Cox v. Warden, Madision Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition 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. Objections to R&R due by 12/9/2013. Signed by Magistrate Judge Michael R Merz on 11/21/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICAH ALAN COX,
Petitioner,

:

- vs -

Case No. 3:13-cv-200
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

ROD JOHNSON, WARDEN,
Madison Correctional Institution,
.
Respondent.

:

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Petitioner has filed
the Petition (Doc. No. 3) and a Traverse (Doc. No. 17); Respondent has filed an Answer/Return
of Writ (Doc. No. 11) along with the state court record (Doc. No. 8) and a Reply to the Traverse
(Doc. No. 19).
Cox pleads the following Grounds for Relief:
Ground One: The trial court violated the Petitioner’s Sixth and
Fourteenth Amendment rights by not granting the Petitioner a
hearing on the basis of his pro se motion filed on December 17,
2010, to remove his counsel of record.
Supporting Facts: On or about December 17, 2010, I filed a pro
se motion to remove my counsel. The motion was journalized on
the court docket. During the ten weeks between the motion and the
trial, I never had a hearing. I was forced to proceed to trial despite
my pending motion.

1

Ground Two: Insufficient evidence exists to support the
Petitioner’s convictions in violation of his Fourteenth Amendment
due process rights.
Supporting Facts: For Count 1, I was merely a passenger in the
car where a drug deal took place; a co-conspirator’s testimony is
not enough to establish a minor was in the car; and another codefendant testified that I had nothing to do with the transaction
.
For Count 2, the informant testified that the back seat passenger,
Chris, not me, provided the drugs. This deal was arranged between
informants and completed by Rodriguez and Chris.
For Count 3, I was not in possession, actual or constructive, of the
subject of [sic] cocaine. There is no evidence that the drugs were
found on me. I was not the driver of the vehicle containing drugs.
For Count 4, this drug deal never took place. It stemed [sic] from a
phone call. In which the detective testified on stand that he was not
sure of who he was speaking to on the phone that day, nor does he
even know who the phone belonged to.
Ground Three: The petitioner received ineffective assistance of
trial counsel in violation of the sixth and fourteenth amendments
for his failure to properly object to the admission of the audio tapes
as trial exhibit number one.
Supporting Facts: Trial counsel failed to object to the admission
of exhibit number one which was used in its entirety to convict
petitioner of all counts. Prosecutor alerted the court that there was
inadmissible portions that the jury could not hear. Prosecutor and
defense asked the judge to allow the bailiff in the jury room to fast
forward the tape past the bad portions, so the jury wouldn’t be
tainted with inadmissible evidence. This agreement was moot. The
jury had already heard exhibit number one in its entirety twice in
open court. The judge stated had the defense objected to exhibit
number one he would have probably granted it. For this reason,
furthermore 80 per cent of the State’s case against Petitioner was
Exhibit #1 audio tape.
Ground Four: The petitioner received ineffective assistance of
appellate counsel in violation of his Sixth and Fourteenth
Amendment rights.

2

Supporting Facts: Appellate counsel failed to timely notify the
Petitioner of the denial of his direct appeal, causing him to miss his
deadlines to file a timely appeal to the Supreme Court of Ohio, and
an application for re-opening with the appellate court.
Furthermore, the appellate attorney failed to raise the meritorious
issues contained in both Petitioner’s 26(B) Application for
Reopening and the brief accompanying this petition.
(Petition, Doc. No. 3, PageID 85, 90, 92-93, 94, 96).

Procedural History

Cox was indicted by the Greene County Grand Jury in 2010 on one count of conspiracy
to commit trafficking in cocaine (Ohio Revised Code § 2923.01(A)(2))(Count 1); three counts of
trafficking in cocaine (Ohio Revised Code § 2925.03(A)(1)(Counts 2, 4 and 5); and two counts
of possession of a controlled substance, cocaine (Ohio Revised Code § 2925.11(A)) (Counts 3
and 6). Cox was convicted by a jury on all counts. The trial court merged Counts 1 through 3
and Counts 5 and 6 under Ohio allied offenses statute, Ohio Revised Code § 2941.25, and then
sentenced Cox to an aggregate term of sixteen years imprisonment.
Cox appealed raising thirteen assignments of error, but the Second District Court of
Appeals affirmed the conviction and sentence. State v. Cox, 2012-Ohio-2100, 2012 Ohio App.
LEXIS 1839 (2nd Dist. 2012). Having missed the forty-five day deadline for appeal to the Ohio
Supreme Court, Cox sought a delayed appeal without success. State v. Cox, 133 Ohio St. 3d
1410 (2012). Cox filed an application to reopen his direct appeal to raise claims of ineffective
assistance of appellate counsel, but the Second District rejected the application as untimely.
State v. Cox, Case No. 2011 CA 19 (2nd Dist. Feb. 25, 2013)(unreported, copy at Return of Writ,

3

Doc. No. 8-1, PageID 450-52). The Ohio Supreme Court declined jurisdiction over a subsequent
appeal. State v. Cox, 135 Ohio St. 3d 1460 (2013). Cox then filed his Petition in this Court.

Analysis

Ground One: Due Process Violation for Failure to Hold a Hearing on Removal of Counsel

In his First Ground for Relief, Cox claims he was denied due process of law when the
Greene County Common Pleas Court failed to hold a hearing on his pro se motion to replace his
trial attorney.
Respondent asserts this Ground for Relief (as well as Grounds Two and Three) are barred
by Cox’s procedural defaults in presenting them to the Ohio Supreme Court.
The procedural default defense 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 right
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). Absent cause and prejudice, a federal habeas
4

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)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
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.), cert. denied sub nom, Eley v. Hauk,
__ U.S. __, 131 S.Ct. 822 (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
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).

5

There is no question that Ohio has a rule requiring appeals from the intermediate court of
appeals to the Ohio Supreme Court to be taken within forty-five days, that that rule was actually
enforced against Cox in this case, and that the rule is an adequate an independent stare ground of
decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). The question is whether Cox can
show adequate cause to excuse his default.
The record shows that the Second District Court of Appeals rejected this claim on the
merits in its decision of May 11, 2012. Under Ohio Sup. Ct. R. Prac. 2.2(A)(1), Cox’s notice of
appeal was due to be filed not later than forty-five days later or by June 24, 2012. No notice of
appeal was filed until August 28, 2012, in conjunction with Cox’s motion for delayed appeal
(Return of Writ, Exhibits 15 and 16, PageID 377, 380). The Warden notes that Cox claimed in
his motion for delayed appeal that he never received the appellate decision until July 30, 2012,
but attached a letter from his appellate attorney stating it had been sent earlier (Answer/Return,
Doc. Noo. 11, PageID 1032). The Warden also notes Cox never filed a memorandum in support
of jurisdiction setting out the claims on which he sought to appeal. Id.
Cox responds by asserting his attorney’s statement of earlier transmittal is not correct.
To support that claim, Cox moved to expand the record (Doc. No. 4), which motion the Court
granted (Notation Order of September 7, 2013). Examining the mail logs attached to the motion
to expand, the Magistrate Judge is persuaded that Cox’s procedural default in filing late is
excused by his appellate attorney’s ineffective assistance in failing to provide him notice of the
appellate decision with sufficient time to appeal to the Ohio Supreme Court. In his letter of July
30, 2012, counsel writes “[t]he Court proceeded to rule on the same without oral argument and
issued their opinion on May 15, 2012, affirming the decision of the Trial Court. We sent a copy

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a copy of that decision to you for review as well.” (Motion, Doc. No. 4-12, PageID 160.)
Counsel is inaccurate by four days on the date of issuance of the decision. More importantly, he
never states when the decision was sent and provides no corroboration of his statement that it
was mailed. When this lack of detail is combined with the mail logs from Cox’s place of
incarceration, the Magistrate Judge is persuaded that the appellate attorney did not give Cox
notice in time for him to appeal to the Ohio Supreme Court. Notifying a client of an adverse
decision at the court of appeals level is part of the duty of appellate counsel and failure to do so
is ineffective assistance of appellate counsel. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d
426 (6th Cir. 2006).
The Warden asserts that this omission on counsel’s part cannot be excusing cause for the
procedural default because
the claim of attorney error in not providing him with the decision
was never fairly presented to the Ohio courts, and so that claim is
itself procedurally defaulted. It therefore cannot serve as cause for
a procedural default of Grounds One through Three. See Edwards
v. Carpenter, 529 U.S. 446 (2000); Abshear v. Moore, 354 Fed.
Appx. 964 (6th Cir. 2009). While it is true that Petitioner relied on
this excuse in his motion for delayed appeal to the Ohio Supreme
Court on direct appeal, and in his motion to file a late Ohio App.
26(B) application, Petitioner has never fairly presented to the Ohio
courts any substantive constitutional claim that his attorney
rendered him ineffective assistance by failing to timely provide
him with the Ohio appellate court decision affirming his
conviction.

(Reply to Traverse, Doc. No. 19, PageID 1105, emphasis added.)
It is true that a claim of ineffective assistance of appellate counsel can be forfeited by
failing to raise it in the state courts. Edwards, supra. But a habeas petitioner is not required to

7

present an ineffective assistance of appellate counsel claim to the state courts as a substantive
claim in order to fairly present the claim to them. Cox did not “sandbag” the Warden by holding
back his claim that his attorney was ineffective until he reached this Court. Instead, he presented
the same facts on which he relies here to the Ohio Supreme Court in his motion for delayed
appeal.1 The fact that that court did not find in his favor does not preclude this Court from doing
so because the question of whether a habeas petitioner has procedurally defaulted a claim is a
question of federal law.

Henry v. Mississippi, 379 U.S. 443, 447 (1965); Isaac v. Engle, 646

F.2d 1129, FN3 (1980).
The Magistrate Judge concludes that Cox’s delay in appealing to the Ohio Supreme Court
is excused by his appellate attorney’s ineffectiveness in furnishing him with a copy of the
appellate opinion.
The Court then turns to the merits of Ground One. As noted above, this claim was
decided on the merits by the Second District Court of Appeals. Judge Donovan wrote for that
court:
[*P22] "THE TRIAL COURT ERRED IN NOT GRANTING
THE DEFENDANT A HEARING ON THE BASIS OF HIS PRO
SE MOTION FLED ON DECEMBER 17, 2010, TO REMOVE
HIS COUNSEL OF RECORD."
[*P23] In his first assignment, Cox contends that the trial court
erred when it failed to hold a hearing regarding his December 17,
2010, motion to remove his counsel.
[*P24] "An indigent defendant has no right to have a particular
attorney of his own choosing represent him. He is entitled to
1

The questions before the two courts are different of course. The Ohio Supreme Court had to decide whether to
allow a delayed appeal, a matter within that court’s exclusive discretion. There is no federal constitutional right to a
delayed state court appeal upon a finding that the failure to timely appeal is caused by ineffective assistance of
counsel. But the Ohio Supreme Court was presented with the same facts and with a quite parallel question: should
the delay in filing be excused when it was caused by something outside the appellant’s control?

8

competent representation by the attorney the court appoints for
him. Therefore, in order to demonstrate the good cause necessary
to warrant removing court appointed counsel and substituting new
counsel, defendant must show a breakdown in the attorney-client
relationship of such magnitude as to jeopardize defendant's Sixth
Amendment right to effective assistance of counsel." State v.
Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988); State v.
Murphy, 91 Ohio St.3d 516, 523, 2001 Ohio 112, 747 N.E.2d 765.
[*P25] Disagreement between the attorney and client over trial
tactics and strategy does not warrant a substitution of counsel.
State v. Furlow, 2d Dist. Clark No. 03CA0058, 2004 Ohio 5279;
See State v. Glasure, 132 Ohio App.3d 227, 724 N.E.2d 1165 (7th
Dist.1999). Moreover, mere hostility, tension and personal
conflicts between attorney and client do not constitute a total
breakdown in communication if those problems do not interfere
with the preparation and presentation of a defense. Furlow, supra.
[*P26] The decision whether or not to remove court appointed
counsel and allow substitution of new counsel is addressed to the
sound discretion of the trial court, and its decision will not be
reversed on appeal absent an abuse of discretion. Murphy, supra.
The term "abuse of discretion" implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62
Ohio St.2d 151, 404 N.E.2d 144 (1980).
[*P27] Initially we note that the trial court's failure to rule on Cox's
motion to remove counsel constituted an implicit ruling that the
motion was denied. When a trial court does not specifically rule
on a motion, the court is presumed to have overruled it. Hosta v.
Chrysler, 2d Dist. Greene No. 2008 CA 35, 2008 CA 36, 2008
Ohio 4392.
[*P28] In his motion to remove, Cox argued that his counsel had
failed to allow him to hear and watch the audio and video
recordings made by the A.C.E. Task Force of the drug transactions
even though Cox had asked his counsel if he could. We note Cox's
attorney had filed and conducted a motion to suppress this exact
same evidence two months earlier. We do not have a transcript of
this hearing to discern what, if anything, Cox saw and heard at that
time. Nevertheless, Cox did not raise any issues of ineffective
assistance prior to the second trial setting. Cox further stated that
he and his counsel disagreed regarding how the case should be

9

handled. Cox, however, failed to state in his motion any specific
issues over which he and his counsel disagreed.
[*P29] We also note that Cox filed his motion to remove his
counsel only three days before the first trial date which had been
set by the trial court approximately three months prior. Cox,
however, failed to appear on the first day of trial, and another date
had to be set on which to begin the trial. Clearly, the timing of the
motion to remove and his non-appearance on the first trial date
suggests that his request was made for the purposes of delay and
not because counsel was in any way deficient in his performance.
[*P30] Lastly, we note that Cox failed to express any
dissatisfaction with the performance of his appointed counsel when
he appeared for the second trial date on February 28, 2011. Had
Cox still been dissatisfied with his counsel's representation when
the trial finally began, it follows that he could have easily voiced
his concerns to the trial court. Moreover, even if Cox and his
counsel failed to agree regarding trial tactics, that reason, standing
alone, would be insufficient to warrant a substitution of counsel.
[*P31] Upon review, we find that the record before us suggests
that Cox filed his pro se motion to remove his counsel for the
purposes of delay, that is, before the second trial date he did not
express any ongoing dissatisfaction with his attorney. On this
record, the trial court did not abuse its discretion when it failed to
question Cox regarding the allegations made in his motion, thereby
implicitly overruling his motion to remove counsel.
[*P32] Cox's first assignment or [sic] error is overruled.
State v. Cox, 2012-Ohio-2100, 2012 Ohio App. LEXIS 1839, ¶¶ 22-32 (2nd Dist. May 11, 2012).
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. ___, 131
S. Ct. 770, 785 (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).
10

There appears to be no doubt that Cox filed a motion to remove his attorney and
substitute different counsel, that the trial court failed to conduct a hearing on that motion and
thereby effectively denied it, and that Cox therefore proceeded to trial with the attorney he
sought to have removed. Cox’s claim is that the failure to hold a hearing on his motion was itself
a constitutional violation for which he is entitled to relief.
Cox is mistaken in claiming he had a constitutional right to the hearing he did not
receive. The Sixth Amendment guarantees a criminal defendant the right to effective assistance
of counsel at trial, but there is no right to counsel of choice or to change counsel at will.
Furthermore, there is no constitutional right to a hearing on a pro se motion to change counsel.
Cox asserts “[t]he United States Supreme Court has held that once a request for substitute
counsel has occurred, inquiry is required.” (Traverse, Doc. No. 17, PageID 1087), citing United
States v. Robinson, 973 F.2d 712, 716 (9th Cir. 1990); and United States v. Torres-Rodriquez,
930 F.2d 1375 (9th Cir. 1991). The case which is reported at 973 F.2d 712 is Southeast Resource
Recovery Facility v. Montenay Intl. Corp., and not a criminal case at all. A criminal case
captioned United States v. Robinson, was decided by the Ninth Circuit in 1990 and reported at
913 F.2d 712, but it does not stand for the proposition for which Cox cites it. Another case
captioned United States v. Robinson was decided by the Ninth Circuit in 1990 and reported at
1990 U.S. App. LEXIS 22402, but it also does not hold there is an absolute right to a hearing and
in fact held:
Our court has consistently upheld the denial of a motion for
substitution when the request was made on the eve of trial. See,
e.g., United States v. McClendon, 782 F.2d 785, 789 (9th Cir.
1986); United States v. Rogers, 769 F.2d 1418, 1423-24 (9th Cir.
1985); United States v. Altamirano, 633 F.2d 147, 152 & n.4 (9th
11

Cir. 1980), cert. denied, 454 U.S. 839 (1981); United States v.
Michelson, 559 F.2d 567, 572 (9th Cir. 1977).

Id. at *1-2. The other cited case from the Ninth Circuit, United States v. Torres-Rodriquez, 930
F.2d 1375 (1991), holds that a conviction will be reversed for denial of substitution of counsel
only if a defendant shows an abuse of discretion in applying three governing factors. It does not
hold there is an absolute constitutional right to a hearing on a pro se motion to substitute.
Finally, even if the cited Ninth Circuit cases had found an absolute right to such a
hearing, that would not allow Cox to prevail. Habeas corpus may be granted only if a petitioner
can show violation of a constitutional right clearly established by holdings of the United States
Supreme Court, not by the circuit courts of appeals. Terry Williams v. Taylor, 529 U.S. 362,
412 (2000). Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)).
The First Ground for Relief is without merit and should be dismissed with prejudice.

Ground Two: Insufficient Evidence to Support Conviction

In his Second Ground for Relief, Cox argues that there was insufficient evidence
presented to support his conviction on any of Counts 1, 2, 3, or 4. The Warden asserts this
Ground for Relief is procedurally defaulted on the same basis as the First Ground for Relief, but
the Magistrate Judge rejects that defense on the same analysis as is given above on Ground One.

Count I
Respecting Count I of the indictment, Cox asserted on direct appeal that the conviction

12

was not supported by sufficient evidence and also was against the manifest weight of the
evidence. In rejecting these two Assignments of Error, Judge Donovan wrote:
[*P34] "THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE FINDING BY THE JURY OF GUILT AS TO
COUNT I, CONSPIRACY TO TRAFFICKING IN COCAINE IN
AN AMOUNT EQUAL TO OR EXCEEDING 10 GRAMS BUT
LESS THAN 25 GRAMS, IN THE VICINITY OF A JUVENILE."
[*P35] "THE FINDING BY THE JURY OF GUILT AS TO
COUNT I, CONSPIRACY TO TRAFFICKING IN COCAINE
WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE."
[*P36] In his second assignment, Cox argues that the evidence
adduced at trial was insufficient to sustain a conviction for
conspiracy to commit trafficking in crack cocaine (at least ten
grams but less than twenty-five) in the vicinity of a juvenile, in
violation of R.C. 2923.01(A)(2) and 2925.03(A)(1). Additionally,
Cox asserts that his conviction for said offense was against the
manifest weight of the evidence.
[*P37] "A challenge to the sufficiency of the evidence differs from
a challenge to the manifest weight of the evidence." State v.
McKnight, 107 Ohio St. 3d 101, 112, 2005 Ohio 6046, 837 N.E.2d
315. "In reviewing a claim of insufficient evidence, '[t]he relevant
inquiry is whether, after reviewing 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.' (Internal citations omitted). A claim that a jury
verdict is against the manifest weight of the evidence involves a
different test. '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.'" Id.
[*P38] The credibility of the witnesses and the weight to be given
to their testimony are matters for the trier of facts to resolve. State
v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
13

"Because the factfinder * * * has the opportunity to see and hear
the witnesses, the cautious exercise of the discretionary power of a
court of appeals to find that a judgment is against the manifest
weight of the evidence requires that substantial deference be
extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of
particular witnesses is within the peculiar competence of the
factfinder, who has seen and heard the witness." State v. Lawson,
2d Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709,
1997 WL 476684 (Aug. 22, 1997).
[*P39] This court will not substitute its judgment for that of the
trier of facts on the issue of witness credibility unless it is patently
apparent that the trier of fact lost its way in arriving at its verdict.
State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 Ohio
App. LEXIS 4873, 1997 WL 691510 (Oct. 24, 1997).
[*P40] "Conspiracy" is defined in R.C. 2923.01(A)(2) in pertinent
part:
(A) No person, with purpose to commit or to promote or facilitate
the commission of *** a felony drug trafficking *** offense ***
shall *** with another person or persons, plan or aid in planning
the commission of any of the specified offenses.
(B) No person shall be convicted of conspiracy unless a substantial
overt act in furtherance of the conspiracy is alleged and proved to
have been done by the accused or a person with whom the accused
conspired, subsequent to the accused's entrance into the
conspiracy. For the purposes of this section, an overt act is
substantial when it is of a character that manifests a purpose on the
part of the actor that the object of the conspiracy should be
completed.
[*P41] R.C. 2925.03(A)(1) defines trafficking in drugs and states
as follows:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance.
***
(C)(4) If the drug involved in the violation is cocaine or a
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compound, mixture, preparation, or substance containing cocaine,
whoever violates division (A) of this section is guilty of trafficking
in cocaine. The penalty for the offense shall be determined as
follows:
***
(e) *** if the amount of the drug involved equals or exceeds ten
grams but is less than twenty-five grams of crack cocaine,
trafficking in cocaine is a felony of the second degree ***. If the
amount of the drug involved is within one of those ranges and if
the offense was committed *** in the vicinity of a juvenile,
trafficking in cocaine is a felony of the first degree ***.
[*P42] Lastly, "an offense is 'committed in the vicinity of a
juvenile' if the offender commits the offense within one hundred
feet of a juvenile or within the view of a juvenile, regardless of
whether the offender knows the age of the juvenile, whether the
offender knows the offense is being committed within one hundred
feet of or within view of the juvenile, or whether the juvenile
actually views the commission of the offense."
[*P43] The evidence adduced at trial established all of the
elements necessary to sustain Cox's conviction for conspiracy to
commit trafficking in crack cocaine (at least ten grams but less
than twenty-five) in the vicinity of a juvenile, in violation of R.C.
2923.01(A)(2) and 2925.03(A)(1). Initially, we note that both
Younker and Rodriguez testified that Younker's two year old son
was in the backseat of the vehicle where the drug transaction took
place. Rodriguez testified that Younker informed her that Cox had
crack cocaine for sale.
[*P44] Younker testified that she explained to Cox what
Rodriguez wanted, and Cox indicated to Younker that he would
provide that amount prior to the sale. Younker testified that Cox
stated that while he had a portion of the crack cocaine in his
possession, he would have to get the rest from his brother, Barnett.
If Younker's testimony was deemed credible, then a jury could
clearly find that a conspiracy clearly existed between Cox,
Younker, and Barnett to facilitate and commit the sale of at least
ten but not [sic] less than twenty-five grams of crack cocaine.
[*P45] Younker further testified that while they were on the way
to the location of the drug transaction, Cox removed a baggie of
15

crack cocaine from his pocket and handed it to his brother, Barnett,
in the back seat of the vehicle. The evidence further established
that Cox was present in the vehicle while the sale of the crack
cocaine took place. Once the sale to Rodriguez was completed for
$700.00, Cox distributed the drug money to Younker and Barnett,
keeping $100.00 for himself. We also note that Det. Miller testified
that on October 1, 2009, Cox stated that he was the "same dude
you got it from the last time." Det. Miller testified that he
understood this statement to mean that Cox was the individual who
sold the crack cocaine to Rodriguez on September 21, 2009, when
Det. Penrod was posing as Det. Miller's girlfriend to facilitate the
drug transaction. Thus, a review of the record convinces us that the
State's evidence, taken in its entirety, was sufficient to sustain
Cox's conviction for conspiracy to commit trafficking in crack
cocaine (at least ten grams but less than twenty-five) in the vicinity
of a juvenile.
State v. Cox, supra, ¶¶ 34-45.
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, re-evaluate 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
16

petitioner guilty beyond a reasonable 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 (6th Cir. 2008).
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. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)(per curiam).
With respect to his conviction on Count I, Cox admits that there is damaging testimony
from both Younkers and Rodriquez concerning his conduct on September 21, 2009. But, he
says, they were seeking “personal gain in their testimony regarding these transaction to avoid
their own criminal charges. Therefore, their testimony deserves grave suspicion.” (Petition,
Doc. No. 3, PageID 114.) But whether any particular piece of testimony is to be believed or not
is a matter for the jury, particularly because any motives these witnesses had to shade the truth

17

was available to be pointed out to the jury.
Cox claims that there was no two-year-old child present because the “audio recordings
contain no sound of a child.” Id. at PageID 115. There is, however, eyewitness testimony from
two different people that a two-year-old child was present. Any argument that this eyewitness
testimony should be discounted because of the audio recording should have been made to the
jury. It is certainly not the case that no rational juror could have believed a child was present
when two eyewitnesses said there was a child.
Cox relies on the Ohio statute which requires proof of conspiracy by more than the
testimony of a co-conspirator, Ohio Revised Code § 2923.01(H)(1). But he was not charged
with conspiring to have a two-year-old present, but rather with conspiring to traffic in drugs.
The decision of the Second District Court of Appeals that the conviction on Count I is
supported by sufficient evidence is not an objectively unreasonable application of Jackson v.
Virginia, supra.

Count II
Cox also claimed on direct appeal that there was insufficient evidence to support his
conviction on Count II of the Indictment. The Court of Appeals decided this claim as follows:
[*P49]

"THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE FINDING BY THE JURY OF GUILT AS TO
COUNT II, COMPLICITY TO TRAFFICKING IN COCAINE."
[*P50] THE FINDING BY THE JURY AS TO COUNT II,

COMPLICITY TO TRAFFICKING IN COCAINE WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
[*P51] In his fourth assignment of error, Cox asserts that the

evidence adduced at trial was insufficient to sustain a conviction
18

for complicity to trafficking in crack cocaine (at least ten grams
but less than twenty-five grams) in the vicinity of a juvenile, in
violation of R.C. 2925.03(A)(1). Additionally, Cox asserts that his
conviction for said offense was against the manifest weight of the
evidence.
[*P52] "Complicity" is defined in R.C. 2923.03 in relevant part:

(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(2) Aid or abet another in committing the offense.
[*P53] The drug trafficking statute, R.C. 2925.03, provides in

pertinent part:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance.
[*P54] A person aids and abets the commission of a crime when

he advises, supports, assists, encourages or cooperates with the
principal offender, and shares the criminal intent of the principal
offender. State v. Johnson, 93 Ohio St.3d 240, 2001 Ohio 1336,
754 N.E.2d 796. "Such intent may be inferred from the facts and
circumstances surrounding the crime." State v. Whitfield, 2d Dist.
Montgomery No. 22432, 2009 Ohio 293.
[*P55] Viewing the evidence in the light most favorable to the

State, we find sufficient evidence to support Cox's conviction for
complicity to trafficking in crack cocaine. As previously stated,
Younker affirmatively testified that Cox was the source of the
crack cocaine sold to Rodriguez on September 21, 2009. Younker
also testified that while she and Barnett were paid for their role in
the transaction, Cox kept $100.00 of the proceeds from the sale of
the half-ounce of crack cocaine. Younker's testimony in this regard
establishes that Cox assisted, facilitated, and/or promoted the
commission of trafficking in crack cocaine. Without Cox's direct
involvement in the drug transaction, the deal could not have been
completed.
[*P56] Moreover, although Cox attempted to discredit Younker's

testimony as fabricated and self-serving, the jury did not lose its
way simply because it chose to believe her testimony regarding
19

Cox's involvement in the transaction. Accordingly, Cox's
conviction for complicity to trafficking in crack cocaine in Count
II is not against the manifest weight of the evidence.
[*P57] Cox's fourth and fifth assignments of error are overruled.

State v. Cox, 2012-Ohio-2100, 2012 Ohio App. LEXIS 1839 ¶¶ 49-57(2nd Dist. 2012).
Cox argues the evidence is insufficient to support a conviction for complicity because he
was just a passenger in the car where the dug transaction took place between the confidential
informant and the back seat passenger. Cox claims he was just sitting there silently (Petition,
Doc. No. 3, PageID 117). But this account ignores the testimony presented to the jury from
Younkers and Rodriquez about what Cox’s role was in the transaction. In other words, the
premise of Cox’s claim on Count II is that the testimony of these two witnesses should not have
been believed. That is an argument directed to the jury. Obviously the jury did believe these
witnesses and Cox points to no facts which show that no rational juror could possibly have
believed them.
The decision of the Second District Court of Appeals that the conviction on Count II is
supported by sufficient evidence is not an objectively unreasonable application of Jackson v.
Virginia, supra.

Count III

Cox argues there was insufficient evidence to convict him on Count III for possession of
the crack cocaine because he was never in actual or constructive possession of it (Petition, Doc.
No. 3, PageID 117-119). This claim was also raised on direct appeal and decided as follows:

20

[*P59] "THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE FINDING BY THE JURY OF GUILT AS TO
COUNT III, POSSESSION OF COCAINE."
[*P60] "THE FINDING BY THE JURY OF GUILT AS TO
COUNT III, POSSESSION OF COCAINE, WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
[*P61] In his sixth assignment of error, Cox argues that the
evidence adduced at trial was insufficient to sustain a conviction
for possession of crack cocaine (at least ten grams but less than
twenty-five grams), in violation of R.C. 2925.11(A). Additionally,
Cox asserts that his conviction for said offense was against the
manifest weight of the evidence.
[*P62] To prove a violation of R.C. 2925.11(A), the State was
required to prove beyond a reasonable doubt that Cox knowingly
possessed a controlled substance, namely the crack cocaine sold to
Rodriguez during the controlled purchase on September 21, 2009.
[*P63] Knowingly is defined in R.C. 2901.22(B):
A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably
exist.
[*P64] "Possession" is defined in R.C. 2925.01(K):
Possess or possession means having control over a thing or
substance, but may not be inferred solely from mere access to the
thing or substance through ownership or occupation of the
premises upon which the thing or substance is found.
[*P65] Possession of a drug may be either actual physical
possession or constructive possession. State v. Butler, 42 Ohio
St.3d 174, 538 N.E.2d 98 (1989). A person has constructive
possession of an item when he is conscious of the presence of the
object and able to exercise dominion and control over that item,
even if it is not within his immediate physical possession. State v.
Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982); State v.
Wolery, 46 Ohio St.2d 316, 348 N.E.2d 351 (1976).

21

[*P66] Readily usable drugs found in very close proximity to a
person may constitute circumstantial evidence sufficient to support
a finding that the person constructively possessed those drugs.
State v. Miller, 2d Dist. Montgomery No. 19174, 2002 Ohio 4197.
In determining whether a defendant knowingly possessed a
controlled substance, it is necessary to examine the totality of the
relevant facts and circumstances. State v. Teamer, 82 Ohio St.3d
490, 492, 1998 Ohio 193, 696 N.E.2d 1049 (1998); State v.
Pounds, 2d Dist. Montgomery No. 21257, 2006 Ohio 3040. The
State may prove constructive possession solely through
circumstantial evidence. State v. Barnett, 2d Dist. Montgomery
No. 19185, 2002 Ohio 4961. Circumstantial evidence and direct
evidence have the same probative value. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991).
[*P67] Younker's testimony was that on September 21, 2009, Cox
handed the baggie of crack cocaine to Barnett immediately prior to
their arrival at the McDonalds parking lot where the transaction
was conducted. Moreover, after she returned from the vehicle in
which Cox was present, Rodriguez had crack that she had just
purchased therein. Det. Miller also testified that on October 1,
2009, Cox stated that he was the "same dude you got it from the
last time," meaning the source of the crack cocaine from the
controlled purchase on September 21, 2009. Viewed in a light most
favorable to the State, this evidence establishes that Cox
knowingly possessed the crack cocaine at issue in Count III.
Additionally, we find that Cox's conviction for possession of crack
cocaine in Count III was not against the manifest weight of the
evidence.
[*P68] Cox's sixth and seventh assignments of error are overruled.
State v. Cox, supra ¶¶ 58-68.
Cox’s argument on this sub-claim focuses on Ohio case law discussing various ways in
which a person may be found in constructive possession of drugs in contrast to the facts of his
own case. For example, he says “In contrast to Caldwell [State v. Caldwell, 2011 WL 5022896
(Ohio App. 5th Dist. 2011)], I was not in possession, actual or constructive, of the subject
cocaine.” (Petition, Doc. No. 3, PageID 118).
22

Cox points to no place in the record where he testified he was not in possession of the
cocaine. The court of appeals, however, found that Younkers testified Cox handed the baggie of
cocaine to Barnett “immediately prior to their arrival at the McDonalds parking lot.” State v.
Cox, supra, ¶ 67. Perhaps if Cox had testified, the jury would have believed him, but he did not.
Here, as with the prior sub-claims, the jury was entitled to believe Younkers and that testimony
alone is enough to establish possession.
The decision of the Second District Court of Appeals that the conviction on Count III is
supported by sufficient evidence is not an objectively unreasonable application of Jackson v.
Virginia, supra.

Count IV

Cox argues that there was insufficient evidence to convict him of the charge in Count IV
of the Indictment, trafficking in powder cocaine. This claim was presented on direct appeal and
decided by the appellate court as follows:
[*P70] "THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE FINDING BY THE JURY OF GUILT AS TO
COUNT
IV,
TRAFFICKING
IN
COCAINE."
[*P71] "THE FINDING BY THE JURY OF GUILT AS TO
COUNT IV, TRAFFICKING IN COCAINE, WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE."
[*P72] In his eighth assignment, Cox asserts that the evidence
adduced at trial was insufficient to sustain a conviction for one
count of trafficking in cocaine (at least ten grams but less than one
hundred grams), in violation of R.C. 2925.03(A)(1). Cox also
argues that his conviction for said offense was against the manifest
weight of the evidence. Specifically, Cox contends that the State
23

failed to adduce sufficient evidence to prove that he offered to sell
powder cocaine to Det. Miller. Cox also asserts that Det. Miller
could not have been sure that the individual to whom he was
speaking was Cox.
[*P73] Det. Miller testified that Cox initially offered to sell him
ten grams of powder cocaine for $700.00. Det. Miller also testified
that Cox's phone calls on October 1, 2009, came from Younker's
phone number, and that the caller identified himself as "Twin,"
Cox's nickname. We note that at trial, Younker identified Cox's
voice as the one on the recordings from the October 1, 2009,
aborted drug transaction. After Det. Miller terminated the deal out
of fear for his personal safety, Cox became relatively agitated,
stating that he really wanted the drug sale to occur, even going so
far as to lower the price while increasing the quantity of the
cocaine he intended to sell to Det. Miller.
[*P74] Ohio Rule of Evidence 901(B)(5) states that authentication
or identification of a voice may be done "by opinion based upon
hearing the voice at any time under circumstances connecting it
with the alleged speaker." On October 6, 2009, Det. Miller met
with Cox in-person and spoke with him during that particular drug
transaction. As a result, Det. Miller would be able to state his
opinion on voice identification, thus identifying Cox's voice as the
one on the recordings from the aborted controlled purchase on
October 1, 2009. Viewed in a light most favorable to the State, the
evidence adduced was sufficient to sustain Cox's conviction for
trafficking in cocaine based on his offer to sell Det. Miller
approximately nine grams of powder cocaine on October 1, 2009.
[*P75] Moreover, although Cox attempted to undermine Det.
Miller's testimony, the jury did not lose its way simply because it
chose to believe his testimony regarding Cox's offer to sell nine
grams of powder cocaine, as well as his identification of Cox as
the individual speaking during the phone calls on October 1, 2009.
Accordingly, Cox's conviction for trafficking in cocaine in Count
IV is not against the manifest weight of the evidence.
[*P76] Cox's eighth and ninth assignments of error are overruled.
State v. Cox, supra, ¶¶ 70-76.
Cox’s argument is that there are various arguable inconsistencies in Detective Miller’s

24

testimony and there is no scientific evidence, such as a forensic voice analysis, to corroborate
Miller’s identification of his voice.
standard.

Here, again, Cox misapplies the Jackson v. Virginia

The question is not whether the State might have had more evidence or more

persuasive evidence. Rather the standard requires that there be competent believable evidence
on each element of the crime, which there was on the trafficking offense.
The decision of the Second District Court of Appeals that the conviction on Count IV is
supported by sufficient evidence is not an objectively unreasonable application of Jackson v.
Virginia, supra.
In sum, as found by the Second District Court of Appeals, the state presented competent
credible evidence on each element of the offenses charged in Counts one though four of the
Indictment and applied the correct legal standard. Ground Two for Relief should therefore be
dismissed with prejudice.

Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Cox argues he received ineffective assistance of trial
counsel when his trial attorney failed to properly object to the admission of the audio tape as trial
exhibit #1. The Warden asserts this Ground for Relief is procedurally defaulted on the same
basis as the First Ground for Relief, but the Magistrate Judge rejects that defense on the same
analysis as is given above on Ground One.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

25

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, ___, 130 S.Ct. 2250,
2264 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:

26

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, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313,
319 (6th Cir. 1998), citing Strickland, supra; Blackburn v. Foltz,
828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S.
at 687. “The likelihood of a different result must be substantial, not
just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1760 (2012), quoting
Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 792
(2011).
Counsel’s performance is measured by “prevailing professional norms” at the time of the
alleged errors. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997).
Cox raised this Ground for Relief on direct appeal and the court of appeals decided it as
follows:
[*P87] Cox's eleventh assignment of error is as follows:
[*P88]

"THE DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL IN FAILURE [sic] TO

27

PROPERLY OBJECT TO THE ADMISSION OF THE AUDIO
TAPE AS TRIAL EXHIBIT #1."
[*P89] In his eleventh assignment, Cox argues that he received
ineffective assistance when his counsel failed to object to the
admission of State's Exhibit #1, which contained recordings that
were not admitted as testimony, nor authenticated by the State.
[*P90] "We review the alleged instances of ineffective assistance
of trial counsel under the two prong analysis set forth in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), and adopted by the Supreme Court of Ohio in State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, * * * .
Pursuant to those cases, trial counsel is entitled to a strong
presumption that his or her conduct falls within the wide range of
reasonable assistance. Strickland, 466 U.S. at 688. To reverse a
conviction based on ineffective assistance of counsel, it must be
demonstrated that trial counsel's conduct fell below an objective
standard of reasonableness and that his errors were serious enough
to create a reasonable probability that, but for the errors, the result
of the trial would have been different. Id. Hindsight is not
permitted to distort the assessment of what was reasonable in light
of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of
ineffective assistance of counsel." (Internal citation omitted). State
v. Mitchell, 2d Dist. Montgomery No. 21957, 2008 Ohio 493, ¶ 31.
[*P91] An appellant is not deprived of effective assistance of
counsel when counsel chooses, for strategic reasons, not to pursue
every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319,
528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every
possible defense; the test is whether the defense chosen was
objectively reasonable. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L. Ed. 2d 674. A reviewing court may not
second-guess decisions of counsel which can be considered matters
of trial strategy. State v. Smith, 17 Ohio St.3d 98, 17 Ohio B. 219,
477 N.E.2d 1128 (1985). Debatable [**35] strategic and tactical
decisions may not form the basis of a claim for ineffective
assistance of counsel, even if, in hindsight, it looks as if a better
strategy had been available. State v. Cook, 65 Ohio St.3d 516, 524,
605 N.E.2d 70 (1992).
[*P92] After a thorough review of the record, we conclude that
Cox has failed to establish that he was prejudiced by his counsel's
failure to object to the admission of State's Exhibit #1. Initially we
28

note that the admissible portion of the evidence on the audiotape
comprising State's Exhibit #1 was played for the jury during trial.
Additionally, while it is true that defense counsel did not object to
admission of State's Exhibit #1, the record indicates that defense
counsel entered into an agreement with the State whereby the tape
would be admitted into evidence, but the bailiff would be
instructed not to permit the jury to hear the portion of the tape
which was inadmissible. On appeal, Cox does not argue that State's
Exhibit #1 was inadmissible in its entirety. Rather, Cox contends
only a portion of the tape was inadmissible, and it appears from the
record that steps were taken to insure a portion of the tape was kept
from the jury pursuant to the agreement between the parties. Cox
does not argue that he was in any way prejudiced by the parties'
agreement to instruct the bailiff not to allow the jury to hear the
inadmissible portion of the tape, nor does he suggest that there was
a breach of this directive. Thus, Cox has failed to establish that his
counsel's performance was deficient. Reviewing courts must
indulge in a strong presumption that counsel's conduct was not
improper, and reject post-trial scrutiny of an act or omission that
was a matter of trial tactics merely because it failed to avoid a
conviction." State v. Reid, 2d Dist. Montgomery No. 23409, 2010
Ohio 1686.
[*P93] Cox's eleventh assignment of error is overruled.

State v. Cox, supra, ¶¶ 87-93.
In support of this Ground for Relief, Cox makes the following arguments:
In the current case, my counsel failed to object to the admission of
Exhibit #1 which contained recordings that were not admitted as
testimony and not authenticated by the state. Exhibit #1 was used
in it's [sic] entirety to convict me on all charges and was the main
evidence in the states [sic] case. The admissions hearing at trial the
prosecutor made it part of the record that a part of Exhibit #1 was
deemed inadmissible. The defense went into an agreement with the
state, without my permission, to allow the bailiff to fast forward
the tape past the harmful portions. This was a critical error made
by the defense attorney for several reasons: 1) The deal that was
made to protect the jury , had been breached. The jury had already
heard Exhibit #1 in it's [sic] entirety twice unredacted in open trial.
2) One of my convictions came solely from an audio tape from
Exhibit #1. October 1, 2009, count four, in which I received [sic] 4
years for, there is no other evidence of this drug deal taking place.
Besides an audio tape, Which is apart [sic] of Exhibit #1. Nor [sic]
29

only was this the sole evidence of the October 1, 2009 charge, but
Exhibit #1 was also used to link me from the October 1, 2 009
deal, back to the September 21, 2009, deal. Had my attorney
objected to the admission of Exhibit #1 at transcript page 375 and
376. The trial judge stated that: If you want an exhibit admitted, it
needs to be clean because----I guess what I am saying is, if you go
on and admit an exhibit take the offending portion out.” The judge
goes on at transcript page 376 at 6-11 stating: That absent of an
objection at this point we are going to forward with it and we will
do it the way you two agreed to do that, but candidly, if the defense
had objected to the admission of that I probably would have
granted it for that reason. Even though the trial attorney didn't
object, the court was aware of the problem and would have
excluded the evidence. Therefore the court should have Sua
Sponte excluded Exhibit #1 the audio tapes, and abused it's[sic]
discretion by knowingly allowing prejudicial evidence to be heard
by the jury.
(Petition, Doc. No. 3, PageID 123-24.)
The Second District found that “the admissible portion of the evidence on the audiotape
comprising State’s Exhibit #1 was played for the jury during trial.” State v. Cox, supra, ¶ 92.
Cox claims this “fact finding determination in this aspect was wrong.” (Traverse, Doc. No. 17,
PageID 1092.)
Under § 2254(e)(1), a state court’s findings of fact are presumed correct and may be
rebutted by the petitioner only by clear and convincing evidence to the contrary. Cornwell v.
Bradshaw, 559 F.3d 398, 405 (6th Cir. 2009); Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.
2003); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). This statutory presumption of
correctness extends to factual findings made by state appellate courts on the basis of their review
of trial court records. Girts v. Yanai, 501 F.3d 743, 749 (6th Cir. 2007); Mason v. Mitchell, 320
F.3d 604, 614 (6th Cir. 2003); Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001), citing
Sumner v. Mata, 449 U.S. 539, 546-47 (1981).
To rebut the court of appeals’ finding, Cox argues “my trial transcripts are incomplete,

30

with regards [to] State’s Trial Exhibit #1. State’s Exhibit #1 was not transcribed in real time
with my trial. There is no record of what was exactly said in the presence of my jury.”
(Traverse, Doc. No. 17, PageID 1092.) Cox then directs this Court’s attention to the trial
transcript, citing twenty-eight different pages.2 The first such place is at PageID 581 where the
transcript reads “(WHEREUPON, State’s Exhibit 1A played for the Jury.)” The next such place
is at PageID 587 where the transcript reads “(WHEREUPON, State’s Exhibit No. 1 played for
the Jury.)” Just before this, the following colloquy is recorded:
MR. HAYES [the prosecutor]: Your Honor, at this point I 'm going
to play that portion of the audio recording. That will be marked as
State’s Exhibit No. 1B.
'IHE COURI': Is this all on the same disk?
MR. HAYES: It is. We can just refer to it as Exhibit 1?
'IHE COURI': Yeah. Are you comfortable with that?
MR. HAYES: Yeah. We’re only going to have one Exhibit.
'IHE COURI': If you want with Counsel and the Jury to break it
down into parts, you are entitled to do that, but I just need Exhibit
1 for the disk.
MR. HAYES: Fair enough. I think if the Court will indulge me, I
will continue to break it down.
Id.
The third instance cited by Cox is at PageID 697 and reads “(WHEREUPON, State’s
Exhibit No. 1 played for the Jury) just after Mr. Hayes says he is about to play a portion of
Exhibit 1. Exactly the same language appears at PageID 604, 607, 608, and 612. It is apparent

2

Cox cites to pages of the transcript as originally numbered by the court reporter (Traverse, Doc. No. 17, PageID
1093). In the Order for Answer, the Court required the Warden to file the record electronically, causing the Court’s
CM/ECF filing system to affix a unique PageID number to each page of the record and ordered “All papers filed in
the case thereafter, by either party, including the answer and exhibit index, shall include record references to the
PageID number.” (Doc. No. 2, PageID 84). Cox has ignored this Order.

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that the court reporter who made the stenotype record of the trial (1) did not transcribe the
portions of State’s Exhibit 1 as they were played and (2) made the same record notation each
time a portion of the recording was played.
Mr. Cox asks this Court to infer from what was not transcribed that what was played for
the jury included inadmissible evidence. The Magistrate Judge concludes, to the contrary, that
the court of appeals’ finding is fully supported by the record. First, it is clear from the context of
each of these excerpts that Judge Wolaver and the two attorneys were very attentive to what was
properly admissible. Secondly, the law is that regularity of the record is to be presumed. Chinn
v. Warden, 2013 U.S. Dist. LEXIS 91248 at *86, citing Johnson v. Zerbst, 304 U.S. 458, 468
(1938)(regularity of a state court judgment is to be presumed.) It is customary in most courts not
to have the court reporter transcribe audio recordings, so the fact that this court reporter followed
that custom in this case does not support an inference that something inadmissible was heard by
the jury. Finally, there is no evidence – only Cox’s assertion – that the jury heard the entire
recording.
At the time the case was submitted to the jury, an agreement was reached between
counsel that the bailiff would control which portions of the audio recording the jury heard. Cox
claims he did not concur in that agreement, but his lack of concurrence is immaterial: the proper
handling of evidence by a deliberating jury is a matter that a defense lawyer can decide himself
without the concurrence of his client. An attorney undoubtedly has a duty to consult with the
client regarding “important decisions,” including questions of overarching defense strategy.
Florida v. Nixon, 543 U.S. 175 (2004), citing Strickland, 466 U.S. at 688. That obligation does
not require counsel to obtain defendant’s consent to every tactical decision. Id. citing Taylor v.
Illinois, 484 U.S. 400, 417-418 (1988), holding that an attorney has authority to manage most

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aspects of the defense without obtaining his client’s approval.
At the end of his argument, Cox asserts the trial judge should have sua sponte excluded
Exhibit 1 and abused his discretion in not doing so (Petition, Doc. No. 3, PageID 124). That
claim is not properly before this Court because it was not presented at all to the Ohio courts.
Cox’s only claim on appeal as to State’s Exhibit 1 was ineffective assistance of trial counsel for
failing to object to the exhibit. Any claim Judge Wolaver should have excluded the recording
sua sponte is procedurally defaulted by failure to present it in the Ohio courts.
Cox makes much of Judge Wolaver’s statement that if an objection had been made, he
would have excluded Exhibit 1. From the context of that statement, it is clear the judge believed
the State should have created a “clean” copy of the exhibit for submission to the jury and he has
doubts about the agreement to have the bailiff monitor what is played. Those concerns are
certainly understandable, but the fact that the judge went ahead with the procedure counsel had
agreed on does not prove the jury heard any inadmissible evidence.
Cox argues that “if I have not met my burden of proof that the jury heard the offending
portions of State’s Exhibit #1 I ask this Court to grant an evidentiary hearing to prove that the
jury did in fact hear the offending portion of the tape in it’s [sic] entirety, unredacted.”
(Traverse, Doc. No. 17, PageID 1095). There are two conclusive objections to this request.
First, Cox has not suggested how he would prove that fact: he offers no evidence that there is
any person prepared to testify to that fact. Second, an evidentiary hearing on this point is
prohibited by the Supreme Court’s decision in Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct.
1388 (2011), which requires that this Court decide whether the state court decision is objectively
unreasonable on the basis of the record made in the state court.
The Second District’s decision on this Ground for Relief is not an objectively

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unreasonable application of Strickland v. Washington, supra, and its progeny. Ground Three
should therefore be dismissed with prejudice.

Ground Four: Ineffective Assistance of Appellate Counsel

In his Fourth Ground for Relief, Cox claims he received ineffective assistance of
appellate counsel in several respects.
The first sub-claim deals with appellate counsel’s failure to timely notify Cox of the
adverse decision of the Second District Court of Appeals. The Court has accepted this claim
insofar as it is offered to excuse procedural default of the first three Grounds for Relief. The
Court does not understand Cox to offer this as a stand-alone or substantive claim, i.e., a claim
that he is entitled to be released from prison because of this failure of his attorney, but merely
that he is entitled to have his first three Grounds for Relief considered on the merits, which this
Court has done above.
Cox’s substantive claim of ineffective assistance of appellate counsel is that his appellate
attorney was ineffective for failing “to raise the meritorious issue’s [sic] included in the
Petitioner’s Pro Se, state 26(B) Application.” (Petition Doc. No. 3, PageID 127.)
As with the first three Grounds for Relief, the Warden asserts Ground Four is barred by
Cox’s procedural default. Because the Warden asserts a different basis for default, this defense
requires a separate analysis for Ground Four.
Before a habeas petitioner can bring a claim of ineffective assistance of appellate counsel
in federal court, he must first exhaust that claim by presenting it to the state courts. In Ohio the
exclusive way to present such a claim in a non-capital case is by filing an application to reopen

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the direct appeal under Ohio R. App. P. 26(B). Cox filed such an Application November 5,
2012, but the court of appeals did not reach the merits because it found the Application was
untimely. It held:
On May 11, 2012 we issued an Opinion affirming the judgment of
the trial court. State v. Cox, 2d Dist. Greene No. 2011 CA 19,
2012-Ohio-2100. From that decision, Cox has filed a Motion to
Reopen his appeal.
Cox’s motion is not timely. App R 26(B) states that “[a]n
application for reopening shall be filed in the Court of Appeals
where the appeal was decided within ninety days from
journalization of the appellate judgment unless the applicant shows
good cause for filing at a later time.” While Cox has demonstrated
that he received a letter from his attorney at the Madison
Correctional Institution on August 2, 2012, the letter dated July 30,
2012, from Cox’s attorney mentions that our decision of May 11,
2012 was sent to Cox previously. Cox did not provide this court
with mail logs from any date prior to August 2, 2012. It is Cox’s
duty to demonstrate good cause for the delayed filing, which the
letter of July 30, 2012, and mail log from August 2, 2012, failed to
establish. Even assuming arguendo that Cox first became aware of
this court’s judgment on the later date of August 2, 2012, his
motion filed on November 5, 2012 is nevertheless untimely,
because it was filed more than ninety days from August 2, 2012.
State v. Cox, Case No. 2011 CA 19 (Ohio App. 2d Dist. Feb. 25, 2013)(unreported, copy at
Return of Writ, Doc. No. 8-1, PageID 450-52.)
Applying the analysis required by Maupin v. Smith, supra, Ohio has a relevant procedural
rule, to wit, that a claim of ineffective assistance of appellate counsel must be filed within ninety
days of judgment. Ohio App. R. 26(B). Cox did not file within the required time: the ninetieth
day after May 11, 2012, is August 9, 2012. As shown in the above quotation, the Second District
enforced that rule against Cox. In noncapital cases, the timeliness rule for filing a 26(B)
application is an adequate and independent state ground of decision. Parker v. Bagley, 543 F.3d
859 (6th Cir. 2008); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir. 2007)(distinguishing holding in

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capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets, 594 F.3d 900
(6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th Cir. 2009).
Thus Cox’s ineffective assistance of appellate counsel claims are procedurally defaulted
unless he can show excusing cause and prejudice. To attempt to do so, he again directs this
Court’s attention to the documents added to the record by his Motion to Expand the Record
(Doc. No. 4). He argues in that Motion
my 26(B) application was late from the time I was aware because I
had sent it to the wrong court. But when it was sent back to me I
still had 7 days left on my deadline. My 26(B) was held or lost in
Madison’s mail room, so I didn’t know it had been sent to the
wrong court, which is also explained in detail in the accompanying
affidavit. I want to submit the log for the day I received my 26(B)
back along with a post-marked envelope and the letter from the
Clerk of Courts to show had my 26(B) not been held up or lost in
the mail I would have been able to get it sent out and been timely.
(Motion, Doc. No. 4, PageID 139-40.) Exhibit G to the Motion to Expand reads in its entirety:

OCT 24, 2012
2011CA19
THIS IS NOT A MONTGOMERY COUNTY APPEAL. WE
CANNOT FILE THIS PAPERWORK.
IT SHOULD BE FILED IN THE COUNTY WHERE YOUR
APPEAL IS FILED.
CLERK OF COURTS
Id.at PageID 156.
The legal mail log attached as Exhibit J shows Cox received this document from Gregory A.
Brush on October 29, 2012. Id. at PageID 159.
There are several defects in this argument. First of all, Ohio App. R. 26(B) does not toll
the 90-day deadline for any period in which a defendant is not aware of the appellate decision.
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The deadline runs from the date of journalization, not from the date when the appellant becomes
aware of journalization. Second, the Court of Appeals noted that, even assuming arguendio it
was correct that Cox first learned of its decision on August 2, 2012,3 he had taken more than
ninety days from then to file his 26(B). It noted that the burden of proof of good cause for delay
was on Cox and he had not met it. When he filed his Delayed Application to Reopen, he made
no mention to the court of appeals of having sent the application to the wrong court or of any
delay in his learning that Gregory Brush had refused his filing. (See Return of Writ, Doc. No. 8,
PageID 419-20.) Nor did he offer any reason why he had waited more than sixty days from the
date he received notice of the decision to even attempt to file a 26(B) application.
Excusing cause must be something external to the petitioner. Hartman v. Bagley, 492
F.3d 347, 358 (6th Cir. 2007); Murray v. Carrier, 477 U.S. 478 (1986). Waiting more than sixty
days to attempt to file is not attributable to anyone other than Cox. This case was tried before
Judge Wolaver in the Greene County Common Pleas Court. The Clerk of Courts for Greene
County was then and is now Terri Mazur; the caption on the opinion reads “In the Court of
Appeals for Greene County, Ohio.” (PageID 386.) Gregory Brush was then and is now the
Clerk of Courts for Montgomery County, Ohio, without any authority to file documents in the
Court of Appeals for Greene County. Sending the application to Mr. Brush rather than to Ms.
Mazur was Cox’s mistake, not attributable to anyone else.
In sum, Cox has not shown excusing cause for his procedural default in raising his
ineffective assistance of appellate counsel claims. Ground four should therefore be dismissed
with prejudice.

3

The court of appeals accepted Mr. Miller’s assertion that he had sent the decision earlier; this Court has given Cox
the benefit of the doubt on that point.

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Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition 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.

November 21. 2103.
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 one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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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