Campbell v. Warden, Lebanon Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 6/21/2017. Signed by Magistrate Judge Michael R. Merz on 6/7/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ROSCOE T. CAMPBELL,
Petitioner,

:

- vs -

Case No. 1:16-cv-411
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

TOM SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. Petitioner Roscoe Campbell filed an original Petition (ECF No. 3) in response to which
the Warden filed the State Court Record (“SCR”, ECF No. 6) and a Return (ECF No. 7).
Magistrate Judge Bowman granted Mr. Campbell’s Motion to Amend to add a seventh ground
for relief (ECF No. 9, 11). The Warden then filed a Supplemental Return of Writ (ECF No. 16)
and Petitioner filed a Response, appropriately docketed by the Clerk as a Reply under Rule 5 of
the Rules Governing § 2254 Cases (ECF No. 18).
The magistrate judge reference in the case has been transferred to the undersigned to help
balance the magistrate judge workload in the Western Division.
Mr. Campbell pleads the following grounds for relief:
Ground One: Petitioner was denied his fundamental right to a fair
trial and due process of law as guaranteed by the 5th, 6th, and 14th
Amendments of the United States Constitution and Article I, § 16
1

of the Ohio Constitution when the Prosecution withheld
exculpatory evidence both germane and favorable to petitioner’s
defense.
Ground Two: Trial Court abused its discretion when it denied
petitioner his fundamental right to a fair trial and due process of
law guaranteed by the 5th and 14th Amendments of the United
States Constitution and Article I, § 16, of the Ohio Constitution
when it determined there were no Brady materials in the sealed
records and denied petitioner’s motion for a new trial.
Ground Three: The trial court erred in resentencing petitioner to
consecutive prison terms.
Ground Four: Petitioner was deprived of his right to effective
assistance of counsel and an impartial jury as guaranteed by the 6th
Amendment of the United States Constitution, Article I, and
Article III, § 2 of the Ohio Constitution.
Ground Five: Petitioner was deprived of his due process right
guaranteed by the 5th, 6th, and 14th Amendments of the United
States Constitution and Article I § 16 of the Ohio Constitution
when the trial court abused its discretion.
Ground Six: Petitioner was deprived of a fair and impartial trial
when prosecution engaged in prejudicial conduct that tainted
and/or prejudiced his jury.
(Petition, ECF No. 3-1, PageID 42-43.)
Ground Seven: Petitioner was denied his fundamental right to
due process when the trial court imposed a consecutive sentence
grossly disproportionate to the offense.
(Motion to Amend, ECF No. 11-1, PageID 409.)

Procedural History

The Adams County grand jury indicted Campbell on December 6, 2012, on one count of
rape of a child under ten and another count of first degree rape. Campbell sought production by
2

subpoena duces tecum of Adams County Children Services documents pertaining to himself and
his daughter, T.S. Upon in camera review, the trial judge concluded these records contained no
Brady material and he sealed them. Campbell was convicted at trial on both counts and on the
under-ten specification. He was sentenced to life imprisonment on the under-ten count, and to a
consecutive eight year term on the other rape charge.
Campbell appealed to the Fourth District Court of Appeals which denied his first two
assignments of error, but held as to the third that the trial court had erred in imposing consecutive
sentences without making the findings required by Ohio Revised Code § 2929.14(C)(4), and
remanded for resentencing. State v. Campbell, 2014–Ohio-3860, 2014 Ohio App. LEXIS 3787
(Aug 26, 2014) (“Campbell I”); appellate jurisdiction declined, 142 Ohio St. 3d 1410 (2015).
On remand the trial court reimposed the same sentence. This time the Fourth District
affirmed. State v. Campbell, 2016-Ohio-415, 2016 Ohio App. LEXIS 359 (4th Dist. Feb. 3, 2016)
(“Campbell II”), appellate jurisdiction declined, 146 Ohio St. 3d 1416 (2016).
In an application for reopening his direct appeal under Ohio R. App. P. 26(B), Campbell
made a claim of ineffective assistance of appellate counsel on December 15, 2014. The Fourth
District declined to reopen and the Ohio Supreme Court also denied relief. Campbell then filed
the instant habeas corpus petition.

3

Analysis

Ground One: Prosecutorial Misconduct: Withholding Exculpatory Evidence
Ground Two: Trial Court Error in Denying Brady claim

Mr. Campbell’s first two grounds for relief depend on his claim under Brady v.
Maryland, 373 U.S. 83 (1963), that the State violated his constitutional rights by withholding
exculpatory information which, under Brady, should have been revealed. The Fourth District
Court of Appeals decided these claims in ruling together on Campbell’s first two assignments of
error:
[*P1] A jury convicted Roscoe T. Campbell of two counts of rape
of a minor child less than thirteen years of age and sentenced him
accordingly. On appeal Campbell asserts he was denied his right to
a fair trial and due process of law when the state failed to disclose
exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also asserts the court
erred in failing to grant him a new trial on this basis.
[*P2] Campbell claims that the state violated Brady by failing to
disclose that an Adams County Children Services investigation
determined another of the victim's claims of sexual abuse by
Campbell was "unsubstantiated." Campbell is correct that the
state's Brady obligation extends to information held by state or
local agencies involved in the investigation or prosecution at issue.
But it does not impose a duty on the prosecutor's office to discover
and disclose that unrelated allegations were not pursued. The
materials and sealed records that Campbell contends contain Brady
material address claims by the child that are different from the
ones supporting this prosecution. Therefore, the state did not
violate Brady by refusing to disclose these materials, nor did the
court err in refusing to grant a new trial. We overrule Campbell's
first and second assignments of error.
***
4

A. Brady & Exculpatory Evidence
[*P10] In his first assignment of error, Campbell claims he was
denied his right to a fair trial and due process of law when the state
withheld favorable evidence from him. In his second assignment of
error, Campbell contends that the trial court denied him his right to
a fair trial and due process of law when it determined that there
were no Brady materials in the sealed records and denied his
motion for new trial. Because these assignments are interrelated
and raise similar issues of law, we consider them jointly. See, e.g.,
State v. Fox, 2012-Ohio-4805, 985 N.E.2d 532, ¶ 28 (4th Dist.)
("Whether evidence is materially exculpatory is a question of
law"); State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32,
12CA2, 12CA11, 12CA12, and 12CA19, 2013-Ohio-3420, ¶ 61-63
(although the abuse-of-discretion standard of review is generally
used in reviewing a trial court's ruling denying a motion for new
trial, it is inapplicable when material, exculpatory evidence is
withheld by the prosecution in a criminal proceeding).
[*P11] "Due process requires that the prosecution provide
defendants with any evidence that is favorable to them whenever
that evidence is material either to their guilt or punishment." State
v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶
30, citing Brady, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215;
Fox at ¶ 25 ("A criminal defendant's due process right to a fair trial
is violated when the prosecution withholds materially exculpatory
evidence"). "Evidence is considered material when 'there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.'"
Brown at ¶ 40, quoting United States v. Bagley, 473 U.S. 667, 682,
105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
[*P12] The state claims that the prosecution had no duty under
Brady to disclose the subpoenaed materials from the Adams
County Children Services because it never possessed these
confidential records. As Campbell counters, however,
"[p]rosecutors have 'a duty to learn of any favorable evidence
known to the others acting on the government's behalf in the case,
including the police.'" (Emphasis sic.) State v. Sanders, 92 Ohio
St.3d 245, 261, 2001 Ohio 189, 750 N.E.2d 90 (2001), quoting
Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d
490 (1995). Consequently, "[t]he Brady obligation thus extends to
information held by state or local agencies involved in the
investigation or prosecution at issue." Id., citing United States v.

5

Morris, 80 F.3d 1151, 1169 (7th Cir.1996); State v. Cunningham,
10th Dist. Franklin No. 06AP-145, 2006-Ohio-6373, ¶ 8.
[*P13] Nevertheless, "Brady and its prodigy [sic]1 do not 'impos[e]
a duty on the prosecutor's office to learn of information possessed
by other government agencies that have no involvement in the
investigation or prosecution at issue.'" Goff v. Bagley, 601 F.3d
445, 476 (6th Cir.2010), quoting Morris at 1169. Consequently,
investigations by other agencies on other potential offenses are not
subject to disclosure in an unrelated criminal investigation and
prosecution of a case. See Goff (petitioner "has pointed to no
federal authority requiring a state prosecutor to inquire into the
federal prosecution of a witness that is unrelated to the state case
and that does not involve any persons acting on behalf of the state
prosecutor"); State v. Lacey, 7th Dist. Mahoning No. 11 MA 68,
2012-Ohio-1697, ¶ 29 (no Brady violation in failing to disclose an
incident report from a township bordering the county in which the
criminal investigation and prosecution occurred); State v. Hessler,
10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 62 ("the
state's failure to contact the involved mental health agencies and
the National Guard in order to obtain exculpatory evidence did not
violate Brady because the agencies in possession of the challenged
evidence are independent agencies who were not acting on the
government's behalf in the investigation or prosecution of
defendant's case"); Cloud v. United States, N.D.Ohio Nos.
1:03CR486 and 1:07CV3704, 2012 U.S. Dist. LEXIS 52117, 2012
WL 1252957, *2 (Apr. 13, 2012) (memorandum prepared by FBI
special agent does not constitute Brady material because it was not
possessed by the prosecution or other government agencies
involved in the investigation or prosecution at issue).
[*P14] At oral argument Campbell's counsel contended that the
sealed Adams County Children Services records contain evidence
of the same incidents for which he was convicted and sentenced in
this case. However, a review of the sealed subpoenaed records
from the Adams County Children Services indicates that they are
not related to the investigation of the rape incidents, which
occurred between February 2004 — August 2005 and November
2009-May 2009, that form the basis of this prosecution.
[*P15] Instead, these sealed records primarily relate to a separate
incident involving the child, her father, Campbell, and her
stepfather, Beau Campbell, that allegedly occurred at her father's
house after the rapes at her mother's house at issue in this case.
Campbell's reliance on the agency's April 2010 dispositional letter,
1

“Progeny” is clearly intended, but “prodigy” appears in the published Sixth Circuit decision.

6

which he attached to his motion for new trial, is misplaced. That
letter relates to the investigation of a sexual abuse incident
involving Campbell and Beau Campbell that allegedly occurred in
the fall of 2009 at Campbell's home, i.e. after the incidents for
which he was indicted and tried.
[*P16] The sealed records also contain summary pages concerning
other allegations made by the child against other individuals, but
not specifically against appellant, who appears to be designated by
his full name of Roscoe Timothy Campbell by the agency for the
allegation concerning him and Beau Campbell. Even assuming that
the agency's summary lists appellant by the shorter name of "Tim
Campbell," it lists only neglect allegations against that person, not
sexual abuse allegations. In addition the summary in the sealed
records indicates other allegations of sexual abuse involving the
child, with the agency's disposition that most of them were
"substantiated" or that the sexual abuse was "indicated"; but there
is one against another individual that was "unsubstantiated." Thus,
we do not determine the potential relevance of a series of multiple
prior false allegations of sexual misconduct because the sealed
records do not contain such information. However, that situation
could raise more complex issues concerning the state's obligations
under Brady and the applicable provisions of the rape-shield law.
Because Campbell does not specifically request an expansion of
Kyles, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490, and
Sanders, 92 Ohio St.3d 245, 261, 2001 Ohio 189, 750 N.E.2d 90,
to require the disclosure of information held by state or local
agencies that are not related to the investigation and prosecution
of the crimes that are the subject of the specific case, we do not
address that issue either.
[*P17] Because the records at issue are unrelated to the state's
investigation or prosecution of the rape charges at issue in this
case, the trial court correctly ruled that Campbell was not entitled
to these confidential records pursuant to Brady; and the trial court
also properly denied his motion for new trial based on this claim.
[*P18] Finally, even if we assume the state's nondisclosure of the
alleged Brady evidence was improper, we conclude that this
constitutional error was harmless beyond a reasonable doubt. 'A
constitutional error can be held harmless if we determine that it
was harmless beyond a reasonable doubt."' State v. Maxwell, 139
Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 123, quoting
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶ 78.

7

[*P19] Ordinarily, in cases in which the appellant complains about
the erroneous admission of evidence, the dispositive issue is
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction. See State
v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶
46. Here, however, appellant complains that he was not given
access to exculpatory evidence. For these contentions, a
"reviewing court may overlook an error where the admissible
evidence comprises 'overwhelming' proof of a defendant's guilt."
See State v. Saunders, 4th Dist. Ross No. 1896, 1993 Ohio App.
LEXIS 5956, 1993 WL 524968, *10 (Dec. 1, 1993) (any error
caused by the non-disclosure of witness's testimony pursuant to
Brady was harmless error); see also State v. Hood, 135 Ohio St.3d
137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43, quoting State v.
Williams, 6 Ohio St.3d 281, 6 Ohio B. 345, 452 N.E.2d 1323
(1983), paragraph six of the syllabus ("'Where constitutional error
*** is extant, such error is harmless beyond a reasonable doubt if
the remaining evidence, standing alone, constitutes overwhelming
proof of [the] defendant's guilt'"); see generally Katz, Martin,
Giannelli, and Crocker, Baldwin's Ohio Practice Criminal Law,
Section 80:18 (2013).
[*P20] Here the evidence included the testimony of the certified
polygraphist who concluded that Campbell lied when he stated that
he had never put his penis in his daughter's vagina or mouth
[footnote omitted], and Campbell's daughter's compelling
recitation of the facts of the crimes. Given this evidence as well as
the fact that the withheld evidence was, at best, only minimally
helpful to Campbell's defense, we conclude that the remaining
admissible evidence constituted overwhelming evidence of his
guilt. Therefore, any error concerning the sealed evidence is
harmless beyond a reasonable doubt.
[*P21] Campbell's claims are meritless, and we overrule his first
and second assignments of error.
Campbell I, supra.
The Warden concedes these two Grounds for Relief are preserved for merit consideration
by this Court (Return, ECF No. 7, PageID 379-85). However, the Warden also notes that the
Fourth District decided Campbell’s Brady claim and its decision must be reviewed under the
deferential AEDPA standard. When a state court decides on the merits a federal constitutional

8

claim later presented to a federal habeas court, the federal court must defer to the state court
decision unless that decision is contrary to or an objectively unreasonable application of clearly
established precedent of the United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v.
Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005);
Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The documentation that Petitioner claims was suppressed is the content of a file
possessed by the Adams County Children Services agency.

When Petitioner’s counsel

subpoenaed those documents, the State moved to quash the subpoena on the grounds that those
records are confidential as a matter of state law (Motion to Quash, SCR, ECF No. 6, PageID 58).
The trial judge declined to quash the subpoena on the basis of the confidentiality statutes, but
only after an in camera inspection and determination that there was no Brady material included
because Children Services had not participated in investigating the alleged child abuse for which
Petitioner was on trial. The Fourth District affirmed on that basis, having itself examined the
sealed records and confirming the trial court’s analysis.
The question of whether particular documentation in the Children Services file relates to
the incidents for which a defendant is on trial is essentially a question of historical fact –
comparing times, dates, places, and the contents of allegations in such a file with the times,
dates, places, and allegations made in the indictment or bills of particulars. Here the Fourth
District found the indictment alleged one offense occurred between February 1, 2004, and
August 15, 2005, and the other offense occurred between November 15, 2007, and May 1, 2009.
Campbell I, supra, ¶ 4. The trial court and the Fourth District found the allegations in the
Children Services records that were not pursued related to an incident in 2010. Id. at ¶ 6.
A state court determination on such a question of historical fact – what the documents

9

show -- is “presumed to be correct. The [habeas] applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Petitioner has offered no evidence to the contrary, much less clear and convincing evidence.
The Fourth District decided a second issue with respect to the Brady claims. It found
that, assuming arguendo that the Children Services file did contain Brady material, its
nondisclosure was harmless. Campbell I, supra, ¶¶ 18-20. In doing so, it applied the Ohio
harmless error standard of harmless beyond a reasonable doubt. Id. at ¶ 19. That standard favors
the defendant more than the applicable federal constitutional standard. Constitutional error in a
habeas case is not required to be harmless beyond a reasonable doubt as is required on direct
appeal by Chapman v. California, 386 U.S. 18 (1967). Rather, error is harmless if the habeas
court is satisfied it did not have a substantial and injurious effect or influence in determining the
verdict. Brecht v. Abrahamson, 507 U.S. 619 (1993), adopting standard from Kotteakos v. United
States, 328 U.S. 750 (1946). A federal court may grant habeas relief only if a constitutional
violation had a substantial and injurious effect or influence in determining the jury’s verdict.
Williams v. Bauman, 759 F.3d 630, 637 (6th Cir.), cert. denied, 135 S. Ct. 876 (2014). This
standard calls for reversal when the reviewing court lacks a “fair assurance” that the outcome of
a trial was not affected by evidentiary error. Beck v. Haik, 377 F.3d 624 (6th Cir. 2004).
For the same reasons given by the Fourth District, this Court concludes any possible
Brady error regarding the Children services file was harmless. The material referred to could
only possibly be useful to the defense if it reported statements by the victim which contradicted
testimony given at trial, i.e., for impeachment. With Campbell’s consent,2 he was subjected to a
polygraph examination which showed he had lied about sexual conduct with his daughter.
Moreover, the victim gave a “compelling recitation of the facts of the crimes.” Campbell I,
2

Polygraph results are only admissible in Ohio if the defendant has consented to the test in advance.

10

supra, ¶ 20.
Campbell’s First and Second Grounds for Relief are without merit.

Ground Three: Error in Resentencing

As noted above, the Fourth District sustained Campbell’s third assignment of error on his
first appeal and remanded for resentencing. Campbell, supra, ¶¶ 22-26. The State had conceded
that the trial court did not make the findings required by Ohio Revised Code § 2929.14(C)(4) and
the Fourth District remanded for compliance. As noted above, the trial court reimposed the same
sentence and the Fourth District affirmed on the second appeal. Campbell II, supra, and the
Ohio Supreme Court declined jurisdiction.
To the extent that Mr. Campbell’s claim in his Third Ground is that the trial court still did
not comply with Ohio Revised Code § 2929.14(C)(4), that claim is not cognizable in federal
habeas corpus. The question of whether the sentencing judge complied with the Ohio statute is a
question purely of Ohio law on which this Court is bound by the Ohio courts’ interpretation.
State law issues are not subject to habeas review, see Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).
Campbell made no federal constitutional claim on this issue on his second direct appeal.
Instead, the Fourth District considered that it was only presented with an Ohio statutory
interpretation claim:
[*P2] Campbell once again asserts that the trial court erred in
resentencing him to consecutive prison terms. He claims that the
trial court did not provide adequate justification for the consecutive
terms. The trial court had no obligation to state reasons to support
its findings. Because the trial court made the findings required by
R.C. 2929.14(C)(4) at the resentencing hearing and incorporated
11

those findings in its new sentencing entry, we reject Campbell's
assertion and affirm the judgment of the trial court.
Campbell II, supra.
In his Traverse, Mr. Campbell argues the trial court violated “his due process rights when
it failed to articulate an analysis or finding for a sentence otherwise disproportionate . . .”
However, Campbell cites to no clearly established United States Supreme Court precedent that
would require a court to give its reasons for imposing a sentence clearly within the statutory
range set by Ohio law. On appeal to the Ohio Supreme Court, he argued this claim purely in
terms of what Ohio law requires and what the Ohio General Assembly had intended by adopting
revisions to the sentencing statutes (Memorandum in Support of Jurisdiction, Record, ECF No.
6, PageID 223-25).
The claim made in Ground Three is not cognizable in federal habeas corpus.

Ground Four: Ineffective Assistance of Trial Counsel

Mr. Campbell claims his attorney provided ineffective assistance of trial counsel by his
failure “1) [to] use peremptory challenge to dismiss prejudicial juror due to extraneous
influences, 2) to adequately investigate and prepare trial strategy, 3) failed to acquire expert
rebuttal testimony or expert second opinion, 4) counsel sought prejudicial trial strategy, and 5)
failed to correctly tender plea agreement.” (Reply, ECF No. 18, PageID 449.)
The Warden contends this Ground for Relief is procedurally defaulted because none of
these sub-claims were presented on direct appeal to the Fourth District (Return, ECF No. 7,
PageID 389). Mr. Campbell counters that he presented them in his Application for Reopening
the direct appeal. That is accurate. In his 26(B) Application, Mr. Campbell asserted he received
12

ineffective assistance of appellate counsel when his appellate attorney did not present as
assignments of error the following:
Assignment of Error One
Appellant was deprived of his right to effective assistance of
counsel and an impartial jury as guaranteed by the 6th Amendment
of the United States Constitution, Article I § 10, and Article III § 2
of the Ohio Constitution.
Assignment of Error Two
Appellant was deprived his due process right guaranteed him by
the 5th, 6th, and 14th Amendments of the United States Constitution
and Article I § 16 of the Ohio Constitution when trial court abused
its discretion.
Assignment of Error Three
Appellant was deprived of a fair and impartial trial when
prosecution engaged in prejudicial conduct that tainted and/or
prejudiced his jury.
(SCR, ECF No. 6, PageID 250.)
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a

13

federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433
U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391
(1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985).
Failure to present an issue to the state supreme court on discretionary review constitutes
procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).
An Application for Reopening does not preserve for habeas review new claims raised for
the first time in the Application. An Ohio App. Rule 26(B) application preserves for habeas
review only the ineffective assistance of appellate counsel arguments, not the underlying
substantive arguments. Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), citing Lott v.

14

Coyle, 261 F.3d 594, 612 (6th Cir. 2001). “The Lott court explained that permitting an Ohio
prisoner to raise a substantive claim in a Rule 26(B) motion "would eviscerate the continued
vitality of the procedural default rule; every procedural default could be avoided, and federal
court merits review guaranteed, by claims that every act giving rise to every procedural default
was the result of constitutionally ineffective counsel." Id.

If the court of appeals grants

reopening and then considers the previously omitted assignments of error, then, but only then,
are the claims preserved for habeas review. In this case the Fourth District declined to reopen
the appeal “because Campbell has not met his burden to establish a genuine issue of whether he
has a colorable claim of ineffective assistance of appellate counsel.” State v. Campbell, Case No.
13CA969 (4th Dist. Jan 27, 2015)(unreported, copy at SCR, ECF No. 6, PageID 311, et
seq.)(“Campbell III”).
The Fourth District meticulously examined all of the assertedly meritorious omitted
assignments of error and concluded that none of them would likely have been successful if they
had been raised in the appeal. It appropriately applied the standard of review of attorney conduct
prescribed by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and
concluded that, in omitting the proposed new assignments of error, appellate counsel had not
provided ineffective assistance. Like any other decision by a state appellate court on a federal
constitutional question which later comes before a habeas court, this decision is entitled to
deference under the AEDPA. To overcome that deference, Mr. Campbell must show that the
Fourth District’s decision is contrary to or an objectively unreasonable application of Supreme
Court precedent, in this case, Strickland, supra.
Campbell has not succeeded in that attempt. He has not persuaded this Court any more
than he did the Fourth District that the omitted assignments of error would have been successful.

15

In essence he repeats the arguments he made to the Fourth District (Reply, ECF No. 18, PageID
449-51). He does not demonstrate any way in which the Fourth District misinterpreted the
record or missed references to evidence that was in the record.
Therefore Ground Four is procedurally defaulted because the claims made there could
have been raised on direct appeal and were not.

Ground Five: Trial Court Abuse of Discretion

In his Fifth Ground for Relief, Campbell claims the trial court abused its discretion in
discharging a juror who believed the burden of proof for a sex crime had to be higher than proof
beyond a reasonable doubt and then in limiting his cross-examination of his daughter, the victim
of his crimes (Reply, ECF No. 18, PageID 451).
The Warden asserts this Ground for Relief is procedurally defaulted on the same basis as
Ground Four and the Court agrees. In deciding the 26(B) Application, the Fourth District found
these two sub-clams were meritless and therefore it was not ineffective assistance of appellate
counsel to fail to raise them. Campbell III, ¶ 26, PageID 322. By failing to find ineffective
assistance of appellate counsel which would have excused the failure to raise these two claims on
direct appeal, the Fourth District enforced the Ohio rule requiring all appellate claims to be
raised in the first appeal of right. That is an adequate and independent state procedural rule and
Campbell has shown no excusing cause and prejudice. Ground Five should be dismissed on the
same basis as Ground Four.

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Ground Six: Prosecutorial Misconduct Tainting or Prejudicing the Jury

In his Sixth Ground for Relief, Mr. Campbell recites a number of claims of prosecutorial
misconduct and asserts this conduct deprived him of due process and a fair trial (Reply, ECF No.
451-53).

The Warden asserts that, like Grounds Four and Five, this ground for relief is

procedurally defaulted by failure to raise it on direct appeal. As with Grounds Four and Five,
this claim was indeed raised for the first time in Mr. Campbell’s 26(B) Application. The Fourth
District found the claims had no merit and therefore it was not ineffective assistance of appellate
counsel to fail to raise them. Campbell III, SCR ECF No. 6, PageID 324. As with Grounds Four
and Five, Campbell has not shown this was an unreasonable application of Strickland as it
applies to appellate counsel. Therefore this Court is bound to defer to the Fourth District’s
conclusion.
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, ___
(2014), slip op. at 4.
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ___, ___ (2013), slip op. at
9)(quoting Strickland v, Washington, 466 U.S. 668, 690 (1984);
internal quotation marks omitted). In such circumstances, federal
courts are to afford “both the state court and the defense attorney
the benefit of the doubt.” Burt, supra, at ___, 134 S. Ct. 10, 187 L.
Ed. 2d 348 (slip op. at 1).

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Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149, 1151 (2016)(per curiam; unanimous),
reversing Etherton v. Rivard, 800 F.3d 737 (6th Cir. 2015). Ground Six should therefore be
dismissed.

Ground Seven: Cruel and Unusual Punishment by Imposing a Disproportionate Sentence

Magistrate Judge Bowman, to whom this case was previously referred, permitted Mr.
Campbell to amend his Petition to add a Seventh Ground for Relief, to wit, that “Petitioner was
denied his fundamental right to due process when the trial court imposed a consecutive sentence
grossly disproportionate to the offense.” (Order, ECF No. 14, PageID 418.)
The Warden asserts this ground for relief is procedurally defaulted by Mr. Campbell’s
failure to fairly present it to the state courts as a federal constitutional claim (Supplemental
Return, ECF No. 16, PageID 422).
Campbell argues this Ground for Relief in his Reply in conjunction with his Third
Ground, intertwining arguments based on the Ohio sentencing statute and on the Eighth
Amendment’s Cruel and Unusual Punishment Clause (Reply, ECF No. 18, PageID 446-48).
The Cruel and Unusual Punishment Clause of the Eighth Amendment is applicable to the
States through the Fourteenth Amendment’s Due Process Clause. Robinson v. California, 370
U.S. 660 (1962). Thus Mr. Campbell’s due process claim is properly analyzed in terms of
Supreme Court interpretation of the Eighth Amendment.
Mr. Campbell responds to the Warden’s fair presentation defense by asserting that “in
fact petitioner presented to the Ohio Supreme Court that his constitutional question was
‘consecutive sentencing and proportionality.’” (Response, ECF No. 18, PageID 447, citing

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Record, ECF No. 6, PageID 222.) The context in which the quoted language appears is as
follows:
The court of appeals rationalizes that the trial court had no
obligation to state reasons to support it's findings over this court's
recent decisions which held "that the record in order to satisfy the
statute requires that it reflect that the court engaged in the required
analysis and selected the appropriate statutory criteria" State v
Setty, 2014 Ohio 2340, State v.· Bennell, 140 Ohio St. 3d 209
(2014), except in appellant's case it remains unresolved as to
whether the trial court and the court of appeals properly applied the
legislative intent of §2929.11 of the Ohio Revised Code as it
relates to consecutive sentencing and proportionality.
The court of appeals decision-making lends to erode the legislative
intent of fair sentencing reform and negates the fundamental
principles set in place to reform an offender and protect the public
and if such a decision is left to firm it will serve to exclude the fair
sentencing variables that gives both structure and purpose to the
sentencing statutes.

Thus read in context Mr. Campbell’s reference to “proportionality” is not part of any
fairly presented constitutional claim, but instead an argument about how the Ohio sentencing
statutes should be interpreted. Merely using talismanic constitutional phrases like “fair trial” or
“due process of law” does not constitute raising a federal constitutional issue. Slaughter v.
Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987);
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d
684, 688-89 (2nd Cir. 1984). Mere use of the words “due process and a fair trial by an impartial
jury” are insufficient. Slaughter , 450 F.3d at 236; Blackmon v. Booker, 394 F.3d 399, 400 (6th
Cir. 2004)(same). “A lawyer need not develop a constitutional argument at length, but he must
make one; the words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494
(7th Cir. 1995).
Even if Mr. Campbell’s Memorandum in Support of Jurisdiction had presented a fully
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developed constitutional claim, he would still not have escaped the procedural default bar,
because he would not have presented that argument to the Fourth District. As noted above with
respect to Ground Three, Campbell’s sentencing argument in the court of appeals was purely a
statutory interpretation argument.
But even if Mr. Campbell’s due process argument survived every procedural hurdle, it
would still be without merit. Campbell stands convicted by a jury of raping his minor daughter
not once, but twice. In applying the Cruel and Unusual Punishment Clause to non-capital
crimes, the Supreme Court has held:
The Eighth Amendment proportionality principle also applies to
noncapital sentences. In Rummel v. Estelle, 445 U.S. 263, 63 L.
Ed. 2d 382, 100 S. Ct. 1133 (1980), we acknowledged the
existence of the proportionality rule for both capital and noncapital
cases, id., at 271-274, and n. 11, but we refused to strike down a
sentence of life imprisonment, with possibility of parole, for
recidivism based on three underlying felonies. In Hutto v. Davis,
454 U.S. 370, 374, 70 L. Ed. 2d 556, 102 S. Ct. 703, and n. 3
(1982), we recognized the possibility of proportionality review but
held it inapplicable to a 40-year prison sentence for possession
with intent to distribute nine ounces of marijuana. Our most recent
decision discussing the subject is Solem v. Helm, 463 U.S. 277, 77
L. Ed. 2d 637, 103 S. Ct. 3001 (1983). There we held that a
sentence of life imprisonment without possibility of parole violated
the Eighth Amendment because it was "grossly disproportionate"
to the crime of recidivism based on seven underlying nonviolent
felonies. The dissent in Solem disagreed with the Court's
application of the proportionality principle but observed that in
extreme cases it could apply to invalidate a punishment for a term
of years. Id., at 280, n. 3. See also Hutto v. Finney, 437 U.S. 678,
685, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978) (dicta); Ingraham v.
Wright, 430 U.S. 651, 667, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977)
(dicta).
Harmelin v. Michigan, 501 U.S. 957, 997-998 (1991). The Sixth Circuit “adheres to the ‘narrow
proportionality principle’ for evaluating Eighth Amendment claims articulated in Harmelin.”
United States v. Young, 847 F.3d 328 (6th Cir. 2017), citing United States v. Graham, 622 F.3d

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445, 452 (6th Cir. 2010); United States v. Hill, 30 F.3d 48, 50-51 (6th Cir. 1994). It is only within
the professional career of the undersigned that the death penalty has been found cruel and
unusual punishment for the rape of any adult woman. Coker v. Georgia, 433 U.S. 584, 597
(1977). If this Court were to reach the merits of this Seventh Ground, it would readily hold that
life imprisonment is completely proportionate to the crime of raping one’s own minor daughter.
Certainly Mr. Campbell has cited no Supreme Court precedent to the contrary.

Conclusion

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

June 7, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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