Clinton v. Warden Southeastern Correctional Complex

Filing 24

ORDER and REPORT AND RECOMMENDATION: The Court terminates the stay in this case and reinstates proceedings, and it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 2/15/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/1/2018. (kpt)(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

MARVIN CLINTON,
Civil Action No. 2:16-cv-0573
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
BRIAN COOK, WARDEN,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this 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, the Court now
terminates the stay in this case and reinstates proceedings, and it is RECOMMENDED that this
action be DISMISSED.
I.

Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the state criminal case against Petitioner as follows:
Marvin D. Clinton is appealing from his conviction for murder
with a firearm specification and repeat violent offender
specification. His appointed counsel has filed a brief which
contains six assignments of error. Clinton has filed a supplemental
brief pro se which contains two assignments of error.
The assignments of error in counsel's brief are:
[I.] Appellant was denied a fair trial by the introduction of
inflammatory, irrelevant, inherently prejudicial testimony.

[II.] The trial court erred by admitting expert opinion testimony
contrary to the Ohio Rules of Evidence.
[III.] R.C. 2929.14(B)(2)(a) and 2941.149 violate the right to trial
by jury guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Section 16, Article I of the Ohio
Constitution.
[IV.] The trial court committed plain error by sentencing Appellant
as a repeat violent offender without making the findings required
by R.C. 2929.14(B)(2)(a).
[V.] The judgment of the trial court is not supported by sufficient,
credible evidence.
[VI.] The judgment of the trial court is against the manifest weight
of the evidence.
Clinton's assignments of error are:
APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE
OF COUNSEL AS GUARANTEED HIM UNDER THE UNITED
STATES CONSTITUTION'S SIXTH AMENDMENT AND
ARTICLE I SEC. 10 OF THE OHIO CONSTITUTION WAS
VIOLATED WHEN HIS TRIAL COUNSEL FAILED TO
PERFORM IN A MANNER CONSISTENT WITH HIS DUTIES
AS COUNSEL.
APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE
OF COUNSEL AS GUARANTEED HIM UNDER THE UNITED
STATES CONSTITION [sic] SIXTH AMENDMENT AND
ARTICLE 1 SEC. 10 OF THE OHIO CONSTITUTION WAS
VIOLATED WHEN HIS TRIAL COUNSEL FAILED TO
PRESENT A DEFENSE IN SUPPORT OF APPELLANT'S
RIGHTS TO A FAIR TRIAL.
There is no dispute that someone shot and killed Kelsey Ray Ellis
on December 18, 2010. Clinton denied being the shooter. The
primary issue at the jury trial centered on the proof of the identity
of the shooter and the jurors were convinced beyond a reasonable
doubt that Clinton was the shooter. The jury therefore rendered
guilty verdicts as to murder with a firearm specification and as to
tampering with evidence.
Because of Clinton's past criminal record, he was also charged
with having a weapon under disability (“WUD”) and with a repeat
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violent offender specification (“RVO”). The WUD charge and
RVO were tried to the judge who presided over the trial in order to
avoid the potential of the jury being influenced by Clinton's past
criminal record. The judge found Clinton guilty of both and
sentenced him in accord with his findings.
State v. Clinton, No. 13AP-751, 2014 WL 6436228, at *1 (Ohio App. 10th Dist. Nov. 18, 2014).
The appellate court affirmed the judgment of the trial court. Id. On May 20, 2015, the Ohio
Supreme Court declined to accept jurisdiction of the appeal. State v. Clinton, 142 Ohio St. 3d
1466 (2015). On August 19, 2014, Petitioner filed a petition for post-conviction relief in the
state trial court. He asserted that he was denied the effective assistance of counsel because his
attorney failed to call defense witnesses, failed to consult with Petitioner regarding the insanity
defense, and failed to obtain potential exculpatory DNA evidence from cigarette butts that were
found at the scene. (ECF No. 12-1, PAGEID ##337-339). On May 17, 2016, the trial court
granted Petitioner’s motion for funds for a DNA expert, and appointed a DNA expert. (ECF No.
12-1, PAGEID #507). Apparently, that action remains pending in the state trial court. On March
4, 2015, Petitioner filed a pro se application for reopening of the appeal pursuant to Ohio
Appellate Rule 26(B). (PAGEID #396). On March 26, 2015, the appellate court denied the Rule
26(B) application. (PAGEID #438). On June 24, 2015, the Ohio Supreme Court declined to
accept jurisdiction of the appeal. (PAGEID #472).
On June 22, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He asserts that he was denied the effective assistance of appellate counsel (claim
one); and that the evidence was constitutionally insufficient to sustain his convictions (claim
two). Petitioner also appears to assert, in habeas corpus claim two, that he was denied the
effective assistance of counsel because his attorney failed to object to the admission of
inflammatory and irrelevant testimony, failed to call defense witnesses, and failed to present

3

exculpatory DNA evidence. Respondent contends that Petitioner’s claims are procedurally
defaulted or without merit.
On June 27, 2017, the Court granted Petitioner’s request for a stay of proceedings
pending completion of Petitioner’s post-conviction remedy in the state courts. Order (ECF No.
20.) However, the docket reflects that no further action has occurred since the trial court’s
approval of funds for the appointment of a defense DNA expert. (ECF No. 23-1, PAGEID
#1682). Moreover, all of Petitioner’s claims for the denial of the effective assistance of counsel
plainly lack merit. A stay of proceedings is not warranted where the Petitioner’s unexhausted
claims are plainly meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Section 2254(b)(2)
provides that “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.” Therefore, the Court terminates the stay and reinstates proceedings in this case.
II.

Standard of Review

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the
Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United
State Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court” and emphasized that courts must
not “lightly conclude that a State's criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S.
766, 773 (2010) (“AEDPA ... imposes a highly deferential standard for evaluating state-court
rulings, and demands that state court decisions be given the benefit of the doubt”) (internal
quotation marks, citations, and footnote omitted).

4

The AEDPA limits the federal courts' authority to issue writs of habeas corpus and
forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated
on the merits in State court proceedings” unless the state court decision either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
Further, under the AEDPA, the factual findings of the state court are presumed to be
correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1)
Accordingly, “a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir.)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub. nom. Coley v.
Robinson, 134 S. Ct. 513 (2013) . The United States Court of Appeals for the Sixth Circuit has
summarized these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
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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[] (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 [].
Id. at 748–49. The burden of satisfying the AEDPA's standards rests with the petitioner. See
Cullen v. Pinholster, 563 U.S.170, 181 (2011).
III.

Insufficiency of the Evidence

Petitioner asserts that the evidence is constitutionally insufficient to sustain his
convictions because, he contends, evidence failed to establish he was engaged in an argument
with the victim, there was no gunshot residue in or around his truck, and witnesses from the
neighborhood testified that they had never seen him with a gun. (ECF No. 19, PAGEID ##16621663.) The state appellate court, however, rejected this claim:
After careful review of the evidence, we find the evidence
sufficient to prove Clinton was the shooter. . . .
When reviewing the sufficiency of the evidence to support a
conviction, an appellant 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
(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 (1st Dist.1983).
When there is conflicting evidence, “it [is] the function of the jury
to weigh the evidence and assess the credibility of the witnesses in
arriving at its verdict. Where reasonable minds can reach different
conclusions upon conflicting evidence, determination as to what
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occurred is a question for the trier of fact. It is not the function of
an appellant court to substitute its judgment for that of the
factfinder.” Jenks at 279.
***
Issues of witness credibility and concerning the weight to attach to
specific testimony remain primarily within the province of the trier
of fact, whose opportunity to make those determinations is superior
to that of a reviewing court. State v. DeHass, 10 Ohio St.2d 230,
231 (1967). The question is whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v.
Hancock, 108 Ohio St.3d 57, 63, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). The discretionary power to grant
a new trial should be exercised only in the exceptional case in
which the evidence weighs heavily against a conviction.
Thompkins at 387.
A jury may “take note of the inconsistencies and resolve or
discount them accordingly * * * such inconsistencies do not render
defendant's conviction against the manifest weight or sufficiency
of the evidence.” State v. Nivens, 10th Dist. No. 95APA09–1236
(May 28, 1996). “Furthermore, it is within the province of the jury
to make the credibility of witnesses. (‘It is the province of the jury
to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same
witness').” (Citations omitted.) State v. Dillon, 10th Dist. No.
04Ap–1211, 2005–Ohio–4124, ¶ 15.
The evidence showed that in the early morning hours of December
18, 2010, Kelsey Ray Ellis's Cadillac Escalade collided with a twotoned green truck. The two drivers got out of their vehicles and a
heated discussion occurred. The driver of the truck shot Ellis and
then drove away. Marvin Clinton was arrested in a two-toned
green truck later that morning. Clinton denied being involved in
the shooting but the truck he was driving was clearly identified as
being the truck which struck Ellis's Escalade, as proved by both an
eyewitness and by analysis of the damage to the two vehicles.
Gunshot residue testing indicated that Clinton had recently fired a
gun. Testimony from witnesses in the neighborhood where the
shooting occurred, testified about Clinton owning a firearm and
showing it to them. Clinton even stated he was going to use the
gun to rob a drug dealer who lived nearby.

7

The green truck which Clinton was driving contained a magazine
which was consistent with holding and firing ammunition such as
the bullet and projectile which killed Ellis.
The evidence, while not overwhelming, was sufficient to support
the jury's conclusion that Clinton was the person driving the truck
which was in a collision with Ellis's Escalade. The evidence also
indicated that the drivers got into a heated disagreement. Only one
person was in the truck. Clinton was consistently the driver of the
truck, despite not being the titled owner. Linking this testimony
with the evidence that Clinton had recently fired a gun, as
evidenced by gunshot residue testing, provided sufficient proof
that Clinton had been the driver of the truck and that he shot Ellis
after the argument.
There was little evidence that Clinton was not the shooter. A few
eyewitnesses claimed they had never known Clinton to possess or
use a firearm, but their testimony did not come from knowledge of
what happened the night Ellis was shot.
State v. Clinton, 2014 WL 6436228, at *2-3.
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, 443 U.S. at 319). The prosecution is not required to “rule out
every hypothesis except that of guilt.” Id. (quoting Jackson, 443 U.S. at 326). “[A] reviewing
court ‘faced with a record that supports conflicting inferences must presume—even if it does not
appear on the record—that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” Id.
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

8

191, 205 (6th Cir. 2009), cert. denied, 558 U.S. 1114 (2010), 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.” Id.; see also White
v. Steele, 602 F.3d 707, 710 (6th Cir.), cert. denied, 562 U.S. 868 (2010). This is a substantial
hurdle for a habeas petitioner to overcome, and Petitioner has not done so.
Review of the record does not support Petitioner’s arguments. Kimberly Craig, who was
Petitioner’s friend and knew him from the neighborhood, testified that she knew he carried a gun
and had seen him with a gun in the past. Transcript (ECF No. 12-5, PAGEID ##640, 644-45,
661, 667). Zoran McIlroy also knew Petitioner from the neighborhood at that time as “just
Marv.” (ECF No. 12-6, PAGEID # 679). Petitioner drove a green truck. (Id.). McIlroy heard a
crash and went outside with Nicole Oxley, the daughter of his former girlfriend. (Id.). Petitioner
was on his way to pick up Nicole. (PAGEID #680). A “short black guy” got out of the green
truck, and began to argue with the man driving a white SUV. (PAGEID ##680-681, 683). The
man in the green truck got back into the truck, then got out of the truck and shot the driver of the
white SUV. (PAGEID #683-686). When Officer Miller arrived at the scene, McIlroy was
attempting to perform CPR on the victim, Kelsey Ellis. (PAGEID ##717-718.) McIlroy told
Miller that the two-toned Dodge had headed north. (PAGEID #719). Officer Albert drove
through the area to see if he could find the pickup truck. (PAGEID #733). He observed a green
truck matching the description with rear end damage. (PAGEID #734). He pulled the truck

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over, ordered the driver (i.e., Petitioner) out of the car, and took him into custody. (PAGEID
##734-735). Testing revealed the presence of gunshot reside particles on Petitioner’s hands.
(PAGEID ##850-851). Cheryl Banks, Petitioner’s former girlfriend, held the title to the Dodge
Ram truck, but she did not buy it, and she had only driven it once. It was Petitioner’s truck.
(PAGEID ##865-866). Inside of the truck, police found a black nylon gun holster with a pistol
magazine for a 9 millimeter Ruger. (PAGEID ##782-783). According to Mark Hardy, the bullet
fragment recovered by the coroner from the body of Kelsey Ellis could have been fired either
from a .380 auto cartridge or a 9 millimeter Makarov cartridge. (PAGEID #884). The empty 9
millimeter magazine found in the gun holster in Petitioner’s truck was capable of feeding either
of these types of bullets. (PAGEID #888). James Moyer, Ellis’ friend, also testified that he
heard the accident and observed the men from the two vehicles arguing. (PAGEID ##900-902,
904-905). He heard the gunshot and saw the truck spinning away down the road. (PAGEID
##905-906). He called 911. (PAGEID #909). He identified Petitioner’s truck as the same one
he had seen earlier. (PAGEID ##914-915).
Upon review of the record, and for the reasons addressed by the state appellate court, this
Court likewise concludes that, when viewed in the light most favorable to the prosecution, the
evidence is constitutionally sufficient to sustain Petitioner's convictions.
Petitioner’s claim that the evidence is constitutionally insufficient to sustain his
convictions lacks merit.
IV.

Ineffective Assistance of Trial Counsel

Petitioner asserts that he was denied the effective assistance of counsel because his trial
attorney failed to object to irrelevant testimony and inflammatory evidence, failed to call defense

10

witness, and failed to obtain or present exculpatory DNA evidence. The state appellate court
rejected this claim as follows:
We turn next to Clinton's pro se assignments of error and his claim
he was denied the effective assistance of trial counsel.
A counsel's performance “will not be deemed ineffective unless
and until counsel's performance is proved to have fallen below an
objective standard or reasonable representation and, in addition,
prejudice arises from counsel's performance.” State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph two of the syllabus.
The question is whether counsel acted outside the “wide range of
professionally competent assistance.” Strickland v. Washington,
466 U.S. 668, 689 (1984). Appellate courts must be highly
deferential in scrutinizing counsel's performance. “A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight. * * * There
are countless ways to provide effective assistance in any given
case.” Id.
The eighth assignment of error, which is Clinton's second pro se
assignment of error, attacks the failure of trial counsel to present
more defense evidence at the trial. The fundamental problem for
defense counsel was Clinton's history of criminal offenses
involving violence. The obvious person to be the centerpiece of the
defense case was Clinton himself, but putting Clinton on the
witness stand would have exposed his past history of shooting
people and robbing people to the jury.
No one else who witnessed the events of December 18, 2010
claimed Clinton was not the shooter. There was very little
additional evidence trial counsel could potentially present, so
counsel could not be deemed ineffective for failing to present it.
The eighth assignment of error is overruled.
The arguments in Clinton's supplemental brief as to his first
assignment of error primarily attack trial counsel's failure to object
more at trial. Specifically, Clinton points to the failure of counsel
to object when a witness said she would not go into Clinton's
residence because a cousin had said he had heard Clinton was a sex
offender. Ideally counsel would have asked the trial court judge to
tell the jury the statement was not proof Clinton was a sex
offender, but the family rumor could not have possibly caused the
11

jury to reach a verdict of guilty of murder. 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. Id. To warrant reversal, “[t]he defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.” Strickland at 694.
Defense counsel did not ignore the comment by the witness.
Instead, counsel used the comment as a basis for attacking the
witness's credibility in general, especially her credibility when she
gave testimony which indicated Clinton was the shooter.
In his assignment of error, Clinton also attacks the failure of
counsel to object when police officers mentioned the presence of
broken glass at the collision scene. However, the presence of
broken glass was not significant given the clear testimony of an
eyewitness that the truck Clinton was driving was the same truck
involved in the collision.
Clinton also attacks the failure of trial counsel to have DNA testing
on some cigarette butts found at the scene of the shooting. No one
claimed the shooter was smoking that night, so the identity of who
had smoked cigarettes at another time was not relevant evidence.
Trial counsel was not ineffective for failing to pursue irrelevant
evidence.
***
The comment by a witness that she had been told by a cousin that
Clinton had a record for a sex offense could have been handled
differently by trial counsel and the trial judge, but could not
conceivably have affected the verdicts of guilty. Legitimate trial
tactics are not a basis for establishing ineffective assistance of
counsel for purposes of the Sixth Amendment to the United States
Constitution.
State v. Clinton, 2014 WL 6436228, at *4-5.
“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . .
. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
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claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that
his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687;
Hale v. Davis, 512 F. App’x 516, 520 (6th Cir.), cert. denied sub. nom. Hale v. Hoffner, 134 S.
Ct. 680 (2013). A petitioner “show[s] deficient performance by counsel by demonstrating ‘that
counsel's representation fell below an objective standard of reasonableness.’” Poole v.
MacLaren, 547 F. App’x 749, 754 (6th Cir. 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536
(6th Cir. 2011) (internal quotation marks omitted); citing Strickland, 466 U.S. at 687), cert.
denied, 135 S. Ct. 122 (2014). To make such a showing, a petitioner must overcome the “strong
[ ] presum[ption]” that his counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 687. “To
avoid the warping effects of hindsight, [courts must] ‘indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’” Bigelow v.
Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
Petitioner has failed to establish the denial of the effective assistance of trial counsel
under the two-prong Strickland test. As discussed by the state appellate court, nothing in the
record indicates that the presentation of defense witnesses or DNA evidence would have assisted
the defense. Likewise, Petitioner cannot establish prejudice based on the admission of testimony
that Petitioner might be a sex offender.
Petitioner’s claim of the denial of the effective assistance of trial counsel lacks merit.
V.

Procedural Default

Respondent contends both that Petitioner has procedurally defaulted his claim that he was
denied the effective assistance of appellate counsel and that the claim is without merit.

13

Congress has provided that a state prisoner who is 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, 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)), cert. denied, 544 U.S. 928
(2005). One aspect 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,

14

neither may a federal court do so. In the words used by the Supreme Court in Wainwright v.
Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits
in the state proceeding due to respondent’s failure to raise them there as required by state
procedure” also cannot be resolved on their merits in a federal habeas case-that is, they are
“procedurally defaulted.”
In the Sixth Circuit, courts undertake a four-part analysis when a state argues that a
federal habeas claim is waived by virtue of a 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, the Court must decide 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 petitioner did not comply with a state procedural rule and that the rule was an
adequate and independent state ground, then the petitioner must demonstrate cause for his failure
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, 99-100 (6th Cir.), cert. denied
sub. nom. LeRoy v. Morris, 474 U.S. 831 (1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel's efforts to
comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Constitutionally ineffective counsel may constitute cause to excuse a procedural default.

15

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective
assistance of counsel claim generally must “‘be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural default.’” Edwards, 529 U.S. at
452 (quoting Murray, 477 U.S. at 479). 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.), cert. denied, 546 U.S. 1017 (2005). Or, if the claim is procedurally defaulted, a
petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the
ineffective-assistance claim itself.” Edwards, 529 U.S. at 450–51. The Supreme Court
explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas,
habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The
independent and adequate state ground doctrine ensures that the
States’ interest in correcting their own mistakes is respected in all
federal habeas cases.” 501 U.S. at 732 []. We again considered the
interplay between exhaustion and procedural default last Term in
O'Sullivan v. Boerckel, 526 U.S. 838 [] (1999), concluding that the
latter doctrine was necessary to “‘protect the integrity’ of the
federal exhaustion rule.” Id. at 848 [] (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 []. 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 [] (STEVENS, J., dissenting) (emphasis
added) (quoting Darr v. Burford, 339 U.S. 200, 204 [] (1950)).

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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, 477 U.S. at 495–96), cert. denied sub. nom. Hodges v. Carpenter, 135 S.
Ct. 1545 (2015).
The state appellate court rejected Petitioner’s Rule 26(B) application as untimely and
without merit:
[W]e note that the application was not filed within the time
allowed by App. R. 26(B).
More importantly, this appellate court fully considered all the
issues raised by the assignments of error before us, including the
two assignments of error Clinton raised on his own behalf. The
new assignment of error submitted in this motion for reopening
does not really present new issues. Assigned counsel did not err in
his presenting errors for our consideration and Clinton did not err
in presenting issues on his own behalf.
Because Clinton does not demonstrate in the least that he was
deprived of effective assistance of appellate counsel, the
application for reopening is denied.
Memorandum Decision (ECF No. 12-1, PAGEID ##438-439). Petitioner has, therefore, waived
his claim for the denial of the effective assistance of appellate counsel based on the untimely
filing of his Rule 26(B) application. See Wilson v. Hurley, 382 F. App’x 471, 476 (6th Cir.)
(citations omitted), cert. denied, 562 U.S. 1033 (2010); Perry v. Warden of Mansfield
Correctional Inst., No. 5:13-cv-01196, 2015 WL 2097815, at *17 (N.D. Ohio May 5, 2012)
(citing Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010), cert. denied, 563 U.S. 947
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(2011)). “If the last state court bases its ruling both on the merits and alternatively on a
procedural ground, the procedural ground ruling prevails.” Brinkley v. Houk, 866 F. Supp. 2d
747, 779 (N.D. Ohio Dec. 5, 2011) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Baze
v. Parker, 371 F.3d 310, 320 (6th Cir. 2004), cert. denied, 544 U.S. 931 (2005)).
Further, Petitioner’s claim plainly lacks merit. Petitioner has failed to identify, here or in
the Ohio Court of Appeals, any potentially meritorious issue that his attorney failed to raise on
appeal. Instead, he argues that his attorney performed in a constitutionally ineffective manner by
failing to raise certain issues in his appeal to the Ohio Supreme Court. See Application for
Reopening Pursuant to Appellate Rule 26(B) (ECF No. 12-1, PAGEID ##396-399); Petition
(ECF No. 1, PAGEID ##7-8.) However, Petitioner cannot establish the denial of the effective
assistance of counsel in the filing of his discretionary appeal to the Ohio Supreme Court, where
he had no constitutional right to counsel in those proceedings. “The constitutional right to
appointed counsel extends to the first appeal of right and no further.” Wright v. Lazaroff, 643 F.
Supp. 2d 971, 993 (S.D. Ohio 2009) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);
Coleman v. Thompson, 501 U.S. 722, 751–53 (1991)). “‘There can be a constitutional claim of
ineffective assistance of counsel only at a stage of the proceedings when there is a right to
counsel under the Sixth Amendment.’” Id. (quoting Smith v. State of Ohio Dept. of
Rehabilitation and Corrs., 463 F.3d 426, 433 (6th Cir. 2006) (citing Coleman, 501 U.S. at 752)).
VI. Recommended Disposition
For the reasons set forth above, it is RECOMMENDED that this action be
DISMISSED.

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PROCEDURE ON OBJECTIONS 
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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