Wetherby v. Warden Noble Correctional Institution

Filing 14

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Karl C. Wetherby. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 8/31/2015. Signed by Magistrate Judge Norah McCann King on 8/13/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KARL C. WETHERBY,
Petitioner,
Case No. 2:14-cv-00361
Judge Marbley
Magistrate Judge King

v.
WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, (ECF No. 1), Respondent’s
Return of Writ, (ECF No. 12), and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
Petitioner was charged in the Licking County Court of Common Pleas with obstructing
official business in violation of O.R.C. § 2921.31, with firearm specifications, inducing panic in
violation of O.R.C. § 2917.31, with firearm specifications, and aggravated menacing in violation
of O.R.C. § 2903.21(A). The Ohio Fifth District Court of Appeals summarized the facts and
procedural history of the case as follows:
On September 23, 2010, officers from the Licking County Sheriff's
Department went to Jason Lee's home at 9151 Linville Road,
Newark, Ohio, to serve a writ of possession FN1. Deputies spoke
to Lee and explained that his property had been sold at sheriff's
sale and he needed to make arrangements to vacate. They agreed
on October 11, 2010 as the date by which Lee would vacate, but
Lee stated that he was going to hire an attorney to have the sale set
aside. Wetherby is a friend of Lee's who was staying on the
property in a camper in the driveway. (1T. at 244).
1 

FN1. See, State v. Lee, 5th Dist. No. 11–CA–0076, 2012–Ohio–
2856.
Deputies did not return on October 11, 2010, because a court
action was pending to review the propriety of the sale. However,
on October 20, 2010, the court denied a stay on the writ of
possession. Deputies again spoke with Lee at his home on October
25, 2010, and told him he needed to vacate on October 27, 2010.
At about 9:30 a.m. on October 27, deputies arrived at Lee's home.
Lee was standing on the front sidewalk. He yelled something to the
officers about having sold his house to someone else and told them
to leave. Lee then ran in the front door of the home. Officers
followed Lee to the front porch but Lee would not come out or let
them in the house. He yelled through the front door that he was not
coming out.
Deputies returned to their vehicle to telephone Lee's attorney, and
called their supervisor, Captain Bruce Myers. Deputy Tim
Caldwell went around to the back door to attempt to talk to Lee.
The blinds covering the French doors on the back porch flew open
and the faces of Lee and another man, later identified as Wetherby,
appeared against the window. The two men began yelling and
screaming at Deputy Caldwell. The corners of their mouths were
“full of white stuff” from yelling and screaming and they were
spitting on the window.
When Captain Bruce Myers arrived, he went to the back door to
speak with the pair. He advised Lee through the door that Lee's
attorney was on his way. Captain Myers saw an arm and a hand
come around the side of the blinds covering the door. The hand
was holding a pistol.
Much of the staff of the Sheriff's Department had been dispatched
to an incident involving a van, containing a pipe bomb, which
crashed into a church following a pursuit earlier that morning. At
least 25 employees of the Sheriff's Department and fire department
were dispatched to Lee's home, including the SWAT team and the
hostage negotiating team.
Lee would not speak to the hostage negotiators through a “throw
phone,” which is the preferred method of communicating so that
all communications can be monitored by the police. However, he
agreed to speak to Misty Van Balen through a cell phone.

2 

Lee repeatedly told her that he wanted to die, that he was going to
kill whoever entered the residence first and then kill himself. He
also told her that he and Wetherby had a plan to kill each other. He
told her that he could see the officers through the window and
could take them out. He intended to die and take out as many
people as he could. Lee would speak calmly with her for a while,
then start yelling and hang up. During the telephone negotiations,
Wetherby can be heard yelling in the background. Wetherby is
speaking so loudly that the deputy told Lee to “tell him to shut up.
I can't hear you.” (1T. at 244–245). Throughout the negotiations,
Lee was asking Wetherby for his advice. Several times Lee halted
the discussions in order to seek Wetherby's advice. (1T. at 245).
Lee and Wetherby informed the negotiating deputies that they
wanted to speak to the news media. Accordingly, a meeting was
arranged with a local news team. Lee was afraid to leave the
residence. At about 4:15 p.m., Wetherby agreed to come out
unarmed and speak to the media. Wetherby was taken into custody
without incident at the conclusion of the interview with the news
team. Lee came out of the house at 6:30 p.m.
During a subsequent search of the house, officers found three
firearms in a cabinet in a basement office, a loaded firearm in a
garage, a revolver in the first floor dining room, a rifle leaning
against an end table in the living room, and a rifle in the corner of a
first floor bathroom.
The jury convicted Wetherby on all counts. At sentencing, the trial
court merged the firearm specifications. The court further merged
the Obstructing Official Business contained in count one with the
Inducing Panic charge found in count two. The state elected to
proceed on count one for sentencing. The court sentenced
Wetherby to an aggregate sentence of three years and six months.
Assignments of Error
Wetherby raises four assignments of error:
“I. THE CONVICTIONS WERE BASED ON INSUFFICIENT
EVIDENCE AND WERE OTHERWISE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE CONTRARY TO
OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.
“II. APPELLANT'S ACTIONS WERE PRIVILEGED UNDER
OHIO LAW AND THE STATE AND FEDERAL
3 

CONSTITUTIONS AND THUS COULD NOT FORM THE
BASIS FOR CRIMINAL LIABILITY THEREUNDER.
“III. THE JURY INSTRUCTIONS WERE PREJUDICIALLY
INSUFFICIENT UNDER OHIO LAW AND THE STATE &
FEDERAL CONSTITUTIONS.
“IV. APPELLANT WAS PREJUDICIALLY DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
STATE AND FEDERAL CONSTITUTIONS.”
State v. Wetherby, No. 12-CA-69, 2013 WL 4028681, at *1-2 (Ohio App. 5th Dist. Aug. 1, 2013).
On August 1, 2013, the appellate court reversed Petitioner’s conviction on inducing panic, but
otherwise affirmed his convictions, and remanded the case to the trial court. Id. Petitioner’s
sentence remained unchanged. (ECF No. 12-1, PageID# 230.) On December 24, 2013, the Ohio
Supreme Court dismissed the appeal. State v. Wetherby, 137 Ohio St.3d 1442 (Ohio 2013).
On April 18, 2014, Petitioner filed this action, alleging that the evidence is
constitutionally insufficient to sustain his convictions and that his convictions are against the
manifest weight of the evidence (claim one); that his actions were privileged and therefore could
not form the basis for criminal liability (claim two); that he was denied a fair trial due to
improper jury instructions (claim three); and that he was denied the effective assistance of
counsel (claim four). Respondent contends that Petitioner’s claims are procedurally defaulted or
without merit.
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) governs this Court's review of state-court determinations. The
United State Supreme Court recently described AEDPA as “a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudicated in state court” and emphasized
that courts must not “lightly conclude that a State's criminal justice system has experienced the
4 

‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow, -- U.S.--, --,
134 S.Ct. 10,16 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)); see also
Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for
evaluating state-court rulings, and demands that state-court decisions be given the benefit of the
doubt.”) (internal quotation marks, citations, and footnote omitted).
The factual findings of the state appellate court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
. 28 U.S.C. § 2254(e)(1). “Under AEDPA, a writ of habeas corpus should be denied unless the
state court decision was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court, or based on an unreasonable
determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley,
706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28
U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was “contrary to, or
involved an unreasonable application of, clearly established federal law”); 28 U.S.C. §
2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable determination
of the facts in light of the evidence presented in the State court proceeding”). The United States
Court of Appeals for the Sixth Circuit explained these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
5 

“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, -- U.S. --, --, 131 S.Ct. 1388, 1398 (2011). “‘In order for a
federal court to find a state court's application of [Supreme Court precedent] unreasonable, . . .
[t]he state court's application must have been objectively unreasonable,’ not merely ‘incorrect or
erroneous.’” Wiggins v. Smith, 539 U.S. 510, 520–21, 123 S.Ct. 2527 (2003) (internal quotation
marks omitted) (quoting Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S.
63, 76 (2003)). See also Harrington, 562 U.S. at 101 (“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.” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). In considering a claim of “unreasonable application” under § 2254(d)(1), courts must
focus on the reasonableness of the result, not on the reasonableness of the state court's analysis.
Holder v. Palmer, 588 F.3d 328, 341 (6th Cir.2009) (“[O]ur focus on the ‘unreasonable
application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state
court reached and not whether the state court considered and discussed every angle of the
evidence.’” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)). See also
Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir.2013) (considering evidence in the state court
record that was “not expressly considered by the state court in its opinion” in evaluating the
reasonableness of state court's decision). In evaluating the reasonableness of a state court's
ultimate legal conclusion under § 2254(d)(1), a court must review the state court's decision based

6 

only on the record that was before it at the time that the state court rendered its decision.
Pinholster, 131 S.Ct. at 1398. Put simply, “review under § 2254(d)(1) focuses on what a state
court knew and did.” Id. at 1399.
Claims One and Two
In claim one, Petitioner asserts that the evidence is constitutionally insufficient to sustain
his convictions, and that his convictions are against the manifest weight of the evidence.
Petitioner contends that police acted unofficially and presented “illegal court documents that are.
. . a fraud” and that police acted as “rogue agents with the threat and action of force including
removal by gun-point from the property owner’s rightful property.” Petition (ECF No. 12),
PageID# 60. Petitioner maintains that he merely aided another in preventing a hostile takeover
by police. In claim two, Petitioner similarly asserts that he committed no crime because his
actions were privileged under Ohio law. Id. at PageID# 7. This Court will liberally construe the
pro se Petition and will consider both of these arguments together.
The state appellate court rejected Petitioner’s claims, reasoning in relevant part as
follows:
Our review of the constitutional sufficiency of evidence to support
a criminal conviction is governed by Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a
court of appeals to determine 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.; see also McDaniel v. Brown, 558 U.S. 120,
130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this
standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239,
2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933
N.E.2d 296, 2010–Ohio–2720, ¶ 68.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
7 

consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d,
“Appellate Review,” Section 60, at 191–192 (1978).
1. Obstructing Official Business.
R.C. 2921.31, Obstructing Official Business provides,
(A) No person, without privilege to do so and with purpose to
prevent, obstruct, or delay the performance by a public official
of any authorized act within the public official's official
capacity, shall do any act that hampers or impedes a public
official in the performance of the public official's lawful
duties.
In the case at bar, Licking County Sheriff's officers were
attempting to enforce a Writ of Possession resulting from a
foreclosure action. No evidence was presented during trial that
Wetherby had an ownership interest in the subject property.
No evidence was presented that Wetherby had any cognizable
interest in the property pursuant to any written agreement. The
only evidence presented is that Lee permitted Wetherby to
stay in a camper on the property. No evidence was presented
as to the ownership of the camper. Thus, the evidence
presented during trial indicates that Wetherby was no more
than a guest of Lee.
In the case at bar, Lee was to vacate the premises taking
whatever he would like. The new owners gave Lee an
additional thirty days to remove the remainder of his property.
(1T. at 116). Further, Lee was aware that his application for a
stay had been denied. (Id. at 120–121, 461 N.E.2d 1273). The
evidence in this case included copies of the Writ of Possession
as well as the civil court's judgment entry refusing to stay that
Writ. Those documents clearly show that Lee was a party to
that foreclosure action. Accordingly, Wetherby as a mere
guest was not privileged to use force or threaten the use of
force to resist the Licking County Sheriff's officers from
enforcing a Writ of Possession resulting from a foreclosure
action.

8 

In the case at bar, the state presented evidence that, at the very
least, Wetherby aided and abetted Lee in preventing the
deputies from the performance of their lawful duties.
Generally, a criminal defendant has aided or abetted an
offense if he has supported, assisted, encouraged, cooperated
with, advised, or incited another person to commit the offense.
See, State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796
(2001), syllabus. “‘Participation in criminal intent may be
inferred from presence, companionship and conduct before
and after the offense is committed.’” State v. Mendoza, 137
Ohio App.3d 336, 342, 738 N.E.2d 822 (2000), quoting State
v. Stepp, 117 Ohio App.3d 561, 568–569, 690 N.E.2d 1342
(1997).
R.C. 2923.03 provides:
(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the
following:
***
(2) Aid or abet another in committing the offense.
R.C. 2923.03(F) states, “A charge of complicity may be stated in
terms of this section, or in terms of the principal offense.”
The Supreme Court of Ohio clarified Ohio's position on the issue
of complicity in State v. Perryman (1976), 49 Ohio St.2d 14, 358
N.E.2d 1040, vacated in part on other grounds sub nom, Perryman
v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156. The
court unequivocally approved of the practice of charging a jury
regarding aiding and abetting even if the defendant was charged in
the indictment as a principal. Id. The court held that the indictment
as principal performed the function of giving legal notice of the
charge to the defendant. Id. Therefore, if the facts at trial
reasonably supported the jury instruction on aiding and abetting, it
is proper for the trial judge to give that charge. Perryman, supra at
27, 28.
State v. Payton, 8th Dist. Nos. 58292, 58346, 1990 WL
48952(Apr. 19, 1990).
R.C. 2923.03(F) adequately notifies defendants that the jury may
be instructed on complicity, even when the charge is drawn in
9 

terms of the principal offense. United States v. McGee 529 F.3d
691, 695 (6th Cir.2008); State v. Herring, 94 Ohio St.3d 246, 251,
762 N.E.2d 940, 949(2002); State v. Keenan, 81 Ohio St.3d 133,
151, 689 N.E.2d 929, 946(1998); State v. Templeton, 5th Dist.
No.2006–CA–33, 2007–Ohio–1148, ¶ 63.
In this case, while inside the home, Lee displayed a firearm to the
officers outside. The pair further made threats to shoot the officers
and themselves. The deputies remained on the scene from 9:30
a.m. to at least 6:30 p.m.
Viewing the evidence in a light most favorable to the prosecution,
we conclude that a reasonable person could have found beyond a
reasonable doubt that, at the very least, Wetherby aided and
abetted Lee in committing the crime of obstructing official
business. We hold, therefore, that the state met its burden of
production regarding each element of the crimes and, accordingly,
there was sufficient evidence to support Wetherby's conviction.
***
3. Aggravated Menacing.
Wetherby was also convicted of aggravated menacing. R.C.
2903.21, aggravated menacing provides,
(A) No person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or
property of the other person, the other person's unborn, or a
member of the other person's immediate family.
The crime of aggravated menacing is triggered by a threat that
intimidates or causes fear or apprehension by the recipient. State v.
Schwartz, 77 Ohio App.3d 484, 602 N.E.2d 671(12th Dist.1991).
Such threats are not among the class of utterances that are
protected by the First Amendment. Mozzochi v. Borden, 959 F.2d
1174 (2nd Cir.1992); United States v. Khorrami, 895 F.2d 1186
(7th Cir.1990); United States v. Bellrichard, 994 F.2d 1318 (8th
Cir.1993).
In State v. Millikin, 1st Dist. Hamilton App. Nos. C030825, C–
030826, 2004–Ohio–4507, the defendant was angry that motorists
would move and drive around the barricades placed in front of his
home because of road construction. The defendant parked his and
another person's vehicles in front of his house, blocking the street.
The police were called, and the defendant was told to move the
10 

vehicles. The defendant was angry that the police were not
enforcing the closing of the road. The state presented evidence that
when the police arrived for the second time, the defendant
appeared at the front door of his house, angry and intoxicated,
carrying a shotgun and having a handgun tucked in the waistband
of his pants. The appellate court upheld the defendant's conviction
for aggravated menacing, stating that “Even though Millikin never
pointed a gun at the police officers and did not verbally threaten
them, in the entire context of the evening, it was reasonable to
conclude that the police officers felt threatened and were fearful
that Millikin would attempt to cause serious physical harm to
them.” Id. at ¶ 23.
In State v. Terzo, 12th Dist. Butler App. No. CA2002–08–194,
2003–Ohio5983, a Fairfield police officer responded to a report
that a female was brandishing a firearm and trying to set fire to
clothing she had thrown in the street. When the officer arrived, he
observed the female sitting on the front porch holding a shotgun.
The officer testified that the female raised the shotgun and aimed it
at the officer. He testified that he drew his service revolver, fearing
that the female intended to shoot. The female went back inside the
house, put the gun down, and surrendered herself immediately. The
appellate court upheld Terzo's conviction for aggravated menacing,
stating that “The threat need not be verbalized; rather, the threat
can be implied by the offender's actions. City of Niles v. Holloway
(Oct. 3, 1997), Trumbull App. No. 96–T–5533, 1997 Ohio App.
LEXIS 4517, 1997 WL 665974 citing State v. Hoaglin (Mar. 25,
1993), Van Wert App. No. 15–92–15, 1993 Ohio App. LEXIS
1718, 1993 WL 85643. And finally, while appellant [Terzo] also
argues that she would have been unable to carry out the threat
because the gun was not loaded, neither the intent nor the ability to
carry out the threat is an element of the offense. Dayton v.
Dunnigan (1995), 103 Ohio App.3d 67, 658 N.E.2d 806.” Id. at ¶
18, 658 N.E.2d 806.
In the case at bar, evidence was presented that the deputies had
concerns for their safety. First, officers retreated from the front of
the home where they were exposed when co-defendant Lee
brandished a firearm. The officer who observed the gun being
brandished retreated to a “safer location.” He also yelled to his
fellow officer that he saw a gun and told him to get off the porch.
Moreover, a tactical, or SWAT team, was called in and a
squad/medic was kept on stand-by throughout the ordeal.
Viewing the evidence in a light most favorable to the prosecution,
we conclude that a reasonable person could have found beyond a
11 

reasonable doubt that, at the very least, Wetherby aided and
abetted Lee in committing the crime of aggravated menacing. We
hold, therefore, that the state met its burden of production
regarding each element of the crimes and, accordingly, there was
sufficient evidence to support Wetherby's conviction.
***
In his second assignment of error, Wetherby incorporates the
arguments he previously made with respect to this first assignment
of error. He contends in this assignment of error that his conduct
was “privileged.”
Wetherby's claim is essentially one of defense of property. Ohio
law does not provide appellant the right to defend his property by
threatening to shoot police officers who are there to execute a writ
of possession issued by a court of law simply because he believes
there were errors made in the civil proceeding that led to the
sheriff's sale of his property. State v. Lee, 5th Dist. No. 11–CA–
0076, 2012–Ohio–2856, ¶ 43.
In State v. Burns, 2nd Dist. No. 22674, 2010–Ohio–2831, the
appellant argued that her conviction for obstructing official
business was against the manifest weight of the evidence because
the officer whom she impeded in his efforts to search her mother's
home was there unlawfully, without a search warrant. The court
rejected this argument, holding:
Appellant contests that Officer Wolpert was performing “lawful
duties” when he entered her mother's house prior to obtaining a
search warrant. Although an unlawful entry may result in the
exclusion of evidence, “absent bad faith on the part of a law
enforcement officer, an occupant cannot obstruct the officer in the
discharge of his duty, whether or not the officer's actions are
lawful under the circumstances.” State v. Stevens, Morgan App.
No. 07–CA–0004, 2008–Ohio–6027, ¶ 37, quoting State v.
Paumbaur (1984), 9 Ohio St.3d 136, 138, 459 N.E.2d 217. There
is no evidence of “bad faith” on the part of Officer Wolpert. He
explained that his reason for entering the home was to ensure the
safety of all concerned and to ensure that evidence could not be
removed or destroyed. Even if Officer Wolpert's entry had been
unlawful under these particular circumstances, absent evidence of
bad faith, Appellant was not justified in obstructing his efforts to
secure the residence.” Id. at ¶ 19, 459 N.E.2d 217.

12 

In the case at bar, there is absolutely no evidence that any of the
officers acted in bad faith. To the contrary, the evidence
unequivocally established that the sheriff's department had a writ
of possession and a judgment of the court, dated October 20, 2010,
denying Lee's motion for a stay on the writ of possession. Further,
while a homeowner may say almost anything to officers in an
attempt to persuade them not to enter, the Fourth Amendment does
not grant a homeowner the right to use deadly force to resist an
unlawful entry. State v. McCoy, 2nd Dist. No. 22479, 2008–Ohio–
5648, ¶ 19. In the instant case, Wetherby's right to resist entry,
even if the police were acting in bad faith, did not extend to a
threat of deadly force and show of a firearm. Lee, supra at ¶ 47.
State v. Wetherby, 2013 WL 4028681, at *2-9.1
A claim that a Petitioner’s convictions are against the manifest weight of the evidence
cannot form the basis of federal habeas corpus relief. Under Ohio law, a claim that a verdict was
against the manifest weight of the evidence requires the appellate court to act as a “thirteenth
juror” and review the entire record, weigh the evidence, and consider the credibility of witnesses
in order 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 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (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.
However, before a criminal defendant can be convicted consistent with the United States
Constitution, there must be sufficient evidence to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319. To determine whether the
evidence was sufficient to support Petitioner's convictions, this Court must view the evidence in
the light most favorable to the prosecution. See Wright v. West, 505 U.S. 277, 296 (1992) (citing

11

 The Court has omitted the appellate court’s discussion of Petitioner’s conviction on inducing panic, since
Petitioner’s conviction on that charge was reversed.

13 

Jackson, at 319). The prosecution is not affirmatively required to “rule out every hypothesis
except that of guilt.” Id. (quoting Jackson, at 326). “[A] reviewing court ‘faced with a record
that supports conflicting inferences must presume - even if it does not appear on the record - that
the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.’ ” Id. (quoting Jackson, at 326).
Under the AEDPA, a state court's determination regarding a sufficiency of evidence
claim is entitled a “double layer” of deference. As explained in Brown v. Konteh, 567 F.3d 191,
205 (6th Cir. 2009), deference is due the jury's finding of guilt because the standard, announced
in Jackson, is whether, “viewing the trial testimony and exhibits 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.” Even if de novo review of the evidence leads to the conclusion that
no rational trier of fact could have so found, a federal habeas court “must still defer to the state
appellate court's sufficiency determination as long as it is not unreasonable.” Id. See also White
v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a habeas petitioner to
overcome. For the reasons detailed by the state appellate court, Petitioner has not done so here.
Further, as to Petitioner’s claim that he acted under privilege or without criminal liability, a
“‘federal court must defer to a state court's interpretation of its own rules of evidence and
procedure’” in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431,
1433 (11th Cir.1985)).
Claims one and two are without merit.
Claim Three and Portions of Claim Four
In claim three, Petitioner complains that he was convicted on the basis of erroneous jury
instructions. Specifically, Petitioner contends that the trial court should have instructed the jury

14 

that police acted unlawfully, and that his actions were privileged and were conducted in defense
of property. Petition (ECF No. 1), PageID# 8. Petitioner did not raise this claim in the trial
court and the state appellate court therefore considered the claim only for plain error. In claim
four, Petitioner alleges that he was denied the effective assistance of trial counsel because, inter
alia, his attorney failed to request jury instructions on the defense of privilege and failed to argue
that Petitioner’s convictions were invalid on this basis. Petition (ECF No. 1), PageID# 10.
A state criminal defendant with federal constitutional claims is required to first properly
present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). 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)). Moreover, a petitioner must present the
claim to the state courts in the way that state law requires. Wainwright v. Sykes, 433 U.S. 72, 87
(1977).Where a petitioner has failed to properly present his claims in the state court and can now
no longer do so, “there is a procedural default for purposes of federal habeas. . . .” Coleman v.
Thompson, 501 U.S. 722, 735 n. 1 (1991).
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

15 

a state procedural rule was not satisfied, 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). Constitutionally ineffective
counsel may constitute cause to excuse a procedural default of a separate claim if an ineffective
assistance of counsel claim, sufficient to meet the Strickland standard, was itself preserved for
federal habeas review or otherwise satisfies the “cause and prejudice” standard for procedural
default. Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000). See also Burroughs v. Makowski,
411 F.3d 665, 668 (6th Cir. 2005).
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)).
As noted supra, the state appellate court reviewed Petitioner’s third claim only for plain
error because Petitioner had failed to raise the issue at trial:
Wetherby claims the trial court erred in not giving complete jury
instructions. Specifically, Wetherby contends that it was plain error
for the court not to instruct the jury on privilege, self-defense and
imminent fear of serious physical harm with respect to aggravated
menacing.
The giving of jury instructions is within the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of
discretion. State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462
(3rd Dist.1993). In order to find an abuse of that discretion, we
16 

must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983) Jury instructions must be reviewed as a whole. State
v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988).
Crim.R. 30(A) governs instructions and states as follows:
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 need not reduce
its instructions to writing.
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.
Wetherby did not file a written request for specific jury
instructions, and did not object to the trial court's jury instructions.
Based upon his failure to proffer instructions or object to the
instructions and bring the issue to the trial court's attention for
consideration, we must address this assignment under the plain
error doctrine. Therefore, for this court to reverse Wetherby's
convictions, we must find that the trial court's procedure regarding
its jury instructions was prejudicial. Crim.R. 52(B).
[A]n appellate court may, in its discretion, correct an error not
raised at trial only where the appellant demonstrates that (1) there
is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant's substantial
rights, which in the ordinary case means it affected the outcome of
the district court proceedings; and (4) the error seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.
United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176
L.Ed.2d 1012 (Internal quotation marks and citations omitted). The
Ohio Supreme Court pertinently addressed when structural error
analysis should be used in State v. Perry,
17 

We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis
where, as here, the case would be otherwise governed by Crim.R.
52(B) because the defendant did not raise the error in the trial
court. See Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274; Johnson,
520 U.S. at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. This caution is
born of sound policy. For to hold that an error is structural even
when the defendant does not bring the error to the attention of the
trial court would be to encourage defendants to remain silent at
trial only later to raise the error on appeal where the conviction
would be automatically reversed. We believe that our holdings
should foster rather than thwart judicial economy by providing
incentives (and not disincentives) for the defendant to raise all
errors in the trial court - where, in many cases, such errors can be
easily corrected.
101 Ohio St.3d 118, 802 N.E.2d 643, 2004–Ohio–297, ¶ 23. Thus,
the defendant bears the burden of demonstrating that a plain error
affected his substantial rights and, in addition that the error
seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 734,
113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); State v. Perry, 101 Ohio
St.3d at 120, 802 N.E.2d 643. Even if the defendant satisfies this
burden, an appellate court has discretion to disregard the error.
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002);
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646.
Under the circumstances of the case at bar, there is nothing in the
record to show that Wetherby was prejudiced. As we discussed in
our disposition of Wetherby's second assignment of error, neither
Wetherby nor Lee's actions were privileged and neither was
entitled to use force.
Aggravated menacing does not require an imminent fear of serious
physical harm as suggested by Wetherby. Neither the intent of a
defendant to carry out his threat nor his ability to do so are
elements of the offense of aggravated menacing. Dayton v.
Dunnigan, 103 Ohio App.3d 67, 71, 658 N.E.2d 806 (2nd
Dist.1995). Even a conditional threat can constitute a violation of
the menacing laws. State v. Collie, 108 Ohio App.3d 580, 582, 671
N.E.2d 338 (1st Dist.1996). What is necessary to establish the
offense of menacing is the victim's subjective belief that the
defendant can cause physical harm to herself, her immediate

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family, or her property. State v. Klempa, 7th Dist. Belmont App.
No. 01–BA–63, 2003–Ohio–3482, ¶ 24.
State v. Wetherby, 2013 WL 4028681, at *10-12.
The United States Court of Appeals for the Sixth Circuit has held that plain error review
by a state appellate court does not constitute a waiver of the state's procedural default rules.
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).
Ohio has a contemporaneous objection rule under which an
appellant who fails to object waives later review of the issue unless
plain error can be shown. Williams v. Bagley, 380 F.3d 932, 968
(6th Cir.2004), cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161
L.Ed.2d 779 (2005) (citing State v. Smith, 89 Ohio St.3d 323, 332,
731 N.E.2d 645 (2000)). The Sixth Circuit has held that Ohio's
contemporaneous objection rule constitutes an adequate and
independent state ground barring federal review absent a showing
of cause for the waiver and resulting prejudice. Id.; Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir.2001); Stojetz v. Ishee, 2006
WL 328155 *12 (S.D.Ohio Feb.10, 2006).
A state court's review of an issue for plain error is considered by
the Sixth Circuit as the enforcement of a procedural default.
Williams, 380 F.3d at 968; Hinkle, 271 F.3d at 244. The federal
court, in determining whether a state court has relied on a
procedural rule to bar review of an issue, examines the latest
reasoned opinion of the state courts and presumes that later courts
enforced the bar instead of rejecting the claim on the merits.
Hinkle, 271 F.3d at 244 (citing Ylst, v. Nunnemaker, 501 U.S. 797,
803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).
Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D.Ohio 2007). Even a state court’s alternative
dismissal on the merits does not forgive the waiver or otherwise revive the claim for purposes of
habeas corpus review. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“a state court need not
fear reaching the merits of a federal claim in an alternative holding”); Bowling v. Parker, 344
F.3d 487, 498 (6th Cir. 2003) (where state court's dismissal of claim on merits constitutes an
alternative holding, federal habeas court will consider the claim procedurally defaulted).

19 

Because Petitioner failed to raise before the state trial court the issue presented in his
third claim for habeas corpus relief, and because the state court of appeals reviewed this claim
for only plain error, Petitioner has waived this Court’s consideration of this claim unless he can
show cause and prejudice for this procedural default.
As noted supra, a valid - and preserved - claim of ineffective assistance of counsel can
excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446. In his claim four, Petitioner
alleges that his trial counsel was ineffective because he failed to request jury instructions on the
defense of privilege. Petitioner raised this claim in his direct appeal, but the state appellate court
rejected this claim:
A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry in whether counsel's performance fell
below an objective standard of reasonable representation involving
a substantial violation of any of defense counsel's essential duties
to appellant. The second prong is whether the appellant was
prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell, 506
U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
In determining whether counsel's representation fell below an
objective standard of reasonableness, judicial scrutiny of counsel's
performance must be highly deferential. Bradley, 42 Ohio St.3d at
142, 538 N.E.2d 373. Because of the difficulties inherent in
determining whether effective assistance of counsel was rendered
in any given case, a strong presumption exists that counsel's
conduct fell within the wide range of reasonable, professional
assistance. Id.
In order to warrant a reversal, the appellant must additionally show
he was prejudiced by counsel's ineffectiveness. Prejudice
warranting reversal must be such that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.” Strickland, 466
U.S. at 694. A court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the decision reached
would “reasonably likely been different” absent the errors.
Strickland, 466 U.S. 695, 696. A reasonable probability is a
20 

probability sufficient to undermine confidence in the outcome.
Strickland, supra; Bradley, supra.
The claims raised by Wetherby do not rise to the level of
prejudicial error necessary to find that he was deprived of a fair
trial. Having reviewed the record that Wetherby cites in support of
his claim that he was denied effective assistance of counsel, we
find Wetherby was not prejudiced by defense counsel's
representation of him. The result of the trial was not unreliable nor
were the proceedings fundamentally unfair because of the
performance of defense counsel. Wetherby has failed to
demonstrate that there exists a reasonable probability that, had trial
counsel requested a jury instruction on privilege and argued
insufficient evidence as he has suggested the result of the trial
would have changed. As we have noted, any error in the procedure
employed by trial counsel was harmless beyond a reasonable
doubt.
State v. Wetherby, 2013 WL 4028681, at *12-13.
The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In order to
establish the denial of effective assistance of counsel, the defendant must demonstrate that his
attorney performed in a constitutionally deficient manner. “This requires showing that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. at 687. The defendant
also must show that he was prejudiced thereby. This requires showing that his attorney’s errors
were so serious as to deprive him of a fair trial, i.e., a trial the result of which is reliable. Id.
Scrutiny of defense counsel’s performance must be “highly deferential.” Id. at 689.
“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.” Id . To establish the second prong of the Strickland test, i.e., prejudice, a petitioner
must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of

21 

the proceedings would have been different. Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Because a petitioner must satisfy both
prongs of Strickland in order to demonstrate ineffective assistance of counsel, should a court
determine that a petitioner has failed to satisfy one prong, it need not consider the other. Id. at
697. Petitioner has failed to meet this test.
The state appellate court held that neither Wetherby nor Lee's actions were privileged and
that neither was entitled to use force. Therefore, Petitioner would not have been entitled to jury
instructions on privilege. Further, the state appellate court held that the evidence was sufficient
to sustain his convictions. Under these circumstances, Petitioner can establish neither prong of
the Strickland test of counsel ineffectiveness.
Therefore, Petitioner’s claim, included in his fourth claim, of ineffective assistance of
counsel by reason of his counsel’s failure to request jury instructions on the defense of privilege
and failure to argue that his convictions were invalid on this basis is without merit. It follows,
then, that this claim cannot serve to excuse Petitioner’s procedural default of claim three.
Remaining Claims in Claim Four
In claim four, Petitioner also alleges that he was denied the effective assistance of trial
counsel because his attorney failed to request joinder of trials and failed to call witnesses.
Petitioner also alleges the denial of the effective assistance of appellate counsel, arguing that he
was denied meaningful access to appellate review because, essentially, the state appellate court
denied his claims.
Ineffective Assistance of Trial Counsel
Petitioner has waived his claim of ineffective assistance of trial counsel and the denial of
appellate review because he failed to present these issues to the state courts. He may now no

22 

longer do so, because these claims are barred under Ohio’s doctrine of res judicata. See State v.
Cole, 2 Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio
St.2d 175 (1967). The state courts were never given an opportunity to enforce the procedural rule
at issue due to the nature of Petitioner's procedural default.
The Court finds that Ohio's res judicata rule is adequate and independent under the third
part of the Maupin test. To be “independent,” the procedural rule at issue, as well as the state
court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S.
722, 732–33 (1991). To be “adequate,” the state procedural rule must be firmly established and
regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly
established and regularly followed state practice’ may be interposed by a State to prevent
subsequent review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v.
Kentucky, 466 U.S. 341, 348–51 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149
(1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry
rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v.
Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir.
2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently
refused, in reliance on the doctrine of res judicata, to review the merits of claims because they
are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at
16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring
that claims are adjudicated at the earliest possible opportunity. With respect to the independence
prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law.

23 

Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is
an adequate and independent ground for denying relief.
Petitioner has failed to establish cause and prejudice for his procedural default of this
portion of claim four. Moreover, the record fails to establish that this is an extraordinary case
reflecting that Petitioner is actually innocent of the charges on which he was convicted so as to
justify a merits review of his procedurally defaulted claims. See Murray v. Carrier, 477 U.S. at
491; Sawyer v. Whitley, 505 U.S. 333. To establish a credible claim of actual innocence, a
petitioner must “support his allegations of constitutional error with new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995)); see
also Gulertekin v. Tinnelman–Cooper, 340 F.3d 415, 427 (6th Cir. 2003). Petitioner has not done
so here. In short, Petitioner’s claim that his trial counsel was ineffective because his attorney
failed to request joinder of trials and failed to call witnesses has been procedurally defaulted.
Ineffective Assistance of Appellate Counsel
Petitioner also alleges that he was denied the effective assistance of appellate counsel,
arguing that he was denied meaningful access to appellate review because, essentially, the state
appellate court denied his claims. Technically, this claim remains unexhausted because Petitioner
never presented this claim to the state courts, and he may still do so by filing a delayed
application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Ordinarily, a petitioner
must fairly present the substance of each constitutional claim to the state courts. Anderson v.
Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). If the petitioner fails
to fairly present his claims through the requisite levels of state appellate review, but still has an

24 

avenue open to him in the state courts by which he may present the claims, his petition is subject
to dismissal without prejudice for failure to exhaust state remedies. See 28 U.S.C. § 2254(c).
The exhaustion requirement is not jurisdictional, however, and an application for a writ
of habeas corpus may be denied on the merits notwithstanding a petitioner's failure to exhaust
state remedies. 28 U.S.C. § 2254(b)(2). Petitioner’s claim of ineffective assistance of appellate
counsel plainly lacks merit. In the interest of judicial economy, then, the Court will address the
issue here.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987).
Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey,
469 U.S. 387, 396-97 (1985). “‘[W]innowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v.
Barnes, 463 U.S. 745, 751-52 (1983)). The United States Court of Appeals for the Sixth Circuit
has identified the following considerations that should be taken into account in determining
whether appellate counsel performed reasonably competently:
A. Were the omitted issues “significant and obvious?”
B. Was there arguably contrary authority on the omitted issues?
C. Were the omitted issues clearly stronger than those presented?
D. Were the omitted issues objected to at trial?
E. Were the trial court's rulings subject to deference on appeal?
F. Did appellate counsel testify in a collateral proceeding as to his
appeal strategy and, if so, were the justifications reasonable?
G. What was appellate counsel's level of experience and expertise?
H. Did the petitioner and appellate counsel meet and go over
possible issues?
I. Is there evidence that counsel reviewed all the facts?
J. Were the omitted issues dealt with in other assignments of error?
K. Was the decision to omit an issue an unreasonable one which
only an incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).
25 

Petitioner has failed to identify any potentially meritorious issues that his attorney should
have raised on appeal, but did not. His claim of ineffective assistance of appellate counsel
therefore lacks merit.
Recommended Disposition
The Magistrate Judge RECOMMENDS that this action be DISMISSED.
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,
106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
August 13, 2015

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