Hobbs v. Warden Ross Correctional Institution

Filing 15

ORDER AND REPORT AND RECOMMENDATION: Magistrate Judge GRANTS 14 MOTION to file additional citation, RECOMMENDS DISMISSING 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 8/4/2017. Signed by Magistrate Judge Kimberly A. Jolson on 7/21/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRANDON L. HOBBS,
CASE NO. 2:16-CV-940
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

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

ORDER AND
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent’s
Return of Writ (ECF Nos. 6, 9), Petitioner’s Traverse (ECF No. 12), Respondent’s Reply to
Petitioner’s Traverse (ECF No. 13), and the exhibits of the parties. For the reasons that follow,
the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Respondent’s Motion to file additional citation (ECF No. 14) is GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

this case as follows:
On November 20, 2012, a Franklin County Grand Jury indicted
appellant on counts of murder in violation of R.C. 2903.02,
carrying a concealed weapon in violation of R.C. 2923.12, and
having a weapon while under disability in violation of R.C.
2923.13. The charges arose out of the shooting death of Jaron
Kirkling. Appellant entered a not guilty plea to the charges and
proceeded to a jury trial.
In September 2012, appellant sold his Chevy Suburban to Kirkling.
Appellant told Kirkling that he could keep the license plates on the
car until Kirkling could transfer the title to his name. Kirkling,

however, had some difficulty obtaining title in his name. In
October 2012, appellant received a speeding ticket in the mail
arising from Kirkling’s driving of the Suburban. Appellant
received it because the car was still in his name. Appellant
contacted Kirkling to resolve the matter. Kirkling told him that he
would pay for the ticket and that he would transfer the title to his
name as soon as he could. Appellant was becoming annoyed that it
was taking Kirkling so long to transfer the title and repeatedly
talked to him on the phone about doing it.
On November 11, 2012, Kirkling and his cousin, Brandon Mackey,
who had arranged the sale of the car, were sitting in the Suburban
in Mackey’s driveway. Appellant and his girlfriend, Shelby
Abrams, drove up in their car and parked behind the Suburban.
Appellant got out of the car, walked to the front of the Suburban,
and took the front license plate off the car. When he walked to the
back of the Suburban, Kirkling got out of the car and asked him
what he was doing. Appellant told Kirkling that it had taken him
too long to transfer the title so he was going to take the license
plates. Kirkling did not want him to take the license plates and they
began yelling at each other. Mackey tried to calm them down and
asked his girlfriend, Melody Gaston, to come out of the house to
tell the two men to leave the property. At this time, Abrams got out
of appellant’s car to take the license plate off the back of the
Suburban. Kirkling walked around to that part of the car and
pushed, moved, or somehow came into contact with Abrams to
stop her from taking the plate. What happened next was the central
dispute at trial.
Appellant testified that he was angry when he saw Kirkling push
Abrams and started yelling at him. According to appellant, he and
Kirkling continued to yell at one another until Kirkling pulled out a
gun from his waistband and aimed it at him, which scared
appellant. Within a second or two of seeing Kirkling’s gun,
appellant pulled out his own gun, stepped back and started
shooting. Appellant shot four times at Kirkling who then fell to the
ground. Kirkling did not fire his gun. Appellant fired two more
shots and then took the gun from Kirkling’s hands. He and Abrams
then drove away.
Abrams supported appellant’s version of events. She testified that
Kirkling deliberately knocked her to the ground as she attempted to
remove the license plate. Appellant came to her aide and yelled at
Kirkling not to touch her. She then saw Kirkling pull out a gun.
She ran to the safety of the car. She heard four initial shots and
then four more shots a few seconds later. She did not see who fired
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the shots. (Tr. 491–92.) Appellant and Abrams then drove away. In
the car, Abrams saw that appellant had two guns.
Mackey and Gaston described the shooting differently. According
to Mackey and Gaston, Kirkling did not pull out a gun when the
incident occurred. Rather, appellant shot Kirkling because he was
upset with him after he pushed Abrams. Nor did Gaston see
appellant take a gun from Kirkling.
More than a year after the shooting, and only days after appellant’s
arrest, his former lawyer contacted the police and told them that he
had two guns that had something to do with appellant’s case. One
was a Smith & Wesson M & P .40 caliber handgun and the other
was a .357 caliber Glock Model 31 handgun. (Tr. 262.) Appellant
admitted to shooting Kirkling with the .357 Glock during the
confrontation. He also testified that he took the Smith & Wesson
.40 caliber handgun from Kirkling that day. He had separately
wrapped the two guns in plastic bags and delivered them to his
lawyer. Police did not find any guns at the scene of the murder but
found several .357 caliber bullet casings. There were no .40 caliber
bullet casings.
DNA found on the barrel of the Smith & Wesson handgun was
compared to DNA samples of appellant and Kirkling. That testing
found a mixture of DNA from at least two individuals. Kirkling
could not be excluded as the major contributor to that mixture of
DNA. This DNA evidence arguably supported appellant’s claim
that Kirkling had a gun at the time of the shooting. In response, the
state attempted to show other ways that Kirkling’s DNA could
have ended up on the handgun, such as an indirect transfer of the
DNA from one person to another. The state also attempted to show
that appellant often let other people handle guns that he had in his
house although there was no evidence that Kirkling had ever been
to appellant’s house.
The jury rejected appellant’s self-defense theory and found him
guilty of murder and the attendant firearm specification as well as
the two weapons charges. The trial court sentenced appellant
accordingly.
II. The Appeal
Appellant appeals and assigns the following errors:
1. Trial counsel’s acts and omissions deprived appellant of his
right to effective assistance of counsel.
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2. The trial court erred when it did not merge for purpose of
sentencing the offenses of murder, carrying a concealed weapon,
and having a weapon under a disability.
State v. Hobbs, No. 14AP-225, 2015 WL 3822239, at *1–3 (Ohio Ct. App. 2015). On June 18,
2015, the appellate court affirmed the judgment of the trial court. Id. The Supreme Court of
Ohio then declined to accept jurisdiction of the appeal. State v. Hobbs, 143 Ohio St.3d 1481
(Ohio 2015).
On September 29, 2016, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. As his sole claim for relief, he asserts that he was denied his Sixth
Amendment right to the effective assistance of trial counsel:
Petitioner’s counsel failed to object to the prosecutor’s eliciting
inadmissible and highly inflammatory testimony regarding
Petitioner’s history of drug dealing, and possession of, and
transactions involving, multiple firearms; failed to object to the
prosecutor’s use of Petitioner’s prior convictions for impermissible
purposes; and failed to request curative and/or limiting
instructions. Counsel compounded the prejudice to his client by
eliciting additional testimony regarding his client’s drug trafficking
and firearms activity. Counsel’s errors and omissions bore no
reasonable relationship to legitimate trial strategy and constituted
constitutionally deficient performance. It is reasonably probable
that, but for counsel’s deficient performance, the jury would have
acquitted Petitioner.
Respondent argues that this claim lacks merit. (ECF Nos. 6, 13).
II.

STANDARD OF REVIEW
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) governs this case. The United States Supreme Court
has described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court” and has emphasized that courts must not “lightly
conclude that a State’s criminal justice system has experienced the ‘extreme malfunction’ for
4

which federal habeas relief is the remedy.” Burt v. Titlow,––U.S.––, 134 S. Ct. 10, 16 (2013)
(quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773
(2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and
demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks,
citations, and footnote omitted).
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 AEDPA, the factual findings of the state court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1).
Accordingly, “a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)

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(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals
for the Sixth Circuit has succinctly explained these standards:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying AEDPA’s standards rests with Petitioner.
See Cullen v. Pinholster, 563 U.S.170, 181 (2011).
III.

DISCUSSION
Petitioner argues that his trial counsel rendered ineffective assistance of counsel, in

violation of the Sixth Amendment, by “failing to object to the prosecutor’s eliciting inadmissible
and highly inflammatory testimony, regarding Petitioner’s history of drug dealing, and
possession of, and transactions involving, multiple firearms; failing to object to the prosecutor’s
use of Petitioner’s prior convictions for impermissible purposes; and failing to request curative
and/or limiting instructions.”

(ECF No. 1 at 5.)

He additionally asserts that counsel

“compounded the prejudice to [him] by eliciting additional testimony regarding his [] drug
trafficking and firearms activity.” (Id.)
The state appellate court considered Petitioner’s ineffective assistance of counsel claim
(as presented) and rejected it:

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In his first assignment of error, appellant argues that he received
ineffective assistance of counsel. We disagree.
To establish a claim of ineffective assistance of counsel, appellant
must show that counsel’s performance was deficient and that
counsel’s deficient performance prejudiced him. State v. Jackson,
107 Ohio St.3d 53, 2005–Ohio–5981, ¶ 133, citing Strickland v.
Washington, 466 U.S. 668, 687 (1984). The failure to make either
showing defeats a claim of ineffective assistance of counsel. State
v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at
697. (“[T]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes
an insufficient showing on one.”).
In order to show counsel’s performance was deficient, the
appellant must prove that counsel’s performance fell below an
objective standard of reasonable representation. Jackson at ¶ 133.
The appellant must overcome the strong presumption that defense
counsel’s conduct falls within a wide range of reasonable
professional assistance. Strickland at 689. To show prejudice, the
appellant must establish that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. State v. Hale, 119 Ohio St.3d 118,
2008–Ohio–3426, ¶ 204.
Appellant argues that his trial counsel was ineffective for eliciting
certain “other acts” testimony that described his history of selling
drugs and possessing guns and for failing to object to similar
testimony presented by the state in violation of Evid.R. 404(B). He
claims that the state presented this testimony to portray appellant
as an armed drug dealer and that his trial counsel was ineffective
for not preventing this and, in some instances, eliciting this
inadmissible testimony by his own questioning.
Before any of this testimony, the trial court heard a motion in
limine which addressed anticipated testimony regarding appellant’s
prior drug sales as well as his gun possession. (Tr. 230.) The trial
court concluded that it would allow witnesses to testify about
appellant having a gun and his drug sales if they occurred at the
same time. The witnesses could not, however, simply provide
gratuitous testimony regarding appellant’s drug sales if a gun was
not involved with those sales.
Appellant contends, however, that the state violated the trial
court’s ruling by simply portraying him as a drug dealer. First, in
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Gaston’s direct examination, the prosecutor asked about her
previous interactions with appellant. Gaston testified that she had
previously bought drugs from appellant at his house and that he
had guns in his house that he let other people handle. Appellant’s
trial counsel objected to those questions but, the trial court
overruled the objections. Appellant’s trial counsel, in an attempt to
impeach Gaston, then questioned her extensively about her drug
usage and about the quantity of drugs she bought from appellant.
At some point during that questioning, the trial court instructed
appellant’s trial counsel to stop questioning Gaston about her drug
usage because it was not relevant to the case.
Appellant contends that this portrayal of him as a drug dealer
continued in the prosecutor’s cross-examination of Abrams. The
prosecutor asked Abrams whether appellant sold drugs, whether he
possessed guns, and whether he sold drugs to Gaston. Abrams
testified that appellant was a drug dealer and had sold drugs to
Gaston. She also testified that appellant had a Smith & Wesson
handgun. (Tr. 505.) Trial counsel did not object to most of these
questions.
Appellant then testified on his own behalf. He introduced himself
to the jury by informing them that he had lived in Columbus all his
life and that his employment included “sell[ing] drugs from time to
time.” (Tr. 553.) During the direct questioning of appellant, his
trial counsel asked appellant about his history of selling drugs and
his use and possession of guns. He also asked appellant how he got
the gun that he used to shoot Kirkling. Appellant admitted that he
bought the gun off the street. He also admitted that he went to
Mackey’s house to sell him drugs that day and that he had a gun
because he was carrying a lot of money from drug sales.
During the state’s cross-examination of appellant, the prosecutor
questioned appellant about his history of selling drugs and then
inquired about the link between selling drugs and carrying guns.
Appellant described the different situations in which he would or
would not have a gun. Those situations depended on whether he
was carrying a large amount of drugs or money. The prosecutor
also questioned appellant about how he came to be in possession of
the gun (Glock Model 31) that he used to shoot Kirkling. Appellant
testified that he bought the gun from a friend. He explained that he
did not know whether that gun or the Smith & Wesson had been
stolen. The prosecutor further questioned appellant about “all the
different guns you’ve had at your house.” (Tr. 636 .) Appellant
described two or three guns that he owned. Trial counsel did not
object to any of this questioning.
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1. Was this Trial Strategy?
Appellant argues that his trial counsel was ineffective for allowing
and, in some instances, assisting the state in portraying him in a
bad light through the “other acts” testimony concerning his drug
dealing and history of gun possession in violation of Evid.R.
404(B). We disagree.
Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
The state does not argue that the admission of the above testimony
was proper under Evid.R. 404(B). Instead, the state argues that trial
counsel’s strategy was to portray appellant as completely candid
and truthful to the jury so that they would believe him when he
testified that he shot Kirkling in self-defense. Therefore, the state
argues, trial counsel made a strategic decision not to object to this
testimony and, in fact, elicited some of this testimony in his own
questioning, in an attempt to make appellant seem more candid and
honest. We agree that this could be a legitimate trial strategy under
the facts of this case.
Evidence of other crimes which come before the jury due to
defense counsel’s neglect, ignorance, or disregard of defendant’s
rights, and which bears no reasonable relationship to a legitimate
trial strategy, will be sufficient to render the assistance of counsel
ineffective. State v. Hester, 10th Dist. No. 02AP–401, 2002–Ohio–
6966, ¶ 10; State v. Rutledge, 10th Dist. No. 92AP–1401 (June 1,
1993), citing State v. Martin, 37 Ohio App.3d 213, 214 (10th
Dist.1987). Hindsight, however, is not permitted to distort the
assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance
of counsel. State v. Fritz, 163 Ohio App .3d 276, 2005–Ohio–4736,
¶ 18 (2d Dist.), citing Strickland; State v. H.H, 10th Dist. No.
10AP–1126, 2011–Ohio–6660, ¶ 25, quoting State v. Jackson, 107
Ohio St.3d 300, 2006–Ohio–1, ¶ 138 (“Although introducing
evidence of prior convictions or bad acts may be a questionable
strategy in hindsight, this court generally ‘refrains from secondguessing strategic decisions counsel makes at trial, even when
counsel’s trial strategy was questionable.’”).
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Here, appellant testified in support of his claim of self-defense. He
testified that he was at Mackey’s house to sell him drugs and that
he had a gun because of the large amount of money he was
carrying from other drug sales. Therefore, trial counsel would have
understood that the jury was going to hear testimony about
appellant’s prior convictions, drug sales, and firearm use.
Counsel’s apparent trial strategy was to admit certain acts to lessen
their significance to the jury and to bolster appellant’s credibility
so that the jury would believe his testimony that Kirkling
threatened him with a gun and that appellant fired in self-defense.
Hester at ¶ 13–14 (concluding that in light of evidence presented,
calling defendant’s parole officer in an attempt to bolster
defendant’s credibility was legitimate trial strategy). Credibility of
witnesses is a critical factor in a case such as this where the state’s
witnesses and the defense witnesses tell two dramatically different
versions of the shooting. Especially in such a case, it may be a
legitimate trial strategy to admit to the jury bad things, thereby
lessening the impact of those bad things on the jury and hopefully
bolstering an accused’s credibility by seeming completely honest.
State v. Ryan, 6th Dist. No. WD–05–5120, 2006–Ohio–5120, ¶
31–36 (questioning of defendant about prior convictions was a
reasonable tactical decision and not ineffective); State v. Delgado,
8th Dist. No. 60587 (June 11, 1992) (“A knowledgeable trial
counsel in an attempt to diminish the impact of an accused’s
character on the jury when introduced by the prosecution, can
preempt the prosecution by first introducing such a character trait.
It is a trial tactic that we cannot consider unreasonable as a matter
of law.”).
Trial counsel seemed to acknowledge this strategy in his closing
argument, noting that “[t]his case is not a popularity contest.
You’re not being called upon to like [appellant]. Whether you do
or whether you don’t, quite honestly, is totally irrelevant with this
case.” (Tr. 750.) Trial counsel also highlighted appellant’s honesty
in an attempt to make him more credible to the jury.
[Appellant] did not seek to hide from the truth. In
fact, he wanted the truth to be told during this trial.
If you listen to his testimony [and his girlfriend’s],
they were very straightforward with you. They
didn’t try to hide anything. They didn’t try to
minimize anything. They told you like it was.
It didn’t matter whether or not the fact[s] were
good; it didn’t matter whether or not the facts were
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bad; it didn’t matter whether the facts were ugly.
They told you. This young man got on the stand and
said, “Yes, I sold drugs. Yes, I have convictions.
Yes I possessed of a firearm and I shouldn’t have
had possession of a firearm.[”] He didn’t try to hide
from that.
(Tr. 762–63.)
We conclude that trial counsel’s decision not to object and, in fact,
to raise appellant’s prior acts during direct examination is
consistent with a legitimate trial strategy and, therefore, is not
ineffective assistance of counsel. To the extent that trial counsel’s
cross-examination of Gaston addressed appellant’s extensive
history of drug sales, the scope of cross-examination clearly falls
within trial strategy, and debatable trial tactics do not establish
ineffective assistance of counsel. State v. Campbell, 90 Ohio St.3d
320, 339 (2000); State v. Otte, 74 Ohio St.3d 555, 565 (1996).
Trial counsel’s questioning of Gaston about her history of buying
drugs from appellant was an attempt to impeach her and was
consistent with the strategy of freely admitting appellant’s drug
dealing history in an attempt to bolster his credibility. We will not
second-guess that strategic decision. State v. Carter, 72 Ohio St.3d
545, 558 (1995) (“Judicial scrutiny of counsel’s performance is to
be highly deferential, and reviewing courts must refrain from
second-guessing the strategic decisions of trial counsel”).
In light of trial counsel’s legitimate trial strategy, we conclude that
appellant has not demonstrated ineffective assistance of counsel.
Accordingly, we overrule appellant’s first assignment of error.
FN1: Generally, when an accused testifies at trial, evidence of the
accused’s prior convictions is admissible to impeach under Evid.R.
609(A)(2) and (3). State v. Bryan, 101 Ohio St.3d 272, 2004Ohio-971, ¶ 132.
State v. Hobbs, No. 14AP-225, 2015 WL 3822239, at *3–6 (Ohio Ct. App. 2015).
A. Strickland and AEDPA
“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

11

Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principals
governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556
(1984). Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate
that his counsel’s performance was deficient and that he suffered prejudice as a result. 466 U.S.
at 687; Hale v. Davis, 512 F. App’x 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient
performance by counsel by demonstrating ‘that counsel’s representation fell below and objective
standard of reasonableness.” Poole v. MacLaren, No. 12–1705, 2013 WL 6284355, at *5 (6th
Cir. Dec. 5, 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation
marks omitted) and citing Strickland, 466 U.S. at 687). To make such a showing, a petitioner
“must overcome the ‘strong [ ] presum[ption]’ that his counsel ‘rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. (quoting
Strickland, 466 U.S. at 687). “To avoid the warping effects of hindsight, [courts must] ‘indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting
Strickland, 466 U.S. at 689).
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 v. Richter, 562 U.S. 86, 105 (2011). 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
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).

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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.
B. Application
At its essence, Petitioner’s argument is twofold. First, he argues that his counsel’s
performance fell short by failing to limit and then affirmatively eliciting testimony regarding
Petitioner’s drug and gun history. Second, Petitioner asserts that counsel should have requested
a cautionary instruction regarding his uncharged criminal history.
1. Testimony Regarding Drugs and Guns
The state appellate court concluded that defense counsel engaged in a legitimate strategy
to present a truthful client.
application of Strickland.

Petitioner argues that such a conclusion was an unreasonable
The Court disagrees for two primary reasons.

First, White v.

McAninch, 235 F.3d 988 (6th Cir. 2000), the case on which Petitioner relies heavily, is
distinguishable from this case. Second, a review of the record supports the state appellate court’s
conclusion that counsel intended to present a truthful client, which is a legitimate trial strategy
under Strickland.
a. White v. McAninch is not a good fit here.
Petitioner relies heavily on White v. McAninch, 235 F.3d 988 (6th Cir. 2000), to argue
that counsel’s unpreparedness caused his constitutionally deficient performance. In White, the
Sixth Circuit granted the petition for a writ of habeas corpus based, in part, on defense counsel’s
failure to object or request a limiting instruction on admission of evidence regarding an
uncharged act of sexual intercourse in a prosecution for having oral sex with a child under the

13

age of thirteen. Petitioner argues that this case is like White in that defense counsel most likely
developed the trial strategy attributed to him by the state appellate court during trial and as a
result of his failure to prepare adequately. See Traverse (ECF No. 12, PageID# 1137–38.)
As discussed, AEDPA’s deferential standard of review constrains this Court. In White,
however, because the petitioner had “filed his habeas petition prior to April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) . . . pre-AEDPA
law applie[d.]” Accordingly, the Court’s question in White was different than what the Court
must answer here, and the Court is mindful not to compare apples to oranges.
Moreover, the Sixth Circuit in White indicated that it based its decision on a record
reflecting “woefully inadequate” trial preparation by defense counsel. Id. at 996. In coming to
that conclusion, the Court noted, inter alia, that: counsel met with his client only two times prior
to trial—once for a few minutes immediately following the arraignment and again on the
morning of trial; counsel failed to seek or obtain formal discovery or a bill or particulars before
trial; counsel failed to review two highly relevant videotaped statements prior to trial; counsel
failed to seek a pelvic examination of the victim; and counsel never met with the assistant
prosecutor responsible for trying the case. Id. at 990–91.
Once the White trial began, counsel’s lack of preparation became clear. The indictment
charged, “engaging in sexual conduct with [the victim] . . .[who] was less than thirteen years of
age” between 1983 and 1987. Id. at 992. The victim had turned thirteen on August 15, 1987.
Consequently, any incidents of sexual conduct which occurred after August 15, 1987, were
beyond the scope of the indictment. In addition, the State had restricted its case against White to
only acts of oral sex—any sexual incidents were beyond the scope of the State’s case against
White. Id. But the prosecutor went beyond those parameters when examining the victim, asking

14

her whether she had ever engaged in sexual conduct with the defendant beyond what was alleged
in the indictment. Id.
Counsel did not object, and the victim testified that she and the defendant had sexual
intercourse shortly before he was indicted in 1988—after her thirteenth birthday. Id. Then, on
cross examination, defense counsel asked repeated questions about this uncharged conduct.
During the federal habeas proceedings, defense counsel testified and claimed that his strategy
had been to discredit the victim. Id. at 992–93. The Court disagreed, concluding that any such
“strategy” resulted from counsel’s gross lack of preparation. “[Counsel’s] woefully inadequate
trial preparation renders it highly implausible that he developed his theory that the victim was
lying about the uncharged act, and thus, the numerous episodes of oral sex as well, prior to trial.”
Id. at 969.
The record here reads nothing like the record in White. In opening statement, defense
counsel presented the defense that Petitioner had acted in self-defense. From the start, counsel
set the stage for the jury: “Brandon Hobbs [] is confronted with a very precarious situation. He
has his girlfriend who had just been assaulted. He sees Jaron pull out this firearm and he feels
that he has no other option, no other alternative but to draw his as well.” Trial Transcript,
Volume I (ECF No. 9-1, PageID# 270.) “[T]his was simply a matter of who got off the first
shot.” (PageID# 271.) Throughout opening statement, counsel exhibited an understanding of the
facts. For example, defense counsel attempted to explain the reason that four gun shots had
entered through the victim’s back. “The coroner. . . will not be able to tell you the position that
the body was in when those shots were fired.” (Id.) “In fact, he will tell you that the manner in
which the projectiles enter the body are very consistent with someone turning to their side, in an

15

attempt perhaps maybe to avoid the shot or to get a better position to fire the shot on their own.”
(PageID# 271–72.)
Defense counsel also offered an explanation for why Petitioner had removed Kirkling’s
gun and then surrendered the firearms to police—Petitioner thought that “Brandon Mackey, who
came out of the residence firing a gun at him as he was leaving,” would most certainly have
removed Kirkling’s gun and would not have turned it over to police. (PageID# 272–73.) As to
the prosecution’s star witnesses, Brandon Mackey and Melody Gaston, defense counsel told the
jury that neither of them had been honest in their initial statements to police. (PageID# 273.)
Further, defense counsel had retained an expert to conduct an independent analysis of the
firearms, indicating: “[T]he Ohio BCI did not make a determination or could not conclude from
the evaluation of the [] firearm as to whether or not that firearm was . . . ever in the possession of
Jaron Kirkland.” (PageID# 274.)
But. . . both firearms were [] submitted at the Defendant’s request
to our expert, Dr. Julie Heinig, with the DNA Diagnostic Center
located in Fairfield, Ohio.
They did an analysis. . . . [T]hey tested another area of the firearm
in which they found the genetic material that was identified
through DNA as belonging to Jaron Kirkland.
(PageID# 274–75.) Defense counsel told the jury that such physical evidence would support the
testimony of Petitioner and his girlfriend, Shelby Abrams, indicating that Kirkland had pulled a
gun on Petitioner. (Id.)
Defense counsel roughly followed this roadmap throughout the course of the trial.
Accordingly, the Court rejects Petitioner’s argument that counsel was ill-prepared or was making
it up as he went along. Cf. White v. McAninch, 235 F.3d at 996.

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b. Presenting a candid client is a legitimate trial strategy.
In addition, much of Petitioner’s argument focuses on how much the jury learned about
his history with drugs and guns. The admission of this evidence, however, was more nuanced
than Petitioner presents. Petitioner argues that his counsel should have kept such history from
the jury.

Counsel did, however, attempt to limit the jury’s exposure to this information.

Specifically, it appears that counsel raised the issue with the trial court before Gaston, one of the
prosecution’s key witnesses, took the stand. The court’s “preliminary ruling” was that Gaston
would be permitted to testify regarding Petitioner’s possession of firearms, and also about his
involvement in drugs so long as she had seen a firearm or firearms in his possession “in
connection with the purchase or sale of drugs that she witnessed.” Trial Transcript, Volume II
(ECF No. 9, PageID# 472–73.) Specifically, the trial court indicated that, “if the sale of the
drugs took place at the same time as this witness saw the gun, the State can go into both.”
(PageID# 473.) The court also noted that “gratuitous[]” information about drug sales was
inadmissible. (Id.). Thus, defense counsel attempted to keep this testimony out.
When Gaston testified, however, the court seemed to stray from its preliminary ruling.
Counsel unsuccessfully objected:
Q.
Why would you go to [Petitioner’s] house?
A.
We would to there to – just go over there or we would go over
there to get some drugs.
Mr. Benton:

Objection.

By Ms. Chappelear:
Q.
Okay. So you -The Court: Overruled.
By Ms. Chappelear:
Q.
Have you bought drugs from Brandon Hobbs?
A.
Yes.
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Q.
Did you see guns present when you would buy drugs from
[Petitioner]?
A.
Yes.
Mr. Benton: Same objection.
The Court: Note a continuing objection.
Trial Transcript, Volume II (ECF No. 9, PageID# 623–74.) (emphasis added).
At this point, the cat was out of the bag. Defense counsel had to choose a strategy
consistent with the Court’s ruling, and he did. On cross examination, defense counsel attempted
to discredit Gaston. He elicited testimony regarding Gaston’s and Mackey’s drug use and
firearm possession—forcing Gaston to acknowledge that she and Mackey bought marijuana,
pills, and cocaine from the Petitioner. Transcript (ECF No. 9-2, PageID# 630.) Gaston also
acted as a “middle person” purchasing drugs for others that they knew. (PageID# 635.) Mackey
smoked weed. (PageID# 638.) Mackey ran into the house immediately after the incident,
obtained his gun, and fired it. (PageID# 675–78.) Counsel thereby established that all of the
testifying witnesses to the event in question had been involved in drugs and in drug dealing, and
both Petitioner and Mackey (and purportedly Kirkling) had also possessed firearms. Arguably,
therefore, the jury had no reason to believe the testimony of Mackey and Gaston over that of the
Petitioner and his girlfriend, Abrams, based merely on Petitioner’s involvement with firearms
and drugs.
The state appellate court concluded that “counsel’s questioning of Gaston about her
history of buying drugs from appellant was an attempt to impeach her and was consistent with
the strategy of freely admitting appellant’s drug dealing history in an attempt to bolster his
credibility.” Hobbs, 2015 WL 3822239, at *14. That is not an unreasonable application of
Strickland.

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Petitioner also challenges counsel’s decision to elicit testimony from him regarding his
criminal history. However, defense counsel had legitimate reasons for asking these questions.
For example, Petitioner needed to explain his possession and use of a stolen firearm because law
enforcement officers had testified that both firearms had been stolen out of two separate
burglaries which occurred on the same day in November 2011 from two separate residences.
Transcript Vol. II (ECF No. 9-2, PageID# 507.) Also, Petitioner intended to testify on his own
behalf in order to convince the jury that he had acted in self-defense.

Defense counsel

accordingly knew that the jury most likely would learn that Petitioner had a prior conviction.
Rule 609(A)(2) of the Ohio Rules of Evidence provides that “evidence that the accused has been
convicted of a crime is admissible if the crime was punishable by death or imprisonment in
excess of one year pursuant to the law under which the accused was convicted and if the court
determines that the probative value of the evidence outweighs the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” Although Petitioner complains that trial
counsel did not require the trial court to conduct a weighing inquiry of the prejudicial value of
admission of Petitioner’s prior conviction on improperly handling of a firearm with its probative
value under Ohio Rule of Evidence 609(A)(2), as noted by the state appellate court, generally a
prosecutor can cross-examine a criminal defendant who testifies at trial on prior convictions,
including “‘the name of the crime, the time and place of conviction, and sometimes the
punishment.’”

State v. Bryan, 101 Ohio St.3d 272, 291 (Ohio 2004) (citation omitted).

Petitioner does not indicate, and it is not apparent from the record, the basis on which evidence
of Petitioner’s prior adult conviction would have been inadmissible under Ohio law.
Petitioner additionally argues that his prior felonious assault delinquency adjudication
would have been precluded under Ohio Rule of Evidence 609(D). Rule 609(D) states that

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“[e]vidence of juvenile adjudications is not admissible except as provided by statute enacted by
the General Assembly.” The relevant statute, O.R.C. § 2151.357(H), provides:
Evidence of a judgment rendered and the disposition of a child under the
judgment is not admissible to impeach the credibility of the child in any action or
proceeding. Otherwise, the disposition of a child under the judgment rendered or
any evidence given in court is admissible as evidence for or against the child in
any action or proceeding in any court in accordance with the Rules of Evidence[.]
Thus, evidence of a defendant’s prior juvenile adjudication is not absolutely prohibited under
Ohio law. “[I]n order to have such evidence admitted, a defendant must make a ‘plausible
showing’ that he intends to use the evidence for a proper purpose, which does not include an
attempt merely to impeach the witness’ credibility.” State v. Murray, No. CA2008-10-125, 2009
WL 1743723, at *1 (Ohio Ct. App. 2009) (citing State v. Pirman, 94 Ohio App.3d 203, 210
(Ohio Ct. App. 1994) (quoting State v. Lukens (1990), 66 Ohio App.3d 794, 803 (1990)). See
State v. Goodwin, No. 99CA220, 2001 WL 1740065, at *5 (Ohio Ct. App. 2001) (holding that
testifying defendant “opened the door” to admission of his juvenile adjudication used to
demonstrate that “he had more knowledge than he claimed about the law, his rights and
firearms”).
In reviewing the case law interpreting the rule and statute
excluding juvenile adjudications for impeachment purposes, it
appears that there is a distinction between general impeachment
and specific impeachment. See State v. Hilty (Oct. 19, 1990),
Trumbull App. No. 89T4204, unreported, 3. Where the submission
of the juvenile adjudication is done merely to disclose that the
adjudication exists in order to denigrate the former offender’s
general credibility, the juvenile adjudication is inadmissible.
However, where submission of the juvenile adjudication is done
for the purposes of specifically impeaching the credibility of the
former offender, the adjudication appears to be admissible. Id. at 4
(distinguishing between a general attack on credibility as
contemplated in R.C. 2151.358(H) and specific use of a prior
conviction to explicitly contradict one’s testimony). For instance, a
prior juvenile adjudication may be admitted to specifically
impeach a witness’s credibility by establishing bias. Moreover,
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where the witness testifies about an aspect of his life in a favorable
manner, the opponent may use juvenile adjudications to
specifically contradict that testimony.
Id. at *4; see also State v. Krueger, 176 Ohio App.3d 95, 105 (Ohio Ct. App. 2008) (holding that
juvenile adjudication based on misuse of grandmother’s credit card admissible in subsequent
prosecution for stealing money from the grandmother “both as another act or wrong to show []
intent to commit the charged offenses. . . and to contradict appellant’s direct testimony.”). In
short, defense counsel may have been able to keep out the juvenile adjudication but maybe not.
As to all of these issues, the state court concluded that “[c]ounsel’s apparent trial strategy
was to admit certain acts to lessen their significance to the jury and to bolster appellant’s
credibility so that the jury would believe his testimony that Kirkling threatened him with a gun
and that appellant fired in self-defense.” Hobbs, 2015 WL 3822239, at *12–13. At base, the
state appellate court concluded that counsel engaged in a legitimate trial strategy to present a
candid client.

Considering the record as a whole, that decision was not an unreasonable

application of Strickland and its progeny.
2. Jury Instructions
Petitioner’s argument regarding jury instructions warrants separate attention. Although
neither party addressed the issue, Petitioner may have waived this claim. “As a necessary
component of the exhaustion of state remedies doctrine, a petitioner’s claim must be ‘fairly
presented’ to the state courts before seeking relief in the federal courts.” Whiting v. Burt, 395
F.3d 602, 612 (6th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27 (2004)); Picard v. Connor,
404 U.S. 270, 275 (1971). In order to satisfy the exhaustion requirement in habeas corpus, a
petitioner must fairly present the substance of his constitutional claim to the state courts.
Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard, 404 U.S. at 275.

21

Although the fair

presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S.
346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is rooted in principles
of comity and federalism designed to allow state courts the opportunity to correct the State’s
alleged violation of a federal constitutional right that threatens to invalidate a state criminal
judgment.
A petitioner fairly presents the “substance of his federal habeas corpus claim” when the
state courts are afforded sufficient notice and a fair opportunity to apply controlling legal
principles to the facts bearing upon the constitutional claim. Harless, 459 U.S. at 6. On the
other hand, a petitioner does not fairly present a claim if he presents an issue to the state courts
under one legal theory and set of facts, and then presents the issue to the federal courts under a
different legal theory or a different set of facts. Rather, a petitioner must present to the federal
court essentially the same facts and legal theories that were considered and rejected by the state
courts. See, e.g., Lott v. Coyle, 261 F.3d 594, 607 (6th Cir. 2001) (finding that relatedness of
claim of involuntary jury waiver to claim of failure of trial court to follow statutory requirements
for effectuating valid jury waiver was not enough to preserve the former for habeas review).
The requirement of exhaustion must be waived expressly, and this Court may sua sponte
raise the issue. Tolliver v. Sheets, 530 F.Supp.2d 957, 962 (S.D. Ohio 2008) (citing Benoit v.
Bock, 237 F. Supp. 2d 804, 807 (E.D. Mich. 2003) (citing 28 U.S.C. § 2254(b)(3); Rockwell v.
Yukins, 217 F.3d 421, 423–24 (6th Cir. 2000); Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987)). Likewise, a federal court may in its discretion sua sponte raise the issue of procedural
default, particularly by providing the petitioner with an opportunity to respond. Id. (citations
omitted); see also Wade v. Sheets, No. 2:09-cv-632, 2012 WL 870221, at *15 (citing Howard v.
Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), r'hng and r'hng en banc denied July 6, 2005

22

(citing Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002)); Elzy v. United States, 205 F.3d
882, 886 (6th Cir. 2000)). However, “the Sixth Circuit strongly discourages the sua sponte
invocation of procedural affirmative defenses that were not raised by the respondent.” Benoit,
237 F. Supp. 2d at 807 (citing Scott v. Collins, 286 F.3d 923, 928–29 (6th Cir. 2002) (discussing
the waiver of the affirmative defense of procedural default based on the State’s failure to raise
the issue)).
In this case, Petitioner’s state appellate brief argued that his counsel’s deficient
performance called into question the jury’s verdict on aggravated murder. See Principal Brief of
Appellant Brandon L. Hobbs (ECF No. 6-1, PageID# 120-121.) In the context of that argument,
Petitioner briefly mentioned counsel’s failure to request a cautionary instruction concerning the
other acts testimony. See id. Petitioner did not raise counsel’s failure to request such an
instruction as an independent basis for review or a separate assignment of error. It is thus
questionable as to whether Petitioner exhausted this claim. See, e.g., Wagner v. Smith, 581 F.3d
410, 415-16 (6th Cir. 2009) (holding that petitioner did not fairly present claim by use of vague
headings in the state appellate brief that failed to clarify factual basis of claim); Lenoir v.
Warden, S. Ohio Corr. Facility, 886 F. Supp. 2d 718, 728 (S.D. Ohio 2012) (holding that
petitioner did not fairly present claim of prosecutorial misconduct based upon different facts than
his claim as he presented it to the state appellate court). Moreover, Petitioner has failed to
establish cause for such failure. And, now, because he is out of time to exhaust, this claim
arguably is procedurally defaulted.
However, as noted, Respondent has not argued procedural default.

Under these

circumstances, the Court finds the fairest and most efficient way to resolve this claim is on the
merits, which AEDPA permits. 28 U.S.C. § 2254(b)(2) (“An application for writ of habeas

23

corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the court of the State.”); Jackson v. Houk, No. 3:07-cv-400, 2008 U.S.
Dist. LEXIS 36061, at *76 (N.D. Ohio May 1, 2008) (“Although the Court finds all or some
portion of nine of Petitioner’s claims for relief are procedurally defaulted and should be
dismissed, the Court has determined to reach the merits of these defaulted claims in an effort to
promote judicial efficiency and preserve judicial resources.”).
There is, however, one additional wrinkle. The state appellate court never expressly
addressed this claim (most likely because it was not fairly presented). Indeed, the state appellate
court made no mention of the jury instructions in its decision. It thus seems that AEDPA’s
deferential standard of review does not apply because “AEDPA’s express terms limit its
application to claims that have been adjudicated on the merits by a state court.” Barton v.
Warden, S. Ohio Corr. Facility, 786 F.3d 450, 459 (6th Cir. 2015) (citing Williams v. Anderson,
460 F.3d 789, 796 (6th Cir. 2006)). Where a federal claim has been presented to a state court
and the state court denies relief, “it may be presumed that the state court adjudicated the claim on
its merits in the absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted). Likewise, where a state court
makes clear that it is deciding a claim both on the merits and on procedural grounds, the Court
applies AEDPA deference to that adjudication. Id. at 461 (citing Brooks v. Bagley, 513 F.3d
618, 624 (6th Cir. 2008)). Here, because Petitioner did not fairly present his claim of ineffective
assistance of counsel based on his attorney’s failure to request a jury instruction, the Court
cannot conclude that the state appellate court’s decision, which does not refer to the issue,
adjudicated such a claim on the merits. This wrinkle, however, is without consequence because

24

under any standard of review—Strickland or Strickland plus AEDPA, Petitioner’s claim fails on
the merits.
Here, Petitioner argues that counsel should have requested the following instruction:
1. CROSS-EXAMINATION. Each witness is subject to direct examination by
the party who calls him and to cross-examination by the opposite party.
During cross-examination, counsel may inquire into matters that do not
directly relate to the issues. Such questions and answers are permitted for the
purpose of helping you to determine his credibility and the weight to be given
to his testimony and for no other purpose.
2. CREDIBILITY: OTHER ACTS. The court points out that (on direct
examination the witness denied that ...) (... on cross-examination the witness
volunteered that ...). This statement was not directly related to any issue in this
case and the same is true of the answer to the present question; however, the
answer is permitted solely for the purpose of helping you to test the credibility
or weight to be given his testimony as a witness and for no other purpose.
(ECF No. 12, PageID #1138, n.12.)
The Court rejects this argument for several reasons. First, the Court notes that the
Court did instruct the jury regarding Petitioner’s criminal convictions as follows:
Testimony was introduced tending to show that the defendant had been
adjudicated as a delinquent of felonious assault and convicted of improper
handling of a firearm in a motor vehicle. You may only consider this testimony to
judge the defendant's credibility and the weight to be given to his testimony.
Trial Transcript, Volume IV (ECF No. 9-3, PageID #1161). Thus, the instruction Petitioner
urges would have been only for uncharged criminal conduct, which of course was only a portion
of the testimony the jury heard regarding guns and drugs.
Second, during closing argument, both sides told the jury not to convict Petitioner
because of his history with guns and drugs. For example, defense counsel noted, “[w]hether or
not [Petitioner] was engaged in any other criminal conduct is immaterial, unless that criminal
conduct contributed to his creating the affray and making his the aggressor, and it did not.” Trial
Transcript, Volume IV (ECF No. 9-3, PageID #1024.) The prosecution agreed, telling the jury:

25

Do not convict this man of murder because he’s a dope dealer. Okay? That’s not
a reason to convict him of murder. Do not convict this man because he was in
possession of stolen guns. Do not convict this man because he was in possession
of the gun when he wasn't supposed to, okay?
Trial Transcript, Volume IV (ECF No. 9-3, PageID #1033.)
Third, “experienced trial attorneys know that [cautionary] instructions can operate like
directions to a person to stand in the corner and not think about polar bears: not only does it raise
the importance of the polar bear idea in the person’s mind, but there is no way to find out if they
thought about bears or not.” Vore v. Warden, No. 1:13-cv-800, 2014 WL 7227972, at *4 (S.D.
Ohio Dec. 17, 2014). Counsel easily could have made the strategic decision not to draw
additional attention to the uncharged conduct.
For all of these reasons, the Court concludes that counsel’s failure to request the
cautionary instruction does not constitute deficient performance under Strickland. Indeed, this
Court 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). Further, even if counsel’s performance was deficient,
failure to request the cautionary instruction was not prejudicial. This is especially true because
the prosecution did not rely on the uncharged conduct to push for a conviction. To the contrary,
the prosecution told the jury not to convict on that basis. Trial Transcript, Volume IV (ECF No.
9-3, PageID #1033.) Under such circumstances and considering the record as a whole, there is
not a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
IV.

RECOMMENDED DISPOSITION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be

DISMISSED. Respondent’s Motion to file additional citation (ECF No. 14) is GRANTED.
26

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.
Date: July 21, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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