel. (Doc. 3, at PAGEID#: 18).
Respondent contends in the return of writ that the claim should be dismissed as "improperly
pled" because petitioner has not set forth the "specific factual basis" for the claim in the habeas
petition. (Doc. 9, p. 16, at PAGEID#: 631 ). In his brief filed in reply to the return of writ,
petitioner states as the factual basis for the ground for relief that his trial attorney was ineffective
for (1) failing to request the jury instruction on accomplice testimony that is set forth in Ohio
Rev. Code§ 2923.03(D); (2) failing to challenge the first-degree felony offense charged in Count

12

I of the indictment in the absence of any evidence showing that 42 grams of crack cocaine were
involved in that offense other than an "amount of money that was found in a pair of short[]s that
was never proven to belong to the Petitioner"; and (3) failing to request that "any type of test
(DNA) [be] done on ... shorts" that were linked to petitioner "to prove that they even belong to"
him. (Doc. 12, pp. 4-5, at PAGEID#: 642-43).
As an initial matter, the specific claims that petitioner has asserted in his reply brief were
procedurally defaulted in the state courts. Two of the claims were defaulted because petitioner
never presented them to the state courts for consideration. Specifically, petitioner never asserted
any claim challenging his trial counsel ' s failure to request testing of the shorts that were linked to
him or to object to the first-degree felony charge contained in Count I of the indictment due to
lack of evidence supporting that charge. 5 Petitioner did argue as an assignment of error on direct
appeal to the Ohio Court of Appeals that his trial counsel was ineffective for failing to request
the accomplice-testimony jury instruction set forth in Ohio Rev. Code § 2923.03(0). (See Doc.
8, Ex. 16, pp. 9-11, at PAGEID#: 118-20). However, as discussed above with respect to the
procedurally-defaulted claim alleged in Ground One of the petition, the claim that was raised on
direct appeal was defaulted when petitioner failed to pursue a timely appeal to the Ohio Supreme
Court from the Ohio Court of Appeals' May 1, 2014 decision overruling the assignment of error.
5

Petitioner may argue that he raised the claim about the lack of evidence supporting the first-degree felony
charge in Count I of the indictment in his application to reopen the appeal. In the reopening application, petitioner
alleged that his appellate counsel was ineffective for failing to assert a claim on direct appeal challenging the
sufficiency of the evidence supporting petitioner's conviction on Count I . (See Doc. 8, Ex. 23). The claim in the
reopening application, which pertains to appellate counsel 's performance and the sufficiency of the evidence
introduced at trial to establish petitioner' s guilt on the charge contained in Count I , is different from petitioner's
claim alleged herein challenging trial counsel's fai lure to object to the indictment count. In any event, petitioner
procedurally defaulted and has waived the claim presented in the reopening application because he did not pursue a
further appeal to the Ohio Supreme Court in the reopening matter and has neither provided any j ustification for that
default nor demonstrated that a "fundamental miscarriage of j ustice" will occur if the claim is not considered by th is
Court. Moreover, as the Ohio Court of Appeals found in denying the reopening application (see id. , Ex. 25),
petitioner is unable to prevail on the claim asserted in the application because it appears from the record that the
sufficiency-of-evidence issue was considered by the state appellate court when it ovenuled the assignment of error
challenging the weight of the evidence that was presented by counsel on direct appeal. (See id., Ex. 19, pp. 6-7, at
PAGEID#: 165-66).

13

Although petitioner sought leave to file a delayed appeal with the Ohio Supreme Court, the
state's highest court was not provided with an opportunity to consider the claim's merits because
the court relied on an adequate and independent state ground when it denied petitioner's delayed
appeal motion. See, e.g., Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per curiam);
Baker v. Bradshaw, 495 F. App'x 560, 565 (6th Cir. 2012).
Accordingly, as discussed above in addressing the defaulted claim alleged in Ground One
of the petition, the ineffective-assistance-of-counsel claims that petitioner has asserted in his
brief in reply to the return of writ are waived and barred from review by this Court unless
petitioner can demonstrate cause for and prejudice from his defaults or that failure to consider
the claims will result in a "fundamental miscarriage of justice." See Coleman v. Thompson, 501
U.S. 722, 750 (1991); Hoffner v. Bradshaw, 622 F.3d 487, 497 (6th Cir. 2010); Bonilla, 370 F.3d
at 497. Petitioner has neither argued nor otherwise demonstrated that failure to consider the
defaulted claims will result in a "fundamental miscarriage of justice," or in other words, that the
alleged errors "probably resulted in the conviction of one who is actually innocent." See Murray
v. Carrier, 477 U.S. 478, 495-96 (1986); see also Schlup v. Delo, 513 U.S. 298, 327 (1995). In
addition, petitioner has not provided any justification for his failure to present to the state courts
the claims that are based on trial counsel's failure to request the testing of shorts that were linked
to petitioner or to object to the first-degree felony charge contained in Count 1 of the indictment.
Therefore, those two claims are waived and barred from review by this Court.
With respect to the remaining claim that was raised by petitioner on direct appeal,
petitioner has contended as cause for his default that his appellate counsel failed to inform him of
the Ohio Court of Appeals' direct appeal decision, which caused him to miss the filing deadline
for pursuing a timely appeal to the Ohio Supreme Court. Without addressing the merits of

14

petitioner' s argument, because the defaulted ineffective-assistance-of-trial-counsel claim was
also asserted as cause for petitioner's default of the claim alleged in Ground One of the petition,
the undersigned will assume in petitioner's favor that petitioner has demonstrated cause for his
default of the remaining claim challenging counsel ' s failure to request or object to the omission
ofthe accomplice-testimony jury instruction set forth in Ohio Rev. Code§ 2923.03(D).
Therefore, the Court will consider the merits of that particular claim of ineffective assistance
despite petitioner's default in the state courts.
As discussed above in addressing the claim alleged in Ground One, the omission of the
instruction did not rise to the level of a federal constitutional violation. Therefore, the only way
petitioner can possibly prevail on his ineffective-assistance claim is by showing that his trial
counsel erred under Ohio law in failing to request or object to the omission of the instruction and
that such error amounted to a violation of petitioner's Sixth Amendment right to the effective
assistance of counsel. This Court's review of such claim, which was adjudicated on the merits
by the Ohio Court of Appeals, is limited. Under§ 2254(d), a writ ofhabeas corpus may not
issue with respect to any claim adjudicated on the merits by the state courts unless the
adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
"A decision is ' contrary to' clearly established federal law when ' the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question oflaw or if the
state court decides a case differently than [the Supreme] Court has on a set of materially
15

indistinguishable facts. " Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an
'unreasonable application' of clearly established federal law when ' the state court identifies the
correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case. "' !d. at 599-600 (quoting Williams, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDP A) was enacted, is a difficult one for habeas petitioners to meet. !d. at 600.
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA's
standards. See, e.g., Cullen v. Pinholster, [563] U.S. [170), 131 S.Ct. 1388, 1398,
179 L.Ed.2d 557 (20 11) (holding that AEDPA limits a federal habeas court to the
record before the state court where a claim has been adjudicated on the merits by
the state court). It is not enough for us to determine that the state court's
determination is incorrect; to grant the writ under this clause, we must hold that
the state court's determination is unreasonable . ... This is a "substantially higher
threshold. " ... To warrant AEDPA deference, a state court's "decision on the
merits" does not have to give any explanation for its results, Harrington v.
Richter, [562] U.S. [86, 98-99], 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor
does it need to cite the relevant Supreme Court cases, as long as "neither the
reasoning nor the result of the state-court decision contradicts them." Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).
!d. (emphasis in original). The Supreme Court has further held that when a state court rules

against a defendant in an opinion that "addresses some issues but does not expressly address the
federal claim in question," the federal habeas court must presume, subject to rebuttal, that the
federal claim was "adjudicated on the merits" and thus subject to the "restrictive standard of
review" set out in§ 2254(d). See Johnson v. Williams,_ U.S._, 133 S.Ct. 1088, 1091 (2013).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete
bar on federal-court relitigation of claims already rejected in state proceedings" and "preserves

16

authority to issue the writ in cases where there is no possibility fairrninded jurists could disagree
that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 562 U.S.
at 102. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented "was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairrninded disagreement. " !d. at I 03.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under§ 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became "final." Greene v. Fisher, _ U.S._, 132 S.Ct. 38, 44-45 (2011); cf Otte, 654
F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a
claim addressed by the state courts, the federal habeas court must " look to Supreme Court cases
already decided at the time the state court made its decision"). The writ may issue only if the
application of clearly-established federal law is objectively unreasonable " in light of the
holdings, as opposed to the dicta, ofthe Supreme Court's decisions as of the time of the relevant
state court decision." McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529
U.S. at 412); see also White v. Woodall, _ U.S._, 134 S.Ct. 1697, 1702 (2014) (quoting Howes

v. Fields,_ U.S. _, 132 S.Ct. 1181, 1187 (2012) (internal citation and quotation marks omitted))
("[C]learly established Federal law' for purposes of§ 2254(d)(l) includes 'only the holdings, as
opposed to the dicta, of thi s Court' s decisions."). Decisions by lower courts are relevant only "to
the extent [they] already reviewed and interpreted the relevant Supreme Court case law to
determine whether a legal principle or right had been clearly established by the Supreme Court."

Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905,914 (6th Cir. 2010)).

17

In this case, the Ohio Court of Appeals, which was the only state court to consider the
remaining ineffective-assistance-of-trial-counsel claim, first found no merit to petitioner' s
underlying claim, asserted in a separate assignment of error, that the failure to give the
accomplice-testimony instruction amounted to reversible plain error. (See Doc. 8, Ex. 19). In so
ruling, the court arguably assumed that, as a matter of state law, error may have occurred by the
omission of the jury instruction set forth in Ohio Rev. Code § 2923 .03(0) because it accepted the
premise that Shelby Nelson and Brandi Woods, who both testified at trial about their
involvement as drug runners for petitioner, were petitioner's accomplices. (See id. , p. 8 n.1 , at
PAGEID#: 167). Nevertheless, the court rejected petitioner's claim of reversible state-law error,
reasoning in pertinent part:
Shelby Nelson testified that when she told appellant that she no longer wanted to
be involved in drug activity, he, in order to keep her involved, perpetrated acts of
domestic violence against her. The gist of Brandi Woods' testimony is that
appellant took advantage ofher drug addiction and supplied drugs in exchange for
the use of her apartment to conduct his criminal enterprise. As the State correctly
notes, we have held that ... plain error will be recognized in cases when an
accomplice instruction is not given if "the accomplice testimony is both
uncorroborated and either incredible or unreliable." ... Here, we believe that
neither requirement has been satisfied. First, the drugs found in the apartment
support the claim that appellant used Nelson, Woods and Breon Kelly as
"runners" to sell drugs. Also, authorities located the jeep and large sum of cash in
appellant 's shorts. Additionally, the jury was made aware of the fact that Nelson
and Woods had both been charged criminally as a result of these incidents.
Apparently, the jury did not find their testimony incredible or unreliable, and our
review of the transcript supports this view. While it may be possible that the jury
could have chosen to discount the testimony of Woods and Nelson if they had
been given the R.C. 2923.03(0) instruction, we cannot conclude, after our review
of the evidence, that the trial ' s outcome would have been otherwise.

(!d. , pp. 9-10, at PAGElD#: 168-69) (Ohio case citations omitted). The court then went on to
reject petitioner's related constitutional ineffective-assistance claim, reasoning as follows:
Criminal defendants have a right to counsel that includes the right to effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct.
1441 , 25 L.Ed.2d 763 (1970) .... To establish constitutionally ineffective
18

assistance of counsel, a defendant must show that (1) his counsel's performance
was deficient and (2) the deficient perfonnance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052 (1 984) .... " In order to show deficient performance, the defendant
must prove that counsel's performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's error, the result ofthe proceeding would have
been different."...
In light of our review of the record and our resolution of appellant 's first
assignment of error, we cannot conclude that the trial 's outcome would have been
otherwise had trial counsel requested the R.C. 2923.03(D) instruction.
Appellant 's argument would require us to conclude that the jury would have
rejected the testimony of both Nelson and Woods, and then found appellant's
testimony credible despite all of the evidence elicited on cross-examination. We
cannot reach that conclusion for the same reasons we could not do so when we
analyzed his first assignment of error.
(!d., pp. l 0-1 1, at P AGEID#: 169-70) (Ohio case citations omitted).

As a threshold matter, the Ohio Court of Appeals correctly identified the standard of
review enunciated by the Supreme Court in Strickland as the applicable standard to apply in
addressing petitioner' s ineffective-assistance-of-counsel claim. As the state appellate court
recognized, to establish that his trial counsel was ineffective under Strickland, petitioner was
required to demonstrate both (1) his trial attorney' s conduct was constitutionally deficient; and
(2) the attorney ' s deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687.
Under the first prong of the Strickland test, petitioner had to show that his counsel 's
representation fell below an objective standard of reasonableness based on all the circumstances
surrounding the case. /d. at 688. Judicial scrutiny must be highly deferential , and a "fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight" and to evaluate the challenged conduct from counsel 's perspective at the
time the conduct occurred. !d. at 689. In determining whether or not counsel 's performance was
deficient, the court must indulge a strong presumption that the challenged conduct fell within the

19

wide range of reasonable professional assistance. I d.
To satisfy the second "prejudice" prong of the Strickland test, petitioner had to
demonstrate that a "reasonable probability" exists that, but for his counsel's alleged error, the
result ofhis trial would have been different. See Strickland, 466 U.S. at 694. That burden is
satisfied only by a showing that the result of the trial would "reasonably likely have been
different absent the error[]." !d. at 695.
The court need not examine the question of whether counsel's performance was deficient
before addressing the question of whether petitioner was prejudiced by counsel' s performance.
The court may dispose of an ineffective-assistance-of-counsel claim by finding that petitioner
made an insufficient showing on either ground. !d. at 697.
In this federal habeas action, this Court must employ a "doubly deferential" standard of
review in evaluating the reasonableness of the Ohio Court of Appeals' adjudication of
petitioner' s claim under Strickland. See Woods v. Daniel, _ U.S. _, 135 S.Ct. 1372, 1376
(2015); Burt v. Titlow, _ U.S._, 134 S.Ct. 10, 13 (2013); Premo v. Moore, 562 U.S. 115, 12223 (2011) (quoting Harrington, 562 U.S. at 104-05); Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). Although " [s]urmounting Strickland' s high bar is never an easy task," Harrington, 562
U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)), the AEDPA requires that a
second layer of deference be accorded the state courts' adjudication of ineffective assistance of
counsel claims. The Supreme Court has explained:
Even under de novo review, the [Strickland] standard for judging counsel's
representation is a most deferential one. ...

****
Establishing that a state court's application of Strickland was unreasonable under
§ 2254(d) is all the more difficult. The standards created by Strickland and §
2254(d) are both "highly deferential," ... and when the two apply in tandem,
20

review is "doubly" so. . . . The Strickland standard is a general one, so the range
of reasonable applications is substantial. . .. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under§ 2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 689, and Knowles, 556 U.S. at
123); see also Premo, 562 U.S. at 122-23. Therefore, on federal habeas review, "(t]he pivotal
question is whether the state court' s application of the Strickland standard was unreasonable,"
which "is different from asking whether defense counsel 's performance fell below Strickland's
standard." Harrington, 562 U.S. at 101.
Upon review of the trial transcript, the undersigned concludes that it was not
unreasonable for the Ohio Court of Appeals to hold that petitioner had not demonstrated his trial
counsel's alleged state-law error in failing to request or object to the omission of the accomplicetestimony jury instruction amounted to constitutionally ineffective assistance within the meaning
of the Sixth Amendment.
As the Ohio Court of Appeals apparently recognized in this case, under Ohio law, the
omission of the jury instruction when an accomplice testifies against the defendant in a jury trial
does not amount to reversible error unless the defendant "would have obtained a different result
at trial" if the instruction had been given. See State v. Mack, No. 26859, 2014 WL 1345308, at
*2 (Ohio Ct. App. Mar. 31, 2014); see also State v. Harrison, 31 N.E.3d 220, 251 (Ohio Ct. App.
2015); State v. Lewis, No. 14CA3467, 2015 WL 6111474, at *2 (Ohio Ct. App. Oct. 14, 2015).
Ohio courts "generally look to three factors" in detennining whether the omission would affect
the trial 's outcome: "(1) whether the accomplice's testimony was corroborated by other
evidence introduced at trial; (2) whether the jury was aware from the accomplice's testimony that
[he/she] benefitted from agreeing to testify against the defendant; and/or (3) whether the jury was
21

instructed generally regarding its duty to evaluate the credibility of the witnesses and its province
to determine what testimony is worthy ofbelief.'. Lewis, supra, 2015 WL 6111474, at *3
(quoting State v. Bentley, No. 2004-P-0053, 2005 WL 2135141 , at *8 (Ohio Ct. App. Sept. 2,
2005), in tum quoting State v. Woodson, No. 03AP-736, 2004 WL 2406564, at *4 (Ohio Ct.
App. Oct. 28, 2004)); see also State v. Jackson, No. 2012-L-061, 2013 WL 5936337, at *4 (Ohio
Ct. App. Nov. 4, 2013). Numerous Ohio appellate courts "have concluded that ifthe first factor
and one other factor are present, the absence of the accomplice instruction will not affect the
outcome of the case.'' See Woodson , supra, 2004 WL 2406564, at *4 (and numerous cases cited
therein); see also Jackson, supra, 2013 WL 593633 7, at *4.
Here, the record supports the Ohio Court of Appeals ' finding that the accomplice
testimony at issue in this case was corroborated. Not only did Nelson and Woods corroborate
each other's testimony about the events that led to petitioner's indictment and their participation
in the charged drug offenses as "runners" for petitioner as the principal offender (see Doc. 8,
Trial Tr. 119-32, 140-49, 154-55, 163-79, 188-89, at PAGEID#: 355-68,376-80, 383-85, 39091 , 399-415, 424-25), but other corroborating evidence was introduced at trial to support their
testimony and to establish petitioner's guilt on the charges. Specifically, evidence was presented
that Breon Kelly, another individual who was present in Woods' apartment when the search
warrant was executed, had provided information to the police, which corroborated Nelson's and
Woods' testimony about the events giving rise to the indictment and their status as "runners" for
petitioner, who was the principal offender in the enterprise involving the transport and trafficking
of drugs brought from Columbus to sell in Portsmouth. (See id., Trial Tr. 82-83, 85, at
PAGEID#: 318-19, 321). Furthermore, evidence obtained during the execution of the search
warrant, including the large amount of money found in a pair of shorts discovered "right next" to

22

petitioner and identified by Woods as belonging to petitioner, corroborates not only Nelson 's,
Woods ' and Kelly' s consistent version of events, but also Nelson 's and Kelly's statements about
the amount of crack cocaine (an ounce and a half) claimed to have been brought by petitioner
from Columbus for sale in Portsmouth the day before the search was conducted. (See id., Trial
Tr. 35, 45-46, 51, 82-83, 85, 87-88, 93, 95-97, 103, 107-08, 175, at PAGEID#: 272, 282-83, 288,
318-19, 321 ' 323-24, 329, 331-33, 339, 343-44, 411 ).
In addition, as the Ohio Court of Appeals pointed out, the jury was made aware of the
criminal charges lodged against Nelson and Woods for their participation in the criminal
enterprise and the benefit they would receive in those cases by testifying for the State at
petitioner' s trial. Nelson affirmed on direct examination that she was "indicted arising out of this
case," had entered a guilty plea to trafficking in crack cocaine and possession of criminal tools,
and was "to receive a sentence of four years" with "eligibility for judicial release to a six month
in-house drug rehab program at one year. " (Jd. , Trial Tr. 118, at PAGEID#: 354). Woods
testified that she too faced "charges resulting out of the incident involving [petitioner]" and had
entered a plea agreement with the State to plead guilty to three counts of trafficking and one
count of conspiracy for a prison sentence to be imposed of "four years and eleven months" with
"possible early release in a year or two." (!d. , Trial Tr. 153, at PAGEID#: 389). Defense
counsel emphasized in closing arguments to the jury that neither Nelson nor Woods had been
sentenced yet and, therefore, had "something to gain" by testifying against petitioner. (Id. , Trial
Tr. 283, at PAGEID#: 524).
Finally, as discussed above in addressing the merits of the claim alleged in Ground One,
the jury was expressly instructed both at the opening and closing of trial that it was the sole and
exclusive judge of the credibility of witnesses with the authority to "believe or disbelieve a

23

particular witness and how much weight, if any, to give to the testimony of each witness" after
taking into consideration various factors, including each witness's "interest and bias." (See id.,
Trial Tr. 14, 297-99, at PAGEID#: 251 , 538-40). Ohio courts have found that, as a matter of
state law, such instructions are "sufficient" despite the failure of the trial court to provide an
accomplice testimony. See Bentley, supra, 2005 WL 2135141, at *8-9; see also Jackson, supra,
2013 WL 5936337, at *5; Woodson, supra, 2004 WL 2406564, at *4.
This Court is bound by the Ohio Court of Appeals' determination that the failure to give
the specific accomplice-testimony instruction set forth in Ohio Rev. Code§ 2923 .03(0) did not
ri se to the level of reversible error under Ohio law. Cf Jones v. Woods,_ F. App'x _,No . 151031 , 2015 WL 9309374, at *4 (6th Cir. Dec. 22, 2015) (citing Davis v. Straub, 430 F.3d 281,
291 (6th Cir. 2005)) (in affirming the district court's denial of a habeas petition based on a claim
that the petitioner's trial counsel was ineffective for failing to request a self-defense jury
instruction, the Sixth Circuit emphasized that "[w]e are bound by the [state] Court of Appeals'
determination that [the petitioner] was not entitled to the instruction under state law"); Warner v.

Zent, 997 F.2d 116, 133 (6th Cir. 1993) (quoting Mullaney v. Wilbur, 421 U.S. 684,690-91
( 1975)) (absent a showing of "extreme circumstances where it appears that the [state court's]
interpretation of [state law] is an obvious subterfuge to evade consideration of a federal issue,"
the federal habeas court is bound by the state court's determination of state law"). 6 In any event,
given the factors present in this case- i.e., the existence of corroborating evidence; the jury's
knowledge ofthe State's plea agreements with Nelson and Woods; and the general instructions
6

See also Bennett v. Warden, Lebanon Corr. lnst., 782 F. Supp.2d 466, 478 (S.D. Ohjo 2011) (and cases
cited therein) ("because the state courts are final authority on state-law issues, the federal habeas court must defer to
and is bound by the state court's rulings on such matters"); Meyers v. Ohio, No. 1:14cvl505, 20 16 WL 922633 , at
*7 (N.D. Ohio Jan. 2 1, 2016) (Report & Recommendation) (quoting Estelle v. McGuire, 502 U.S. 62, 68 (1991);
citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988)) ('"it is not the province of the federal habeas court to
reexamjne state-court determjnations of state-law questions "'; " [m]oreover, federal habeas courts are bound by
decisions of intermediate state courts on questions of state law unless convinced that the state's highest court would
decide the issue differently"), adopted, 2016 WL 916602 (N.D. Ohio Mar. 9, 2016).

24

that were given on witness credibility, the Ohio Court of Appeals did not unreasonably conclude
that, as a matter of state law, the alleged error was harmless because it had no material impact on
the jury's verdict or, in other words, did not affect the trial 's outcome.
In light of the Ohio Court of Appeals' reasonable resolution of the underlying claim of
state-law error, the undersigned concludes that the state court's adjudication of petitioner's
related ineffective-assistance-of-counsel claim is neither contrary to nor involved an
unreasonable application of Strickland. It was reasonable for the state court to find that
counsel 's alleged error did not constitute ineffective assistance because, under the second prong
of the Strickland test, it was not reasonably likely that the result of the trial would have been
different if the accomplice-testimony instruction had been given. Cf Arthurs v. Warden, Warren
Corr. lnst., No. 2:11cv541, 2012 WL 995395, at *17 (S.D. Ohio Mar. 23, 2012) (Report &

Recommendation) (holding in an analogous federal habeas case that the Ohio Court of Appeals
did not unreasonably apply the Strickland test in rejecting the petitioner's ineffective-assistanceof-counsel claim based on its reasonable determination "that the failure to give an accomplice
instruction had no material impact on the jury' s decision" in light of "the existence of substantial
corroborating evidence, the jury's knowledge ofthe plea agreement given to [the alleged
accomplice witness], the general instruction on credibility, and counsel 's ability to argue this
point to the jury"), adopted, 2012 WL 3728013 (S.D. Ohio Aug. 28, 2012). Therefore, this
Court "may not disturb [the Ohio Court of Appeals' ] ruling," which "is also dispositive of
petitioner's contention that [the] ineffective assistance of[his trial] counsel can serve as a basis
for excusing the procedural default of' the claim alleged in Ground One of the petition. Cf id.
Accordingly, in sum, petitioner has not demonstrated that he is entitled to habeas corpus
reliefbased on the ineffective-assistance-of-counsel claim alleged in Ground Two of the petition,

25

which involves allegations of errors by petitioner' s trial counsel as specified in petitioner' s brief
in reply to respondent' s return of writ. Petitioner procedurally defaulted and has waived his
claim of ineffectiveness based on allegations never presented to the state courts that petitioner's
trial counsel should have requested the testing of shorts that were linked to petitioner and should
have objected to the first-degree felony charge set forth in Count 1 of the indictment. Moreover,
the Ohio Court of Appeals' adjudication of the remaining claim of ineffectiveness, based on trial
counsel's failure to request or object to the omission of the accomplice-testimony instruction set
forth in Ohio Rev. Code§ 2923.03(D), is neither contrary to nor involved an unreasonable
application of Strickland. Because petitioner has not shown that the state appellate court's
determination "was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement," see
Harrington, 562 U.S. at 103, petitioner is not entitled to habeas reliefbased on such claim and is
unable to rely on trial counsel ' s alleged error as "cause" for excusing his procedural default of
the claim alleged in Ground One of the petition.
C. Petitioner Is Not Entitled To Relief Based On His Claim In Ground Three
Challenging The Weight/Sufficiency Of The Evidence Supporting His Convictions
In Ground Three of the petition, petitioner contends that he is entitled to habeas relief
because the jury's verdicts of guilt on the criminal charges are against the manifest weight of the
evidence. (Doc. 3, at PAGEID#: 19).
As respondent has argued in the return of writ (see Doc. 9, p. 17, at PAGEID#: 632), this
Court lacks jurisdiction to consider petitioner's claim to the extent that he challenges the weight
of the evidence supporting his convictions. That claim raises an issue of state-law only, which is
not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S.
I, 5-6 (2010); Estelle v. McGuire, 502 U.S. 62,67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41
26

(1984);Jackson v. Warden, Chillicothe Corr. lnst., No. 1:14cv128, 2015 WL4481517, at *1 ,
*16 (S.D. Ohio July 22, 2015) (Dlott, J.; Wehrman, M.J.) (and cases cited therein); see also

Richardson v. Smith, No. 3:11cv1217, 2012 WL 5903986, at *17 (N.D. Ohio Oct. 30, 2012)
(Report & Recommendation) (quoting Tibbs v. Florida, 457 U.S. 31 , 41-4 7 ( 1982)) ("claim that
a conviction is against the manifest weight of the evidence is not cognizable in federal habeas
corpus review" because it is "derived from purely state law whereby the state appellate court sits
as a 'thirteenth juror and disagrees with fact finder's resolution of conflicting testimony' and
finds that the fact finder 'clearly lost its way and created such a miscarriage of justice that the
conviction must be reversed and a new trial ordered"'), adopted, 2012 WL 5903896 (N.D. Ohio
Nov. 26, 2012). Cf Nash v. Eberlin, 258 F. App'x 761 , 765 & n.4 (6th Cir. 2007) (recognizing
that "a manifest-weight-of-the-evidence argument is a state-law argument"). Instead, the Court
only has jurisdiction to consider a claim challenging the sufficiency of the evidence, which
presents a due process issue.
Petitioner has suggested in his brief in reply to the return of writ that he is also contesting
the sufficiency ofthe evidence supporting his convictions. (See Doc. 12, pp. 5-7, at PAGEID#:
643-45). As discussed above at length with respect to the procedurally-defaulted claims alleged
in Grounds One and Two of the petition, to the extent that the Ohio Court of Appeals considered
the constitutional issue on direct appeal when it overruled petitioner' s assignment of error
challenging the weight of the evidence, petitioner committed a procedural default by failing to
pursue a timely appeal to the Ohio Supreme Court from the state appellate court' s direct appeal
decision. In any event, even assuming, without deciding, that the argument petitioner has
asserted as "cause" for his failure to file a timely appeal has merit, petitioner has not
demonstrated that he is entitled to habeas relief based on the merits of any claim of insufficient

27

evidence.
The well-settled standard of review for evaluating the merits of constitutional claims
challenging the sufficiency of the evidence was established by the Supreme Court in Jackson v.
Virginia, (1979). As the Supreme Court held in Jackson, because the Due Process Clause
requires the State to prove beyond a reasonable doubt every fact necessary to constitute the
charged offense, In Re Winship, 397 U.S. 358, 363-64 (1970), "the relevant question" in
assessing the sufficiency of the evidence "is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).
Under the Jackson standard, the State is not required to rule out every hypothesis except
that of guilt beyond a reasonable doubt. !d. at 326. Rather, "a federal habeas corpus court faced
with a record of historical facts that supports conflicting inferences must presume-even if it does
not affirmatively appear in the record- that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution." !d.; see also Walker v. Engle, 703 F.2d 959,
969-70 (6th Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in
testimony, to weigh the evidence and to draw reasonable inferences from the evidence. Jackson,
443 U.S. at 319. Consequently, the reviewing court is not permitted to reweigh the evidence,
reevaluate the credibility of witnesses, make its own subjective determination of guilt or
innocence, or otherwise substitute its opinion for that of the jury. See id. at 318-19 & n.l3 ; see
also United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567
F.3d 191 , 205 (6th Cir. 2009)); York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988) (per curiam).
"Circumstantial evidence alone is sufficient to support a conviction." Newman v.
Metrish, 543 F. 3d 793, 796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992 (6th

28

Cir. 2000)); see also Fisher, 648 F.3d at 450. Due process is satisfied as long as such evidence is
enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a
reasonable speculation that the petitioner is guilty of the charged crime. Newman, 543 F.3d at
796-97 (and Sixth Circuit cases cited therein).
Moreover, federal habeas review of a claim challenging the sufficiency of the evidence is
even further limited. As the Sixth Circuit explained in Brown, 567 F.3d at 205, the federal
habeas court is "bound by two layers of deference to groups who might view facts differently
than [the habeas court] would." The federal habeas court must defer not only to the trier of
fact' s findings as required by Jackson, but under 28 U.S.C. § 2254(d), must also "defer to the
state appellate court 's sufficiency determination as long as it is not unreasonable." !d. (emphasis
in original); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011 ); Anderson v. Trombley,
451 F. App'x 469, 474-75 (6th Cir. 2011). Therefore, as the Sixth Circuit went on to emphasize
in Brown:
[W]e cannot rely simply upon our own personal conceptions of what evidentiary
showings would be sufficient to convince us of the petitioner's guilt. We cannot
even inquire whether any rational trier of fact would conclude that petitioner ...
is guilty of the offenses for which he was charged. Instead, we must determine
whether the Ohio Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find [the petitioner] guilty beyond a reasonable doubt
based on the evidence introduced at trial.
Brown, 567 F.3d at 205 (emphasis in original).
In this case, the Ohio Court of Appeals was the only state court to address petitioner's
claim on the merits. Utilizing the more stringent state-law standard applicable to manifestweight-of-the-evidence claims/ the court overruled petitioner's assignment of error, reasoning in
pertinent part as follows:
7

In Jackson, supra, 20 15 WL 44815 17, at *16, the Court recognized that the state-law standard of review
is "more stringent" given that a "finding that a conviction is supported by the weight of the evidence [under Ohio
law] must necessarily include a finding of sufficiency."

29

In the case sub judice, after our review of the record we are not persuaded that
appellant's convictions are against the manifest weight of the evidence. The
evidence seized during the search warrant's execution, as well as the testimony of
Nelson and Woods, persuade us that the jury did not lose its way and create a
manifest miscarriage of justice. Rather, we believe that ample competent,
credible evidence supports the jury's conclusion .
. . . . [Appellant' s] "Notice of Supplemental Authority" argues that his conviction
under "R.C. 2925.03(A)(1)/(C)(4)(F) (presumably referring to the count one
trafficking charge) is against the manifest weight of the evidence because the only
evidence of the weight of the drug is " 1.4 grams," which is less than the twentyseven gram minimum needed for a conviction under the statute. We believe,
however, that two problems exist with this argument. First, rather than challenge
the manifest weight of the evidence, appellant appears to challenge the sufficiency
of the evidence. Manifest weight and sufficiency of evidence arguments are
quantitatively and qualitatively different from one another. .. .
The second problem is appellant's selective recall of the evidence adduced at trial.
Our review of the evidence reveals that authorities recovered $2,142 from what
Brandi Woods identified as appellant's shorts. Portsmouth Police Officer Joshua
Justice testified that [a] one-half (1 /2) gram of crack cocaine could be purchased
for $50. At $50 per half gram, the $2,142 found in appellant' s shorts indicates
that appellant, or his "runners," sold approximately 42.84 grams of crack.
Moreover, the witnesses provided testimony at trial concerning the actual volume
of drugs transported from Columbus to Portsmouth on the dates in question,
including the methods and process that appellant used to transport the drugs and
the sales that resulted from their efforts. Also noteworthy is the evidence found in
the apartment, including numerous torn, empty plastic baggies that were used to
transport cocaine. . . . This evidence is sufficient to satisfy statutory requirements
of count one of the indictment.
(Doc. 8, Ex. 19, pp. 5-7, at PAGEID#: 164-66) (footnotes omitted).
Applying the double-layer deferential standard to the case-at-hand, and upon review of
the trial record, the undersigned is convinced that the Ohio Court of Appeals' rejection of
petitioner's assigrunent of error is neither contrary to nor unreasonable under the clearlyestablished standard of review enunciated by the Supreme Court in Jackson.
First, it was not unreasonable for the Ohio Court of Appeals to find that the evidence
adduced at trial was sufficient to establish petitioner' s guilt. As discussed earlier, both Shelby
Nelson and Brandi Woods implicated petitioner as the principal offender in the criminal
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enterprise involving the transport and trafficking of drugs brought from Columbus to sell in
Portsmouth. (See Doc. 8, Trial Tr. 119-32, 140-49, 154-55, 163-79, 188-89, at PAGEID#: 35568, 376-80, 383-85, 390-91 , 399-415, 424-25). Moreover, evidence was introduced that Breon
Kelly, another participant in the enterprise, had provided information to the police, which
corroborated Nelson 's and Woods' version of events. (See id. , Trial Tr. 82-83, 85, at PAGEID# :
318-19, 321 ). As the Ohio Court of Appeals reasonably found, the evidence of illegal activity
obtained during the execution of the search warrant also implicated petitioner, who was present
in the apartment when the search was conducted. As the state appellate court specifically
pointed out, evidence was discovered indicating that the individuals in the apartment were
involved in the trafficking of drugs. (See id. , Trial Tr. 96-97, at PAGEID#: 332-33). The police
also discovered $2,142 in a pair of shorts, which a rational juror could infer belonged to
petitioner because the article of clothing was found "right next" to petitioner, who was lying in
bed when the search warrant was executed, and was also later identified by Brandi Woods as
belonging to petitioner. (See id. , Trial Tr. 51 , 93, 175, at PAGEID: 288, 329, 411). An
investigating police officer, Joshua Justice, testified that the " [g]oing rate [for] crack cocaine is
... $50.00 for a half gram" or "$1 00 for a gram." (See Doc. 8, Trial Tr. 35, at PAGEID# : 272).
As the Ohio Court of Appeals pointed out, given Justice' s testimony, the amount of money found
in the shorts linked to petitioner correlates with a finding that he was involved in the trafficking
of approximately 42 grams of crack cocaine. Such a finding supports petitioner' s conviction for
the first-degree felony charged in Count 1, which required the jury to find beyond a reasonable
doubt that the amount of cocaine involved in the trafficking offense equaled or exceeded 27
grams and was less than 100 grams. See Ohio Rev. Code § 2925.03(C)(4)(f).
Petitioner has argued that the money found in the shorts was insufficient to establish

31

beyond a reasonable doubt the first-degree felony charged in Count 1 of the indictment. Even
assuming, solely for the sake of argument, that more evidence was needed to establish
petitioner's guilt on that count, evidence was introduced that both Nelson and Kelly had stated to
police that petitioner brought an ounce and a half of crack cocaine from Columbus for sale in
Portsmouth the day before the search was conducted. Officer Justice testified at trial that an
ounce of crack cocaine equals 28 grams. (!d., Trial Tr. 35, at PAGEID#: 272). Therefore,
standing alone, Kelly's and Nelson's consistent statements that petitioner brought an ounce and a
half, or approximately 42 grams, of crack cocaine to Portsmouth in one of the many trips he
made there from Columbus are sufficient to establish petitioner' s guilt for the first-degree felony
offense charged in Count 1. Indeed, Kelly's and Nelson's statements support the reasonable
inference that the amount of money found in the shorts linked to petitioner was obtained from the
sale of the drugs he had brought to Portsmouth the previous day.
Finally, petitioner contends that the evidence was insufficient because the main evidence
ofhis culpability in the charged offenses came from the two " accomplice" witnesses, Nelson and
Woods, whose trial testimony should have been viewed as suspect and lacking in credibility.
(See Doc. 12, pp. 5-6, at PAGEID#: 643-44). However, in assessing the sufficiency of the
evidence under the Jackson standard of review, the reviewing court is precluded from
reweighing the evidence, reevaluating the credibility of witnesses or resolving conflicts in
testimony, because those are issues for the fact-finder to decide. See Jackson, 443 U.S. at 31819 & n.13 ; see also Fisher, 648 F.3d at 450 (citing Brown, 567 F.3d at 205). In any event,
although accomplice testimony has been recognized as triggering credibility concerns, a rational
juror could have chosen to believe Nelson's and Woods' consistent testimony implicating
petitioner in the offenses, particularly given that the only evidence refuting their version of

32

events was by petitioner, whose own self-serving testimony reasonably could have been found to
be even more suspect and lacking in credibility.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to relief
based on his claim in Ground Three of the petition challenging the weight and sufficiency of the
evidence against him. Petitioner's claim challenging the weight of the evidence is not
cognizable in this federal habeas proceeding because it raises only an issue of state law, which
this Court lacks jurisdiction to review. To the extent that petitioner has asserted a sufficiency-ofevidence claim that is subject to review by this Court, the claim was procedurally defaulted by
petitioner in the state courts. In any event, petitioner is not entitled to habeas relief based on
such claim because the Ohio Court of Appeals ' determination that sufficient evidence was
presented to support petitioner' s convictions is neither contrary to nor involves an unreasonable
application of the clearly-established applicable standard of review enunciated by the Supreme
Court in Jackson .
IT IS THEREFORE RECOMMENDED THAT:
I. The petitioner's prose petition for a writ ofhabeas corpus pursuant to 28 U.S.C. §

2254 (Doc. 3) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to claims alleged in the
petition. To the extent that petitioner has raised claims which this Court has concluded are
waived and thus procedurally barred from review, a certificate of appealability should not issue
because, under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473,
484-85 (2000), "jurists of reason" either would not find it debatable whether this Court is correct
in its procedural rulings or would not find it debatable whether petitioner has stated a viable
constitutional claim. In addition, to the extent that petitioner has raised claims that have been

33

considered on the merits herein, a certificate of appealability should not issue because petitioner
has not stated a "viable claim of the denial of a constitutional right," nor are the issues presented
"adequate to deserve encouragement to proceed further. " See Slack, 529 U.S. at 475 (citing
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App.

P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in "good faith," and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See

Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date:

-~~(p
Karen L. Litkovitz
United States Magistrate Judge

34

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN H. WEST, JR. ,
Petitioner,

Case No. 1: 15-cv-267
Black, J.
Litkovitz, M.J.

vs.
WARDEN, ROSS
CORRECTIONAL fNSTITUTION,
Respondent.
NOTICE

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

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