Cave v. Warden, North Central Corectional Complex
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein 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 12/21/2017. Signed by Magistrate Judge Michael R. Merz on 12/7/2017. (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
BARRY J. CAVE,
- vs -
Case No. 1:16-cv-929
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
WARDEN, North Central Correctional
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Barry J. Cave, is before the Court
for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 7), the
Return of Writ (ECF No. 8), and the Reply (ECF No. 11). The Magistrate Judge reference in the
case was recently transferred to the undersigned to help balance the Magistrate Judge workload
in the Western Division (ECF No. 12).
Petitioner’s grounds for relief as pleaded are:
Ground One: Cave was denied his 6th Amendment right to
Confrontation in violation of the U.S. Constitution.
Supporting Facts: The State introduced Hearsay Testimony from
an unavailable witness.
Ground Two: The Trial Court violated Cave’s 14th Amendment
right to Due process and a fair trial, in violation of the U.S.
Supporting Facts: There was insufficient evidence to convict
Cave of trafficking cocaine.
Ground Three: Cave was denied his 6th Amendment right to
effective counsel in violation of the U.S. Constitution.
Supporting Facts: (1) Trial Counsel failed to object to the
Hearsay testimony of an unavailable witness; (2) Appellate
Counsel failed to raise (A) there was not sufficient evidence to
convict Cave of trafficking over 100 grams of cocaine, in violation
of the 14th Amendment of the U.S. Constitution; (B) The Trial
Court failed to identify the statute it was referring to when it gave
Jury instructions, and the Trial Counsel was ineffective for failing
to object to the jury instructions.
(Petition, ECF No. 1, PageID 3.)
Procedural and Factual History
On March 15, 2013, the Scioto County Grand Jury indicted Cave on four counts of
trafficking in cocaine in violation of Ohio Revised Code § 2925.03(A)(1), a fifth-degree felony
(Counts Two, Three, Four, and Five); one count of trafficking in cocaine over 100 grams in
violation of Ohio Revised Code § 2925.03(A), a first-degree felony, with an accompanying
major drug offender specification (Count One); and one count of possessing criminal tools in
violation of Ohio Revised Code § 2923.24(A)(C), a fifth-degree felony (Count Six). The
indictment also sought forfeiture of $3,330.00 which Cave allegedly owned or possessed as a
result of a felony drug offense or that Cave intended to use in the commission of a felony drug
offense. (State Court Record, ECF No. 7, PageID 18.)
Cave was tried by a jury and found guilty on all counts. The trial court sentenced Cave to
an aggregate sentence of eleven years. (State Court Record, ECF No. 7, PageID 24.) In
addition, the trial court ordered forfeiture in the amount of $3,330.00 and suspended Cave’s
driver’s license for one year.
Cave, through new counsel, appealed to the Court of Appeals of Ohio, Fourth Appellate
District, Scioto County, which set forth the facts of the case as follows:
[**P2] . . . Counts Two, Three, Four, and Five [of the indictment]
arose from a series of “controlled buys”, [sic] in which a
confidential police informant allegedly purchased crack cocaine
from the appellant at his house at 714 Brown Street, Portsmouth,
Ohio. Counts One, Six, and the forfeiture specification arose after
appellant’s house was searched by law enforcement and a large
quantity of crack cocaine, money, a cell phone, and drug
paraphernalia were seized from the house.
[**P3] Appellant pleaded not guilty to the charges and a jury trial
was held on September 3 and 4, 2013. The confidential police
informant did not testify at trial. However, Sergeant Joshua Justice
of the Southern Ohio Drug Task Force testified, without objection
from counsel, that on or about January 29, 2013, the informant
stated, “they could buy crack cocaine off of Barry Cave.” [Tr. at
35.] According to Justice, the informant had agreed through the
prosecutor’s office to work off a misdemeanor charge in exchange
for giving up a drug dealer. Sergeant Justice also testified that “this
informant had gave us some estimates of how much dope they had
seen with Barry Cave * * *.” [Tr. at 38.] Based on this
information, the investigating officers decided to use the informant
in a series of controlled buys. Sergeant Justice indicated that the
informant, under his direction, contacted appellant via appellant’s
cellular phone on February 5, 2013, and ordered from appellant a
half a gram of crack cocaine for $50. Sergeant Justice listened to
the phone call and testified that he recognized appellant’s voice.
[**P4] The State also utilized Sergeant Justice to introduce four
recordings of the controlled buys. Sergeant Justice had procured
the recordings by equipping the informant with an audio/video
recording device. The jury heard and watched the four recordings;
however, the court did not admit the recordings into evidence. The
recordings, therefore, are not a part of the appellate record. We do
have available, however, a transcript of the audio portions of the
recordings. Sergeant Justice also provided a narration of the
recordings, over the objections of defense counsel, while the
recordings were played for the jury.
[**P5] The first controlled buy occurred on February 5, 2013,
following the informant’s phone call to appellant. Sergeant Justice
testified that in addition to wiring the informant with the recording
device, he also provided the informant with a marked bill. The
informant was also searched prior to the drug buy. While the
recording apparently displayed a 6:14 p.m. recording time,
Sergeant Justice clarified that the buy actually occurred at 5:09
p.m. While we cannot actually see the recording, appellant agrees
that the recording revealed him cutting a small portion of crack
cocaine, placing it in a bag, and then giving the bag to the
informant in exchange for cash. Stanton Wheasler, a forensic
scientist with the Ohio Bureau of Criminal Identification and
Investigation (“BCI & I”) testified that he weighed the contents of
the bag and determined that the contents contained 0.5 grams of
[**P6] The second controlled buy occurred on February 7, 2013.
The informant was wired with the recording device, given a
marked bill, and searched prior to the buy. An officer purportedly
appeared at the beginning of the recording and stated the date as
February 7, 2013, and the time as 9:47 p.m. The recording timestamp, however, apparently displayed a time of 11:20 p.m. The
recording demonstrated appellant handling and bagging crack
cocaine and giving the bag to the informant in exchange for
money. Wheasler testified that he later determined the bag
contained 0.2 grams of crack cocaine.
[**P7] The third controlled buy occurred on February 11, 2013.
The informant was given marked bills to make the purchase, wired
with a recording device, and was searched prior to the buy. An
officer appeared on the recording noting the date as February 11,
2013, and the time as 5:01 p.m. The recording, however, displayed
a date of November 18, 2009, and a time of 1:24 a.m. The
recording of this particular controlled buy does not show a drug
exchange for money. Sergeant Justice testified, however, that when
the informant returned from the residence he or she turned over a
bag containing a white substance. Sergeant Justice also indicated
that he recognized the appellant’s voice on the recording. Wheasler
testified that the contents of the bag were later determined to
contain 0.3 grams of crack cocaine.
[**P8] According to Sergeant Justice, the fourth controlled buy
occurred on February 20, 2013, at 11:34 a.m. However, the date
and time displayed on the video was apparently November 26,
2009, at around 8:00 p.m. The informant was searched prior to the
drug buy, wired with a recording device, and given a $50 marked
bill. The video showed appellant smoking crack cocaine,
exchanging crack cocaine for money, and also handling a large
quantity of crack cocaine. Wheasler confirmed that the substance
exchanged in the buy contained 0.5 grams of crack cocaine.
[**P9] On the same day as the fourth controlled buy, Sergeant
Justice secured a no-knock search warrant for the residence at 714
Brown Street, Portsmouth, Ohio. When executing the search
warrant a total of five people were located in the residence,
including three women, the appellant, and the appellant’s brother.
Officers also located over 100 grams of crack cocaine, cash
(including the $50 marked bill used in the earlier drug buy), a cell
phone, and drug paraphernalia in the home. According to Justice,
the occupants of the home were handcuffed, placed in the living
room, and Mirandized. In response to a question from officers,
appellant stated that the drugs and cash belonged to him.
[**P10] In addition to Sergeant Justice’s testimony, the four
recordings of the controlled buys, and Wheasler’s testimony, the
State also introduced the following evidence: the testimony of
three other investigating officers, two maps, approximately 30
photographs, one cell phone, packages of crack cocaine, one ring
box, one monitor, two bundles of cash, several BCI & I reports,
one coat, and one inventory sheet. However, none of the exhibits
were formally offered or admitted into evidence. [At Footnote 1,
the Court said: “The appellate record does contain, however,
copies of the maps, photographs, BIC&I reports, and inventory
State v. Cave, 2015-Ohio-2233, 36 N.E.3d 732 (Ohio App. 4th Dist. June 2, 2015).
Following the briefing on the appeal, the court of appeals affirmed in part and reversed in
part and remanded for further proceedings. Regarding the fourth assignment of error, the court
said that because the jury did not make a determination concerning the forfeiture specification,
and because the matter was not, by motion, committed to the judge, the trial court erred in
ordering forfeiture in this case. The court therefore sustained that assignment of error and
remanded the case to the trial court so that the forfeiture could be vacated and the funds ordered
Cave, pro se, filed an appeal to the Ohio Supreme Court which declined to accept
jurisdiction. State v. Cave, 143 Ohio St.3d 1480 (2015).
On June 24, 2016, Cave, pro se, filed an application to reopen his appeal under Ohio
App. R. 26(B) which the State opposed. On July 29, 2016, the Court of Appeals denied Cave’s
application to reopen as untimely. (State Court Record, ECF No. 7, PageID 134.) Cave did not
appeal to the Ohio Supreme Court.
Ground One: Denial of Confrontation Right
In his First Ground for Relief, Petitioner asserts he was denied his right to confrontation
of the witnesses against him when a police officer was permitted to testify at trial to the
statement of an unidentified confidential informant that “they could buy crack cocaine off of
Respondent asserts this Ground for Relief is procedurally defaulted because Cave’s trial
attorney did not object to the testimony (Return, ECF No. 8, PageID 350-54).
responds that he exhausted his state court remedies, that the Fourth District ruled on the merits of
this claim rather than invoking a procedural bar, that there is no relevant procedural rule, and that
“even if there were such a firmly established procedural rule, it would not be an ‘adequate and
independent’ state ground to foreclose review of Cave’s federal constitution claims.” (Reply,
ECF No. 11, PageID 368.)
Mr. Cave raised this claim as his Second Assignment of Error on direct appeal which the
Fourth District decided as follows:
B. Assignment of Error II
[*P21] In his second assignment of error, appellant contends that
Sergeant Justice's testimony concerning information from the
confidential informant was "testimonial hearsay," the admission of
which constituted a violation of his Sixth Amendment right to
confront witnesses against him. In particular, appellant takes issue
with Sergeant Justice's testimony that the informant told him that
"they could buy cocaine off of Barry Cave" and "this informant
gave us some estimate of how much dope they had seen with
Barry Cave * * *." Appellant argues that those statements "allowed
the jury to draw incorrect conclusions regarding [his] involvement
in the charged offenses." [Brief at 11.] The State, on the other
hand, argues that Sergeant Justice's testimony concerning the outof-court statements of the confidential informant was not entered
into evidence to prove the truth of the matter asserted; but rather to
explain Sergeant Justice's subsequent actions and to provide
factual context on how the appellant became the subject of a law
[*P22] As an initial matter, we note that the appellant did not
make specific objections at trial in order to properly preserve this
issue for appeal. Failure to object to an alleged error waives all but
plain error. State v. Keely, 4th Dist. Washington No. 11CA5, 2012Ohio-3564, ¶ 28. "Notice of Crim.R. 52(B) plain error must be
taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Id., citing
State v. Rohrbaugh, 126 Ohio St. 3d 421, 2010-Ohio-3286, 934
N.E.2d 920, ¶ 16; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus. "To find plain error, we
must be able to say that, but for the alleged error, the outcome of
trial clearly would have been otherwise." Id., citing State v.
McCausland, 124 Ohio St. 3d 8, 2009-Ohio-5933, 918 N.E.2d 507,
¶ 15; State v. Braden, 98 Ohio St. 3d 354, 2003-Ohio-1325, 785
N.E.2d 439, ¶ 50.
[*P23] The Sixth Amendment to the United States Constitution
provides, "[i]n all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses against him."
Likewise, Section 10, Article I of the Ohio Constitution provides,
"[i]n any trial, in any court, the party accused shall be allowed * *
* to meet the witnesses face to face." The Supreme Court of the
United States has held that evidence that is "testimonial hearsay"
offends a defendant's Sixth Amendment right to confrontation and
is not admissible. Crawford v. Washington, 541 U.S. 36, 51, 68,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also State v. Kelly,
179 Ohio App.3d 666, 2008-Ohio-6598, 903 N.E.2d 365, ¶ 12 (7th
Dist.) ("Federal and state appellate courts examining this holding
[Crawford] have explained that it only deals with hearsay; it does
not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted. When statements are
offered to show context, they are not being offered for the truth of
the matter asserted and, thus, do not violate Crawford." (Citations
[*P24] There is no dispute in this case that the statements at issue
were testimonial. Thus, the only issue is whether the statements
constitute hearsay. Hearsay is, "a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." Evid.R. 801(C).
"To constitute hearsay, two elements are needed. First, there must
be an out-of-court statement. Second, the statement must be
offered to prove the truth of the matter asserted. If either element is
not present, the statement is not 'hearsay.'" State v. Maurer, 15
Ohio St.3d 239, 262, 15 Ohio B. 379, 473 N.E.2d 768 (1984).
[*P25] Recently, the Supreme Court of Ohio clarified that the
Confrontation Clause "'does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.'" State v. Ricks, 136 Ohio St. 3d 356, 2013-Ohio3712, 995 N.E.2d 1181, ¶ 18, quoting Crawford at 59, 124 S.Ct.
1354, 158 L.Ed.2d 177, fn. 9. The Court expounded that
extrajudicial statements made by out-of-court declarants offered to
explain the subsequent investigative conduct of law enforcement is
generally admissible, because the statements are not offered to
prove the truth of the matter asserted. Id. at ¶ 20, citing State v.
Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). The
Court did, however, recognize that the admission of out-of-court
statements to explain officer conduct in an investigation carries
with it the potential for abuse, and thus established certain
conditions that must be met prior to admitting such statements.
Specifically, the Court held that:
[I]n order for testimony offered to explain police conduct
to be admissible as nonhearsay, the conduct to be
explained should be relevant, equivocal, and
contemporaneous with the statements; the probative value
of statements must not be substantially outweighed by the
danger of unfair prejudice; and the statements cannot
connect the accused with the crime charged.
Id. at ¶ 27.
[*P26] Applying the Ricks' [sic] test to the case sub judice, we
conclude that the statements meet the first part of the test. First, the
fact that the statements explain why Sergeant Justice began an
investigation of appellant is relevant. Second, the conduct was
equivocal; that is, without the statements it would be unclear why
police had set up the controlled buys in the first place. Finally, the
police's [sic] investigation of appellant was contemporaneous with
the confidential informant's statements.
[*P27] Moving to the second part of the test, however, we
conclude that even though the statements explain police conduct,
they are also highly prejudicial and tie the appellant to the crime.
The out-of-court statements definitively label appellant as a drug
trafficker, the same crime that appellant was charged with in five
of the six counts of the indictment. Thus, the testimony encouraged
the jury, intentionally or not, to misuse the content of the out-ofcourt statements for its truth. That is, the jury could have
interpreted the confidential informant's statement that "they could
buy cocaine off of Barry Cave" as a statement tying appellant to
the charged offenses, rather than as evidence to explain why the
police had begun an investigation of appellant.
[*P28] Accordingly, we conclude that Sergeant Justice's testimony
relating the out-of-court statements of the confidential informant
constituted hearsay. The statements were offered to prove the truth
of the matter asserted rather than to explain police conduct. And
because the statements were testimonial, the admission of the
statements violated appellant's rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution.
[*P29] Nevertheless, because we are conducting a plain error
review, we must next determine whether the admission of the
statements clearly affected the outcome of trial.
[*P30] In this case, we determine that the outcome of the trial
would not have been different absent evidence of the informant's
statements. Particularly damaging to appellant was the recordings
and testimony concerning the controlled buys. Some of the
recordings clearly show appellant handling and exchanging drugs
for money. This evidence, coupled with the evidence obtained
during execution of the search warrant was more than sufficient to
support the jury's verdict. Accordingly, we overrule appellant's
second assignment of error.
State v. Cave, supra.
Respondent does not assert Cave failed to exhaust available state court remedies or that
he procedurally defaulted this claim by failing to fairly present it as a federal constitutional claim
to the state courts. This Court finds there was a fair presentation of the Confrontation Clause
claim and Cave exhausted the claim by appealing to the Ohio Supreme Court.
However, Respondent’s procedural default defense to this Ground for Relief is well
taken. The procedural default doctrine in habeas corpus is described by the Supreme Court as
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). “[A]bsent cause and prejudice, ‘a
federal habeas petitioner who fails to comply with a state’s rules of procedure waives his right to
federal habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting
Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); 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.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas
petitioner can overcome a procedural default by showing cause for the default and prejudice
from the asserted error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Applying the Maupin test to the First Ground for Relief, the Court finds that Ohio does
have an applicable procedural rule requiring contemporaneous objection to trial court error.
State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason,
82 Ohio St. 3d 144, 162 (1998).
Second, the Fourth District did apply that rule to Cave’s case, finding that his attorney
failed to make a contemporaneous objection. While it then proceeded to analyze the substance
of Cave’s Confrontation Clause claim, it did so only under a plain error theory of review. An
Ohio state appellate court’s review for plain error is enforcement, not waiver, of a procedural
default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d
478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v.
Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);
Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th
Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason
v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Third, Ohio’s contemporaneous objection rule is an adequate and independent state
ground of decision. Wogenstahl, supra, at 334,citing Keith v. Mitchell, 455 F.3d 662, 673 (6th
Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d
517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley,supra
at 387; Mason v. Mitchell, supra at 635, citing Hinkle, supra at 244; Scott v. Mitchell, 209 F.3d
854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v.
Walker, supra at 557; Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).
Fourth, Cave has not shown or even argued with respect to Ground One any cause and
prejudice or actual innocence to excuse his procedural default.
Because the Confrontation Clause claim was procedurally defaulted by failure to make
contemporaneous objection, Ground One should be dismissed.
Ground Two: Insufficient Evidence
In his Second Ground for Relief, Petitioner asserts there was insufficient evidence to
convict him of trafficking cocaine.
Respondent asserts this Ground for Relief is also procedurally defaulted because,
although it was raised on direct appeal to the Fourth District, Mr. Cave did not include it in his
appeal to the Ohio Supreme Court. Cave admits this is true but claims it is because “he was
erroneously informed that he cannot raise any error in the Ohio Supreme Court that he did not
possess documentary evidence to support.” (Reply, ECF No. 11, PageID 371.) However,
ignorance of the law will not excuse a procedural default. Allen v. Yukins, 366 F.3d 396, 403 (6th
Cave also asks this Court to take judicial notice of State v. Gonzales, 150 Ohio St.3d 261
(2016). Judicial notice is not required for this Court to consider a published decision of the Ohio
Supreme Court, but in doing so, the Court notes that Gonzales was subsequently reversed on
reconsideration, State v. Gonzales, 150 Ohio St. 3d 276 (2017).
Ground Two should be dismissed as procedurally defaulted.
Ground Three: Ineffective Assistance of Counsel
In his Third Ground for Relief, Mr. Cave asserts his trial counsel provided ineffective
assistance when he (1) failed to object to the hearsay from the confidential informant (Sub-claim
A) and (2) failed to object to the omission of the statutory reference from the jury instructions
(Sub-claim B). He further claims his appellate attorney provided ineffective assistance when he
failed to raise as an assignment of error the insufficiency of the evidence to prove trafficking of
cocaine in excess of 100 grams (Sub-claim C).
The governing standard for ineffective assistance of trial counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
Respondent concedes this Sub-claim is preserved for merits review, but asserts it is
without merit on the basis of the Fourth District’s contrary decision. Cave raised this Sub-claim
as his Third Assignment of Error on direct appeal and the Fourth District decided it as follows:
C. Assignment of Error III
[*P31] In his third assignment of error, appellant contends that he
received ineffective assistance of counsel from his trial attorney
because the attorney failed to object to the admittance of
testimonial hearsay which violated appellant's constitutional rights.
[*P32] Criminal defendants have a right to counsel, including a
right to the effective assistance from counsel. McMann v.
Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008Ohio-1366, ¶ 21. To establish constitutionally ineffective
assistance of counsel, a criminal defendant must show (1) that his
counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense and deprived him of a fair
trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Issa, 2001-Ohio-1290, 93 Ohio
St.3d 49, 67, 752 N.E 2d 904 (2001); State v. Goff, 82 Ohio St.3d
123, 139, 1998 Ohio 369, 694 N.E.2d 916 (1998). "In order to
show deficient performance, the defendant must prove that
counsel's performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a
reasonable probability that, but for counsel's errors, the result of
the proceeding would have been different." State v. Conway, 109
Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. "Failure
to establish either element is fatal to the claim." State v. Jones, 4th
Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
[*P33] "When considering whether trial counsel's representation
amounts to deficient performance, 'a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.'" State v. Walters, 4th Dist.
Washington Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 23,
quoting Strickland at 689. "Thus, 'the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.'" Id., quoting Strickland
at 689. "'A properly licensed attorney is presumed to execute his
duties in an ethical and competent manner.'" Id., quoting State v.
Taylor, 4th Dist. Washington No. 07CA1, 2008-Ohio-482, ¶ 10.
"Therefore, a defendant bears the burden to show ineffectiveness
by demonstrating that counsel's errors were so serious that he or
she failed to function as the counsel guaranteed by the Sixth
[*P34] Appellant's argument that his counsel was ineffective is
predicated on counsel's failure to object to the admission of the
confidential informant's statements as testimonial hearsay. Since
we have concluded that the outcome of the trial would not have
been different even absent evidence of the informant's statements,
this argument is without merit. Accordingly, appellant's third
assignment of error is overruled.
State v. Cave, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 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).
Cave argues this decision is not entitled to deference because “the Ohio courts did not
actually apply any federal case law to Cave’s properly raised ineffective assistance of counsel
claim. . . .” (Reply, ECF No. 11, PageID 374.) On the contrary, the Fourth District cited the
governing case, Strickland, as well as Ohio case law applying the Strickland standard. The
Fourth District’s determination of lack of prejudice is also reasonable, given the large amount of
additional evidence proving Petitioner’s drug trafficking activities.
Ineffective Assistance of Trial Counsel for Failure to Object to Jury
In his Sub-claim B, Petitioner asserts his trial attorney provided ineffective assistance of
trial counsel when he failed to object to the omission of a reference to an applicable statutory
section in the jury instructions.
Respondent misconstrues this Sub-claim as being directed to ineffective assistance of
appellate counsel, but it is plainly directed toward the trial attorney’s performance. However,
this Sub-claim is procedurally defaulted because it was never raised in the state courts at all.
Sub-Claim C: Ineffective Assistance of Appellate Counsel
In his Sub-Claim C, Cave asserts his appellate counsel was ineffective for failure to raise
as an assignment of error that there was insufficient evidence to show he trafficked more than
100 grams of cocaine. The Strickland standard applies to ineffective assistance of appellate
counsel claims as well as to trial attorney claims.
Respondent asserts this Sub-Claim is procedurally defaulted because it was not timely
raised in the Fourth District. Filing an application under Ohio R. App. 26(B) is the sole method
for raising a claim of ineffective assistance of appellate counsel. State v. Murnahan, 63 Ohio St.
3d 60 (1992). Rule 26(B) applications must be filed within ninety days of judgment in the Court
of Appeals unless good cause is shown for filing later. Cave filed his Application June 24, 2016,
which was far more than ninety days after judgment and the Fourth District found he had not
shown good cause. State v. Cave, Case No. 13CA3575 (4th Dist. July 29, 2016)(unreported;
copy at State Court Record, ECF No. 7, PageID 134-35).
The timeliness rule for filing a 26(B) application is an adequate and independent state
ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008); Scuba v Brigano, 527 F.3d
479, 488 (6th Cir. 2007); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets, 594
F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th Cir. 2009).
Cave has not argued any cause and prejudice to excuse his untimely filing of his 26(B)
Application. Therefore Sub-Claim C asserting ineffective assistance of appellate counsel is
Based on the foregoing analysis, it is respectfully recommended that the Petition herein
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.
December 7, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by 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,
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