Webster v. Warden, Belmont Correctional Institution

Filing 22

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Nathaniel Webster, Jr. IT IS RECOMMENDED THAT: (1) Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED with pre judice; (2) A certificate of appealability should not issue with respect to the claims alleged in the petition; (3) A certificate of appealability should not issue; (4) With respect to any application by petitioner to proceed on appeal in forma paupe ris, 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. Objections to R&R due by 3/5/2024. Signed by Magistrate Judge Stephanie K. Bowman on 2/20/2024. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NATHANIEL WEBSTER, JR.,
Petitioner,
vs.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1:15-cv-329
Black, J.
Bowman, M.J.
REPORT AND
RECOMMENDATION

Petitioner, a former prisoner at the Belmont Correctional Institution,1 through counsel,
has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is
before the Court on the petition, respondent’s return of writ, and petitioner’s reply. (Doc. 1, 12,
15). For the reasons stated below, the petition should be denied.
I. FACTUAL BACKGROUND2
The Ohio Court of Appeals set forth the following set of facts leading to petitioner’s
conviction and sentence:3

1

The Hamilton County Clerk of Court’s online docket records indicate that on May 26, 2021 petitioner was granted
judicial release pursuant to Ohio Rev. Code § 2929.20 and is currently on community control. This Court may
take judicial notice of court records that are available online to members of the public. See Lynch v. Leis, 382 F.3d
642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

2

This action was transferred to the undersigned’s docket several years after it was filed. The Court recognizes that the
case has been fully briefed, with a complete record, since April 2, 2020. (See Doc. 20). The intention of the
undersigned is to rule timely on matters before her. Unfortunately, that did not happen here and the Court regrets the
delay in this action.
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28 U.S.C. § 2254(e)(1) 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 petitioner rebuts the presumption by “clear and convincing evidence.” Petitioner
has presented his own statement of facts in the petition, before generally asserting that “[t]he preceding statement of
facts establishes clear and convincing evidence that the state courts unreasonably determined the facts.” (Doc. 1 at
PageID 32). However, petitioner has failed to demonstrate that the Ohio Court of Appeals made an unreasonable
determinization of any particular fact. To the extent that petitioner contends the evidence was insufficient to support
his convictions, raises other grounds for relief related to the evidence introduced against him, or raises specific
arguments concerning factual determinations made by the state appellate court in his grounds for relief, these claims
are addressed below. Because petitioner has otherwise neither cited nor presented clear and convincing evidence to
rebut the Ohio Court of Appeals’ factual findings quoted herein, the state appellate court’s factual findings are
presumed to be correct. See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).

{¶4} In 2009, Jackson and Webster lived in the same neighborhood only a few
houses away from each other. Jackson was a 15–year–old high school sophomore.
She lived with her parents and siblings. Webster was married and had several
children. According to Jackson, she began babysitting for Webster’s family in
2009, and a sexual relationship soon ensued. Webster admitted to police that he
had had a sexual relationship with Jackson. The main issue at trial was the timing
of the alleged sexual activity, and whether it occurred when Jackson was only 15
years old. Webster’s mens rea as to Jackson’s age was also an issue.
The September 2009 Charge
{¶5} In regard to the charge that Webster and Jackson had engaged in sexual
intercourse in September 2009, Jackson testified that during that month while she
and a friend, Chloe Kelly, were getting ready to go to a high school football game,
Webster texted Jackson on her cellular telephone asking to see her. Jackson told
Webster that she was at Kelly’s house. Webster picked her up there and drove
Jackson to his house where, according to Jackson, they engaged in sexual
intercourse in his bedroom while Webster’s wife was out. Kelly corroborated
details of Jackson’s testimony regarding the texting and Jackson leaving her house
unexpectedly. Kelly also testified that Jackson had told her in the fall of 2009 that
Jackson had been having a sexual relationship with Webster.
{¶6} In further support of the September 2009 charge, the state introduced cellular
telephone records showing that there were 256 telephone calls and text messages
between Jackson’s and Webster’s telephones that month.
The October 2009 Charge
{¶7} Michelle Jackson, Jackson’s mother, testified that she was having a difficult
time contacting her daughter on October 30, 2009. Michelle remembered the date
clearly because it was the day before her premature newborn baby was coming
home from the hospital. Since Michelle could not find Jackson, she decided to
drive around the neighborhood to look for her. Michelle discovered Jackson and
Webster together in Webster’s car as Webster was driving into the subdivision
where they lived. At trial, Jackson testified that she had not had sexual intercourse
with Webster on the evening that her mother had caught her, but that she had had
sexual intercourse with Webster a number of times that month in Webster’s house.
Jackson also testified that Webster had told her that he loved her on October 28,
2009. Jackson had marked the date on her calendar. The calendar was admitted
into evidence.
{¶8} Hue Jackson, Jackson’s father, testified that he telephoned Webster about this
incident, asking if anything inappropriate was occurring between Webster and
Jackson. During this call, Hue told Webster that Jackson was only 15 years old.
Hue explained to the jury that he was sure of the date that he had called Webster
because he had been the head coach of the Oakland Raiders at the time, and he
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remembered that his team was playing the Denver Broncos that Sunday. He was
also sure of the timing because his newborn daughter was soon to come home from
the hospital.
{¶9} As further evidence that there was a relationship between Webster and
Jackson, the state submitted evidence that Webster and Jackson had had 84 cellular
telephone contacts that month.
The November 2009 Charge
{¶10} After Jackson had been caught with Webster in his car, she had been
“grounded.” But, according to Jackson, she continued to see Webster two to three
times a week during November 2009. Jackson testified that she would tell her
mother that she was going jogging in the neighborhood and instead would meet
Webster at a predetermined location. Jackson stated that she and Webster had
sexual intercourse in his car on these occasions while the car was parked in an
apartment building parking lot or in the parking lot of a nearby retirement center.
Jackson also testified that, in November 2009, she had a heart with Webster’s initial
tattooed on her body.
{¶11} Michelle Jackson testified that, in November 2009, she would frequently
watch her daughter leave to go jogging in the neighborhood, and at the same time
would notice a car leaving Webster’s driveway. Michelle was sure that these events
occurred in November 2009 because she would watch Jackson from a second floor
window as she fed her newborn baby. According to Michelle, her daughter would
be gone 30 to 40 minutes at a time on these occasions, and when she returned she
did not look as if she had been running.
{¶12} In further support of the November 2009 charge, the state introduced into
evidence telephone records showing 125 telephone contacts between Jackson’s
cellular telephone number and Webster’s cellular telephone number during that
month.
The December 2009 Charge
{¶13} In regard to the December 2009 charge, the state introduced records showing
117 telephone contacts between Webster’s telephone number and Jackson’s
telephone number that month. The state did not present evidence of sexual contact
between Jackson and Webster during this month, and Jackson testified that she
thought that Webster had left town in December 2009.
Evidence in Support of all Charges
{¶14} In support of all of the charges, the state played a series of taped
conversations between Jackson and Webster that Jackson had secretly recorded at
the direction of investigating police officers. In them, Webster references his and
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Jackson’s sexual relationship but is vague as to its timing. In one of the calls,
Webster joked with Jackson about how young she was. That call was made in 2011.
{¶15} Finally, the state produced a taped confession in which Webster admitted to
detective Brian Pitchford that he and Jackson had had a sexual relationship.
Webster stated that he didn’t know exactly when the relationship began, but that he
remembered Hue Jackson confronting him about being alone with his daughter in
Webster’s car. Webster implied that he had been sexually involved with Jackson
at the time that Hue had called. He also admitted that the relationship may have
started in 2009. And he confessed that he and Jackson would text each other to
arrange their sexual encounters. Webster further confessed that he didn’t know
how old Jackson was at the time that he had started a sexual relationship with her.
He thought that she may have been “15, 14, 16.”
Webster’s Defense
{¶16} At trial, Webster attempted to discredit the state’s version of events as it
related to the timing of their relationship and also attempted to establish that
Jackson appeared to be older than she was.
{¶17} During the cross-examination of the state’s witnesses, the defense drew out
inconsistencies in some of the testimony, and highlighted Jackson’s inability to
remember specific dates. The defense also elicited testimony from Jackson
suggesting that Pitchford may have coached her as to the timing of her relationship
with Webster. And the defense thoroughly questioned Pitchford concerning
Webster’s confession. Counsel focused on Pitchford’s numerous leading questions
concerning the dates at issue, pointing out that Webster could not remember
specific dates until Pitchford suggested the dates to him.
{¶18} Several witnesses for the defense were called. Webster’s brothers-in-law,
nicknamed “Redman” and “Bud,” were living with Webster in 2009. They testified
that they and each of their girlfriends had had almost exclusive use of Webster’s
cellular telephone during the months in question. Other witnesses for the defense
corroborated this testimony, stating that it was difficult to reach Webster on his
cellular telephone because he did not answer it. According to Redman and Bud,
Jackson sold marijuana to them on a regular basis and the telephone calls and texts
between Jackson’s cellular telephone and Webster’s cellular telephone often
concerned a marijuana sale.
{¶19} Witnesses for the defense also testified that Jackson appeared to be older
than 15 years old, claiming that Jackson had been driving in the fall of 2009 and
that she had been admitted to a night club after showing identification.
{¶20} Webster’s wife, Jennifer, testified that Webster was out of town many times
throughout the four-month span at issue. Jennifer believed that Webster had been
having an affair in June 2010 based on how Webster had been acting at the time
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and also based on certain health issues that Jennifer developed in August 2010 that
had required a trip to the gynecologist.
(Doc. 11, Ex. 18 at PageID 311–16).
II. PROCEDURAL BACKGROUND
State Trial Proceeding
In June 2011, the Hamilton County, Ohio grand jury returned a seven-count indictment,
charging petitioner with one count of gross sexual imposition, one count of sexual battery, and
five counts of unlawful sexual conduct with a minor. (Doc. 11, Ex. 1). Each count in the
indictment specified a one month time period in 2009 during which the charges were alleged to
have occurred. (See id.). Petitioner pled not guilty to the charges in the indictment.
Petitioner filed a motion to sever the count of gross sexual imposition from the remaining
counts for the purposes of trial. (Doc. 11, Ex. 3). Petitioner argued that evidence of the victim’s
sexual activity is only admissible in very limited circumstances with respect to gross sexual
imposition, pursuant to Ohio Rev. Code § 2907.05(E), Ohio’s rape shield statute. (Id. at PageID
149). The remaining charges did not contain the “rape shield” applicable to the gross sexual
imposition count and petitioner argued that joinder of all counts would therefore prevent him
from presenting evidence as to the remaining counts of sexual battery and unlawful sex with a
minor. The motion was denied by the trial court. (Doc. 11, Ex. 5).
On April 25, 2012, following a jury trial, petitioner was found guilty of four counts of
sexual conduct with a minor. (Doc. 11, Ex. 9). He was acquitted of the remaining charges of
gross sexual imposition, sexual battery, and unlawful sexual conduct with a minor with respect to
August 2009. (Doc. 11, Ex. 10).
On May 8, 2012, petitioner, through counsel, filed unsuccessful motions for acquittal
after verdict pursuant to Crim. R. 29(C) and for a new trial. (See Doc. 11, Ex. 11, 12). On June
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13, 2012, petitioner was sentenced to a total aggregate prison sentence of twelve years in the
Ohio Department of Corrections. (Doc. 11, Ex. 13).
Direct Appeal
Petitioner, through new counsel, filed a notice of appeal to the Ohio Court of Appeals.
(Doc. 11, Ex. 14). Petitioner raised the following eleven assignments of error in his appellate
brief:
ASSIGNMENT OF ERROR I: As the offenses were neither charged nor proven with
sufficient specificity, Webster was denied his Fifth, Sixth, Eighth, and Fourteenth
Amendment due process rights: (1) to notice of the specific charges against him; (2) to
present a defense; (3) to confront the State’s evidence; (3) to have the State prove his
guilt beyond a reasonable doubt; and (4) to be protected against double jeopardy and
cruel and unusual punishment.
ASSIGNMENT OF ERROR II: Insufficient evidence exists to support four separate
counts of “unlawful sexual conduct with a minor” in violation of Webster’s state and
federal constitutional rights to due process and a fair trial.
ASSIGNMENT OF ERROR III: Plain error in violation of Webster’s rights to due
process, to confront the State’s evidence, and to a fair trial by an impartial jury occurred
when the State’s lead investigator and representative at trial directly vouched for
Jordyn’s truthfulness specifically regarding her accusations against Webster.
Alternatively, trial counsel’s failure to object to the improper testimony constitutes
ineffective assistance of counsel.
ASSIGNMENT OF ERROR IV: Plain error in violation of Webster’s rights to due
process, to confront the State’s evidence, and to a fair trial by an impartial jury occurred
when the State’s lead investigator and representative at trial testified that the Jordyn’s
allegations constitute “unlawful sexual conduct with a minor” in violation of Ohio law.
Alternatively, trial counsel’s failure to object to the improper testimony constitutes
ineffective assistance of counsel.
ASSIGNMENT OF ERROR V: Improper application of the rape shield law deprived
Webster of his right to confront the State’s evidence and to present a defense when the
court barred the defense from presenting: (1) evidence to which, by the rape shield
statute’s plain wording, the shield does not apply; and (2) evidence crucial to the
outcome-determinative timing and mens rea elements of the case, such that even if the
rape shield typically applied, application in the instant case runs contrary to Webster’s
Sixth and Fourteenth Amendment rights to due process, confront the State’s evidence,
and present a defense. Alternatively, the trial court abused its discretion in violation of
Webster’s same constitutional rights when it denied the motion to sever the GSI charge
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(the only charge to which the rape shield attached) from the remaining six counts.
ASSIGNMENT OF ERROR VI: In violation of Webster’s rights to due process, to
present a defense, and confront the State’s evidence, the trial court improperly
interpreted the hearsay exception “statements against interest” to exclude statements
from Webster which were against his pecuniary and proprietary interest at the time of
utterance, but which had become beneficial by the time of trial. Alternatively, trial
counsel provided ineffective assistance of counsel by failing to proffer the correct
interpretation of the hearsay exception.
ASSIGNMENT OF ERROR VII: Alternatively to Assignments of Error I and II, trial
counsel provided ineffective assistance of counsel in violation of the Sixth and
Fourteenth Amendments when counsel: (1) failed to object to a leading question asked
of the complaining witness regarding the timing of sexual conduct; and (2) improperly
attached a timeframe to the occurrence of sexual conduct during cross-examination of
the same witness when she had never testified to said timeframe absent improper
leading. Without these failures, the record would be devoid of any evidence to establish
the November 2009 count of unlawful sexual conduct with a minor.
ASSIGNMENT OF ERROR VIII: Webster’s convictions are against the manifest
weight of evidence in violation of his Fifth, Sixth, and Fourteenth Amendment rights,
as the record lacks specific credible evidence to substantiate the occurrence of four
distinct instances of sexual conduct in 2009.
ASSIGNMENT OF ERROR IX: The cumulative effect of the errors in total, and in
various combinations, warrants reversal because each error addresses the same casedeterminative issues regarding the timing of sexual conduct, Webster’s mens rea
regarding Jordyn’s age, and Jordyn’s credibility.
ASSIGNMENT OF ERROR X: Plain error resulted when the court ordered Webster
to pay, as part of his sentence, restitution to compensate for Jordyn’s counseling
expenses.
ASSIGNMENT OF ERROR XI: The trial court abused its discretion in violation of
Webster’s Sixth, Eighth, and Fourteenth Amendment rights to due process and to be
free from cruel and unusual punishment, by sentencing Webster to the maximum fine
($40,000) and a total of 12 years imprisonment comprised of consecutive terms when:
(1) comparable cases involving first time offenders convicted of more egregious
unlawful sexual conduct have resulted in shorter imprisonment terms or even
probation; and (2) the evidence adduced at trial fails to support four distinct incidents
of the offense. Accordingly, the court’s factual determinations purporting to assign
levels of egregiousness to the different counts and to justify consecutive sentences are
arbitrary and unreasonable.
(Doc. 11, Ex. 15). On September 25, 2013, the Ohio Appeals Court found that there was

7

insufficient evidence to support petitioner’s conviction on count seven of the indictment,
charging petitioner with unlawful sexual conduct with a minor occurring in December 2009.
(Doc. 11, Ex. 18, 19). However, the appeals court affirmed the trial court’s judgment in all other
respects.
On November 21, 2013, petitioner was resentenced to a total aggregate prison sentence of
ten years in the Ohio Department of Corrections. (Doc. 11, Ex. 24).
Ohio Supreme Court
Petitioner, through counsel, filed a timely notice of appeal to the Ohio Supreme Court.
(Doc. 11, Ex. 20). In his memorandum in support of jurisdiction, petitioner raised the following
sixteen propositions of law:
1. Evidence of a single incident of sexual conduct anchored to the requisite timeframe
(prior to the complainant reaching the age of consent), coupled with vague
assertions that a “pattern of sexual conduct” occurred, constitutes insufficient
evidence of multiple counts of Unlawful Sexual Conduct with a Minor in violation
of a defendant’s rights to due process, a fair trial by an impartial jury, notice of the
charges, to present a defense, to confront the State’s evidence, and to be free from
cruel and unusual punishment.
2. An Indictment and Bill of Particulars for multiple counts of “Unlawful Sexual
Conduct with a Minor” fails to adequately notice a defendant of the charges when
the facts alleged fail to distinguish specific incidents of sexual conduct anchored to
the timeframe prior to the complainant reaching the age of consent.
3. Testimony from the State’s detective/trial representative, in a he-said/she-said case
stating: (1) that he believes the complainant’s allegations against the defendant; (2)
that he discovered evidence in corroboration of said accusations; and (3) that the
allegations constitute “unlawful sexual conduct with a minor” “in violation of Ohio
law”— unconstitutionally infringes on the jury’s role of making factual and
credibility determinations by vouching for the complainant’s truthfulness and by
opining an ultimate legal conclusion concerning the defendant’s mens rea.
4. Testimony from the State’s detective/trial representative, in a he-said/she-said case
stating: (1) that he believes the complainant’s allegations against the defendant; (2)
that he discovered evidence in corroboration of said accusations; and (3) that the
allegations constitute “unlawful sexual conduct with a minor” “in violation of Ohio
law”— constitutes improper vouching for the complainant in violation of the
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defendant’s rights to due process, to confront the State’s evidence, and to a fair trial
by an impartial jury.
5. Testimony from the State’s detective/trial representative which: (1) uses terms of
art that have definitions specific to this offense separate and apart from common
vernacular; and (2) concerns ultimate issues—unconstitutionally infringes on the
jury’s role of making factual and credibility determinations.
6. Ineffective assistance of counsel attaches when, in a he-said/she-said case, counsel
fails to object to improper testimony from the State’s detective/trial representative
which: (1) directly vouches for the truthfulness of the complainant regarding her
allegations against the defendant; (2) represents that he discovered evidence in
corroboration of said accusations; and (3) concludes that the allegations constitute
“unlawful sexual conduct with a minor” “in violation of Ohio law.”
7. The State waives its ability to use the rape shield statute to bar the defendant from
presenting evidence on a topic otherwise excludable by the rape shield when the
State opens the door to said evidence by asking its own witness about the same
topic during its direct examination of the witness.
8. Evidence typically excludable per the rape shield statute is admissible when
necessary to protect a defendant’s constitutional rights to present a defense and
confront the State’s evidence regarding essential elements of the offense.
9. If, while conducting relevance and probative-value-versus-prejudice analyses, the
trial court applies a strict liability mens rea to “unlawful sexual conduct with a
minor”—an offense that actually carries a knowingly or reckless mens rea—and
the court ultimately precludes the defendant from presenting the evidence in
question, the trial court’s consideration of the wrong mens rea violates a
defendant’s constitutional rights to due process, to present a defense, and to
confront the State’s evidence when the evidence in question would have impacted
the sufficiency, weight, and credibility of State’s evidence of the timing of the
sexual conduct and the defendant’s mens rea by demonstrating that the sexual
conduct occurred after the alleged victim turned 16 years old/the age of consent.
10. Trial counsel’s failure to properly proffer evidence constitutes ineffective
assistance of counsel when the evidence in question would have impacted the
sufficiency, weight, and credibility of [the] State’s evidence of the timing of the
sexual conduct and the defendant’s mens rea by demonstrating that the sexual
conduct occurred after the alleged victim turned 16 years old/the age of lawful
consent.
11. A “statement against interest” must be analyzed from the perspective of when the
statements were made rather from the perspective of the time of trial, even if the
statements have become helpful to the defendant by the time of trial.

9

12. Improper interpretation of an evidentiary rule which leads to the exclusion of
evidence crucial to an outcome-determinative timing element of the offense runs
contrary to a defendant’s rights to due process, to present a defense, and to confront
the State’s evidence.
13. Ineffective assistance of counsel attaches when trial counsel fails to proffer the
proper interpretation of an evidentiary rule and the improperly excluded evidence
pertains to a crucial, outcome-determinative timing element of the offense in
question.
14. Plain error and ineffective assistance of counsel attaches when trial counsel fails to
object to an improper leading question that establishes the only evidence to
potentially substantiate one of the counts of the crime at issue; and then leads the
witness to repeat the same testimony during cross-examination.
15. Plain error attaches to a restitution order that includes compensation for a victim’s
psychiatric treatment when the restitution order is part of the sentence (as opposed
to a condition of probation).
16. Factual determinations purporting to assign levels of egregiousness to different
counts in order to justify non-minimum, consecutive prison terms and maximum
fines are arbitrary and unreasonable when a defendant is indigent, a first time
offender, and the record lacks specific evidence to support three distinct counts.
(Doc. 11, Ex. 21). On February 19, 2014, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. (Doc. 11, Ex. 24).
Federal Habeas Corpus
Petitioner, through counsel, filed the instant federal habeas corpus action raising the
following nine grounds for relief:
GROUND ONE:
In finding that the state presented sufficient evidence to prove Webster guilty
beyond a reasonable doubt of three separate counts of unlawful sexual conduct with
a minor, the state courts unreasonably determined the facts in a number of ways
and ruled contrary to or unreasonably applied clearly established Supreme Court
precedent concerning Webster’s constitutional rights to due process, a fair trial, and
to have the State prove his guilt beyond a reasonable doubt.
A. Because the jury acquitted Webster of the June 2009 babysitting-payment
incident, of the remaining counts, the record is only able to support one count—
the Chloe Kelly incident.

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GROUND TWO:
In finding that the state charged and proved three separate counts of unlawful sexual
conduct with a minor with sufficient specificity, the state courts unreasonably
determined the facts in a number of ways and ruled contrary to or unreasonably
applied clearly established Supreme Court precedent concerning Webster’s
constitutional rights to due process, notice of the specific charges against him, to
present a defense, to confront the state’s evidence, to have the state prove his guilt
beyond a reasonable doubt in a jury trial, and to protected against double jeopardy
and cruel and unusual punishment.
GROUND THREE:
The state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied clearly established Supreme Court precedent regarding
Webster’s constitutional rights to due process, to confront the state’s evidence, to
have a fair trial by an impartial jury, and to have the state prove his guilt beyond a
reasonable doubt, in finding that the state’s lead investigator and representative at
trial did not impermissibly vouch for the complaining witness’s truthfulness
regarding her accusations against Webster. Likewise, the state courts unreasonably
determined the facts and ruled contrary to or unreasonably applied clearly
established Supreme Court precedent regarding these same constitutional rights in
finding that Webster opened the door to such testimony from the complaining
witness and that the case did not hinge on the complaining witness’s credibility and
truthfulness regarding the charges.
GROUND FOUR:
The state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied clearly established Supreme Court precedent regarding
Webster’s constitutional rights to due process, to confront the state’s evidence, and
to have a fair trial wherein an impartial jury determines whether the evidence
presented proves beyond a reasonable doubt all the essential elements of the crime,
when it determined that the state’s lead investigator and representative at trial did
not vouch for the complaining witness or infringe on the jury’s duty by testifying
about ultimate issues in the case—that Jordyn’s allegations constitute “unlawful
sexual conduct with a minor” “in violation of Ohio law.” Likewise, the state courts
unreasonably determined the facts and ruled contrary to or unreasonably applied
clearly established Supreme Court precedent regarding these same constitutional
rights in finding that the testimony in question merely established the background
and fairness of the detective’s investigation, and that the case did not hinge on the
complaining witness’s credibility and truthfulness regarding the charges.
A. Pitchford’s testimony failed to account for the mens rea element of “unlawful
sexual conduct with a minor.”
B. Pitchford’s testimony contained impermissible legal conclusions pertaining to
terms that have specialized meanings within the statute defining the offense in
question.
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GROUND FIVE:
The state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied Supreme Court precedent concerning Webster’s
constitutional rights to present a defense and confront the state’s evidence by
improperly applying the rape shield law and barring the defense from presenting:
(1) evidence to which, by the rape shield statute’s plain wording, the shield does
not apply; and (2) evidence crucial to the outcome-determinative timing and mens
rea elements of the case, such that even if the rape shield typically applied,
application in the instant case runs contrary to Webster’s Sixth and Fourteenth
Amendment rights to due process, confront the State’s evidence, and present a
defense.
A. The excluded evidence should have been admitted based on two independent
grounds: (1) proper interpretation of the state evidentiary rules; and (2) proper
weighing of the relevance and probative value in connection with Webster’s
constitutional rights.
1. Admissibility based on proper interpretation of the state evidentiary rules.
Although Webster’s claims are based on his constitutional rights under the
U.S. Constitution and Supreme Court precedent, Webster includes this
discussion to demonstrate additional unreasonable factual determinations
by the state courts.
a. The rape shield does not apply to false sexual allegations or the
origin of disease. Thus, the rape shield was inapplicable to: (1) the
false allegations that Jordyn had sexual relationships with other
professional football players; (2) testimony that Jordyn transmitted
a sexually transmitted to Redman and Bud; and (3) the timing when
Webster transmitted this same disease to his wife Jennifer.
b. The State waived rape shield protection of testimony from
Redman and Bud (adult men who lived in Webster’s house)
concerning their sexual encounters with Jordyn during the relevant
timeframe of June 2009 through Summer 2010, and the transmission
of a sexually transmitted disease from Jordyn to both men.
2. Admissibility based on constitutional considerations. Even if this Court
finds that the rape shield applies to the proffered evidence, enforcing the
rape shield in this case violated Webster’s Sixth and Fourteenth
Amendment rights to confront the State’s evidence and present a defense.
The highly probative value of such evidence concerning central issues in
the case outweighs any prejudice to the State.
GROUND SIX:
The state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied Supreme Court precedent concerning Webster’s
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constitutional rights to due process, to present a defense, and to confront the state’s
evidence when it improperly interpreted the hearsay exception “statements against
interest” to exclude statements from Webster which were against his pecuniary and
proprietary interest at the time of utterance.
GROUND SEVEN:
Alternatively to Grounds for Relief I and II, trial counsel provided ineffective
assistance of counsel in violation of the Sixth and Fourteenth Amendments when
counsel: (1) failed to object to a leading question asked of the complaining witness
regarding the timing of sexual conduct; and (2) improperly attached a timeframe to
the occurrence of sexual conduct during cross-examination of the same witness
when she had never testified to said timeframe absent improper leading. Without
these failures, the record would be devoid of any evidence to establish the
November 2009 count of unlawful sexual conduct with a minor.
Additionally, trial counsel provided ineffective assistance of counsel when counsel
failed to proffer: (1) the evidence the trial court excluded pursuant to the rape shield
law and its implications on Webster’s constitutional rights; (2) Jennifer Webster’s
testimony that Webster confessed to having a sexual relationship with Jordyn in
2010 (after she had turned 16); and (3) the proper interpretation of the evidentiary
rule in question in Ground for Relief VI along with the constitutional considerations
at stake which trump the state evidentiary rule.
Finally, trial counsel provided ineffective assistance of counsel when counsel failed
to adequately argue that the state opened the door to Redman and Bud’s testimony
concerning their sexual relations with Jordyn and the transmission of the STD. The
state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied Strickland v. Washington in concluding otherwise, or in
failing to address Webster’s arguments concerning specific instances of ineffective
assistance of trial counsel.
GROUND EIGHT:
Webster’s conviction is against the manifest weight of evidence. The state courts
unreasonably determined the facts and ruled contrary to or unreasonably applied
clearly established Supreme Court precedent in finding that the jury properly
weighed the evidence and resolved conflicts in the evidence such that the State
proved Webster guilty of the offenses beyond a reasonable doubt.
GROUND NINE:
The state courts unreasonably determined the facts and ruled contrary to or
unreasonably applied Supreme Court precedent concerning Webster’s
constitutional rights to due process, to present a defense, and to confront the state’s
evidence when it denied Webster’s motion to sever the GSI charge from the
remaining charges (and then failed to address this issue on appeal).
(Doc. 1).
13

Respondent has filed a return of writ in opposition to the petition, to which respondent
has replied. (Doc. 12, 15).
III. THE PETITION SHOULD BE DENIED.
In this federal habeas case, the applicable standard of review governing the adjudication
of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d).
Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated
on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Id. at 599–600 (quoting Williams, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit explained in Otte:
14

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 (2011) (holding that AEDPA limits a federal habeas court to the record
before the state court where a claim has been adjudicated on the merits by the state
court). It is not enough for us to determine that the state court’s determination is
incorrect; to grant the writ under this clause, we must hold that the state court’s
determination is unreasonable. . . . This is a “substantially higher threshold.”. . .
To warrant AEDPA deference, a state court’s “decision on the merits” does not
have to give any explanation for its results, Harrington v. Richter, [562] U.S. [86],
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 statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362,
154 L.Ed.2d 263 (2002) (per curiam).
Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold 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, 568 U.S. 289, 293
(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
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 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
fairminded disagreement.” Id. at 103.
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

15

controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38 (2011); cf. Otte, 654 F.3d at 600
(citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim
addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). In Greene, 132 U.S. at 44, the
Court explained:
[W]e held last term in Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179
L.Ed.2d 557 (2011), that review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the prisoner’s claim on the merits. We said
that the provision’s “backward-looking language requires an examination of the
state-court decision at the time it was made.” Id., at 182, 131 S.Ct. at 1398. The
reasoning of Cullen determines the result here. As we explained, § 2254(d)(1)
requires federal courts to “focu[s] on what a state court knew and did,” and to
measure state-court decisions as of ‘the time the state court renders its decision.’”
Id., at 182, 131 S.Ct. at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . .
.; emphasis added).
Decisions by lower courts are relevant “to the extent [they] already reviewed and
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)). The writ may issue only if the application of
clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed
to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”
McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
A. Grounds One, Two, and Eight are without merit.
In Grounds One and Eight, respectively, petitioner contends that his convictions were not
supported by sufficient evidence and were against the manifest weight of the evidence. In his
second ground for relief, petitioner argues that the state failed to charge in the indictment or
prove at trial specific incidents of sexual conduct to support his convictions or provide him with
16

adequate notice of the charges brought against him. For the reasons stated below, petitioner is
not entitled to federal habeas relief based upon these grounds for relief.
i. Ground Eight
As an initial matter, petitioner is not entitled to habeas relief on the basis of his manifest
weight of the evidence claim in Ground Eight of the petition. A “manifest weight of evidence”
claim, which is based on a state law concept that is “both quantitatively and qualitatively
different” from a constitutional due process sufficiency of evidence standard, see Tibbs v.
Florida, 457 U.S. 31, 41–47 (1982), and State v. Thompkins, 678 N.E.2d 541, 546 (1997),
superseded by state constitutional amendment on other grounds in State v. Smith, 684 N.E.2d
668 (1997), raises an issue of state law only that is not cognizable in a federal habeas corpus
proceeding such as this. See 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984).
The Due Process Clause does not provide relief for defendants whose convictions are
against the manifest weight of the evidence, but only for those who have been convicted without
proof sufficient to allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v.
Engle, 703 F.2d 959, 969 (6th Cir. 1983). In the context of a claim alleging a violation of due
process, “sufficiency of the evidence” refers to the due process requirement that there be enough
evidence introduced in favor of the prosecution for a rational trier of fact to find each element of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
However, under Ohio law, a claim that a verdict was against the manifest weight of the
evidence—as opposed to one based upon insufficient evidence—requires the appellate court to
act as a “thirteenth juror” and to review the entire record, weigh the evidence, and consider the
credibility of witnesses to determine whether “the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

17

State v. Martin, 485 N.E.2d 717, 720 (1st Dist. Ohio 1983); cf. Tibbs v. Florida, 457 U.S. 31
(1982). “Since a federal habeas court does not function as an additional state appellate court,
vested with the authority to conduct such an exhaustive review, petitioner’s claim that his
convictions were against the manifest weight of the evidence cannot be considered by this
Court.” Mason v. Brunsman, No. 1:07-cv-1020, 2009 WL 2169035, at *29 (July 16, 2009 S.D.
Ohio ) (Spiegel, J.; Black, M.J.). Accordingly, petitioner is not entitled to habeas relief based on
his manifest weight of the evidence claim raised in Ground Eight.
ii. Grounds One and Two
With respect to Grounds One and Two, concerning the sufficiency and specificity of the
evidence, the Ohio Court of Appeals was the only state court to issue a reasoned decision
addressing the merits of these issues. Finding insufficient evidence for his conviction related to
the December 2009 charge, the appeals court affirmed his assignment of error with respect to
that count. The court of appeals overruled his assignments of error with respect to his
convictions for the September, October, and November 2009 unlawful sexual conduct with a
minor charges, reasoning in pertinent part as follows:
The Specificity and Sufficiency of the State’s Case
{¶ 21} In his first and second assignments of error, Webster claims that the state
failed to distinguish specific instances of sexual conduct in its indictment and bill
of particulars, and during trial. This lack of specificity, according to Webster,
hampered his ability to present a defense in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution. Webster further
claims that the state’s lack of specificity during trial necessarily resulted in a failure
of proof and that his convictions are therefore not supported by sufficient evidence.
{¶ 22} Webster cites Valentine v. Kontech, 395 F.3d 626 (6th Cir. 2005), and State
v. Hemphill, 8th Dist. Cuyahoga No. 85431, 2005-Ohio-3726, in support of his
argument that the state’s case lacked the requisite level of specificity to sustain his
convictions. Both cases are distinguishable from the present one.

18

Valentine and Hemphill
{¶ 23} Defendant Michael Valentine was accused of sexually abusing his stepdaughter. The state charged him with 20 counts of child rape and 20 counts of
felonious sexual penetration of a minor. The state alleged that all of the counts
occurred over the same ten-month period. Each rape count in the indictment
contained identical language from the Ohio Revised Code, as did each sexual
penetration count. The state’s bill of particulars alleged that each crime had
occurred in the family home. The Sixth Circuit Court of Appeals determined that
the fatal flaw in the state’s case against Valentine was that, in its indictment and in
its evidence presented at trial, “the prosecution did not attempt to lay out the factual
bases of forty separate incidents that took place.” Valentine at 663. The only
evidence presented concerning the number of sexual encounters between Valentine
and his victim came from the victim herself, who described what a typical abusive
encounter consisted of and then estimated the number of time[s] the behavior had
occurred. Id. at 632–633. The court determined that “[g]iven the way that
Valentine was indicted and tried, it would have been incredibly difficult for the jury
to consider each count on its own.” Id. at 633. As a result, Valentine was tried and
convicted in an “all or nothing” fashion. Id. at 634.
{¶ 24} In Hemphill, the defendant has been indicted for 99 sexually oriented
offenses. The indictment essentially alleged three types of sexual crimes occurring
over varying timeframes. Hemphill was convicted of 22 counts each of rape and
gross sexual imposition with sexually violent predator specifications, 7 counts each
of rape and gross sexual imposition without specifications, and 29 counts of
kidnapping with sexual motivation specifications. Relying on Valentine, the Eighth
Appellate District held that the state had failed to adequately differentiate these
counts and, with three exceptions, failed to subject each count to individual proof.
The court found that for the vast majority of the charges, Hemphill had, like
Valentine, been convicted based on a generic description of sexual acts combined
with a numerical estimate of how many times the act had occurred. Hemphill at ¶
88–92.
{¶ 25} In the present case, the state’s indictment and bill of particulars sufficiently
differentiated among the counts charged. The state, as is permissible, used the same
language in each of its counts of sexual conduct with a minor. But it distinguished
the charges by narrowing the time frame of each. And Webster was given notice
in the bill of particulars that the state was alleging that vaginal intercourse between
Webster and Jackson took place in Webster’s home and in his car while his car was
parked in parking lots close to his home. Alleging one count a month of sexual
conduct with a minor and describing the sexual act and the place where it occurred
is a far cry from the indictments in Hemphill and Valentine that alleged dozens of
identical crimes without significantly further distinguishing factors. See State v.
Ferren 8th Dist. Cuyahoga No. 95094, 2011-Ohio-3382, ¶ 32.

19

{¶ 26} As to the evidence presented at trial, the state did not try Webster in an “all
or nothing” fashion. Unlike the victims in Hemphill and Valentine, Jackson did not
merely generically describe a sexual act and estimate the number of times that the
act occurred. Instead, the state presented evidence that tied each count to the
relevant time frame through Jackson’s testimony, her mother’s and father’s
testimony, Chloe Kelly’s testimony, telephone records, and Webster’s confession.
This allowed Webster the chance to defend against each count separately. And it
allowed the jury to contemplate each count separately.
{¶ 27} We therefore hold that Valentine and Hemphill are distinguishable from the
present case and that Webster’s argument has no merit.
Sufficiency of the Evidence
{¶ 28} Webster’s argument that there was insufficient evidence to sustain his
convictions has some merit. Our standard of review when addressing the
sufficiency of the evidence is whether, after viewing the evidence presented in the
light most favorable to the state, any rational trier of fact could have found all the
essential elements of the crime charged beyond a reasonable doubt. State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 29} The crime of unlawful sexual conduct with a minor is defined in R.C.
2907.04(A). That code section states that “[n]o person who is eighteen years of age
or older shall engage in sexual conduct with another, who is not the spouse of the
offender, when the offender knows the other person is thirteen years of age or older
but less than sixteen years of age, or the offender is reckless in that regard.”
{¶ 30} As detailed above, Jackson testified that in September 2009, October 2009
and November 2009 she and Webster had engaged in vaginal intercourse. The state
tied each charge to the relevant time frame though Jackson’s testimony, through the
corroborating testimony of Chole Kelly, Michelle and Hue Jackson, and through
Webster’s confession and cellular telephone records. We hold that this evidence
was sufficient and specific enough to sustain Webster’s convictions for the charges
tied to September, October, and November 2009.
{¶ 31} We do, however, find a lack of proof in regard to the December 2009 charge.
The state presented no evidence that any sexual contact occurred between Jackson
and Webster during that month. The only evidence presented were phone records
showing that contact between Jackson and Webster had continued through
December 2009. This was not sufficient to prove a charge under R.C. 2907.04(A).
We therefore reverse Webster’s conviction for count seven in his indictment that
alleged a violation of R.C. 2907.04(A) occurring in December 2009.
(Doc. 11, Ex. 18 at PageID 318–19).

20

After review of the record in this case, the undersigned finds that petitioner is not
entitled to habeas relief based upon his sufficiency of evidence or specificity claims.
The clearly-established 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, 443 U.S. 307 (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. Id. 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.” Id.; 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.13; 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).

21

“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
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.” Id. (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).
Applying the double-layer deferential standard to the case-at-hand, the undersigned is
convinced that the Ohio Court of Appeals’ sufficiency determination was not based on an
unreasonable determination of the facts and is neither contrary to nor an unreasonable

22

application of Jackson. As reasonably determined by the Ohio Court of Appeals, the prosecution
offered sufficient evidence for each of the three counts of unlawful sexual conduct with a minor
for which Webster was convicted. Under Ohio Rev. Code 2907.04(A), “[n]o person who is
eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse
of the offender, when the offender knows the other person is thirteen years of age or older but
less than sixteen years of age, or the offender is reckless in that regard.”
In this case, the victim, Jordyn Jackson, testified that she had sex with petitioner
numerous times when she was fifteen years old.4 (See Doc. 11, Transcript at PageID 1237).
Specifically, she testified that in early September petitioner text messaged her while she was at
school, picked her up from her friend Chloe Kelly’s house after soccer practice, and took her to
his house, where they had sex in his bedroom.5 (Id. at PageID 1047–55). Jackson testified that
petitioner told her he would kill members of her family if she told anyone. (Id. at PageID 1056,
1059-60). According to Jackson, she had sex with petitioner six or seven more times—either in
petitioner’s home when his wife was gone or in his car—before the end of October, when she
stopped babysitting for petitioner. (Id. at PageID 1058). According to Jackson, prior to the end
of October 2009, they would have sex in petitioner’s bedroom, the basement bedroom, or, on one
occasion, in petitioner’s gold truck. (Id. at PageID 1058, 1101-02). Jackson testified that during
September and October, she would have sex with petitioner while babysitting or after petitioner
picked her up from Kelly’s house. (Id. at PageID 1059). She further testified that on October
28, 2009, petitioner told her that he loved her and she marked the occasion on her calendar,
4
The victim was fifteen until February 2010. The parties also stipulated as to petitioner being more than ten years
older than the victim, as required under 2907.04(B)(3). (Doc. 11, Trans. at PageID 1421-22, 1694-95, 1828).

5

Jackson testified that she played soccer for Loveland High School during this time and the only year she played for
Loveland’s soccer team was during her sophomore year in 2009. (See id. at PageID 1049, 1116). Her mother,
Michelle Jackson, testified that the soccer season ran from June until the end of October. (Id. at PageID 886).

23

which was admitted at trial. (Id. at PageID 1076–78).
Jackson testified that her mother caught her in a car with petitioner in October 2009.6 (Id.
at PageID 1060–63). Despite being grounded following the incident, she testified that she
continued to have sex with petitioner in November as frequently as two to three times per week.
(Id. at PageID 1063–66, 1199). Jackson testified that they would arrange a designated spot to
meet via text message, she would tell her mother or grandmother that she was going for a run,
and she would instead meet petitioner in the designated location—usually the Lodge Retirement
Center or Waterford apartments parking lots—where they would have sex in petitioner’s car.7
(Id. at PageID 1066–68). Jackson further testified that in early November she went with
petitioner to a tattoo parlor and got a heart tattoo with an N (petitioner’s first initial) in it. (Id. at
PageID 1079–82, 1224). She testified that she later had the tattoo filled in black. (Id. at PageID
1081). Jackson stated that the relationship continued until December of 2009, when petitioner
left town. (Id. at PageID 1083). She further testified that she resumed her relationship with
petitioner in 2010 and it continued until March 2011 when she disclosed the relationship to her
parents. (Id. at PageID 1084, 1092–93).
Although “the testimony of the victim alone is constitutionally sufficient to sustain a
conviction,” Tucker v. Palmer, 541 F.3d 652 659 (6th Cir. 2008), as noted by the Ohio Court of
Appeals, the state introduced evidence and testimony to corroborate Jackson’s testimony.
Regarding phone contacts, the state presented evidence of 450 text and 256 phone calls between

6
As noted below, Michelle and Hue Jackson previously testified that this occurred on October 30, 2009. (Id. at
PageID 895, 976-77).
7

Jackson testified that she had sex with petitioner in the back seat of petitioner’s green Ford truck, gold suburban,
and black BMW. (Id. at PageID 1067-68, 1100-02). During his police interview, petitioner also stated that he had
sex with the victim in “the BMW and the Excursion and the Suburban.” (Doc. 20 at PageID 2125).

24

Jackson and petitioner in September, 35 texts and 84 phone calls in October, and 57 texts and
125 phone calls in November. (Id. at PageID 1134–38). As noted below, petitioner admitted
that he used his cell phone to set up sexual encounters with Jackson.
Chloe Kelly testified as to petitioner picking Jackson up from her home in the fall of
2009. Kelly testified that during that time she learned that petitioner and Jackson were texting
each other and that petitioner picked Jackson up from her house on three or four occasions in a
black truck. (Id. at PageID 1263, 1267–68). Although she did not observe petitioner inside the
vehicle on each pickup, Kelly testified that she went out to meet petitioner and shook his hand on
one such occasion. (Id. at PageID 1268, 1277). According to Kelly, Jackson initially told her
she was babysitting, but Kelly became suspicious when Jackson would only be gone about an
hour and would return with wet hair, as though she had recently showered.8 (Id. at PageID
1266). Jackson eventually told Kelly that she was having sex with petitioner. (Id. at PageID
1267). Kelly testified that it appeared to her that petitioner and Jackson had established a sexual
relationship prior to the start of school, in late August or September. (Id. at PageID 1283. See
also id. at PageID 1272-73).
Although the defense attempted to establish that no babysitting arrangement was in place,
Jackson’s mother, Michelle Jackson, testified that Jackson babysat for petitioner from June
through October 30, 2009, when she found them in a car together. (Id. at PageID 895, 900-04).
Her testimony further corroborated Jackson’s testimony regarding the November charges. Mrs.
Jackson testified that in November, her daughter would tell her she was going for a jog and “then
observed and watched Jordyn leave the house jogging, and then witnessed, saw [petitioner]’s

8

Jackson testified that after having sex with petitioner she would shower before returning to Kelly’s home. (Id. at
PageID 1064).

25

cars or trucks leave the driveway.” (Id. at PageID 910). According to Mrs. Jackson, her
daughter would be gone 30 to 40 minutes and did not appear to have been jogging when she
returned. (Id. at PageID 912–13). Mrs. Jackson stated that she knew this occurred in November
2009, because she would observe Jackson from a second-floor window while she fed her
newborn baby, who came home from the hospital on October 31, 2009.9 (Id. at PageID 910–11).
Hue Jackson, the victim’s father, testified that he confronted petitioner in mid-June 2009
about petitioner not paying Jackson for babysitting. (Id. at PageID 971-72). According to Mr.
Jackson, petitioner promised to and ultimately did pay her. (Id. at PageID 972). He further
testified that after Mrs. Jackson found petitioner in the car with his daughter on October 30,
2009, he called petitioner the following day, asked him if anything was going on between them,
and informed petitioner that his daughter was only fifteen years old. (Id. at PageID 976–81).
Mr. Jackson testified that he was certain of the date of the call because his newborn daughter was
scheduled to come home and because of his team’s football schedule.10 (Id. at PageID 977).
Detective Pitchford also provided testimony about the investigation leading to the
criminal charges against petitioner. According to Pitchford, Jackson’s boyfriend from March
2010 to May 2010 called him during his investigation and informed him that Jackson said she
was sexually active with petitioner prior to their relationship. (Id. at PageID 1397–98).
Although petitioner and the victim indicated that text messages were used to set up their
meetings, Pitchford testified that from January 2010 to April 2010, there were no phone contacts
between petitioner and Jackson. (Id. at PageID 1398-99. See also 1137-38). According to

9

The victim testified that her mother called her on one such occasion, stating “I just saw [petitioner] pull out of his
drive way, where are you?” (Id. at PageID 1067).
10

In closing arguments the prosecution drew the jury’s attention to the phone records to pinpoint the date of the call,
noting that the phone records reveal just under a seven minute phone call between Mr. Jackson and petitioner on that
day. (Id. at PageID 1734-35).

26

Pitchford, Jackson’s boyfriend also informed him that Jackson had a tattoo of three hearts,
stating “[Jackson] told me they involved [petitioner] and that she got them with him, but she
never told me what they meant.” (Id. at PageID 1400–1401).
Finally, the prosecution produced a July 21, 2011 taped interview with petitioner, during
which petitioner admitted to the sexual relationship and provided evidence corroborating the
victim’s allegations as to the timing and manner of the relationship. (See Doc. 20). Although
petitioner initially denied the victim’s allegations against him, after being confronted with the
phone records and a taped conversation between petitioner and the victim, petitioner admitted
that he had sex with the victim “a lot of times.” 11 (Id. at PageID 2114). Petitioner stated that
this included three times at the Waterford Apartments parking lot, two times at the Lodge
retirement center parking lot, and a couple times at his home. (Id. at PageID 2114-15).
Petitioner indicated that at the beginning of the relationship they had sex at petitioner’s home.
(Id. at PageID 2119; infra n.12). Consistent with the victim’s testimony at trial, petitioner also

11

After petitioner was made aware of the phone records and taped conversation petitioner admitted that “[e]verything
is true” but the allegation that he used force against the victim (Id. at PageID 2114). Later in the interview petitioner
again acknowledged that the victim was being truthful about specific portions of her allegations:
Detective: . . . I understand what you are saying but you will agree that part of what she’s saying is true.
She is telling the truth when she’s says she’s been having sexual intercourse with you.
Petitioner: Yes.
Detective: Right?
Petitioner: That part is true.
Detective: Since she’s been 15 that’s all true.
Petitioner: That part.
Detective: And it is true when you say you loved her or lover her you did say it.
Petitioner: Yes.
(Doc. 20 at PageID 2125-26).

27

admitted that he used his cell phone to arrange meetings with the victim and that he would pick
her up when she was jogging before having sex in the car. (Id. at PageID 2115, 2117-18).
Petitioner further acknowledged that the victim babysat for his family at least on a couple
occasions (Id. at PageID 2089, 2116) and recalled Mr. Jackson confronting him about his
daughter. As noted by the Ohio Court of Appeals, petitioner implied that he had been sexually
involved with her at that time. (See id. at PageID 2117). Petitioner also recalled the victim
telling him she was pregnant in 2009, noting that he was having unprotected sex with her at that
time.12 (Id. at PageID 2119). At several times during the interview petitioner affirmed that the
relationship began in 2009.13
With respect to petitioner’s knowledge of the victim’s age, petitioner’s comments during
the interview provided ample evidence for a reasonable juror to determine, at a minimum, that

12

At trial the victim testified that she falsely told petitioner she was pregnant in 2009. (Doc. 11, Trans. at PageID
1211). According to the victim, she did so in an effort to end the relationship, noting that petitioner told her “if [she]
was ever pregnant that, one, [she] would have to deal with it [herself] and he would leave [her] alone.” (Id.).

13

During the July 2011 interview petitioner affirmed that the relationship began “a couple years ago” and continued
from the summer of 2009 through 2010. (Doc. 20 at PageID 2116. See also id. at PageID 2118-19). The interview
also included the following exchange:
Petitioner:

Yes. She told me she was pregnant one time.

Pitchford:

When was that? Was that a couple years ago when all this first started?

Petitioner:

Yes. And that was (unintelligible).

Pitchford:

What year was that? If this is 2011, what year did she tell you she was pregnant?
Two years ago. Would that be 2009?

Petitioner:

Yeah.

Pitchford:

And you had unprotected sex with her then.

Petitioner:

Yes. She was coming in the house, officer, early in the morning.

(Id. at PageID 2119).

28

petitioner was reckless with regard to the victim’s age.14 When asked how old he believed the
victim was the first time they had sex, petitioner stated “I couldn’t tell you honestly. I couldn’t
tell you.”15 (Id. at PageID 2120). Later in the interview petitioner stated “Uhh 15. 14. 16.
Whatever age it was.” (Id. at PageID 2124). Petitioner indicated that he knew he was doing
something “wrong” during the course of their relationship, noting “I’m having sex with a minor
with a . . . an underage girl.” (Id. at PageID 2119, 2120). Petitioner stated that they met in the
park and had sex in the car because he recognized things could go bad for him. (Id.). He further
stated that he sought to keep the relationship secret, noting that it was “breaking the law. . . . Me
being 30. Her being whatever age she was at the time.” (Id. at PageID 2124). Petitioner stated
that he “dreaded this day,” noting “I knew. Every time I had sex with her I said man this is
going to come bite me in the ass.” (Id. at PageID 2130-31). Finally, as noted by the Ohio Court
of Appeals, toward the end of the interview petitioner stated he was willing to “take a fall” for
having sex with a minor.16 (Id. at PageID 2127).
As he did at trial and on appeal, petitioner argues that the confession is ambiguous and
the result of detective Pitchford feeding petitioner the time frames, petitioner’s inability to
properly reference time frames, and Pitchford’s failure to explain that unlawful sex with a minor
in Ohio includes sex with individuals under 16, rather than 18 as in Florida, petitioner’s home
state. Petitioner further argues that Jackson’s testimony was inconsistent and that the evidence at

14

As noted above, Mr. Jackson testified that he informed petitioner that the victim was 15 in October 2009.

15

Petitioner initially guessed that the victim was 17 or 18 at the time of the July 21, 2011 interview. (Id. at PageID
2083).

16

The prosecution also presented a recording of a conversation between petitioner and the victim, during which
petitioner discussed watching the victim grow up and her age. As recounted by the State during closing, “And then,
of course, there are the multiple recordings that you listened to between Jordyn and the defendant in May of 2011,
where the defendant states: You’re down the street from me, 10 years, eight years old, I’ve watched you grow into a
- - you’re cool. You was digging an old man. You like the old man. Now I’m the old man.” (See id. at PageID 171819) (“And, again, Nate Webster, page 82: You think you’re grown? And how old are you now?”)).

29

trial strongly suggests that their sexual relationship was in 2010, not in 2009 based on arguments
that he raised during trial and on appeal. (See Doc. 1 at PageID 33-44. See also Doc. 11, Ex. 15
at PageID 197-205). Although petitioner reasserts these claims in his petition, it is not the
province of this Court to reweigh the evidence on habeas review. See Matthews v. Abramajtys,
319 F.3d 780, 788 (6th Cir. 2003) (noting that a habeas court “does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor has been observed by the trial
court”).17
When viewing all of the evidence in the light most favorable to the prosecution, this
Court concludes that the evidence was constitutionally sufficient to sustain petitioner’s
convictions. As the Ohio Court of Appeals reasonably determined, the prosecution offered
sufficient evidence for a rational trier of fact to find that petitioner had sex with Jackson in each
of September, October, and November of 2009 and knew that she was under the age of sixteen or
was reckless with respect to her age. The Ohio Court of Appeals’ adjudication of petitioner’s
sufficiency-of-evidence claims involved a reasonable application of the Jackson standard and
was based on a reasonable determination of the facts in light of the evidence presented at trial.
Petitioner is therefore not entitled to habeas relief based upon Ground One of the petition.
Petitioner has also failed to demonstrate that he is entitled to federal habeas relief based
on Ground Two of the petition. Petitioner claims that the prosecution failed to distinguish
specific incidents of each of the charges of unlawful sexual conduct with a minor. On this basis,
petitioner contends he was deprived of proper notice of the charges against him and tried on a
pattern of conduct against which he could not defend. As he did on appeal, petitioner cites to

17

After observing the evidence presented at trial, the trial court judge stated “there was overwhelming evidence
through the text messages and other evidence that she was 15 when he started having sex with the child victim.”
(Doc. 11, Trans. at PageID 1918–19).

30

Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) and State v. Hemphill, No. 85432, 2005 WL
1706995, at 1 (Oh. Ct. App. July 21, 2005) in support of his claim.
As previously discussed, the Ohio Court of Appeals reasonably distinguished petitioner’s
case from Valentine and Hemphill. In Valentine, the defendant was charged with twenty counts
each of child rape and felonious sexual penetration of his step-daughter, all alleged to have
occurred within a ten-month period in their home. The Sixth Circuit determined that Valentine’s
due process right to sufficient notice was violated because “no factual distinctions were made
among any of the forty counts” in the indictment or through evidence introduced at trial,
including locations within the home or specific conduct. Valentine, 395 F.3d at 633–34. The
only evidence offered at trial was the victim’s description of typical abusive behavior and an
estimate of how many times the abuse occurred.18 Similarly, in Hemphill, the defendant was
charged with ninety-nine sexually oriented offenses. The Ohio Court of Appeals found that, like
the defendant in Valentine, Hemphill’s multiple convictions rested on a “numerical estimate
which is unconnected to individual, distinguishable incidents.” Hemphill, 2005 WL 1706995 at
*9.
Unlike Valentine and Hemphill, petitioner was not tried on or convicted of a pattern of
abuse or in an all or nothing manner. Although the victim testified that she had sex with
petitioner many times prior to turning sixteen, petitioner was not charged with an offense for
each incident, nor were the charges based on a numerical estimate by the victim. With respect to
the charges of unlawful sex with a minor, the indictment and bill of particulars permissibly

18

In that regard, the Sixth Circuit found that “[t]he jury could only have found him ‘not guilty’ of some of the counts
only if they reached the conclusion that the child victim had overestimated the number of abusive acts.” Id. at 633.
In contrast, in this case, petitioner was able to successfully defend against and was acquitted of the August 2009 charge
of unlawful sexual conduct with a minor, as well as the charges of gross sexual imposition and sexual battery. Further,
he successfully defended against the December 2009 charge on appeal. (See Doc. 11, Ex. 18 at PageID 318-19).

31

specified five different one-month time periods during which each offense was alleged to have
occurred19 and the victim, conduct, and location of each offense. (Doc. 11, Ex. 1, 2). See
Valentine, 395 F.3d at 637 (“differentiation [between counts] will often require reference to date
ranges or time ranges or certain locations or certain actions. But, differentiation does not require
overly-burdensome precision”). See also Meriweather v. Burton, No. 15-1126, 2015 WL
7450068, at *2 (6th Cir. Nov. 24, 2015) (noting that while “[t]he Due Process Clause requires a
state to give a criminal defendant fair notice of the charges against him, so that the defendant
may prepare a defense. . . . when child sex-abuse victims are involved, a detailed timeframe is
not required”). Through the indictment, bill of particulars, testimony of the victim, and other
evidence presented at trial, petitioner was provided with fair notice of the conduct and
circumstances underlying each count.20 Specifically, petitioner was charged with having vaginal
intercourse with the victim (who he knew was less than sixteen or was reckless in that regard) in
his home or in vehicles parked near his home—at the Waterford Apartment and Lodge
Retirement Home parking lots—in September, October, and November 2009. Through the
victim’s testimony and supporting evidence, the prosecution distinguished each count and
established that petitioner had sex with the victim in September in his bedroom after picking the
victim up from Chloe Kelly’s home; in his car and home in October either while babysitting or

19

With respect to the time frame for the charged conduct, the Valetine Court further noted that “[t]his Court and
numerous others have found that fairly large time windows in the context of child abuse prosecutions are not in conflict
with constitutional notice requirements.” Valentine, 395 F.3d at PageID 632 (collecting cases). See also Bruce v.
Welch, No. 13-346, 2014 WL 3360686, at *5 (6th Cir. July 10, 2014) (finding constitutionally adequate notice was
provided where the indictment charged sexual abuse over a four-year timeframe).

20

Regarding the dates specified in the bill of particulars and petitioner’s ability to prepare a defense, trial counsel
commented as follows:
[T]he defense used the Bill of Particulars to prepare our defense. They state with particularity when
these offenses occurred and we prepared our defense based on the Bill of Particulars prepared by
the prosecution.
(Doc. 11, Trans. at PageID 462).

32

picking the victim up from the Kelly home; and in his car in November while the victim was out
of the home jogging. Furthermore, as detailed above and contrary to petitioner’s claims, the
prosecution presented specific evidence to benchmark each count to the charged timeframe and
otherwise presented sufficient to support his convictions and sentence.21 Accordingly, the Ohio
Court of Appeals properly distinguished Valentine and Hemphill from petitioner’s case and
reasonably determined that his claim was without merit.22
In any event, in this habeas corpus action, the Court may only grant federal habeas if the
state court decision unreasonably applied United States Supreme Court precedent. “[C]ircuit
precedent does not constitute clearly established Federal law, as determined by the Supreme
Court . . . [i]t therefore cannot form the basis for habeas relief under AEDPA.” Parker v.
Matthews, 567 U.S. 37, 48–49 (2012) (internal citation and quotation marks omitted). As such,
the Sixth Circuit—relying on the Supreme Court’s decision in Renico v. Lett, 559 U.S. 766
(2010)—has indicated that its decision in Valentine does not serve as a basis for federal habeas
relief:
The Valentine court based its legal reasoning on Supreme Court cases applicable to
federal indictments, Russell, 369 U.S. at 763–64, 82 S.Ct. 1038; Hamling, 418 U.S.
at 117–18, 94 S.Ct. 2887, and a few circuit cases, including Isaac v. Grider, 211
F.3d 1269, 2000 WL 571959, at *4 (6th Cir. 2000), DeVonish v. Keane, 19 F.3d
21

With respect to petitioner’s claim that the State failed to establish separate distinct events tied to charged timeframe,
the undersigned notes that the prosecution’s case included petitioner’s police interview statements that he had sex with
the victim several times at his home, three times at the Waterford Apartment parking lot, and two times at the Lodge
Retirement Center parking lot. (Doc. 20 at PageID 2114-15). Petitioner’s admission that he used his cell phone to
coordinate his encounters with the victim and the corresponding cell phone records for September, October, and
November 2009, as well as the testimony of the victim and corroborating witnesses detailed above, provided sufficient
evidence to establish the separate, distinct events giving rise to his convictions and sentence.

22

Petitioner also contends the lack of specificity violated his constitutional rights against double jeopardy and cruel
and unusual punishment. (See Doc. 1 at PageID 33-44; Doc. 15 at PageID 2044-2056). Having determined that
petitioner was provided with constitutionally sufficient notice of the charges against him and sufficient evidence was
introduced at trial to substantiate his convictions, the Court finds that petitioner was not subjected to double jeopardy
by being punished multiple times for the same conduct as petitioner argues. (See Doc. 1 at PageID 34, n.2).
Petitioner’s claim that his resulting sentence amounts to cruel and unusual punishment (for allegedly being imprisoned
for sexual relations with the victim when she was older than 16) is equally unavailing in light of the substantial
evidence supporting his convictions.

33

107, 108 (2d Cir. 1994), Fawcett v. Bablitch, 962 F.2d 617, 618–19 (7th Cir. 1992),
and Parks v. Hargett, 188 F.3d 519, 1999 WL 157431, at *3 (10th Cir. 1999). Two
of those cases, DeVonish and Fawcett, were decided before AEDPA was enacted
in 1996, while Isaac and Parks—and Valentine itself—were decided before the
Supreme Court issued Renico in 2010. In light of Renico’s admonition that “clearly
established Federal law” means relevant Supreme Court precedent and not circuit
court opinions, see Renico, 559 U.S. at 778–79, 130 S.Ct. 1855, and because “no
Supreme Court case has ever found the use of identically worded and factually
indistinguishable [state] indictments unconstitutional,” Valentine, 395 F.3d at
639 (Gilman, J., dissenting), we doubt our authority to rely on our own prior
decision—Valentine—to “independently authorize habeas relief under
AEDPA.” Renico, 559 U.S. at 779, 130 S.Ct. 1855. Rather, Coles must point to a
Supreme Court case that would mandate habeas relief in his favor. He has not done
so, and consequently, he has not demonstrated that the decision of the Ohio Court
of Appeals rejecting his Sixth Amendment claim was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Renico, 559 U.S. at
779, 130 S.Ct. 1855.
Coles v. Smith, 577 F. App’x 502, 507–08 (6th Cir. 2014). See also, e.g., Wampler v. Haviland,
No. 3:17-cv-2136, 2018 WL 6249681, at* 16 (N.D. Ohio Nov. 29, 2018) (distinguishing
Valentine and noting that Valentine “does not provide the necessary precedent to obtain habeas
relief in federal court.”). Because petitioner is not entitled to federal habeas relief based on
circuit court precedent and has otherwise failed to demonstrate that the Ohio Court of Appeals’
decision was based on an unreasonable determination of the facts or contrary to or an
unreasonable application of Supreme Court precedent, petitioner is not entitled to federal habeas
relief based on Ground Two of the petition.
Accordingly, petitioner is not entitled to federal habeas relief based upon Grounds One,
Two, or Eight of the petition.

34

B. Ground Three is without merit.23
In Ground Three, petitioner contends that Detective Pitchford impermissibly vouched for
the victim and that the Ohio courts unreasonably determined that petitioner opened the door to
such testimony. Petitioner further contends that defense counsel was ineffective for failing to
object to Pitchford’s testimony, which petitioner maintains violated his constitutional rights.
(See Doc. 1 at PageID 45).
Petitioner raised Ground Three as an assignment of error on direct appeal. The Ohio
Court of Appeals overruled the assignment of error, reasoning as follows:
Testimony About Jackson’s Credibility
{¶33} In his third assignment of error, Webster claims that plain error occurred
when detective Pitchford offered his opinion as to Jackson’s credibility. Webster
alternatively argues that counsel was ineffective for failing to object to this
testimony.
{¶34} Webster takes issue with the following exchange between the assistant
prosecuting attorney and Pitchford during re-direct examination:
Q. Now, Detective, Ms. Donovan [defense attorney] asked you whether you
believed Miss. Jackson.
A. Yes.
Q. And do you believe that she was having sexual intercourse with Nate Webster
when she was 16 years old?
A. Yes.
Q. And do you believe that she was having sexual intercourse with him when she
was 15 years old?
A. Yes.
23

As with Ground Four of the petition, discussed below, petitioner did not object to error alleged in Ground Three of
the petition at trial and petitioner argued it amounted to plain error on direct appeal. However, unlike Ground Four of
the petition, the Ohio Court of Appeals decision does not specifically state that it reviewed the claim under Ohio Crim.
R. 52(B). (See Doc. 11, Ex. 18 at PageID 319–22). Accordingly, although it appears petitioner committed the same
procedural default as discussed in Ground Four below, the undersigned will review petitioner’s third ground for relief
on the merits.

35

Q. And do you believe possibly she was even having sexual intercourse shortly
after she turned 17 years old in February 2011?
A. Yes.
{¶35} Citing State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), Webster
claims that Pitchford’s testimony deprived him of a fair trial and that his convictions
must be reversed. In Boston, the Court held that “[a]n expert may not testify as to
the expert’s opinion of the veracity of the statements of a child declarant.” Id. at
syllabus.
{¶36} Boston is not directly on point since Pitchford was not testifying as an expert.
However, in State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶
122, the Ohio Supreme Court ruled that a police officer’s opinion that an accused
is being untruthful is inadmissible.
{¶37} If we were to review the cited exchange in a vacuum, based on Davis
Webster’s argument might have merit. Webster, however, opened the door to this
testimony and we find no error.
{¶38} On cross-examination, defense counsel asked Pitchford numerous questions
concerning Jackson’s credibility as it related to the pending charges. Counsel asked
Pitchford (1) whether he believed Jackson when she told him that she had babysat
for the Websters numerous times (Webster’s and Jackson’s relationship allegedly
started when Jackson started babysitting), (2) whether Jackson’s story concerning
her first sexual encounter with Webster “made any sense” to Pitchford, (3) whether
Pitchford was aware that Jackson’s father had called Jackson a “liar” when she first
told him of her sexual relationship with Webster, (4) whether Pitchford believed
one of two conflicting stories Jackson had told concerning whether her mother or
Webster had gone with her to purchase a new cellular telephone that enabled her to
stay in contact with Webster, and (5) whether Pitchford was aware that Jackson’s
former boyfriend thought that Jackson had been lying about some of her allegations
against Webster.
{¶39} Unlike in Davis and Boston, where the state had offered testimony
concerning the victim’s truthfulness during its case-in-chief, here the state was
rebutting the defendant’s attempt to establish that Jackson had lied about multiple
aspects of the pending charges. It is well-settled that a prosecutor can respond to
issues raised by an accused. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751,
772 N.E.2d 81, ¶ 101; see State v. Kelly, 9th Dist. Summit No. 24660, 2011-Ohio4999; State v. Irwin, 7th Dist., Columbiana No. 11-CO-6, 2012 Ohio 2704, ¶ 22.
{¶40} In sum, a defendant cannot fairly expect the state to ignore a line of attack
on a victim’s veracity as it relates to the pending charges. The prosecution was
well within its bounds to ask questions that directly countered the defendant’s
36

stringent cross-examination of Pitchford. We therefore hold that no error occurred.
And since there was no error, counsel was not ineffective for failing to object. See
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Webster’s third
assignment of error is overruled.
(Doc. 11, Ex. 18 at PageID 319–22).
As observed by the Ohio appeals court, it is improper for a prosecutor or detective to
express a personal belief on the credibility of a witness. See United States v. Young, 470 U.S. 1,
9–10 (1985). See also Dorsey v. Banks, 749 F.Supp.2d 715, 755–59 (S.D. Ohio 2010) (applying
prosecutorial misconduct analysis set forth in Darden, infra, to a claim of vouching by law
enforcement). The Supreme Court in Young articulated two dangers posed by such comments:
“such comments can convey the impression that evidence not presented to the jury, but known to
the prosecutor, supports the charges against the defendant and can thus jeopardize the
defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the
prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to
trust the Government’s judgment rather than its own view of the evidence.” Young, 470 U.S. at
18–19.
However, a petitioner is not entitled to federal habeas corpus relief based on a
prosecutorial misconduct claim unless the improper comments “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 642-43 (1974); see also Darden v. Wainwright, 477 U.S. 168, 181
(1986) (“it is not enough that the prosecutor’s remarks were undesirable or even universally
condemned[;]” rather, the “relevant question” is whether the prosecutor’s challenged conduct
rendered the trial fundamentally unfair in violation of due process). Cf. Ross v. Pineda, 549 F.
App’x 444, 452–53 (6th Cir. 2013) (noting that “this Court is unlikely to find that a prosecutor’s

37

statement that he or she personally believes the victims to be sufficiently flagrant to warrant
reversal”) (quotation makes omitted). “The Darden standard is a very general one, leaving courts
‘more . . . leeway in reaching outcomes in case-by-case determinations.’” Parker v. Matthews,
567 U.S. 37, 48 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
alleged misconduct must be examined within the context of the entire trial to determine whether
it deprived the defendant of a fair trial. Young, 470 U.S. at 11–12. Under the “invited response”
rule, for example, where the alleged error was invited by the defense’s own conduct, “the
remarks must be examined within the context of the trial to determine whether the prosecutor’s
behavior amounted to prejudicial error. In other words, the Court must consider the probable
effect the prosecutor’s response would have on the jury’s ability to judge the evidence fairly.”
Id. at PageID 10.24
The Sixth Circuit previously set forth a two-step inquiry to determine whether a
prosecutorial misconduct rises to the level of a constitutional violation, requiring the conduct to
be both improper and flagrant. Four factors were evaluated to determine whether improper
conduct was flagrant: (1) the likelihood that the remarks would mislead the jury or prejudice the
accused, (2) whether the remarks were isolated or extensive, (3) whether the remarks were
deliberately or accidentally presented to the jury, and (4) whether the other evidence against the
defendant was substantial. See Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). However,
in Parker v. Matthews, the Supreme Court observed that “[t]he highly generalized standard for
evaluating claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the
elaborate, multistep test employed by the Sixth Circuit.” Parker, 567 U.S. at 49. The Parker

24

In Young the Supreme Court directed that “the reviewing court must not only weigh the impact of the prosecutor’s
remarks, but must also take into account the defense counsel’s opening salvo. Thus the import of the evaluation has
been that if the prosecutor’s remarks were ‘invited,’ and did no more than respond substantially in order to ‘right the
scale,’ such comments would not warrant reversing a conviction.” Young, 470 U.S. at 14.

38

Court held that it was error for the Sixth Circuit to rely on its own precedents in granting habeas
relief and reaffirmed that the Darden standard governs claims of prosecutorial misconduct in
federal habeas corpus.
In this case, petitioner has failed to demonstrate that the Ohio Court of Appeals’ decision
was based on an unreasonable determination of the facts or was contrary to or an unreasonable
application of Supreme Court precedent. Petitioner contends that the Ohio Court of Appeals
unreasonably determined that the defense opened the door to Pitchford’s testimony through its
cross-examination. However, as noted by the Ohio appeals court, prior to the contested
testimony the defense questioned Pitchford extensively about the victim’s credibility as it related
to her allegations against petitioner, specifically inquiring whether Pitchford believed multiple
portions of her testimony. Defense counsel asked Pitchford, “Do you believe her when she said
[that she babysat for the Websters on multiple occasions]?” and, with respect to her testimony
that petitioner picked her up from Chloe’s house after school, whether “her testimony make[s]
any sense to you?” (Doc. 11, Trans. at PageID 1350, 1357). Defense counsel further confronted
Pitchford on apparent discrepancies in her testimony, inquiring “which do you think is true?” or
“which do you believe?”25 (Id. at PageID 1361, 1371). Finally, prior to the contested testimony
on re-direct, defense counsel herself elicited the following exchange with respect to Jackson’s
allegation that she continued to have sex with petitioner despite being grounded and prohibited
from going outside without her parents:
Q.

And yet, Jordyn says she continued to go outside and have sex with Nate
Webster, correct?

25

Specifically, the defense asked Pitchford whether he believed Jackson’s interview statements that she told Kelly
that her mom was picking her up from the Kelly home or—as Kelly testified—that it was petitioner picking her up.
Pitchford testified that “I believe Chloe Kelly was telling the truth. And I believe [Jackson] wasn’t telling Chloe the
truth . . . .” (Id. at PageID 1361). The defense also asked Pitchford whether he believed Jackson’s 2011 statement
that she went with her parents to get a new phone or her trial testimony that petitioner took her to get a new phone.
(Id. at PageID 1371–72). Pitchford responded “I don’t know on that one.” (Id. at PageID 1372).

39

A.

Yes.

Q.

So did her parents go with her, since she said she wasn’t even allowed to
walk outside without them being there?

A.

Okay. Well, are you asking the question to me?

Q.

Yeah, umm-hmm?

A.

If we’ve all had teenagers and we ground our teenagers, as we all probably
did, we snuck out of the house. And I believe Jordyn disobeyed her parents
and went down to that man’s house, and had sex with him at his home, got
in his vehicles, went to the parks, went to the lodge, went to the Waterford
Apartments, that’s exactly what she did.

Q.

And if she were 16 at the time that she did all those things, it is not criminal;
is it, Detective?

A.

No.

(Id. at PageID 1368-69).
Upon review of the record, the undersigned finds that the Ohio appeals court reasonably
determined that Pitchford’s testimony on redirect was in response to the defense’s line of
questioning regarding whether Pitchford believed Jackson’s testimony. Accordingly, the Ohio
Court of Appeals’ adjudication of petitioner’s claim was not based on an unreasonable
determination of the facts.
The decision was likewise not contrary to or an unreasonable application of Supreme
Court precedent. As noted above, the relevant question under Darden is whether Pitchford’s
testimony “so infected the trial with unfairness to make the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181. Petitioner has made no such showing in this case. As
argued by respondent, the dangers typically associated with improper vouching were not
implicated in this case. First, Pitchford’s testimony did not convey to the jury the impression
that his belief in Jackson’s credibility was based on outside evidence not presented to the jury.

40

See Young, 470 U.S. at 18–19. To the contrary, and as discussed below regarding Ground Four
of the petition, the prosecution’s direct-examination of Pitchford detailed his investigation of the
case to demonstrate that Pitchford did not coach Jackson and otherwise conducted a fair
investigation. In doing so, Pitchford testified as to the specific evidence that he relied on in
assessing Jackson’s credibility, including the phone records between her and petitioner,
Jackson’s calendar, her ability to identify tattoos on petitioner’s body, and recorded statements
made by petitioner. (Doc. 11, Trans. at PageID 1306–1308, 1319).
Second, as to the concern that the jury may be induced to trust Pitchford’s judgment
rather than its own view of the evidence, Young 470 U.S. at 18–19, the jury was instructed that it
was the exclusive judge of the credibility of witnesses:
The jury is the also the exclusive judge of the credibility or believability of the
witnesses and the weight to be given to evidence. You may disbelieve all or any
part of the testimony of any witness.
(Doc. 11, Trans. at PageID 1826). See also Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (the
jury is presumed to follow the directions of the trial court judge absent “an overwhelming
probability” that the jury would be unable to do so and “a strong likelihood that the effect of the
evidence would be devastating to the defense”) (internal citations and quotation marks omitted);
Shaieb v. Burghuis, 499 F.App’x 486, 499 (6th Cir. 2012) (same). Accordingly, any prejudice
stemming from Pitchford’s comment was negated by the trial court’s curative instruction. See
Donnelly, 416 U.S. at 644 (stressing curative instruction issued by trial court that arguments of
attorneys were not evidence and holding petitioner was not deprived of fair trial); United States
v. Warshak, 631 F.3d 266, 306 (6th Cir. 2010) (any prejudice caused by prosecutor’s comments
was either extinguished entirely or diminished drastically by curative instructions that closing
arguments were not evidence and to disregard personal opinions of counsel); United States v.

41

Roberts, 986 F.2d 1026, 1031 (6th Cir. 1993) (“the prejudicial effect of improper comments may
be negated by curative instructions to the jury”).
Finally, the weight of the evidence presented in support of petitioner’s convictions and
sentence also reduced the likelihood that the jury was influenced by Pitchford’s comments. See
Darden, 477 U.S. at 181. Petitioner maintains that the trial amounted to a he said/she said case.26
However, as noted above, petitioner confessed to the sexual relationship, as well as to using his
cell phone to arrange meetings with the victim. Through the phone records establishing phone
contacts between petitioner in September, October, and November of 2009, the victim’s
testimony detailing their sexual relationship while she was fifteen, as well as the corroborating
testimony of Chole Kelly, Mr. Jackson, and Mrs. Jackson, the prosecution provided substantial
evidence of petitioner’s guilt.
Accordingly, in sum, petitioner has failed to demonstrate that the Ohio Court of Appeals’
decision was based upon an unreasonable determination of the facts or was an unreasonable
application of Supreme Court precedent. Because petitioner has failed to demonstrate that the
decision “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement,” Harrington,
562 U.S. at 103, petitioner is not entitled to federal habeas relief based on his improper vouching

26

In Grounds Three and Four of the petition, petitioner claims that because none of the corroborating witnesses bore
witness to sexual conduct between petitioner and the victim, their testimony is entirely dependent on the victim’s
truthfulness/credibility. Petitioner further claims that without the victim’s testimony the phone records are
meaningless. On this basis petitioner argues that the Ohio Court of Appeals’ decision rejecting petitioner’s claims
that Pitchford’s and the victim’s testimony established the entire case against him and the State’s entire case depended
on the victim’s truthfulness was based on an unreasonable determination of the facts. (See Doc. 1 at PageID 50-53,
57). However, petitioner’s claim that the phone records were meaningless absent the victim’s testimony fails to
account for petitioner’s police statements indicating that he used his cell phone to arrange their meetings. Additionally,
the corroborating witnesses testified as to their independent observations, which served to establish the timeframe for
the charged conduct as well as petitioner’s knowledge of or recklessness with regard to the victim’s age. These
witnesses’ observations—such as Chloe Kelly’s testimony that petitioner picked her up from her home in September
and October of 2009, Mrs. Jackson’s testimony that she observed petitioner’s cars and trucks leave his driveway after
her daughter left for jogs in November, and Mr. Jackson’s testimony that he informed petitioner that his daughter was
15 in October 2009—are independent from the credibility of the victim or her testimony.

42

claim in Ground Three of the petition. Furthermore, because petitioner’s vouching claim is
without merit, the Ohio Court of Appeals reasonably determined that trial counsel was not
ineffective for failing to raise the meritless objection during trial. United States v. Martin, 45 F.
App’x 378, 381–82 (6th Cir. 2002) (“Failure of trial counsel to raise wholly meritless claims
cannot be ineffective assistance of counsel.”).
C. Ground Four is procedurally defaulted and waived.
In Ground Four, petitioner claims that Pitchford testified as to the ultimate issue in the
case: that the victim’s allegations constitute unlawful sexual conduct with a minor in violation of
Ohio law. (Doc. 1 at PageID 53-61). Petitioner claims the alleged error amounted to a violation
of his due process rights and that trial counsel was ineffective for failing to object to these issues
at trial.
Petitioner raised Ground Four as an assignment of error on direct appeal. The Ohio
appeals court reviewed the alleged error under plain error analysis review and overruled the
assignment of error. Furthermore, because the underlying alleged error was itself without merit,
the court of appeals reasoned that trial counsel was not ineffective for failing to object to the
testimony at trial:
Alleged “Ultimate Issue” and “Specialized Meaning” Testimony
{¶41} In his fourth assignment of error, Webster claims that plain error occurred
when Pitchford improperly “asserted his own conclusions” to the jury that
Jackson’s allegations against Webster constituted the crime of unlawful sexual
conduct with a minor. Because there was no objection to this testimony, we review
for plain error. Crim.R. 52(B). Plain error does not exist unless, “but for the error,
the outcome of the trial clearly would have been otherwise.” State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1982), paragraph two of the syllabus. Notice of plain
error “is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the
syllabus. In the alternative, Webster contends that counsel was ineffective for
failing to object.

43

{¶42} Pitchford was in the midst of explaining to the jury how he became involved
in this case when the following exchange occurred between the assistant
prosecuting attorney and Pitchford:
Q. When you interviewed all the people [Hue, Michelle, and Jordyn Jackson] and
you determined, I think you told the jury that what she said in terms of the unlawful
sex with a minor did violate Ohio law?
A. Yes.
{¶43} Based on this exchange, Webster asserts that Pitchford actually testified (1)
that sexual intercourse occurred between Jackson and Webster when Jackson was
15 years old, and (2) that Webster had been reckless in regard to Jackson’s age.
This, according to Webster, violated his “Fifth, Sixth, and Fourteenth Amendment
rights to due process, to confront the State’s evidence, and [to] a fair trial wherein
an impartial jury determines whether the evidence presented proves beyond a
reasonable doubt all the essential elements of the crime.” Webster also claims that
Pitchford’s testimony contained “impermissible legal conclusions pertaining to
terms that have specialized meanings within the statute defining the offense in
question.” See U.S. v. Nixon, 694 F.3d 623 (6th Cir. 2012).
{¶44} We are not convinced that Webster’s characterization of the cited question
and answer is entirely accurate. Pitchford testified after Jackson had testified.
During defense counsel’s cross-examination of Jackson, the defense attempted to
establish that the police had coached Jackson in regard to the timing of her
relationship with Webster. The passage cited by Webster was a part of a larger
exchange during which the state was attempting to establish that Pitchford’s
investigation into Webster’s case had been fair. This testimony was proper.
Cassano, 96 Ohio St.3d at 101, 772 N.E.2d 81.
{¶45} Even if we were to agree with Webster’s portrayal of this exchange, we find
no grounds for reversal. Webster claims that the error is plain error because “the
combination of Pitchford’s and Jordyn’s testimony established the entire case
against Webster.” In this same argument Webster also claims that “the [s]tate’s
entire case” rested on Jackson’s truthfulness. Neither statement is accurate. Chloe
Kelly, Hue Jackson, and Michelle Jackson corroborated the timeframes testified to
by Jackson. And in his confession, Webster admitted that he had had sexual
intercourse with Jackson, possibly in 2009. He also admitted that he and Jackson
would text each other to arrange meetings. The state produced telephone records
showing contact between Webster’s cellular telephone and Jackson’s cellular
telephone during the months in question. Further Webster stated in his confession
that he didn’t know how old Jackson was when they started having sex, stating that
she may have been between 14 and 16 years old.
{¶46} Consequently, the state’s case was not based solely on Jackson’s and/or
Pitchford’s testimony. With or without the complained-of statement, the
44

prosecution presented more than sufficient evidence to convict Webster of unlawful
sexual conduct with a minor. This argument therefore has no merit. And we also
find no ineffective assistance of counsel for counsel’s failure to object to
Pitchford’s testimony. See Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674; Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373. Webster’s fourth assignment of
error is overruled.
(Doc. 11, Ex. 18 at PageID 319–24).
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state defendant with federal constitutional claims must fairly present those claims to the
state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard
v. Connor, 404 U.S. 270, 275-76 (1971). In order to satisfy the fair presentation requirement, the
claims asserted in the federal habeas petition must be based on the same facts and same legal
theories that were presented to the state courts. Carter v. Mitchell, 693 F.3d 555, 568 (6th Cir.
2012) (citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Wong v. Money, 142 F.3d
313, 322 (6th Cir. 1998)). Moreover, 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 (1999); Hafley v. Sowders, 902 F.2d 480, 483
(6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). If the petitioner fails
to fairly present his constitutional claims through the requisite levels of state appellate review to
the state’s highest court, or commits some other procedural default that prevents a merit-based
review of the federal claims by the state’s highest court, he may have waived the claims for
purposes of federal habeas review. See O’Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S.
255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v.
Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).
45

It is 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 Harris, 489 U.S. at 260-62. The
Supreme Court has stated:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for 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). Such a default may occur if the state prisoner
files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state
appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or
if he fails to comply with a state procedural rule that required him to have done something to
preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982);
Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit employs a three-prong test, which was initially established in Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986), to determine if a claim is procedurally defaulted under
the adequate and independent state ground doctrine:
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. . . . 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.
Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Jacobs v. Mohr, 265 F.3d 407,
417 (6th Cir. 2001) (in turn quoting Maupin)); see also Johnson v. Bradshaw, 493 F. App’x 666,

46

669 (6th Cir. 2012). Under Maupin and as discussed above, if the three prerequisites are met for
finding a claim is procedurally defaulted under the adequate and independent state ground
doctrine, federal habeas corpus review of the defaulted claim is precluded unless the petitioner
can demonstrate cause for and prejudice from his procedural default or that failure to consider
the defaulted claim will result in a “fundamental miscarriage of justice.” Hoffner, 622 F.3d at
495 (citing Maupin, 785 F.2d at 138); Johnson, 493 F. App’x at 669. See also Coleman, 501
U.S. at 750; Harris, 489 U.S. at 262; Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v.
Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, petitioner procedurally defaulted the claims raised in Ground Four by failing
to object to the alleged errors at trial. Ohio’s contemporaneous objection rule is a firmlyestablished, 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, 271 F.3d 239, 244 (6th
Cir. 2001)); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); see also State v. Murphy, 747
N.E.2d 765, 788 (Ohio 2001) (noting 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 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 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 315.27

27

Petitioner claims that in this instance the contemporaneous objection rule and plain error review is not an adequate
and independent bar to review. (See Doc. 15 at PageID 2030-33). Petitioner claims that under Harris v. Reed, 489
U.S. 255 (1989), a federal habeas court presumes “there is no independent and adequate state ground for a state court
decision when the decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and

47

The Ohio Court of Appeals clearly enforced the state procedural bar by reviewing
petitioner’s assignment of error under plain error analysis. (See Doc. 11, Ex. 18 at PageID 322).
As such, the state appellate court’s plain-error review did not constitute a waiver of the state
procedural default rules. Seymour v. Weaver, 224 F.3d 542, 557 (6th Cir. 2000); see also
Goodwin, 632 F.3d at 315. The Ohio Supreme Court’s later unexplained entry declining to
accept jurisdiction of the appeal must be presumed to rely on the same state procedural ground.
See Ylst, 501 U.S. at 803. See also Abshear v. Moore, 354 F. App’x 964, 970 (6th Cir. 2009);
Knuckles v. Brigano, 70 F. App’x 830, 840 (6th Cir. 2003).
Therefore, the claims alleged in Ground Four of the petition are barred from review in
this proceeding unless petitioner can demonstrate cause for and prejudice from his procedural
default or that a fundamental miscarriage of justice will occur if the grounds for relief are not
considered on the merits by this Court. See, e.g., Coleman, 501 U.S. at 750; Harris, 489 U.S. at

when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” (Id.
at PageID 2024 (citing Arias v. Lafler, 511 F. App’x 440, 446) (6th Cir. Jan. 9, 2013))). However, in this case, nothing
indicates that the Ohio Court of Appeals’ decision rests on or is somehow intertwined with federal law. See Coleman
v. Thompson, 501 U.S. 722, 735 (1991) (noting that a predicate to the application of Harris is that the state-court
decision must fairly appear to rest primarily on federal law or be interwoven with federal law). To the contrary, the
Ohio appeals court explicitly applied the plain error analysis due to petitioner’s failure to object at trial. As noted
above it is well-settled that 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.
Petitioner nevertheless reasons that the state court ruling was not independent of federal law because the analysis
under plain error review—whether the outcome of the trial would have been different but for the alleged error—is the
same as the analysis for a properly preserved vouching claim, which requires consideration of the prejudicial impact
of the challenged comments. (Id. at PageID 2031-32). In Knuckles v. Rodgers, No. 92-3208, 1993 WL 11874, at *3
(6th Cir. Jan. 21, 1993), an unpublished Sixth Circuit case, the court similarly reasoned that because “[t]he basic
inquiry in the plain error analysis is whether the defendant has been denied a ‘fair trial’” and “[w]hether a person is
denied a fair trial is a question to be resolved by applying the principles of federal constitutional law,” that the Ohio
appellate court’s application of plain error was not independent of federal law and did not amount to a procedural
default. However, as noted by the Sixth Circuit, “the Knuckles decision has been subject to criticism, and this court
has repeatedly held, in published decisions that plain error review by an appellate court constitutes enforcement of
Ohio’s contemporaneous objection rule.” Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004) (rejecting claim that
plain error review for failure to contemporaneously object at trial was not independent of federal law). “State courts
do not waive procedural default by reviewing a claim for plain error, even when doing so involves an analysis of
federal law.” Stalling v. Burt, 772 F. App’x 296, 299 (6th Cir. May 24, 2019) (noting that the Sixth Circuit has
repeatedly rejected the argument that the state’s reliance on plain error does not amount to a procedural default if it
involves an inquiry into federal law) (collecting cases).

48

262; Murray, 477 U.S. at 485. Although petitioner contends that his trial counsel was ineffective
for failing to raise the alleged errors at trial, ineffective assistance of counsel does not constitute
cause for his defaults in this case because his ineffective assistance claims are without merit.
To establish ineffective assistance of counsel, petitioner must demonstrate both (1) his
trial attorney’s conduct was constitutionally deficient; and (2) counsel’s deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S. at 687. Under the first prong of
the Strickland test, it must be shown that counsel’s representation fell below an objective
standard of reasonableness based on all the circumstances surrounding the case. Id. at 688. In
determining whether or not counsel’s performance was deficient, the Court must indulge a strong
presumption that the challenged conduct fell within the wide range of reasonable professional
assistance. Id. at 689. Under the second “prejudice” prong of the Strickland test, petitioner must
demonstrate that a “reasonable probability” exists that, but for his counsel’s errors, the outcome
of the trial would have been different. See id. at 694. Petitioner has met his burden if he shows
that the result of the trial would “reasonably likely have been different absent the errors.” Id. at
695. The Court need not examine the question of whether counsel’s performance was deficient
before addressing the question of whether petitioner was prejudiced by the challenged conduct.
The Court may dispose of an ineffective assistance of counsel claim by finding that petitioner
has made an insufficient showing on either ground. Id. at 697.
The undersigned finds that trial counsel was not ineffective for failing to object to the
alleged ultimate-issue error underlying petitioner’s fourth ground for relief. As noted above,
petitioner contends that Pitchford impermissibly asserted that Jackson’s allegations against
petitioner constituted the crime of unlawful sexual conduct with a minor. Specifically, petitioner
takes issue with the following statement:

49

Q. When you interviewed all the people and you determined, I think you told the
jury that what she said in terms of the unlawful sex with a minor did violate Ohio
law?
A. Yes.
(Doc. 11, Trans. at PageID 1300-1301). Petitioner contends that in so commenting, Pitchford in
essence testified that the sexual relationship occurred when Jackson was fifteen, and that
petitioner was reckless with regard to her age. (Doc. 1 at PageID 60-61). On this basis, he
maintains that Pitchford’s testimony deprived him of his constitutional rights.
However, the undersigned agrees with the Ohio Court of Appeals’ determination that
petitioner’s claim rests on a mischaracterization of Pitchford’s testimony. As noted by the
appeals court, the defense sought to establish that Pitchford coached Jackson with respect to the
timeframe of their relationship. During the cross-examination of Jackson, for example, the
defense questioned her about whether or not she was informed by the police that in order for the
sexual conduct between her and petitioner to be illegal, she had to be fifteen years at the time.
(Id. at PageID 1236–37). In response, the prosecution walked Pitchford through his investigation
of Jackson’s allegations, including his interview with Jackson and whether he provided any
suggestions regarding the timing of her allegations. Pitchford testified that after receiving
Jackson’s allegations, he interviewed the victim and her parents separately in order to ensure a
fair, impartial, and objective investigation and that he never prompted anyone to say anything.
According to Pitchford, the purpose of the interviews was to determine “[t]he details and the
particulars about what happened, and how that would then apply to any type of criminal
violation.” (Id. at PageID 1298–99). In the challenged exchange, Pitchford testified that after
conducting the interviews he determined that the allegations—that Jackson “told us that it
occurred in the summer or fall of ’09 that she was 15 years of age”—constituted a violation of

50

Ohio law and he proceeded with the investigation of the case.28 (See id. at PageID 1299, 1301–
02). As found by the Ohio appeals court, the challenged testimony was part of a larger line of
questioning aimed at demonstrating that Pitchford did not coach Jackson and otherwise
conducted a fair investigation. The Ohio Court of Appeals reasonably concluded that Pitchford’s
testimony did not amount to impermissible ultimate-issue testimony, contain legal conclusions,
or otherwise violate petitioner’s constitutional rights.
Accordingly, because petitioner’s ineffective assistance of counsel claim is without merit,
it does not serve as cause for the procedural default of the underlying claims in Ground Four.
Furthermore, because petitioner has not otherwise demonstrated that a fundamental miscarriage
of justice will occur if his procedurally-defaulted claims for relief are not considered or, in other
words, that the alleged errors “probably resulted in the conviction of one who is actually
innocent,” see Murray, 477 U.S. at 495–96. See also Schlup v. Delo, 513 U.S. 298, 327 (1995);
Bonilla, 370 F.3d at 498, petitioner has procedurally defaulted and waived the claims raised in
Ground Four of the petition.
D. Grounds Five & Nine are without merit and/or procedurally defaulted and waived.
In Ground Five, petitioner claims that his constitutional rights were violated based on the
trial court’s exclusion of evidence under Ohio Rev. Code § 2907.05(E), Ohio’s Rape Shield

28

Petitioner contends that Pitchford’s comment failed to account for the mens rea element for the unlawful sexual
conduct with a minor, which required petitioner to have known the victim was under sixteen years of age or have been
reckless in that regard. However, as explained above, Pitchford’s testimony detailed how he conducted his
investigation of the allegations and decided to proceed with the case. The isolated comment was not, as petitioner
contends, a proclamation that petitioner was in fact guilty of the resulting charges. To the extent that petitioner
contends the mens rea element was not demonstrated at trial, the undersigned disagrees. As detailed above, Mr.
Jackson testified that he informed petitioner on October 30, 2009 that Jackson was only fifteen and petitioner made
several comments during the police interview to demonstrate his knowledge or recklessness, including his comment
that Jackson might have been 14, 15, or 16 when they started their sexual relationship.

51

Statute.29 (See Doc. 1 at PageID 61-79; Doc. 15 at PageID 2060-2066). In Ground Nine of the
petition, petitioner also claims his constitutional rights were violated by the trial court’s failure to
sever the one count of gross sexual imposition from the remaining charges, which are not subject
to the rape shield. (Doc. 1 at PageID 91-93).
Prior to trial, petitioner moved to sever the count of gross sexual imposition from the
remaining charges on the basis that the rape-shield protections only applied to this count and
petitioner “intends to introduce evidence as to the victim’s sexual activity and claimed sexual
activity.” (Doc. 11, Ex. 3 at PageID 149; Doc. 11-12 at PageID 435-36). The trial court denied
the motion to sever and issued a provisional ruling that evidence of and cross-examination on
prior sexual conduct with other men was precluded on the basis that the prejudicial nature of the
evidence outweighs its relevance. (See Doc. 11-2 at PageID 439, 444). With respect to prior
false allegations, which the defense argued is not barred by the rape shield, the defense indicated
that it intended to have witnesses testify that the victim made false claims of sexual relationships
with other football players and have the players testify that no such relationships existed. (See
id. at PageID 440-41. See also Doc. 1-1 at PageID 67 n.14; Doc.11, Ex. 15 at PageID 220 n.15).
The trial court questioned counsel on how the proposed testimony would prove that the victim
was not underage in light of petitioner admitting to the relationship in this case, but ultimately
withheld ruling on the issue.30 (Id. at PageID 440-42).

29

Under Ohio Rev. Code § 2907.05(E), “Evidence of specific instances of the victim’s sexual activity, opinion
evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted
under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual
activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not outweigh its probative value.”

30

With regard to the relevance of the prior false allegations, the Court had the following exchange with defense
counsel before reserving ruling on the issue:
THE COURT: So if he already has an admission that’s going to come in, how did this talking
about having sex with other men have anything to do with it? Because he got an admission from

52

The State subsequently filed a motion in limine, seeking to preclude the defense from
questioning a witness about specific instances of the victim’s sexual activity pursuant to the rape
shield. The motion also sought to exclude evidence related to other acts of the victim under Ohio
Evid. R. 608(B), which provides that “[s]pecific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s character for truthfulness . . . may not be proved
by extrinsic evidence.” (See Doc. 11, Ex. 6). The State argued that “evidence of past sexual
activity by the victim with other individuals or statements regarding such activity made by the
victim are not material to the issue of when the acts occurred as the Defendant has already
admitted that he engaged in sexual activity with the victim” and the prejudicial nature otherwise
outweighed any probative value. (Id. at PageID 158).
During the subsequent hearing, defense counsel stated that the defense did not plan to
bring up past sexual activity of the victim. (Doc. 11-3, Trans. at PageID 466-67). The trial court
granted the motion in part, reserving judgment on the character evidence for trial.31 (Id. at

your client that he had sex with her.
[Defense Counsel]: Well, he had sex with her, but not when she was under age.
THE COURT: Okay. So then we’ll go to the next step. How does that tend to prove or disprove
that she was under age?
[Defense Counsel]: Because she makes false allegations all the time.
THE COURT: Well, this one evidently is not a false allegation then.
[Defense counsel]: As to the timing, it certainly is. She’s claiming this happened beginning in
June of 2009. That is an absolute lie.
THE COURT: Well, that’s to be shown. So I think I’ll reserve ruling on that.
(Doc. 11-2, Trans. at PageID 441-42).
31

The defense stated that although it did not intend to bring up past sexual activity of the victim, it intended to present
evidence that the victim was going to petitioner’s house not for sex, but “to drink, to smoke, to party.” (Id. at PageID
468-69). While defense counsel stated “those types of activity may peripherally bear on her character,” the evidence
would be offered to demonstrate that the victim was going to petitioner’s house for other purposes than to have sex
with petitioner. In reserving ruling on the matter, the trial court stated “if the defense does bring up relevant character

53

PageID 469-71). Specifically, the trial court found that evidence of the victim’s sexual activity
was inadmissible under the rape shield statute, but also because it found such evidence not
relevant to the charges in the indictment and, in any event, any probative value “is significantly
outweighed by the severe prejudice it causes to the victim.” (Id. at PageID 470).
In the instant action, petitioner contends that the trial court improperly applied the rape
shield statute and barred the defense from presenting: (1) evidence that the victim made prior
false allegations of sexual relationships with other football players, (2) evidence that she was
having sexual relationships with Redman and Bud, petitioner’s brothers-in-law, (3) evidence that
she infected Redman and Bud with a sexually transmitted disease (STD), and (4) evidence that
petitioner infected his wife with the same STD in the summer of 2010. According to petitioner,
exclusion of the evidence was improper under the rape shield statute and resulted in violations of
his constitutional rights to due process, to confront the State’s evidence, and to present a defense.
(Doc. 1 at PageID 61-62).
Petitioner raised these claims on direct appeal. (See Doc. 11, Ex. 18). The Ohio Court of
Appeals overruled petitioner’s assignment of error, reasoning as follows:
The Rape Shield Law
{¶ 47} In his fifth assignment of error, Webster alleges that the trial court
improperly applied R.C. 2907.05(E), the “rape shield law,” in his case.
{¶ 48} R.C. 2907.05(E) states:
Evidence of specific instances of the victim’s sexual activity, opinion
evidence of the victim’s sexual activity, and reputation evidence of the
victim’s sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim’s past sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue in the case and

evidence I think is admissible, then I will allow it in.” (Id. at PageID 471).

54

that its inflammatory or prejudicial nature does not outweigh its probative
value.
{¶ 49} Webster claims that the trial court erred when it excluded (1) evidence that
Jackson had falsely claimed to have had sexual relationships with other NFL
players, (2) evidence that from June 2009 through the summer of 2010, Jackson
was having sexual relationships with Redman and Bud, (3) evidence that Jackson
infected Redman and Bud with sexually transmitted diseases (“STD”), and (4)
evidence that Webster infected his wife with the same STD in the summer of 2010.
{¶ 50} We limit our analysis to Webster’s second allegation. There was no proffer
to the trial court pertaining to evidence of the spread of an STD. See State v.
Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), syllabus. And the trial court
allowed Jackson to be cross-examined on the issue of whether she had fabricated
stories of sexual relationships with other NFL players.
Application of the Rape Shield Law
{¶ 51} To determine whether the rape shield law was constitutionally applied to
exclude evidence that Jackson was having affairs with Redman and Bud, the trial
court was required to “balance the state interest which the statute is designed to
protect against the probative value of the excluded evidence.” State v. Gardner, 59
Ohio St.2d 14, 17, 391 N.E.2d 337 (1979).
{¶ 52} At the outset, Webster argues that the trial court’s balancing of whether the
proffered evidence should have been admitted was flawed because the court applied
a “strict liability” mens rea to the crime of unlawful sexual conduct with a minor.
Without knowing the elements of the offense, Webster argues, the court could not
have properly determined the probative nature of the proffered evidence.
{¶ 53} Webster’s representation that the trial court applied an incorrect mens rea
when ruling is not supported by the record. First, the court stated that it had read
Webster’s motion concerning application of the rape shield statute. That motion
included the proper elements of unlawful sexual conduct with a minor. Second, at
the hearing on this matter, the court listened to arguments that set forth the proper
mens rea and then indicated on the record that the crime of unlawful sexual conduct
with a minor carried a mens rea of recklessness concerning the age of the victim. In
this regard, the court stated, “the burden of proof is reckless. It doesn’t have to be
knowingly or purposely. It’s a lower standard that the state is held to.” Finally,
while ruling on Webster’s motion, the court said, “I don’t see how [the proffered
evidence] is relevant because it’s pretty much a strict liability statute on the age
thing, if they prove that she was between 13 and 16 when they had sex and that he
was reckless in that regard.” (Emphasis added.)
{¶ 54} Given the complete context of this sentence and of the hearing overall, we
are convinced that the trial court’s misstatement that unlawful sexual conduct with
55

a minor was “pretty much a strict liability statute” was simply that—a misstatement
and we find no error.
Balancing of Interests
{¶ 55} The rape shield law advances several state interests. First, it guards the
alleged victim’s sexual privacy and protects her or him from undue harassment,
thereby discouraging the tendency to try the victim rather than the
defendant. Gardner, 59 Ohio St.2d at 17, 391 N.E.3d 337. Second, the rape shield
law may encourage the reporting of rape, thus aiding crime prevention. Id. Third,
“by excluding evidence that is unduly inflammatory and prejudicial, while being
only marginally probative, the statute is intended to aid in the truth-finding
process.” Id. at 17–18.
{¶ 56} Webster contends that the trial court did not properly weigh the probative
nature of the proffered evidence against these state interests. “The key to assessing
the probative value of the excluded evidence is its relevancy to the matters as proof
of which it is offered.” Id. at 18. Webster claims the proffered evidence would
have explained the multiple phone contacts between his cellular telephone number
and Jackson’s. We acknowledge that the cellular telephone calls and texts were
relevant to the state’s case. But evidence of sexual relationships between Jackson
and Redman and Jackson and Bud was unnecessary to establish that Jackson had
called Webster’s telephone number in order to speak to other people. In fact,
Redman and Bud both testified at trial that the cellular telephone records admitted
by the state reflected contact between each of them and Jackson. Other witnesses
for the defense corroborated this testimony. And during his confession to police,
Webster stated that Jackson had called his number to speak with either Redman or
Bud because she and one of them “had a connection.”
{¶ 57} Webster next claims that evidence that Jackson was in sexual relationships
with other men would have aided his case in regard to his mens rea. Webster argues
that if the jury knew that Jackson was having sexual intercourse with Redman and
Bud, who were in their late teens and early twenties, the jury could have inferred
that Webster must have thought that Jackson was in her late teens or early twenties.
We find this argument to be highly speculative and the evidence of little probative
value.
{¶ 58} Overall, we hold that the trial court properly weighed the state interests that
the rape shield law protects with the probative value of the proffered evidence.
Rape Shield Waiver
{¶ 59} Webster next claims that the state waived its rape shield protection during
trial. The state asked Jackson during direct examination if she had ever engaged in
sexual activity with Redman or Bud. Jackson replied that she had not. Jackson
also testified on direct examination that the only person that she had been sexually
56

involved with in Webster’s home was Webster. Webster now argues that, given
this line of questioning, Webster should have been able to question Redman and
Bud about this alleged relationship.
{¶ 60} Trial counsel did not raise this exact objection on [sic] at trial. The defense
instead argued that parts of Webster’s redacted confession concerning Jackson’s
alleged relationships should have been played for the jury. The trial court overruled
this objection.
{¶ 61} In regard to the present argument, we hold that there was no plain error
given that this evidence was of minimal probative value. Long, 53 Ohio St.3d 91,
372 N.E.2d 804 at paragraphs two and three of the syllabus.
Severance
{¶ 62} In his final argument in this assignment of error, Webster claims the trial
court abused its discretion when it did not grant his motion to sever the gross sexual
imposition count from the remaining charges. The gross sexual imposition charge
is the only charge to which the rape shield law had attached. Webster cites no case
law in support of this argument nor does he cite to alleged error in the record. It is
not this court’s job to ferret out the basis for this claim. App.R. 12; App.R.
16; Halliday v. Halliday, 8th Dist. Cuyahoga No. 92116, 2010–Ohio–2597, ¶ 17.
{¶ 63} Webster’s fifth assignment of error is overruled.
(Doc. 11, Ex. 18 at PageID 324-29).
Petitioner has not demonstrated that he is entitled to federal habeas relief based on
Grounds Five or Nine of the petition.
As an initial matter, petitioner is not entitled to federal habeas relief to the extent that he
claims the Ohio courts misapplied Ohio law. This federal habeas court may review a state
prisoner’s habeas petition only on the ground that the challenged confinement violates the
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 Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal court to reexamine statecourt determinations on state-law questions”). “Errors by a state court in the admission of
evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the
57

prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.”
Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994) (citing Logan v. Marshall, 680 F.2d 1121,
1123 (6th Cir. 1982)). The Supreme Court has defined the category of infractions that violate
“fundamental fairness” very narrowly. Dowling v. U.S., 493 U.S. 342, 352 (1990). “Generally,
state-court evidentiary rulings cannot rise to the level of due process violations unless they
‘offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
Petitioner in this case claims that the state evidentiary issues resulted in violations of his
constitutional rights to confront the witnesses against him and to present a defense. See
Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (recognizing the right to confront, crossexamine, and call witnesses as essential to due process).
The Sixth Amendment guarantees the criminal defendant the right, applicable to the
states by way of the Fourteenth Amendment, “to be confronted with the witnesses against him.”
U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400 (1965). A “primary interest
secured by [the Confrontation Clause] is the right of cross-examination,” which “is the principal
means by which the believability of a witness and the truth of his testimony are tested.” Davis v.
Alaska, 415 U.S. 308, 315 (1974) (internal citation and quotation marks omitted); see also Boggs
v. Collins, 226 F.3d 728, 736 (6th Cir. 2000) (and Supreme Court cases cited therein). However,
the right “is not absolute and may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.” Chambers, 410 U.S. at 285; see also Delaware v.
Fensterer, 474 U.S. 15, 20 (1985) (“the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and to

58

whatever extent, the defense might wish”) (emphasis in original). The Supreme Court has stated
that “trial judges retain wide latitude . . . to impose reasonable limits on . . . cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . .
or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986).
The Supreme Court has “distinguished between a ‘general attack’ on the credibility of a
witness—in which the cross-examiner ‘intends to afford the jury a basis to infer that the witness’
character is such that he would be less likely than the average trustworthy citizen to be truthful in
his testimony’—and a more particular attack on credibility “directed toward revealing possible
biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the
case at hand.” Boggs, 226 F.3d at 736 (quoting Davis, 415 U.S. at 316). “Under Davis and its
progeny, the Sixth Amendment only compels cross-examination if that examination aims to
reveal the motive, bias or prejudice of a witness/accuser” and “does not require that a defendant
be given the opportunity to wage a general attack on credibility by pointing to specific instances
of past conduct.” Id. at 740. See also Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 596
(6th Cir. 2012); Olson v. Little, 604 F. App’x 387, 395-96 (6th Cir. 2015). The Supreme Court
“has never held that the Confrontation Clause entitled a criminal defendant to introduce extrinsic
evidence for impeachment purposes.” Nevada v. Jackson, 569 U.S. 505, 512 (2013) (emphasis
in original).
The Constitution also guarantees criminal defendants “a meaningful opportunity to
present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California
v. Trombetta, 467 U.S. 479 (1984)). However, this right is not unlimited, as the Supreme Court
has “recognized that state and federal rulemakers have broad latitude under the Constitution to

59

establish rules excluding evidence from criminal trials” and only rarely have held “that the right
to present a complete defense was violated by the exclusion of defense evidence under a state
rule of evidence.” Nevada, 569 U.S. at 509 (quotation marks and citation omitted). See also
Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (an accused in a criminal case does not have an
unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under
the standard rules of evidence); Rock v. Arkansas, 483 U.S. 44, 55 (1987) (“[t]he right to present
relevant testimony is not without limitation,” but rather “may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process.” ) (quoting Chambers v.
Mississippi, 410 U.S. at 295). “[W]ell-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina,
547 U.S. 319, 326 (2006). See also Crane, 476 U.S. at 327.
On the other hand, the right to present a complete defense may be compromised “by
evidence rules that infringe upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve.” Id. at 324-25; United States v.
Scheffer, 523 U.S. 303, 308 (1998). See also Martin v. Haas, 731 F. App’x 443, 445 (6th Cir.
2018) (“where evidence is ‘not so highly probative’ or ‘weighty,’ we generally do not consider it
‘constitutionally guaranteed’ and instead defer to a state court’s discretion to exclude it”)
(quoting Boggs, 226 F.3d at 745); Miskel v. Karnes, 397 F.3d 446, 455 (6th Cir. 2005) (noting
that “in each case where ‘a weighty interest of the accused’ was infringed, the exclusion of
evidence seriously undermined ‘fundamental elements of the defendant’s defense’ against the
crime charged”) (quoting Scheffer at 315-17); Turpin v. Kassulke, 26 F.3d 1392, 1396 (6th Cir.
1994) (“The Supreme Court looks to several factors in determining whether a defendant’s due

60

process right require the admission of a particular item of evidence,” including “the extent to
which the proffered evidence is ‘critical’ in the context of the case” and “‘tend[s] to exculpate’
the accused.”) (quoting Chambers v. Mississippi, 410 U.S. 284 (1973)). “[B]ecause a defendant
suffers a constitutional violation only if evidence in which the defense has a ‘weighty interest’ is
impermissibly excluded, the arbitrary or disproportionate exclusion of defense evidence has
constitutional significance only if the excluded evidence, evaluated in the context of the entire
record, creates a reasonable doubt that did not otherwise exist.” Shoemaker v. Jones, 600
F.App’x 979, 984 (6th Cir. 2015) (internal citation omitted) (quoting U.S. v. Blackwell, 459 F.3d
739, 753 (6th Cir. 2006)).
“The United States Supreme Court has never held that rape-shield statutes do not
represent a legitimate state interest, nor has it ever held that highly probative evidence will
necessarily outweigh that interest.” Gagne v. Booker, 680 F.3d 493, 516 (6th Cir. 2012). As set
forth above, the Ohio Supreme Court has identified the following legitimate state interests
advanced by the rape shield law:
First, by guarding the complainant’s sexual privacy and protecting her from undue
harassment, the law discourages the tendency in rape cases to try the victim rather
than the defendant. In line with this, the law may encourage the reporting of rape,
thus aiding crime prevention. Finally, by excluding evidence that is unduly
inflammatory and prejudicial, while being only marginally probative, the statute is
intended to aid in the truth-finding process.
State v. Gardner, 391 N.E.2d 337, 340 (Ohio 1979). See also Lucas, 500 U.S. at 149-50 (finding
a state rape statute “represents a valid legislative determination that rape victims deserve
heightened protection against surprise, harassment, and unnecessary invasions of privacy”);
Jordan, 675 F.3d at 595 (identifying “the prevention of minitrials on collateral issues, including
the victim’s history” as an interest to be balanced). In order to determine if a rape-shield rule
results in a constitutional violation, the “trial court must balance the state’s interest against the
61

defendant’s interest on a case-by-case basis.” Booker, 680 F.3d at 516 (citing Michigan v.
Lucas, 500 U.S. 145, 152-53 (1991)). “So long as the trial judge reasonably concludes that the
State’s interest in exclusion outweighs the defendant’s need for the evidence, the Constitution
permits the rape shield to do its intended work.” Batey v. Haas, 573 F.App’x 590, 594 (6th Cir.
2014). See also Booker, 680 F.3d at 517 (noting that the pertinent question under AEDPA is not
whether the trial judge was correct, but whether the last state court’s decision was objectively
unreasonable).
In this case, as explained below, petitioner has not demonstrated that the Ohio Court of
Appeals’ decision was based on an unreasonable determination or that it was contrary to or
involved an unreasonable application of Supreme Court precedent.
Prior Sexual Relations
The Ohio Court of Appeals reasonably concluded that the trial court properly applied the
rape shield to preclude evidence that the victim had sexual relationships with petitioner’s
brothers-in-law, Redman and Bud. Petitioner argued that the evidence of the alleged sexual
relationships was relevant to explain the multiple phone contacts between petitioner’s phone and
the victim, as well as to refute the charge that petitioner was reckless with respect to the victim’s
age. Observing the state interests advanced by the rape shield law and assessing the probative
value of the excluded evidence, the Ohio Court of Appeals concluded that the trial court properly
weighed and balanced the competing interests.32 As noted by the appeals court, evidence of a

32

The undersigned agrees with the Court of Appeals’ determination that the trial court’s single reference to “strict
liability” during the in camera hearing does not indicate that trial court applied the incorrect mens rea to the unlawful
sexual conduct with a minor charges or that the trial court’s balancing of the competing interests was otherwise flawed,
as petitioner argues. (See Doc. 1 at PageID 62-63). During the hearing, the trial court questioned the relevance of
evidence of the victim’s prior sexual relations, noting that “I don’t see how [the evidence is] relevant, because it’s
pretty much a strict liability statute on the age thing, if they prove that she was between 13 and 16 when they had sex
and that he was reckless in that regard.” (Doc. 11, Trans. at PageID 439) (emphasis added). In the same comments—
both before and after this statement—the trial court correctly identified the mens rea as being one of “recklessness.”
(See id. at 438, 439). The trial court also reviewed the indictment and petitioner’s motion, which both set forth the

62

sexual relationship with the brothers-in-law was not necessary to suggest the victim called
petitioner’s phone to speak with Redman and Bud. These defendants and others testified that
many people used petitioner’s cell phone (see Doc. 11-11 at PageID 1508-09, 1537); that
multiple calls reflected in petitioner’s phone records were between the brothers-in-law and the
victim concerning drug transactions (id. at 1509-13, 1537, 1540); and, in petitioner’s police
interview, that the victim “had a connection” with one of the brothers-in-law (Doc. 20 at PageID
2102). On this basis, the defense argued in closing that the phone records were consistent with
drug transactions between the victim and the brothers-in-law. (Doc. 11-11, Trans. at PageID
1744-47). The Ohio Court of Appeals further determined that the victim’s alleged sexual
relationships with Redman and Bud (individuals in their late teens and early twenties) was of
little probative value with respect to petitioner’s knowledge of or recklessness with respect to the
victim’s age. The appeals court reasonably found the argument that the jury could have inferred
that petitioner believed that the victim was also in her late teens or early twenties based on the
alleged relationships to be highly speculative and insufficient to outweigh the State’s interests
underlying the rape shield law in this case.
This Court finds that the trial court reasonably concluded that the State’s interest in
exclusion under the rape shield outweighed the defendant’s need for the evidence to be included.
Batey, 573 F.App’x at 594. The excluded evidence was not critical to the defense, exculpatory,
or highly probative with respect to petitioner’s mens rea regarding the age of the victim or the
timing of their relationship. Furthermore, in light of the substantial evidence offered in support
of petitioner’s convictions, the excluded evidence would not have created a reasonable doubt that

correct mens rea for the offenses. Upon review of the record, the Ohio Court of Appeals’ determination that the trial
court’s single reference to strict liability was a misstatement and was not an unreasonable determination of the facts,
as petitioner suggests. Furthermore, for the reasons stated below, the trial court’s comment did not otherwise result
in a decision amounting to an unreasonable application of Supreme Court precedent.

63

did not otherwise exist.33 See Shoemaker, 600 F. App’x at 984. Because petitioner has failed to
demonstrate that the application of the rape shield in this case was arbitrary to the purposes of
the statute, see Garner, 391 N.E.2d at 340, or that the Ohio Court of Appeals’ decision was
otherwise objectively unreasonable, his claim regarding the exclusion of this evidence under the
rape shield law is without merit. Booker, 680 F.3d at 517.34
The undersigned’s opinion is not altered by petitioner’s contention that the State waived
the rape shield protection. As he did on direct appeal, petitioner argues that because the victim
testified that she never engaged in sexual relations with Redman or Bud, that petitioner should
have been able to question the brothers-in-law about the alleged relationship. However, as found
by the Ohio Court of Appeals in reviewing the claim for plain error (see Doc. 11, Ex. 18 at
PageID 328), petitioner failed to raise this objection at trial and did not attempt to question the
brothers-in-law about relationships with the victim based on the State allegedly opening the door

33

As discussed below, petitioner contends that evidence of STDs allegedly transferred from the victim to the brothersin-law and petitioner’s wife was excluded by virtue of the trial court’s rape shield ruling. Even considering this
evidence in conjunction with the excluded evidence of sexual relationships with the brothers-in-law, the Court
determines that the evidence would not have created a reasonable doubt that did not otherwise exist and did not
otherwise violate petitioner’s constitutional rights.

34

Petitioner cites the Ohio Court of Appeals’ decision in State v. Williams, 477 N.E.2d 221 (Ohio Ct. App. 1984) in
support of his claim that the application of the rape shield at trial was unconstitutional. As an initial matter, the Court
notes that it may only grant habeas relief based on an unreasonable application of Supreme Court precedent. See 28
U.S.C. § 2254(d)(1). Regardless, Williams is distinguishable from the instant case. In Williams, the alleged rape
victim testified that because she was a lesbian, she never would have consented to sex with the male defendant. Noting
that in doing so the victim “set[] forth a psychological or biological fact implying the mental or emotional impossibility
of consent,” which was the only issue contested at trial, the appeals court determined that the exclusion of
testimony/evidence of prior sexual relationships with men—evidence that the appeals court determined was “so highly
probative, relevant and material as to an element of the crime”—violated the defendant’s Sixth Amendment rights and
outweighed the State’s interests underlying the rape shield law. Williams, 477 N.E.2d at 225, 228. In contrast, as
discussed herein, evidence of relationships with the brothers-in-law in this case was not critical to petitioner’s defense
or highly probative as to the timing of petitioner’s relationship with the victim or of his mens rea with respect to her
age, nor did the victim’s testimony effectively preclude petitioner from defending against an element of the offenses
with which he was charged. As noted by the Ohio Court of Appeals, with respect to petitioner’s knowledge of the
victim’s age, the defense at trial presented witnesses testifying that the victim appeared to be older than fifteen, had
been driving at the time, and was admitted to a nightclub after showing identification. (See Doc. 11, Ex. 18 at PageID
316). Although the jury was not persuaded by petitioner’s defense, he was not impermissibly precluded from
defending against the charges. Petitioner’s reliance on Williams is unavailing.

64

to such testimony.35 By failing to make a contemporaneous objection at trial, petitioner
procedurally defaulted his waiver argument absent a showing of cause and prejudice. See White,
431 F.3d at 525 (finding that plain error review following failure to make a contemporaneous
objection resulted in a procedural default of the underlying claim); Goodwin, 632 F.3d at 315
(same).
As cause for the default, petitioner argues that trial counsel was ineffective for failing to
raise the issue at trial.36 (See Doc. 1, Petition at PageID 73, 84). Petitioner has failed to
demonstrate cause in this case, however, because he was not prejudiced by counsel’s alleged
ineffectiveness. In other words, petitioner has not demonstrated a reasonable probability that the
outcome of the trial would have been different had trial counsel argued that the rape shield
protection was waived with respect to the brothers-in-laws testimony or if the excluded evidence
had been admitted. See Strickland, 466 U.S. at 694. As an initial matter, the trial court found
that evidence of an alleged relationship with Redman and Bud was inadmissible only in part
based on the rape shield law. (See Doc. 11-3 at PageID 470). The trial court also determined that
the probative value of the evidence was significantly outweighed by the severe prejudice to the
victim. See Ohio Evid. R. 403(A). Accordingly, it is not evident that waiver of the rape shield
would impact the trial court’s alternate basis for excluding the evidence. In any event, the
evidence of the alleged relationships with the brothers-in-law was not sufficiently probative to
have altered the outcome of the trial. With respect to the phone records, petitioner and the victim

35

As noted by the Ohio Court of Appeals, defense counsel did not raise this objection at trial. Counsel instead argued
that petitioner’s comments in his police interview alluding to a sexual relationship with the brothers-in-law should not
have been redacted when the interview was played for the jury. (See Doc. 11, Trans. at PageID 1290-91).

36
Arguing that the Ohio Court of Appeals failed to address his ineffective assistance of counsel claims asserted in
connection with Ground Five of the petition, petitioner argues that these claims are entitled to de novo review. (See
Doc. 1 at PageID 73-74). For the reasons stated below—as to counsel’s alleged failure to raise the waiver issue, as
well as the STD evidentiary issue discussed next—upon considering the claims de novo, the Court finds petitioner’s
claims without merit.

65

both admitted to using the phone to meet for sex and the corroborating evidence offered by the
prosecution established that this occurred during the time frames specified in the indictment.
Whether some of the phone contacts were also with Redman and Bud—for whatever purpose—
would not have changed the outcome of the trial. As detailed above, petitioner’s recklessness
with respect to the victim’s age was also amply demonstrated in the police interview and other
evidence offered at trial. The Court agrees with the Ohio appeals court that the evidentiary value
with respect to petitioner’s knowledge of the victim was highly speculative and, therefore,
unlikely to change the outcome of the trial. Petitioner has thus failed to demonstrate that he was
prejudiced by the alleged ineffective assistance of counsel. Having failed to demonstrate cause
for his default and in the absence of a showing that failure to consider the defaulted claim will
result in a fundamental miscarriage of justice, petitioner has procedurally defaulted and waived
his claim that the rape shield protections were waived.
Sexually Transmitted Diseases
Petitioner has also procedurally defaulted and waived his claims regarding evidence of
the spread of a sexually transmitted disease. Specifically, petitioner claims that he was precluded
from presenting evidence that the victim transmitted a sexually transmitted disease to the
brothers-in-law and that petitioner transmitted the same disease to his wife in 2010. According
to petitioner, this evidence was probative as to the timing of petitioner’s relationship with the
victim. Although petitioner claims this evidence was proffered in the pretrial in camera hearing
and excluded under the rape shield statute (see Doc. 1-1 at PageID 61-62, 67), the record in this
case includes no discussion or proffer of any evidence of sexually transmitted diseases or, as
argued by respondent, any indication that the trial court actually excluded the evidence.37 Based

37

Even if, as petitioner suggests (see Doc. 1 at PageID 67 n.15), the trial court’s motion in limine ruling included the
admissibility of evidence of STDs, petitioner’s failure to proffer the evidence at trial deprived the Ohio Court of

66

on petitioner’s failure to proffer the evidence at trial, the Ohio Court of Appeals did not reach the
merits of petitioner’s claim. See Garrett v. Sandusky, 624 N.E.2d 704 (1994) (“Because the
record indicates that the appellant failed to proffer any evidence allegedly excluded by the trial
court, [appellant] has waived his right to argue this evidentiary issue on appeal.”).
As cause for the default, petitioner contends that trial counsel was ineffective for failing
to proffer the evidence at trial. However, the ineffective assistance of trial counsel does not
serve as cause in this case because petitioner again fails to demonstrate a reasonable probability
that the result of the trial would have been different with the excluded evidence. See Strickland,
466 U.S. at 694. Petitioner argues that evidence of a transmission of an STD in 2010 would have
supported the defense theory that petitioner and the victim did not have sex until 2010, after the
victim turned sixteen. As an initial matter, the Court notes that petitioner’s wife did in fact
testify that in August of 2010 she suspected that petitioner had been unfaithful, based on
personal/health issues that required a trip to the gynecologist.38 (Doc. 11, Trans. at PageID
1654-66). Regardless, it was not disputed at trial that petitioner had sex with the victim in 2010,
as evidence was offered at trial that petitioner continued to have sex with the victim after 2009,

Appeals of the ability to address the issue on appeal. See State v. Grubb, 503, N.E.2d 142, 147 (Ohio 1986) (“The
effect of a granting of a motion in limine in favor of the State in a criminal proceeding is to temporarily prohibit the
defendant from making reverence to evidence which is the subject of the motion. At trial it is incumbent upon a
defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine to seek the
introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its
admissibility and to preserve any objection on the record for purposes of appeal.”); State v. Hancock, 840 N.E.2d
1032, 1044-45 (Ohio 2006) (holding that failure to raise evidentiary issue in a motion in limine hearing or proffer
evidence at trial amounts to a failure to preserve the issue for appeal). See also Ruark v. Warden, No. 2:12-cv-934,
2014 WL 2217258, at *8-9 (S.D. Ohio May 29, 2014) (finding petitioner’s failure to preserve evidentiary issue for
appeal following a motion in limine ruling amounted to a procedural default on federal habeas review) (Report and
Recommendation), adopted 2014 WL 2805096 (S.D. Ohio June 20, 2014); Carlisle v. Warden, No. 3:10-cv-289, 2011
WL 4368219, at *3 (S.D. Ohio Sept. 19, 2011) (finding procedural default based on petitioner’s failure to proffer
evidence following the implied denial of a motion in limine). To the extent that petitioner contends counsel was
ineffective for failing to do so, his claim is without merit for the reasons below.
38

As discussed in Ground Six below, the trial court sustained an objection with respect to petitioner’s wife testifying
that petitioner subsequently admitted to the relationship. (Id. at PageID 1656).

67

from spring 2010 until March of 2011. (Doc. 11, Trans. at PageID 858, 1084, 1092-93, 1796).
Evidence regarding the transmission of an STD in 2010 would not preclude petitioner from also
having sexual relations with the victim in 2009, the time period underlying petitioner’s
convictions. In light of the substantial evidence offered by the prosecution in support of the
existence of a sexual relationship in September, October, and November of 2009, petitioner has
not demonstrated a reasonable probability that counsel’s failure to proffer evidence of the
transmission of STDs in 2010 would have changed the outcome of the trial. Therefore, because
petitioner has failed to demonstrate prejudice resulting from the alleged ineffective assistance of
counsel, it does not serve as cause for the default of his claim. Accordingly, because petitioner
did not proffer evidence of the transmission of sexually transmitted diseases at trial and has
failed to establish cause for the procedural default or otherwise demonstrate that failure to
consider the defaulted claim will result in a fundamental miscarriage of justice, petitioner has
procedurally defaulted and waived this claim for relief.
Prior False Allegations
Petitioner is also not entitled to federal habeas relief based on his claims concerning
evidence of prior false allegations. Specifically, petitioner argues that his constitutional rights
were violated by the exclusion of evidence that the victim falsely claimed to have relationships
with other football players. As he did on direct appeal, petitioner contends that such evidence
was relevant to petitioner’s mens rea regarding the age of the victim and was offered to show
that just as she fabricated relationships with other football players, the victim fabricated when
her relationship began with petitioner. (See Doc. 1-1, Petition at PageID 78).39 As discussed

39

Respondent contends that the record fails to demonstrate that the trial court excluded the proposed evidence or that
defense counsel even offered it. (See Doc. 12 at PageID 1992-93). Petitioner contends that the evidence was precluded
as part of the trial courts motion in limine ruling, which he claims prohibited evidence under Ohio R. Evid. 608(B).
(Doc. 15 at PageID 2061 n.11). The Court need not resolve this dispute, however, because exclusion of the evidence

68

below (see infra n.39), petitioner also posits that the evidence is relevant to demonstrate the
victim’s “bias and motive for making false claims” or “pattern of claiming to have sexual
relationships with professional football players when no such relationship existed.” (Id. at
PageID 68).
“[F]alse allegations of rape where no sexual activity is involved do not fall within Ohio’s
rape shield statute. . . . Rather, cross-examination of a rape victim regarding prior false
accusations of rape is governed by Ohio Evid. R. 608(B).” Boggs v. Collins, 226 F.3d 728, 734
(6th Cir. 2000) (citing State v. Boggs, 588 N.E.2d 813, 816 (Ohio 1992)). Rule 608(B) provides
in pertinent part that “[s]pecific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness, . . . may not be proved by
extrinsic evidence.” Ohio Evid. R. 608(B). Accordingly, in this context, the Ohio Supreme
Court has held that while a trial court may permit cross-examination on prior false allegations,
“the defendant will be bound by the answers given by the victim” and “under no circumstances
would the defense be permitted to introduce extrinsic evidence.” Boggs, 588 N.E.2d at 816-17
(prior false allegations “are an entirely collateral matter which may not be proved by extrinsic
evidence”). See also Jordan v. Warden, 675 F.3d 586, 596 (6th Cir. 2012) (“With respect to a
defendant’s ability to present extrinsic evidence for impeachment . . . this court has noted that the
Supreme Court has not recognized the sweep of the Confrontation Clause ‘to encompass the
right to impeach an adverse witness by putting on a third-party witness.’”) (quoting Harrington
v. Jackson, 1 F. App’x 367, 370 (6th Cir. 2001)).
In Boggs, the defendant challenged the exclusion of cross-examination and witness
testimony as violating his right to confront the witnesses against him and to present a complete

did not result in a constitutional violation.

69

defense. Specifically, the defendant sought to cross-examine the rape victim about a prior false
allegation of rape and introduce two witnesses to testify that the prior accusation was untrue. See
Boggs, 226 F.3d at 733. Regarding the denial of cross-examination as to the prior false
allegations, the Sixth Circuit determined that Boggs did not have a constitutional right to cross
examine the victim, noting that “[u]nder Davis and its progeny, the Sixth Amendment only
compels cross-examination if that examination aims to reveal the motive, bias or prejudice of a
witness/accuser.” Id. at 740. Finding that the defendant failed to articulate a theory of motive,
bias, or prejudice—noting that “at trial and on appeal, Boggs essentially contended that the
evidence was crucial because if [the victim] lied or fabricated once, she would do so again”—the
Sixth Circuit held that “[n]o matter how central an accuser’s credibility is to a case—indeed, her
credibility will almost always be the cornerstone of a rape or sexual assault case, even if there is
physical evidence—the Constitution does not require that a defendant be given the opportunity
to wage a general attack on credibility by pointing to individual instances of past conduct.” Id. at
740-41.
With respect to the exclusion of the witnesses’ testimony, the Sixth Circuit found that
exclusion did not implicate Boggs’ right to present a defense. The Sixth Circuit reasoned that
based on the other evidence at trial suggesting the victim did not in fact fabricate the attack, the
testimony was “not so highly probative of the charges . . . as to be constitutionally required.” Id.
at 744. The Boggs Court further noted that the relevant rules of evidence (including Ohio R.
Evid. 608(B)) were “designed to prevent distracting mini-trials on collateral matters” and that the
defendant was otherwise afforded the opportunity to present a full and meaningful defense to the
crimes with which he was charged. Id. at 745-46.
In this case, the Ohio Court of Appeals reasonably determined that petitioner’s right to

70

confront the evidence against him was not violated. As noted by the appeals court, petitioner
was permitted to cross-examine the victim (see Doc. 1-1, Trans. at PageID 1227), as well as her
father (Id. at PageID 1001), about whether she had falsely claimed to have sexual relationships
with the other players. In closing, the defense argued that the victim consistently lied and was
generally untrustworthy (see id. at PageID 1785-86), specifically arguing that she lied about the
prior false allegations. (Id. at PageID 1769-70). Although petitioner characterizes the crossexamination as being limited (see Doc. 1 at PageID 68), petitioner has not specifically argued,
nor does the record reflect, that petitioner’s cross-examination of the victim was limited with
respect to the prior false allegations.40 Petitioner contends that the Ohio Court of Appeals
improperly equated cross-examination on the issue with petitioner’s ability to present affirmative
evidence impeaching or contradicting the victim’s testimony. (See Doc. 1 at PageID 16; Doc. 15
at PageID 2060). However, to the extent that petitioner sought to impeach the victim’s
testimony through the testimony of third parties, Ohio Evid. R. 608(B) precludes the admission
of extrinsic evidence for impeachment. See Boggs, 588 N.E.2d at 816-17; Boggs, 226 F.3d at
734; Jordan, 675 F.3d at 596. The Ohio Court of Appeals’ decision finding that petitioner was

40

In any event, as in Boggs, any limitation on the cross-examination with regard to the prior false allegations would
not implicate petitioner’s rights under the Confrontation Clause, as petitioner fails to articulate a theory of bias or
prejudice. Despite arguing at trial that the evidence was offered “to show that [the victim] lies all the time” (see supra
n.29) or, in the instant petition, that just as the victim fabricated relationships with other football players she “fabricated
when her sexual relationship with Webster began” (Doc. 1 at PageID 62), petitioner suggests the evidence was not
offered merely to impeach the victim’s trial testimony or credibility. (See Doc. 1 at PageID 77-78 n.18). Instead,
petitioner contends that the evidence concerned the victim’s “bias and motive for making false claims.” (Doc. 1 at
PageID 68; Doc. 15 at PageID 2062). However, aside from asserting bias/motive in conclusory terms, petitioner does
not articulate how the evidence of prior false allegations are probative of the victim’s bias or motive to falsely testify.
See Boggs, 226 F.3d at 741 (“Simply labeling [a] general credibility argument to be one of ‘motive’ without
articulating a theory of motive or partiality does not implicate the rights carefully outlined in Davis.”). And
petitioner’s alleged evidence of “bias and motive” is markedly different than evidence found to be protected under the
Confrontation Clause. See id. at 740 (distinguishing Supreme Court and circuit court cases which demonstrated a
“motive to testify falsely” or “partiality of a witness” from defendant’s attack on the victim’s credibility); Lewis v.
Wilkinson, 307 F.3d 413, 420-21 (6th Cir. 2002) (finding excerpts from the victim’s diary were probative of motive
to bring charges or lie); Olden v. Kentucky, 488 U.S. 227, 232 (1988) (cross-examination of alleged rape victim on
her relationship with another man was improperly excluded, where the defense sought to show the victim had a motive
to lie about her rape allegation to protect that relationship).

71

not deprived of his rights under the Confrontation Clause is not an unreasonable application of
Supreme Court precedent. Nevada, 569 U.S. at 512 (“This Court has never held that the
Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for
impeachment purposes.”) (emphasis in original). See also Beverly v. Haas, No. 16-1902, 2017
WL 6760214, at *3 (6th Cir. 2017) (finding that to the extent that petitioner sought to introduce
evidence of false allegations of sexual assault to generally impeach credibility, the petitioner
failed to demonstrate an incorrect or unreasonable application of Supreme Court precedent);
Harrington, 1 F. App’x at 370 (noting that the Supreme Court has not found “the right to
impeach an adverse witness by putting on a third-party witness” to fall within the protections of
the Confrontation Clause).
To the extent that petitioner claims that the evidence was not offered solely to impeach
the victim’s credibility or that he was otherwise deprived of his right to present a complete
defense, his position is equally unavailing. The fact that the victim may have falsely claimed to
have relationships with others in the past is not probative as to whether petitioner—who admitted
to the relationship with the victim—had sex with the victim in 2009. See Boggs, 588 N.E.2d at
817 (“The mere fact that an alleged rape victim made prior false allegations does not
automatically mean she is fabricating the present charge.”). Petitioner contends that the evidence
of prior false allegations was relevant to petitioner’s mens rea with respect to the age of the
victim: specifically, that if petitioner believed that the victim were having relationships with
other football players, it would suggest that he believed the victim to be of age to consent to such
activity. However, there is no indication in the record that petitioner was aware of, much less
that he believed, the prior false allegations. In any event, as with petitioner’s argument
concerning relationships with the brothers-in-law, the connection between the victim making

72

false prior allegations and petitioner’s mens rea with respect to the age of the victim is attenuated
and speculative. Cf. Boggs, 226 F.3d at 744, 45 (noting that testimony regarding a prior false
allegation asked “the jury to make a tenuous evidentiary inference” between two distinct
incidents in finding the evidence was “not so highly probative to be constitutionally required”).
The excluded evidence was of minimal probative value and neither exculpatory nor critical to the
defense. As noted above (see supra n.33), petitioner was not deprived of his ability to present a
defense as to his mens rea or any other element of the crimes with which he was charged.
Additionally, petitioner has failed to demonstrate that the prior false allegation evidence was
excluded in an arbitrary or disproportionate manner. See Harrington, 1 F. App’x at 371 (“The
Supreme Court has recognized that a state has a legitimate interest in preventing minitrials on
collateral issues.”). See also Boggs at 744. Finally, evaluating the evidence in the context of the
entire trial—which included ample evidence to establish petitioner’s recklessness—the excluded
evidence would not have created a reasonable doubt that did not otherwise exist. See
Shoemaker, 600 F. App’x at 984. Petitioner is therefore not entitled to federal habeas relief
based on his claim regarding the exclusion of evidence of prior false allegations.
Severance
Finally, in Ground Nine, petitioner challenges the trial court’s denial of his motion to
sever the charges against him. Prior to trial, petitioner filed a motion to sever the count of gross
sexual imposition (GSI) from the remaining counts of unlawful sexual conduct with a minor on
the basis that the rape shield only applied to the GSI count. This charged that petitioner
compelled the victim to submit to sexual conduct by force or threat of force in an incident
alleged to have occurred in June of 2009. (See Doc. 11, Ex. 1, 3). Joinder of the charges,
petitioner argued, would prevent him from presenting evidence or prior sexual activity barred by

73

the rape shield.41 (See Doc. 11-2, Trans. at PageID 436-37; Doc. 11, Ex. 3 at PageID 149).
Petitioner argues that the trial court’s failure to sever the charges violated his right to confront
the state’s evidence and to present a defense.
As indicated above, the Ohio Court of Appeals did not consider the merits of issue based
on petitioner’s failure to support his claim with any case law or alleged error in the record,
pursuant to Ohio App. R. 12 & 16. (See Doc. 11, Ex. 18 at PageID 329). It therefore appears
that petitioner procedurally defaulted his severance claim in this federal habeas corpus
proceeding by failing to fairly present the claim to the Ohio courts. See Haywood v. Harris, No.
5:19-cv-1016, 2020 WL13834063, at *13 (N.D. Ohio Nov. 17, 2020) (deferring to the state
court’s determination that the petitioner’s appellate pleadings did not satisfy Ohio App. R. 12
and 16, in finding the underlying claim procedurally defaulted) (Report and Recommendation),
adopted 2021 WL 2433185 (N.D. Ohio Jan 25, 2021); Johnson v. Bradshaw, No. 1:03-cv-2509,
2006 WL 2945915, at *9-10 (N.D. Ohio Oct. 13, 2006) (finding Ohio App. R. 16 to be an
“adequate and independent state law basis on which Ohio may rely to preclude federal habeas
review of any federal constitutional claim.”); Banks v. Bradshaw, No. 1:05-cv-1141, 2008 WL
4356955, at *11 (N.D. Ohio Sept. 17, 2008) (finding Ohio App. R. 12(A) to be an adequate and
independent state rule which bars federal review).42

41

As discussed below, although petitioner in this action contends that the rape shield operated to preclude the brotherin-law’s testimony, as well as testimony regarding prior false allegations of relationships with other football players
and the alleged transfer of an STD in 2010 (see Doc. 1-1 at PageID 91, n.23), the rape shield only operated to preclude
the first category of evidence. As argued by petitioner and noted above, the rape shield does not apply to evidence of
prior false allegations and the trial court, if it did at all, precluded the evidence under Evid. R. 608(B). Furthermore,
there was no proffer of the transfer of an STD or any indication that such evidence was barred under the rape shield.

42

Two other potential bases for finding a procedural default of petitioner’s waiver claim exist. First, respondent
contends that petitioner committed a different procedural default by failing to raise the claim in the Ohio Supreme
Court. (See Doc. 12 at PageID 1996-97). Although petitioner raised the claim as an assignment of error on direct
appeal, respondent contends that petitioner failed to challenge the trial court’s decision denying petitioner’s motion to
sever. (See Doc. 11, Ex. 21 at PageID 342-343). Petitioner disagrees, pointing to a footnote in his discussion of
propositions of law concerning the alleged improperly excluded evidence. (See Doc. 15 at PageID 2042). Second,
petitioner failed to renew his motion to sever at the close of trial. See e.g., Kelly v. Warden, No. 2:19-cv-1984, 2019

74

In any event, petitioner has not demonstrated that he is entitled to federal habeas relief
based on the alleged improper joinder. Joinder of claims in Ohio is governed by Ohio Crim. R.
8, which permits joinder of charges where the offenses charged are “based on two or more acts
or transactions connected together or constituting parts of a common scheme or plan, or are part
of a course of criminal conduct.” As stated above, this Court can not grant habeas relief based
on an alleged violation of state law. See, e.g., Webber v. Scott, 390 F.3d 1169 (10th Cir. 2004)
(“To the extent [petitioner] is arguing that the joinder is improper under state law, such a claim is
not a basis for federal habeas relief.”). “Improper joinder does not, in itself, violate the
Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it
results in prejudice so great as to deny a defendant his . . . right to a fair trial.” U.S. v. Lane, 474
U.S. 438, 446 n.8 (1986). See also Coley v. Bagley, 706 F.3d 741, 753 (6th Cir. 2013). Habeas
relief in this context requires a showing of actual prejudice. Davis v. Coyle, 475 F.3d 761, 777
(6th Cir. 2007). Cf. United States v. Gardiner, 463 F.3d 445, 473 (6th Cir. 2006) (“In order to
succeed on a motion to sever, a defendant must show compelling specific, and actual prejudice
from a court’s refusal to grant the motion to sever.”) (internal quotation mark and citation
omitted). Claims of misjoinder are also subject to harmless error review, which in federal habeas
proceedings requires the Court to consider whether the error had “substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623
(1993) (internal quotation marks omitted).

WL 6324623, at *11 (S.D. Ohio Nov. 26, 2019) (finding failure-to-sever-claim procedurally defaulted where the
petitioner failed to renew his motion for severance at the close of evidence) (collecting cases) (Report and
Recommendation), adopted, 2020 WL 525472 (S.D. Ohio Feb. 3, 2020). Because, as discussed below, petitioner’s
Ninth Ground for relief is without merit, the Court need not determine whether petitioner’s procedurally defaulted his
severance claim on these bases.

75

Petitioner has not demonstrated that he is entitled to federal habeas relief based on his
severance claim. For the reasons stated above, petitioner has failed to demonstrate that exclusion
of the evidence of prior sexual relationships with the brothers-in-law, false claims of
relationships with other football players, or the transmission of STDs resulted in a violation of
his constitutional rights. Petitioner has also failed to show that the trial court’s ruling declining
to sever the charges against him resulted in actual prejudice, much less that exclusion of the
evidence had a substantial and injurious effect or influence on the jury’s verdict. As discussed
above, petitioner failed to proffer evidence regarding the transmission of STDs and the record is
devoid of any indication that the rape shield law operated to preclude it or the evidence regarding
prior false allegations of relationships with other football players. See Boggs, 226 F.3d at 734
(noting that false allegations of rape where no sexual activity is involved do not fall within
Ohio’s rape shield). Absent any indication that this evidence would have been admitted if the
trial was severed, petitioner has failed to demonstrate actual prejudice in connection with the trial
court’s ruling.
Furthermore, the trial court’s ruling excluding evidence of prior sexual relationships with
the brothers-in-law was only based in part on the rape shield. The trial court found, under Ohio
R. Evid. 403(B) that the probative value of the evidence “is significantly outweighed by the
severe prejudice it causes to the victim. (Doc. 11-11, Trans. at PageID 470). Based on the trial
court’s alternative basis for excluding this evidence, the record indicates that none of the
excluded evidence would have been admitted even if the trial court granted petitioner’s motion to
sever. Cf. Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007) (finding “a risk of undue prejudice
exists whenever joinder of counts permits introduction of evidence of other crimes that would

76

otherwise be inadmissible”). Accordingly, petitioner has failed to demonstrate actual prejudice
as a result of the alleged improper joinder.
In any event, as discussed above, although petitioner claims that the relationships with
the brothers-in-law were probative of his mens rea and relevant to the phone records, exclusion
of this evidence did not result in actual prejudice or have a substantial and injurious effect or
influence on the jury’s verdict in light of the substantial evidence offered against petitioner.
Accordingly, petitioner is not entitled to federal habeas relief based on Grounds Five and
Nine of the petition.
E. Ground Six is without merit.
In Ground Six, petitioner claims that the trial court improperly interpreted the “statements
against interest” hearsay exception under Evid. R. 804(B)(3) in excluding testimony from
petitioner’s wife and neighbor that petitioner admitted to having sex with Jackson in June 2010.
(See Doc. 1 at PageID 80-84). Petitioner argues that the state courts improperly found the
statements were against petitioner’s interest at the time they were made and therefore were
admissible under the exception. As a result, petitioner claims that his constitutional rights to
present a defense, to confront the state’s evidence, and to due process were violated. Also, as
one of his arguments in Ground Seven of the petition, petitioner claims trial counsel was
ineffective for failing to proffer his wife’s testimony that petitioner confessed to having a sexual
relationship with the victim in 2010. (See id. at PageID 84).
The Ohio Court of Appeals dismissed petitioner’s assignment of error when raised on
direct appeal, reasoning as follows:
{¶64} In his sixth assignment of error, Webster claims that the trial court erred
when it ruled that defense witnesses Maurice Anderson and Jennifer Webster could
not testify that Webster had told each of them that he had had a sexual relationship
with Jackson in June 2010. In the alternative, Webster argues that counsel was
77

ineffective for failing to properly object to the court’s ruling. There is no proffer
in the record concerning Jennifer Webster’s testimony. We therefore confine our
analysis to Anderson’s. See Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500, at
syllabus.
{¶65} Defense counsel proffered that Anderson would have testified that Webster
had admitted to him that Webster had had sexual intercourse with Jackson at a time
when Jackson was 16 years old. Webster claims that Anderson’s testimony was
crucial to his defense because it established that he was having a sexual relationship
with Jackson after Jackson had turned 16. We review this assignment of error for
an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987).
{¶66} Weber contends that the trial court improperly applied Evid.R.804(B)(3)
when it determined that his statement to Anderson was inadmissible. Evid.R.
804(B)(3) provides that a statement against interest may be admitted under certain
circumstances as an exception to the hearsay rule. But Evid.R. 804(B)(3) does not
apply to statements made by a party to the action. 1993 Staff Note to Evid.R.
804(B)(3). A statement made by a defendant is considered an “admission,” and is
governed by Evid. R. 801(D)(2). An “admission” and a “statement against interest”
reflect two distinct concepts and different rules of admissibility apply to each. See
Ferrebee v. Boggs, 24 Ohio App.2d 18, 263 N.E.2d 574 (4th Dist. 1970). In
pertinent part, Evid.R. 801(D)(2) provides that statements sought to be admitted at
trial must be offered against the party who had made the statement.
{¶67} Here, Webster was attempting to introduce evidence that he had had a sexual
relationship with Jackson in 2010–after Jackson had turned 16 years of age. The
trial court properly determined that this statement was beneficial to Webster and
therefore not admissible. We find no error and no ineffective assistance of counsel.
Webster’s sixth assignment of error is overruled.
(Doc. 11, Ex. 18 at PageID 329–30).
Petitioner is not entitled to federal habeas relief based on Ground Six of the petition.
During trial petitioner sought to have his neighbor testify that petitioner admitted to him that he
had a sexual relationship with the victim in June 2010 when his wife went out of town. (Doc. 11,
Trans. at PageID 1590). Petitioner claims that his wife would have offered similar testimony.43

43

As noted by the Ohio Court of Appeals, the defense did not proffer that petitioner’s wife would have testified that
petitioner similarly admitted to having a relationship with the victim in 2010. (See Doc. 11-11, Trans. at PageID1656).
Petitioner contends that counsel was ineffective for failing to do so in Ground Seven of the petition. In any event, as
discussed below, because petitioner’s underlying evidentiary claim is without merit, counsel was not ineffective for
failing to proffer the inadmissible evidence.

78

As he does in the instant petition, on direct appeal petitioner argued that the trial court
misapplied Ohio R. Evid. 804(B)(3), which provides an exception to the hearsay rule for
statements against interest. Petitioner maintains that his comments to the defense witnesses were
against his intertest at the time they were made and therefore should have been admitted at trial.
However, as noted by the Ohio Court of Appeals, under Ohio law, rule 804(B)(3) does not apply
to parties to the action. See State v. Gatewood, 472 N.E. 2d 63, 64-65 (Ohio Ct. App. 1984)
(noting that Rule 804 applies to statements of persons other than parties to the action). Instead,
statements made by parties to an action are governed by Ohio R. Evid. 801(D)(2), which
provides that an admission by a party-opponent is not hearsay when offered against a party.44
Because petitioner’s statements were not offered against him, the Ohio Court of Appeals
correctly determined that the testimony was not admissible. See State v. Wesson, 999 N.E.2d
557, 573 (Ohio 2013) (“A party may not introduce his own statement under Evid. R.
801(D)(2)(a)”) (quoting State v. Cunningham, 824, N.E.2d 504, ¶ 105 (Ohio 2004)); Leal v.
Morris, No. 87-3014, 1988 WL 25007, at *7 (6th Cir. Mar. 18, 1988) (“In Ohio, a party may not
introduce his own statement; it must be offered by the opposing party.”) (citing Ohio Evid. R.
801(D)(2)(a)); State v. Gatewood, 472 N.E.2d 63, 65 (Ohio App. Dist. Mar. 28, 1984) (“The
Staff notes to Evid. R. 801(D)(2)(a), treating the subject of a party’s own statement, specify
positively that “a party may not introduce his own statement under this rule.”).
In any event, petitioner is not entitled to federal habeas relief to the extent that he claims
the Ohio courts misapplied Ohio law. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41

44

The Staff Notes to Evid R. 804(B)(3) states: “The declaration against interest applies to statements of persons other
than parties to the action and should be distinguished from statements of parties to the action. The out-of-court
statement of a party opponent in the action is an admission, not a declaration against interest. An admission of a party
opponent is governed by Rule 801(D)(2).”

79

(1984). See also 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”). This Court is
bound by the state court’s interpretation of state evidentiary law. Brooks v. Anderson, 292 F.
App’x 431, 437-38 (6th Cir. 2008) (“this Court has held that federal habeas courts must defer to
a state court’s interpretation of its own rules of evidence and procedure when assessing a habeas
petition.”) (internal quotation marks and citations omitted). “Errors by a state court in the
admission of evidence are not cognizable in habeas corpus proceedings unless they so
perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental
right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994) (citing Logan v.
Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982)).
No such showing has been made in this case, as the exclusion of the hearsay evidence did
not rise to the level of a constitutional violation. See Montana, 518 U.S. at 42 (finding “the
proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is
simply indefensible. As we have said: ‘The accused does not have an unfettered right to offer
[evidence] that is incompetent, privileged, or otherwise inadmissible under the standard rules of
evidence.’”) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). With respect to petitioner’s
rights under the Confrontation Clause, petitioner had ample opportunity to cross-examine the
State’s witnesses as to the timing of his relationship with the victim. Further, petitioner’s right to
present a defense was not violated because, as argued by respondent, the excluded evidence was
only marginally probative. The fact that petitioner may have admitted to having a sexual
relationship with the victim in 2010 did not preclude his also having a sexual relationship with
her in 2009. Because the excluded evidence was neither critical nor exculpatory, and did not

80

create a reasonable doubt that did not otherwise exist, the evidentiary ruling did not violate
petitioner’s right to present a defense. See Shoemaker, 600 F.App’x at 984.
Finally, because petitioner’s underlying claim is itself without merit, trial counsel was not
ineffective for failing to proffer Jennifer Webster’s testimony. Martin, 45 F. App’x at 381–82
(“Failure of trial counsel to raise wholly meritless claims cannot be ineffective assistance of
counsel.”).
Accordingly, petitioner is not entitled to federal habeas relief based on Ground Six or his
related ineffective assistance of counsel claim raised in Ground Seven of the petition.
F. Ground Seven is without merit.
In Ground Seven, petitioner claims that his trial counsel was ineffective for failing to
object to a leading question regarding the November 2009 charge and impermissibly affixed a
timeframe to the occurrence of sexual conduct during cross-examination. According to
petitioner, without the resulting testimony the record would be void of evidence to establish the
November 2009 charge.45
Petitioner raised this claim in his seventh assignment of error on direct appeal. (See Doc.
11, Ex. 15 at PageID 186–87). The Ohio Court of Appeals overruled petitioner’s assignment of
error, reasoning as follows:
{¶ 68} In his seventh assignment of error, Webster claims that he was convicted of
the November 2009 charge due to trial counsel’s errors.
{¶ 69} To establish a claim for ineffective assistance of counsel, Webster must
show that his attorney’s performance was deficient and that “but for” the
deficiency, there is a reasonable probability that the outcome of his trial would have
45

Petitioner also advances several additional alleged instances of ineffective assistance of counsel in Ground VII.
These include counsel’s failure to proffer evidence regarding the transmission of an STD in 2010, prior false
allegations of relationships with other football players, and argue that the State waived the rape shield protection, as
discussed in Ground V, as well as counsel’s failure to proffer Jennifer Webster’s testimony that Webster confessed to
having a sexual relationship with Jackson in 2010 or the proper interpretation of the statements against interest as
discussed in Ground VI. (See Doc. 1 at PageID 84). Because the Court has already found these claims without merit,
they are not again addressed in this section.

81

been otherwise. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674; Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶ 70} Webster asserts that counsel failed to object to a leading question concerning
whether Jackson had had sexual intercourse with Webster in November 2009. He
also asserts that counsel led Jackson to repeat the November 2009 timeframe on
cross-examination. According to Webster, without these alleged errors, there was
no evidence that he had had sexual intercourse with Jackson in November 2009.
{¶ 71} Webster takes issue with this question:
And then in November 2009, you said that you continued to see the defendant
maybe two to three times a week. How would you get out of the house to go see
the defendant?
{¶ 72} Prior to posing this question, the assistant prosecuting attorney had already
established that he was asking Jackson questions concerning the timeframe of
October to November 2009. Also prior to posing this question, Jackson had
testified that she had been having sexual intercourse with Webster two to three
times a week before she had been caught by her mother in Webster’s car, and that
she had continued to see him with the same frequency after she had been caught
and “grounded.” And Michelle Jackson had already testified that she had
discovered Webster and Jackson together on October 30, 2009. Hue Jackson had
corroborated Michelle’s testimony. Consequently, the November 2009 timeframe
had been established by Jackson and by her parents before this question had been
posed. The “leading” part of this question was permissible under Evid.R. 611(C)
as a means to aid the jury in understanding that the state was asking how Jackson
managed to see Webster after she had been “grounded.” See State v.
D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1983). This single question
did not establish the November 2009 timeframe as asserted by Webster. And
counsel’s performance was not deficient for failing to object.
{¶ 73} Nor was counsel’s performance deficient when she “led” Jackson to repeat
the November 2009 timeframe on cross-examination. Each of Webster’s charges
was tied to a specific month. The state had presented evidence that Webster and
Jackson had engaged in sexual conduct in November 2009. Defense counsel’s
questions concerning November 2009 attempted to discredit Jackson’s version of
events. This was sound trial strategy and therefore does not constitute ineffective
assistance of counsel.
{¶ 74} Webster’s seventh assignment of error is overruled.
(Doc. 11, Ex. 18 at PageID 330–32).
The Ohio Court of Appeals court reasonably determined that counsel was not ineffective.
As an initial matter, the appeals court determined that the leading portion of the question was
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proper under Ohio Rules of Evid. 611(C), which states that “[l]eading questions should not be
used on the direct examination of a witness except as may be necessary to develop the witness’
testimony.” Because the state courts are the final authority on state-law issues, this Court must
defer and is bound by the state court’s interpretation. See Estelle v. McGuire, 502 U.S. 62, 67–
68 (1991) (“it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”). Therefore, counsel was not ineffective for failing to
object to the leading question. See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)
(“counsel cannot be ineffective for a failure to raise an issue that lacks merit”).
Regardless, the Ohio Court of Appeals also reasonably determined that the November
2009 timeframe was established prior to the contested leading questions. The victim, Jackson,
testified that she met petitioner for sex in September and October 2009 through the ruse of baby
sitting or after petitioner would pick her up from the Kelly home. (Doc. 11-7, Transcript at
PageID 1059). The prosecution proceeded to question Jackson about being caught in petitioner’s
car, which resulted in her no longer babysitting for petitioner and being grounded. (Id. at PageID
1060–63). Hue and Michelle Jackson previously testified that this occurred on October 30,
2009. Jackson testified that she continued to have sex with petitioner after she stopped
babysitting, specifying that she had sex with him “six or seven more times” and would see
petitioner “at the most two or three times a week, and sometimes I would go a week or two
without even seeing him.” (Id. at PageID 1058; 1064). The prosecution subsequently asked
Jackson if there were any changes in her life at home “[d]uring this time period of October,
November of 2009.” (Id. at PageID 1065). Then—in the first contested leading question—the
prosecution inquired how she would get out of the house while being grounded, referencing

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Jackson’s prior testimony that she continued to see petitioner two or three times a week
following the October 30, 2009 incident:
Q. And then in November of 2009 you said that you continued to see the
defendant maybe two or three times a week. How would you get out of the house
to go see the defendant?
(Id. at PageID 1066). Because the time period was clearly established by the preceding
testimony, the state appeals court reasonably determined that trial counsel was not ineffective for
failing to object to the prosecutor’s question.
The same is true for defense counsel’s subsequent question on cross-examination.
Petitioner takes issue with trial counsel allegedly attaching a timeframe to the occurrence of
sexual conduct during cross-examination in the following question:
Q. Now during the time period in September ’09, October, November, when all of
these text messages are going from you to Nate, on these occasions you would
initiate the contact and initiate sexual activity, correct?
(Id. at PageID 1213). Petitioner argues that without the question, no evidence of sexual conduct
was presented with respect to the November charge. However, as is stated above, the time
period of the alleged sexual conduct had already been established.46 Specifically, each of the
charges against petitioner was tied to a specific month (including November), the prosecution

46

In fact, counsel did object to a prior question on the basis that it was leading. As noted by the trial court, the
victim had already testified as to their relationship in November:
Q. And that would be when you continued having sex in November of 2009 up to when he left town in
December of 2009?
[Defense Counsel]: Objection.
[Defense Counsel]: Objection to the leading nature of the question.
THE COURT: All right. She’s already testified. You can cross her on it, but that question’s consistent
with her current testimony so it’s allowed.
(Id. a PageID 1103).

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had already presented evidence through testimony and the phone records that petitioner engaged
in sexual contact with the victim in November,47 and defense counsel’s question was aimed at
establishing that the victim initiated the phone contacts and sexual relations between them. (See
Id. at PageID 1214-15). Certainly, as noted by the appeals court, it was sound trial strategy for
defense counsel to question the victim about her relationship with petitioner in November and to
address the November charge specified in the indictment. The mere fact that counsel mentioned
November in the course of this questioning does not amount to ineffective assistance of counsel.
Accordingly, because petitioner has failed to demonstrate that the Ohio Court of Appeals’
decision was based on an unreasonable determination of the facts or involved an unreasonable
application of Supreme Court precedent, petitioner is not entitled to federal habeas relief based
on Ground Seven of the petition.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to habeas
relief and the petition should be DENIED with prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)
be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the claims alleged in the
petition, which have been addressed on the merits herein, 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 v. McDaniel, 529 U.S. 473, 475 (2000)

47

This included the victim’s testimony that she continued to have sex with petitioner several times a week after being
grounded on October 30, 2009, by meeting in petitioner’s car after saying she was going on a run; Mrs. Jackson’s
corroborating testimony that she witnessed petitioner’s car leave after the victim left the house; the phone records of
fifty-seven text messages and 125 calls in November; and petitioner’s admission that he arranged to meet the victim
for sex using the phone.

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(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).
A certificate of appealability should not issue with respect to the claims alleged in the
petition, which this Court has concluded are waived and thus procedurally barred from review,
because under the first prong of the applicable two-part standard enunciated in Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000), “jurists of reason” would not find it debatable whether
this Court is correct in its procedural ruling.
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).

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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NATHANIEL WEBSTER, JR.,
Petitioner,

Case No. 1:15-cv-329
Black, J.
Bowman, M.J.

vs.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.

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

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