Canada v. Warden, Noble Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/21/2019. Signed by Magistrate Judge Michael R. Merz on 5/6/2019. (kpf)(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 AT COLUMBUS
MARCUS A. CANADA,
Petitioner,

:

- vs -

Case No. 2:17-cv-1014
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

TIMOTHY BUCHANAN, Warden,
Noble Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case, brought by Petitioner Marcus Canada pro se, to obtain relief
from his convictions in the Franklin County Court of Common Pleas and consequent sentence.
The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4) and
the Return of Writ (ECF No. 5). Although Chief Magistrate Judge Deavers set a reply date of
twenty-one days after the Return (ECF No. 2, PageID 67), Petitioner has not filed a reply and the
time to do so expired February 12, 2018.

Litigation History

A Franklin County, Ohio, grand jury indicted Canada on November 27, 2013, on two
counts of aggravated burglary and one count of felony domestic violence. A trial jury convicted
him on one aggravated burglary count and the domestic violence count, and he was sentenced to

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an aggregate term of five years imprisonment. The appellate court affirmed the judgment. State
v. Canada, 2015-Ohio-2167 (10th Dist. Jun. 4, 2015)(“Canada I”), appellate jurisdiction declined,
143 Ohio St. 3d 1467 (2015).
Canada filed an Application to Reopen his direct appeal under Ohio R. App. P. 26(B) which
the court denied. State v. Canada, No. 14AP-523 (10th Dist. Jan. 21, 2016)(unreported; copy at
State Court Record, ECF No. 4-1, PageID 480, et seq.), appellate jurisdiction declined, 145 Ohio
St. 3d 1425 (2016). On July 29, 2015, Canada filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21. The trial court denied the petition on the basis of Ohio’s criminal res
judicata doctrine, but the Court of Appeals reversed and remanded. State v. Canada, 2016-Ohio5948 (10th Dist. Sept. 22, 2016). On remand the trial court again dismissed the petition and Canada
failed to perfect an appeal.
In the meantime, Canada filed a habeas petition raising ten grounds for relief in this Court.
See Canada v. Warden, Case No. 2:16-cv-103. That petition was dismissed without prejudice
because his state court petition for post-conviction relief was still pending, rendering his habeas
claims unexhausted. Those proceedings are now concluded and Canada pleads the same ten
grounds for relief here as in his previous petition as follows:

Ground One: Petitioner/Canada is entitled to Habeas Corpus relief
on grounds that the state courts committed prejudicial err[or], in
violation of the Confrontation Clause, Sixth Amendment, U.S.
Constitution, by permitting the assistant prosecuting attorney, to use
out-of-court, C.D. recordings, which also deprived Petitioner[]
Canada of his right to a fair trial.
Ground Two: Appellant was substantially prejudiced against and
denied his right to a fair trial in violation of his 6th and 14th
Amendment Rights, on grounds that the Ohio courts state courts
allowed inadmissible other bad acts into evidence that were not
admissible under Evid. R. 403(A).

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Ground Three: Petitioner’s right to a fair trial under the United
States [Constitution] was violated when the State engaged in
prosecutorial misconduct when the prosecuting attorney denigrante
[sic] defense counsel and made improper comments during closing
arguments.
Ground Four: Petitioner was deprived of a fair trial under the Sixth
and Fourteenth Amendments to the United States Constitution, due
to ineffective assistance of trial counsel by trial counsel’s failure to
object to prosecutorial misconduct during closing arguments.
Ground Five: Petitioner’s constitutional right to a fair trial as
guaranteed by the 6th and 14th Amendments to the United States
Constitution was violated as a result of the trial court’s ruling(s)
based on cumulative erroneous evidentiary rulings and improper
comments made by the prosecutor during closing arguments
deprived Petitioner of a fair trial.
Ground Six: The state courts of Ohio committed constitutional
error, to the prejudice of petition[er], in violation of the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution, as a result of the fact that Petitioner’s conviction rests
on insufficient evidence and is against the manifest weight of the
evidence.
Ground Seven: Petitioner/Canada was deprived of his 6th and 14th
Amendment right to effective assistance of counsel on direct appeal,
and at trial, as a result of appellate counsel’s failure to raise claims
on appeal that: (A) trial counsel was “ineffective” by failing to
“investigate” the case, prior to a proposed plea bargain offer,
pertaining to the existance [sic] of certain 911 C.D. recording(s); and
(B) due to the fact that counsel at trial was ineffective during the
“plea proceedings,” which caused Petitioner to reject the proposed
plea offer, and causing Petitioner to suffer “actual prejudice,” as a
result of ineffective assistance of trial counsel that appellate counsel
should have raised on direct appeal, and thus, violated Canada’s 6th
and 14th Amendment right to effective assistance of counsel on
appeal and at trial.
Ground Eight: Appellate counsel on direct appeal was ineffective
as a result of appellate counsel’s failure to raise all of the similar
claims: (1) defense counsel was ineffective for failing to object to
the admissibility of the 911 C.D. recordings, on grounds that
prosecutor withheld such evidence from being timely provided, and
thus, violated the rule of discovery of evidence; (2) the prosecutor
committed prosecutorial misconduct by not providing the evidence
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in a timely manner; (3) the trial judge committed a gross abuse of
discretion by allowing the introduction of the C.D. recordings to be
allowed into the record as evidence, when she was put on notice that
defense counsel had just obtained the evidence on the day of trial;
(4) Petitioner was deprived of his right to effective assistance of
counsel arising out of prosecutorial misconduct, by not providing to
the defense with the 911 C.D. tape recordings until the day of trial;
and (5) Petitioner was denied his right to a fair trial, as well as to
the right to effective assistance of counsel, resulting from the
prosecution’s failure to timely provide the actual C.D. recordings
over the defense until the day of trial.
Ground Nine: Petitioner’s Sixth and Fourteenth right to “effective”
assistance of counsel at trial was violated, which deprived the
Petitioner of his constitutional right to a fair trial, as a result of
defense counsel’s failure to independently subpoena any witnesses
to come to court to testify; and for failing to “investigate” the case
prior to the date of trial.
Ground Ten: Petitioner’s 6th and 14th Amendment Right to the
effective assistance of counsel was violated based on grounds that:
(A) defense counsel failed to investigate the 911 C.D. recording(s)
(prior to the day of trial) for purposes of properly “advising” Canada
on accepting the prosecutor’s plea deal, which was offered prior to
the date of trial; and (B) Canada did not receive “effective”
assistance of trial counsel during the “plea negotiations”, as a result
of the prosecutor’s own purposeful delay in furnishing the 911 C.D.
tape recordings until after the plea negotiations were offered, which
violated Canada’s right to the effective assistance of counsel during
the plea process proceedings, which also prejudicially affected
Canada’s choice on going to trial.
(Petition, ECF No. 1.)

Analysis

Ground One: Confrontation Clause

In his First Ground for Relief, Canada claims his rights under the Confrontation Clause
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were violated when the trial court permitted the jury to hear recorded telephone calls made by
Alicia and Anthony Jenkins on November 9, 2013. The content of those calls was recited by the
Tenth District on direct appeal. Canada I, 2015-Ohio-2167 at ¶¶ 5-8. The court then decided the
related assignment of error as follows:

A. First Assignment of Error
[*P24] In his first assignment of error, appellant contends the trial
court erred in admitting statements made by Alicia and Anthony in
the three recorded telephone calls made on November 9, 2013.
Despite capiases issued against them, neither Alicia nor Anthony
appeared at trial. Appellant argues admission of their out-of-court
statements violated the Ohio Rules of Evidence as well as his right
to confront the witnesses against him as guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution.
[*P25] Prior to the commencement of testimony, defense counsel
made an oral motion in limine asking the court to exclude the
statements made in the recorded calls on grounds they were
testimonial evidence which should be excluded from trial pursuant
to his constitutional right to confront witnesses against him. The
prosecutor urged admission of the statements under the excited
utterance exception to the hearsay rule. After taking a short recess
to listen to the calls, the trial court denied appellant's motion.
Following presentation of its case, the prosecutor moved to admit
State's exhibit No. 19, the CD containing all three calls. Defense
counsel objected on grounds that admission of the statements
violated Ohio evidentiary rules and state and federal constitutional
provisions. The trial court overruled the objection and admitted the
CD.
[Discussion of hearsay objection omitted.]
[*P45] Appellant next contends that admission of the statements
violated his right to confront the witnesses against him as guaranteed
by the Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution. We review the
question of whether the trial court violated appellant's Confrontation
Clause rights under a de novo standard. State v. Durdin, 10th Dist.
No. 14AP-249, 2014-Ohio-5759, ¶ 15, citing State v. Rinehart, 4th
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Dist. No. 07CA2983, 2008-Ohio-5770, ¶ 20; McClain at ¶ 16, citing
State v. Dennison, 10th Dist. No. 12AP-718, 2013-Ohio-5535, ¶ 61.
[*P46] "The Sixth Amendment's Confrontation Clause provides
that, '[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.'" Crawford v.
Washington, 541 U.S. 36, 42 (2004). This "bedrock procedural
guarantee applies to both federal and state prosecutions." Id., citing
Pointer v. Texas, 380 U.S. 400, 406, (1965). "'Section 10, Article I
[of the Ohio Constitution] provides no greater right of confrontation
than the Sixth Amendment.'" State v. Arnold, 126 Ohio St.3d 290,
2010-Ohio-2742, ¶ 12, quoting State v. Self, 56 Ohio St.3d 73, 79,
(1990).
[*P47] In Crawford, the United States Supreme Court considered
whether the introduction of hearsay statements admissible under
state law violated an accused's Sixth Amendment right to confront
the witnesses against him. The statements at issue were made in a
recorded formal police interrogation. The recorded statements were
played for the jury at a trial in which the declarant did not testify.
The court held the Confrontation Clause bars "admission of
testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify and the defendant had had a prior
opportunity for cross-examination." Id. at 53-54. Although the court
did not expressly define "testimonial," it stated that the core class of
testimonial statements includes ex parte in-court testimony or its
functional equivalent, extrajudicial statements contained in
formalized testimonial materials such as affidavits and depositions,
"statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would
be available for use at a later trial," and "[s]tatements taken by police
officers in the course of interrogations." Id. at 52. The court further
stated that the Confrontation Clause does not apply to
nontestimonial hearsay. Id. at 68.
[*P48] Later, in Davis v. Washington, 547 U.S. 813 (2006), the
court considered whether a caller's responses to a 911 dispatcher's
interrogation were testimonial when the caller failed to appear to
testify at trial. The court held that "[s]tatements are nontestimonial
when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution." Id. at
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822. The court assumed, without deciding, that the acts of a 911
operator constituted acts of police. Id. at 823, fn.2. The court
concluded the 911 caller's hearsay statements were not testimonial
and were therefore not barred by the Sixth Amendment. Id. at 829.
In so concluding, the court reasoned that (1) the statements
described the events as they were actually happening, rather than
explaining events that had happened in the past, (2) any reasonable
listener would conclude the statements were made in the face of an
ongoing emergency, (3) the interrogation was objectively necessary
to resolve the ongoing emergency, rather than simply to learn what
had happened in the past, and (4) the interrogation was informal
because it was conducted over the telephone and the answers were
provided frantically while in a chaotic and unsafe environment. Id.
at 827. The court averred the circumstances surrounding the
interrogation "objectively indicate its primary purpose was to enable
police assistance to meet an ongoing emergency. [The caller] simply
was not acting as a witness; she was not testifying." (Emphasis sic.)
Id. at 828. The Supreme Court of Ohio adopted the Davis primarypurpose test in State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637,
paragraph one of the syllabus.
[*P49] Appellant first contends the statements Alicia made in her
first call at 5:33 a.m. were testimonial and, thus, barred by the
Confrontation Clause. Specifically, appellant claims the statements
fail the second prong of the primary-purpose test "because a
reasonable listener would not conclude that [she] was facing an
ongoing emergency." (Appellant's Brief, 18.) Appellant generally
reiterates the same arguments presented in his challenge to the
admission of the statements under the rules of evidence, i.e., that
Alicia called a non-emergency police number and she spoke in a
calm, matter-of-fact manner. The fact that Alicia called a nonemergency number rather than 911 does not establish there was no
ongoing emergency. Alicia called a valid police telephone number
and requested officer assistance. Her statements demonstrate that
the situation was an emergency. She identified appellant as an
"intruder" and reported that he had just kicked in her door and
refused to leave. Further, her speaking in a calm manner does not
mean there was no ongoing emergency. As we stated above, unlike
a situation where a break-in by an unknown intruder might well
result in a more emotionally-charged call to police, Alicia was wellacquainted with appellant. The trial court reviewed the call and,
thus, was able to listen to the tone and tenor of Alicia's voice. Thus,
we conclude Alicia's statements were not testimonial and, therefore,
not barred by the Confrontation Clause.

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[*P50] Appellant also contends the statements Alicia made in her
7:21 a.m. 911 call were testimonial and, thus, barred by the
Confrontation Clause. Appellant first refers to Alicia's statement
that appellant kicked in her door at 5:30 that morning. Appellant
claims this statement fails the first prong of the primary-purpose test
because she "is describing events that happened in the past."
(Appellant's Brief, 21.) We disagree. Alicia made the statement in
response to the 911 dispatcher's question about what was happening.
In an effort to explain the urgency of the current situation and to
convince the 911 dispatcher to send the police, Alicia needed to
provide some background information regarding appellant's earlier
actions. Alicia's statement was not made to prove a past event, but
to explain the full nature of her current emergency.
[*P51] Appellant next cites Alicia's later statement that she and her
family were outside and away from appellant. Appellant claims this
statement fails the second prong of the primary-purpose test because
"a reasonable listener would not conclude that she was facing an
ongoing emergency." (Appellant's Brief, 21.) Again, we disagree.
We first note that Alicia did not state that she and her family were
away from appellant. To the contrary, she averred "he's still here."
(Tr. 57, State's exhibit No. 19.) Appellant's continued presence at
the scene after twice kicking in Alicia's doors and assaulting both
Alicia and Anthony arguably establishes an ongoing emergency.
This conclusion is buttressed by the 911 dispatcher's admonition to
stay away from appellant. Thus, we conclude Alicia's statements
were not testimonial and, therefore, not barred by the Confrontation
Clause.
Canada I, 2015-Ohio-2167.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. §
2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceedings.
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Respondent defends Ground One on the merits, asserting the Tenth District’s decision is
entitled to deference under 28 U.S.C. § 2254(d)(1)(Return, ECF No. 5, PageID 1020-21).
In his Petition Canada presented a substantial argument that the trial court erred in its Ohio
evidence ruling on hearsay (Petition, ECF No. 1, PageID 17-22). This Court cannot review Ohio
evidence law rulings of the state courts because habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463
U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.)
152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar,
J., concurring). A federal habeas court may not re-evaluate a state court’s interpretation of state
law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam).
Canada also argues the Confrontation Clause point in the Petition (ECF No. 1, PageID 2226). He quarrels with the Tenth District’s findings that the speakers are describing an ongoing
emergency, both by claiming that in the second and third calls, they are describing past events and
by claiming that Alicia Jenkins was calm during the calls. However, the three calls are made in
the course of an ongoing series of events, attempting to obtain police intervention, and Canada’s
characterization of Alicia as calm in the face of his having kicked in both of her doors and assaulted
her and her brother is, to say the least, self-interested.
The Magistrate Judge concludes the Tenth District’s decision is not an objectively
unreasonable application of Davis v. Washington, 547 U.S. 813 (2006). The Tenth District

9

reasonably determined that Alicia Jenkins and her brother were attempting to obtain police
assistance through all three calls. Therefore, the state court decision is entitled to deference under
§ 2254(d)(1). On that basis, Ground One should be dismissed.

Ground Two: Bad Acts Evidence
In his Second Ground for Relief, Canada claims he was denied a fair trial by the admission
of other bad acts evidence against him in violation of Ohio R. Evid. 403(A).
Respondent first asserts that this claim is procedurally defaulted because it was never fairly
presented to the state courts as a federal constitution claim. (Return, ECF No. 5, PageID 102125.) As noted above, Canada has filed no reply, so this argument has not been rebutted.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S.
99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The claim must be fairly
presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th
Cir. 2009).
“Federal courts do not have jurisdiction to consider a claim in a habeas petition that was
not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2004);
accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); Blackmon v. Booker, 394
F.3d 399, 400 (6th Cir. 2004).

10

Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does
not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th
Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere
use of the words “due process and a fair trial by an impartial jury” are insufficient. Slaughter v.
Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.
2004)(same). “A lawyer need not develop a constitutional argument at length, but he must make
one; the words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th
Cir. 1995).
If a petitioner’s claims in federal habeas rest on different theories than those presented to
the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a claim
will not save it).
Even if this claim had been properly preserved as a federal constitutional claim, Petitioner
would not be entitled to relief on the merits. Cross-examination of a testifying defendant as to
prior felony convictions is such an accepted part of American criminal practice that most felony
defendants do not testify in their own behalf. “There is no clearly established Supreme Court
precedent which holds that a state violates due process by permitting propensity evidence in the
form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that
the Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991). This is
true even when the other bad acts evidence is introduced in some way other than upon crossexamination of a testifying defendant.

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Accordingly, Ground Two should be dismissed as procedurally defaulted or alternatively
as without merit.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Canada asserts he was denied a fair trial by prosecutorial
misconduct. Respondent asserts this Ground for Relief is barred by procedural default in that trial
counsel did not object to the complained-of prosecutorial comments in closing .
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “[A]bsent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.

12

[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115
L.Ed.2d 640. The procedural default doctrine thus advances the
same comity, finality, and federalism interests advanced by the
exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
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.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines 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 under Sykes that
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there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In this case, the Tenth District reviewed Canada’s prosecutorial misconduct claim for plain
error because there had been no contemporaneous objection. Canada I, 2015-Ohio-2167 ¶ 70.
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by calling
them to the attention of the trial court at a time when the error could have been avoided or
corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see
also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground
of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell,
455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith
v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003),
citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2009).
An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a
procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell,
538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White
v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);
Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th
Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason
14

v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Because Canada filed no reply, he has offered no rebuttal to the State’s procedural default
argument. Assuming he would rely on his attorney’s asserted ineffective assistance as providing
excusing cause, that argument is rejected in Ground Four below.
Ground Three should be dismissed as procedurally defaulted.

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Canada asserts he received ineffective assistance of trial
counsel when his trial attorney failed to object to the prosecutorial misconduct allegedly committed
during closing argument.
The governing standard for ineffective assistance of trial counsel was adopted by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).

15

With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d
313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
Although an Ohio appellate court’s plain error review is an enforcement rather than a
waiver of a procedural default, its opinion is still entitled to deference under 28 U.S.C. §
2254(d)(1). Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009); Kittka v. Franks, 539 Fed.
Appx. 668, 672 (6th Cir. 2013); Bond v. McQuiggan, 506 Fed. Appx. 493, 498 n. 2 (6th Cir. 2013);
Stojetz v. Ishee, 2014 U.S. Dist. LEXIS 137501 *231 (S.D. Ohio Sept. 24, 2014)(Frost, D.J.). In
this case the Tenth District determined that the complained-of comments by the prosecutor in
closing did not amount to prosecutorial misconduct. Therefore, even if objections had been made,
it would not have been error for the trial judge to overrule them. It cannot be ineffective assistance
of trial counsel to fail to make objections that would have been overruled.
16

Therefore, Ground Four should be dismissed.

Ground Five: Trial Court Cumulative Error

In his Fifth Ground for Relief, Canada claims he was denied a fair trial on the basis of the
cumulative errors by the trial court. However, "post-AEDPA, not even constitutional errors that
would not individually support habeas relief can be cumulated to support habeas relief." Hoffner
v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010), quoting Moore v. Parker, 425 F.3d 250, 256 (6th
Cir. 2005); Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012). On that basis Ground Five
should be dismissed.

Ground Six: Insufficient Evidence/Manifest Weight of the Evidence

In his Sixth Ground for Relief, Canada asserts his conviction is against the manifest weight
of the evidence and is not supported by sufficient evidence. A manifest weight of the evidence
claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).
In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme Court reaffirmed the
important distinction between appellate review for insufficiency of the evidence and review on the
claim that the conviction is against the manifest weight of the evidence. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida (1982), 457
U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560. Although a court of appeals may determine that a judgment of
17

a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388389, 124 N.E.2d at 149. Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a
trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.
at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d
717, 720-721 ("The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.").
78 Ohio St. 3d at 387.
The Thompkins case is consistent with federal constitutional law. An allegation that a
verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307
(1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000);
Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be
constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In
re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
18

could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S.Ct. 709, 715, 193
L.Ed.2d 639 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
19

doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652, 665 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en
banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction
based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647,
656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S.
1, ___, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And
second, on habeas review, "a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U.S.
[766], [773], 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam).
Canada raised manifest weight and sufficiency claims together as his Seventh Assignment
of Error on direct appeal and the Tenth District decided the sufficiency claims as follows:
[*P98] In his seventh assignment of error, appellant contends his
convictions for aggravated burglary and domestic violence were not
supported by sufficient evidence and were against the manifest
weight of the evidence.

20

[*P99] "In a criminal prosecution, the state bears the burden of proof
with respect to each statutory element of an offense." Abi-Adballah.
The standard for evaluating whether the state has presented
sufficient evidence is "'whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.'" State v. Robinson, 124 Ohio St.3d 76, 2009Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259, (1991),
paragraph two of the syllabus. Whether the evidence is legally
sufficient to sustain a verdict is a question of law, not fact. State v.
Thompkins, 78 Ohio St.3d 380, 386, (1997). On review for
sufficiency, courts do not assess whether the state's evidence is to be
believed, but whether, if believed, the evidence would support a
conviction. Id. at 390. In determining the sufficiency of the
evidence, an appellate court must give "'full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.'" State v. Gordon, 10th Dist. No.
10AP-1174, 2011-Ohio-4208, ¶ 5, quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979). "Consequently, a verdict will not be disturbed
based upon insufficient evidence unless, after viewing the evidence
in a light most favorable to the prosecution, it is apparent that
reasonable minds could not reach the conclusion reached by the trier
of fact." Id., citing Treesh at 484.
[*P100] We first address appellant's claim that insufficient evidence
supported his conviction for aggravated burglary. R.C. 2911.11(A)
proscribes aggravated burglary and provides, in relevant part, that
"[n]o person, by force, stealth, or deception, shall trespass in an
occupied structure * * * when another person * * * is present, with
purpose to commit in the structure * * * any criminal offense, if any
of the following apply: (1) [t]he offender inflicts, or attempts or
threatens to inflict physical harm on another."
[*P101] Appellant's sole contention regarding the sufficiency of the
evidence is that the state failed to prove he trespassed in Alicia's
apartment. "[T]respass is an essential element of aggravated
burglary." State v. O'Neal, 87 Ohio St.3d 402, 408 (2000). Pursuant
to R.C. 2911.21(A)(1), a criminal trespass occurs when a person
"without privilege to do so," "[k]nowingly enter[s] or remain[s] on
the land or premises of another." R.C. 2901.01(A)(12) defines
"[p]rivilege" as "an immunity, license, or right conferred by law,
bestowed by express or implied grant, arising out of status, position,
office, or relationship, or growing out of necessity." "Land or
premises" includes "any land, building, structure, or place belonging
to, controlled by, or in custody of another." R.C. 2911.21(F)(2).
21

[*P102] Appellant cites his own testimony that he lived with Alicia
and paid bills associated with the apartment, along with Shelton's
testimony that he removed some of appellant's personal belongings
from Alicia's apartment after the incident and that he thought
appellant paid some of Alicia's bills, as proof that appellant did not
trespass in the apartment. Appellant contends the state provided no
evidence contradicting this testimony other than the inadmissible
hearsay testimony of Alicia and Anthony in their calls to the police.
As noted in our resolution of appellant's first assignment of error,
statements made in those calls were properly admitted into evidence.
[*P103] In O'Neal, the Supreme Court of Ohio held that "R.C.
2911.21(A)(1), when read in conjunction with R.C. 2911.21(E)
[now (F)(2)], establishes that any person can indeed commit a
trespass against property that belongs to, is controlled by, or is in the
custody of, someone else." (Emphasis sic.) Id. at 408. Indeed, even
"a spouse can be convicted of trespass and aggravated burglary in
the dwelling of the other spouse who owns, has custody of, or
control over the property where the crime has occurred." Id., citing
State v. Lilly, 87 Ohio St.3d 97 (1999), paragraph one of the
syllabus.
[*P104] In her 5:33 a.m. call to the police station, Alicia referred to
appellant as an "intruder," and reported that he "decided to come
kick my door in and he's standing in my living room refusing to
leave." (Emphasis added.) (Tr. 52, State's exhibit No. 19.) In his call
to 911, Anthony described appellant as "an intruder." In her call to
911, Alicia again reported that appellant "kicked in my door at 5:30
in the morning" and "kicked in my back door." (Emphasis added.)
(Tr. 56, State's exhibit No. 19.) Further, Officers Garrett and
Dawson and Detective Rotthoff all testified that their investigations
revealed no information that appellant resided at Alicia's apartment.
To the contrary, appellant reported his address as 45 Stevens
Avenue both when he was arrested and during his interview with
police. Alicia's identification of appellant as an "intruder," her
references to "my door" and "my living room," along with
appellant's action in kicking in the doors and his subsequent
reporting of his address as one other than 1842 Noe-Bixby Road,
support the conclusion that Alicia exercised sole custody and/or
control over the apartment at the time appellant entered and that
appellant knowingly entered Alicia's apartment without privilege to
do so, thereby committing a trespass in violation of R.C.
2911.21(A)(1). Viewing the evidence in a light most favorable to
the prosecution and without making credibility determinations, we
conclude the evidence was sufficient to prove the element of
22

trespass and, by extension, to support the conviction for aggravated
burglary in violation of R.C. 2911.11(A)(1).
[*P105] Appellant also contends the evidence was insufficient to
support his conviction for domestic violence. R.C. 2919.25(A)
provides that "[n]o person shall knowingly cause or attempt to cause
physical harm to a family or household member." As pertinent here,
"[p]hysical harm" to a person means "any injury * * * regardless of
its gravity or duration." R.C. 2901.01(A)(3). "Family or household
member" includes a person who "has resided with an offender" and
was "living as a spouse." R.C. 2919.25(F)(1)(a)(i). As pertinent
here, R.C. 2919.25(F)(2) defines "[p]erson living as a spouse," as "a
person who * * * has cohabited with the offender within five years
prior to the date of the alleged commission of the act in question."
Pursuant to R.C. 2919.25(D)(4), if an offender previously has been
convicted of two or more offenses of domestic violence, then a
violation of R.C. 2919.25(A) is a felony of the third degree.
[*P106] Appellant does not dispute that Alicia is a "family member"
or that he previously was convicted of two offenses of domestic
violence. Rather, appellant solely contends the state failed to prove
he physically harmed or threatened to physically harm Alicia.
Appellant argues that no evidence in the record, other than through
improperly admitted testimonial hearsay, established that any
physical harm occurred. Again, we note that Alicia's call to 911 was
properly admitted into evidence. In that call, Alicia reported that
appellant "smacked" her. (Tr. 56, State's exhibit No. 19.) Further,
Officer Garrett described observing a mark on Alicia's face that
suggested she had been slapped, and the state presented photographs
depicting a red mark on Alicia's face. More importantly, appellant
admitted in his jailhouse call that he slapped Alicia. Viewing the
evidence in a light most favorable to the prosecution, and without
making credibility determinations, we conclude the evidence was
sufficient to prove the element of physical harm and, by extension,
to support the conviction for domestic violence in violation of R.C.
2919.25(A).
Canada I, 2015-Ohio-2167.
Upon review, the Magistrate Judge concludes the Tenth District’s decision on sufficiency
of the evidence is neither contrary to nor an objectively unreasonable application of Jackson.
Although the evidence was not unequivocal about where Canada resided, the gave his address to
the police as different from the premises at which he kicked in the doors. And he admitted in a
23

telephone call from the jail that he slapped Alicia Jenkins. He now claims that was a lie, but the
jury was free to believe it was a true admission,
The Sixth Ground for Relief should therefore be dismissed on the merits.

Grounds Seven and Eight: Ineffective Assistance of Appellate Counsel

In his Seventh Ground for Relief, Canada claims he received ineffective assistance of
appellate counsel when his appellate attorney failed to raise as assignments of error that: (A) trial
counsel was “ineffective” by failing to “investigate” the case, prior to a proposed plea bargain
offer, pertaining to the existance [sic] of certain 911 CD recording(s); and (B) due to the fact that
counsel at trial was ineffective during the “plea proceedings,” which caused Petitioner to reject the
proposed plea offer, and causing Petitioner to suffer “actual prejudice.
In his Eighth Ground for Relief, Canada claims he received ineffective assistance of
appellate counsel when counsel did not raise the following assignments of error: (1) defense
counsel’s failure to object to the admissibility of the 911 recordings on grounds that prosecutor
withheld such evidence from being timely provided to the defense, thereby violating the rules
governing discovery; (2) the prosecutor committed prosecutorial misconduct by not providing the
evidence in a timely manner; (3) the trial judge abused her discretion by allowing the introduction
of the 911 recordings to be allowed into the record as evidence, knowing that defense counsel had
just been provided the evidence on the day of trial; (4) Petitioner’s right to effective assistance of
counsel was violated by the prosecutor’s failure to provide the 911 recordings until the day of trial;
and (5) Petitioner was denied his right to a fair trial, as well as to the right to effective assistance
of counsel, resulting from the prosecution’s failure to timely provide the actual 911 recordings to

24

the defense until the day of trial.
In the Return, Respondent concedes that Canada has preserved his ineffective assistance
of appellate counsel claims for merits review by filing an Application for Reopening under Ohio
R. App. P. 26(B), but asserts the Tenth District’s decision on the claims is entitled to deference
under Strickland, supra. The Tenth District rendered the following decision of these claims:
{¶ 8} In his first proposed assignment of error, appellant argues that
his appellate counsel's performance was deficient inasmuch as
counsel did not raise, as an error on appeal, that trial counsel was
ineffective for failing to investigate the case prior to advising
appellant on plea offers. Specifically, appellant contends that his
trial counsel was ineffective by failing to obtain and listen to 911
recordings prior to the date of the trial and by failing to contact the
victim and her brother to confirm they would testify at trial.
Appellant asserts that he rejected plea offers on the belief that the
victim and her brother would testify, and therefore he would be able
to establish his residency at the apartment through their crossexamination, thereby disproving the aggravated burglary offenses.
Instead, the "secret" 911 recordings used "[i]n place of" the victim's
and her brother's testimony tended to show he was an "intruder" to
the victim's apartment, and prejudiced the jury against him. . . .
Thus, according to appellant, his trial counsel's failure to investigate
the 911 calls and confirm trial witnesses caused appellant to reject
several proposed plea offers, and appellant believes this error should
have been raised on appeal instead of weaker arguments selected by
appellate counsel.
{¶ 9} Regarding the 911 recordings, the record does not support
appellant's allegation that trial counsel's performance was deficient
in failing to investigate the 911 recordings. Trial counsel requested
discovery from the state and, through no fault of his own, did not
receive the calls until the morning of trial. The record similarly does
not support appellant's allegation that trial counsel's performance
was deficient regarding the victim and her brother testifying. The
victim and her brother were served with subpoenas, but failed to
appear several times. The state, let alone defense counsel, was
unable to ascertain whether they would appear at trial.
{¶ 10} Further, appellant cannot show he was prejudiced by defense
counsel's receipt of the 911 recordings on the morning of the trial,
or by the lack of cross-examining the victim and her brother. The
record shows that appellant was present while the victim called 911,
25

and the existence of the recordings was disclosed before plea
negotiations in the police summary provided by the state. Trial
counsel reviewed the calls prior to trial, argued against their
admission into evidence, and succeeded in having one call excluded.
Further, nothing in the record shows that either the victim or her
brother would have testified to appellant residing at the apartment
in question on cross-examination, as appellant suggests. Although
the state mentioned that the victim did not wish for appellant to go
to jail for a long time, it also emphasized that she never wavered
from her version of the facts, which included appellant breaking into
her residence.
{¶ 11} Shortly after hearing that the victim had not recanted or
changed the facts of her story, appellant declined the second plea
offer, which featured a jointly recommended sentence with a
significant reduction from the possible maximum sentence.
Discussing appellant's rejection of the plea offer, trial counsel
indicated that despite the reduction offered, appellant "nonetheless
* * * has not wavered from his desire to have that trial throughout"
and simply "wants to have a trial." . . . Therefore, although appellant
now insists otherwise, the record does not show that appellant would
have accepted the plea offers had he known that the 911 recordings
would be admitted and the victim and her brother would not testify,
but rather demonstrates appellant's unwavering desire to proceed
with a jury trial.
{¶ 12} In summary, trial counsel was not deficient in regard to
investigating the 911 recordings and the victim's testimony, and
appellant either cannot show prejudice or relies on evidence outside
the record to show prejudice. As such, appellate counsel was not
deficient in failing to assign errors related to these points on appeal
and, regardless, appellant did not have a reasonable probability of
success if the issue had been presented on appeal. Lee at ¶ 2; State
v. Coles, 5th Dist. No. 15CAA010001, 2015-0hio-4159, ¶ 11, citing
State v. Hartman, 93 Ohio St.3d 274, 299 (2001) ("A claim requiring
proof that exists outside of the trial record cannot appropriately be
considered on a direct appeal."). Under these circumstances,
appellant's first proposed assignment of error fails to demonstrate a
colorable claim of ineffective assistance of appellate counsel to
reopen this case.
{¶ 13} In appellant's second proposed assignment of error, appellant
argues that his appellate counsel was deficient in failing to raise
several more assignments of error related to the prosecutor's
provision of the 911 recordings on the day of the trial. Specifically,
appellant believes that appellate counsel should have raised as errors
26

on appeal: that trial counsel was ineffective for failing to object to
the 911 recordings on the grounds that that prosecutor withheld the
calls in violation of discovery rules; that the prosecutor committed
prosecutorial misconduct by not providing the 911 recordings until
the day of the trial, which deprived appellant of effective assistance
of counsel and a fair trial; and that the trial court abused its discretion
by allowing the 911 recordings into evidence.
{¶ 14} Appellant's arguments are rooted in Brady v. Maryland, 373
U.S. 83 (1963), and its progeny or, alternatively, a violation of
Crim.R. 16 discovery rules. Brady provides that "[t]he prosecutor
must * * * provide defendants any evidence that is favorable to them
whenever that evidence is material either to their guilt or
punishment." State v. Pickens, 141 Ohio St.3d 462, 2014-0hio5445, ¶ 96, cert. denied, Pickens v. Ohio, _U.S._, _ S.Ct. 193
L.Ed.2d 471, 84 U.S.L.W. 3320 (2015), citing Brady at 87. "Brady
material" may be disclosed during trial and not result in a due
process violation, so long as it is disclosed to a defendant in time for
its effective use. Pickens, citing State v. Iacona, 93 Ohio St.3d 83,
100 (2001).
{¶ 15} Crim.R. 16 requires the prosecutor to disclose certain
information, including any recorded statement by a witness in the
state's case-in-chief, prior to trial upon a proper discovery request
made by the defendant. Crim.R. 16(B) and note. Under Crim.R.
16(L), "[t]he trial court: continues to retain discretion to ensure that
the provisions of the rule are followed," for example, by giving
orders to permit discovery or inspection, granting a continuance,
prohibiting the party from introducing in evidence the material not
disclosed, or "such other order as it deems just under the
circumstances." Crim.R. 16(L) and note. On appeal," '[v]iolations
of Crim.R. 16 by the prosecution may result in reversible error only
upon a showing that (1) the prosecution's failure to disclose was a
willful violation of the rule, (2) foreknowledge of the information
would have benefited the accused in preparing a defense, and (3) the
accused has suffered prejudice.' " State v. Payne, 10th Dist. No.
09AP-107, 2010-0hio-1018, ¶ 35, quoting State v. LaMar, 95 Ohio
St.3d 181, 2002-0hio-2128, ¶ 38, citing State v. Joseph, 73 Ohio
St.3d 450, 458 (1995).
{¶ 16} Here, the prosecutor provided the 911 recordings to defense
counsel on the morning of the trial, prior to the start of trial. The
prosecutor stated that he made great efforts in order to receive the
911 recordings from the detectives, and defense counsel believed
that the prosecutor was not at fault for the timing of provision of the
recordings. Although she did not determine a discovery violation
27

occurred, the trial court judge offered defense counsel the
opportunity to recess for a day. Defense counsel indicated that he
had already listened to the recordings, proceeded to pursue
arguments against the inclusion of the recordings into evidence, and
ultimately succeeding in having one out of four of the recordings
excluded. Furthermore, as discussed previously, the recordings
indicate that appellant was present while the victim spoke to the 911
operator, and the existence of the recordings was included in the
police summary provided as part of discovery.
{¶ 17} Considering the 911 recordings were not favorable to
appellant and the state nonetheless provided the recordings in time
for defense counsel to argue vigorously against their inclusion, this
record does not reveal the prosecution's suppression of exculpatory
evidence as proscribed under Brady. Further, even assuming that the
prosecutor's failure to disclose the 911 recordings until the morning
of the trial is a violation of Crim.R. 16, the record does not support
reversible error on appeal, but rather supports the determination that
the lack of disclosure was inadvertent rather than willful, that
appellant had prior knowledge of the 911 calls, and that appellant
was not able to establish prejudice, as noted in the first assignment
of error.
{¶ 18} As such, appellant has not demonstrated that appellate
counsel was deficient in failing to raise issues related to the
prosecution's provision of the 911 recordings on the day of trial,
including trial counsel's failure to object to this timing and the trial
court's exercise of discretion to admit the recordings, or
demonstrated that he had a reasonable probability of success if the
issue had been presented on appeal.
{¶ 19} Under the circumstances, appellant's second proposed
assignment of error fails to demonstrate a colorable claim of
ineffective assistance of appellate counsel.
State v. Canada, No. 14AP-523 (10th Dist. Jan. 21, 2016)(unreported; copy at State Court Record
ECF No. 4-1, Ex. 19, PageID 483-86).
A criminal defendant is entitled to effective assistance of counsel on appeal as well
as at trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v.
Lucey, 469 U.S. 387, 394 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d
631, 636 (6th Cir. 2008). The Strickland test applies to appellate counsel. Smith v. Robbins, 528
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U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987).
To evaluate a claim of ineffective assistance of appellate counsel,
then, the court must assess the strength of the claim that counsel
failed to raise.” Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).
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. If a
reasonable probability exists that the defendant would have
prevailed had the claim been raised on appeal, the court still must
consider whether the claim's merit was so compelling that the failure
to raise it amounted to ineffective assistance of appellate counsel.
Id.
Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011). The attorney need not advance every
argument, regardless of merit, urged by the appellant. Jones v. Barnes, 463 U.S. 745, 751-52
(1983)("Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues." 463 U.S. 751-52). Effective appellate advocacy is rarely characterized
by presenting every non-frivolous argument which can be made. Joshua v. DeWitt, 341 F.3d 430,
441 (6th Cir. 2003). Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004; see Smith v. Murray,
477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the
presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876
F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).
However, failure to raise an issue can amount to ineffective assistance. McFarland v. Yukins, 356
F.3d 688 (6th Cir. 2004), citing Joshua, 341 F.3d at 441; Lucas v. O’Dea, 179 F.3d 412, 419 (6th
Cir. 1999); and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999). Counsel can be ineffective
by failing to raise a “dead-bang winner,” defined as an issue which is obvious from the trial record
and which would have resulted in a reversal on appeal, even if counsel raised other strong but
unsuccessful claims. Mapes, supra, citing Banks v. Reynolds, 54 F. 3d 1508, 1515 n.13 (10th Cir.

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1995); see also Page v. United States, 884 F. 2d 300, 302 (7th Cir. 1989). Stated differently, failure
to raise a significant and obvious claim can amount to reversible error. Mapes v. Tate, 388 F.3d
187, 192 (6th Cir. 2004).
“In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner
must show errors so serious that counsel was scarcely functioning as counsel at all and that those
errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d
674(6th Cir. 2000), citing Strickland and Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).
Counsel’s failure to raise an issue on appeal could only be ineffective assistance if there is a
reasonable probability that inclusion of the issue would have changed the result of the appeal.
McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d 663,
676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). “Counsel’s performance is strongly
presumed to be effective.” McFarland, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000),
citing Strickland. “To prevail on a claim of ineffective assistance of appellate counsel, a petitioner
must show that appellate counsel ignored issues [that] are clearly stronger than those presented.”
Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009); Smith v. Robbins, 528 U.S. 259, 288 (2000),
quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
Upon review, the Magistrate Judge concludes that the Tenth District’s decision on these
ineffective assistance of appellate counsel claims is neither contrary to nor an objectively
unreasonable application of Strickland. Canada’s claim that it was ineffective assistance of trial
counsel to fail to investigate the 911 recordings prior to trial is belied by the evidence before the
Court of Appeals, which Canada emphasizes as true, that the recordings were not produced to
defense counsel until the day of trial. Since they were in police custody, it is unclear how defense
counsel could have “investigated” them. The prosecutor insisted and was apparently believed by

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defense counsel that the prosecutor himself did not receive them until just before trial. Canada
avers his understanding was that Alicia Jenkins and her brother were going to come to trial and
support his claim that he lived with her, but he points to no record corroboration of that
understanding. The trial judge offered a continuance because of the later production of the
recordings, but the defense did not accept that offer.
Based on this analysis, the Seventh and Eighth Grounds for Relief should be dismissed.

Grounds Nine and Ten: Ineffective Assistance of Trial Counsel

In his Ninth and Tenth Grounds for Relief, Canada asserts he received ineffective
assistance of trial counsel when his trial attorney (1) failed to subpoena any witnesses for trial, (2)
failed to investigate the case prior to trial, and (3) failed to investigate the 911 recordings for
purposes of advising Canada on plea offers. He also asserts that the prosecutor’s purposeful delay
in furnishing the 911 recordings deprived him of the effective assistance of counsel in plea
negotiations.
Respondent asserts these claims are procedurally defaulted because they could have been
presented on direct appeal and were not, thereby becoming barred under Ohio’s criminal res
judicata doctrine (Return, ECF No. 5). Having filed no reply, Canada has not rebutted this defense.
To the extent Canada raised these claims in his Petition for post-conviction relief, the trial court
actually enforce the res judicata bar against him and he failed to perfect an appeal from that
decision.
Grounds Nine and Ten should be dismissed as procedurally defaulted.

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Conclusion

On the basis for the foregoing analysis, it is respectfully recommended that the Petition
herein be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

May 6, 2019.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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