Halley v. Warden Ross Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS that petitioner's claims re 3 Petition for Writ of Habeas Corpus be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 8/12/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ZACHARY A. HALLEY,
Petitioner,

Case No. 2:13-cv-199

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, Zachary A. Halley, a prisoner at the Ross Correctional Institution located
in Chillicothe, Ohio, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254. The case is now before the Court on the petition, return of writ, and the exhibits of
the parties. No traverse has been filed and the time for doing so has long passed. For the
reasons that follow, the Magistrate Judge RECOMMENDS that petitioner’s claims be
DISMISSED.
I. PROCEDURAL HISTORY
On November 20, 2009, a Gallia County, Ohio grand jury returned a two-count
indictment charging petitioner with one count of breaking and entering in violation of Ohio
Revised Code §2911.13(A) and one count of aggravated robbery in violation of Ohio
Revised Code §2911.01(A)(1). The charges accused him of committing the first offense on
or about October 14, 2009 and the second one on or about November 14, 2009. He entered
a plea of not guilty. His case was tried to a jury on July 22, 2010, and on the same day the

jury returned guilty verdicts on both counts. In a judgment entry filed on July 29, 2010, the
trial judge sentenced petitioner to an aggregate term of eleven years of incarceration.
Petitioner filed a timely notice of appeal to the Fourth Appellate District Court of
Appeals. In his brief, he raised the following assignments of error:

I.

THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING
HEARSAY TESTIMONY TO BE ENTERED ONTO THE RECORD.

II.

DEFENDANT ZACHARY HALLEY RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR THE FOLLOWING REASONS:
A:

HIS ATTORNEY REFUSED TO ALLOW HIM TO TESTIFY TO
ALIBI OR ON HIS OWN BEHALF, THEREBY LEAVING THE
STATE’S EVIDENCE UNCONTESTED;

B:

HIS ATTORNEY FAILED TO MOVE THE COURT FOR AN
ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29

III.

THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.

IV.

THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO
SUSTAIN CONVICTIONS OF BURGLARY AND BREAKING AND
ENTERING.

V.

THE CUMULATIVE ERROR IN THE TRIAL DEPRIVED THE
DEFENDANT OF A FAIR TRIAL.

In an opinion issued on March 30, 2012, the court of appeals overruled each
assignment of error and affirmed the judgment of the trial court. State v. Halley, 2012 WL
1245659 (Gallia Co. App. Mar. 30, 2012). The Court considered Halley’s first assignment
of error under a plain error analysis.
On May 11, 2012, petitioner, acting pro se, filed with the Ohio Supreme Court a
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notice of appeal from his direct appeal. He set forth the following propositions of law:
I.

II.

III.
IV.
V.

The trial [court] committed plain error in permitting hearsay
testimony to be entered onto the record pursuant to Rule 801 of the
Ohio Rules of Evidence.
Defendant Zachary Halley received ineffective assistance of cousnel
for the following reasons: (A) His attorney refused to allow him to
testify to Alibi or on his own behalf, thereby leaving the State’s
evidence uncontested; (B) His attorney failed to move the court for an
acquittal pursuant to Ohio Criminal Rule 29.
The conviction was against the manifest weight of the evidence.
The state failed to produce sufficient evidence to sustain convictions
of burglary and breaking and entering.
The cumulative error in the trial deprived the defendant of a fair trial.

On September 5, 2012, the Ohio Supreme Court denied leave to appeal and
dismissed the appeal as not involving any substantial constitutional question. State v.
Halley, 132 Ohio St.3d 1514 (Sept. 5, 2012). This timely petition followed.
II. THE FACTS
The facts of this case were summarized by the state court of appeals, in its Opinion
of March 30, 2012, as follows.

On October 14, 2009, appellant and his brother, Nathan Halley,
visited Clifford's Auto Parts. Carl Clifford Stapleton, the owner of the
business, and an employee, Keith Pugh, knew the Halley brothers. In fact,
appellant had previously worked for Stapelton [sic]. The Halley brothers
lingered for approximately fifteen minutes, during which time Nathan
remained inside and talked with Stapleton and Pugh, while appellant
entered and exited the building several times. After the Halley brothers left,
Pugh went outside to lock an outer building. Pugh then discovered three
missing catalytic converters that had been stored inside a building prior to
the Halleys' arrival.
A short time later, the Halleys appeared at “L & L,” a scrap metal and
recycling business, and sold three catalytic converters to Chris Lester, the
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owner's son, for $100. Suspecting that the Halleys may have been involved
in the missing parts, and that they may have tried to sell them, Pugh visited
L & L the next day. At L & L, Pugh identified the parts that the Halleys sold
to Lester as the parts he had removed the previous day, shortly, before the
Halleys arrival at Clifford's Auto Parts.
The following month, Janet Jackson was working at the Dollar General
Store when a man entered the store, took a Pepsi from a cooler and
proceeded to the check-out counter. When Jackson opened the cash register,
the man brandished a knife, demanded all of the money in the register and
quickly fled the store. Although Jackson did not recognize the man,
surveillance video captured the incident. Jonna Cutlip, another Dollar
General employee, came to work the next day and viewed the video tape.
Cutlip recognized the appellant as the perpetrator.
The Gallia County Grand Jury returned an indictment that charged
appellant with breaking and entering (Clifford's Auto Parts), as well as
aggravated robbery (Dollar General). Appellant pled not guilty and the
matter came on for jury trial on July 22, 2010.
At trial, Keith Pugh testified that the catalytic converters that appellant
sold to L & L were the same ones that he removed from cars the previous
day. Janet Jackson also identified appellant as the man who robbed Dollar
General. Additionally, Carla Durham, from the Ohio Bureau of Criminal
Investigation (BCI), testified that she matched appellant's finger prints to
prints on the Pepsi bottle that the perpetrator brought to the counter.
State v. Halley, supra, at *1.
III. PETITIONER’S HABEAS CLAIMS
Petitioner filed his habeas corpus petition in this Court on March 7, 2013. In his
petition, he raised the following four grounds for relief:
Ground One: THE TRIAL COURT COMMITTED PLAIN ERROR IN
PERMITTING HEARSAY TESTIMONY TO BE ENTERED ONTO
THE RECORD PURSUANT TO RULE 801 OF THE OHIO RULES OF
EVIDENCE.
Supporting FACTS: The error of permitting hearsay evidence in the
case at bar was plain error because the jury heard testimony offered
by non-declarants offered for the truth of the matter asserted. The
hearsay testimony helped establish a false fact in the mind of the jury:
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that an eyewitness to the crime positively identified Zachary Halley
as the perpetrator of the crime base[d] solely on his or her personal
[knowledge] of Zachary Halley. No such fact was ever established via
legitimate evidence at the trial.
Ground Two: ZACHARY HALLEY RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR THE [FOLLOWING REASONS:]
1. ATTORNEY REFUSED TO ALLOW HIM TO TESTIFY TO ALIBI
OR ON HIS OWN BEHALF [2]. HIS ATTORNEY FAILED TO MOVE
THE COURT FOR AN ACQUITTAL PURSUANT TO OHIO
CRIMINAL RUL[E] 29.
Supporting FACTS: Zachary Halley [needed] to take the stand and
explain how his fingerprints came to be on the bottle of pop found at
the scene of the Dollar General crime. Defendant should have out of
necessity testified on his own behalf. Without defendant’s testimony,
there is no evidence at the time of the crime. Defense counsel failed
to issue subpoenas to material witnesses that would have provided an
alibi for the Defendant. Defense counsel failed to move for an
acquittal pursuant to Ohio Criminal Rule 29 at the close of the State’s
case; not doing so put the case in the hands of a jury that was already
prejudiced against Zachary Halley because of the other errors made
by the trial Court and defense counsel, and therefore the fairness of
the proceeding was compromised.
Ground Three:
THE CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Supporting FACTS: The owner of Clifford’s Auto Parts, testified that
he had no knowledge of Zachary taking anything from his property.
Employees, also admitted that he [sic] did not see Zachary take
anything from the premises. Further, Mr. Pugh testified that a time
period of approximately 50 minutes passed between the time he
place[d] the catalytic converters in the parts building and when he
allegedly discovered the converters were missing. Such a time period
certainly was sufficient for many other people to possibly have access
to the area in question.
Ground Four: THE STATE FAILED TO PRODUCE SUFFICIENT
EVIDENCE TO SUSTAIN CONVICTIONS [FOR] BURGLARY AND
BREAKING AND ENTERING.
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Supporting FACTS: The evidence was legally insufficient to sustain
the conviction. There was no direct evidence provided by the State of
Ohio proving the elements of Breaking and Entering. Additionally,
the only eye witness to the crime at Dollar General provided physical
characteristics of the alleged perpetrator that did not match the
physical characteristics of Zachary Halley. The evidence was
insufficient to sustain both convictions.
The parties do not dispute that petitioner’s petition for habeas corpus is timely and that
petitioner exhausted the claims he presents in his petition. However, respondent
argues that petitioner’s first ground for relief was procedurally defaulted, that the third
ground is not cognizable in federal habeas corpus, and that the remaining two grounds
are without merit. Those arguments are addressed below.
A. GROUND ONE
Respondent argues that Ground One, which asserts that the trial court
committed plain error in permitting hearsay testimony to be entered onto the record,
has been procedurally defaulted.
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the
state courts to protect the constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the
state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an

6

avenue open to him by which he may present his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). But if, because
of a procedural default, the petitioner can no longer present his claims to the state
courts, then he has also waived those claims for purposes of federal habeas corpus
review, unless he can demonstrate both cause for the procedural default, as well as
actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478,
485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87
(1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court
must determine that there is a state procedural rule that is applicable to the petitioner's
claim and that the petitioner failed to comply with the rule.” Id. Second, the Court
must determine whether the state courts actually enforced the state procedural sanction.
Id. Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined that a state procedural
rule was not complied with, and that the rule was an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
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error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the first prong – whether petitioner failed to comply with an
applicable state procedural rule – respondent argues that petitioner failed to comply
with Ohio’s “contemporaneous objection rule.” A review of the transcript confirms that
petitioner made no contemporaneous objection during the testimony of Police Officer
Holcomb. (Doc. 8-1.) Respondent argues that this failure to object violated Ohio’s
“contemporaneous objection rule, Ohio R. Crim. P. 30,” which, it argues “requires a
party to make an objection at trial in order to preserve an issue for appellate review.”
(Doc. 7.) However, Rule 30 is entitled “Instructions” and appears to relate only to
objections with respect to jury instructions:
(A) Instructions; error; record
At the close of the evidence or at such earlier time during the trial as the
court reasonably directs, any party may file written requests that the court
instruct the jury on the law as set forth in the requests. Copies shall be
furnished to all other parties at the time of making the requests. The court
shall inform counsel of its proposed action on the requests prior to
counsel's arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also may give
some or all of its instructions to the jury prior to counsel's arguments. The
court shall reduce its final instructions to writing or make an audio,
electronic, or other recording of those instructions, provide at least one
written copy or recording of those instructions to the jury for use during
deliberations, and preserve those instructions for the record.
On appeal, a party may not assign as error the giving or the failure to give
any instructions unless the party objects before the jury retires to consider
its verdict, stating specifically the matter objected to and the grounds of
the objection. Opportunity shall be given to make the objection out of the
hearing of the jury.
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(B) Cautionary instructions
At the commencement and during the course of the trial, the court may
give the jury cautionary and other instructions of law relating to trial
procedure, credibility and weight of the evidence, and the duty and
function of the jury and may acquaint the jury generally with the nature of
the case.
Ohio Crim. R. 30. Although nothing in the text of the rule indicates that it applies to
any area of trial other than jury instructions, there appears to be a non-codified Ohio
contemporaneous objection rule that applies to any error that could have been avoided
or corrected by the trial court if a contemporaneous objection were made. LeFort v.
Century 21-Maitland Realty Co., 32 Ohio St. 3d 121, 123, 512 N.E.2d 640, 643 (Ohio 1987)
(“An appellate court will not consider any error which a party complaining of a trial
court's judgment could have called but did not call to the trial court's attention at a time
when such error could have been avoided or corrected by the trial court.”) (citations
omitted). The Court of Appeals has recognized this broad contemporaneous objection
rule. See, e.g., Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001).
In Hinkle v. Randle, the Court of Appeals held that a claim for prosecutorial
misconduct claim involving the prosecutor’s statements in closing argument was
procedurally defaulted. 271 F.3d at 244. The Court of Appeals noted, “[w]e have held
that Ohio's contemporaneous objection rule constitutes an adequate and independent
state ground that bars federal habeas review absent a showing of cause and prejudice.”
271 F.3d at 244. Similarly, in Williams v. Bagley, the Court of Appeals applied the
contemporaneous objection rule to petitioner’s failure to object to prosecutor’s
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impermissibly vouching for the credibility of petitioner’s accomplices during their
testimony. 380 F.3d 932, 968 (6th Cir. 2004). Here, there was no objection to the
testimony of Officer Holcomb. Had the trial court concluded that the testimony at issue
was hearsay, a timely objection could have either prevented the testimony from being
given or could have resulted in a curative instruction. Accordingly, Ohio’s
contemporaneous objection rule applied, and the first prong of the procedural default
analysis is satisfied.
Second, the Court must determine whether the state courts actually enforced the
state procedural sanction. “In determining whether state courts have relied on a
procedural rule to bar review of a claim, we look to the last reasoned opinion of the
state courts and presume that later courts enforced the bar instead of rejecting the
defaulted claim on its merits.” Hinkle, 271 F.3d at 244. Here, the state appellate court,
which issued the last reasoned opinion reviewing petitioner’s claim that hearsay was
improperly admitted into evidence, applied a plain error analysis:
In the case sub judice, we do not accept appellant’s assertion that the
testimony at issue constitutes inadmissible hearsay. . . . Further, even if we
assume, for purposes of argument, that [the witness’s] testimony included
hearsay, we would not find plain error in this case. It is well-settled that
notice of Crim. R. 52(B) plain error must be taken with utmost caution,
under exceptional circumstances and only to prevent a manifest
miscarriage of justice. . . . More important, to find plain error we must be
able to say that, but for the error, the outcome of the trial clearly would
have been otherwise. . . . In the case sub judice, in light of the fact that
Jackson selected appellant from a photographic line up, as well as
appellant’s finger prints on the Pepsi bottle that the assailant handled just
before he robbed the store, we cannot conclude that the outcome of this
trial would have been different if the alleged hearsay had been excluded.
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Moreover, we also conclude that in view of the evidence adduced at trial,
this alleged error would be harmless beyond a reasonable doubt.
State v. Halley, 2012-Ohio-1625 at ¶22 (citations omitted). Respondent argues that by
applying plain error review pursuant to Criminal Rule 52(b), the state appellate court
was enforcing the contemporaneous objection rule. Hinkle supports this argument,
noting that the Court of Appeals “view[s] a state appellate court's review for plain error
as the enforcement of a procedural default.” 271 F.3d at 244 (citations omitted); see also
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling precedent in our circuit
indicates that plain error review does not constitute a waiver of state procedural default
rules”) (citations omitted).
The fact that the state appellate court here also noted that it did “not accept
appellant’s assertion that the testimony at issue constitute[d] inadmissible hearsay” did
not remove the procedural default. See Conley v. Warden Chillicothe Corr. Inst., 505 F.
App'x 501, 506 (6th Cir. 2012) (“The Ohio court's alternative ruling on the merits did not
remove the procedural default because ‘a state court need not fear reaching the merits
of a federal claim in an alternative holding,’” citing Harris v. Reed, 489 U.S. 255, 264 n.10
(1989) and Coe v. Bell, 161 F.3d 320, 330 (6th Cir.1998)). The Court of Appeals in Conley
noted that in that case “[t]he Ohio Court of Appeals found no plain error on the record
and held that ‘Additionally, appellant has not persuaded us that the comments actually
constitute prosecutorial misconduct,’” and still held that the Ohio appellate court did
not waive the procedural default. Conley v. Warden Chillicothe Corr. Inst., 505 F. App'x

11

501, 506 (6th Cir. 2012) (citation omitted). Accordingly, the state appellate court’s
application of plain error review satisfies the second prong of the procedural default
analysis.
Third, it must be decided whether the state procedural forfeiture is an adequate
and independent state ground upon which the state can rely to foreclose review of a
federal constitutional claim. As noted above, the Court of Appeals in Hinkle noted that
it had “held that Ohio's contemporaneous objection rule constitutes an adequate and
independent state ground that bars federal habeas review absent a showing of cause
and prejudice.” 271 F.3d at 244. The Williams decision also confirmed that Ohio’s
contemporaneous objection rule was an adequate and independent state ground. 380
F.3d at 968-69.
Finally, if the Court has determined that a state procedural rule was not
complied with, and that the rule was an adequate and independent state ground, then
the petitioner must demonstrate that there was cause for him not to follow the
procedural rule, and that he was actually prejudiced by the alleged constitutional error.
This “cause and prejudice” analysis applies to failures to raise or preserve issues for
review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Petitioner
has not filed a traverse, and the facts he lists in his petition in support of Ground One
do not describe any cause for the default or prejudice from the alleged error. Generally
speaking, “ignorance of the law and procedural requirements ... is insufficient to
establish cause to excuse [a] procedural default.” Bonilla v. Hurley, 370 F.3d 494, 498 (6th
12

Cir. 2004). Furthermore, petitioner has not preserved any argument that counsel was
ineffective for failing to object to the introduction of the testimony at issue. Murray v.
Carrier, 477 U.S. 478, 488-89 (1986) (“Ineffective assistance of counsel, then, is cause for a
procedural default. However, we think that the exhaustion doctrine . . . generally
requires that a claim of ineffective assistance be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default”).
Thus, the Court cannot find cause and prejudice sufficient to excuse the procedural
default of Ground One, and it will be recommended that Ground One be dismissed due
to its having been procedurally defaulted in the state courts.
B. GROUND THREE
Respondent argues that ground three - that the conviction was against the
manifest weight of the evidence – is not cognizable in federal habeas corpus because it
is not based upon a federal constitutional right but instead arises solely under Ohio law.
Petitioner has not filed a traverse and has therefore not responded to this argument.
This Court has consistently held that a claim that a jury's verdict was against the
manifest weight of the evidence cannot be considered on its merits in an action for
habeas corpus relief filed under 28 U.S.C. § 2254. That is because § 2254 permits federal
courts to grant relief to a state prisoner only if there is a showing that the person is
being held in custody in violation of the Constitution or laws of the United States.
Neither the Constitution nor the laws of the United States require reversal of a jury's
verdict if it is against the manifest weight of the evidence; such a claim is based entirely
13

on Ohio law. As the Court explained in Norris v. Warden, NCI, No. 2:08-CV-732, 2010
WL 582623, *9–10 (S.D. Ohio Feb. 11, 2010), adopted and affirmed 2010 WL 883847 (S.D.
Ohio Mar. 9, 2010):
Petitioner's contention . . . that his convictions are against the manifest
weight of the evidence fails to present an issue appropriate for federal
habeas corpus review. The Due Process Clause does not provide relief for
defendants whose convictions are against the manifest weight of the
evidence, but only for those who have been convicted without enough
proof to allow a rational trier of fact to find guilt beyond a reasonable
doubt. Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983). . . . [U]nder Ohio
law, a claim that a verdict was against the manifest weight of the
evidence-as opposed to one based upon insufficient evidence-requires the
appellate court to act as a “thirteenth juror” and review the entire record,
weight the evidence, and consider the credibility of witnesses to
determine whether “the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1983); cf. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652
(1982). Since a federal habeas court does not function as an additional state
appellate court, vested with the authority to conduct such an exhaustive
review, any claim that petitioner's conviction was against the manifest
weight of the evidence cannot be considered by this Court.
While courts have sometimes liberally construed a claim that the verdict was
against the manifest weight of the evidence as raising a claim based on the sufficiency of
the evidence, See Nash v. Eberlin, 437 F.3d 519, 522 (6th Cir. 2006) (noting that the
“manifest-weight-of-the-evidence claim did not raise an issue of federal law,” but that
the district court liberally construed the petition “to raise a claim based on sufficiency of
the evidence”), petitioner here has separately asserted sufficiency of the evidence in
Ground Four. Accordingly, Ground Three does not raise an issue of federal law and
should be dismissed.
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C. GROUNDS CONSIDERED ON THE MERITS
Respondent acknowledges that Ground Four and Ground Two were properly
raised before the Ohio courts and are properly before the Court here. However,
respondent argues that both grounds are meritless and should be denied. The Court
reviews both of the remaining grounds under the legal standard set out by Congress in
28 U.S.C. §2254(d).
1. Legal Standard
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.
104–132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.
Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d
682, 691 (6th Cir. 2008). “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1862 (2010) (citations
omitted).
When the claims presented in a habeas corpus petition have been presented to
and decided by the state courts, 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. 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
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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
(2) 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
In applying this statute, the Supreme Court has held that “[t]he focus ... is on whether
the state court's application of clearly established federal law is objectively
unreasonable ... an unreasonable application is different from an incorrect one.” Bell v.
Cone, 535 U.S. 685, 694 (2002); see also Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1862
(2010). To obtain habeas corpus relief, a petitioner must show the state court's decision
was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Bobby v. Dixon, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011) (citation and internal quotation
mark omitted). This bar is “difficult to meet” because “habeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 131 S.Ct. 770, 786
(2011) (citation omitted). In short, “[a] state court's determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court's decision.” Id. (citation omitted).
2. Ground Four
Petitioner’s Fourth Ground is that the state failed to produce sufficient evidence
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to sustain the convictions. A challenge to the sufficiency of the evidence, when made in
a habeas corpus petition subject to the AEDPA, must meet an exacting standard. As
this Court explained in Lynch v. Hudson, 2011 WL 4537890, *81–82 (S.D. Ohio Sept. 28,
2011):
In Jackson v. Virginia [443 U.S. 307 (1979) ], the United States Supreme
Court held that as a matter of fundamental due process, a criminal
conviction cannot stand unless each essential element is proven beyond a
reasonable doubt. 443 U.S. at 316. The Supreme Court explained that
when reviewing a challenge to the constitutional sufficiency of the
evidence supporting a criminal conviction, “the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319. The Supreme
Court cautioned, with respect to the role of a reviewing court, that “[t]his
familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id. Thus, after
reviewing the evidence in a light most favorable to the prosecution and
respecting the trier of fact's role in determining witnesses' credibility and
weighing the evidence, a federal court must grant habeas corpus relief “if
it is found that upon the record evidence at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” Id. at 324.
It is important to remember when reviewing a sufficiency of the evidence
challenge that this Court “do[es] not reweigh the evidence, re-evaluate the
credibility of the witnesses, or substitute [its] judgment for that of the
jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). If the record
contains credible, competent evidence enabling a rational jury to find each
essential element beyond a reasonable doubt, then Petitioner's challenge
to the sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319 F.3d
780, 788–89 (6th Cir. 2003) (“The mere existence of sufficient evidence to
convict therefore defeats a petitioner's claim.”).
Further, as the Sixth Circuit has explained, “[i]n a habeas proceeding,
however, we cannot simply conduct de novo review of the state court's
application of [the Jackson v. Virginia ] rule, but must review its
sufficiency-of-the-evidence decision under the highly deferential standard
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of the AEDPA.” Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.2008). In Tucker
v. Palmer, 541 F.3d 652 (6th Cir.2008), the Sixth Circuit explained in more
detail:
Accordingly, the law commands deference at two levels in
this case: First, deference should be given to the trier-of-fact's
verdict, as contemplated by Jackson; second, deference
should be given to the Michigan Court of Appeals'
consideration of the trier-of-fact's verdict, as dictated by the
AEDPA.
Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007); Nash v.
Eberlin, 258 F. App'x 761, 765 (6th Cir. 2007). This Court recognizes,
however, that “even after AEDPA, [the Court] must ‘distinguish
reasonable speculation from sufficient evidence’ when reviewing a state
court's application of Jackson.” Smith v. Romanowski, No. 07–1578, 2009
WL 1884451, at *6 (6th Cir. Jul.1, 2009) (Moore, J., dissenting) (quoting
Brown v. Palmer, 441 F.3d 367, 352 (6th Cir.2006)).
The state court of appeals addressed this claim on its merits. In setting forth the
standard of review it would follow when analyzing petitioner’s sufficiency of the
evidence claim, the state court of appeals did not cite to any federal court decisions. It
did, however, rely on several Ohio decisions, including State v. Thompkins, 78 Ohio St.
3d 380, 678 N.E.2d 541 (1997). Thompkins, in turn, cited to both Tibbs v. Florida, 457 U.S.
31, 45 (1982) and Jackson v. Virginia, 443 U.S. 307 (1979) for the proposition that “a
conviction based on legally insufficient evidence constitutes a denial of due process.”
State v. Thompkins, 78 Ohio St.3d at 386–87. Thus, the state court of appeals identified
the controlling legal principle as set out by the United States Supreme Court.
The state court of appeals also applied that principle properly. It considered the
evidence supporting each of the convictions. First, the court cited to R.C. 2911.13(A),

18

which proscribes the trespass into an unoccupied structure, by stealth or deception, to
commit a theft offense. The following facts from the Court of Appeals’ summary of
facts apply to this conviction:
•

On October 14, 2009, appellant and his brother, Nathan Halley, visited
Clifford's Auto Parts.

•

Carl Clifford Stapleton, the owner of the business, and an employee, Keith
Pugh, knew the Halley brothers. In fact, appellant had previously worked
for Stapelton [sic].

•

The Halley brothers lingered for approximately fifteen minutes, during
which time Nathan remained inside and talked with Stapleton and Pugh,
while appellant entered and exited the building several times.

•

After the Halley brothers left, Pugh went outside to lock an outer
building. Pugh then discovered three missing catalytic converters that had
been stored inside a building prior to the Halleys' arrival.

•

A short time later, the Halleys appeared at “L & L,” a scrap metal and
recycling business, and sold three catalytic converters to Chris Lester, the
owner's son, for $100.

•

Suspecting that the Halleys may have been involved in the missing parts,
and that they may have tried to sell them, Pugh visited L & L the next day.
At L & L, Pugh identified the parts that the Halleys sold to Lester as the
parts he had removed the previous day, shortly, before the Halleys arrival
at Clifford's Auto Parts.

•

At trial, Keith Pugh testified that the catalytic converters that appellant
sold to L & L were the same ones that he removed from cars the previous
day.

In describing the supporting evidence and its evaluation of the parties’
arguments, the state appellate court added an additional piece of evidence: “The
evidence reveals that Pugh placed three catalytic converters into an out-building shortly
before the Halleys visited Clifford’s Auto Parts.” The appellate court’s analysis was as
follows:
19

Appellant argues that this evidence is “weak, circumstantial evidence” at
best. However, circumstantial evidence possesses the same probative
value as direct evidence. Jenks, supra, at paragraph one of the syllabus; also
see State v. Rhoads, Highland App. No. 08CA25, 2009–Ohio–4180, at ¶ 22.
Whether evidence is direct in nature or circumstantial, the jury is being
asked to do the same thing: “weigh the chances that the evidence ...
correctly points to guilt” and “use its experience with people and events in
weighing the probabilities.” Holland v. United States (1954), 348 U.S. 121,
140, 75 S.Ct. 127, 99 L.Ed. 150; also see State v. Terry, 186 Ohio App.3d 670,
929 N.E.2d 1111, 2010–Ohio–1604, at ¶ 23. The fact that Pugh placed these
parts into the out-building shortly before the Halleys arrived, that the
parts were missing soon after they left, and the fact that the Halleys sold
three catalytic converters to L & L a short time later—provides sufficient
evidence upon which the trier of fact could render a guilty verdict on
breaking and entering.
State v. Halley, 2012 WL 1245659, at *2.
The state appellate court correctly noted that circumstantial evidence has the
same probative value as testimonial evidence and that a conviction may be sustained on
circumstantial evidence alone. Tucker v. Palmer, 541 F.3d 652, 657 (6th Cir. 2008) (“In
assessing the adduced proof, the Court may sustain a conviction based upon nothing
more than circumstantial evidence. . . . . Indeed, the Supreme Court has explained that
circumstantial evidence is ‘intrinsically no different from testimonial evidence,’ and that
both ‘may in some cases point to a wholly incorrect result.’”) (citations omitted).
In addition, this Court’s independent review of the trial transcript, Doc. 8-1,
confirms that the appellate court’s summary of the evidence is accurate. On direct
examination, Carl Clifford Stapleton, the owner of Clifford’s Auto Parts, testified that
on October 14, 2009, petitioner and his brother Nathan Halley came in to the business.
(Tr. at 141:24-143:15.) He testified that he had known the brothers for a long time and
20

that petitioner worked for him “a few weeks here and there.” (Tr. at 144:4-11.) Keith
Pugh, who works at Clifford’s Auto Parts “pulling parts,” also testified that he had
known petitioner and his brother Nathan Halley for a long time and that they came to
Clifford’s on the afternoon of October 14, 2009. (Tr. at 152:21-154:10.) Pugh testified
that petitioner and his brother came in, that petitioner’s brother stood inside the
building and talked to Pugh for about fifteen minutes, and during that time petitioner
came in and out a few times and then said that he had to go make a phone call. (Tr. at
154:11-155:1.) Pugh testified that about 10 or 15 minutes after petitioner and his brother
left, he went out to lock the garage, which was separate from the office, and noticed that
converters were missing. (Tr. at 155:2-19.) Stapleton’s testimony specified that three
converters were missing, and Pugh described three converters when testifying about
the picture of the converters that were missing. (Tr. at 145:13-19; 157:1-158:20.) Pugh
testified that he “had just cut them off and put them in the building.” (Tr. at 158:18-25.)
Chris Lester, who worked at L&L Scrap Metal and Recycling, Inc., testified on direct
examination that on October 14, 2009 petitioner and his brother came to L&L shortly
after the business closed at 4:30 and sold some converters to L&L for $100. (Tr. at
171:14-176:17.) Pugh testified that when he noticed the converters were missing, he
called L&L; L&L said they had the converters and set them aside so that Pugh could
come look at them. (Tr. at 159:14-160:9.) Lester confirmed that someone from Clifford’s
called him to ask if someone had sold the converters to him and Lester set aside the
converters and showed them to the Clifford’s employee the next day. (Tr. at 176:1821

177:24.) Pugh was able to identify the catalytic converters at L&L as the ones that he
removed from cars on October 14, 2009 at Clifford’s Auto Parts and placed in the garage
building. (Tr. 157:1-159:13; 160:6-21.)
The question raised by the petition is whether, given this evidence, the state
courts unreasonably determined that there was enough evidence to permit a jury to
find, beyond a reasonable doubt, that petitioner committed the crimes which the jury
convicted him of. This Court finds that the state court's decision on the sufficiency of
the evidence as to the charge of trespass into an unoccupied structure, by stealth or
deception, to commit a theft offense is not unreasonable, and is, in fact, a proper
application of federal law to the facts of this case.
Second, the court turned to the Dollar General robbery. The following facts from
the Court of Appeals’ summary of facts apply to this conviction:
•

[Approximately a month after the Clifford’s Auto Parts incident], Janet
Jackson was working at the Dollar General Store when a man entered the
store, took a Pepsi from a cooler and proceeded to the check-out counter.

•

When Jackson opened the cash register, the man brandished a knife,
demanded all of the money in the register and quickly fled the store.

•

Although Jackson did not recognize the man, surveillance video captured
the incident.

•

Jonna Cutlip, another Dollar General employee, came to work the next
day and viewed the video tape. Cutlip recognized the appellant as the
perpetrator.

•

Janet Jackson also identified appellant as the man who robbed Dollar
General.

•

Additionally, Carla Durham, from the Ohio Bureau of Criminal
Investigation (BCI), testified that she matched appellant's finger prints to
prints on the Pepsi bottle that the perpetrator brought to the counter.
22

In describing the supporting evidence and its evaluation of the parties’
arguments, the Court of Appeals wrote the following:
As to the Dollar General robbery, the gist of appellant's insufficiency claim
is that Jackson did not provide a sufficiently accurate description of the
assailant. However, any discrepancy in the witness's description goes to
the credibility and weight of the evidence rather than its sufficiency.
Furthermore, we remind appellant that (1) Jonna Cutlip, another Dollar
General employee, recognized him on the surveillance video; and (2) the
Pepsi bottle he brought to the cashier, then abandoned when he fled the
store, exhibited his prints.
State v. Halley, 2012-Ohio-1625 (Ohio Ct. App. Mar. 30, 2012).
The state appellate court correctly recognized that reviewing courts should
generally not make credibility assessments or weigh evidence. Matthews v. Abramajtys,
319 F.3d 780, 788-89 (6th Cir. 2003) (“A reviewing court does not reweigh the evidence
or redetermine the credibility of the witnesses whose demeanor has been observed by
the trial court. . . . It is the province of the factfinder to weigh the probative value of the
evidence and resolve any conflicts in testimony. . . . An assessment of the credibility of
witnesses is generally beyond the scope of federal habeas review of sufficiency of
evidence claims. . . . The mere existence of sufficient evidence to convict therefore
defeats a petitioner's claim.”) (citations omitted). Because it is the role of the factfinder
to resolve any conflicts in testimony, this court should not re-weigh the evidence
regarding the degree of accuracy of the description of the assailant, but rather should
assess whether the state appellate court was unreasonable in determining that there was
sufficient evidence to convict on this count.

23

Once again this Court’s independent review of the trial transcript, Doc. 8-1,
confirms that the appellate court’s summary of the evidence is generally accurate. Janet
Jackson, the assistant manager for the Dollar General, testified that she was working on
November 14, 2009, and the store was robbed. (Tr. at 185:13-22; 186:23-188:1.) She
testified that a gentleman came in, took a Pepsi from a cooler and came to the register.
(Tr. at 188:2-189:20.) Jackson rang up the pop and turned to give him some change, and
then he pulled out a knife, told her to give him all of the money, and took the money
from the cash register. (Tr. at 189:13-190:6.) Jackson testified that the individual then
ran out the door and down the street. (Tr. at 193:18-20.) She testified on cross that she
had never seen the individual before the robbery. (Tr. at 200:6-12.) During the trial,
Jackson identified petitioner as the individual who robbed the Dollar General, and she
also testified that she identified him in a photo lineup. (Tr. at 193:21-194:3; 208:9-209:15;
249:7-13.) Jackson testified that there were surveillance cameras in the store and that
one of the cameras captured the robbery. (Tr. at 194:4-195:12.) At trial, the prosecution
played the video of the robbery. (Tr. at 194:22-196:25.) A police officer and a detective
sergeant for the police testified that another Dollar General employee who was not
working the night of the offense called the following day and identified petitioner (who
she knew) from watching the surveillance video. (Tr. at 235:13-236:19; 239:5-20; 243:1-6;
257:14-259:1.) The police collected the Pepsi bottle that the perpetrator left on the
counter and had it fingerprinted (tr. at 220:21-221:1; 221:23-225:24; 249:17-250:4), and
Carla Durham from the Ohio Bureau of Criminal Investigation testified that three
24

fingerprints matched petitioner’s fingerprints. (Tr. at 263:3-265:20; 268:18-269:14.)
In light of this evidence including petitioner’s fingerprints on the Pepsi bottle,
this Court finds that the state court's decision on the sufficiency of the evidence as to the
charge of robbery is not unreasonable.
3. Ground Two
Petitioner claims that he received ineffective assistance of counsel. As argued in
his appellate brief, the gist of this claim is (1) that his attorney refused to allow him to
testify; (2) that his attorney failed to issue subpoenas to material witnesses that would
have provided an alibi for petitioner; and (3) that his attorney failed to move the court
for an acquittal pursuant to Ohio Criminal Rule 29 at the close of the State’s case.
Because this Court's task is to determine if the state court's decision on these issues
constituted an unreasonable application of clearly established federal law, the analysis
begins with the state appellate court's treatment of this claim. That court said:
{¶ 24} Our analysis of appellant's argument begins with the settled
premise that a criminal defendant has a constitutional right to counsel,
and this right includes the right to effective assistance from counsel.
McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d
763; In re C.C., Lawrence App. No. 10CA44, 2011–Ohio–1879, at ¶ 10. To
establish a claim of ineffective assistance of counsel, a defendant must
show (1) his counsel's deficient performance, and (2) such deficient
performance prejudiced the defense and deprived the defendant of a fair
trial. See e.g. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674; also see State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d
104, 2009–Ohio–6179, at ¶ 200. However, both prongs of the Strickland test
need not be analyzed if a claim can be resolved under just one. State v.
Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000–Ohio–448; also
see State v. Saultz, Ross App. No. 09CA3133, 2011–Ohio–2018, at ¶ 19. In
other words, if it can be shown that an error does exist, but did not
25

prejudice an appellant, the ineffective assistance claim can be resolved on
that basis alone. To establish the existence of prejudice, a defendant must
generally show that a reasonable probability exists that, but for counsel's
alleged error, the result of the trial would have been different. See State v.
White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42
Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus.
{¶ 25} At the outset, we note that even if appellant could establish that his
trial counsel's representation was deficient in some respects, we are not
persuaded that the outcome of his trial would have been otherwise. Most
of appellant's arguments are based upon speculation and, as we have held
many times, the prejudice prong of Strickland must be affirmatively
proven rather than simply assumed. See State v. Hughes, Athens App. No.
08CA19, 2010–Ohio–2969, at ¶ 27; State v. Clark, Pike App. No. 02CA684,
2003–Ohio–1707, at ¶ 22; State v. Tucker (Apr. 2, 2002), Ross App. No. 01
CA2592. With this information in mind, we turn our attention to the
specific instances of the alleged ineffective assistance.
{¶ 26} First, appellant argues that his trial counsel was deficient by
“refus[ing] to allow him to testify to alibi or on his own behalf.”
Appellant, however, cites nothing in the record to substantiate his
underlying premise that he wanted to testify, but that trial counsel denied
him the opportunity. Second, a criminal defendant that opts to not take
the witness stand is oftentime sound trial strategy. Damaging information
may be elicited from the criminal defendant witness, especially during
cross-examination. Trial tactics, even debatable ones, are not generally
viewed as ineffective assistance. State v. Westbrook, Scioto App. No.
09CA3277, 2010–Ohio–2692, at ¶ 30; State v. Madden, Adams App. No.
09CA883, 2010–Ohio–176, at ¶ 25; State v. Lewis, Pickaway App. No.
09CA7, 2010–Ohio–130, at ¶ 21. Finally, appellant claims that he had an
alibi defense to present, but that his counsel prevented him from doing so.
Our review of the record, however, reveals nothing to remotely establish
that any such alibi existed. If so, such information is outside the record
and could form the basis for a challenge other than a direct appeal.
{¶ 27} Appellant also argues that his counsel was ineffective because he
did not move for a Crim.R. 29 motion for judgment of acquittal at the
conclusion of the prosecution's case. However, this inaction would
constitute error only if any reasonable chance existed that such a motion
would have been granted. Here, appellant does not assert that such a
motion would have, in fact, been granted. Moreover, in light of our
26

previous discussion of the evidence adduced at trial, we are not
persuaded that the trial court would have granted the request. It is
axiomatic that trial counsel is not required to perform a vain act in order
to avoid an ineffective assistance claim. State v. Sowards, Gallia App. No.
09CA8, 2011–Ohio–1660, at ¶ 20; State v. Caldwell, Cuyahoga App. No.
80556, 2002–Ohio–4911, at ¶ 37; State v. Carter (Jul. 23, 1986), Hamilton
App. No. C–840121. Consequently, appellant has not demonstrated any
prejudice resulting from his trial counsel's representation.

State v. Halley, supra, at *5-6.
As the state court recognized, the controlling principles of law are set forth in
Strickland v. Washington, 466 U.S. 668 (1984). The state court also explained Strickland's
two-pronged test correctly, noting that in order to demonstrate ineffective assistance of
counsel, a petitioner must show both deficient performance of his or her attorney and
prejudice from that performance, i.e. a reasonable probability that, but for counsel's
errors, the outcome of the trial would have been different. Thus, the only question is
whether the state court unreasonably applied these principles to the facts of this case.
We will examine each part of the ineffective assistance of counsel claim in turn.
First, the state appellate court correctly determined that petitioner failed to
demonstrate that counsel denied him the opportunity to testify. While criminal
defendants do have a right to testify, the courts are to presume that defendants are able
to exercise that right unless there is evidence to the contrary:
This court entertains a strong presumption that trial counsel adhered to
the requirements of professional conduct and left the final decision about
whether to testify with the client. . . . To overcome this presumption,
[petitioner] would need to present record evidence that he somehow
alerted the trial court to his desire to testify. . . . “[a]lthough the ultimate
27

decision whether to testify rests with the defendant, when a tactical
decision is made not to have the defendant testify, the defendant's assent
is presumed.” . . . A defendant who wants to testify can reject defense
counsel's advice to the contrary by insisting on testifying, communicating
with the trial court, or discharging counsel. At base, a defendant must
alert the trial court that he desires to testify or that there is a disagreement
with defense counsel regarding whether he should take the stand. When a
defendant does not alert the trial court of a disagreement, waiver of the
right to testify may be inferred from the defendant's conduct. Waiver is
presumed from the defendant's failure to testify or notify the trial court of
the desire to do so.
Hodge v. Haeberlin, 579 F.3d 627, 639-40 (6th Cir. 2009). Here, petitioner has not, in this
Court or in the state courts, drawn the courts’ attention to any portion of the record
showing that he wanted to testify, and there does not appear to be any such evidence in
the record. Furthermore, the state appellate court reasonably determined that petitioner
failed to demonstrate prejudice from his failure to testify. Id. (“defendant must
‘affirmatively prove prejudice’”).
Second, petitioner argues that counsel was ineffective because he failed to
present evidence of petitioner’s alibi. The state appellate court concluded that there
was nothing in the record “to remotely establish that any such alibi existed.” This
Court’s independent review of the record also finds nothing to establish an alibi, nor
has petitioner provided any evidence outside the record. “Mere conclusory allegations
in support of claims of ineffective assistance of counsel are insufficient, as a matter of
law, to raise a constitutional issue.” Dell v. Straub, 194 F. Supp. 2d 629, 650 (E.D. Mich.
2002); see also Wogenstahl v. Mitchell, 668 F.3d 307, 343 (6th Cir. 2012) cert. denied, 133 S.
Ct. 311, 184 L. Ed. 2d 185 (U.S. 2012). The state appellate court was not unreasonable in
28

determining that petitioner failed to demonstrate ineffective assistance of counsel for
failure to present an alibi defense.
Finally, petitioner argues that his counsel was ineffective for failing to move the
court for an acquittal pursuant to Ohio Criminal Rule 29 at the close of the State's case.
Here, the state appellate court ruled that petitioner had not demonstrated or even
asserted that a motion to acquit would have been granted, and further determined
based on the trial evidence that reasonable minds could reach different conclusions
regarding whether the elements of the charged offense were proved beyond a
reasonable doubt. Therefore, it found that petitioner had not demonstrated any
prejudice resulting from his trial counsel's representation. That finding is buttressed by
the fact that both the state appellate court and this Court have found that the evidence
was constitutionally sufficient to support both convictions; the state trial judge would
have been faced with the same question, but would have to have come to a different
conclusion, in order to have granted a motion for judgment of acquittal on either count.
That is not likely. As discussed above, based upon this Court’s independent review of
the record, the state appellate court’s decision was not contrary to or an unreasonable
application of clearly established Federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding.
V. RECOMMENDED DISPOSITION
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that
29

petitioner’s claims be DISMISSED.
VI. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen 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 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).
The parties are further advised that, if they intend to file an appeal of any
adverse decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.

/s/ Terence P. Kemp
United States Magistrate Judge
30