Keeley v. Warden Belmont Correctional Institution

Filing 18

REPORT AND RECOMMENDATIONS. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 9/12/2016. Signed by Magistrate Judge Norah McCann King on 8/24/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THEUNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID KEELEY,
Petitioner,
Civ. No. 2:15-cv-00972
Judge Marbley
Magistrate Judge King

v.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The action was subject to dismissal as unexhausted. See Opinion and Order
(ECF No. 11). However, Petitioner has now filed an Amended Petition indicating that he wishes
to delete the following, unexhausted, claims from his habeas corpus petition: 1) prosecutorial
misconduct during closing argument; 2) the denial of the effective assistance of counsel based on
his attorney’s failure to object to the prosecutor’s statements during closing arguments; and 3)
lay witness opinion testimony. Response and Amended Petition (ECF No. 13, PageID# 13).
Petitioner wishes to proceed on his remaining claims, which are exhausted. See id.; Amended
Petition (ECF No. 14).
This matter therefore is before the Court on the Amended Petition, Respondent’s Return
of Writ (ECF No. 7) and Supplemental Answer (ECF No. 16), Petitioner’s Petitioner’s Traverse
to the Respondents [sic] Answer/Return of Writ, (ECF No. 10) and Reply (ECF No. 17), and the
exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that
this action be DISMISSED.

Facts and Procedural History
The Ohio Fourth District Court of Appeals summarized the facts and procedural history
of the case as follows:
Appellant and his family moved from England to the United States
when his employer transferred him to a position.FN2 He, his wife
and daughters eventually settled in Marietta in 1996. They became
close friends with the Davis family, whose backyard adjoins their
own. R.D., the youngest child of the Davis family, was
approximately ten or eleven years old when appellant moved to the
area. Although an adult at the time of the events that resulted in the
offenses, R.D. suffers from mental retardation and functions at the
cognitive level of a minor.FN3
Around mid-April 2010, R.D. visited appellant's home to help
paint. Afterward, appellant and R.D. engaged in some degree of
sexual contact. Several weeks later, appellant contacted R.D. to see
if she would help him work on his motorcycles.FN4 R.D. went to
appellant's home and, once again when the work was completed,
the two engaged in sexual contact.FN5
After R.D. returned home that particular evening, she was
unusually quiet. When R.D.'s mother asked if anything was wrong,
she admitted that she and appellant had engaged in sexual activity.
Jane Davis, R.D.'s mother, and her husband took her to the hospital
and medical personnel used a “rape kit” to collect genetic material
on, and inside, her body.
The following morning, authorities prompted Davis to engage in a
“controlled” cell-phone call with appellant. Appellant initially
denied any sexual contact with R.D., but after further questioning,
admitted to Davis that he had “tried to have sex with [R.D.] but
couldn't actually do the job” because of certain medical problems
he was experiencing. Appellant also intimated to Davis that her
daughter had a “crush” on him and that she initiated the sexual
contact. Appellant also stated to Davis that he “touched her
[daughter] once before” when R.D. came over to help him paint.
Appellant promised Davis that he would contact her again to
discuss the matter after he returned home.FN6
After appellant returned home, and before he could contact Davis,
several Washington County Sheriff's Deputies interviewed him.
2 

Again, appellant admitted that he engaged in sexual activity with
R.D., although he suggested that R.D. initiated the sexual conduct.
At the conclusion of the interview the authorities arrested
appellant.
Subsequently, the Washington County Grand Jury returned an
indictment that charged appellant with two counts of rape and three
counts of GSI. Appellant pled not guilty and the matter proceeded
to a jury trial.
At trial, no question existed that sexual contact had, in fact,
occurred. Appellant acknowledged that some degree of contact had
occurred. R.D. also described some of the acts, and she admitted
that she did not tell appellant to stop. The trial focused primarily
on two issues. The first was whether vaginal penetration occurred.
R.D. answered “yes” when asked if appellant had “put his fingers
in [her] front bottom[.]” Likewise, she responded affirmatively
when asked if appellant put “his penis inside [her] front bottom[.]”
Washington County Sheriff's Department Detective Mark Johnson
also produced a tape recording of his interview with appellant. In
that recording, appellant did not admit that he digitally penetrated
R.D., but he conceded that it may have occurred. Appellant,
however, emphatically denied penile penetration and testified that
because he suffered from erectile dysfunction, he was incapable of
doing so. To confirm his claim, the defense offered corroborating
testimony from appellant's physician.
Lauren Dutton, a Marietta Memorial Hospital nurse, testified that
she examined R.D. the night of the second incident and found a
“white milky fluid” in the area of her cervix. Sarah Glass, a
forensic scientist at the Ohio Bureau of Criminal Investigation
(BCI), testified that the swabs from the rape kit tested positive for
semen. Emily Draper, also a BCI scientist, testified that after she
tested the genetic material from R.D.'s swabs and compared it to
the genetic material on “buccal swabs” taken from appellant's
mouth, appellant could not be “excluded as the source of the semen
on the vaginal swabs.” FN7
The second major issue at trial was R.D.'s mental and emotional
age, and whether a “substantial impairment” existed to consenting
to sexual activity. Although various prosecution witnesses offered
different opinions, all agreed that R.D. behaved at a level below
that of a 10 year old child. Appellant countered, however, that R.D.
behaved that way only when she was near her mother. Away from
her mother, appellant maintained, R.D. acted like a 16 to 18 year
old. Harriet Metcalfe, a friend of the Keeley family, testified that
3 

she had previously met R.D. and thought that she acted like a 16
year-old.
After hearing the evidence, the jury returned guilty verdicts on all
charges. The trial court sentenced appellant to serve six years
imprisonment on each of the rape counts and twelve months on
two of the GSI counts. The court found that the other GSI count
merged into the rape charges, ordered that the sentences for rape
and one GSI count be served concurrently, and ordered that the
second GSI sentence be served consecutively to the three prior
sentences for an aggregate seven year prison term. This appeal
followed.
FN2: Appellant testified that his wife and children have become
U.S. citizens. It appears from the sentencing hearing transcript,
however, and the discussion of possible deportation once appellant
is released from prison, that he has not been naturalized.
FN3: The precise age level at which R.D. functions was an issue
at trial. Prosecution witnesses testified that her age level is less
than ten years old, whereas defense witnesses testified that she
behaved like someone sixteen to eighteen years of age.
FN4: Appellant races motorcycles in addition to his regular job.
The uncontroverted evidence is that appellant often offered R.D.
spending money to come to his house to help with chores.
FN5: No allegation was made, nor evidence introduced, to
indicate that the encounters involved the use of force.
FN6: This cell phone call occurred the morning after Davis had
spent all night at the hospital with her daughter. Appellant was
apparently en route to a motorcycle race.
FN7: The witness explained that it is not the policy of BCI to
make “identity statements.” That is to say, the witness would not
opine that the genetic material taken from the vaginal swab
matched the genetic material taken from appellant. She did assure
the jury, however, that she “would have to test approximately 3.6
quadrillion other people, to find somebody else who might be the
source of the semen.”
State v. Keeley, No. 11CA5, 2012 WL 3194355, at *1-2 (Ohio App. 4th Dist. Aug. 2, 2012).
Petitioner presented the following issues on direct appeal:

4 

FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED DAVID P. KEELEY'S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION FOR THEFT [sic ]
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”1
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ADMITTING LAY WITNESS
OPINION TESTIMONY THAT WAS UNRELATED TO THAT
WITNESS'S
PERCEPTIONS
AND
CALLED
FOR
SPECIALIZED KNOWLEDGE.”
THIRD ASSIGNMENT OF ERROR:
“THE STATE'S MISCONDUCT, DURING ITS CLOSING
ARGUMENT, DENIED MR. KEELEY THE RIGHT TO A FAIR
TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 16,
ARTICLE I OF THE OHIO CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
OF COUNSEL BY FAILING TO OBJECT TO THE STATE'S
IMPROPER STATEMENTS DURING ITS CLOSING
ARGUMENT.”
Id. at *1.2 On August 2, 2012, the state appellate court affirmed the judgment of the trial court.
Id.

Petitioner did not file an appeal from that decision to the Ohio Supreme Court.

On

November 28, 2012, the appellate court denied Petitioner’s application for reconsideration as
untimely and without merit. Entry on Application for Reconsideration (ECF No. 7-1, PageID#
325).

1

 Petitioner actually asserted that his rape conviction was against the manifest weight of the evidence. The reference
to “theft” was apparently a typographical error. See State v. Keeley, 2012 WL 3194355, at *3 n.8.
2
 Petitioner filed a Motion for the Ability to File a Supplemental Brief Pro Se for Appeal. (ECF No. 7-1, PageID#
260.) That motion was denied. Id. at PageID# 264. Petitioner filed an appeal with the Ohio Supreme Court. Id. at
PageID# 265. On March 21, 2012, the Ohio Supreme Court declined jurisdiction to hear the case and dismissed the
appeal as not involving any substantial constitutional question. Id. at PageID# 281.

5 

On September 13, 2012, Petitioner filed an application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B). Id. at PageID# 328. Petitioner asserted that he had been denied the
effective assistance of appellate counsel because his attorney failed to argue on appeal that the
trial court denied him a fair trial when it failed to clarify jury confusion during deliberations, and
improperly admitted expert testimony; that the prosecutor engaged in misconduct; that his
convictions were against the manifest weight of the evidence and the evidence was
constitutionally insufficient to sustain his convictions; that his trial counsel was ineffective; that
he was denied discovery to which he was entitled and, consequently, due process; and that the
State’s use of electronic surveillance violated the Fourth Amendment. Id. at PageID# 328-342.
On December 13, 2012, the appellate court denied Petitioner’s Rule 26(B) application. Id. at
PageID# 351. On January 9, 2013, Petitioner filed a notice of appeal from both the November
28, 2012, denial of his motion for reconsideration and the December 13, 2012, denial of his Rule
26(B) application. Id. at PageID# 360. On March 27, 2013, the Ohio Supreme Court declined to
accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). Id. at PageID# 408.
Petitioner also pursued post conviction relief.
On December 5, 2011, while his first appeal of right was pending,
appellant filed a petition for postconviction relief with the trial
court. Although the court dismissed the petition on res judicata
grounds, we reversed the judgment and remanded the case for
further proceedings. In so doing, a majority of this Court held that
res judicata did not bar arguments from being raised on postconviction relief if an appeal of right was pending. See State v.
Keeley, 2013–Ohio–474, 989 N.E.2d 80 (4th Dist.) (Keeley II).
The Ohio Supreme Court denied an appeal from that decision. See
State v. Keeley, 135 Ohio St.3d 1460, 2013–Ohio–2285, 988
N.E.2d 579 (Keeley IIA ).
On August 8, 2013, after our reversal and remand of Keeley II, the
trial court entered judgment and found that appellant “failed to
show that he is entitled to post conviction relief.”

6 

State v. Keeley, No. 13CA34, 2014 WL 800488, at *1 (Ohio App. 4th Dist. Feb. 21, 2014).
Petitioner appealed from that decision, raising the following assignments of error:

FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED THE PETITIONERS [sic]
RIGHTS TO DUE PROCESS OF THE LAW WHEN IT FAILED
TO CLEAR WAY THE JURIES [sic] CONFUSION AND PLAIN
ERROR FOR FAILING TO CLARIFY THEIR CONFUSION.”
SECOND ASSIGNMENT OF ERROR:
“THE STATES [sic] USE OF ‘EXPERT’ TESTIMONY
PREJUDICED THE APPELLANT AND ADDED TO THE
JURIES [sic] CONFUSION. THE USE OF THESE
TESTIMONIES CAUSED THE JURY TO LOSE ITS WAY. THE
TESTIMONIES WERE NOT VALID AGAINST PROVEN
SCIENTIFIC AND PSYCHOLOGICAL METHODOLOGY.
PROSECUTORIAL MISCONDUCT AND PLAIN ERROR
SHOULD APPLY.”
THIRD ASSIGNMENT OF ERROR:
“THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE
CONVICTION UNDER THE STANDARDS OF ‘SUFFICIENCY
OF EVIDENCE’ AND ‘MANIFEST WEIGHT OF THE
EVIDENCE’.”
FOURTH ASSIGNMENT OF ERROR:
“THE PROSECUTOR'S MISCONDUCT DEMONSTRATED
UNPROFESSIONALISM AND VINDICTIVENESS [AND]
DENIED THE APPELLANT [sic] RIGHTS TO A FAIR AND
IMPARTIAL TRIAL. HIS ACTIONS INSIDE AND OUTSIDE
THE COURTROOM DEMONSTRATE THAT THIS HAD
BECOME A PERSONAL VENDETTA AGAINST THE
APPELLANT AND HIS FAMILY.”
FIFTH ASSIGNMENT OF ERROR:
“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
OF COUNSEL FOR THE REASONS LISTED BELOW WHICH
VIOLATED THE APPELLANTS [sic] RIGHTS TO A FAIR
AND IMPARTIAL TRIAL AGAINST THE FIFTH, SIXTH AND
7 

FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION.”
SIXTH ASSIGNMENT OF ERROR:
“THE STATES [sic] USE OF ELECTRONIC SURVEILLANCE
VIOLATED THE APPELLANTS [sic] FOURTH AMENDMENT
OF THE UNITED STATES CONSTITUTIONAL RIGHTS [sic]
AND ALSO VIOLATED TITLE iii STATUTE [sic].”
Id. On February 21, 2014, the appellate court affirmed the trial court’s judgment dismissing the
postconviction petition, holding that Petitioner’s claims were barred under Ohio’s doctrine of res
judicata. Id. On January 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of
Petitioner’s appeal from that decision. State v. Keeley, 141 Ohio St.3d 1455 (Ohio 2015). On
March 25, 2015, the Ohio Supreme Court denied Petitioner’s motion for reconsideration. State
v. Keeley, 142 Ohio St.3d 1412 (Ohio 2015).
On May 9, 2016, Petitioner filed the Amended Petition pursuant to 28 U.S.C. § 2254. He
asserts that the trial court denied his right to due process when it “failed to clear away the jury[‘s]
confusion” during deliberations (claim one); that the State’s use of expert testimony prejudiced
him, added to the jury’s confusion, and amounted to prosecutorial misconduct and a denial of
due process (claim two); that the evidence is constitutionally insufficient to sustain his
convictions (claim three); that he was denied a fair trial because of prosecutorial misconduct
(claim four); that he was denied the effective assistance of trial counsel (claim five); that he was
denied his right to due process and discovery in violation of Ohio law (claim six); that the State’s
use of electronic surveillance violated the Fourth Amendment and “Title iii statute” (claim
seven); and that he was prejudiced by incorrect statements to the media “which then influenced
the populace to an assumption of guilt before trial” (claim eight).

8 

As an initial matter, Respondent disagrees that Petitioner deleted his unexhausted claims and
argues that the Court should therefore dismiss this action as unexhausted. Supplemental Answer
(ECF No. 16). However, Petitioner has made clear his intention to withdraw any unexhausted
claims from these proceedings and to proceed only on his remaining, unexhausted, claims.
Response and Amended Petition (ECF No. 13, PageID# 13); Amended Petition (ECF No. 14).
Under these circumstances, the Court will therefore address Petitioner’s remaining, exhausted,
claims.
Respondent also argues that Petitioner’s claims have been procedurally defaulted. Return
of Writ, PageID# 132-33. This Court agrees.
Procedural Default
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state criminal defendant with federal constitutional claims is required to present those
claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the
petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is
subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S.
722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural
default, the petitioner can no longer present the relevant claims to a state court, the petitioner also
waives the claims for purposes of federal habeas review unless he can demonstrate cause for the
procedural default and actual prejudice resulting from the alleged constitutional error. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S.
478, 485 (1986).

9 

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether
procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following the
four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth
Circuit requires the district courts to engage in the following inquiry:
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. Second, the court must
determine whether the state courts actually enforced the state procedural sanction. Third, the
court must determine whether the forfeiture is an adequate and independent state ground on
which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d
at 138. Finally, if “the court determines that a state procedural rule was not complied with and
that the rule [has] an adequate and independent state ground, then the petitioner” may still obtain
review of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to
excuse the default and (2) that he was actually prejudiced by the alleged constitutional error. Id.
“Cause” under this test “must be something external to the petitioner, something that cannot
fairly be attributed to him[, i.e.,] . . . some factor external to the defense [that] impeded [ ] efforts
to comply with the State's procedural rule.” Coleman, 501 U.S. at 753. This “cause and
prejudice” analysis also applies to failure to raise or preserve issues for review at the appellate
level and to the failure to appeal at all. Id. at 750.
However, “‘[i]n appropriate cases, the principles of comity and finality that inform the
concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally
unjust incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135
(1892)).

Petitioners who have not established cause and prejudice sufficient to excuse a

10 

procedural default may nonetheless obtain review of their claims if they can demonstrate that a
court's refusal to consider a claim would result in a “fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750; Lott v. Coyle, 261 F.3d 594, 601–02 (6th Cir. 2001).

The

fundamental miscarriage of justice exception requires a showing that, “in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
In claim one, Petitioner alleges that he was denied a fair trial because the trial court failed
to clarify jury confusion during deliberations. In claim two, Petitioner alleges that he was denied
a fair trial based on the improper admission of expert testimony. In claim three, Petitioner
alleges that the evidence is constitutionally insufficient to sustain his convictions. In claim four,
Petitioner alleges that he was denied a fair trial because of prosecutorial misconduct in
connection with the prosecution’s questioning of the alleged victim, and with the elicitation of
false testimony, opinion statements, and remarks regarding Viagra. In claim five, Petitioner
alleges that he was denied the effective assistance of trial counsel because his attorney failed to
secure petitioner’s acquittal, failed to present a nurse’s statement, failed to object to personal
attacks by the prosecution, failed to use available evidence, to conduct research, and to locate
Petitioner’s physician, failed to object to missing discovery, failed to request a change of venue,
failed to object to prosecutorial misconduct, failed to correct perjured testimony, failed to
investigate the charges or to interview prosecution witnesses, and failed to object to the legality
of the wiretap. In claim six, Petitioner alleges that he was denied his right to discovery. In claim
seven, Petitioner alleges that the use of electronic surveillance violated the Fourth Amendment
and “Title iii statute.” In claim eight, Petitioner alleges that incorrect statements to the media
denied him a fair trial.

11 

Petitioner failed to raise the foregoing claims on appeal. Further, he may now no longer
do so by virtue of 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) (claims must be
raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.).
Moreover, the state courts were never given an opportunity to enforce the procedural rule at issue
due to the nature of Petitioner's procedural default.
To the extent that any of the foregoing claims may rely on evidence that is not readily
apparent from the face of the record, such claims should have been, but were not, raised by
Petitioner in his postconviction proceedings. Moreover, it does not appear that Petitioner can
now properly file a second postconviction petition. See O.R.C. § 2953.23.3

3

 O.R.C. § 2953.23 provides:
(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the
Revised Code, a court may not entertain a petition filed after the expiration of the period
prescribed in division (A) of that section or a second petition or successive petitions for similar
relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the
period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based
on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial,
no reasonable factfinder would have found the petitioner guilty of the offense of which the
petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional
error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible
for the death sentence.
(2) The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing
was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section
2953.82 of the Revised Code and analyzed in the context of and upon consideration of all
available admissible evidence related to the inmate's case as described in division (D) of section
2953.74 of the Revised Code, and the results of the DNA testing establish, by clear and
convincing evidence, actual innocence of that felony offense or, if the person was sentenced to
death, establish, by clear and convincing evidence, actual innocence of the aggravating
circumstance or circumstances the person was found guilty of committing and that is or are the
basis of that sentence of death.

12 

Petitioner did attempt to raise some of the foregoing on-the-record claims in his petition
for postconviction relief. However, the state appellate court explicitly declined to address the
merits of those claims because they were barred by Ohio’s doctrine of res judicata:
[A] defendant who seeks postconviction relief cannot raise any
issue that he could have raised, but did not, in a first appeal of
right. See State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233
(1996) at the syllabus. Likewise, an issue raised and adjudicated in
a first of appeal of right cannot be raised again on postconviction
relief. State v. Thompkins, 10th Dist. Franklin No. 12AP–1080,
2013–Ohio–3599, at ¶ 10; State v. Harper, 5th Dist. Guernsey No.
12CA22, 2013–Ohio–1781, at ¶ 39. In the case sub judice,
appellant's brief appears to litigate, or re-litigate, a number of
issues that already have been raised, or should have been raised, in
Keeley I.
Appellant's first argument involves questions the jury raised during
deliberation concerning the victim's guardianship and whether the
State had “guidelines for sexual consent due to mental level.”
Appellant argues that the trial court's failure to “clear away the
juries [sic] confusion” amounts to plain error and violates due
process.
First, this issue could have been raised in Keeley I, but was not.
Consequently, res judicata now bars the issue from being raised.
Second, questions from a jury during deliberation are routine and
generally are not a sign of confusion. Third, the questions the jury
did ask are irrelevant. Fourth, when the trial court declined to
answer their questions, defense counsel was asked if he wanted the
court to say anything else on the matter. Counsel answered in the
negative. There is no merit to this issue.
Appellant also argues that the trial court erred by allowing several
witnesses to give expert testimony. However, we examined this
issue in Keeley I, supra at ¶¶ 21–25, albeit in the context of
whether the victim's mother could give expert testimony about her

As used in this division, “actual innocence” has the same meaning as in division (A)(1)(b) of
section 2953.21 of the Revised Code, and “former section 2953.82 of the Revised Code” has the
same meaning as in division (A)(1)(c) of section 2953.21 of the Revised Code.
(B) An order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of
the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953. of the
Revised Code.

13 

daughter. Appellant could have also raised questions concerning
whether the other two witnesses are qualified, but he failed to do
so. Res judicata bars these issues from being raised again.
Moreover, we find nothing in appellant's brief to persuade us that
this issue would have merit.
The next argument is that insufficient evidence supports appellant's
convictions and that they are against the manifest weight of the
evidence. We, however, have previously ruled against appellant on
the latter issue. See Keeley, I, supra at ¶ 20. Appellant could also
have raised a sufficiency of the evidence argument at the same
time, but did not. Appellant is barred from doing so now by the
doctrine of res judicata. Furthermore, even if the issue had been
raised, and even though sufficiency and manifest weight are
different questions, we would nevertheless have ruled against
appellant on a sufficiency challenge in view of our recitation of all
of the evidence we reviewed in Keeley I.
Appellant also argues that he is the victim of prosecutorial
misconduct and constitutionally ineffective assistance from his
trial counsel. We, however, already considered these issues in
Keeley I and ruled against appellant on both. Id. at ¶¶ 27–31.
Finally, appellant claims that the “controlled phone call” to him
from the victim's mother, while police were listening, violated his
constitutional rights. To begin, if appellant believed this
constituted a violation of his rights, he should have raised the issue
in a pre-trial motion to suppress. Nothing in the record indicates
that he did. Thus, appellant waived the issue. This is also an issue
that could have been raised, but was not, in Keeley I and is thus
barred by res judicata. Furthermore, this phone call is not—as
appellant suggests in his brief—a “wiretap.” Appellant's family
and the victim's family were friends, and this would have been
nothing more than a call between those friends, not a “tap” that
authorities needed permission from a court to place. Furthermore,
as the State aptly notes in its brief, R.C. 2933.52(B)(3) permits the
interception of a phone call if one party to that call (in this case,
the victim's mother) has given consent. Thus, this activity did not
result from a statutory violation or a Fourth Amendment violation.
See State v. Haynes, 11th Dist. Ashtabula No.2012–A–0032,
2013–Ohio–2401, at ¶ 46; State v. Hennis, 2nd Dist. Clark No.
Civ.A.2003CA21, 2005–Ohio–51, at ¶ 20.
For all of these reasons, we find no merit to any argument
appellant raised in his petition for postconviction relief. Thus, we
find no error in the trial court's decision to deny that petition and
14 

we hereby overrule appellant's assignments of error and affirm the
trial court's judgment.
State v. Keeley, 2014 WL 800488, at *2-3.4
Ohio's doctrine of res judicata 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, 348–351 (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); see also Jamison v.
Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
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

4

 The state appellate court’s alternative ruling on the merits of certain claims does not excuse Petitioner’s procedural
default of those clamis. See Conley v. Warden, Chillicothe Correctional Institution, 505 Fed.Appx. 501,
unpublished, 2012 WL 5861713, at *5 (6th Cir. 2012)(“The Ohio court's alternative ruling on the merits did not
remove the procedural default because ‘a state court need not fear reaching the merits of a federal claim in an
alternative holding.’”)(citing Harris v. Reed, 489 U.S. 255, 264 n. 10, (1989); Coe v. Bell, 161 F.3d 320, 330 (6th
Cir. 1998)).  

15 

that claims are adjudicated at the earliest possible opportunity. With respect to the independence
prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or
otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of
relevant case law that the Perry rule is an adequate and independent ground for denying relief.
Therefore, Petitioner has procedurally defaulted his claims for federal habeas corpus
review. He may still secure review of his claims on the merits if he demonstrates cause for his
failure to follow the state procedural rules, as well as actual prejudice from the constitutional
violations that he alleges. See Coleman, 501 U.S. at 753; Maples v. Stegall, 340 F.3d 433, 438
(6th Cir. 2003).
As cause for his procedural default, Petitioner asserts the denial of the effective assistance
of his appellate counsel. See Petitioner’s Traverse to the Respondents [sic] Answer/Return of
Writ, PageID# 1598-99. The constitutionally ineffective assistance of counsel may constitute
cause for a procedural default, so long as such claim has been presented to the state courts and is
not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (citing
Murray v. Carrier, 477 U.S. 478, 488–89 (1986)).
This Court will consider the merits of those claims of ineffective assistance of appellate
counsel presented in Petitioner’s Rule 26(B) application to determine whether he has established
cause and prejudice sufficient to excuse his procedural default.
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing 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”

16 

and emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘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 (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). Moreover, “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 has 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
17 

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
“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, 563 U.S.170, 181 (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,
(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, 131 S.Ct. at 786
(“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” to evaluate the reasonableness of state court's decision). Relatedly, in

18 

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 solely on the record that was before it at the
time it rendered its decision. Pinholster, 563 U.S. at 181. Put simply, “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 182.
The right to counsel guaranteed by the Sixth Amendment is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for
demonstrating a claim of ineffective assistance of counsel is composed of two parts:
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, 687 (1984). Scrutiny of defense counsel's performance
must be “highly deferential.” Id. at 689.
With respect to the first prong of the Strickland test, “[b]ecause 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 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 the Strickland
test to demonstrate ineffective assistance of counsel, should the court determine that the
petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.

19 

The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781-82
(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 Court of Appeals for the Sixth Circuit has
identified the following considerations that ought to be taken into account in determining
whether counsel on direct appeal performed reasonably competently:
1. Were the omitted issues “significant and obvious?”
2. Was there arguably contrary authority on the omitted issues?
3. Were the omitted issues clearly stronger than those presented?
4. Were the omitted issues objected to at trial?
5. Were the trial court's rulings subject to deference on appeal?
6. Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7. What was appellate counsel's level of experience and expertise?
8. Did the Petitioner and appellate counsel meet and go over possible
issues?
9. Is there evidence that counsel reviewed all the facts?
10. Were the omitted issues dealt with in other assignments of error?
11. 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). This list is not exhaustive and need not
produce a certain “score.” Id. at 428.

20 

Petitioner alleges that he was denied the effective assistance of appellate counsel because
his attorney failed to raise on appeal a claim that the evidence is constitutionally insufficient to
sustain his convictions. Appellate counsel did argue that Petitioner’s convictions were against
the manifest weight of the evidence but the state appellate court rejected that claim in relevant
part as follows:
Appellant's first assignment of error challenges the weight of the
evidence regarding one factor necessary to prove the offense of rape.
R.C. 2907.02(A)(1)(c) prohibits someone from having sex with
another person, who is not his spouse, when the “other person's
ability to . . . consent is substantially impaired because of a mental . .
. condition . . . and the offender knows or has reasonable cause to
believe that the other person's ability to . . . consent is substantially
impaired[.]” Whether a non-forcible sexual encounter with an adult
constitutes rape is, thus, dependent on whether the victim had a
“substantial impairment” that prohibited her from having the ability
to consent to the sexual contact. 

Once again, appellant did not contest at trial, nor on appeal, that
sexual relations occurred. What appellant does argue is that the
jury's conclusion that R.D. could not consent to those encounters is
against the manifest weight of the evidence. 

***
The phrase “substantial impairment” is not defined in R.C.
2907.02, nor has the Ohio Supreme Court provided any definition.
State v. Daniels, Summit App. No. 25808, 2011–Ohio–6414, at ¶
6. We are confident, however, that under any definition, the
evidence in the case sub judice established that R.D. had a
substantial impairment and, consequently, could not consent to
sexual relations. Jane Davis, R.D.'s mother, testified that she is her
daughter's guardian and that R.D. scored 50–60 on IQ tests. We
note that our Ninth District colleagues found that a victim's
guardianship, and a 58 IQ, are factors that a jury could consider to
find substantial impairment. Id. at ¶¶ 7–9.
Moreover, Davis further testified that her daughter has the mind of
a 6 to 9 year old child. Lauren Dutton, who examined R.D. at the
hospital, testified that R.D. acted like an 8 year old. Molly Haught,
R.D.'s counselor at the Wellness Center in Parkersburg, related
R.D. has an emotional age of a 5–7 year old. Dr. Michael
21 

Holtgrewe, who participated in prior guardianship proceedings
with Davis, opined that R.D. functions at a 7–8 year old mentality.
Admittedly, the evidence adduced at trial does not firmly affix
R.D.'s level of cognitive functioning. Nevertheless, we do not
believe that a firm or concrete age level is required. Here, four
witnesses placed R.D.'s cognitive mental and emotional level at
that of a child below the age of thirteen. This age is also the
threshold at which the Ohio General Assembly has deemed that no
one can give consent to sex. See R.C. 2907.02(A)(1)(b). In the case
sub judice, in view of the testimony of these witnesses, three of
whom are professionals unrelated to the victim, we cannot
conclude that the jury lost its way in determining that R.D. has a
substantial impairment toward giving consent to sexual relations.
We again recognize that the parties adduced conflicting evidence
at trial. Appellant testified that R.D. behaved like a 16 to 18 year
old at the time of the offense. Another defense witness, Harriet
Metcalf, related that she had met R.D. and she also thought that
she behaved like a 16 year old. However, it is well-settled that
evidence weight and witness credibility are issues that the trier of
fact must consider and determine and appellate courts afford great
deference to those determinations. State v. Frazier, 115 Ohio St.3d
139, 873 N.E.2d 1263, 2007–Ohio–5048, at ¶ 106; State v. Dye
(1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763. The rationale for
deferring to the trier of fact on such issues is that the trier of fact is
best positioned to view the witnesses, to observe demeanor,
gestures and voice inflections and to use those observations to
weigh witness credibility. See Myers v. Garson (1993), 66 Ohio
St.3d 610, 615, 614 N.E.2d 742; Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Thus, a jury is free
to believe all, part, or none of the testimony of any witness who
appears before it. State v. Colquitt, 188 Ohio App.3d 509, 936
N.E.2d 76, 2010–Ohio–2210, at ¶ 10, fn. 1; State v. Nichols
(1993), 85 Ohio App.3d 65, 76, 619 N.E.2d 80. Here, these
principles are particularly important because the jury viewed the
witnesses who testified about R.D.'s mental capability, and also
actually observed R.D. testify on the witness stand. Thus, the jury
could formulate its own conclusions as to R.D.'s mental age.
For all these reasons, we cannot conclude that the verdicts are
against the manifest weight of the evidence[.]
State v. Keeley, 2012 WL 3194355, at *3-4 (footnote omitted). In postconviction proceedings,
the state appellate court also observed that, in light of its recitation of all of the evidence
22 

reviewed on direct appeal, it would have rejected a claim of insufficiency of the evidence had
Petitioner raised that claim on direct appeal. See State v. Keeley, 2014 WL 800488, at *2. The
state appellate court denied the claim in Rule 26(B) proceedings on this same basis:
We held in Keeley I that appellant’s conviction is in fact, supported
by the manifest weight of the evidence. Although evidence weight
and sufficiency are two distinct questions. . . a finding that the
weight of the evidence supports a judgment is tantamount to
finding that sufficient evidence supports the judgment as well.
(ECF No. 7-1, PageID# 355-56.)
In Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme Court held that as
a matter of fundamental due process, a criminal conviction cannot stand unless each essential
element is proven beyond a reasonable doubt. Id. at 316. The Supreme Court explained that
when reviewing a challenge to the constitutional sufficiency of the evidence supporting a
criminal conviction, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319. The Supreme Court cautioned,
with respect to the role of a reviewing court, that “[t]his familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Id.
When reviewing a sufficiency of the evidence claim, a federal habeas court “do[es] not
reweigh the evidence, re-evaluate the credibility of the witnesses, or substitute [its] judgment for
that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). If the record contains
credible, competent evidence enabling a rational jury to find each essential element beyond a
reasonable doubt, then the petitioner's challenge to the sufficiency of the evidence fails. See also

23 

Matthews v. Abramajtys, 319 F.3d 780, 788–89 (6th Cir. 2003) (“The mere existence of
sufficient evidence to convict therefore defeats a petitioner's claim.”).
Here, for the reasons detailed by the state appellate court, this Court agrees that, viewing
all the evidence in the light most favorable to the prosecution, the evidence is constitutionally
sufficient to sustain Petitioner’s convictions. Therefore, Petitioner has failed to establish the
denial of the effective assistance of his appellate counsel based on his appellate attorney’s failure
to raise that claim on direct appeal.
Petitioner also alleges that his appellate attorney improperly failed to raise a claim that
the trial court denied him due process by failing to clarify jury questions during deliberations.
The jury asked, “[W]hat guidelines justified the mother obtaining guardianship?” and “[D]oes
the State have guidelines for sexual consent due to the mental levels?” (ECF No. 7-4, PageID#
1541.) Prior to responding to the jury’s questions, the trial court advised counsel:
It’s my intention to tell . . . the jurors that I cannot answer these
questions. They have . . . heard the evidence and the law that
they’re to use to decide the case. You want anything else?
Id. Defense counsel expressed satisfaction with that proposed response. Id. The trial court
thereafter instructed the jury:
Ladies and gentlemen, I cannot answer either one of these
questions. All I can tell you is that you have the evidence and the
law that you’re to use to decide this case. And that’s all I can say.
Anything else either of you gentlemen want?
[Defense counsel and prosecutor respond in the negative].
Id. at PageID# 1542.
The state appellate court denied Petitioner’s claim of ineffective assistance of appellate
counsel in connection with these events as follows:

24 

[A]ppellant claims that appellate counsel should have challenged
the court’s failure to “clear away” confusion allegedly
demonstrated by the jury questions posed during deliberations.
These questions involved: (1) the existence of a guardianship, and
(2) whether Ohio has any guidelines regarding consent to sexual
conduct. The first question was irrelevant to the trial court
proceedings and the second is an issue that the jury had to
determine. The rape and GSI charges against appellant all
included the element that the victim’s ability to consent was
“substantially impaired” by a mental or physical condition. See
R.C. 2907.02(A)(1)(c); R.C. 2907.05(A)(5). The question of
consent is one for the trier of fact – here, the jury – and the trial
court correctly refused to answer that question. In any event, even
if we accept appellant’s assertion that the trial court was under
some duty to “clear away” the confusion and failed to do so, and
even if appellate counsel would have raised the issue, we are not
persuaded that the results of the case would have been different.
Id. PageID# 354-55.5 This Court agrees with the state appellate court’s reasoning.
Evidence indicated that R.D. suffered from a mental disability and functioned at the
cognitive level of a minor. State v. Keeley, 2012 WL 3194355, at 5 *1.
Although various prosecution witnesses offered different opinions,
all agreed that R.D. behaved at a level below that of a 10 year old
child. Appellant countered, however, that R.D. behaved that way
only when she was near her mother.
Id. at *2. Jane Davis, R.D.’s mother, testified that she was her daughter’s guardian and that R.D.
scored 50-60 on IQ tests. Id. at *3.
Davis further testified that her daughter has the mind of a 6 to 9
year old child. Lauren Dutton, who examined R.D. at the hospital,
testified that R.D. acted like an 8 year old. Molly Haught, R.D.'s
counselor at the Wellness Center in Parkersburg, related R.D. has
an emotional age of a 5–7 year old. Dr. Michael Holtgrewe, who
participated in prior guardianship proceedings with Davis, opined
that R.D. functions at a 7–8 year old mentality.

5

 Arguably, moreover, even had appellate counsel raised this claim in the direct appeal, the claim would have been
waived due to Petitioner’s failure to object at trial. 

25 

Id. Further, the trial court properly instructed the jury on the elements of the offenses charged,
including that, in order to return a guilty verdict, it must find that Petitioner had engaged in
sexual conduct with R.D. when her ability to resist or consent was substantially impaired because
of a mental condition, and that he knew or had reasonable cause to believe that her ability to
resist or to consent was substantially impaired because of a mental condition. See ECF No. 7-4,
PageID# 1518, 1521. Petitioner does not indicate, and the record does not reflect, that any
additional response or clarification from the trial court regarding the questions posed by the jury
would have assisted the defense.

Indeed, any explanation of the basis for the mother’s

guardianship of R.D. may well have prejudiced the defense on this issue.
Petitioner also alleges that his attorney should have raised on appeal the claim that the
prosecution’s use of expert testimony constituted prosecutorial misconduct and created jury
confusion. The state appellate court disagreed:
Appellant appears to argue in his second proposed assignment of
error that the expert testimony concerning the victim’s mental
disability is improper and confused the jury. To the extent we
understand his argument, we refer appellant to our original
decision wherein we held that the victim’s cognitive functioning
could be determined by anyone who interacted with her. Keeley,
supra at ¶22. Although that applied to a lay witness (in particular,
the victim’s mother) the same principle applies to an expert
witness. Moreover, appellant offers no evidence to show that the
jury was confused on this point and, even had he done so, he does
not persuade us that the outcome of the case would have been
different if appellate counsel challenged this issue.
ECF No. 7-1, PageID# 355.6 Thus, the state appellate court held that Ohio law permitted
admission of the expert testimony about which Petitioner complains. Petitioner therefore cannot
establish the denial of the effective assistance of appellate counsel on this basis.

6
  The appellate court referred to its decision rejecting Petitioner’s argument that R.D.’s mother had improperly
testified as a lay witness regarding R.D.’s ability to understand sexual activity:

26 

Petitioner also alleges that his attorney improperly failed to raise on appeal other claims
of prosecutorial misconduct. The state appellate court rejected this claim, noting that it had
already addressed such an allegation on direct appeal:
Appellant argues in his fourth proposed assignment of error that
appellate counsel was ineffective for failing to challenge the
prosecutor’s “unprofessionalism” and “vindictiveness” during the
trial court proceeding. However, in Keeley I, supra at ¶¶26-31,
appellate counsel raised that issue. We found no error in our
original decision and appellant offers nothing in his application to
prompt us to reconsider that ruling.

Evid.R. 701 states that lay witness opinion testimony must be limited to those
“rationally based on the perception of the witness.” By contrast, expert
testimony “relates to matters beyond the knowledge or experience possessed by
lay persons.” Evid.R. 702(A). Appellant argues that only an expert could testify
about the extent to which R.D. understood sexual relations, and her mother is
not such an expert. Appellant cites In re Barnhart, Putnam App. No. 12–07–13,
2008–Ohio–1782, ¶ 5 in support of his argument. Our reading of Barnhart,
however, does not agree with that particular interpretation. Barnhart noted that
an expert gave testimony concerning the victim's ability to understand sexual
matters, but nothing in that opinion states that only an expert can give that sort
of testimony. Instead, we agree with the Eighth District that substantial
impairment need not be proven by expert medical testimony, but can be
established through the testimony of people who have interacted with the victim,
and by allowing the trier of fact to assess the person's ability to appraise or
control his or her conduct. State v. Brady, Cuyahoga App. No. 87854, 2007–
Ohio–1453, at ¶ 78.
In the case sub judice, it is difficult to conceive of anyone who could possess a
better understanding of a child's ability to comprehend sexual matters than a
child's mother. Indeed, Jane Davis, who interacted with R.D. on a daily basis,
may well have an understanding of how her daughter may process sexual
information far better than any expert.FN9
It is again worth noting that the jury had the opportunity to observe R.D.'s
testimony and to draw its own conclusion whether R.D. had sufficient maturity
to understand to sex. As the trier of fact, the jury found she could not.
FN9: Interestingly, appellant argues that only an expert can testify regarding
R.D.'s understanding of sexual matters when he, himself, testified that R.D.
behaved like a 16 to 18 year old and another defense witness corroborated this
view. Although testimony as to the victim's age does not explicitly go to her
understanding of sex, this defense testimony implicitly suggested that R.D.
behaved as if she was sixteen or above and, thus, able to understand and to
consent to sexual relations.
State v. Keeley, 2012 WL 3194355, at *4-5.

27 

Id. at PageID# 356.7 Further, the record does not support Petitioner’s claim that the prosecutor
improperly questioned the alleged victim or knowingly presented false or perjured testimony.
Petitioner also alleges that the prosecutor “acted as an expert on the uses of Viagra” and other
issues, and mocked Petitioner’s medical issues; however, Petitioner does not refer to any specific
portions of the trial transcript in support of this allegation. Petitioner also complains that the
prosecutor improperly bragged about the case after the trial had concluded. Even assuming that
to be the case, however, Petitioner has failed to establish prejudice as a result of such conduct.

7

 The state appellate court rejected this claim of prosecutorial misconduct as follows:
Appellant contends the remarks amounted to improper comments on his credibility. In particular,
appellant points to the prosecutor calling his testimony “Un-credible,” “a bold faced lie,”
“preposterous” and “just crap.”
It is true that neither the prosecution nor the defense may vouch, or offer their personal beliefs,
concerning witness credibility. See State v. McGlothin, Hamilton App. No. C–060145, 2007–
Ohio–4707, at ¶¶ 19–20; State v. Bevins, Hamilton App. No. C–050754, 2006–Ohio–6974, at ¶
27. We agree, on the one hand, that the comments in the case at bar are very emphatic. On the
other hand, appellant did place his credibility into question when he testified that he lied to police
about inserting his finger into R.D. during their encounter. Moreover, appellant has attempted to
cast someone who has been characterized with a pre-teen cognitive level as the sexual aggressor in
these encounters—something that strains credulity if the prosecution's testimony is to be believed,
and the trier of fact obviously did so.
Furthermore, because appellant did not object to these alleged instances of prosecutorial
misconduct, appellant waived all but plain error. See State v. Goff, Lawrence App. No. 07CA17,
2009–Ohio–4914, at ¶ 91; State v. Givens, Washington App. No. 07CA19, 2008–Ohio–1202, at ¶¶
26–27. Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice. State v.
Rohrbaugh, 126 Ohio St.3d 421, 934 N.E.2d 920, 2010–Ohio–3286, at ¶ 6; State v. Long (1978),
53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus. To find plain error, we must
be able to say that, but for the alleged error, the outcome of trial clearly would have been
otherwise. State v. McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507, 2009–Ohio–5933, at ¶ 15;
State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439, 2003–Ohio–1325, at ¶ 50. Prosecutorial
misconduct rises to plain error only if it is clear that a defendant would not have been convicted in
the absence of the improper comments. State v. Conley, Pike App. No. 08CA784, 2009–Ohio–
1848, at ¶ 27; State v. Olvera–Guillen, Butler App. No. CA2007–05–118, 2008–Ohio–5416, at ¶
36.
In the case sub judice, R.D. testified that appellant inserted his penis inside her “front bottom.”
Appellant admitted touching R.D. on both occasions, and masturbating over her on the second
instance of alleged sexual conduct. BCI witnesses testified that semen was found inside R.D.'s
vagina and that a genetic profile could not exclude appellant as the source of that semen.
Appellant also indicated in the taped conversation with R.D.'s mother, as well as his conversation
with police, that he digitally penetrated R.D. In light of all this evidence, we cannot conclude that
the outcome of the trial would have been otherwise but for the prosecutor's comments. 

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Petitioner alleges that his attorney improperly failed to raise on appeal a claim that the
prosecutor violated discovery rules. The state appellate court disagreed:
Appellant asserts. . . that his rights were violated because
discovery materials the State provided on compact disks “would
not play on any of the equipment possessed by the appellant or his
family.” We find several problems with this argument. First,
appellant offers no argument that his trial counsel could not access
these compact disks. Second, and more important, appellant does
not establish how he suffered any prejudice. Appellant does not
argue that anything on that medium would have aided his defense.
As we have said many times, we may not simply assume prejudice
for purposes of an ineffective assistance claim, but, rather, require
that prejudice be affirmatively demonstrated. . . . Thus, appellant
has not shown how he suffered prejudice by discovery not being
readable in the particular format. We will not engage in
speculation and, thus, we find no merit to appellant’s [] assignment
of error.
(ECF No. 7-1, PageID# 357.) For the reasons discussed by the state appellate court, this Court
agrees that the record does not establish prejudice to the defense in this regard.
Petitioner alleges that his attorney improperly failed to raise on appeal a claim that the
trial court improperly admitted evidence regarding a telephone conversation between Petitioner
and the mother of the alleged victim, in violation of the Fourth Amendment. The state appellate
court rejected this claim as follows:
[I]n appellant’s seventh proposed assignment of error he
challenges the “controlled” telephone call between him and the
victim’s mother. First, he contends that “[t]he mother told untruths
to try and trap the defendant[.]” This, however, goes to the weight
of the evidence, rather than to the admissibility or constitutionality
of the telephone call. Second, because the victim’s mother
initiated the phone call, and appellant willingly answered the
questions the mother posited, we are not persuaded that any Fourth
Amendment violation occurred. Moreover, even if we assume that
such a violation occurred, we are not persuaded that the outcome
of the appeal would have been different in view of all the other
evidence adduced at trial, including the testimony of the victim
(R.D.), as well as the testimony of Emily Draper (a B.C.I. Forensic

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Scientist) that appellant could not be excluded as the source of the
semen collected from the victim.
Id. at PageID# 357. In postconviction proceedings, the state appellate court held as follows:
[A]ppellant claims that the “controlled phone call” to him from the
victim's mother, while police were listening, violated his
constitutional rights. To begin, if appellant believed this
constituted a violation of his rights, he should have raised the issue
in a pre-trial motion to suppress. Nothing in the record indicates
that he did. Thus, appellant waived the issue. This is also an issue
that could have been raised, but was not, in Keeley I and is thus
barred by res judicata. Furthermore, this phone call is not—as
appellant suggests in his brief—a “wiretap.” Appellant's family
and the victim's family were friends, and this would have been
nothing more than a call between those friends, not a “tap” that
authorities needed permission from a court to place. Furthermore,
as the State aptly notes in its brief, R.C. 2933.52(B)(3) permits the
interception of a phone call if one party to that call (in this case,
the victim's mother) has given consent. Thus, this activity did not
result from a statutory violation or a Fourth Amendment violation.
See State v. Haynes, 11th Dist. Ashtabula No.2012–A–0032,
2013–Ohio–2401, at ¶ 46; State v. Hennis, 2nd Dist. Clark No.
Civ.A.2003CA21, 2005–Ohio–51, at ¶ 20.
State v. Keeley, 2014 WL 800488, at *3. Again, the evidence about which Petitioner complains
was admissible under Ohio law and Petitioner has failed to establish the denial of the effective
assistance of appellate counsel on this basis.
In view of the foregoing, Petitioner has likewise failed to establish that his attorney
performed in a constitutionally ineffective manner by failing to raise on appeal a claim of denial
of the effective assistance of trial counsel, based on his attorney’s failure to object to such issues.
Moreover, Petitioner’s claim of denial of the effective assistance of trial counsel is without
record support.
In short, Petitioner has failed to establish cause and prejudice for his procedural defaults.
Beyond the four-part Maupin analysis, this Court is required to consider whether this is
“an extraordinary case, where a constitutional violation has probably resulted in the conviction of
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one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,
505 U.S. 333 (1992). “It is important to note in this regard that ‘actual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623.
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidencewhether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter v. Jones, 395 F.3d 577, 589–90 (6th Cir. 2005).
The record does not establish that Petitioner is the victim of a manifest miscarriage of
justice. The state court of appeals recited evidence of petitioner's guilt, which was apparently
enough to persuade a jury beyond a reasonable doubt that he was guilty, and he has offered no
proof of his innocence. Denial of guilt is hardly an extraordinary event in a criminal case, and
that bare denial is not enough to satisfy the exacting inquiry needed to excuse a procedural
default. Cf. Schlup v. Delo, 513 U.S. at 324 (a finding of actual innocence requires the petitioner

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to present evidence which undermines the Court's confidence in the jury's finding of guilt). There
is no such evidence here.

Recommended Disposition
Therefore, 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
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is 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).

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The parties are further advised that, if they intend to file an appeal of any adverse if they
intend to file an appeal of any adverse decision, they may submit arguments in any objections
filed, regarding whether a certificate of appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
August 24, 2016

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