Waller vs. Warden Terry Tibbals

Filing 22

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court s hould certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted toproceed in forma pauperis. Objections to R&R due by 8/5/2016. Signed by Magistrate Judge Michael R. Merz on 7/19/2016. (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
JASON W. WALLER,
Petitioner,

:

- vs -

Case No. 3:15-cv-310
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

TERRY TIBBALS, WARDEN,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Jason W. Waller, is before the
Court for decision on the merits on the Petition (ECF No. 1), the Amended Petition (ECF No. 5),
the State Court Record (ECF No. 17), the Return of Writ (ECF No. 18), and the Reply (ECF No.
21).
Petitioner’s grounds for relief as pled in the first Amended Petitions are:
GROUND ONE: The jury instruction [sic] were improper
depriving appellant of his right to process and a fair trial
Supporting Facts:
A. The trial court was required to instruct the jury for the
inferior offense of aggravated assault and failure to do so
constitutes plain error.
B. The trial court erred in refusing to instruct the jury on
self-defense.

1

1. Appellant was entitled to Castle Doctrine
instruction and presumption
2. Appellant was entitled to a self-defense
instruction
3. Appellant was entitled to an instruction for
reckless homicide
GROUND TWO: The denial of Waller’s motion to dismiss the
indictment was an error because the indictment contained
structural errors which were not remedied by the bill of particulars.
Supporting Facts:
A. Appellant’s indictment must be dismissed because it
failed to state all of the elements of the offense of felony
murder.
B. The Bill of Particulars did not remedy this because it
alleged two theories of felonious assault, failing to put
Appellant on notice of the elements of the offense for
which he was charged.
GROUND THREE: The Prosecutor engaged in misconduct
throughout the entire trial, tainting the whole proceedings,
depriving appellant of a fair trial.
Supporting Facts: …throughout the entire trial, tainting the whole
proceedings, depriving appellant of a fair trial.
GROUND FOUR: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner states that his attorney did not
come enough times and spend enough time in helping to prepare
him for trial in violation of his six [sic] amendment right to
effective assistance of counsel guaranteed by the United States
Constitution. His attorney only spent seven days about 45 minutes
each time, and the Saturday and Sunday the weekend before he
was to start the trial the attorney was to come and see him and go
over what was to be said at trial and never showed.
GROUND FIVE: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance
of counsel guaranteed by the United States Constitution because of
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his counsel never asked the petitioner did he have any character
witnesses, something that would prove his character for meekness,
peacefulness, and accommodating character and how he try [sic] to
talk his way out of situations peacefully. How he the petitioner
likes to help people when he can. How petitioner would not stab an
unarmed person without just cause.
GROUND SIX: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance
of counsel guaranteed by the United States Constitution because of
his counsel[‘s] stipulation to the prosecutor’s motion in limine not
to allow deceased[‘s] violent past to be brought up when specific
acts would be helpful petitioner state of mind and impeachment of
state’s key witnesses. [sic]
GROUND SEVEN: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance
of counsel guarantee[d] by the United States Constitution because
of his counsel[‘s] failure to properly challenge state’s key
witnesses inconsistent statements and testimony and fabrication of
evidence.
GROUND EIGHT: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance
of counsel guaranteed by the United States Constitution because of
his counsel[‘s] failure to properly bring out the evidence to show
self-defense and properly argue it so that it would warrant an
instruction for self-defense. It was the petitioner’s property he was
trying to get back peacefully he had given the deceased a three day
noticed [sic] on the phone and waited two to three weeks to give
him a chance to clam [sic] down before going to the house to give
him a written notice pursuant to Ohio Revised Code 1923.04.
Counsel failed to bring out that in Ohio there is no duty to retreat
when one’s intent is not to use deadly force once the decease [sic]
picked up the stone/rock with the distant [sic] they were from each
other there was no reasonable means of escape running or backing
away was not an option because a stone/boulder/rock can cause
serious physical harm and death in a hand or thrown. the decease
[sic] could have easily chased him down, with a careful look at the
crime scene drawing and pictures you could see that.

(Amended Petition, ECF No. 5, PageID 30, et seq.)
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On January 20, 2016, the Court granted Waller leave to amend to add the following
claims:
Ground Nine: Ineffective Assistance of Trial Counsel in violation
of the 6th Amendment of the U.S. Constitution for failure to object
to the trial court’s erroneous jury instruction.
Supporting Facts: During the stage for instructing jurors on
which violation of the requisite statutes to convict or acquit
petitioner, the instruction involving voluntary manslaughter's
predicate offense of aggravated assault was omitted by the Court.
Wherein trial counsel failed to timely object to this erroneous
instruction, denying the petitioner constitutionally effective
assistance.
Ground Ten: Ineffective assistance of counsel for failure to file
motion to dismiss for due process violation of speedy trial right
guaranteed by the 6th and 14th Amendment[s] of the U.S.
Constitution.
Supporting Facts: Trial counsel's performance fell below the
objective standard of reasonableness when, upon request, counsel
failed to file an motion to dismiss based on the fact that the
petitioner was not afforded a preliminary hearing within the
specified statutory time requirement under Ohio law; violating his
due process and equal protection right protected by the 6th and 14th
Amendment of the U.S. Constitution.
Ground Eleven: Trial court’s abuse of discretion for failure to
instruct jury on self-defense in violation of Due Process Clause of
the 14th Amendment of the U.S. Constitution.
Supporting Facts: During the course of the trial proceedings the
petitioner requested the trial court instruct the jury on self-defense.
Sufficient evidence, on the record, was presented to warrant such
instruction. Moreover, the evidence sufficed the three prongs
required to receive the aforementioned instruction, however, the
trial court arbitrarily refused to instruct jury.
(Motion to Amend, ECF No. 15, PageID 98-100.)

4

Procedural and Factual History

On April 23, 2012, the Clark County Grand Jury indicted Waller on one count of
purposeful murder with firearm specifications in violation of Ohio Revised Code § 2903.02(A);
one count of felony murder with firearm specification in violation of Ohio Revised Code §
2903.02(B); one count of tampering with evidence in violation of Ohio Revised Code §
2921.12(A)(1); and one count of carrying a concealed weapon in violation of Ohio Revised Code
§ 2923.12(A).
Prior to trial, Waller, through counsel, filed motions to suppress statements and photo
identification which were denied (State Court Record, ECF No. 17, PageID No. 122).

In

addition, Waller changed his plea to Not Guilty by Reason of Insanity and Suggestion of
Incompetency to Stand Trial which the court later permitted him to withdraw. Id. at

129.

Waller proceeded to file a motion to dismiss count two of the indictment, felony murder, since it
was defective because of the failure to specify the lesser included offense of felonious assault.
Following a hearing on the matter, the trial court denied the motion.
Waller was tried by a jury and found not guilty of purposeful murder and guilty of felony
murder without a firearm, tampering with evidence, and one count of carrying a concealed
weapon. Id. at 134. On February 12, 2013, Waller was sentenced to an aggregate term of fifteen
years to life with sentences to be served concurrently. Id. at 138.
Waller, through counsel, appealed to the Court of Appeals of Ohio, Second Appellate
District, Clark County, raising the following assignments of error:

I.

The Jury Instructions were improper, depriving appellant of
his rights to due process and a fair trial.

5

A. The trial court was required to instruct the jury for the
inferior offense of aggravated assault and failure to do
so constitutes plain error.
B. The trial court erred in refusing to instruct the jury on
self-defense.
1. Appellant was entitled to the Castle Doctrine instruction and
presumption.
2. Appellant was entitled to a self-defense instruction
C. Appellant was entitled to an instruction to reckless
homicide.
II. The denial of Waller’s Motion to Dismiss the Indictment was an
error because the indictment contained structural errors which were
not remedied by the Bill of Particulars.
A. Appellant’s indictment must be dismissed because it
failed to state all of the elements of the offense of
felony murder.
B. The Bill of Particulars did not remedy this because it
alleged two theories of felonious assault, failing to put
Appellant on notice of the elements of the offense for
which he was charged.

III. The prosecutor engaged in misconduct throughout the entire trial, tainting the
whole proceedings, depriving appellant of a fair trial.
(State Court Record, ECF No. 17, PageID No. 151.)
The Second District set forth the facts of this case on direct appeal as follows:
[*P4] Waller purchased the house at 154 Kewbury, in
Springfield, in 2006. He was employed as a radiographer at Mercy
Medical Center, and later worked a second job with a Dr. Dahdah.
In September 2010, as a result of cutbacks in Medicare, Waller lost
his job at the hospital, and his job with Dr. Dahdah became parttime.
[*P5] Waller could not make ends meet. He fell into arrears in his
mortgage payments. He moved in with his parents in Florida,
6

hoping to make a new start there, but could not find work there,
either. In June 2011, he returned to 154 Kewbury, in Springfield,
with Julie Ferryman, whom he would marry on February 14, 2012.
[*P6] A former patient of Waller's, named Doss Smith, needed
home health care after the death of his wife. He offered Waller and
Julie, a licensed practical nurse, the opportunity to come live with
him, if they would take care of him. There was no formal contract,
but Waller and his wife moved in with Smith on February 28,
2012. At that time, Waller had been in arrears on his mortgage for
a "long time." The bank had not begun foreclosure proceedings,
but Waller anticipated that it would do so.
[*P7] Waller had several friends help him move. One of these
was Donny Argabright, the victim in this case. Argabright had his
own housing problems. He was living with his girlfriend, Stacy
Young, but he and his pit bull dog had been banned from the
premises, so he was reduced to sneaking in and out. Waller agreed
to let Argabright live at 154 Kewbury:
There was no rent. There was no contract. I told him
specifically, you know, the bank could foreclose in four
weeks, you know, six weeks; or I might need it back for
emergency. And he said, "Well, that's fine." He said he
didn't have any problems about it. At that time he agreed.
He said, "Well, I'll just move out." And that's what we
agreed with.
[*P8] Waller and Julie moved in with Smith; Argabright moved
into 154 Kewbury. Waller would occasionally go to 154 Kewbury
to pick up his mail, which included medications mailed to him by
the Veterans Administration.
[*P9] Waller and his wife ran into problems living with Doss
Smith. Smith was abusing his medications, resulting in more than
one hospitalization. Things came to a head when medics asked
where Smith's medications were, and Waller told them they were
in Smith's safe. After a telephone conversation with Smith's son,
Waller concluded he and his wife could no longer stay at Smith's
house. This was in the beginning of April 2012.
[*P10] Even before this, in mid-March, Waller had talked to
Argabright about returning to 154 Kewbury to live. In the first
phone conversation on this subject, Argabright initially agreed,
after some discussion, that he would move out. But Argabright
called Waller back five minutes later, furious, threatening to kill
7

Waller if he even came over to 154 Kewbury. Waller decided to
give Argabright some time to cool down.
[*P11] Waller and his wife explored various temporary housing
possibilities, finally moving into a motel room. This was about
April 3, 2012. Waller's unemployment compensation had ended in
March.
[*P12] On Monday, April 9, 2012, around 7:00 p.m., Waller
drove to 154 Kewbury for his fateful confrontation with
Argabright. Before leaving, he armed himself with a Derringer
pistol, with four bullets, and a bladed weapon with a blade ten to
twelve inches long and one inch wide, and a hilt. The State referred
to the bladed weapon, which was never recovered, as a sword;
Waller referred to it as a knife. We will adopt Waller's name for
the weapon. Both the Derringer and the knife had been given to
Waller by Doss Smith. Waller testified that his purpose in going to
154 Kewbury was to regain possession of his house, and to get his
mail, including his medications, which were running low.
[*P13] Waller parked on the street, near the house, and walked to
the door. From this point, the State's version of events and Waller's
version begin to diverge. According to Waller, he opened the
screen door (the inner door being at least partially open), in order
to see if Argabright was there so he could talk to Argabright.
According to Stacy Young, who was inside with Argabright,
Waller was trying to get inside. In any event, Argabright blocked
Waller's entry into the home.
[*P14] According to Young, Argabright was being conciliatory
on the subject of his occupancy of 154 Kewbury, telling Waller,
"Look, man, we're almost out of here. We just don't want any
trouble." Waller was being provocative, challenging Argabright to
"come outside and we'll settle this." At some point during this
conversation in the doorway, Waller asked if he could at least get
his mail, and Young got Waller's mail and handed it to him.
[*P15] Argabright eventually took his coat off (he was not
wearing anything else above his waist), and stepped outside. Both
parties agree that Waller took the first swing. Waller testified that
he failed to connect. Young testified that Waller connected with
this swing, and with another, both times causing Argabright to
stumble so that he had to use his arm to keep from falling all the
way to the ground.
[*P16] Both parties agree that Argabright picked up a rock. Both
8

parties agree that Waller pulled out his knife, which he had put in
his boot. Either before Waller drew his knife, or as he was doing
so, he threw the mail, including the mail containing his
medications from the VA, onto the yard.
[*P17] According to the State's witnesses, Argabright dropped
the rock when Waller first approached him with the knife.
According to Waller, Argabright did not drop the rock until he was
stabbed with the knife.
[*P18] After some movements on the driveway, in the vicinity of
a vehicle parked there, Argabright wound up facing Waller, with
Argabright's back to the garage door. Young testified that
Argabright had been trying unsuccessfully to open the garage door,
which did not have a handle, and then turned so that he was facing
Waller. She testified that Waller lunged and stabbed Argabright in
the chest with the knife.
[*P19] Waller testified that he was facing Argabright on the
driveway, and that Argabright still had a rock in his hands above
his head. Waller testified that he and Argabright approached each
other:
He was coming at me and with the rock above his head
and he stepped out for me forward and I stepped forward;
and I took the knife and I put it out and stabbed him, ran
into him with it. And the rock, his rock flew to the right
and landed to the right side, landed about four feet to the
right 'cause he was coming at force at me, and I came at
force with him and collided.
[*P20] Waller's knife penetrated six inches into Argabright's
chest, entering Argabright's heart and lungs and injuring his aorta
and pulmonary artery, killing him.
….
State v. Waller, 2014-Ohio-237, 2014 Ohio App. LEXIS 217 (2nd Dist. Jan. 24, 2014), appellate
jurisdiction declined, 140 Ohio St. 3d 1415 (2014). The Second District affirmed the conviction.
Id.
On October 22, 2013, Waller filed a Petition to Vacate under Ohio Revised Code §
2953.21, asserting ineffective assistance of counsel (State Court Record, ECF No. 17, PageID
9

355, et seq.). Waller also filed a motion for an evidentiary hearing. Following briefing, Waller
filed an amended petition adding two additional two grounds of ineffective assistance of counsel.
On November 26, 2014, Waller filed a motion for leave for a new trial based on newly
discovered evidence (Id. at PageID 425). On June 2, 2015, the trial court denied Waller’s postconviction petition and motion for new trial. (State Court Record, ECF No. 17, PageID No. 432).
Waller did not appeal this decision.
On April 23, 2014, Waller filed an application for reopening his appeal pursuant to Ohio
App. R. 26(B) asserting ineffective assistance of appellate counsel. Id. at PageID 437 et seq.
The Second District denied that application on June 4, 2014. (State Court Record, ECF No. 17,
PageID No. 466). Waller did not appeal to the Ohio Supreme Court

ANALYSIS

Ground One: Improper Jury Instructions

In his First Ground for Relief, Waller claims the jury instructions were erroneous in four
respects: (1) failure to instruct on the inferior offense of aggravated assault; failure to instruct on
the Castle Doctrine and presumption; (3) failure to instruct on self-defense; and (4) failure to
instruct on reckless homicide. These four sub-claims will be dealt with seriatim.

Aggravated Assault Instruction

Waller argues he was entitled to have the jury instructed on aggravated assault. He raised
10

this as his first assignment of error on direct appeal and the Second District decided the claim as
follows:
[*P30] Waller's First Assignment of Error is as follows:
THE JURY INSTRUCTIONS WERE IMPROPER, DEPRIVING
APPELLANT OF HIS RIGHTS TO DUE PROCESS AND A
FAIR TRIAL.
[*P31] Waller first contends that the trial court's failure to have
instructed the jury concerning the lesser offense of Aggravated
Assault constitutes plain error. The trial court did instruct the jury,
with respect to each of the Murder counts, that if it should find that
the State had proven beyond reasonable doubt all of the elements
of the offense, but that Waller had proven by the greater weight of
the evidence that he knowingly acted while under the influence of
sudden passion or in a sudden fit of rage, either of which was
brought on by serious provocation occasioned by the victim that
was reasonably sufficient to incite Waller into using deadly force,
then it must find Waller guilty of Voluntary Manslaughter. This
was a proper instruction with regard to the count of
Purposeful Murder, but Waller contends, and we agree, that it was
not a proper instruction with regard to the count of Felony Murder.
[*P32] Waller was charged, in the second count, with having
committed Felonious Assault, proximately resulting in
Argabright's death. Had the jury been correctly instructed as to this
count, then, if it should have found that the State met its burden of
proof as to the elements, but that Waller had succeeded in proving,
by a preponderance, that he acted under the sudden influence of
passion or in a sudden rage, etc., it could not have found that
Waller committed Felonious Assault, the predicate for the Felony
Murder count. Waller would instead have committed Aggravated
Assault, which cannot be a predicate for Felony Murder, but which
can be a predicate for Involuntary Manslaughter. R.C. 2903.04(A).
[*P33] The trial court gave the parties an opportunity to object to
its proposed jury instructions. Although Waller had other
objections to the instructions, he did not object to that part of the
jury instructions, as to the Felony Murder count, concerning the
lesser offense of Voluntary Manslaughter. Therefore, as Waller
acknowledges, this error is governed by the plain-error standard of
appellate review.

11

[*P34] Waller cites State v. Warner, 11th Dist. Portage No. 2008P-0052, 2010-Ohio-4940, for the proposition that the trial court's
failure to have instructed the jury concerning Aggravated Assault
requires the reversal of his Felony Murder conviction. Warner is
similar to this case in that the defendant in that case was charged
with both Purposeful Murder and Felony Murder (based on
Felonious Assault), and the trial court gave Voluntary
Manslaughter instructions as to both Murder counts. As in the case
before us, Warner involved a stabbing death.
[*P35] But there are important differences between Warner and
the case before us. One difference is that in Warner, unlike in this
case, the error was preserved for appellate review, requiring only
ordinary prejudice for reversal. Notice of plain error under Crim.R.
52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of
justice." State v. Boyd, 110 Ohio App.3d 13, 17, 673 N.E.2d 607
(2d Dist.1996), quoting from State v. Long, 3 Ohio St. 3d 12, 3
Ohio B. 360, 444 N.E.2d 1332 (1978), syllabus.
[*P36] Another important difference between Warner and this
case is that in Warner the jury found the defendant guilty of
Voluntary Manslaughter as to the count charging Purposeful
Murder, but guilty of Felony Murder.[FN 1 The court concluded
that the inconsistency in the jury’s verdicts was not itself a basis
for reversal, because the inconsistency involved different counts.
Warner, ¶ 71.] To have found the defendant in that case guilty of
Voluntary Manslaughter on the Purposeful Murder count, the jury
necessarily must have found that the defendant acted under the
influence of a sudden passion or in a fit of sudden rage, etc.,
rendering plausible the conclusion that the incorrect instruction
concerning the Felony Murder count affected the jury's verdict as
to that count.
State v. Waller, supra.
The Magistrate Judge concludes this sub-claim was procedurally defaulted when trial
counsel failed to object during the instructions conference. Waller, 2014-Ohio-237, at ¶ 33.
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
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procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). 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 regarding whether 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).

13

Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by
calling them to the attention of the trial court at a time when the error could have been avoided or
corrected, as set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus;
see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state
ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir.
2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442
(6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d
604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell,
209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).

Reservation of authority to review in

exceptional circumstances for plain error is not sufficient to constitute application of federal law.
Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir. 2002); Scott, 209 F.3d 854. An Ohio state appellate
court’s review for plain error is enforcement, not waiver, of a procedural default. Wogenstahl,
668 F.3d at 337; Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440
F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v.

14

Bagley, 422 F.3d 379, 387 (6th Cir. 2005);, 271 F.3d 239, citing Seymour, 224 F.3d at 557(plain
error review does not constitute a waiver of procedural default); accord, Mason, 320 F.3d 604.
As to the aggravated assault instruction, the Second District clearly enforced the
contemporaneous objection rule by reviewing this claim only for plain error and finding that
none existed. Waller’s claim about the absence of an aggravated assault instruction is therefore
barred by procedural default.

Castle Doctrine Instruction

Waller also claims the trial court erred in refusing to instruct on the “Castle Doctrine.”
This claim was also raised on direct appeal and decided by the Second District as follows:
[*P39] In denying Waller's request for a jury instruction on selfdefense, the trial court determined that the Castle doctrine is not
applicable, so that Waller had a duty to retreat from the
confrontation, if possible, before using deadly force. Waller
contends that the trial court erred in determining that the Castle
doctrine is not applicable in this case.
[*P40] The Castle doctrine takes its name from the maxim that a
man's home is "his castle." State v. Comer, 4th Dist. Gallia No.
10CA15, 2012-Ohio-2261, ¶ 11, citing 4 Blackstone,
Commentaries on the Laws of England (Rev. Ed.1979) 223,
Chapter 16. The Castle doctrine is now codified in R.C.
2901.09(B):
For purposes of any section of the Revised Code that sets
forth a criminal offense, a person who lawfully is in that
person's residence has no duty to retreat before using
force in self-defense, defense of another, or defense of
that person's residence, and a person who lawfully is an
occupant of that person's vehicle or who lawfully is an
occupant in a vehicle owned by an immediate family
member of the person has no duty to retreat before using
force in self-defense or defense of another.

15

[*P41] "Residence," for purposes of R.C. 2901.09, is defined in
R.C. 2901.05. R.C. 2901.09(A). R.C. 2901.05(D)(3) defines
"residence" as "a dwelling in which a person resides either
temporarily or permanently or is visiting as a guest." Before the
enactment of what is now R.C. 2901.05(D)(3) in 2008, we held
that a defendant claiming the benefit of the Castle doctrine — that
is, that he has no duty to retreat in his own home — "must inhabit,
even if temporarily, the dwelling itself." State v. Taylor, 2d Dist.
Miami No. 95-CA-25, 1996 Ohio App. LEXIS 4255, 1996 WL
562796, *6 (Sept. 27, 1996); cited approvingly in In re D.N., 195
Ohio App.3d 552, 2011-Ohio-5494, 960 N.E.2d 1063 (8th Dist.),
at ¶ 19, a case decided after the enactment of the definition of
"residence" in R.C. 2901.05(D)(3).
[*P42] Query whether the driveway upon which Waller fatally
stabbed Argabright can qualify as a "residence" for purposes of
R.C. 2901.09. "Residence" is defined in R.C. 2901.05(D)(3) in
terms of a "dwelling," and "dwelling" is defined in R.C.
2901.05(D)(2):
"Dwelling" means a building or conveyance of any kind
that has a roof over it and that is designed to be occupied
by people lodging in the building or conveyance at night,
regardless of whether the building or conveyance is
temporary or permanent or is mobile or immobile. As
used in this division, a building or conveyance includes,
but is not limited to, an attached porch, and a building or
conveyance with a roof over it includes, but is not limited
to, a tent.
[*P43] For purposes of this appeal, we will assume, without
deciding, that the driveway at 154 Kewbury was part of the
residence for purposes of R.C. 2901.09.
[*P44] Waller cites State v. Barnette, 12th Dist. Butler No.
CA2012-05-099, 2013-Ohio-990, for the proposition that it is
implied in that case "that ownership of the residence is critical for
determining whether the Castle Doctrine applies." In that case, the
defendant went to the victim's apartment to collect "drug money"
the victim owed him; following some discussion, the defendant
shot and killed the victim. Id. at ¶ 2. The defendant in that case
argued that it was plain error not to instruct the jury that he had no
duty to retreat. Id. at ¶ 53. The court of appeals noted that the trial
court had, in fact, instructed the jury that "[a] person who lawfully
16

is in his residence has no duty to retreat before using force in selfdefense or defense of his residence." Id. at ¶ 56. The court of
appeals then noted that: "The mere fact that one is lawfully inside
the residence of another does not invoke the strictures of the castle
doctrine. * * * . Rather, to invoke the castle doctrine in this case,
appellant must have been the lawful occupant or resident of the
Fairfield Residence." Id. at ¶ 57.
[*P45] We find nothing in Barnette to support the proposition
that a defendant's mere ownership of a residential dwelling,
without either presently residing in the dwelling temporarily or
permanently, or visiting it as a guest, vitiates the defendant's duty
to retreat before using deadly force.
[*P46] Waller also cites State v. Lewis, 2012-Ohio-3684, 976
N.E.2d 258 (8th Dist.). In that case, a conviction was reversed
because of a failure to correctly instruct the jury concerning the
Castle doctrine. But the defendant in that case committed the
murder in his own home, in which he was then residing. Id. at ¶ 37. Similarly, in State v. Kozlosky, 195 Ohio App.3d 343, 2011Ohio-4814, 959 N.E.2d 1097 (8th Dist.), another case Waller cites,
the defendant committed the murder in the home in which he then
resided. Id. at ¶ 4, 11.
[*P47] In the case before us, the evidence, including Waller's
own testimony, establishes that he ceased using 154 Kewbury as
his residence, even temporarily, when he went to live with Doss
Smith, and agreed to allow Argabright to use 154 Kewbury as
Argabright's residence. It is also clear from the evidence in the
record, including Waller's own testimony, that Waller was not
visiting 154 Kewbury as a guest when he went there for his fatal
confrontation with Argabright. By Waller's own testimony,
Argabright had made it clear that Waller was not welcome at the
residence.
[*P48] We agree with the trial court that the Castle doctrine
is inapplicable to the case before us.
State v. Waller, supra.
The Warden argues that this claim is not cognizable in habeas corpus because the
applicability of the “castle doctrine” is a question of state law, not federal constitutional law.
Waller does not address this claim in his Reply.

17

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).
Alleged errors in jury instructions normally do not rise to the level of federal
constitutional violations. See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland
Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th
Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). When the evidence presented does not
support a requested jury instruction and that determination is based upon a state court’s
interpretation and application of state law, an asserted error relating to the jury instruction is not
cognizable in federal habeas corpus unless the failure amounted to a fundamental miscarriage of
justice. See Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990).
The Magistrate Judge concludes Waller’s sub-claim relating to the Castle Doctrine is not
cognizable in federal habeas corpus.

Self Defense Instruction

Waller claims that he was entitled to a self-defense instruction. The Second District
denied relief on this claim, holding:
[*P49] To establish self-defense to a charge of murder, a
defendant must show that he was not at fault in creating the
18

situation giving rise to the affray, that the defendant had a bona
fide belief that he was in imminent danger of death or great bodily
harm and that his only means of escape from that danger was in the
use of deadly force, and that the defendant did not violate any duty
to retreat. State v. Jackson, 22 Ohio St.3d 281, 283, 22 Ohio B.
452, 490 N.E.2d 893 (1986).
[*P50] In the case before us, it requires a stretch to find that
Waller was not at fault in creating the situation giving rise to the
affray, since, by his own admission, he took the first swing, even
though he claimed that he failed to connect. But even if a
reasonable jury might find for Waller on that issue, no reasonable
jury could find that his only means of escape was in the use of
deadly force and that he did not violate his duty to retreat. Waller's
own testimony establishes that he had opportunities to retreat, but
failed to avail himself of them. According to Waller, Argabright
threatened to kill him even before Argabright picked up a rock.
Waller testified that after he pulled the knife, Argabright, armed
with the rock, "started backing up towards the glass of the back
window of the Blazer," (not Waller's vehicle) which was in the
driveway. Instead of retreating, Waller "got angry and * * * took
the end of my knife and went forward towards him and * * * hit
the back of the windshield." At a slightly later point, according to
Waller, Argabright went to the front of the Blazer, while Waller
circled back. Again, instead of retreating, Waller "came forward."
[*P51] We conclude that the trial court did not abuse its
discretion in denying Waller's request for an instruction on selfdefense.
State v. Waller, supra.
The Warden argues that the Second District’s decision of this claim is based entirely on
state law and the facts as found by that court (Return, ECF No. 18, PageID 1387). Waller makes
no response in his Reply.
The Magistrate Judge finds the Warden’s position well taken. The Sixth Circuit has held
that the right to assert self-defense is a fundamental right. Taylor v. Withrow, 288 F.3d 846 (6th
Cir. 2002). However, whether the facts of the case warrant a jury instruction on self-defense
remains a question for the state courts. Id. The Second District’s findings of fact on the defense

19

of self-defense are entitled to deference unless Waller shows they are erroneous by clear and
convincing evidence. 28 U.S.C. § 2254(e). He has not made an attempt to do so.

Reckless Homicide Instruction

Finally, Waller claims he was entitled to an instruction on the offense of reckless
homicide. The Second District’s decision on this claim is as follows:
[*P52] Waller requested an instruction concerning Reckless
Homicide. That offense is proscribed by R.C. 2903.041(A):
"No person shall recklessly cause the death of another * * * ."
[*P53] The culpable mental states of "knowingly" and
"recklessly" are set forth in R.C. 2901.22(B) and (C):
(B) A person acts knowingly, regardless of his purpose, when
he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such
circumstances probably exist.
(C) A person acts recklessly when, with heedless indifference
to the consequences, he perversely disregards a known risk
that his conduct is likely to cause a certain result or is likely to
be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such
circumstances are likely to exist.
[*P54] The trial court, in rejecting Waller's request for an
instruction on Reckless Homicide, ruled:
As to the instructions on reckless homicide, I heard the
arguments as to how the jury could find reckless intent —
or reckless mens rea. The evidence that through the
testimony of various witnesses, including the Defendant,
would not indicate a reckless mens rea in this case but one
of at least knowingly. The jury could find purposely. That
would be a jury decision, but at least knowingly. Under
the facts that have been presented, the testimony of all the
20

witnesses, including the Defendant, the Court finds that
reckless homicide is not a proper instruction.
[*P55] We agree with the trial court. By his own admission,
Waller did not merely act with heedless indifference to the
consequences, perversely disregarding a known risk that by
stabbing Argabright in the chest with the knife he would cause
serious injury; he was aware that by stabbing Argabright he would
be causing serious physical harm. By Waller's own admission, the
stabbing was not an accident — he meant to stab Argabright. No
reasonable jury could find, on this evidence, that Waller did not
know that by stabbing Argabright in the chest with a ten-to-twelveinch knife blade he would be causing Argabright serious physical
harm.
State v. Waller, supra.
The Warden asserts this claim is not cognizable in federal habeas corpus because the
Supreme Court has never held as a matter of constitutional right that a state defendant in a noncapital case is entitled to a jury instruction on a lesser-included offense (Return, ECF No. 18,
PageID 1385, citing McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014), and Bagby v.
Sowders, 894 F.2d 792, 797 (6th Cir. 1990)). Waller makes no response in his Reply. The
Warden’s position is well taken as a matter of law. Moreover, the Second District found that the
instruction would not have been warranted by the facts as that court found them and Waller has
not shown that fact finding is clearly erroneous.
Waller’s First Ground for Relief should be dismissed with prejudice.

Ground Two: Structural Error in the Indictment

In his Second Ground for Relief, Waller claims the Indictment in this case failed to
include all the elements required for felony murder.
The Warden defends on the basis that this claim is not a constitutional claim and
21

therefore not cognizable in federal habeas corpus (Return, ECF No. 18, PageID 1388). The
Warden also asserts this claim is procedurally defaulted because it was not included in Waller’s
appeal to the Ohio Supreme Court. Id. at PageID 1389.
Waller makes no response to the Warden’s first assertion. In response to the second, he
admits the claim was omitted from the Ohio Supreme Court appeal, but blames that on
ineffective assistance of appellate counsel of his appellate lawyer (Reply, ECF No. 21, PageID
1416).
Waller raised this claim as his second assignment of error on direct appeal and the
Second District decided it as follows:
[*P57] Waller's Second Assignment of Error is as follows:
THE DENIAL OF WALLER'S MOTION TO DISMISS THE
INDICTMENT WAS AN ERROR BECAUSE THE
INDICTMENT CONTAINED STRUCTURAL ERRORS WHICH
WERE NOT REMEDIED BY THE BILL OF PARTICULARS.
[*P58] In this assignment of error, Waller challenges the
sufficiency of that part of the indictment, Count Two, charging him
with Felony Murder. Waller concedes that an indictment tracking
the wording of the Felony Murder statute, R.C. 2903.02(B), does
not need to specify the underlying felony upon which the charge is
based, as long as the underlying offense is identified in a bill of
particulars, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio6391, 819 N.E.2d 215. He contends that the underlying felony in
his case was not sufficiently identified, because of a discrepancy
between the initial bill of particulars, which he contends alleged
the underlying felony to be Felonious Assault by causing or
attempting to cause physical harm by means of a deadly weapon
— R.C. 2903.11(A)(2) — and the amended bill of particulars,
which alleged the underlying felony to be Felonious Assault by
causing serious physical harm — R.C. 2903.11(A)(1).
[*P59] Count Two of the indictment specified Felonious Assault
as the felony upon which the charge of Felony Murder was based,
but did not further identify the factual basis for the alleged
Felonious Assault. Count Two also had an attached firearm
specification.
22

[*P60] The initial bill of particulars, filed September 18, 2012,
set forth the following in relation to Count Two of the indictment:
Count II: On April 9, 2012 and in the driveway of 154
Kewbury Road, Springfield, Clark County, Ohio Jason
Waller stabbed Donald Argabright in the chest and
Donald Argabright died as a result of the stabbing. Jason
Waller in doing so had on his person or under his control
a firearm while committing the offense.
[*P61] Significantly, the second sentence set forth above was
identically set forth in that part of the initial bill of particulars
pertaining to Count One of the indictment. Each sentence appears
to have been intended to identify the basis for the firearm
specification attached to the particular count in the indictment to
which it pertained.
[*P62] The "Amended Bill of Particulars," filed October 17,
2012, states, in its entirety, as follows:
As to Count II and in addition to the Indictment:
On April 9, 2012 and in the driveway of 154 Kewbury
Road, Springfield, Clark County, Ohio Jason Waller
knowingly caused serious physical harm to Donald
Argabright by stabbing him in the chest with either a sword
or knife piercing his heart, lung, and aorta, a violation of
R.C. 2903.11(A)(1), Felonious Assault, an offense of
violence that is a felony of the second degree. Jason Waller
caused the death of Donald Argabright as a proximate
result of Jason Waller committing or attempting to commit
that Felonious Assault.

Counts I, III, and IV remain as stated and filed on
September 18, 2012.
[*P63] It seems to us that as to Count Two of the
indictment, the Amended Bill of Particulars was intended
to supersede the bill of particulars filed a month earlier, but
even if that is not the case, we see no basis for confusion.
The reference in the first bill of particulars to Waller's
having had a firearm on his person appears to have
identified the factual basis for the firearm specification, not
the type of Felonious Assault alleged to have proximately
23

caused Argabright's death. In each bill of particulars, the
factual basis for the Felonious Assault is clearly identified
as Waller's having stabbed Argabright in the chest with the
bladed weapon that was variously referred to at trial as a
sword or a knife. In our view, this was sufficient to identify
the factual basis for the felony underlying the Felony
Murder count of the indictment.
[*P64] Waller's Second Assignment of Error is overruled.
State v. Waller, supra.
The right to indictment by grand jury in the Fifth Amendment to the United States
Constitution is one of the few remaining provisions of the Bill of Rights that has not been
declared applicable to the States. In other words, there is no federal constitutional right to grand
jury indictment for a state criminal offense. Hurtado v. California, 110 U.S. 516 (1884);
Branzburg v. Hayes,408 U.S. 665, 687-88 n. 25 (1972); Gerstein v. Pugh, 420 U.S. 103 (1975).
Waller apparently did not argue this claim as a federal constitutional claim on direct appeal, and
the Court agrees with the Warden that no federal claim is stated in Ground Two.
The Magistrate Judge also agrees that this claim is procedurally defaulted by failure to
include it on appeal to the Ohio Supreme Court. Waller asserts this failure is excused by the
ineffective assistance of his appellate counsel. However, the Sixth Amendment guarantee of
effective assistance only applies to appeals of right and appellate review by the Ohio Supreme
Court is discretionary. Had Waller been unable to retain counsel, he would not have been
entitled to appointed counsel in the Ohio Supreme Court. The right to appointed counsel extends
to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);
Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective assistance of counsel can excuse procedural
default only when it occurs in a proceeding where a defendant is constitutionally entitled to
counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where there is

24

no constitutional right to counsel there can be no deprivation of effective counsel); Riggins v.
Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708,
714 (N.D. Ohio 2002).
Waller’s Second Ground for Relief should be dismissed with prejudice.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Waller asserts prosecutorial misconduct so tainted the
proceedings as to deny him a fair trial.
This claim was raised on appeal as Waller’s third assignment of error and the Second
District decided it as follows:
[*P65] Waller's Third Assignment of Error is as follows:
THE
PROSECUTOR
ENGAGED
IN
MISCONDUCT
THROUGHOUT THE ENTIRE TRIAL, TAINTING THE
WHOLE PROCEEDINGS, DEPRIVING APPELLANT OF A
FAIR TRIAL.

[*P66] The test for reversible prosecutorial misconduct is
whether the prosecutor's remarks were improper and, if so, whether
they prejudicially affected substantial rights of the accused. State v.
Jones, 90 Ohio St.3d 403, 420, 2000 Ohio 187, 739 N.E.2d 300
(2000). The touchstone of analysis is the fairness of the trial, not
the culpability of the prosecutor. Id.
[*P67] Waller first cites the following colloquy during crossexamination:
Q. Mr. Waller, would you agree that you pretty much have an
answer for everything here this morning?
A. No, sir, I don't.
Q. You mentioned you had the discovery packet, didn't you?
25

A. Yes, sir, I did.
Q. What is a discovery packet?
A. I'm not sure. I just received it from the lawyer.
Q. Yeah, had the statements of every witness,
didn't it?
A. Yes, I guess it did.
Q. And you read those statements, didn't you?
A. Yes. I didn't have all the discovery packet though.
Q. It helped you decide how your questions were gonna be this
morning, didn't it?
A. No, sir.
[*P68] As the State noted, Waller had alluded to his having
received the discovery packet on direct examination, when he was
asked whether he knew that the Derringer pistol had fallen out of
his pocket during his confrontation with Argabright. There was no
objection to the line of questioning quoted above. The State did not
address this subject in its closing arguments.
[*P69] We conclude that it was not improper for the State to have
elicited from Waller that he had access to a discovery packet
containing witness statements in advance of his testimony. Even if
it were not proper for the State to have done so, we find nothing in
this line of questioning that implicates the fairness of the trial.
[*P70] Waller next cites the following exchange during his crossexamination:
Q. Where were the tears before we broke? You didn't shed any
tears.
MR. RION [representing Waller]: Objection. That's not true.
MR. MERRELL [representing the State]: It is true.
THE COURT: Counsel, you're being argumentative with the
witness.
26

MR. MERRELL: Well, I can't help it, Judge. I'll try not to, though.
THE COURT: You will not be argumentative with the witness.
[*P71] The prosecutor then moved on, and did not return to this
subject again. We find nothing in this exchange that would vitiate
the fairness of the trial. Waller's objection was sustained, and the
prosecutor was admonished. Counsel disagreed in front of the jury
whether Waller had shed tears at a previous point during the trial,
and the jury could reach its own conclusion in that regard, to the
extent that it might aid the jury in evaluating Waller's testimony.
[*P72] Waller next cites the following exchange during his crossexamination:
Q. Carrying a Bible in and out of the courtroom and having it on
the table in front of you, are you trying to sway this jury in any
way
—
MR. RION: Objection.
THE COURT: Sustained. Jury will disregard the question.
[*P73] The prosecutor moved on to another subject, and did not
again refer to Waller's Bible, either in questioning or in argument.
Neither in connection with this exchange, nor at any other time
during the trial, did Waller seek a mistrial. We presume that the
jury followed the trial court's instruction to disregard this question.
[*P74] The next exchange cited by Waller occurred immediately
after a recess for lunch:
Q. Let's go over a couple of exhibits. Did you see pictures of the
Samsung phone that we showed in court?
A. No, sir.
Q. You weren't paying attention to what was on the screen or
what?
MR. RION: Objection.
THE COURT: Sustained. Jury will disregard the question.
BY MR. MERRELL:
27

Q. Exhibit 8-A, can you identify that?
A. Yes, it's my cell phone.
Q. Okay. That's what I'm asking.

[*P75] This ill-advised criticism of the witness served no
apparent purpose, and was immediately the subject of an objection
that was sustained. The prosecutor made no subsequent reference
to his suggestion that Waller was not paying attention. We find no
likelihood that this exchange affected the outcome of the trial.
[*P76] Next, Waller cites the following exchange, at the
conclusion of his testimony:
Q. And you described to this jury how upset you were. Correct?
A. Yeah.
Q. And how scared you were.
A. Correct.
Q. What other words did you use? Were you provoked?
A. Fearful, I was scared. I didn't mean for this to happen at all. I
didn't mean to kill Donald.
Q. Well, that's not my question. My question is how did you think
to pick up the pill bottles?
A. How did I think?
Q. Yeah.
A. I don't know.
Q. If you have all those emotions running rampant in your head,
how did you suddenly think I'm gonna pick up my pill bottles?
A. Each one has different emotions at any given time.
Q. I guess the pill bottles were more important to you in your
health than helping Donald who had been stabbed severely.
28

MR. RION: Objection.
THE COURT: Sustained.
MR. MERRELL: No other questions.
THE COURT: Jury will disregard the last remark.

[*P77] Waller's mental state was an issue for the jury to consider,
so the fact that he had had the presence of mind to pick up his VA
medications after stabbing Argabright and before fleeing the scene
was a legitimate point for the State to have elicited. The
prosecutor's final remark was an argument, not a question, and
Waller's objection was properly sustained. But the factual point
had already been made for the jury to consider. We see no
likelihood that the prosecutor's argumentative remark deprived
Waller of a fair trial.
[*P78] Waller next turns his attention to remarks made by the
prosecutor during closing arguments. He first cites the prosecutor's
initial remarks in rebuttal argument:
Quite frankly, I'm dumbfounded with that argument. I
don't know how to respond to it. He did not concede one
thing. He didn't even concede the tampering charge. He
said Jason Waller, he must not have known there was an
official proceeding, yet he knew he stabbed him in the
heart. He had to know the value of that weapon. He
doesn't even concede that to you folks. He doesn't
concede one thing.

[*P79] There is nothing improper in arguing to a jury that aspects
of the adverse party's argument are unreasonable. Because this was
argument, the prosecutor was entitled to his rhetorical flourish that
he was "dumbfounded" by Waller's argument.
[*P80] Waller next addresses a part of the State's initial closing
argument:
Jason Waller owned the property at 154 Kewbury, and it
was in foreclosure. He allowed Donald Argabright, Stacy
Young, and her children, * * * to live in the Kewbury
house when he went to live with Doss Smith. He didn't
29

know how long it would be before the bank made them
leave. He had given them possession and, under the law
as tenants, they had certain rights.
MR. RION: Objection.
THE COURT: Overruled. Continue, please.
MR. CAREY [representing the State]: Then Jason was
told to leave the home of Doss Smith. He had to live in
either a small apartment or a motel room. He grew
increasingly unhappy about the fact that Donald
Argabright was living in the house on Kewbury. But
Jason didn't have them sign a lease. So legally, they had a
month-to-month tenancy.
MR. RION: Objection.
THE COURT: Sustained.
MR. CAREY: He had to give —
THE COURT: None of that is before — there's no evidence about
those issues before the jury of the tenancy or landlord tenant. You
will refrain from commenting about the landlord/tenant issues and
rights.
MR. CAREY: He did have to give them a three-day notice to
vacate.
MR. RION: Objection.
MR. CAREY: Your Honor, this was covered.
THE COURT: That was before the Court. Objection overruled.

[*P81] We see no error in the trial court's rulings in the abovequoted colloquy. From the testimony, including Waller's
testimony, it is clear that he granted to Argabright and his family
the exclusive right to reside at 154 Kewbury while Waller went off
to live with Doss Smith. Argabright was, in fact, given the right to
live there by Waller. And although the general scope of landlordtenant law was not before the court, Waller's own testimony
established that he was familiar with the requirement of a three-day
notice before he could evict Argabright from his property.
30

[*P82] Finally, Waller cites the following exchange during the
State's rebuttal argument:
You heard her [Stacy Young, Argabright's girlfriend] on the 9-1-1
call. We always tell the truth under stress like that. She said Jason
Waller stabbed him. Where's the corroboration of what this man
says? Julie Ferryman, his wife, supposedly heard some of this. Did
she testify today? Huh-uh. Wonder why?
MR. RION: Objection.
THE COURT: Sustained.
[*P83] Waller seems to be arguing that he had a right to prevent
his wife from testifying, and that by commenting on his exercise of
that right, the State violated his constitutional rights. But the
spousal privilege is statutory — R.C. 2945.42, not constitutional,
and contains an exception where: "the communication was made or
act done in the known presence or hearing of a third person
competent to be a witness." It appears from the evidence in the
record that the only testimony that Waller's wife could have given
to corroborate his testimony would have concerned his telephone
conversations with Argabright in the days preceding the
confrontation; she was not present when the confrontation and
stabbing occurred. Therefore, since she would have been testifying
concerning a conversation in the known hearing of a third person,
the statutory privilege would not have applied.
[*P84] In any event, the spousal privilege is statutory, not
constitutional. We are aware of no authority for the proposition
that the State may not comment concerning a spouse's failure to be
called by the other spouse to testify in a proceeding in which that
spouse is a defendant, and Waller has not cited any authority for
that proposition.
[*P85] Finally, because Waller's wife was not present during the
confrontation and stabbing, the State's comment concerning her
failure to testify, an objection to which was promptly sustained,
was not likely to have had any impact on the outcome of the trial.
[*P86] In short, we find no prosecutorial misconduct rising to the
level of reversible error. Even if Waller had moved for a mistrial
based upon prosecutorial misconduct, he would not have been
entitled to a mistrial upon that ground. Waller's Third Assignment
of Error is overruled.
31

State v. Waller, supra.

The Warden defends this Third Ground for Relief on the merits, asserting that the Second
District’s decision is not an objectively unreasonable application of controlling Supreme Court
precedent, particularly Donnelly v. DeChristoforo, 416 U.S. 637 (1974)(Return, ECF No. 18,
PageID 1395-97.) Waller makes no argument on Ground Three in his Reply.
The current standard for evaluating claims of prosecutorial misconduct in the Sixth
Circuit is:
The relevant question in analyzing a claim for prosecutorial
misconduct on habeas review is "whether the prosecutors'
comments 'so infected the trial with unfairness as to make the
resulting conviction a denial of due process.'" Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144
(1986) (internal quotation marks omitted). To satisfy this standard,
the conduct must be both improper and flagrant. Broom v.
Mitchell, 441 F.3d 392, 412 (6th Cir. 2006); see also Pritchett v.
Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (noting that reversal is
required if the prosecutor's misconduct is "so pronounced and
persistent that it permeates the entire atmosphere of the trial or so
gross as probably to prejudice the defendant") (internal citation
omitted). If conduct is found to be improper, four factors are then
considered to determine whether the conduct was flagrant and
therefore warrants reversal: "(1) the likelihood that the remarks of
the prosecutor tended to mislead the jury or prejudice the
defendant; (2) whether the remarks were isolated or extensive; (3)
whether the remarks were deliberately or accidentally made; and
(4) the total strength of the evidence against the defendant." Bates
v. Bell, 402 F.3d 635, 641 (6th Cir. 2005).
Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008). Applying that standard, the Magistrate Judge
concludes the Second District’s decision is not an objectively unreasonable application of
relevant Supreme Court precedent. Ground Three should be dismissed with prejudice.

Ground Four: Ineffective Assistance of Trial Counsel (Insufficient Time)
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In his Fourth Ground for Relief, Waller claims he received ineffective assistance of trial
counsel because his attorney did not spend sufficient time with him in preparation for trial.
The Warden asserts this claim was never presented to the state courts and is therefore
unexhausted (Return, ECF No. 18, PageID 1371-74). The Warden, however, suggests no Ohio
procedural vehicle by which Waller could now raise this claim. A claim which was never raised
in the state courts but could not now be raised is procedurally defaulted.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Waller responds by noting that ineffective assistance of trial counsel claims not raised on
direct appeal are not defaulted if a defendant has the same counsel on appeal as at trial, which is
what happened here (Reply, ECF No. 21, PageID 1417, citing Buell v. Mitchell, 274 F.3d 337
(6th Cir. 2001)). Waller makes that argument in response to the Warden’s procedural defenses to
Grounds Four through Eight, but it is inapplicable to Ground Four which could not have been
raised on direct appeal because it depends on facts outside the record.
In Ohio constitutional claims based on matter outside the record must be raised in a
petition for post-conviction relief under Ohio Revised Code § 2953.21. Waller filed such a

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petition, but no claim like Ground Four was made in that pleading (Petition, State Court Record,
ECF No. 17, PageID 355 et seq.; Supplemental Petition, Id. at PageID 413, et seq.)
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
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.

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As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
If the Court were to reach the merits of Ground Four, it would find Waller has not shown
any deficient performance under the Strickland standard. Simply put, there is no mandatory
minimum number of hours of actual client contact an attorney must have to perform
professionally in a criminal case. Ground Four should be dismissed with prejudice.

Ground Five: Ineffective Assistance of Trial Counsel (Character Witnesses)

In his Fifth Ground for Relief, Waller asserts his trial attorney provided ineffective
assistance of trial counsel because he never asked Waller if he had any character witnesses –
people who could testify to his character for peacefulness.
This Ground for Relief is in the same posture as Ground Four. That is, it was not made in
the petition and supplemental petition for post-conviction relief and is therefore procedurally
defaulted.
Ground Five should be dismissed with prejudice.

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Ground Six: Ineffective Assistance of Trial Counsel: Stipulation to Motion in Limine

In his Sixth Ground for Relief, Waller asserts his trial attorney provided ineffective
assistance of trial counsel when he stipulated to the State’s motion in limine not to allow the
decedent’s violent past to be brought up.
As the Warden points out, Ohio law required the trial judge to exclude past violent acts of
the decedent when offered to show a propensity to violence (Return, ECF No. 18, PageID 1373).
Waller cites no law in his Reply to show this is not the law in Ohio. It cannot be ineffective
assistance of trial counsel to agree to a motion that the judge is bound to grant in any event.
Ohio law does permit testimony about a decedent’s reputation in this regard and such a witness
was presented.
Ground Six should be dismissed with prejudice.

Ground Seven:
Witnesses)

Ineffective Assistance of Counsel (Failure to Challenge State’s Key

In his Seventh Ground for Relief, Waller claims his trial attorney provided ineffective
assistance of trial counsel when he failed to effectively cross-examine key state witnesses on
inconsistent statements and “fabrication of evidence.”
Here, again, is a claim procedurally defaulted because it was not raised in postconviction. In fact, it is not developed at all in either the Petition or the Reply, so that this Court
is not told what inconsistent statements were not used in cross and what evidence was allegedly
fabricated.
Ground Seven should be dismissed with prejudice.

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Ground Eight: Ineffective Assistance of Counsel (Failure to Develop Defense of SelfDefense)

In his Eighth Ground for Relief, Waller alleges he received ineffective assistance of trial
counsel when his attorney failed to adequately develop his defense of self-defense. Once again,
this is a claim not made in the post-conviction petition, to the extent it relies on evidence, not
revealed to this Court, that was not on the record. On the merits of the underlying self-defense
claim, the Second District’s decision, as outlined above, is not an objectively unreasonable
application of Supreme Court precedent.
Ground Eight should be dismissed with prejudice.

Ground Nine: Ineffective Assistance of Counsel (Failure to Object to Omission of
Predicate Offense of Aggravated Assault)

In his Ninth Ground for Relief, Waller complains that his attorney did not object to
omission of an instruction on aggravated assault as the predicate offense for voluntary
manslaughter.
Waller makes it clear in his Reply that this is a claim of ineffective assistance of appellate
counsel rather than a claim of ineffective assistance of trial counsel (Reply, ECF No. 21, PageID
1419-20). He asserts the claim is not procedurally defaulted because it was properly presented as
part of his Application to Reopen under Ohio R. App. P. 26(B). Id.
The Warden was understandably confused by the phrasing of Ground Nine which reads
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as if it were an ineffective assistance of trial counsel claim – failure to object to the instructions –
rather than an ineffective assistance of appellate counsel claim – failure to raise as an assignment
of error trial counsel’s failure to object. Nevertheless, when it is construed as an ineffective
assistance of appellate counsel claim, the Warden does not plead procedural default and the
Court agrees that the ineffective assistance of appellate counsel claim is preserved for merit
review here.
This claim was raised as omitted assignment of error two in the 26(B) Application (State
Court Record, ECF No. 17, PageID 442-46). The Second District rejected this claim on the
merits. State v. Waller, Case No. 2013-CA-26 (2nd Dist. June 4, 2014)(unreported; copy at State
Court Record, ECF No. 17, PageID 466, et seq.). It held:
Waller's Second Proposed Assignment of Error is as follows:
THE DEFENDANT-APPELLANT'S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WERE VIOLATED BY
INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE
COUNSEL FAILED TO OBJECT TO THE JURY
INSTRUCTIONS AS TO THE FELONY MURDER COUNT,
CONCERNING THE LESSER OFFENSE OF VOLUNTARY
MANSLAUGHTER.
In our opinion in this appeal, we concluded that the trial court did,
indeed, err in failing to instruct the jury on the lesser offense of
Aggravated Assault, and by extension, Involuntary Manslaughter,
but that this error was not preserved for appellate review, and did
not, under the circumstances of this case, rise to the level of plain
error. Id., ¶30-38. We ended our analysis on this point by
concluding "that this is not the exceptional case where notice of a
plain error must be taken to avoid a manifest miscarriage of
justice." Id., ¶38.
Waller was charged with both the purposeful murder of
Argabright, and the felony murder of Argabright. He was acquitted
of purposeful murder. As to both murder counts, the jury was
instructed, without objection, that if it should find that the State
had proven all the elements of the offense, but that Waller had
proven by the greater weight of the evidence that he knowingly
38

acted while under the influence of sudden passion or in a sudden fit
of rage, either of which was brought on by serious provocation
occasioned by the victim that was reasonably sufficient to incite
Waller into using deadly force, then it must find Waller guilty of
Voluntary Manslaughter. Id., ¶31.
The problem is that this was not a correct instruction with respect
to the felony murder count, because the finding of provocation,
etc., would not have been a basis for felonious assault, the
predicate for felony murder, but would have been a basis for
aggravated assault, which cannot be a predicate for felony murder,
but which can be a predicate for involuntary manslaughter. Id.,¶
32.
The prejudice required for a reversal based upon ineffective
assistance of trial counsel, while substantial, is not as great as that
required for a reversal based upon plain error, which requires an
exceptional case involving a manifest miscarriage of justice. The
prejudice required for a reversal based upon ineffective assistance
of trial counsel requires a showing "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 undermine confidence in
the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), quoted in State v. Bradley, 42
Ohio St.3d 136, 142, 583 N.E.2d 373 (1989). "***a defendant
need not show that counsel's deficient conduct more likely than not
altered the outcome in the case." Strickland, at 693.
In the case before us, if the jury had found the requisite
provocation, it would presumably have found Waller guilty of
voluntary manslaughter, based upon the erroneous instructions it
had been given. Waller, ¶38. Had the jury been given the correct
instructions, it would have been instructed that it should find
Waller guilty of involuntary manslaughter if it found the requisite
provocation. We see no reason to believe that the jury would have
been more likely to find the necessary provocation if it had been
told that the result would have been to reduce Waller's conviction
to a greater extent than it was, in fact, told would be the result of
finding the same provocation.
We conclude, therefore, that there is not a reasonable probability
that the result of the trial would have been otherwise had Waller's
trial counsel requested the correct instruction.
Id. at PageID 468-70.
39

As noted above, Strickland v. Washington provides the standard for measuring ineffective
assistance of trial counsel claims. The Strickland test also applies to appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim
of ineffective assistance of appellate counsel, then, the court must assess the strength of the claim
that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v.
Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts
to ineffective assistance only if a reasonable probability exists that inclusion of the issue would
have changed the result of the appeal. Id., citing Wilson.
The Second District applied the correct federal standard under Strickland. It concluded
that the result of the trial would probably not have been different if trial counsel had requested
and received the correct instruction. Therefore it was not ineffective assistance of trial counsel to
fail to make that request and not ineffective assistance of appellate counsel to fail to raise that
claim on appeal.

The question before this Court is whether or not that decision was an

objectively reasonable application of Strickland at the appellate level.
The Warden does not argue the merits of Ground Nine, probably because of the
confusion caused by its wording as an ineffective assistance of trial counsel claim. Waller also
does not argue the merits of this claim and the Magistrate Judge concludes on the merits that the
Second District’s decision is not an objectively unreasonable application of Strickland. The
Second District is, after all, the court which would have had to be persuaded by the omitted
assignment of error and was not, based on its having grappled with the underlying trial court
error.
Moreover, the Warden claims this Ground for Relief is procedurally defaulted by
Waller’s failure to appeal to the Ohio Supreme Court from the denial of his 26(B) application
40

(Return, ECF No. 18, PageID 1376, citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)).
Although Waller asserts the claim is not procedurally defaulted, he does not show any appeal to
the Ohio Supreme Court on the 26(B) application or any reason why O’Sullivan does not apply.
Ground Nine should, therefore, be dismissed with prejudice, both on the merits and as
procedurally defaulted.

Ground Ten: Ineffective Assistance of Counsel (Failure to File Speedy Trial Motion)

In his Tenth Ground for Relief, Waller asserts he received ineffective assistance of trial
counsel when his trial attorney failed to file a motion to dismiss for denial of Waller’s
constitutional right to a speedy trial.
As the Warden notes, this claim was never presented to the Ohio courts as an ineffective
assistance of trial counsel claim, either on direct appeal or in post-conviction. Instead, it was
first presented as an underlying claim on Waller’s First Proposed Assignment of Error in his
26(B) Application. The Second District decided that claim on the merits as follows:
Waller's First Proposed Assignment of Error is as follows:
DEFENDANT-APPELLANT'S TRIAL COUNSEL WAS
INEFFECTIVE IN THAT TRIAL COUNSEL DID NOT FILE A
MOTION TO DISMISS PURSUANT TO OHIO REVISED
CODE § 2945.73, BASED ON A VIOLATION OF OHIO
REVISED CODE § 2945.71, WHERE THE DEFENDANT WAS
NOT TIMELY INDICTED AFTER HIS ARREST.
Waller asserts that he was arrested for the offense of Murder, for
which he was later tried and convicted, on April 10, 2012, and that
he was not indicted until April 23, 2012, thirteen days later. He
argues that this violated his right under R.C. 2945.71 (C)(1) to
have been accorded a preliminary hearing within ten consecutive
days after his arrest, during which he was held in jail in lieu of bail.
Finally, he contends that his appellate counsel was ineffective for

41

having failed to assign as error that his trial counsel was ineffective
for having failed to seek the dismissal of the charges against him.
Waller relies upon RC. 2945.73(A), which provides that a charge
of felony shall be dismissed if the accused is not accorded a
preliminary hearing within the time required by R.C. 2945.71. But
R.C. 2945.73(D) provides that a dismissal under division (A) of
the section "has the same effect as a nolle prosequi." In other
words, it is a dismissal without prejudice. This is in contrast with a
discharge under divisions (B) or (C) of R.C. 2945.73 - for felony
or misdemeanor speedy trial violations - which "is a bar to any
further criminal proceedings against [the accused] based on the
same conduct."
In short, the only relief to which Waller would have been entitled
for the fact that he was not accorded a preliminary hearing within
ten days following his arrest was the dismissal of the charge and
his release from jail. This would not have affected the validity of
his indictment thirteen days following his arrest, and is therefore
not material to his appeal from his conviction and sentence on that
indictment. Therefore, Waller's appellate counsel was not
ineffective for having failed to assign this as error.
State v. Waller, Case No. 2013-CA-26 (2nd Dist. June 4, 2014)(unreported; copy at State Court
Record, ECF No. 17, at PageID 466-68.) In short, the Second District held it was not ineffective
assistance of appellate counsel to fail to raise this assignment of error because it would have been
without merit.
The Warden’s Return evinces the same confusion as with Ground Nine, to wit, that this
Ground is pled as an ineffective assistance of trial counsel claim never brought in the state courts
(Return, ECF No. 18, PageID 1375).
Waller’s Reply shows that he confuses the federal constitutional right to a speedy trial
with the Ohio statutory right to a preliminary hearing within ten days of arrest. Waller received a
trial well within the one year presumptive federal constitutional limit and thus his constitutional
speedy trial right was not violated. As to the Ohio right to preliminary hearing, that is not a
constitutional right. In fact, there is no constitutional right to such a hearing, speedy or not, and
42

in both the Ohio and federal criminal justice systems, no preliminary hearing is held if an
indictment is returned.
Waller is also mistaken about the result of failure to hold a speedy preliminary hearing.
As the Second District pointed out, that would call for a dismissal and release, but only without
prejudice, as with a nolle prosequi.
Ground Ten is without merit and should be dismissed with prejudice.

It is also

procedurally defaulted for lack of an appeal to the Ohio Supreme Court.

Ground Eleven: Trial Court Refusal to Instruct on Self Defense

In his Eleventh Ground for Relief, Waller asserts the trial court abused its discretion by
failing to instruct on self-defense.
The Warden asserts this claim duplicates part of the First Ground for Relief (Return, ECF
No. 18, PageID 1376). Waller makes no response in his Reply.
Ground Eleven should be dismissed with prejudice for the same reasons given with
respect to the relevant part of Ground One.

Conclusion

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

43

proceed in forma pauperis.

July 19, 2016.
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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