Hunter v. Warden, Ross Correctional Institution

Filing 13

REPORT AND RECOMMENDATION re 11 MOTION for Reconsideration: The Magistrate Judge RECOMMENDS that Petitioner's Motion for Reconsideration ans Motion for Stay and Abeyance be GRANTED but that the Petition and this action be DISMISSED. Objections to R&R due by 6/29/2017. Signed by Magistrate Judge Norah McCann King on 6/15/2017. (er)(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
PETER A. HUNTER,
Petitioner,
Case No. 2:16-cv-506
JUDGE MICHAEL H. WATSON
Magistrate Judge King

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
On May 10, 2017, the Court overruled Petitioner’s Objection (Doc. 9) and affirmed the
Report and Recommendation (Doc. 8), in which the Magistrate Judge recommended that the
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) (“Petition”) be
dismissed without prejudice as unexhausted unless Petitioner notifies the Court that he wishes to
delete his unexhausted claim of constitutional insufficiency of the evidence and proceed only on
his remaining, exhausted, claims. Opinion and Order (Doc. 10). Petitioner asks that the Court
reconsider that decision. Motion for Reconsideration and Motion for Stay and Abeyance (Doc.
11). Respondent opposes that request. Respondent’s Opposition to Petitioner’s Motion for
Reconsideration and Motion for Stay and Abeyance (Doc. 12). For the reasons that follow, the
Magistrate Judge RECOMMENDS that Petitioner’s Motion for Reconsideration and Motion for
Stay and Abeyance (Doc. 11) be GRANTED but that the Petition and this action be
DISMISSED.
Motion for Reconsideration and Motion for Stay and Abeyance
One of the claims asserted in this action is the claim that the evidence was
constitutionally insufficient to sustain Petitioner’s convictions. As previously discussed in the

earlier opinions of the Court, Petitioner raised an insufficiency-of-evidence claim on direct
appeal but he did not pursue an appeal to the Ohio Supreme Court from the appellate court’s
decision affirming the judgment of conviction. However, Petitioner may still pursue a delayed
appeal. See Ohio S.Ct.R. 7.01(A)(4). It was for that reason that the Court previously concluded
that this claim remains unexhausted. See Report and Recommendation (Doc. 8); Opinion and
Order (Doc. 10).
Petitioner now seeks reconsideration of the Court’s conclusion in that regard,
representing that he does not intend to raise in these proceedings the same insufficiency-ofevidence claim that he raised in his direct appeal. Rather, Petitioner states, the claim raised in
these proceedings is the claim that he raised in his application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B). Petitioner insists that he has therefore exhausted his state court
remedies in connection with this particular claim (although he complains that the state appellate
court did not address his arguments in support of that claim). Petitioner also asks, should the
Court remain convinced that the claim is unexhausted, that these proceedings be stayed pending
exhaustion of this claim in the Ohio Supreme Court.
Petitioner was convicted on charges of aggravated robbery, with firearm specifications,
and on one count of having a weapon while under a disability, with a repeat violent offender
specification. The first claim presented in the Petition alleges that the evidence was
constitutionally insufficient to sustain Petitioner’s convictions, because Jessica Devore – who
identified Petitioner as one of the perpetrators – lied and her testimony was not credible, and
because the State failed to establish that Petitioner had robbed Danny Lowe, who had been shot
and seriously wounded during the incident. Petition (Doc. 3, PageID# 42). In this respect,
Petitioner argues that the money that he (and Derrick Wade, who was arrested at the same time

2

as Petitioner) took did not belong to Lowe who, Petitioner states, still had $800.00 in his
possession even after the robbery had taken place. Id. (PageID# 58). Even if the money had
belonged to Devore and Lowe, Petitioner argues, the two counts of aggravated robbery with
firearm specifications should have been merged.
In his direct appeal, Petitioner challenged Devore’s credibility and her testimony that
Petitioner had a firearm on his person; he also argued that the State failed to establish that the
firearm was operable. See State v. Hunter, No. 14AP-163, 2014 WL 5335355, at *5 (Ohio App.
10th Dist. Oct. 21, 2014). In his Rule 26(B) proceedings, Petitioner argued that his appellate
attorney was ineffective because he failed to raise on appeal a claim of insufficiency of evidence
based on the same facts alleged in the Petition. See Application for Reopening (Doc. 6-1,
PageID# 210-11).
It therefore appears that the insufficiency-of-evidence claim raised in these proceedings is
not precisely the same as the insufficiency-of-evidence claim raised in Petitioner’s direct appeal.
The claim presented before this Court is therefore not unexhausted. Even if it were, “[t]he
Supreme Court has held that the exhaustion requirement. . . is not jurisdictional, and that a court
‘should determine whether the interests of comity and federalism will be better served by
addressing the merits [of an unexhausted claim] forthwith or by requiring a series of additional
state and district court proceedings before reviewing the merits’ of the claim.” Granger v. Hurt,
215 Fed.App. 485, 492 (6th Cir. 2007)(citing Granberry v. Greer, 481 U.S. 129, 134 (1987)).
This Court concludes that the interests of comity and federalism would be best served by
addressing the merits of Petitioner’s claim rather than by dismissing this action for failure to
exhaust. Moreover, “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

3

State.” 28 U.S.C. § 2254(b)(2). As discussed below, the claim of insufficiency of evidence as
presented in the Petition plainly lacks merit.
Under all these circumstances, it is RECOMMENDED that Petitioner’s Motion for
Reconsideration and Motion for Stay and Abeyance (Doc. 11) be GRANTED and that the Court
consider the merits of Petitioner’s claims.
Standard of Review
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the
Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United
State Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court” and emphasized that courts must
not “lightly conclude that a State's criminal justice system has experienced the ‘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 statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted).
The AEDPA limits the federal courts' authority to issue writs of habeas corpus and
forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated
on the merits in State court proceedings” unless the state court decision either:
(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.

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28 U.S.C. § 2254(d).
Further, under the AEDPA, the factual findings of the state 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).
Accordingly, “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)). The United States Court of Appeals
for the Sixth Circuit has summarized these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“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.
Id. at 748–49. The burden of satisfying the AEDPA's standards rests with the petitioner. See
Cullen v. Pinholster, 563 U.S.170, 181 (2011).

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Claim One
Petitioner asserts in his first claim that the evidence was constitutionally insufficient to
sustain his convictions on two counts of aggravated robbery with a firearm specification. The
state appellate court rejected this claim in relevant part as follows:
Sufficiency of the evidence is a legal standard that tests whether
the evidence is legally adequate to support a verdict. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence
is legally sufficient to support a verdict is a question of law, not
fact. Id. In determining whether the evidence is legally sufficient to
support a conviction, “‘[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.’” State v. Robinson,
124 Ohio St.3d 76, 2009–Ohio–5937, ¶ 34, quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus. A verdict
will not be disturbed unless, after viewing the evidence in a light
most favorable to the prosecution, it is apparent that reasonable
minds could not reach the conclusion reached by the trier of fact.
State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
In a sufficiency of the evidence inquiry, appellate courts do not
assess whether the prosecution's evidence is to be believed, but
whether, if believed, the evidence supports the conviction. State v.
Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, ¶ 79–80
(evaluation of witness credibility not proper on review for
sufficiency of evidence); State v. Bankston, 10th Dist. No. 08AP–
668, 2009–Ohio–754, ¶ 4 (noting that “in a sufficiency of the
evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes
the state's witnesses testified truthfully and determines if that
testimony satisfies each element of the crime”).
***
As is relevant here, R.C. 2911.01(A) provides in part:
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:

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(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;
(2) Have a dangerous ordnance on or about the offender's person or
under the offender's control;
(3) Inflict, or attempt to inflict, serious physical harm on another.
To be convicted of an accompanying firearm specification, a
defendant must have had a firearm on or about his person or under
his control while committing the aggravated robbery and either
displayed, brandished or indicated that he possessed the weapon or
used the firearm to facilitate the aggravated robbery. R.C.
2941.145. As is relevant to this case, R.C. 2923.13(A)(2) prohibits
a person from knowingly acquiring, having, carrying or using any
firearm or dangerous ordnance if “[t]he person is under indictment
for or has been convicted of any felony offense of violence.”
In arguing that his convictions must be reversed, appellant
challenges Devore's credibility and her testimony that appellant
had a firearm on his person, even though he was unarmed at the
time of his arrest. Additionally, appellant argues that, even if
Devore is to be believed, there is no evidence that the firearm
appellant allegedly had was operable. We find these arguments
unpersuasive.
“‘Although a defendant may be charged in an indictment as a
principal, the court may instruct the jury on complicity where
evidence at trial reasonably supports a finding that the defendant
was an aider or abettor.’” State v. Gonzalez, 10th Dist. No. 10AP–
628, 2011–Ohio–1193, ¶ 24, quoting State v. Blackburn, 5th Dist.
No. 06 CA 37, 2007–Ohio–4282, ¶ 41, citing State v. Tucker, 8th
Dist. No. 88231, 2007–Ohio–1710, ¶ 15. Here, the trial court
instructed the jury that appellant could be convicted of the charged
offenses as an aider or abettor. The complicity statute, R.C.
2923.03(A), provides in pertinent part that “[n]o person, acting
with the kind of culpability required for the commission of an
offense, shall * * *: (2)[a]id or abet another in committing the
offense.”
To aid and abet means “‘to assist or facilitate the commission of a
crime, or to promote its accomplishment.’” State v. Johnson, 93
Ohio St.3d 240, 243 (2001), quoting Black's Law Dictionary (7th
Ed.Rev.1999). In State v. Pruett, 28 Ohio App.2d 29, 34 (4th
Dist.1971), the court stated that a common purpose among two
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people “to commit crime need not be shown by positive evidence
but may be inferred from circumstances surrounding the act and
from defendant's subsequent conduct.” “Participation in criminal
intent may be inferred from presence, companionship and conduct
before and after the offense is committed.” Id.
The evidence presented by the state in this case supports
appellant's convictions either as a principal offender or as an
accomplice. The evidence demonstrated that appellant and Wade
went to Devore's room together for the purpose of selling Xanax.
Devore testified that once there, Wade demanded that Lowe give
him their money and when Lowe refused, Wade shot him. Wade
fled, while appellant threatened Devore and her son with a gun.
According to Devore, appellant stated he would kill Devore's son if
she did not give him the money. Appellant then took Devore's
purse and ran from the scene. Appellant and Wade were
apprehended close to the scene shortly after the shooting. Once
apprehended, appellant was found with $2,000 in cash wrapped in
yellow hairbands. Wade was found with a revolver, and the state
presented evidence that this revolver was operable and that a bullet
collected from the scene was fired from this revolver. Additionally,
there was evidence presented from which the jury could infer that
Wade's gunshot wound was inflicted by Lowe's gun and that
Lowe's gun was the same gun appellant used to threaten Devore
and her son.
Construing the foregoing evidence in a light most favorable to the
state, it was reasonable for the trier of fact to conclude beyond a
reasonable doubt that appellant and Wade acted in concert in
committing the aggravated robberies and the WUD. Consequently,
we reject appellant's assertion that the record contains insufficient
evidence to support his convictions for aggravated robbery and
WUD, as well as the accompanying specifications.
State v. Hunter, No. 14AP-163, 2014 WL 5335355, at *4-6.
Before a criminal defendant can be convicted consistent with the United States
Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining
whether the evidence was sufficient to support a petitioner's conviction, a federal habeas court
must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S.

8

277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to “rule
out every hypothesis except that of guilt.” Id. (quoting Jackson, at 326). “[A] reviewing court
‘faced with a record that supports conflicting inferences must presume – even if it does not
appear on the record – that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” Id. (quoting Jackson, at 326).
Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference must be given, first, to the jury's finding of guilt because the
standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a
federal habeas court “must still defer to the state appellate court's sufficiency determination as
long as it is not unreasonable.” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a
substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so here.
When construing the evidence in the light most favorable to the prosecution, Devore’s
testimony alone was constitutionally sufficient to establish that Petitioner committed two counts
of aggravated robbery, as charged in Counts 1 and 2 of the Indictment, with a firearm
specification, against Danny Lowe III, and Jessica Devore. As discussed by the state appellate
court,
[On the day at issue,] Devore walked out of the bathroom and saw
Lowe with the front door open and two males standing there.
Through their conversations, it was said that the [Xanax] pills were
three dollars. As Lowe reached down toward Devore’s purse to
get the money, the taller of the two men hit Lowe with a gun and
said “[g]ive me all your money.” (Tr. 93.) According to Devore,
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Lowe refused and the taller man started shooting. Lowe fell to the
ground and “there was this blood squirting everywhere.” (Tr. 93.)
The taller man then ran out, but the shorter man remained in her
room. Devore’s son woke up screaming, and the shorter man
grabbed her son, pointed a gun at him, and told Devore he would
kill her son if she did not give him her money. Devore testified
she was saying “[p]lease don’t shoot my son,” and the man let go
of her son. (Tr. 95.) Devore grabbed her son and “threw him in
the bathroom and shut the door.” (Tr. 95.) Devore testified:
He said, “Give me your money now.” Where
Danny is laying, I had to step over Danny to get my
purse because it was sitting beside of the
refrigerator.
When I bent down, I was going to get the money
out. I unzipped it. When I did, he hit me, took the
purse and ran. I jumped up, looked outside, locked
the door, called 911.
. . . Shortly thereafter, appellant was arrested and Devore identified
appellant as the man who pointed the gun at her son. Devore
stated she was “[o]ne hundred percent” sure in her identification of
appellant, and Devore also identified appellant at trial. (Tr. 101.)
State v. Hunter, 2014 WL 5335355, at *1-2. Police observed Petitioner and Derrick Wade
walking northbound away from the scene. Wade “had a revolver in his front pocket with two
spent and three live rounds of ammunition.” Id. at *2.
The other man, appellant, had a “wad of cash” consisting of
several $20 bills tied with yellow hairbands. (Tr. 206.) Appellant
first told officers that there should be about $1,960 and that he had
just come from the casino. Appellant then told officers that he met
a man at McDonalds who gave him $2,000 to buy Percocet and
that, as he was going to make the purchase, he saw two individuals
running away from the hotel. According to appellant, one man ran
toward an Arby's restaurant and the other man ran toward Broad
Street.
Later that morning, appellant was interviewed at Columbus Police
Headquarters by Columbus Police Detective Arthur Hughes.
During the interview, appellant admitted that he went to Devore's
room at the hotel and that a confrontation between a man named
Derrick and “some white guy” occurred. (Tr. 325.) Appellant
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explained to Detective Hughes that earlier that evening, a man
known as D, who police later identified as the man Devore knew
as Craig, approached appellant and told appellant there is a man at
the hotel that wants to buy some Xanax. Appellant said that D told
him the guy has “like five, six thousand dollars in cash on him.”
(Tr. 322.) Appellant then talked with Wade who told appellant that
he had some Xanax. After talking with D, appellant and Wade
proceeded to the hotel room. Appellant told Detective Hughes that
Derrick and the other man started wrestling with each other and
then he heard “pop, pop.” (Tr. 325.) Appellant then said that he
“grabbed the money” and put it in his pockets. (Tr. 326.) Also
during this interview, appellant told Detective Hughes that both
Derrick and the white guy had guns and that he ran away from the
scene as shots were being fired. According to appellant's interview,
Wade had a black gun, and Lowe had a “chrome gun.” (Tr. 328.)
***
On the side of the hotel, police found Devore's purse and her
prescription medication. Both appellant and Wade tested positive
for gunshot residue on their hands. A .45 caliber spent shell casing
was collected from the hotel room, and a spent projectile was
recovered from the bathroom door. No firearms were recovered at
the scene, though the parties stipulated that the firearm recovered
from Wade was a .38 Special revolver that was operable.
Additionally, the parties stipulated that, if called to testify, Mark
Hardy, an expert in firearm examination, would testify that the
spent .38 caliber bullet collected at the scene was fired from the
revolver recovered from Wade. Additionally, Hardy would testify
that the .45 caliber spent bullet was not fired from the revolver.
The parties also stipulated that appellant had a prior robbery
conviction.
State v. Hunter, 2014 WL 5335355, at *2-3. Despite Petitioner’s argument to the contrary, Ohio
law provides for Petitioner’s conviction as an aider and abettor to the crimes charged without any
express allegation to that effect in the charging document:
“R.C. 2923.03(F) states: ‘A charge of complicity may be stated in
terms of this section, or in terms of the principal offense.’ Thus, a
defendant charged with an offense may be convicted of that
offense upon proof that he was complicit in its commission, even
though the indictment is ‘stated * * * in terms of the principal
offense’ and does not mention complicity. R.C. 2923.03(F)
adequately notifies defendants that the jury may be instructed on
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complicity, even when the charge is drawn in terms of the principal
offense. See State v. Keenan (1998), 81 Ohio St.3d 133, 151, 689
N.E.2d 929, 946, citing Hill v. Perini (C.A.6, 1986), 788 F.2d 406,
407-408.”
The above quote correctly sets forth the law in Ohio.
State v. Wilder, No. L-01-1401, 2003 WL 879070, at *3 (Ohio App. 6th Dist. March 7, 2003).
Ohio cases specifically have held that a defendant may be found
guilty of complicity to a crime even though the defendant was
indicted and prosecuted as a principal offender. State v. Tumbleson
(1995), 105 Ohio App.3d 693, 664 N.E.2d 1318 (holding the trial
court properly instructed the jury that the defendant could be found
guilty of complicity to aggravated robbery even though he was
indicted as a principal rather than under the complicity statute);
State v. Ensman (1991), 77 Ohio App.3d 701, 603 N.E.2d 303
(holding that defendant was on notice that he was either the
principal offender or an aider and abettor by virtue of the statute
providing that a charge of complicity may be stated in terms of the
principal offense); State v. Dotson (1987), 35 Ohio App.3d 135,
520 N.E.2d 240 (holding that where a defendant acts as a
middleman in a sale of drugs and is charged under the complicity
statute, the defendant is on notice that evidence could be presented
that he was either a principal offender or an aider and abettor);
State v. Strub (1975), 48 Ohio App.2d 57, 355 N.E.2d 819. If the
evidence presented during trial could reasonably be found to have
proven the defendant's guilt as an aider and abettor, a jury
instruction on complicity is proper. Dotson, supra.
State v. Barnes, No. 04AP-1133, 2005 WL 1515325, at *7 (Ohio App. 10th Dist. June 28, 2005).
Moreover, the state appellate court rejected Petitioner’s argument that the convictions should
have been merged, or that the State failed to establish two counts of aggravated robbery even if
Petitioner and Wade did not take money that belonged to Lowe.
“‘When a defendant commits offenses against different victims
during the same course of conduct, the offenses do not merge
because a separate animus exists for each [offense].’” State v.
Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 19, quoting
State v. Coffman, 10th Dist. No. 09AP-727, 2010-Ohio-1995, ¶ 8.

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State of Ohio v. Hunter, Memorandum Decision on Application for Reopening (Doc. 6-1,
PageID# 250.)
In short, when viewing all the evidence in the light most favorable to the prosecution,
there was sufficient evidence that Petitioner and his accomplice, while attempting to commit or
while committing a theft offense, or while fleeing immediately after the attempt or offense, had a
deadly weapon on or in their control, displayed or brandished the weapon, and inflicted serious
physical harm on Lowe, who was shot and paralyzed. The fact that Lowe may have had money
in his pockets when the ambulance arrived does not alter this conclusion because Jessica Devore
testified that Lowe had in his possession not only money from her tax return but also $700 to
$900 from his own paycheck. Transcript (Doc. 6-2, PageID# 415, 444).
Claim one is therefore without merit.
Claims Two through Five
In addition to the claim of insufficiency of evidence, the Petition also alleges that
Petitioner was denied the effective assistance of trial counsel (claim two); that he was denied a
fair trial due to the admission of perjured testimony by prosecution witness Jessica Devore
(claim three); that the trial court improperly imposed consecutive terms of incarceration in
violation of the Double Jeopardy Clause (claim four); and that he was denied the effective
assistance of appellate counsel (claim five). Respondent contends that Petitioner has committed a
procedural default of claims two through four and that claim five, because it is without merit,
cannot serve as cause sufficient to excuse the procedural default of the other claims.
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

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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 avenue open to him by which he may present his claims, then
his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless,
459 U.S. 4, 6 (1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where
a petitioner has failed to exhaust his claims but would find those claims barred if later presented
to the state courts, “there is a procedural default for purposes of federal habeas. . . .” Coleman v.
Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State has a fair chance to correct any errors made in the
course of the trial or the appeal before a federal court intervenes in the state criminal process.
This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts
before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal law claims being asserted. That means
that if the claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal court do
so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977),
“contentions of federal law which were not resolved on the merits in the state proceeding due to

14

respondent's failure to raise them there as required by state procedure” also cannot be resolved
on their merits in a federal habeas case-that is, they are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim has been 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, the
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 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. at 479).

15

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, 529 U.S. at 450–51. 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, 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)).
Id. at 452–53.

16

If, after considering all four factors of the Maupin test, the court concludes that a
procedural default has occurred, it must not consider the merits of the procedurally defaulted
claim 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. at 495–96).
In claim two, Petitioner alleges that he was denied the effective assistance of trial
counsel. In claim three, Petitioner alleges that he was denied a fair trial because of the admission
of Jessica Devore’s perjured testimony. In claim four, Petitioner alleges that the trial court
imposed consecutive terms of incarceration in violation of the Double Jeopardy Clause.
Petitioner failed to raise any of these claims on direct appeal, where he was represented by new
counsel. Further, he may now no longer do so by operation 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.). The state courts were never given an opportunity to
enforce this procedural rule due to the nature of Petitioner's procedural default.
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. at
732–33. 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.

17

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). The United States Court
of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the
Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440
F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001);
Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22
(6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have
consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims
because they are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67
Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the state's interest in finality
and in ensuring that claims are adjudicated at the earliest possible opportunity.
With respect to the independence prong, the Court concludes that 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 on Petitioner’s claims two through four.
Petitioner may still secure review of the merits of these procedurally defaulted claims if
he demonstrates cause for his failure to follow this state procedural rule, as well as actual
prejudice from the constitutional violations that he alleges.
As cause for his procedural default of claims two through four, and in habeas corpus
claim five, Petitioner alleges the denial of the effective assistance of appellate counsel.
Petitioner raised this claim in his application to reopen his appeal pursuant to Rule 26(B) and the
state appellate court rejected this claim in relevant part as follows:
To prevail on an application to reopen, defendant must make “a
colorable claim” of ineffective assistance of appellate counsel
18

under the standard established in Strickland v. Washington, 466
U.S. 668 (1984). . . . Under Strickland, defendant must
demonstrate the following: (1) counsel was deficient in failing to
raise the issues defendant now presents, and (2) defendant had a
reasonable probability of success if the issue had been presented on
appeal . . . An appellate attorney has wide latitude and the
discretion to decide which issues and arguments will prove most
useful on appeal. Furthermore, appellate counsel is not required to
argue assignments of error that are meritless. . . .
[A]ppellant contends his appellate counsel was ineffective for
failing to challenge the effectiveness of appellant’s trial counsel.
In this proposed assignment of error, appellant asserts his trial
counsel was ineffective for failing to object to the trial judge’s
answer to the jury’s question regarding whether or not any drugs
were found at the crime scene.
According to the record, the jury asked, “[w]as Xanax or any other
drugs ever found?” (Tr. 479.) In response, the trial court
answered, “you’ve had all the evidence necessary to decide the
case.” (Tr. 479.) Appellant has not demonstrated that this answer
was improper as it is well-established that a jury is not entitled to
evidence that was not admitted at trial. State v. Scudder, 10th Dist.
No. 91AP-506 (Oct. 20, 1992); State v. Wolff, 7th Dist. No. 07 MA
166, 2009-Ohio-7085, ¶ 30. To the extent appellant is also arguing
that his trial counsel was ineffective for failing to admit evidence
that drugs were found at the crime scene, there has been no
demonstration that this occurred and no demonstration that
appellant was prejudiced by the lack of admission of such
evidence.
Also under this proposed assignment of error, appellant argues his
trial counsel was ineffective for failing to file a motion to suppress
Jessica Devore’s testimony on the basis that her testimony was not
credible. Additionally, appellant asserts his trial counsel was
ineffective for failing to impeach Devore’s testimony. First, we
note appellant has failed to set forth a basis upon which a
suppression motion would have been granted. Second, the record
reveals appellant’s trial counsel conducted an extensive crossexamination of Devore, including drawing out potential
inconsistencies between Devore’s testimony at trial and her prior
statements to police. As noted in our disposition of appellant’s
direct appeal wherein appellant challenged the credibility of
Devore’s testimony:

19

“ ‘[W]here a factual issue depends solely upon a
determination of which witnesses to believe, that is
the credibility of witnesses, a reviewing court will
not, except upon extremely extraordinary
circumstances, reverse a factual finding either as
being against the manifest weight of the evidence or
contrary to law.’ ” In re L.J., 10th Dist. No. 11AP495, 2012-Ohio-1414, ¶ 26. The rationale is that
the trier of fact is in the best position to take into
account inconsistencies, along with the witness’
manner and demeanor, and determine whether the
witnesses’ testimony is credible. State v. Williams,
10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58;
State v. Clarke, 10th Dist. No. 01AP-194 (Sept. 25,
2001).
Hunter at ¶ 27.
For all of the foregoing reasons, we find that appellant’s second
proposed assignment of error fails to raise a colorable claim of
ineffective assistance of appellate counsel.
. . . [A]ppellant contends his appellate counsel was ineffective for
failing to assert a claim of prosecutorial misconduct. According to
appellant, the prosecutor committed misconduct in eliciting perjured
testimony from Devore. “The knowing use of false or perjured
testimony constitutes a denial of due process if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury.” United States v. Lochmondy, 890 F.2d
817, 822 (6th Cir. 1989). “The same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected
when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959). In
order to meet the test for prosecutorial misconduct under these
circumstances, the defendant must show that: (1) the statement was
false, (2) the statement was material, and (3) the prosecutor knew it
was false. United States v. O’Dell, 805 F.2d 637, 641 (6th Cir.
1986). The burden is on the defendant to show that the testimony
was perjured. United States v. Griley, 814 F.2d 967, 971 (4th Cir.
1987).
Not only has appellant failed to establish that Devore’s statements
were false, but also appellant has failed to establish that, if the
statements were false, the prosecutor had any knowledge of their
alleged falseness. Further, to the extent Devore’s trial testimony
contained inconsistencies or was inconsistent with prior statements
to police this court has already addressed appellant’s assertion that
20

his convictions cannot stand due to Devore’s failure to provide
credible testimony. Hunter.
***
Upon review, we conclude appellant has failed to meet his burden to
demonstrate that there is a genuine issue as to whether he was
deprived the effective assistance of counsel on appeal.
Memorandum Decision on Application for Reopening (Doc. 6-1, PageID# 248-50).
“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . .
. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that
his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687;
Hale v. Davis, 512 Fed.Appx. 516, 520 (6th Cir. 2013).

A petitioner “show[s] deficient

performance by counsel by demonstrating ‘that counsel's representation fell below an objective
standard of reasonableness.’” Poole v. MacLaren, 547 Fed.Appx. 749, 754 (6th Cir. 2013)
(quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted)
and citing Strickland, 466 U.S. at 687). To make such a showing, a petitioner must overcome the
“strong[ ] presum[ption]” that his counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 687.
“To avoid the warping effects of hindsight, [courts must] ‘indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.’” Bigelow v.
Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).

21

The Strickland test applies to appellate counsel. Smith v. Robbins,
528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Burger
v. Kemp, 483 U.S. 776 (1987). . . . Counsel's failure to raise an
issue on appeal amounts to ineffective assistance only if a
reasonable probability exists that inclusion of the issue would have
changed the result of the appeal. Id. . . . . The attorney need not
advance every argument, regardless of merit, urged by the
appellant. Jones v. Barnes, 463 U.S. 745, 751–752, 103 S.Ct. 3308,
77 L.Ed.2d 987 (1983) (“Experienced advocates since time beyond
memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.” 463 U.S. 751–52).
Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D.
Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been
denied the effective assistance of appellate counsel include:
(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) (citations omitted).
22

The United States Supreme Court has cautioned federal habeas courts to “guard against
the danger of equating unreasonableness under Strickland with unreasonableness under §
2254(d).”

Harrington, 562 U.S. at 105.

The Court observed that, while “‘[s]urmounting

Strickland's high bar is never . . . easy,’. . ., [e]stablishing that a state court's application of
Strickland was unreasonable under § 2254(d) is even more difficult.” Id. (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)) (and citing Strickland, 466 U.S. at 689). The Supreme
Court instructed that the standards created under Strickland and § 2254(d) are both “‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
Thus, when a federal habeas court reviews a state court's determination regarding an ineffective
assistance of counsel claim, “[t]he question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard.” Id.
The record in this case fails to reflect that Petitioner can establish the denial of the
effective assistance of appellate counsel based on his attorney’s failure to raise a claim of the
denial of the effective assistance of trial counsel. As discussed by the state appellate court,
Petitioner does not indicate, and the record does not reflect, any basis on which defense counsel
could have successfully filed a motion to suppress the testimony of Devore. See Rodriguez v.
Warden, Southern Ohio Correctional Facility, 940 F.Supp.2d 704, 716 (S.D. Ohio 2013)(failure
to file a motion to suppress does not constitute constitutionally ineffective assistance of counsel
where there is no reasonable likelihood that the motion would have succeeded); Adams v.
Bradshaw, 484 F.Supp.2d 753, 777 (N.D. Ohio 2007)(In order to succeed on the prejudicial
aspect of a claim of ineffective assistance of counsel for failure to file a motion to suppress, a
defendant must also prove that the motion is meritorious and that there is a reasonable
23

probability that the verdict would have been different absent the excludable evidence)(citing
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)); Griffin v. Warden, Noble Correctional
Institution, No. 2:14-cv-00857, 2016 WL 1090960, at *11-12 (S.D. Ohio March 21, 2016)(no
prejudice under Strickland based on counsel’s failure to file a motion to suppress evidence where
the record indicates that the motion could not have succeeded).
Further, the record indicates that defense counsel cross-examined Devore regarding her
inconsistent statements to police. See, e.g., Trial Transcript (Doc. 6-2, PageID# 421-22, 424).
Devore indicated that she had “blacked out” and did not recall anything that occurred after the
ambulance arrived, including her interview with Detective Hughes. Id. (PageID# 426). Devore
also denied certain statements that she had made to Detective Hughes; however, relevant
portions of her taped statement were played for the jury. Devore agreed that the tape recorded
her voice, and that it was she who had made the statements. Id. (PageID# 437-38). Moreover,
the manner in which Lowe had been shot – and whether or not Devore assisted Lowe in firing
the gun at Wade – does not affect Devore’s testimony that Petitioner and Wade violently robbed
Devore and Lowe on the night in question. Notably, the jury acquitted Petitioner of the charges
of felonious assault, attempted murder, and kidnapping.

Nothing in the record supports

Petitioner’s claim that Devore lied, or that the prosecution knowingly elicited false testimony
from Devore. Additionally, the record does not indicate that the trial court violated Ohio law in
its response to the jury regarding the presence of Xanax at the scene. Petitioner cannot establish
prejudice by reason of his attorney’s failure to raise these issues on direct appeal.
Petitioner has failed to establish the denial of the effective assistance of appellate counsel.
It follows that he has likewise failed to establish cause for his procedural default of his claims
two through four.

24

The United States Supreme Court has also held that a claim of actual innocence may be
raised “to avoid a procedural bar to the consideration of the merits of [the petitioner's]
constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary
case, where a constitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held
that a credible showing of actual innocence is sufficient to authorize a federal court in reaching
the merits of an otherwise procedurally-barred habeas petition.

Schlup, 513 U.S. at 317.

However, the actual innocence claim is “‘not itself a constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.’” Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it
is “more likely than not” that new evidence – not previously presented at trial – would allow no
reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577
(6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained the exception as follows:
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
25

(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 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, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural defaults.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for
Reconsideration and Motion for Stay and Abeyance (Doc. 11) be GRANTED but that the
petition for a writ of habeas corpus 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).

26

The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
June 15, 2017

27