Wilson v. Warden Madison Correctional Institution

Filing 33

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 sh ould 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 9/14/2015. Signed by Magistrate Judge Michael R. Merz on 8/27/2015. (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
WESTERN DIVISION AT DAYTON
ANTHONY WILSON,
Petitioner,

:

- vs -

Case No. 3:13-cv-217
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, London Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Wilson has filed a
Petition

(ECF

No.

2),

an

Amended

Petition

(ECF

No.

4),

and

an

additional

Amended/Supplemental Petition (ECF No. 11-1). Respondent has filed the State Court Record
(ECF Nos. 12, 30, & 31) and an Answer/Return of Writ (ECF No. 32). The Court set a date of
twenty-one days after the Answer for Wilson to file a reply (Order, ECF No. 29, PageID 3472).
That time expired August 17, 2015, but no reply has been filed.1 The case is accordingly ripe for
decision.
Wilson pleads the following thirty-five grounds for relief:
GROUND ONE: Petitioner alleges that he was given ineffective
assistance of appellate counsel throughout the compulsory legal
process.
Supporting Facts: Appellate counsels failed to challenge the
state-court proceedings within their entirety. Counsel did not attack
1

If Wilson were still incarcerated, he would be entitled to the benefit of the “mailbox” rule which treats prisoner
filings as made when deposited in the prison mail system. However, Wilson has given the Court a non-prison
address.

1

or facially challenge the conviction by way of raising meritorious
claims or assignments of error on appeals.
GROUND TWO: Petitioner alleges that he [sic] his rights were
not protected under the Sixth Amendment in all stages of the legal
process due to ineffective assistance of counsel.
Supporting Facts: Trial counsel permitted the petitioner to be
convicted of charges which were not contained legally within the
judgment entry and opinion of the trial court. Namely, counsel
permitted petitioner to be sentence to offenses that is contrary to
the findings of the jury and/or as enumerated by the Ohio Revised
Code. Further, counsel permitted Prosecutors to withhold
discovery materials, failed to obtain witnesses statements, failed to
subpoena witnesses, failed to investigate witnesses, failed to
investigate tangible items, failed to acquire all tangible items,
allowed the trial court to forbid a public tribunal of the legal
proceedings, obtain experts, allowed jury misconduct, sustain a
proper defense, and failed to advise Petitioner of a plea deal
negotiation in violation of Ohio and United States Constitutions
Due Process Clauses.
GROUND THREE: The Judgment Entry entered by the Trial
Court does not comport with the requirements imposed by the
Ohio General Assembly within its charged authority to legislate
and promulgate R.C. § 2505.02.
Supporting Facts: The judgment of the trial court is not a final
appealable order under the definition of Ohio law, as it fails to
comport to the requirements imposed by R.C. § 2505.02 and Ohio
Criminal Rule 32.
GROUND FOUR: The judgment is void, as the judgment of the
Montgomery County Common Pleas Court lacked jurisdiction to
impose any sentence.
Supporting Facts: The Ohio General Assembly has set forth a
compulsory process for the judiciary within the State of Ohio.
Failure to comport to the requirements and processes set forth by
the General Assembly and the Supreme Court of Ohio, renders any
judgment to be nugatory, void or surplusage. The criminal
judgment within this matter is such a judgment; due absence of
subject matter jurisdiction to impose the instant sentence.
GROUND FIVE: The conviction for complicity to felonious
assault was against the manifest weight of the evidence and the
2

evidence was insufficient to support appellant's conviction for
felonious assault.
Supporting Facts: The conviction as a result of the trial was
mitigated by the fact that the State Prosecutor erased the
surveillance videos which provided real-time evidence of the
events as they actually occurred; additionally the State
purposefully allowed a witness to testify regarding the contents of
the 39 Central Street surveillance video without defense counsel
being given the opportunity to challenge the authenticity of
completeness of the recording or present a rebuttal expert to
testify, as to the recordings on their factual accuracy or in
complying with the requirements of the Ohio Rules of Evidence.
The State altered, misstated and manipulated the evidence to
sustain an indictment and conviction that did not corroborate the
witnesses statements and evidence.
GROUND SIX: Ohio Courts showed complete prejudice towards
Petitioner when it determine a witness misspelled name was not
newly discovered evidence when Petitioner acted in complete due
diligence for the motion for leave to file a motion for new trial.
Supporting Facts: Eugene Talbott testified during the preliminary
hearing and as well as at trial that a person by the name of "Ryan
Davis" was there when the incident occurred. During the
evidentiary hearing for the motion for leave Petitioner testified that
he became aware of the witness correct name by being incarcerated
with him at the same prison facility (LoCI) located in London,
Ohio. Petitioner never knew that Davis' real name was actually
"Brian Davis," which prevented a subpoena from being filed
during trial under his legal correct name. Petitioner acted due
diligently to procure the existence of partial witness name who had
complete valuable information about the alleged conduct of the
Petitioner during the night in question. This information should
have been accepted as being newly discovered testimony that was
not available at trial for Petitioner to utilize due to the extreme
differences of the spelling and pronunciation of the name "Ryan"
and "Brian."
GROUND SEVEN: The State of Ohio withheld exculpatory
materials, as well as the Gun Shot Residue Test (GSR) analysis of
the Petitioner taken within a time before and after arrest.
Therefore, this resulted in a material prejudice to the Petitioner.
Supporting Facts: The results of the Gun Shot Residue Test
(GSR) analysis and other scientific analysis conducted were never
3

remitted during discovery to the Petitioner, which resulted within
material prejudice to the rights of the Petitioner. This evidence
could have altered the outcome of the trial or such other criminal
proceedings within this matter.
GROUND EIGHT: The trial court erred in refusing to instruct the
jury on the affirmative defense of defense of another; the lesser
included offense of assault; and the inferior degree offense of
aggravated assault.
Supporting Facts: The trial court abrogated rights conferred under
the Fifth, Sixth and Fourteenth Amendments of the Constitution of
the United States, by refusing to instruct the jury as to a lesser
included offenses when the evidence, documents, testimony, and
reports support the instructions of an inferior degree offense to be
considered by the jury during deliberations. Testimony at trial
validated that Petitioner was being shot at be other individuals and
sustained injuries before the victim in this matter was even
harmed.
GROUND NINE: The trial court erred in refusing to permit
defense counsel to impeach a witness, Eugene Talbott, by the prior
criminal history of the witness.
Supporting Facts: The State of Ohio violated the Fifth and
Fourteenth Amendments of the United States Constitution, by
failing to permit counsel to the Petitioner to attempt to impeach the
testimony of a witness for the State of Ohio; due the witness
acknowledging his prior convictions, should have precluded the
testimony within its entirety. This resulted in material prejudice.
GROUND TEN: The trial court erred by admitting the hearsay
testimony of Moonlight Security guard Jason Morris, Officer
Gregory Thornton, and all others regarding the contents of the
surveillance videos. The State asserted the Best Evidence Rule,
that these parties were in-effect experts attesting to the authenticity
and content of the recordings; while these parties was never
qualified as an expert witness to implicate or utilize the Best
Evidence Rule.
Supporting Facts: The State of Ohio was permitted to admit the
testimony of witnesses as to content and authenticity of video
evidence, without being qualified as an expert of first-hand
witnesses of the events on the date offense. None of these parties
was an expert in the authentication of video evidence; therefore,
this resulted in material prejudice to the compulsory process and
4

offended the Constitutional rights of the Petitioner. When the
Detective stated in the preliminary hearing that he possessed all the
surveillance videos to what occurred on Central Avenue.
GROUND ELEVEN: The State of Ohio selectively and
vindictively prosecuted Petitioner, however, by clear and
convincing evidence pointed to alternate suspects, and the State
punished Petitioner beyond the normal means of the Ohio and
United States Constitution.
Supporting Facts: The State of Ohio and its agents selectively and
vindictively prosecuted Petitioner when the evidence clearly
pointed to alternative suspects to be the cooperates other than
Petitioner, the State refused to acknowledge these perpetrators
during their review of the case to seek charges, indictments, and
convictions through Brady violations. The eyewitnesses testified
that they did not observe Petitioner with a weapon at all that night
of the offense. As such, the description given to police of the actual
party who possessed the weapon, did not meet the description of
the Petitioner. The description given by Witness Strobridge,
matched the individual apprehended that night, with a weapon a
9mm Ruger, behind the "Met" building. Therefore, there was
insufficient evidence from the surveillance video retrieved from 50
Central Street to show any corroborative evidence that the
Petitioner was firing any weapon on the night of the offense.
GROUND TWELVE: The trial court violated the intent of the
Ohio General Assembly, by imposing financial sanctions without
documentary evidence.
Supporting Facts: The Ohio General Assembly has promulgated
a process for imposition of financial sanctions within R.C. §
2929.19. The imposition of financial sanctions must be
independently predicated some form of independent and verifiable
documentary evidence. Failure to submit this evidence violates the
intent of the General Assembly within the promulgation of the
statute. This would in-effect permit the trial court to render the
vested authority of the General Assembly to legislate to be devoid
of statutory or constitutional authority.
GROUND THIRTEEN: The trial court erred in not instructing
the jury during voir dire, as to the specific elements of the offenses
the Petitioner was convicted were not general liability by nature,
and require establishment of mens rea to result within a conviction.

5

Supporting Facts: The right of due process requirements that a
trial court instruct a jury as to the necessity to establish multiple
step criminal process for determination of a criminal offense,
where there is no presence of the charged offense(s) being of
general liability. Failure to complete this basic functions renders
the criminal proceedings to nugatory and abrogates the due process
rights of the Petitioner. The due process rights of the Petitioner
were in-fact abrogated by failure to establish general multiphase
criminal elements under the legal theory of mens rea, as the
offenses within the conviction were not involving general liability.
GROUND FOURTEEN: The trial court erred when it became
aware that jurors had a personal relationship to the parties involved
within the criminal proceedings, and failed to excuse the juror.
Supporting Facts: The trial court erred when it permitted juror
Sherrer to continue to serve upon the jury, when the court become
aware that the juror had a direct familial relationship with
Rayshawn Sherrer, who was believed to be a person of interest
within the criminal investigation and offense charged within the
indictment of the Petitioner. Juror Thornton was believed to be a
relative of Officer Thornton who testified at trial was also a part of
the proceedings. This would in-effect implicate a violation of the
Fifth and Fourteenth Amendments of the United States
Constitution.
GROUND FIFTEEN: The Petitioner was prejudiced when the
trial court conducted ex parte communication with the jury outside
his presence and counsel.
Supporting Facts: The trial court is not permitted to conduct
instruction or direct or indirect communication with the jury
outside of the presence of the Petitioner or his counsel. As such,
the Petitioner was prejudiced because he was unaware of the
content of the communication between the trial court and the jury,
and could not challenge facially any of the instruction or the
content thereof.
GROUND SIXTEEN: The trial court erred in failing to sentence
the Petitioner to a proportionate sentence in-line with that of the
principal offender.
Supporting Facts: The principal offender within this matter was
sentenced to a significantly lesser sentence than that of the
Petitioner, and this resulted in the Petitioner being prejudiced as
there was no mitigation upon the record or otherwise, to indicate a
6

basis for imposing such a sentence in violation of the intent of the
General Assembly within its promulgation of Section 2900 of the
Revised Code.
GROUND SEVENTEEN: Trial court deprived Petitioner of his
right to a fair trial by allowing the State and its agents to dictate
which apparel items Petitioner was to wear at trial; refusing to
permit Petitioner the constitutional right of wearing clothing
furnished by relatives.
Supporting Facts: The appearance of the Petitioner within
clothing pick by the State and its agents caused an inference of
guilt to the jury because Petitioner wore the same shirt and pants
throughout the entire trial. Which caused the jury to concluded that
Petitioner was in the custody of the Montgomery County Jail. This
inference of guilt before the jury, has a potential to alter the
mindset of the jury and/or to have them draw the conclusion that
there was some type of guilt of the Petitioner. The failure of
counsel to proceed toward aggressively arguing a violation of
constitutional protections; gives rise to a claim of ineffective
assistance of counsel; due process of law; equal protection of law;
and freedom from cruel and unusual punishment. This action is
violative of the standard of trial practice within the jurisdiction of
Federal and Ohio Constitutional Laws.
GROUND EIGHTEEN: The trial court erred when it failed to
permit the Petitioner access to public records necessary for
perfection or establishment of any type of justiciable claim to
support pending litigation.
Supporting Facts: In Ohio R.C. § 149.43(B)(8), requires that a
trial court or sentencing judge to authorize the access of a criminal
defendant to records related to the investigation or the prosecution
of a criminal proceeding. The Petitioner avers that this is the
current case, the trial court erred when it denied the Petitioner to
documents that were integral to the protections of the compulsory
process simply because of some type of animus toward the
Petitioner. The information was related to an active pending
pleading in the appellate and trial court levels to show a Brady
violation had occurred during the legal proceedings, violation Ohio
and United States Constitutions.
GROUND NINETEEN: The Petitioner's right to a fast and
speedy trial was violated as a result of the criminal proceedings
taking over three years.

7

Supporting Facts: The petitioner did not willfully consent to
continuance of proceedings, as such the right to fast and speedy
trial were abrogated by the State of Ohio and the trial court in
accordance with Ohio and United States Constitution.
GROUND TWENTY: The trial court erred when it did not
conduct a de novo sentencing hearing of the Petitioner within a
manner consistent with Ohio case authorities.
Supporting Facts: The trial court indicated that it only had to
conduct a hearing related to the Post-Release Control imposition of
the Petitioner. However, this action is contrary to precedent
established by the Supreme Court of Ohio, which requires a
complete de novo sentencing hearing.
GROUND TWENTY-ONE: The trial court erred when it
corrected counts three and four of the indictment by nunc pro tunc
entry, in violation of Ohio law.
Supporting Facts: Ohio law requires that where a court enters a
full or complete disposition to any such criminal charge, that it be
done to complete the provision of the rights of a criminal
defendant. The failure of the trial court to ensure this renders the
judgment as to those counts to be void. The trial court failed to
properly sentence Petitioner to the actual crimes determine by the
Jury and in the indictment.
GROUND TWENTY-TWO: The trial court erred when it entered
its entry without a complete signature required for completion and
imposition of a final judgment.
Supporting Facts: The trial court utilized a "rubber stamp" when
it tendered its entry to the Clerk of the Court for journalization
upon the journal of the Montgomery County Common Pleas Court.
This action does not comport with Criminal Rule 32, and therefore
nullifies the judgment within its entirety; the court is without
jurisdiction to correct the judgment.
GROUND TWENTY-THREE: The trial court erred when it
failed to notify the Petitioner of a video teleconference under
Criminal Rule 43.
Supporting Facts: A trial court must notify a party to any form of
criminal proceeding involving video teleconference of the
proceeding and permit the party to prepare for the legal
proceeding. Failure to do this is violative of Criminal Rule 43 and
8

the Constitution of the United States and Ohio Due Process
Clauses.
GROUND TWENTY-FOUR: The trial court erred when it
applied the legal theory of res judicata to the Motion for
Sentencing.
Supporting Facts: Within Ohio, res judicata does not attach where
there is an absence of an original sentence or a void sentence. This
does not have to be raised upon direct review, but can be attacked
collaterally at any time as stated by the Supreme Court of Ohio.
GROUND TWENTY-FIVE: The trial court erred when it failed
to impose a sentence for complicity, and the refusal to void one
charge for sentencing purposes.
Supporting Facts: The Petitioner was charged, indicted, tried, and
convicted by the jury of complicity. The trial court lost jurisdiction
to impose a sentence upon Petitioner for the complicity offenses,
as there has been a significant amount of time that has passed from
the date of conviction and actual time a sentencing was to occur for
the complicity charges. Therefore, as a result of imposing sentence
for the wrong offense the trial court in effect nullified its ability to
impose a new sentence to correct its error, by no fault of the
Petitioner.
GROUND TWENTY-SIX: The Trial and Appellate Court
violated Petitioner's constitutional rights by not conducting a
competency evaluation by qualified experts.
Supporting Facts: The Courts violated Petitioner's constitutional
rights under due process clauses by not conducting a competency
hearing when trial counsel requested such hearing before the trial
commenced. Ohio and Federal Laws require that a competency
hearing be conducted once a party move the court by motion to
schedule mental evaluation. Once the motion was submitted and
the trial court made its own independent findings to the mental
evaluation of the Petitioner it violated due process clauses of the
United States and Ohio Constitution.
GROUND TWENTY-SEVEN: The trial court erred as a matter
of Law when it allowed juror misconduct of a Stealth Juror,
Foreign Jury, Jury of the Vicinage and Vicinage, Challenge to the
Array, Challenge for Cause, Juror Misconduct, and Embracery.

9

Supporting Facts: The trial court permitted Due Process Federal
and State violations to occur by not allowing Petitioner to contest
the jury being sworn under oath, which a stealth juror was among
the jury, as well as jurors who did not live in the county where the
incident took place, and overruling all challenges as being a stall
tactic by trial counsel to the legal proceedings.
GROUND TWENTY-EIGHT: The trial court erred as a matter
of due process provisions by not allow citizens to attend a public
tribunals.
Supporting Facts: The trial court disregarded Federal and State
Constitutional Due Process Provisions by not allowing Petitioner's
family, friends, and any other partial person to sit in the court
while the legal proceedings went underway jury selection, and
evidentiary hearing for the motion for leave to file a motion for
new trial. This prevented Petitioner from having a constitutional
hearing regulated by Federal and State Laws enacted by the
General Assembly.
GROUND TWENTY-NINE: Trial counsels representation for the
evidentiary violated the Sixth and Fourteenth Amendment to the
United State Constitution.
Supporting Facts: Counsels appointed by the Montgomery
County Common Pleas Court violated Petitioner's right to effective
assistance of counsel for the Motion for Leave by not filing for
discovery, subpoena witnesses, amend to the pleadings, argue the
void sentence issue, and secure all other necessary experts to
litigate the matter sufficiently and adequately.
GROUND THIRTY: The trial court erred as a matter of Federal
and Ohio Laws by not allowing Petitioner the opportunity to act in
a pro se capacity for the Motion for Leave to File a motion for new
trial proceeding.
Supporting Facts: The trial court erred by refusing to permit
Petitioner to exercise his constitutional right to proceed in a pro se
fashion to litigate the evidentiary hearing held for the motion for
leave to file a motion for new trial when all the pleadings filed in
the instant matter were in pro se capacity, the Court violated Ohio
and United States Constitution Due Process Clauses.
GROUND THIRTY-ONE: The State Court erred during the postconviction proceedings by not providing service, and refusing to

10

"make the issues up" pursuant to O.R.C. §2953.21(D) enacted by
the General Assembly and Ohio Supreme Court authorities.
Supporting Facts: The State of Ohio declined to provide service
of their pleadings according to the Rules of Procedure during the
post-conviction proceeding in the trial court level, while declining
to “make the issues up” in the ten (10) day time period allowed
under Ohio Revised Code 2953.12(D), violating Petitioner’s
constitutional rights of due process.
(Amended Petition, ECF No. 4, PageID 86-93.)

On

December

9,

2013,

after

receiving

leave

of

court,

Wilson

filed

Amended/Supplemental Petition adding the following four additional grounds for relief:
GROUND THIRTY-TWO: The clerk of courts’ reproduction of
the original December 13, 2007 termination entry was confirmed
through certification by the clerk, deputy sheriff, and prosecutor
officials authentication that the replica termination entry was
indeed a true an exact replica of the original entry form that did not
bear a judge's signature to finalize the conviction and enforce the
judgment accordingly as guaranteed under the United States and
Ohio Constitutions.
Supporting Facts: Ohio Laws and Rules of Procedure dictates
that an entry of finalization must be signed by the Judge who
terminated the case, and/or the Administrative Judge of that Ohio
County, or the Chief Justice of the Ohio Supreme Court,
furthermore, setting forth jurisdictional requirements to appeal the
judgment entered on the record pursuant to O.R.C. 2505.05 and
Ohio Criminal Rule 32(C). Petitioner's original entry of conviction
did not satisfy such necessary requirements as outlined in the State
v. Baker; and State v. Lester decisions of the Ohio Supreme Court.
Which the necessary jurisdiction components was never set forth
to the Second District Court of Appeals to inherit the case from the
Montgomery County Common Pleas Court. The replica
termination entry validates the original entry of finalization was
unconstitutional preventing the judgment from going into effect.
Because the burden leaves upon the clerk to issue all judgments,
pleadings, and service of decisions entries, for the foregoing
reasons stated above, Appellant contends that the replica "Rubber
Stamped" judgment entry indorsed by the clerk, deputy sheriff, and
assistant prosecutor attorney was indeed a true and exact
reproduction of the original trial court judgment entry, and this
11

an

matter should be reversed and remand back to either enter a
"Revised" or "Amended" entry for Appellant can file an appeal
according to law.
GROUND THIRTY-THREE: Ohio courts erred as a matter of
law to apply the res judicata standard for sentencing when it does
not apply to cases where a sentence was either never imposed,
contrary to law, and/or void on its face, further this error of law
violates due process provisions under the United States and Ohio
Constitutions.
Supporting Facts: The United States Constitution dictates that
each citizen is entitled to due process clauses, especially when it
involves a criminal conviction. Petitioner converse that Ohio
courts erred as a matter of law when it considered the motion for
sentencing to be res judicata, knowing that res judicata does not
apply towards sentences either improperly imposed, never
imposed, or void. The sentence and judgment entries must be
corrected by collateral attack. The restriction by res judicata cannot
apply to void, never imposed, or invalid sentences. The sample
structure of the form to this matter decides whether the December
13, 2007, and the February 23, 2011, termination entries are still
contrary to law and cannot be legally binding. On the record the
court never rightfully corrected the error of the incarcerated
sentence imposed. It's clear that a term of four years was imposed
in the nunc pro tunc entry. However, it's unclear what the actual
charge that the sentence was imposed from. Is it count 1, count 2,
count 3 or count 4? Further complicating the matter is that the
four-year sentence in the original judgment entry was only
imposed on one of the offenses of felonious assault. Leaving the
actual convicted offenses, complicity, without the imposition of a
sentence of punishment as required under the United States and
Ohio Constitutions. Because the trial court took the initiative to
change the offenses of complicity and modified the offenses on its
own initiative for the purposes of fact findings at sentencing,
Appellant contests that this Court should imposed a sentence to the
complicity offenses which Appellant was charged, indicted, and
tried upon as specified in the indictment for counts three (3); four
(4) and was also signed off by the trial court's jury.
GROUND THIRTY-FOUR: Because the trial court failed to
impose a sentence for the charges of "complicity" which appellant
was charged, indicted, tried, and convicted by the jury, the trial
court lost jurisdiction to impose a sentence upon appellant due to
the significant amount of time passed from the date of conviction
and actual time a sentencing was to occur, it violated the
12

constitutions of the United States and Ohio; the delay denied
appellant due process, which guarantees the administration of
justice "without denial or delay.
Supporting Facts: Ohio courts cannot justify why the
Montgomery County Common Pleas Court refused to sentence
Appellant for the offenses for which he was charge, indicted, tried,
and convicted pursuant to. Rather, the trial court made its own
determination and act upon its own initiative to not hand down a
sentence at all for the Complicity offenses described in the
indictment, verdict entry and jury verdict forms. Ohio courts lost
jurisdiction to impose a sentence for the complicity charges which
Appellant protest, and that it's this Court's duty to discharge the
sentence accordingly.
GROUND THIRTY-FIVE: The Second Appellate District Court
of Appeals of Ohio erred when it decided not to certify a conflict
with the decisions rendered out of the first and ninth appellate
districts court of appeals.
Supporting Facts: Petitioner contends the opinion render by the
Second Appellate District Court of Appeals, to not certify the
conflict with the First Appellate District, and Ninth Appellate
District Courts of Appeals, was a misplaced error in law. The
sufficiency of the matter holds complete venue for disposition. The
matter needs to be resolved to set forth uniformity amongst the
Appellate District Courts of Ohio. The Second Appellate District
Court of Appeals is enforcing an unsubstantiated legal analysis,
that judges within Ohio does not have to sign judgment entries.
Insofar, the Second Appellate District Court of Appeals opinion is
in conflict with other Appellate District Court of Appeals
throughout Ohio. The Chief Justice of the Ohio Supreme Court
declined to rectify this issue, however, Ohio Justice O'Neil
dissented from that opinion to resolve this ongoing growing
concern.
(Amended/Supplemental Federal Habeas Petition. ECF No. 11-1, PageID 127-29.)

Procedural and Factual History
Wilson was indicted by the Montgomery County Grand Jury in 2007 on two counts of
Complicity to Commit Felonious Assault in violation of Ohio Revised Code § 2903.11(A)(2)
(Counts 3-4) with firearm specifications attached to each count (State Court Record, ECF No.
13

31, Exh. 1, PageID 4204). Following a jury trial, Wilson was found guilty as charged on both
counts and specifications. Id. at Exh. 13, PageID 4228. (On December 17, 2007, the court
sentenced Wilson to four years on each of the complicity counts and three years on each of the
firearm specifications. The court merged the complicity counts with the two firearm
specifications and sentenced Wilson to an aggregate sentence of seven years. Id. at Exh. 14,
PageID 4234.
On January 16, 2008, Wilson, through new counsel, appealed to the Court of Appeals of
Ohio, Second Appellate District, Montgomery County, raising the following assignments of
error:
I. The trial court erred in refusing to instruct on the affirmative
defense of defense of another; the lesser included offense of
assault; and the inferior degree offense of aggravated assault.
II. Appellant’s conviction for complicity to felonious assault was
against the manifest weight of the evidence and the evidence was
insufficient to support Appellant’s conviction for felonious assault.
III. The trial court erred in refusing to permit defense counsel to
impeach a witness, Eugene Talbott, by prior conviction.
Id. at Exh. 16, PageID 4238.
The Second District set forth the facts of this case on direct appeal as follows:
[¶2] In the early morning hours of May 29, 2007, Eugene Talbott
and several of his friends were sitting on the steps of the apartment
building at 62 Central Avenue in Dayton. They saw a female,
Timmesha Manson, exit an apartment building located across the
street at 39 Central Avenue. Manson was stumbling and vomiting,
and appeared to be sick or drunk.
[¶3] A short time later, Defendant, who is Manson's boyfriend,
exited that same building and stood on the steps, watching
Manson. When one of Talbott's friends, Strobridge Giles, asked
Manson if she was alright, Manson said she was fine. When Giles
asked if she was sure of that, Manson began cussing at Giles.
Eugene Talbott approached Manson and asked if she was alright.
Manson cussed at Talbott, and they argued.
14

[¶4] When Manson began to walk away, Talbott decided to follow
Manson, walking several feet behind her, admittedly to make her
angry. Manson picked up a brick and turned toward Talbott, and
Talbott shouted to Defendant to come and get his woman. Manson
then threw the brick at Talbott, but missed. At that point another one
of Talbott's friends, Brandy McBeath, came over and shoved Manson.
Defendant caught Manson, preventing her from falling. Defendant
then handed Manson a .9mm semi-automatic handgun, whereupon
Manson immediately fired several shots, striking Talbott in the right
thigh.
[¶5] Defendant took the gun back from Manson and they ran to 50
Central Avenue, from where Defendant fired several more shots in
the direction of the place where Talbott and his friends had been
sitting. Defendant used the gun to break the glass out of the doors,
and he and Manson entered the building. Defendant suffered cuts to
his hands and arms and left a blood trail. Police responding to the
shooting scene followed the trail to Defendant's mother's apartment,
where Defendant and Manson were found and arrested and the .9mm
handgun used in the shooting was recovered.
State v. Wilson, 2009-Ohio-525, 2009 Ohio App. LEXIS 460 (Ohio App. 2nd Dist. Feb. 6, 2009).
Following extensive motion practice and briefing on the appeal, the court of appeals affirmed
Wilson’s conviction and sentence. Id.
On March 25, 2009, Wilson filed a pro se appeal to the Ohio Supreme Court and a
motion for delayed appeal which the court granted.

Ultimately, the Ohio Supreme Court

declined jurisdiction and dismissed the appeal. State v Wilson, 2009-Ohio-4233, 122 Ohio St.3d
1502 (2009).
On May 5, 2009, Wilson filed a pro se application for reopening appeal under Ohio App.
R. 26(B) (State Court Record, ECF No. 31, Exh. 38, PageID 4515). Because the application was
not properly filed, the court of appeals denied it. On May 29, 2009, Petitioner filed an amended
application. Id. at Exh. 39, PageID 4518. On July 27, 2009, the Ohio Court of Appeals again
denied the application to reopen as improperly filed. Id. at Exh. 43, PageID 4577.

15

On September 8, 2009, Wilson filed a pro se notice of appeal (ECF No. 31, Exh. 48,
PageID 4597) to the denial of his application to reopen with the Ohio Supreme Court which they
dismissed as not involving any substantial constitutional question. State v Wilson, 2009-Ohio6015, 123 Ohio St. 3d 1496 (2009).
On June 10, 2008, Wilson filed a pro se post-conviction petition to vacate the judgment
which the trial court overruled without hearing (State Court Record, ECF No. 31, Ex. 58, PageID
4665).
On December 8, 2008, Wilson filed a pro se notice of appeal with the Second District Court
of Appeals. Following briefing on the appeal, the Second District Court of Appeals affirmed the
judgment of the trial court on January 25, 2013. State v. Wilson, 2013-Ohio-180, 2013 Ohio App.

LEXIS 129 (Ohio App. 2nd Dist. 2013) Wilson appealed pro se to the Ohio Supreme Court which
declined jurisdiction over a subsequent appeal. State v. Wilson, 2013-Ohio-1857, 135 Ohio St.

3d 1433 (2013).
From March 30, 2010, through September 17, 2010, Wilson filed various motions in the trial
court and received unfavorable rulings (State Court Record, ECF No. 31-1, Exh. 82 to Exh. 96,
PageID 5069-5159). The trial court held an oral hearing on October 15, 2010, on Wilson’s motion
for a new trial which was overruled on January 27, 2011. Id. at Exh. 98, PageID 5163.

On February 23, 2011, Wilson appeared via video-conferencing with counsel for
resentencing pursuant to Ohio Revised Code § 2929.191 to correct a defect in the imposition of
post-release control. Thereafter, the trial court filed an amended judgment of conviction, which
imposed a term of post-release control, nunc pro tunc to the date of the 2007 judgment of
conviction (State Court Record, ECF No. 31-1, Exh. 100, PageID 5174).

16

Wilson, through counsel, filed an appeal from the February 23, 2011, decision, including the
PRC Advisory Sentencing, the denial of a new trial, and other trial court errors during pretrial, trial,
and sentencing raising the following assignments of error:

1. A termination entry that does not comply with R.C. 2505.02 is
not a final appealable order.
2. A lapse of over three years between trial and sentencing violates
the Appellant’s right to speedy sentencing under Crim. R. 32(A).
3. The Appellant’s speedy trial rights were violated by a three year
trial.
4. The trial court erred in not conducting a full sentencing hearing
de novo.
5. The trial court erred in failing to stay appellant’s costs, fines and
restitution.
6. The trial court erred in denying the Appellant’s motion to file a
delayed motion for new trial.

(State Court Record, ECF No. 31-2, Exh. 105, PageID 5187.) Following briefing on the appeal,
the Ohio Court of Appeals affirmed the trial court’s denial of relief on April 13, 2012. State v.
Wilson, 2012-Ohio-1660, 2012 Ohio App. LEXIS 1450 (Ohio App. 2nd Dist. 2012). The Ohio
Supreme Court declined jurisdiction over a subsequent appeal as not involving any substantial
constitutional question. State v. Wilson, 2012-Ohio-4021, 132 Ohio St. 3d 1515 (2012).
On July 13, 2012, Petitioner filed a second application to reopen his direct appeal under
Ohio App. R. 26(B) arguing that the following claims were not considered on direct appeal due
to appellate counsel’s ineffectiveness:
1. Nunc pro tunc entry could not enter disposition for Counts 3 and
4 where the record nor the original termination entry dispose of the
counts and a hearing de novo was required.
2. Nunc pro tunc entry is prohibited by law to correct judge
“rubber stamp” signature for final order component.
17

3. Trial court erred by overruling appellant’s pro se motions 1-9
and request to act in pro se capacity.
4. Trial court erred by disallowing the attendance of Ohioans to
public tribunals violating due process clauses.
5. The trial court erred when improper notification of
videoconference violated Crim. R. 43(A) and due process rights.
6. Trial court abused its discretion by refusing to reschedule
submission date for written closing arguments.
7. Appellate counsel was ineffective for failing to secure adequate
transcripts of the proceedings.
8. Trial court erred when it overruled motion for leave assuming
that appellant knew “Davis” prior to the incident.
(State Court Record, ECF No. 31-2, Exh. 113, PageID 5336.)
On November 28, 2012, Wilson filed an amendment to his application to reopen arguing
appellate counsel’s failure to argue the following additional claims on direct appeal:
9. The trial court abuse [sic] its direction [sic] by not conducting a
full hearing de novo, which violated due process provisions by not
sentencing appellant to the actual charges he was convicted by the
jury.
10. Trial court erred when it decline appellant accessibility to
inspect and copy public records to support a scheduled evidentiary
hearing.
11. Trial counsel was ineffective for failing to amend the motion
for leave with additional affidavits, secure a copy of discovery,
withholding of documentation, and subpoena witnesses for the
evidentiary hearing.
Id. at Exh. 114, PageID 5363.
On December 19, 2012, the Ohio Court of Appeals rejected Wilson’s second application
to reopen, noting they did not consider Wilson’s untimely and improperly filed amendment. Id.
at Exh. 115, PageID 5565.

The Ohio Supreme Court declined jurisdiction over a subsequent
18

appeal pursuant to S.Ct.Prac.R. 7.08 (B)(4). State v. Wilson, 2013-Ohio-1123, 134 Ohio St. 3d
1508 (2013).
On March 1, 2013, Wilson filed a pro se “Successive Post Conviction Petition for Relief
to Set Aside the Conviction, Sentence and Judgments” (State Court Record, ECF No. 31-2, Exh.
119, PageID 5607) which the Montgomery County Court of Common Pleas dismissed as not
properly filed. Id. at Exh. 120, PageID 5690.

On July 8, 2013, Wilson pro se appealed denial

of his successive post-conviction petition to the Second District Court of Appeals who affirmed
the judgment of the district court.

State v. Wilson, 2014-Ohio-5808, 2014 Ohio App. LEXIS

5622 (Ohio App. 2nd Dist. 2014). On May 20, 2015, The Supreme Court of Ohio declined
jurisdiction pursuant to S.Ct.Prac.R. 7.08 (B)(4). State v. Wilson, 2015-Ohio-1896, 142 Ohio St.
3d 1467 (2015).

Analysis
Ground One: Ineffective Assistance of Appellate Counsel

In his First Ground for Relief, Wilson claims his appellate attorney provided ineffective
assistance of counsel in unspecified ways, i.e., “throughout the compulsory legal process. . . .
Appellate counsels [sic] failed to challenge the state-court proceedings within their entirety.”
This claim fails to state a claim upon which habeas corpus relief can be granted. Federal
Rules of pleading require more than mere legal conclusions to state a claim.
Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he
19

pleading must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“ Rule 12(b)(6) does not
countenance ... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very
remote and unlikely”).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A] plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id.
Wilson’s First Ground for Relief does not say what in particular it is that appellate
counsel did or did not do that constituted ineffective assistance of appellate counsel. The First
Ground for Relief should therefore be dismissed without prejudice for failure to state a claim
upon which habeas corpus relief can be granted.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Wilson claims he received ineffective assistance of trial
counsel in twelve separate ways as follows:
1) Counsel permitted petitioner to be sentenced to offenses
contrary to the findings of the jury and/or as enumerated by the
Ohio Revised Code;
2) Counsel permitted prosecutors to withhold discovery materials;
3) Counsel failed to obtain witness statements;

20

4) Counsel failed to subpoena witnesses;
5) Counsel failed to investigate witnesss;
6) Counsel failed to investigate tangible items;
7) Counsel failed to acquire all tangible items;
8) Counsel allowed the trial court to forbid a public tribunal of the
legal proceedings;
9) Counsel failed to obtain experts;
10) Counsel allowed jury misconduct;
11) Counsel failed to sustain a proper defense;
12) Counsel failed to advise Wilson of a plea deal negotiation.
(Amended Petition, as quoted and numbered in Return of Writ, ECF No. 32, PageID 5891.)
Most of these subclaims are sufficiently definite to state a claim under the Constitution.
However, sub-claims six, seven, and eight suffer from the same deficiency as Ground One – they
are mere legal conclusions.
The Respondent argues the remaining claims are barred by Wilson’s procedural defaults
in presenting them to the state courts.
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

21

(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). Absent 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)(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.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court
on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(citations omitted). “Even if the state court failed to reject a claim on a procedural
ground, the petitioner is also in procedural default ‘by failing to raise a claim in state court, and

22

pursue that claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d
423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting
O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808
(6th Cir. 2004) ("A federal court is also barred from hearing issues that could have been raised in
the state courts, but were not[.]"). The corollary to this rule is that where a petitioner raised a
claim in the state court but in violation of a state's procedural rule, a state court must expressly
reject the claim on that procedural ground for a federal court to deem the claim defaulted. See
Williams, 460 F.3d at 806 (noting that a state court's expressed rejection of a petitioner's claim on
procedural basis and petitioner's complete failure to raise a claim in state court are the two ways
a claim can be in procedural default).
Ohio requires ineffective assistance of trial counsel claims which depend on the trial
record to be raised on direct appeal, but claims depending on evidence dehors the record to be
raised by petition for post-conviction relief under Ohio Revised Code § 2953.21.
As is well-established (although sometimes muddled by courts),
two types of procedural barriers might preclude federal review of
claims in a habeas petition. The first type, procedural default, is a
judicially created rule, grounded in fealty to comity values and
requiring federal courts to respect state court judgments that are
based on an "independent and adequate" state procedural ground.
Coleman v. Thompson, 501 U.S. 722, 732, 115 L. Ed. 2d 640, 111
S. Ct. 2546 (1991); Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986) (establishing a four-part test for determining whether a
procedural rule is an independent and adequate state ground). In
procedural default cases, the state court or courts reject a direct or
post-conviction appeal because the defendant failed to comply with
some state law or rule concerning timeliness, pleading
requirements, sufficient evidence, or the like.
The second type of bar, exhaustion, is similarly grounded in
respect for state court procedures, but it is federally mandated by
AEDPA, see 28 U.S.C. § 2254(b)(1)(A), (c), and requires
petitioners to give state courts a "fair opportunity" to assess
petitioners' claims. O'Sullivan, 526 U.S. at 844. Often, federal
23

courts will rule that a petitioner's claim is "defaulted" because the
petitioner failed to exhaust his remedies and the time for refiling an
appeal in the state court has passed. The unexhausted claim is then
classified as "procedurally defaulted" and deemed forfeited absent
a showing of cause and prejudice. See In re Cook, 215 F.3d 606,
607-08 (6th Cir. 2000).
But exhaustion and procedural default are distinguishable in an
important sense. A defendant could fail to exhaust a claim without
procedurally defaulting if he could return to the state courts to
exhaust. Alternatively, as in this case, the defendant could fail to
exhaust without defaulting if a clarification in procedural law
indicates that he has already taken the necessary action to exhaust.
That is, forfeiture by failure to exhaust entails a legal fiction, of
sorts. The state court has not rejected an appeal based on a state
rule violation; there is no declaration by the state court of an
independent and adequate state ground to which the federal court
must defer. Instead, the federal court makes a presumption that the
state court would reject the appeal on independent and adequate
state grounds if the petitioner tried to file it. But, by declaring the
claim forfeited, the federal court saves the petitioner and the state
court from respectively preparing and rejecting a futile filing. The
federal court then views the claim through the lens of procedural
default to determine whether there is cause and prejudice to excuse
the default. In short, the crux of forfeiture by failure to exhaust is
that the federal court's default decision rests upon a presumption
about what the state court would do, rather than respect for what a
state court actually did.
Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 186-187 (6th Cir., 2004)(vacated on
other grounds, 545 U.S. 1151 (2005).
The procedural default analysis of Wainwright and its progeny is fully applicable to §
2255 motions. United States v. Frady, 456 U.S. 152 (1982); Kaufman v. United States, 394 U.S.
217 (1969); Ratliff v. United States, 999 F.2d 1023 (6th Cir. 1993).
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

24

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, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
As the Respondent notes, Wilson did not raise any ineffective assistance of trial counsel
either on direct appeal to the Second District Court of Appeals or in his petition for postconviction relief under Ohio Revised Code § 2953.21. Therefore claims based on the record are
barred by Ohio’s criminal res judicata

doctrine.

State v. Perry, 10 Ohio St. 2d 175

(1967)(emphasis sic.); see also State v. Cole, 2 Ohio St. 3d 112 (1982); State v. Duling, 21 Ohio
St. 2d 13 (1970). The Perry rule has been repeatedly upheld in the Sixth Circuit as an adequate
and independent state rule. White v. Mitchell, 431 F.3d 517, 527 (6th Cir. 2005), citing Monzo v.
Edwards, 281 F.3d 568, 577 (6th Cir. 2002); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.

25

2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994); Van Hook v. Anderson, 127 F. Supp. 2d
899 (S.D. Ohio 2001). As to claims based on evidence outside the state court record, Wilson’s
post-conviction petition was dismissed because he failed to submit any evidence outside the
record in support of those claims (State Court Record, ECF No. 31, Exh. 58, PageID 4665,
4670-74).
Ground Two should be dismissed with prejudice.

Ground Three: Improper Form of Judgment Entry

In his Third Ground for Relief, Wilson claims the judgment entry of the trial court is not
a proper final appealable order within the meaning of Ohio Revised Code § 2505.02.
Ground Three fails to state a claim upon which habeas corpus relief can be granted.
Federal 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). The United States Constitution does not impose on the States a required form of final
judgment. Ground Three should be dismissed.

Ground Four: Void Judgment

26

In his Fourth Ground for Relief, Wilson claims the Common Pleas Court judgment
sentencing him is void for lack of subject matter jurisdiction. The Supporting Facts paragraph
asserts the General Assembly has created a process that the judiciary must follow and failure to
do so results in a void judgment.
A claim that a state court that imposed a sentence lacked subject matter jurisdiction over the
crime would state a claim cognizable in habeas corpus. However, the crime for which Wilson
was tried are felony offenses committed on Central Avenue in Dayton, Ohio, and therefore come
within the subject matter jurisdiction of the Montgomery County Common Pleas Court, the court
that imposed judgment in this case.
If Wilson has some claim beyond lack of subject matter jurisdiction, e.g., related to the
form of judgment, that is a matter of state law which is not cognizable in habeas corpus. Ground
Four should be dismissed.

Ground Five: Manifest Weight and Sufficiency of the Evidence

In his Fifth Ground for Relief, Wilson claims his conviction for complicity is against the
manifest weight of the evidence and is not supported by sufficient evidence.
A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener,
534 F.2d 1232 (6th Cir. 1986). The manifest weight portion of Ground Five should be dismissed
for failure to state a cognizable habeas corpus claim.
An allegation that a verdict was entered upon insufficient evidence does state 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,

27

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
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, 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).
However, Wilson’s insufficiency of the evidence claim as pled in the Amended Petition
is procedurally defaulted. Although he presented an insufficiency claim to the Second District
Court of Appeals, it is based on a completely different set of facts or theories than the one pled in
the Petition. In state court he complained of a failure to prove planning or that he shared
Timmesha Manson’s intent. Here he pleads completely different claims about the surveillance
videos of the crime.
For these reasons, Ground Five should be dismissed.

Ground Six: Denial of Motion for New Trial

In his Sixth Ground for Relief, Wilson complains that his motion for new trial based on
discovering the correct name of an eyewitness was improperly denied.
There is no federal constitutional right to a new trial upon the discovery of new evidence.

28

State law issues are not subject to habeas review, see Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385
(1991), and this Court can review the denial of [Petitioner’s]
motion for new trial only for constitutional error. To establish a
constitutional due process claim, Pudelski must demonstrate that
the trial court's denial of his motion for new trial was "so
egregious" that it violated his right to a fundamentally fair trial.
See Fleming v. Metrish, 556 F.3d 520, 535 (6th Cir. 2009); Baze v.
Parker, 371 F.3d 310, 324 (6th Cir. 2004).
Pudelski v. Wilson, 576 F.3d 595, 611 (6th Cir. 2009)(Holschuh, D.J.)

Wilson has not

demonstrated that denial of a new trial deprived him his right to a fundamentally fair trial.
Wilson’s trial attorney, Daniel J. O’Brien, listed as a witness “Ryan Davis Present address
unknown.” (Decision on Motion for New Trial, State Court Record, ECF No. 31-1, Exh. 98,
PageID 5165.) Mr. O’Brien’s source for the name is not disclosed, but Wilson later met up with
“Brian Davis” at place of common imprisonment. As Judge Huffman recites in detail, Wilson
prepared the new evidence affidavit for Davis’s signature, but Davis repudiated almost all of
what Wilson had written. It is very unlikely that a new trial with Davis testifying would have
changed the result.
Therefore Ground Six should be dismissed.

Ground Seven: Withholding of Exculpatory Evidence

In his Seventh Ground for Relief, Wilson asserts the State withheld exculpatory evidence
from the defense.
Respondent asserts this claim does not properly plead a federal constitutional basis, but the
facts alleged come within the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), which holds
the State has a duty to produce exculpatory evidence in a criminal case. If the State withholds
29

evidence and it is material, the conviction must be reversed.
In the alternative, Respondent asserts the claim is procedurally defaulted because it was
presented for the first time on Wilson’s appeal from denial of his second post-conviction petition
and Wilson never presented any evidence of a Brady violation. Specifically, as to a possible
gunshot residue test, the testimony at trial was that no such test had been conducted and Wilson
has produced no evidence to the contrary. Ground Seven should therefore be dismissed.

Ground Eight: Erroneous Jury Instructions

In his Eighth Ground for Relief, Wilson claims he was denied his rights to due process and
a fair trial when the trial court refused to instruct the jury (1) on the defense of defense of
another, (2) on the lesser included offense of assault, and (3) on the inferior degree offense of
aggravated assault.
The Warden asserts this Ground for Relief is procedurally defaulted because it was raised
only as a state law claim in the Ohio courts (Return of Writ, ECF No. 32, PageID 5901). On
examining Wilson’s Brief on appeal, the Court finds that he cited only Ohio cases and indeed did
not make any reference to the United States Constitution (State Court Record, ECF No. 31, Exh.
16, PageID 4249-56).
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.), cert. denied, 509 U.S. 907 (1993), overruled in part on other

30

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. 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).
A state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that
court must read beyond a petition, a brief, or similar papers to find material that will alert it to
the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004). When a defendant does so
little to present his claim that it has not been fairly presented, then the presumption under
Harrington v. Richter that the state court decided the claim on the merits is “fully rebutted.”
Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088, *; 185 L. Ed. 2d 105 (2013).
Alternatively, Ground Eight is without merit. Errors in jury instruction give rise to
federal constitutional claims only in the rarest of instances, e.g., if a trial court would instruct a
jury that they could convict on a preponderance of the evidence. In order for habeas relief to be
warranted on the basis of incorrect jury instructions, a petitioner must show more than that the
instructions are undesirable, erroneous, or universally condemned; taken as a whole they must be
so infirm that they rendered the entire trial fundamentally unfair. Henderson v. Kibbe, 431 U.S.
145 (1977). The only question for a habeas court to consider is "whether the ailing instruction
by itself so infected the entire trial that the resulting conviction violates due process." Estelle v.
McGuire, 502 U.S. 62 (1991), quoting Cupp v. Naughten, 414 U.S. 141 (1973). The category of

31

infractions that violate fundamental fairness is very narrow. Byrd v. Collins, 209 F.3d 486 (6th
Cir. 2000), citing Dowling v. United States, 493 U.S. 342, 352 (1990). There is no constitutional
requirement to give a lesser included offense instruction in a non-capital case. Campbell v.
Coyle, 260 F.3d 531, 541 (6th Cir. 2001); Bagby v. Sowders, 894 F.2d 792, 795-97.
Ground Eight should therefore be dismissed.

Ground Nine: Denial of Impeachment by Prior Convictions

In his Ninth Ground for Relief, Wilson claims he should have been allowed to impeach
State’s witness Eugene Talbott with Talbott’s prior criminal conviction. Wilson argued this
claim purely as a state law claim on appeal to the Second District. That court rejected the claim
because Wilson’s counsel had not shown whether the conviction was for a felony or
misdemeanor and whether it was in the last ten years. State v. Wilson, C.A. Case No. 22581,
2009-Ohio-525, ¶ 70, 2009 Ohio App LEXIS 460 (2nd Dist. Feb. 6, 2009).

That is an

indisputably correct decision under Ohio R. Evid. 609. Because this claim was not presented as
a federal constitutional claim to the Second District, it is procedurally defaulted. Moreover, it is
without merit as no clearly established Supreme Court precedent mandates the impeachment
attempted here.
Ground Nine should be dismissed.

Ground Ten: Admission of Hearsay

In his Tenth Ground for Relief, Wilson complains of admission of the testimony of

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several police officers as to the content of video surveillance tapes without their having been
qualified as experts in the authentication of video evidence.
No provision of the United States Constitution requires a witness to be qualified as an
expert to testify to the content of a video recording. Ground Ten should be dismissed.

Ground Eleven: Selective Prosecution

In his Eleventh Ground for Relief, Wilson claims he is the victim of selective
prosecution.
Selective prosecution claims are appropriately judged by ordinary equal protection
standards. Cornwell v. Bradshaw, 559 F. 3d 398, 411 (6th Cir. 2009), citing Wayte v. United
States, 470 U.S. 598, 608 (1985).
There is no right under the Constitution to have the law go
unenforced against you, even if you are the first person against
whom it is enforced, and even if you think (or can prove) that you
are not as culpable as some others who have gone unpunished.
The law does not need to be enforced everywhere to be
legitimately enforced somewhere, and prosecutors have broad
discretion in deciding whom to prosecute.
Futernick v. Sumpter Township, 78 F.3d 1051 (6th Cir., 1996), citing Wayte, 470 U.S. at 607
(choice to prosecute only those non-registrants for Selective Service who inform the government
of their intention not to register.) To succeed, a defendant must show that he was picked for
prosecution on some invidious discriminatory basis while other persons who do not fit that
classification were not prosecuted. Even in his habeas petition, Wilson makes no claim that he
was selected for prosecution on an impermissible basis.
Second, the claim is procedurally defaulted because it was not raised on direct appeal to

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the Second District Court of Appeals.
Ground Eleven should be dismissed.

Ground Twelve: Improper Imposition of Financial Sanctions

In his Twelfth Ground for Relief, Wilson claims the trial court imposed financial
sanctions on him without following proper procedure under Ohio law.

This claim is not

cognizable in federal habeas corpus, which is directed only to claims of unconstitutional custody.
Moreover, this claim was not raised on direct appeal.
Ground Twelve should be dismissed.

Ground Thirteen: Failure to Instruct on Mens Rea During Voir Dire

In his Thirteenth Ground for Relief, Wilson claims he was denied due process when the
trial judge did not instruct on mens rea during voir dire. This Ground should be dismissed
because no Supreme Court precedent requires such an instruction.

Second, the claim is

procedurally defaulted because it was never presented to the Second District Court of Appeals on
direct appeal.
Ground Thirteen should be dismissed.

Ground Fourteen: Failure to Excuse Biased Jurors

In his Fourteenth Ground for Relief, Wilson claims Jurors Sherrer and Thornton should

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have been excused because Juror Sherrer had a family relationship with Rayshawn Sherrer who
was known to be a person of interest to the police regarding this crime and because Juror
Thornton is believed to have been related to Officer Thornton, a State’s witness.
This Ground for Relief is procedurally defaulted. The claim was raised for the first time
in Wilson’s Application to Reopen under Ohio R. App. P. 26(B) which was denied on various
well-stablished state procedural grounds and also on the merits. It was also raised as a claim in
Wilson’s second petition for post-conviction relief under Ohio Revised Code § 2953.23 which
was also dismissed on procedural ground.
Ground Fourteen should be dismissed.

Ground Fifteen: Trial Court Ex Parte Communication with the Jury

Ground Fifteen should be dismissed as procedurally defaulted because, although it is part
of the record, it was not raised on direct appeal.

Ground Sixteen: Disproportionate Sentencing

In his Sixteenth Ground for Relief, Wilson complains that his sentence is
disproportionate to the sentence of the principal offender.
This Ground for Relief is without merit. While the Supreme Court has interpreted the
Eighth Amendment to contain a proportionality principle, the Amendment does not require strict
proportionality between crime and sentence when comparing two offenders convicted in the
same incident. Harmelin v. Michigan, 501 U.S. 957 (1991). Wilson has not shown that the

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sentence in this case is an unreasonable application of Harmelin.
Ground Sixteen should be dismissed.

Ground Seventeen: Denial of Fair Trial by Dictating Trial Clothing

Wilson claims he was denied a fair trial when the trial court did not permit him to wear at
trial clothing furnished by his family. He was compelled to wear the same shirt and pants all five
days of the trial, which he asserts would cause the jury to infer he was in custody.
This Ground is procedurally defaulted because it was never raised as an objection in the
trial court. 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, 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); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).
Ground Seventeen should be dismissed.

Ground Eighteen: Failure to Allow Access to Public Records

In his Eighteenth Ground for Relief, Wilson complains that the trial court would not

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allow him access to public records he claims he needed “to support pending litigation.” As the
Warden argues, this claim does not plead any violation of the United States Constitution and
should be dismissed.

Ground Nineteen: Denial of Speedy Trial

Wilson claims his right to a speedy trial was denied when the trial was delayed as long as
it was. This claim is procedurally defaulted because it was never raised on direct appeal to the
Second District and it should be dismissed.

Ground Twenty: Failure to Conduct a De Novo Sentencing Hearing

Wilson claims the trial court violated Ohio law when it did not conduct a full de novo resentencing hearing when it corrected the judgment to show that conviction had been by a jury
and that post-release control had been properly imposed. On its face, this is merely a claim of
violation of state law and not cognizable in habeas corpus. Ground Twenty should be dismissed.

Ground Twenty-One: Improper Correction of the Indictment

As with Ground Twenty, this is purely an Ohio law claim and should be dismissed on
that basis.

Ground Twenty-Two: Judicial Signature by Rubber Stamp

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In this Ground, Wilson claims the judgment entry was not properly signed as required by
Ohio R. Cr. P. 32. Again, this is purely a state law claim and should be dismissed on that basis.

Ground Twenty-Three: Failure to Adequately Notify of a Video Conference

In this Ground for Relief, Wilson claims he received insufficient notice of a video
appearance for re-sentencing on February 23, 2011.
While a criminal defendant has a right to notice of a hearing in sufficient time to prepare,
the Second District Court of Appeals found that no objection was made and in any event the
defendant and his counsel were prepared (Decision, State Court Record, ECF No. 31-2, PageID
5571-72). Those findings of fact are binding on this Court. Thus the claim is both procedurally
defaulted for lack of contemporaneous objection and without merit. The Second District decided
the notice was adequate. 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, 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).
Ground Twenty-Three should be dismissed.

Ground Twenty-Four: Improper Reliance on Res Judicata

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In this Ground for Relief, Wilson claims the Ohio courts improperly applied the doctrine
of res judicata to his request on re-sentencing. Whether or not Ohio properly applied its own
res judicata doctrine is a question of Ohio law which is not cognizable in habeas corpus.
Ground Twenty-Four should be dismissed.

Ground Twenty-Five: Failure to Properly Impose a Sentence for Complicity

The question presented is purely one of state law not cognizable in habeas corpus.
Ground Twenty-Five should be dismissed.

Ground Twenty-Six: Failure to Conduct a Competency Evaluation

As noted in the Return (ECF No. 32, PageID 5923), the Second District held this claim
was barred by res judicata because it was available on the direct appeal record and not raised.
As noted above, the Sixth Circuit has repeatedly held Ohio’s res judicata doctrine is an adequate
and independent state ground of decision. Ground Twenty-Six should be dismissed.

Ground Twenty-Seven: Various Challenges to the Jury

As noted in the Return (Id. at PageID 5924), this claim was available in the trial court
record, but not raised on direct appeal and is therefore procedurally defaulted on the basis of res
judicata. Ground Twenty-Seven should be dismissed.

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Ground Twenty-Eight: Denial of Right to Public Trial

In Ground Twenty-Eight, Wilson claims the trial court denied him his right to a public
trial by not allowing his family, friends, and other “partial” persons to be present for voir dire or
for the evidentiary hearing on his motion for new trial. The first part of this claim is barred by
res judicata because it was not presented on direct appeal. The second part is barred by
Wilson’s failure to present it on appeal from denial of the motion for new trial.
Ground Twenty-Eight should be dismissed.

Ground Twenty-Nine: Ineffective Assistance of Trial Counsel on the Motion for New Trial

In this Ground for Relief, Wilson claims his attorney at the motion for new trial hearing
provided ineffective assistance.
The right to appointed counsel extends to the first appeal of right and no further.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).
Ineffective assistance of counsel can excuse procedural default only when it occurs in a
proceeding where a defendant is constitutionally entitled to counsel under the Sixth Amendment.
Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there
can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5
(6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
This Ground for Relief therefore does not state a claim cognizable in habeas corpus and
should be dismissed on that basis.

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Ground Thirty: Denial of Self-Representation

In Ground Thirty, Wilson claims he was deprived of his right to self-representation when
the court denied his request to represent himself in the evidentiary hearing on his motion for new
trial. This Ground does not state a federal constitutional violation. There is a constitutional right
for a competent defendant to represent himself at trial. Faretta v. California, 422 U.S. 806, 835
(1975). However, the Supreme Court has not extended that right beyond trial and has expressly
denied it applies on direct appeal. Martinez v. Court of Appeal of California, Fourth Appellate
Dist., 528 U.S. 152 (2000). Wilson has failed to show that the Ohio courts’ decision on this
claim is an unreasonable application of Fareta and Martinez.

Ground Thirty should be

dismissed.

Ground Thirty-One: Denial of Due Process in Post-Conviction

In Ground Thirty-One, Wilson complains that the State failed to provide required service
in his Ohio Revised Code § 2953.21 post-conviction relief proceeding. Post-conviction state
collateral review is not a constitutional right, even in capital cases. Murray v. Giarratano, 492
U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987); Estelle v. Dorrough, 420 U.S. 534,
536 (1975); Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986)(claims of denial of due process and
equal protection in collateral proceedings not cognizable in federal habeas because not
constitutionally mandated). Accord, Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001);
Johnson v. Collins, 1998 WL 228029 (6th Cir. 1998); Trevino v. Johnson, 168 F.3d 173 (5th Cir.

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1999); Zuern v. Tate, 101 F. Supp. 2d 948 (S.D. Ohio 2000), aff’d., 336 F.3d 478 (6th Cir. 2003).
Ground Thirty-One fails to state a claim on which habeas corpus relief can be granted
and should be dismissed on that basis.

Ground Thirty-Two: Failure to File Appropriate Final Judgment Entry

In his Thirty-second Ground, Wilson raises again the claim of an improper judicial
signature on the judgment entry that he made in Ground Twenty-two. It should be dismissed on
the same basis, to wit, that it is purely a state law claim. Ground Thirty-Two should be
dismissed.

Ground Thirty-Three: Improper Application of Res Judicata

In Ground Thirty-Three Wilson claims the state courts violated his constitutional rights
by applying the doctrine of res judicata to his re-sentencing claim. As noted above, the Sixth
Circuit has repeatedly upheld Ohio’s criminal res judicata doctrine as an adequate and
independent state ground of decision. Ground Thirty-Three should be dismissed.

Ground Thirty-Four: Failure to Impose a Sentence for Complicity

In this Ground for Relief, Wilson raises again the claim made in Ground Twenty-Five. It
should be dismissed on the same basis.

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Ground Thirty-Five: Refusal of the Court of Appeals to Certify a Conflict

In his last Ground for Relief, Wilson claims the Second District erred when it refused to
certify a conflict between its position on a question of law and that of the First and Ninth
Appellate Districts.
This Ground fails to state a claim upon which habeas corpus relief can be granted. There
is no constitutional right to have a state supreme court resolve conflicts among the decisions of
intermediate appellate courts. However desirable it is to have one statement of legal principle for
the whole State, the federal Constitution imposes no such requirements. Ground Thirty-Five
should also be dismissed.

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 and therefore should not be permitted to
proceed in forma pauperis.

August 27, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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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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