Barron v. Warden, Madison Correctional Institution

Filing 50

DECISION AND ORDER - In obedience to the mandate the Court has considered Barron's Second Petition as a motion to amend and found it wanting in all respect under Fed.R.Civ.P. 15. The Second Petition 49 is therefore DENIED. Signed by Magistrate Judge Michael R. Merz on 3/12/2025. (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
DAVID BARRON,
Petitioner,

:

- vs -

Case No. 1:23-cv-591
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Madison Correctional
Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case, brought pro se by Petitioner David Barron, is before the Court on
remand from the United States Court of Appeals for the Sixth Circuit. In re David Barron, Case
No. 24-3734 (Order of Feb. 5, 2025)(copy at ECF No. 10 in Case No. 2:24-cv-3848 and at ECF
No. 48 in this case).
While this case was pending on a recommendation for dismissal (Report and
Recommendations, ECF No. 41), Petitioner filed a new habeas case under Case No. 2:24-cv-3848.
Understanding that to be a second or successive petition requiring approval for filing from the
circuit court, the undersigned transferred that case to the Sixth Circuit under In re Sims, 111 F.3d
45 (6th Cir. 1997), for its consideration under 28 U.S.C. § 2244(b)1.

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Upon receipt, the circuit court ordered Barron to file a corrected second or successive motion. He did so, but the court
never ruled on the merits of that corrected motion, but directed this Court to consider the original petition in Case No. 2:24-cv3848 as a motion to amend in this case. That is the document now before this Court rather than Barron’s Corrected Second or
Successive Motion. No further analysis is offered here of the claims proposed in that Corrected Motion because the circuit court
directed our attention instead to the original petition in Case No. 2:24-cv-3848.

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The circuit court determined no permission was necessary because this Court should have
treated the new petition under the new case number as a motion to amend the Petition in this case.
It held:
Accordingly, we DENY the motion for authorization to proceed
with a second or successive § 2254 petition as unnecessary. We
REMAND to the district court with instructions to consider the
second petition as a motion to amend Barron’s first petition. Citing
In re Stevenson, 889 F.3d 308, 309 (6th Cir. 2018) (“[A] subsequent
§ 2254 petition filed while the petitioner’s initial petition is still
pending should be construed as a motion to amend the initial petition
under Federal Rule of Civil Procedure 15.”).
In re: David Barron, 2025 U.S. App. LEXIS 2681 at *2 (6th Cir. Feb. 5, 2025).
Upon remand this Court ordered the new petition in Case No. 2:24-cv-3848 re-docketed as
a motion to amend in this case and set a date for Respondent to file a response (ECF No. 45).
However, due to clerical error, what was re-docketed was not the Petition from 2:24-cv-3848, but
the Petition from 2:23-cv-2997 (See ECF No. 44). To correct that mistake, ECF No. 44 is
STRICKEN. It is a duplicate of the original Petition in this case before the case was re-numbered
as in the caption above. In lieu of ECF No. 44, the Clerk has re-docketed in this case the original
Petition in 2:24-cv-3848 which is the document which the circuit court ordered us to construe as a
motion to amend (hereinafter “Second Petition,” ECF No. 49).

Litigation History

Barron filed the original Petition in this case on September 15, 2023 (ECF No. 1).
Magistrate Judge Peter B. Silvain, Jr., to whom the case was originally referred, recommended it
be dismissed for failure to prosecute (ECF No. 8). In the absence of any objections, Judge Dlott

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adopted the recommendation and dismissed the case on February 14, 2024 (ECF No. 11, 12). The
very next day Barron filed a Petition (ECF No. 13). District Judge Dlott vacated the dismissal
(ECF No. 14) and Magistrate Judge Silvain ordered Respondent to answer (ECF No. 15).
Respondent then filed the State Court Record and a Return of Writ May 21-22, 2024 (ECF Nos.
21 & 22). As required by Habeas Rule 5, Judge Silvain then set a reply date of August 11, 2024
(ECF No. 26).
Without seeking or obtaining leave of court2, Barron filed a Supplement to the Petition on
July 15, 2024 (ECF No. 28). Despite the absence of permission, Judge Silvain accepted the
Supplement and ordered Respondent to file a supplement to the Return (ECF No. 29). The Warden
did so (ECF No. 33) and the Magistrate Judge reference in the case was then transferred to the
undersigned (ECF No. 34).
On the same day the reference was transferred, the undersigned confirmed the reply
deadline that Judge Silvain had set, September 9, 2024 (ECF No. 35, PageID 2101). Barron asked
for permission to exceed this Court’s usual twenty-page limit on filings and was granted forty
pages (ECF Nos. 36 & 37). Despite that permission, Barron has never filed a document labeled
“reply”; instead, he filed a six-page document labeled “Rebut the presumption of correctness of
the state court findings in doc #33” accompanied by many pages of the trial transcript (ECF No.
40). Treating that document as Barron’s reply or traverse, the Magistrate Judge recommended
dismissal with prejudice (Report, ECF No. 41).
While the Second Petition was pending on transfer to the circuit court, the Magistrate Judge
filed a Report and Recommendations in this case recommending the original Petition be dismissed
with prejudice (ECF No. 41). Barron was notified of his right to object (Id. at PageID 2208), but

2

Under Fed.R.Civ.P. 15, leave of court was needed because the Warden had answered.

3

never did so. Accordingly Judge Dlott adopted the Report, entered judgment dismissing the
original Petition with prejudice, and denied Barron a certificate of appealability (ECF Nos. 42,
43). Barron did not appeal. After the remand order was received, the Court reopened that final
judgment for the sole purpose of considering the Second Petition as a motion to amend (ECF No.
47).
In his Second Petition, Barron seeks to add the following grounds for relief:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Barron contend[s] that his defense counsel was
ineffective for failing to properly view discovery and present
relevant and material evidence (text message) labeled “SMS” and
“MMS” that were sent from the victim (Alisha Osner) to Barron, the
Petitioner.
Ground Two: Ineffective Assistance of Counsel
Supporting Facts:
Defense counsel failed to conduct a
reasonable/meaningful investigation into the case or Alisha Osner’s
claims. Counsel failed to prevent perjured testimony or, in the
alternative, counsel failed to use funds provided by the court to hire
a consultant expert.
Ground Three: Ineffective Assistance of Counsel.
Supporting Facts: As a reason to waive Petitioner fast and speedy
trial, trial lawyer asked the courts to approve funding for a
consulting expert and never hired such.
Ground Four: Ineffective Assistance of Counsel
Supporting Facts: The prosecution said that Barron used phone
number created through a website called “Text Now.” Defense
counsel had access to Barron “Text Now” account and failed to use
all the material and relevant messages.
Ground Five: Denied due process when the state committed
Brady/Giglio/Strickler violation by failing to disclose
impeachment evidence.
Supporting Facts: None pleaded.
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(Second Petition, ECF No. 49, PageID 2246-53).
When the remand order was received, the Court set a deadline for Respondent to react to
the Second Petition (Motion to Amend)(ECF No. 45) and she has done so, opposing the Motion
(ECF No. 46). Respondent asserts the Motion to Amend was unduly delayed and that granting it
would prejudice Respondent by requiring her to file a new answer. She further argues that
Barron’s proposed new claims are procedurally defaulted or meritless.
The Sixth Circuit has ordered us to treat Barron’s Second Petition as a motion to amend.
However, the Second Petition was not accompanied by a memorandum supporting amendment, so
Barron has taken no position with the Court on the Warden’s defenses.

Analysis
Standard of Review

The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was
enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of any allowance of the amendment,
futility of amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182.

See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman

standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
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whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th

Cir. 1983);

Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio
March 31, 2011)(Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington,
M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”). In Brooks v. Celeste, 39 F.3d
125 (6th Cir. 1994), the court repeated and explicated the Foman factors, noting that “[d]elay by
itself is not a sufficient reason to deny a motion to amend. Notice and substantial prejudice to the
opposing party are critical factors in determining whether an amendment should be granted. Id. at
130, quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989). Denial of a
motion for leave to amend the complaint generally is reviewed for abuse of discretion, but denial
on the basis of futility is reviewed de novo. Evans v. Pearson Enters., Inc., 434 F.3d 839, 853 (6th
Cir. 2006).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within the

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Magistrate Judge’s decisional authority, subject to appeal to the assigned District Judge. Monroe
v. Houk, No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.);
McKnight v. Bobby, 2017 U.S. Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.); Chinn
v. Warden, 2020 U.S. Dist. LEXIS 94062 (S.D. Ohio May 29, 2020)(Morrison, D.J.).

Undue Delay

As noted above, the original Petition was filed in this case on September 15, 2023.
All of the alleged facts in the “Supporting Facts” paragraphs of the Second Petition were
known to Barron at the time he was sentenced, December 7, 20203. Therefore he must have known
of them when he filed in this Court on September 15, 2023. He has offered no excuse for not
including these new claims in the original Petition. The Court already allowed Petitioner to amend
by accepting his supplement and deciding it on the merits.
Respondent would be prejudiced by allowing the amendment because she has successfully
litigated the case to a favorable judgment on the basis of the claims made in the original Petition
and Petitioner has forfeited his opportunity to appeal from that judgment. Therefore the Magistrate
Judge finds his Second Petition (Motion to Amend) is barred by his undue delay in asserting these
new Grounds for Relief.

Futility

Moreover, the amendment would be futile because each of the proposed new Grounds is

3

See Transcript, ECF No. 21, Ex. 10.

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barred by Barron’s procedural default in presenting it to the Ohio courts or it is without merit.
Petitioner’s first four proposed new claims assert ineffective assistance of trial counsel.
The governing standard for ineffective assistance of counsel claims 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:

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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, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
After adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No
104-132, 110 Stat. 1214)(the "AEDPA"), a habeas corpus court can grant relief on a claim decided
on the merits by the state courts only if the state court decision is contrary to or an objectively
unreasonable application of clearly established Supreme Court precedent as of the date the state
court reached its decision. 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
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(Terry) v. Taylor, 529 U.S. 362, 379 (2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018).
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.

Grounds One and Four: Ineffective Assistance of Trial Counsel

Barron presented his first and fourth proposed new grounds for relief in his Petition for
Post-Conviction relief under Ohio Revised Code § 2953.21. After the trial court denied his PostConviction Petition, he appealed to the Ohio Twelfth District Court of Appeals which held:
In Grounds 1 and 4 of his PCR petition, appellant argued that his
trial counsel was ineffective for failing to properly review discovery,
"mount a defense," and present two sets of text messages Amy sent
to appellant (the text messages in Ground 4 were sent via the app
TEXT NOW). Appellant claimed that presenting those text
messages to the jury would have impeached Amy's testimony and
shown that he and Amy were in a relationship and that he was not
forcing Amy to do things against her will.
The trial court dismissed Grounds 1 and 4 on the ground of res
judicata because appellant could have raised the claims of
ineffective assistance of counsel on direct appeal. The trial court
further found that even if the claims were not barred by res judicata,
appellant's PCR petition did not establish a substantive ground for
relief. Appellant appeals, arguing the trial court abused its discretion
in dismissing Grounds 1 and 4 on the ground of res judicata.
Appellant asserts that the text messages he filed with his PCR
petition (Exhibits A, B, and C) were not in the trial record and
therefore constitute evidence outside the record. The state concedes
that the text messages attached to the PCR petition were not part of
the trial record.
The record shows that the text messages appellant filed with his
PCR petition were provided to trial counsel during discovery but not
presented to the jury. During Detective Wyss' testimony, the
prosecutor started to show two exhibits marked as State's Trial
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Exhibits 1 and 2, consisting of text messages found on appellant's
cellphone. Trial counsel objected to the introduction of text
messages sent from someone other than appellant. The trial court
excluded texts from third parties and instructed the prosecutor to
redact the two exhibits. The prosecutor complied and introduced
State's Trial Exhibits 50 through 73, 57A, and 76. These exhibits
contained outgoing individual text messages from appellant to Amy,
Rose, and another person, and a few incoming text messages from
Amy to appellant that Amy had specifically testified about. All other
text messages were redacted.
Because the unredacted text messages filed with appellant's PCR
petition were not contained in the trial record, appellant's
ineffective-assistance claims could not have been fully addressed on
direct appeal. See Blanton, 2022-Ohio-3985 at ¶ 66. "[W]hen a
claim of ineffective assistance is based on counsel's failure to
present evidence during the trial-court proceedings, and that
evidence is not proffered or otherwise contained in the trial record,
it is almost invariably the type of claim that cannot be meaningfully
adjudicated in a direct appeal." Id. Nonetheless, we find that the trial
court did not abuse its discretion in dismissing Grounds 1 and 4
because the evidence, if believed, does not present a substantive
ground for relief.
Instead of presenting the text messages attached to appellant's PCR
petition at trial, trial counsel pursued an alternate strategy to show
that appellant and Amy were in a relationship and that appellant was
not forcing Amy to do things against her will. Trial counsel asked
Amy about renting a hotel room in her name, where her boyfriend
and children stayed, and inquired about her "Jack of all trades" work
she performed during the time frames in the indictment (such as
cleaning houses, painting, and lawn care). Trial counsel crossexamined Amy about her ability to run errands for her children in
her father's car, unaccompanied by appellant. In an effort to impeach
Amy's testimony she was not and "would never be in a relationship
with" appellant, trial counsel asked her about a specific statement
she had made to appellant telling him that he got on her nerves but
that she still wanted to see him and that his craziness was attractive
to her. Trial counsel introduced the text message when Amy denied
making the statement. Additionally, trial counsel argued in closing
arguments that appellant and Amy were in a relationship, that it was
a love triangle between appellant, Amy, and Rose, and that Rose
was jealous of the relationship between appellant and Amy.
Furthermore, appellant's PCR petition does not address whether the
introduction of the text messages attached to the PCR petition would
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have "opened the door" to the introduction of the text messages the
trial court excluded pursuant to trial counsel's objection. The record
suggests that counsel's effort to establish the relationship between
appellant and Amy through witness examination rather than risk
admission of the text messages unsuccessfully offered by the state
was legitimate trial strategy and not ineffective assistance of
counsel. Appellant's PCR petition includes no evidence to suggest
otherwise.
Appellant has therefore failed to set forth facts sufficient to show
that his trial counsel performed deficiently or that there is a
reasonable probability that the result of the trial would have been
different if the text messages attached to appellant's PCR petition
had been presented to the jury. Appellant's first and fourth
assignments of error are overruled.
State v. Barron, 2023-Ohio-1249, ¶¶ 28-34 (Ohio App. 12th Dist. Apr. 17, 2023). Barron appealed
from this decision to the Ohio Supreme Court, but raised only the assignment of error that his
claims were not barred by res judicata, an issue on which he had won in the Twelfth District
(Memorandum in Support of Jurisdiction, ECF No. 21, Ex. 46, PageID 935). The Ohio Supreme
Court declined to exercise jurisdiction. Id. at Ex. 48, but Barron’s procedural default consists in
his never having raised the merits of his ineffective assistance of trial counsel claims to the Ohio
Supreme Court. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
These two Grounds for Relief also fail on the merits because the Twelfth District’s decision
is a reasonable application of the Strickland standard. As the Twelfth District found, trial counsel
chose an alternative strategy for impeaching Amy’s testimony. While it did not persuade the jury,
it was nonetheless a reasonable strategy.

Ground Two: Ineffective Assistance of Counsel
In his second proposed Ground for Relief in the Second Petition, Barron asserts his trial
attorney provided ineffective assistance when he did not investigate Alisha Osner’s claims, failed
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to prevent perjured testimony, and failed to hire a consulting expert. This was the third ground for
relief in Barron’s Post-Conviction Petition. The Twelfth District decided it as follows:
In Ground 3 of his PCR petition, appellant argued that his trial
counsel was ineffective because he failed to hire a criminal
investigator after the trial court granted counsel's motion to
appropriate funds for an investigator. Appellant asserted that had
trial counsel hired the investigator, the latter would have discovered
that Backpage was shut down in 2018, months before the time
periods in the indictment, and would have reviewed appellant's
cellphone and obtained the text messages addressed in appellant's
first and fourth assignments of error. The trial court dismissed
Ground 3 on the ground of res judicata because appellant could have
raised this issue of ineffective assistance of counsel on direct appeal.
We find no abuse of discretion in the trial court's dismissal of
Ground 3. Appellant's claim of ineffective assistance regarding trial
counsel's failure to hire an investigator was primarily based on
appellant's motion for appropriation of funds for an investigator,
which the trial court granted, and which was therefore evidence in
the trial record. Thus, appellant could have raised on direct appeal
his trial counsel's failure to hire an investigator based on the original
record. See State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16
N.E.3d 588 (addressing on direct appeal in a capital case defendant's
claims of ineffective assistance related to trial counsel's failure to
hire an investigator despite being granted funds and failure to retain
a mitigation specialist). The trial court did not abuse its discretion in
dismissing Ground 3 on res judicata ground.
Even if res judicata does not bar appellant's claim, his PCR petition
does not state a substantive ground for relief. Appellant did not
present any evidence to support his claim that trial counsel did not
hire or use the investigator and a reviewing court "will not infer a
defense failure to investigate from a silent record." State v.
Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, ¶ 247, 23 N.E.3d
1096. Furthermore, "[a]n attorney's decision not to hire an
investigator does not equate to a failure to investigate and result in
ineffective assistance of counsel." Id. The record shows and trial
counsel represented to the trial court that he had received discovery
from the state. Such discovery included the text messages addressed
in appellant's first and fourth assignments of error. At trial, trial
counsel used a few incoming text messages from Amy to appellant
that she had specifically testified about and moved to exclude all
other text messages from third parties, resulting in their redaction.
Detective Wyss testified that Backpage was no longer in operation.
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Evidence of what the investigator would have discovered was
therefore cumulative to evidence that was available and presented at
trial.
Appellant's third assignment of error is overruled.
State v. Barron, supra, at ¶¶ 53-56.
As the Twelfth District concluded, this Ground for Relief is barred by res judicata. Ohio’s
doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967),
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, 16061 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio
2001).
Apart from the res judicata bar, the Twelfth District found Barron had presented no
evidence of what the investigator would have found that was not cumulative to evidence presented
at trial. Backpage.com was, while it existed, a well-known website advertising persons who would
engage in prostitution. Eventually the government was successful in shutting it down. But Amy’s
testimony that Barron had advertised her as available for sex for hire was not so definite as to date
or internet address that presenting the exact date Backpage.com was shut down would have
significantly undermined her testimony. Moreover, specific testimony about Backpage.com
would likely have reinforced Barron’s sex trafficking conduct in the jury’s minds.
Barron’s second proposed Ground for Relief is procedurally defaulted on Ohio res judicata
grounds and without merit because the Twelfth District’s rejection is a reasonable application of
Strickland. Therefore his motion to amend to add that ground for relief is DENIED.

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Ground Three: Ineffective Assistance of Counsel

In his Third Proposed Ground for Relief, Barron asserts he received ineffective assistance
of trial counsel when his trial attorney failed to hire the consulting expert for whom he had sought
and received funding.
This proposed Ground for Relief is procedurally defaulted by Barron’s failure to appeal on
the merits to the Ohio Supreme Court from the Twelfth District’s denial. Here again he appealed
as if he had been found barred by res judicata in the Twelfth District, but he won on that issue in
the appeals court. Moreover, the Twelfth District’s decision on the merits is a completely
reasonable application of Strickland. Barron’s Second Petition request to add his proposed Third
Ground for Relief is DENIED.

Ground Five: Denial of Due Process

In his proposed Fifth Ground for Relief, Barron asserts he was denied due process when
the State failed to disclose impeachment evidence as required by Brady v. Maryland, 373 U.S. 83
(1963); Strickler v. Greene, 527 U.S. 263, 280-82 (1999); and Giglio v. United States, 405 U.S.
150, 153 (1972).
The Second Petition, construed as a motion to amend, is denied with respect to this
proposed Fifth Ground for Relief. Barron makes no statement of what impeachment evidence was
allegedly not revealed and thus has failed to give Respondent fair notice of his claims.

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Conclusion

In obedience to the mandate the Court has considered Barron’s Second Petition as a motion
to amend and found it wanting in all respect under Fed.R.Civ.P. 15. The Second Petition is
therefore DENIED.
March 12, 2025.
s/ Michael R. Merz
United States Magistrate Judge

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