Smith v. Warden, London Correctional Institute

Filing 51

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certifica te of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/26/2024. Signed by Magistrate Judge Michael R. Merz on 3/12/2024. (kpf)

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

:

- vs -

Case No. 1:19-cv-298
District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz

WARDEN, London Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Maurice Smith pursuant to 28 U.S.C. § 2254
with the assistance of counsel, is before the Court for decision on the merits. Relevant pleadings
are the Petition (ECF No. 1), the Supplemental Petition (ECF No. 45), the State Court Record
(ECF Nos. 12 & 47), the Return of Writ (ECF No. 13), the Supplemental Return of Writ, (ECF
No. 48), and Petitioner’s Reply (ECF No. 49).

Litigation History

On December 8, 2015, a Hamilton County Grand Jury indicted Smith on one count of burglary,
one count of trafficking in cocaine, one count of possession of cocaine, one count of possession of
marihuana, and one count of tampering with evidence (Indictment, State Court Record, ECF No. 12,
Ex. 1). A jury found Smith guilty on all counts. Id. at Ex. 15. He then filed a pro se motion for new

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trial which the trial court denied. Id. at Exs. 16 and 17. He was thereafter sentenced to a sixteen-year
term of imprisonment. Id. at Ex. 18. Represented by counsel, he appealed to the Ohio First District
Court of Appeals which affirmed the conviction but vacated and remanded the sentence in part. Id. at
Ex. 22. Smith appealed pro se to the Ohio Supreme Court which declined jurisdiction. Id. at Ex. 26.

Smith next filed pro se a petition for post-conviction relief under Ohio Revised Code §
2953.21. Id. at Ex. 27. The trial court denied the petition on the basis of res judicata and failure
to file any evidence not already in the record. Id. at Ex. 32. Smith appealed pro se to the First
District Court of Appeals, but that court affirmed (Supplemental State Court Record, ECF No. 47,
Ex. 62). The Ohio Supreme Court denied leave to file a delayed appeal. Id. at Ex. 68.
On April 13, 2021, Smith filed a motion to vacate judgment for lack of subject matter
jurisdiction. Id. at Ex. 71. The Common Pleas Court denied that motion and Smith appealed. Id.
at Exs. 72 and 73. On January 5, 2022, the First District affirmed. Id. at Ex. 77. The Supplemental
State Court Record does not show any timely appeal to the Ohio Supreme Court.
On December 2, 2021, while the prior appeal was pending, Smith filed a Motion to Vacate
Void Sentence. Id. at Ex. 80. Although Smith expressly asserted this was not a second postconviction petition (PageID 1669), the State moved to dismiss it as a successive post-conviction
petition. Id. at Ex. 81. On April 1, 2022, the Common Pleas Court denied a number of motions
Smith had filed, including this one. Id. at Ex. 82. On appeal the First District upheld that denial,
having accepted the State’s characterization of the motion as a successive petition for postconviction relief under Ohio Revised Code § 2953.21, and held it was properly denied for lack of
jurisdiction. Id. at Ex. 88. The Ohio Supreme Court declined jurisdiction of a further appeal. Id.
at Ex. 91.
Represented by counsel who continues to represent him in this action, Smith then filed a
petition for writ of prohibition in the First District Court of Appeals, naming as respondents three
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judges of the Hamilton County Court of Common Pleas. Id. at Ex. 92. The appellate court
dismissed the writ. Id. at Ex. 95. Smith appealed and the Ohio Supreme Court affirmed. State, ex
rel. Smith v. Triggs, 2023-Ohio-3098 (2023).
Petitioner filed this case pro se on April 25, 2019 (ECF No. 1). On April 29, 2020, he filed
a request for stay because of a then-pending challenge to the constitutionality of his sentence (ECF
No. 25). Magistrate Judge Litkovitz recommended granting the stay, noting Smith had a pending
appeal in the First District challenging the constitutionality of his second resentencing which was
also the subject of his Sixth Ground for Relief in this case (Report, ECF No. 29). Applying the
standard adopted in Rhines v. Weber, 544 U.S. 269 (2005), Judge Litkovitz recommended this case
be stayed “so that petitioner may attempt to exhaust the sentencing claims in his pending appeal in the
Ohio Court of Appeals and, in the event of an adverse judgment, through a subsequent appeal to the
Ohio Supreme Court.” Id. at PageID 1411. There being no objections, District Judge McFarland
adopted that recommendation and stayed the case on October 23, 2020. ECF No. 30.
On September 27, 2022, now represented by counsel, Petitioner moved to reinstate the case.
ECF No. 36. Noting the lack of relevant detail, Magistrate Judge Litkovitz on December 15, 2022,
ordered Petitioner to supplement his motion to reinstate within fourteen days. ECF No. 40. Smith
responded that the appeal referred to in the Motion to Stay was final with the Ohio Supreme Court’s
declination of jurisdiction on March 16, 2021, and sought leave to supplement the Petition with a brief
in support. ECF No. 41. Judge Litkovitz recommended reinstating the case and allowing Petitioner
thirty days from reinstatement to supplement his Petition. ECF No. 43. On March 2, 2023, counsel
filed what he styled as a Supplement to the Petition. ECF No. 45. On the same day, Judge McFarland
granted reinstatement and ordered a supplement to the Petition (which had already been filed that day),
a supplemental return of writ and State Court Record, and a reply to the Supplemental Return. ECF
No. 46. Those documents have all been filed (ECF Nos. 47, 48, and 49), rendering the case ripe for

3

decision.

Analysis

The Petition pleads six Grounds for Relief:

Ground One: The evidence against the petitioner was insufficient to
sustain a finding of guilty by the jury and deprived [petitioner] of his
right to due process under Fifth and Fourteenth Amendments to the
United States Constitution.
Ground Two: Petitioner right to the effective assistance of counsel
resulting in a violation of his constitutional rights as guaranteed by the
Sixth Amendment to the United States Constitution.

Ground Three: The trial court denied the petitioner’s due process
by denying petitioner’s motion to appoint new counsel in violation
of petitioner’s due process rights as guaranteed by the 4th, 5th and
14th Amendments to the United States Constitution.
Ground Four: The trial [court] permitting the prosecutor to make
improper remarks to the jury during opening and closing argument
and introduce improper evidence to the jury, violating petitioner’s
due process rights to a fair trial.
Ground Five: The trial court denied petitioner’s motion to suppress
as a result denying petitioner’s due process rights and petitioner’s
constitutional right to be free from unreasonable searches and
seizures as guaranteed by the Fourth and Fourteenth Amendments
to the United States Constitution.
Ground Six: The trial court violated petitioner’s due process rights
in sentencing petitioner on allied offenses and consecutive
sentencing in violation of petitioner’s double jeopardy rights.
(Petition, ECF No. 1).
The Supplemental Petition pleads three grounds for relief:
Ground One: THE EVIDENCE AGAINST THE PETITIONER
WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILTY
4

BY THE JURY AND DEPRIVED APPELLANT OF HIS RIGHT
TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Ground Two: PETITIONER’S RIGHT TO THE EFFECTIVE
ASSISTENCE [sic] OF COUNSEL RESULTING IN A
VIOLATION OF HIS CONSTITUTIONAL RIGHTS AS
GUARANTEED BY THE SIXTH AMENDMEN TO THE
UNITED STATES CONSTITUTION.
Ground Three: THE TRIAL COURT DENIED PETITIONER’S
DUE PROCESS BY DENYING PETITIONER’S MOTION TO
APPOINT NEW COUNSEL IN VIOLATION OF PETITIONER’S
DUE PROCESS RIGHTS AS GUARANTEED BY THE 4TH, 5TH
AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
(ECF No. 45). Thus Grounds One, Two, and Three in the Supplemental Petition are merely slight
rewordings of the Grounds already pleaded. The Court will treat them as raising the same issues
as in the original Petition. Petitioner gives no indication of an intention to abandon Grounds Four,
Five, and Six and they will also be analyzed here.
Without pleading a separate ground for relief, Petitioner also raises in his Supplemental
Petition his claim that his sentence is invalid because the Hamilton County Court of Common
Pleas assigned the case to a different judge without following the proper protocol for such reassignment (Supplemental Petition, ECF No. 45, PageID 1457-61). This claim is just added to
the text under Ground Two, but it is certainly not a sub-claim of that Ground, which asserts
ineffective assistance of trial counsel.

Ground One: Insufficiency of the Evidence

In his First Ground for Relief, Smith claims he was convicted on insufficient evidence. He
raised this claim, along with a manifest weight of the evidence claim, as his Ninth Assignment of
5

Error on direct appeal and the First District decided it as follows:
{¶59} In his ninth assignment of error, Smith claims his convictions
for burglary, trafficking in cocaine, and tampering with evidence
were not supported by sufficient evidence and were against the
manifest weight of the evidence.
{¶60) In a challenge to the sufficiency of the evidence, the question
is whether, after viewing the evidence in the light most favorable to
the state, any rational trier of fact could have found all the essential
elements of the crime proved beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus. . . .
{¶ 61) First, Smith claims that state failed to prove that the occupants
of the home were "likely to be present" to support the burglary
conviction. Here, Brandon testified that that he lived in the
apartment, he had been there earlier but left to take a friend to work,
and it was very likely that he could have been home at the time of
the burglary. The jury was entitled to believe Brandon's testimony,
so Smith's conviction is not against the manifest weight of the
evidence and was supported by sufficient evidence.
{¶62) Next, he argues the state failed to prove the cocaine was
intended for sale or resale. Both officers testified that the amount of
cocaine was inconsistent with personal use and indicated trafficking.
Moyer testified that the cocaine was bulk packaged, typical
packaging for trafficking. Finally, Godbey testified that a personal
use amount is the size of a pea and costs $50. The amount that Smith
was transporting had a street value of a few thousand dollars. Both
officers testified based on their experience. Viewing this evidence
in a light most favorable to the state, we conclude that the state
proved the cocaine was intended for sale or resale.
{¶63) Finally, Smith claims the evidence was insufficient to prove
Smith intended to hinder an investigation because the bags
containing drugs either fell out of his pocket or were torn during the
struggle. Three witnesses, Pugh, Moyer, and Godbey, testified that
Smith threw a bag of cocaine and a bag of marijuana that spilled all
over the apartment. Godbey also testified that he saw Smith rip the
bag of cocaine and throw it across the room. He also saw Smith rip
the marijuana and disperse the marijuana around the apartment.
Moyer and Smith testified that they attempted to collect all of the
spilled drugs, and Godbey testified that they could not recover all of
it. All of this testimony was more than sufficient evidence to support
his tampering conviction.
6

{¶64) Therefore, we overrule Smith's ninth assignment of error.
State v. Smith, 2017-Ohio-8558 (Ohio App. 1st Dist. Nov. 15, 2017) (copy at State Court Record,
ECF No. 13, Ex. 22, PageID 227-28).
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question 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 . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
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convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits 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.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
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'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam).
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 (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). Deference is also due under 28 U.S.C. § 2254(d)(2)
unless the state court decision was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceedings.
In this case the First District Court of Appeals applied the correct federal standard which
has been imported into Ohio law by Jenks. That court’s decision is not an objectively unreasonable
application of Jackson: the court recites evidence from which a jury could reasonably infer that
Smith knew the controlled substances in question were in quantities and packaging intended for
distribution.
Smith’s First Ground for Relief should be dismissed on the merits.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Smith claims he received ineffective assistance of trial
counsel. Counsel in the Reply does not spell out what acts or omissions of counsel are alleged to
have been ineffective assistance, but instead notes that the Petition claims counsel was ineffective
9

in failing to object to the chain of custody of the drugs and admission of the 911 call and notes that
these claims were raised in Assignment of Error Six on direct appeal (Reply, ECF No. 49, PageID
2078).
Actually, Petitioner’s claim of ineffective assistance of trial counsel on direct appeal was
Assignment of Error Eight which reads: “Appellant was denied effective assistance of counsel in
violation of his constitutional rights thus prejudicing his right to a fair trial.” (Appellant’s Brief,
State Court Record, ECF No. 12, PageID 142). The First District decided this claim as follows:
{¶ 53} In his eighth assignment of error, Smith argues that he
received ineffective assistance of counsel. Most of his claims
concern the failure to object to evidence that we have already
concluded was admissible and the failure to object to the
prosecutor's statements that we have already concluded were proper.
Therefore, we do not find that those failures amounted to ineffective
assistance of counsel.
{¶ 54} His remaining arguments concern counsel's failure to adopt
Smith's pro se motions and the failure to conduct enough voir dire.
{¶ 55} To prevail on an ineffective-assistance-of-counsel claim,
Smith must show trial counsel's performance fell below an objective
standard of reasonableness and he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687–688, 693, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice,
Smith must establish that, but for counsel's errors, there is a
reasonable probability that the result of trial would have been
different. State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776
N.E.2d 79, ¶ 6. The failure to make an adequate showing on either
prong is fatal to an ineffective-assistance-of-counsel claim. See
Strickland at 697, 104 S.Ct. 2052.
{¶ 56} Because of the difficulties inherent in making the evaluation
of counsel's effectiveness after the fact, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance. Therefore, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id. at
689–690, 104 S.Ct. 2052.

10

{¶ 57} Counsel determined that the pro se motions had no merit and,
based on the record, that determination was sound trial strategy. The
record demonstrates that most of the questions counsel was prepared
to ask in voir dire had already been asked by the prosecutor, the
questions counsel did ask were relevant, and counsel made effective
use of his peremptory challenges. Moreover, counsel's conduct
during voir dire is presumed to be a matter of trial strategy. See State
v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶
206.
{¶ 58} Based on this record, Smith failed to demonstrate that
counsel was deficient. We also note that Smith has failed to explain
how counsel's decisions were deficient or resulted in any prejudice.
Therefore, we overrule his eighth assignment of error.
State v. Smith, supra.
The First District applied the controlling federal standard from Strickland. Petitioner has
not shown how the First District’s decision is an objectively unreasonable application of
Strickland. That precedent requires a habeas petitioner to who not only that counsel failed to do
something he or she could have done, but that the omission had a prejudicial effect on the outcome
of the case, which Smith has not done. Ground Two should be dismissed,

Ground Three: Denial of Due Process by Failure to Appoint New Counsel

In his Third Claim for Relief, Petitioner asserts the trial court denied him due process by
not granting his request to appoint a new attorney. He raised this as his Second Assignment of
Error on direct appeal and the First District decided it as follows:
¶ 27} In his second assignment of error, Smith argues that the trial
court erred by denying his request for new counsel. The decision
whether to appoint new counsel is within the sound discretion of the
trial court. See State v. Summerlin, 1st Dist. Hamilton No. C160539, 2017-Ohio-7625, 2017 WL 4083158, ¶ 9. An indigent
defendant must demonstrate good cause to warrant a substitution of

11

counsel. See State v. Bullock, 12th Dist. Clermont No. CA2005-04031, 2006-Ohio-598, 2006 WL 318655, ¶ 13.
{¶ 28} Here, Smith had drafted, but had never filed, a motion for
new counsel. When his appointed attorney brought the issue to the
court's attention, Smith did not state any reasons to support the
motion, and the trial court denied the motion. Later that day, counsel
again raised the issue to the visiting judge. When provided the
opportunity, Smith chose not to address the motion or put forth any
grounds for the request. Instead, he informed the court that he
wanted to address the motion for a fingerprint analysis and the
speedy-trial issue. Accordingly, there was no further discussion
regarding the appointment of new counsel.
{¶ 29} Because Smith failed to articulate a basis for the motion when
given two opportunities to do so, it cannot be said that Smith
demonstrated good cause to support the motion. Therefore, we find
no abuse of discretion, and overrule the second assignment of error.
State v. Smith, supra.
To the extent Smith is claiming that failure to replace counsel was an abuse of discretion,
that claim is not cognizable in habeas corpus. Abuse of discretion is not a denial of due process
Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Indigent criminal defendants have a constitutional right to the appointment of counsel.
Powell v. Alabama, 287 U.S. 45 (1932)(capital cases); Gideon v. Wainwright, 372 U.S. 335
(1963)(felony cases); Argersinger v. Hamlin, 407 U.S. 25 (1972)(misdemeanor cases where
imprisonment is a possibility). However, they do not have a right to appointed counsel of choice
or to change counsel at will and without reasons. Smith does not dispute the factual finding of the
First District that he gave no reasons and that finding is entitled to deference under 28 U.S.C. §
2254(d)(2) in the absence of clear and convincing evidence to the contrary. Smith offers none.
Ground for Relief Three should be denied.

12

Ground Four: Prosecutorial Misconduct

In his Fourth Ground for Relief, Smith claims he was denied a fair trial by prosecutorial
misconduct. He raised this claim as his Seventh Assignment of Error on direct appeal and the First
District decided it as follows:
{¶ 48} In his seventh assignment of error, Smith contends the
prosecutor committed misconduct by asking the officers about the
quantity of cocaine and calling Brandon as a rebuttal witness. As
previously discussed, the officers' testimony and the rebuttal
testimony were properly admitted. Smith further claims the
prosecutor's closing argument contained misstatements of fact and
law in describing the burglary element of “likely to be present” and
the trafficking element of “intended for sale or resale by the offender
or another person,” and the prosecutor improperly vouched for
Brandon. Smith concedes he failed to object to the remarks, so our
review is limited to plain error.
{¶ 49} Prosecutors are entitled to a certain degree of latitude during
closing argument. State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883
(1984). Closing arguments must be viewed in their entirety to
determine whether the disputed remarks were prejudicial. See State
v. Carter, 2017-Ohio-1328, 88 N.E.3d 513, ¶ 12 (1st Dist.).
Prosecutorial misconduct rises to the level of plain error only if it is
clear the defendant would not have been convicted in the absence of
the improper comments. Id.
{¶ 50} Having reviewed the prosecutor's closing argument, we find
the prosecutor's statements to be proper. Here, the prosecutor merely
referred to evidence contained in the record and asked the jury to
determine whether such evidence was credible. Moreover, the court
informed the jury that closing arguments are not evidence, and the
trial court properly instructed on the law to be applied.
{¶ 51} Even if the prosecutor's statements were improper, we find
that the outcome of the proceeding would not have been different
absent such statements. In light of the evidence presented at trial,
Smith would have been convicted in the absence of the prosecutor's
remarks.
{¶ 52} Having found that the prosecutor did not make any improper
remarks, we overrule Smith's seventh assignment of error.
13

State v. Smith, supra.
As the Court of Appeals found, Smith failed to object to the prosecutor’s allegedly
improper comments and they therefore reviewed the claimed error only for plain error. Ohio has
a relevant procedural rule requiring contemporaneous objection to error at trial that can still be
corrected. 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). The Sixth Circuit has repeatedly upheld that rule as an
adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334
(6th Cir. 2012), 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, 422 F.3d 379, 387 (6th Cir. 2005); Mason
v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.
2001); 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, 224 F.3d 542, 557 (6th Cir. 2000); 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).
Review for plain error is an enforcement of the relevant procedural rule, not a waiver of it.
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). Smith has offered no excusing cause and prejudice for this procedural default. Any
suggestion he might make that it is excused by the ineffective assistance of his counsel in not objecting
is sufficiently countered by the First District’s decision that the remarks were not improper.
Petitioner’s Fourth Ground for Relief should therefore be dismissed as procedurally defaulted.

14

Because the First District found the remarks were in fact proper and Smith has not shown this is
contrary to or an objectively unreasonable application of Supreme Court precedent on prosecutorial
misconduct, Ground Four should also be dismissed on the merits.

Ground Five: Failure to Suppress Results of Unconstitutional Search

In his Fifth Ground for Relief, Smith asserts his Fourth Amendment rights were violated when
the trial court filed to suppress the results of an unconstitutional search.

Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that
question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court
to determine whether state procedure in the abstract provides full and fair opportunity to litigate,
and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim
was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982).
Smith has failed to show that presentation of his Fourth Amendment claim was frustrated
by some failure of the state mechanism. His Fifth Ground for Relief should therefore be dismissed
as not cognizable in habeas corpus.

Ground Six: Violation of Double Jeopardy Rights

In his Sixth Ground for Relief, Smith asserts the trial court violated his Double Jeopardy
rights by sentencing him on allied offenses and by imposing consecutive sentences.
15

In his Tenth Assignment of Error on direct appeal, Smith argued that the trial court violated
Ohio Revised Code § 2941.25 by sentencing him for the allied offenses of possession of cocaine
and trafficking in cocaine. State v. Smith, supra, at ¶ 65. The State conceded the error and the
First District remanded the case to allow the State to elect between the two convictions. Smith
raised no other double jeopardy claims. Because this error was corrected, it no longer infects the
judgment of conviction, even assuming that possession of cocaine and trafficking in cocaine are
the same offense for Double Jeopardy analysis.
Regarding consecutive sentencing, the First District found the trial judge had complied
with Ohio law in making required findings to support that decision. State v. Smith, supra, at ¶ 67.
Given that finding, Smith’s Sixth Ground for Relief fails to state a claim upon which habeas corpus
relief can be granted. Oregon v. Ice, 555 U.S. 160 (2009). The Sixth Ground for Relief should
therefore be dismissed.

Supplemental Ground for Relief: Improper Assignment of Judges

In his supplemental Petition, Smith raises the claim that his case was improperly reassigned to a different judge without following proper Ohio procedure for such re-assignment.
As noted above, this claim is inserted under Ground Two, ineffective assistance of trial
counsel, although it does not purport to state anything an attorney did or did not do that was
deficient performance or prejudicial. Instead it notes how difficult it is for a layperson to navigate
Ohio post-conviction process. While the Magistrate Judge agrees, the appellate courts have held
that the right to appointed counsel and therefore the constitutional right to effective assistance of
counsel extends to a direct appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551,

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555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective assistance of counsel can excuse
procedural default only when it occurs in a proceeding where a defendant is constitutionally
entitled to counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where
there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins
v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d
708, 714 (N.D. Ohio 2002).
To the extent this claim is, without saying so, under some other constitutional provision, it
is both procedurally defaulted and without merit.
The reassignment actions complained of were evident on the face of the appellate record
but were not raised on direct appeal. When Smith raised them in applying for a writ of prohibition,
the Ohio Supreme Court squarely held that they could have been raised on direct appeal. Triggs,
supra, at ¶ 7. Ohio law requires that claims which can be raised on direct appeal be raised in that
forum or be barred in subsequent litigation by res judicata. State v. Perry, 10 Ohio St. 2d 175
(1967). The Perry rule is an adequate and independent state ground of decision. Durr v. Mitchell,
487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v.
Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust
v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp.
2d 899, 913 (S.D. Ohio 2001).
Not only did Smith fail to present this claim at all on direct appeal, he has not presented
here as a constitutional claim nor did he do so in Triggs. Federal habeas corpus is available only
to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1
(2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay
v. Florida, 463 U.S. 939 (1983). Smith has not even pleaded which constitutional provision he

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claims the reassignment violates, he has also failed to cite any United States Supreme Court
precedent which the Ohio courts unreasonably applied in denying this claim.

Smith’s

supplemental claim should therefore be denied.

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, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
March 12, 2024.
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. 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. 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.

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