Taylor v. Warden London Correctional Institution
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Ricky R Taylor, II. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 10/20/2017. Signed by Magistrate Judge Chelsey M. Vascura on 10/6/2017. (kdp)(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
RICKY R. TAYLOR, II,
CASE NO. 2:16-CV-780
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura
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, it is
RECOMMENDED that this action be DISMISSED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
Early in the morning hours of May 4, 2013, R.M. and his fiancée,
D.W., were in their car after leaving Club 57 near the intersection
of Livingston Avenue and Beechwood Road in Columbus. As they
prepared to drive away, appellant approached the driver's door and
pointed a gun at them. Appellant then opened the driver's door and
ordered R.M. and D.W. at gunpoint to give him all of their money
and other property. After D.W. emptied her handbag and gave
appellant her bank card, R.M. handed over some money from his
Appellant then directed R.M. and D.W. to exit the vehicle and take
off their clothes. At this time, appellant took from R.M. over $700
in cash, his state identification card, wallet, and jewelry. Appellant
then ordered D.W. to get up off the ground and, at gunpoint, took
her to the rear of the vehicle. Appellant told D.W., who was
wearing only her top, to put his penis into her vagina. D.W. could
not comply initially because, according to her, appellant had an
insufficient erection, and D.W. was using a tampon.
Appellant ordered D.W. to remove the tampon, and she dropped it
on the ground. Appellant again attempted to penetrate D.W., and
this time succeeded. Appellant engaged in sexual intercourse with
D.W. for a few minutes, stopping only when D.W. told him that
she had recently given birth. Appellant then told D.W. to get back
on the ground and said that he was leaving to rob some other
people who were just then leaving the club. Appellant threatened
that someone else in a nearby vehicle would shoot R.M. and D.W.
if either of them moved.
After a few moments, R.M. and D.W. got up and drove away. As
the two stopped at the club to inform security of the robbery and
sexual assault, they heard gunshots. R.M. then took D.W. to Grant
Hospital, where she underwent a sexual assault examination. The
sexual assault nurse examiner found semen in D.W.'s underwear
that was recovered and analyzed.
Later that same night, Columbus police officers responded to the
report of a shooting victim at an apartment building on Maumee
Bay Way in Columbus. When police arrived, they found appellant,
the shooting victim, on the ground. The officer who put appellant
into an ambulance checked his pockets for weapons and found
over $700 in cash and R.M.'s state identification. Investigators also
found a gold necklace belonging to R.M. at the scene. The crime
scene investigators later responded to the Club 57 scene where
they found spent shell casings, a spent projectile, loose change, a
cigarette pack, and a tampon.
The next day, R.M. identified appellant in a photo array, although
D.W. was unable to identify anyone in the array presented to her.
After appellant emerged from a coma, a police detective spoke to
him at the hospital. In this initial police interview, appellant said
that he had been shot on May 2, 2013 in a shootout in the
Whitehall Kroger parking lot. A few days later, appellant spoke to
another detective and repeated the same account. Appellant denied
being present at Club 57 or having sexual intercourse with D.W.
that night. Appellant said he had no knowledge of any of the
events of May 4, 2013 and did not know how R .M.'s property
ended up in his pockets. At trial, appellant attributed these
comments to memory loss arising from his shooting and testified
that he was at Club 57 on May 4 to complete a drug deal with R.M.
and that D.W. was not present.
Appellant was charged by indictment filed on May 23, 2013, with
two counts of aggravated robbery; two counts of robbery, felonies
of the second degree; two counts of robbery, felonies of the third
degree; two counts of kidnapping; one count of rape; and one
count of having a weapon while under disability. All counts except
the last were charged with firearm specifications. Appellant pled
not guilty to all the charges, and a jury trial began on March 18,
On March 21, 2014, the jury returned a verdict, finding appellant
guilty on all counts, including the firearm specifications. For the
purposes of sentencing, the trial court merged the two robbery
counts and one kidnapping count into the aggravated robbery count
with respect to D.W.; the two robbery counts and one kidnapping
count into the aggravated robbery count with respect to R.M.; and
all the specifications, with the exception of those charged in the
aggravated robbery and rape counts with respect to D.W.
Appellant was sentenced to 11 years on each aggravated robbery
count and the rape count, and 3 years on the weapon under
disability count. The court ordered that the aggravated robbery
count with respect to D.W., the rape count, the weapon while
under disability count, and the two firearm specifications be served
consecutively. The court also ordered that the aggravated robbery
count with respect to R.M. be served concurrently to the other
counts and specifications, for a total incarceration of 31 years. The
court also informed appellant that he was a Tier III sexual offender
and would be required to register and verify his address in person
every 90 days.
II. Assignment of Error
Appellant assigns the following error:
The trial court violated Defendant–Appellant's rights to due
process and a fair trial when in the absence of sufficient evidence
and against the manifest weight of evidence the trial court found
Defendant–Appellant guilty of aggravated robbery, robbery,
kidnapping, rape, having a weapon while under disability, and
State v. Taylor, No. 14AP-254, 2015 WL 3857079, at *1-3 (Ohio App. 10th Dist. June 23, 2015).
On June 23, 2015, the appellate court affirmed the judgment of the trial court. Id. On October
28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Taylor,
143 Ohio St.3d 1502 (Ohio 2015). On September 22, 2015, Petitioner filed an application for
reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6-1, PageID# 221.)
On February 18, 2016, the appellate court denied the Rule 26(B) application. (PageID# 236.)
On June 15, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Taylor, 146 Ohio St.3d 1417 (Ohio 2016); (PageID# 275.)
On August 11, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He asserts that he was denied his right to a speedy trial (claim one); that the
trial court improperly failed to merge firearm specifications, and he was denied the effective
assistance of counsel because his attorney failed to raise the issue (claim two); that he was denied
the effective assistance of trial counsel because his attorney failed to have DNA tested (claim
three); and that he was denied the effective assistance of appellate counsel (claim four).
Petitioner additionally asserts that the evidence is constitutionally insufficient to sustain his
convictions and that his convictions are against the manifest weight of the evidence. See Reply
(ECF No. 9, PageID# 772-777.) It is the position of the Respondent that these claims fail to
provide relief or are procedurally defaulted.
Petitioner asserts that he was denied the right to a speedy trial. To the extent that
Petitioner asserts the alleged violation of state law, this claim does not provide him relief. See
Jackaway v. Woods, No. 15-cv-11491, 2016 WL 304739, at *3 (E.D. Mich. Jan. 26, 2016)(“[a]
violation of a state speedy trial law by state officials, by itself, does not present a cognizable
federal claim that is reviewable in a habeas petition”)(citing Burns v. Lafler, 328 F. Supp. 2d
711, 722 (citing Poe v. Caspari, 39 F. 3d 204, 207 (8th Cir. 1994), cert. denied., 514 U.S. 1024
(1995); Wells v. Petsock, 941 F. 2d 253, 256 (3rd Cir. 1991), cert. denied, 505 U.S. 1223
(1992)); Younker v. Warden, No. 1:10-cv-875, 2011 WL 2982589, at *10 (S.D. Ohio June 24,
2011)(claims based solely on a violation of Ohio's speedy trial statute do not present a
cognizable federal constitutional claim subject to review in habeas corpus proceedings)(citing
Norris v. Schotten, 146 F.3d 314, 328–29 (6th Cir.), cert. denied, 525 U.S. 935 (1998)) (other
citations omitted). This Court reviews a state prisoner's habeas corpus petition only on the
grounds that the challenged confinement is in violation of the Constitution, laws or treaties of the
United States. 28 U.S.C. § 2254(a). A federal court does not issue a writ of habeas corpus “on
the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). Moreover,
a federal habeas court does not function as an additional state appellate court reviewing state
courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988),
cert. denied, 488 U.S. 1011 (1989). “‘[F]ederal courts must defer to a state court's interpretation
of its own rules of evidence and procedure’” in considering a habeas petition. Machin v.
Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)(quoting Panzavecchia v. Wainwright, 658
F.2d 337, 340 (11th Cir. 1984)). “Generally, a federal habeas court sitting in review of a statecourt judgment should not second guess a state court's decision concerning matters of state law.”
Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001)(citing Gall v. Parker, 231 F.3d 265, 303
(6th Cir. 2000)(“[p]rinciples of comity and finality equally command that a habeas court cannot
revisit a state court's interpretation of state law, and in particular, instruct that a habeas court
accept the interpretation of state law by the highest state court on a petitioner's direct appeal”),
cert. denied, 533 U.S. 941 (2001)), cert. denied, 535 U.S. 940 (2002). “[T]his Court must defer
to and is bound by the state courts' determination that Ohio's speedy trial statute was not
violated[.]” Younker, 2011 WL 2982589, at *10 (citing Caddy v. Ohio, No. 3:07cv339, 2010
WL 2640073, at *3 (S.D.Ohio May 18, 2010)(internal citations omitted), adopted, 2010 WL
2629797 (S.D. Ohio June 29, 2010)(Black, J.).
Likewise, to the extent that Petitioner presents a claim that his conviction is against the
manifest weight of the evidence, this issue does not provide a basis for relief. See Williams v.
Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016)(citing Nash v.
Eberlin, 258 F. App’x 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2017
WL 525561, at *5 (N.D. Ohio Feb. 9, 2017)(citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL
1337102, at *3 (S.D. Ohio)(“[w]hether a conviction is against the manifest weight of the
evidence is purely a question of Ohio law”)); see also Taylor v. Warden, Lebanon Correctional
Inst., No. 2:16-cv-237, 2017 WL 1163858, at *10–11 (S.D. Ohio March 29, 2017) (same)
Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—
as opposed to one based upon insufficient evidence—requires the appellate court to act as a
“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility
of witnesses to determine whether “the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a
federal habeas court does not function as an additional state appellate court, vested with the
authority to conduct such an exhaustive review, petitioner's claim that his convictions were
against the manifest weight of the evidence cannot be considered by this Court.
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to
protect the constitutional rights of criminal defendants, and in order to prevent needless friction
between the state and federal courts, a state criminal defendant with federal constitutional claims
is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If he fails to do so, but still has an avenue open to him by which he may present his claims, 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 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, 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 state procedural rule was not complied with, and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate that there was cause for him not to follow the
procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This
“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the
appellate level. Leroy v. Marshall, 757 F.2d 94, 99-100 (6th Cir.), cert. denied, 474 U.S. 831
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, 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.), cert. denied, 546 U.S. 1017 (2005). Or, if procedurally defaulted,
petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the
ineffective-assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The
Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas,
habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The
independent and adequate state ground doctrine ensures that the
States' interest in correcting their own mistakes is respected in all
federal habeas cases.” 501 U.S., at 732, 111 S.Ct. 2546, 115
L.Ed.2d 640. We again considered the interplay between
exhaustion and procedural default last Term in O'Sullivan v.
Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999),
concluding that the latter doctrine was necessary to “ ‘protect the
integrity’ of the federal exhaustion rule.” Id., at 848, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be utterly
defeated if the prisoner were able to obtain federal habeas review
simply by “ ‘letting the time run’ ” so that state remedies were no
longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144
L.Ed.2d 1. Those purposes would be no less frustrated were we to
allow federal review to a prisoner who had presented his claim to
the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it. In
such circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a “fair
‘opportunity to pass upon [his claims].’ ” Id., at 854, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)
(emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70
S.Ct. 587, 94 L.Ed. 761 (1950)).
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,
U.S. , 135 S. Ct. 1545 (2015).
Petitioner asserts that he was denied his constitutional right to a speedy trial, that the trial
court improperly failed to merge firearms specifications as constituting allied offenses of similar
import, and that he was denied the effective assistance of trial counsel. However, Petitioner
failed to raise these same claims on direct appeal, where he was represented by new counsel. He
may now no longer do so under Ohio’s doctrine of res judicata. See State v. Cole, 2 Ohio St. 3d
112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981); State v. Perry, 10 Ohio St. 2d 175 (1967).
Additionally, the United States Court of Appeals for the Sixth Circuit has held that Ohio’s
doctrine of res judicata constitutes an adequate and independent state ground to preclude federal
habeas corpus review. See Williams v. Bagley, 380 F.3d 932, 966-67 (6th Cir. 2004)(citing
Greerl, 264 F.3d at 673; Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002); Jacobs v. Mohr,
265 F.3d 407, 417 (6th Cir. 2001); Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir.), cert. denied,
528 U.S. 946 (1999)), cert. denied, 544 U.S. 1003 (2005). This Court has consistently
determined that Ohio's res judicata rules serve important state interests in the finality of criminal
convictions. See, e.g. Davis v. Morgan, No. 2:15-cv-00613, 2016 WL 6493420, at *11 (S.D.
Ohio Nov. 2, 2016), adopted and affirmed, 2017 WL 56034 (S.D. Ohio Jan. 5, 2017). Petitioner
has thereby procedurally defaulted the foregoing claims for relief.
He may still secure review of the merits of his claims if he demonstrates cause for his
failure to follow the state procedural rules, as well as actual prejudice from the constitutional
violations that he alleges. “[P]etitioner has the burden of showing cause and prejudice to
overcome a procedural default.” Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001)(citing
Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999)(internal citation omitted)). A petitioner's pro
se status, ignorance of the law, and ignorance of procedural requirements are insufficient bases to
excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.), cert. denied, 543
U.S. 989 (2004). Instead, in order to establish cause, a petitioner “must present a substantial
reason that is external to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492
F.3d 347, 358 (6th Cir. 2007), cert. denied sub nom., Hartman v. Bobby, 554 U.S. 924 (2008).
As cause for his procedural default, and in habeas corpus claim four, Petitioner asserts the
denial of the effective assistance of appellate counsel. This Court will consider the merits of that
claim, in order to determine whether Petitioner can establish cause and prejudice for his
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 statecourt rulings, and demands that state court decisions be given the benefit of the doubt”) (internal
quotation marks, citations, and footnote omitted).
The AEDPA limits the federal courts' authority to issue writs of habeas corpus and
forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated
on the merits in State court proceedings” unless the state court decision either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
Further, under the AEDPA, the factual findings of the state court are presumed to be
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
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, 551 U.S. 1134 (2007)),
, 134 S. Ct. 315 (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
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
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).
Ineffective Assistance of Appellate Counsel
“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . .
. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that
his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687;
Hale v. Davis, 512 F. App’x 516, 520 (6th Cir.), cert. denied,
, 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), and 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).
The Strickland test applies to appellate counsel. Smith v. Robbins,
528 U.S. 259, 285, 120 S.Ct. 746 (2000); Burger v. Kemp, 483
U.S. 776 (1987).... Counsel's failure to raise an issue on appeal
amounts to ineffective assistance only if a reasonable probability
exists that inclusion of the issue would have changed the result of
the appeal. Id...... The attorney need not advance every argument,
regardless of merit, urged by the appellant. Jones v. Barnes, 463
U.S. 745, 751–752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)
(“Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most
on a few key issues.” 463 U.S. 751–52).
Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D.
Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been
denied the effective assistance of appellate counsel include:
(1) Were the omitted issues “significant and obvious”?
(2) Was there arguably contrary authority on the omitted issues?
(3) Were the omitted issues clearly stronger than those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court's rulings subject to deference on appeal?
(6) Did appellate counsel testify in a collateral proceeding as to his
appeal strategy and, if so, were the justifications reasonable?
(7) What was appellate counsel's level of experience and expertise?
(8) Did the petitioner and appellate counsel meet and go over
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments of
(11) Was the decision to omit an issue an unreasonable one which
only an incompetent attorney would adopt?
Mapes, 171 F.3d at 427–28 (citations omitted).
The United States Supreme Court has cautioned federal habeas courts to “guard against
the danger of equating unreasonableness under Strickland with unreasonableness under
§ 2254(d).” Harrington, 562 U.S. at 105. The Court observed that, while “‘[s]urmounting
Strickland's high bar is never . . . easy,’ . . . , [e]stablishing that a state court's application of
Strickland was unreasonable under § 2254(d) is even more difficult.” Id. (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010), and citing Strickland, 466 U.S. at 689). The Supreme Court
instructed that the standards created under Strickland and § 2254(d) are both “‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
Thus, when a federal habeas court reviews a state court's determination regarding an ineffective
assistance of counsel claim, “[t]he question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard.” Id.
A. Speedy Trial
Petitioner asserts that he was denied the effective assistance of appellate counsel because
his attorney failed to assert on appeal that he had been denied the right to a speedy trial. The
state appellate court, applying the standard set forth in Strickland, rejected this claim in relevant
part as follows:
Appellant’s first proposed assignment of error concerns an alleged
violation of his right to speedy trial under the U.S. and Ohio
Constitutions. An accused is guaranteed the constitutional right to
a speedy trial pursuant to the Sixth and Fourteenth Amendments of
the U.S. Constitution and Ohio Constitution, Article I, Section 10. .
The proper standard of review in speedy trial cases is simply to
count the number of days passed, while determining to which party
the time is chargeable under the various tolling events described in
R.C. 2945.71 and 2945.72. . . .
Upon demonstrating that more than the defined period has elapsed
before trial, a defendant establishes a prima facie case for dismissal
based on a speedy trial violation. . . . Once a defendant establishes
a prima facie case for dismissal, the state bears the burden to prove
that time was sufficiently tolled and the speedy trial period
If the court finds that the state did not violate appellant’s statutory
right to a speedy trial, pursuant to R.C. 2945.71, the court must
next address whether his constitutional right to a speedy trial was
violated. In Barker v. Wingo, 407 U.S. 514, 530 (1972), the
United States Supreme Court set forth four factors to consider
when evaluating whether an appellant’s right to a speedy trial was
violated: (1) whether the delay before trial was uncommonly long,
(2) whether the government or criminal defendant is more to blame
for the delay, (3) whether in due course, the defendant asserted his
right to a speedy trial, and (4) whether he suffered prejudice as a
result of the delay. These factors are balanced in a totality of the
circumstances setting with no one factor controlling. Id. The
Supreme Court of Ohio has recognized this test to determine if an
individual’s constitutional speedy trial rights have been violated.
State v. Selvage, 80 Ohio St.3d 465, 467 (1997).
The first of these factors, the length of the delay, “is to some extent
a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance.” Barker at 530; Doggett v.
United States, 505 U.S. 647, 651 (1992). Therefore, the Barker
analysis is only triggered once a “presumptively prejudicial” delay
is shown. Id. at 651-52; State v. Yuen, 10th Dist. No. 03AP-513,
2004-Ohio-1276, ¶ 10. Generally, delay is presumpotively
prejudicial as it approaches one year. State v. Miller, 10th Dist.
No. 04AP-285, 2005-Ohio-518, ¶ 12.
The record reflects numerous continuances between July 23, 2013
and the trial date of March 18, 2014. On July 23, 2013, a waiver
of right to speedy trial until September 11, 2013 was docketed.
This waiver was signed by counsel but there is a notation that
appellant “refused to sign.” On September 11, 2013, a waiver of
right to speedy trial until October 9, 2013 was docketed. This
waiver was signed by counsel but there is a notation that appellant
“refused to sign.” Furthermore, although this waiver was docketed
on October 10, 2013, and there is no transcript of proceedings from
October 9 or 10, 2013, it does appear from other documents
docketed that the waiver of right to speedy trial was signed and
provided to the court on October 9, 2013. On October 24, 2013, a
waiver of right to speedy trial until October 28, 2013 was
docketed. This waiver was signed by counsel but there is a
notation that appellant “refused to sign.” On November 5, 2013, a
waiver of right to speedy trial until December 16, 2013 was
docketed. This waiver was signed by appellant’s counsel but there
is a notation that appellant “refused to sign.” Furthermore,
although this waiver was docketed on November 5, 2013, and there
is no transcript of proceedings from November 5, 2013, it does
appear from other documents docketed that the waiver of right to
speedy trial was signed and provided to the court on October 28,
2013, including a recognizance bond. On December 17, 2013, a
waiver of right to speedy trial until January 27, 2014 was docketed.
This waiver was signed by appellant’s counsel but there is a
notation that appellant “refused to sign.” Furthermore, it does
appear from other documents docketed that the waiver of right to
speedy trial was signed and provided to the court on December 16,
2013. On January 27, 2014, a waiver of right to speedy trial until
March 18, 2014 was docketed. This waiver was signed by
appellant’s counsel and was also signed by appellant. On March
25, 2014, a judgment entry was docketed indicating that appellant
was tried by a jury on March 19, 2014. Nevertheless, it appears
from volume I of the transcript that trial began on the afternoon of
March 18, 2014.
Appellant argues he never requested any type of continuances
“what so ever” and consistently requested that his speedy trial
rights be protected. (Application for Reopening.) We note that
most of the associated waivers were solely executed by his defense
counsel and some of them reveal that appellant refused to sign the
waiver. However, the last waiver does contain the signature of
appellant. Nevertheless, this does not create a speedy trial issue in
“It is well-established a defendant is bound by the actions of
counsel in waiving speedy trial rights by seeking or agreeing to a
continuance, even over the defendant’s objections.” State v. Glass,
10th Dist. No. 10AP-558, 2011-Ohio-6287, ¶ 17, citing State v.
McQueen, 10th Dist. No. 09AP-195, 2009-Ohio-6272, ¶ 37. “A
defendant’s right to be brought to trial within the time limits
expressed in R.C. 2945.71 may be waived by his counsel for
reasons of trial preparation and the defendant is bound by the
waiver even though the waiver is executed without his consent.”
State v. McBreen, 54 Ohio St.2d 315 (1978), syllabus; see also
State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 22.
Given this precedent, we give full effect to the waivers executed by
appellant’s trial counsel. Accordingly, we find that appellant has
failed to establish a colorable claim of ineffective assistance of
appellate counsel for failure to raise a violation of his statutory
right to a speedy trial in this case. We further note that appellant
did not articulate the kind of presumptively prejudicial delay that
would give rise to a constitutional speedy trial violation under the
factors set forth in Barker and Selvage. Therefore, we find as well
that appellant has not established a colorable claim of ineffective
assistance of appellate counsel for failure to raise a violation of
appellant’s constitutional right to a speedy trial.
Memorandum Decision (ECF No. 6-1, PageID# 238-41.)
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy trial and public trial.” U.S. Const. amend. VI. “The Supreme Court
has stated that the Sixth Amendment's speedy trial guarantee is 'an important safeguard to
prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation and to limit the possibilities that long delay will impair the
ability of an accused to defend himself.’” Bennett v. Warden, Marion Correctional Inst., 782 F.
Supp. 2d 466, 479 (S.D. Ohio 2011)(citing United States v. Marion, 404 U.S. 307, 320 (1971)).
The protection of the Sixth Amendment is activated “only when a criminal prosecution has
begun and extends only to those persons who have been ‘accused’ in the course of that
prosecution.” Marion, 404 U.S. at 313. The Supreme Court has recognized that the
constitutional right to a speedy trial permits some delays depending on the circumstances of each
case, and cannot “be quantified into a specified number of days or months.” Bennett, 782 F.
Supp. 2d at 480 (quoting Barker v. Wingo, 407 U.S. 514, 521-23 (1972)). In Barker, the
Supreme Court held that a review court should conduct a “balancing test” to determine whether a
criminal defendant has been denied the right to a speedy trial, considering the following four
factors: the “[l]ength of the delay, the reason for the delay, the defendant's assertion of his right,
and prejudice to the defendant.” Barker, 407 U.S. at 530 (footnote omitted). The length of the
delay is “a triggering mechanism.” Id. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id.
“The length of the delay is measured from the date of the indictment or the date of the arrest,
whichever is earlier.” Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005) (citations omitted).
“A delay approaching one year is presumptively prejudicial and triggers application of the
remaining three factors.” Id. (citing Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992)).
Petitioner has not demonstrated that the Ohio Court of Appeals’ decision contravened or
unreasonably applied clearly established federal law as determined by the United States Supreme
Court or that it was based on an unreasonable determination of the facts in light of the evidence
presented. On May 23, 2013, the State filed the Indictment against him. (ECF No. 6-1, PageID#
74.) Trial commenced approximately nine and one half months later, on March 18, 2014.
However, from July 23, 2013, to January 27, 2014, defense counsel waived Petitioner’s right to a
speedy trial by requesting continuances in order to prepare for trial. Petitioner claims that the
prosecutor requested the continuances of the trial date, see Traverse (ECF No. 9, PageID# 760);
however, the record contradicts this claim. Moreover, Petitioner has failed to rebut the
presumption of correctness afforded to the state appellate court’s factual findings explicitly
indicating to the contrary. Also, on January 27, 2014, Petitioner signed a waiver of his right to
a speedy trial and requested a continuance of the trial date until March 18, 2014, when trial
commenced. “Not all delays are susceptible to equal blame.” United States v. Schreane, 331
F.3d 548, 553 (6th Cir.)(citing Barker, 407 U.S. at 531), cert. denied, 540 U.S. 973 (2003).
For instance, government delays motivated by bad faith,
harassment, or attempts to seek a tactical advantage weigh heavily
against the government, while “more neutral” reasons such as
negligence or overcrowded dockets weigh against the state less
heavily. United States v. Schreane, 331 F.3d 548, 553-54 (6th
Cir.2003) (citing cases). The purpose of the inquiry is to determine
“whether the government or the criminal defendant is more to
blame for [the] delay.” Doggett, 505 U.S. at 651, 112 S.Ct. 2686.
Maples, 427 F.3d at 1026. The record fails to reflect that the delay in bringing Petitioner to trial
was motivated either by bad faith on the part of the government or the desire to seek a tactical
advantage. To the contrary, the record indicates that most of the delay in bringing Petitioner to
trial was caused by the defense, in order to prepare. Accordingly, the reasons for the delay do
not support a Sixth Amendment violation. Moreover, On October 28, 2013, Petitioner was
released on a recognizance bond.1 Petitioner does not allege, and the record does not reflect, that
his defense was impaired by the delay in bringing him to trial. Therefore, weighing the factors
set forth in Barker, Petitioner has failed to establish the denial of the right to a speedy trial under
the Sixth Amendment. Petitioner likewise cannot establish the denial of the effective assistance
of appellate counsel based on his attorney’s failure to raise the issue.
Petitioner states that, on October 28, 2013, his attorney filed a motion to dismiss the charges on speedy trial
grounds. Traverse (Doc. 9, PageID# 761.) Again, however, the record does not support this allegation.
B. Merger of Firearm Specifications
Petitioner also asserts that he was denied the effective assistance of counsel because his
attorney failed to argue on appeal that the trial court should have merged all of the firearm
specifications. The state appellate court rejected this claim in relevant part as follows:
Appellant’s second proposed assignment of error concerns an
alleged merger violation. Specifically, appellant alleges the trial
court failed to merge his multiple firearm specifications as allied
offenses of similar import pursuant to R.C. 2941.25.
R.C. 2929.14(B)(1)(g) states:
If an offender is convicted of or pleads guilty to two
or more felonies, if one or more of those felonies
are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated
robbery, felonious assault, or rape, and if the
offender is convicted of or pleads guilty to a
specification of the type described under division
(B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall
impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of
the two most serious specifications of which the
offender is convicted or to which the offender
pleads guilty and, in its discretion, also may impose
on the offender the prison term specified under that
division for any or all of the remaining
It appears from our review of the sentencing entry that the trial
court applied R.C. 2929.14(B)(1)(g) when it stated: “The
Defendant will be sentenced on the specifications as to Count One
and Five and all other specifications merge.” (Judgment Entry, 2.)
Furthermore, it appears that the trial court found that prison terms
were mandatory for the specifications pursuant to R.C. 2929.13(F).
(Judgment Entry, 2.)
Appellant does not address nor point us to any authority addressing
the application of R.C. 2929.14(B)(1)(g) and 2929.13(F) to his
merger argument. Therefore, we find that appellant has failed to
establish a colorable claim of ineffective assistance of appellate
counsel for failure to argue that trial counsel was ineffective for
not objecting to the trial court’s failure to merge the firearm
Memorandum Decision (ECF No. 6-1, PageID# 241-42.)
Petitioner argues that his sentences on all charges should have been merged at sentencing
as allied offenses of similar import. According to Petitioner, he committed only one actual
criminal offense, and therefore only one penalty should have been imposed. (ECF No. 9,
PageID# 765.) This claim plainly fails.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states
through the Fourteenth Amendment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause has been
interpreted as protecting criminal defendants from successive prosecutions for the same offense
after acquittal or conviction, as well as from multiple punishments for the same offense. Brown
v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for double jeopardy claims is the “same
elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932)(requiring the
court to determine whether each charged offense “requires proof of an additional fact which the
other does not”). The Blockburger test is designed to address the situation where closely
connected conduct results in multiple charges under separate statutes. Under Blockburger, the
critical question is whether the multiple charges in reality constitute the same offense. Thus, the
Blockburger test focuses on whether the statutory elements of the two crimes charged are
duplicative. If the elements of the two statutes are substantially the same, then double jeopardy
is violated by charging the defendant under both.
However, “[w]here two offenses are the same for Blockburger purposes, multiple
punishments can be imposed if the legislature clearly intended to do so.” Bates v. Crutchfield,
No. 1:15-cv-817, 2016 WL 7188569, at *5 (S.D. Ohio Dec. 12, 2016)(citing Garrett v. United
States, 471 U.S. 773, 779 (1985); Ohio v. Johnson, 467 U.S. 493, 499 (1984); Missouri v.
Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 344 (1981); White v.
Howes, 586 F.3d 1025, 1035 (6th Cir. 2009), cert. denied, 560 U.S. 945 (2010)). Thus, “[e]ven
if the crimes are the same under Blockburger, if it is evident that a state legislature intended to
authorize cumulative punishments, a court's inquiry is at an end.” Volpe v. Trim, 708 F.3d 688,
697 (6th Cir. 2013)(citing Johnson, 467 U.S. at 499 n. 8; Hunter, 459 U.S. at 368–69).
Moreover, “[w]hen assessing the intent of a state legislature, a federal court is bound by a state
court's construction of that state's own statutes.” Id. (citing Banner v. Davis, 886 F.2d 777, 780
(6th Cir. 1989)).
An Ohio court of appeals decision of a double jeopardy claim
which is limited to the application of Ohio Rev. Code § 2941.25 is
entirely dispositive of the federal double jeopardy claim. Jackson
v. Smith, 745 F.3d 206 (6th Cir. 2014), citing State v. Rance, 85
Ohio St. 3d 632 (1999), overruled by State v. Johnson, 128 Ohio
St. 3d 153 (2010). “What determines whether the constitutional
prohibition against multiple punishments has been violated is the
state legislature's intent concerning punishment. Specifically,
‘[w]ith respect to cumulative sentences imposed in a single trial,
the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended.’ ” Jackson v. Smith, 745 F.3d 206 (6th Cir.
2014), quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983).
Bates, 2016 WL 7188569, at *5.
Count Ones through Five involved the alleged victim, Domonique Washington, and
charged Petitioner with aggravated robbery, in violation of O.R.C. § 2911.01; robbery, in
violation of O.R.C. § 2911.02(A)(2), (3);2 and kidnapping, in violation of O.R.C. § 2905.01; and
O.R.C. § 2911.02 provides in relevant part:
(A) No person, in attempting or committing a theft offense or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control;
Count Five charged him with the rape, in violation of § 2907.02. Counts Six through Nine
involved the alleged victim, Rommel Martin, and charged Petitioner with aggravated robbery;
robbery; and kidnapping. All of the foregoing charges contained firearm specifications. Count
Ten charged Petitioner with having a weapon while under disability, in violation of O.R.C. §
2923.13. Indictment (ECF No. 6-1, PageID# 82.) However, as discussed by the state appellate
court, the trial court sentenced Petitioner on two counts of aggravated robbery against different
victims (merging the remaining counts of robbery and kidnapping involving those victims);
having a weapon while under disability; rape; and on the firearm specifications related to his
convictions on aggravated robbery and rape against Domonique Washington. Petitioner’s
sentence on the aggravated robbery of Rommel Martin was to run concurrently to the other
Plainly, the trial court’s imposition of sentence does not violate the Double Jeopardy
Clause. The offenses of rape, aggravated robbery, and having a weapon while under disability,
all require different elements, or proof of facts, under the Blockburger test and/or involve
separate victims. Further, the trial court’s imposition of sentences on firearm specifications
related to his aggravated robbery and rape convictions does not violate the Double Jeopardy
Clause. See, e.g., Stevens v. Warden, Lebanon Correctional Institution, No. 3:12-cv-00034,
2014 WL 111174, at *7 (S.D. Ohio Jan. 10, 2014)(multiple three-year sentences on separate
firearm specifications involving same gun does not violate Double Jeopardy Clause); Carter v.
Carter, 59 F. App’x 104, 106 (6th Cir. 2003)(Ohio judiciary reasonably concluded that the
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.
(B) Whoever violates this section is guilty of robbery. A violation of division (A)(1) or (2) of this
section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of
the third degree.
multiple sentences imposed for the firearms specifications did not violate the Double Jeopardy
Clause). Therefore, Petitioner has failed to establish the denial of the effective assistance of
appellate counsel due to his attorney’s failure to raise this issue on appeal.
Petitioner also argues that the trial court failed to make statutorily required findings to
support the imposition of more than minimum and consecutive terms of incarceration. Traverse
(ECF No. 9, PageID# 768.) Petitioner did not raise this issue on direct appeal, and he did not
present it in his Rule 26(B) application. Therefore, he has procedurally defaulted the claim for
review in these proceedings, and he has failed to establish cause for this procedural default.
Moreover, the claim involves a matter of state law, and, therefore, it does not provide a basis for
relief. See Cisco v. Warden, Chillicothe Correctional Institution, No. 2:14-cv-02025, 2015 WL
7295434, at *12 (S.D. Ohio Nov. 19, 2015)(citing Estelle v. McGuire, 502 U.S. at 67 (1991)
(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); Pulley, 465 U.S. at 41.
C. Ineffective assistance of trial counsel
Petitioner asserts that he was denied the effective assistance of appellate counsel because
his attorney failed to raise a claim of the denial of the effective assistance of trial counsel. The
state appellate court rejected this claim in relevant part as follows:
Appellant’s third proposed assignment of error concerns an alleged
failure to object to the presentation and admission of two DNA
analyses because a second unknown suspect in this case was never
tested. Appellant points to testimony that a DNA sample from the
prosecuting witness’s underwear could be attributed to “[two
different] individuals.” (Application to Reopen.) Appellant states
that he has consistently maintained that he did not rape the victim
in this case. In response, the state asserts that “Taylor seems to
think that there was an unknown profile found in the victim’s
underwear. He is wrong. Testing reveals that semen recovered
from the victim’s underwear contained a DNA mixture containing
her and Taylor’s DNA. There was no ‘second suspect.’ ” (State’s
Appellant does not point to any specific place in the record to
support his assertion of alleged error. However, we not that on
direct appeal, appellant’s counsel raised the issue of whether
appellant’s convictions, including his rape conviction, were
supported by sufficient evidence and whether they were against the
manifest weight of the evidence. On page 24 of appellant’s merit
brief, counsel generally addressed alleged deficiencies in the DNA
testing. At ¶ 21-25 of Taylor, 2015-Ohio-2490, we discussed the
sufficiency of evidence as it related to the rape charge. At ¶ 30-39
of Taylor, we discussed appellant’s manifest weight argument. We
found that the rape conviction was supported by sufficient
evidence and was not against the manifest weight of the evidence.
It is not the duty of this court to search the record for evidence to
support an appellant’s argument as to alleged error. . . . Rather, the
burden of affirmatively demonstrating error on appeal rests with
the party asserting error. App.R. 9 and 16(A)(7); State ex rel.
Fulton v. Halliday, 142 Ohio St. 548 (1944). Pursuant to App.R.
16(A)(7), an appellant must present his or her contentions with
respect to each assignment of error presented for review and the
reasons in support of those contentions, including citations to legal
authorities and parts of the record upon which the appellant relies.
An appellate court may disregard arguments if the appellant fails to
identify the relevant portions of the record from which the errors
are based. App.R. 12(A)(2); In re C.C., 10th Dist. No. 04AP-883,
2005-Ohio-5163, ¶ 80. Stated another way, “failure to comply
with the rules governing practice in the appellate courts is a tactic
which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App.3d 41, 60
(9th Dist. 1996).
Accordingly, we find that appellant has failed to establish a
colorable claim of ineffective assistance of appellate counsel for
failure to argue that trial counsel was ineffective for failing to raise
this issue regarding DNA analysis.
Memorandum Decision (ECF No. 6-1, PageID# 242-43.)
As discussed by the state appellate court, the record does not support Petitioner’s claim
that defense counsel performed in a constitutionally ineffective manner in regard to DNA
evidence. Petitioner has failed to establish the denial of the effective assistance of appellate
counsel for failing to raise the issue on appeal.
Petitioner argues that his attorney improperly prevented Deonte Christian from testifying
as a defense witness. Traverse (ECF No. 9, PageID# 770.)3 Again, it does not appear that
Petitioner previously raised this claim in the state courts, and, therefore, it is procedurally
defaulted. Moreover, the record does not indicate that Christian would have provided
exculpatory evidence for the defense.
Therefore, Petitioner has failed to establish that he was denied the effective assistance of
appellate counsel. He has likewise failed to establish cause for his procedural defaults.
Petitioner may still secure review of these claims on the merits, if he establishes that it is
“more likely than not” that new evidence, not previously presented, would allow no reasonable
juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577, 602 (6th Cir.
2005); Schlup v. Delo, 513 U.S. 298, 326-27 (1995).
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence—
Petitioner has attached the summary of the interview of Deonte Christian by Detective Robert Wachalec of the
Columbus Police Department. (ECF No. 9-3, PageID# 787.) Christian stated that he was with Petitioner on the
night at issue, but he was drunk, and had no knowledge of how Petitioner may have gotten shot. He did not know if
Petitioner had a gun with him that night.
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural default.
Sufficiency of the Evidence
Petitioner asserts that the evidence is constitutionally insufficient to sustain his
convictions. The state appellate court rejected this claim as follows:
Whether evidence is legally sufficient to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). A reviewing court's function is to examine the evidence
admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the appellant's guilt beyond a
reasonable doubt. “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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. A reviewing
court, therefore, determines not whether the prosecution's evidence
is to be believed but whether, if believed, the evidence against an
appellant would support conviction. Thompkins at 390.
A. Sufficiency of the Evidence—Counts 1 and 6 Aggravated
To convict appellant of aggravated robbery in violation of R.C.
2911.01(A)(1), the state was required to prove that, while
commiting a theft offense as defined in R.C. 2913.01(K), appellant
had a deadly weapon on or about his person or under his control
and displayed or brandished the weapon or indicated that he
possessed the weapon. The definition of theft offense, pursuant to
R.C. 2913.01(K), includes violations of R.C. 2911.02, robbery, as
well as R.C. 2913.02, theft. Theft prohibits a person, with purpose
to deprive the owner of property, from knowingly obtaining or
exerting control over the property, without consent of the owner,
by threat or by intimidation. A person acts with a particular
purpose when “it is [his] specific intention to cause a certain
result.” R.C. 2901.22(A). Deadly weapon is defined in R.C.
2923.11 as “any instrument, device, or thing capable of inflicting
death, and designed or specifically adapted for use as a weapon, or
possessed, carried, or used as a weapon.”
R.M. testified that appellant “come up from the side of the car with
the gun and pointed—and put it to the window” of the car in which
he and D.W. were parked. (Tr. Vol.I, 47.) R.M. stated that, after
demanding money from D.W., he turned to R.M. and said “[W]hat
you got?” (Tr. 47.) R.M. then gave him money and other items that
were in his pockets. R.M. testified that appellant searched his
pockets and took his jewelry, personal identification, wallet,
pocketknife, and approximately $700 from him at gunpoint.
Detective Kevin Jackson testified that he responded later that night
to a report that a shooting victim, who later turned out to be
appellant, was found at a residential complex. At that scene, he
found a wallet, R.M.'s personal identification, a pocketknife,
jewelry, and approximately $700. Officer Heidi Dripps testified
that she was the officer who removed R.M.'s personal
identification and the $700 from appellant's pockets upon arriving
at the scene.
Furthermore, R.M. positively identified appellant in a photo array
and testified in court that appellant was the person who pointed a
gun at D.W. while she was in the driver's seat of their parked car
and demanded money and their other property. Although D.W. was
unable to identify a photograph of appellant in a police photo
array, she testified that the perpetrator put a gun in her face and
told her to “shut up, give me all your money.” (Tr. Vol.I, 100.)
D.W. further testified that she emptied out her handbag at gunpoint
and gave appellant her bank card. Appellant admitted during an
interview with police that he had a 9 mm Hi–Point on the night of
the events in question, although he denied it at trial. In light of
R.M. and D.W.'s testimony, coupled with R.M.'s photo array
identification of appellant, the record contains sufficient evidence
supporting the jury's verdict that appellant committed aggravated
robbery in violation of R.C. 2911.01 both with respect to D.W. and
B. Sufficiency of the Evidence—Counts 2 and 7 Robbery, Felonies
To convict appellant of robbery in the second degree in violation
of R.C. 2911.02(A)(1) or (2), the state was required to prove that
appellant, in attempting or committing a theft offense or in fleeing
immediately thereafter, had a deadly weapon on or about his
person or under his control and/or inflicted, attempted to inflict, or
threatened to inflict physical harm on another. Theft and deadly
weapon are defined above in our analysis of the aggravated
robbery counts. The record contains sufficient evidence supporting
the jury's conclusion that appellant committed a theft offense
against D.W. and R.M. while in possession of a deadly weapon.
Additionally, D.W. and R.M. both testified that appellant, as he
was fleeing the scene, told them that, if they got up off the ground,
someone in a nearby car would shoot them. In view of R.M. and
D.W.'s testimony, the record contains sufficient evidence
supporting the jury's verdict that appellant committed robbery in
the second degree in violation of R.C. 2911.02(A)(1) and (2).
C. Sufficiency of the Evidence—Counts 3 and 8 Robbery, Felonies
To convict appellant of robbery in the third degree in violation of
R.C. 2911.02(A)(3), the state was required to prove that appellant,
in attempting or committing a theft offense, or in fleeing
immediately thereafter, used or threatened the immediate use of
force against D.W. and R.M. Force means “any violence,
compulsion, or constraint physically exerted by any means upon or
against a person or thing.” R.C. 2901.01(A)(1). As noted in our
discussion of facts regarding the aggravated robbery and robbery
of the second degree, the record contains sufficient evidence
supporting the jury's conclusion that appellant committed a theft
offense against D.W. and R.M. while threatening the immediate
use of force against another. R.M. testified that appellant pointed a
gun at him during the robbery and made him lie on the ground at
gunpoint afterward. R.M. and D.W. testified that appellant pointed
a gun at D.W. a few inches from her head. D.W. testified that,
upon fleeing, appellant threatened that an accomplice would shoot
them if they got up off the ground. This evidence constitutes
sufficient evidence supporting the jury's verdict that appellant
committed robbery in the third degree in violation of R.C.
D. Sufficiency of the Evidence—Counts 4 and 9 Kidnapping
To convict appellant of kidnapping in violation of R .C. 2905.01,
the state was required to prove that appellant by force, threat, or
deception, restrained D.W. and R.M. of their liberty for the
purpose of facilitating the commission of any felony or to engage
in sexual activity, as defined in R.C. 2907.01, against the victim's
will. To restrain one of his or her liberty means to limit or restrain
another's freedom of movement. The restraint need not be for any
specific duration or in any specific manner. 2 Ohio Jury
Instructions, CR Section 505.01(A) (Rev. Jan. 20, 2007). Sexual
activity means sexual conduct or sexual contact or both. R.C.
R.M. testified that, after taking their money and other property,
appellant demanded that both he and D.W. get out of the car and
then made them each take off their clothes and lie on the ground.
While R.M. was on the ground, appellant raped D.W., at which
point appellant told R.M., “[D]on't look at me, I'm going to shoot
you.” (Tr. Vol.I, 54.) According to R.M., at no time did appellant
put down his weapon. He also testified that he did not run away
because he was both scared to try and concerned about what would
happen to D.W. He further testified that, after raping D.W.,
appellant threw her back on the ground and told her, “[L]ay down,
and if you all move, my dude in the car is going to shoot, you
know what I mean?” (Tr. Vol.I, 56.) D.W. testified similarly that,
after taking their money and other property, appellant made them
take off their clothes and lie down on the ground while he pointed
a gun at her. This testimony is sufficient evidence to support the
jury's conclusion that appellant deprived D.W. and R.M. of their
A conviction under R.C. 2905.01 requires that the trier of fact also
find that appellant restrained D.W. and R.M. with purpose to
facilitate aggravated robbery or robbery or with purpose to engage
in sexual activity against D.W.'s will. A person acts purposely
when it is his specific intention to cause a certain result. R.C.
2901.22(A). Such intent “must be gathered from the surrounding
facts and circumstances under proper instructions from the court.”
State v. Huffman, 131 Ohio St. 27, 28 (1936). In view of R.M. and
D.W.'s testimony that appellant made D.W. take off her clothes
and lie on the ground in order to rob her, rape her (as discussed
below), and flee the scene, and held R.M. at gunpoint in order to
rob him and flee the scene, the record contains sufficient evidence
to support the jury's verdict that appellant kidnapped D.W. and
R.M. in violation of R.C. 2905.01.
E. Sufficiency of the Evidence—Count 5 Rape
To convict appellant of rape in violation of R.C. 2907.02(A)(2),
the state was required to prove that appellant engaged in sexual
conduct with D.W. and purposely compelled her to submit by force
or threat of force. Sexual conduct includes vaginal penetration,
however slight, without privilege to do so. R.C. 2907.01(A).
R.M. testified that, after appellant made him and D.W. remove
their clothes and lie on the ground, appellant took D.W. at
gunpoint to the back of their car and raped her. R.M. testified in
great detail, remarking that appellant had to make multiple
attempts to penetrate D.W. because she was using a tampon.
According to R.M., after making D.W. remove the tampon,
appellant proceeded to rape her, after which he made her lie down
on the ground again.
D.W. testified that appellant pointed a gun in her face and made
her take her clothes off, after which he leaned her against the back
of the car and raped her. She testified that he used the gun to force
her to submit to his demands. D.W. testified that appellant had
difficulty penetrating her vagina initially because he did not have a
sufficient erection. She also testified that he could not penetrate her
until she removed her tampon, which was subsequently discovered
at the scene by crime scene investigators. D.W. testified that he
continued to rape her for three or four minutes and that he
maintained possession of his gun the entire time. D.W. also
testified that, throughout the rape, she was afraid that appellant
would shoot her and R.M.
Sexual assault nurse examiner Theresa Colbert provided
corroborating testimony. She testified that, during the sexual
assault exam, D.W. reported that the rape included vaginal
penetration and that the perpetrator possessed a gun during the
In light of this testimony and physical evidence, the record
contains sufficient evidence to support the jury's verdict that
appellant raped D.W. in violation of R.C. 2907.02.
F. Sufficiency of the Evidence—Count 10 Having a Weapon
While Under Disability
To convict appellant of having a weapon while under disability in
violation of R.C. 2923.13, the state was required to prove that
appellant knowingly acquired, had, carried, or used a firearm or
dangerous ordnance if he had previously been convicted of a
felony of violence or involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse.
The state was further required to prove that appellant had been
previously convicted of a felony offense of violence or a felony
offense involving the illegal possession of a drug of abuse.
Appellant admitted at trial previous felony convictions for
aggravated robbery with a gun specification and possession of
drugs with a carrying a concealed weapon violation.
Firearm is defined as “any deadly weapon capable of expelling or
propelling one or more projectiles by the action of an explosive or
combustible propellant. ‘Firearm’ includes an unloaded firearm,
and any firearm that is inoperable but that can readily be rendered
operable.” R.C. 2923.11(B)(1). When determining whether a
firearm is capable of expelling or propelling one or more
projectiles by the action of an explosive or combustible propellant,
the jury may rely upon circumstantial evidence, such as appellant's
words and actions as described by the state's witnesses. R.C.
2923.11(B)(2). Deadly weapon “means any instrument, device, or
thing capable of inflicting death, and designed or specially adapted
for use as a weapon, or possessed, carried, or used as a weapon.” R
Both D.W. and R.M. testified that appellant carried and brandished
a handgun while robbing them and raping D.W. and that appellant
never relinquished possession of the weapon. R.M. further testified
that he thought the gun was a “rusty 9–millimeter, something like
that.” (Tr. Vol.I, 49.) He further described the gun as a
semiautomatic type of handgun that ejects shell casings out. R.M.
testified he heard “a whole bunch of gunshots” when he and D.W.
notified the bar staff at Club 57 what had happened to them. (Tr.
Vol.I, 59.) Detective Kevin Jackson testified that spent shell
casings were found at the scene and that the casings were of a “9–
millimeter caliber and size, and the make and model of it was a
Luger Hornady.” (Tr. Vol.I, 193.) Appellant himself admitted,
during his initial police interview, to possessing a 9 mm Hi–Point
on the night of the events in question, although he subsequently
denied this account at trial. Even disregarding appellant's
conflicting accounts, in view of R.M. and D.W.'s testimony, the
record contains sufficient evidence supporting the jury's verdict
that appellant had a weapon while under disability in violation of R
G. Sufficiency of the Evidence—Firearm Specifications
To convict appellant on the firearm specifications attached to
Counts 1–9, the state was required to prove that appellant had a
firearm on or about his person or under his control while
committing the offenses and that he displayed or brandished the
firearm, indicated that he possessed the firearm, or used it to
facilitate commission of the offense. R.C. 2941.145. As noted in
our discussion of Count 10, having a weapon under disability,
there was more than sufficient evidence supporting the firearm
Appellant maintains that his convictions with respect to D.W. were
against the manifest weight of the evidence because he offered
competent, credible evidence that she was not even present on the
night in question. Appellant also argues that D.W.'s testimony was
not credible because she testified that she went directly to the
hospital after the incident, while her statement at the hospital, as
recounted by nurse Colbert, was that she first went to her aunt's
house before proceeding to the hospital.
Appellant further argues that R.M.'s testimony corroborates
appellant's version of the night's events, rather than the state's.
Specifically, R.M.'s testimony that he typically visits Club 57 only
early in the evening, according to appellant, supports the
conclusion that R.M. was meeting appellant to consummate a drug
deal. According to appellant, such a conclusion would support his
argument that R.M. voluntarily handed over his wallet as collateral
for the undelivered drugs. Appellant also argues that R.M.'s
testimony was legally insufficient to induce belief because he had a
motivation to lie about his activities in order to avoid violating his
federal parole for prior drug-related felony convictions. Appellant
also states that both R.M. and D.W. gave conflicting testimony
about the property taken from R.M. because R.M. testified that he
was robbed of over $700, his gold necklace, and a pocketknife,
while D.W. admitted that R.M. was not known to wear jewelry or
carry a knife, and R.M. testified that he did not usually carry that
Finally, appellant argues that the state failed to provide, in support
of the firearm specifications or the having a weapon under
disability count, credible evidence that appellant possessed a
firearm or any weapon at all during the night in question.
While there was conflicting testimony regarding D.W.'s exact
itinerary from the Club 57 scene to the hospital, “an accused is not
entitled to a reversal on manifest weight grounds merely because
inconsistent evidence was presented at trial.” State v. Rankin, 10th
Dist. No 10AP–1118, 2011–Ohio–5131, ¶ 29. The jury, as trier of
fact, may take into consideration a witness's conflicting testimony
in determining her credibility and the persuasiveness of her
account by either discounting or resolving the discrepancies.
Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio
App.3d 288, 2008–Ohio–641 (10th Dist.). A jury, as finder of fact,
may believe all, part, or none of a witness's testimony.
Furthermore, not all conflicting testimony raises serious questions
about credibility. Having heard both D.W.'s initial report to nurse
Colbert and her partially conflicting testimony at trial, the jury
could have chosen to resolve the conflict in the state's favor, or it
could have resolved that portion of the testimony against the state
while crediting the remainder of D.W.'s testimony. In any event,
the state also provided R.M.'s testimony against appellant, and the
jury heard appellant's own conflicting accounts of the night in
question. It cannot be said that, by choosing to credit the state's
case, in spite of D.W.'s partially conflicting testimony, the jury lost
Turning to R.M. and D.W.'s testimony about R.M.'s property,
appellant points out that their testimony conflicted with respect to
the amount of cash R.M. usually carried. R.M. testified that he did
not normally carry “that sum” of cash, namely $700. D .W., on the
other hand, testified that he did regularly carry such large sums.
She also testified that he was not known to carry a knife or wear
jewelry. The jury, as explained above, was free to resolve the
state's conflicting testimony however it chose. Even if the
testimony established that R.M. rarely carried large amounts of
cash and was not known to wear jewelry or carry a knife, the jury
was still free to believe that he did so on the night in question.
Both R.M. and D.W. testified as to the property stolen from R.M.
Officer Dripps testified to finding the same amount of cash and
R.M.'s identification on appellant's person at the Maumee Bay
scene. A police detective testified to recovering a pocketknife and
a gold necklace there as well. In choosing to credit the state's
version of these particulars, we cannot say that the jury clearly lost
Appellant argues that the circumstances of R.M.'s presence at Club
57—such as the late hour and the large amount of cash in R.M.'s
possession—suggests an illegal drug deal, rather than a night out
with his fiancée. Again, the jury was free to credit the state's
interpretation of these factual circumstances, while discrediting
appellant's. R.M. testified that he had just cashed his paycheck that
evening. Both he and D.W. testified that they had spent time with
their children and gone shopping prior to going to Club 57. We
cannot say that the jury lost its way in crediting the state's
interpretation of uncontested facts.
Appellant claims a reasonable juror could not believe R.M.'s
testimony because R.M. was on federal parole for drug-related
crimes and, thus, had a personal interest in testifying that he was
not engaged in illegal activity that night. During crossexamination, however, R.M. admitted that he had previous drugrelated convictions and that he was on federal parole at the time.
The jury, therefore, was free to evaluate the credibility of R.M.'s
testimony in light of his status as a federal parolee. The jury also
had reason to find appellant less than credible. He significantly
changed his story between his initial police interview and his
testimony at trial. The trier of fact was in the best position to
observe the demeanor of the witnesses and to evaluate their
testimony. The jury apparently found the testimony of R.M. more
credible than appellant's. The trier of fact's credibility
determinations receive great deference from a reviewing court. As
the jury was in the best position to assess the credibility of the
witnesses and their testimony, we cannot say that, in crediting
R.M.'s version of events over appellant's, the jury clearly lost its
We now turn, finally, to appellant's contention that the state failed
to provide credible evidence of his possession of a firearm during
the events in question. While it is true that no firearm was ever
recovered, either at the Club 57 scene, the Maumee Bay scene, or
elsewhere, the state's witnesses both testified that appellant
possessed, brandished, and threatened to use a handgun while
robbing and assaulting them. R.M. gave testimony identifying the
weapon as a 9 mm semiautomatic handgun. Appellant himself
admitted during his initial interview with police to possessing a 9
mm Hi–Point. Lastly, R.M. testified to hearing gunshots shortly
after he and D.W. were robbed and D.W. was raped. Spent shell
casings matching the 9 mm handgun were found at the scene.
Ultimately, it was for the jury to weigh the evidence in light of the
fact that no firearm was ever found. We cannot say that, by
choosing to credit the state's case instead of appellant's, the jury
clearly lost its way in concluding that appellant possessed a firearm
during the events in question.
In the end, any inconsistencies between appellant's testimony and
the testimony of the state's witnesses are for the jury to resolve.
None of appellant's objections to the jury's resolution of the case's
factual questions alter that role. We cannot say that the jury lost its
way either in finding the state's witnesses to be more credible than
appellant or in concluding that the aggregate evidence the state
presented was more convincing than the testimony given by
appellant. The victims' testimony, the accounts of officers
responding to the two scenes, the victims' property recovered from
appellant's possession, and appellant's multiple versions of the
night's events, provided the jury with sufficient evidence to find
appellant guilty of all counts beyond a reasonable doubt. We do
not find that the jury's verdict that appellant was guilty on all
counts was against the manifest weight of the evidence.
State v. Taylor, 2015 WL 3857079, at *8-10.
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 affirmatively 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. (quoting Jackson, 443 U.S. at 326).
Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), 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.
For the reasons addressed by the state appellate court, this Court likewise concludes that,
when viewing all of the evidence in the light most favorable to the prosecution, the evidence is
constitutionally sufficient to sustain Petitioner’s convictions.
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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