Smith v. Warden Southeastern Correctional Institution

Filing 29

ORDER granting 10 Petitioner's Motion to Amend/Correct; granting in part and denying in part 12 Petitioner's Motion for Judicial Notice; denying as moot 14 Petitioner's Motion to Add Affidavit; granting 23 Petitioner's Mot ion to Expand/Complete the Record. Petitioner's request for a certificate of appealablity is granted. Signed by Judge George C. Smith on 9/29/17. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES H. SMITH,
Petitioner,
CASE NO. 2:16-CV-533
JUDGE GEORGE C. SMITH
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, SOUTHEASTERN
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
Petitioner, a state prisoner, brings the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,
Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, this action is
hereby DISMISSED.
Petitioner’s Motion to Amend/Correct (ECF No. 10), is GRANTED. Petitioner’s Motion
to Add Affidavit (ECF No. 14), is DENIED, as moot. Petitioner’s Motion for Judicial Notice
(ECF No. 12), is GRANTED IN PART AND DENIED IN PART. Petitioner’s unopposed
Motion to Expand/Complete Record Pursuant to Rule 5 of the Rules governing Section 2254
Cases (ECF No. 23), to include a copy of the transcripts of pre-trial proceedings, is GRANTED.
Petitioner’s request for a certificate of appealability is GRANTED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
James H. Smith is appealing from several convictions for
aggravated robbery, kidnapping and other related felonies and

specifications. As a result of his conviction, he was ordered to be
incarcerated for a total of 84 years.
Counsel for Smith has assigned ten errors for our consideration:
First Assignment of Error: The trial court improperly exposed the
jury to inadmissible hearsay testimony in violation of Evid.R. 801.
Second Assignment of Error: The trial court erred in admitting
statements given by out-of-court declarants in violation of the
Confrontation Clauses of the Sixth Amendment to the United
States Constitution and Section 10, Article I of the Ohio
Constitution.
Third Assignment of Error: The trial court erred in allowing
stipulations of the parties that violated Appellant’s right to
confrontation under the Sixth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution
without first ensuring Appellant understood his right of
confrontation and thereafter knowingly, intelligently and
voluntarily waived that right.
Fourth Assignment of Error: Counsel for Appellant fell short of
providing adequate representation and as a result Appellant’s right
to effective assistance of counsel, was violated.
Fifth Assignment of Error: The trial court erred when it allowed
the jury to receive articles and information during deliberations
that had not been admitted into evidence at trial in violation of
Appellant’s statutory and constitutional due process rights.
Sixth Assignment of Error: The trial court erred in its finding that
the firearm specifications associated with each robbery had to all
be served consecutively.
Seventh Assignment of Error: The cumulative effect of the errors
advanced in this brief resulted [in] a violation of Appellant’s right
to a fair trial and thus entitles him to a new trial.
Eighth Assignment of Error: The trial court erred when it entered
judgment against the defendant when the evidence was insufficient
to sustain the convictions.
Ninth Assignment of Error: The judgment of the trial court was
against the manifest weight of the evidence.

2

Tenth Assignment of Error: The trial court erred by failing to
merge Appellant’s convictions at sentencing in violation of R.C.
2941.25(A), the Fifth and Fourteenth Amendments to the United
States Constitution, and Article I, Sections 10 and 16 of the Ohio
Constitution.
Smith was indicted on 34 counts of aggravated robbery, 34 counts
of robbery, 54 counts of kidnapping, and 19 counts of having a
weapon under disability and one count of tampering with evidence.
Most of the charges carried repeat violent offender (“RVO”)
specifications and three-year firearm specifications.
The State of Ohio narrowed the charges somewhat before the trial
started, dismissing the robbery charges which were uniformly
lesser included offenses of the aggravated robbery charges. The
State also dismissed the tampering with evidence charge and the
charges related to the armed robbery of one Chipotle restaurant.
This left charges involving 18 separate incidents.
The RVO specifications and the weapon under disability charges
were tried to the trial court judge in order to avoid exposing jurors
to details of Smith’s prior felony record.
There does not seem to be serious debate that the 18 sets of
robberies occurred, at least based upon the record before us on
appeal. The sole issue at the trial was whether James H. Smith was
the robber. The jury and the trial court judge were convinced
beyond a reasonable doubt that he was in several instances.
Unknown to the jury was the fact that Smith’s trial counsel was
struggling with a series of allegations that counsel had been
involved in a series of rapes. Eventually, trial counsel was
convicted of rape charges, sentenced and disbarred. Appellate
counsel alleges that trial counsel’s personal problems affected the
representation Smith received at trial and deprived Smith of
effective assistance of trial counsel. We will address the
assignments of error which touch on that allegation first.
The State and Smith’s trial counsel reached an agreement about a
wide range of stipulations about the underlying facts of the armed
robberies. From the perspective of defense counsel, this minimized
the exposure of the jury to the human terror and suffering caused
by the robber. From a different perspective, the stipulations made it
easier for the State to convict Smith of the robberies and cause
Smith to receive basically a life sentence of imprisonment.

3

State v. Smith, No. 13AP-973, 2015 WL 872753, at *1-3 (Ohio App. 10th Dist. March 3, 2015).
On March 3, 2015, the appellate court affirmed the judgment of the trial court. Id. On June 24,
2015, the Ohio Supreme Court declined jurisdiction of the appeal. State v. Smith, 142 Ohio St.3d
1520 (Ohio 2015).
On June 13, 2016, Petitioner filed the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He asserts that the trial court improperly exposed the jury to inadmissible
hearsay (ground A); that he was convicted in violation of the Confrontation Clause (ground B);
that the trial court improperly permitted certain stipulations by the parties that violated the
Confrontation Clause, without determining whether Petitioner knowingly, intelligently, and
voluntarily waived that right (ground C); that he was denied the effective assistance of counsel
based on his attorney’s agreement to enter into stipulations regarding the elements of the robbery
and kidnapping charges and Sprint phone records; failure to file a motion to sever the charges
related to the July 12, 2012, Red Robin robbery (ground D); that he was denied due process due
to the admission of certain articles and information during jury deliberations that had not been
admitted at trial (ground E); that the trial court improperly imposed consecutive terms of
incarceration on Petitioner’s firearm specifications (ground F); that he was denied a fair trial
based on cumulative error (ground G); that the evidence was constitutionally insufficient to
sustain his convictions (ground H); and that his convictions on aggravated robbery and
kidnapping should have been merged at sentencing (ground I).

It is the position of the

Respondent that Petitioner’s claim should be dismissed as procedurally defaulted or without
merit.

4

Motion to Amend
Petitioner has filed a motion to amend the Petition to include additional facts and
arguments from his state appellate brief in support of habeas corpus grounds A and B, in which
he asserts that the trial court improperly exposed the jury to inadmissible hearsay and erred in
admitting certain testimony, in violation of the Confrontation Clause. Petitioner indicates that
these claims are related. He requests the Court to conduct a de novo review of ground B.
Petitioner also provides additional argument in support of ground D, in which he asserts that he
was denied effective assistance of trial counsel.
Respondent opposes Petitioner’s motion to amend. See Respondent’s Memorandum in
Opposition to Petitioner’s Motion for Leave to Amend Petition. (ECF No. 19.) According to the
Respondent, the one-year statute of limitations provided in 28 U.S.C. § 2244(d) bars amendment
of the Petition, and any amendment would, in any event, be futile. Respondent additionally
contends that the Court should bar any amendment of the Petition, as Petitioner could have
included these facts in support in his initial filing and may provide additional legal arguments
through the filing of a Traverse. Id. However, Respondent also maintains that the Court should
dismiss Petitioner’s claims for failure to comply with Rule 2(c) of the Rules Governing Section
2254 Cases, which requires that a pleader provide sufficient facts in support of his claims.
Return of Writ (ECF No. 7, PageID# 32-34.)
“Dismissal under Habeas Rule 2(c) is appropriate in cases . . . where the petition and
accompanying documents, as well as petitioner’s additional pleadings and notices, contain ‘so
many unintelligible and conclusory allegations and statements’ that it is impossible for the Court
to determine ‘the exact errors of fact or law’ that have been raised for adjudication or even
whether petitioner’s stated grounds for relief pertain to anything that occurred in the challenged

5

[] criminal case.” Rice v. Warden, No. 1:14-cv-732, 2015 WL 5299421, at *4 (S.D. Ohio Sept.
9, 2015) (citing Tinsley v. Beasley, No.5:11cv13289, 2011 WL 3497306, at *2 (E.D. Mich. Aug.
10, 2011) (other citations omitted)). Despite Respondent’s argument to the contrary, such are
not the circumstances here. Moreover, the Court liberally construes the allegations of a pro se
petitioner, and holds a pro se prisoner’s complaint to less stringent standards than formal
pleadings drafted by lawyers. See Koon v. Warden, Madison Correctional Institution, No. 2:16cv-00950, 2017 WL 1106372, at *7 (S.D. Ohio March 24, 2017) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).
It is clear from the face of the Petition that Petitioner intended to raise the same issues he
presented to the state appellate court.

Respondent will not be prejudiced if Petitioner is

permitted to amend his Petition to include the factual bases for his claims inasmuch as he already
presented them to the state appellate court. Moreover, it does not appear, as the Respondent
suggests, that Petitioner seeks to add any new claims to the Petition that he did not previously
raise.

Rather, Petitioner has merely clarified the facts and arguments in his Petition with

material he presented in his state appellate brief. Therefore, because has added only additional
core facts that relate to his original position, the statute of limitations does not bar amendment of
the petition. See Hill v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016) (“[W]hen a prisoner files an
original petition within the one-year deadline, and later presents new claims in an amended
petition filed after the deadline passes, the new claims relate back to the date of the original
petition if the new claims share a ‘common core of operative facts’ with the original petition.’”)
(citing Cowan v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011) (quoting Mayle v. Felix, 545 U.S.
644, 650 (2005)).

6

Therefore, Petitioner’s Motion to Amend/Correct (ECF No. 10), is GRANTED.

The

Court considers Petitioner’s Amended Petition in its analysis of his claims.
Motion to Add Affidavit
Petitioner has filed a motion to include an Affidavit from Kerry Donahue, dated
November 28, 2016, who was appointed as replacement appellate counsel on Petitioner’s behalf
and filed a supplemental brief in the state appellate court. Donahue indicates that he neglected to
send a copy of Petitioner’s Reply to the State’s brief “until very recently” and Petitioner
therefore “did not get the opportunity to review the important arguments made therein.” (ECF
No. 14, PageID# 1770.) Petitioner seeks to submit Donahue’s affidavit in support of his motion
to amend the Petition, so as to establish that he has acted diligently and in good faith. Motion to
Add Affidavit to Motion For Leave of Court to Amend Petitioner’s U.S.C. 2254 Habeas Corpus
Petition (ECF No. 14.) Respondent opposes Petitioner’s request. Respondent’s Memorandum in
Opposition to Petitioner’s Motion to Add Affidavit to Motion for Leave of Court to Amend
Petitioner’s Habeas Corpus Petition (ECF No. 21.)

This Court, however, has now granted

Petitioner’s motion to amend. Therefore, the Motion to Add Affidavit (ECF No. 14) is DENIED,
AS MOOT.
Motion for Judicial Notice
Petitioner requests the Court to take judicial notice that his defense counsel, Attorney
Javier Armengau, was indicted and subsequently convicted in the Franklin County Court of
Common Pleas on charges of rape, kidnapping, sexual battery, gross sexual imposition, and
public indecency, and disbarred as a result. Motion for Judicial Notice (ECF No. 12.) Petitioner
has attached copies of newspaper articles regarding the charges against Armengau, and a copy of
the trial court’s Judgment Entry of sentence. (PageID# 1760-65.) Petitioner argues that these

7

facts support his claim of the denial of the effective assistance of counsel. Petitioner alleges that
his attorney’s criminal convictions reflect counsel’s lack of moral character and support his
claim that counsel sought to curry favor with the prosecution by entering into certain
stipulations, at Petitioner’s expense.
Respondent opposes Petitioner’s request.

It is the position of the Respondent that

Petitioner’s request will not assist him in establishing his claims, and that the Supreme Court’s
decision in Cullen v. Pinholster, 563 U.S. 170 (2011) (a federal court must limit its review under
28 U.S.C. § 2254(d)(1) of a claim that the state court adjudicated on the merits to the record that
presented to the state appellate court), bars expansion of the record. Respondent’s Memorandum
In Opposition to Petitioner’s Motion for Judicial Notice (ECF No. 20.) However, Petitioner
does not seek to expand the record in this case.
Under Rule 201 of the Federal Rules of Evidence, a district court may take judicial notice
at any stage of the proceeding, whether or not requested by the parties, of any fact “not subject to
reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Rule 201, Federal Rules of Evidence. “[J]udicial
notice is available only for ‘adjudicative facts,’ or the ‘facts of the particular case,’ as opposed to
... facts ‘which have relevance to legal reasoning’ . . . . Thus, judicial notice is generally not the
appropriate means to establish the legal principles governing the case.” Wingeart v. Warren, No.
05-74144, 2011 WL 1085032, at *1 (E.D. Mich. March 23, 2011) (quoting Toth v. Grand Trunk
R.R., 306 F.3d 335, 350 (6th Cir. 2002)). Additionally, “federal courts may take judicial notice
of proceedings in other courts of record” and of judicial decisions. Id. (citing Granader v. Public
Bank, 417 F.2d 75, 82 (6th Cir. 1969); United States v. Doss, 563 F.2d 265, 269 n. 2 (6th Cir.

8

1977); Don Lee Distributor, Inc. v. NLRB, 145 F.3d 834, 841 n.5 (6th Cir. 1998)); see also In re
Montanari, No. 12-33189, 2015 WL 603874, at *1 n.3 (E.D. Tenn. Feb. 12, 2015) (taking
judicial notice of the undisputed facts and documents of record in the defendants’ bankruptcy
case). “The purpose of judicial notice is to make a court’s acceptance of a well-known or
undisputable fact more convenient.” Wingeart, 2011 WL 1085032, at *1 (citing United States v.
Bari, 599 F.3d 176, 180 (2nd Cir. 2010)).
The Court takes judicial notice of the proceedings in the Ohio Court of Appeals. In those
proceedings, the court of appeals noted, in its dismissal of Petitioner’s claim for ineffective
assistance of trial counsel, that unbeknownst to the jury, defense counsel had been struggling
with a series of rape charges that had been filed against him, and upon which he was ultimately
convicted, sentenced, and disbarred.

Even given these facts, the appellate court denied

Petitioner’s claim, concluding that Petitioner had failed to establish prejudice under the test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Thus, the state appellate court has
already recognized, and included as a factual finding, that defense counsel faced pending
criminal charges during trial, upon which he has been subsequently convicted and disbarred.
Therefore, to the extent necessary, the Court may take judicial notice of these facts.
Nonetheless, judicial notice is in essence unnecessary given that the matters are part of the record
in this case.
Petitioner’s Motion for Judicial Notice (ECF No. 12) therefore is GRANTED IN PART
AND DENIED.

9

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 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
10

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 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).
As 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 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

11

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, 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)).
12

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)).
Ground B - Confrontation
In ground B, Petitioner asserts that he was convicted in violation of the Confrontation
Clause. Petitioner properly raised this claim on direct appeal; however, it is the position of the
Respondent that Petitioner nonetheless has procedurally defaulted this claim by failing to provide
sufficient facts in support on appeal to the Ohio Supreme Court, thereby “abandoning” the issue.
Return of Writ (ECF No. 7, PageID# 36.)
“To avoid procedural default, the petitioner must ‘exhaust’ all state-court remedies.”
Williams v. Mitchell, 792 F.3d 606, 613 (6th Cir. 2015) (citing Carter v. Mitchell, 693 F.3d 555,
563–64 (6th Cir. 2012)). This requires “fair presentation” of the federal claim to the state
supreme court. Id. (citing Bray v. Andrews, 640 F.3d 731, 734–35 (6th Cir. 2011); O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.”). To fairly present a federal claim, a state prisoner must
present the state courts with “both the legal and factual basis” for his claim. Id. (citing Williams
v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)).

13

In his Memorandum in Support of Jurisdiction in the Ohio Supreme Court, Petitioner
asserted that the trial court had erroneously allowed stipulations by the parties that violated his
right to confrontation under the Sixth Amendment. Proposition of Law Three (ECF No. 7-1,
PageID# 455.) Petitioner argued in support of this claim that the trial court had improperly
permitted admission of certain hearsay statements that he had referenced in his first proposition
of law – i.e., statements by police officers regarding the identification of the suspect and
purported background evidentiary matters – which, he contended, violated the Confrontation
Clause. (PageID# 458-59.) Petitioner also attached a copy of the appellate court’s decision
rejecting this claim. (PageID# 469.) Petitioner thereby asserted the same claim, in reference to
the same statements he had complained of on direct appeal. See Gentry v. Sinclair, 705 F.3d
884, 897-98 (9th Cir. 2013) (a federal claim may be fairly presented if it is raised in an
accompanying brief or another similar document filed with the court) (citing Baldwin v. Reese,
541 U.S. 27, 32 (2004)). “The ‘failure to make every factual argument to support [a] claim does
not constitute a failure to exhaust.’” Sutton v. Bell, 683 F.Supp.2d 640, 666 (E.D. Tenn. Jan. 22,
2010) (citing Patterson v. Cuyler, 729 F.2d 925, 929 (3rd Cir. 1984); Picard, 404 U.S. 270)).
This Court therefore concludes that Petitioner has sufficiently preserved this same claim for
federal habeas corpus review.
Ground C – Uninvited Error / Stipulations
In ground C, Petitioner asserts that the trial court improperly permitted stipulations by the
parties that violated his right to confront the witnesses against him without first determining that
Petitioner knowingly and intelligently, and voluntarily, waived that right. Petitioner raised this

14

same claim on direct appeal;1 however, the state appellate court rejected the claim on the basis of
“invited error,” due to Petitioner’s agreement to the stipulated facts at the time of trial:
The third assignment of error argues that stipulations in general
constitute a denial to a criminal defendant of the right to confront
witnesses. We do not see this as being so. Stipulations reduce the
trial to a trying of key issues, not an analysis of collateral issues.
Stipulations can be to the benefit of all involved and served as a
potential benefit to this defendant. Further, this issue can be
classified as falling within the invited error doctrine which
prohibits a party from being “permitted to take advantage of an
error which he himself invited or induced the trial court to make.”
Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145 (1943); State v.
Jones, 10th Dist. No. 12AP–1091, 2014–Ohio–674, ¶ 22.
The third assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *5.
Thus, Petitioner has waived this claim under the doctrine of invited error. See Grant v.
Brigano, No. C-1-03-896, 2007 WL 2782742, at *8 (S.D. Ohio Sept. 24, 2007). Under the
doctrine of invited error, Petitioner cannot raise a claim in federal habeas proceedings for an
issue about which he explicitly consented in the state courts. See Grant v. Brigano, No. C-1-03896, 2007 WL 2782742, at *7 (S.D. Ohio Sept. 24, 2007).
The Sixth Circuit in Fields v. Bagley, 275 F.3d 478 (6th Cir.2001)
explained the doctrine as follows:
The doctrine of “invited error” is a branch of the
doctrine of waiver in which courts prevent a party
from inducing an erroneous ruling and later seeking
to profit from the legal consequences of having the
ruling set aside. Harvis v. Roadway Express, Inc.,
923 F.2d 59, 61 (6th Cir. 1991). When a petitioner
invites an error in the trial court, he is precluded
1

Respondent argues that Petitioner failed to raise this same issue in the Ohio Court of Appeals.
Return of Writ (ECF No. 7, PageID# 45.) This Court does not agree. Referring to federal law on
the issue, Petitioner specifically argued that the trial court failed to determine whether he had
knowingly waived his right to confront his accusers by consenting to stipulations. Brief of
Appellant (ECF No. 7-1, PageID# 304.)
15

from seeking habeas corpus relief for that error. See
Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.
1989); Draughn v. Jabe, 803 F.Supp. 70, 75 (E.D.
Mich.1992).
275 F.3d 478, 485-86. In accordance with this doctrine, “ ‘[a]n
attorney cannot agree in open court with a judge’s proposed course
of conduct and then charge the court with error in following that
course.”’ United States v. Aparco-Centeno, 280 F.3d 1084, 1088
(6th Cir. 2002) (quoting United States v. Sloman, 909 F.2d 176,
182 (6th Cir. 1990). See also L.S. v. Brika, 416 F.3d 514, 525 (6th
Cir. 2005) (counsel’s decision to permit the judge to speak to jury
in jury room was an invited error that did not result in prejudice to
defendant), cert. denied, 2006 WL 387120 (U.S. Feb. 21, 2006).
Id.; see also Young v. Larose, No. 4:13-cv-220, 2015 WL 5233417, at *13 (N.D. Ohio Sept. 8,
2015) (citing Fulcher v. Motley, 444 F.3d 791, 798-99 (6th Cir. 2006) (other citations omitted)
(concluding that the petitioner waived claim under doctrine of invited error).
Petitioner argues that the state appellate court did not enforce the procedural rule at issue,
but denied the claim on the merits. Traverse (ECF No. 28, PageID# 1859.) This Court does not
agree. A state appellate court’s alternative ruling on the merits does not preclude enforcement of
the procedural default. See Skatzes v. Warden, Mansfield Correctional Institution, No. 3:09-cv289, 2017 WL 2374434, at *7-8 (S.D. Ohio June 1, 2017) (citing Harris v. Reed, 489 U.S. 255,
264 (1989); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000); Wogenstahl v. Mitchell, 668 F.3d
307, 327 (6th Cir. 2012); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003)).
Petitioner also claims that the state appellate court erroneously enforced the doctrine of
invited error, because neither he nor his attorney signed the agreed-to stipulations, and he did not
knowingly waive his right to confront his accusers. Traverse (ECF No. 28, PageID# 1860.)
“Waiver of the right to confront one’s accuser is evaluated according to the standards for
waiving any constitutional right as enunciated in Johnson v. Zerbst, 304 U.S. 458, 464 (1938),
and requires ‘an intentional relinquishment or abandonment of a known right or privilege.’”
16

Carter v. Sowders, 5 F.3d 975, 980-812 (6th Cir. 1993). “It is true that a waiver cannot be based
on statements made by a defendant’s lawyer who has not first consulted with his or her client.”
United States v. Marshall, 248 F.3d 525, 535 (6th Cir. 2001) (citing Carter) (the defendant’s
absence from the courtroom constituted a knowing and voluntary waiver of his constitutional
right to be present, where he offered no explanation for his absence and was present when the
court announced the time at which court proceedings would resume the next day).

However,

“[w]aiver may also be implied from the defendant’s conduct.” Id. (citing Finney v. Rothgerber,
751 F.2d 858, 862 (6th Cir. 1985) (holding that despite the defendant’s failure to expressly waive
his presence, waiver was effected because “[i]t is wholly incredible to suggest that petitioner,
who was at liberty on bail, had attended the opening session of his trial, and had a duty to be
present at the trial . . . entertained any doubts about his right to be present at every stage of his
trial.”) (internal citation omitted). A majority of the Circuit Courts of Appeals to consider the
issue have held that “‘a defendant’s attorney can waive his client’s Sixth Amendment right so
long as the defendant does not dissent from his attorney’s decision, and so long as it can be said
that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy.’”
United States v. Williams, 632 F.3d 129, 133 (4th Cir. 2011) (citing United States v. Cooper, 243
F.3d 411, 418 (7th Cir. 2001); Janosky v. St. Amand, 594 F.3d 39, 48 (1st Cir. 2010); United
States v. Gamba, 541 F.3d 895, 900 (9th Cir. 2008) (“defense counsel may waive an accused’s
constitutional rights as a part of trial strategy”); United States v. Plitman, 194 F.3d 59, 63 (2d
Cir. 1999); United States v. Reveles, 190 F.3d 678, 683 n.6 (5th Cir. 1999); Hawkins v.
Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999)); see also United States v. Cooper, 243 F.3d
411, 418 (7th Cir. 2001) (same) (citing United States v. Reveles, 190 F.3d 678, 683 n.6 (5th Cir.

17

1999); United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999); Hawkins v. Hannigan, 185 F.3d
1146, 1155–56 (10th Cir. 1999)).
In Carter, 5 F.3d at 975, to which Petitioner refers, the defendant was unrepresented by
counsel and not present during a deposition of a critical witness, who later introduced as
evidence against him at trial. “The taping of the deposition was, for all practical purposes, the
only time ‘evidence on the defendant’s guilt’ was taken.” Id. at 979. Carter’s attorney thereafter
objected to admission of the deposition, arguing that it violated Carter’s right to confront his
accuser. Id. at 978. The United States Court of Appeals for the Sixth Circuit granted the petition
for a writ of habeas corpus, as Carter had not been had not been notified about the deposition or
consented to the waiver of his rights under the Confrontation Clause. Id. at 981-82.
Here, however, unlike the scenario in Carter, Petitioner’s attorney agreed to various
stipulations regarding undisputed facts that did not affect the theory of the defense, in open court,
on the record, and in the Petitioner’s presence. Trial Transcript, Volume I (ECF No. 7-2,
PageID# 516-26); see Brief of Appellant (ECF No. 7-1, PageID# 303-04) (18 stipulations were
admitted as joint Exhibits 1-20). The Sixth Circuit has stated that a waiver may be implied and
need not be express, so long as evidence in the record supports that implication. Carter, 5 F.3d
at 981. The record in this case supports the appellate court’s conclusion that Petitioner consented
to counsel’s stipulations. Under these circumstances, the Court concludes that the state appellate
court did not erroneously enforce doctrine of invited error. Petitioner therefore has procedurally
defaulted ground C. Further, Petitioner has failed to establish cause for his procedural default.
Moreover, the record does not indicate that Petitioner can establish that he is actually innocent so
as to permit a merits review of this claim. Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
Ground C is waived.

18

Merits
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court’s review of state-court
determinations. The United State Supreme Court 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 state-court rulings, and demands that statecourt decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e)(1) provides:
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.
“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner
must show that the state court’s decision was “contrary to, or involved an unreasonable
19

application of, clearly established federal law”); 28 U.S.C. § 2254(d)(2) (a petitioner must show
that the state court relied on an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”). The United States Court of Appeals for the Sixth
Circuit explained these standards as follows:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
“In order for a federal court to find a state court’s application of [Supreme Court
precedent] unreasonable, . . . [t]he state court’s application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. 86 (“A
state court’s determination that a claim lacks merit precludes federal habeas relief so long as “
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court’s analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
20

(“ ‘[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and not whether the state court considered
and discussed every angle of the evidence.’“ (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc))); see also Nicely v. Mills, 521 Fed.Appx. 398, 403 (6th Cir. 2013)
(considering evidence in the state court record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of state court’s decision). Relatedly, in
evaluating the reasonableness of a state court’s ultimate legal conclusion under § 2254(d)(1), a
court must review the state court’s decision based solely on the record that was before it at the
time it rendered its decision.

Pinholster, 563 U.S. at 181.

Put simply, “review under §

2254(d)(1) focuses on what a state court knew and did.” Id. at 182.
Grounds A and B
In ground A, Petitioner asserts that the trial court improperly admitted hearsay evidence
against him.

Specifically, Petitioner complains that Officer Stephen Asch testified that he

responded to a robbery in progress, got a description of a black male who had robbed the
McDonald’s at gunpoint, and spoke a store manager who told him that a man wearing a ski mask
stuck a gun in her side and forced her into the office. See Brief of Appellant (ECF No. 7-1,
PageID# 286); Motion to Amend/Correct Petition for Writ of Habeas Corpus (ECF No. 10,
PageID# 1729.).

Petitioner also complains that Detective Kenneth Kirby testified that he

obtained information that the July 12, 2013, Red Robin robbery “was similar to all the other
restaurant robberies that we were investigating at the time, and that this possibly could be the
suspect that was responsible for the other ones.” Brief of Appellant (ECF No. 7-1, PageID# 288.)
It “[l]ed us to believe that this was the – what we considered to be the ‘Restaurant-Closer
Robber.’” Id. Finally, Petitioner complains that Detective Tom Clark testified that he (Clark)

21

listened to telephone calls made between February and July from a telephone number that
Petitioner had indicated belonged to him, referring to the female who answered the phone as
“Perri.” Trial Transcript, Volume V (ECF No. 7-8, PageID# 1207-08.) In ground B, Petitioner
asserts that admission of the foregoing testimony violated the Confrontation Clause.
To the extent that Petitioner here asserts an alleged violation of state law or state
evidentiary rules, that assertion alone fails to provide a basis for federal habeas corpus relief. 28
U.S.C. § 2254(a). As a general matter, errors of state law, especially the improper admission of
evidence, do not support a writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62 (1991);
see also Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). Instead, to be entitled to habeas
relief, a petitioner must show that the evidentiary ruling was “so egregious that it resulted in a
denial of fundamental fairness.” Giles, 449 F.3d at 704 (citing Baze v. Parker, 371 F.3d 310,
324 (6th Cir. 2004)). Stated differently, “ ‘[e]rrors by a state court in the admission of evidence
are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a
criminal case as to deny the defendant the fundamental right to a fair trial.’” Biros v. Bagley,
422 F.3d 379, 391 (6th Cir. 2006) (citing Roe v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)).
Petitioner cannot meet this burden here.
The state appellate court denied Petitioner’s claim as follows:
Smith argues that the trial court improperly exposed the jury to
inadmissible hearsay that the court allowed as background
information. “[T]rial court has broad discretion in admission and
exclusion of evidence, and unless it has clearly abused its
discretion and defendant has been materially prejudiced thereby.”
State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
Such hearsay evidence must also meet the standard provided by
Evid.R. 403(A). State v. Faris, 10th Dist. No. 93APA08–1211
(Mar. 24, 1994). Evid.R. 403(A) states: “Although relevant,
evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” A statement that goes to an
22

element of the offense poses a danger of being highly prejudicial.
Faris; see also State v. Blevins, 36 Ohio App.3d 147, 521 N.E.2d
1105 (10th Dist.1987).
The statements being questioned on appeal by and large were
background statements about the facts of the robberies. The fact
that the robberies occurred was never in serious dispute. No
prejudicial error could be found by this court based upon
statements that merely showed a robbery or robberies occurred
when that issue was not in serious debate.
For admission of the statements to be prejudicial error, the
statements had to go to identification of Smith as the robber.
Further, the trial court judge limited the jury’s consideration of any
such statements to background, i.e., that a robbery occurred.
We do not find prejudicial error based upon the statements
admitted. The first assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *4-5. Ground A therefore fails to provide a basis for relief.
Petitioner also asserts, however, that admission of the statements referred to violated the
Confrontation Clause. The Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to physically confront and cross examine adverse witnesses at all
stages of the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). In Crawford v. Washington, 541
U.S. 36 (2004), the United States Supreme Court abrogated its holding in Ohio v. Roberts, 448
U.S. 56 (1980), and re-defined the test for determining whether admission of hearsay statements
violates the Confrontation Clause.

The Supreme Court in Crawford held that testimonial

statements of a witness who does not appear at trial are inadmissible unless the witness was
unavailable to testify and the defense had a prior opportunity to cross examine the witness.
Under Crawford, “[w]here testimonial evidence is at issue ... the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for cross examination.”
Id. at 1366. The Supreme Court, however, left the application of Roberts to cases involving
nontestimonial hearsay untouched:
23

[“Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers’ design to afford the States flexibility in their
development of hearsay law-as does Roberts, and as would an
approach that exempted all such statements from Confrontation
Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 124 S.Ct.
1354, 158 L.Ed.2d 177. As the courts applying Crawford have
observed,
[t]he lynchpin of the Crawford decision thus is its
distinction between testimonial and nontestimonial
hearsay; simply put, the rule announced in
Crawford applies only to the former category of
statements....
[U]nless a particular hearsay statement qualifies as
“testimonial,” Crawford is inapplicable and Roberts
still controls.
Coy v. Renico, 414 F.Supp.2d 744, 773 (E.D.Mich. 2006) (quoting United States v. Hendricks,
395 F.3d 173, 179 (3d Cir. 2005)); Horton v. Allen, 370 F.3d 75, 83–84 (1st Cir. 2004). The
Supreme Court declined to define a comprehensive definition of the term “testimonial,” but
indicated, at a minimum, the term includes “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations. These are the modern practices with
closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541
U.S. at 68. A casual remark to an acquaintance, business records, and statements made in
furtherance of a conspiracy do not constitute testimonial statements within the protection of the
Sixth Amendment. Id. at 51–55. In the Sixth Circuit, the test for determining whether a
statement is deemed testimonial within the meaning of Crawford is:
... whether the declarant intends to bear testimony against the
accused. That intent, in turn, may be determined by querying
whether a reasonable person in the declarant’s position would
anticipate his statement being used against the accused in
investigating and prosecuting the crime.

24

United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). “[A]dmission of a testimonial
statement in and of itself is not enough to trigger a violation of the Confrontation Clause.... [T]he
statement must be used as hearsay-- in other words, it must be offered for the truth of the matter
asserted.” United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005). Moreover, “[a] violation of
the Confrontation Clause does not warrant automatic reversal but, rather, is subject to harmlesserror analysis.” Blackston v. Rapelje, 780 F.3d 340, 359 (6th Cir. 2015) (citing Delaware v. Van
Arsdall, 475 U.S. 673, 681-82 (1986)).
Applying these concepts, the Court concludes that the Confrontation Clause does not bar
admission of the complained of testimony and that the state court’s did not unreasonably apply
or contravene federal law or base its decision on an unreasonable determination of the facts in
light of the evidence presented in rejecting Petitioner’s federal claim. 28 U.S.C. § 2254(d).
Clark’s statement that he had listened to telephone calls during which time a man referred to the
woman answering the phone as “Perri” does not constitute a testimonial statement within the
meaning of Crawford. See United States v. Thurman, 915 F. Supp. 2d 836, 855 (W.D. Ky. Jan.
7, 2013) (recorded telephone conversations from jailhouse inmate to the defendant are nontestimonial and do not implicate the Confrontation Clause); McCray v. Curtin, No. 2:08-cv15166, 2013 WL 4530510, at *7 (E.D. Mich. Aug. 27, 2013) (recorded conversations between
the petitioner and a prison inmate are non-testimonial and do not implicate the Confrontation
Clause) (citing Davis, 547 U.S. at 825). “Remarks made to family members or acquaintances are
generally considered nontestimonial.” Id. (citing Crawford, 541 U.S. at 51-52; Desai v. Booker,
538 F.3d 424, 427 (6th Cir. 2008)). Likewise, the complained of statements by Officer Asch and
Detective Kirby neither violated the Confrontation Clause nor prejudiced the Petitioner,
particularly in view of the other evidence presented. See Brief of Appellant (ECF No. 7-1,

25

PageID# 286); Traverse (ECF No. 10, PageID# 1729.). “[T]estimony that does not reveal any
specific statement. . . and merely provides background information regarding the course of
investigation does not violate the Confrontation Clause.” United States v. Pugh, 273 F. App’x
449, 456 (6th Cir. 2008) (citing United States v. Cromer, 389 F.3d 662, 676-77 (6th Cir. 2004)
(concluding that testimony by police officer that he “had information” about drug dealing that
occurred at a particular address permissible as background information, even though jury could
link that address to the defendant)). Detective Kirby’s statement that he believed that the
perpetrator of the Red Robbin robbery had also committed prior robberies in the area, in view of
the similar modus operandi of the offenses, did not constitute impermissible hearsay. Moreover,
the trial court instructed the jury that the statements were “[F]or background only, ladies and
gentlemen, so you can understand what the detective did. Don’t use it as evidence of whether or
not Mr. Smith committed the robbery.” Trial Transcript, Volume VI (ECF No. 7-7, PageID#
1422.)
“In determining whether a habeas petitioner is entitled to relief because of a
Confrontation Clause violation, we examine ‘whether the error had a substantial and injurious
effect or influence in determining the jury’s verdict.’” Sykes v. Wolfenbarger, 448 Fed.Appx.
563, 569 (6th Cir. Nov. 21, 2011) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The
challenged evidence constituted an insignificant part of the evidence against Petitioner.
Moreover, defense counsel stipulated to the same information provided by Officer Asch
regarding the May 7, 2012, robbery of the McDonald’s on 3554 South High Street, and such
evidence was merely cumulative. See Transcript, Volume III (ECF No. 7-4, PageID# 846-47.)
Ground C fails to provide a basis for relief.

26

Ground D
In ground D, Petitioner asserts that he was denied the effective assistance of trial counsel,
because his attorney agreed to multiple stipulations that relieved the State of its burden of proof;
suffered a conflict of interest in view of the pending criminal charges against him; failed to
interview witnesses or prepare for trial; improperly agreed to the authentication of Sprint
telephone records; failed to object to Detective Clark’s qualification as an expert in cell phone
tower technology; failed to file a motion for judgment of acquittal on the Golden Corral robbery
and the Red Robin robbery; failed to pursue meaningful plea negotiations; failed to file a motion
to sever the charges related to the Red Robin robbery from the other charges against him; failed
to object to admission of State’s Exhibit D2, as containing information not presented at trial; and
failed to review a disk containing cellular telephone record information prior to its admission
into evidence.
The state appellate court rejected Petitioner’s claim of the denial of the effective
assistance of trial counsel as follows:
The standards to be applied in determining if a criminal defendant
has been denied effective assistance of counsel are set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Four principle holdings are contained in the
case:
1. The Sixth Amendment right to counsel is the right to the
effective assistance of counsel, and the benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.
2. A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction * * * requires that
the defendant show, first, that counsel’s performance was deficient
and, second, that the deficient performance prejudiced the defense
so as to deprive the defendant of a fair trial.

27

3. The proper standard for judging attorney performance is that of
reasonably effective assistance, considering all the circumstances.
When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.
Judicial scrutiny of counsel’s performance must be highly
deferential, and a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. A court must indulge a strong presumption that counsel’s
conduct fall within the wide range of reasonable professional
assistance.
4. With regard to the required showing of prejudice, the proper
standard requires the defendant to show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome. A court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.
The Strickland standards were adopted by the Supreme Court of
Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989) (An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment). The
application to this case of the requirement of the Strickland case
that an appellate court must find the outcome of the trial would
have been different if defense counsel had conducted the trial
differently leads us to overrule the fourth assignment of error.
The evidence that Smith was involved in a series of armed
robberies was overwhelming. We do not find it necessary to set
forth all the evidence here, as to the robberies for which Smith was
convicted, but note that Smith was arrested while fleeing from the
last robbery wearing the clothes he had worn in several of the
robberies and carrying the firearm he had used in several of the
robberies. The robberies had a strikingly consistent method of
operation, namely the robbery of a restaurant at or after closing
time. The employees, forced at gunpoint to assist the robber, were
handled in similar ways. The surveillance tapes of several of the
robberies revealed other striking similarities. Really the only
question was whether Smith would be convicted of some robbery
charges following a longer trial or a shorter trial. We note, in

28

addition, that the jury found Smith not guilty of six of the robbery
incidents as a result of trial counsel’s representation.
The fourth assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *2-3.
Preliminarily, Petitioner contends that the Court should conduct a de novo review,
because the state appellate court failed to apply the appropriate standard of review for
determining whether he had established prejudice, as set forth in Strickland. Traverse (ECF No.
28, PageID# 1862-63.) As noted above, the state appellate court explicitly set forth the correct
standard for assessing prejudice in its initial analysis of Petitioner’s claim of the denial of the
effective assistance of counsel. However, the appellate court later indicated that application of
Strickland required it to find that the outcome of the trial would have been different, had counsel
conducted the trial differently, and overruled Petitioner’s claim. The Supreme Court has noted
that “‘the difference between Strickland’s prejudice standard and a more-probable-than-not
standard is slight and matters only in the rarest of cases.’” Wright v. Burt, 665 Fed.Appx. 403,
409 (6th Cir. 2016) (citing Harrington v. Richter, 562 U.S. 86, 111-12 (2011)). However,
“[b]ecause the state court articulated the correct standard when it began its analysis, and because
this case is not one of those ‘rare’ situations in which the ‘slight’ difference between the
standards matters,” and the Court remains unconvinced that the record indicates that the state
court’s decision contravened clearly established federal law on this basis See id. (citation
omitted). “After all, this Court must apply a highly deferential standard of review, giving the
state court decision the benefit of the doubt and presuming that it knew and followed the law.”
Gosnell v. Hodge, No. 2:07-cv-130, 2010 WL 3521748, at *5 (E.D. Tenn. Sept. 7, 2010) (citing
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (concluding that the state court did not repudiate
the governing rule in Strickland by its omission of the words “reasonable probability” from its
29

recitation of the prejudice test). But see Vasquez v. Bradshaw, 345 Fed.Appx. 104, 110-11 (6th
Cir. Sept. 2, 2009) (conducting a de novo review, when Ohio Court of Appeals repeatedly
referred to out-come determinative test as standard to be applied under Strickland). In any event,
and exercising the utmost of caution, the Court proceeds to analyze the merits of this claim.
“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 principals governing
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his
counsel’s performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687;
Hale v. Davis, 512 F. App’x 516, 520 (6th Cir. 2013).

A petitioner “show[s] deficient

performance by counsel by demonstrating ‘that counsel’s representation fell below and objective
standard of reasonableness.” Poole v. MacLaren, No. 12–1705, 547 F. App’x 749, 2013 WL
6284355, at *5 (6th Cir. Dec. 5, 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.” Poole, 2013 WL 6284355 at *5 (quoting 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).
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
30

standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy, 521
U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and
when the two apply in tandem, review is ‘doubly’ so, Knowles, 556
U.S., at 123, 129 S.Ct., at 1420. The Strickland standard is a
general one, so the range of reasonable applications is substantial.
556 U.S., at 123 [129 S.Ct., at 1420]. Federal habeas courts must
guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When §
2254(d) applies, the 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.”
Premo v. Moore, 562 U.S. 115, 122-23 (2011). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.” Harrington, 562 U.S. at 101.
Where a claim of ineffective assistance arises from the plea bargaining stage of criminal
proceedings, “the second part of the Strickland analysis, i.e., the ‘prejudice’ prong, ‘focuses on
whether counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Sawaf v. United States, 570 F. App’x 544, 547 (6th Cir. 2014) (citing Hill v. Lockhart,
474 U.S. 52, 59 (1985); Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S.
133, 146-47 (2012); Fitzpatrick v. Robinson, 723 F.3d 624, 634 (6th Cir. 2013); Cauthern v.
Colson, 736 F.3d 465, 483 (6th Cir. 2013)). The Petitioner must establish that,
but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and sentence
that in fact were imposed.
Lafler, 566 U.S. at 164. When a state prisoner asks a federal court to set aside a sentence due to
ineffective assistance of counsel during plea bargaining, this Court must apply a “doubly

31

deferential” standard of review that gives both the state court and the defense attorney the benefit
of the doubt. Marsh v. Bradshaw, No. 4:14CV2206, 2017 WL 68514, at *10 (N.D. Ohio Jan. 6,
2017) (quoting Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting Pinholster, 563 U.S. at 188).
The record reflects that the parties discussed the status of plea negotiations in court and in
the presence of the Petitioner just prior to the start of trial. The prosecutor indicated that the
lowest sentence he would consider in terms of a potential plea agreement would be a jointly
recommended sentence of 27 years in prison. Trial Transcript, Volume I (ECF No. 7-2, PageID#
533.) Defense counsel stated, however, that he had discussed the issue with Petitioner, including
the potential sentence Petitioner faced, but Petitioner had no interest in entertaining a guilty plea.
COURT: Mr. Armengau, have you had an opportunity to go over
those range of numbers on sentencing, the rather heavy sentence if
he loses on anything, and, obviously, that’s stacked potentially a
lot, if 18 charges got proven?
MR. ARMENGAU: Yeah. I did not share with James this
morning that the offer was 27 years on the joint rec. He and I
discussed before, and certainly we’ve been in court before and
discussed. . . . So he is aware of what the magnitude is of potential
convictions, and, frankly, the amount of charges – I mean for lack
of a better term, it’s insane. So, you know, that is problematic.
I just know from our discussions before and, again, just talking
about one conviction or two convictions, you know, at the time
there was nothing even in the 20-year range that was appealing to
him. He’s been in for some time.
. . . [T]here’s just no, you know, there’s no potential light number
that we can come to. So the offer this morning is 27 years, you
know, but nothing in my discussions with James have led me to
believe that that would be up for consideration.
(PageID# 534-35.) Further, the trial court thereafter directly advised the Petitioner to consider
the State’s plea offer of 27 years, and to inform counsel if he changed his mind and wanted to
negotiate a plea agreement.

32

COURT: Mr. Smith, I’m not going to take time now to have you
talk any more to Mr. Armengau about a potential plea. You have
time during this trial to think about it as you watch the evidence
come in. I don’t know how long the state’s 27-year offer will lay
on the table, but that’s such a long offer that I assume it will be
there for a while.
If you decide that you want to negotiate toward maybe pleading
guilty to something in this case, tell Mr. Armengau, and we’ll
make sure you guys have time to talk privately, and then Mr.
Armengau and you have time to talk to the prosecutors.
Otherwise, we’ll assume that you just simply want to go to trial.
But you’re facing a lot of time. If you want to at some point pull
the plug and say, Okay, I’ll take the deal, we’ll give you time to
figure out what that deal is and so forth, okay?
DEFENDANT: (Nods yes.)
COURT: I assume, gentlemen, that at least for the first few days
of trial, the 27 offer stays on the table?
MR. ZEYEN: Yes, sir.
(PageID# 534-35.) Thus, the trial court explicitly advised Petitioner that the State’s plea offer of
27 years would remain open for at least a few days, that he faced a substantial prison term, and
that, should he change his mind, he needed to so advise the Court or his attorney. Nonetheless,
nothing in the record indicates that Petitioner ever expressed an interest in pleading guilty. “[A]
lawyer must not ‘override his client’s desire ... to plead not guilty.’” Marsh v. Bradshaw, No.
4:14-cv-2206, 2017 WL 68514, at *14 (quoting Brookhart v. Janis, 384 U.S. 1, 7–8 (1966); see
also Florida v. Nixon, 543 U.S. 175, 187 (2004) (A defendant has the “‘ultimate authority’” to
decide whether to “exercise or waiv[e] ... basic trial rights,” such a whether to plead guilty.”)
(quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). In view of this record, Petitioner has failed
to establish that, but for the ineffective performance, he would have entertained a guilty plea.

33

Moreover, decisions regarding what evidence to present and whether to call certain
witnesses “are generally presumed to be a matter of trial strategy.” Parker v. Curtin, No. 09-cv13329, 2010 WL 4940011, at *4 (E.D. Mich. Nov. 30, 2010) (citing Chegwidden v. Kapture, 92
F. App’x 309, 311 (6th Cir. 2004); Hutchinson v. Bell, 303 F.3d 720, 749 (6th Cir. 2002)).
“There are countless ways to provide effective assistance in any given case,” and “[e]ven the best
criminal defense attorneys would not defend a particular client in the same way.” Marion v.
Woods, 663 Fed.Appx. 378, 384 (6th Cir. 2016) (quoting Strickland, 466 U.S. at 689). Petitioner
does not indicate, and the record does not reflect, the nature of any further investigation that
would have assisted the defense. Likewise, the record does not indicate that any potential
defense witnesses could have assisted the defense.

“[T]he duty to investigate does not force

defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent
counsel may draw a line when they have good reason to think further investigation would be a
waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005) (citing Wiggins v. Smith, 539 U.S., at 525,
(further investigation excusable where counsel has evidence suggesting it would be fruitless);
Strickland, at 699, (counsel could “reasonably surmise ... that character and psychological
evidence would be of little help”); Burger v. Kemp, 483 U.S. 776, 794 (1987) (limited
investigation reasonable because all witnesses brought to counsel’s attention provided
predominantly harmful information).
Counsel’s failure to challenge Officer Clark’s qualification as an expert on cellular
telephone communications and agreement that the prosecutor did not need to fly in a witness
from Kansas in order to authenticate business telephone records from Sprint did not amount to
the denial of the effective assistance of counsel under the two-prong Strickland test. The record

34

fails to reflect that the prosecution would have been unable to authenticate the Sprint telephone
records, or produce a witness in order to do so:
[O]ur research would indicate that we could get those records in as
self-authenticating, as Sprint has sent us a certificate of
authenticity and a certificate saying these records are kept in the
ordinary course of business.
However, to be safe, we are also going to bring in a person from
Kansas where they’re located, fly them in to say those very things.
Mr. Armengau has agreed to stipulate as to the authenticity of
those records and that they are kept in the usual course of business
so that we do not need to bring in that business keeper from
Kansas City.
COURT: So you’re not bringing the Kansas person in, correct?
PROSECUTOR: . . . that is the agreement of the parties.
Trial Transcript, Volume I (ECF No. 7-2, PageID# 518.) Clark had undergone training from
2010 to 2011 on cellular phones and cell phone tower from the FBI. Trial Transcript, Volume V
(ECF No. 7-6, PageID# 1100-1101.) He attended a 40 hour course in 2012 in Indiana on cell
phone investigation technology with the Public Agency Training Counsel. (PageID# 1101.) He
attended three courses with the National White Collar Crime Center, all on cell phone
technology and data recovery.

(Id.)

Additionally, in 2013, he took another cell phone

technology course presented by a detective from the FBI, and had attended a second course on
cell phone technology and internet investigations through Mobile Forensic Challenges on IOS
and Android. (PageID# 1102.) He had previously testified about cell phone technology in
Delaware and Fairfield counties, the Franklin County Grand Jury, and the Franklin County
Juvenile Court. (Id.) He had previously been found to be an expert witness in this area in
Delaware County and Fairfield County. (PageID# 1103.) He conducted cell phone technology
forensics for the Columbus Police Department. (PageID# 1104.) It appears unlikely that the

35

trial court would have sustained an objection to Clark’s qualification as an expert witness or
stricken Clark’s testimony on this basis.
Further, and contrary to Petitioner’s allegation here, the record reflects that counsel
moved for a judgment of acquittal on all charges at the close of the State’s case.

Trial

Transcript, Volume VI (ECF No. 7-7, PageID# 1485-86.) The trial court dismissed Counts 78
and 79. (PageID# 1493.) However, the trial court rejected the motion as it applied to the
remaining charges against Petitioner, despite counsel’s argument that the charges involving Bart
Jefferson should be dismissed in view of Jefferson’s description of the perpetrator. (PageID#
1488-93.) Therefore, counsel did not act in a constitutionally unreasonable manner in this
regard.
Petitioner claims that his attorney improperly failed to object to admission of State’s
Exhibit D-2, and failed to review cellular telephone records that had been prepared by Detective
Clark. Exhibit D-2 referred to the disk of the telephone records that Clark obtained from Sprint.
Trial Transcript, Volume V (ECF No. 7-6, PageID# 1129.) Clark testified at length regarding his
analysis of these phone records. Petitioner does not indicate, and the record does not reflect, the
manner in which such information would have been inadmissible under Ohio law. The trial
court provided printed copies of the material contained in Exhibit D-2 to the jury during
deliberations. Trial Transcript, Volume VII (ECF No. 7-8, PageID# 1650.) Defense counsel
indicated that he knew “exactly” what the evidence entailed. (PageID# 1651.) Defense counsel
cross-examined Clark regarding his analysis.

Trial Transcript, Volume V (ECF No. 7-6,

PageID# 1210-1246.) The record does not reflect that counsel performed in a constitutionally
ineffective manner in regard to State’s Exhibit D-2. The record likewise does not reflect that

36

Petitioner can establish prejudice, as that term is defined under Strickland, based on defense
counsel’s failure to object to the keeping of trial exhibits.
Similarly, the Court is not persuaded that counsel acted in a constitutionally unreasonable
manner by making a strategic choice to stipulate to certain facts indicating that the various
robberies charged had taken place. The State would not have had difficulty in establishing
undisputed facts regarding the occurrence of the robberies charged. The stipulations in no way
prevented counsel from arguing that the State nonetheless could not establish Petitioner’s
identify as the perpetrator of the various robberies charged. Notably, the jury found Petitioner
not guilty of charges related to six other robberies. Judgment Entry (ECF No. 7-1, PageID#
255.) By agreeing to stipulate to facts indicating that the robberies had occurred, counsel
prevented lengthy testimony, and could instead focus the jury’s attention on this pivotal issue in
the case – i.e., that being whether the State could establish Petitioner’s identity as the perpetrator
of the offenses charged, in view of the lack of any eyewitness identification or physical evidence
prior to the Red Robin robbery. Cross-examination of the prosecution’s witnesses would have
done little to affect such defense.

Further, and despite counsel’s stipulations, the State

nonetheless presented the testimony of alleged victims, whom counsel was able to cross-examine
regarding their identification. See, e.g., Trial Transcript, Volume IV (ECF No. 7-5.) Defense
counsel indicated:
When we agreed to stipulate to a multitude of facts, we did it for
two reasons. No. 1, obviously, to streamline this for trial purposes,
but, two, also to avoid the state going through what would amount
to a dog-and-pony show, having to bring in witnesses to basically
testify about the same things.
. . . [O]ne of the. . . bases for having agreed to stipulate to so many
facts was the totality of descriptions that was included in the
sequence of the incidents. And I think when you have a case such
as this where it is circumstantial. . . you’re going to focus on. . .
37

discrepancies in description. . . .[T]hat’s what the case is all about,
description in identification.
Trial Transcript, Volume II (ECF No. 7-3, PageID# 548.) During opening statement, defense
counsel set forth the theory of the defense, i.e., that the prosecution had no evidence linking
Petitioner to any of the robberies charged, and that although the State had attempted to tie him to
the robberies by use of his cell phone records, other robberies had been taking place throughout
Columbus during the same time frame, with victims giving the same general physical
description, and the evidence failed to establish Petitioner’s guilt. (PageID# 577-78.)
[T]he descriptions you’re going to get are descriptions that. . . vary
of the suspects from 20 years old up to 40 years old.
You’re going to see the descriptions. You’re going to get some of
these suspects on some of these robberies are 5 foot 11 to 6 foot 6.
Some of the descriptions you’re going to get of the suspects are
180 pounds up to 250 pounds.
They’re more than just
inconsistencies. I would suggest to you they’re impossibilities.
(PageID# 578.) The fact that this strategy, ultimately, did not succeed does not amount to the
constitutionally ineffective performance.

“Indeed, ‘strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable. . . .’”
Williams v. Jenkins, No. 1:15-cv-00567, 2016 WL 2583803, at *13 (N.D. Ohio Feb. 22, 2016)
(quoting Strickland, 466 U.S. at 690)).
The record does not support Petitioner’s claim that the trial court would have granted a
motion to sever the charges involving the Red Robin from the other crimes charged. Ohio
Criminal Rule 8(A) provides:
Joinder of Offenses. Two or more offenses may be charged in the
same indictment, information or complaint in a separate count for
each offense if the offenses charged, whether felonies or
misdemeanors or both, are of the same or similar character, or are
based on the same act or transaction, or are based on two or more
acts or transactions connected together or constituting parts of a
38

common scheme or plan, or are part of a course of criminal
conduct.
“It is a general rule that ‘joinder of offenses is favored to prevent successive trials, to minimize
the possibility of incongruous results in successive trials before different juries, to conserve
judicial resources, and to diminish inconvenience to witnesses.’” State v. Barstow, No. 02CA27,
2003 WL 23529694, at *7 (Ohio App. 4th Dist. Dec. 30, 2003) (citations omitted). “Further, the
Supreme Court of Ohio has indicated that joinder is to be ‘liberally permitted.’” Id. (citing State
v. Schaim (65 Ohio St.3d 51, 58 (1992)). A criminal defendant may seek severance of the
charges under Ohio Criminal Rule 14, which provides in relevant part as follows:
If it appears that a defendant or the state is prejudiced by a joinder
of offenses or of defendants in an indictment, information, or
complaint, or by such joinder for trial together of indictments,
informations or complaints, the court shall order an election or
separate trial of counts, grant a severance of defendants, or provide
such other relief as justice requires.
“Thus, a court is required to sever the charges when prejudice will result from joinder of offenses
at trial.” State v. Andrews. No. 1-05-70, 2006 WL 2044942, at *7 (Ohio App. 3rd Dist. July 24,
2006).
When a defendant claims that he was prejudiced by the joinder of
multiple offenses, a court must determine (1) whether evidence of
the other crimes would be admissible even if the counts were
severed, and (2) if not, whether the evidence of each crime is
simple and distinct. State v. Hamblin (1988), 37 Ohio St.3d 153,
158–159, 524 N.E.2d 476, 481–482; Drew v. United States
(C.A.D.C.1964), 331 F.2d 85. If the evidence of other crimes
would be admissible at separate trials, any “prejudice that might
result from the jury’s hearing the evidence of the other crime in a
joint trial would be no different from that possible in separate
trials,” and a court need not inquire further. Drew v. United States,
331 F.2d at 90. See United States v. Riley (C.A.8, 1976), 530 F.2d
767 (inquiry need not proceed further).

39

State v. Schaim, 65 Ohio St.3d at 59. The government argued, and the evidence reflected, that all
of the robberies charged occurred in a similar manner, and had been committed by the same
individual. Under these circumstances, it does not appear that defense counsel could have
successfully obtained a severance of the charges. See, e.g., State v. Sullivan, No. 10AP-997,
2011 WL 6202357, at *6-7 (Ohio App. 10th Dist. Dec. 13, 2011) (no severance required on
multiple robbery charges which were geographically and temporally linked and followed a
similar pattern as evidence of each could have been introduced under Ohio Evidence Rule
404(B)); State v. Wilson, No. 10AP-251, 2011 WL 345636, at *5 (Ohio App. 10th Dist. Feb. 1,
2011) (no severance required on multiple robberies committed under similar circumstances)
(citations omitted); State v. Andrews, 2006 WL 2044942, at *7 (no severance required on
robbery charges that occurred on same date, in close proximity, under similar circumstances goes
to demonstrate proof of intent and plan); State v. Payne, Nos. 02AP-723, 02AP-725, 2003 WL
22128810, at *8 (Ohio App. 10th Dist. Sept. 16, 2003) (no severance required on multiple
robberies).
Petitioner maintains that his attorney suffered a conflict of interest in view of the pending
criminal charges against him. A criminal defendant has a Sixth Amendment right to conflict-free
representation. Gillard v. Mitchell, 445 F.3d 883, 890 (6th Cir. 2006) (citing Smith v. Anderson,
689 F.2d 59, 62-63 (6th Cir. 1982)). A claim that counsel labored under a conflict of interest is
at base a claim governed by Strickland. Ahmed v. Houk, No. 2:07-cv-658, 2014 WL 2709765, at
*25 (S.D. Ohio June 16, 2014) (citing Brooks v. Bobby, 660 F.3d 959, 963-64 (6th Cir. 2011). In
order to obtain relief, a petitioner must establish that his attorney “actively represented
conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s
performance.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005) (citations omitted). In certain

40

contexts, prejudice is presumed where counsel labored under an actual conflict of interest. See
Cuyler v. Sullivan, 446 U.S. 335, 349 (1980); Holloway v. Arkansas, 435 U.S. 475, 487–91
(1978). The presumption of prejudice applies only where the conflict arises from an attorney’s
representation of multiple concurrent or co-defendants in the same or separate proceedings. See
Ahmed v. Houk, 2014 WL 2709765, at *25 (citing Mickens v. Taylor, 535 U.S. 162, 174–76
(2002); Satterwhite v. Texas, 486 U.S. 249, 256–58 (1988); Jalowiec v. Bradshaw, 657 F.3d 293,
314–15 (6th Cir. 2011), McElrath v. Simpson, 595 F.3d 624, 630–31 (6th Cir. 2010); Stewart v.
Wolfenbarger, 468 F.3d 338, 350–54 (6th Cir. 2006); Gillard v. Mitchell, 445 F.3d 883, 890–91
(6th Cir. 2006); Whiting v. Burt, 395 F.3d 602, 617–20 (6th Cir. 2005); McFarland v. Yukins,
356 F.3d 688, 705–09 (6th Cir. 2004); Moss v. United States, 323 F.3d 445, 460–61 (6th Cir.
2003); Smith v. Hofbauer, 312 F.3d 809, 814–16 (6th Cir. 2002)).
That said, “[t]he argument is not frivolous that a defense lawyer within the sights of a
targeted criminal prosecution may find his personal interests at odds with his duty to a client.”
Reyes-Vejerano v. United States, 276 F.3d 94, 99 (1st Cir. 2002).
A lawyer in these circumstance[s], while dealing on behalf of his
client with the office that is prosecuting him personally may,
consciously or otherwise, seek the goodwill of the office for his
own benefit. A lawyer’s attempt to seek the goodwill of the
prosecutor may not always be in the best interest of the lawyer’s
client.
Armienti v. United States, 234 F.3d 820, 825 (2nd Cir. 2000). The United States Court of
Appeals for the Sixth Circuit has held that “[i]t is well-established that a conflict of interest may
arise where defense counsel is subject to a criminal investigation.” Moss v. United States, 323
F.3d 445, 472 (6th Cir. 2003) (citing Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993)
(no actual conflict of interest where defense counsel faced state charges and defendant faced
federal charges). See also United States v. Gonzales, No. 5:08-cr-250, 2013 WL 6191363, at *3
41

(N.D. Ohio Nov. 26, 2013) (“A conflict of interest will exist if the client and his attorney are
being investigated and prosecuted by the same office.”) (citing Taylor, 985 F.2d at 844).
Other circuits that have found an actual conflict under analogous
circumstances have also emphasized the fact that the same office
was prosecuting or investigating both the attorney and client. See,
e.g., Levy, 25 F.3d at 156 (2d Cir.1994) (finding actual conflict for
several reasons, including attorney’s prosecution on unrelated
charges by same office prosecuting defendant); Thompkins v.
Cohen, 965 F.2d 330, 332 (7th Cir.1992) (presuming that an actual
conflict may arise when defendant’s lawyer is under criminal
investigation by the same prosecutor’s office, but finding no
adverse effect); United States v. McLain, 823 F.2d 1457, 1463–64
(11th Cir.1987) (finding actual conflict where attorney was under
investigation by the same United States Attorney’s office
prosecuting the defendant and attorney had interest in prolonging
the trial to delay his own indictment), overruled on other grounds
as recognized by United States v. Watson, 866 F.2d 381, 385 n. 3
(11th Cir.1989).
United States v. Baker, 256 F.3d 855, 861-62 (9th Cir. 2001). However, the Petitioner must
establish that an “actual conflict of interest that adversely affected his defense.” Chester v. Horn,
2013 WL 2256218, at *4 (E.D. Penn. May 22, 2013); see also United States v. Beasley, 27
F.Supp.3d 793, 818-19 (E.D. Mich. June 12, 2014) (citing Moss, 323 F.3d at 471-73) (conflict of
interest claim fails where the petitioner cannot demonstrate any adverse effect or prejudice as a
result of the alleged conflict). In other words, Petitioner must “demonstrate that there was an
adverse impact, which had a probable negative effect on his case.” Chester v. Horn, 2013 WL
2256218, at *4. “In doing so, Petitioner must show actual actions, or inactions, that counsel took
or failed to take” based on the pending charges against him. Id. As discussed, Petitioner cannot
meet this burden here.
Ground D lacks merit.

42

Ground E
In ground E, Petitioner asserts that he was denied a fair trial because the jury received
articles and information during deliberations that had not been admitted into evidence at trial.
The state appellate court rejected this claim as follows:
The fifth assignment of error argues that the jury was allowed to
receive articles and information during deliberations that had not
been admitted into evidence. R.C. 2945.35 states:
Upon retiring for deliberation, the jury, at the discretion of the
court, may take with it all papers except depositions, and all
articles, photographs, and maps which have been offered in
evidence. No article or paper identified but not admitted in
evidence shall be taken by the jury upon its retirement.
The record shows that video files not admitted into evidence were
taken into deliberations but the jury was unable to play them. A
piece of evidence taken into deliberations which could not have
been prejudicial does not require a reversal. State v. Graven, 52
Ohio St.2d 112, 114, 369 N.E.2d 1205 (1977). We do not find any
indication in the record that the jury received any articles or
information not admitted into evidence.
The fifth assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *5. These findings are presumed to be correct. 28 U.S.C.
2254(e). Petitioner has failed to rebut the presumption of correctness afforded to factual findings
of the state appellate court. The trial transcript does not indicate that any evidence that had not
been submitted at trial was provided to the jury during deliberations. See Trial Transcript,
Volume (ECF No., PageID# 1628-39.)
Ground E fails to provide a basis for relief.
Ground F
In ground F, Petitioner asserts that the trial court violated due process by imposing
consecutive terms of incarceration on the firearm specifications associated with each robbery

43

offense. Respondent argues that this claim is waived, because Petitioner failed to fairly present
the claim as one of federal constitutional magnitude to the state appellate court.
In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly
present the substance of each claim to the state courts as a federal constitutional claim. Anderson
v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although this fair
presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S.
346, 349 (1989); O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is nevertheless rooted
in principles of federalism designed to allow state courts the opportunity to correct the State’s
alleged violation of a federal constitutional right that threatens to invalidate a state criminal
judgment.
In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one
of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional
right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of a constitutional
right, such as the right to a fair trial or to due process, are insufficient to satisfy the “fair
presentment” requirement. Id.
In presenting this claim to the state appellate court, Petitioner argued only that the trial
court had violated state law in imposing consecutive terms of incarceration on the firearm
specifications. He did not present any argument regarding the application of federal law to this
claim, refer to the Constitution, allege a violation of his due process rights, or cite Ohio cases
employing a federal constitutional analysis in support of this claim. See Brief of Defendant-

44

Appellant (ECF No. 7-1, PageID# 327). As discussed, to the extent that Petitioner asserts the
alleged violation of state law, this claim does not provide him a basis for relief. 28 U.S.C. §
2254(a). Moreover, the state appellate court addressed the claim only in terms of an alleged
violation of state law:
The sixth assignment of error addresses the sentences imposed as a
result of the firearm specification. Smith argues that the firearm
specification associated with each robbery was not required to be
served consecutively. That the two firearm specifications must be
run consecutively but the remainding firearm specifications could
run concurrently.
The statutes involving sentences for gun specifications have been
modified in recent years. They are now a mixture of mandatory
incarceration and incarceration based upon judicial discretion. R.C.
2929.14(B)(1)(a)(ii) states in part: “A prison term of three years if
the specification is of the type described in section 2941.145 of the
Revised Code that charges the offender with having a firearm.”
(Emphasis sic.) R.C. 2929.14(B)(1)(b) states in part: “[A] court
shall not impose more than one prison term on an offender under
division (B)(1)(a) of this section for felonies committed as part of
the same act or transaction.” R.C. 2929.14(B)(1)(g) states:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder,
murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the offender
is convicted of or pleads guilty to a specification of the type
described under division (B)(1)(a) of this section in connection
with two or more of the felonies, the sentencing court shall impose
on the offender the prison term specified under division (B)(1)(a)
of this section for each of the two most serious specifications of
which the offender is convicted or to which the offender pleads
guilty and, in its discretion, also may impose on the offender the
prison term specified under that division for any or all of the
remaining specifications.
In the context of Smith’s case, all agree that two three-year gun
specifications must be imposed and ordered to be served
consecutively. Appellate counsel for Smith argues that the trial
court judge mistakenly believed that all the gun specifications had
to be imposed to be served consecutively and asserts the trial court
judge was wrong based on R.C. 2929.141(B)(1)(g).
45

The trial court judge carefully followed the applicable sentencing
statutes and imposed a mandatory 72 years of imprisonment for the
gun specifications, imposing 6 years for each set of robberies for
which Smith was convicted. The applicable statute requires that the
gun specifications for each indictment be run consecutively. R.C.
2929.14(C)(1)(a) (“[I]f a mandatory prison term is imposed upon
an offender pursuant to division (B)(1)(a) of this section for having
a firearm * * * the offender shall serve any mandatory prison term
imposed under either division consecutively.”).
The trial court imposed only one year of incarceration for the many
RVO specifications and one maximum sentence of 11 years for the
aggravated robbery convictions, running all the other sentences
concurrent except for the gun specifications and the RVO.
Nothing about the sentence was incorrectly done. The sixth
assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *5-6.
Thus, this Court finds that Petitioner failed to present this claim to the state courts as a
federal constitutional claim. Further, the Court concludes that Petitioner has not established
cause for his failure in that regard. Petitioner therefore has waived this court’s review of any
such federal claim in these proceedings.
Ground F fails to provide a basis for relief.
Ground G
In ground G, Petitioner asserts that he was denied a fair trial based on cumulative error.
This claim fails to provide a basis for relief. “[T]he law of this Circuit is that cumulative error
claims are not cognizable on habeas because the Supreme Court has not spoken on this issue.”
Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (citing Moore v. Parker, 425 F.3d 250,
256 (6th Cir. 2005.)) This Court is bound by that ruling. See id.; Millender v. Adams, 376 F.3d
520, 529 (6th Cir. 2004) (citing Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002)) (same).

46

Ground H
In ground H, Petitioner asserts that the evidence is constitutionally insufficient to sustain
his convictions, due to the absence of any positive witness identification of him as the perpetrator
of the crimes charged, the lack of conclusive DNA or fingerprint evidence, and based on the
State’s alleged failure to link him to a cellular telephone used during the general time and
location of twelve of the robberies charged. The state appellate court rejected Petitioner’s claim
of insufficiency of the evidence:
The eighth and ninth assignments of error respectively allege that
there was an insufficiency of evidence to sustain the judgments as
to the ten robberies for which Smith was convicted and that the
convictions were against the manifest weight of the evidence.
When reviewing the sufficiency of the evidence to support a
conviction, an appellate court must examine the evidence that, if
believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. “The 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.” Id. The claim of insufficient evidence invokes
an inquiry about due process. It raises a question of law, the
resolution of which does not allow the court to weigh the evidence.
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
***
The analysis of the evidence to address the fourth assignment of
error also applies to the eighth and ninth assignments of error.
There is no serious question that the 18 aggravated robberies
occurred. The kidnapping charges each involved the restraint of
people at the restaurant. The robber was armed with a handgun,
apparently the same handgun found in Smith’s possession. The
handgun was operable. Smith had an extensive criminal record
which meant he was barred from possessing a firearm, let alone
using it to restrain and to rob personnel at closed or closing
restaurants. The jury clearly carefully evaluated the evidence

47

which was sufficient to support convictions as to more charges
than the charges which resulted in guilty verdicts.
The evidence was sufficient to support all the charges and
specifications. There was no evidence to support a different set of
verdicts. . . .
The eighth and ninth assignments of error are overruled.
State v. Smith, 2015 WL 872753, at *3-4.
Petitioner was convicted on charges of aggravated robbery and kidnapping with firearm
and repeat violent offender specifications2 on Counts 22, 24, and 25 of the Indictment, relating to
the February 26, 2012, robbery of the Golden Corral Restaurant on 4750 East Main Street;
Counts 28, 30, and 31, relating to the March 7, 2012, robbery of the Chipotle restaurant on 6316
Tussing Road; Count 37, 39-41, relating to the April 4, 2012, robbery of the Bob Evans on 50
Reynoldsburg New Albany Road North; Counts 56, 58-61, relating to the April 23, 2012,
robbery of the Logan’s Steakhouse on 3969 Morse Crossing; Counts 62, 64-67, relating to the
May 7, 2012, robbery of the McDonald’s on 3554 South High Street; Counts 77, 79, 80, relating
to the May 16, 2012, robbery of the Bob Evans on 6085 Gender Road; Counts 81, 83, 84,
relating to the May 30, 2012, robbery of the Applebees on 2755 Brice Road; Counts 85, 87-90,
relating to the June 3, 2012, robbery of the Texas Road House on 8440 Lyra Drive; Counts 91,
93, 94, relating to the June 12, 2012, robbery of the Chipotle restaurant on 1960 East Dublin
Granville Road; Count 95, 97-100, relating to the June 26, 2012, robbery of the Chipotle
restaurant on 1851 Morse Road; Counts 109, 110, 115, 116, relating to the July 12, 2012,
robbery of the Golden Corral restaurant on 4750 East Main Street; and Count 117, relating to the
July 12, 2012, robbery of the Red Robin restaurant on 3977 Morse Crossing. Judgment Entry
2

The Indictment charged Petitioner as a repeat violent offender under O.R.C. § 2929.01, based
on his prior 2002 aggravated robbery and robbery convictions in the Franklin County Court of
Common Pleas. Indictment (ECF No. 7-1, PageID# 105-06.)
48

(ECF No. 7-1, PageID# 253-55.) Petitioner was also convicted on charges of having a weapon
while under disability on Counts 127, 128, 130, 132, 133, 135-39, 141, 142. (PageID# 257-58.)
The repeat violent offender and having weapon under disability charges were tried to the court.
(PageID# 256.) The convictions hinged on the State’s ability to connect Petitioner to the
robberies of the foregoing restaurants by a masked man with a gun, which was undisputed. It
was also undisputed that Petitioner had previously been convicted, on February 7, 2012, of
robbery, and on February 8, 2002, of aggravated robbery with a firearm specification. Trial
Transcript, Volume VII (ECF No. 7-8, PageID# 1677.)
In fact, the parties stipulated that, on February 26, 2012, a person described as a black
male, 6 foot 3 inches tall and around 190 to 220 pounds entered the Golden Corral on 4750 East
Main Street at 10:43 p.m. after the business had closed. Witnesses described him as wearing a
black hooded jacket, a dark knit hat, a black bandana covering his mouth and nose, and blue
plastic or latex gloves. He confronted Alex Ramirez at gunpoint when Ramirez went out to the
dumpster. He forced Ramirez back into the restaurant, where he also confronted employees
Renaldo Finoti and Briana Guynes at gunpoint. He forced them to the north side of the dining
area, where the manager, Mamadou Moussa was located, and into the office. He ordered Finoti
and Guynes to lay on the floor while Moussa opened the safe, took cash from the cash register
tills located in the safe, and fled. (PageID# 667-68.)
On March 7, 2012, a person described as a black male in his late 20s, 6 foot 1 to 6 foot 2
inches tall, muscular build, brown skin, wearing a green hooded jacket, green mask across the
lower portion of his face, black gloves, and black shoes with the word, “creative”, written on
them, approached Miguel Disla in the parking lot of the Chipotle on 6316 Tussing Road at 12:20
a.m. after the business had closed. With a handgun, the man forced Disla into the back room of

49

the business, where employee Brandon Simon was working. He ordered Disla to the floor and
ordered Simon to open the restaurant safe. He took cash from the safe and fled out of the back
door. Trial Transcript, Volume III (ECF No. 7-4, PageID# 727-28.)
On April 4, 2012, a black male wearing a hoodie, mask, gray gloves, black jeans, and
black tennis shoes, with a white, red, and orange-checkered shirt under the hoodie, approached
employees of the Bob Evans located at 50 Reynoldsburg-New Albany Road at approximately
11:30 p.m. after the business had closed. He confronted the store manager, Kimberly Parsons,
and employee Michael Bownman in the parking lot as they approached their cars. He displayed
a black handgun, and ordered them back to the restaurant, where he confronted Lawan Hamilton,
who was standing at the front door. He forced them back into the restaurant and into the office,
where he ordered Bowman and Hamilton to lie on the ground, and ordered Parsons to open the
safe. He took cash from the safe, demanded cash from Parsons, Bowman, and Hamilton, and
fled. Parsons described the perpetrator as a male of unknown race, 6 foot 1 inch tall, stocky,
wearing a hoodie, a mask, black jeans, gray utility gloves, and a white, red, and orange
checkered shirt under the hoodie. Bowman described the perpetrator as a black male, medium
complexion and medium build, 6 foot 3 inches to 6 foot 4 inches tall, wearing all black, black
jeans, black hoodie, black shoes, and a mask. Hamilton described him as a black male wearing a
big husky coat that was black with a reddish checkered shirt on underneath with black 501 Levi
jeans. Trial Transcript, Volume III (ECF No. 7-4, PageID# 755-57.)
On April 23, 2012, a person described as a black male, aged 25 to 40, 6 feet tall, 210
pounds, wearing a black hooded jacket, black ski mask, black pants, and black gloves, entered
the front door of the Logan’s Roadhouse on 3969 Morse Crossing at approximately 10:45 p.m.,
after the business had closed. He confronted employee Nicole Johns in the bar area, grabbed her,

50

stuck a gun against her rib cage, and ordered her to take him to the office. He confronted kitchen
employees Jesus Ishibel and Erasmo Amvares in the kitchen area and forced Eshibel on to the
ground. Amvares fled from the store while the man was looking elsewhere. The man confronted
manager Pamela Shew in the office. While displaying a handgun, he demanded cash from the
safe and ordered Johns, Eshibel, and Shew into the freezer and fled. Trial Transcript, Volume IV
(ECF No. 7-5, PageID# 1045-46.)
On May 7, 2012, a person described as a tall black male wearing jeans, a hoodie, and a
ski mask, displaying a black handgun pushed his way into the rear door of the McDonald’s
restaurant located on 3554 South High Street, at approximately 4:15 a.m., after the business had
closed. The man confronted the manager, Tammy Shoemaker, who had opened the rear door for
a bun delivery, stuck a black handgun into her side and forced her into the office in the rear of
the store. He then forced her to open the safe, took a bank bag containing cash, and fled. Kelly
Neeshan and Angela Wolford, employees of the restaurant, observed the incident. Shoemaker
described the perpetrator as a black male, 6 feet to 6 feet 2 inches tall, wearing a black winter ski
mask which exposed only his eyes and mouth, a black zip-up hoodie, and black pants. She said
he had a deep voice and carried a black automatic handgun, possibly a .45. Jacobs and Neeshan
provided similar descriptions of the man. Transcript, Volume III (ECF No. 7-4, PageID# 84647.)
On May 16, 2012, a black male, 6 foot 2 inches to 6 foot 4 inches tall, with a stocky build
and wearing a black zip-up hooded sweatshirt, red shirt, dark pants, and black shoes, entered the
open rear door of Bob Evans restaurant on 6085 Gender road at approximately 11:30 p.m. after
the business had closed. The man confronted the GFS delivery driver, Kyle Murnane, and while
brandishing a handgun, ordered Murnane to call the manager, Adam Saddler, to come out of the

51

office. Once Saddler opened the office door, the man put Murnane in a headlock and ordered
Murnane and Saddler to the ground. He unlocked the safe and removed the cash register
drawers, taking cash from the drawers. He then ordered Saddler and Murnane into the dry food
storage room, and made them empty their pockets, but he did not take any property from him.
He then fled the premises.
On May 30, 2012, a black male, 6 foot 4 to 6 foot 6 wearing black jeans, a dark hooded
sweatshirt, and a scarf over his face, armed with a black handgun, entered the open front door of
the Applebee’s restaurant on 2755 Brice Road, at approximately 2 a.m. after business had closed.
He confronted the manager, Angel Thomas, in the kitchen area, pointed the gun at Thomas, and
ordered Thomas into the office, where the manager, Sally Armstead, was working. He then
ordered Thomas to lay on the ground while Armstead opened the safe. When Armstead told him
that she did not have the combination, Thomas got up and opened the safe. The man took the
cash and fled. Thomas indicated that he wore black gloves. No video of the robbery was
available. Trial Transcript, Volume IV (ECF No. 7-5, PageID# 938-39.)
On June 3, 2012, at approximately 12:58 a.m., a black male displaying a firearm ordered
Salvado Garcia Cruz and Sergio Rodriguez, employees of the Texas Roadhouse restaurant on
8440 Lyra Drive back into the restaurant and into the office when they were taking out the trash.
He also forced the assistant manager, Trooy Rood, into the office at gunpoint. Once there, he
forced Rebekah Ghenco to open the safe and cash box, and ordered Cruz, Rodriguez, and Rood
onto the ground. He took cash and shut the employees in the walk-in freezer. A surveillance
video was admitted providing a depiction of the robbery. (PageID# 976-78.)
On June 12, 2012, at approximately 12:30 a.m. at the Chipotle restaurant on 1960 East
Dublin Granville Road, a black man confronted employees Jamie Watkins and Veridian Chang

52

as they were leaving the business after closing the restaurant. He displayed a firearm and
ordered them back into the office of the restaurant and into the bathroom. Jamie Watkins stated
that he wore gloves. Photographs and a video surveillance tape were admitted into evidence
depicting the robbery. (PageID# 1042-44.)
On June 26, 2012, at approximately 12:40 a.m., at the Chipotle restaurant on 1851 Morse
Road, a black man confronted John Van Malderen, a delivery truck driver making a delivery
after the restaurant had closed as he was exiting the restaurant. He displayed a firearm and
ordered Van Malderen and two employees, Hanna woods and Jason Quin, into the office of the
restaurant. He forced Woods to open the safe and give him the money inside. He also ordered
another employee present in the business, Josh Boals, into the office. He made them lie on the
floor. Woods thought the man was wearing gloves. Quinn said he wore gloves. A video
surveillance video depicting the robbery was admitted into evidence. (PageID# 1042-44.)
On July 12, 2012, a black man, approximately 6 foot 4 and 225 pounds, wearing a red
hoodie and a white t-shirt underneath it, with a black ski mask, black gloves, black sweatpants,
and brandishing a black semiautomatic handgun, entered the open doors of the Golden Corral on
4750 East Main Street at approximately 12:36 a.m., after the business had closed. He confronted
the carpet cleaners, Robert Jarrett and Bart Jefferson, and demanded to know where the manager
was. When Jefferson told him that the manager was not in the store, he demanded property from
Jefferson, ordered both, at gunpoint, into a utility closet, and fled.
Sydney Mfula testified that, on that same date, he was working for a hood cleaning
company at the Red Robin restaurant on Morse Crossing after the restaurant had closed between
approximately 2 and 3 a.m. Trial Transcript, Volume VI (ECF No. 7-7, PageID# 1308-11.) He
was working with a man named Mike. (PageID# 1312.) Mike said that someone was pointing a

53

gun at him and they were being robbed. (PageID# 1313.) He saw a man with a gun. The man
told them to find the manager. (PageID# 1315.) Mfula was able to escape and ran into the
parking lot. (PageID# 1318.) He saw a police car and told the officer that they were being
robbed. (PageID# 1319-20.) The robber wore a Ninja style mask and hood, so he could not see
his face. (PageID# 1320-21.) The prosecutor played a video tape of the robbery. (PageID#
1329.) The armed man wore a black sleeveless T-shirt and a red hood. (PageID# 1332-34.)
Officer Mark Schroeder testified that, on July 12, 2012, at 2:00 a.m. while he was
working a special duty job at the Easton Town Center, two men ran up and told him that the Red
Robin across the street was being robbed by a heavy-set black man with a gun. Trial Transcript,
Volume V (ECF No. 7-8, PageID# 1249-52.) A woman driving a Ford Mustang told Schroeder
she had seen someone running southbound through the parking lot.

(PageID# 1255-56.)

Schroeder proceeded in that direction, where he found Officer Bill Lang and Officer Swindleman
with the Petitioner in custody. They placed Petitioner in the back of Schroeder’s cruiser.
(PageID# 1257.)
Officer Terry Bond testified that on that same date, he responded to a call on a robbery in
progress at the Red Robin at Morse Crossing. (PageID# 1262.) He observed Petitioner run out
from the tree line towards a car that had stopped for a red light. Petitioner attempted to open the
door of the car, but the car drove off, and Petitioner ran back towards the tree line. Petitioner
refused to comply with Bond’s order to stop, and a chase ensued.

(PageID# 1264-65.)

Eventually, Bond and Officer Lang they were able to get Petitioner into custody. (PageID#
1265.) They found a black shirt in the roadway, and a red hoodie in the area where he had fallen.
(PageID# 1265-66.) Another black shirt lay on top of the red hoodie and there was a gun inside.

54

(PageID# 1268, 1271.) Police also found two black gloves in proximity to the Petitioner with the
word, “CAT” on them. (PageID# 1283-84.)
DNA evidence on the gun indicated that Petitioner could not be excluded as a
contributor. Trial Transcript, Volume VI (ECF No. 7-7, PageID# 1354-59.) In the AfricanAmerican Community, there was a one in 30,000 chance that the DNA on the firearm belonged
to someone other than the Petitioner. (PageID# 1359-60.) The DNA on the black sleeveless
shirt matched the DNA of the Petitioner. (PageID# 1363-64.) DNA of the red hoodie matched
the DNA of the Petitioner. (PageID# 1388.)
Petitioner provided his phone number, i.e., 740-600-5121, to Officer Jill Brady in March
2012 and June 2012. Trial Transcript, Volume V (ECF No. 7-6, PageID# 1094.) Records
indicated that the phone had received over 4,000 calls between February and July 2012 from a
phone belonging to Petitioner’s girlfriend, Perri Mackey. (PageID# 1206.) Officer Thomas
Clark, who testified as an expert in cell phone technology, indicated that data recovery from a
cellular phone can show the general location of the phone at the time calls were placed.
(PageID# 1109-10.)

The phone number belonging to the Petitioner was a Boost Mobile

telephone. (PageID# 1126.) A person buying a Boost Mobile phone does not need to provide
any personal identifying information. (Id.) Clark obtained the location, dates, and times of
sixteen robberies and analyzed the calls to determine the location of that phone within the 60
minutes preceding and subsequent to the robberies. (PageID# 1145.) The records indicated that
Petitioner’s phone had been used during times and locations of 12 of the 16 robberies he had
been asked to analyze. (PageID# 1203.) On February 26, 2012, a call was placed within seven
minutes of the Golden Corral robbery within the same geographic area. (PageID# 1163-64.) On
March 7, 2012, four calls were placed between 12:27 a.m. and 12:33 a.m. in the area of I 270 and

55

East Main Street, within minutes of the Chipotle robbery. (PageID# 1165-66.) On April 4,
2012, two calls were made, one at 9:32 p.m., and one at 11:21 p.m., within six minutes of the
robbery of the Bob Evans, and traveling in the area of the restaurant that had been robbed.
(PageID# 1173-75, 1177.) On April 23, 2012, the phone received an inbound call at 10:31 p.m.
in the area of Logan’s Steakhouse robbery. (PageID# 1181-82.) On May 7, 2012, a call was
received at 4:25 a.m. through usage of a cell phone tower in the area of the McDonald’s robbery
on South High Street. (PageID# 1183-85.) On May 16, 2012, two calls were made, one at 11:30
p.m., and one at 11:46 p.m. on the “primary tower” covering the area of the Bob Evans robbed
on Gender Road. (PageID# 1189-90.) On May 30, 2012, the phone received or made four calls
between 2:04 and 2:05 a.m., moments after the reported time of the Applebee’s robbery using a
cell phone tower in the same geographical area as the restaurant was located. (PageID# 119192.) On June 3, 2012, the date of the Texas Roadhouse robbery, no calls were placed or
received. (PageID# 1194.) On June 26, 2012, the date of the Chipotle robbery, no calls were
made. (PageID# 1195.) Clark did not analyze any data for July 12, 2012, the date of the Golden
Corral robbery on 4750 East Main Street, and the Red Robin robbery. (PageID# 1196.)
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.
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

56

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.” See 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.
In sum, the prosecution tied Petitioner to the Red Robin robbery, based on the witness
description of his clothing and the videotape of the robbery. He was seen fleeing immediately
following the crime, and his DNA matched the clothing of found in close proximity to him,
which matched that of the robber. Further, the modus operandi of all of the robberies matched in
great detail. Witnesses consistently described the restaurant robber as a black man wearing dark
clothing, gloves, a hood, and a mask. He would enter the premises at gunpoint at the close of
business and order the employees onto the ground, demanding the opening of the store safe.
Moreover, evidence indicated that Petitioner’s cellular phone had been used in close proximity to
the restaurants that had been robbed, during the times and dates at issue. In view of this
evidence, the similarity of the offenses charged, and the robber’s use of a “consistent and unique
modus operandi” in his commission of the offenses charged, this Court does not conclude that

57

the state appellate court’s decision is unreasonable so as to justify federal habeas corpus relief.
See United States v. Bowers, 811 F.3d 412, 426 (11th Cir. 2016) (citing United States v. Whatley,
719 F.3d 1206, 1217-19 (11th Cir. 2013). Circumstantial evidence, such as use of the same
modus operandi, may constitute sufficient evidence to sustain a conviction. See Price v. Warren,
No. 12-2238, 2015 WL 3970124, at *7 (D. N.J. June 30, 2015) (citing United States v. Cobb, 397
F. App’x 128, 135–36 (6th Cir. 2010) (denying insufficiency of the evidence claim for
Huntington Bank robbery where the robbery had a similar modus operandi to robbery of Chase
Bank and DNA evidence supported the conviction); Dixon v. Tampkins, No. 12–2821, 2013 WL
1246751, at *9 (C.D. Cal. Feb.11, 2013) (“Based on modus-operandi evidence from Petitioner’s
other convictions, a rational fact finder could have inferred that he committed the four crimes in
question.”) (citing United States v. Momeni, 991 F.2d 493, 494 (9th Cir.1993); United States v.
Hirokawa, 342 F. App’x 242, 248–49 (9th Cir.2009)); report and recommendation adopted by,
2013 WL 1245981 (C.D. Cal. March 27, 2013); see also United States v. Moore, 115 F.3d 1348,
1364 (7th Cir. 1997) (circumstantial evidence consisting of use of the same modus operandi,
when considered in conjunction with direct evidence, provided sufficient evidence to sustain
robbery conviction); Calkins v. Soto, No. 13-1761-DOC (DTB), 2014 WL 1224795 (C.D. Cal.
March 21, 2014) (use of same modus operandi constituted circumstantial evidence of guilt).
Ground H fails to provide a basis for relief.
Ground I
In ground I, Petitioner asserts that his convictions on aggravated robbery and kidnapping
should have been merged at sentencing, because he committed a single act with a single state of
mind. The state appellate court denied this claim, reasoning as follows:
The tenth assignment of error alleges that the trial court failed to
abide by R.C. 2941.25(A), which reads:
58

Where the same conduct by defendant can be
construed to constitute two or more allied offenses
of similar import, the indictment or information
may contain counts for all such offenses, but the
defendant may be convicted of only one.
Appellate counsel argues that Smith is committing a single act with
a single state of mind, to rob the restaurant, arguing that both the
aggravated robberies and kidnappings occurred as one course of
conduct.
The Supreme Court has made clear the guidelines in establishing
whether kidnapping and another offense of the same or similar
kind are committed with a separate animus as to each pursuant to
R.C. 2941.25(B):
(a) Where the restraint or movement of the victim is
merely incidental to a separate underlying crime,
there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is
prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a
significance independent of the other offense, there
exists a separate animus as to each offense
sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim
subjects the victim to a substantial increase in risk
of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as
to each offense sufficient to support separate
convictions.
State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979),
syllabus.
Although in some cases aggravated robbery and kidnapping can
constitute allied offenses of similar import, the restraint imposed
on the victims here was more than merely incidental to an
aggravated robbery. Victims were restrained for more than a few
seconds. Some victims were moved to other rooms. Some victims
were restrained after the theft portion of the robbery was
completed.
We also note that the trial court judge ordered the aggravated
robbery sentences to be served concurrently with each other and
59

concurrently with the kidnapping sentences. The “merger” argued
in this assignment of error would have no effect on Smith’s time of
incarceration for his crime spree.
The tenth assignment of error is overruled.
State v. Smith, 2015 WL 872753, at *7.
Although the Ohio Court of Appeals’ limited its analysis to application of Ohio’s allied
offenses statute, O.R.C. § 2941.25, that analysis is “entirely dispositive” of a claim under the
Double Jeopardy Clause, and the state court’s decision therefore obtains a deferential standard of
review under the AEDPA. See Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014); see also
Riley v. Buchanan, No. 2:14-cv-02522, 2016 WL 827994, at *9 (S.D. Ohio March 3, 2016)
(noting that Ohio law in this regard is derived from the same concerns as those of the Double
Jeopardy Clause and applying the deferential standard of review under the AEDPA) (citations
omitted).
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states
through the Fourteenth Amendment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause has been
interpreted as protecting criminal defendants from successive prosecutions for the same offense
after acquittal or conviction, as well as from multiple punishments for the same offense. Brown
v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for a double jeopardy claim is the “same
elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the
court to determine whether each charged offense “requires proof of an additional fact which the
other does not”). The Blockburger test is designed to deal with the situation where closely
connected conduct results in multiple charges under separate statutes. Under Blockburger, the
critical question is whether, in reality, the multiple charges constitute the same offense. Thus,

60

the Blockburger test focuses on whether the statutory elements of the two crimes charged are
duplicative. If the elements of the two statutes are substantially the same, then double jeopardy
is violated by charging the defendant under both.
However, “[w]here two offenses are the same for Blockburger purposes, multiple
punishments can be imposed if the legislature clearly intended to do so.” Bates v. Crutchfield,
2016 WL 7188569, at *5 (S.D. Ohio Dec. 12, 2016) (citing Albernaz v. United States, 450 U.S.
333, 344 (1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493,
499 (1984); Garrett v. United States, 471 U.S. 773, 779 (1985); White v. Howes, 586 F.3d 1025,
1035 (6th Cir. 2009)). Thus, “[e]ven if the crimes are the same under Blockburger, if it is
evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is
at an end.” Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013) (citing Johnson, 467 U.S. at 499 n.
8; Hunter, 459 U.S. at 368–69). “Specifically, ‘[w]ith respect to cumulative sentences imposed
in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended.’” Grable v. Turner, No. 3:16cv-273, 2016 WL 7439420, at *6 (S.D. Ohio Dec. 27, 2016) (quoting Jackson v. Smith, 745 F.3d
206 (6th Cir. 2014) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). “When assessing the
intent of a state legislature, a federal court is bound by a state court’s construction of that state’s
own statutes.” Id. (quoting Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013) (citing Banner v. Davis,
886 F.2d 777, 780 (6th Cir. 1989)).
In view of the facts of this case, and applying the test set forth in Blockburger, this Court
is not persuaded that the state appellate court’s conclusion that evidence reflected separate
criminal acts due to the prolonged restraint and movement of the victims and that Petitioner’s
convictions therefore did not violate the Double Jeopardy Clause was unreasonable so as to

61

justify federal habeas corpus relief.

28 U.S.C. § 2254(d), (e); see Spence v. Sheets, 675

F.Supp.2d 792, 825 (S.D. Ohio Dec. 18, 2009) (citing Jones v. Baker, 35 F.3d 566, unpublished,
1994 WL 464191 (6th Cir. August 26, 1994) (no double jeopardy violation where kidnapping not
“merely incidental” to aggravated robbery and involved substantial restraint of the victim);
Watkins v. Schotten, 103 F.3d 132, unpublished, 1996 WL 690159 (6th Cir. Nov. 27, 1996) (no
double jeopardy violation on aggravated robbery and kidnapping convictions where the offenses
were committed separately with separate animus and since the crimes have separate elements);
Spence v. Sheets, 675 F.Supp.2d 792, 825 (S.D. Ohio 2009) (state appellate court’s conclusion
that evidence reflected separate criminal acts and that petitioner’s convictions therefore did not
violate the Double Jeopardy Clause not unreasonable so as to justify federal habeas corpus
relief); McKitrick v. Smith, No. 3:08CV597, 2009 WL 1067321 (N.D. Ohio April 21, 2009) (trial
court’s finding that petitioner had “separate animi” for robbery and kidnapping is due deference
in habeas proceedings and therefore petitioner’s convictions did not violate Blockburger). See
also Grable v. Turner, No. 3:16-cv-273, 2016 WL 7439420, at *6 (S.D. Ohio Dec. 27, 2016)
(cumulative punishment for kidnapping and aggravated robbery does not violate the Double
Jeopardy Clause); Petitioner has failed to establish that the state appellate court’s decision
rejecting his Double Jeopardy Claim contravened or unreasonably applied federal law or resulted
in an unreasonable determination of the facts in light of the evidence presented.
Ground I fails to provide a basis for relief.

62

Conclusion and Disposition
Petitioner’s Motion to Amend/Correct (ECF No. 10), to include additional arguments in
support of his claims is GRANTED. In light of the Amendment, Petitioner’s Motion to Add
Affidavit (ECF No. 14), to include an affidavit from his replacement appellate counsel is
DENIED AS MOOT. Petitioner’s Motion for Judicial Notice (ECF No. 12), is GRANED IN
PART AND DENIED IN PART. Petitioner’s unopposed Motion to Expand/Complete Record
Pursuant to Rule 5 of the Rules governing Section 2254 Cases (ECF No. 23), to include a copy
of the transcripts of pre-trial proceedings is GRANTED.
For the reasons fully set forth above, this action is hereby DISMISSED. The Clerk is
DIRECTED to enter judgment in favor of Respondent.
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)(B), the Court must also assess whether to issue a
certificate of appealability. Rule 11 of the Rules Governing Section 2255 Proceedings for the
United States District Courts states that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” “In contrast to an ordinary
civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a district court.” Jordan v. Fisher, –––
U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas
petitioner to obtain a certificate of appealability in order to appeal.) The petitioner must establish
the substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Barefoot
v. Estelle, 463 U.S. 880 (1983) (same); Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing
of the denial of a constitutional right, a petitioner must show “that reasonable jurists could debate

63

whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n.4).
Where the Court dismisses a claim on procedural grounds, however, a certificate of
appealability “should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. Thus, there are two components to determining whether a certificate of appealability
should issue when a claim is dismissed on procedural grounds: “one directed at the underlying
constitutional claims and one directed at the district court’s procedural holding.” Id. at 485. The
court may first “resolve the issue whose answer is more apparent from the record and
arguments.” Id.
Upon review of the record and under the circumstances of this case, the Court is
persuaded that reasonable jurists would debate whether Petitioner’s claims should have been
resolved differently or whether the Court correctly dismissed his claims as procedurally
defaulted. The Court therefore GRANTS Petitioner’s request for a certificate of appealability
and certifies the following issues for appeal:
1.

Was Petitioner denied the effective assistance of counsel?

2. Was the evidence constitutionally sufficient to sustain all of
Petitioner’s convictions?
3. Did Petitioner waive his claim that the trial court improperly
permitted stipulations that violated the Confrontation Clause
without first determining whether he knowingly, intelligently,
and voluntarily waived that right on the basis of invited error?

64

IT IS SO ORDERED.
s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

65