McKinney v. Warden Warren Correctional Institution

Filing 32

ORDER and REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Anthony L McKinney and 12 MOTION to Dismiss habeas petition, or alternatively, to transfer filed by Warden Warren Correctional Institution in that it is RECOMMENDED that habeas corpus claims one, three and four be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit, Respondent's Motion to Dismiss be GRANTED and that this action be DISMISSED. The Court DENIES 2 3 [1 7] 20 24 28 Petitioner's Motion to Expand the Record, Motion for Stay and Abeyance, Motion for Discovery and Evidentiary Hearing, Motion for Leave to Supplement the Record with the Original Trial Court Transcripts, and Motion to Dismiss Re spondent's Reply. To the extent that Petitioner has attached additional exhibts in support of his claims, his Motion for Discovery is GRANTED. The Court DENIES AS MOOT 30 Petitioner's Motion for Extension of Time. Objections to R&R due by 7/2/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/15/15. (sem)(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
ANTHONY McKINNEY,
CASE NO. 2:14-CV-1992
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, ECF No. 1;
Petitioner’s Motion to Expand the Record, and Motions for Stay and Abeyance, ECF No. 2, 3,
17; Respondent’s Response in Opposition, ECF No. 18; Petitioner’s Reply, ECF No. 19;
Respondent’s Motion to Dismiss or Transfer and Supplemental Memoranda in Support, ECF
Nos. 12-14; Petitioner’s Motion for Leave to Supplement the Record with the Original Trial
Court Transcripts, ECF No. 20, Petitioner’s Motion for Discovery and Evidentiary Hearing,
ECF No. 24, Petitioner’s Motion to Dismiss, ECF No. 28, and Petitioner’s Motion for Extension
of Time, ECF No. 30.
For the reasons that follow Petitioner’s Motion to Expand the Record, Motion for Stay
and Abeyance, Motion for Discovery and Evidentiary Hearing, Motion for Leave to Supplement
the Record with the Original Trial Court Transcripts, and Motion to Dismiss Respondent’s Reply

(ECF Nos. 2, 3, 17, 20, 24, 28) are DENIED.1 To the extent that Petitioner has attached
additional exhibits in support of his claims, his Motion for Discovery is GRANTED.
Petitioner’s Motion for Extension of Time, ECF No. 30, is DENIED, as moot.
The Magistrate Judge RECOMMENDS that habeas corpus claims one, three and four be
TRANSFERRED to the United States Court of Appeals for the Sixth Circuit, that Respondent’s
Motion to Dismiss, ECF No. 12, be GRANTED, and that this action be DISMISSED.
Facts and Procedural History
This case involves Petitioner’s April 2006 convictions after a jury trial in the Franklin
County Court of Common Pleas on one count of murder, three counts of felonious assault, and
one count of having a weapon while under disability, with firearm specifications. This is not his
first federal habeas corpus petition. See McKinney v. Warden, Warrant Correctional Institution,
Case No. 2:09-cv-00498. On June 11, 2011, the Court dismissed Petitioner’s prior habeas corpus
petition. The United States Court of Appeals for the Sixth denied petitioner’s application for a
certificate of appealability. The United States Supreme Court denied Petitioner’s petition for a
writ of certiorari. Case No. 2:09-cv-00498, ECF No. 50, 51.
This Ohio Tenth District Court of Appeals summarized the facts as follows:
The facts showed that on October 13, 2005, four individuals-Terrance Barbour, Sherman Justice, Terrell Craig, and Jermaine
Freeman-- drove to an apartment building located at 3676
Cleveland Avenue. The purpose for this trip was to visit Barbour’s
cousin, ATimmy,@ and to plan a party celebrating Barbour’s release
from the Department of Youth Services. When they arrived at the
apartment building, three people were in the parking lot, one of
whom was identified by Craig and Freeman as appellant. There
was a brief confrontation between the two groups at that time.

1 Although the Court denies his Motion for Discovery, to the extent Petitioner considers the

materials “discovery,” the Court has considered the documents that Petitioner attached as
additional exhibits in support of his claims. 

The four discovered that Timmy had moved out of his apartment in
the building to another apartment on the other side of Cleveland
Avenue. The group found Timmy’s apartment and visited him for
a brief time. As they exited Timmy’s apartment, the group was
confronted by an individual named Mickey Hairston. Hairston had
a gun, and argued with Barbour.
The group went back across Cleveland Avenue to return to their
car so they could leave. As they passed through the apartment
building, Craig saw Hairston hand a gun to appellant. As Craig got
into the driver’s seat of their car, he saw appellant, who was
standing in the doorway from which the group had just exited the
apartment building, begin firing the gun towards him and his
group. Craig started to pull the car out of its parking space when he
saw that Barbour had been hit by gunfire. Barbour had been struck
in the neck by a bullet, and ultimately died from blood loss. In
addition, Justice had been shot in the leg.
Deputy Brian Jackson of the Franklin County Sheriff’s Office
arrived at the scene shortly after the shooting. Jackson spoke to
Craig, who gave a description of the person he had seen firing the
gunshots. Craig actually described two people, Aa dark heavyset
black dude with braids and a short brown-skinned dude with
braids.@ (Tr. at 180.) Jackson then began searching the area in his
cruiser, looking for anyone who matched the descriptions he had
been given. Jackson began his search along Cleveland Avenue
south of the buildings because he had been told the shooter had run
in that direction.
Jackson saw appellant, who fit the first description Craig had
given, exiting a drive-through carryout at Northern Lights
Shopping Center. Jackson stopped appellant so he could question
him about any possible knowledge of the shooting. Appellant was
initially evasive about where he was going and his address, but
ultimately gave his address as one of the apartments in the building
at which the shooting had occurred. Appellant stated that, AI don’t
have anything to do with that.@ When asked to what he was
referring, appellant said, A[w]hatever’s going on over there.@ (Tr. at
78.) Jackson then put appellant in the back of his cruiser and
returned to the scene of the shootings. Craig was then asked if he
could identify appellant, and Craig identified appellant as the
person who had fired the gunshots. Freeman later identified
appellant as the shooter in a photographic array. Appellant was
arrested, and his clothes were taken for testing, which revealed the
presence of gunshot residue.

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Appellant was indicted by a grand jury on one count of murder
with a firearm specification; three counts of felonious assault, each
with firearm specifications; and one count of having a weapon
while under disability. After trial, a jury convicted appellant of all
of the charges.
State v. McKinney, No. 06AP-510, 2007 WL 1153077, at *1-2 (Ohio 10th App. April 19, 2007).
The trial court sentenced Petitioner to an aggregate term of twenty-eight years to life. ECF No.
12-2, PageID# 197. On April 19, 2007, the appellate court affirmed the judgment of the trial
court=s judgment. State v. McKinney, 2007 WL 1153077, at *3. On September 26, 2007, the
Ohio Supreme Court dismissed Petitioner=s subsequent appeal. State v. McKinney, 115 Ohio
St.3d 1412 (2007).
In the meantime, defendant, on March 19, 2007, filed a petition for
post-conviction relief pursuant to R.C. 2953.21. Defendant
contended his trial counsel was ineffective in failing to call three
specific witnesses whose testimony would have demonstrated
defendant was not the person who fired the shot killing Terrance
Barbour. Attached to defendant’s petition was a letter from the
Ohio Public Defender’s Office declining to represent defendant in
his post-conviction proceedings. Defendant’s petition, however,
requested the opportunity to amend the petition to include evidence
defendant gathered to support it.
As indicated in his original petition, defendant on April 7, 2007
filed a motion for leave to amend his petition, requesting an
extension of 110 days to gather supporting materials. The trial
court granted his motion, and on July 11, 2007, defendant filed his
amended petition. Attached to the amended petition were (1)
defendant’s own affidavit explaining his inability to produce
supporting documentation, and (2) letters from his girlfriend
explaining her attempts to assist him. By judgment entry filed
September 25, 2007, the trial court denied defendant’s petition for
post-conviction relief filed on March 19, 2007, as well as his
amended petition filed July 11, 2007.
On March 20, 2008, the appellate court affirmed the trial court’s judgment. State v. McKinney,
No. 07AP-868, 2008 WL 747716, at *1-2 (Ohio 10th App. March 20, 2008). On July 9, 2008,

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the Ohio Supreme Court dismissed Petitioner=s appeal. State v. McKinney, 118 Ohio St.3d 1510
(2008). On July 16, 2007, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). On September 27, 2007, the appellate court denied Petitioner=s Rule
26(B) application. ECF No. 13, PageID# 622. On January 23, 2008, the Ohio Supreme Court
dismissed Petitioner=s subsequent appeal. State v. McKinney, 116 Ohio St.3d 1480 (2008).
On June 17, 2009, Petitioner filed his first federal habeas corpus petition. See McKinney
v. Warden, Warren Correctional Institution, Case No. 2:09-cv-00498. He asserted that he had
been denied a fair trial based on the trial court’s constructive amendment of the indictment and
belated disclosure of favorable evidence, denied the effective assistance of counsel, and
convicted on a defective indictment. On June 11, 2011, this Court dismissed Petitioner’s habeas
corpus petition. The United States Court of Appeals for the Sixth denied petitioner’s application
for a certificate of appealability, and the United States Supreme Court denied Petitioner’s
petition for a writ of certiorari. See Case No. 2:09-cv-00498, ECF No. 50, 51.
Thereafter, on November 7, 2011, Petitioner filed a motion for re-sentencing in the state
trial court, asserting that the trial court improperly failed to notify him of post-release control.
ECF No. 13, PageID# 792-95. On March 23, 2012, after a hearing, the trial court re-imposed the
same aggregate sentence of 28 years in prison, notifying Petitioner that he would be subject to a
mandatory term of three years post-release control. The state appellate court denied Petitioner’s
appeal as follows:
Anthony L. McKinney is appealing from the results of a
sentencing hearing at which post-release control was added to his
lengthy prison sentence. He was originally convicted of numerous
charges in 2007 and pursued a direct appeal at that time. The issue
to be considered at his most recent sentencing hearing was limited
to whether post-release control should be part of his sentence and
if so, how long the post-release control should last. McKinney
attempts in his appellate brief to raise several other issues which he

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calls “claims” as opposed to assignments of error. They are:
CLAIM I
The Appellant was ultimately denied his guaranteed right to the
Sixth, Fifth, Fourteenth Admendment to the U.S. and Feferal
Constitution, the right to confront and be protected against unseen
and unknown witnesses and Due Process.
The petitioner Mr. McKinney’s rights were violated due to an
unknown officer or Sgt. and unknown unseen witness. The officer
or Sgt. who actually conducted the identification procedure at the
scene of the crime has never produced, he’s unknown and unseen.
No one can identify this officer/Sgt. This officer/Sgt. who
conducted this identification procedure, also unknown would be
the only person to know who his witness was, only if there was a
positive identification. Logically if the state doesn’t know who the
officer/Sgt. is who conducted the identification procedure, you
wouldn’t know if there was a witness, or who this officers witness
was. Officer Brian Jackson who testified at trial, say he only
observed the unknown officer/Sgt. conduct the identification
procedure, with an unknown person from a distance. Officer
Jackson testified that he didn’t hear a positive identification.
Crawford v. washington 541 U.S. 36, 68(2004)and that he could
not identify the witness, even if he walked in the court room. The
phantom witness Terrell Craig. The trial court also violated
confrontation by allowing a witness that could not be identified by
officials to identify petitioner at trial. Taylor v. Cain, 545 F.3d 327
(5th cir.2008). No officer could or have identified this mystery
witness as a person who identified petitioner at the scent. Due to
the officer/Sgt who conducted the identification procedure, being
unknown, unseen and has not been identified. It is impossible to
have a witness under the protection of due process, and
confrontation, when the identification officer/Sgt is unknown. Not
only was the identification officer unknown, but officer Brian
Jackson says there was no positive identification, and he can’t
identify this unknown unseen witness terrell craig, even if he
walked in the court room. Also this claim is not likeany other
argument petitioner previously argued. Just the same facts, this is a
confrontation claim not identification. Haynes v. Quarterman, 561
F.3d 535, 538–39 (5th circuit 2009) Petitioner is showing that a
officer/Sgt. and a witness is unknown and unseen. This claim is
properly reserved for Appellete review. See March 23, 2012
Sentencing tracscipts and the courts decision July 5, 2012. This
court should reverse and remand for a new trial or, rather an
acquittal is the proper remedy.

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CLAIM II
The appellant was denied the right to be free from double jeopardy
5th admendment to the united states constitution, allied offenses.
On March 23, 2012 defendant sucessfully challenged P.R.C. and
allied offences at sentencing hearing. Petitioner received a copy of
the transcipts from Alicia Lash, these transcipts did not contain
petitioners full argument. Petitioners allied offenses claim and
other federal constitutional claims were omitted from my
transcripts. On Sept. 11, Petitioner filed a motion for correction in
this court. Sept. 18, 2012 the judges journal entry recommend
appellant file his motion to correct with the trial court. Petitioner
did as this court recommended, petitioner still has not received a
decision or a timed stamped copy. Petitioner successfully
challenged P.R.C. and merger of sentences. See state v. Fischer
128 ohio st.3d 92,2010–ohio6238 State v. millette 2011 ohio 6357.
State v. Johnson 128 ohio st 3d 153 942. State v. fairman 2011
ohio 6489 State v. Griffis 2011 ohio 2955. State v. Hruby 2010
ohio 3530. This trial court failed to consider these claims together.
The only portion of petitioner claim that is void is the allied
offenses. As long as I give the state courts a fair opportunity to fix
the federal violation, petitioner is in good standings. The conduct
of the accused must be considered as established by the evidience,
offenses arising from the same occurance sentence that are allied
should be merged, to prevent shotgun convictions. Geigerm 45
ohio st.2d at 242.. 74. No need to perform hypothetical or abstract
comparison of offenses at issue to conclude that the offenses are
subject to merge. Under R.c. 2941.25(a) the question is whether it
is possible to commit one offense and commit the other with the
same conduct. If commission of one offense constitutes the
commission of the other then the offenses are of similar
importance. A single act committed with a single state of mind.
The state must only choose one, must also merge weapons under
disability, felinous assult, gun spec., felonious and murder
together. State v. fairman 2011 ohio 6489. johnson. This issue was
properly preserved for appellate review. This court should reverse
and remand, specificially for allied offenses not P.R.C. P.R.C. was
properly imposed.
CLAIM III
The Pititioners rebuttal to the presumption of correctness, a
violation of petitioners U.S. and Federal constitutional rights
Jefferson v. Upton, 130 S.ct 2217. 28 U.S.C. 2254(e)(i).

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In miller-Ei v. Cockrell, 537 u.s.322,340 (2003) the supreme court
held; A Federal court can disagree with the state courts credibility
determinitation and when guided by AEDPA, conclude the
decision was unreasonable or that the factual, Premise was
incorrect by clear and convincing evidence. See 28 U.S.C.
2254(e)(1). A petitioner may also rebut the presumption of
correctness of the state fact findings by establishing that any one of
the eight enumerated exceptions under form 28 U.S.C. 2254(d)(1)(8) applies. See Jefferson v. Upton, 130 s.ct 2217. It is evident that
the state trial court lost its way in pursuit of its findings. The state
used a set of different facts that where found differently in the trial
court records/transcipts, an unreasonable determination of the facts
in light of the evidence presented in the state court. The states facts
are not fairly supported by the record. At this point Petitioner must
make this court aware of Sumner v. Mata 11, 455 U.S. 591, 593
“statement of reason” requirement.
CLAIM IV
Inneffective assistance of appellate counsel, on three different
appellate counsels on the same issue, coming from sentencing.
Counsels failed to raise petitioners claims and issues arising at the
resentencing hearing. A violation of the 6th 5th and 14th of the
Federal and U.S. Constitution. innEffective council and due
process.
The trial court abused its descreation by allowing John Keeling to
withdraw, by agreeing with counsel that there was no issues to
raise, when it was obvious that there were issues. State v. Millette
2011 ohio 6357 State v. Fischer 128 ohio st.3d 92, 942. State v.
Hruby 2010 ohio 3530. State v. Griffis 2011 ohio 29ss. United
States v. France 318 Fed Appx.411. This councel never even
reviewed the transcripts of the sentencing hearing. See appellate
court July 5, 2012 memorandum decision. See March 23, 2012
sentencing transcipts. Post release control was properly imposed,
Kelling failed to raise petitioners issues arising at resentencing
hearing. As a result Keeling was allowed to withdraw, made
appellant miss his deadline to file a notice, which could have
ultimately had petitioner barred for failure to appeal. Pititioner is
not an attorney, petitioner was forced to file a late delayed appeal
due to ineffective assistance of counsel. The trial court abused its
descreation when there was obvious issues to be raised.
Appellant was appointed David L. Strait, by this honorable court,
there was a conflict of interest because counsel failed to raise
appellant previous identification claim in this court, and failed to

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raise petitioners confrontation claim, and Jefferson v. Upton 130
s.ct 2217 about the fact that petitioner was not identified.
Presumption of correctness rebuttal and allied offenses. This is
why appellant is fighting for his life now, why should counsel get
to raise issues he should have raised on direct appeal. Now that
appellant has brought them forth why should he get to argue what
he should of did in the first place. And he probably wouldn’t have
raised my issues anyways, he was talking the same way John
Keeling and David Thomas was talking. All he could do is raise
post Release control issues. David L. Strait was ineffective and
also he withdrew due to a conflict.
(Sic.passim.)
The first three “claims” are legal issues which were or could have
been addressed in McKinney’s prior appeals. As such, they are
barred by the doctrine of res judicata. Treated as assignments of
error, they are overruled.
The fourth claim attacks the performance of McKinney’s appellate
counsel who all apparently informed McKinney he had nothing of
any merit for the court to consider on the appeal. This is not a
legitimate issue for an assignment of error. McKinney’s fourth
claim, treated as an assignment of error, is also overruled.
All four claims, treated as assignments of error, having been
overruled, the judgment of the Franklin County Court of Common
Pleas is affirmed.
State v. McKinney, 2013 WL 1200214, at *1-4 (Ohio App. 10th Dist. March 26, 2013). On
November 6, 2013, the Ohio Supreme Court dismissed the appeal. State v. McKinney, 136 Ohio
St.3d 1557 (Ohio 2013).
On June 23, 2014, Petitioner filed a motion for leave to file a delayed motion for a new
trial in the state trial court based on newly discovered evidence and prosecutorial misconduct.
ECF No. 14, PageID# 1106-08. In August 2014, the trial court denied the motion. PageID#
1148. Petitioner did not timely appeal, and on October 16, 2014, the appellate court denied his
motion for a delayed appeal. PageID# 102-04. As best the Court can discern from the record,
Petitioner’s appeal remains pending in the Ohio Supreme Court.

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On October 20, 2014, Petitioner filed this action, his second habeas corpus petition. He
asserts as follows:
1. The reviewing court failure to reverse and the trial court’s
allowing unidentified unknown and unseen nontestifying
anonymous witness testimony in violation of confrontation and
due process.
2.

Appellant’s issues as a whole is entitled to one free-standing
collateral attack per judgment when a full de novo resentencing led to a new judgment, where new issues may be
raised and cannot be barred by res judicata the U.S. Const. 14th
Amendment.

3.

The Petitioner has the right to be free from double jeopardy
and violates due process of law.

4. The state court lost its way in pursuit of its fact finding, an
unreasonable determination of the facts. Petition entitled to an
evidentiary hearing to prove factual allegations.
5.

Ineffective assistance of counsel on three different [illegible]
can be on the same issues coming from re-sentencing. A
violation of 6th, 5th, 14 amend. To U.S. Federal Const. due
process ineffective counsel.

6. The state failed to properly file its brief and appellant was
denied his U.S. Const. rights to be present and represent
himself at oral arguments in violation of due process equal
protection of the laws and access to the courts.
Petitioner has submitted various documents in support of his claims. Exhibits to Petition. He
has filed a Motion to Expand the Record with various documents involved in his case. However,
he has not attached the documents referred to, which are not necessary for resolution of the case.
Petitioner’s Motion to Expand the Record, ECF No. 2, therefore is DENIED.
Petitioner also has filed a Motion for Leave to Supplement the Record with the Original
Trial Court Transcripts, ECF No. 20. However, Respondent has filed a Motion to Dismiss the

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case as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d), and requests the
case be transferred to the United States Supreme Court as a successive petition. Motion to
Dismiss, ECF No. 12. The Court therefore need not review the trial transcripts for resolution of
the Motion to Dismiss.

Petitioner’s Motion for Leave to Supplement the Record with the

Original Trial Court Transcripts, ECF No. 20, therefore is DENIED.
Successive Petition
In claims one, three and four, Petitioner raises issues related to his judgment of
conviction. These claims do not arise from Petitioner’s re-sentencing hearing, and could have
been raised in his first federal habeas corpus petition.

As such, Petitioner must obtain

authorization for the filing of these claims from the United States Court of Appeals for the Sixth
Circuit because they constitute the filing of a successive petition.
Before a second or successive habeas petition is filed in a federal district court, the
applicant must move in the appropriate court of appeals for an order authorizing the district court
to consider the petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142 F.3d 939, 940 (6th Cir.
1998). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal district
court does not have jurisdiction to entertain a successive post-conviction motion or petition for
writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing
of such a successive motion or petition. Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D.
Mich. 1999). Unless the Sixth Circuit Court of Appeals has given its approval for the filing of a
second or successive petition, a district court within the Sixth Circuit must transfer the petition to
the Sixth Circuit Court of Appeals no matter how meritorious the district court believes the claim
to be. Id. at 971; In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997). This requirement transfers to the

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court of appeals a screening function which the district court previously would have performed.
Felker v. Turpin, 518 U.S. 651, 664 (1996). 
That being the case, this Court is without jurisdiction to entertain a second or successive
§ 2254 petition unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth
Circuit, in turn, will issue this certification only if petitioner succeeds in making a prima facie
showing either that the claim sought to be asserted relies on a new rule of constitutional law
made retroactive by the United States Supreme Court to cases on collateral review; or that the
factual predicate for the claim could not have been discovered previously through the exercise of
diligence, and these facts, if proven, would establish by clear and convincing evidence that, but
for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28
U.S.C. § 2244(b)(2).
The Sixth Circuit described the proper procedure for addressing a second or successive
petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims, supra.
[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the
district court, or when a second or successive petition for habeas
corpus relief or § 2255 motion is filed in the district court without
§ 2244(b)(3) authorization from this court, the district court shall
transfer the document to this court pursuant to 28 U.S.C. § 1631.
Id. at 47.
That being the case, the Magistrate Judge RECOMMENDS that claims one, three and
four be TRANSFERRED to the Court of Appeals for the Sixth Circuit pursuant to §
2244(b)(3)(A).
Request for Evidentiary Hearing and Appointment of Counsel
Petitioner requests the appointment of counsel. ECF No. 24. Habeas corpus proceedings
are considered to be civil in nature, and the Sixth Amendment does not guarantee the right to

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counsel in these proceedings. Greene v. Knab, No. 2:09–cv–258, 2010 WL 3522479, at *3 (S.D.
Ohio July 30, 2010) (citation omitted).
The decision to appoint counsel for a federal habeas petitioner is
within the discretion of the court and is required only where the
interests of justice or due process so require. 18 U.S.C. §
3006A(g); . . . Appointment of counsel in a habeas proceeding has
been found to be mandatory only if the district court determines
that an evidentiary hearing is required. Rule 8(c), Rules Governing
§ 2254 Cases. Where no evidentiary hearing is necessary, as in the
instant case, the district court will often consider (1) the legal
complexity of the case, (2) factual complexity of the case, and (3)
petitioner’s ability to investigate and present his claims, along with
any other relevant factors.
Gammalo v. Eberlin, No. 1:05CV617, 2006 WL 1805898 (N.D. Ohio June 29, 2006) (citations
omitted).
The record fails to reflect that either the interests of justice or due process require the
appointment of counsel on Petitioner’s behalf. An evidentiary hearing is not required to resolve
Petitioner’s claims. Petitioner’s incarcerated indigent and pro se status is not atypical in habeas
corpus proceedings. The nature of his claims do not appear to be complex such that the interests
of justice require the assistance of counsel, as evidenced by Petitioner’s numerous pro se filings
and prior federal habeas corpus petition. Petitioner’s request for the appointment of counsel and
for an evidentiary hearing therefore are DENIED.
Motion for Discovery

Petitioner has filed a request for discovery. Petitioner seeks the government to produce

certain documents and DVD players. ECF No. 24, PageID# 1329.
A habeas corpus petitioner has no absolute right to discovery. Bracy v. Gramley, 520
U.S. 899 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). Under the provisions of
Rule 6(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts,

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a petitioner is “entitled to invoke the processes of discovery available under the Federal Rules of
Civil Procedure if, and to the extent that, the judge in the exercise of his [or her] discretion and
for good cause grants leave to do so, but not otherwise.” Discovery is warranted only where
“specific allegations before the court show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is . . .entitled to relief [.]” Harris v. Nelson,
394 U.S. 286, 299 (1969); Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Rule 7 of the
Rules Governing Section 2254 Cases further limits discovery and allows only the “addition of
records which are relevant to the merits of a habeas corpus petition.”
The additional material Petitioner requests is not necessary for resolution of this case, and
Petitioner has failed to establish that any such material may show he is entitled to relief.
Petitioner’s request therefore is DENIED.
Request for a Stay of Proceedings
Petitioner requests a stay pending a decision from the Ohio Supreme Court on his motion
for a new trial, which presumably remains pending. Motion for Stay and Abeyance, ECF No. 3,
17. He indicates that he is requesting a stay so that he may exhaust a claim of actual innocence
now pending in the Ohio Supreme Court. ECF No. 17, PageID#: 1303. Petitioner indicates that
he awaits a ruling on his claim of ineffective assistance of counsel based on a conflict of interest
and the withholding of evidence. Reply ECF No. 19, PagID# 19. The record does not reflect
that a stay of proceedings is warranted.
The AEDPA advances the states’ significant interest in the finality of criminal
convictions. Stays undermine finality and the AEDPA’s provisions that encourage prisoners to
timely present all of their federal claims to the state court at the earliest opportunity. Rhines v.
Weber, 544 U.S. 269, 277–78 (2005). Stays should be used sparingly. They should not be

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granted when the unexhausted grounds are plainly meritless. Id. at 278. Before a court can stay
a habeas corpus action, the petitioner must demonstrate good cause for having failed to exhaust
his state court remedies and that his claim is potentially meritorious. Id. at 277–78. Petitioner
cannot meet this standard here.
The trial court denied Petitioner’s motion for leave to file a delayed motion for new trial,
indicating that Petitioner submitted no new evidence in support, but only evidence that was
available prior to his conviction. ECF No. 14, PageID# 1149. The appellate court construed
Petitioner’s motion as a motion for a delayed appeal, and denied the appeal, as Ohio does not
permit delayed appeals in post conviction matters. PageID# 1173. Thus, it does not appear that
any unexhausted claim would be potentially meritorious. Petitioner has failed to explain the
delay in pursuing the motion for a new trial based on evidence that was previously available to
him. Petitioner’s request for a stay therefore is DENIED.
Merits
In the interests of judicial economy, the Court will address the merits of Petitioner’s
claims, which plainly fail to provide a basis for relief.
In claim two, Petitioner complains that the state courts refused to permit a de novo review
of claims that occurred prior to his re-sentencing hearing. In claim six, Petitioner asserts that he
was denied his right to represent himself and be present at oral arguments on the appeal of his resentencing. These claims involve solely issues regarding the alleged violation of state law. The
Constitution does not guarantee that a criminal defendant may obtain a second review of trial
errors upon a re-sentencing hearing conducted for the purpose of imposing post release control or
that a criminal defendant has the right to be present at oral arguments on such an appeal. The
Ohio Supreme Court’s determination of what issues may be addressed upon a re-sentencing

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hearing imposed for purposes of post-release control simply does not raise an issue of federal
constitutional magnitude.
Further, a federal court may review a state prisoner’s habeas petition only on the ground
that the challenged confinement is in violation of the Constitution, laws or treaties of the United
States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis
of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders,
848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional
state appellate court reviewing state courts’ decisions on state law or procedure. Allen v. Morris,
845 F.2d 610, 614 (6th Cir.1988). “‘[F]ederal courts 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)). Only where the error resulted in
the denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d
284, 286 (6th Cir. 1988). Such are not the circumstances here.
Petitioner’s final remaining claim, in which he asserts the denial of the effective
assistance of appellate counsel in relation to his re-sentencing, likewise plainly fails to provide
him relief. The state appellate court’s decision denying this claim is entitled to deference under
28 U.S.C. § 2254(d), (e), which provides:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence.
“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 (2003) (internal
quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade,
538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. 86, 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)). Petitioner cannot meet this standard here.
To prevail on a complaint of ineffective assistance of counsel, a defendant must meet the
following two-tiered test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 686 (1984). “Judicial scrutiny of counsel’s performance
must be highly deferential.” Id. at 689. “A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. . . .” Id.

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Moreover, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 692. Rather, a defendant must demonstrate prejudice to prevail on a
claim of ineffective assistance of counsel. Id. at 693. To do so, a defendant must establish that
a reasonable probability exists that, but for counsel’s errors, the result of the proceedings would
have been different.

Id. at 694.

“A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Because a defendant must satisfy both prongs of the
Strickland test to demonstrate ineffective assistance of counsel, should the court determine that
she has failed to satisfy one prong, it need not consider the other. Id. at 697. 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, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
Petitioner plainly has failed to meet this standard. He raises no potentially meritorious
issue that his attorney could have, but did not, raise on appeal. The issues he sought to advance
on the appeal of his re-sentencing hearing occurred prior to the time of his first appeal.
Moreover, two of Petitioner’s attorneys were permitted to withdraw. Petitioner therefore cannot
establish prejudice on this basis.
Recommended Disposition
WHEREUPON, the Magistrate Judge RECOMMENDS that habeas corpus claims one,
three and four be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit,
Respondent’s Motion to Dismiss, ECF No. 12, be GRANTED and that this action be
DISMISSED.

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Petitioner’s Motion to Expand the Record, Motion for Stay and Abeyance, Motion for
Discovery and Evidentiary Hearing, Motion for Leave to Supplement the Record with the
Original Trial Court Transcripts, and Motion to Dismiss Respondent’s Reply, ECF No. 2, 3, 17,
20, 24, 28 are DENIED. Petitioner’s Motion for Extension of Time, ECF No. 30, is DENIED, as
moot.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

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IT IS SO ORDERED.
s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: June 15, 2015

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