Robinson v. Warden Mansfield Correctional Institution

Filing 24

REPORT AND RECOMMENDATION that grounds five and six re 2 Petition for Writ of Habeas Corpus be denied on their merits & that this case be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/29/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHANE ROBINSON,

CASE NO. 2:10-CV-0503

Petitioner,
v.

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

WARDEN, MANSFIELD CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner Shane Robinson, a state prisoner, has filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254. In a Report and Recommendation
filed on August 4, 2011, the Court recommended that the claims raised in grounds one
through four of the petition be dismissed. The Court also ordered respondent to file a
supplemental return of writ addressing the claims raised by petitioner in grounds five
and six of the petition.
Respondent filed a supplemental return on August 25, 2011. Petitioner moved
for and was granted an extension of time to file a reply, but he did not file one. The
Report and Recommendation was subsequently adopted without objection and claims
one through four were dismissed. This Report and Recommendation will address
claims five and six of the petition. For the following reasons, it will be recommended
that the remaining claims be dismissed.
I. PROCEEDINGS IN THE STATE COURTS

The course of the proceedings in the state court are set forth in detail in the prior
Report and Recommendation. For purposes of claims five and six, which assert
multiple claims of ineffective assistance of counsel and a Brady claim (see Brady v.
Maryland, 373 U.S. 83 (1963)) involving the alleged failure to disclose exculpatory
evidence in the form of a deal allegedly offered to a key prosecution witness in
exchange for his testimony, the relevant portion of the state court proceedings is as
follows.
After petitioner was convicted of aggravated murder, murder, complicity to
commit murder, felonious assault, and complicity to commit felonious assault, all
accompanied by firearm specifications, he appealed his conviction to the Ohio Court of
Appeals for the Seventh Appellate District. One of his nine assignments of error dealt
with the issue of ineffective assistance of counsel. Although not all of the different
instances of ineffective assistance of counsel which petitioner raises in his fifth claim in
this Court were raised by him as part of his direct appeal, the state court of appeals did
address several instances of alleged ineffective assistance of counsel, including
petitioner’s claim that his counsel operated under a conflict of interest because he also
represented petitioner’s co-defendant, Kelly Carter, and the prosecution offered Mr.
Carter a plea bargain in exchange for his agreement to testify against petitioner - an
offer which Mr. Carter refused. The assignment of error relating to ineffective
assistance of counsel, as well as all of petitioner’s other assignments of error, were
overruled and his conviction and sentence were affirmed. See State v. Robinson, 2007
2

WL 1976578 (Jefferson Co. App. July 5, 2007). The Supreme Court of Ohio did not
accept his appeal of that decision, finding that it did not involve any substantial
constitutional question. See State v. Robinson, 116 Ohio St.3d 1440 (2007)(Table); see also
Return of Writ, Exhibit 12.
While his appeal was pending, petitioner, also acting through counsel, filed a
petition for post-conviction relief pursuant to Ohio Revised Code §2953.21, raising other
instances of ineffective assistance of counsel as well as his Brady claim. The trial court,
after holding a hearing on the claims, overruled the petition. That order was also
affirmed by the Seventh District Court of Appeals. See State v. Carter, et al., 2008 WL
5228925 (Jefferson Co. App. December 15, 2008). The Ohio Supreme Court did not
accept petitioner’s appeal of that decision, declining to do so in an entry filed on June 3,
2009. See Return of Writ, Exhibit 25. It appears that petitioner appropriately presented
and exhausted all of the claims which constitute his fifth and sixth grounds for relief in
this Court, and respondent does not argue otherwise.
II. THE FACTS OF THE CASE
The facts of this case are set forth in the Seventh District Court of Appeals’
decision in State v. Robinson, 2007 WL 1976578, *1 (Jefferson Co. App. July 5, 2007).
That court recited the facts as follows.
{¶ 2} On August 5, 2001, Xuan Sayles broke into Robinson's
apartment, beat Robinson's stepfather, Vernon Thurman, shot Robinson's
brother, Shiraz, and robbed the apartment. Xuan Sayles is a cousin of
Terrell Sayles and [Alfred] Wade [Jr., the victim]. Robinson was upset
about the robbery and the assault on his brother and he and his friend,
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Kelly Carter, believed that Terrell and Wade either had something to do
with the robbery or had some form of control over Xuan. During the
course of the month of August 2001, many people witnessed a rising in
tensions between these two groups and on many occasions, Robinson and
Carter stated that they wanted both to be repaid for what they lost in the
robbery and revenge for the shooting of Robinson's brother.
{¶ 3} On August 27, 2001, Robinson and Carter were at a bar in
Steubenvile, Ohio, the Safari Lounge, with a group of their friends. Wade
was also at the Safari Lounge with a group of his friends. Robinson and
Carter left the Safari Lounge before Wade and a mutual friend warned
Wade that he had a feeling that Carter and Robinson may do something
bad that night. When Wade drove home in the early hours of August 28,
2001, he was met by Carter and Robinson. He got into an altercation with
them and they shot him multiple times. Wade was dead by the time
emergency medical personnel responded to the scene.
{¶ 4} There were three eyewitnesses to the shooting, Demetrius Birden, a
cousin of Wade's who was later murdered in an unrelated incident, Carl
Williams, and Tina, an unidentified Caucasian girl. Williams, a convicted
felon who was testifying in an attempt to cooperate with federal
authorities, testified that he saw the entire altercation in front of Wade's
home.
III. THE REMAINING CLAIMS
The petition raises the following claims as grounds five and six:
GROUND FIVE: When my trial attorney (1) represented both myself and my
codefendant, Kelly Carter, (2) failed to seek severance of defendants, (3) failed to
object to other acts and hearsay evidence, (4) failed to request limiting instructions,
(5) failed to request an instruction for a lesser included offense, and (6) failed to
object to the prosecutor’s improper closing argument, he provided constitutionally
ineffective assistance. Consequently, I am now held in violation of my right to the
effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth
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Amendments to the United States Constitution.
Supporting facts: Trial counsel represented both Kelly Carter and myself at a
joint trial. Trial counsel did not request severance on my case from my codefendant’s,
despite a plea offer in his case and statements of my codefendant that were improperly
used against me at trial; that my codefendant wanted to kill everyone in the victim’s
circle of friends, was angry about the shooting of my brother, and wanted to get even.
My trial counsel failed to request an instruction on the lesser included offense of
voluntary manslaughter. The other claim relater (sic) to trial counsel’s failure to object
to the fact noted in the prior grounds.
GROUND SIX: When the State failed to disclose an agreement (1) to nolle
prosequi the pending criminal charges of the only eyewitness in my case and (2) to
provide a letter to that eyewitness’ federal sentencing judge in exchange for
cooperation and testimony my (sic) another criminal case, the State violated its
obligation to disclose discoverable material and violated my due process rights.
Consequently, I am now held in violation of my due process rights under the Fifth
and Fourteenth Amendments to the United States Constitution.
Supporting facts: The prosecutor provided a letter to the trial court explaining
that an agreement existed between the State and Carl Williams to drop his local charges
in exchange for his favorable testimony in Mr. Robinson’s case and, Mr. Williams’
guilty plea and prison sentence in his federal case. Officer Hanlin’s testimony
impeached the prosecutor’s testimony. The prosecutor had testified, that he planned to
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nolle prosequi Mr. Williams’ charges because he could not be successfully prosecuted.
It is respondent’s position that both of these claims lack merit.
IV. MERITS REVIEW
A. Ground Five
In ground five, petitioner raises a claim of ineffective assistance of trial counsel.
As noted above, there are multiple sub-parts to this claim, some of which were raised
on direct appeal, and some of which were raised in his post-conviction petition. The
Court begins its discussion with the claims that were raised on direct appeal. The state
court of appeals dealt with those claims in the following way:
{¶ 110} In his seventh assignment of error, Robinson argues:
{¶ 111} “The Appellant was denied effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the U.S.
Constitution due to trial counsel's conflict of interest in representing the
Appellant and his codefendant at trial; his failure to seek severance of
defendants; his failure to object to other act and hearsay evidence; his
failure to request limiting instructions of law; his failure to request
instruction for inferior degree offense; and his failure to object to the
prosecutor's improper closing argument.”
{¶ 112} To prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate counsel's performance was deficient and that
deficient performance prejudiced the defense. Strickland v. Washington
(1984), 466 U.S. 668, 687. A properly licensed attorney is presumed to
execute his duties in an ethical and competent manner. State v. Smith
(1985), 17 Ohio St.3d 98, 100. When reviewing whether counsel's
performance was ineffective, courts must refrain from second-guessing
strategic decisions of trial counsel. State v. Sallie, 81 Ohio St.3d 673, 674,
1998-Ohio-0343. Ineffectiveness is demonstrated by showing counsel's
errors were so serious that he or she failed to function as the counsel
guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio
St.3d 153, 156. To establish prejudice, a defendant must show there is a
6

reasonable possibility that, but for counsel's errors, the result of the
proceeding would have been different. Strickland at 694. A reasonable
probability must be a probability sufficient to undermine confidence in
the outcome of the case. State v. Bradley (1989), 42 Ohio St.3d 136,
paragraph three of the syllabus. The defendant bears the burden of proof
in demonstrating ineffective assistance of counsel. Smith at 100.
{¶ 113} Each of Robinson's claims of the ineffective assistance of counsel
will be addressed separately.
Conflict of Interests
{¶ 114} In this case, the same defense counsel represented both Carter and
Robinson at their joint trial. Prior to trial, the State offered Carter a plea
agreement, which was contingent upon Carter's agreement to testify
against Robinson. At two hearings, the trial court inquired into whether
Carter wanted to discuss the plea offer with separate, court-appointed
counsel. Each time, Carter refused. Robinson contends that defense
counsel had an actual conflict of interest once this offer was made and that
prejudice is presumed once an actual conflict of interest existed.
{¶ 115} In cases of potential conflict of interest resulting from one attorney
representing co-defendants, the United States Supreme Court has held
that dual representation is not a per se violation of due process and, in
some cases, it may be preferable to launch a common defense against a
common attack. Holloway v. Arkansas (1978), 435 U.S. 475, 482-483.
However, the possibility of a conflict of interest exists in every instance of
multiple representation. Cuyler v. Sullivan (1980), 446 U.S. 335, 348.
{¶ 116} Both defense counsel and the trial court have an affirmative duty
to ensure that conflicts do not interfere with a defendant's representation.
State v. Dillon, 74 Ohio St.3d 166, 167-68, 1995-Ohio-0169. If defense
counsel recognizes a potential conflict in his representation of both clients,
he should timely object to his dual representation and move the court to
withdraw from representing at least one of the two defendants since he “is
in the best position professionally and ethically to determine when a
conflict of interest exists or will probably develop in the course of a trial.”
Holloway at 485. If an attorney makes such an objection, the trial court
must either appoint separate counsel or “take adequate steps to ascertain
whether the risk [of conflict] was too remote to warrant separate counsel.”
Id. at 484. Failure to make such an inquiry when faced with a timely
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objection deprives the defendant of his constitutional guarantee of
effective assistance of counsel. Id. Consequently, when a court requires
joint representation over objection without making sufficient inquiry,
prejudice is presumed, and reversal is required. Id. at 488.
{¶ 117} In some cases, neither counsel nor defendant raises an objection to
the joint representation. In those cases, “[a] trial court is not
constitutionally mandated to inquire of criminal co-defendants whether
they wish to be jointly represented by the same counsel.” State v. Manross
(1988), 40 Ohio St.3d 180, syllabus. A trial court's duty to inquire only
arises when it “knows or reasonably should know that a particular conflict
exists * * *.” Id. at 181. Absent any indication to the contrary, a trial court
may assume that either the joint representation presents no conflict or that
the lawyer and clients have knowingly accepted the risk of any conflict
that may exist. Cuyler at 347. In those situations where no objection is
raised to the trial court regarding the joint representation, the defendant's
conviction will only be reversed if he “shows that an actual conflict
adversely affected counsel's representation of said defendant.” Manross at
syllabus; Cuyler at 348.
{¶ 118} Robinson claims that a court must presume prejudice when there
is an actual conflict of interest. However, this is not what the caselaw
actually says. Instead, prejudice is presumed only if the defendant can
show the conflict adversely affected counsel's representation of said
defendant. See Cuyler at 348-350.
{¶ 119} In this case, the prosecution's plea offer created an actual conflict
of interest between Carter and Robinson, since a condition of that offer
was that Carter testify against Robinson. However, if (sic) this conflict of
interest did not adversely affect Robinson because Carter ultimately
decided not to accept the plea agreement. The actual conflict which
existed between Carter and Robinson disappeared once Carter turned
down the offer. Counsel's dual representation of Carter and Robinson did
not adversely affect counsel's representation of Robinson.
Failure to Seek Severance
{¶ 120} Robinson next argues that his counsel was ineffective for failing to
request separate trials for Carter and Robinson. He claims that counsel's
ineffectiveness in this regard allowed damning evidence against Carter to
be used against him as well. Joinder is governed by R.C. 2945.13, which
provides as follows:
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{¶ 121} “When two or more persons are jointly indicted for a felony,
except a capital offense, they shall be tried jointly unless the court, for
good cause shown on application therefor by the prosecuting attorney or
one or more of said defendants, orders one or more of said defendants to
be tried separately.”
{¶ 122} The law favors joinder because a single trial will conserve time and
expense and may minimize the potentially disparate outcomes that can
result from successive trials before different juries. State v. Schiebel (1990),
55 Ohio St.3d 71, 86-87; State v. Torres (1981), 66 Ohio St.2d 340, 343; State
v. Thomas (1980), 61 Ohio St.2d 223, 225. However, the interest in joint
trials is not unrestricted. Crim.R. 14 allows a trial court to sever the
defendants or provide other relief in the interest of justice if a defendant
can demonstrate that he is prejudiced by joinder with other defendants
charged in the indictment. Severance may be warranted if the trial court
finds a serious risk that a joint trial would compromise a specific right of
one of the defendants or prevent the jury from making a reliable judgment
about guilt or innocence. United States v. Zafiro (1993), 506 U.S. 534, 539.
{¶ 123} Robinson argues that joinder of the trials allowed evidence which
was inadmissible against him, namely, Carter's prior brandishment of a
firearm and threats to Wade, to be used against him. However, this
evidence was, for the most part, cumulative of other evidence already
introduced. Many witnesses testified that tensions had been rising
between Robinson and Carter on one side and Sayles and his friends on
the other, with threats being made by both Carter and Robinson. Many
witnesses testified that they had seen Carter with a firearm. Thus, the fact
Carter brandished a firearm and/or threatened Wade did not add much
to the State's overall evidence.
{¶ 124} In conclusion, counsel was not ineffective for failing to request that
the trial be severed. Robinson's arguments to the contrary are meritless.
Failure to Object to Hearsay Evidence
{¶ 125} Robinson next argues that defense counsel was ineffective for
failing to object to the admission of statements made by Carter as
substantive evidence against him. This argument is similar to the one
addressed in Robinson's second assignment of error. For the reasons given
in that assignment of error, Robinson's arguments in this regard are
meritless.
Failure to Object to Prosecutorial Misconduct
{¶ 126} Robinson's final argument within this assignment of error is that
his counsel was ineffective for failing to object to the instances of
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prosecutorial misconduct he raises in his fourth assignment of error.
However, for the reasons given above, it appears that this alleged
misconduct was either not misconduct or did not affect Robinson's
substantial rights. Accordingly, Robinson's arguments in this regard are
meritless.
State v. Robinson. 2007 WL 1976578 at *18-21.
The standard which the Court applies to this and other claims which are
evaluated on their merits comes from the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). Under that statute, a federal habeas court may not grant relief unless
the state court's decision was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts in light
of the evidence that was presented. To that end, 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(1) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

The United States District Court for the Western District of Michigan has
summarized this standard as follows:
[A] decision of the state court is “contrary to” such clearly established
federal law “if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court decides a
case differently than this Court has on a set of materially indistinguishable
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facts.” Id. at 413. A state court decision will be deemed an “unreasonable
application” of clearly established federal law “if the state court identifies
the correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.” Id. A
federal habeas court may not find a state court's adjudication to be
“unreasonable” “simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. Further, the federal habeas
court should not transform the inquiry into a subjective one by inquiring
whether all reasonable jurists would agree that the application by the state
court was unreasonable. Id.

Williams v. Lavigne, 2006 WL 2524220 (W.D. Michigan August 30, 2006), citing Williams v.
Taylor, 529 U.S. 362 (2000).
There is no question that the law relating to a claim of ineffective assistance of
counsel is clearly established. The right to counsel guaranteed by the Sixth Amendment
is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.
14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is
twofold:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious 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.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177
(6th Cir. 1987). “Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel's conduct falls within the wide range of
11

reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 689.
To establish prejudice, it must be shown that there is a reasonable probability
that, but for counsel's errors, the result of the proceedings would have been different. Id.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 697. Because the petitioner must satisfy both prongs of the
Strickland test to demonstrate ineffective assistance of counsel, if the Court determines
that petitioner has failed to satisfy one prong, it need not consider the other. Strickland,
466 U.S. at 697.
The Court need not discuss in detail a number of petitioner’s claims concerning
ineffective assistance of counsel. As the state court of appeals found, his claims relating
to counsel’s failure to object to hearsay and other acts evidence, and to certain
statements made by the prosecutor, could not have constituted ineffective assistance of
counsel because such objections would have been meritless. That court found
specifically that petitioner was not prejudiced by the introduction of the testimony in
question or by the prosecutor’s remarks. Although it appears not to have addressed
separately petitioner’s claim that his attorney was ineffective for failing to request an
instruction on the lesser-included offense of voluntary manslaughter, the court of
appeals considered the trial judge’s failure to give such an instruction as a separate
assignment of error, and found that the evidence did not warrant the giving of such an
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instruction. As to all of these matters, the state court of appeals found, either explicitly
or implicitly, that the prejudice prong of Strickland had not been satisfied.
Petitioner’s first three grounds for relief asserted in his habeas corpus petition
raised issues concerning the admission of hearsay and other bad acts evidence and
concerning alleged prosecutorial misconduct. In the prior Report and
Recommendation, this Court found two of these claims - those relating to the
introduction of other bad acts evidence and to prosecutorial misconduct - to be without
merit. It follows from that determination that counsel could not have been
constitutionally ineffective for failing to object to the introduction of such evidence or
the prosecutor’s remarks because that failure to object did not prejudice petitioner.
As to the claim relating to the introduction of hearsay evidence, this Court found
that claim to have been waived for habeas corpus review by virtue of counsel’s failure
to object. The state court of appeals reviewed the merits of the claim, but only for plain
error. It found no plain error because only one of the challenged statements - all of
which were made out of court by petitioner’s co-defendant, Kelly Carter - was
improperly admitted, and the admission of that statement was harmless error because
of the other extensive evidence of petitioner’s guilt. The other statements were all
descriptive of Mr. Carter’s state of mind and did not tend to show petitioner’s
involvement in the murder, and were therefore admissible under the hearsay exception
permitting such statements to be used as evidence.
As to all of these matters, the state court correctly identified Strickland as
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controlling precedent, and correctly understood Strickland to require a showing of
prejudice in order for a claim of ineffective assistance of counsel to be made out. Thus,
the only question for this Court is whether the state court’s application of Strickland to
these facts was unreasonable.
For reasons similar to those expressed by the state court of appeals, this Court
cannot make such a finding. As to counsel’s failure to object either to the other bad acts
evidence or the prosecutor’s statements, as noted, this Court has found petitioner’s
independent claims raising those matters to be meritless, and agrees that counsel’s
failure to object to this evidence was not prejudicial - or at least that a finding to that
effect is not an unreasonable application of the prejudice prong of Strickland. As to the
hearsay statements, the state court of appeals reasonably concluded that most of the
statements pertaining to Mr. Carter’s state of mind were not hearsay and did not in any
way implicate petitioner in the crime, so that any objection to those statements would
not have been sustained.
The only statement that the state court of appeals believed to have been admitted
in error - and which therefore might not have come in had counsel made a timely
objection - was a statement which Mr. Carter allegedly made on the night of the
shooting that he wanted to kill everyone in the victim’s circle of friends. This statement
also described Mr. Carter’s state of mind and, as to him, was admissible, but the state
court of appeals concluded that because it tended to incriminate petitioner as well,
although in only an indirect way, it should not have been admitted against him.
14

Nevertheless, the court concluded that any error as to the admission of this statement
was harmless because there was extensive evidence about the bad feelings between
petitioner, Carter, and the victim and his friends, including the prior relationship
between all of them, and there was eyewitness testimony linking petitioner to the
shooting. In that court’s view, the admission of Mr. Carter’s statement did not
materially affect the outcome of the trial.
Again, this Court cannot find that determination to have been unreasonable. The
federal standard for evaluating a finding of harmless error is set forth in Brecht v.
Abrahamson, 507 U.S. 619 (1993). Under Brecht, an error is not harmless if it “ha[s]
substantial and injurious effect or influence in determining the jury’s verdict.” Id. at
623. A state court’s determination of harmless error, if challenged in a federal habeas
corpus action, must be sustained unless the state court has unreasonably applied the
Brecht standard. Vazquez v. Jones, 496 F.3d 564 (6th Cir. 2007).
Here, a reasonable jurist could well have concluded that in light of the other
evidence admitted properly at trial, the fact that Mr. Carter expressed a desire to kill the
victim and his entire group of friends, said in the presence of petitioner, did not
substantially affect the jury’s verdict. The jury had already heard a substantial amount
of evidence about the background of the feud involving the victim, his friends, and
petitioner, and it is unlikely that the additional evidence provided by Mr. Carter’s
statement added anything significant to the jury’s understanding of that issue.
Although the eyewitness testimony is not, as discussed later, completely free from
15

doubt, the Court agrees that the cumulative testimony about petitioner’s involvement in
the shooting was substantial enough to make the admission of this one additional piece
of circumstantial evidence harmless. Thus, the state court of appeals did not
unreasonably deny petitioner relief on this portion of his ineffective assistance of
counsel claim.
The other instances of ineffective assistance of counsel addressed in the context
of petitioner’s direct appeal relate to counsel’s failure to request an instruction on the
lesser-included offense of voluntary manslaughter and to request a severance of the
trial, and the alleged conflict of interest which developed when the state offered Mr.
Carter a plea bargain in exchange for his testimony against petitioner. The Court will
examine each of these claims in turn.
As to the claim relating to the severance of petitioner’s case from Mr. Carter’s
case, the state court of appeals summarily denied petitioner’s claim of ineffective
assistance of counsel because the only prejudice which petitioner identified was the
admission of Mr. Carter’s hearsay statements in his trial and evidence that Mr. Carter
had brandished a weapon. The court of appeals found that, with the exception of the
statement discussed above, none of these matters tended to implicate petitioner in the
shooting, and as to that statement, its admission was harmless error. Thus, applying
state law to the issue of whether a severance would have been appropriate had counsel
requested it, the state court of appeals found that any evidence relating solely to Mr.
Carter did not significantly add to the evidence against petitioner, and that he was
16

therefore not prejudiced by the holding of joint trials. In reaching that conclusion, the
state court of appeals relied in part on the Supreme Court’s decision in United States v.
Zafiro, 506 U.S. 534 (1993).
In Zafiro, the Supreme Court was asked to adopt a “bright-line” rule that in any
case involving multiple defendants, if two or more of them present mutually
antagonistic defenses (essentially defenses which, if accepted by the jury, would require
the conviction of one defendant and the acquittal of another), a severance should
always be ordered. The Supreme Court refused to do so, holding that a severance
should be granted under such circumstances “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.” Id. at 539.
The state court of appeals did not apply this test unreasonably. The few
instances of prejudice which petitioner has claimed were, as that court found, either not
improperly prejudicial, or were cumulative and therefore harmless. As the Court of
Appeals noted in United States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990), it is a
defendant’s burden to show “compelling prejudice” in order to obtain a severance
when the basis of such a request is the admission of allegedly harmful statements of codefendants or the “spill-over” effect of evidence of a co-defendant’s guilt. The state
court of appeals did not unreasonably conclude that petitioner could not have met that
burden here even had counsel requested a severance. There is no argument that his and
Mr. Carter’s cases were improperly joined at the outset, and given the substantial
17

amount of overlapping evidence, such an argument could not have been made
plausibly. Given that counsel could not have successfully objected to most of the
challenged evidence because it was not prejudicial to petitioner, it is even less likely that
counsel could have relied on such evidence, or its potential prejudice, as the basis of a
motion for a severance. Therefore, there is no merit to this portion of petitioner’s
ineffective assistance of counsel claim.
The next instance of ineffective assistance of counsel relates to the failure to
request an instruction on voluntary manslaughter. The state court of appeals did not
specifically address this claim under the theory that counsel was ineffective for failing
to request such an instruction. Rather, it reviewed the claim on the merits and rejected
it on the basis that the evidence did not support such a claim. Petitioner’s defense at the
trial was not that he committed the murder under the influence of emotion or strong
provocation, but that he was not present at all. Further, the alleged provocation for the
murder occurred at least a month before the murder was committed. Therefore, the
state court concluded that an instruction on voluntary manslaughter would not have
been consistent with either the facts of the case or petitioner’s defense.
Given the fact that the state court of appeals reviewed this claim on its merits,
and did not review it simply for plain error, it is hard to argue that counsel was
ineffective for failing to ask for an instruction on lesser-included offenses. Had he done
so, and had the trial court declined to give the instruction, petitioner’s remedy would
have been to seek direct review of that decision. He obtained exactly the same level of
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review as if counsel had asked for the instruction. Therefore, it does not appear that he
was prejudiced by counsel’s failure. Further, the state court of appeals determined that
such an instruction should not have been given under the facts of this case, making it
unlikely that the trial court would have agreed to instruct the jury on voluntary
manslaughter even had counsel asked for that instruction. Finally, the failure to request
instructions on lesser included offenses is ordinarily a matter of trial strategy. See, e.g.,
Harrop v. Sheets, 430 Fed. Appx. 500 (6th Cir. July 20, 2011). As Harrop also noted, in
order to demonstrate prejudice, a defendant would have to show not only that such an
instruction would have been given if requested, but a substantial likelihood that the
jury would have acquitted the defendant of more serious charges had the jury been
allowed to consider the lesser-included offense. Certainly, petitioner has not made such
a showing here, nor did he do so as part of the state court proceedings. The state court
of appeals therefore did not unreasonably conclude that this claim lacked merit.
The last instance of ineffective assistance of counsel which petitioner raised on
direct appeal was his claim that counsel operated under a conflict of interest once the
State offered to allow Kelly Carter to plead to a reduced charge in exchange for his
testimony against petitioner. At least the way this argument was phrased in the state
courts, petitioner claims that when there is an actual conflict of interest, prejudice is
presumed, and that he was consequently prejudiced here. The state court of appeals
disagreed, holding that under the Supreme Court’s decision in Cuyler v. Sullivan, 446
U.S. 335 (1980), prejudice is presumed only when counsel is laboring under an actual
19

conflict of interest, and that petitioner’s counsel never had such a conflict as it related to
his representation of the petitioner’s interests.
Like this case, Cuyler involved an attorney who represented multiple defendants
at the same trial. There, the Supreme Court rejected any notion that multiple
representation always presents a circumstance where ineffective assistance of counsel or
prejudice to the defendants is presumed. Instead, it held that in such cases, a defendant
is entitled to an opportunity to show that his interests are being represented
inadequately, and that if no objection is made to the joint representation, the defendant
must later “demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” Cuyler, 446 U.S. at 348. Thus, although “unconstitutional
multiple representation is never harmless error,” id. at 349, unless a defendant can show
“that his counsel actually represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance of counsel.” Id.
Here, the state court of appeals found that petitioner had not established that his
counsel ever developed an actual conflict of interest as it pertained to his representation
of petitioner, concluding that any potential conflict of interest created by the State’s
offer to Kelly Carter “disappeared” once Mr. Carter turned down the plea bargain.
Certainly, had counsel actively advised Mr. Carter to accept the plea bargain, that
would have placed him in direct conflict with petitioner’s interest in not having Mr.
Carter be a witness against him. However, there is no evidence that counsel
encouraged Mr. Carter to accept the deal; in fact, the discussions held on the record at
20

trial, and which are also a part of the record in this Court (they are attached to the
supplemental return) indicate just the opposite. They show that counsel encouraged
Mr. Carter to talk to a different attorney to evaluate the benefits of the plea bargain, and
Mr. Carter both signed a statement and stated on the record that he did not want to
accept it. The trial judge also offered to permit both petitioner and Mr. Carter to
consult, for free, with another attorney about how the offer might affect each of their
interests, and both of them declined that offer. Nothing connected with the offer or
counsel’s representation of Mr. Carter’s interest in either accepting or rejecting the plea
bargain appears to have prejudiced petitioner in any way, or affected counsel’s ability
to continue to provide him with conflict-free representation.
Although it has been held that “negotiating a plea agreement for one client with
the condition that he testify against another creates an actual conflict of interest,” Cates
v. Superintendent, Indiana Youth Center, 981 F.2d 949, 955 (7th Cir. 1992), that is not what
happened here. Rather, counsel did not negotiate a plea agreement for Kelly Carter
based on Mr. Carter’s refusal to enter into any kind of plea bargain. There is simply no
evidence that because of the plea offer itself, counsel either did, or failed to do,
something which affected the way in which petitioner’s interests were represented, or
that had petitioner obtained separate counsel (which he refused to do), that new counsel
would have presented his case differently. It is also worthwhile to note that another
Magistrate Judge of this Court has concluded that Mr. Carter, who certainly has a
stronger claim than petitioner with respect to any alleged conflict of interest, waived
21

any conflict, see Carter v. Warden, Case No. 2:10-cv-0199 (S.D. Ohio November 7, 2011),
and that there is other authority for the proposition that someone in Mr. Carter’s
position can waive this type of conflict. See, e.g., Henderson v. Smith, 903 F.2d 534 (8th
Cir. 1990). Under these circumstances, the Court cannot say that the state court of
appeals unreasonably concluded that petitioner did not demonstrate an actual conflict
of interest on the part of his trial attorney or show how his defense was prejudiced by
counsel’s representation of both petitioner and Mr. Carter during and after the time that
the State made its offer to Mr. Carter.
The only separate instance of ineffective assistance of counsel raised in
petitioner’s post-conviction petition relates to the way in which counsel attempted to
examine the key eyewitness, Carl Williams, about any deal he had cut with the
prosecutor concerning his pending drug charges. As noted above, petitioner claims that
counsel was ineffective in the way that he developed, or failed to develop, the record
about what consideration Mr. Williams might have received in exchange for his
testimony against petitioner.
Part of this claim is premised on the assertion that Mr. Williams had been offered
a deal by the Jefferson County prosecutor under which the prosecutor would drop
pending drug charges against Mr. Williams in exchange for his testimony. As more
fully discussed below, the state courts eventually concluded that no such deal was ever
made or offered. Because this Court must accept that factual determination, petitioner’s
counsel cannot have been ineffective for failing to develop the record properly
22

concerning a non-existent agreement between Mr. Williams and the prosecutor.
The only other issue relating to counsel’s examination of Mr. Williams has to do
with the plea agreement entered into between Mr. Williams and the United States
concerning federal drug charges filed against Mr. Williams in Chicago. It appears
undisputed that, in the plea agreement filed in that case, Mr. Carter agreed to cooperate
with the State of Ohio by providing complete and truthful testimony if called as a
witness in any state proceeding.
Petitioner has not fleshed out this allegation here, and has not filed a reply in
support of his petition as to this ground. However, this claim was raised in the postconviction petition and discussed by the state court of appeals, as follows:
{¶ 43} In their second assignments of error, appellants argue that
they were denied effective assistance of counsel. They assert several
instances of alleged ineffectiveness. It should be noted that both
appellants were represented by the same trial counsel at their joint trial.
{¶ 44} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish
that counsel's performance has fallen below an objective standard of
reasonable representation. Strickland v. Washington (1984), 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.E.2d 373, paragraph two of the syllabus. Second, appellant
must demonstrate that he was prejudiced by counsel's performance. Id. To
show that he has been prejudiced by counsel's deficient performance,
appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, 42 Ohio St.3d at paragraph three of the
syllabus.
{¶ 45} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun (1999), 86 Ohio St.3d 279, 289, 714 N.E.2d
905. In Ohio, a licensed attorney is presumed competent. Id.

23

{¶ 46} First, appellants contend their counsel was ineffective for failing to
proffer for the record several pieces of evidence that they assert would
have impeached Williams' credibility. The trial court sustained the
prosecutor's objections and limited appellants' attorney on
cross-examination of Williams regarding the facts surrounding his federal
fraud and conspiracy convictions, his pending state drug charges, and his
cooperation in testifying in appellants' case. Appellants argue that their
attorney should have proffered Williams' pending state warrant and
indictment and his federal plea agreement. Appellants argue that their
counsel's failure to proffer these items denied them from successfully
arguing to this court in their direct appeals that the trial court's ruling on
these matters was in error.
*7 {¶ 47} In ruling on this issue, the trial court found, “[e]vidence that* * *
[Williams] had made a plea agreement in Federal Court was before the
jury and was available for consideration by them. Evidence of the
witnesses [sic.] numerous aliases, social security numbers and dates of
birth were also before the jury.” The trial transcript supports the court's
findings. Williams testified that he was in prison for fraud, conspiracy,
and drugs. (Trial Tr. 932). Additionally, appellants' counsel
cross-examined Williams regarding his numerous aliases, social security
numbers, and dates of birth. (Trial Tr. 934, 935). And Williams testified
that he had to come clean about everything he knew as part of his deal
with the “Feds.” (Trial Tr. 970).
{¶ 48} Additionally, appellants' counsel could not have cross-examined
Williams regarding his pending state drug charges because Williams had
not been convicted of those charges and had not entered into a deal with
the state regarding those charges.

State v. Carter 2008 WL 5228925, *6-7.
It appears that the state court rejected any claim of ineffective assistance of
counsel, as it related to the federal plea agreement, based on the fact that the jury was
informed of the nature and existence of the agreement. If that were so, counsel would
have done all he could to place that matter of impeachment before the jury.

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Mr. Williams answered one question about his federal plea agreement. He
explained that he had talked to federal prosecutors and had agreed to accept
responsibility, which involved “talk[ing] about anything you was involved in or
anything you have knowledge of ...” He further testified that “once I revealed that [i.e.
his knowledge of the victim’s murder] during that meeting, then I had to come forth
with everything. That’s — or I wouldn’t be accepting my responsibility. That’s —
that’s what the Federal — because I’m under Federal guidelines. So, that’s what the
Feds — that’s how the Feds look at things.” (Trial transcript, at 970). In response to
follow-up questions from the prosecutor, Mr. Williams testified that this arrangement
was part of the sentencing guidelines, and that if he did not fulfill his promise to
cooperate, he would not get something he had been promised, although he did not fully
explain what that was. He also revealed that he had been cooperating with federal
authorities since 1998. In closing argument, counsel attacked his credibility by noting
that he was in a federal penitentiary and that he had been helping the federal
prosecutors since 1998.
It appears that the only additional action which petitioner’s counsel might have
taken would have been to introduce the specific language in the plea agreement which
required Mr. Williams’ complete and truthful testimony in petitioner’s case. He
undoubtedly failed to do that. But the question is not whether that would have been
good trial strategy; the question is whether, in light of the other evidence before the
jury, the failure to either introduce or proffer the plea agreement itself prejudiced
25

petitioner to the point where the outcome of his trial might have been different had
counsel acted differently. The state court of appeals clearly believed that it did not, and
this Court cannot find that decision to be an unreasonable application of federal law.
Again, determining whether a defendant has been prejudiced by an attorney’s
failure to introduce specific evidence requires an evaluation of the evidence as a whole.
The Court of Appeals has held that “undisclosed impeachment evidence is cumulative
‘when the witness has already been sufficiently impeached at trial.’” Davis v. Booker,
589 F.3d 302, 309 (6th Cir. 2009), quoting Brown v. Smith, 551 F.3d 424, 433-34 (6th Cir.
2008). So, for example, in Davis v. Booker, the witness had already been impeached by
evidence of his involvement in drug trafficking and the fact that he made prior
inconsistent statements. The court concluded that although counsel could have
introduced a prior fraud conviction as additional impeachment evidence, in light of
what the jury had already been told, the addition of that piece of evidence would not
likely have changed the outcome of the trial.
Much the same is true here. The jury was informed that Mr. Williams was in
federal custody at the time of the trial; that he was being held on charges of fraud,
conspiracy, and drugs; that he had other felony convictions in the past, including armed
robbery and attempted murder; that he also had a prior felony drug conviction; that he
had used multiple aliases, dates of birth, and social security numbers in the past; that he
was a member of a gang in Chicago; that he was actually attempting to engage in, or
had engaged in, a drug transaction on the night in question; that he had made no
26

mention of his having witnessed the murder for more than two years after it happened;
and that he only revealed his knowledge after speaking with federal prosecutors and as
part of his attempt to get credit for accepting responsibility in his federal drug case.
Whatever additional value the actual plea agreement might have had on the jury’s view
of Mr. Williams’ credibility, it was not likely to have been substantial enough to change
their verdict - or, at least, the state court of appeals did not unreasonably apply federal
law when it concluded that such an influence on the jury’s verdict was unlikely. That
being so, there is no merit in this final claim of ineffective assistance of counsel.
B. Ground Six
The evidence at issue in this ground also relates to witness Carl Williams. Again,
there appears to be no dispute that Mr. Williams was facing serious drug charges in
Jefferson County when he testified at petitioner’s trial. Counsel attempted to crossexamine him about those charges and about any plea bargain he may have made in that
case (as opposed to his federal case) in exchange for his testimony against both
petitioner and Kelly Carter. That effort was not terribly successful. In fact, Mr.
Williams denied having entered into any agreement with State authorities about his
state drug charges. However, after petitioner’s trial, those charges were dropped. In
his post-conviction petition, both petitioner and Mr. Carter, who were joint petitioners,
claimed that an agreement to drop those charges must have existed given their serious
nature and the fact that a prosecutor would not likely have dismissed them for no
reason.
27

After taking extensive testimony from, among other witnesses, the Jefferson
County prosecutor, the state trial court found, as a fact, that no agreement had been
made between Mr. Williams and the Jefferson County prosecutor concerning his
testimony. He therefore denied petitioner’s Brady claim on grounds that there was no
exculpatory information withheld.
The state court of appeals opinion explained the trial court’s findings as follows:
Appellants argue that the trial court should have granted their
post-conviction petitions because the state erred in failing to disclose
an alleged agreement with witness, Carl Williams, to drop charges
against him in exchange for his testimony against appellants.
Williams was the state's key witness in appellants' trial who testified
that he saw appellants shoot the victim, Alfred Wade, Jr. It was
disclosed that Williams was testifying in exchange for leniency in a
federal case in Chicago. On March 23, 2007, well after appellants'
trial, the prosecutor filed a request to nolle prosequi a pending state
drug case against Williams. Appellants argue that the fact that the
prosecutor moved to nolle prosequi the charges against Williams is
evidence that an agreement existed between Williams and the state
whereby the state would dismiss the charges against Williams in
exchange for his testimony against appellants.
In support of their contention that the state had a deal with Williams
to testify against them in exchange for the state dropping the drug
charges against him, appellants point to the following evidence.
First, they point to the request to nolle prosequi Williams' drug case.
(Def.Ex.E). In the request, the prosecutor specifically states: “The
undersigned is advised, further, that in the event this defendant
testified favorably in the above described homicide cases, and that he
pleaded guilty in Case # 02CR1092, then pending in the United States
District Court, for the Northern District of Illinois, and was sentenced
to a term of imprisonment therein, that the State of Ohio would move
for a Nolle Prosequi of the case herein.”
Second, appellants point to Prosecutor Thomas Straus's testimony.
Straus assumed office in January 2005. Because he was not familiar
28

with appellants' case, the court appointed Rich Ferro, the prosecutor
who had been handling the matter, as special prosecutor for the case,
which proceeded in February. Thus, Straus was not involved in any
deal that may or may not have been made. Appellants' note that
Straus testified that the information he put in the request to nolle
prosequi Williams' drug case came from “Somebody,” possibly Ferro
and one of the detectives on the case. (Tr. 101).
Third, appellants point to the testimony of Detective Jason Hanlin.
Detective Hanlin testified that Williams admitted his role in the drug
case against him. (Tr. 146). Appellants argue that this was relevant
because Straus indicated that one of the reasons for his request to
nolle prosequi Williams' case was because there was no evidence on
which to proceed.
Fourth, appellants argue that when Williams testified in their trial he
had an outstanding warrant for his arrest in the drug case. Yet the
warrant was not executed at that time. Appellants contend that this
demonstrated that a deal was in place between Williams and the state.
Finally, appellants point to a letter from Ferro to the federal judge in
Williams' case expressing the state's gratitude to Williams for
testifying in appellants' trial.
Appellate review of a trial court's disposition of a petition for
postconviction relief is a hybrid presenting mixed questions of law
and fact. State v. Smith (Sept. 24, 1999), 11th Dist. No. 98-T-0097;
State v. Akers (Sept. 9, 1999), 4th Dist. No. 98 CA 33. The trial
court's factual findings will not be reversed unless they are against
the manifest weight of the evidence. Judgments will not be reversed,
as being against the manifest weight of the evidence if they are
supported by some competent, credible evidence. Gerijo, Inc. v.
Fairfield (1994), 70 Ohio St.3d 223, 226, 638 N.E.2d 533; C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376
N.E.2d 578, syllabus. Upon accepting such findings of fact, an
appellate court then independently determines the propriety of the
trial court's conclusions of law.
In this case, the trial court found that at appellants' trial, Williams
denied the existence of any agreement with the state. It further found
that appellants failed to produce any credible evidence that there was
a plea agreement with the state. It found that there was a plea
29

agreement between Williams and the federal government but that this
agreement was disclosed in discovery. Finally, the court found that
no agreement existed between Williams and the state.
The trial court's determination that no agreement existed between
Williams and the state is not against the manifest weight of the
evidence. In addition to the evidence detailed by appellants above,
the following evidence was also presented.
Straus testified that when he filed the request to nolle prosequi
Williams' drug case, his facts were not completely accurate. (Tr. 95).
He stated that he misspoke in his request because he had not fully
digested what had occurred in this case. (Tr. 102). Straus testified that
once he had reviewed all of the information in this case, it became
obvious to him that Williams did not have an agreement with the
state. (Tr. 103). He gave the following narrative of events.
Williams was one of four defendants in what was known as the
“Greyhound bus” drug case. (Tr. 95). Williams, along with
co-defendants, Logan, Vance, and Lofton, were all indicted on the
same charges. (Tr. 95-96). Lofton and Logan both entered pleas and
received probation. (Tr. 96). The prosecutor then dismissed the
charges against Vance. (Tr. 96). These three men then left the area
and the former prosecutor did nothing to secure their testimony. (Tr.
96-97). Without the testimony of at least one of the co-defendants,
the state could not prosecute Williams successfully. (Tr. 97).
Straus stated that he was confused about the state of the Williams
drug case and how it related to Williams' federal charges. (Tr. 97).
After he filed his request to nolle prosequi Williams' drug charges, he
spoke with Ferro. (Tr. 97). He then located a note from Ferro to an
assistant prosecutor wherein Ferro advised her that Williams' charges
were included in a federal charge as part of the federal agreement.
(Tr. 97). Straus stated that when he filed the request to nolle prosequi,
he was unsure whether Williams actually got a recommendation for
dismissal because he had cooperated in appellants' cases or whether
Ferro had been satisfied that the issues raised in Williams' drug case
were being adequately handled in the federal case. (Tr. 98).
Since that time, Straus stated that he reviewed Williams' federal plea
agreement. (Tr. 98). He pointed out that the agreement specifically
references Williams' Ohio drug offense. (Tr. 98; Def. Ex. A). Straus
stated that he believed that Ferro was satisfied that Williams' drug
case should be dismissed because it was addressed in his federal case.
30

(Tr. 98). Straus testified that he believed that Ferro was satisfied that
if Williams testified truthfully in appellants' trial and if Williams'
state drug case was wrapped up in his federal case, then Ferro would
no longer pursue the drug charges against Williams because Williams
would be adequately punished. (Tr. 100).
Straus further stated that in addition to this reason, his other reason
for requesting to nolle prosequi the drug case was that after reviewing
it with the Steubenville police, he concluded that the evidence did not
exist to successfully prosecute the case. (Tr. 99).
Additionally, Detective Jonathan Sowers testified that he had
discussed this matter with Straus and conveyed to him that there was
no case against Williams to prosecute. (Tr. 126-27, 141). Detective
Sowers also testified that in a conversation with Williams, Williams
told him that his state drug charges were being handled as part of his
federal plea deal. (Tr. 129-30).
This evidence supports the trial court's finding that Williams did not
have a deal with the state. This matter turned on Straus's credibility.
Determinations of witness credibility are primarily for the trier of the
facts. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212,
paragraph one of the syllabus. This is because the trier of the facts is
in the best position to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in
weighing the credibility of their testimony. State v. Wright, 10th Dist.
No. 03AP-470, 2004-Ohio-677, at ¶ 11.
Straus's testimony, if believed, demonstrates that no deal existed
between Williams and the state. Appellants' strongest argument in
support of an alleged deal is the request to nolle prosequi the drug
charges against Williams wherein Straus stated that the reason for the
motion was that Williams testified favorably in appellants' trial.
However, Straus explained himself and this misstatement in his
testimony at the post-conviction hearing. He then put his statement
on the record that the reason for requesting the nolle prosequi was not
because of a deal with Williams in exchange for his testimony, but
instead was two part: (1) Williams was already sentenced in federal
court, which took into account his drug activity in Ohio; and (2) there
was not sufficient evidence on which to prosecute Williams. The trial
court believed Straus's explanation.
31

Because the trial's court's findings were not against the weight of the
evidence, the court properly denied appellants' post-conviction
petitions as to this issue. Accordingly, appellants' first assignments
of error are without merit.
State v. Carter, 2008 WL 5228925, *3-5 (Jefferson Co. App. December 15, 2008).
This exact claim was also raised by Kelly Carter in his federal habeas corpus
petition. In the Report and Recommendation issued in that case, Magistrate Judge Abel
correctly determined that the key issue here is whether this Court is bound by the
factual findings made by the state courts, something required by 28 U.S.C. §§2254(d),
(e), unless certain exceptions contained in those statutory sections apply. In particular,
the Court must accept those findings unless they are unreasonable in light of the
evidence presented at the state evidentiary hearing. See 28 U.S.C. §2254(e)(1)(“In a
proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence”).
Magistrate Judge Abel concluded that Mr. Carter was unable to meet his burden
of showing that the state trial court’s determination of the facts was not reasonably
based on the evidence presented. This Court finds that petitioner has similarly failed to
meet that burden. The state court of appeals opinion recites in detail the testimony on
which that finding was based, including the testimony of Prosecutor Straus that there
was, in fact, no deal; that when he appeared to have said something contrary, he either
misspoke or was mistaken; and that the real reasons behind dropping the drug charges
32

against Mr. Williams had to do with the strength of the case, and the belief that Mr.
Williams would be punished adequately in the federal case. Like Magistrate Judge
Abel, this Court cannot find that the state court’s factual finding was unreasonable.
That court was permitted to weight the conflicting evidence and to judge the credibility
of the witnesses who testified, and it is a rare case in which a federal court, applying the
deferential standard set forth in §§2254(d), (e) can overturn such a decision, especially
when it is a matter of judging the credibility of the witnesses. See, e.g., Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed
correct absent clear and convincing evidence to the contrary...”). Because there is no
such evidence here, this Court must accept the state court’s factual finding that no Brady
material in the form of an agreement between the Jefferson County prosecutor and Mr.
Williams relating to Mr. Williams’ testimony at petitioner’s trial ever existed. Absent
any Brady material, petitioner cannot prevail on a claim that the State improperly
withheld such material from him. His sixth ground for relief is therefore without merit.
V. RECOMMENDATION AND ORDER
Based on the foregoing, it is RECOMMENDED that grounds five and six be
denied on their merits, and that this case be DISMISSED..
VI. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days of the date of this report, file and serve on all parties written
objections to those specific proposed findings or recommendations to which objection is
33

made, together with supporting authority for the objection(s). A judge of this Court
shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a waiver of the right to appeal
the decision of the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985);United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

34