Bryant v. Warden Ohio Reformatory for Women

Filing 12

REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus filed by Kimberly L. Bryant. It is RECOMMENDED that the petition for a writ of habeas corpus be DENIED and that this case be DISMISSED. Objections to R&R due by 7/10/2017. Signed by Magistrate Judge Terence P. Kemp on 6/26/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text on 6/26/2017 (kdp).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KIMBERLY L. BRYANT,
Petitioner,
v.

Case No. 2:16-cv-687

WARDEN, OHIO REFORMATORY FOR
WOMEN,

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, Kimberly L. Bryant, an inmate at the Ohio Reformatory for Women
(“ORW”), filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This
matter is before the Court on the petition (Doc. 3) and the Respondent’s return of writ (Doc.
11). Petitioner has not filed a traverse. For the foregoing reasons, it will be recommended
that the petition be DENIED and this case be DISMISSED.
I. Factual Background
The facts of the case are summarized by the Ross County, Ohio, Court of Appeals:
{¶ 4} This case evolved from a controlled purchase of heroin at the home of
Shonda Cremeans and subsequent search warrant for Cremeans's home.
Prior to executing the search warrant Chillicothe Police Detectives Twyla
Goble and Charles Campbell observed Bryant in her blue Hyundai Elantra
automobile pull up to the front of the house. Shortly thereafter, Cremeans
exited the house, entered the front passenger side of the vehicle, and Bryant
drove the vehicle away. While following the vehicle the detectives observed
Bryant make a left-hand turn without using her turn signal and fail to stop
at a stop sign. The detectives initiated a stop of the car because of the traffic
violations.

{¶ 5} The detectives approached the vehicle and asked Bryant for her license.
As they approached the car, the detectives noticed that Cremeans was
reaching around the floor in front of her where her white purse and address
book were located. Bryant retrieved her license from a wallet in her black
purse, which was located in the center console. After Bryant gave Detective
Campbell her license, the detectives requested a police dog at the scene. The
dog conducted a sniff of Bryant's vehicle and alerted to the presence of
controlled substances in the car.
{¶ 6} The detectives removed both Cremeans and Bryant from the vehicle
and, with their consent, searched their persons. They found no controlled
substances on Cremeans, but Detective Goble found two baggies inside a
larger bag in Bryant's left coat pocket. The first baggie contained over seven
grams of heroin and the second baggie contained approximately a half gram
of cocaine. Detective Goble handcuffed Bryant, gave her Miranda warnings,
and placed her in a police cruiser.
{¶ 7} Detective Goble searched Cremeans's white purse, which was located
at her feet in the front passenger seat of the car, and found heroin and $296.
Detective Campbell searched Bryant's black purse, which had been in the
center console of the car, and he found a large Ziploc bag containing digital
scales and over four grams of heroin. He also found over $1,000 in cash in
Bryant's purse.
{¶ 8} The state charged Bryant with one count of possession of heroin in
violation of R.C. 2925.11, a second-degree felony, and one count of
possession of cocaine in violation of R.C. 2925.11, a fifth-degree felony
{¶ 9} At trial Bryant admitted that the black purse and the cash inside it was
hers, but denied knowledge of the drugs or scales found inside her purse.
Instead, she contended that Cremeans put the drugs in her purse during the
traffic stop. Bryant also denied ownership of the coat and claimed that
Cremeans left the coat in her car four days before the incident. Bryant further
claimed that she put on Cremeans's coat after she got in her car because she
forgot her jacket at home and had no idea there were drugs in the coat
pocket. No evidence corroborated Bryant's claims.
{¶ 10} The jury returned guilty verdicts on both counts and the trial court
sentenced her accordingly.

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(Exhibit 6, Decision and Judgment Entry, ¶¶4-10; State v. Bryant, 2014 WL 7174598 (Ross
Cty. App. Dec. 10, 2014) at ¶¶4-10). The factual narratives set out by the state court are
presumed to be correct. 28 U.S.C. §2254(e)(1).
II. Procedural History
A. Trial Court Proceedings
Petitioner was indicted by the Ross County Grand Jury on May 3, 2013, charging her
with one count of possession of heroin (O.R.C. §2925.11) and one count of possession of
cocaine (O.R.C. §2925.11), second and fourth degree felonies respectively. (Doc. 11, Ex. 1).
Petitioner pleaded not guilty to the charges.
Following a jury trial, Petitioner was found guilty on both counts (Doc. 11, Ex. 2) and
was subsequently sentenced to an aggregate term of five years’ imprisonment. (Doc. 11, Ex.
3).
B. Direct Appeal
Petitioner, through counsel, timely appealed her conviction, raising the following
assignments of error:
1.

The State of Ohio’s use of appellant’s silence as substantive evidence
of guilt in its case in chief violated her Fifth Amendment privilege
against self-incrimination and due process guarantees of the
Fourteenth Amendment which resulted in unfair prejudice.

2.

Appellant’s conviction was against the manifest weight of the
evidence.

(Doc. 11, Ex. 4). The Ross County Court of Appeals affirmed the trial court’s judgment.
(Doc. 11, Ex. 6); State v. Bryant, 2014 WL 7174598 (Ross Cty. App. Dec. 10, 2014).
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C. Appeal to the Ohio Supreme Court
On January 29, 2015, Petitioner, pro se, filed a notice of appeal to the Ohio Supreme
Court (Doc. 11, Ex. 7) together with a motion for delayed appeal (Doc. 11, Ex. 8).
Petitioner’s motion for delayed appeal was accompanied by an affidavit attesting to a
number of reasons for her failure to timely file her appeal, including inability to pay legal
counsel to represent her, failure of the Ohio Public Defender to provide counsel, and the
fact that she did not receive her transcripts until on or about January 12, 2014. Petitioner
also alluded to the fact that the ORW library was closed for most of the month of January
due to a broken heating system. Petitioner’s motion for a delayed appeal was denied on
March 11, 2015. (Doc. 11, Ex. 9); State v. Bryant, 141 Ohio St.3d 1487 (Mar. 11, 2015).
D. Application for Re-Opening of Appeal Pursuant to App.R. 26(B)
Petitioner filed a timely application to re-open her appeal pursuant to App.R. 26(B)
on March 4, 2015. (Doc. 11, Ex. 10). She claimed ineffective assistance of appellate counsel,
raising the following assignments of error:
1.

Appellant was deprived of the effective assistance of appellate
counsel and her rights violated under the Sixth Amendment to
the United States Constitution. Appellate counsel did not raise
the issue of ineffective assistance of trial counsel. Trial Counsel
failed to:
(a)

adequately investigate and prepare for trial and discuss
trial strategy with defendant. Trial Counsel did NOT
request DNA, Serology, and Latent Fingerprint
independent analysis of the drugs, baggies containing
the drugs, scales, and etc. found in Defendant Kim
Bryant’s purse, coat pocket even though Defendant paid
money to have those tests performed.
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(b)

(c)

object on the record when the prosecutor presented
evidence and commented on the defendant’s silence
when interrogated while in police custody limiting
appellate review to plain error only.

(d)

pursuing a professionally unreasonable trial strategy
without discussing the trial strategy with Defendant
and, inter alia, including stipulating to the reliability of
the narcotics dog, stipulating that Defendant would
testify and make certain admissions; and having the
Defendant testify without her consent and being told by
trial counsel that she “had to” testify shifting the burden
of proof to Defendant’s [sic] .

(e)

failing to bring forth the Chillicothe Police Procedures
for traffic stops;

(f)

2.

The State did not overcome its burden for the
warrantless search of Defendant’s vehicle.

failing to question Defendant to dispute the
alleged traffic violations since the Chillicothe
Police failed to use the video/audio equipment
in the police vehicle.

Appellant was deprived of the effective assistance of appellate
counsel and her rights violated under the Sixth Amendment to the
Constitution. Appellate counsel did not raise the issue that the trial
court erred in denying the motion to suppress and not granting a
mistrial in the trial court’s finding that Detectives Campbell and Goble
had reasonable articulable suspicion to stop the motor vehicle in
which Defendant was driving was not supported by sufficient
evidence and was otherwise clearly erroneous; the stop of the vehicle
and all evidence flowing therefrom were obtained in violation of the
Fourth and Fourteenth Amendments to the United States Constitution
and Article I, Section 14 of the Ohio Constitution.

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On April 20, 2015, the Court of Appeals denied her motion because she failed to establish
a genuine issue about whether she had a colorable claim of ineffective assistance of
appellate counsel. (Doc. 11, Ex. 12).
E. Appeal of Denial of 26(B) Motion
Petitioner, acting pro se, appealed the denial of her 26(B) motion to the Ohio
Supreme Court (Doc. 11, Ex. 13-14), asserting the following propositions of law:
I.

Whether the Court of Appeals commits reversible error when a timely
filed App. R. 26(B) Application for Re-Opening is denied when the
affidavit included “some” but not all of the contentions raised in the
assignments of error alleging ineffective assistance of appellate
counsel, resulting in Ms. Bryant’s and defendants like Bryant to never
have an opportunity to fully present her case on the merits to any
court. See, State v, Davis, 119 Ohio St.3d 422 (2008).

II.

Whether a defendant’s right not to incriminate himself both pre and
post Miranda warnings may be violated in prosecutorial misconduct
when the State uses the defendant’s silence as an inference of guilt in
his opening statement, and on cross examination of the government
witnesses.

III.

Whether a U.S. Citizen and resident of Ohio must be free from
unlawful search and seizure in their person and property under the
Fourth Amendment to the United States when they are unlawfully
detained and arrested for an alleged traffic violation by police officers.

IV.

Whether the detention of a defendant, stopped for an alleged traffic
violation, exceeds its proper investigative scope, whether the items
seized during any resulting search must be suppressed under the
“fruits of the poisonous tree” doctrine.

V.

Whether the trial court and appellate court committed reversible error
by determining a mistrial was not the proper remedy when the trial
court admitted it was prejudicial for the prosecutor to use the
defendant’s silence at any point during the closing, opening, direct
examination or cross examination for impeachment purposes.
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VI.

Whether the defendant’s right to effective assistance of counsel were
(sic) violated when defense counsel failed to object to the
prosecutorial misconduct when on direct examination of the detective
and in opening statement the prosecutor commented on the
defendant’s silence as an inference of guilt foreclosing all but plain
error, and failing to raise the issue of the denial of the motion to
suppress on appeal as well as the unlawful search and seizure under
“Terry” and the records of the sidebars from the trial not being made
for purposes of appeal, and inter alia. (sic)

On June 8, 2015, the Ohio Supreme Court sua sponte struck a portion of Petitioner’s
Memorandum in Support of Jurisdiction for exceeding the page limit imposed by
S.Ct.Prac.R. 7.02(B)(1). (Doc. 11, Ex. 15). The Ohio Supreme Court declined to accept
jurisdiction on August 26, 2015. (Doc. 11, Ex. 16); State v. Bryant, 143 Ohio St.3d 1447 (Aug.
26, 2015).
F. Motion for Reconsideration
Petitioner filed a motion for reconsideration to the Ohio Supreme Court on
September 8, 2015, based on the following reasons:
1.

A denial of this Court to accept jurisdiction of this appeal runs counter
to the purpose and principle of Appellate Rule 26(B). State v. Davis,
119 Ohio St. 422 (1986).

2.

The Court of Appeals (sic) denial of Ms. Bryant’s timely filed App.R.
26(B) application would never allow Ms. Bryant or other similarly
situated defendant’s an opportunity to fully present her case to any
court for the violation of her Sixth Amendment right for the effective
assistance of Counsel under the United States Constitution.

On October 28, 2015, the Supreme Court of Ohio denied the motion for reconsideration.
(Doc. 11, Ex. 18); State v. Bryant, 143 Ohio St.3d 1503 (Oct. 28, 2015).

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G. Federal Habeas Corpus
Petitioner timely executed her petition for a writ of habeas corpus on July 9, 2016.
In the petition (Doc. 3) she raises the following grounds for relief:
GROUND ONE Petitioner was deprived of the effective assistance of trial
counsel and appellate counsel and her rights violated under the Sixth
Amendment to the Constitution. Trial counsel failed to adequately
investigate and prepare for trial and discuss trial strategy with Defendant.
Trial Counsel did not request DNA, Serology, and independent Latent
Fingerprint Analysis of the drugs, baggies containing the drugs, scales, and
other evidence found in the Defendant’s purse, coat pocket, even though
Defendant paid trial counsel additional money to have those tests performed;
argue that the State did not overcome its burden for the warrantless search
of the Defendant’s vehicle; object on the record when the State Prosecutor
presented evidence and commented on the Defendant’s silence when
interrogated while in police custody limiting appellate review to plain error
only; pursued a professionally unreasonable trial strategy without discussing
the trial strategy with Defendant and, inter alia, including stipulating to the
reliability of the narcotics dog, stipulating that Defendant would testify and
make certain admissions; and having the Defendant testify without her
consent and being told by trial counsel that she “had to” testify shifting the
burden of proof to Defendant; failing to bring forth the Chillicothe Police
Procedures for traffic stops; and failing to question Defendant to dispute the
alleged traffic violations since the Chillicothe Police failed to use the
video/audio equipment in the police vehicle. Appellate Counsel did not raise
the issue of ineffective assistance of trial counsel; did not raise the issue that
the Trial Court erred in denying the Motion to Suppress; and appellate
counsel did not challenge that trial court’s error of law in not granting a
mistrial based on prosecutorial misconduct; neither did appellate counsel
challenge the stop, search, and seizure which violated the Petitioner’s Fourth
Amendment rights.
GROUND TWO: Petitioner’s right not to incriminate herself both pre and
post Miranda warnings were violated under the Fifth Amendment to the
United States Constitution when in prosecutorial misconduct the State uses
the Petitioner’s silence as an inference of guilt during the trial and on
examination of the government’s witnesses.

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GROUND THREE: Petitioner’s right to be free from unlawful search and
seizure under the Fourth Amendment was violated when the detective used
a traffic violation as the pretext for the stop when they failed to execute the
search warrant of the passenger’s home, and then unlawfully detained the
Petitioner abandoning the purpose of the stop immediately after asking
Petitioner for her driver’s license.
GROUND FOUR: Petitioner’s Fourth Amendment rights were violated
when she was unlawfully detained beyond the time necessary to effectuate
the purpose of a stop for and (sic) alleged traffic violation; and the items
seized during any resulting search must be suppressed under the “fruits of
the poisonous tree” doctrine.
GROUND FIVE: Petitioner’s Fifth Amendment right was violated when the
Trial Court and Appellate Court erred by not declaring a mistrial when the
Prosecutor uses the Defendant’s silence during the trial as in (sic) inference
of her guilt and/or impeachment purposes.
GROUND SIX: Petitioner’s right to the effective assistance of counsel was
violated when defense trial counsel failed to object to the Prosecutorial
misconduct when on examination of the detective the Prosecutor commented
on the Defendant’s silence as an inference of guilt foreclosing all but plain
error, and appellate counsel failing to raise the issue of the denial of the
Motion to Suppress on appeal as well as the unlawful search and seizure
under “Terry”; and the records of the sidebars from the Trial Court not being
made for purposes of appeal, inter alia.
Respondent contends that most of these claims were procedurally defaulted by
Petitioner’s failure properly to preserve them for review during the state court proceedings,
and also asserts that some claims (like any claims based directly on the Fourth
Amendment) are not properly raised in a federal habeas corpus petition. However,
Respondent concedes that Petitioner properly raised, and received a merits decision on, the
ineffective assistance of appellate counsel arguments which she advanced in her Rule 26(B)
motion to reopen. The Court will first address the issue of procedural default.

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II. 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 she fails to do so, but still has an avenue open to
her by which he may present her claims, then her petition is subject to dismissal for failure
to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam)
(citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner has failed to exhaust
her 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. The requirement that a claim be fairly presented to the state courts “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)
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(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that
gives the state courts a fair opportunity to rule on the federal law claims being asserted.
That means that if the claims are not presented to the state courts in the way in which state
law requires, and the state courts therefore do not decide the claims on their merits, neither
may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes,
433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits
in the state proceeding due to respondent's failure to raise them there as required by state
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
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actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice”
analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy
v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause,
petitioner must show that “some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural
default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to 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, supra, 477 U.S. at 479. 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
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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 her 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 her state remedies,”
it could hardly be said that, as comity and federalism require, the State had
been given a “fair 'opportunity to pass upon [her claims].' ” Id., at 854, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis
added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761
(1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on the
merits unless “review is needed to prevent a fundamental miscarriage of justice, such as
when the petitioner submits new evidence showing that a constitutional violation has
probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727
F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).
A. Ground Two and Five: Comment on Petitioner’ Silence
In her second ground for relief, Petitioner asserts that her constitutional rights were
violated when the prosecutor improperly elicited testimony that she had invoked her
Miranda rights when questioned, and then commented on that failure. In ground five,

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Petitioner argues that the trial court erred by not declaring a mistrial after the jury heard
the testimony about her invocation of Miranda. Her first assignment of error on direct
appeal addressed these issues. The Fourth District Court of Appeals rejected the claim,
noting that although the arresting officer was allowed to testify about Petitioner’s silence
and invocation of her Miranda rights, Petitioner subsequently agreed to the admission of
a videotape of the entire exchange between her and the detective questioning her, and also
noting that there was overwhelming evidence of her guilt, so that any error was harmless
beyond a reasonable doubt. State v. Bryant, 2014 WL 7174598, at *3-6.
Petitioner failed to timely appeal this decision to the Ohio Supreme Court, and that
court denied her motion for a delayed appeal. Generally, failure to timely appeal to a state
court constitutes an independent basis on which to conclude that Petitioner’s claims are
defaulted. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). However, this is not always
the case depending on the circumstances. It is necessary to apply the Maupin factors to the
operation of the specific state procedure invoked by the Petitioner, namely the procedure
governing the timing of appeals to the Ohio Supreme Court. Smith v. Ohio Dept. Of
Rehabilitation and Corrections, 463 F.3d 426, 431-32 (6th Cir. 2006).
The petitioner in Smith, like Petitioner here, failed to comply with the state
procedural rule requiring him to file his appeal to the Ohio Supreme Court within a
prescribed time frame. As a result, the Ohio Supreme Court denied his motion for delayed
appeal. As in Petitioner’s case, the Ohio Supreme Court did not give any reasons for the
denial of the motion for delayed appeal, but the Smith court held that given the type of
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motion and circumstances, it was apparent that the grounds were the state procedural bar
and not federal law. Id., n. 3, citing Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991). It also
pointed out that in a prior case, Bonilla v. Hurley, supra, the Court of Appeals had held that
the failure timely to appeal to the Ohio Supreme Court is a procedural default because
“denial of review on the basis of Rule II §2(A)(4)(a) is an adequate procedural ground to
foreclose federal habeas review.” Smith, supra, at 432. Accordingly, the Smith court found
that the petitioner had procedurally defaulted the claims which he had raised on direct
appeal had been procedurally defaulted. Id. The same is true here.
In her motion for delayed appeal, Petitioner asserted, as cause for the delay, her
inability to retain counsel for the appeal, the fact that she did not receive her trial
transcripts until January 12, 2015, and the closing of the ORW law library for “most of the
month of January.” See Return, Doc. 11, Ex. 8. However, there is no right to appointed
counsel in discretionary appeals like the one involved here, so that cannot constitute cause
to excuse the default. Further, she had forty-five days, or until January 22, 2015, to file her
appeal. She had the transcripts at least ten days before the deadline, and there is no
indication in this case that she could not have filed a notice of appeal without them.
Finally, Petitioner asserted no valid reason that she could not have conducted any
necessary research on her appeal (and, given that her claims were limited to those raised,
briefed, and decided in her direct appeal, it is not clear how much additional research was
needed) on the days when the ORW library was open between December 10, 2014 and

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January 22, 2015. None of these factors are sufficient to excuse her failure timely to appeal.
As a result, grounds two and five have been procedurally defaulted.
B. Grounds One and Six: Ineffective Assistance of Trial Counsel
The only other procedural default argument raised by Respondent relates to
Petitioner’s claims, in both grounds one and six, that she was denied the effective assistance
of trial counsel. (She also raised ineffective assistance of appellate counsel claims in those
grounds, and they are not the subject of a claim of procedural default). Both grounds one
and six highlight trial counsel’s failure to object to the testimony about her invocation of
Miranda rights, but they include other instances of alleged ineffectiveness as well, including
the failure to prepare properly for trial, to request various testing of the evidence, properly
to argue the motion to suppress, to stipulate to the qualifications of the narcotics dog, and
to advise her improperly that she had to testify at trial. Some of these claims are apparent
from the face of the record, while others are not. Because Petitioner was represented on
direct appeal by different counsel, she had an obligation to raise any ineffective assistance
of trial counsel claims appearing on the face of the record on direct appeal. The remaining
claims had to be raised, if at all, by way of a post-conviction petition filed under O.R.C.
§2953.21. See State v. Perry, 10 Ohio St. 2d 175 (1967); see also State v. Cole, 2 Ohio St.3d 112
(1982). Petitioner did not include any such claims on direct appeal, nor did she file a postconviction petition, and the time to do so has long since passed. As a result, Respondent
asserts that she defaulted all of her ineffective assistance of trial counsel claims.

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Petitioner did file a timely motion to reopen her appeal in which she argued that
appellate counsel was ineffective in various ways, including failing to raise certain
instances of ineffective assistance of trial counsel. If that argument were accepted, it would
excuse any procedural default as to those claims. Consequently, the Court will defer any
ruling on that issue until it addresses the merits of the ineffective assistance of appellate
counsel claim.
As to the claims which depend on evidence outside the record, appellate counsel
may have had some obligation to advise her about the procedure for filing a postconviction petition, and the State of Ohio may have had an obligation to appoint counsel
for her in such a proceeding. See, e.g., Martinez v. Ryan, -- U.S. --, 132 S.Ct. 1309, 1315-17
(2012). Petitioner did not raise any claim relating to her right to file a post-conviction
proceeding, or the performance of her appellate counsel in connection with such a
proceeding, in her Rule 26(B) motion, however. She may therefore have procedurally
defaulted any such claim. See, e.g., Foster v. Brunsman, 2016 WL 2963425, *2 (S.D. Ohio May
20, 2016). However, the Court will still examine such claims on their merits to the extent
that such an inquiry addresses the issue, relevant to procedural default, of whether
Petitioner was prejudiced by trial counsel’s allegedly deficient performance.
III. Grounds not Cognizable - Grounds Three and Four
In her third ground for relief, Petitioner argues that the traffic stop which led to her
arrest was merely pretextual (and, in fact, that she did not actually commit the traffic
violations which formed the basis for the stop) and that her detention while the narcotics
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dog was summoned was unlawful. Her fourth ground states that because of the unlawful
length of her detention, and evidence seized during the stop was “fruit of the poisonous
tree” any should have been suppressed. She moved to suppress the evidence seized during
the traffic stop and was given a hearing before the trial court. See Return, Ex. 10 (which is
a partial transcript of the hearing). Respondent argues that none of the issues raised in
grounds three or four can form the basis for federal habeas corpus relief. Respondent is
correct.
“Federal habeas corpus relief is unavailable to state prisoners who allege they were
convicted on illegally seized evidence, as long as they were given a full and fair
opportunity to litigate that question in the state courts.” Barksdale v. London Correctional
Inst., 832 F.Supp.2d 836, 842 (S.D. Ohio 2011), citing Stone v. Powell, 428 U.S. 465, 486 (1976).
Petitioner was able to present her Fourth Amendment claim to the state courts and was
given a suppression hearing. But even had she not filed a motion to suppress, Ohio law
allowed her to do so and to raise all of her Fourth Amendment Claims. It is the
opportunity to do so which forecloses federal habeas relief. As the Court of Appeals
recently observed in Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013),
the Powell “opportunity for full and fair consideration” means an available
avenue for the prisoner to present his claim to the state courts, not an inquiry
into the adequacy of the procedure actually used to resolve that particular
claim.... [T]hat is what Powell said: It focused on the opportunity for fair
consideration presented by the state courts, not the procedure used in a given
case to address the specific argument of a given defendant. In the absence of
a sham proceeding, there is no need to ask whether the state court conducted
an evidentiary hearing or to inquire otherwise into the rigor of the state
judiciary's procedures for resolving the claim.
18

Because Petitioner had the opportunity to argue all of her Fourth Amendment claims
before the Ohio courts, and there is no evidence that those courts conducted (or would
have conducted) “sham proceedings” to resolve them, this Court cannot even consider the
merits of those claims. Grounds Three and Four must be dismissed on that basis.
IV. Grounds One and Six - Merits Review
Because Petitioner’s second and fifth grounds for relief have been procedurally
defaulted, and her third and fourth grounds for relief cannot be heard in a federal habeas
corpus case, the only claims which the Court can evaluate on their merits are her first and
sixth grounds for relief. Before turning to a specific consideration of those claims, the
Court sets out the standard under which state court decisions are reviewed in a federal
habeas corpus proceeding.
A. Legal Standard
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. 104–132,
110 Stat. 1214 (“AEDPA”) govern the scope of This Court's review. See Penry v. Johnson, 532
U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). AEDPA imposes a
“highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and “demands that state-court decisions be given the benefit of the
doubt,” Woodford v. Visciotti, 537 U.S. 19, 24,(2002) (per curiam).
When the claims presented in a habeas corpus petition have been presented to and
decided by the state courts, a federal habeas court may not grant relief unless the state
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court's decision was contrary to or an unreasonable application of clearly established
federal law, or based on an unreasonable determination of the facts in light of the evidence
that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim-

(1)

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

(2)

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

In applying this statute, the Supreme Court has held that “[t]he focus... is on whether the
state court's application of clearly established federal law is objectively unreasonable... an
unreasonable application is different from an incorrect one.” To obtain habeas corpus relief,
a petitioner must show the state court's decision was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (per curiam), quoting
Harrington v. Richter, 562 U.S. 86, 101-103 (2011). This bar is “difficult to meet” because
“habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Harrington v.
Richter, 562 U.S. at 102 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979) (Stevens,
20

J., concurring in judgment)). In short, “[a] state court's determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court's decision.” Id., quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004).
In situations where the state courts have not adjudicated the merits of a claim, a
federal habeas court should review a Petitioner's claim de novo. Howard v. Bouchard, 405 U.S.
459, 467 (6th Cir. 2005) (“Where the state court has not addressed or resolved claims based
on federal law, most courts, including this one, have held that the decision is not an
‘adjudication on the merits.’ Thus, a federal habeas court reviews such unaddressed claims
de novo.”); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003) (reviewing habeas Petitioner's
sufficiency-of-the-evidence claim de novo where the state courts had considered the
admissibility of the evidence but not the sufficiency of the evidence); Pennington v. Jones,
2006 WL 322474, at *2 (E.D. Mich. Feb.10, 2006) (reviewing habeas Petitioner's claim de novo
where he raised it for the first time in her petition).
Questions of state law are not reviewable in a federal habeas action. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“We have stated many times that federal habeas corpus
relief does not lie for errors of state law. Today, we reemphasize that it is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions.”)
(citations and internal quotation marks omitted). Petitioner instead must show that “he is
in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68 (“In conducting habeas review, a federal
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court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.”). Accordingly, the Court of Appeals has held that “[e]rrors by a state
court in the admission of evidence are not cognizable in habeas corpus proceedings unless
they so perniciously affect the prosecution of a criminal case as to deny the defendant the
fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
B. Ineffective Assistance of Counsel
Petitioner’s first and sixth grounds for relief are both based on ineffective assistance of
trial counsel and ineffective assistance of appellate counsel. She claims that trial counsel:
• failed adequately to prepare for trial or discuss defense strategy with her;
• failed to object to prosecutorial references to her not testifying;
• failed to request DNA, serology and independent fingerprint analysis of the drugs and
related evidence;
• failed to argue against using evidence obtained from the State’s warrantless search of
her vehicle;
• failed to object to the denial of the motion to suppress;
• stipulated to the reliability of the narcotics dog;
• failed to raise Chillicothe police procedures for traffic stops; and
• failed to make use of audio and video footage from police vehicle.
Petitioner also raises ineffective assistance of appellate counsel in this ground for relief,
arguing that counsel was ineffective for

• failing to raise ineffective assistance of trial counsel
• failing to raise the trial court’s error in not granting a mistrial based on prosecutorial
misconduct; and
• failing to argue that the trial court erred by admitting evidence obtained during the
police stop of Petitioner’s vehicle.
These claims are evaluated under the following legal standard, in addition to the general
principles applicable under the AEDPA. It is important to note, however, that the AEDPA
22

has been held to “require that the federal court use a ‘doubly deferential’ standard of
review that gives both the state court and the defense attorney the benefit of the doubt.”
See Burt v. Titlow, 134 S.Ct. 10, 13 (2013).
The right to counsel guaranteed by the Sixth Amendment is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for
reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that deficient
performance prejudiced the defense. This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong of the
Strickland test, “[b]ecause of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. For the second prong of the Strickland test,
a petitioner must show that there is a reasonable probability that, but for counsel’s errors,
the result of the proceedings against her would have been different. Id. at 694. Both prongs
of the Strickland test must be met, so if a court determines that a petitioner has failed to
satisfy one prong, it is not required to consider the other. Id at 697.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781–82
(1987). Counsel must provide reasonable professional judgment in presenting the appeal.
Evitts v. Lucey, 469 U.S. 387, 396–97(1985). “ ‘[W]innowing out weaker arguments on appeal
23

and focusing on’ those more likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527 (1986) (quoting
Jones v. Barnes, 463 U.S. 745, 751–52 (1983)). In determining whether appellate counsel
performed in a constitutionally ineffective manner, the Court considers whether the
omitted issues were “significant and obvious” and clearly stronger than those raised;
whether they were objected to at trial; whether the trial court's rulings would be subject to
a deferential standard of review; whether there existed arguably contrary authority on
omitted issues; whether appellate counsel testified in a collateral proceeding as to
justifiable grounds for his appellate strategy; appellate counsel's level of experience and
expertise; whether the petitioner and appellate counsel reviewed potential issues for
appeal, and whether counsel reviewed all of the facts; whether the omitted issues were
dealt with in other assignments of error; and whether only an incompetent attorney would
have omitted the issue on appeal. This list is not exhaustive, and merely includes factors
to be considered by the court. Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir.1999).
1. Trial Counsel
Petitioner argues that her trial counsel was ineffective because he did not adequately
prepare for trial, discuss trial strategy with her, and failed to request independent analysis
of the evidence seized from her by law enforcement officers during the traffic stop. She
argued in her affidavit accompanying her Rule 26(B) motion that (1) “it was agreed to have
the DNA and fingerprint analysis done on the drugs found in the pocket of the jacket she
was wearing and the drugs found in the purse, along with the scales and other
24

paraphernalia”; (2) “that defendant paid counsel to have those services performed and
[trial counsel] failed to do the same”; and (3) “neither the DNA or fingerprints could have
been found on those items because she never handled them and they were placed there by
the passenger in her car, and/or the detective searching her person.” (Doc. 11, Ex. 12, ¶16).
The state appeals court evaluated this claim under the proper standard. See Return,
Ex. 12. It rejected the first several portions of her claim (i.e. the allegations about failing to
prepare for trial and not ordering tests) because the supporting affidavit she filed with her
Rule 26(B) motion did not contain any facts to support those claims. It reasoned that the
purpose of the affidavit requirement was to permit the appellate court to ascertain the facts
behind an assertion of ineffective assistance of counsel, and that the absence of a factual
record precluded it from doing so. It is difficult to view that decision as unreasonable.
Certainly, there is no controlling federal law that mandates a state court to make factual
determinations in the absence of an adequate record. Consequently, this Court cannot
overturn the state appellate court’s decision as to these claims.
Next, the state court addressed the claim that trial counsel should have made better
arguments about the validity of the stop and search of her car. As the state court observed,
however, counsel filed a motion to suppress and the trial court held a hearing. Further,
Petitioner did not specify in her affidavit how he should have litigated the issue differently.
Another portion of this claim related to counsel’s alleged failure to bring up Chillicothe
police procedures about traffic stops and dash cameras, but, as the state court noted,

25

counsel did raise this matter during the suppression hearing. Again, the state appellate
court was justified in declining to grant relief on this claim.
The state court of appeals then considered the claim that trial counsel was ineffective
for failing to object to the testimony about Petitioner’s invocation of her Miranda rights. It
agreed that counsel failed to preserve the issue for all but plain error review by not
objecting, but the court said that Petitioner could not show prejudice because, as part of its
plain error review, it determined that any error was harmless beyond a reasonable doubt
due to the overwhelming evidence of Petitioner’s guilt.
A state court’s harmless error determination is itself subject to deference under the
AEDPA. See Davis v. Ayala, 135 S.Ct. 2187 (2015). Davis held that when a state court has
found harmless error, “relief is proper only if the federal court has ‘grave doubt about
whether a trial error of federal law had “substantial and injurious effect or influence in
determining the jury's verdict.’‘ ” Id. at 2197-98, quoting O'Neal v. McAninch, 513 U.S. 432,
436 (1995).
Applying that standard of review, this Court cannot say that the state court made an
unreasonable determination as to whether trial counsel’s failure to object was harmless
error. Certainly, once the parties agreed that the totality of Petitioner’s interaction with the
investigating detective would come into evidence, any harm resulting from the initial
testimony was substantially cured - and that is why, apparently, defense counsel wanted
the jury to see the entire interaction. Further, there was a substantial amount of evidence
of Petitioner’s guilt, and her uncorroborated testimony that all of it was either planted by
26

the police or was property of the other occupant of the car was just that - uncorroborated.
Counsel might have been more quick to object, but he did eventually bring the issue to the
trial court’s attention, obtained what he thought was an adequate cure, and was
confronting a substantial amount of evidence of guilt. Under these circumstances, this
Court simply cannot second-guess the state court’s decision on the harmless error issue.
Lastly, the Fourth District Court of Appeals considered the assertions that trial
counsel was ineffective for failing to challenge the qualifications of the drug dog and for
having her testify. As to the former, the court rightly noted that Petitioner presented no
evidence that a challenge to the dog’s qualifications would have succeeded; without a
factual basis to support her claim, Petitioner could not have expected it to be resolved in
her favor. As to the decision to testify, the court noted that given the fact that drugs, cash,
and drug paraphernalia were found in Petitioner’s coat pocket and in her purse, if she had
not testified, there would have been no evidence to rebut the inference that she knowingly
possessed all those items. Further, this Court notes that Petitioner has not argued that she
was prejudiced by taking the stand by, for example, having to reveal a criminal past that
the jury would otherwise have been unaware of. Under these circumstances, the state
court’s conclusion that these matters constituted reasonable trial strategy and that
Petitioner had not shown prejudice are entitled to deference as not being unreasonable
applications of federal law. For all of these reasons, this Court cannot grant Petitioner any
relief on her various assertions of ineffective assistance of trial counsel even if those claims
had been properly preserved for federal habeas corpus review.
27

2. Appellate Counsel
Petitioner argues that appellate counsel was ineffective for failing to raise ineffective
assistance of trial counsel on direct appeal. Petitioner also asserts that her appellate counsel
was ineffective for not arguing on appeal that the trial court’s decision to deny her motion
to suppress was erroneous. Finally, Petitioner asserts that appellate counsel was ineffective
for failing to argue that the trial court committed a reversible error in not granting a
mistrial based on prosecutorial misconduct and by not arguing that the trial court erred by
admitting evidence obtained during the police stop of Petitioner’s vehicle.
As to the first of these claims, the state court of appeals concluded that because none
of the claims of ineffective assistance of trial counsel had merit, appellate counsel could not
have been ineffective for failing to raise them. Again, under Strickland and Evitts, the
absence of prejudice is fatal to an ineffective assistance of counsel claim, so the state court
of appeals applied the proper legal standard, and, under the AEDPA, its application of that
standard cannot form the basis for federal habeas corpus relief unless that application was
unreasonable. This Court has already concluded that the determination that none of
Petitioner’s claims of ineffective assistance of trial counsel had merit was not unreasonable.
It follows that not faulting appellate counsel for his failure to raise those claims is also not
an unreasonable act. Petitioner is therefore not entitled to relief on the first of her claims
of ineffective assistance of appellate counsel.
As to the second part of this claim, the state court held that appellate counsel was
not ineffective for deciding not to raise an issue about the trial court’s denial of the motion
28

to suppress. It noted that the trial court held a hearing at which police officers testified that
Petitioner committed two separate traffic offenses and that they had probable cause to stop
her. It is always a difficult task to overturn factual determinations made by a trial court
after taking evidence at a suppression hearing. Those findings are immune from reversal
on appeal unless clearly erroneous, meaning that “a reviewing court is bound to accept the
factual determinations of a trial court during a suppression hearing so long as they are
supported by competent and credible evidence.” State v. Long, 127 Ohio App.3d 328, 332
(Ross Co. App. 1996). Further, on the issue of pretext, the Supreme Court has held that a
“pretextual stop” does not violate the Fourth Amendment when officers have a valid basis
to stop a motorist even if their true motivation is to search for contraband. Whren v. United
States, 517 U.S. 806, 812-813 (1996). The state court of appeals also reviewed, and rejected,
the claim that the use of an unmarked vehicle for the traffic stop violated Ohio law and that
the use of the drug dog violated the Fourth Amendment. This Court agrees with the state
court that a reasonable appellate attorney could have concluded that there was no
likelihood of reversal on the issue raised by the motion to suppress, so that court’s
determination that counsel was not ineffective for failing to raise that issue cannot be
considered to be unreasonable.
As to the third and final alleged instance of ineffective assistance of appellate
counsel, Petitioner makes a separate argument about the failure of appellate counsel to
raise the issue about the trial court’s failure to grant a mistrial. Counsel did, however, raise
the claim that the introduction of the testimony about her invocation of Miranda violated
29

her constitutional rights, so the factual predicate of this claim - that counsel should have
presented this issue to the state court of appeals - seems to be absent. Further, in light of
that court’s determination that any error surrounding the admission of that testimony was
harmless (and this Court’s conclusion that this determination was not unreasonable), there
was no likelihood that had appellate counsel stressed the issue differently, he would have
prevailed on appeal. The state court had the chance, through appellate counsel’s efforts,
to find error in the trial court’s refusal to grant a mistrial, and it did not. Counsel was not
ineffective with respect to that issue.
V. Conclusion
For the foregoing reasons, it is RECOMMENDED that the petition for a writ of
habeas corpus be DENIED and that this case be DISMISSED.
VI. Procedure on Objections
If any party objects to ther Report and Recommendation, that party may, within
fourteen days of the date of ther 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 ther 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 ther
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).
30

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).

/s/ Terence P. Kemp
United States Magistrate Judge

31