Glover v. Warden, London Correctional Institution

Filing 4

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, the Court should also deny any requested certificate of appealability and certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/23/2017. Signed by Magistrate Judge Michael R. Merz on 1/9/2017. (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
MARVIN GLOVER,
Petitioner,

:

- vs -

Case No. 3:16-cv-511
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

JEFF NOBLE, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for initial review
pursuant to Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.”
Petitioner Glover seeks relief from his convictions in the Montgomery County Common
Pleas Court on charges of rape and sexual battery. Having pleaded no contest to several of the
charges against him, Glover was convicted in a bench trial and sentenced to ten years to life
imprisonment. He appealed to the Second District Court of Appeals for Montgomery County
which affirmed the conviction and sentence. State v. Glover, 2016-Ohio-2749, 2016 Ohio App.
LEXIS 1634 (2nd Dist. Apr. 29, 2015); appellate jurisdiction declined, 146 Ohio St. 1492 (2016).

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Glover pleads four grounds for relief:
Ground One: Due process violated by conviction of Defendant
without proving each element of crime beyond reasonable doubt.
Supporting Facts: The state never prove [sic] any offense of
rape. There was no DNA evidence or any evidence for the
Defendant to be convicted of rape. The Defendant was actually
innocence [sic]. The victim lied and the State had no physical or
medical evidence. [Citing] Fiore v. White, 531 U.S. 25-229
(2001).

Ground Two: Ineffective assistance [of counsel] of trial and
appellate counsel violated Due Process of U.S. Constitution.
Supporting Facts: Trial and appellate counsel failed to raise
meritorious 14th Amendment claim. Counsel failed to move for
dismissal of charges when there was no medical records put into
evidence by the State of Ohio to prove any rape. Counsel
performance was deficient and errors prejudiced defense, depriving
petitioner of fair trial; counsel also failed to investigate petitioner’s
claims, evidence, and case. [Citing] Robinson v. Schriro, 595 F.3d
1086-1104 (2010); Joshua v. DeWitt, 341 F.3d 430-50 (6th Cir.
2003).
Ground Three: Prosecution suppressed evidence favorable to
defense, violated due process, knowing that petitioner was
innocence [sic].
Supporting Facts: The petitioner was denied full panoply of
protections afforded to a criminal defendant by the U.S.
Constitution. Brown v. Palmer, 2005 U.S. Dist. LEXIS 3185. Due
process violated when prosecution withheld evidence that the only
evidence the State had was hearsay testimony which caused actual
prejudice, which was used from 911 tapes in violation of
Confrontation Clause had substantial and injurious [effect].
[Citing] Brecht v. Abrahamson, 507 U.S. 619-30 (1993); Brown v.
Keane, 355 F.3d 82, 92 (2nd Cir. 2004); Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194 (1963).
Ground Four: The verdict was entered upon insufficient
evidence in violation of the Due Process Clause of the 14th Amend.
U.S. Const.

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Supporting Facts:
The petitioner’s conviction is not
constitutionally sound; not any elements of the crime was proved
beyond a reasonable doubt. [Citing] Jackson v. Virginia, 443 U.S.
307, 99 S. Ct. 2781 (1979); In re Winship, 397 U.S. 358, 90 S. Ct.
1068 (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).
(Amended Petition, ECF No. 3, PageID 15-20.)

ANALYSIS

Grounds One and Four: Insufficient Evidence

In his First and Fourth Grounds for Relief, Mr. Glover claims he was convicted on
insufficient evidence.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en
banc). In order for a conviction to be constitutionally sound, every element of the crime must be
proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
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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. A sufficiency
challenge should be assessed against the elements of the crime, not against the elements set forth
in an erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193
L. Ed. 2d 639 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
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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).
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
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, 141 (2005); Bell v. Cone, 535 U.S.
685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Bell v. Howes, 703
F.3d 848 (6th Cir. 2012).
In State v. Glover, supra, the court of appeals reviewed the testimony at trial at great
length before deciding Glover’s third assignment of error as follows:
[*P101] Glover's third assigned error is as follows:

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APPELLANT'S CONVICTIONS WERE
MANIFEST WEIGHT OF THE EVIDENCE.

AGAINST

THE

[*P102] Glover asserts that "T.H.'s testimony of events alleged

from ten years earlier was conflicting in several details." He asserts
that her testimony was inconsistent as to the frequency of the
abuse, how often he left money on her dresser, what she wore at
the time of the first incident, and when she began cutting herself.
Glover notes that "T.H.'s purported memory of the first alleged
incident in 2003 was presented as clearer than her memory of
specific details of the alleged incident of gross sexual imposition
from December, 2013." Glover further notes that T.H. never told
anyone about the ongoing abuse, and that S.K. never told her own
parents. Glover asserts that there "was no corroborating evidence
of T.H.'s allegations of rape." According to Glover, if "this Court
overrules the first and second assignments of error and holds that
the complained of evidence was properly admitted, the trial court
nonetheless could not use that evidence to prove that appellant
acted in conformity therewith regarding" the offenses before the
court.
[*P103] The State responds that T.H.'s "inability to accurately

remember how often or how regularly Glvoer molested her over
the course of 11 years does not mean the judge lost his way in
crediting her testimony about the three crimes about which she
offered detailed testimony." According to the State, the number of
times Glover left money on T.H.'s dresser "is not an element of the
crimes with which he was charged," and that whether she wore a
nightdress or pajamas the first time she was abused is
"inconsequential, especially when compared to the details she did
recall." The State asserts that the court "was not required to
disbelieve" T.H. about the cutting and suicide attempt "simply
because she never told her mom and the scars eventually faded."
The State asserts that T.H.'s "testimony was not incredible simply
because she did not disclose the abuse to an adult until she called
911 in March of 2014." The State asserts that the fact that her
mother never noticed her depression and cutting behavior is not
evidence that T.H. is not credible. Finally, the State asserts that
there is "no reason to believe that the judge who found Glover
guilty did so by using [Evid.R. 404(B)] evidence as proof of his
propensity to commit the crimes."
[*P104] As this Court has previously noted:

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When analyzing a challenge to the manifest weight of the
evidence, the court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial
ordered. State v. McKnight, 107 Ohio St. 3d 101, 112,
2005-Ohio-6046, 837 N.E.2d 315. The discretionary
power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily
against the conviction. Id.
The credibility of the witnesses and the weight to be given
to their testimony are primarily matters for the trier of
facts to resolve. State v. DeHass, 10 Ohio St.2d 230,
231, 227 N.E.2d 212 (1967). "Because the factfinder * *
* has the opportunity to see and hear the witnesses, the
cautious exercise of the discretionary power of a court of
appeals to find that a judgment is against the manifest
weight of the evidence requires that substantial deference
be extended to the factfinder's determinations of
credibility. The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and
heard the witness." State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 Ohio App. LEXIS 3709,
1997 WL 476684 (Aug. 22, 1997).
State v. Henderson, 2d Dist. Montgomery No. 26018, 2014Ohio-4601, ¶ 23-24.
[*P105] Glover was convicted of two violations of R.C.
2907.02, which provides: "(A)(1) No person shall engage in

sexual conduct with another who is not the spouse of the offender
* * * when any of the following applies: * * * (b) The other person
is less than thirteen years of age, whether or not the offender
knows the age of the other person." Glover was convicted of one
violation of R.C. 2907.03, which proscribes sexual battery and
provides: "(A) No person shall engage in sexual conduct with
another, not the spouse of the offender, when * * * (5) The
offender is the other person's natural or adoptive parent, or a
stepparent, or guardian, custodian, or person in loco parentis of the
other person." R.C. 2907.01(A) defines "sexual conduct" in part as
"cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of the
body * * * into the vaginal * * * opening of another."
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[*P106] Having reviewed the entire record, we cannot conclude

that Glover's convictions are against the manifest weight of the
evidence due to the inconsistencies in T.H.'s testimony and her
delay in disclosing the abuse. Miceli testified, as an expert in the
dynamics of childhood sexual abuse, that inconsistencies are
common in delayed disclosure cases involving multiple instances
of abuse, because "it can be difficult to remember specifics of any
one event" unless "there's something unique about that event."
While T.H. may not have remembered all of the specific details of
the offenses before the court, her testimony was clear that in the
course of the first instance of abuse on Iddings Court, Glover
entered her room in boxer shorts, put his drink on her dresser,
performed oral sex on her in her bed, smelled of alcohol, and told
her that the abuse was their little secret. Similarly, T.H.'s testimony
was clear as to the subsequent offenses where Glover deviated
from his usual pattern of performing oral sex on T.H. in her bed by
carrying her downstairs before abusing her in the living room on
Iddings Court, and subsequently by digitally penetrating her on
Bromley Place, causing a sharp pain that prompted T.H. to push
him off, resulting in Glover's apology and promise not to do it
again. The factfinder credited T.H.'s testimony, and we defer to the
court's assessment of credibility.
[*P107] Further, we note Miceli's testimony that it is common
for child victims not to disclose sexual abuse until adulthood.
Miceli stated that many young children are not aware that anything
inappropriate has happened to them when the abuser is someone
they trust, and we note that T.H. testified that in the course of the
first instance of abuse, she did not know what to do. Miceli
testified that "once an abuse has happened one time and the child
hasn't told, they are less likely to tell as time passes." Miceli
testified that children also commonly disclose abuse in a vague and
incremental fashion to someone they trust, and the record reflects
that T.H. did so with S.K. Miceli testified that some children
"compartmentalize" the abuse and continue contact with their
abuser, and T.H. testified that she did not want to tear her family
apart, so she "just acted like it wasn't happening until I got older."
Miceli stated that it is difficult for children to disclose abuse
because they worry that they will not be believed or get into
trouble, and T.H. testified that she did not disclose the abuse
because she feared angering her mother. S.K. testified that T.H.
feared that her family would be torn apart if she disclosed the
abuse.
[*P108] While Glover suggests that J.D.'s failure to notice
T.H.'s depressive symptoms impugns T.H.'s credibility, J.D.

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suffers from a mental illness, and Miceli testified that child victims
of sexual abuse often exhibit internalizing behaviors "that are
turned more inward so there tends to be anxiety, nightmares,
suicidal ideation, depressive symptoms, cutting," and that those
around victims with internalizing behaviors often "are not aware of
that." T.H. testified that she cut herself and attempted suicide, and
that she did not confide in J.D. or seek medical treatment.
[*P109] Finally, as noted above, Glover was tried to the bench,
and we presume that the trial court considered only the relevant,
material, and competent evidence in arriving at its judgment, and
we conclude that the record does not affirmatively reflect, as
Glover asserts, that the court improperly considered evidence of
other crimes, wrongs or acts to prove Glover's character in order to
show action in conformity therewith, in violation of Evid.R.
404(B).
[*P110] Having thoroughly reviewed the entire record, weighed
the evidence and all reasonable inferences, and deferring to the
trial court's assessment of credibility, we conclude that a manifest
injustice is not demonstrated, and that Glover's convictions are not
against the manifest weight of the evidence. Glover's third
assignment of error is overruled.

A state court finding that the verdict is not against the manifest weight of the evidence
implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed. Appx. 761, 2007
U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-1185, 2011 U.S.
Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden, No. 1:10-cv091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.).
The evidence recited by the Second District in its decision is plainly sufficient evidence
for conviction. Mr. Glover complains that there was no DNA evidence, but DNA or other
medical evidence is not required.

The testimony of a victim is sufficient evidence under

Jackson.
"[T]his Court has long held that the testimony of the victim alone
is constitutionally sufficient to sustain a conviction." Tucker v.
Palmer, 541 F.3d 652, 658 (6th Cir. 2008), citing United States v.
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Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the
prosecuting witness, if believed by the jury, is sufficient to support
a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492,
500 (6th Cir. 2007) (holding that victim's testimony that habeas
petitioner abducted her and raped her was constitutionally
sufficient to sustain conviction despite lack of corroborating
witness or physical evidence); United States v. Howard, 218 F.3d
556, 565 (6th Cir. 2000) (holding that even if the only evidence
was testimony of the victim, that is sufficient to support a
conviction, even absent physical evidence or other corroboration);
United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (noting
that there is sufficient evidence to support a conviction even if the
"circumstantial evidence does not remove every reasonable
hypothesis except that of guilt") (internal quotation marks
omitted).
Bohannon v. Warden, 2013 U.S. Dist. LEXIS 148355, *31-32 (S.D. Ohio Oct. 4, 2013) (Merz,
M.J.)
Glover claims the victim lied and he is actually innocent. His trial strategy seems to have
been pleading no contest to the sexual misconduct on March 18, 2014, that led immediately to
his arrest in the hopes of keeping testimony about that sexual battery, from which DNA evidence
was collected, out of the record. The State, on the other hand, offered evidence from the March
18th offense to show consistency of Glover’s conduct over the course of years when the offenses
happened and to rebut any inference that T.H.’s claims were a recent fabrication to prevent a
family move to Beavercreek. Because a victim’s testimony about sexual misconduct is by itself
sufficient for conviction, the Second District’s decision is neither contrary to nor an objectively
unreasonable application of Jackson, supra. Mr. Glover’s First and Fourth Grounds for Relief
are without merit.

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Ground Two: Ineffective Assistance of Trial and Appellate Counsel

In his Second Ground For Relief, Mr. Glover claims his trial and appellate attorneys were
ineffective for failing to move to dismiss the charges when there were not medical records put
into evidence to prove rape. He also claims trial counsel did not investigate his case.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
11

presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood
of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d
372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but
the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
With respect to the first part of Ground Two, Mr. Glover’s claim is without merit because
no medical evidence was required to prove the rape.
12

As pointed out above, the victim’s

testimony alone is sufficient. It cannot be ineffective assistance of trial counsel or ineffective
assistance of appellate counsel to fail to raise a claim that is without any merit at all. Moreover,
appellate counsel did raise a manifest weight of the evidence claim which, in this case, was much
stronger than a sufficiency claims would have been.
The second part of this Ground for Relief is that trial counsel “failed to investigate
Petitioner’s claims, evidence, and case.” (ECF No. 3, PageID 17). This claim is completely
conclusory – there is no meat on the bones. Mr. Glover fails to allege what other investigation
should have been done and what it would have revealed. Moreover, since whatever it is that
counsel would have discovered is not part of the record, Mr. Glover was obliged to raise this
claim first in a petition for post-conviction relief under Ohio Revised Code § 2953.21. Since he
failed to do so, he has procedurally defaulted on this portion of Ground Three.
Ground Two is therefore without merit.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Mr. Glover claims the prosecution suppressed evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). However, he does not discuss any evidence
which was actually suppressed. Instead, he claims the State did not reveal until trial that all of its
evidence was hearsay. Brady does not require disclosure before trial of the weaknesses of the
State’s case, which is not evidence, properly speaking. No proper Brady claim is apparent in the
Amended Petition,
Mr. Glover does make, however, a Confrontation Clause claim related to the use of 911
recordings. No Confrontation Clause argument was made on appeal, so the claim is procedurally

13

defaulted. Moreover, the Confrontation Clause bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant has a
prior opportunity for cross-examination…” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
However, the victim was not absent from trial, but was fully available for cross-examination.
Glover’s third Ground for Relief is therefore also without merit.

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,
the Court should also deny any requested certificate of appealability and certify to the Sixth
Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in
forma pauperis.

January 9, 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
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
14

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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