Williams v. Warden, Madison Correctional Institution

Filing 14

Order and REPORT AND RECOMMENDATION: Magistrate Judge DENIES 7 MOTION for Assistance to Attain Transcript of Proceedings and 9 MOTION for Assistance Obtaining Transcript of Proceedings; RECOMMENDS that 11 Respondent's Motio n to Dismiss be GRANTED and that 4 Petition for Writ of Habeas Corpus be DISMISSED. (Objections to R&R due by 7/11/2017). Signed by Magistrate Judge Terence P. Kemp on 6/27/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES WILLIAMS,
CASE NO. 2:16-CV-1050
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP

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

ORDER and
REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

This matter is before the Court on the Petition,

Respondent’s Motion to Dismiss (Doc. 11), Petitioner’s Reply (Doc. 12), and the exhibits of
the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that
Respondent’s Motion to Dismiss (Doc. 11) be GRANTED, and that this action be
DISMISSED.
Petitioner’s Motion(s) for Assistance to Attain Transcript of Proceedings (Docs. 7, 9)
are DENIED.
I. Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural
history of the case as follows:
Bethany “Buffy” Bunting is an admitted drug dealer and
Nick Brown was one of her frequent customers. At the time
of these events, Brown lived with his girlfriend Samantha

Cook at 126 Pumphrey Terrace in Delaware, Ohio, and both
were heavy users of heroin.
Brown bought heroin from, and frequently associated with,
appellant James J. Williams, who is married to Amanda
Williams (“Williams”). Other associates of the group are
appellant's co-defendant Jake D. Lloyd and Lloyd's
girlfriend Destaney Deweese.
On February 19, 2014, Brown, Cook, appellant, Williams,
Lloyd, and Deweese were present at the Pumphrey Terrace
address when Brown mentioned he knew Bunting.
Appellant became “excited” because Bunting once stole from
him and he now sought revenge. He asked Brown to help
him “set up” Bunting by calling and asking her to come to
the house. The group planned that appellant and Lloyd
would wait outside and jump Bunting upon her arrival.
After the robbery, Brown would come to the door as if he
had no knowledge of what happened so Bunting would not
realize he set her up. Brown agreed to the plan because he
owed appellant money and wanted free drugs.
Brown duly called Bunting and asked her to bring him 20
oxycodone pills.
Williams and Deweese left the house with two young
children in tow. Appellant waited in his green BMW in
Brown's driveway and Lloyd hid around the corner of the
house.
Bunting arrived in her gray Dodge Durango and noticed
three cars in the driveway: a red Ford Focus she recognized
as Brown's; a blue Honda Civic she recognized as Cook's;
and a green BMW she was not familiar with. As she
approached the house, she heard a car door close behind her
and someone ran up and struck her in the head. Another
man appeared and said “give me all your money .” Bunting
said her attackers were one black male and one white male,
both with their faces covered. The men ripped her shirt and
clothing as the black male repeatedly hit her in the back of
the head with a gun. Both men struck her and demanded her
money, pills, and keys. The black male said “How does it

2

feel when someone takes something from you?” and Bunting
said she didn't know what they were talking about.
As the beating took place, Brown and Cook hid in the
garage. They heard appellant and Lloyd tell Bunting to shut
up and heard Bunting ask who she ripped off. Eventually
the men stopped beating her and grabbed approximately $90
and 19 pills. Bunting still had her car keys in her hand. She
saw the men take off in the dark-colored BMW and she
followed them a short distance in her Durango. When
Brown and Cook heard the two vehicles leave, they ran to
Brown's red Ford Focus and drove off. Bunting turned
around to return to Brown's house and passed Brown and
Cook.
Bunting next went to Kintz' Bar and told her mother about
the assault. Bunting and her mother, along with several men
armed with bats and pipes, returned to Brown's house.
Bunting threw a metal sewer grate through the windshield
of Cook's Honda Civic and threw a television through the
glass doors of the house. The group did not make contact
with Brown, Cook, or the assailants.
Meanwhile, Brown and Cook went to appellant's residence
on Home Road in Powell, Ohio. Brown testified appellant
was at the kitchen sink washing his hands and a gun
covered in blood. Cook also testified to seeing the gun in the
sink as well. The group divided the cash and pills taken
from Bunting.
On March 9, 2014, appellant called Brown and Cook and
ordered them to come to his house because he was afraid he
was about to be raided by the police. Earlier, appellant had
threatened a neighbor with a gun. The neighbor lived across
the street from appellant, and when Brown and Cook
arrived, police were present at the neighbor's house.
Appellant gave Brown a bookbag containing ammunition
and placed three firearms in Cook's purse.
Appellant and Williams left in one car followed by Brown
and Cook in another vehicle. Both vehicles were
immediately stopped by police and the firearms were found.
All were arrested.
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Brown and Cook agreed to testify against appellant and codefendant Lloyd in exchange for plea deals resulting in
treatment in lieu of conviction.
A search warrant was executed at appellant's residence after
the arrest and law enforcement found a rifle and 1.9 grams
of heroin. Appellant is prohibited from owning or
possessing firearms.
Appellant and Lloyd were charged by indictment with one
count of aggravated robbery with a firearm specification
[Count I] and one count of felonious assault [Count II];
appellant was also charged with one count of aggravated
menacing [Count III]; one count of tampering with evidence
[Count IV]; one count of having weapons while under
disability [Count V]; and one count of possession of heroin
[Count VI]. Appellant entered pleas of not guilty and the
case proceeded to trial by jury. Count VI, possession of
heroin, was dismissed pursuant to Crim.R. 29(A). Appellant
was otherwise found guilty as charged on July 17, 2014.
On July 23, 2014, appellant filed a Motion for New Trial
asserting a juror failed to follow the instructions of the trial
court. A juror purportedly told one of the prosecutors after
trial “I don't think you did a very good job. I don't think you
satisfied your burden.” Appellee responded with a motion
in opposition and an oral hearing took place on August 20,
2014. By entry dated August 22, 2014, the trial court
overruled the motion for new trial. Appellant then moved
for the trial judge to recuse himself because he was a witness
to the alleged juror misconduct.
On August 25, 2014, the original trial judge voluntarily
recused himself and vacated the judgment entry denying the
motion for new trial. A visiting judge was appointed and the
motion for new trial was again overruled by entry dated
September 15, 2014. Appellant was sentenced to an
aggregate prison term of ten years.
Appellant now appeals from the trial court's judgment
entries of conviction, sentence, and denial of new trial.

4

Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT FAILED TO GRANT APPELLANT'S MOTION FOR A
NEW TRIAL BASED UPON THE CLEAR EVIDENCE OF A
JUROR FAILING TO FOLLOW JURY INSTRUCTIONS
GIVEN BY THE COURT.”
“II. APPELLANT'S DUE PROCESS RIGHTS WERE
VIOLATED WHEN THE COURT FAILED TO INFORM
HIM OF THE DETAILS OF POST–RELEASE CONTROL
AND THE CONSEQUENCES OF VIOLATING THE TERMS
OF POST–RELEASE CONTROL AT THE TIME OF
SENTENCING.”
State v. Williams, 2015 WL 4757966, at *1-3 (Ohio App. 5th Dist. Aug. 10, 2015). On
August 10, 2015, the appellate court overruled the first assignment of error and
sustained the second assignment of error, affirming the judgment of the trial court, in
part, overruling it, in part, and remanding the case to the trial court for re-sentencing for
the limited purpose of proper imposition of post-release control. Id. On December 16,
2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Williams, 144 Ohio St.3d 1429 (Ohio 2015).
In describing the proceedings after remand, the state court of appeals said:
The trial court held a resentencing hearing on December 21,
2015 for the purposes of imposing the correct term of postrelease control. At the resentencing hearing, the trial court
informed Williams that on Counts IV and V, he was subject
to a period of post-release control “up to three years.” (Tr.
31).
The trial court filed its Judgment Entry of Re–Sentencing on
December 22, 2015. In the judgment entry, the trial court

5

stated, “[p]ost-release Control is an optional period of three
years on Counts Four and Five.”
Williams again appeals the trial court's failure to properly
impose post-release control on Counts IV and V.
ASSIGNMENT OF ERROR
Williams raises one Assignment of Error:
“THE TRIAL COURT INCORRECTLY STATED THE
TERMS OF DISCRETIONARY POST–RELEASE CONTROL
ON WILLIAMS' THIRD–DEGREE FELONY
CONVICTIONS, IN WILLIAM'S [SIC] RESENTENCING
ENTRY.”
State v. Williams, 2016 WL 6392880, at *1-2 (Ohio App. 5th Dist. Oct. 26, 2016). On
October 26, 2016, the appellate court sustained Petitioner’s assignment of error as to the
trial court’s incorrect notification of post-release control for Counts IV and V in the
December 22, 2015, re-sentencing judgment entry, vacated that portion of the resentencing judgment entry relating to post-release control on Counts IV and V, and
remanded the case to the trial court to correct the omission with a nunc pro tunc resentencing judgment entry. Id. at *3. Petitioner apparently did not file an appeal to the
Ohio Supreme Court.
In the meantime, however, on November 9, 2015, Petitioner filed an application
to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (Doc. 11-1, PageID# 186.)
On March 22, 2016, the appellate court denied the Rule 26(B) application. (PageID#
230.) On June 15, 2016, the Ohio Supreme Court declined to accept jurisdiction of the
appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). (PageID# 258.)

6

On November 7, 2016, Petitioner filed the instant pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied the effective
assistance of trial counsel because his attorney failed to file a motion to suppress
evidence based on an illegal traffic stop and improper arrest and failed to object to
certain evidence. It is the position of the Respondent that Petitioner has procedurally
defaulted these claims.
II. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the
state courts to protect the constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the
state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an
avenue open to him by which he may present his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6
(1982 (per curiam ) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
7

claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim
under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts
is that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S.
72, 87 (1977), “contentions of federal law which were not resolved on the merits in the
state proceeding due to respondent's failure to raise them there as required by state
procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court
must determine that there is a state procedural rule that is applicable to the petitioner's
claim and that the petitioner failed to comply with the rule.” Id. Second, the Court
must determine whether the state courts actually enforced the state procedural sanction.
Id. Third, it must be decided whether the state procedural forfeiture is an adequate and
8

independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined that a state procedural
rule was not complied with, and that the rule was an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause,
petitioner must show that “some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a
procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute
cause, an ineffective assistance of counsel claim generally must “ ‘be presented to the
state courts as an independent claim before it may be used to establish cause for a
procedural default.’ ” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478,
479 (1986)). That is because, before counsel's ineffectiveness will constitute cause, “that
ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore
must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411
F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to
“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance
claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The Supreme Court
explained the importance of this requirement:
9

We recognized the inseparability of the exhaustion rule and
the procedural-default doctrine in Coleman: “In the absence
of the independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their
own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again
considered the interplay between exhaustion and procedural
default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the
federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be
utterly defeated if the prisoner were able to obtain federal
habeas review simply by “ ‘letting the time run’ ” so that
state remedies were no longer available. Id., at 848, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be
no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but
in such a manner that the state court could not, consistent
with its own procedural rules, have entertained it. In such
circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional

10

violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
Petitioner asserts that he was denied the effective assistance of counsel because
his attorney failed to file a motion to suppress or object to the admission of certain
evidence.

Petitioner should have raised these claims, which appear to be readily

apparent from the face of the record, on direct appeal, where he was represented by
new counsel. He did not. Further, he may now no longer do so by operation of Ohio’s
doctrine of res judicata. See State v. Cole, 2 Ohio St.3d (1982); State v. Ishmail, 67 Ohio
St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (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.
Moreover, 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 v.
Thompson, 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 (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. at 423 (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.
11

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); Seymour v.
Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir.
2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 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 State v. Cole, 2
Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res
judicata serves the state's interest in finality and in ensuring that claims are adjudicated
at the 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. The Court concludes, therefore, that Petitioner has waived claims three,
four, and six through nine for federal habeas corpus review.
Petitioner may still secure review of his claims if he demonstrates cause for his
failure to follow the state procedural rules, as well as actual prejudice from the
constitutional violations that he alleges. “[P]etitioner has the burden of showing cause
and prejudice to overcome a procedural default.” Hinkle v. Randle, 271 F.3d 239, 245
(6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation
omitted)). A petitioner's pro se status, ignorance of the law, or ignorance of procedural
12

requirements are insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370
F.3d 498. 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). Petitioner has failed to do so here.
As cause for his procedural default, Petitioner asserts that he was denied the
effective assistance of appellate counsel.

As discussed, the denial of the effective

assistance of appellate counsel may constitute cause for a procedural default, so long as
such claim has been presented to the state courts and is not, itself, procedurally
defaulted. Edwards, 529 U.S. at 451–52. Petitioner procedurally defaulted his claim of
the denial of the effective assistance of counsel based on his attorney’s failure to object
to the admission of certain evidence because he did not raise any such issue in his
appeal to the Ohio Supreme Court. Instead, Petitioner argued therein only that he had
been denied the effective assistance of appellate counsel because appellate counsel did
not file a motion to suppress evidence obtained from an allegedly illegal traffic stop.
(Doc. 11-1, PageID# 242.) The denial of the effective assistance of appellate counsel
therefore cannot constitute cause for the remainder of Petitioner’s claims of ineffective
assistance of trial counsel. Edwards, 529 U.S. at 451-52. The Court will address the
merits of the latter claim, to determine whether Petitioner has established cause and
prejudice for his procedural default.
III. Ineffective Assistance of Counsel
“In all criminal prosecutions,” the Sixth Amendment affords “the accused...the
right... to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right
13

to ‘effective assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241,
245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the
legal 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 Fed.Appx. 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, 547 Fed.Appx. 749, 754 (6th Cir. 2013) (quoting
Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and
citing Strickland, 466 U.S. at 687). 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.” Poole, 547
Fed.Appx. at 754 (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 Strickland test applies to appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776
(1987)....Counsel's failure to raise an issue on appeal
amounts to ineffective assistance only if a reasonable
probability exists that inclusion of the issue would have
changed the result of the appeal. Id. citing Wilson.... The
attorney need not advance every argument, regardless of
merit, urged by the appellant. Jones v. Barnes, 463 U.S. 745,
751–752 (1983) ( “Experienced advocates since time beyond
14

memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central
issue if possible, or at most on a few key issues.” 463 U.S.
751–52).
Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D.
Ohio March 6, 2013). Factors to be considered in determining whether a defendant has
been denied the effective assistance of appellate counsel include:
(1) Were the omitted issues “significant and obvious”?
(2) Was there arguably contrary authority on the omitted issues?
(3) Were the omitted issues clearly stronger than those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court's rulings subject to deference on appeal?
(6) Did appellate counsel testify in a collateral proceeding as
to his appeal strategy and, if so, were the justifications
reasonable?
(7) What was appellate counsel's level of experience and
expertise?
(8) Did the petitioner and appellate counsel meet and go
over possible issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments
of error?
(11) Was the decision to omit an issue an unreasonable one
which only an incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citations omitted).

15

ord fails to reflect that Petitioner can establish the denial of the effective assistance under
the test set forth in Strickland. Petitioner claims that his attorney improperly failed to
file a motion to suppress firearms police obtained from the traffic stop of prosecution
witnesses Nicholas Brown and Samantha Cook. These individuals testified for the
prosecution pursuant to the terms of their negotiated plea agreements. They were
driving in a separate car from that of the Petitioner at the time that police stopped their
vehicle. Petitioner, however, contends that police acted outside of the scope of their
jurisdiction when they initiated the traffic stop. Nothing in the record supports his
allegation.

Further, it appears from the record that Petitioner would have lacked

standing to obtain the suppression of evidence seized by police from the co-defendants’
vehicle.
A defendant's standing is determined independently from
his co-defendant's standing with regard to the same items
and places that are searched. “[A] defendant has standing to
challenge the admission of evidence only if the defendant's
own constitutional rights have been violated. In cases
involving Fourth Amendment violations, we determine
standing by deciding whether a defendant can establish a
legitimate expectation of privacy in the area searched or the
items seized.” United States v. Davis, 430 F.3d 345, 359–60
(6th Cir. 2005) (citations and internal quotation marks
omitted) (noting that a co-defendant's standing has no effect
on other defendants' standing); United States v. Williams, 354
F.3d 497, 510–11 (6th Cir. 2003).
Thus, in Davis, one defendant lacked standing to challenge
the search even though his co-defendant had standing; the
reason for the difference was that the defendant who lacked
standing “ha[d] no reasonable expectation of privacy either
in Davis's vehicle or in the items seized from Davis's vehicle,
because he ‘had neither a property nor possessory interest’

16

in them.” Davis, 430 F.3d at 360 (quoting United States v. Pino,
855 F.2d 357, 360 (6th Cir. 1988)).
United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir. 2008). Moreover, the record
reflects substantial evidence of guilt.
Therefore, Petitioner has failed to establish that he was denied the effective assistance of
appellate counsel. He has likewise failed to establish cause for the procedural default of
his claim of the denial of the effective assistance of trial counsel.
Petitioner states that he is actually innocent of the charges against him. He has
attached a copy of the transcript of his re-sentencing hearing and exhibits in support of
this argument. (Doc. 12-1, PageID# 335-409.) Petitioner indicated at his re-sentencing
hearing that he had written to his appellate attorney requesting that certain issues be
included in his appeal; however, he received no reply, and his attorney did not include
these issues in his appellate brief.

Transcript (Doc. 12-1, PageID# 341-42.)

He

complained that his attorney failed to object to hearsay testimony by Detective Segaard
indicating that another police officer had identified Petitioner from a phone
conversation.

(PageID# 343-44.)

He claimed that the Powell Police Department

illegally stopped him and arrested him outside of their jurisdiction and that his attorney
had refused to obtain a copy of the video of his traffic stop to verify this allegation.
(PageID# 344.) He argued that the photo array did not indicate that Jack Gobal had
identified him as his assailant, and did not do so at trial (PageID# 347.) Moreover,
Bethany Bunting identified him as her assailant, but Petitioner’s hair did not match the
description of that given to police on the night of his arrest, and his attorney nonetheless
17

failed to file a motion to suppress or object. (PageID# 347-48.) Petitioner denied having
the four firearms that police allegedly seized from his residence during execution of a
search warrant. He complained that his attorney failed to file a motion to suppress
prejudicial testimony regarding items purportedly taken from his home. (PageID# 35051.) Petitioner stated that the State used an incorrect BCI report to connect him to a
firearm confiscated from Samantha Cook on which his DNA was not present. (PageID#
351-52.) Again, his attorney failed to object. Likewise, counsel failed to object to a false
reference to his prior conviction on drug trafficking. (PageID# 355-56.) He requested a
hearing on these issues or dismissal of the charges against him. (PageID# 357.)
Petitioner attached a copy of a November 25, 2014, letter he wrote to appellate
counsel requesting a copy of his record, and that certain issues be raised on direct
appeal. (PageID# 372-73.) He has also attached other documents relating to his claims,
including various police reports, such as a copy of the March 10, 2014, property
impoundment form of the City of Powell Police Department, in reference to property
seized from his home (PageID# 375-77), the trial court’s Judgment Entry of Sentence
(PageID# 378-79), an Evidence Submission Sheet from the Powell Police Department
(PageID# 380-81), a letter from the Ohio Attorney General to Detective Smith (which
document is somewhat undecipherable) (PageID# 380), a police report regarding the
DNA analysis on the firearms (PageID# 381-82), the witness statements of Nicholas
Brown and permission to search form (PageID# 383), the Delaware County Emergency
Communications “Incident Run Sheet,” (PageID# 384, 389), a copy of what appears to
be part of the prosecution’s witness subpoena list (PageID# 386-87), documents relating
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to the photo array and photo identification of Petitioner (PageID# 390-91), documents
relating to the withdrawal of his first appointed appellate counsel (PageID# 392-95),
and a copy of Petitioner’s Ohio Supreme Court appeal (PageID# 397-410).
The Supreme Court has recognized actual innocence as excusing procedural
default in presenting a claim to the state courts. Murray v. Carrier, 477 U.S. 478 (1986).
The controlling precedent on this point is now the Supreme Court's decision in
McQuiggin v. Perkins, 569 U.S. ––––, 133 S. Ct. 1924 (2013).
[A]ctual innocence, if proved, serves as a gateway through
which a petitioner may pass whether the impediment is a
procedural bar, as it was in Schlup and House, or, as in this
case, expiration of the statute of limitations. We caution,
however, that tenable actual-innocence gateway pleas are
rare: “[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.”
Schlup, 513 U. S., at 329, 115 S. Ct. 851, 130 L.Ed. 2d 808; see
House, 547 U.S., at 538, 126 S. Ct. 2064, 165 L.Ed. 2d. 1
(emphasizing that the Schlup standard is “demanding” and
seldom met). And in making an assessment of the kind
Schlup envisioned, “the timing of the [petition]” is a factor
bearing on the “reliability of th[e] evidence” purporting to
show actual innocence. Schlup, 513 U. S., at 332, 115 S. Ct.
851, 130 L.Ed. 2d. 808.
***
[A] federal habeas court, faced with an actual-innocence
gateway claim, should count unjustifiable delay on a habeas
petitioner's part, not as an absolute barrier to relief, but as a
factor in determining whether actual innocence has been
reliably shown.
McQuiggin v. Perkins, 133 S. Ct. at 1928.

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In Souter v. Jones, 395 F.3d 577 (6thCir. 2005), the Sixth Circuit held Congress
enacted the statute of limitations in 28 U.S.C. § 2244(d)(1) “consistent with the Schlup [v.
Delo] actual innocence exception.” The Souter court also held:
[I]f a habeas petitioner “presents evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue
the merits of his underlying claims.” Schlup v. Delo, 513 U.S.
298, 316 (1995).” Thus, the threshold inquiry is whether
“new facts raise[ ] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at
317. To establish actual innocence, “a petitioner must show
that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” Id.
at 327. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623, 140 L.Ed. 2d 828, 118 S. Ct.
1604 (1998). “To be credible, such a claim requires petitioner
to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup,
513 U.S. at 324. The Court counseled however, that the
actual innocence exception should “remain rare” and “only
be applied in the ‘extraordinary case.’ ” Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).
Petitioner has failed to meet this standard here. None of the documents or other
related issues he refers to in support of his claim of actual innocence constitute new
evidence establishing that it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt.

IV. Recommended Disposition
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Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss (Doc. 11) be GRANTED, and that this action be DISMISSED.
Petitioner’s Motion(s) for Assistance to Attain Transcript of Proceedings (Docs. 7, 9)
are DENIED.
V. 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).

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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/ Terence P. Kemp
United States Magistrate Judge

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