Harwell v. Warden Lebanon Correctional Institution

Filing 9

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 to proceed in forma pauperis. Objections to R&R due by 11/14/2016. Signed by Magistrate Judge Michael R. Merz on 10/27/2016. (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
MICHAEL HARWELL,
Petitioner,

:

- vs -

Case No. 3:16-cv-277
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

TOM SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is habeas corpus action pursuant to 28 U.S.C. ' 2254. Petitioner seeks release from
confinement imposed as part of the judgment of the Montgomery County Court of Commons
Pleas upon Mr. Harwell’s convictions for murder, kidnapping, felonious assault, and having
weapons under disability.

Procedural History

Petitioner Michael Harwell was indicted by the Montgomery County Grand Jury on two
counts of murder in violation of Ohio Revised Code § 2903.02(B), two counts of attempt to
commit murder in violation of Ohio Revised Code § 2903.02(B)/2923.02(A), two counts of
kidnapping in violation of Ohio Revised Code § 2905.01(A)(3), two counts of kidnapping in
violation of Ohio Revised Code § 2905.01(B)(2), two counts of kidnapping in violation of Ohio
Revised Code § 2905.01(A)(2), three counts of felonious assault in violation of Ohio Revised
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Code § 2903.11(A), all with attached firearm specifications, and one count of having weapons
while under disability in violation of Ohio Revised Code § 2923.13(A)(3) (State Court Record.
ECF No. 5, PageID 74). The jury found Harwell guilty on Counts 1 to 13 with the firearm
specifications and the trial judge found him guilty of having weapons under disability. After
merger of allied offenses under Ohio Revised Code § 2941.25, Harwell was sentenced to a total
of thirty-two years to life in prison.
Mr. Harwell appealed to the Second District Court of Appeals. He waived counsel on
appeal and filed two briefs, raising thirteen assignments of error. The appellate court held
attempted felony murder is not a crime in Ohio and vacated that conviction, but otherwise
affirmed. State v. Harwell, 2015-Ohio-2966, 2015 Ohio App. LEXIS 2870 (2nd Dist. July 24,
2015); appellate jurisdiction declined, 143 Ohio St. 3d 1545 (2015).
Mr. Harwell filed his Petition for Writ of Habeas Corpus on June 17, 2016, pleading the
following grounds for relief:
Ground One: An indictment is sufficient if it (1) contains the
essential elements of the offense intended to be charged, (2)
sufficiently apprises the accused of what he must be prepared to
defend against, and (3) enables the accused to plead a judgment
under the indictment as a bar to any subsequent prosecution for the
same offense.
Supporting Facts: In this case, the indictment omitted essential
elements to agg. murder as to cts. 1-2, and attempted murder in cts.
3-4 of the indictment. Trial counsel’s performance was deficient
under the first prong in Strickland, for failing to file a motion to
dismiss cts. 1-4, of the indictment which omitted essential
elements thereby failing to apprise the nature of the charges.
Counsel was prejudiced by trial counsel’s deficient performance
when the appellant was convicted and sentenced to a period of life
in prison for under an indictment which was insufficient to charge
and [sic] offense, that was omitted essential elements.
Ground Two: The trial court violated the petitioner’s rights to
Due Process under the 14th Amend. and to a grand jury indictment
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under the 5th and 6th Amend, when it instructed the petit jury on
elements not charged in the indictment (1-4).
Supporting Facts: The material and essential facts constituting an
offense are found by the presentment of the grand jury; and if one
of the vital and material elements identifying and characterizing
the crime has been omitted from the indictment such defective
indictment is insufficient to charge an offense, and cannot be cured
by the court, as such a procedure would not only violate the
constitutional rights of the accused, but would allow the court to
convict him on an indictment essentially different from that found
by the grand jury.
Ground Three: The jury verdict of guilty for cts. 1-13 is contrary
to law, as the jury verdict and the jury’s verdict forms failed to
include all of the essential elements and failed to charge an offense
thereby violated Mr. Harwell’s right to due process under the 14th
Amend.to the U.S. Constitution.
Supporting Facts: In this case, the court submitted verdict forms,
containing a statutory description of the offenses, however, the
verdict forms result in prejudicial and reversible error because the
description omits essential element of those offense. The jury did
not find Mr. Harwell guilty of every essential element to each
crime, and merely citing or reciting the name of the heading of the
revised code section of the offense in the verdict form does not
suffice to a finding of guilt on every element of the crime.
Ground Four: Mr. Harwell’s conviction [Cts.1-14] are based on
insufficient evidence and were obtained in violation of the Due
Process Clause under the 14th Amend. to the United States Const.
Supporting Facts: As the Supreme Court explained, a conviction
rests upon insufficient evidence when, even after viewing the
evidence in light most favorable to the prosecution no rational
factfinder could have found the defendant guilty beyond a
reasonable doubt. A conviction based on legally insufficient
evidence violated due process.
The sate [sic] failed to prove all of the elements to every offense in
which Mr. Harwell is convicted. The elements in this case is
attempted to proven by simply showing that Mr. Harwell was
merely present at the time of the crimes occurred. However, it is
well established that a defendant’s mere presence at the scene of a
crime even when coupled with knowledge that at that moment a

3

crime is being committed is insufficient to establish the
defendant’s participation in criminal activity.
Ground Five: The trial court violated Mr. Harwell’s rights to the
5th, 6th, and 14th Amend. to the U.S. Const. when it increased the
felony level of the kidnappings cts. to felonies of the first degree
when the defendant was only indicted for kidnappings in the
second degree.
Supporting Facts: Mr. Harwell argues he was denied the effective
assistance of counsel because counsel failed to inform the trial
court that kidnapping cts. charged a second degree felonies, and
not a first degree felonies. To prevail on an ineffective assistance
of counsel claim, a defendant must show counsel’s deficient
performance and resulting prejudice. As discussed below, the
grand jury indicted Harwell on all second degree kidnappings.
Trial counsel should have objected to the trial court’s jury
instruction, sentence, and entry of conviction on first-degree felony
offenses because the court in effect impermissible amended the
indictment in contravention of, 5th, 6th and 14th Amend. to the
U.S. Const. As a result, Harwell was convicted of a higher-degree
offenses and subject to greater penalties. an indictment is
constructively amended when its charging terms are altered,
literally or in effect, by the prosecutor or the court. A constructive
amendment may occur through a jury instruction modifying the
indictment’s charged offense or through the admission of evidence
supporting an uncharged offense. The right to be informed of the
charges against her and the 5th Amend, right to be tried only on
offenses charged by the grand jury.
Ground Six: Trial counsel is ineffective in violation of the 6th
Amend. to the U.S. Const. when he failed to object to the alternate
juror being present while the jury was deliberating.
Supporting Facts: Trial counsel is ineffective in violation of the
6th Amend. to the U.S. Const. when he failed to object to the
alternate juror being present while the jury was deliberating.
Ground Seven: Trial counsel is ineffective in violation of the 6th
Amend., to the U.S. Const. when he failed to object to the flawed
jury instructions on complicity and causation.
Supporting Facts: In this case, the trial judge’s instruction for
cause and complicity was fatally flawed. First, the complicity
instruction failed to instruct the jury that Mr. Harwell had to have
the same mens rea as his so-called accomplice. The judge failed to
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inform and instruct the jury of this fact, which substantially
affected Mr. Harwell’s U.S. Const. rights to due process under the
14th Amend. The jury was left to believe that Mr. Harwell could
be convicted of all these crimes even if he did not have to [sic]
same mens rea as the perpetrator of these crimes. Consequently,
because the judge gave improper jury instructions on cause and
complicity as to [Cts. 1-13].
Ground Eight: Mr. Harwell right to appellate counsel was
violated under the 6th Amend. to the U.S. Const. when Mr.
Harwell did not knowingly, voluntarily, and intelligently waive his
right to appellate counsel.
Supporting Facts: The 6th Amend. guarantees a criminal
defendant the right to counsel on his first appeal as a right. Waiver
of appellate counsel must be …. Knowing, intelligent, and
voluntary. A waiver qualifies as knowing and intelligent where the
defendant possesses a full awareness of both the nature of the right
abandoned and the consequences of the decision to abandon it.
To effectuate a valid waiver of the right to appellate counsel, a
court must inform the defendant of the right he is surrendering,
alert him to the dangers and disadvantages of self-representation,
and ensure that he foregoes counsel with eyes open. Here, Mr.
Harwell did not knowingly, intelligently, and voluntarily waive his
right to appellate counsel.
(Petition, ECF No. 2, PageID 46-53.)

Analysis

Ground One: Deficient Indictment and Ineffective Assistance of Trial Counsel in Not
Objecting

In his First Ground for Relief, Mr. Harwell claims he was tried and convicted on an
insufficient indictment and his trial attorney provided ineffective assistance when he failed to
move to dismiss Counts 1 through 4 for omitting essential elements of the crimes involved.
5

As to Counts 3 and 4, Respondent argues Ground One is moot because the Second
District vacated Harwell’s convictions on those two grounds (Return, ECF No. 6, PageID 2266).
Respondent is correct because a federal habeas court will not examine a conviction on which a
petitioner is not in custody. Carafas v. LaVallee, 391 U.S. 234 (1968). Only Counts One and
Two will be discussed.
Counts One and Two of the Indictment read as follows:
[First Count] THE GRAND JURORS of the County of
Montgomery, in the name, and by the authority of the State of
Ohio, upon their oaths do find and present that: MICHAEL D.
HARWELL, between the dates of JUNE 15, 2012 THROUGH
JUNE 16, 2012 in the County of Montgomery, aforesaid, and State
of Ohio, did cause the death of another, to wit: JASON MILLER,
as a proximate result of the offender's committing or attempting to
commit an offense of violence, to-wit: FELONIOUS ASSAULT,
in violation of 2903.11, a felony of the Second Degree, and that
said offense is not a violation of either Section 2903.03 or 2903.04
of the Revised Code; contrary to the form of the statute (in
violation of Section 2903.02(8) of the Ohio Revised Code) in such
case made and provided, and against the peace and dignity of the
State of Ohio.
SECOND COUNT:
AND the grand jurors of this County, in the name and by the
authority of the State of Ohio, upon their oaths, do find and present
that: MICHAEL D. HARWELL between the dates of JUNE 15,
2012 THROUGH JUNE 16, 2012 in the County of Montgomery,
aforesaid, and State of Ohio, did cause the death of another, to-wit
JASON MILLER, as a proximate result of the offender's
committing or attempting to commit an offense of violence, to-wit:
KIDNAPPING, in violation of 2905.01, a felony of the First
Degree, and that said offense is not a violation of either Section
2903.03 or 2903.04 of the Revised Code; contrary to the form of
the statute (in violation of Section 2903.02(8) of the Ohio Revised
Code) in such case made and provided, and against the peace and
dignity of the State of Ohio.
(Indictment, State Court Record, ECF No. 5, PageID 74-75, firearm specifications omitted.) Mr.
Harwell’s claim in Ground for Relief One is that his conviction on these two counts is
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unconstitutional because the Indictment does not recite the elements of the underlying predicate
offenses, felonious assault in Count One and kidnapping in Count Two.
Mr. Harwell raised this claim as his first assignment of error on direct appeal,arguing
both that the indictment was defective and his attorney provided ineffective assistance of trial
counsel when he did not move to dismiss the indictment on this basis. Judge Wellbaum’s
opinion for the Second District first recites the governing standard for ineffective assistance of
trial counsel from Strickland v. Washington, 466 U.S. 668 (1984). It then applies that standard
as follows:
[*P30] Under his First Assignment of Error, Harwell argues his
trial counsel was ineffective in failing to file a motion to dismiss
Counts One and Two of the indictment, which are the two counts
for felony murder. In support of his claim, Harwell contends a
motion to dismiss should have been filed due to the indictment
being fatally defective in that it did not include the essential
elements of the predicate offenses to his felony murder charges;
i.e., felonious assault and kidnapping.
[*P31] The Supreme Court of Ohio has rejected the assertion that
the indictment must identify the elements of the predicate offense
of the charged crime, as "it is the predicate offense itself and not
the elements of the predicate offense that is an essential element of
the charged offense." State v. Buehner, 110 Ohio St. 3d 403, 2006Ohio-4707, 853 N.E.2d 1162, ¶ 10 and 12. Rather, "when the
indictment sufficiently tracks the wording of the statute of the
charged offense, the omission of an underlying offense in the
indictment can be remedied by identifying the underlying offense
in the bill of particulars." Id. at ¶ 10, citing State v. Skatzes, 104
Ohio St. 3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 30. The
Supreme Court has also held that "'[r]eading the felony-murder
counts in pari materia with the related felony counts provide[s]
ample notification of the elements of the underlying felonies * * *
that the state had to prove.'" State v. Wesson, 137 Ohio St. 3d 309,
2013-Ohio-4575, 999 N.E.2d 557, ¶ 26, quoting State v. Foust, 105
Ohio St. 3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 29.
[*P32] The indictment in this case tracked the language of the
criminal statute for felony murder, R.C. 2903.02(B). For each
charge of felony murder, the indictment cited the predicate offense
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and its correlating criminal statute; namely, R.C. 2903.11 for
felonious assault and R.C. 2905.01 for kidnapping. The State also
provided Harwell with a bill of particulars that stated the elements
of each predicate offense. See State's Response to Defendant's
Motion for Bill of Particulars (June 14, 2013), Montgomery
County Court of Common Pleas Case No. 2012-CR-2367, Docket
No. 311. Specifically, the bill of particulars noted that the elements
of the predicate offenses were set forth in related felony Counts
Six, Eight, Ten, Eleven, and Twelve of the indictment, which are
separate counts for felonious assault and kidnapping. Therefore,
we find the indictment and bill of particulars in this case provided
sufficient notice of the predicate offenses charged in Counts One
and Two. Accordingly, Harwell's trial counsel did not provide
ineffective assistance in failing to file a motion to dismiss those
counts.
State v. Harwell, supra.

Later in its opinion the Second District discusses the substantive claim that the indictment
was defective:

[*P55] Under his Third Assignment of Error, Harwell contends the
indictment was defective because it failed to allege all essential
elements of the predicate offenses; i.e., felonious assault and
kidnapping, and a mens rea for his felony murder charges. As a
result of these alleged defects, Harwell also claims it was error for
the trial court to instruct the jury on the elements of the predicate
offenses.
[*P56] The foregoing claims have no merit because Harwell's
indictment is not defective. As previously discussed under
Harwell's First Assignment of Error, an indictment need not
identify the elements of a predicate offense to a charged crime.
Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162
at ¶ 10 and 12. Also, the indictment in this case does not specify a
mens rea for felony murder "because R.C. 2903.02(B), the felonymurder statute, does not contain a mens rea component." (Citation
omitted.) State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, 926
N.E.2d 1239, ¶ 43. "[A] person commits felony murder pursuant to
R.C. 2903.02(B) by proximately causing another's death while
possessing the mens rea element set forth in the underlying felony
offense. In other words, the predicate offense contains the mens rea
element for felony murder." (Citation omitted.) Id. "Thus, the mens
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rea element need not appear in the count for felony murder as long
as the mens rea component is specified in the count charging the
predicate offense." (Footnote omitted.) Id.
[*P57] Here, the mens rea for the predicate offenses of felonious
assault and kidnapping were specified in separate counts of the
indictment as well as in a bill of particulars. As noted earlier,
"'[r]eading the felony-murder counts in pari materia with the
related felony counts provide[s] ample notification of the elements
of the underlying felonies * * * that the state had to prove.'"
Wesson, 137 Ohio St. 3d 309, 2013-Ohio-4575, 999 N.E.2d 557 at
¶ 26, quoting Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823
N.E.2d 836 at ¶ 29. Therefore, the indictment is not defective and
there is no basis for his claim that the trial court committed plain
error by instructing the jury on the elements of the predicate
offenses.
State v. Harwell, supra.
Thus the Second District decided the indictment was sufficient under Ohio law even
though it did not contain the elements of the underlying predicate offenses, relying on State v.
Buehner, supra, which is directly in point.
That ruling of what Ohio law requires in an indictment is binding on this Court. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991)("[I]t is not the province of a federal habeas court to
reexamine state court determinations on state law questions.”); Vroman v. Brigano, 346 F.3d 598
(6th Cir. 2003) (noting that federal courts are obliged to follow state court interpretations of state
law and rules of practice.) Although an attorney could hypothetically provide constitutionally
ineffective assistance by failing to raise a determinative question of state law, the Second District
held trial counsel here was not ineffective under the Sixth Amendment because the notion that
the indictment had to include the elements of the underlying predicate crimes was not correct as
a matter of Ohio law.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
9

is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The Second District’s
decision that it was not ineffective assistance of trial counsel to fail to make the incorrect claim
Mr. Harwell urges is neither contrary to nor an unreasonable application of Strickland.
Indeed, Mr. Harwell does not address the Second District’s application of Strickland to
his first assignment of error. Instead, he argues the Second District was wrong in deciding the
substantive claim in his third assignment of error that the underlying elements did not have to be
included (Reply, ECF No. 8, PageID 2321-28). In doing so, he relies on federal case law
requiring that federal indictments must include the underlying elements Id. citing, inter alia,
Hamling v. United States, 418 U.S. 87 (1974)). His argument conflates federal common law
indictment requirements with federal constitutional fair notice requirements.
The grand jury indictment requirement of the Fifth Amendment is not binding on the
States. 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); Williams v. Haviland, 467 F.3d 527 (6th
Cir. 2006)(Apprendi does not change this result).
While the grand jury guarantee of the Fifth Amendment is not binding on the States, the
Due Process Clause of the Fourteenth Amendment requires the States to give a defendant fair
notice of the charges against him, both so that he can defend and so that he can plead double
jeopardy if faced with the same charge a second time. Valentine v. Konteh, 395 F.3d 626, 631
(6th Cir. 2005), citing Russell v. United States, 369 U.S. 749 (1962), Hamling v. United States,
418 U.S. 87 (1974), and United States v. Cruikshank, 92 U.S. 542 (1875).

10

Mr. Harwell has argued the substantive part of this Ground for Relief in terms of the
federal common law requirements for framing indictments instead of the federal constitutional
law of fair notice. He has not indicated any way in which the indictment actually returned
against him failed to provide him with fair notice of what he was charged with or how it failed to
provide him Double Jeopardy protection. In particular, he has cited no Supreme Court precedent
which requires, as a matter of due process, that a state court indictment must contain the
elements of underlying offenses in order to provide fair notice.
None of the Supreme Court cases he cites requires including the elements of underlying
offenses in a state court indictment.

Russell, supra, involved the adequacy of a federal

indictment under the Federal Rules of Criminal Procedure. United States v. Debrow, 346 U.S.
374 (1953), is again a federal prosecution. There the Supreme Court held a perjury indictment
did not need to include the name of the person administering the oath as to which the perjury was
allegedly committed; it says nothing about state court charging papers. Hamling, supra, is again
a federal prosecution; its holding that a statutory citation in the body of a count of the indictment
is insufficient is based on the grand jury clause, which is not applicable here. Finally, Pettibone
v. United States, 148 U.S. 197 (1893), again concerns the sufficiency of a federal indictment.
Mr. Harwell cites many cases from other federal circuits and from various States, but he
can prevail only upon a showing that the Second District’s decision is contrary to or an
unreasonable application of clearly established constitutional law as stated in holdings of the
United States Supreme Court. Williams v. Taylor, 529 U.S. 362 (2000); Lockyer v. Andrade, 538
U.S. 63 (2003).
Mr. Harwell cites no Supreme Court precedent holding that failure to include the
elements of predicate offenses in a state court indictment deprives a defendant of fair notice of

11

the charges when, as here, a bill of particulars specifies that the predicate offenses are the ones
charged later in the same indictment. The First Ground for Relief is therefore without merit.
In addition to its lack of merit, the First Ground for Relief, insofar as it makes a
substantive claim about the Indictment (as distinct from the ineffective assistance of trial counsel
claim) is procedurally defaulted on the basis of the same analysis made below as to Ground Two.

Ground Two: Improper Jury Instructions

In his Second Ground for Relief, Mr. Harwell claims that his rights to due process and
grand jury indictment were violated when the trial court instructed the jury on elements which
did not appear in the indictment.
As noted above, there is no federal constitutional right to grand jury indictment
applicable to the States.
The Respondent asserts, as he did with respect to Ground One, that merits review of this
claim is barred by Harwell’s procedural default in failing to register a contemporaneous
objection to the instructions (Return, ECF No. 6, PageID 2277-81).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

12

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
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

13

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).
Applying the procedural default jurisprudence to this case, the Court finds Ohio, like
most States and the federal courts, does have a rule which requires contemporaneous objection to
trial court error. 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).
The Second District applied the contemporaneous objection rule by reviewing Harwell’s
relevant jury instruction claims only for plain error. State v. Harwell, supra, ¶ 54. An Ohio state
appellate court’s review for plain error is enforcement, not waiver, of a procedural default.
Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); 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. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v.
Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000)(plain error review does not constitute a waiver of procedural default); accord, Mason v.
Mitchell, 320 F.3d 604 (6th Cir. 2003).
Mr. Harwell seeks to overcome this procedural default by way of the actual innocence
gateway recognized in Schlup v. Delo, 513 U.S. 298, 324 (1995)(Reply, ECF No. 8, PageID
2317-21).

To satisfy the new evidence requirement of Schlup, Harwell presents his own

Affidavit (ECF No. 8, PageID 2341-43).
In Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit held:
[I]f a habeas petitioner "presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of
14

nonharmless constitutional error, the petitioner should be allowed
to pass through the gateway and argue the merits of his underlying
claims." Schlup v. Delo, 513 U.S. 298, 316 (1995)." Thus, the
threshold inquiry is whether "new facts raise[] sufficient doubt
about [the petitioner's] guilt to undermine confidence in the result
of the trial." Id. at 317. To establish actual innocence, "a petitioner
must show that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt." Id.
at 327. The Court has noted that "actual innocence means factual
innocence, not mere legal insufficiency." Bousley v. United States,
523 U.S. 614, 623, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). "To
be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence -whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence -- that was not
presented at trial." Schlup, 513 U.S. at 324. The Court counseled
however, that the actual innocence exception should "remain rare"
and "only be applied in the 'extraordinary case.'" Id. at 321.
Souter, 395 F.3d at 590.
Harwell’s Affidavit does not meet the quality criteria imposed by Schlup. No new
physical evidence is adverted to. Harwell provides double hearsay testimony about the results of
a polygraph examination of a key state witness, Lori Peak. The scientific reliability of the
polygraph, even when results are testified to by a certified examiner, remain very much in
contention.

The Sixth Circuit generally disfavors admitting the results of polygraph

examinations. King v. Trippet, 192 F.3d 517, 523-24 & n. 3 (6th Cir. 1999); United States v.
Blakeney, 942 F.2d 1001 (6th Cir. 1991). In United States v. Scarborough, 43 F.3d 1021 (6th Cir.
1994), a post-Daubert case, the court expressed its “long held opinion that the results of a
polygraph are inherently unreliable,” without considering the impact of Daubert. The Supreme
Court has acknowledged there remains no scientific consensus on reliability and has held there is
no constitutional right to have results admitted at trials. United States v. Scheffer, 523 U.S. 303
(1998).
Harwell’s Affidavit also contains double hearsay testimony about what individual jurors
15

said about the jury deliberations.

But even live testimony from the jurors would not be

admissible to impeach the verdict. Fed. R. Evid. 606(b).
Finally, of course, Mr. Harwell includes his own statements about what happened.
Schlup includes “trustworthy eyewitness accounts” as acceptable evidence for satisfying the
gateway requirement. But why should a habeas corpus court accept as credible the uncrossexamined statements of the person who has the most interest in the outcome when that person
did not have sufficient confidence in his own credibility to present his testimony to the trial jury?
There are many reasons for a defendant’s not taking the stand at trial, usually related to ways in
which his credibility may be damaged on cross-examination. Because Mr. Harwell’s account of
events has not been subjected to cross-examination when it could have been, the Court cannot
accept at face value his hearsay statements about what happened.
In sum, Mr. Harwell has not satisfied the requirements for the Schlup actual innocence
gateway and merits review of his Second Ground for Relief is barred by his failure to lodge a
contemporaneous objection in the trial court.

Ground Three: Improper Jury Verdict Forms

Merits review of Ground Three is barred by the same procedural default discussed with
respect to Ground Two.

Ground Four: Insufficient Evidence

In his Fourth Ground for Relief, Mr. Harwell asserts his convictions on Counts 1 through

16

4 are supported by insufficient evidence. As noted above, the Second District vacated the
convictions on Counts 3 and 4 and they are no longer material. In particular he asserts that all
that was proven was that he was present when the crimes were committed and mere presence is
insufficient. In considering this claim and the related but legally distinct state law claim that the
verdicts were against the manifest weight of the evidence, the Second District wrote:
Sufficiency

and

Manifest

Weight

of

the

Evidence

[*P73] Under his Sixth Assignment of Error and the Third
Assignment of Error raised in his supplemental merit brief,
Harwell challenges the legal sufficiency and manifest weight of the
evidence for his convictions on Counts One through Thirteen.
[*P74] "A sufficiency of the evidence argument disputes whether
the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or sustain the verdict as a
matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d
380, 386, 1997 Ohio 52, 678 N.E.2d 541 (1997). "When reviewing
a claim as to sufficiency of evidence, the relevant inquiry is
whether any rational factfinder viewing the evidence in a light
most favorable to the state could have found the essential elements
of the crime proven beyond a reasonable doubt." (Citations
omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 1997 Ohio 372,
683 N.E.2d 1096 (1997). "The verdict will not be disturbed unless
the appellate court finds that reasonable minds could not reach the
conclusion reached by the trier-of-fact." (Citations omitted.) Id.
[*P75] In contrast, "[a] weight of the evidence argument
challenges the believability of the evidence and asks which of the
competing inferences suggested by the evidence is more believable
or persuasive." (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction is against the manifest weight of the
evidence, the appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider witness
credibility, and determine whether, in resolving conflicts in the
evidence, the trier of fact "clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d
717 (1st Dist.1983). "The fact that the evidence is subject to
different interpretations does not render the conviction against the
17

manifest weight of the evidence." State v. Adams, 2d Dist. Greene
Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, ¶ 24, citing
Wilson at ¶ 14.
[*P76] "The credibility of the witnesses and the weight to be given
to their testimony are matters for the trier of facts to resolve." State
v. Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶
13, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d
212 (1967). Because the trier of fact sees and hears the witnesses at
trial, we must defer to the factfinder's decisions whether, and to
what extent, to credit the testimony of particular witnesses. State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS
3709, 1997 WL 476684, *4 (Aug. 22, 1997). "This court will not
substitute its judgment for that of the trier of facts on the issue of
witness credibility unless it is patently apparent that the factfinder
lost its way." (Citation omitted.) State v. Bradley, 2d Dist.
Champaign No. 97-CA-03, 1997 Ohio App. LEXIS 4873, 1997
WL 691510, *4 (Oct. 24, 1997).
[*P77] "'Although sufficiency and manifest weight are different
legal concepts, manifest weight may subsume sufficiency in
conducting the analysis; that is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.'" State v. Perry, 2d Dist.
Montgomery No. 26421, 2015-Ohio-2181, ¶ 24, quoting State v.
McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶
11. "As a result, 'a determination that a conviction is supported by
the weight of the evidence will also be dispositive of the issue of
sufficiency.'" Id., quoting State v. Braxton, 10th Dist. Franklin No.
04AP-725, 2005-Ohio-2198, ¶ 15.
[*P78] As noted earlier, Harwell was convicted of two counts of
felony murder in violation of R.C. 2903.02(B), which provides, in
relevant part that: "No person shall cause the death of another as a
proximate result of the offender's committing or attempting to
commit an offense of violence that is a felony of the first or second
degree[.]" Therefore, the "commission of another felony offense is
a necessary predicate to an R.C. 2903.02(B) offense, and the
predicate felony must be a proximate cause of the death R.C.
2903.02(B) prohibits." (Citation omitted.) State v. Cook, 2d Dist.
Montgomery No. 23721, 2010-Ohio-6222, ¶ 49, 970 N.E.2d 1020.
[*P79] "'"Generally, for a criminal defendant's conduct to be the
proximate cause of a certain result, it must first be determined that
the conduct was the cause in fact of the result, meaning that the
result would not have occurred 'but for' the conduct. Second, when
18

the result varied from the harm intended or hazarded, it must be
determined that the result achieved was not so extraordinary or
surprising that it would be simply unfair to hold the defendant
criminally responsible for something so unforeseeable."'" State v.
Wieckowski, 2d Dist. Clark No. 2010-CA-111, 2011-Ohio-5567, ¶
11, quoting State v. Dixon, 2002-Ohio-541, 2002 WL 191582, * 6
(2002), quoting LaFave & Scott, Criminal Law, Section 35 at 246
(1972).
[*P80] In this case, the predicate offenses at issue are felonious
assault in violation of R.C. 2903.11 and kidnapping in violation of
R.C. 2905.01. Both of these offenses fall under the definition of
"offense of violence" under R.C. 2901.01(A)(9) and both are
felonies of the first or second degree. Harwell was also charged
with six separate counts of kidnapping and three separate counts of
felonious assault.
[*P81] The relevant definition of felonious assault under R.C.
2903.11(A) is as follows: "No person shall knowingly do either of
the following: (1) Cause serious physical harm to another * * *; (2)
Cause or attempt to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance." R.C. 2903.11(A)(1),
(A)(2).
[*P82] In addition, the relevant definition of kidnapping under
R.C. 2905.01(A) is as follows: "No person, by force, threat, or
deception * * * shall remove another from the place where the
other person is found or restrain the liberty of the other person, for
any of the following purposes: * * * (2) To facilitate the
commission of any felony or flight thereafter; (3) To terrorize, or
to inflict serious physical harm on the victim or another[.]" R.C.
2905.01(A)(2), (A)(3). Under R.C. 2905.01(B), kidnapping is
defined as: "No person, by force, threat, or deception, * * * shall
knowingly do any of the following, under circumstances that create
a substantial risk of serious physical harm to the victim * * *: (2)
Restrain another of the other person's liberty." R.C. 2905.01(B)(2).
[*P83] With the foregoing standards in mind, we conclude that
Harwell's convictions are supported by legally sufficient evidence
and are not against the weight of the evidence. Initially, we note
that three witness identified Harwell as "B." Peak and Lambes also
both testified that they recognized B's cell phone number as 660****. The various cell phone records admitted by the State
demonstrated that the 660-**** cell phone corresponded several
times with Peak, Lambes, and Miller on the night of June 15, 2015.
In addition, the 660-**** cell phone also had several contacts in
19

common with Harwell's other cell phones. Accordingly, it was
reasonable for the jury to conclude that Harwell is B.
[*P84] With respect to Harwell's three felonious assault
convictions, the jury was presented with testimony and evidence
indicating that at least five gunshots were fired at Lambes and
Miller. Specifically, five shell casings were found by law
enforcement at the scene of the crime and Lambes testified to
hearing multiple gunshots as he ran away from Harwell and his
accomplice. The testimony from the State's expert indicated that
the shell casings were found to be from two separate firearms and
Lambes testified that he saw both Harwell and his accomplice with
firearms on the night in question. From this evidence, a jury could
reasonably conclude that Harwell knowingly fired at least a portion
of the gunshots in an attempt to cause physical harm to Lambes
and Miller. Additionally, given that Miller died as a result of
multiple gunshot wounds, a jury could also reasonably conclude
that Harwell knowingly caused serious physical harm to Miller
either as the principal offender or as an aider and abettor.
Accordingly, we conclude the weight of the evidence supports
Harwell's three convictions for felonious assault.
[*P85] The weight of the evidence also supports Harwell's three
kidnapping convictions involving Lambes. Lambes' testimony, if
believed, clearly establishes that Harwell restrained his liberty
through threat of harm. Lambes testified that he felt he had no
choice but to leave Peak's house with Harwell. He also testified
that he felt threatened when Harwell flashed his gun in the truck
and took his cell phone. In addition, Lambes testified that Harwell
made threats, which led him to believe that he would have been
shot or killed if he tried to escape. Lambes further testified that
Harwell specifically told him not to run away. There was also
testimony from Mesarosh that Miller had told her that Harwell was
holding Lambes hostage. Lambes also testified that when he
eventually ran away, four or five shots were fired at him. The
foregoing testimony, if believed, sufficiently establishes that
Harwell's restraint of liberty over Lambes placed Lambes in fear,
facilitated a felonious assault, and also created a substantial risk of
serious physical harm to Lambes. Accordingly, the weight of the
evidence supports all three kidnapping convictions related to
Lambes under R.C. 2905.01(A)(2),(3), and (B)(2).
[*P86] With respect to the three kidnapping convictions related to
Miller, Mesarosh's testimony, if believed, establishes that Miller
was afraid to meet Harwell at John Street for fear of being killed.
Mesarosh's testimony further establishes that Miller said he had to
20

go to straighten things out with Harwell so he would let Lambes
go. In other words, the testimony indicates that Harwell restrained
Miller's liberty through threat of harm to Lambes. Lambes also
testified that Harwell approached Miller by patting him down,
removing something from his waistband, and ordering him in the
backseat of his truck. In addition, Lambes testified that Harwell
threatened to kill Miller if Miller did not kill Lambes. Again this
testimony, if believed, sufficiently establishes that Harwell's
restraint of liberty over Miller placed Miller in fear, facilitated a
felonious assault and murder, and also created a substantial risk of
serious physical harm to Miller.
[*P87] Having determined that the separate convictions for
kidnapping and felonious assault are not against the manifest
weight of the evidence, the predicate offense element for felony
murder has been satisfied. There is also sufficient evidence in the
record indicating that Miller died as a proximate result of the
felonious assault and kidnapping committed by Harwell.
Therefore, Harwell's felony murder convictions are also not against
the manifest weight of the evidence.
[*P88] Because Harwell's felony murder, felonious assault, and
kidnapping convictions are not against the manifest weight of the
evidence, they are necessarily supported by sufficient evidence as
well. We have not discussed the two convictions for attempted
felony murder as those convictions will be vacated under the
authority of Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25
N.E.3d 1016.
[*P89] For the foregoing reasons, Harwell's two assignments of
error related to the manifest weight and sufficiency of the evidence
are overruled.
State v. Harwell, supra.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
21

[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which
determines the elements of offenses; but once the state has adopted the elements, it must then
prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
22

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
The evidence summarized by the Second District in ¶ 84 is sufficient evidence because it
shows testimony that at least two weapons were involved in the shootings, that Harwell had a
firearm, and that Harwell’s accomplice had a firearm, thus supporting the convictions for
felonious assault. The evidence summarized in ¶ 85 is sufficient to show that Harwell kidnapped
Lambes. Harwell’s Fourth Ground for Relief is without merit.

23

Ground Five: Ineffective Assistance of Trial Counsel: Failure to Object to Impermissible
Amendment of Indictment

In his Fifth Ground for Relief, Mr. Harwell combines the substantive claim that the trial
court impermissibly amended the indictment to read it as charging first-degree rather than second
degree felony kidnapping and that his attorney provided ineffective assistance of trial counsel by
not objecting.
The Second District decided this claim as follows:
[*P49] . . . Harwell contends his trial counsel was ineffective in
failing to object to the trial court allegedly "amending" the
kidnapping charges during the jury instructions to make them firstdegree felonies when he claims the indictment only charged him
with second-degree felony kidnapping. According to Harwell, the
indictment charged him with second-degree felony kidnapping as
opposed to first-degree felony kidnapping because it failed to state
that he "did not release the victim in a safe place unharmed." As a
result, Harwell claims the trial court erred in instructing the jury on
first degree felony kidnapping and that his trial counsel should
have raised an objection.
[*P50] "Under R.C. 2905.01(C), the offense of kidnapping is
generally a first-degree felony but may be reduced to a seconddegree felony if 'the offender releases the victim in a safe place
unharmed.'" State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio6046, 837 N.E.2d 315, ¶ 233. Accord State v. Carver, 2d Dist.
Montgomery No. 21328, 2008-Ohio-4631, ¶ 87. However,
"[w]hether the victim is released in a safe place unharmed is not an
element of the offense." Carver at ¶ 87, citing State v. Sanders, 92
Ohio St.3d 245, 265, 2001 Ohio 189, 750 N.E.2d 90 (2001).
"Rather, it is in the nature of an affirmative defense, and the
defendant bears the burden of proof on this issue." (Citations
omitted.) Id.
[*P51] Because the "safe place unharmed" language is not an
element of kidnapping, it need not be included in the indictment.
State v. Drake, 10th Dist. Franklin No. 98AP-448, 1998 Ohio App.
LEXIS 6224, 1998 WL 890169, *6 (Dec. 17, 1998). We also note
that Harwell did not present any evidence at trial indicating that the
victims were released in a safe place unharmed. Rather, the
evidence indicates that Miller was shot multiple times and left to
24

die, whereas Lambes escaped by fleeing into the woods while
gunshots were fired at him. "When the victim of a kidnapping
escapes of [his or] her own accord, a defendant cannot establish the
affirmative defense that the victim was released unharmed."
(Citation omitted.) State v. White, 10th Dist. Franklin No. 06AP607, 2007-Ohio-3217, ¶ 21.
[*P52] For the foregoing reasons, the trial court did not err when it
instructed the jury on first-degree felony kidnapping. Therefore, an
objection on that basis was unwarranted and trial counsel's failure
to raise such an objection does not amount to deficient
performance. Accordingly, Harwell's ineffective assistance claim
must fail.
State v. Harwell, supra.
Thus the Second District definitively held that, under Ohio law, kidnapping is a first
degree felony unless it is proved that the victim was released in a safe place unharmed. In other
words, to make kidnapping a felony of the first degree, the grand jury does not have to add
language charging that the victim was not released in a safe place unharmed. This Court is
bound by the Second District’s determination of what Ohio law requires. Since Ohio law does
not require negativing the “safe place unharmed” degree-lowering fact, the trial court did not err
in instructing on kidnapping as a first-degree felony as it was charged and there was no
ineffective assistance of trial counsel in failing to object. Ground Five is without merit.

Ground Six: Ineffective Assistance of Trial Counsel: Not Objecting to Presence of
Alternate Jurors During Deliberations

In his Sixth Ground for Relief, Mr. Harwell asserts his attorney provided ineffective
assistance of trial counsel when he did not object to the presence of the alternate juror with the
deliberating jury. Harwell raised this claim in his first assignment of error in his supplemental
brief and the Second District decided it as follows:

25

[*P42] Under the First Assignment of Error raised in Harwell's
supplemental merit brief, Harwell contends his counsel was
ineffective in failing to object to the alternate jurors being present
during the jury deliberations. However, after reviewing the record,
we find no evidence demonstrating that the alternate jurors were
present during deliberation, as the trial court stated the following:
Alternate jurors were selected to serve in the event of any
misfortune to a member of our 12 regular jury panel.
What we're going to do in this case is we're going to keep
our alternates serving with us, but they will not be
deliberating with the 12 jurors. * * * But what I'm going
to do is those orders that have been applicable to all of our
jurors during our recesses about not discussing the case,
not conducting any independent investigation, and so on,
those orders are going to continue to apply to you even
though I'm not going to allow you to go back to the jury
room to deliberate.
Trial Trans. Vol. VII (June 28, 2013), p. 1717-1718.
[*P43] Shortly after the trial court made the foregoing remarks, the
court was informed of an issue with Juror Number Six, who was
thereafter excused and replaced by the first alternate juror. Id. at
1726-1729. The record does not indicate that the second alternate
juror was ever present during the jury deliberations. Accordingly,
Harwell's ineffective assistance claim lacks merit.
State v. Harwell, supra. Thus the Second District found there was no record evidence that an
alternate was ever present when the jury was deliberating except after alternate number one had
replaced regular juror number six. That finding of fact is dispositive of the Sixth Ground for
Relief in that Mr. Harwell has presented no clear and convincing evidence that contradicts that
finding. See 28 U.S.C. § 2254(d)(2).

Ground Seven: Ineffective Assistance of Trial Counsel:
Instructions on Complicity and Causation

Failure to Object to Jury

In his Seventh Ground for Relief, Petitioner claims he was provided ineffective assistance

26

of trial counsel when his attorney did not object to erroneous jury instructions on complicity and
causation. Regarding the complicity instruction, the Second District held:
[*P45] Under the Second Assignment of Error raised in Harwell's
supplemental merit brief, Harwell contends his trial counsel was
ineffective in failing to object to the trial court's jury instruction on
complicity, as he claims the trial court provided an incorrect
instruction that prejudiced him. Specifically, Harwell argues that
the trial court failed to inform the jury that to find him guilty as an
aider and abettor it must find that he acted "with the kind of
culpability required for the commission of the offense" as provided
by R.C. 2923.03.
[*P46] A review of the record reveals that Harwell's trial counsel
entered a general objection to the jury instructions with regards "to
anything dealing with complicity and aiding and abetting." Trial
Trans. Vol. VII (June 28, 2013), p. 1628. While counsel did not
state that he was objecting to the complicity instructions for the
specific reason given by Harwell in his appellate brief, we do not
find that it would have changed the outcome of the case even if
counsel had made the specific objection.
[*P47] The trial court's jury instructions on aiding and abetting
were correct statements of law that included the culpability
required for the commission of each offense. Specifically, under
each charged offense, the trial court's jury instructions provided the
culpability or mens rea required for finding Harwell guilty as an
aider and abettor. For example, under Count One, felony murder
with the predicate offense of felonious assault, the trial court stated
that "an aider and abettor is a person who knowingly aids, helps
supports, assists, encourages, cooperates with, advises, incites, or
directs himself with another person or persons to commit the
offense." (Emphasis added.) Id. at 1673. Likewise, for Count Two,
felony murder with the predicate offense of kidnapping, the trial
court stated that "an aider an abettor is a person who purposefully
aids, helps, supports, assists, encourages, cooperates with, advises,
incites, or directs himself with another person or persons to
commit the offense." (Emphasis added.) Id. at 1680. The trial court
provided a similar mens rea specific instruction for every charge.
Therefore, because the trial court did not err when instructing the
jury on the culpability required to be an aider and abettor, Harwell
cannot establish that the outcome of his trial would have been
different had counsel objected on those specific grounds.
Accordingly, Harwell's ineffective assistance of counsel claim
fails.
27

State v. Harwell, supra.
Regarding causation, the Second District wrote:
[*P62] Under his Fifth Assignment of Error, Harwell contends the
trial court's jury instruction defining the term "cause" was
improper. Jury instructions given by a trial court must be "a
correct, clear, and complete statement of the law." (Citation
omitted.) State v. Justice, 2d Dist. Montgomery No. 21375, 2006Ohio-5965, ¶ 42; State v. Moore, 2d Dist. Montgomery No. 24957,
2012-Ohio-3604, ¶ 45. Ohio Jury Instructions, CR Section 417.23
defines "cause" and "natural consequences" in the following
manner:
1. CAUSE. The state charges that the act or failure to act
of the defendant caused (death) (physical harm to [person]
[property]). Cause is an essential element of the offense.
Cause is an act or failure to act which in a natural and
continuous sequence directly produces the (death)
(physical harm to [person] [property]), and without which
it would not have occurred.
2. NATURAL CONSEQUENCES. The defendant's
responsibility is not limited to the immediate or most
obvious result of the defendant's act or failure to act. The
defendant is also responsible for the natural and
foreseeable (consequences) (results) that follow, in the
ordinary course of events, from the act or failure to act.
Id.
[*P63] In this case, the trial court instructed the jury consistent
with the foregoing section of the Ohio Jury Instructions when it
provided the following definition of "cause":
Cause is an essential element of the offense. Cause is an
act which in a natural and continuous sequence directly
produces the death of a person and without which it
would not have occurred. The Defendant responsibility is
not limited to the immediate or most obvious result of the
Defendant's act. The Defendant is also responsible for the
natural and foreseeable results that follow in the ordinary
course of events from the act.
***
28

Cause. The State charges that the act of the Defendant
caused physical harm to another. Cause is an essential
element of the offense. Cause is an act which in a natural
and continuous sequence directly produces the physical
harm to another and without which it would not have
occurred.
Trial Trans. Vol. VII (July 25, 2013), p. 1670, 1672.

[*P64] Therefore, because the trial court's instruction as to "cause"
provided a correct statement of law and is taken almost verbatim
from the Ohio Jury Instructions, the trial court did not err, let alone
commit plain error, when it instructed the jury as such.
State v. Harwell, supra.
Because the trial court’s instructions on complicity and causation were correct statements
of Ohio law as found by the Second District, any failure on trial counsel’s part to object cannot
have been deficient performance. Harwell’s Seventh Ground for Relief is without merit.

Ground Eight: Denial of Right to Counsel on Appeal

In his Eighth Ground for Relief, Mr. Harwell claims he was denied his right to counsel on
appeal because his waiver of appellate counsel was not knowing, intelligent, and voluntary.
The record reflects that Harwell retained attorney Robert Brenner to represent him on
appeal who filed a Notice of Appearance and Substitution of Counsel on January 10, 2014 (State
Court Record, ECF No. 5, PageID 152-53). The same day Brenner filed a motion to strike the
Anders brief that had been filed in the case by prior counsel. Id. at PageID 154. On February 25,
2014, the Second District granted the motion and allowed an additional thirty days for briefing.
Id. at PageID 155-56. On July 29, 2014, however, Harwell moved the appellate court to

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discharge Brenner and substitute his own pro se merit brief. Id.

at PageID 157-58.

On

September 5, 2014, the Second District granted the motion, but required Harwell to waive his
right to a copy of the transcript at State expense. Id. at PageID 234-35. Harwell signed that
waiver on September 10, 2014, and it was filed September 16th. Id. at PageID 237.
Respondent argues this claim is procedurally defaulted because it was not raised in the
court of appeals. Indeed it appears that the first time this claim was raised was as Proposition of
Law 8 in Mr. Harwell’s appeal to the Ohio Supreme Court (See Return of Writ, ECF No. 6,
PageID 2262; Memorandum in Support of Jurisdiction, State Court Record, ECF No. 5, PageID
360). Moreover, as that claim was made in the Supreme Court, it is completely conclusory – he
merely asserts his waiver was not knowing, intelligent, and voluntary without saying what was
lacking in his understanding or how the waiver was involuntary. Id. at PageID 376. Further, the
Second District’s granting of Harwell’s waiver of appellate counsel is a finding of fact. Such
determination is entitled to deference in the federal courts.
Harwell does not deny his failure to raise this claim in the Second District, but says his
default is excused by his actual innocence (Reply, ECF No. 8, PageID 2335). For reasons
already given, Harwell’s proof of actual innocence is unavailing. Ground Eight should be
dismissed as procedurally defaulted.

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

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to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

October 27, 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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