Parrish v. Warden, Marion Correctional Institution

Filing 30

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice because all claims are procedurally defaulted. Because reasonable jurists would not disagree with this conclusion, Peti tioner 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 6/6/2017. Signed by Magistrate Judge Michael R. Merz on 5/23/2017. (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
WILLIAM A. PARRISH, JR.,
Petitioner,

:

- vs -

Case No. 3:16-cv-486
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Marion
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Respondent’s Motion to Dismiss on
grounds that Petitioner’s claims are unexhausted, procedurally defaulted, or not cognizable in
federal habeas corpus (ECF No. 19). Petitioner opposes the Motion and has also objected (ECF
No. 26) to the Magistrate Judge’s Decision and Order denying his renewed Motion for
Evidentiary Hearing (ECF No. 24). Judge Rice has recommitted the matter to the Magistrate
Judge for reconsideration in light of the Objections (ECF No. 28).
Petitioner pleads the following thirty-two Grounds for Relief:
GROUND ONE: Petitioner was denied his right to a direct appeal
from his conviction when the State failed to meet the requirements
of Equal Protection and Due Process Clause of the United States
Constitution, Amendment Fourteen.
Supporting Facts: The trial court conspired with other public
official to prevent the Petitioner from having a meaningful direct
appeal by deliberately filing an incomplete trial transcript to the
Court of Appeals with missing testimony of the States only witness
which was proven to perjured, and missing testimony of character
witnesses, and a total of (476) large gaps in the trial transcript, and
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a erroneous certification of service attached to the trial transcript in
somebody else name and case number which prevented appointed
counsel from filing an appellate brief. By the States failure to file a
complete record for two (2) years and six (6) month and then deny
the Petitioner access to it, knowing that he would be unable to file
a appellate brief, then dismiss the Petitioner appeal for failure to
prosecute, violated Petitioners Fourteenth Amendment. Exhaution
requirement should be waived, and to further litigate this matter in
State court would be futile because the Supreme Court has ruled
that the clerk of Court is not required to provide an indigent
defendant with his personal copy of the transcript in addition to the
copy filed with the Court of Appeals. State ex rel Greene v.
Enright(1992) 63 Ohio St.3d 729, 732, 590 N.E. 2d 1257. The
Supreme Court of Ohio has also decided that, if the Appellant
chooses to proceed pro se on direct appeal he relinquished the
ability to gain access to the transcript by refusing the assistance of
counsel. In re Greene 506 U.S. 1025.
GROUND TWO: Petitioner was denied effective assistance
appellate counsel, in violation of Six, Fourteenth Amendment of
the U.S. Const.
Supporting Facts: Through out the Petitioner appeal five court
appointed attorneys where ineffective for failure to file a brief, and
failed to have the record corrected which denied the Petitioner a
direct appeal.
GROUND THREE: Court of Appeals abused it’s discretion by
allowing (5) court appointed attorneys to with-draw.
Supporting Facts: Five court appointed attorneys where
appointed to represent the Petitioner and one attorney, Chris
Wesner, was appointed twice and removed both times for no
known reason. (Exhibit A) Shows that Chris Wesner was
appointed twice. These actions committed by the Court of Appeals
caused a severe, excessive, unexcusable delay processing the
Petitioners direct appeal. Failure of the Court of Appeals to appoint
effective counsel forced the Petitioner to proceed pro se.
GROUND FOUR: Court of Appeals abused it’s discretion when it
gave the trial court an order to provide the Petitioner with a copy
of the record, but when the trial court violated the order the Court
of appeals reversed there order.
Supporting Facts: On December 6th, 2013, Court of Appeals
ordered the trial court to prepare a CD-ROM that has PDF versions
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of the trial transcript & proceedings and mail it to the Petitioner.
This order was made directly to the trial Judge Steven K. Dankof.
That order was violated and the Court of Appeals reversed the
order.
GROUND FIVE: Petitioner was denied his right to a fast &
speedy appeal in violation of Due Process of the State and Federal
Constitutions, U.S. Const. Amendment VI, XIV; Section 10, 16,
Art I, Ohio Const.
Supporting Facts: Petitioner filed a timely notice of appeal on
July 17, 2012, after the failure of court appointed attorneys, it was
discovered by the Petitioner that the record filed to the court of
appeals was deliberately altered by the trial court where omitted
testimony of the victims where he admitted to lying under oath,
and omitted testimony of petitioners character witnesses, and the
deliberate act of filing transcript with a certification of service with
another persons name and case number on it. These actions
committed by the State prevented appointed counsel from filing a
merit brief, which severely prejudice the Petitioner by the
excessive, unexcusable delay that resulted from the erroneous
incomplete record filed by the trial court.
GROUND SIX: Petitioner was denied his statutory right to a fast
& speedy trial right under the Six Amendment of the U.S. Const.
Supporting Facts: On September 15th, 2011, Petitioner was arrest
for the listed charges. On January 13th, 2012, Petitioner attended a
pre-trial hearing, during that hearing, Judge Steven K. Dankof and
appointed counsel Jay Adams mislead the Petitioner by telling him,
on the record, that he did not have the right to a fast & speedy trial
because of a unissued probation holder from another county. It was
discovered by the Petitioner that he did have a right to a fast &
speedy trial. On May 30th, 2012, a motion to Discharge for Delay
in Trial was filed, and the Petitioner had served a total of 256 days
in the Montgomery County Jail, and had not signed any kind of
time waiver, and was being held solely on the listed charges. A
hearing was requested, but the motion was not taken
inconsideration, and was over-ruled on May 31st, 2012, the next
day, and without essential findings.
GROUND SEVEN: The trial court abused it’s discretion and
violated Petitioners Due Process Rights by denying him a Bill of
Particulars.

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Supporting Facts: On January 13th, 2012, the Petitioner attended
a pre-trial hearing, during that hearing Petitioner verbally
requested to be provided with a Bill of Particulars because the
indictment lack vital information on how the listed crimes where
committed. The indictment just tracked the statutory language, and
the Petitioner discovery pack contain a 11 page police report.
Petitioner constantly complained about the lack of information
discovery pack contained, and the Petitioner was told that the
prosecutor was holding back some of the discovery. This was
stated by attorney Eugene Robinson, and this information was
presented to the trial judge. The trial judge and attorney Jay Adams
told the Petitioner that the Montgomery County Prosecutors Office
does not provide defendants with a Bill of Particulars, which
denied the Petitioner the right to a fair trial.
GROUND EIGHT: Petitioners constitutional rights where
violated and denied a fair trial when prosecutor, John C. Amos,
called to the Montgomery County Jail and had the Petitioner
placed in isolation on phone restrictions so that he could not
contact potential witnesses.
Supporting Facts: On or about the Month of March, 2012,
prosecutor John C. Amos called the Montgomery County Jail and
had the Petitioner placed in isolation. The next pre-trial hearing the
indictment was present to the trial judge, Steven K. Dankof, and he
called the County Jail and had the Petitioner placed back in regular
population.
GROUND NINE: Petitioner Due Process rights where violated
and denied a fair trial when the lead Detective, Christen Beane
harassed each of the Petitioners witnesses before trial.
Supporting Facts: Right before the Petitioner trial Det. Beane
went to each of the Petitioners witnesses residence with the
demeanor of intimidation, tried to force them to write a statement
against the Petitioner. This incident was presented to the trial
judge, Steven K. Dankof, informing him of Det. Beane
misconduct, but he refuse to address the issue and stated, “you will
have to take that up with her supervisor”.
GROUND TEN: The trial court violated a higher court order in
violation of Title 18 USCS §402. Contempts Constituting Crimes
when it disobeyed an order from the Court of Appeals.
Supporting Facts: On December 6th, 2013, the Second District
Court of Appeals of Montgomery, Ohio ordered the trial court to
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prepare a CD-ROM with PDF versions of the trial transcript &
proceedings be mailed to the Petitioner at the expense of the State.
The trial court refuse to provide the Petitioner with the CD-ROM,
and when the Petitioner presented the issue to the Court of Appeals
to hold Judge Steven K. Dankof in contempt, Appeals Court
reversed there order.
GROUND ELEVEN: Petitioner did not knowingly and intelligent
waive his right to counsel under U.S. Const. VI.
Supporting Facts: Petitioner was not advised that he would be
responsible for the attendance of the Petitioners expert witness
which the Petitioner had no knowledge of. During trial it was
discovered that the expert witness was not going to show up to
testify on behalf of the Petitioner. Expert witness was subpoena by
the Petitioner for the sole purpose to interpret the victims medical
records, because the victim claimed he was shot, but the report in
the medical record contradict that claim. The trial court would not
hold the expert witness in contempt for not showing and would not
grant an continuance to locate another expert witness.
GROUND TWELVE: Trial court abused it’s discretion in
denying the Petitioner motion to suppress evidence.
Supporting Facts: On April 9th, 2012, a motion to suppress was
filed and a evidentiary hearing was requested to suppress photo’s
that attorney Lucas Wilder told the Petitioner that the prosecutor
have, and that some photo’s of the victims wounds taken by the
victims mother at there residence, and suppress the victims
conflicting statements he made.
GROUND THIRTEEN: The trial court violated the Petitioners
Due Process rights when it denied the Petitioner the opportunity to
ask the jury supplemental questions.
Supporting Facts: On June 1st, 2012, final pre-trial hearing, the
trial Judge, Steven K. Dankof, advised the Petitioner that, he will
not allow him to ask the jury any questions during the voir dire.
Petitioner objected, and stated, how could he receive a fair trial if
he could not question the jury before peremptory challenges. Then
the Petitioner asked the judge why was he not allowed to ask the
jurors any questions? Judge Steven K. Dankof stated, “I’m not
ging to let you waste the jurors time with your silly questions”.

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GROUND FOURTEEN: Petitioner was denied Due Process
when the prosecutor constructively amended the indictment during
trial.
Supporting Facts: During trial the prosecutor stated several times
that the Petitioner car-jacked, stoled the victims vehicle, which the
charge of Grand Theft of a Motor Vehicle was not listed in the
indictment. Petitioner objected, but it was over-ruled.
GROUND FIFTEEN: Prosecutor misconduct was committed and
the trial court error by allowing the prosecutor to elicit hearsay
testimony from the States witness Detective Christen Beane.
Supporting Facts: In Det. Beane report she stated that a unknown
female told her that the Petitioner was the suspect in two shootings
which led directly to the Petitioners arrest. Before trial a motion
was filed requesting the identification of this witness on May 24th,
2016. In response of the request, the State states that the identity of
said witness was unknown, and the motion was denied on June 8th,
2012. During the trial, Det. Beane testified, and the prosecutor
asked Det. Beane how the Petitioner became a suspect, a unknown
prostitute said that the Petitioner was the one who committed the
listed offenses. Petitioner objected and stated, “is’nt that hearsay
your honor”. The objection was over-ruled.
GROUND SIXTEEN: Prosecutor misconduct was committed and
Petitioners Due Process rights where violated when the prosecutor
knowingly used perjury testimony to gain a conviction, and
allowing it to go uncorrected when it appeared.
Supporting Facts: During trial, on cross examination by the
Petitioner, the victim, the States only witness and evidence,
testified under oath that he had lied at the preliminary hearing, and
the prosecutor let this testimony go uncorrected. Before trial,
appointed counsel Lucas Wilder informed prosecutor John C.
Amos that the victim had lied under oath at the preliminary
hearing.
GROUND SEVENTEEN: The trial court abused it’s discretion
and violated the Petitioners Due Process right when failed to enter
a motion of Motion for Judgment of Acquittal.
Supporting Facts: During closing arguments the Petitioner stated
to the jury, “how could you find me guilty when you heard the
victim tell you that he had lied under oath at the preliminary
hearing”. Then the Petitioner began to read the perjury statue to the
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jury, but the trial judge intervene and said, “Mr. Parrish, you do not
have to go through that because we already know what Mr. Huff
(the victim) did, and you did a very good job of impeaching his
testimony. After the trial court concluded that the victims
testimony was perjured and impeach, and the only evidence the
State presented against the Petitioner, the trial court had a
mandatory duet to enter a Judgment of Acquittal.
GROUND EIGHTTEEN: Petitioners conviction where not
supported by sufficient evidence and was against the manifest
weight of evidence.
Supporting Facts: The sole piece of evidence was from the victim
who had admitted to lying under oath at the preliminary hearing.
GROUND NINETEEN: Petitioner was denied Due Process when
the prosecutor suppressed exculpatory evidence.
Supporting Facts: The prosecutor repeatedly refused to hand-over
photo’s of the victims alleged gun shot wound. Two demand for
discovery was filed, one request specifically asking for the photo’s
filed on May 24, 2012. On June 1, 2012, the trial court granted the
request for the medical records, but denied the request for the
photo’s. During trial the prosecutor was permitted to enter the
photo’s as evidence, over the Petitioners objections.
GROUND TWENTY: The trial court errored when over-ruling
the Petitioner motion for acquittal Crim. R. 29(C).
Supporting Facts: It was proven before trial and during trial that
the victim had committed perjury, and the trial court had
concluded that the victims testimony was perjured and also
impeached, and the motion for acquittal should have been granted.
GROUND TWENTY-ONE: The trial court Lack Subject Matter
Jurisdiction when the prosecutor knowingly used perjured
testimony to indict the Petitioner.
Supporting Facts: One September 23, 2011, the victim testified at
the preliminary hearing under oath that he did not consume any
alcohol on the night the crime was committed against him. Before
the victim testified the State had possession of the medical records,
(Exhibit B) because on September 20, 2011, in Det. Beanes notes
she stated that the medical records are coming for the victim. The
medical record prove that the victim had lied under oath, because
the victims lab results came back that his ethanol value was 175
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which mad him double over the states limit. The prosecutor know
that he had lied before he presented the case to the Grand Jury,
because the prosecutor with-held the victims medical records until
(3) days before trial.
GROUND TWENTY-TWO: Petitioners Due Process rights were
violated when the trial court failed to give the jury instructions on
how to rule.
Supporting Facts: Before closing arguments, and after closing
arguments, the trial court intentional did not give the jury any
instruction.
GROUND TWENTY-THREE: Brady violation was committed
and denied the Petitioner a fair trial.
Supporting Facts: The state had in custody the Petitioners codefendant when she was arrested in Terre Haute, IN. She had
waived extradition (Exhibit C) willing to come back to Ohio, but
the prosecutor dismissed the charges (Exhibit D) against her
without giving the Petitioner the opportunity to question her after
she stated in the police report that she knows who the person is that
committed this crime. When asking the prosecutor on the where
abouts of co-defendant, prosecutor stated that he had no
knowledge.
GROUND TWENTY-FOUR: The prosecutors misconduct
violated the Petitioners Due process and denied him a fair trial.
Supporting Facts: Prosecutor deliberately withheld the victims
medical records (3) days before trial. When appointed counsel
asked the prosecutor for those medical records in a e-mail (Exhibit
E), the prosecutor was untruful and stated that Det. Beane never
got the medical records, but in her notes (Exhibit B) she indicated
that the medical records are coming for victim.
GROUND TWENTY-FIVE: The trial court violated the
Petitioners Equal Protection Rights by systematic exclusion of
African Americans from the Petitioner Grand Jury proceedings,
and from the Petitioner jury trial.
Supporting Facts: Before the commencement of the Petitioner
trial the jury pool consisted of one African American, and the trial
court let him excuse himself, which left the Petitioner with a all
white jury pool. The Petitioner requested to have at-least one
African American seated on the jury for the purpose of identifing
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certain characteristics of blacks. That request was denied and the
trial judge stated that there was’nt any blacks available. The jury
pool failed to represent a fair cross section of the community.
GROUND TWENTY-SIX: Petitioner was denied the right to a
fair trial when the prosecutor used the Petitioners prior conviction
to impeach the Petitioners character witnesses.
Supporting Facts: During trial the proseutor question the
Petitioners character witnesses about other crimes committed by
the Petitioner to demonstrate Petitioners bad character, and not to
prove that he committed the indicted offences.
GROUND TWENTY-SEVEN: The trial court failure to properly
file the jury verdict forms denied the Petitioner the opportunity to
challenge the error they contain.
Supporting Facts: The trial court abused it’s discretion by
deliberately not filing the jury verdict forms. It has been
discovered by the Petitioner that the lead Detective in this case,
Christen Beane, wrote guilty on the verdict forms after the jurors
signed them. The hand-writing (Exhibit F) on the verdict matches
the hand-writing on the police (Exhibit G) report written out by
Det. Beane.
GROUND TWENTY-EIGHT: The Jury Verdict forms that were
submitted to the jury were highly prejudicial to the Petitioner.
Supporting Facts: The Jury Verdict forms contain statutory
definition of the listed offense which makes them viod.
GROUND TWENTY-NINE: The trial court error when it failed
to properly file the exhibits that were presented at trial:
Supporting Facts: The trial court failed to file the medical
records, and the preliminary hearing transcript as exhibits. The
petitioner used these documents at trial and trial court did not
preserve these documents for review on direct appeal.
GROUND THIRTY: The Petitioners Termination Entry that has a
rubber stamp is not a final appealable order. (Exhibit H)
GROUND THIRTY-ONE: The Petitioner was illegally detained
when transferred from the county jail to Correctional Reception
Center.

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Supporting Facts: It was discovered by the public defender at
C.R.C. that the Petitioner arrived at C.R.C. On July 18, 2016,
judgment of conviction was finally entered.
GROUND THIRTY-TWO: Cumulative errors deprived the
Petitioner a fair trial in violation of the Fifth, Sixth, and Fourteenth
Amendment to the U.S. Constitution.
(Petition, ECF No. 3, PAGEID : 58-62, 13-17.)(Misspellings are quoted as they appear in the original
without noting them by insertion of “sic.”)

Procedural History

Parrish was indicted by the Montgomery County grand jury in September 2011 with two
counts of aggravated robbery with firearm specifications, two counts of felonious assault, also
with firearm specifications, and one count of having weapons while under a disability
(Indictment, State Court Record, ECF No. 18, PageID 218-21). After dismissing three appointed
attorneys, Parrish exercised his constitutional right under Faretta v. California, 422 U.S. 806,
(1975), to try the case pro se. At trial the jury convicted Parrish on all five counts with the
relevant firearm specifications. Id. at PageID 271. Common Pleas Judge Steven K. Dankof then
sentenced Parrish to twenty-one years imprisonment. Id. at PageID 283-85.
Parrish appealed through stand-by counsel and was appointed new counsel by the Court
of Appeals. That attorney withdrew after being discharged by Parrish. After discharging several
other attorneys, Parrish proceeded pro se, arguing the trial transcript was erroneous and
incomplete. After numerous additional extensions of time, the Second District Court of Appeals
noted that the trial court has authority under Ohio law to correct the record. It thereupon
remanded the case to Judge Dankof and ordered Parrish to re-file his motion in that court
(Decision and Entry of April 9, 2015, State Court Record, ECF No. 18, PageID 402-03).
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Judge Dankof noted in his decision, inter alia, that Parrish had not raised in his renewed
motion the asserted missing testimony of Laddie Mae Jackson, the supposed 476 large gaps in
the transcript, the omitted jury instructions, or the erroneous certification page. Id. at PageID
412-14. On November 19, 2015, after Parrish failed to respond to a show cause order, the
Second District dismissed the appeal for failure of Parrish to file a brief. State v. Parrish, Case
No. 25282 (2nd Dist. Nov. 19, 2015)(copy at State Court Record, ECF No. 18, PageID 477-78.)
Parrish did not appeal to the Ohio Supreme Court. Parrish timely filed his habeas corpus petition
in this Court on November 28, 2016.
Respondent’s Motion to Dismiss provides a lengthy analysis of why Grounds Three,
Four, Seven, Ten, Twelve, Eighteen, Twenty-Five, and Twenty-Eight through Thirty-Two state
only claims under state law which are not cognizable in habeas corpus (Motion, ECF No. 19,
PageID 1423-28). As to Grounds One, Four, Eight, Nine, Ten, Twenty-Seven and Twenty-Nine,
Respondent argues Parrish has failed to exhaust available state court remedies, i.e., a petition for
post-conviction relief under Ohio Revised Code § 2953.21. Id. at PageID 1432-38. Finally,
Respondent makes procedural default or exhaustion arguments regarding Grounds Six, Seven,
Eleven through Twenty-Six, and Thirty through Thirty-Two. Id. at PageID 1439-42.
Parrish responds to the Motion with a motion to compel discovery and a request for an
evidentiary hearing (Motion, ECF No. 29).

Analysis

In the Magistrate Judge’s opinion, Mr. Parrish has procedurally defaulted in presenting
all of his claims to the Ohio courts.
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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
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433
U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391
(1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.

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Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985).
Failure to present an issue to the state supreme court on discretionary review constitutes
procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted). “Even
if the state court failed to reject a claim on a procedural ground, the petitioner is also in
procedural default ‘by failing to raise a claim in state court, and pursue that claim through the
state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009),
citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting O'Sullivan v. Boerckel,
526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004) ("A
federal court is also barred from hearing issues that could have been raised in the state courts, but
were not[.]").
Parrish has procedurally defaulted on all of his Grounds for Relief because he has never
presented any of them to the Ohio courts on appeal: his direct appeal to the Second District was
dismissed for failure to file a brief and he never appealed from that decision to the Ohio Supreme
Court. To the extent that he raised issues that depend on facts that are not in the state court
record, he had the possibility of filing a post-conviction petition under Ohio Revised Code §
2953.21, but the statute of limitations now bars that approach.
Mr. Parrish seems to believe that since the trial transcripts do not contain matter that he
believes should be there, this case will never be ripe for final decision until the record is
corrected to add material he believes should be there, but which he failed to persuade Judge
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Dankof was properly a matter of record. For example, Judge Dankof, who presided at trial,
specifically found that Laddie Mae Jackson did not testify and that Parrish had done nothing to
fill in the alleged 476 “large gaps.” Under Cullen v. Pinholster, 563 U.S. 170 (2011), this Court
must decide whether the Ohio courts committed constitutional error by examining the record that
was before them, not by holding an evidentiary hearing to hear testimony not presented in the
state courts.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice because all claims are procedurally defaulted.
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.

May 23, 2017.
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
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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).

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