Crockett v. Warden Madison Correctional Institution

Filing 10

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Johnnie Crockett, III in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 4/30/2018. Signed by Magistrate Judge Chelsey M. Vascura on 4/16/18. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JONNIE CROCKETT, III,
Case No. 2:16-cv-852
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
WARDEN, MADISON
CORRECTIONAL INSTITUTION,
Respondent.

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 and Brief in Support,
Respondent’s Return of Writ, Petitioner’s Reply, and the exhibits of the parties. For the reasons
that follow, the Magistrate Judge RECOMMENDS 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:
On February 12, 2012, Whitehall Police Officer Jerry Dillon
responded to a report that an eight-month-old child was not
breathing. As he approached the reported location of the incident, a
woman waved at him and then ran inside an apartment. Officer
Dillon ran after the woman into the apartment, in which he found a
man, later identified as appellant, kneeling over a child who was
wearing only a diaper, had vomit coming out of the right side of
his mouth, and appeared to be “lifeless.” (Tr. 39.) Upon noticing
that the child was not breathing and did not have a pulse, Officer
Dillon began performing chest compressions while simultaneously
alerting medical personnel to the situation. A firefighter responded
to Officer Dillon's report and told him to bring the child outside, as
a medic was arriving on the scene. Officer Dillon ran outside and
delivered the child to the medics.

Whitehall Police Officer Anthony Fields also responded to the
incident on February 12, 2012, arriving seconds after Officer
Dillon. After Officer Dillon ran out of the house and delivered the
child to the medics, Officer Fields remained at the apartment,
where he spoke with the child's father, whom he identified as
appellant. According to Officer Fields, appellant stated that the
child's mother left the child in appellant's sole care while she left
the apartment to go to the store. Appellant placed the child in a
playpen and covered him with a blanket. Appellant later checked
on the child, whereupon he noticed that the child was not
breathing. Appellant took the child out of the playpen, removed the
child's clothes, splashed water on the child's face, and began
blowing in his mouth in an attempt to resuscitate him while he
contacted the mother by phone. Appellant stated that the child had
no prior health problems. Upon examining the apartment, Officer
Fields noticed what appeared to be vomit in the bathroom sink.
Doug Neighbarger, a paramedic and firefighter employed by the
City of Whitehall Division of Fire, also responded to the report of
a child having difficulty breathing on February 12, 2012. Within
two minutes of being dispatched, he arrived at the scene, received
the child, whom he identified as I.C., outside from a police officer,
and proceeded to the hospital. En route to the hospital,
Neighbarger and three other paramedics, who were in the back of
the ambulance with I.C., began working to revive him. I.C. did not
have a heartbeat and was not breathing but had no noticeable
external injuries. Neighbarger noted that he had a dirty diaper and
vomit on his face. The paramedics were able to restore I.C.'s
heartbeat through CPR and delivered him to the emergency room
at Nationwide Children's Hospital approximately 30 minutes after
being dispatched.
Dr. David Rogers, a pediatric ophthalmologist at Nationwide
Children's Hospital, examined I.C. on February 12, 2012 around
7:30 p.m., and identified 15 to 20 retinal hemorrhages in the back
of the left eye and 1 retinal hemorrhage in the back of the right
eye. Dr. Rogers testified that “retinal hemorrhages can happen in
all kinds of situations and diseases” but that “their location * * *
both within the retina and throughout the eye can be very
diagnostic of what actually caused them.” (Tr. 133–34.) He
indicated that I.C.'s injuries were similar to those found in patients
who had been in a fatal single impact motor vehicle accident or
had fallen from a multiple story building but that the injuries were
inconsistent with a short fall, such as from a bed or couch. Because
the hemorrhages were located around the optic nerve and along the
blood vessels, and there was no other sign of physical trauma to
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the eye, Dr. Rogers found that abusive head trauma was a potential
cause of I.C.'s injury. Based upon I.C.'s history and the lack of
other potential causes for the specific injury to I.C.'s eyes, Dr.
Rogers concluded that the injury resulted from abusive head
trauma.
Dr. Rogers stated that “[t]here is absolutely no indication from this
eye exam that I performed and which is documented
photographically there is any possibility that this could be related
to increased pressure in [I.C.'s] brain.” (Tr. 141.) Dr. Rogers stated
that the number, type, and location of the hemorrhages in I.C.'s
eyes were inconsistent with an increase in intracranial pressure. Dr.
Rogers sought further testing to determine whether I.C. had a
bleeding disorder and noted that, if bleeding disorders were not
found, then nonaccidental trauma should be considered as a
potential cause of I.C.'s injuries. However, Dr. Rogers stated that
the types of hemorrhages in I.C.'s eyes were not consistent with a
bleeding disorder. Dr. Rogers also stated that he had seen retinal
hemorrhages caused by CPR but that the hemorrhages found in
I.C.'s eyes were inconsistent with those caused by CPR based upon
studies of CPR performed by trained professionals and first
responders in the community.
On February 14, 2012, Dr. Lisa Martin, a pediatric radiologist at
Nationwide Children's Hospital, examined an MRI of I.C.'s
cervical spine, which is the area from the bottom of the skull to the
shoulders, and I.C.'s thoracic spine, which is located near the chest
of the patient. Dr. Martin found abnormal fluid in the cervical
spine, which indicated a ligament injury. Dr. Martin indicated that
this injury resulted from “significant force,” such as in a motor
vehicle accident or a similar whiplash-inducing event, or in the
event of a fall from a third-story window or a tall tree. She also
found relatively acute or recent compression fractures in I.C.'s
seventh and ninth thoracic vertebrae, which are located
approximately in the middle of the back. Dr. Martin stated that
I.C.'s injuries could not have occurred while he was laying flat on
his back, as would normally be the case if someone was
performing CPR on him. Dr. Martin testified that I.C.'s injuries
were consistent with either accidental or nonaccidental trauma but
that she could not infer more based upon the radiological exam.
On February 12, 2012, Dr. Brent Adler, a pediatric radiologist at
Nationwide Children's Hospital, reviewed a portable chest x-ray of
I.C. which was completed in the emergency department shortly
after he arrived at the hospital. Based upon the initial chest x-ray,
Dr. Adler was unable to find any problems with I.C.'s lungs and
3

did not observe any fractures at the time. Next, Dr. Adler reviewed
a lateral cervical spine film to ascertain whether the bones in the
neck were properly aligned and found no abnormalities. Dr. Adler
then reviewed a CT scan of I.C.'s head and found acute
hemorrhages in the subdural area of the brain that had begun
“within the last couple of days.” (Tr. 269.) Dr. Adler stated that the
kind of “relatively forceful bleeding” he observed in I.C.'s case
reflected “some sort of trauma that caused tearing of the veins
around the brain,” resulting from events such as “car accidents,
falls from great heights, nonaccidental trauma, or child abuse,” or
that it could happen if a person had a “propensity to bleeding.” (Tr.
270–73.) Also, on February 12, 2012, Dr. Adler reviewed an
abdominal CT scan performed on I.C. and found a three and onehalf centimeter laceration of the liver and a pattern that suggested
shock bowel. Dr. Adler stated that he had read about instances
where liver lacerations resulted from CPR, but he had never seen it
happen.
On February 13, 2012, Dr. Adler conducted a skeletal survey on
I.C. and found no fractures. On February 14, 2012, Dr. Adler
reviewed the skeletal survey again and, based upon Dr. Martin's
review of I.C.'s MRI, identified fractures of I.C.'s spine that he had
initially not seen. Dr. Adler concluded that I.C.'s fractures were
consistent with the bleeding he observed in I.C.'s brain and that
such injuries could result from a large amount of force that flexed
the body forward. On March 15, 2012, Dr. Adler reviewed another
CT scan of I.C.'s head and observed extra fluid outside of the brain
which indicated that the brain was shrinking as cells in the brain
died. Dr. Adler indicated that the evolution of the injury to I.C.'s
brain suggested that, “because the brain looked so normal on the
initial study, * * * the injury must have been shortly before the
initial study” on February 12, 2012. (Tr. 328.)
Dr. Nicholas Zumberge, a pediatric radiologist at Nationwide
Children's hospital, performed the first MRI of I.C.'s brain on
February 13, 2012, which showed swelling and cell death
occurring in the brain. Based upon the increase in the amount of
fluid around the periphery of the brain between the time of the
initial head CT scan taken on February 12, 2012 and the MRI on
February 13, 2012, Dr. Zumberge concluded that the injury likely
occurred within hours or a day of the initial CT scan. Dr.
Zumberge also stated that a hypoxic ischemic injury, namely an
injury involving cell death resulting from a lack of oxygen, was not
consistent with the subdural hemorrhages found in I.C.'s brain.

4

Based upon I.C.'s medical history, Dr. Zumberge concluded that it
was “difficult to explain or nearly impossible to explain” I.C.'s
injuries, specifically “retinal hemorrhages, subdural hemorrhages,
and diffuse brain injury,” in any manner other than “child abuse or
nonaccidental trauma or abusive head injury, whatever term is
used.” (Tr. 432.) Dr. Zumberge also pointed to the liver laceration,
shocky appearance of the bowel, compression fractures of the
seventh and ninth thoracic vertebrae, and edema in the ligaments
of the upper neck as evidence raising a suspicion of child abuse.
Dr. Zumberge conceded that, although “there's a chance that this
wasn't abusive injury or a traumatic injury, * * * when it comes to
the [injury to the] neck, I don't know what else this could be.” (Tr.
438.) Dr. Zumberge asserted that I.C.'s injuries were “the result of
significant trauma with a pattern that is very suggestive of abuse,
and a trauma that is not compatible with trauma that would occur
during aggressive or vigorous resuscitative effort.” (Tr. 441.)
Dr. Bhuvana Setty, a pediatric hematologist and oncologist at
Nationwide Children's hospital, reviewed I.C.'s lab results and
determined that he did not have an underlying bleeding disorder.
On February 12, 2012, Detective Steve Brown of the Whitehall
Police Department interviewed I.C.'s parents at Nationwide
Children's Hospital. I.C.'s father, whom Detective Brown identified
as appellant, stated that I.C. fell from a bed about three days before
February 12, 2012. Detective Brown later examined the bed that
appellant claimed I.C. fell from and found that the bed was 18
inches from the floor, which was carpeted. According to Detective
Brown, appellant claimed that I.C. was in good health with no
apparent problems before the morning of February 12, 2012, when
he stopped breathing. Appellant stated that he took I.C. out of bed
that morning and that no one else had contact with I.C. until after
he stopped breathing. After I.C. stopped breathing, appellant called
I.C.'s mother, who was away from the home at a store. When she
returned home from the store, I.C.'s mother called 911.
Dr. Mary Ranee Leder, attending physician in the Child Advocacy
Center at Nationwide Children's Hospital, whose duties included
assessing children in response to reports of potential sexual assault
or child abuse, was responsible for examining I.C.'s case in this
capacity. After beginning an examination of I.C.'s case, she was
able to obtain a timeline of I.C .'s condition through speaking with
his parents. According to Dr. Leder, both parents affirmed that I.C.
was well the night before being admitted to the hospital and that,
when I.C. awoke at 11:00 a.m. on February 12, 2012, appellant
removed him from bed and placed him on his abdomen in bed
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while appellant played video games. At that time, I.C.'s mother
observed that he appeared well, and then she departed the home to
go to a store. After some period of time, appellant checked on I.C.,
at which point he noticed that he was not breathing. Appellant
stated that he splashed water on the child and attempted
resuscitation by beating on the child's chest with a closed fist,
which he demonstrated for Dr. Leder. When the child did not
respond, appellant called I.C.'s mother, who left the store, arrived
home, and then called 911 for help.
Dr. Leder stated that I.C.'s injuries were inconsistent with a fall
from a bed at a height of 18 inches onto a carpeted floor, as
described by I.C.'s parents. Dr. Leder conducted a physical exam
of I.C. and noted only minor external injuries. On February 13,
2012, Dr. Leder observed a subdural hemorrhage on the right side
of I.C.'s brain and a three-centimeter liver laceration in her review
of I.C.'s head CT scan, abdomen and pelvis CT scan, and skeletal
survey, which she performed in conjunction with a pediatric
radiologist. Dr. Leder stated that bleeding on the surface of the
brain, like what she observed in I.C.'s case, could be caused by
“repetitive acceleration/deceleration of the type seen with shaking,
with or without impact,” and that such shaking would be “vigorous
shaking of the type where a reasonable caregiver observing it
would say that this is an inappropriate way of handling an infant.”
(Tr. 623–24.) Dr. Leder stated that the ligament injury in I.C.'s
neck and the compression fractures in the seventh and ninth
thoracic vertebrae could be caused by repetitive acceleration and
deceleration or vigorous shaking. Dr. Leder also discussed the
intra-retinal hemorrhages in I.C.'s eyes with Dr. Rogers, who
concluded that, having ruled out an underlying bleeding disorder,
I.C.'s intra-retinal hemorrhages were consistent with nonaccidental
trauma.
Based upon her review of I.C.'s condition, his history, and her
discussions with other physicians, Dr. Leder concluded that “the
subdural hemorrhages, the retinal hemorrhages, and the vertebral
fractures were unexplained” and that “[t]here was no medical
condition” or “accidental history that would be explaining [the]
presence of these findings” and, therefore, “these findings were
consistent with nonaccidental trauma.” (Tr. 643.) Dr. Leder stated
that the trauma and injury to the brain resulted in difficulties with
breathing and the subsequent lack of oxygen to vital organs, rather
than a lack of breathing causing the injuries. She stated that her
findings allowed for “the possibility, however remote, that the liver
laceration could have been caused by [appellant's] reported
resuscitative efforts.” (Tr. 621.)
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Dr. Charles J. Lee, a deputy coroner and forensic pathologist at the
Licking County Coroner's Office, performed an autopsy on I.C.
after he died on December 14, 2012 while at a nursing facility
specifically for children. Prior to death, I.C. was in a coma with no
voluntary movement for several months. Dr. Lee testified that I.C.
was a normal weight and length for his age of 18 months at the
time he died and that there were no apparent external injuries.
Upon undertaking an internal examination, Dr. Lee found that
I.C.'s feeding tube had become dislodged from his stomach and
that fluid was leaking into his abdominal cavity. Dr. Lee testified
that I.C. died as a result of irritation resulting from the fluid in his
abdominal cavity and peritonitis, which he defined as
“inflammation of the bowel as well as the irritation of the heart
causing it to rapidly beat and then misbeat and beat irregularly and
then not beat at all.” (Tr. 703.) He concluded that I.C.'s cause of
death was “complications of the peritonitis because of the fluid that
was leaking into his belly secondary to him being in a chronic
comatose state secondary to the head trauma” and that the manner
of death was homicide.
Dr. Lee testified that, although I.C. was otherwise in very good
health, his brain was small compared to the size of his skull, and
that it weighed about one-third of a normal healthy brain for an
average, healthy 18–month–old male. Because I.C.'s brain was
about the size of a newborn's brain and much smaller than his
skull, Dr. Lee concluded that I.C.'s brain regressed or shrank as a
result of injury and death to the tissue. Dr. Lee found I.C.'s injuries
to be consistent with abusive head trauma and a lack of oxygen
from a significant global trauma affecting the entire brain at once.
Dr. Lee found that there were no skull fractures present in I.C.'s
case, but there was evidence of a subdural hemorrhage. Dr. Lee
stated that bleeding in the brain was inconsistent with a sudden
cessation of breathing unless there was trauma to the brain.
Further, he stated that the injuries found in I.C.'s brain were
inconsistent with sudden infant death syndrome (“SIDS”) or short
falls.
At trial, appellant called Dr. Thomas W. Young, a forensic
pathologist in private practice, to testify. Dr. Young formerly
served as a medical examiner for the state of Georgia, and then as
the Chief Medical Examiner for the counties of Jackson, Platte,
Clay, and Cass in the state of Missouri. Dr. Young reviewed I.C.'s
records and testified that, when the flow of oxygen is restored to
the brain after a period of deprivation, the brain will become
swollen and that blood vessels will leak resulting in subdural
7

hemorrhages. He also stated that swelling in the brain can increase
pressure in the veins in the backs of the eyes, causing retinal
hemorrhages. Dr. Young further stated that performing CPR on an
infant can result in a liver laceration.
Dr. Young stated that I.C.'s condition was consistent with a
condition called an apparent life-threatening event, which he
defined as an instance where a child suddenly stops breathing,
similar to SIDS, but is resuscitated. Dr. Young disagreed that
abusive trauma in the form of shaking could cause the types of
injuries found in I.C.'s case, including ligament injury and
vertebral fractures.
On March 6, 2012, a Franklin County Grand Jury indicted
appellant on one count of felonious assault in violation of R.C.
2903.11, a felony of the second degree, one count of endangering
children in violation of R.C. 2919.22, a felony of the second
degree, and one count of endangering children in violation of R.C.
2919.22, a felony of the third degree. On March 26, 2013, a
Franklin County Grand Jury indicted appellant on one count of
murder in violation of R.C. 2903.02. On July 1, 2013, the state
filed a motion for joinder of the indictments into a single action for
the purposes of trial.
On February 4, 2014, a jury found appellant guilty of felony
murder and the two counts of endangering children; the jury found
appellant not guilty of the sole count of felonious assault. On
February 27, 2014, the trial court sentenced appellant as follows:
life imprisonment with the possibility of parole after 15 years, to
be served concurrently with both a sentence of three years as to the
felony two count of endangering children and a sentence of 18
months as to the felony three count of endangering children.
Appellant timely appealed.
II. Assignments of Error
Appellant appeals assigning the following four errors for our
review:
[I.] THE TRIAL COURT ERRED WHEN IT ENTERED A
JUDGMENT AGAINST THE APPELLANT WHEN THE
JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.
[II.] THE TRIAL COURT ERRED WHEN IT FAILED TO
GRANT THE DEFENDANT'S MOTION FOR ACQUITTAL AS
8

THE GUILTY VERDICTS AT THE TRIAL COURT WERE
NOT SUPPORTED BY SUFFICIENT EVIDENCE.
[III.] THE TRIAL COURT ERRED IN REFUSING TO
INSTRUCT THE JURY ON THE LESSER–INCLUDED
OFFENSE OF INVOLUNTARY MANSLAUGHTER.
[IV.] APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL TO A DEGREE THAT APPELLANT DID NOT
RECEIVE A FAIR TRIAL.
State v. Crockett, Nos. 14AP-242, 14AP-248, 2015 WL 3757336, at *1-7 (Ohio App. 10th Dist.
June 11, 2015). On June 11, 2015, the appellate court affirmed the judgment of the trial court.
Id. On December 16, 2015, the Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Crockett, 144 Ohio St. 3d 1428 (2015).
On August 21, 2015, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (ECF No. 7-1, PAGEID # 315.) On November 5, 2015, the appellate
court denied his Rule 26(B) application. (ECF No. 7-2, PAGEID # 411.) Petitioner apparently
did not file an appeal to the Ohio Supreme Court.
On October 7, 2015, Petitioner filed a delayed motion for a new trial and a motion for
new trial based on newly discovered evidence. (PAGEID # 417, 421.) On December 4, 2015,
the trial court denied the motion for a new trial for failing to present newly discovered evidence
and rejected Petitioner’s claim of ineffective assistance of counsel as barred under Ohio’s
doctrine of res judicata. See State v. Crockett, Nos. 15AP-1149, 15AP-1152, 2016 WL
6464937, at *1 (Ohio App. 10th Dist. Nov. 1, 2016). Petitioner raised the following assignments
of error on appeal:
[I.] The trial court abused its discretion and erred in denying
appellants motion for leave to file delayed motion for new trial,
Thus denying appellant due process guaranteed by the Ohio and
United States Constitutions.

9

[II.] Because appellant supported his new trial motion with
evidence demonstrating substantive grounds for relief, the common
Pleas court, in deciding appellants new trial motion without an
evidentiary hearing, abused its discretion, Thus denying appellant
due process guaranteed by the Ohio and United States
Constitutions.
[III.] Appellant is entitled to a fair trial and to be tried without the
newly discovered evidence of Nationwide Childrens Hospitals
complete medical records and the Nursing Home complete medical
records of I.C. is a denial of fundamental fairness and other rights
as guaranteed by the United States Constitution.
[IV.] Trial court abused it's discretion and erred when it ruled
appellants claim of ineffective assistance of trial counsels falure to
investagate appellants case was barred by the doctrine of res
judicata which denying appellants due process guaranteed by the
Ohio and United States Constitutions.
[V.] Trial court abused it's discretion and erred in never entering
judgement if appellant was unavoidably prevented from
discovering Nationwide Childrens Hospitals complete medical
records of I.C. which denying appellant due process guaranteed by
the Ohio and United States Constitutions.
(Sic passim.)
Id. at *7. On November 1, 2016, the appellate court affirmed the judgment of the trial court. Id.
Petitioner apparently did not file an appeal.
On September 6, 2016, Petitioner filed this Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient to sustain his
conviction on felony murder (claim one); that he was denied a fair trial because the trial court
failed to issue a jury instruction on the lesser-included offense of involuntary manslaughter
(claim two); and that he was denied the effective assistance of trial counsel (claim three). It is
the position of the Respondent that Petitioner’s claims are procedurally defaulted or without
merit.

10

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, 102 (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
correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
11

rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1).
Accordingly, “a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006), cert. denied, 551 U.S. 1134 (2007)),
cert. denied sub nom. Coley v. Robinson, 134 S. Ct. 513 (2013). The United States Court of
Appeals for the Sixth Circuit has summarized these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct.
1495, 146 L.Ed. 2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S. Ct. 1495, 146
L.Ed. 2d 389.
Id. at 748–49. The burden of satisfying the AEDPA’s standards rests with the petitioner. See
Cullen v. Pinholster, 563 U.S.170, 181 (2011).

12

Claim One: Sufficiency of Evidence
Petitioner asserts that the evidence is constitutionally insufficient to sustain his conviction
on felony murder, in violation of O.R.C. § 2903.02(B),1 because the State failed to establish that
he caused I.C.’s death, which resulted from grossly negligent medical care. The state appellate
court rejected this claim, reasoning in relevant part as follows:
[A]ppellant contends that the state failed to prove how the injuries
were caused because no one observed appellant causing any harm
to I.C., appellant was only home alone with I.C. for a short period
of time, and that appellant never admitted abuse. Although
appellant is correct that the record contains no direct evidence of
child abuse, appellant fails to appreciate that his convictions can be
sustained based upon circumstantial evidence. See State v. Jewett,
10th Dist. No. 11AP–1028, 2013–Ohio–1246, ¶ 34, quoting State
v. Fausnaugh, 10th Dist. No. 11AP–842, 2012–Ohio–4414, ¶ 26,
quoting State v. Franklin, 62 Ohio St.3d 118, 124 (1991) (“ ‘Under
Ohio law * * * circumstantial evidence can have the same
probative value as direct evidence, and “[a] conviction can be
sustained based on circumstantial evidence alone.” ’ ”); State v.
Hillman, 10th Dist. No. 14AP–252, 2014–Ohio–5760, ¶ 44.
Here, as discussed above, the state's witnesses provided
circumstantial evidence to support the conclusion that I.C.'s
injuries were the result of child abuse. Appellant contends that Dr.
Young's testimony provided another plausible explanation for
I.C.'s injuries. Although Dr. Young did advance another
explanation for the injuries, the state's witnesses presented
evidence that disputed the accuracy of Dr. Young's explanation.
Dr. Martin stated that I.C.'s injuries would not have occurred while
he was laying flat on his back while someone performed CPR on
him. Dr. Leder stated that I.C.'s injuries were inconsistent with a
fall from a bed 18 inches above a carpeted floor. Dr. Zumberge
stated that a hypoxic ischemic injury, in which organs are deprived
of oxygen as suggested by Dr. Young, was not consistent with the
subdural hemorrhages found in I.C.'s brain. Dr. Leder also stated
1

O.R.C. § 2903.02(B) provides:
(B) No person shall cause the death of another as a proximate result of the
offender's committing or attempting to commit an offense of violence that is a
felony of the first or second degree and that is not a violation of section 2903.03
or 2903.04 of the Revised Code.
13

that I.C.'s injuries were not consistent in any way with an episode
wherein he stopped breathing and then started breathing again.
Although appellant contends that he was left alone with I.C. for a
only [sic] short period of time, Dr. Adler stated that the evolution
of I.C.'s injuries suggested that “the injury must have been shortly
before the initial study” on February 12, 2012. (Tr. 328.) Dr.
Zumberge concurred that the injury likely occurred within hours or
a day of the initial CT scan based on the increased fluid around the
brain between the time of initial head CT scan on February 12,
2012 and the MRI on February 13, 2012. Appellant offers no
support in the record for his contention that his short time with I.C.
would have rendered it impossible for him to commit abuse.
Finally, appellant contends that he did not violate a duty of care
based upon the facts that he “was not a trained medical
professional, that he attempted to get help by calling [I.C.'s]
mother who was nearby, that he attempted CPR on I.C. after 911
was called, and that it was clearly established to be a panicked
situation.” (Appellant's Brief, 9.) However, appellant provides no
support in the record for his contention that he did not violate a
duty of care by never dialing 911 to summon help but, instead,
waiting until I.C.'s mother returned home, at which time she
summoned help by calling 911.
*

*

*

[A]ppellant asserts that the evidence insufficiently supported his
convictions.
Sufficiency of evidence is a “legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a
verdict.” Cassell at ¶ 36, citing Thompkins at 386. When judging
the sufficiency of the evidence to support a criminal conviction, an
appellate court must decide if, “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. Where the evidence, “if
believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt,” it is sufficient to sustain a conviction.
Id. at 273.
In support of his assertion that his convictions for the two counts of
child endangering and one count of murder were based upon
insufficient evidence, appellant reiterates his contentions that “the
14

State's evidence against Appellant failed to address the important
question of how Appellant could have caused the injuries” to I.C.
and that “there were two plausible explanations” for I.C.'s injuries.
(Appellant's Brief, 12.) Again, although the state did not present a
direct explanation for appellant's injuries, the state offered
circumstantial evidence to support the explanation that appellant
abused I.C. thereby causing his injuries. Appellant fails to provide
support with citation to pertinent legal authority or to the record for
his contention that the evidence failed to support any element of
the crimes for which he was convicted. As appellant merely
rehashes the same argument he made in support of his contention
that his convictions were against the manifest weight of the
evidence and, further, fails to provide any support for his
argument, we decline to consider it further. White v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 12AP–927, 2013–Ohio–4208, ¶ 11;
Lundeen v. State Med. Bd. of Ohio, 10th Dist. No. 12AP–629,
2013–Ohio–112, ¶ 16.FN1
Accordingly, we overrule appellant's second assignment of error.
FN1: Although appellant did not argue the same, we feel
compelled to address the theory that I.C.'s death resulted from
improper medical care instead of appellant's actions or failure to
act. Even though I.C.'s peritonitis resulted from treatment
administered by medical personnel, this is not sufficient to break
the chain of causation. “ ‘It is a fundamental principle that a person
is presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.’ ” State v. Carter, 64 Ohio
St.3d 218, 226 (1992), quoting State v. Johnson, 56 Ohio St.2d 35,
39 (1978). “Generally, ‘one who inflicts injury upon another is
criminally responsible for that person's death, regardless of
whether different or more skillful medical treatment may have
saved his life.’ ” State v. Hanna, 95 Ohio St.3d 285, 2002–Ohio–
2221, ¶ 45, quoting Johnson at 40. “[M]edical treatment for
homicide victims is not an intervening cause” but, rather, “[o]nly
gross negligence or willful maltreatment will relieve the defendant
from liability. Simple negligence is not enough.” Hanna at ¶ 45
(citations omitted). “The injuries inflicted by the defendant need
not be the sole cause of death, as long as they constitute a
substantial factor in the death.” State v. Beaver, 119 Ohio App.3d
385, 394 (11th Dist.1997) (finding that, even if infection listed as
one of four immediate causes of victim's death was the result of
negligence of attending surgeons, it was not sufficient by itself to
break the chain of direct causation). See also State v. Wilson, 10th
Dist. No. 03AP–592, 2004–Ohio–2838, ¶ 15–41 (finding that jury
could have rationally concluded that victim's death was the direct
15

and proximate result of defendant's actions where death in part
resulted from prescribed drugs in her system nine months after
defendant set her on fire).
Here, the state presented evidence that I.C.'s death was the natural
and foreseeable result of appellant's actions. Dr. Lee stated that the
“cause of death was complications of the peritonitis because of the
fluid that was leaking into his belly secondary to him being in a
chronic comatose state secondary to the head trauma.” (Tr. 731.)
Specifically, Dr. Lee testified that I.C. “would not have had the
problems with his bowel and that fluid draining into his abdominal
cavity if he didn't have that tube to feed him. The only reason he
has a tube to feed him is because he can't chew or swallow himself.
The only reason he can't chew and swallow himself is because of
the head injury in the first place.” (Tr. 732–33.) Even if I.C.'s death
resulted in part from negligence of medical personnel
administering treatment, this alone is not sufficient to break the
chain of causation since nothing in the record reflects that I.C.'s
death resulted from gross negligence or willful maltreatment.
Hanna at ¶ 45. Thus, although I.C.'s death did not immediately
follow from appellant's actions or inactions, there was sufficient
evidence presented upon which the jury could rationally have
concluded that appellant's actions were the direct and proximate
cause of I.C.'s death. Id.; Wilson at ¶ 40; Beaver at 394.
State v. Crockett, 2015 WL 3757336, at *11-12.
Judge Tyack dissented, offering the following discussion:
TYACK, J., concurring in part and dissenting in part.
I respectfully dissent in part.
The injuries to this child were truly horrific. However, the child died as a result of
the inadequate medical care given months after the initial injuries. The child's
feeding tube became dislodged from his stomach and leaked fluid into his
abdominal cavity. The dislodged feeding tube caused peritonitis. The peritonitis
caused the child's death.
The jury which heard the case did not find that Johnnie Crockett, III knowingly
caused serious physical harm to the child. The jury found Crockett not guilty of
felonious assault. Instead, the jury found that Crockett was guilty of endangering
the child in violation of R.C. 2919.22. This finding could well have been based in
part on the fact that Crockett did not immediately seek medical help when he
claimed he found the child not breathing. Instead, he called his wife, who came

16

home from shopping before medical assistance was sought. She was the one who
called for help.
Although the evidence supported the child endangering convictions including the
finding he recklessly abused the child, the evidence did not establish that the
injuries the child suffered in February 2012 were a proximate cause of the death
of the child in December 2012. The proximate cause of death of the child was the
inadequate medical care the child received many months later and the inadequate
monitoring of the child's medical condition months later. The fact the child was
not receiving nutrition for an unknown period of time undoubtedly had several
negative effects on the child. The fact the fluid which should have been
nourishing the child was being dumped into the child's abdomen and causing
inflammation of that area is the fact as to the actual cause of the death which
occurred approximately ten months after the child was found not breathing.
The autopsy report on the child indicates that the gastric feeding tube in the child
had perforated the peritoneal wall. The tube's tip was adjacent to the perforation
but exposed to the peritoneal cavity. As noted earlier, the damage to the
peritoneum was what caused the child's death. The earlier treatment of the child at
Nationwide Children's Hospital did not reveal any harm to the peritoneum. All the
harm to the peritoneum occurred at the facility which cared for the child after the
child's discharge from Nationwide Children's Hospital.
I also note that the trial court judge told the jury:
Cause is an act or failure to act which in the natural and continuous sequence
directly produces the injury, and without which it would not have occurred. Cause
occurs when the injury is the natural and foreseeable result of the act or failure to
act.
A death is the “proximate result” of an act or failure to act when it is produced
directly by the act or failure to act in a natural and continuous sequence and
would not have occurred without the act or failure to act. “Result” occurs when
the death is naturally and foreseeably caused by the act or failure to act.
(Feb. 3, 2014 Jury Instructions, 5.)
The injury which caused the death of this child was the result of the improper
medical care and treatment of the child ten months after Crockett and his wife
contacted authorities. Such care was not a foreseeable result of any act or failure
to act of Johnnie Crockett, III.
Therefore, I do not view the evidence as establishing that Crockett's actions or
inactions proximately caused the damage to the child's peritoneum and therefore
did not cause the death of the child. I would sustain the second assignment of

17

error in part. Sustaining the second assignment of error moots the first and third
assignments of error.
State v. Crockett, 2015 WL 3757336, at *14-15.
Before a criminal defendant can be convicted consistent with the United States
Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining
whether the evidence was sufficient to support a petitioner's conviction, a federal habeas court
must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S.
277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to “rule
out every hypothesis except that of guilt.” Id. (quoting Jackson, 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 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.” See also White v.
Steele, 602 F.3d 707, 710 (6th Cir. 2009), cert. denied, 562 U.S. 858 (2010). This is a substantial
hurdle for a habeas petitioner to overcome. Petitioner has not done so.
18

Petitioner compares this case to factually dissimilar cases in arguing that the State failed
to present sufficient circumstantial evidence to sustain his convictions. He complains that the
State failed to produce any direct evidence of the cause of I.C.’s injuries, which resulted from a
lack of oxygen to the brain and maintains that evidence established only an unknown, nonaccidental head trauma. Petitioner further contends that his conviction requires the stacking of
impermissible inferences, conjecture, and unreasonable speculation. Petitioner again argues that
the child’s injuries may have resulted from a prior fall and that he could not have caused I.C.’s
injuries as he was alone with I.C. for only a brief period of time. In support of this claim,
Petitioner refers to his acquittal on the charge of felonious assault. Petitioner also refers to Judge
Tyack’s dissenting opinion in this case, arguing that intervening grossly negligent medical care
or damage to the peritoneum based on improper insertion of the gastric feeding tube caused the
child’s death, and not the injuries sustained as a result of his physical abuse. Petitioner
characterizes the evidence as establishing that he made mistakes in administering CPR and failed
to immediately call 911.
These arguments are not persuasive. Petitioner was convicted of the charge of felony
murder, in violation of O.R.C. § 2903.02(B), by causing the death of I.C. as a proximate result of
committing or attempting to commit an offense of violence, i.e., child endangering. (Indictment,
ECF No. 7-1, PAGEID # 115.)3 Petitioner does not dispute the factual findings of the state
appellate court. Those findings, as discussed, indicate, inter alia, that I.C. was in good health
prior to the morning of February 12, 2012, when he stopped breathing while alone and in the sole
care of the Petitioner. Petitioner did not seek immediate medical assistance when I.C. stopped
breathing, but instead called the child’s mother, who was at the store. She called 911 when she
3

Petitioner does not challenge his convictions on two counts of child endangering, in violation of
O.R.C. § 2919.22.
19

returned to the house. Experts, including Dr. David Rogers, Dr. Lisa Martin, Dr. Brent Adler,
and Dr. Charles J. Lee, all concluded that the child’s injuries were the result of abusive head
trauma and inconsistent with other causes. Dr. Nicholas Zumberge said that it was nearly
impossible to explain I.C.’s injuries in any manner other than child abuse, nonaccidental trauma,
or abusive head injury. Dr. Mary Ranee Leder ruled out I.C.’s purported prior fall from the bed
as a possible cause for the injuries that I.C. sustained. This testimony, when viewed in the light
most favorable to the prosecution, is constitutionally sufficient to sustain Petitioner’s conviction.
“[I]t is the responsibility of the jury – not the court – to decide what conclusions should be drawn
from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (sufficient evidence to
sustain conviction on assault on a child resulting in death despite competing expert testimony on
whether shaken baby syndrome caused death); see also Butts v. Sheets, No. 2:05-cv-994, 2006
WL 2612896, at *13-14 (S.D. Ohio Aug. 10, 2006) (circumstantial evidence sufficient to sustain
convictions on murder, felonious assault, and child endangering despite conflicting expert
testimony on the cause of death). Importantly, “circumstantial evidence alone can sustain a
guilty verdict and . . . circumstantial evidence need not remove every reasonable hypothesis
except that of guilt.” United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984). Additionally,
“Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence
presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to
ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) (citing Jackson,
443 U.S. at 319). “[T]he only question under Jackson is whether [the jury's finding] was so
insupportable as to fall below the threshold of bare rationality.” Coleman, 566 U.S. at 656.
Moreover, habeas review of an appellate court’s denial of a claim of insufficiency of the
evidence is “twice-deferential.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam).

20

The state appellate court rejected Petitioner’s claim that he did not cause I.C.’s death in
view of intervening improper medical care, holding that I.C.’s death was the natural and
foreseeable result of Petitioner’s actions, which caused I.C. to be placed in a comatose state due
to the head trauma. This Court defers to, “and is bound by, the state appellate court’s
interpretation of Ohio law regarding the theories of natural consequences and intervening causes
and their application[.]” Spates v. Harris, 1:16-cv-1262, 2017 WL 7792506, at *13 (N.D. Ohio
Sept. 13, 2017) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005)).
Claim one is without merit.
Claim Two: Improper Jury Instructions
Petitioner asserts that he was denied a fair trial because the trial court refused to issue a
jury instruction on the lesser-included offense of involuntary manslaughter. He argues that the
appellate court’s decision denying this claim involved an unreasonable determination of the facts
in light of the trial record, because, according to Petitioner, he presented sufficient evidence to
warrant the lesser-included jury instruction, particularly in view of the jury’s verdict of not guilty
on the charge of felonious assault. The appellate court denied the claim as follows:
[A]ppellant asserts that the trial court erred by failing to instruct
the jury on the lesser-included offense of involuntary
manslaughter.
“An offense is a lesser-included offense of another where: (1) the
offense carries a lesser penalty; (2) the greater offense cannot, as
statutorily defined, ever be committed without the lesser offense,
as statutorily defined, also being committed; and (3) some element
of the greater offense is not required to prove commission of the
lesser offense.” State v. Hubbard, 10th Dist. No. 11AP–945, 2013–
Ohio–2735, ¶ 37, citing State v. Deem, 40 Ohio St.3d 205, 209
(1988).
Appellant was charged with felony murder under R.C. 2903.02(B),
which provides that “[n]o person shall cause the death of another
as a proximate result of the offender's committing or attempting to
21

commit an offense of violence that is a felony of the first or second
degree.” Because appellant was acquitted of the felonious assault
charge, his felony murder conviction was predicated on the felony
two count of endangering children under R.C. 2919.22(B)(1), as
felony murder requires a first or second-degree felony as the
predicate offense. See Hubbard at ¶ 20. R.C. 2919.22 provides that
it is a felony of the second degree to abuse a child under 18 years
of age where such abuse results in serious physical harm to the
child.
R.C. 2903.04 defines the crime of involuntary manslaughter and
provides that no person shall cause the death of another “as a
proximate result of the offender's committing or attempting to
commit a felony,” or as the result of the offender committing or
attempting to commit “a misdemeanor of any degree.” R.C.
2903.04(A) and (B). Appellant asserts that the felony three count
of endangering children could have served as the predicate felony
for his involuntary manslaughter instruction since any felony or
misdemeanor can be the predicate offense for involuntary
mansalughter [sic]. See Hubbard at ¶ 20. R.C. 2919.22(A)
provides that “[n]o person, who is the parent, guardian, custodian,
person having custody or control, or person in loco parentis of a
child under eighteen years of age * * * shall create a substantial
risk to the health or safety of the child, by violating a duty of care,
protection, or support.” R.C. 2919.22(E)(2)(c) provides that a
violation of R.C. 2919.22(A) that results in serious physical harm
to the child involved is a felony of the third degree.
Here, there is no question that involuntary manslaughter is a lesserincluded offense of felony murder. State v. Lynch, 98 Ohio St.3d
514, 2003–Ohio–2284, ¶ 79; State v. Finley, 1st Dist. No. C–
061052, 2010–Ohio–5203, ¶ 29; State v. Brundage, 1st Dist. No.
C–030632, 2004–Ohio–6436, ¶ 9 (“[I]nvoluntary manslaughter
under both R.C. 2903.04(A) and (B) is a lesser-included offense of
felony murder.”). However, a court is required to give an
instruction on a lesser-included offense only when “ ‘sufficient
evidence is presented which would allow a jury to reasonably
reject the greater offense and find the defendant guilty on a lesser
included * * * offense.’ “ (Emphasis sic.) Hubbard at ¶ 37, quoting
State v. Shane, 63 Ohio St.3d 630, 632 (1992). See also State v.
Noor, 10th Dist. No. 13AP–165, 2014–Ohio–3397, ¶ 80. In other
words, a trial court “must give an instruction on a lesser included
offense if under any reasonable view of the evidence it is possible
for the trier of fact to find the defendant not guilty of the greater
offense and guilty of the lesser offense.” State v. Wine, 140 Ohio
St.3d 409, 2014–Ohio–3948, ¶ 34. See also State v. Wilkins, 64
22

Ohio St.2d 382, 388 (1980). “In determining whether lesserincluded-offense instructions are appropriate, ‘the trial court must
view the evidence in the light most favorable to the defendant.’”
Wine at ¶ 21, quoting State v. Monroe, 105 Ohio St.3d 384, 2005–
Ohio–2282, ¶ 37.
“As is the case when reviewing a trial court's jury instructions
generally, the proper standard of review for an appellate court in
reviewing whether to give an instruction as to a lesser-included
offense is whether the trial court's refusal to give a requested jury
instruction constituted an abuse of discretion under the facts and
circumstances of the case.” Noor at ¶ 81, citing State v. Parnell,
10th Dist. No. 11AP–257, 2011–Ohio–6564, ¶ 21–27. Abuse of
discretion connotes more than an error of law or judgment; rather,
it implies that the trial court's decision was unreasonable, arbitrary
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
In this case, the appellant argued that a lesser-included-offense
instruction was appropriate because “[t]here is F3 available to the
jury already, F3 child endangering. So involuntary manslaughter
could be predicated upon that F3. I would argue that the jury's been
presented with a range of evidence. They will be determining the
knowingly, recklessly element, and they could come to this
decision.” (Tr. 753–54.) In response, the state offered the
following argument:
[Assistant Prosecutor]: * * * There's been no evidence that
indicates it should be given in this case. The defense's theory is
that he is innocent, that he did not commit these crimes. That's not
the kind of defense that warrants a lesser in this situation.
The only witness that was offered by the defense testified to
alternate causation aside from what the state's theory was.
*

*

*

The theory of the cause of death is from abuse. It's not from lack of
attention. Now, that may have happened as well. But there isn't any
evidence of that lack of attention of that violation of duty of care is
the cause of death in this case.
(Tr. 754, 756.) The trial court overruled appellant's request for a
lesser-included-offense instruction but warned the state to only
argue that the cause of death was from abuse. Appellant renewed
his objection to lack of the involuntary manslaughter instruction.
23

Here, even viewing the evidence in a light most favorable to
appellant, no reasonable jury could acquit appellant of felony
murder but convict him of involuntary manslaughter. Although
some evidence in the form of Dr. Young's testimony was offered at
trial to support a finding that appellant did not commit child abuse,
the jury clearly rejected such evidence in finding appellant
committed abuse of a child in violation of R.C. 2919.22(B).
Because the jury found appellant guilty of child abuse resulting in
serious physical harm, it would be unreasonable for the jury to
believe that the child's death resulted from the child endangering
arising from a violation of a duty of care under R.C. 2919.22(A).
Our conclusion is supported by both the content and quality of
evidence in the record. The record contains an abundance of
evidence supporting the conclusion that appellant's abuse caused
I.C.'s injuries, which ultimately resulted in his death. Dr.
Zumberge concluded that it was “difficult to explain or nearly
impossible to explain” I.C.'s injuries, specifically “retinal
hemorrhages, subdural hemorrhages, and diffuse brain injury,” in
any manner other than “child abuse or nonaccidental trauma or
abusive head injury, whatever term is used.” (Tr. 432.) Dr. Rogers
agreed that, based on his examination of I.C.'s eyes and his
associated medical history, the injuries resulted from abusive head
trauma. Dr. Lee stated that his findings resulting from I.C.'s
autopsy were consistent with abusive head trauma. Dr. Leder
concluded that no medical condition or accidental history could
explain the presence of I.C.'s injuries, and that his injuries were
consistent with a finding of nonaccidental trauma. Thus, although
the state's witnesses considered other possible explanations for
I.C.'s injuries, they found no evidence to support any conclusion
other than that the injuries resulted from child abuse. On the other
hand, the record does not reflect, and appellant fails to point to,
evidence demonstrating that appellant's failure to summon help
was the cause of I.C.'s injuries, or, ultimately, of his death.
Therefore, although appellant presented some evidence that would
support the lesser-included-offense instruction, we find that such
evidence was not sufficient to allow the jury to reasonably reject
the greater offense and support the lesser-included offense. See
State v. Trimble, 122 Ohio St.3d 297, 2009–Ohio–2961, ¶ 192,
citing State v. Shane, 63 Ohio St.3d 630, 632 (1992) (“The lesserincluded-offense instruction is not warranted every time ‘some
evidence’ is presented to rsupport the lesser offense.”).

24

Appellant asserts that, contrary to the state's arguments both at the
trial level and on appeal, the Supreme Court of Ohio in Wine found
that a defendant's trial strategy was irrelevant to the determination
of whether or not a lesser-included-offense instruction was
appropriate. In Wine, the Supreme Court considered “whether a
defendant who presents an ‘all or nothing’ defense in a criminal
trial has the right to prevent a trial court from giving lesserincluded-offense jury instructions.” Id. at ¶ 1. The Supreme Court
held that “[t]he trial court, after reviewing the evidence, determines
whether an instruction on lesser included offenses is appropriate”
and that “[t]he trial court must give an instruction on a lesser
included offense if under any reasonable view of the evidence it is
possible for the trier of fact to find the defendant not guilty of the
greater offense and guilty of the lesser offense.” Id. at ¶ 34. While
appellant is correct that the Supreme Court also stated that “[t]his
court has therefore left no doubt that it is the quality of the
evidence offered, not the strategy of the defendant, that determines
whether a lesser-included-offense charge should be given to a
jury,” this does not alter our conclusion that no reasonable jury
could acquit appellant of felony murder but convict him of
involuntary manslaughter. Id. at ¶ 26. Regardless of whether or not
the trial court considered the state's argument regarding appellant's
trial strategy in making its determination, the trial court correctly
determined that a lesser-included-offense instruction was not
warranted in this instance.
Thus, under the facts and circumstances of the case at hand, we
cannot find that the trial court abused its discretion by refusing to
provide the requested jury instruction. Noor at ¶ 81. Accordingly,
we overrule appellant's third assignment of error.
State v. Crockett, 2015 WL 3757336, at *7-10.
This claim fails to provide Petitioner a basis for relief. “Under AEDPA, a threshold issue
is to determine whether there is ‘clearly established’ law governing the case.” Belton v. Woods,
No. 5:16-cv-10647, 2017 WL 2132245, at *3 (E.D. Mich. May 17, 2017) (citing Carey v.
Musladin, 549 U.S. 70, 74-77 (2006)). “Law is ‘clearly established’ when Supreme Court
precedent unambiguously provides a ‘controlling legal standard.’” Id. (citing Panetti v.
Quarterman, 551 U.S. 930, 953 (2007)). The Supreme Court has not held that the Constitution

25

provides a criminal defendant in a non-death penalty case the right to a jury instruction on a
lesser-included offense:
The right to an instruction on a lesser-included offense in a
noncapital case has not been clearly established by the Supreme
Court. See Parker v. Burt, 595 Fed. Appx. 595, 605 (6th Cir. Mich.
2015). The Sixth Circuit stated, “[t]he Supreme Court ... has never
held that the Due Process Clause requires instructing the jury on a
lesser included offense in a non-capital case.” McMullan v.
Booker, 761 F.3d 662, 667 (6th Cir. 2014); see also Campbell v.
Coyle, 260 F.3d 531, 541 (6th Cir. 2001) (“[T]he Constitution does
not require a lesser-included offense instruction in non-capital
cases.”) (citing Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir.
1990) (en banc)).
Belton v. Woods, 2017 WL 2132245, at *4. Thus, “[t]he failure of a state trial court to instruct a
jury on a lesser included offense in a non-capital case is [] not an error cognizable in federal
habeas review.” Robinson v. Winn, No. 4:16-cv-11738, 2018 WL 1522437, at *7 (E.D. Mich.
March 28, 2018) (citing Bagby v. Sowders, 894 F. 2d 792, 797 (6th Cir.), cert. denied, 496 U.S.
929 (1990); Scott v. Elo, 302 F. 3d 598, 606 (6th Cir. 2002), cert. denied, 537 U.S. (2003)).
In the absence of a further Supreme Court decision on this matter,
a state court determination of whether instructions on lesserincluded offenses were necessary cannot be contrary to, or an
unreasonable application of, clearly established Supreme Court
precedent; and thus, falls beyond the authority of a habeas court.
See McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014);
Tegeler v. Renico, 253 Fed.Appx. 521, 525 (6th Cir. 2007) (where
an open question exists in Supreme Court jurisprudence as to a
particular issue of law, no violation of “clearly established” federal
law as determined by the Supreme Court can be shown).
Howard v. Dewine, No. 5:14-cv-2587, 2016 WL 2637757, at *8 (N.D. Ohio April 6, 2016).
Thus, any error in jury instructions will only provide relief where the ailing instruction so
infected the entire trial that the resulting conviction violates due process. Henderson v. Kibbe,
431 U.S. 135, 154 (1977) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Such are not the
circumstances here. “An omission, or an incomplete instruction, is less likely to be prejudicial
26

than a misstatement of the law.” Id. at 155. The appellate court reasonably concluded that the
facts did not support an instruction on the lesser-included offense of involuntary manslaughter in
view of the lack of any evidence indicating that I.C. died as a result of Petitioner’s failure to seek
immediate medical assistance.
Claim two is without merit.
Claim Three: Ineffective Assistance of Counsel
Procedural Default
Respondent contends that Petitioner has procedurally defaulted his claim of the denial of
the effective assistance of counsel by failing to present this issue to the Ohio Supreme Court.
For the reasons that follow, this Court agrees.
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, 103 (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).

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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. 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, the Court must determine 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

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the petitioner did not comply with a state procedural rule and that the rule was an adequate and
independent state ground, then the petitioner must demonstrate cause for his failure to follow the
procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This
“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the
appellate level. Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.), cert. denied sub nom. Leroy v.
Morris, 474 U.S. 831 (1985).
In light of 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.’” Id. 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 the claim is procedurally defaulted,
petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the
ineffective-assistance claim itself.” Edwards, 529 U.S. at 450–51. The Supreme Court explained
the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas,
habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The
independent and adequate state ground doctrine ensures that the
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States' interest in correcting their own mistakes is respected in all
federal habeas cases.” 501 U.S., at 732, 111 S. Ct. 2546, 115
L.Ed.2d 640. We again considered the interplay between
exhaustion and procedural default last Term in O'Sullivan v.
Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999),
concluding that the latter doctrine was necessary to “ ‘protect the
integrity’ of the federal exhaustion rule.” Id. at 848, 526 U.S. 838,
119 S. Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838,
119 S. Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be utterly
defeated if the prisoner were able to obtain federal habeas review
simply by “ ‘letting the time run’ ” so that state remedies were no
longer available. Id. at 848, 526 U.S. 838, 119 S. Ct. 1728, 144
L.Ed.2d 1. Those purposes would be no less frustrated were we to
allow federal review to a prisoner who had presented his claim to
the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it. In
such circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a “fair
‘opportunity to pass upon [his claims].’ ” Id. at 854, 526 U.S. 838,
119 S. Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)
(emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70
S. Ct. 587, 94 L.Ed. 761 (1950)).
Id. at 452–53.
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, 135 S. Ct. 1545 (2015).
Here, Petitioner argued that he was denied the effective assistance of counsel in the Ohio
Court of Appeals; however, he failed again thereafter to raise this same issue on appeal to the
Ohio Supreme Court. (See Mem. in Support of Jurisdiction, ECF No. 7-1, PAGEID # 259.)
Further, he may now no longer do so, due to Ohio’s doctrine of res judicata. See State v. Cole, 2
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Ohio St. 3d 112, 115 (1982); State v. Perry, 10 Ohio St. 2d 175, 180 (1967) (claims must be
raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.). The
state courts were never given an opportunity to enforce this procedural rule due to the nature of
Petitioner's procedural default.
Ohio's doctrine of res judicata is adequate and independent under the third part of the
Maupin test. To be “independent,” the procedural rule at issue, as well as the state court's
reliance thereon, must rely in no part on federal law. See Coleman, 501 U.S. at 732–33. To be
“adequate,” the state procedural rule must be firmly established and regularly followed by the
state courts. Ford v. Georgia, 498 U.S. 411, 423 (1991). “[O]nly a ‘firmly established and
regularly followed state practice’ may be interposed by a State to prevent subsequent review by
this Court of a federal constitutional claim.” Id. (quoting James v. Kentucky, 466 U.S. 341, 348–
351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama
ex rel. Flowers, 377 U.S. 288, 297 (1964). The United States Court of Appeals for the Sixth
Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an
adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th
Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001), cert. denied sub nom.
Coleman v. Bagley, 535 U.S. 1031 (2002); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.
2000), cert. denied, 532 U.S. 989 (2001); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 2000)
cert. denied, 531 U.S. 1082 (2001); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.), cert. denied,
525 U.S. 935 (1998). Ohio courts have consistently refused, in reliance on the doctrine of res
judicata, to review the merits of claims because they are procedurally barred. See Cole, 2 Ohio
St.3d at 112; State v. Ishmail, 67 Ohio St.2d 16, 18 (1981). Additionally, the doctrine of res
judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the

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earliest possible opportunity. With respect to the independence prong, the Court concludes that
Ohio's doctrine of res judicata in this context does not rely on or otherwise implicate federal law.
Accordingly, the Court is satisfied from its own review of relevant case law that the Perry rule is
an adequate and independent ground for denying relief.
Petitioner therefore has procedurally defaulted his claim of the denial of the effective
assistance of counsel. He may still secure review of this claim on the merits if he demonstrates
cause for his failure to follow the state procedural rules, as well as actual prejudice from the
alleged constitutional violations. “[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, or 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).
Further, attorney error cannot constitute cause for Petitioner’s failure to raise an issue in the Ohio
Supreme Court where Petitioner had no right to counsel in such proceeding. See Barkley v.
Konteh, 240 F. Supp. 2d 708, 713-14 (N.D. Ohio Dec. 13, 2002) (citing Coleman, 501 U.S. at
751-53; Pennsylvania v. Finley, 481 U.S. 551, 555 (1987))(other citations omitted). Petitioner
has failed to establish cause for his procedural default.
Claim three is waived.

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Recommended Disposition
For the reasons set forth above, it is RECOMMENDED 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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