Cox v. Warden Chillicothe Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 10/23/2015. Signed by Magistrate Judge Michael R. Merz on 10/6/2015. (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
VERNON LEE COX, JR.,
Petitioner,

:

- vs -

Case No. 3:15-cv-098
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Vernon Cox brought this habeas corpus action under 28 U.S.C. § 2254 to
obtain relief from his conviction in the Montgomery County Common Pleas Court for a number
of sexual offenses and his consequent imprisonment (Petition, ECF No. 1, PageID1 1). Petitioner
has also filed an extensive Brief supplementing the Petition (ECF No. 4). On the Court’s Order
(ECF No. 2), the Warden has filed the State Court Record (ECF Nos. 5, 7) and a Return of Writ
(ECF No. 6). Cox has filed a Reply (ECF No. 10), making the case ripe for decision.

1

When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.

1

Procedural History

Cox was indicted by the Montgomery County grand jury in September 2011 on numerous
counts of criminal sexual behavior involving his step-daughter, C.F., and one count involving a
neighbor child, A.C. On his motion, the count involving A.C. was severed and he pled guilty to
that charge after the trial jury convicted him on fifteen counts involving C.F. He appealed,
raising nine assignments of error, but the Second District Court of Appeals affirmed, State v.
Cox, 2013-Ohio-4941, 2013 Ohio App. LEXIS 5144 (2nd Dist. Nov. 8, 2013),2 and the Ohio
Supreme Court declined to exercise jurisdiction over a subsequent appeal. State v. Cox, 138
Ohio St. 3d 1436 (2014).
On July 9, 2013, Cox filed a petition for post-conviction relief under Ohio Revised Code
§ 2953.21. After the trial court granted the State summary judgment, Cox appealed. The Second
District again affirmed. State v. Cox, 2015-Ohio-894, 2015 Ohio App. LEXIS 887 (2nd Dist.
Mar. 13, 2015). Cox did not appeal to the Ohio Supreme Court.
On January 28, 2014, Cox filed an Application for Reopening the Appeal under Ohio R.
App. P. 26(B) which was denied. Cox did not appeal to the Ohio Supreme Court.
On May 19, 2014, Cox filed a motion for re-sentencing on the theory that the sentencing
order in his case was void and a non-final appealable order. The trial court denied the motion,
the court of appeals affirmed, State v. Cox, 2015-Ohio-895, 2015 Ohio App. LEXIS 879 (2nd
Dist. Mar. 13, 2015), and Cox did not further appeal.
Cox filed his Petition in this Court on March 18, 2015 in which he pleads the following
grounds for relief:
2

Citations herein to “Cox, supra,” are to this decision.

2

Ground One: There was insufficient evidence to find petitioner
[guilty] on the charges [of which] he was convicted.
Supporting Facts: Petitioner’s convictions must be overturned
due to insufficient evidence, for as the evidence presented failed to
prove beyond a reasonable doubt that petitioner has committed the
crimes he was accused of, which violated his Due Process rights
under the Fourteenth Amendment.
Ground Two: Under the confrontation clause of the Sixth
Amendment, petitioner was limited to the questioning regarding
herpes, and also not allowed to call to the stand Detective Mitchell
regarding the missing notes.
Supporting Facts: The defense was limited on the questions he
could ask regarding the herpes virus. This violated his Sixth
Amendment right to present a proper defense. Petitioner was also
precluded from calling to the witness stand the lead detective on
the case, Detective Mitchell. He was excused by the court from
testifying due to some illness even the exculpatory evidence was
handled by him and lost. Ms. Brockert notes were given to him and
he could have testified as to what happened to them or what was in
the notes.
Ground Three: Cumulative Errors
Supporting Facts: Due to the numerous errors in the trial court,
there was a cumulative effect that denied petitioner a fair trial. A
few of these errors: 1) extraneous information received by jury; 2)
witness tampering; 3) disappearance of Ms. Brockert’s notes
(exculpatory evidence); 4) state’s exhibits 1(A) and 1(B) allowed
in as evidence for jury to look at during deliberations was
prejudicial.
Ground Four: Ineffective Assistance of Trial Counsel under the
Sixth Amendment.
Supporting Facts: Counsel was ineffective for allowing the
testimony of Dr. Miceli, for not making a more thorough
investigation regarding the herpes virus, and also by not forcing
the court to have Detective Mitchell testify. Defense counsel also
failed to call a witness to the stand that could testify in regards to
his work records which could have established an alibi for the
alleged abuse. Also during plea bargaining phase.

3

Ground Five: Use of the grand jury testimony to impeach the
alleged victim due to her inconsistencies.
Supporting Facts: Defense counsel attempted to show, through
C.F.’s grand jury testimony, that what she stated at the beginning,
and what she is claiming now are inconsistent. Defense proved
that, however the court erred when it refused to impeach her as a
witness, which was the prosecution’s entire case.
Ground Six: Expert Testimony of Dr. Miceli was prejudicial to
petitioner, since it was irrelevant and only bolstered C.F.’s
testimony.
Supporting Facts: The prosecution call as an expert witness in
child psychology, Dr. Miceli to the stand, however, she had
nothing to offer the case since she never interviewed the alleged
victim, never viewed any of the videos or any other material
regarding the case. Her testimony was solely based on what the
prosecution had told her. Dr. Miceli testified on delayed reporting
to bolster the alleged victim’s testimony, however delayed
reporting in not an “exact science like that of DNA and
Fingerprinting. [sic]
Ground Seven: Ineffective assistance of appellate counsel.
Supporting Facts: During petitioner’s direct appeal, his counsel
did not properly argue the “grounds” for relief he presented. If
counsel did a more thorough job by citing precedent case law to
back up his arguments, the proceedings may have turned out
differently.
Ground Eight: Petitioner’s constitutional rights were violated
under the Sixth Amendment since a judge made the determination
to give him max/consecutive sentences, not a jury.
Supporting Facts: Petitioner was given the max/consecutive
sentences under a felony of the first degree. The 129th General
Assembly passed House Bill 86 on September 30, 2011, and their
interpretation of HB 86 was that first time offenders receive nonmaximum/concurrent sentences.
Ground Nine: The Appellate District misapplied sufficiency of
the evidence standard and should have applied the “No Evidence”
standard.

4

Supporting Facts: There was no evidence in petitioner’s case to
convict him on any of the 16 counts, and the Second Appellate
District misapplied established federal law under the “No
Evidence” standard as set by Thompson.
(Petition, ECF No. 1)

ANALYSIS

Ground One: Insufficient Evidence

In his first ground for relief, Cox asserts he was convicted on insufficient evidence. The
Warden does not argue that merits review is barred by any procedural defense (Return of Writ,
ECF No. 6, PageID 811), so the Court turns directly to the merits.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);

5

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
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
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); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc).
6

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).
Cox presented insufficiency of the evidence as his first assignment of error on direct
appeal, The Second District decided the claim as follows:
[*P25] In his first assignment, Cox contends that the State

adduced insufficient evidence to establish the element of force or
threat of force to convict him of forcible rape. Additionally, Cox
argues in his third assignment that the his [sic] convictions for rape
by force or threat of force were against the manifest weight of the
evidence. As previously noted, Cox was charged with committing
four counts of rape by force or threat of force in Counts VII and IX
of the "A" indictment and Counts III and V of the “B” indictment.
[*P26] "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, 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
7

should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.'" Id.
[*P27] 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). "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).
[*P28] 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).
[*P29] Cox was convicted of four counts rape in violation of
R.C. 2907.02(A)(2), in that he engaged in sexual conduct with

another, purposely compelling the other person to submit by force
or threat of force. In State v. Eskridge, 38 Ohio St. 3d 56, 526
N.E.2d 304 (1988), the Ohio Supreme Court held that the force
and violence necessary to commit the crime of rape depends upon
the age, size and strength of the parties and their relation to each
other. With the filial obligation of obedience to a parent, the same
degree of force and violence may not be required upon a person of
tender years, as would be required were the parties more nearly
equal in age, size and strength. In Eskridge, the Court noted the
age difference and disparity in size between Eskridge and his fouryear old daughter who was the victim. Chief Justice Moyer noted
the following at page 58 of the Court's opinion:
We also recognize the coercion inherent in parental
authority when a father sexually abuses his child.
"***Force need not be overt and physically brutal, but
can be subtle and psychological. As long as it can be
shown that the rape victim's will was overcome by fear or
duress, the forcible element of rape can be established.
State v. Martin (1946), 77 Ohio App. 553 [33 O.O.
364, 68 N.E.2d 807]; State v. Wolfenberger (1958),
106 Ohio App. 322 [7 O.O. 2d 73]. In the within case,

8

we are confronted with a child being told to do something
by an important figure of authority, and commanded not
to tell anyone about it. In such a case, we find nothing
unreasonable about a finding that the child's will was
overcome. Consequently, the forcible element of rape was
properly established." State v. Fowler (1985), 27 Ohio
App. 3d 149, 154, 27 OBR 182, 187, 500 N.E. 2d 390,
395.

[*P30] In State v. Hiles, 2d Dist. Montgomery No. 13803,
1994 Ohio App. LEXIS 483, 1994 WL 43102 (Feb. 11, 1994),

we sustained the defendant's conviction of six counts of gross
sexual imposition in violation of R.C. 2907.05 (A)(1). The victim
of Hiles' conduct was his fifteen year old daughter. His sexual
conduct included the caressing of her body, including her buttocks
and breasts, while he and his daughter were in bed, or on a couch,
or the floor. On another occasion, he rubbed her body with lotion
including her buttocks and breasts. The daughter testified she never
expressed an objection to or resisted her father's behavior, because
he threatened to kill her if she reported the activity. Judge Grady
wrote on behalf of this court in 1994 Ohio App. LEXIS 483, [WL]
at *3:
At the time of these offenses A.H. was fifteen and sixteen
years of age. If the rule of law espoused in Eskridge
applies at all in this case, it would not apply as it might if
the child victim was much younger. The necessary
element of force required by R.C. 2907.05(A)(1) is not
satisfied by the mere fact that the offender is the victim's
parent or by some subjective belief or feeling on the part
of the victim that submission is required. Some showing
by the State that the offender, through his own acts,
compelled the victim to submit to sexual contact by "force
or threat of force," however slight, is required.
We affirmed the defendant's convictions in Hiles because the
victim testified she did not resist him because she feared what he
might do to her.
[*P31] The facts in the instant case mirror those set forth in
State v. Marrs, 2d Dist. Montgomery No. 18903, 2002-Ohio3300. In Marrs, the female victim was eleven years old when the

defendant, her step-father, raped her. The defendant was known as
a strict disciplinarian in the home and often punished the victim for
disobedience by spanking her or grounding her for months at a
time. Id. When the rape occurred, the defendant entered the
victim's room while she was asleep and took her underwear off. Id.
9

The victim woke up while the defendant was performing oral sex
on her. Id. The victim testified that she did not want the defendant
to do what he was doing, but she felt that she had no choice. Id.
The victim further testified that she was afraid of the defendant
because he was in charge of the home, and he was the person who
punished her. Id. The victim believed that she would get into more
trouble if she attempted to stop him. Id. The defendant had also
told the victim to remain silent regarding the abuse or he would
make her look like a liar. Id.
[*P32] Like the defendant in Marrs, Cox was C.F.'s step-father.
C.F. was approximately eleven or twelve years old when Cox
committed the three rapes (digital, oral, and penile) in his house on
Rosebury Drive when M.C., C.F.'s step-sister, was present but
asleep in the same bed. During that incident, Cox removed C.F.'s
pants and underwear before he inserted his finger into her vagina.
Cox then penetrated C.F.'s vagina with his penis, after which he
placed his mouth on her vagina.
[*P33] C.F. testified that she was between the ages twelve and
fourteen when Cox forced her to engage in oral sex during the
incident in the kitchen at the Orchard Hill apartment. During this
incident, Cox blindfolded C.F. and directed her on how to perform
after he placed his erect penis in her mouth. Specifically, C.F.
testified that "he was telling me to taste it better. I would — I need
to use my tongue and like lick it or whatever."
[*P34] Cox was also the primary disciplinarian and father figure

in the house. C.F. testified that she was physically afraid of him.
C.F. and her brother, A.C., testified that Cox was strict and that
when they got into trouble, he punished them by forcing them to
stand in a line and pull their pants down. Cox would then "whoop"
them with a belt. C.F. testified that there was a rule in the house
that the children could not say "no" to Cox. C.F. testified that she
did not want Cox to touch her, but she thought she would get into
more trouble if she tried to stop him. C.F. further testified that she
was afraid of the financial consequences to her family if she
attempted to stop Cox from raping her because he was their
"livelihood." C.F. testified that Cox used to say "[m]y way or the
highway" because he was the "ruler" of the house. Moreover, C.F.
testified that on occasion, she attempted to hint to her mother
regarding the abuse that was being inflicted upon her by Cox. C.F.
testified that her mother would always tell Cox about the hints, and
thereafter, her punishments would increase in severity.
[*P35]

Construing the evidence presented in a light most
10

favorable to the State, as we must, we conclude that a rational trier
of fact could find all of the essential elements of the crime of rape
to have been proved beyond a reasonable doubt, including that Cox
compelled C.F. to submit by force or threat of force. Cox's
convictions are supported by legally sufficient evidence.
State v. Cox, supra.
Cox also presented an insufficiency of the evidence claim as his second assignment of
error on direct appeal. The Second District decided that claim as follows:
[*P41] In his second assignment, Cox asserts that the State

presented insufficient evidence of penile penetration to satisfy the
sexual conduct element in Count IX of the "A" indictment.
Specifically, Cox argues that C.F.'s testimony demonstrates that
she was unsure and confused regarding whether Cox inserted his
penis into her vagina. Thus, Cox asserts that, pursuant to the
standard we set forth in State v. Lucas, 2d Dist. Montgomery No.
18644, 2001-Ohio-1350, C.F.'s testimony about the vaginal rape
that occurred at Rosebury was insufficient to establish that penile
penetration occurred. In his fourth assignment, Cox contends that
the jury's finding that he vaginally raped C.F. using his penis was
against the manifest weight of the evidence.
[*P42] R.C. 2907.01(A) states as follows:

(A) "Sexual conduct" means vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
cavity of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
[*P43] Lucas involved a charge of vaginal rape. 2d Dist.
Montgomery No. 18644, 2001-Ohio-1350. The evidence showed

that the defendant had rubbed his penis across the victim's vaginal
area. We held that the evidence was insufficient to show
penetration, and that in order to prove vaginal rape there must be
evidence that the force of the object caused the labia, which form
the outer lips of the victim's vagina, to spread. Id. Absent that, and
depending on the circumstances, only attempted vaginal rape is
shown.
[*P44] In the instant case, C.F. testified as follows regarding the

11

penile rape that occurred at Rosebury Drive while her step-sister
was present in the bed but sleeping:
The State: With respect to he [Cox] put his fingers inside of you,
and then you said he also used his penis. Was he dressed or not
dressed?
C.F.: He had his pants unbuttoned. Or his pants like he [sic] penis
was out.
Q: I'm sorry.
A: His penis was out, but he had his pants on still a little bit, I
think.
Q: And do you remember whether his penis was soft —
A: It was hard.
Q: It was hard. And what did you do with his penis?
A: He tried to put it inside me but being so young, I guess it didn't
exactly work out that way.
Q: Okay. So he tried to put it inside. Okay. I'm going to ask you a
couple more questions about what you mean by that. Did his penis
make contact with your vagina?
A: Yes.
Q: Did he at any point start pushing it in your vagina?
A: He tried.
Q: Did it get in your vagina at all?
A: I mean a little bit but it — I was so small as a kid, I mean I don't
know. I don't —
Q: It —
A: It did. It — he tried, but it didn't go all the way in.
Q: So it got in a little bit.
A: Yes.
12

Q: And how did that feel for you?
A: It didn't feel good. It hurt.
Q: Worse than the fingers?
A: Yes.
[*P45] Penetration of the vaginal cavity requires introduction of
an object from without, which necessarily implies some forceful
spreading of the labia majora. The penetration need only be
"slight." R.C. 2907.01(A). Therefore, if the object is introduced
with sufficient force to cause the labia majora to spread,
penetration has occurred. C.F.'s testimony, if believed, is sufficient
to permit the jury to reasonably conclude that Cox's conduct in
inserting his penis "a little bit" into C.F.'s vagina necessarily
caused the labia majora to spread. C.F.'s testimony was not
confusing nor was she unsure whether Cox had penetrated her
vagina with his penis. C.F. was only explaining that because she
was young and small when the rape occurred, Cox was only able
insert his penis a little bit into her vagina. C.F.'s testimony is
legally sufficient to establish vaginal penetration to support Cox's's
[sic] conviction for rape. Lucas, 2d Dist. Montgomery No. 18644,
2001-Ohio-1350.
[*P46] Further, Cox's conviction for rape is not against the
manifest weight of the evidence. The trial court did not lose its
way simply because it chose to believe C.F. who affirmatively
testified that Cox penetrated her vagina with his penis while at his
house on Rosebury Drive. Having reviewed the entire record, we
cannot clearly find that the evidence weighs heavily against a
conviction, or that a manifest miscarriage of justice has occurred.
[*P47] Cox's second and fourth assignments of error are
overruled.

State v. Cox, supra.
To prevail on his First Ground for Relief, Cox must show that the Second District’s
decision, the last reasoned state court decision on this claim, was an objectively unreasonable
application of clearly established United States Supreme Court precedent, in this case, Jackson v.

13

Virginia, supra. Cox does not quarrel with the law the Second District applied and in fact State
v. McKnight, supra, relied on by Judge Donovan, is a correct restatement of the Jackson
standard.
Cox principally faults the Second District for reviewing only the testimony of the
complaining witness, C.F., and not the entire record (Response to Return, ECF No. 10, PageID
1640). This argument confuses the fundamental difference between a sufficiency of the evidence
claim, which is a matter of constitutional law under the Fourteenth Amendment, and a manifest
weight of the evidence claim, which arises only under state law. The Jackson standard, followed
in McKnight and by the Second District here, is whether there is any evidence which, if believe
by the jury and without weighing it against opposing evidence, is sufficient – that is, testimony to
all of the elements of the crime(s) by a person with sufficient knowledge of what happened to
testify. Judge Donovan was perfectly correct in focusing on the victim’s testimony because the
testimony of a victim alone can be sufficient evidence, especially in a sexual misconduct case
where the behavior is likely to have been carried out in secret.

"[T]his Court has long held that the testimony of the victim alone
is constitutionally sufficient to sustain a conviction." Tucker v.
Palmer, 541 F.3d 652, 658 (6th Cir. 2008), citing United States v.
Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the
prosecuting witness, if believed by the jury, is sufficient to support
a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492,
500 (6th Cir. 2007) (holding that victim's testimony that habeas
petitioner abducted her and raped her was constitutionally
sufficient to sustain conviction despite lack of corroborating
witness or physical evidence); United States v. Howard, 218 F.3d
556, 565 (6th Cir. 2000) (holding that even if the only evidence
was testimony of the victim, that is sufficient to support a
conviction, even absent physical evidence or other corroboration);
United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (noting
that there is sufficient evidence to support a conviction even if the
"circumstantial evidence does not remove every reasonable

14

hypothesis except that of guilt") (internal quotation marks
omitted).
Bohannon v. Warden, 2013 U.S. Dist. LEXIS 148355, *31-32 (S.D. Ohio Oct. 4, 2013) (Merz,
M.J.)
Cox’s other argument is that it is somehow a violation of the Fifth Amendment privilege
against self-incrimination for the Warden to mention that he himself did not testify (Response,
ECF No. 10, PageID 1641-43, citing Return of Writ, Doc. No. 6, at PageID 809 and 821-22.)
This argument evinces a misunderstanding of the Fifth Amendment privilege. It is certainly true
that a criminal defendant has the right not to testify at trial and no comment may be made on the
exercise of that right. In fact, it would be reversible error to call a criminal defendant to the
stand and force him or her to claim the privilege in the presence of the jury. But there are costs
to the exercise of the privilege. If the defendant is the only other eyewitness to the alleged crime
besides the victim and he or she elects not to testify, then the jury will hear only the victim’s side
of the story. The defendant is not entitled to claim that a victim’s testimony is not credible on
the basis of hypothetical testimony he or she could have given but did not give because of
exercising the Fifth Amendment right not to testify.
In this case Cox points to no reference by the prosecutor in the presence of the jury to his
failure to testify. That is quite different from pointing out to appellate and habeas courts that the
defendant was a witness but did not take the stand to defend himself.
The Second District’s decision is an objectively reasonable application of Jackson, supra.
In the Return of Writ, the Warden assumed Cox was not challenging his conviction on
the count charging sexual misconduct with another child, the count that was severed from trial on
the other counts, on Cox’s motion. In his Response, Cox says that is not so. He admits pleading
guilty to that count, but claims his plea was involuntary and should be set aside (Response, ECF
15

No. 10, PageID 1643-45). However, because Cox never raised that claim in the state courts and
now has no state court forum in which he could raise it, the claim is procedurally defaulted.
The First Ground for Relief should therefore be dismissed with prejudice.

Ground Two: Confrontation Clause/Right to Present a Defense

In his Second Ground for Relief, Cox claims his rights under the Confrontation Clause
were violated when (1) his counsel was limited in the questions he could ask about herpes, and
(2) he was unable to call Detective Mitchell to testify.

While Cox has labeled this as a

Confrontation Clause claim, he argues it as a right to present a complete defense which is also
protected by the Sixth Amendment. There is no actual Confrontation Clause presented because
the State did not present any testimonial statements which Cox did not have the opportunity to
confront.

Sub-claim One: The Herpes Defense

The first part of Ground Two – the herpes defense – was presented as the eighth
assignment of error on direct appeal. The Second District decided the claim as follows:
[*P69]

Cox's eighth assignment of error is as follows:

[*P70] "THE TRIAL COURT ERRED IN LIMITING THE USE
OF EVIDENCE OF THE APPELLANT WITH HERPES AND
THE LACK OF SUCH DISEASE IN THE COMPLAINANT."
[*P71] In his eighth assignment, Cox contends that the trial court
erred when it limited him from introducing evidence regarding the
16

fact that he was infected with herpes and passed it along to women
with whom he had sex, but did not give it to C.F.
[*P72] Upon review, the record establishes that Cox was
permitted to thoroughly explore the topic of his herpes condition
during trial. Specifically, defense counsel called Dr. Jodi Van Jura
who testified that Cox tested positive for herpes Types 1e and 2 in
June of 2012. Defense counsel also elicited testimony from G. that
she was positive for herpes Type 2 which she stated that she had
contracted prior to 2007. Defense counsel questioned the
defendant's current wife, who testified that she, too, tested positive
for the herpes virus. Lastly, defense counsel was permitted to elicit
testimony from Dr. Lori Vavul-Roediger that C.F. had tested
negative for the herpes virus on June 7, 2010. Clearly, the trial
court did not prevent defense counsel from making the argument to
the jury that Cox must not have sexually abused C.F. because she
wasn't infected with the herpes virus.
[*P73] Upon review, we conclude that there is no evidence in the
record which establishes that the trial court improperly limited
defense counsel's ability to elicit testimony from the witnesses
regarding Cox's herpes infection and those he may have or may
have not passed it along to through sexual conduct.
[*P74] Cox's eighth assignment of error is overruled.
State v. Cox, supra.
In his Response, Cox complains of limitations placed on the scope of the questions he
was allowed to ask Georgetta Cox about her herpes infection (ECf No. 10, PageID 1646, citing
to Tr. Tran. Pp. 317-25, PageID 1158, et seq..)

At PageID 1158, defense counsel asked

Georgetta Cox if she had herpes. This elicited an objection and a lengthy sidebar discussion
about whether the defense had provided appropriate discovery about this issue.

After the

sidebar, Judge Tucker overruled the objection and allowed the witness to answer yes, that she did
indeed have herpes (Id. at PageID 1166). That was Mr. Lennen’s last question of this witness;
Judge Tucker allowed her to answer the only question that was put to her about herpes. Cox
cites to no other place in the record where Mr. Lennen’s questioning of witnesses about herpes

17

was limited. In contrast, the Second District cites several other pieces of evidence on the herpes
defense which Cox was able to present. Cox has been provided with the transcript of the trial. If
there are other places in the record where his counsel was improperly limited on this topic, he
should have cited them to the Court. In his Brief on appeal, assisted by counsel, he also does not
provide any record references to which the Second District or this Court could refer.
In sum, Cox has not shown any unconstitutional limitations were placed on his
presentation of a defense.

The Second District’s decision on this point is an objectively

reasonable application of Supreme Court precedent on the right to present a defense. This
portion of the Second Ground for Relief is without merit.

Sub-claim Two: The Absence of Detective Mitchell

In the second part of Ground Two, Cox claims his rights under the Confrontation Clause
were violated when Detective Mitchell was excused from testifying because of illness.
This claim was not presented to the state courts and Respondent asserts that it is therefore
procedurally defaulted (Return, ECF No. 6, PageID 804).

Cox admits the claim was not

presented to the state courts, but asserts he can show excusing cause and prejudice in that his
attorney provided ineffective assistance of trial counsel by not “pressing” for Mitchell’s
appearance (Response, ECF No. 10, PageID 1651-52).
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
18

prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). 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.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).

19

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); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).

The

applicable procedural rule here is the very basic one in our adversary system of justice: courts
will not decide claims that have not been presented to them. The Ohio courts could not decide
the claim about Detective Mitchell because it was never presented to them. The default is final
because there is no Ohio forum in which the claim could now be presented.
A habeas petitioner “can overcome a procedural default by showing (a) cause for the
default and (b) actual prejudice from it.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009);
Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004), quoting Murray v. Carrier, 477 U.S. 478
(1986).
Attorney error amounting to ineffective assistance of counsel can constitute cause to
excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985); Howard v. Bouchard,
405 F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999); Gravley v.
Mills, 87 F.3d 779, 785 (6th Cir. 1996). However, Murray v. Carrier also holds that the
exhaustion doctrine "generally requires that a claim of ineffective assistance of counsel be
presented to the state courts as an independent claim before it may be used to establish cause for
a procedural default in federal habeas proceedings." 477 U.S. at 489; See also Ewing v.
McMackin, 799 F.2d 1143, 1149-50 (6th Cir. 1986). The ineffective assistance claim cannot be
20

presented as cause if it was procedurally defaulted in the state courts, unless one of the standard
excuses for that procedural default exists, to wit, actual innocence or cause and prejudice.
Edwards v. Carpenter, 529 U.S. 446 (2000).
Because ineffectiveness in not pressing hard enough for Mitchell’s attendance would
have been an ineffective assistance of trial counsel claim that could be litigated on the appellate
record, it was required to be raised there or be barred later by res judicata.3 Ohio’s doctrine of
res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an
adequate and independent state ground. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007);
Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir.
2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61
(6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio
2001).
Cox raised ineffective assistance of trial counsel on direct appeal, but only claimed Mr.
Lennen was ineffective for his handling of Dr. Miceli’s testimony and not for failing to press
harder to obtain Mitchell’s testimony (State Record, ECF No. 5, PageID 438.) Cox cannot
excuse failing to raise this sub-claim by showing Lennen provided ineffective assistance of trial
counsel because that issue was not properly raised in the state courts. Cox’s claim with respect
to Mitchell is therefore procedurally defaulted.
Since the two sub-claims in Ground Two are either without merit or procedurally
defaulted, Ground Two should be dismissed with prejudice.

Ground Three: Cumulative Error

3

It is further noted that Cox did not raise the instant claim in his petition for post-conviction relief (ECF No. 5,
PageID 614-27).

21

In his third Ground for Relief Cox asserts that numerous errors at trial, while perhaps
harmless in themselves, added up to denying him a fair trial. Cox asserts that he presented this
as his Ninth Assignment of Error on direct appeal (Response, ECF No. 10, PageID 1654). The
Second District Court of Appeals decided that claim as follows:
[*P75]

Cox's ninth assignment of error is as follows:

[*P76] "CUMULATIVE ERRORS REQUIRE THE REVERSAL
OF THIS CONVICTION."
[*P77] In his ninth and final assignment, Cox argues that the he
did not receive a fair trial as a result of the effect of cumulative
errors which occurred during trial. In addition to the errors he has
already assigned and argued, Cox asserts that he was denied a fair
trial in light of "various juror problems" and the loss of Ms.
Brockert's notes regarding C.F.'s initial disclosure of sexual abuse
by Cox.
[*P78] A. Juror Issues
[*P79] Initially, Cox notes that defense counsel took issue with
one of the potential jurors "poisoning" the jury pool. Specifically,
defense counsel was concerned with potential juror number three,
who admitted that she had seen the case covered on the local news.
When asked if she had formed any opinions on the case, she stated
"Obviously."
[*P80] While not a simple "yes" or "no" response, the potential
juror's reply did not "poison" the jury. While indicating that she
had formed an opinion about the case, her response was ambiguous
and certainly was without elaboration. The specifics of what the
potential juror had seen on the news and her personal feelings were
discussed at sidebar out of the hearing of the other potential jurors.
After the sidebar, the potential juror was excused, and the record is
devoid of any evidence that her comment "poisoned" the jury pool.
[*P81] Next, Cox argues that he was prejudiced when the trial
judge had observed a young lady mouthing words to C.F. from the
rear of the courtroom. As a result, the judge cleared the courtroom
and questioned the young lady about what she was doing. The
young lady stated that she was a friend of C.F.'s and was there for
moral support. When the jurors returned to the courtroom, the
22

judge questioned the jury regarding whether they had heard any
conversation coming from the rear of the courtroom. A female
juror, Number 6, informed the trial court that she had, and the
judge questioned her away from the rest of the jurors. Number 6
stated that she had observed a young lady mouthing the words "it's
okay" or "be strong" to the victim, C.F. Number 6 further stated
that what she had observed would not affect her ability to be
impartial nor would she consider it for any reason while
deliberating. Neither party objected to Number 6 remaining on the
jury, and the judge banned C.F.'s friend from the courtroom for the
remainder of the trial.
[*P82] The last juror issue occurred when the same juror,
Number 6 , went out to dinner during the trial and was accidentally
exposed to information about the case. The next day, Number 6
informed the bailiff, and the judge questioned her in chambers.
Number 6 informed the judge that what she heard prevented her
from being fair and impartial. Number 6 stated that she had not
talked to any of the other jurors regarding what she heard about the
case. The trial court excused her, and neither party objected.
[*P83] Other than pointing out the "juror issues" that occurred at

trial, Cox fails to establish that any resulting prejudice occurred.
Moreover, in cases involving outside influences on jurors, trial
courts are granted broad discretion in assessing the impact and
determining the appropriate remedy. State v. Williams, 2d Dist.
Montgomery No. 22126, 2008-Ohio-2069, citing State v.
Phillips, 74 Ohio St.3d 72, 1995 Ohio 171, 656 N.E.2d 643
(1995). In all three incidents, the trial court acted discreetly and

decisively, questioning each juror outside of the presence of the
others, and excusing the seated juror when she could not remain
impartial. In this manner, the trial court attempted to insure that the
remaining jurors listened to only the evidence presented during the
trial and were not affected by outside influences. Accordingly,
there is no basis to find that these incidents affected Cox's right to
a fair trial or that he suffered prejudice as a result.
***
[*P91] Finally, turning to Cox's cumulative error argument,

separately harmless errors may violate a defendant's right to a fair
trial when the errors are considered together. State v. Madrigal, 87
Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52. In order to find
'cumulative error' present, we must first find that multiple errors
were committed at trial. Id. at 398, 721 N.E.2d 52. We must then
find a reasonable probability that the outcome of the trial would
have been different but for the combination of the separately
23

harmless errors. State v. Thomas, Clark App. No. 2000-CA-43,
2001-Ohio-1354." State v. Kelly, 2d Dist. Greene No. 2004-CA20, 2005-Ohio-305, ¶ 33. "Where no individual, prejudicial error
has been shown, there can be no cumulative error. State v.
Blankenship (1995), 102 Ohio App.3d 534, 557, 657 N.E.2d
559." State v. Jones, 2d Dist. Montgomery No. 20349, 2005Ohio-1208, ¶ 66.
[*P92] In light of our foregoing analysis, we find that Cox has
failed to establish that any errors occurred in the instant case. State
v. Moreland, 50 Ohio St.3d 58, 69, 552 N.E.2d 894, 905
(1990). Thus, we fail to see how the absence of error can

constitute cumulative error. Id.
[*P93] Cox's ninth and final assignment of error is overruled.

State v. Cox, supra.
The Warden argues that cumulative error is not a claim cognizable in federal habeas
corpus, i.e., that a habeas petitioner cannot cumulate errors to show a constitutional violation
(Return, ECF No. 6, PageID 823).
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).
To prevail under 28 U.S.C. § 2254(d)(1), a petitioner must show that the state courts’ decisions
are contrary to or an objectively unreasonable application of clearly established Supreme Court
precedent. 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).
Cox asserts the relevant Supreme Court precedent is Donnelly v. DeChristoforo, 416 U.S.
637 (1974), but Donnelly is not about analyzing cumulative trial error, but the accumulated effect
of disparate instances of prosecutorial misconduct. He also cites Brecht v. Abrahamson, 507
U.S. 619 (1993), adopting the harmless error standard from Kotteakos v. United States, 328 U.S.
24

750 (1946), and overruling the “harmless beyond a reasonable doubt” standard of Chapman v.
California, 386 U.S. 18 (1967). Brecht is not about cumulating trial court error to show a
constitutional violation, but assessing whether error is harmless or not.
Cox also asserts the Sixth Circuit has recognized a cumulative error ground for habeas
relief. (Response, ECF No. 10, PageID 1655, citing Keith v. Mitchell, 455 F.3d 662 (6th Cir.
2006), and Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002). To the contrary, the Warden cites the
specific language in Lorraine which holds “The Supreme Court has not held that distinct
constitutional claims can be cumulated to grant habeas relief.” Id. at 447. The Warden is correct
that Cox’s “cumulative error” claim does not state a claim upon which habeas corpus relief can
be granted.
As part of this Ground for Relief, Cox claims that his jury was tainted by extraneous
influence.

The Second District considered and rejected this claim in deciding the Ninth

Assignment of Error. State v. Cox, supra, ¶¶ 78-83. Juror Number 6 heard a news story
prejudicial to Cox’s case and was excused from further service; there was no evidence that she
told other jurors what she had heard. Cox’s complaint is that the judge did not voir dire the other
jurors to determine whether they had heard the same story independent of Juror Number 6, i.e.
directly from the media.
The relevant Supreme Court precedent is Smith v. Phillips, 455 U.S. 209, 215-17 (1982),
which held that the defendant has the burden to show that there has been actual prejudice from
some outside contact. Here, Cox has not met the initial burden of showing that any of the others
jurors saw the adverse coverage. Judge Tucker gave the jurors the required instruction that they
were not to obtain any information about the case from the media or elsewhere outside the
courtroom and this Court must presume they followed that instruction.

25

As a second part of this Ground for Relief, Cox complains of the admission in evidence
of Exhibits 1(a) and 1(b). The Warden asserts this sub-claim is procedurally defaulted because it
was never presented to the state courts (Return, ECF No. 6, PageID 801, 804). Cox responds
(without a record citation) that his trial attorney objected, but that the claim was omitted on
appeal, amounting to ineffective assistance of appellate counsel (Response, ECF No. 10, PageID
1658-61.) As noted above, ineffective assistance of counsel can constitute excusing cause but
must itself be presented to the state courts for initial decision. Under Ohio law, the proper place
to submit a claim of ineffective assistance of appellate counsel is in an application to reopen the
appeal under Ohio R. App. P. 26(B).

Cox, through counsel other than the attorney who

represented him on direct appeal, filed a Rule 26(B) application (State Court Record, ECF No. 5,
PageID 712-26). However, failure to raise admission of Exhibits 1(a)( and 1(b) was not one of
the omitted assignments of error raised in the 26(B) application. Cox has therefore procedurally
defaulted on this sub-claim.
The next sub-claim Cox raises is witness tampering. The Second District dealt with this
claim, noting that Judge Tucker had questioned the person who was mouthing words to
encourage C.F. as to what she said and why, then questioned the jurors if they had heard
anything,4 then excluded the person from the courtroom. Cox claims the spectator perjured
herself when she told Judge Tucker that she was just being encouraging, but offers no proof of
that assertion. He claims the Second District erred in not applying the Chapman v. California
beyond a reasonable doubt standard, but the applicable standard is from Brecht, supra, and in any
event the Second District found no error in the way Judge Tucker handled the matter. Cox has
not shown the Second District’s decision on this point was contrary to or an objectively
unreasonable application of Supreme Court precedent.
4

Only Juror No. 6 had heard anything and she was eventually excused.

26

Cox’s last sub-claim relates to notes Jennifer Brockert took when the victim first told her
about the abuse. The Second District considered this claim on direct appeal and decided:
[*P84] B. Loss of Brockert's Handwritten Notes
[*P85] Cox asserts that he was prejudiced by the State's loss of
Brockert's handwritten notes pertaining to C.F.'s initial disclosure
of sexual abuse. Cox filed a motion to dismiss based on the lost
evidence. The trial court held a hearing on Cox's motion on
October 4, 2012, prior to trial. Brockert, Officer Nicholas Bell, and
Detective William Ring testified at the hearing.
[*P86] Brockert testified that she took handwritten notes when

she initially spoke with C.F. about the sexual abuse she had
suffered. Brockert stated that she used the notes during her meeting
with Officer Bell in order to refresh her memory regarding the
details of what C.F. had told her. Brockert testified that there was
nothing exculpatory or anything that would exonerate Cox in her
notes. After speaking with Officer Bell, Brockert testified that she
drafted a written statement taken directly from her handwritten
notes. Brockert testified that she did not include any information in
her written statement that was not in her notes. Brockert gave the
notes to Detective Mitchell, and kept a copy for herself. Brockert,
however, lost her copy of the notes before trial, and the
Miamisburg Police Department was also unable to locate the
originals in the case file, records, or the property room.
[*P87] The state's failure to preserve materially exculpatory
evidence violates a defendant's due process rights under the
Fourteenth Amendment to the United States Constitution. The
burden rests with the defendant to prove that the evidence in
question was materially exculpatory. Such evidence is deemed
materially exculpatory if "there is a 'reasonable probability' that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different." A "reasonable probability"
is a probability sufficient to undermine confidence in the outcome.
State v. Grigley, 2d Dist. Montgomery No. 21632, 2007-Ohio3159, citing State v. Durnwald, 163 Ohio App.3d 361, 2005Ohio-4867, 837 N.E.2d 1234 (6th Dist.).
[*P88] In contrast, evidence is not materially exculpatory if it is

merely potentially useful. Potentially useful evidence indicates that
the evidence may or may not have incriminated the defendant. The
failure to preserve evidence that by its nature or subject is merely
potentially useful violates a defendant's due process rights only if
the police or prosecution acted in bad faith. The term "bad faith"
27

generally implies something more than bad judgment or
negligence. It imports a dishonest purpose, moral obliquity,
conscious wrongdoing, breach of a known duty through some
ulterior motive or ill will partaking of the nature of fraud. Id.
[*P89] Our standard of review on the ruling regarding the lost

notes is an abuse of discretion. An "[a]buse of discretion" has been
defined as an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d
83, 87, 19 Ohio B. 123, 482 N.E.2d 1248, 1252 (1985). It is to
be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that
are unconscionable or arbitrary. A decision is unreasonable if there
is no sound reasoning process that would support that decision. It
is not enough that the reviewing court, were it deciding the issue
de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes
that would support a contrary result. AAAA Enterprises, Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 167, 553 N.E.2d 597 (1990).
[*P90] Upon review, we conclude that the trial court did not

abuse its discretion when it overruled Cox's motion to dismiss
based on the failure of the State to produce Brockert's handwritten
notes outlining C.F.'s initial narrative about her sexual abuse. In
fact, the record establishes that the notes were simply misplaced.
Brockert testified that there was nothing in the notes that was
exculpatory or exonerated Cox. The record establishes that Cox
failed to demonstrate that the notes were anything more than
potentially useful. Significantly, Cox also failed to establish that
the State lost the notes as a result of bad faith. Absent bad faith, the
trial court properly found that no due process violation occurred
and hence correctly overruled Cox's motion to dismiss.

State v. Cox, supra.
Cox’s theory about the notes is that they would have provided a record of an account by
the victim which would have been inconsistent with her trial testimony and they would therefore
have been useful for impeachment. The defense felt so strongly about these notes that it sought
dismissal of the case when they were not produced. Judge Tucker held a hearing on that motion
which is reflected in the Second District’s decision.
28

Both Brockert and the victim testified. Despite this, Cox continues to claim there was a
Confrontation Clause violation in not producing the notes. However, he cites no authority for
that proposition. The Confrontation Clause bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant has a
prior opportunity for cross-examination…” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
There are no Confrontation Clause precedents known to the undersigned which find a violation
because defense was not given material with which to impeach a witness.

Rather, the

Confrontation Clause prohibits the admission in evidence of testimonial statements made outside
the courtroom and not subject to cross-examination.
The correct body of law under which to analyze this claim is that which starts with Brady
v. Maryland, 373 U.S. 83 (1963), which held the State has a duty to produce exculpatory
evidence in a criminal case. If the State withholds evidence and it is material, the conviction
must be reversed. . To achieve this goal, "Brady held 'that the suppression by the prosecution of
evidence favorable to an accused . . . violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Kyles v.
Whitley, 514 U.S. 419, 432 (1995) (quoting Brady, 373 U.S. at 87).

Brady extends to

impeaching evidence. Strickler v. Greene, 527 U.S. 263 at 281-82 (1999).
However, the State cannot produce what it does not have or cannot find. After extensive
inquiry, Judge Tucker found that was the case here. When dealing with the failure of the state to
preserve evidence which might have exonerated the defendant, there is no due process violation
unless the defendant can show bad faith on the part of the police. Arizona v. Youngblood, 488
U.S. 51, 57 (1988). Cox faults the second district for not citing any federal case law, but when a
state court decides a federal constitutional claim on the merits, the burden is on the habeas

29

petitioner to show that it is contrary to or an objectively unreasonable application of Supreme
Court precedent. See Harrington v. Richter, supra. Cox has failed to do so.
Both because cumulative error is not a cognizable federal habeas corpus claim and
because Cox has not shown constitutional error in the Second District’s decision of the subclaims, the Third Ground for Relief should be dismissed with prejudice.

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Cox asserts he received ineffective assistance of trial
counsel in that his trial attorney (1) allowed the testimony of Dr. Miceli, (2) failed to make a
more thorough investigation of the herpes virus, (3) did not force Judge Tucker to force
Detective Mitchell to testify, (4) failed to call a work-records witness to show Cox had an alibi,
and (5) performed deficiently during plea bargaining.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
30

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (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:
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), quoting Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 792
(2011).

Sub-claim 1: Allowing Dr. Miceli’s Testimony/Not Hiring a Rebuttal Expert

31

Cox claims his trial attorney should not have permitted Dr. Miceli to testify. On direct
appeal, he raised as assignment of error five the admission of her testimony. The Second District
decided that issue as follows:
[*P48]

Cox's fifth assignment of error is as follows:

[*P49] "AN EXPERT WITNESS MUST DERIVE HER
OPINION FROM FACTS OR DATA OF THE PARTICULAR
CASE UPON WHICH THE EXPERT BASES AN OPINION OR
INFERENCE."
[*P50] In his fifth assignment, Cox argues that the trial court

abused its discretion when it admitted the expert testimony of Dr.
Brenda J. Miceli, a clinical child psychologist, who testified at trial
regarding the behavioral characteristics of children who have been
sexually abused. Specifically, Dr. Miceli testified regarding
delayed reporting and partial reporting of sexual abuse in children.
[*P51]

Evid. R. 702 governs the admissibility of expert

testimony. It provides:
A witness may testify as an expert if all of the following
apply:
(A) The witness' testimony either relates to matters
beyond the knowledge or experience possessed by lay
persons or dispels a misconception common among lay
persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education
regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. * * *
[*P52] "[T]he Ohio Supreme Court has found that testimony

from a psychologist on the behavioral characteristics of sexually
abused children is admissible, see State v. Stowers (1998), 81
Ohio St.3d 260, 262, 1998 Ohio 632, 690 N.E.2d 881, and so
have we. [State v.Bell, 176 Ohio App.3d 378, 2008-Ohio-2578,
891 N.E.2d 1280 (2d Dist.)]." State v. Rosas, 2d Dist.
Montgomery No. 22424, 2009-Ohio-1404, ¶ 41. "What an expert
may not do is offer a direct opinion on whether a child is telling the
32

truth. State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d
1220." Id., ¶ 42. We review the admission of expert testimony
under an abuse of discretion standard of review. See Bell. In Bell,
Dr. Miceli was retained by the State "to testify regarding the wide
range of behaviors that sexually abused children may exhibit,
including internalizing behaviors, externalizing behaviors, and
sexualized behaviors." Miceli did not opine on whether the victims
were sexually abused by the defendant, and this Court concluded
that the trial court did not abuse its discretion in admitting the
testimony as follows:
Dr. Miceli simply offered her opinions regarding the wide range of
behavioral characteristics displayed by minor victims of sexual
abuse. The law clearly permits this kind of expert testimony, and
Dr. Miceli did not go beyond permissible boundaries and opine
whether these children were in fact abused by Bell. A thorough
review of Dr. Miceli's expert testimony establishes that she
possessed specialized knowledge that could aid a trier of fact in
assessing whether the children actually suffered sexual abuse. Bell,
¶ 57.
[*P53] In the instant case, Dr. Miceli testified regarding some of
the behaviors that sexually abused children may exhibit, including
the tendency to delay the reporting of sexual abuse. Dr. Miceli also
offered testimony regarding the tendency of children who have
been sexually abused to only provide partial reports of the alleged
abuse. Cox argues that Dr. Miceli failed to disclose the facts and
data used as a basis for her opinion, as required by Evidence Rule
705. Dr. Miceli, however, did not opine as to whether C.F. had, in
fact, been abused. Instead, Dr. Miceli's testimony was limited by
the trial court to a specialized overview of particular behavioral
characteristics of sexually abused children in order to give the
jurors a better understanding of those characteristics. Accordingly,
Dr. Miceli's testimony regarding the behavioral characteristics
displayed by minor victims of sexual abuse was admissible to aid
the jury in assessing whether C.F. actually suffered sexual abuse at
the hands of Cox. See State v. Weber, 2d Dist. Montgomery No.
25508, 2013-Ohio-3172.
[*P54] There is little doubt that Dr. Micelli possesses extensive
formal education and broad, deep experience with sexually abused
children. Her testimony here establishes this, and we have
previously so found. See State v. Bell, 176 Ohio App.3d 378,
2008-Ohio-2578, 891 N.E.2d 1280 (recognizing Dr. Micelli's
extensive experience with sexually abused children). After
examining the record, we find nothing that would call into question

33

the reliability of her testimony. Her testimony on the behavioral
characteristics of sexually-abused children has a reliable basis in
the knowledge and experience of the field of psychology, which
she has acquired from the classroom and the clinic.
[*P55] Cox also asserts that the State called Dr. Miceli to testify
solely to bolster C.F.'s testimony. There is a distinction "between
expert testimony that a child witness is telling the truth," on the
one hand, and on the other hand, "evidence which bolsters a child's
credibility insofar as it supports the prosecution's efforts to prove
that a child has been abused." Stowers, at 262. Expert testimony
is admissible as to the latter. This is evidence that provides
"additional support for the truth of the facts testified to by the
child, or which assists the fact finder in assessing the child's
veracity." Id. Such testimony "does not usurp the role of the jury,
but rather gives information to a jury which helps it make an
educated determination." Id. at 263. Here, Dr. Miceli's testimony
is within permissible bounds. She testified about the behavioral
characteristics of sexually abused children in an effort to educate
the jury regarding delayed and partial reporting of sexual abuse by
children.
[*P56]

Finally, Dr. Miceli's testimony regarding those
defendants who sexually abuse their victims in the presence of
another sleeping was also admissible. Specifically, Dr. Miceli
testified that she was aware of scenarios such as this and explained
that the abuser felt like he had equal control over both children, the
victim and the sleeping child. Based on her extensive and
specialized knowledge in the area of child sexual abuse, Dr.
Miceli's testimony was admissible and relevant because it
provided the jury with information regarding the behavior and
modus operandi of those who sexually abuse children. Dr. Miceli's
testimony also provided the jury with a basis to assess C.F.'s
credibility with respect to her testimony that M.C. was sleeping in
the same room when Cox raped her.
[*P57] Cox's fifth assignment of error is overruled.

State v. Cox, supra.
Having complained directly about Dr. Miceli’s testimony, Cox also claimed it was
ineffective assistance of trial counsel not to object to it, the claim he makes in this sub-claim of
Ground Four. The Second District decided that claim as follows:

34

[*P58]

Cox's sixth assignment of error is as follows:

[*P59]

"APPELLANT'S
CONVICTION
MUST
BE
REVERSED DUE TO THE INEFFECTIVE ASSISTANCE OF
COUNSEL."
[*P60] In his sixth assignment, Cox contends that his trial
counsel was ineffective for failing to object to Dr. Miceli's
testimony.
[*P61] We review the alleged instances of ineffective assistance
of trial counsel under the two prong analysis set forth in Strickland
v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674, 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.
[*P62] As discussed in the preceding assignment, Dr. Miceli's
testimony was admissible under Evid. R. 702 and was not
introduced to impermissibly bolster C.F.'s testimony. Moreover,
we note that trial counsel did file a pre-trial motion to exclude Dr.
Miceli's testimony on September 19, 2012. Evid. R. 703 and 705
were not violated because Dr. Miceli's testimony was properly
limited, and she offered no opinion as to the truth of C.F.'s
assertions. Given the strong presumption that counsel's
performance constituted reasonable assistance, Cox's trial counsel
was not required to perform a futile act. State v. Lodge, 2d Dist.
Greene No. 2004CA43, 2005-Ohio-1908. Moreover, Cox has
failed to demonstrate that there is a reasonable probability that but
for his counsel's failure to object at trial to Dr. Miceli's testimony
under Evid. R. 703 and 705, the result of the case would have been
any different.
[*P63] Cox's sixth assignment of error is overruled.

35

State v. Cox, supra.
The Warden argues that this conclusion by the Second District is an objectively
reasonable application of Strickland and the Court agrees. It cannot be ineffective assistance of
trial counsel to fail to do a futile act or raise a meritless issue. Krist v. Foltz, 804 F.2d 944, 94647 (6th Cir. 1986); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998); Coley v. Bagley,
706 F.3d 741, 752 (6th Cir. 2013).
Cox responds, however, that that is not the claim of ineffective assistance of trial counsel
he is raising. Instead he says he is complaining of “trial counsel’s failure to call their own expert
witness to rebut and refute the testimony of Dr. Miceli.” (Response, ECF No. 10, PageID 1668.)
That certainly is not the claim of ineffective assistance of trial counsel that Cox raised in his
sixth assignment of error on direct appeal.
In his Petition for post-conviction relief under Ohio Revised Code § 2953.21, Cox did
complain that he “wanted an expert on delayed reporting to be hired and so instructed Counsel
(Affidavit of Vernon Cox). . .” (State Court Record, ECF No. 5, PageID 573). Judge Tucker
rejected this claim, noting that Cox’s Affidavit gave no indication of what testimony such an
expert would give and without such a statement “there is no way to determine if such testimony
would have been different from the testimony provided by Dr. Brenda Miceli. . .” (Order, State
Court record, ECF No. 5, PageID 610). The Second District affirmed, stating
[*P13] We also agree with the trial court that Cox's argument
about not hiring an expert to testify on delayed sexual-abuse
reporting failed to set forth sufficient operative facts to establish
substantive grounds for relief. This is so because Cox failed to
identify a particular expert who should have been called and failed
to set forth what the expert would have said. Without an affidavit
identifying what the missing testimony would have been, we
cannot conclude that defense counsel provided ineffective
assistance in failing to retain an expert. Cf. State v. Wynn, 2d

36

Dist. Montgomery No. 25730, 2014-Ohio-621, ¶ 13 (finding no

error in denying a post-conviction petition without a hearing where
the defendant presented no evidence as to what a missing witness's
testimony would have been).

State v. Cox, 2015-Ohio-894, 2015 Ohio App. LEXIS 887 (2nd Dist. Mar. 13, 2015). On the
merits, this is not an objectively unreasonable application of Strickland.
The Warden argues the Court should not reach the merits because Cox procedurally
defaulted on this claim by not appealing to the Supreme Court of Ohio from denial of his petition
for post-conviction relief (Return of Writ, ECF No. 6, PageID 804.)5 Cox concedes he did not
appeal to the Ohio Supreme Court but argues at length that he was not required to do so, splitting
his argument between “Exhaustion of State Remedies” (Response, ECF No. 10, PageID 161329) and “Procedural Default and Cause and Prejudice. Id. at PageID 1630-34.
It is clear from reading these sections of the Response that Cox has confused the
requirement of exhaustion and the doctrine of procedural default. The Return of Writ has a
section labeled “Exhaustion, Fair Presentation, and Waiver” (ECF No. 6, PageID 801-04). From
this Cox infers that “respondent makes the claim that there are unexhausted claims in his
petition.” (Response, ECF No. 10, 1614.) However, upon careful examination, the Court finds
that the Warden has not asserted there are any unexhausted claims in the Petition.
The Sixth Circuit has explained the difference between exhaustion and procedural default
as follows:
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
5

The Warden misread this portion of Ground Four as complaining that Mr. Lennen did not object to Dr. Miceli’s
testimony, a claim that was pursued to the Ohio Supreme Court on direct appeal. Cox clarifies in his Response that
he is instead raising here the ineffective assistance of trial counsel claim about expert testimony that he made in
post-conviction (ECF No. 10, PageID 1668.) The wording of the Fourth Ground as pled is misleading in this
respect.

37

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
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.

38

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 Warden has not argued that any of Cox’s claims are unexhausted. That is, the
Warden had not asserted Cox has a remaining state court remedy on any of his claims which he
must exhaust before this Court considers his Petition. Rather, the Warden asserts that Cox has
procedurally defaulted on those claims he raised in collateral attacks on his conviction but did
not pursue to the Ohio Supreme Court.
Reading the Return of Writ as claiming he had not presented many of his claims at all in
the state courts, Cox writes at length about how he did so (Response, ECF No. 10, PageID 161325). At page 13 of his Response, he attempts to justify not appealing to the Ohio Supreme Court
on the collateral attacks:
It is clear in Ohio, that the Ohio Supreme Court hears very few
cases, and it would only be logical that since they denied
jurisdiction on his direct appeal claiming ineffective assistance of
counsel, they would also deny jurisdiction on the same claim of
ineffective assistance of counsel in a post conviction appeal. That
appeal would be nothing short of a waste of time and futile; in a
sense it would be like “beating a dead horse.” The law, after all,
should not require litigants to engage in empty gestures or to
perform obviously futile acts.

Id. at PageID 1625.
On this point, Cox is wrong. The Supreme Court of the United States has itself held that
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 pursue that claim through the
state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009),
39

citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting O'Sullivan v. Boerckel,
526 U.S. 838, 846-7(1999)).
Cox cites no case in which appeal to the Ohio Supreme Court on collateral attack had
been held to be a futile gesture or a waste of time. He relies on Harris v. Reed, 489 U.S. 255
(1989). In that case the Supreme Court applied the plain statement rule of Michigan v. Long, 463
U.S. 1032, 1040-1041 (1983), to hold that a state court declining on state procedural ground to
decide a federal question presented to it must plainly state its reliance on those grounds in order
for the claim to be procedurally defaulted. Harris does not apply here because Cox never gave
the Ohio Supreme Court a chance to decide his claims on collateral attack. The Harris rule does
not apply at all if petitioner failed to exhaust state remedies and the court to which petitioner
would now be required to present the claims in order to meet the exhaustion requirement would
find a procedural bar. In that case, procedural default bars federal habeas review. Teague v.
Lane, 489 U.S. 288, 297-98 (1989), reiterated in Coleman, 501 U.S. 722 at footnote on 734.
Cox’s claim of ineffective assistance of trial counsel for failure to hire an expert to rebut
or refute Dr. Miceli is both without merit and procedurally defaulted. It should be dismissed
with prejudice.

Sub-claim Two: Insufficient Investigation of Herpes

The only claim Cox presented to the state courts regarding this issue was his claim in
post-conviction that Lennen was ineffective for failing to obtain Cox’s medical records from Dr.
Mark Streibel. Judge Tucker disposed of the claim by concluding, as had the Second District on
direct appeal, that Lennen had made a thorough presentation of the herpes defense at trial and

40

additional evidence would have been unlikely to change the result (Order, State Court Record,
ECF No. 5, PageID 609-10.) On appeal, the Second District held:
[*P10] Cox's argument about his attorney's failure to introduce

medical records and testimony from his physician is equally
unpersuasive. In his direct appeal, Cox argued that the trial court
had erred in limiting evidence that he had herpes, and had
transmitted it to other women, and that the victim did not have
herpes. State v. Cox, 2d Dist. Montgomery No. 25477, 2013Ohio-4941, ¶ 70-73. In rejecting his argument, this court
reasoned:
Upon review, the record establishes that Cox was
permitted to thoroughly explore the topic of his herpes
condition during trial. Specifically, defense counsel called
Dr. Jodi Van Jura who testified that Cox tested positive
for herpes Types 1e and 2 in June of 2012. Defense
counsel also elicited testimony from [the victim's mother]
that she was positive for herpes Type 2 which she stated
that [**10] she had contracted prior to 2007. Defense
counsel questioned the defendant's current wife, who
testified that she, too, tested positive for the herpes virus.
Lastly, defense counsel was permitted to elicit testimony
from Dr. Lori Vavul-Roediger that C.F. had tested
negative for the herpes virus on June 7, 2010. Clearly, the
trial court did not prevent defense counsel from making
the argument to the jury that Cox must not have sexually
abused C.F. because she wasn't infected with the herpes
virus.
Upon review, we conclude that there is no evidence in the
record which establishes that the trial court improperly
limited defense counsel's ability to elicit testimony from
the witnesses regarding Cox's herpes infection and those
he may have or may have not passed it along to through
sexual conduct.
Id. at ¶ 72-73.

[*P11] Cox reasons that testimony about him having herpes in
2012 was inadequate to support his defense because his alleged
sexual abuse of the victim stopped around 2010. We note,
however, that the record contains testimony about Cox having
herpes during the relevant time period. The victim's mother

41

testified that she contracted herpes around 2005 or 2006, which
was during the time Cox's sexual abuse allegedly occurred. Cox's
current wife, who he met in January 2010 and married about three
months later, also testified that she had contracted herpes. She
explained that she tested negative before meeting Cox but tested
positive about two months into their relationship. Finally, VavulRoediger testified that she was told the victim's mother and Cox
both had herpes. For that reason, she tested the victim, who tested
negative. Vavul-Roediger explained, however, that a person with
genital herpes, the type at issue here, is not necessarily contagious
unless he or she has an actual sore or lesion and is actively
"shedding" the virus. Vavul-Roediger added that the one-year
transmission rate between monogamous couples regularly
engaging in sexual activity was relatively low. In closing
argument, defense counsel told the jury:
And let's talk about herpes. My client has Herpes Simplex
1 and 2. Without question, contagious. The two people
that we know have had sex with my client, presumably
since they were married to him in the last ten years, both
are positive for the herpes virus. The only person that is
alleging sexual contact or conduct with my client that is
not positive is [the victim]. Everybody else has it but her.
The doctor said that this is only the second time she ran
the [herpes] test [on an alleged sexual-abuse victim].
Because Mom was saying, "Look, she's alleging she's
being abused by Vernon Cox. You know what? He's got
herpes. I've got herpes. Test him." If she's got herpes,
there's your evidence. There's your corroboration. There's
your smoking gun. That's why they tested. That's why—
for the—doctor said second time. It must have been
significant to them to test because that child has herpes
[sic]. Imagine what the government would be saying
today if that child, [the victim], tested positive for herpes.
They would tell you that is the smoking gun, without
question. How is it any different when it's negative.
Everybody else that had sexual conduct with my client
got it but her. Maybe she didn't have sexual conduct.
Maybe the fact that she's negative means that it does not
corroborate her story.
(Trial Tr. Vol. III at 674-675.).
[*P12] Because the record contained sufficient evidence about
Cox's history of herpes to enable defense counsel to make the
foregoing argument, counsel reasonably may have elected, as a
matter of trial strategy, not to introduce additional evidence on the
42

topic. Testimony and medical records from Cox's physician only
would have confirmed what the record already reflected. And
introducing evidence that Cox had transmitted the herpes virus to
additional women other than his two wives would have reflected
poorly on his character and potentially done more harm than good.
State v. Cox, 2015 Ohio App. LEXIS 887 (2nd Dist. Mar. 13, 2015).
The Second District puts the matter delicately. To assert that it would have helped the
case of a man on trial for having sex with a minor step-daughter to introduce evidence that he
had given herpes to two other women to whom he was not married (Odell Williams and Tracy
Lee) stretches credulity beyond the breaking point. As the state court pointed out, Mr. Lennen
had enough evidence to permit him to argue the herpes defense6 in closing; additional medical
records would not have made a difference. The application of Strickland to this claim was
objectively reasonable and it therefore fails on the merits. Moreover, the Court need not reach
the merits of this sub-claim because Cox procedurally defaulted by not appealing to the Ohio
Supreme Court.

Sub-claim Three: Failure to Force Detective Mitchell to Testify

Cox has not identified any place in the state court record where this issue was presented
to the state courts. It is therefore procedurally defaulted.

Sub-claim Four: Failure to Submit Work Records to Prove Alibi

Cox claims that if Lennen had submitted his work records to the jury, it would have
6

The herpes defense was that Cox had given herpes to every woman with whom he had sex since he had been
diagnosed, but the victim, C.F., did not have herpes, so she must not have had sex with Cox.

43

shown that he was not present when the various acts of sexual misconduct were alleged to have
occurred over the period of a number of years. Cox presented this claim in his post-conviction
petition and Judge Tucker found neither deficient performance nor prejudice because the records
were only minimally relevant because they “would not rebut Mr. Cox’s easy access to C.F.”
(Order, State Court Record, ECF No. 5, PageID 609). The Second District affirmed, holding:
As for Cox's work records, the trial court reasonably concluded
that they had minimal relevance because he easily could have
sexually abused his step-daughter when not at work. In this regard,
we note (1) that the trial testimony was non-specific about when
the abuse, which took place over a period of years, had occurred
and (2) that Cox's own affidavit, which identifies several women
he claims to have infected with herpes since 2004, refutes the
notion that his long work hours precluded sexual activity.
State v. Cox, 2015 Ohio App. LEXIS 887, ¶ 9 (2nd Dist. Mar. 13, 2015).
The state court conclusions on this sub-claim are an objectively reasonable application of
Strickland. Moreover, Cox has procedurally defaulted this sub-claim by not appealing to the
Ohio Supreme Court.

Sub-claim Five: Ineffective Assistance in the Plea Bargaining Process

When Cox presented this sub-claim on appeal from denial of his petition for postconviction relief, the Second District refused to reach the merits, holding:
[*P15] Finally, Cox's argument about counsel's performance in
the plea-bargaining process fails because he did not raise it below.
His petition for post-conviction relief did not mention plea
bargaining. Nor was the issue addressed in the affidavits he filed
below. Therefore, the issue is not properly before us.
State v. Cox, 2015 Ohio App. LEXIS 887 (2nd Dist. Mar. 13, 2015).
Ohio has a procedural rule that a litigant may not present on appeal an issue not reserved
44

for appeal by being presented in the trial court.

State v. Williams, 51 Ohio St. 2d 112

(1977)(paragraph two of the syllabus)(Toledo v. Reasonover, 5 Ohio St. 2d 22 (1965), approved
and followed.) The Second District enforced that rule against Cox by its plain language in ¶ 15.
State v. Cox, 2015-Ohio-894. The rule is an adequate and independent state ground of decision
in that it is a usual rule of appellate practice in the United States and is followed in the federal
system. Singleton v. Wulff, 428 U.S. 106 (1976); Ralph Schrader, Inc., v. Diamond International
Corp., 833 F.2d 1210, 1214 (6th Cir. 1987).
Thus Cox procedurally defaulted on this sub-claim by failing to include it in his petition
for post-conviction relief and again by not appealing to the Ohio Supreme Court.
Based on the foregoing analysis, the Fourth Ground for relief should be dismissed with
prejudice in its entirety.

Ground Five: The Grand Jury Testimony of the Victim

In his Fifth Ground for Relief, Cox asserts the defense should have been allowed to use
C.F.’s grand jury testimony to impeach her at trial.

He raised this claim as his seventh

assignment of error on direct appeal and the Second District decided it as follows:
[*P64] Cox's seventh assignment of error is as follows:
[*P65] "GRAND JURY TESTIMONY THAT INDICATES
RECENT FABRICATION MAY BE USED TO CROSSEXAMINE A WITNESS."
[*P66] In his seventh assignment, Cox asserts that the trial court
erred when it refused to allow defense counsel to use C.F.'s grand
jury testimony to impeach her during cross-examination with
certain sexual acts that she allegedly did not mention at that
hearing, specifically the rape and GSI perpetrated by Cox close to
her birthday at the house on Rosebury Drive.
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[*P67] Prior to trial, the court discussed C.F.'s grand jury
testimony in order to address defense counsel's concern that
Counts II through V of the "A" indictment were not based on
evidence that the grand jury had heard. The record establishes that
the trial court and both parties listened to C.F.'s grand jury
testimony in chambers. After listening to C.F.'s grand jury
testimony, defense counsel agreed that C.F. did mention the rape
and GSI which occurred on her ninth birthday at the house on
Rosebury Drive. Because C.F. did testify regarding the incident
during the grand jury proceeding, defense counsel conceded that it
would not be permissible for him to suggest to the jury that she had
recently fabricated those allegations of sexual abuse. Accordingly,
the trial court did not err when it refused to allow defense counsel
to impeach C.F. with her grand jury testimony when she had, in
fact, testified before the grand jury regarding the rape and GSI at
Rosebury Drive on her ninth birthday.
[*P68] Cox's seventh assignment of error is overruled.
State v. Cox, supra.
The Warden defends this Ground for Relief by asserting that there was no request to use
the grand jury testimony to impeach, citing Mr. Lennen’s concession in that regard (Return of
Writ, ECF No. 6, PageID 833-34).
Cox disagrees with this conclusion because, he asserts, “nothing from the record shows
that the Ohio Appellate Court ever took the time to hear the Grand Jury testimony of C.F., and
yet they still overruled petitioner’s claim.” But there was no reason for the court of appeals to
listen to or read C.F.’s grand jury testimony because that court found Mr. Lennen had agreed
there was no inconsistency. In other words, it was not reviewing directly the question of whether
there was an inconsistency, once it found Mr. Lennen had conceded there was not. As Cox’s
attorney, Lennen was acting as his agent in these circumstances and Cox is bound by Lennen’s
concession.
Cox also argues Lennen made no such concession (Response, ECF No. 10, PageID

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1674). This Court has read the relevant statements by Mr. Lennen and concludes that the finding
of fact of the court of appeals that he conceded there was no inconsistency is correct (See Trial
Tr. Doc. No. 7, PageID 902).
Cox continues by arguing that there was somehow a violation of his Fourteenth
Amendment rights by allowing C.F. “to testify in front of the jury that she was nine years old at
the time of the alleged abuse. . .” (Response, ECF No. 1675). As authority Cox relies on the
proposition that it is unconstitutional prosecutorial misconduct to rely on knowingly perjured
testimony. That proposition, while true, is a far cry from the notion that it violates a defendant’s
constitutional rights not to allow grand jury testimony to be used to show inconsistency when
one’s counsel concedes there is no inconsistency.
As the Warden properly points out, even if Mr. Lennen had not conceded the absence of
inconsistency, this claim would present a purely state evidentiary issue. 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). Cox cites no Supreme Court authority for the proposition that it violates the United
States Constitution to refuse to allow a witness to be impeached with arguably inconsistent grand
jury testimony. Rather, such decisions are committed to the sound discretion of the trial judge
and even abuse of discretion does not state a constitutional claim. Sinistaj v. Burt, 66 F.3d 804
(6th Cir. 1995).

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Cox claims in his Response that his constitutional rights were violated when he was not
permitted to be present at the trial court hearing when this issue was resolved (ECF No. 10,
PageID 1677-78). Not only was this issue not presented to the state courts, it was not even
pleaded in the Petition. Cox attempts to excuse this by saying that it is not really a ground for
relief, but an argument in support of his claim about impeachment of C.F. The Court fails to
understand the logic: how does the grand jury testimony become more or less impeaching if Cox
is present? Even assuming Cox had a right to be present, it is a right his attorney could legally
and did in fact waive. And despite all of his other accusations against Mr. Lennen, Cox has not
claimed it was ineffective assistance of trial counsel to waive his presence at this hearing.
Ground Five should be dismissed with prejudice.

Ground Six: Allowing Dr. Miceli to Testify

Cox claims in his Sixth Ground for Relief that allowing Dr. Miceli to testify violated his
constitutional right to a fair trial. Cox presented a claim that Dr. Miceli should have been
excluded as his fifth assignment of error on direct appeal which the Second District decided that
claim as recounted in its entirety under Cox’s Fourth Ground for Relief, supra, which relieves
the Court of the need to repeat the state court’s decision here.
The Warden argues the claim was not fairly presented as a federal constitutional claim to
the state courts (Return, ECF No. 6, PageID 835). The Court agrees. There is no mention of a
constitutional claim in Cox’s direct appeal on this issue. Even in his Response, he cites Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as the “bedrock” Supreme Court
decision underlying this Ground for Relief (ECF No. 10, PageID 1635). But Daubert is not a

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constitutional decision and the Supreme Court has never imposed the Daubert rule on the States
as a matter of constitutional law.
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
grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792
(6th Cir. 1991).
If a petitioner’s claims in federal habeas rest on different theories than those presented to
the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d
313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a
claim will not save it).
Cox failed to fairly present this Ground for Relief to the state courts as a claim arising
under the United States Constitution. The claim is therefore procedurally defaulted and should
be dismissed with prejudice.

Ground Seven: Ineffective Assistance of Appellate Counsel

In his Seventh Ground for Relief, Cox claims he received ineffective assistance of
appellate counsel when his counsel did not do a better job of citing case authority.
As noted above, Cox failed to appeal to the Ohio Supreme Court from denial of his

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Application to Reopen under Ohio R. App. P. 26(B). This Ground for Relief is therefore
procedurally defaulted and should be dismissed with prejudice.

Ground Eight: Determination of Sentence by the Judge Rather Than the Jury

In his Eighth Ground for Relief, Cox asserts his constitutional rights under the Fourteenth
Amendment were violated when the trial judge decided on a maximum sentence instead of
allowing that issue to be decided by the jury.
Cox raised something like this claim when he filed his Motion for Resentencing. In that
Motion his First Assignment of Error was “[t]he trial court rendered a void Judgment when the
Court failed to State its Findings to impose the Maximum Sentences As to each count of
Conviction as Mandatory Required pursuant to Revised Code 2929.14(c) And revised
2929.19(B)(2)((D).” (Motion, State Court Record, ECF No. 5, PageID 675). Judge Tucker
summarily overruled the Motion and Cox appealed, raising this claim as his First Assignment of
Error. The Second District decided the claim as follows:
[*5] In his first assignment of error, Cox contends the trial court

erred in imposing statutory maximum sentences. Arguing that his
offenses pre-dated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio856, 845 N.E.2d 470, Cox claims the trial court was obligated to
make certain findings to impose anything more than a statutoryminimum sentence and that its failure to do so rendered the
termination entry void. This argument lacks merit. In Foster, the
Ohio Supreme Court held, among other things, that trial courts are
not required to make findings before imposing more than a
statutory-minimum sentence or a maximum sentence. Although
Cox committed at least some of his offenses prior to Foster, he
was sentenced after the decision in that case. It is well settled that
Foster's "severance remedy," which eliminated the need for the
findings at issue, applies to defendants who committed their
offenses before Foster but were sentenced after Foster. See, e.g.,
State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio7040, ¶ 83-86. Therefore, the trial court was not obligated to

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make findings to support more-than-minimum or maximum
sentences.2 The first assignment of error is overruled.
FOOTNOTES
2 Following Foster, the General Assembly reenacted a requirement
for trial courts to make findings before imposing consecutive
sentences. See R.C. 2929.14(C)(4). That requirement took effect
on September 30, 2011. Cox makes no argument, however, about
consecutive-sentence findings. In fact, he admits that partially
"consecutive sentences were justified" in his case. (Appellant's
brief at 2). He complains only about the lack of findings for a
more-than-minimum sentence on each count.
State v. Cox, 2015-Ohio-895, 2015 Ohio App. LEXIS 879 (2nd Dist. Mar. 13, 2015). As noted
above, Cox did not appeal this decision to the Ohio Supreme Court.
As pled in the Petition, this appears to be a claim that the jury must make the findings
necessary to impose consecutive sentences as a matter of federal constitutional law. To that end,
Cox cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004)(Response, ECF No. 10, PageID 1691). However, the applicability of those cases to
findings of fact necessary to sustain a consecutive sentence is negated by the very next case Cox
cites, Oregon v. Ice, 555 U.S. 160 (2009). There is no merit to the constitutional claim that a
jury must determine the facts on which a consecutive sentence is grounded.
More fundamentally, this Court should not reach the merits of this claim because it was
not fairly presented to the Ohio courts as a constitutional claim. On its face and as decided by
the Second District Court of Appeals, it was argued purely in terms of Ohio law. Because it was
not fairly presented, it is procedurally defaulted. Cox’s argument about the interpretation and
application of Ohio H.B. 86 raises only questions of Ohio law on which this Court is bound by
the interpretation of the Second District.
Finally, as with all the other claims Cox raised in post-conviction collateral attacks, the

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claim is procedurally defaulted by Cox’s failure to appeal to the Ohio Supreme Court. Cox
argues that the “Respondent has not shown that the Supreme Court of Ohio accepts ‘Murnahan
Appeals.” (Response, ECF No. 10, PageID 1691.) Respondent has no burden in that regard.
The case reports contain hundreds, probably thousands, of appeals to the Ohio Supreme Court in
post-conviction cases since State v. Murnahan, 63 Ohio St. 3d 60 (1992). The fact that the Ohio
Supreme Court may rarely exercise its jurisdiction over such appeals does not imply that the
jurisdiction does not exist and does not excuse a habeas petitioner’s failure to invoke that
jurisdiction.
Ground Eight should therefore be dismissed with prejudice.

Ground Nine: Standard for Evaluating Sufficiency of Evidence
In his Ninth Ground for Relief, Cox claims the Second District used the wrong standard
for evaluating his insufficiency of the evidence assignment of error. Instead of Jackson v.
Virginia, 443 U.S. 307 (1979), he says, they should have used the “no evidence” standard of
Thompson v. Louisville, 362 U.S. 199 (1960). He argues the Thompson standard is stronger than
the Jackson standard and in fact there is “no evidence” to convict him.
Thompson was heard on a writ of certiorari to the Police Court of the City of Louisville,
Kentucky. The ordinance Thompson was accused of violating reads:
"It shall be unlawful for any person . . . , without visible means of
support, or who cannot give a satisfactory account of himself, . . .
to sleep, lie, loaf, or trespass in or about any premises, building, or
other structure in the City of Louisville, without first having
obtained the consent of the owner or controller of said premises,
structure, or building; . . ." § 85-12, Ordinances of the City of
Louisville.
Id. at 204.
Justice Black for a unanimous Court summarized the case as follows:
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In addition to the fact that petitioner proved he had "visible means
of support," the prosecutor at trial said "This is a loitering charge
here. There is no charge of no visible means of support."
Moreover, there is no suggestion that petitioner was sleeping, lying
or trespassing in or about this cafe. Accordingly he could only
have been convicted for being unable to give a satisfactory account
of himself while loitering in the cafe, without the consent of the
manager. Under the words of the ordinance itself, if the evidence
fails to prove all three elements of this loitering charge, the
conviction is not supported by evidence, in which event it does not
comport with due process of law. The record is entirely lacking in
evidence to support any of the charges.
Id.

About ten years after Thompson, of course, the Supreme Court declared loitering itself to

be a constitutional right. Papachristou v. Jacksonville, 405 U.S. 156 (1972), followed,. Chicago
v. Morales, 527 U.S. 41 (1999), citing Williams v. Fears, 179 U.S. 270 (1900).
Thompson, as applied to this case, does not state a different standard from Jackson, for it
there is no evidence of an element of a crime, there is a fortiori insufficient evidence. But the
evidence as summarized by the Second District on direct appeal shows not only that there is
some evidence, but, above and beyond that, there is sufficient evidence. There was direct
testimony from the victim, C.F., about what Cox did to her on many separate occasions. Cox’s
argument comes down to asking the Court to put C.F.’s testimony completely aside. If that were
done, there would be insufficient evidence, but there is no warrant in law for doing so.
Ground Nine should be dismissed with prejudice.

Conclusion

`

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

be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
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Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

October 6, 2015.
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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