Lawrence v. Warden, Marion Correctional Institution

Filing 17

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a ce rtificate 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 9/6/2023. Signed by Magistrate Judge Michael R. Merz on 8/23/2023. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

- vs -

Case No. 1:22-cv-359
District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz

WARDEN, Marion Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Dustin Lawrence pursuant to 28
U.S.C. § 2254, is before the Court for decision on the merits. Relevant pleadings are the Petition
(ECF No. 1), the State Court Record (ECF No. 9), the Return of Writ (ECF No. 10), and
Petitioner’s Reply (ECF No. 15).

Litigation History

On October 31, 2016, a Butler County Grand Jury indicted Lawrence on one count of gross
sexual imposition (Count One) in violation of Ohio Revised Code § 2907.01(A)(1), five counts of rape
(Counts Two, Three, Four, Five, and Six) in violation of Ohio Revised Code § 2907.02(A)(2), one

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count of kidnapping (Count Seven) in violation of Ohio Revised Code § 2901.05(A)(4), and one count
of domestic violence (Count Eight) in violation of Ohio Revised Code § 2919.25(A)(Indictment, State
Court Record ECF No. 9, Ex. 1). A trial jury found him guilty on all counts. Id. at Ex. 2. He was then
sentenced to an aggregate term of imprisonment of thirty-three years. Id. at Ex. 3.
New appointed appellate counsel filed an Anders Brief and moved to withdraw. Lawrence
filed a pro se brief to which the State responded. In the meantime Lawrence had filed a pro se petition
for post-conviction relief in response to which the trial court agreed to re-sentencing. Eventually the
court of appeals remanded the case to allow re-sentencing.
On March 13, 2019, Lawrence was re-sentenced to an aggregate twenty-seven years
imprisonment, the sentence he is now serving and from which he seeks habeas relief (Sentencing Entry,
State Court Record, ECF No. 9, Ex. 48). After appeals were consolidated, the Twelfth District Court
of Appeals rendered judgment on four assignments of error which parallel Lawrence’s grounds for
relief in this case. State v. Lawrence, 2020-Ohio-855 (Ohio App. 12th Dist. Mar. 9, 2020). The Ohio
Supreme Court declined to exercise appellate jurisdiction. State v. Lawrence, 161 Ohio St. 3d 1420
(2021).
On January 21, 2022, Lawrence field a pro se Application to Reopen his direct appeal under
Ohio R. App. P. 26(B) to litigate a claim of ineffective assistance of appellate counsel for failure to
raise an insufficiency of the evidence assignment of error (Application, State Court Record, ECF No.
9, Ex. 64). The Twelfth District denied the Application as untimely and without merit. Id. at Ex. 70.
The Supreme Court of Ohio again declined to exercise jurisdiction. State v. Lawrence, 141 Ohio St. 3d
1421 (2021).
Lawrence then filed his Petition in this case, raising the following grounds for relief:

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Ground Five: The State of Ohio Violated the Petitioner United
States Constitutional Rights to Due Process Amendment 5, 6 and
14.
Supporting Facts: The trial court failed to disclose its potential bias
against the petitioner in violation of Ohio code of judicial conduct
lead directly to petitioner conviction in contravention to his fifth
amendment right to due process of law.
Ground Two: State of Ohio violated the petitioner United States
constitutional rights to due process of law amendment, 5, 6, and 14.
Supporting Facts: The petitioner was deprived of his right to a trial
before an impartial judge in violation of the petitioner right to due
process of law as guaranteed by the 14th amendment.
Ground Three: State of Ohio violated the petitioner United States
constitutional right to due process of law amendment, 5, 6 and 14.
Supporting Facts: Petitioner conviction against the manifest
weight of the evidence.
Ground Four: State of Ohio violated the Petitioner United States
Constitutional rights due process of law amendment, 5 6 and 14.
Supporting Facts: The trial court place the petitioner twice in
jeopardy by imposing consecutive sentences violation of the
petitioner United States constitutional rights due process of law.
(Petition, ECF No. 1).

Analysis
Ground One: Failure to Timely Disclose Potential Bias
In his First Ground for Relief, Lawrence claims the trial judge’s failure to disclose his
potential bias in the manner required by the Ohio Code of Judicial Conduct led to his conviction
in violation of the Due Process Clause of the Fourteenth Amendment.
Respondent asserts this Ground for Relief is barred by Lawrence’s procedural default in
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failing to present it to the Ohio courts in his petition for post-conviction relief under Ohio Revised
Code § 2953.21.
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 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.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
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instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521, 527(2017)).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), 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. 2001).
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
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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).
Lawrence raised his First Ground for Relief as his First Assignment of Error on appeal.
The Twelfth District decided the claim as follows:
{¶ 1} Appellant, Dustin Lawrence (“Lawrence”), appeals from his
convictions and sentence in the Butler County Court of Common
Pleas for rape, domestic violence, kidnapping, and gross sexual
imposition.
{¶ 2} Following allegations of sexual abuse by S.K., the minor
daughter of Lawrence's girlfriend, Lawrence was indicted on five
counts of rape, and single counts of domestic violence, kidnapping,
and gross sexual imposition. The charges arose from allegations that
between March 15 and 16, 2016 Lawrence orally and vaginally
raped S.K. in her home and committed domestic violence against
her mother (“Mother”). S.K. was 16 years old at the time of the
alleged rapes.
{¶ 3} A three-day jury trial commenced in March 2017. At trial, the
state presented testimony of eight witnesses, including S.K., her
father (“Father”), her friend, a SANE nurse, a BCI forensic scientist,
a BCI forensic scientist in the DNA field, a Hamilton police
detective, and Mother. At the close of the state's case in chief, the
trial court denied Lawrence's motion for acquittal pursuant to
Crim.R. 29. Lawrence testified in his defense.
{¶ 4} The jury returned guilty verdicts on all counts. On May 3,
2017, the trial court sentenced Lawrence to 18 months in prison for
the gross sexual imposition conviction (Count 1), 11 years in prison
for three of the rape convictions (Counts 2, 3, and 4), and 18 months
in prison for the domestic violence conviction (Count 8). The court
ordered Count 2 to be served concurrently with Count 1; Counts 3
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and 4 to be served consecutively to Count 2 and to each other; and
Count 8 to be served concurrently with Count 4. The remaining
counts were merged for sentencing purposes. In total, the trial court
sentenced Lawrence to an aggregate prison term of 33 years.
{¶ 5} Lawrence filed a direct appeal and was appointed
counsel.[footnote omitted] In August 2018, while his direct appeal
was pending with this court, Lawrence filed a petition for
postconviction relief (“PCR”) arguing his sentence was in violation
of due process because it was based upon inaccurate information in
the presentence investigative report (“PSI report”), and that he was
denied the effective assistance of counsel. After review, the trial
court found merit to the sentencing argument, but denied the
ineffective assistance of counsel claim. Because the trial court found
merit to the sentencing argument, this court remanded the direct
appeal. [footnote omitted] This court later affirmed the denial of
Lawrence's PCR ineffective assistance of counsel claim. State v.
Lawrence, 12th Dist. Butler No. CA2018-11-208, 2019-Ohio-2788,
¶ 23.
{¶ 6} Thereafter, the trial court held a meeting in chambers to
discuss Lawrence's sentencing arguments in the PCR. Shortly after
the meeting, the trial judge entered an entry of recusal, which
explained that “a family member of the Court had been the victim
of a similar crime which may have impacted the Court's original
sentencing determination.” The case was then reassigned to a new
judge.
{¶ 7} After the case was reassigned, the parties stipulated that
Lawrence was entitled to a new sentencing hearing because the trial
court relied upon inaccurate information in the PSI report when
determining Lawrence's sentence. As a result, the trial court held a
resentencing hearing on March 13, 2019. At the hearing, the trial
court granted relief on the petition's sentencing claim, vacated
Lawrence's sentence, and resentenced Lawrence based on a
corrected PSI report. In ordering Lawrence's new sentence, the trial
court entered 9-year prison terms for Counts 2, 3, and 4. In all other
respects, Lawrence's sentence remained the same. As a result, the
trial court sentenced Lawrence to an aggregate prison term of 27
years. The case was then returned to this court.
{¶ 8} In this appeal, Lawrence raises four assignments of error for
our review.
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{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED BY FAILING TO
DISCLOSE POTENTIAL BIAS AGAINST APPELLANT AT
THE EARLIEST OPPORTUNITY.
{¶ 11} Assignment of Error No. 2:
{¶ 12} APPELLANT WAS DEPRIVED OF HIS RIGHT TO A
TRIAL BEFORE AN IMPARTIAL JUDGE, IN VIOLATION OF
HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED
BY THE FIFTH AND FOURTEENTH AMENDMENTS.
{¶ 13} In his first and second assignments of error Lawrence argues
that because the trial judge failed to disclose his potential bias at the
earliest opportunity, and failed to recuse himself before the trial
began, Lawrence was deprived of his right to a trial before an
impartial judge. As such, Lawrence contends he is entitled to a new
trial before an unbiased judge.
{¶ 14} Lawrence's judicial bias claims stem from statements made
in chambers by the trial judge on October 24, 2018. According to an
affidavit executed by Lawrence's counsel on November 1, 2018, the
trial judge “disclosed that he had been thinking about Mr.
Lawrence's sentence for a long time. He was happy to have a chance
to revisit the sentence.” According to the affidavit, the judge's
daughter had been the victim of a similar crime when she was
similar in age to S.K. Considering his daughter's situation, the judge
“was afraid that he had allowed the situation with his daughter to
affect his sentence in Mr. Lawrence's case, particularly as it related
to the consecutive nature of the sentences.” “At one point, [the
judge] said he was afraid that he was biased at sentencing, not so
much against Mr. Lawrence himself, but because of the nature of the
crime and similarity of his daughter's situation.” Due to the judge's
statements, the state recommended the judge recuse himself from
Lawrence's case. A few days later, on November 2, 2018, the trial
judge filed an entry of recusal. Lawrence filed the executed affidavit
with the trial court on March 15, 2019.
{¶ 15} Based upon the judge's statements of potential bias,
Lawrence concludes that “if [the judge's] ability to be fair and
impartial at sentencing was questionable, there exists a strong
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possibility, if not a probability, that his ability to be fair and
impartial throughout the proceedings was impaired.” After
reviewing the record, we find Lawrence's claim fails for two
reasons. First, we find Lawrence has waived his judicial bias claims,
as he failed to amend his PCR petition or otherwise raise the issue
of the judge's personal bias in the PCR proceedings, despite learning
of the alleged bias when his petition remained pending with the trial
court. In the alternative, even if his claims are not waived, Lawrence
has failed to present any evidence that the judge was biased at
Lawrence's trial.
{¶ 16} A PCR petition in Ohio is a statutorily created remedy set
forth in R.C. 2953.21 and designed to provide an avenue to correct
a violation of a defendant's constitutional rights in his criminal trial.
It is a means by which the petitioner may allow the court to reach
constitutional issues that would otherwise be impossible to review
because the evidence supporting those issues is not contained in the
record of the petitioner's criminal conviction. State v. Murphy, 10th
Dist. Franklin No. 00AP233, 2000 WL 1877526, *2, 2000 Ohio
App. LEXIS 6129, *2 (Dec. 26, 2000).
{¶ 17} Pursuant to R.C. 2953.21(G), “[a]t any time before [an]
answer or motion is filed, [a] petitioner may amend the petition with
or without leave or prejudice to the proceedings. The petitioner may
amend the petition with leave of court at any time” thereafter. R.C.
2953.21(A)(4) requires a petitioner to “state in the original or
amended petition filed under division (A) of this section all grounds
for relief claimed by the petitioner.” Except as provided in R.C.
2953.23, inapplicable here, “any ground for relief that is not so
stated in the petition is waived.” Id.
{¶ 18} Here, Lawrence timely filed a PCR petition alleging his
sentence was based upon inaccurate information and that his trial
counsel was ineffective. That petition was granted with regard to
Lawrence's sentencing claim. While the petition remained pending
in the trial court, Lawrence learned of the trial judge's concern of
bias and the affidavit detailing the judge's concern was prepared and
executed. Despite his pending petition, Lawrence did not attempt to
amend his petition to include the judicial bias arguments he now
raises on appeal. Instead, Lawrence postponed raising the issue, and
filing the affidavit, until after he was granted relief on the remaining
claim of his PCR petition. At that time, the PCR petition had been
disposed of by the trial court, and the case was transferred back to
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this court. The claim of bias, supported by evidence dehors the
record, is proper for a PCR petition. Thus, pursuant to R.C.
2953.21(A)(4), Lawrence waived the grounds he asserts on appeal
when he failed to amend his petition in the trial court to include
them.
{¶ 19} As such, because Lawrence now raises additional claims that
were not raised in his PCR petition or the PCR proceedings, we find
he waived them. See State v. Barb, 8th Dist. Cuyahoga No. 94054,
2010-Ohio-5239, ¶ 25, citing State v. McKee, 9th Dist. Lorain No.
96CA006599, 1997 WL 625476, *3, 1997 Ohio App. LEXIS 4433,
*9 (Oct. 1, 1997) (failure to raise issue in petition for postconviction
relief results in a waiver of the right to assert the issue on appeal).
State v. Lawrence, 2020-Ohio-855 (Ohio App. 12th Dist. Mar. 9, 1990).
Applying the Maupin criteria, the Magistrate Judge notes first that Ohio has a relevant
procedural rule, to wit, that claims that a conviction is unconstitutional and that are based on
evidence outside the direct appeal record must be brought by way of a petition for post-conviction
relief under Ohio Revised Code § 2953.21. The Twelfth District enforced this rule against
Lawrence by refusing to consider his first and second assignments of error because he had not
included those claims in his post-conviction petition when he could have added them to that
petition before it was decided.
The adequacy of the state ground is determined by examining the State’s legitimate
interests in the procedural rule in light of the federal interest in considering federal claims. Maupin
v. Smith, 785 F.2d 135 (6th Cir. 1986), citing Henry v. Mississippi, 379 U.S. 443, 446-48 (1965).
Ohio provides an adequate remedy for raising federal constitutional claims in addition to those
shown by the record on appeal by providing the post-conviction process which channels these
claims in the first instance to trial courts best suited for developing a factual record, as opposed to
permitting them to be raised in the first instance on appeal, as Lawrence attempted to do. The rule
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is independent of federal law: § 2953.21 does not discriminate against federal claims.
Rather than offering excusing cause and prejudice, Lawrence argues he can avoid the
procedural default:
The respondent argument is misplaced and not supported by the
state court records. First of all, the issues raised in the postconviction
petition was resolve[d] when the state trial court granted the petition
in part, and resentence the petitioner to a new prison term. Under
federal law any change to the original sentencing judgment entry of
conviction is consider a new judgment where a appeal may be taken
to the state court of appeals. Changle v Kelly, 2016 U.S. App. Lexis
17319 [Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016)], In Re
Stansell, 20l6 U.S.App.Lexis 12141 [In re Stansell, 828 F.3d 412
(6th Cir. 2016)].
Therefore, grounds (l), and (2) was properly before the state court
of appeals.
Traverse, ECF No. 15, PageID 1810. Lawrence completely misunderstands the holdings in
Crangle and Stansell. Both are binding published precedent applicable in this Court in habeas
corpus cases, but their holding is that entry of an amended judgment of conviction in state court
re-sets the statute of limitations date under 28 U.S.C. § 2244(d). These cases do not purport to
control which issues an Ohio court can consider on appeal.
Lawrence also claims he presented these same two claims to the Ohio Supreme Court on
appeal from the Twelfth District’s decision. That is correct and in doing so he properly exhausted
state court review of these claims. But presenting claims to the Ohio Supreme Court which had
been found defaulted by the court of appeals does not cure the prior default, it just avoid a new
default which would have happened if those claims had not been included in the supreme court
appeal.

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Ground Two: Trial before a Biased Judge

In his Second Ground for Relief, Lawrence claims his trial judge was biased against him.
This Ground for Relief is procedurally defaulted on the same basis as Ground One.

Ground Three: Conviction Against the Manifest Weight of the Evidence

In his Third Ground for Relief, Lawrence asserts he was convicted against the manifest
weight of the evidence presented at trial. A weight of the evidence claim is not a federal
constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). 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). "[I]t is not the province of a federal
habeas court to reexamine state court determinations on state law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf
v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248
(6th Cir. Apr. 23, 2018)(Thapar, J. concurring).
Lawrence argues his Third Ground for Relief as if it were a sufficiency of the evidence
claim. It is not. In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Supreme Court of Ohio
reaffirmed the important distinction between appellate review for insufficiency of the evidence
and review on the claim that the conviction is against the manifest weight of the evidence.
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held:
In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31,
45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560. Although a court of appeals may determine that a judgment of
a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388389, 124 N.E.2d at 149. Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a
trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.
at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d
717, 720-721 ("The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.").
78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited
approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest
weight of the evidence claim:
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In considering the claim that the conviction was against the manifest
weight of the evidence, the test is much broader. The court,
reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. …
Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. The consequences of the distinction are important
for a criminal defendant. The State may retry a case reversed on the manifest weight of the
evidence; retrial of a conviction reversed for insufficiency of the evidence is barred by the Double
Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 41 (1982).

Ground Four: Violation of the Protection Against Double Jeopardy

In his Fourth Ground for Relief Lawrence claims the State of Ohio placed him twice in
jeopardy by imposing consecutive sentences.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.

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Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
Lawrence seems to be claiming that he is being punished multiple times for the same
offense, but he was convicted of five separate counts of rape. They are all under the same statute,
but that does not make the convictions double jeopardy violations. If a man rapes a woman five
times, the fact that he is charged with all five under the same statute does not implicate the Double
Jeopardy Clause, even if the five happened in a relatively short period of time, to wit “March 15,
2016, through March 16, 2016.” (Indictment, State Court Record, ECF No. 9, Ex. 1). The Double
Jeopardy Clause does not address consecutive sentencing. Oregon v. Ice, 555 U.S. 160 (2009).
Lawrence’s Fourth Ground for Relief is without merit and should be dismissed on that
basis.

Conclusion

On the basis of the foregoing analysis, the Magistrate Judge respectfully recommends that
the Petition herein 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.

August 23, 2023.

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Case: 1:22-cv-00359-MWM-MRM Doc #: 17 Filed: 08/23/23 Page: 16 of 16 PAGEID #: 1857

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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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.
s/ Michael R. Merz
United States Magistrate Judge

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