Roth v. Warden Ross Correctional Institution

Filing 11

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DENIED and this case be DISMISSED. Objections to R&R due by 4/6/2017. Signed by Magistrate Judge Terence P. Kemp on 3/23/2017. (agm)(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
JOSEPH J. ROTH,
Petitioner,
v.

Case No. 2:16-cv-189

WARDEN, ROSS CORRECTIONAL
INSTITUTION,

CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, Joseph J. Roth, an inmate at Ross Correctional Institution (“RCI”),
filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is
before the Court on the petition (Doc. 1) and the Respondent’s return of writ (Doc. 6).
Petitioner requested and was granted two extensions of time within which to file his
traverse, which was due to be filed on or before October 8, 2016. Petitioner has not filed
a traverse. Thus, the case is ripe for decision. For the foregoing reasons, it will be
recommended that the petition be DENIED and this case be DISMISSED.
I. Factual Background
The facts of the case are summarized by the Muskingum County, Ohio, Court of
Appeals:
{¶ 2} On January 10, 2013, Officer Scott Caldwell of the Dresden Police
Department, while patrolling a location known for illegal drug activity,
observed a car drive through the area slowly and stop near the suspect
location. Officer Caldwell returned to the area five minutes later, and
observed a group of people in the middle of the street. He then witnessed
a bloody, black male run away from the others. The black male was later

identified as Jeff Body, the victim in this case. Officer Caldwell notified the
Muskingum County Sheriff's Office, requesting assistance.
{¶ 3} Jeff Body testified at trial herein, he went to Amy Johnson's house in
the early morning hours of January 10, 2013, after she contacted him
numerous times about coming to her home. Shortly after his arrival, Body
heard a loud noise and four men with masks burst into the bedroom.
Body tried to run, but at least one of the men with masks had a gun. Body
was beaten inside the residence, and again as he exited the residence. He
testified the beating only stopped once the police arrived. Body testified
his wallet and vehicle were stolen during the altercation.
{¶ 4} In the early morning hours of January 10, 2013, Deputy Ryan
Williams of the Muskingum County Sheriff's Office arrested Appellant in
the victim's car a short distance from the scene. Deputy Williams observed
two masks and a pair of gloves in the car. The victim testified the mask
and gloves did not belong to him, and were not in the car when he was
driving.
{¶ 5} Amy Johnson testified she had been in contact with Adam Poulton,
and Poulton had discussed robbing Body on several occasions. Johnson
identified all three men involved in the robbery, including Appellant. She
explained Adam Poulton beat Body, and Appellant demanded she give
him the “F-ing keys.”
{¶ 6} Chad Bocook, another defendant, testified he was with Appellant
during the planning stages earlier in the night and throughout the
commission of the offense. He testified he rode in the car with Appellant
to Johnson's house. He indicated Adam Poulton had a .40 caliber Smith
and Wesson to be used as Poulton and Appellant robbed the victim. He
further testified Appellant stole the victim's car.
State v. Roth, 2014 WL 4802841 (Muskingum Cty. Sept. 25, 2014). The factual narratives
set out by the state court are presumed to be correct. 28 U.S.C. §2254(e)(1).

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II. Procedural History
A. Trial Court Proceedings
Mr. Roth was indicted by a Muskingum County, Ohio, grand jury on a the
following charges: first degree felony aggravated robbery with a firearm specification;
O.R.C. §2911.01(A)(1); first degree felony aggravated robbery with a firearm
specification; O.R.C. §2911.01(A)(3); second degree felony aggravated robbery with a
firearm specification; O.R.C. §2903.11(A)(1); fourth degree felony felonious assault with
a firearm specification; O.R.C. §2913.02(A)(1); fourth degree felony theft of a motor
vehicle; O.R.C. §2913.02(A)(1); and fifth degree felony theft; O.R.C. §2913.02(A)(1). He
pleaded not guilty and the case went to trial. When the state rested its case, Mr. Roth’s
counsel moved for acquittal pursuant to Ohio Crim. R. 29. Tr. Vol. 4 at 301-302.
Mr. Roth was convicted by the jury of aggravated robbery, a felony of the first
degree, in violation of R.C. 2911.01(A)(1); theft, a felony of the fourth degree, in
violation of R.C. 2913.02(A)(1); and theft, a felony of the fifth degree, in violation of R.C.
2913.02(A)(1). At sentencing, the trial court merged the aggravated robbery and fifth
degree theft charges, sentencing Petitioner on the aggravated robbery count. He was
sentenced to an aggregate prison term of eight years. Doc. 6, Ex. 5. On August 5, 2013,
Mr. Roth filed a pro se motion for acquittal under Ohio Crim. R. 29( C), which the trial
court denied on the same day as untimely. Doc. 6, Ex. 6-7. Respondent submitted the
complete trial transcripts as exhibits to the Return of Writ. Doc. 6-2- 6-6.

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B. Direct Appeal
Mr. Roth attempted to appeal by filing a pro se notice of appeal in Ohio’s Fifth
District Court of Appeals. Doc. 6, Ex. 8. On July 29, 2013, the appellate court sua sponte
dismissed the appeal for being improperly filed. Doc. 6, Ex. 9. On August 8, 2013,
through new counsel, Mr. Roth filed a notice of appeal and a motion for leave to file a
delayed appeal, which the court granted. Doc. 6, Ex. 10-12. Mr. Roth later filed a pro se
motion to stay proceedings until the state appellate court could rule on a motion to
withdraw as appellate counsel, which was denied. Doc. 6, Ex. 13-14. Subsequently, Mr.
Roth’s counsel filed a motion to withdraw and to appoint new counsel, which was
granted. The case was remanded to the trial court to appoint appellate counsel. Doc. 6,
Ex. 15-16. The trial court then appointed new counsel for Mr. Roth on appeal. Doc. 6,
Ex. 17.
Petitioner raised the following assignments of error on appeal:
1.

THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO
CONVICT THE APPELLANT OF AGGRAVATED ROBBERY, THE
GUN SPECIFICATION, FELONIOUS ASSAULT AND THE THEFT
CHARGES THUS VIOLATING APPELLANT’S RIGHT TO DUE
PROCESS PURSUANT TO THE FIFTH AMENDMENT TO THE
FEDERAL CONSTITUTION MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH.

2.

THE JUDGMENT OF CONVICTION FOR FELONIOUS ASSAULT,
AGGRAVATED ROBBERY WITH A GUN SPECIFICATION, AND
THEFT IS AGAINST THE WEIGHT OF THE EVIDENCE.

4

Doc 6, Ex. 18. On September 25, 2014, the court affirmed Mr. Roth’s convictions and
sentences. Doc. 6, Ex. 20; State v. Roth, 2014 WL 4802841 (Muskingum Cty. Sept. 25,
2014).
C. Application for Release on Bail
Mr. Roth filed a pro se application for release on bail with the Muskingum
County Court of Common Pleas on April 3, 2014, which was denied on April 9, 2014.
Doc. 6, Ex. 24-25.
D. Ohio Supreme Court
On November 7, 2014, Mr. Roth filed a timely pro se notice of appeal to the Ohio
Supreme Court, raising the following propositions of law in his memorandum in
support of jurisdiction (Doc. 6, Ex. 22):
1.

Are the requirements of Crim. Rule 29, mandatory or
discretionary upon the trial court.

2.

Does a defendant in the state of Ohio have a right to a
fair trial as guaranteed by the United States
Constitution.

Doc. 6, Ex. 22. The State did not file a responsive brief, but on April 8, 2015, the Ohio
Supreme Court declined to accept jurisdiction. Doc. 6, Ex. 23. Mr. Roth did not petition
the United States Supreme Court for a writ of certioari.
E. Rule 26(B) Application for Re-Opening of Appeal
On June 12, 2015, Mr. Roth filed a pro se application pursuant to Ohio App.R.
26(B) to re-open his appeal on the grounds of ineffective assistance of appellate counsel.

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Doc. 6, Ex. 26. He alleged that counsel was ineffective for failing to raise the following
claims:
1.

APPELLANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT
AND THE PRESENCE AND ASSISTANCE OF HIS COUNSEL
DURING A CRITICAL STAGE OF HIS JURY TRIAL, AND HIS
RIGHT TO DUE PROCESS AND A FUNDAMENTALLY FAIR
TRIAL AS REQUIRED BY THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND CRIMINAL RULE 43(a0. (T. 950-50) [sic].

2.

THE APPELLANT’S TRIAL COUNSEL FAILED TO OBJECT TO
THE COURT’S ALLOWING THE COMPLICITY INSTRUCTION
IN THE JURY INSTRUCTIONS, VIOLATED THE DEFENDANT’S
RIGHT TO DUE PROCESS.

3.

APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED
WHEN PROSECUTOR FAILED TO CONVICT APPELLANT OF
EVERY ELEMENT OF THE OFFENSE.

On November 5, 2015, the appellate court denied Mr. Roth’s application to re-open his
appeal due to untimeliness. Doc. 6, Ex. 27. Roth did not appeal that decision to the
Ohio Supreme Court.
F. Federal Habeas
On March 1, 2016, Mr. Roth filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254 (Doc. 1), raising the following grounds for relief:
1.
The state failed to offer sufficient evidence to convict the appellant
of aggravated robbery, the gun specification, felonious assault and the theft charges
thus violating appellant’s right to due process pursuant to the Fifth Amendment to the
Federal Constitution made applicable to the States by the Fourteenth.
2.

Appellant was deprived of his right to be present and the presence
and assistance of his counsel during a critical stage of his jury trial,
and his right to due process and a fundamentally fair trial as
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required by the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Criminal Rule 43(a).
Supporting Facts: During deliberations, the jury sent out multiple
questions to the trial court, jurors were returned and questions answered.
Although counsel was present during the procedure, appellant was not.
The defendant may waive, in writing or on the record the defendant’s
right to be physically present under these rules with leave of court.
Criminal Rule 43(a)(3). Nowhere on the record did the defendant waive
his own right prior to the procedure at hand.
3

The appellant’s trial counsel failed to object to the courts [sic]
allowing the complicity instruction in the jury instructions,
violating the defendant’s right to due process.

4.

Appellant’s right to due process was violated when prosecutor
failed to convict appellant of every element of the offense.

Supporting Facts: Appellant, after deliberation from the jury was
convicted of aggravated robbery (2911.01 (a)(1)), but found not guilty of
any firearm specification, which is the essential element of aggravated
robbery under section (2911.01 (a) (1)). Therefore, as in State v Roscoe 2013Ohio-3617, this verdict should be reversed.
II. Legal Standards
A. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the
state courts to protect the constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the
state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an
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avenue open to him by which he may present his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6,
103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present 'the same claim under
the same theory' to the state courts before raising it on federal habeas review.” Hicks v.
Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497
(6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is
that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S.
72, 87 (1977), “contentions of federal law which were not resolved on the merits in the
state proceeding due to respondent's failure to raise them there as required by state
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procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court
must determine that there is a state procedural rule that is applicable to the petitioner's
claim and that the petitioner failed to comply with the rule.” Id. Second, the Court must
determine whether the state courts actually enforced the state procedural sanction. Id.
Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined that a state procedural rule
was not complied with, and that the rule was an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause,
petitioner must show that “some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a
procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to
9

constitute cause, an ineffective assistance of counsel claim generally must “ 'be
presented to the state courts as an independent claim before it may be used to establish
cause for a procedural default.' ” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier,
477 U.S. 478, 479 (1986)). That is because, before counsel's ineffectiveness will constitute
cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment,
and therefore must be both exhausted and not procedurally defaulted.” Burroughs v.
Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner
must be able to “satisfy the 'cause and prejudice' standard with respect to the
ineffective-assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000).
The Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas, habeas
petitioners would be able to avoid the exhaustion requirement by
defaulting their federal claims in state court. The independent and
adequate state ground doctrine ensures that the States' interest in
correcting their own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the
interplay between exhaustion and procedural default last Term in
O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999),
concluding that the latter doctrine was necessary to “ 'protect the integrity'
of the federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144
L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1
(STEVENS, J., dissenting)). The purposes of the exhaustion requirement,
we said, would be utterly defeated if the prisoner were able to obtain
federal habeas review simply by “ 'letting the time run' ” so that state
remedies were no longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728,
144 L.Ed.2d 1. Those purposes would be no less frustrated were we to
allow federal review to a prisoner who had presented his claim to the state
court, but in such a manner that the state court could not, consistent with
its own procedural rules, have entertained it. In such circumstances,
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though the prisoner would have “concededly exhausted his state
remedies,” it could hardly be said that, as comity and federalism require,
the State had been given a “fair 'opportunity to pass upon [his claims].' ”
Id., at 854, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204,
70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478,
495–96 (1986)).
B. Merits review
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.
104–132, 110 Stat. 1214 (“AEDPA”) govern the scope of this Court's review. See Penry
v. Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008).
AEDPA imposes a “highly deferential standard for evaluating state-court rulings,”
Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and “demands that state-court decisions
be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24,(2002) (per
curiam).

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When the claims presented in a habeas corpus petition have been presented to
and decided by the state courts, a federal habeas court may not grant relief unless the
state court's decision was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts in light
of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding

In applying this statute, the Supreme Court has held that “[t]he focus... is on whether the
state court's application of clearly established federal law is objectively unreasonable... an
unreasonable application is different from an incorrect one.” To obtain habeas corpus relief,
a petitioner must show the state court's decision was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Bobby v. Dixon, ___ U.S. ____, ____, 132 S.Ct. 26, 27 (2011),
quoting Harrington v. Richter, 562 U.S. 86, 101-103 (2011). This bar is “difficult to meet”
because “habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal.” Harrington

12

v. Richter, 562 U.S. at 102 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979)
(Stevens, J., concurring in judgment)). In short, “[a] state court's determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court's decision.” Id., quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004).
In situations where the state courts have not adjudicated the merits of a claim, a
federal habeas court should review a Petitioner's claim de novo. Howard v. Bouchard, 405
U.S. 459, 467 (6th Cir. 2005) (“Where the state court has not addressed or resolved claims
based on federal law, most courts, including this one, have held that the decision is not an
‘adjudication on the merits.’ Thus, a federal habeas court reviews such unaddressed claims
de novo.”); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003) (reviewing habeas
Petitioner's sufficiency-of-the-evidence claim de novo where the state courts had
considered the admissibility of the evidence but not the sufficiency of the evidence);
Pennington v. Jones, 2006 WL 322474, at *2 (E.D. Mich. Feb.10, 2006) (reviewing habeas
Petitioner's claim de novo where he raised it for the first time in his petition).
Questions of state law are not reviewable in a federal habeas action. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“We have stated many times that federal habeas corpus
relief does not lie for errors of state law. Today, we reemphasize that it is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions.”)
(citations and internal quotation marks omitted). Petitioner instead must show that “he is
in custody in violation of the Constitution or laws or treaties of the United States.” 28
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U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68 (“In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.”). Accordingly, the Court of Appeals has held that “[e]rrors by a state
court in the admission of evidence are not cognizable in habeas corpus proceedings unless
they so perniciously affect the prosecution of a criminal case as to deny the defendant the
fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
III. Discussion
Respondent argues that all Mr. Roth’s grounds for relief have been procedurally
defaulted due to his failure to exhaust state remedies and, alternatively, the grounds for
relief are without merit. Mr. Roth concedes in his habeas petition that he did not raise
grounds two through four in his direct appeal, but asserts that this should be excused
due to ineffective assistance of trial counsel. The Court will first address these grounds
for relief.
A. Grounds Two through Four
In his second, third, and fourth grounds for relief Petitioner asserts that his
constitutional rights to due process and/or a fair trial were violated because: (a)
although his counsel was present, he was not permitted to be present during the jury
deliberations, during which the jurors were returned to the courtroom and permitted to
pose multiple questions; (b) his trial counsel failed to object to the complicity instruction
given to the jury; and (c) he was convicted of aggravated robbery, but was found not
guilty of the firearm specification, which is an essential element of aggravated robbery

14

under O.R.C. §2911.01(a)(1). Mr. Roth argues that these claims were not raised due to
ineffective assistance of appellate counsel. The Court will first consider whether his
claim for ineffective assistance of appellate counsel was procedurally defaulted, because
whether procedural default of any other claim can be excused ultimately depends on
whether the claim for ineffective assistance of appellate counsel was procedurally
defaulted and whether there was cause and prejudice to excuse such default. See
Edwards, 529 U.S. at 452–53.
It is clear that, as to the ineffective assistance of appellate counsel claim, the first
three parts of the Maupin procedural default analysis have been satisfied. Mr. Roth
raised the ineffective assistance of appellate counsel claims in his Rule 26(B) application
for reopening, which is the procedural vehicle under Ohio law for raising an ineffective
assistance of appellate counsel claim. See, e.g., Landrum v. Mitchell, 625 F.3d 905, 916
(6th Cir.2010) (citing Ohio App. R. 26(B)). When he did so, the state appellate court
issued a judgment entry overruling petitioner's application for reopening, ruling that
petitioner had “failed to establish good cause for untimely filing of the application to
reopen.” Doc. 6-1, Ex. 27. The Court of Appeals has consistently held that “an untimely
Rule 26(B) application is an adequate and independent state ground that results in a
claim being procedurally defaulted.” Baker v. Bradshaw, 495 F. App'x 560, 566 (6th Cir.
2012) (citing Monzo v. Edwards, 281 F.3d 568, 577–78 (6th Cir. 2002) and Gross v.
Warden, 426 Fed.Appx. 349, 359 (6th Cir. 2011)). (Doc. # 16 at 15).

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Unfortunately for Mr. Roth, he did not appeal the denial of his Rule 26(B) motion
to the Ohio Supreme Court, and therefore failed to exhaust his state remedies for the
ineffective assistance of appellate counsel claim. Although Mr. Roth does not raise this
argument, even if appellate counsel failed to inform him of Rule 26(B)’s ninety-day
limitations period, this “cannot constitute cause” because “Rule 26(B) is a collateral
proceeding to which no right to assistance of counsel attaches.” Rideau v. Russell, 342
Fed.Appx. 998, 1003 n. 2 (6th Cir. Aug. 24, 2009) (citing Scuba v. Brigano, 527 F.3d at 489
(6th Cir. 2007). It is clear both Mr. Roth’s failure timely to pursue relief under Rule
26(B), and the failure to appeal the denial of that motion, qualify as procedural defaults.
See Tolliver v. Sheets, 594 F.3d 900 (6th Cir.2010) (failure timely to file a Rule 26(B)
motion is a procedural default); Amell v. Smith, 2010 WL 2010 WL 5283295 (N.D. Ohio
Nov 23, 2010), adopted and affirmed 2010 WL 5288186 (N.D. Ohio Dec 17, 2010) (failure
to appeal the denial of a Rule 26(B) motion is a procedural default). Mr. Roth has
offered no justification for this default. Therefore, the Court concludes that any
ineffective assistance of appellate counsel claim has been procedurally defaulted. That
means, in turn, that cause does not exist to excuse the default of grounds two through
four. Moreover, Mr. Roth has not demonstrated that this is an “extraordinary case,
where a constitutional violation has probably resulted in the conviction of someone
who is actually innocent.” See Murray, supra, at 496. For the reasons discussed above,
it will be recommended that grounds two through four of the petition be denied as
procedurally defaulted.
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B. Ground One- Sufficiency of the Evidence
Mr. Roth’s first ground for relief challenges the sufficiency of the evidence
presented in support of his convictions. Respondent first argues that Mr. Roth failed to
exhaust his state remedies because he did not raise an identical sufficiency of the
evidence claim in his memorandum in support of jurisdiction to the Ohio Supreme
Court. The Court notes that the memorandum in support of jurisdiction was filed by
Mr. Roth pro se, and the proposition of law viewed on its own only raised the question
as to whether the trial court erred in denying his counsel’s motion for acquittal under
Crim. R. 29. However, a review of Mr. Roth’s memorandum shows that he argued that
the conviction was against the weight of the evidence. Although Mr. Roth misses
certain aspects of the argument that were raised on direct appeal, he does raise the
proposition of law under the same general theory in his pro se memorandum in support
of jurisdiction to the Ohio Supreme Court as was argued in his appellate brief. Thus,
the Court will consider this ground for relief to be exhausted and consider it on its
merits.
A challenge to the sufficiency of the evidence, when made in a habeas corpus
petition subject to the AEDPA, must meet an exacting standard. As this Court explained
in Lynch v. Hudson, 2011 WL 4537890, *81–82 (S.D. Ohio Sept. 28, 2011):
In Jackson v. Virginia [443 U.S. 307 (1979) ], the United States Supreme
Court held that as a matter of fundamental due process, a criminal
conviction cannot stand unless each essential element is proven beyond a
reasonable doubt. 443 U.S. at 316. The Supreme Court explained that
when reviewing a challenge to the constitutional sufficiency of the
17

evidence supporting a criminal conviction, “the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319. The
Supreme Court cautioned, with respect to the role of a reviewing court,
that “[t]his familiar standard gives full play to the responsibility of the
trier of fact fairly to resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Id.
Thus, after reviewing the evidence in a light most favorable to the
prosecution and respecting the trier of fact's role in determining witnesses'
credibility and weighing the evidence, a federal court must grant habeas
corpus relief “if it is found that upon the record evidence at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable
doubt.” Id. at 324.
It is important that when reviewing a sufficiency of the evidence challenge the Court
“do[es] not reweigh the evidence, re-evaluate the credibility of the witnesses, or
substitute [its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir.2009). If the record contains credible, competent evidence enabling a rational jury to
find each essential element beyond a reasonable doubt, then Petitioner's challenge to the
sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319 F.3d 780, 788–89 (6th
Cir.2003) (“The mere existence of sufficient evidence to convict therefore defeats a
petitioner's claim.”).
As the Court of Appeals has explained, “[i]n a habeas proceeding, however, we
cannot simply conduct de novo review of the state court's application of the [Jackson v.
Virginia] rule, but must review its sufficiency-of-the-evidence decision under the highly
deferential standard of the AEDPA.” Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.2008).

18

In Tucker v. Palmer, 541 F.3d 652 (6th Cir.2008), the Court of Appeals explained in more
detail:
Accordingly, the law commands deference at two levels in this case: First,
deference should be given to the trier-of-fact's verdict, as contemplated by
Jackson; second, deference should be given to the Michigan Court of
Appeals' consideration of the trier-of-fact's verdict, as dictated by the
AEDPA.
Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th Cir.2007); Nash v. Eberlin,
258 F. App'x 761, 765 (6th Cir. 2007). This Court recognizes, however, that in spite of the
AEDPA, “it must distinguish reasonable speculation from sufficient evidence when
reviewing a state court's application of Jackson.” Arthurs v. Warden, Warren
Correctional Institution, 2012 WL 995395, *9 (S.D. Ohio March 23, 2012) (internal
quotations omitted).
Mr. Roth challenges the sufficiency of the evidence for his convictions. The
Court first notes that, despite his reference to his convictions for those crimes in his
habeas petition, Mr. Roth was not convicted of felonious assault or any gun
specifications. Doc. 6, Ex. 5. He was convicted only of two counts of theft and one
count of aggravated robbery. Mr. Roth’s theft convictions were pursuant to O.R.C.
§2913.02(A)(1), which provides as follows:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services
in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent

19

Mr. Roth argues that the trial testimony failed to establish key elements of the crimes for
which he was convicted.
With respect to the theft convictions, he argues that the prosecution failed to
show that Mr. Roth stole the victim’s wallet or any cash that it contained. Mr. Roth
cites testimony by Jeffery Body, the victim, which he says demonstrates that the state
failed to prove that Mr. Roth stole Mr. Body’s wallet:
Q:

“And did you give them your wallet?”

A:

“Yes. Well, I don’t know if I gave it to them or if I threw it. I pulled
my wallet– I was screaming: Here’s my wallet. They wanted my
keys. I’m like: Here, take my wallet, there’s money in it.”

Doc 6-3, Tr. at 157.
A:

***
“...I don’t know if it [the wallet] fell. I don’t know if I gave that to
them.”

Doc. 6-3, Tr. at 180.
Mr. Roth points out that the wallet was found at the scene of the crime after the incident
had occurred by a man who had never seen Mr. Roth before. Doc. 6-3, Tr. At 142. This,
he avers, shows that the state failed to show that the wallet was stolen or just dropped
at the scene. Mr. Roth also argues that the state failed to show that he stole money from
the wallet because he had none on him at the time of his arrest.
As was described in the trial testimony, Mr. Body testified that his wallet was
stolen by one of the masked men during the January 10, 2013, incident. Despite Mr.
Body’s statements relied on by Mr. Roth, he was found to have been at the residence

20

during the incident involving Mr. Body, and the money in the wallet was missing when
it was eventually found. The Court is unpersuaded by Mr. Roth’s argument that the
state failed to meet an essential element of theft because the cash was not found with
Mr. Roth at the time of his arrest. Moreover, even though Mr. Body admitted that his
wallet may have fallen instead of being physically taken off of him, there is sufficient
evidence to show that the wallet was removed from his possession without his consent,
whether or not it fell or was physically taken from his person. While this conviction
may turn on circumstantial evidence, the Supreme Court of Ohio has held that “[a]
conviction can be sustained based on circumstantial evidence alone.” State v. Franklin,
62 Ohio St.3d 118, 124 (1991), citing State v. Nicely, 39 Ohio St.3d 147, 154-55. (1988).
Based on the evidence presented and viewed in the light most favorable to the
prosecution, a reasonable trier of fact could have found the essential elements of theft
proven beyond a reasonable doubt.
Mr. Roth was originally charged with two counts of aggravated robbery, one
pursuant to O.R.C. §2911.01(A)(1), and one pursuant to §2911.01(A)(3). The statutes
read, in pertinent part, as follows:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it;
* * *
21

(3) Inflict, or attempt to inflict, serious physical harm on another.
Mr. Roth argues that the state failed to show that he beat Mr. Body because when
Mr. Body received his injuries he was outside of the residence at 801 Canal Street, but
co-defendant Amy Johnson testified as follows:
Q:

“Now Jeff’s in the street and someone is beating on him, does
anybody come to talk to you or ask you for anything?”

A:

“Yes.”

Q:

“And who was that?”

A.

“Joey.”

Doc. 6-4, Tr. at 238-239; and co-defendant Chad Bocook also testified that Mr. Roth “did
not beat on Jeff outside.” Id. at 210.
Mr. Roth was found guilty of aggravated robbery in violation of O.R.C.
§2911.01(A)(1), but not guilty of O.R.C. §2911.01(A)(3). Thus, whether or not Mr. Roth
was found to have physically beaten Mr. Body is irrelevant to his conviction under
§2911.01(A)(1). In fact, because he was found not guilty of §2911.01(A)(3) it is logical to
infer that the jury did not find that Mr. Roth participated in beating Mr. Body.
Mr. Roth argues that the state failed to show that he was in possession of a gun,
and thus failed to meet an essential element of §2911.01(A)(1). He references the
following trial testimony of Mr. Bocook in support of relief:
Q:

“Do you know if Joey had a gun?”

A:

“No, I can’t say whether or not he did for sure or not.”

22

Doc. 6-4, Tr. 206. In addition, Ms. Johnson testified:
Q:

“You didn’t see whether they did or did not have a gun?”

A:

“No.”

Doc. 6-4, Tr. 236. However, Ms. Johnson immediately goes on to testify as follows:
Q:

“But you did see that they were representing they had a gun?”

A.

“Yes.”

Id.
As described above, the testimony established that on the night of January 10,
2013, four men with masks burst into the bedroom where Mr. Body was located, and
that Mr. Body tried to run, but at least one of the masked men had a gun. State v. Roth,
2014 WL 4802841, ¶3. Mr. Body was then beaten and his car and cash from his wallet
were stolen. Mr. Roth argues that no evidence was presented to show that he had a gun
or knowledge that there was a gun present during the crime. However, the jury in Mr.
Roth’s trial was instructed on complicity, as detailed below. The jury did not need to
find direct possession of or knowledge of the gun, but whether Mr. Roth “supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of the
principal.” State v. Johnson, 93 Ohio St.3d 240, 243 (2001). Criminal intent “may be
inferred from the circumstances surrounding the crime.” Id. Where direct evidence of
use of a deadly weapon is not obtainable, proper inferences may be drawn from
presentation of other facts. State v. Vasquez, 18 Ohio App.3d 92 (Lucas Cty. 1984).
23

It is not this Court’s role in a habeas review to re-evaluate fact finding and
credibility determinations made by the jury. See, Brown, supra at 205. The jury heard
not only the testimony raised by Mr. Roth in his petition, but heard other witnesses and
considered all the evidence presented at trial as a whole. The jury’s determination that
the evidence was sufficient to support the convictions was not unreasonable, and that
conclusion precludes this Court from granting relief.
Applying the second level of deference, the Court must defer to the appellate
court’s reasoning in denying relief on this issue on direct appeal. In its opinion
affirming the judgment, the court quoted a portion of the trial court’s jury instructions,
and then considered the sufficiency of the evidence claim:
At trial, the trial court instructed the jury as to complicity pursuant to the
statute:
{¶ 32} “Complicity. No person acting with the kind of culpability required
for the commission of an offense shall do any of the following: Aid or abet
another in committing the offense. Whoever violates this section is guilty
of complicity in the commission of an offense and shall be prosecuted and
punished as if he were a principal offender.
{¶ 33} Aided or abetted means supported, assisted, encouraged,
cooperated with, advised or incited.
{¶ 34} You have heard the testimony from Amy Johnson and Chad Bocook
who pleaded guilty to the same crimes charged in this case and both are
said to be accomplices. An accomplice is one who purpose Lee [sic]
knowingly assists or joins another in the commission of a crime. Whether
Amy Johnson and Chad Bocook were both an accomplice and the wait
[sic] to give his or her testimony are matters for you to determine from all
the facts and circumstances in evidence.

24

{¶ 35} The testimony of an accomplice does not become inadmissible
because of his or her complicity, moral turpitude, or self-interest, but the
admitted or claimed complicity of a witness may affect his or her
credibility and make his or her testimony subject to grave suspicion and
require that it be weighed with great caution.
{¶ 36} It is for you, as jurors, in the light of all of the facts presented to you
from the witness stand to evaluate such testimony and to determine its
quality and worth or its lack of quality and worth.”
{¶ 37} The victim testified he was beaten inside and outside the residence,
and his car and wallet were stolen. In addition, the corroborating
testimony of Amy Johnson and Chad Bocook, both codefendants of
Appellant, testified as to the planning and commission of the offense,
including the indication of a firearm during the offense.
{¶ 38} Upon review of the evidence, including the testimony of the
accomplices, we find, Appellant's convictions are not against the manifest
weight nor the sufficiency of the evidence, as Appellant acted in
complicity and aided and abetted the commission of the offenses.
Roth, 2014 WL 4802841, *3-4.
Given the highly deferential approach required of this Court under the AEDPA
to the findings of the jury and appellate court’s reasoned decision, the Court concludes
that Mr. Roth’s first ground for relief is without merit.
IV. Conclusion
For the foregoing reasons, it is RECOMMENDED that the petition for a writ of
habeas corpus be DENIED and that this case be DISMISSED.
V. Procedure on Objections
Any party may, within fourteen days after this Order is filed, file and serve on
the opposing party a motion for reconsideration by a District Judge. 28 U.S.C.

25

§636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5.
The motion must specifically designate the order or part in question and the basis for
any objection. Responses to objections are due fourteen days after objections are filed
and replies by the objecting party are due seven days thereafter. The District Judge,
upon consideration of the motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections,
unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

26