Powell v. Ross Correctional Facility

Filing 48

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/21/2018. Signed by Magistrate Judge Michael R. Merz on 2/7/2018. (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
CEDRIC E. POWELL-EL 1,
Petitioner,

:

- vs -

Case No. 3:16-cv-109
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. The Amended Petition was filed July 17, 2017 (ECF No. 23). Respondent filed an
Amended Return September 8, 2017 (ECF No. 31) and Petitioner has filed a Reply (ECF No.
47). The case is therefore ripe for decision.
Powell seeks relief from his conviction and sentence in 1999 in the Montgomery County
Common Pleas Court on counts of rape, kidnapping, corruption of a minor, multiple counts of
felonious assault, pandering sexually-oriented material involving a minor, and illegal use of a
minor in nudity-oriented material.
His original Petition in this case raised one ground for relief:
Ground One: Ineffective Assistance of Counsel.
Supporting Facts: Remanded on the 13th of Dec. 2010, Adeleine
Hamilton appointed as counsel, we planned for two days for
1

Petitioner has changed his name since originally filing this action. The caption is amended accordingly.

1

hearing on the 16 of December. Trial court appointed another
counsel on the 15th of Dec. and remocve [sic] my original counsel
Ms. Hamilton in chambers, without an explanation, and forced me
to take counsel of his choice, who did nothing for me and let trial
court do whatever – I had valid argument of a void sentence in
accords [sic] with st. [sic] v. Baker for failure to set forth the
manner of conviction and a non final appealable order, but my new
counsel did nothing. Ms. Hamilton was willing to argue it.
(Petition, ECF No. 4, PageID 17.)
Upon the filing of the Petition, the Magistrate Judge determined that this was a second or
successive habeas application because Mr. Powell had filed a previous habeas application
attacking the same conviction in Case No. 3:02-cv-214 (Transfer Order, ECF No. 2, PageID 10).
Having made that determination, the Court was bound to transfer the case to the Sixth Circuit for
Mr. Powell to obtain its permission to proceed under 28 U.S.C. § 2244(b). In re: Kenneth W.
Smith, 690, F.3d 809 (6th Cir. 2012). Id.
The Sixth Circuit disagreed with this Court’s second-or-successive decision and
remanded the case.

In re:

Cedric E. Powell, Case No. 16-3356 (6th Cir. Jan. 6,

2017)(unreported; copy at ECF No. 6). It held:
Powell’s application to file a second or successive habeas petition
is unnecessary. As the respondent concedes, Powell does not need
authorization to file a successive habeas petition to the extent that
his claims arise out of his 2011 resentencing hearing. Magwood v.
Patterson, 561 U.S. 320, 342 (2010). Moreover, pursuant to our
decision in In re Stansell, 828 F.3d 412, 413-14 (6th Cir. 2016),
Powell’s resentencing hearing created a new judgment, freeing him
from the requirement to seek authorization to file a second or
successive habeas petition to challenge any other aspect of his
convictions and sentence. Although the respondent contends that
Stansell was decided incorrectly, we are not at liberty to disregard
it. See United States v. Washington, 127 F.3d 510, 517 (6th Cir.
1997).

Id. at PageID 22.
2

Powell was then granted leave to amend to re-plead his original habeas claims and has
done so (Amended Petition, ECF No. 23). His Amended Grounds for Relief from the 2002
Application read:
2002 Ground One: Petitioner was denied a fair trial when trial
court committed prejudicial error in the consolidated trial by
allowing the state to circumvent the prohibition of other acts and
photos in a charged offense of rape, Ct. 1-4 should have been
severed from Ct. 5-18.
Supporting Facts: The petitioner did rely upon a state case
employing federal constitutional analysis joinder allowed the
circumvention of other acts evidence which was prejudicial citing
State v. Schaim 65 Oh.St.3d 51 citing Drew v. U.S. 331 F.2d 85,
93. The petitioner did give the trial court adequate motions arguing
severance and its prejudicial effect. The evidence from cts. 1-4
were (sic) different those alleged offenses alleged were done in
1999, and cts. 5-18 were alleged to have happened in 1998. Cts. 14 were of an alleged forceful nature, and other cts. 5-18 were
merely photos deemed inappropriate. Cts. 5-18 tainted cts. 1-4 and
caused the jury to convict. The photos did not depict any evidence
of cts. 1-4, but merely inflamed the jury. State v Schaim 65
Oh.St.3d 51 cites Drew v. U.S. 331 F.2d 85, 93 a state case which
relied on federal analysis as in Picard v. Conner 404 U.S. 270,
276.
2002 Ground Two: Amended; The Petitioner was denied a fair
trial when illegally seized and searched evidence was allowed in
trial and presented to the jury to obtain a conviction on all counts.
Supporting Facts: Illegally seized evidence was not harmless,
error where the whole of the state’s case was based on these
illegally seized videos that had nothing to do with an alleged rape,
or kidnapping. The testimony was one continuous dialogue of
other acts directed toward the Petitioner’s character, as opposed to
an actual crime. Considering that there were other females on the
video and home video of Apt. one witness, giving their version of
events; despite a picture being worth a thousand words, once, the
bell is rung it can't be un-rung. This evidence was used in
conjunction with perjury by the alleged victim and supported
and/or encouraged by the state. The state participated directly with
fabricating evidence in order to obtain this conviction.
2002 Ground Three: The petitioner was denied due process of
law where the appellate court reverse some convictions based on
3

illegally seized evidence but allows other convictions to remain
based on exactly the same illegally seized evidence.
Supporting Facts: The trial court allowed evidence of the video
tape to be presented in a trial for alleged rape, kidnapping, and
assault which had nothing to do with any of the aforementioned
offenses. The defense filed several motions opposing the
introduction of this evidence and why it would be prejudicial citing
state case using federal analysis, State v Schaim, 65 Oh. St 3d 51.
The video evidence was intricatelly [sic] tied to Ground two
(amended) because illegally seized evidence was vacated by the
2nd Dist. Court of Appeals, creating retroactive misjoinder which
arises when prejudice results from proper joinder that is later
rendered improper by Appellate Court reversal of fewer that an all
convictions; which is what was done in this case.
2002 Ground Four:
assistance of counsel.

The Petitioner was denied the effective

Supporting Facts: The Petitioner was denied the effective
assistance of counsel after his retained counsel was made a witness
for the state and the trial court appointed Charles Smiley, as
counsel of his choice to represent Petitioner. Smiley told a witness
with exculpatory testimony not to come to trial. Counsel’s actions
prejudiced petitioner and the reliability of the outcome of the trial
was suspect. *(note this is the first of two times the trial court has
removed counsel and appointed his own)
Counsel did not provide petitioner with reasonable representation
or constitutional protection guaranteed by the 6th Amend. His
action fell below a reasonable objective standard of representation
and violated his duties to the Petitioner. Inadequate legal assistance
guaranteed by the Sixth Amendment, constitutes an
unconstitutional deprivation of the petitioner’s liberty. The
ineffective assistance of counsel claim presented substantive
grounds for relief.
(ECF No. 23, PageID 743-49.)

Procedural History

Petitioner Cedric Powell-El was convicted by a jury in the Montgomery County Court of
4

Common Pleas on counts of rape, kidnapping, corruption of a minor, multiple counts of
felonious assault, pandering sexually-oriented material involving a minor, and illegal use of a
minor in nudity-oriented material and sentenced to twenty-two years’ imprisonment. On direct
appeal to the Ohio Second District Court of Appeals, convictions on three counts were vacated,
reducing the aggregate sentence to twenty-one years. State v. Powell, 200 WL 1838716 (2nd
Dist. Dec. 15, 2000), appellate jurisdiction declined, 91 Ohio St. 3d 1508 (2001).
The Second District found the following facts underlying the convictions:
The facts underlying this appeal are set out in the State's brief and
are supported by our examination of the record. In February of
1998, fifteen-year-old Shannon Trammell went to Time
Communications ("the store"), a pager and cellular telephone store
located at 1450 W. Third Street in Dayton, to return a pager. At
that time Shannon met appellant, the owner of the store.
Thereafter, Shannon spent almost everyday at the store, playing on
the computer and watching television. Between September 1 and
November 30, 1998, Powell took photographs and made a video
of Shannon engaging in sexual activity with him and in various
stages of nudity. While taking the photos and making the video,
Powell told Shannon what to do and how to pose.
On Thursday, February 18, 1999, Shannon received a telephone
call from appellant at her home. Powell asked her to watch the
store for him while he ran errands. Shannon agreed and Powell
picked her up at her house sometime before dinner. As Shannon
and Powell drove to the store, Powell questioned Shannon about
some money. When Shannon explained to Powell that she did not
know anything about any money, Powell slapped her across the
face with his hand. Shannon got out of the car and tried to walk
away from Powell, but Powell grabbed her by her coat, took hold
of her arm, and guided her inside and into the back room of the
store.
Once in the bedroom area, Shannon testified that Powell began to
hit her with his hands and rip at her clothes. When Shannon tried to
fight back, Powell began to kick her, all the while asking about his
money and a ring. When Shannon repeated that she did not know
what he was talking about, appellant whipped her naked body with
an extension cord and beat her with a spindle from a stair banister.

5

To ensure that Shannon did not escape, Powell handcuffed
Shannon's left arm to the bed and tied her right arm to the bed with
the extension cord. Powell placed a blue blanket over Shannon's
head and stated, "bitch, I'm about to kill you." Shannon was able to
pull the blanket down from her eyes with her arms and observed
Powell pull out a gun. Powell put the barrel of the gun in
Shannon's mouth, then took the gun out of her mouth, pointed it at
her, and fired. Shannon testified she felt the bullet fly by her head
and then felt the hard metal surface of the gun make contact with
her head just behind her left ear.
As Shannon attempted to recover from the blow to her head,
Powell poured gasoline over her. The gasoline drenched the coat
that was still hanging from Shannon's arm and ran into her mouth
and eyes. Shannon spent Thursday night with her left wrist
handcuffed to the bed. Shannon next saw Powell on Friday,
February 19, 1999. Powell entered the bedroom, flipped Shannon
over on her stomach, bent her upper body over the bed, and
penetrated her anally with his penis. Shannon begged Powell to
stop, but he continued to rape her for five to ten minutes more.
Meanwhile, Gloria Trammell began to look for her daughter,
Shannon, when she had not returned home in over a day. At
approximately 11:30 a.m. on Saturday, February 20, 1999, Mrs.
Trammell and Quincy Trammell, Shannon's cousin, went to
appellant's store. Mrs. Trammell informed Powell that she was
looking for Shannon, but Powell stated that he had not seen her.
At the same time, Shannon heard her mother's voice. Shannon
called out her mother's name, "Gloria." Quincy heard someone cry
out from the back of the store and recognized the voice as
Shannon's. Mrs. Trammell noticed that Powell became nervous
and fidgety and spoke louder to drown out Shannon's cries. Based
on Powell's suspicious behavior, Mrs. Trammell told Powell that
she was calling the police, and she and Quincy left the store.
Powell went into the bedroom and told Shannon that if she did not
"shut up," he would kill her. Powell then ordered Shannon into the
closet, warned her to be quiet and closed the door.
Powell, Shannon, and another woman, later identified as Jquan
McDade, exited the store through the back door. Thereafter,
Shannon was permitted to call her grandmother from a payphone
on the corner of Westwood and Hoover, under Ms. McDade's close
observation. At the same time, Mrs. Trammell and Quincy were
driving down Hoover Avenue and saw Shannon standing at the
payphone with Ms. McDade. Quincy immediately jumped out of
6

the car and ran over to Shannon. Quincy grabbed Shannon's right
arm and pushed Ms. McDade out of the way, who was holding
onto Shannon's left arm. Ms. McDade threw up her hands and said,
"well, it's her life." Mrs. Trammell subsequently took Shannon to
Good Samaritan Hospital.
Dr. Rebecca Perry of Good Samaritan Hospital testified that, on
Saturday, February 20, 1999, Shannon had generous amounts of
bruising to her face, bruising caused by blunt trauma behind
Shannon's left ear, abrasions to the back portion of her neck, linear
bruising to her inner thighs, abrasions to her left wrist, and looplike linear bruising to her back which were consistent with being
whipped with an electrical cord. Nurse Kathryn Black testified that
Shannon's clothes smelled strongly of gasoline.
Detective David Wolford of the Dayton Police Department
testified at trial that he was dispatched on December 17, 1998 to
the Rite-Aid Pharmacy on Third and James H. McGee in Dayton
on a report that the pharmacy had developed photos of naked
juvenile females with an adult male. Wolford said he went to the
pharmacy and viewed the photographs which were identified in the
trial record as State's Exhibits 2-11. The film was left by a person
who identified himself as Earl Martin. Wolford said he turned the
photos over to Detective Claudette Ison and later participated in
the search of Powell's business. It was then that Wolford learned of
the identity of the persons in the photographs, Powell and Shannon
Trammell.
Earl Martin testified he was a friend of Cedric Powell and often
helped him out at Powell's business. Martin said he saw Powell
photographing Shannon Trammell. He said Powell used a timer so
that he could be photographed with Shannon. Martin said he was
also present with Shannon. Martin said he was also present when
the videotape was made.
Martin said he was at the store when Shannon came to the
defendant's business on Thursday evening, February 18, 1999. At
that time Martin said Shannon looked normal. Martin said when he
returned the next morning Shannon was handcuffed to a bed.
Martin said Shannon's face was "messed up," that her eye was
black and swollen shut, and her mouth was busted. Martin said
Shannon was wearing torn pants and no shirt. Martin said he then
mopped up gasoline which was on the floor of the room where
Shannon was located. Martin said Powell told him the next day
that he had anal sex with Shannon.

7

Dayton police officers arrested Powell later that evening. Powell
admitted to Dayton Detective William Lawson that he had known
Shannon Trammell for about two years and that he had sexual
intercourse with her on numerous occasions. He denied having
sexual relations in the month preceding his arrest. He admitted
knowing that Shannon was a teenager.
Powell stated he suspected Shannon of stealing a diamond ring
from him in December 1998 but he couldn't prove it. Powell stated
to the police that on February 15, 1999 while Shannon was at the
store someone stole $ 175 from his coat. Powell said Shannon did
not come to the store for a few days. Powell said he then called
Shannon and asked to talk to her. Powell said he went to Shannon's
home and took her to the store and confronted her about the thefts.
Powell said he became angry when Shannon denied responsibility
and he "smacked her in the face with his hand."
Lawson testified that Powell told him that Shannon admitted
stealing the ring and the money. Shannon told him she gave the
ring to her boyfriend, Victor, and used the money herself to buy
crack. Lawson said Powell told him he told Shannon she wasn't
leaving the store until he got his jewelry back. Powell said
Shannon stayed at the store until Saturday February 20, 1999.
Powell denied raping or kidnaping Shannon and stated that
Shannon already had injuries when he picked her up at her home.
Powell said he thought Shannon's boyfriend Victor had injured her.
State v. Powell, 2000 Ohio App. LEXIS 5829 (2nd Dist. Dec. 15, 2000).
Various other state court proceedings were unsuccessful.

On November 4, 2010,

Petitioner moved for re-sentencing to vacate his sentence which he claimed was void because he
had not been notified by the trial court that he was subject to a mandatory term of five years’
post-release control on his first degree felonies.
Petitioner appeared for the resentencing hearing on December 16, 2010, but it was re-set
to allow preparation of an updated presentence investigation report. On January 6, 2011, he was
informed at an in-court hearing that he was subject to “a full five years of post-release control on
rape, kidnapping, corruption of a minor, pandering sexually oriented material involving a minor,

8

and illegal use of a minor in nudity-oriented material and “a full three years” of post-release
control for the felonious assault charges.”

These terms were embodied in an amended

termination entry filed January 10, 2011.
Powell-El appealed raising five assignments of error. The Second District eventually
granted relief on two assignments that are not material here, but found Powell-El was not entitled
to a full re-sentencing and his attorney did not provide ineffective assistance of trial counsel.
State v. Powell, Case No. CA 24433 (2nd Dist. Jan. 7, 2014)(unreported; copy at State Court
Record, ECF No. 12, PageID 331 et seq.) Later, the court affirmed imposition of post-release
control except for the rape conviction on which the sentence had already been served. State v.
Powell, Case No. CA 24433 (2nd Dist. Sept. 5, 2014)(unreported; copy at State Court Record,
ECF No. 12, PageID 376, et seq.) Powell-El’s motion for leave to file a delayed appeal in the
Ohio Supreme Court was denied. Id. at Exhibit 38.
In May 2015 Powell-El again filed a motion to vacate and correct a void sentence. Id. at
Exhibit 44. The trial court denied relief and the Second District affirmed. State v. Powell, Case
No. CA 26935 (2nd Dist. Sept. 16, 2016)(unreported; copy at State Court Record, ECF No. 12,
PageID 537, et seq.) Powell-El filed a third pro se motion to vacate January 31, 2017, which the
trial court denied.
In May 2002, Powell-El filed his first petition for writ of habeas corpus in this Court in
Case No. 3:02-cv-214. The undersigned recommended dismissal with prejudice (ECF No. 23 in
that case). Powell-El did not object and District Judge Rose dismissed the case. Id at ECF No.
24. Powell-El did not appeal.

9

Analysis

Ground One: Ineffective Assistance of Counsel on Resentencing

In his First 2016 Ground for Relief, Mr. Powell asserts he received ineffective assistance
of trial counsel in his resentencing on December 16, 2010, because the trial court replaced his
original appointed attorney with another attorney who was not willing to make the arguments
Powell wanted made.
Respondent asserts that this claim is procedurally defaulted because, although it was
raised on direct appeal from resentencing, Powell did not timely appeal further to the Ohio
Supreme Court (Return of Writ, ECF No. 13, PageID 682). The record reflects that the Second
District Court of Appeals rejected Powell’s assignment of error on September 5, 2014 (State
Court Record, ECF No. 12, Ex. 35). Powell did not seek leave to file a delayed appeal in the
Ohio Supreme Court until February 2, 2015. Id. at Ex. 37. This was well past the forty-five day
time limit for filing an appeal to the Ohio Supreme Court.
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). The
Ohio Supreme Court’s forty-five day time limit is an adequate and independent state procedural
ground for decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). The Ohio Supreme
Court enforced that time-limit against Powell-El when it denied his motion for delayed appeal
(State Court Record, ECF No. 12, Ex. 38).
In his Traverse, Powell-El seeks to excuse this procedural default by blaming his
appellate attorney for not providing him with a copy of the appellate opinion until November 4,
10

2014 (ECF No. 47, PageID 841). The Magistrate Judge assumes the truth of that asserted fact.
But Powell-El did not file his motion for delayed appeal in the Ohio Supreme Court until
February 2, 2015, ninety days after he received the appellate opinion. The deadline for appealing
to the Ohio Supreme Court from an intermediate appellate decision is forty-five days from the
date of judgment. Assuming all the time between the judgment and Powell-El’s receipt of the
judgment were excused by attorney error, there are no facts to excuse taking twice the allowed
amount of time to file in the Ohio Supreme Court.
The forty-five day time limit on appeal to Ohio Supreme Court prescribed by S. Ct. Prac.
R. 7.01(A)(1) is an adequate and independent state ground of decision. Bonilla v. Hurley, 370
F.3d 494, 497 (6th Cir. 2004)(citations omitted). Lack of counsel at that stage, lack of a trial
transcript, unfamiliarity with the English language, and short time for legal research in prison do
not establish cause to excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S. 478, 49495 (1986).
Powell-El has not offered sufficient excusing cause for his delay in filing in the Ohio
Supreme Court. Therefore his First Ground for Relief is procedurally defaulted and should be
dismissed on that basis.

2002 Amended Grounds for Relief

The Warden notes that Powell-El’s Amended Grounds for Relief are the same grounds he
raised in his 2002 habeas petition.

The 2002 case was referred to the undersigned who

recommended that the first three grounds be dismissed as procedurally defaulted and the fourth

11

ground be dismissed on the merits (Report and Recommendations, reproduced at State Court
Record, ECF No. 12, Ex. 19). Powell-El made no objections and Judge Rose adopted the
Report, dismissing the 2002 Petition with prejudice. Id. at Ex. 20. Pertitioner took no appeal.
Because these four grounds for relief were litigated on the merits in 2002, the Warden
asserts their re-litigation is barred by res judicata or collateral estoppel (Supplemental Return,
ECF No. 31, PageID 796, citing Manis v. Warden, Case No. 1:14-cv-057, 2015 U.S. Dist.
LEXIS 63323 (S.D. Ohio May 15, 2015). In Manis, however, the Court was concerned with the
collateral estoppel effect of a prior holding of mental incompetency by the Social Security
Administration in a later criminal proceeding in an Ohio Common Pleas Court.
Here, however, collateral estoppel or res judicata is urged to run from a prior decision of
this Court in habeas corpus. But habeas “long has been understood as an exception to both the
rule and the rationale of res judicata . . . .” Hertz & Liebman, Federal Habeas Corpus §
28.2(a)(7th ed.).
While neither res judicata nor collateral estoppel completely bars reconsideration of the
Court’s prior decision of these four grounds for relief, the parallel doctrine of law of the case
strongly suggests that the Court should not. Under the doctrine of law of the case, findings made
at one point in the litigation become the law of the case for subsequent stages of that same
litigation. United States v. Moored, 38 F 3d 1419, 1421 (6th Cir. 1994), citing United States v.
Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As most commonly defined, the doctrine [of law of the
case] posits that when a court decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618
(1983), citing 1B Moore's Federal Practice ¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645,
660-61 (6th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it

12

is important for courts to treat like matters alike in different cases, it is indispensable that they
‘treat the same litigants in the same case the same way throughout the same dispute.’” United
States v. Charles, 843 F.3d 1142 at *6 (6th Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, et al.,
The Law of Judicial Precedent 441 (2016).
"Law of the case directs a court's discretion, it does not limit the tribunal's power." Id.,
citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436
(1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir.
1995). "While the 'law of the case' doctrine is not an inexorable command, a decision of a legal
issue establishes the 'law of the case' and must be followed in all subsequent proceedings in the
same case in the trial court or on a later appeal in the appellate court, unless the evidence on a
subsequent trial was substantially different, controlling authority has since made a contrary
decision of the law applicable to such issues, or the decision was clearly erroneous and would
work a manifest injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly
in Association of Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir.
1995).

2002 Ground One

In his first Ground for Relief in the 2002 Petition, re-pled here, Powell-El asserts he was
constitutionally entitled to have Counts 1-4 of his Indictment severed for trial from Counts 1518. In opposing relief on this ground in 2002, the Warden asserted it was not fairly presented to
the Ohio courts as a federal constitutional claim and this Court accepted that argument (Report
and Recommendations, Case No. 3:02-cv-214, ECF No. 23, PageID 27). Powell-El made no

13

objection and took no appeal. However he now says that he made a fair presentation of the claim
as a federal claim when his counsel cited “State v. Torres, 66 Ohio St. 3d 340 2 (1981).” The
Second District Court of Appeals decided the joinder issue as follows:
[*18] In his second assignment, Powell contends the trial court
erred in failing to sever counts one through four from the
remaining counts in the indictment, Counts 5-18. The first four
counts allege the defendant committed the crime of rape,
kidnaping, and two counts of felonious assault. These counts
portray events occurring between February 18-20, 1999. The
remaining counts relate to graphic sexually-oriented materials that
were produced with Shannon Trammell's cooperation between
September 1, 1998 and November 30, 1998.
Powell contends the trial court should have granted his severance
motion because the State's evidence that the defendant
photographed and filmed Shannon Trammell engaging in lewd and
obscene behavior could forseeably inflame the jury and impair
their ability to render an impartial verdict on the first four counts in
the indictment.
Powell argues that the videotape was created under far different
circumstances and with a different motivation than was allegedly
present in the counts alleging assaultive conduct. Powell notes that
Shannon Trammell admitted that she engaged making the video
and helped create it.
The State argues that joinder of all the counts in the indictment was
proper as the counts all involved the same victim and the latter
counts formed the background and provided the jury with a motive
for counts one through four; i.e. his desire to dominate and
manipulate Shannon Trammell. The State also argues that the
defendant cannot demonstrate how he was prejudiced since the
evidence as to each group of charges was simple and direct.
Pursuant to Crim.R. 8(A), joinder of multiple offenses is permitted
when the charged offenses are "of the same or similar character, or
are based on the same act or transaction, or are based on two or
more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal
conduct." As a general rule, joinder of offenses is favored to
prevent successive trials, to minimize the possibility of
incongruous results in successive trials before different juries, to
2

Torres is actually reported at 66 Ohio St. 2d 340.

14

conserve judicial resources, and to diminish inconvenience to the
witnesses. State v. Torres (1981), 66 Ohio St. 2d 340, 343, 20 Ohio
Op. 3d 313, 421 N.E.2d 1288.
If offenses are properly joined, as in the instant case, a defendant
may move to sever under Crim.R. 14. A defendant claiming error
in the joinder of multiple counts in a single trial must make an
affirmative showing that his rights were prejudiced. Torres, supra
at 343. A defendant cannot demonstrate prejudice where evidence
of each of the offenses joined at trial is simple and direct. State v.
Franklin (1991), 62 Ohio St. 3d 118, 122, 580 N.E.2d 1. HN14
Where the evidence is uncomplicated, the jury is believed capable
of segregating the proof on multiple charges. Torres, supra.
We agree with the State that the evidence related to all counts was
simple and direct. The jury was not likely to become confused
about the separate allegations in the indictment. The jury might
believe that defendant engaged in consensual sexual conduct with
the juvenile but not non-consensual conduct such as rape,
kidnaping, and assault. For an appellate court to reverse a trial
court ruling that denies severance, the accused must show that the
trial court abused its discretion. State v. Franklin, supra, at 122.
We find no abuse of discretion on the state of this record. The
second assignment of error is overruled.
State v. Powell, 2000 Ohio App. LEXIS 5829 (2nd Dist. Dec. 15, 2000). Thus the Second
District did not evince any understanding that it was confronted with a constitutional issue.
Torres itself did not purport to decide any federal constitutional issues. The federal authorities
cited by the Torres court 3 all involved non-constitutional issues.
Powell-El has not shown his first ground for relief was fairly presented to the Ohio courts
as a federal constitutional issue. There is, therefore, no reason to vary from the law of the case
determining that this ground is barred by procedural default.

3

Opper v. United States, 348 U.S. 84 (1954); United States v. Ragghianti, 527 F.2d 586 (9th Cir. 1975); United
States v. Catena, 500 F.2d 1319 (3d Cir. 1974); Wangrow v. United States, 399 F.2d 106 (8th Cir. 1968); and Wright,
Federal Practice and Procedure 468.

15

2002 Grounds Two and Three

In his second and third Grounds for Relief re-pleaded from 2002, Powell-El claims he
was convicted on illegally seized evidence. In 2004 the Magistrate Judge found these Grounds
for Relief procedurally defaulted on the same basis as Ground One, to wit, failure to fairly
present it as a federal constitutional claim to the Ohio courts (Report, Case No. 3:02,cv-214, ECF
No. 23, PageID 27.
Powell-El first argues that these “claims were presented as facts well within the
mainstream of a constitutional violation, despite the framing of the words, because any Fourth
Amendment violation is of a constitutional magnitude that violates one’s rights guaranteed under
the United States Constitution.” (Traverse, ECF No. 47, PageID 854). He also asks the Court to
“forego procedural default issues, and address the merits of Powell’s claims. Id.
The Magistrate Judge now concludes the analysis of these Grounds for Relief in the 2004
Report is too cursory. Powell-El did indeed pursue a Fourth Amendment claim on appeal, but it
was limited in scope. The Second District found that seizure of the camcorder with a videotape
showing the victim was beyond the scope of the search warrant Dayton Police possessed. It
therefore suppressed that evidence and dismissed the counts of conviction which depended on it,
to wit, Counts 6, 12, and 15. State v. Powell, supra.
While these two Grounds for Relief are pleaded as Fourth Amendment violations, it is
clear from his Traverse that Powell-El’s real claim is that he was convicted in part on the basis of
the illegally-seized videotape and thus this “other bad acts” evidence (evidence of consensual
sexual activity with Shannon Trammell in 1998) was used to bolster the evidence on the much
16

more serious 1999 charges of raping and beating the same victim. Powell-El calls this error
“retroactive misjoinder.” The Magistrate Judge’s 2004 Report correctly concluded that this
claim – use of other bad acts evidence – had not been presented to the state courts as a federal
constitutional claim and was thus procedurally defaulted.
Powell-El cites authority allowing a habeas court to bypass a procedural default and
decide a case on the merits (Traverse, ECF No. 47, PageID 854, citing Lambrix v. Singletary,
520 U.S. 518 (1997); Hudson v. Jones, 351 F.3d 212 (6th Cir. 2003); and Jackson v. Anderson,
141 F. Supp. 2d 811 (N.D. Ohio 2001). That rule only applies if the court decides the merits
against the petitioner.
Powell-El did not present an “other acts” constitutional claim to the Ohio courts and thus
his 2002 Grounds Two and Three were correctly found to have been procedurally defaulted in
2004. Nothing he has said in the Traverse persuades the Magistrate Judge to depart from the law
of the case on those claims. Moreover, even if he had presented this as a constitutional claim, it
would be without merit. The Supreme Court has never held that presentation of other acts
evidence violates the Constitution. “There is no clearly established Supreme Court precedent
which holds that a state violates due process by permitting propensity evidence in the form of
other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the
Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991).

2002 Ground Four

In his fourth 2002 Ground for Relief, Powell-El claims he received ineffective assistance

17

of trial counsel Charles Smiley when he told a witness with exculpatory evidence not to come to
the trial. His statement of the supporting facts for this claim was somewhat different in the 2002
Petition than it is in the current Petition:
Supporting Facts: The Petitioner was denied the effective
assistance of counsel after his retained counsel was made a witness
for the state and appointed counsel for trial advised witness[es]
with exculpatory evidence/testimony [not] to come to trial after
being subpoenaed to testify for defense. The testimony would have
been based on three notarized letters of recantation adduced at
trial, refuting the guilt of Petitioner as the perpetrator of the rape,
kidnaping, and assault. The alleged victim authenticated the three
(3) letters of recantation at trial, but agreed with the state that she
could write but not read. The alleged victim told several people –
Davonte Kelley, Katina Benson, and an attorney William
Rohrkaste – that the Petitioner did not commit the offenses
indicated in the first four counts of the indictment. The trial court
ruled that if the alleged victim denied these facts then these
witness[es] could come in to testify. Trial counsel then represented
to the court that he would ensure their presence. At the close of
defense case-in-chief trial counsel refused to compel witness[es]
Davonte Kelley et al. because he feared what they might say once
compelled.
(Petition in Case No. 3:02-cv-214, ECF No. 1). In the 2004 Report, the Magistrate Judge
rejected Respondent’s procedural default defense, but found the claim was without merit because
the Second District had decided this claim adversely to Petitioner’s position and its decision was
not an objectively unreasonable application of the federal standard for ineffective assistance of
trial counsel adopted in Strickland v. Washington, 466 U.S. 668(1984)(Report in 3:02-cv-214,
ECF No. 23, PageID 27-30). In the prior Report, the Magistrate Judge wrote:
In deciding that Petitioner had not received ineffective assistance
of counsel in the way he alleges in Ground Four, the Montgomery
County Court of Appeals adopted the extensive findings made by
the trial judge, The Honorable Dennis Langer of the Montgomery
County Common Pleas Court. Judge Langer found the Affidavit of
Devonte Kelley not credible because it directly contradicted the
representations trial counsel Charles Smiley had made to the court
about Mr. Kelley’s non-appearance at trial. Moreover, Judge
18

Langer found that even if Mr. Kelley were to be believed and he
was discouraged from testifying by Mr. Smiley, there was no
reasonable probability his testimony would have affected the
outcome of the trial because of the overwhelming evidence of
guilt, both direct and circumstantial. State v. Powell, 2003 Ohio
App. LEXIS 3943 (Ohio App. 2d Dist. August 22, 2003).
Id. at PageID 29.
Powell-El contends the Court should not apply the law of the case to this ground for relief
because the claim was not thoroughly litigated in 2004 because of failure to file of his retained
attorney (Traverse, ECF No. 47, PageID 861). Rather than apply the law of the case as stated in
the prior Report, the Magistrate Judge has reviewed the cited decision of the Second District on
appeal from denial of post-conviction relief, State v. Powell, 2003 Ohio App. LEXIS 3943 (2nd
Dist. Aug. 22, 2003). That opinion recites at length the relevant findings of Judge Langer as
follows:
[*P8] "In his Petition for Post-Conviction Relief, Powell has
submitted the affidavit of Devonte Kelley in which Kelley claims
that he told Powell's attorney, Charles Smiley, of Shannon's
recantation, but that 'he [Smiley] said, I should testify in court, but
I don't have to come, what I say want [sic] matter because the
videotape and photos are going to hang [**3] him, so don't worry
about coming to court to testify. So for that very reason I did not
come to court to testify.' Petition, Exh. 3, Affidavit of Davonte
Kelley. This affidavit was signed by Kelley on December 16, 2001
and was mailed to Powell at the Chillicothe Correctional Facility.
[*P9] "Powell claims that Smiley discouraged Kelley from
testifying at trial; that Smiley misled Powell into believing that
Kelley's failure to testify was the result of Kelley's own actions;
and that Kelley's testimony would have impeached the
complainant, Shannon Trammell. This, Powell asserts, constitutes
ineffective assistance of counsel that requires the voiding of his
convictions.

ANALYSIS AND CONCLUSIONS
[*P10] "THERE ARE NO SUBSTANTIVE GROUNDS FOR
RELIEF THAT WOULD WARRANT A HEARING.
19

ASSUMING THAT DEVONTE KELLEY HAD TESTIFIED AT
TRIAL, IT IS NOT REASONABLY PROBABLE THAT
POWELL WOULD HAVE BEEN ACQUITTED.
[*P11] "Powell has submitted the affidavit of Devonte Kelley in
which Kelley claims that he was discouraged by Powell's attorney,
Charles Smiley, from testifying at trial. This claim is completely
inconsistent with Mr. Smiley's representations - as an officer of the
Court - that he had personally given Kelley residential service;
that he had contacted Kelley the previous evening and instructed
him to be at court at 9:00 a.m.; and that 'I [Smiley] fully expected
that he [Kelley] would be here at 9:00 this morning.'
[*P12] "Putting aside whether the question of whether Kelley in

fact was discouraged from testifying, this Court finds that if Kelley
had testified, it is not reasonably probable that Powell would have
been acquitted. This Court reaches this conclusion based upon
several grounds:
[*P13] "First, Kelley's testimony is not substantive evidence of
Powell's innocence. It merely would have been an attempt to
impeach Shannon's testimony. The success of that impeachment
would be questionable given the testimony of Earl Martin that
Powell directed his friend 'Dee-Dee' to ask Shannon if he could
pay her not to come to court to testify. Most importantly, Kelley's
testimony would have been overwhelmingly outweighed by the
testimony of other witnesses who strongly corroborated Shannon's
claims of kidnaping, rape, and felonious assault against Powell.
[*P14] "Second, Powell's suspicious behavior both during and

after the incident is indicative of his guilt.
[*P15] "Third, Shannon's behavior and excited utterances
immediately after the incident support her claims against Powell.
[*P16] "A. Kelley's testimony would have been overwhelmingly
outweighed by testimony and evidence that corroborated
Shannon's claims of kidnaping, rape, and felonious assault against
Powell.
[*P17] "1. The corroboration of Shannon's claim that she was

brutally assaulted and whipped with an extension cord by Powell.
[*P18] "Shannon testified that Powell brutally assaulted her and
whipped her with an extension cord. This testimony was
corroborated by the following:

20

[*P19] "Powell admitted to Det. Lawson that Shannon stayed at

his store from Thursday evening, February 18, until Saturday,
February 20. There is no question that Shannon was assaulted
during this period of time.
[*P20] "Quincy Trammell testified that when he and Gloria

Trammel, Shannon's mother, were at Powell's store on Saturday,
February 20, he heard Shannon's voice crying out from the back of
the store.
[*P21] "Gloria testified that when she last saw Shannon on
Thursday evening, she had no injuries. When she found Shannon
the following Saturday afternoon, Shannon had a cigarette burn on
her face, 'whips on her back,' and a black eye.
[*P22] "Earl Martin, Powell's friend for 5 to 6 years, testified that
on Thursday night, Powell left his store and returned with
Shannon. At that point Martin observed no bruises on Shannon's
face. Martin heard Powell 'hollering' at Shannon in the back room.
Powell ordered Martin to lock up the shop and leave. When Martin
returned the next morning, Friday, he observed Shannon
handcuffed to the bed. Martin testified, 'She was trying to ask me if
I would help her.' Martin testified Shannon's face was 'messed up.'
'Her eye was black. I think it was swollen shut. Her mouth was
busted.' He also testified that Shannon was naked from the waist
up and that her pants were torn.
[*P23] "Dr. Perry examined Shannon on Saturday. She observed

bruising to Shannon's entire body, including loop-like linear
bruising to her back, which were photographed by Officer Bryant.
Dr. Perry testified that these bruises were consistent with being
whipped with an electrical cord. Officer Bryant photographed an
electrical cord tied to the corner of the bed frame in Powell's store.
Bryant testified that the cord was 'tied up in knots.' Shannon
identified the photo of the extension cord as the one Powell used to
beat her and tie to her to the bed.
[*P24] "Finally, the police recovered a black and white striped
sheet and a blue blanket from that bed in the back room of Powell's
store. The sheet contained one blood stain and the blanket had two
blood stains. These blood stains were consistent with Shannon's
DNA.
[*P25] "2. The corroboration of Shannon's claim that Powell
pored [sic] gasoline on her.

21

[*P26] "Shannon testified that Powell poured gasoline over her

and that the gasoline drenched her coat and ran into her mouth and
eyes. This testimony was corroborated by the following:
[*P27] "There is absolutely no question that Shannon was
drenched with gasoline. Quincy Trammell testified that when he
and Gloria Trammel found Shannon on Saturday, Shannon 'had a
gasoline smell'; and that her overcoat had a strong odor of gasoline
and had several spots of wet gasoline. Likewise, Nurse Black
testified that Shannon's 'clothes smelled very strongly of gasoline .
. . We had to take some of the clothing off initially just to get them
out of the room to get the smell of gasoline [**8] out of the room.'
Likewise, Officer Mallott testified that when he contacted Shannon
Trammell at the hospital, 'When I opened the door, the first thing I
noticed was an almost overwhelming odor of gasoline in the room.
It was really very overpowering.' He testified, 'It was coming from
the victim.' Finally Michael Wathen, a forensic scientist, examined
the canisters containing Shannon's torn panties and torn black
pants. Utilizing a gas chromatograph, Wathen determined that both
canisters contained gasoline.
[*P28] "Additional testimony confirms that it was in Powell's
store that Shannon was drenched with gasoline. Earl Martin
testified that when he returned to Powell's store on Friday morning,
he mopped up gasoline in the back room where he discovered
Shannon handcuffed to the bed and beaten. Also, Gloria Trammel
testified that on Saturday, while looking for Shannon in the back
room of Powell's store, she detected the odor of gasoline. Finally,
Officer Bryant testified that he found in Powell's store a mop with
the odor of gasoline.
[*P29] "3. The corroboration of Shannon's claim that Powell

handcuffed her to the bed.
[*P30] "Shannon testified that Powell handcuffed her to the bed.
This testimony was corroborated by the following:
[*P31] "Earl Martin testified that when he returned Friday
morning to Powell's store, Shannon was handcuffed to a bed and
'She was trying to ask me if I would help her.' Her face was
'messed up,' that her eye was black and swollen shut, and her
mouth was 'busted.'
[*P32] "Nurse Black testified that Shannon told her that her left
wrist had been chained to the bed with a handcuff. Black then

22

noticed that there was an injury to Shannon's left wrist as shown in
State's Exh. 13.36.
[*P33] "4. The corroboration of Shannon's claim that Powell
anally raped her.
[*P34] "Shannon testified that on Friday, February 19, Powell
entered the back room of the store, flipped her over on her
stomach, bent her upper body over the bed, and penetrated her
anally with his penis.
[*P35] "Shannon's claims that she was anally raped by Powell was

corroborated by Powell's own friend, Earl Martin. On Friday
morning, Martin observed Shannon in the back room of Powell's
store. She had been beaten, handcuffed to the bed, was naked from
the waist up, and was wearing torn pants. Martin testified that on
the next day Powell told him, 'My dick got hard and I fucked her
in the ass.' Trial Transcript at 1485.
[*P36] "B. Powell's suspicious behavior both during and after the
incident is indicative of his guilt.
[*P37] "On Saturday morning, when Gloria and Quincy Trammell

went to Powell's store, Shannon testified that she heard her
mother's voice and called out her name, 'Gloria.' Quincy heard
someone cry out from the back of the store and recognized the
voice as Shannon's. Both Quincy and Mrs. Trammell noticed that
Powell became 'nervous' and 'fidgety' and spoke louder to drown
out Shannon's cries.
[*P38] "After Shannon had been found and reported that she had
been kidnaped, assaulted and raped by Powell, the police searched
for Powell. Officer Strehle testified that upon arriving at Powell's
store, he observed a black male (Powell) jump from a second story
window and run down an alley. Powell was pursued by the police.
Officer Beal encountered Powell 1/4 mile from his store. When
Beal opened his cruiser door, Powell 'took off running.' Powell
slipped on gravel and was apprehended. Powell then blurted, 'It's
over for me. I wish you would just shoot me.'

"C. Shannon's behavior and excited utterances
immediately after the incident supported her claims against Powell.
[*P39]

[*P40] "The behavior and excited utterances of Shannon
immediately after the alleged incident support her claims against
Powell. Gloria and Quincy Trammell discovered Shannon at the

23

payphone booth and placed her into the back seat of their car.
Quincy testified that Shannon was 'shaking and crying.' When
Shannon got onto the floorboard, Gloria asked her why she had
done that. Shannon screamed, 'Sergio [Powell] is going to kill me.
He's going to kill me.' Quincy recalled that Shannon was 'shaking
and crying' and that while crying said that 'Cedric told her if she
got away he would blow up her grandmother's house and would
kill whomever.'
[*P41] "D. Conclusion
[*P42] "Powell claims that his trial counsel discouraged a witness,

Devonte Kelley, from appearing at trial. This, Powell asserts,
entitled him to post-conviction relief by reason of ineffective
assistance of counsel. In order to prevail on his claim of
incompetence of counsel, Powell must establish not only (1) that
his trial counsel's effort fell below an objective standard of
reasonableness, but also (2) that there [**12] is a reasonable
probability that the outcome of his trial would have been different
but for the error of his counsel.
[*P43] "Assuming, arguendo, that Powell has fulfilled his burden
with regard to the first issue, he fails with regard to the second
issue. In considering Powell's Petition, the attached exhibits and
supporting affidavits, all the files and records, the trial transcript,
and the exhibits admitted into evidence at trial - and construing the
evidence in the light most favorable to Powell - this Court finds
that there is no reasonable probability that Powell would not have
been convicted had Devonte Kelley testified at trial. This Court
finds that there are no substantive grounds for relief that would
warrant a hearing on Powell's Petition for Post-Conviction Relief.
[*P44] "Therefore, Powell's Petition is hereby DENIED. The
State's Motion for Summary Judgment is SUSTAINED."

Id.
These findings by Judge Langer establish that even if Mr. Smiley performed deficiently
by not calling Deonte Kelley, Powell-El suffered no prejudice thereby as the other evidence
against him was quite overwhelming.
Examining 2002 Ground Four de novo, the Magistrate Judge finds the decision of the
Second District rejecting this claim of ineffective assistance of trial counsel is not an objectively
24

unreasonable application of Strickland, supra.

Conclusion

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

February 7, 2018.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

25