McClain v. Kelly

Filing 17

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. The Magistrate Judge RECOMMENDS that this action be DISMISSED. TheMagistrate Judge further RECOMMENDS that Petitioners requests for an evidentiary hearing and for discovery be DENIED - objections due w/in fourteen (14) days of the date of this report. Signed by Magistrate Judge Terence P Kemp on 01/15/2014. (sr1)

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

Case No. 2:13-cv-269

v.
BENNIE KELLY,

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, Douglas A. McClain, a prisoner at the Grafton Correctional Institution
located in Grafton, 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, the return of writ, the traverse, and
the exhibits of the parties.

For the reasons that follow, the Magistrate Judge

RECOMMENDS that this action be DISMISSED.

The Magistrate Judge further

RECOMMENDS that Petitioner’s requests for an evidentiary hearing and for discovery
be DENIED.
I. PROCEDURAL HISTORY
In the first term of 2009, the Grand Jury of the County of Guernsey issued an
indictment charging petitioner with one count of murder in violation of Ohio Revised Code
Section 2903.02, with a firearm specification in violation of Ohio Revised Code Section
2941.145 attached. (Doc. #12, Exh. 1). The indictment charged him with purposely causing
the death of Candace O’Neill (spelled “Candice O’Neal” in the indictment) on or about

December 28, 2008. He entered a plea of not guilty. (Doc. #1). Prior to trial, petitioner filed
proposed jury instructions, including instructions on self-defense and the duty to retreat
when attacked in one’s home. (Doc. #12, Exh. 4). The State responded and filed proposed
jury instructions. (Doc. #12, Exhs. 5 & 6).
The case was tried to a jury beginning on January 26, 2010. On January 29, 2010, the
jury returned a guilty verdict. In a judgment entry filed on February 16, 2010, the trial
judge sentenced petitioner to three years for the “Firearm Specification” and an indefinite
term of fifteen years to life for the “Murder” conviction, to be served consecutively. (Doc.
#12, Exh. 12).
Petitioner, through new counsel, filed a timely notice of appeal to the Fifth District
Court of Appeals. In his brief, he raised the following assignments of error:
I.

THE TRIAL COURT’S FINDING OF GUILT IS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

II.

THE TRIAL COURT COMMITTED ERROR BY ADMITTING
EXCESSIVE PHOTOGRAPHIC EVIDENCE WHICH WERE
GRUESOME AND INFLAMMATORY.

III.

THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY
CHARGING THE JURY.

IV.

THE APPELLANT WAS DEPRIVED OF DUE PROCESS OF [sic] BY
THE MISCONDUCT OF THE PROSECUTOR.

V.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE WHICH
WAS UNFAIRLY PREJUDICIAL.

VI.

THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS
AND OF ASSISTANCE OF COUNSEL AS [sic] BECAUSE HIS TRIAL
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
2

(Doc. #12, Exh. 14, at p. i).
In an opinion issued on March 30, 2011, the state court of appeals overruled each
assignment of error and affirmed the judgment of the trial court. State v. McClain,
2011-Ohio-1623 (Guernsey Co. App. Mar. 30, 2011) appeal not allowed, 2011-Ohio-4751, 129
Ohio St. 3d 1476, 953 N.E.2d 842 (2011).
On May 16, 2011, petitioner, through his appellate counsel, filed a notice of appeal
with the Supreme Court of Ohio. (Doc. #12, Exh. 18). He set forth the following
propositions of law:
I.
II.
III.

The Appellant was deprived of Due Process of law by the misconduct
of the prosecutor.
The Appellant was deprived of Due Process of law by the ineffective
assistance of his trial counsel.
The Trial Court committed reversible error by admitting excessively
gruesome photographic evidence.

(Doc. #12, Exh. 19, at p. 2). On September 21, 2011, the Supreme Court of Ohio declined
jurisdiction to hear the case and dismissed the appeal because it did not involve any
substantial constitutional question. (Doc. #12, Exh. 20, Case No. 2011-0828).
On September 28, 2010, while petitioner’s first appeal was pending, petitioner,
through another new attorney, filed a post-conviction petition. (Doc. #12, Exh. 21). He
claimed that he was not provided effective assistance of counsel and that this resulted in
prejudice. Petitioner raised the following claims of ineffective assistance of trial counsel:
1.

Failure to call petitioner as a witness;

2.

Failure to question prospective juror;

3

3.

Admission of a[n] inaccurate diagram; and

4.

Failure to hire expert witness.

(Doc. #12, Exh. 21). On November 30, 2010, the court issued Findings of Fact / Conclusions
of Law / Judgment Entry, ruling that petitioner had “failed to prove that he was not
provided effective assistance of counsel nor that he was prejudiced by his trial counsel’s
performance,” and denying relief. (Doc. #12, Exh. 23).
On December 27, 2010, petitioner, through post-conviction petition counsel,
appealed the denial of his post-conviction petition to the Fifth District Court of Appeals,
raising one assignment of error: “THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S PETITION FOR POST CONVICTION RELIEF.” (Doc. #12, Exhs. 24 & 25).
On November 14, 2011, the state Court of Appeals issued a decision affirming the trial
court’s judgment denying the petition for post-conviction relief. (Doc. #12, Exh. 27).
On December 28, 2011, petitioner, through a fourth attorney, who is current counsel,
filed a notice of appeal with the Supreme Court of Ohio setting forth the following
proposition of law:
I.

A defendant is denied effective assistance of counsel in a case where he is
raising the affirmative defense of self-defense if counsel fails to call the
defendant as a witness, fails to challenge a prospective juror for cause, fails
to provide the jury with an accurate diagram of the incident scene and fails
to obtain a necessary expert witness.

(Doc. #12, Exhs. 28 & 29). On March 21, 2012, the Supreme Court of Ohio declined
jurisdiction to hear the case and dismissed the appeal because it did not involve any
substantial constitutional question. (Doc. #12, Exh. 30).
4

On April 23, 2012, petitioner, through counsel, filed an application for the reopening of his original direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B).
(Doc. #12, Exh. 31). Petitioner argued that appellate counsel failed to raise the following
issues in his original direct appeal:
I.

The trial court erred by improperly instructing the jury that the appellant had
a duty to retreat in his own home before he could properly assert the
affirmative defense of self-defense.

II.

Ohio’s requirement that a defendant bears the burden of proof when raising
the defense of self-defense is barred by both the federal and Ohio
constitution.

III.

The trial court erred by failing to instruct the appellant that he possessed a
right to testify.

IV.

The appellant was denied the effective assistance of trial counsel.

(Doc. #12, Exh. 31). On July 26, 2012, the state court of appeals overruled petitioner’s Rule
26(B) application for reopening, concluding that petitioner had “failed to establish good
cause for untimely filing of the application to reopen.” (Doc. #12, Exh. 33).
On August 28, 2012, petitioner, through counsel, filed a notice of appeal of that
decision with the Supreme Court of Ohio, setting forth the following propositions of law:
I.

A defendant is denied effective assistance of appellate counsel if such
counsel fails to raise meritorious issues that were not in need of
outside the record development to fully address the assignment of
error.

II.

A state appellate court possesses the discretion to address an issue
raised pursuant to Rule 26(B) Application to Re-Open even if the
application was filed outside of the 90 day filing limitation to correct
a manifest injustice.

5

(Doc. #12, Exhs. 34 & 35). On November 7, 2012, the Supreme Court of Ohio dismissed
the appeal as “not involving any substantial constitutional question.” (Doc. #12, Exh. 37).

On March 6, 2013, petitioner, through counsel, filed the instant petition for writ of
habeas corpus under 28 U.S.C. § 2254.
II. THE FACTS
The facts of this case were summarized by the state court of appeals in its Opinion
of March 30, 2011, as follows.
{¶ 2} In August, 2008, Appellant met Candace O'Neill. Although
O'Neill had her own residence, she moved into Appellant's trailer, which was
owned by his parents. In December, 2008, O'Neill began expressing concerns
about Appellant's behavior, stating that he was acting secretive about where
he went. Appellant allegedly told O'Neill that she needed to move out of his
home. On the evening of December 27, 2008, O'Neill spoke to her daughter,
Meghan. On December 27, O'Neill, who had a college degree in psychology,
asked Meghan to obtain paperwork so that O'Neill could apply for a license
to be a childcare provider in Summit County.
{¶ 3} O'Neill's friend, Kate Hillman, stated that she spoke with O'Neill
at approximately 2:00 p.m. on the day that O'Neill died, December 28, 2008,
and that O'Neill stated that her relationship with Appellant was not going
well. Hillman stated that she told O'Neill that if the relationship was not
working out, O'Neill should walk to the nearby home of O'Neill's sister,
Michelle and telephone Hillman when she arrived at Michelle's house.
O'Neill indicated that she would, however, she never called Hillman back.
{¶ 4} On December 28, 2008, at 4:35 p.m., Appellant called 911, stating
that he had just been shot. According to dispatcher, Christine Galbreth,
Appellant was difficult to understand on the phone. Appellant told the
dispatcher that the person who shot him had died. When the dispatcher
asked who had shot him, he stated that he needed help and hung up.
Appellant then called his mother and told her “goodbye.”

6

{¶ 5} When authorities arrived, Appellant was pacing around the
outside of the trailer where he lived. He stated that his girlfriend shot him
and he shot her back. The emergency medical squad arrived at 4:39 p.m., and
observed that Appellant had a through and through gunshot wound on the
right side of his chest.
{¶ 6} Despite his injury, Appellant insisted on going to the backyard
to say goodbye to his pet wolves and refused assistance getting into the
ambulance. He refused assistance in removing his hoodie and removed his
own sweatshirt in the ambulance. Appellant was transported to the hospital
with two fractured ribs, a hematoma on his lung, and was placed in intensive
care. He later left the hospital against medical advice. Subsequently, he
returned to the hospital and was readmitted with a partially collapsed lung
and a pneumothorax. Dr. Clark Leslie, Appellant's treating physician,
testified that it was possible that Appellant's gunshot wound was
self-inflicted.
{¶ 7} As sheriff's deputies searched the inside of the home on
December 28, 2008, they discovered the body of Candace O'Neill lying in the
trailer between the kitchen and the entry to the master bedroom. Her body
was lying face up with her feet facing the front door. The coroner discovered
a .38 caliber bullet entry wound was in the middle of her back. The coroner
discovered that the bullet had traveled in a slightly downward trajectory and
exited her body in the middle of the front of her chest. The bullet then struck
a portable, folded-up treadmill near her body, before stopping under a living
room chair in front of O'Neill's body. There was minimal blood around
O'Neill, as the coroner testified that a large amount of blood was pooled in
her abdominal cavity, likely due to the fact that her body had been turned
over after being shot. DNA testing did not exclude Appellant as a contributor
to the blood found on O'Neill's neck, the kitchen floor or the treadmill.
{¶ 8} The coroner testified that when O'Neill was shot, she was facing
away from the kitchen and toward the front door. Deputies found the .38
caliber pistol on the kitchen counter and the .45 caliber pistol on the kitchen
table in the corner of the kitchen furthest away from O'Neill's body, just to
the left of the back door of the residence.
{¶ 9} O'Neill's clothing was tested for gunshot residue and it was
determined that when Appellant shot her, he was between one and three feet
away from her. Both Appellant and O'Neill tested positive for gunshot
residue on their hands. There was testimony that the gunshot residue on
7

O'Neill's hand could have been deposited there based on the proximity of her
body to the gun from when Appellant shot her.
{¶ 10} Guernsey County Deputy Sheriff Jason May testified that there
was blood in the kitchen, on the kitchen floor, in both bathrooms, and on
both toilets. Officer Curtis Braniger, who arrived three hours after the
shooting, testified that there was so much blood in the residence, that had he
collected it all, he would still be collecting it on the day of trial. May also
testified that there was marijuana in the toilets and that the police also found
paraphernalia used to cultivate marijuana in the back bedroom. They also
located a black gun holster in the master bedroom on top of a clothing
armoire, which had blood evidence on it, that did not exclude the blood of
Appellant.
{¶ 11} May located a spent .45 caliber shell casing to a .45 caliber
handgun under the kitchen table and located the .45 caliber bullet in the wall
near the kitchen table. The bullet retrieved from the wall was determined to
have been fired by the gun located in Appellant's residence.
{¶ 12} In the months following O'Neill's death, Appellant told one
person that O'Neill shot him in the kitchen and that he shot her while she
leaned over him as he lay prone on the kitchen floor. Such a scenario was
refuted by the testimony of the coroner. Appellant told two other people that
he shot O'Neill in the chest and then shot himself to make it look like
self-defense.
{¶ 13} In March, 2009, Thomas Snyder, Jr. met Appellant when
Appellant was introduced to Synder's father, Thomas Snyder, Sr., who killed
himself on September 28, 2009.
{¶ 14} The junior Snyder testified that in June, 2009, Appellant was at
the Snyder residence drinking whiskey and beer. He stated that Appellant
told him and his father that Appellant shot himself after he shot O'Neill in
the chest while she was in the kitchen. Snyder further testified that Appellant
stated that he tried to shoot himself in the rib, but accidentally “took out his
lung.” Snyder also testified that Thomas Snyder, Sr.'s girlfriend, Ashley
Goughenour and her two children left Snyder, Sr., in May and June, 2009, to
briefly live with Appellant while they had a romantic relationship.
Goughenour returned to Snyder, Sr., in June, 2009. Snyder claimed that
Snyder, Sr. killed himself because of Appellant.

8

State v. McClain, 2011-Ohio-1623 (Guernsey Co. App. Mar. 30, 2011).
III. PETITIONER’S HABEAS CLAIMS
Petitioner filed his habeas corpus petition in this Court on March 6, 2013. In his
petition, he raised the following nine grounds for relief:
Ground One: Improper Self-Defense Instruction.
Supporting Facts: The trial court erred by improperly instructing [the
jury] that the [petitioner] had a duty to retreat in his own home before
he could properly assert the affirmative defense of self-defense.
Ground Two: Prosecutor misconduct resulted in McClain being
denied due process and the right to a fair and impartial trial.
Supporting Facts: The prosecutor commented upon the appellant’s
right to remain silent. He improperly and incorrectly commented
upon the burden of proof placed upon the appellant when asserting
the affirmative defense of self defense.
During voir dire, the prosecutor questioned the venire explaining to
them that he could not call the appellant as a witness. The implication
being that he would like to present that testimony but was impeded
by the appellant’s constitutional right to remain silent.
During closing argument the prosecutor improperly argued victimimpact evidence to the jury as a basis for its returning a guilty verdict.
The state elicited testimony from O-Neill’s daughter, Meghan O’Neill,
which was improper victim impact testimony. Ms. O’Neill testified
that the victim cared for her sister who had Down’s syndrome after
the parents became unable to do so. (T. 738). The state elicited
testimony from defense witness and best friend of O’Neill, Kate
Hillman, regarding [the fact that] O’Neill worked with mentally and
physically disabled persons and that O’Neill took on the burden of
caring for her mentally retarded sister. (T. 964-967) Specifically
stating “Because that is the kind of person she was.” (T. 965)
Ground Three:

Trial counsel provided ineffective assistance of
9

counsel to the Petitioner in violation of the Sixth and Fourteenth
Amendments to the United States Constitution.
Supporting Facts: Counsel submitted proposed jury instruction
regarding self-defense prior to trial. In voir dire, counsel raised the
affirmative defense of self-defense. Nevertheless, trial counsel failed
to object to an improper self-defense instruction which placed the
duty to retreat on McClain even though Ohio law requires no duty to
retreat when in your own home. The offense here transpired in
McClain’s home. The failure to insist on proper jury instructions
place [sic] an additional burden to prove an element of self-defense
which the law did not require.
McClain wanted to testify and expressed this desire to counsel.
However, counsel ultimately decided for the Petitioner that he would
not testify. Counsel did not advise McClain that he had an absolute
right to testify, regardless of counsel’s recommendation.
Defense counsel used an inaccurate diagram of the Petitioner’s home.
The diagram confused the jury. Neither McClain nor his family saw
the diagram prior to trial. It did not include any measurements and
placed walls in the wrong positions.
Defense counsel failed to object to the constitutionality of Ohio’s
placing the burden of self-defense upon the defendant. As the right
to self defense is based on the Second Amendment of the United
States Constitution, the state may not place the burden of enforcing a
basic right on a defendant.
During the jury selection, a prospective juror, who had previously sat
on a murder trial, was asked by the prosecutor whether he would
have any problem serving on McClain’s case. The juror’s response
was “probably not.” The juror was visibly concerned and unsure
when he answered. As a result, counsel did exercise a peremptory
challenge on the juror, but might have had the juror dismissed for
cause and saved the challenge for another less favorable juror.
Ground Four: McClain was entitled to the effective assistance of
counsel in his direct appeal of right. Evitts v. Lucy, 469 U.S. 387 (1985);
Sixth Amendment to the Constitution of the United States; Fourteenth
Amendment to the Constitution of the United States. See also Ohio
10

App. R. 26(B); S. Ct. Prac. R. XI(5), Staff Commentary to Rule XI,
Section 5. The right to effective assistance of counsel is dependent on
the right to counsel itself. Wainwright v. Torna, 455 U.S. 586, 587-588
(1982). The right to counsel would be meaningless if the counsel
provided was inept, incompetent, or ineffective. Evitts.
Supporting Facts: Appellate counsel failed to raise the following
issues:
I. The trial court erred by improperly instructing that the appellant
had a duty to retreat in his own home before he could properly assert
the affirmative defense of self-defense.
II. Ohio’s requirement that a defendant bear the burden of proof
when raising the defense of self-defense is barred by the federal
constitution.
III. The trial court erred by failing to instruct the appellant that he
possessed a right to testify.
IV. The appellant was denied the effective assistance of trial counsel.
Ground Five: Ohio’s requirement that McClain bore the burden of
proof in self-defense [is] unlawful.
Ground Six: Failure of trial court to instruct McClain he had right to
testify.
Ground Seven: The evidence was not sufficient to sustain a
conviction for murder where the defendant/appellant acted in selfdefense.
Ground Eight: The trial court erred by admitting unfairly prejudicial
excessive photographic evidence which were gruesome and
inflammatory. The admission of the photographs violative [sic] of the
appellant’s right to due process and a fair and impartial trial in
violation of the United States Constitution.
Supporting Facts: Multiple photos of the victim were introduced. The
photographs were exceptionally gruesome, including photos of the
victim being removed in a body bag and autopsy photos.
11

Three photographs alone of the victims face. Also photos of the
victim with the appellant while alive standing near the appellant[‘s]
caged wolves. The photo depicted the appellant in camouflaged
pants, shirtless with visible tattoos. The victim [was] portrayed as
thin, attractive blond woman while the appellant appeared as a
shirtless, tattooed rebel who possessed wild animals.
Ground Nine: Petitioner McClain’s conviction is void and/or
voidable because the cumulative errors which occurred at [his] trial
deprived him of due process as guaranteed through the Fifth and
Fourteenth Amendments to the United States Constitution.
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 ninth ground is non-cognizable, that grounds one, two, four,
five, six, seven, eight, and subparts of ground three are procedurally defaulted, and that
the remaining subparts of ground three are without merit. Those arguments are
addressed below.
IV. ANALYSIS
A. PROCEDURAL DEFAULT
Respondent argues that all of petitioner’s grounds apart from ground nine and
certain subparts of ground three are 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
12

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
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)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, "there is a procedural default for purposes of federal
habeas...." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term "procedural default" has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim
under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is
that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S.
13

72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), "contentions of federal law which were not
resolved on the merits in the state proceeding due to respondent's failure to raise them
there as required by state procedure" also cannot be resolved on their merits in a federal
habeas case-that is, they are "procedurally defaulted."
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
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 fourth part of the Maupin analysis, in order to establish cause,
petitioner must show that “some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S.
14

478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a
procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute
cause, an ineffective assistance of counsel claim generally must “‘be presented to the
state courts as an independent claim before it may be used to establish cause for a
procedural default.’” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478,
479 (1986)). That is because, before counsel's ineffectiveness will constitute cause, "that
ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore
must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411
F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to
“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance
claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). The Supreme Court
explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas, habeas
petitioners would be able to avoid the exhaustion requirement by
defaulting their federal claims in state court. The independent and
adequate state ground doctrine ensures that the States' interest in
correcting their own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546. We again considered the interplay between
exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the federal exhaustion
rule.” Id., at 848, 119 S.Ct. 1728 (quoting id., at 853, 119 S.Ct. 1728
(STEVENS, J., dissenting)). The purposes of the exhaustion requirement,
we said, would be utterly defeated if the prisoner were able to obtain
federal habeas review simply by “ ‘letting the time run’ ” so that state
remedies were no longer available. Id., at 848, 119 S.Ct. 1728. Those
purposes would be no less frustrated were we to allow federal review to a
15

prisoner who had presented his claim to the state court, but in such a
manner that the state court could not, consistent with its own procedural
rules, have entertained it. In such circumstances, though the prisoner
would have “concededly exhausted his state remedies,” it could hardly be
said that, as comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 119 S.Ct. 1728
(STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452-53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
1. Ground Four
The Court turns first to the petitioner’s claim for ineffective assistance of
appellate counsel, which is ground four of his petition for a writ of habeas corpus. The
Court will address this ground first because whether procedural default of any other
claim can be excused ultimately depends on whether the claim for ineffective assistance
of appellate counsel was procedurally defaulted and whether there was cause and
prejudice to excuse such default.
In the fourth ground of his habeas petition, petitioner asserted that he was

16

denied the right of affective assistance of appellate counsel because appellate counsel
failed to raise the following issues:
I.

The trial court erred by improperly instructing that the appellant
had a duty to retreat in his own home before he could properly
assert the affirmative defense of self-defense.

II.

Ohio’s requirement that a defendant bear the burden of proof when
raising the defense of self-defense is barred by the federal
constitution.

III.

The trial court erred by failing to instruct the appellant that he
possessed a right to testify.

IV.

The appellant was denied the effective assistance of trial counsel.

(Doc. #16 at 19). Defendant argues that this ineffective assistance of appellate counsel
claim was procedurally defaulted in its entirety because petitioner first raised that claim
in the application for the re-opening of his original direct appeal, and the state court of
appeals denied petitioner’s application for reopening on procedural grounds, ruling
that petitioner had “failed to establish good cause for untimely filing of the application
to reopen.” (Doc. #12, Exh. 33).
There is no question that the first three parts of the Maupin test are satisfied here.
Petitioner raised the ineffective assistance of appellate counsel claims in his Rule 26(B)
application for reopening, which is the procedural vehicle under Ohio law for raising an
ineffective assistance of appellate counsel claim. See, e.g., Landrum v. Mitchell, 625 F.3d
905, 916 (6th Cir. 2010) (citing Ohio App. R. 26(B)). When he did so, the state court of
appeals issued a judgment entry overruling petitioner’s application for reopening,
17

ruling that petitioner had “failed to establish good cause for untimely filing of the
application to reopen.” (Doc. #12, Exh. 33). The Court of Appeals has consistently held
that “an untimely Rule 26(B) application is an adequate and independent state ground
that results in a claim being procedurally defaulted.” Baker v. Bradshaw, 495 F. App'x
560, 566 (6th Cir. 2012) cert. denied, 133 S. Ct. 2391, 185 L. Ed. 2d 1107 (U.S. 2013) (citing
Monzo v. Edwards, 281 F.3d 568, 577-78 (6th Cir. 2002) and Gross v. Warden, 426
Fed.Appx. 349, 359 (6th Cir. 2011)). Petitioner does not dispute that the first three parts
of the procedural default analysis have been satisfied. (Doc. #16 at 15). Petitioner
argues, however, that the fourth part of the Maupin analysis excuses ground four from
procedural default. Specifically, petitioner argues that there was cause and prejudice to
excuse the default.
The crux of petitioner’s argument is that, in Ohio, the 26(B) application to reopen
is the “first, and only, avenue” to raise a challenge to the deficient performance of
appellate counsel and, therefore, petitioner was entitled to competent assistance of
counsel in his 26(B) application to reopen. (Doc. 16 at 18). Implicit in petitioner’s
argument is that the late filing of his 26(B) application to reopen was due to ineffective
assistance of counsel at the time the 26(B) application should have been filed. This
would be a level of proceedings beyond what is typically considered the appellate
process for purposes of an ineffective assistance of appellate counsel claim and, as
discussed further below, might be termed an ineffective assistance of collateral counsel
claim.
18

In support of allowing the failure of counsel to timely file his 26(B) application to
serve as cause for the default of his ineffective assistance of appellate counsel claims,
petitioner cites to the Supreme Court decision in Martinez v. Ryan, 132 S. Ct. 1309 (2011).
That decision held that in certain state post-conviction proceedings which, under the
relevant state law, provided the first opportunity to present an ineffective assistance of
trial counsel claim, ineffective assistance of counsel could constitute “cause” for a
procedural default. However, as stated by the Court in Martinez, the holding in that
case was very limited:
Colman [v. Thompson, 501 U.S. 722 (1991)] held that an attorney’s
negligence in a post-conviction proceeding does not establish cause, and
this remains true except as to initial-review collateral proceedings for
claims of ineffective assistance of counsel at trial. . . . The rule of Colman
governs in all but the limited circumstances recognized here. The holding
in this case does not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings, and petitions
for discretionary review in a State’s appellate courts. [Citations omitted].
It does not extend to attorney errors in any proceedings beyond the first
occasion the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral proceeding
may be deficient for other reasons.
Id. at 1319-20. Accordingly, Martinez did not address the issue presented by petitioner
here: whether an attorney’s negligence could constitute “cause” in a collateral
proceedings which provided the first opportunity to present a claim for ineffective
assistance of appellate counsel.
A Rule 26(B) application to reopen is a collateral matter that provides no
constitutional right to counsel:

19

In sum, the relevant state law, the distinctions between direct review and
collateral review, and the structure and function of the AEDPA support
the conclusion that a Rule 26(B) application to reopen is a collateral matter
rather than part of direct review. As such, there is no federal
constitutional right to assistance of counsel at that stage. [Pennsylvania v.]
Finley, 481 U.S. [551,] at 555, 107 S.Ct. 1990 (“We have never held that
prisoners have a constitutional right to counsel when mounting collateral
attacks upon their convictions and we decline to so hold today. Our cases
establish that the right to appointed counsel extends to the first appeal of
right, and no further.”) (citation omitted).
Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005) (footnote omitted). That remains true
following the Supreme Court’s decision in Martinez. See, e.g., Carter v. Mitchell, 693 F.3d
555, 565 (6th Cir. 2012). The Court of Appeals has specifically ruled that “counsel's
deficient performance [at the Rule 26(B) application to reopen stage] cannot establish
cause to excuse the procedural default.” Id. at 565 (citation omitted). Accordingly,
petitioner’s reliance on Martinez is misplaced. Petitioner has procedurally defaulted his
ineffective assistance of appellate counsel claim and has not established “cause” to
excuse the procedural default.
Beyond the four-part Maupin analysis, this Court considers whether this is “an
extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. at 496; see also
Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Petitioner has not argued that he meets this
standard. After review of the record,1 the Court does not deem this to be a case that

The Court notes that pages 365-444 are omitted from the 895-page trial
transcript that was filed with this Court. However, the Court considers this absence to
be immaterial to the determinations at hand.
1

20

meets that standard. Accordingly, the procedural default bars this Court from
addressing petitioner’s claim for ineffective assistance of appellate counsel.
Additionally, because this claim is procedurally defaulted, ineffectiveness of appellate
counsel cannot be “cause” to excuse other grounds for relief that petitioner procedurally
defaulted.
2. Ground Three, Certain Subparts
Ground three – that trial counsel provided ineffective assistance – has several
parts:
•

jury instructions – “Counsel submitted proposed jury instructions
regarding self-defense prior to trial. In voir dire, counsel raised the
affirmative defense of self-defense. Nevertheless, trial counsel failed to
object to an improper self-defense instruction which placed the duty to
retreat on [petitioner] even though Ohio law requires no duty to retreat
when in your own home. The offense here transpired in [petitioner’s]
home. The failure to insist on proper jury instructions place an additional
burden to prove an element of self-defense which the law did not
require.” (Doc. #1 at ¶27).

•

right to testify - “[Petitioner] wanted to testify and expressed this desire to
counsel. However, counsel ultimately decided for the Petitioner that he
would not testify. Counsel did not advise [petitioner] that he had an
absolute right to testify, regardless of counsel’s recommendation. . . .”
(Doc. #1 at ¶¶28-31).

•

diagram of petitioner’s house - “Defense counsel used an inaccurate
diagram of the Petitioner’s home. The diagram confused the jury. Neither
[petitioner] nor his family saw the diagram prior to trial. It did not
include any measurements and placed walls in the wrong positions.”
(Doc. #1 at ¶32).

•

constitutionality of Ohio’s law regarding self-defense - “Defense counsel
failed to object to the constitutionality of Ohio’s placing the burden of selfdefense upon the defendant. As the right to self defense is based on the
21

Second Amendment of the United States Constitution, the state may not
place the burden of enforcing a basic right on a defendant.” (Doc. #1 at
¶33).
•

voir dire of prospective juror - “During the jury selection, a prospective
juror, who had previously sat on a murder trial, was asked by the
prosecutor whether he would have any problem serving on [petitioner’s]
case. The juror’s response was ‘probably not.’ The juror was visibly
concerned and unsure when he answered. As a result, counsel did
exercise a peremptory challenge on the juror, but might have had the juror
dismissed for caused [sic] and saved the challenge for another less
favorable juror. . . .” (Doc. #1 at ¶¶34-35).

Respondent argues that the following subparts have been procedurally
defaulted: the claim regarding jury instructions, the claim regarding the
constitutionality of Ohio’s law regarding self-defense, and the claim regarding the voir
dire of prospective juror. The parties disagree as to whether these subparts were
procedurally defaulted.
Petitioner argues that these subparts of his ineffective assistance of trial counsel
claim were not procedurally defaulted because they were presented in his 26(B)
application to reopen. However, before turning to the 26(B) application to reopen, the
Court will look to the procedural history to determine what claims were raised prior to
that point.
Petitioner, through new counsel (see list of counsel on petitioner’s “Case History”
at doc. #12, exh. 21), timely filed his direct appeal to the Fifth Appellate District. That
appeal raised the claim of ineffective assistance of trial counsel, but only raised one
ground: failure of counsel to present expert testimony regarding ballistics and other

22

similar evidence. (Doc. #12, Exh. 14). That claim is not at issue in the petition for
habeas corpus. Where, as here, a defendant has new counsel for his or her appeal, res
judicata applies to bar claims for ineffective assistance of counsel that were not raised
on direct appeal and that “could fairly have been determined without resort to evidence
outside the record.” Monzo v. Edwards, 281 F.3d 568, 576-77 (6th Cir. 2002) (“It is also
settled that res judicata applies when a defendant who is represented by new counsel
on direct appeal fails to raise the issue of ineffective assistance of trial counsel, and the
issue could fairly have been determined without resort to evidence outside the record)
(citation omitted). However, in applying the Maupin factors to determine whether res
judicata resulted in a procedural default here, the Court must determine whether the
state courts actually enforced the state procedural sanction. Maupin v. Smith, 785 F.2d
135, 138 (6th Cir. 1986).
Here, the state did not enforce that procedural sanction as to all of the subparts of
the ineffective assistance of trial counsel claim. Rather, petitioner filed a post-conviction
petition that raised ineffective assistance of trial counsel claims on four grounds: (1)
failure to call petitioner as a witness (right to testify); (2) failure to question prospective
juror (voir dire of prospective juror); (3) admission of an inaccurate diagram (diagram
of petitioner’s house); and (4) failure to hire expert witness (not relevant to petition for
habeas corpus). (Doc. #12, Exh. 21 at 6-10.) Rather than apply the procedural bar, the
state court of common pleas issued findings of fact and conclusions of law, ruling that
petitioner had “failed to prove that he was not provided effective assistance of counsel
23

nor that he was prejudiced by his trial counsel’s performance.” (Doc. #12, Exh. 23).
Petitioner then appealed this denial of his post-conviction petition to the Fifth Appellate
District, arguing that the trial court erred when it denied applicant’s petition for postconviction relief. (Doc. #12, Exhs. 24&25). The Fifth Appellate District issued a
reasoned decision that affirmed the trial court’s judgment denying the petition for postconviction relief. (Doc. #12, Exh. 27). In doing so, the Fifth Appellate District ruled on
the merits of the claim regarding petitioner’s right to testify and the claim regarding the
diagram of petitioner’s house, but it applied a procedural bar to the claim regarding
voir dire of the prospective juror:
{¶17} Appellant argues his trial counsel was deficient in not challenging
for cause Clinton Born as a juror. This issue should have been presented
on direct appeal and therefore is res judicata. Res judicata is defined as
“[a] valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence
that was the subject matter of the previous action.” Grava v. Parkman Twp.,
73 Ohio St.3d 379, 1995-Ohio-331, syllabus. We further note Mr. Born was
peremptory challenged by defense counsel. T. at 163.
(Doc. #12, Exh. 27 at ¶¶11-18). Petitioner appealed to the Supreme Court of Ohio,
raising the same grounds as in the post-conviction petition, and the Supreme Court of
Ohio declined jurisdiction to hear the case and dismissed the appeal as not involving
any substantial constitutional question. (Doc. #12, Exh. 30). Accordingly, the last
reasoned decision of the state court applied a procedural bar to the claim regarding voir
dire of the prospective juror. Because the same decision ruled on the merits as to the
claims regarding petitioner’s right to testify and the diagram of petitioner’s house, those

24

claims have not been procedurally defaulted will be considered by this Court on the
merits in a separate section to follow.
As to the claim regarding voir dire of the prospective juror, the Fifth Appellate
District determined that it should have been presented on direct appeal and was not.
As a result, res judicata applied, and the Fifth Appellate District enforced the
procedural bar as to that claim. Res judicata is an adequate and independent state
procedural ground that may be used to bar consideration of ineffective assistance of
counsel claims asserted in habeas claims. Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir.
2002) (citations omitted). Petitioner cannot demonstrate that there was cause for him
not to follow the procedural rule because his claims of ineffective assistance of appellate
counsel were themselves defaulted. While ineffective assistance of appellate counsel
“can constitute cause to excuse a procedural default. [Citations omitted] . . . ‘an
ineffective-assistance-of-counsel claim asserted as cause for the procedural default of
another claim can itself be procedurally defaulted.’” Landrum v. Mitchell, 625 F.3d 905,
916 (6th Cir. 2010) (quoting Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146
L.Ed.2d 518 (2000)). Accordingly, applying the four-part Maupin analysis demonstrates
that the ineffective assistance of counsel claim regarding counsel’s alleged failure to
question a prospective juror was procedurally defaulted. Maupin, 785 F.2d at 138.
In addition, two of the claims raised in the petition for habeas corpus were not
presented to the state court either in the direct appeal or the post-conviction petition.
Those claims are the claims regarding (1) counsel’s failure to object to an allegedly
25

improper jury instruction regarding self-defense, and (2) counsel’s failure to object to
the constitutionality of Ohio’s placing the burden of self-defense upon the defendant.
Those two claims are discussed below.
Res judicata would also apply to bar those claims because they were not raised in
either the direct appeal process or the post-conviction petition. Petitioner contends that
those claims were not procedurally defaulted because he raised them in his Rule 26(B)
application to reopen. The language of the 26(B) application to reopen actually raises a
claim for ineffective assistance of appellate counsel for failure to raise the ineffective
assistance of trial counsel claims on direct appeal (doc. #12, exh. 31 at 1), but the
outcome is the same regardless. As discussed above, the Rule 26(B) application for
reopening was overruled as untimely, which is “an adequate and independent state
ground that results in a claim being procedurally defaulted.” Baker, 495 F. App'x at 566
(citations omitted). Accordingly, to the extent that the ineffective assistance of trial
counsel claims at issue were raised in the untimely 26(B) application, they were
procedurally defaulted. To the extent that those claims were previously procedurally
defaulted by being omitted from the direct appeal, the ineffective assistance of appellate
counsel claims asserted in the 26(B) application were procedurally defaulted and cannot
constitute cause to excuse the preceding procedural default.
Accordingly, the subparts of Ground Three that relate to voir dire of the
prospective juror, jury instructions, and the constitutionality of Ohio’s law regarding
self-defense cannot be addressed on the merits.
26

3. Ground One
Ground One – improper self-defense instruction – was not presented to the
highest state court in the direct appeal process. (See Doc. #12, Exh. 18). Petitioner
argues that it was presented in his Rule 26(B) application to reopen, and that, to the
extent that the claim was procedurally defaulted, the default should be excused as a
result of ineffective assistance of trial and appellate counsel. As with portions of
Ground Three, Ground One was not directly raised in the Rule 26(B) application for
reopening; rather, that application raised the failure of appellate counsel to raise
Ground One in the direct appeal. (Doc. #12, Exh. 31 at 1). Accordingly, Ground One
was procedurally defaulted. The Court must then consider whether petitioner can
demonstrate cause and prejudice sufficient to excuse the default. As discussed above,
the ineffective assistance of trial counsel claims were procedurally defaulted, and the
ineffective assistance of appellate counsel claims asserted in the 26(B) application were
procedurally defaulted so they cannot constitute cause to excuse the procedural default
of Ground One. This claim is therefore procedurally defaulted.
4. Ground Two
In his traverse, petitioner “concedes all but one aspect of this claim.” (Doc. #16 at
8). Petitioner asserts that the prosecutor made “improper victim-impact argument,”
which constituted prosecutorial misconduct. (Doc. #16 at 8). Specifically, petitioner’s
claim is that the state improperly elicited testimony from O’Neill’s daughter regarding
O’Neill’s care for her sister who had Down’s Syndrome, and from O’Neill’s best friend
27

who testified that O’Neill worked with mentally and physically disabled persons, and
then argued that this demonstrated O’Neill’s character. (Doc. #16 at 9).
Petitioner raised this argument in his direct appeal to the Fifth Appellate District
of Ohio. (Doc. #12, Exh. 14 at 17-19). The Fifth Appellate District determined that
“Appellant failed to object to the complained of conduct at trial, therefore a plain error
standard applies . . . .” (Doc. #12, Exh. 16 at 11). The Fifth Appellate District decided in
relevant part:
Appellant next argues that the State Improperly [sic] played on the
sympathies of the jury by having O’Neill’s daughter testify that O’Neill
had a college degree and had inquired about moving to Summit County to
become a childcare provider. Such evidence goes to show that O’Neill’s
relationship with Appellant was deteriorating and permissibly aided in
proving the State’s case. We further do not find that the testimony of Kate
Hillman was improperly admitted or rose to the level of plain error.
Hillman spoke to O’Neill on the day of her death and testified that O’Neill
and Appellant were having problems. Moreover, Appellant called
Hillman as a witness; to charge the prosecutor with misconduct for crossexamining a defense witness would require that Appellant jump a serious
hurdle in proving that the prosecutor’s remarks substantially hurt
Appellant’s case when viewed in the context of the whole trial. . . . None
of the complained of conduct amounts to error, much less plain error, on
behalf of the prosecution.
(Doc. #12, Exh. 16 at 12-14).
In noting that petitioner failed to object to the prosecutorial misconduct at trial
and applying plain error review, the Fifth Appellate District relied on an adequate and
independent state ground that would ordinarily result in the claim’s being procedurally
defaulted. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (“Ohio's contemporaneous
objection rule constitutes an adequate and independent state ground that bars federal
28

habeas review absent a showing of cause and prejudice. . . . Moreover, we view a state
appellate court's review for plain error as the enforcement of a procedural default.”
(citations omitted)) quoted in Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003). “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.” Id.
(additional citations omitted).
Petitioner and respondent dispute whether Ground Two was presented to the
Supreme Court of Ohio. In his appeal to the Supreme Court of Ohio, petitioner did
argue that there was prosecutorial misconduct. However, that claim was described as
follows:
In the instant matter, the prosecutor for the State of Ohio engaged in
misconduct when he impermissibly characterized the burden that the
Appellant carried on the affirmative defense of self-defense. In closing,
the prosecutor stated that “The Defendant has failed miserably at the
burden of proof in this case and cannot meet the burden of self-defense . .
.” The phrasing of the prosecutor’s comments regarding the burden of
proof very clearly improperly shifted the burden of proof from the State to
the Defendant. While it is true that a criminal defendant does carry the
burden of proof on an affirmative defense, the way in which the
prosecutor stated that “the Defendant has failed miserably at the burden
of proof in this case” implied that the Defendant had the burden to
disprove his own guilt. This statement by the prosecutor, even if intended
to refer to the burden of the Defendant to prove self-defense, mislead the
jury as to both party’s duties and burdens. It was improper and
effectively prejudiced the jury toward the Appellant. As such, the Court
of Appeals erred in overruling Appellant’s conviction.
(Doc. #12, Exh. 19, at 11). While petitioner’s appellate brief did raise a claim of

29

prosecutorial misconduct, it did not give the Supreme Court of Ohio the opportunity to
rule on the claim of prosecutorial misconduct before the Court here, because it made no
mention of any sort of victim-impact testimony. Furthermore, the Supreme Court of
Ohio did not issue a reasoned decision, but rather declined jurisdiction to hear the case
and dismissed the appeal as not involving any substantial constitutional question.
(Doc. #12, Exh. 20). As a result, the last reasoned decision was the Fifth Appellate
District decision, which relied on a procedural bar to bar review of the claim.
Accordingly, Ground Two was procedurally defaulted, and petitioner has not
established that there was cause and prejudice sufficient to excuse the default.
5. Grounds Five and Six
In Ground Five, petitioner argues that it is unconstitutional for Ohio to require a
defendant to bear the burden of proof as to his defense of self-defense. In Ground Six,
Petitioner argues that the trial court deprived him of his right to a fair trial pursuant to
the due process clause because the court failed to ensure that petitioner understood that
he had a right to testify. Petitioner and respondent agree that petitioner never
presented these claims to the highest state court in the direct appeal process. Petitioner
argues that he raised these claims in his Rule 26(B) application to reopen. As with
Ground One, the Rule 26(B) application for reopening did not raise Ground Five or
Ground Six directly, but rather raised the failure of appellate counsel to raise those
grounds in the direct appeal. (Doc. #12, Exh. 31 at 1-7). Accordingly, Grounds Five and
Six were procedurally defaulted, and the Court must consider whether petitioner can
30

demonstrate cause and prejudice sufficient to excuse the default. As discussed above,
the ineffective assistance of trial counsel claims were procedurally defaulted, and the
ineffective assistance of appellate counsel claims asserted in the 26(B) application were
procedurally defaulted and cannot constitute cause to excuse the procedural default of
Grounds Five or Six.
6. Ground Seven
Petitioner’s Ground Seven asserts that the evidence was not sufficient to sustain
a conviction for murder where the petitioner acted in self-defense. Petitioner and
respondent agree that petitioner raised this issue in his direct appeal to the Fifth District
Court of Appeals, but he did not raise this issue in his subsequent appeal to the
Supreme Court of Ohio. Accordingly, Ground Seven has been procedurally defaulted,
and petitioner has not demonstrated that cause and prejudice exist to excuse the
default.
7. Ground Eight
In Ground Eight, petitioner argued that the trial court erred by admitting
unfairly prejudicial photographic evidence, which violated his right to due process and
a fair and impartial trial. Petitioner raised this argument in his direct appeal to the Fifth
Appellate District of Ohio. (Doc. #12, Exh. 14 at 14-16).
The Fifth Appellate District determined that “Appellant failed to object to this
alleged error at trial,” and quoted a decision of the Supreme Court of Ohio setting forth
the general rule that an appellate court will not consider “‘any error which counsel for a
31

party complaining of the 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.’” (Doc. #12, Exh. 16 at 9 (citations omitted)). The Fifth Appellate
District decided in relevant part:
{¶34} Accordingly, Appellant has waived all but plain error in this
regard. State v. Hill (2001), 92 Ohio St.3d 191, 196, 749 N.E.2d 274, 279;
Crim. R. 52(B). . . . Plain error will not be found absent a showing by
Appellant that “but for the error, the outcome of the trial clearly would
have been otherwise.” State v. Williams, 99 Ohio St.3d 439, 458, 2003-Ohio4164, at ¶ 40, quoting Long, supra, at paragraph two of the syllabus.
...
{¶37} We do not find that the trial court abused its discretion in
admitting the complained of photographs. The photographs clarified the
position that the body was found in and the placement of the wound on
the victim’s body. While a couple of the photographs were repetitive, we
do not find the admission of these photographs to rise to the level of plain
error.
{¶38} Moreover, even if the admission of the photographs of the
victim alive with Appellant standing with Appellant’s pet wolves rose to
the level of plain error, Appellant has not proven that he was prejudiced
by the introduction of such photographs. Appellant admitted to Thomas
Snyder that he shot O’Neill and the forensic evidence supports his
admission.
{¶39} Appellant’s second assignment of error is overruled.
(Doc. #12, Exh. 16 at 9-10).
In noting that petitioner failed to object to the admission of the photographs at
trial and applying plain error review, the Fifth Appellate District relied on an adequate
and independent state ground that ordinarily results in the claim’s being procedurally
defaulted. Hinkle, 271 F.3d at 244 (“Ohio's contemporaneous objection rule constitutes
an adequate and independent state ground that bars federal habeas review absent a

32

showing of cause and prejudice. . . . Moreover, we view a state appellate court's review
for plain error as the enforcement of a procedural default.” (citations omitted)) quoted in
Mason, 320 F.3d at 635. “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.” Id. (additional citations omitted). Here, the Supreme
Court of Ohio did not issue a reasoned decision, but rather declined jurisdiction to hear
the case and dismissed the appeal as not involving any substantial constitutional
question. (Doc. #12, Exh. 20). As a result, the last reasoned decision was the Fifth
Appellate District decision, which relied on a procedural bar to bar review of the claim.
Accordingly, Ground Eight was procedurally defaulted, and petitioner has not
established that there was cause and prejudice sufficient to excuse the default.
B. CUMULATIVE ERROR CLAIM (GROUND NINE)
Respondent argues that ground nine - that conviction is void and/or voidable
because the cumulative errors which occurred at [his] trial deprived him of due process
as guaranteed through the Fifth and Fourteenth Amendments to the United States
Constitution – is not cognizable in federal habeas corpus review, because the United
States Supreme Court has not held that distinct constitutional claims can be cumulated
to support habeas corpus relief. The case cited by respondent provides this analysis
and holding:
Finally, Petitioner alleges that the cumulative effect of the errors at trial
33

rendered his trial fundamentally unfair in violation of due process. If this
were an issue of first impression in this Circuit, we might be inclined to
agree. The Supreme Court has repeatedly stated that fundamentally unfair
trials violate due process, see, e.g., Riggins v. Nevada, 504 U.S. 127, 149, 112
S.Ct. 1810, 118 L.Ed.2d 479 (1992) (quoting Spencer v. Texas, 385 U.S. 554,
563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967)), and common sense dictates
that cumulative errors can render trials fundamentally unfair.
Additionally, the Supreme Court has expressly cumulated prejudice from
distinct errors under the Due Process Clause. Chambers v. Mississippi, 410
U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“We need not decide,
however, whether this error alone would occasion reversal since
Chambers' claimed denial of due process rests on the ultimate impact of
that error when viewed in conjunction with the trial court's refusal to
permit him to call other witnesses.”). Nonetheless, the law of this Circuit
is that cumulative error claims are not cognizable on habeas because the
Supreme Court has not spoken on this issue. See Moore v. Parker, 425 F.3d
250, 256 (6th Cir.2005) (discussing cumulated evidentiary errors). No
matter how misguided this case law may be, it binds us. Turker, 157 F.3d
at 457-58. Accordingly, we affirm the district court's dismissal of
Petitioner's cumulative error claim.
Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006). This decision is still good law,
and this Court is bound by it. Accordingly, ground nine presents no basis for habeas
corpus relief.
C. REMAINING SUBPARTS OF GROUND THREE
The two subparts of Ground Three that were not procedurally defaulted are the
following:
•

right to testify - “[Petitioner] wanted to testify and expressed this desire to
counsel. However, counsel ultimately decided for the Petitioner that he
would not testify. Counsel did not advise [petitioner] that he had an
absolute right to testify, regardless of counsel’s recommendation. . . .”
(Doc. #1 at ¶¶28-31).

•

diagram of petitioner’s house - “Defense counsel used an inaccurate
diagram of the Petitioner’s home. The diagram confused the jury. Neither
34

[petitioner] nor his family saw the diagram prioer to trial. It did not
include any measurements and placed walls in the wrong positions.”
(Doc. #1 at ¶32).
Respondent acknowledges that those subparts were not procedurally defaulted
and may be considered on the merits. The Court reviews these 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,’ [citation omitted] 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
proceedings unless the adjudication of the claim—

35

(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 ‘fair-minded jurists could disagree’ on
the correctness of the state court's decision.” Id. (citation omitted).
2. Application of Clearly Established Federal Law
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
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analysis begins with the state court's treatment of this claim. The Fifth Appellate
District issued the last reasoned decision addressing the ineffective assistance of counsel
claims, and it set forth the standard in relevant part as follows:
{¶11} Because appellant’s arguments are based upon ineffective
assistance of counsel, we will use the following standard set out in State v.
Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the
syllabus, certiorari denied (1990), 497 U.S. 1011. Appellant must establish
the following:
{¶12} “2. Counsel’s performance will not be deemed ineffective
unless and until counsel’s performance is proved to have fallen below an
objective standard of reasonable representation and, in addition, prejudice
arises from counsel’s performance. (State v. Lytle [1976], 48 Ohio St.2d 391,
2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
{¶13} “3. To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, were it not for counsel’s errors, the
result of the trial would have been different.”
(Doc. #12, Exh. 27).
The Fifth Appellate District properly set forth the controlling principles of law as
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 question
before the Court is whether the state court unreasonably applied these principles to the
facts of this case. The Court will examine each part of the ineffective assistance of
counsel claim in turn.
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3. Ineffective Assistance Claim Relating to Petitioner’s Right to Testify
Petitioner claims that he received ineffective assistance of counsel because
counsel decided for petitioner that he would not testify even though petitioner told
counsel that he wanted to testify, and because counsel did not advise petitioner that he
had an absolute right to testify. While petitioner does raise a portion of this claim in his
post-conviction motion and appeal of the denial of that motion, he does not specifically
argue in either that counsel was ineffective for failing to inform him that he had an
absolute right to testify. Accordingly, this Court cannot address that portion of the
claim on the merits, although it is unlikely that petitioner would have prevailed on that
claim. See Hodge v. Haeberlin, 579 F.3d 627, 639-40 (6th Cir. 2009) (“Although the right to
testify is a fundamental right subject only to knowing and intelligent waiver, ‘waiver of
certain fundamental rights can be presumed from a defendant's conduct alone, absent
circumstances giving rise to a contrary inference.’”) (quoting United States v. Stover, 474
F.3d 904, 908 (6th Cir.2007)).
The Court now turns to the portion of the claim that petitioner did raise in his
post-conviction petition (doc. #12, exh. 21 at 6-8), and again in his appeal of the denial
of the post-conviction petition (doc. #12, exhs. 24&25), which is that counsel was
ineffective for failing to call petitioner as a witness to testify in support of his defense of
self-defense, and for failing to inform petitioner of the negative impact his lack of
testimony would have on his case. The Fifth Appellate District affirmed the trial court’s
denial of petitioner’s post-conviction petition, ruling:
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{¶14} Appellant argues his trial counsel was deficient in not calling
him as a witness to substantiate his claim of self-defense. The trial court
found three witnesses testified to appellant claiming he shot Ms. O’Neill
in self-defense, and the jurors were instructed on the affirmative defense.
See, Finding of Fact No. 4 filed November 30, 2010. The trial court
concluded trial counsel’s decision not to call appellant as a witness did not
rise to the level of deficiency, but constituted trial strategy. See,
Conclusion of Law No. 2 filed November 30, 2010. We note in his
September 24, 2010 affidavit at ¶5, appellant confirmed it was trial
strategy: “My two attorney’s [sic] disagreed about whether I should
testify. Eventually Mr. LaRue relented to Mr. Lonardo’s wishes and
advised me not to testify.”
{¶15} A difference of opinion between attorneys and/or a client
and attorney does not automatically rise to the level of deficiency or
demonstrate a manifest injustice. Three witnesses, Paramedic Gerald
Schaffer, Sergeant Jason May, and acquaintance Mark Breece, testified that
appellant told them he had been shot by Ms. O’Neill first and he then shot
her in self-defense. T. at 262-263, 512, 580, 939-941. Trial counsel argued
self-defense, and the jury was instructed on such. T. at 1024, 1031, 1039,
1054-1055[.]
{¶16} In addition, Thomas Snyder, Jr. testified that appellant
admitted to him that he staged his own shooting after shooting Ms.
O’Neill. T. at 771-772. Detective Sam Williams confirmed that Mr.
Snyder, Jr. together with his father, Thomas Snyder, Sr., came in and told
him this information. T. at 881. To put appellant on the stand in the face
of these admissions and subject him to cross-examination would have
been problematic at best. We fail to find any deficiency in trial counsel’s
decision not to have appellant testify.
(Doc. #12, Exh. 27). The Fifth Appellate District determined that the trial counsel’s
decision to not have petitioner testify was a matter of trial strategy, and that the strategy
decision was not deficient.
The Supreme Court has explained the court’s role in analyzing decisions of trial
strategy:
Judicial scrutiny of counsel's performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel's assistance after
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conviction or adverse sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac,
456 U.S. 107, 133–134, 102 S.Ct. 1558, 1574–1575, 71 L.Ed.2d 783 (1982). A
fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” See Michel v. Louisiana, supra,
350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide
effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way. See
Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death
Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).
Strickland, 466 U.S. at 689-90. In addition, with respect to a defendant’s right to testify,
when a tactical decision is made not to have the defendant testify at trial, “Petitioner's
assent is presumed as is the effectiveness of Petitioner's counsel, barring any indication
by Petitioner at trial that he disagreed with his counsel.” Gonzales v. Elo, 233 F.3d 348,
357 (6th Cir.2000) (emphasis added) cited in Roush v. Burt, 313 F. App'x 754, 762 (6th Cir.
2008).
Here, the Fifth Appellate District noted that the trial court had concluded that
trial counsel’s decision not to have petitioner testify was a matter of trial strategy.
Specifically, the trial court noted that three other witnesses testified that petitioner had
told them he had been shot by Ms. O’Neill first and then shot her in self defense, and
noted that the jury was instructed on self-defense. The Fifth Appellate District pointed

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to additional evidence: petitioner’s affidavit acknowledged that the decision for him
not to testify was part of counsel’s trial strategy. The Fifth Appellate District also noted
that there were real risks in putting petitioner on the stand in light of the testimony by
other witnesses that petitioner had admitted to them that he staged his own shooting
after shooting Ms. O’Neill. As a result, the Fifth Appellate District, like the trial court,
concluded that there was no deficiency in trial counsel’s decision. The Fifth Appellate
District’s decision here 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 that was presented.
4. Ineffective Assistance Claim Relating to Diagram of Petitioner’s House
Petitioner also claims that he received ineffective assistance of counsel because
counsel introduced an inaccurate diagram of petitioner’s house. Petitioner raised this
claim in his post-conviction petition. (Doc. #12, Exh. 21 at (doc. #12, exh. 21 at 9), and
again in his appeal of the denial of the post-conviction petition. (Doc. #12, Exhs.
24&25). The evidence that petitioner presented in his post-conviction petition was an
affidavit of petitioner which averred that the diagram of his home was “materially
inaccurate,” and an affidavit of petitioner’s mother, Nancy McClain, which averred that
the diagram at issue was “materially inaccurate” and that she had prepared an accurate
diagram, which was attached to the affidavit. (Doc. #12, Exh. 21 at pages 13-16). The
Fifth Appellate District affirmed the trial court’s denial of petitioner’s post-conviction
petition, ruling:
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{¶18} Appellant argues the diagram of his home presented by
defense counsel was inaccurate (Defendant’s Exhibit 3). Appellant’s
mother opined as to its inaccuracy. See, Nancy McClain’s September 27,
2010 Affidavit at ¶7. The trial court found appellant’s proffered exhibit
and defense counsel’s diagram were substantially similar. See, Finding of
Fact No. 9 filed November 30, 2010. The diagram is specifically marked
“NOT TO SCALE.” In addition, photographs of the scene were admitted
into evidence. T. at 919-920. We concur with the trial court’s analysis that
the exhibits are similar. Given the direct evidence of the photographs and
the testimony of the deputies as to the scene, no evidence of the diagram’s
inaccuracy was presented to rise to the level of manifest injustice.
(Doc. #12, Exh. 27).
Petitioner’s argument, as described in his habeas petition and traverse, is that
“Defense counsel used an inaccurate diagram of the Petitioner’s home. The diagram
confused the jury. Neither McClain nor his family saw the diagram prior to trial. It did
not include any measurements and placed walls in the wrong positions.” (Doc. #1 at
¶32; Doc. #16 at 14). Petitioner has provided no other evidence or explanation of how
the diagram could have mislead the jury or what prejudice it could have caused.
Regarding petitioner’s argument that the diagram does not include
measurements, the state appellate court correctly noted that the diagram at issue notes
that it is “***NOT TO SCALE***.” The diagram at issue and the diagram provided by
petitioner’s mother do differ in certain respects, for example one includes a furnace and
closet between a bathroom and one does not, but the general layout including the back
door, front door, master bedroom and bathroom, living room, second bathroom, and
additional bedrooms are the same. Accordingly, while there are differences between
the locations of some walls in the different pictures, petitioner has not explained how
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those differences could have confused the jury. Furthermore, as the state appellate
court noted, there was photographic and testimonial evidence about the layout of
petitioner’s house.
This Court’s independent review of the record finds that the state court decisions
were not an unreasonable application of clearly established Federal law, nor were they
based on an unreasonable determination of facts in light of the evidence presented at
the state court proceeding.
V. RECOMMENDED DISPOSITION
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that this
action be DISMISSED.
Furthermore, petitioner has not presented any basis for granting an evidentiary
hearing or permitting further discovery, and the Court does not believe that permitting
either would assist the Court in determining the relevant issues. Accordingly, the
Magistrate Judge further RECOMMENDS that Petitioner’s requests for an evidentiary
hearing and for discovery be DENIED.
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
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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

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