Ward v. Warden, Ross Correctional Institution

Filing 4

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/15/2017. Signed by Magistrate Judge Michael R. Merz on 9/1/2017. (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
DEVINE D. WARD,
Petitioner,

:

- vs -

Case No. 3:17-cv-301
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
Ross Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought pro se by Petitioner Devine D. Ward to obtain
relief from his convictions in the Montgomery County Common Pleas Court on two counts of
aggravated robbery and his consequent sentence to twelve years imprisonment, presently being
served in Respondent’s custody.
The case 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 pleads the following grounds for relief:
Ground One: Petitioner is being held in violation of his right to
effective assistance of counsel guaranteed by the 5th, 6th, and 14th
Amendments to the U.S. Constitution.

1

Supporting Facts: Counsel was ineffective for 1) failing to
challenge venireman Clapp, either for cause or peremptorily; 2)
failing to renew his Ohio Crim. R. 14 motion for severance, and 3)
failing to present a complete defense.
Ground Two: Petitioner is being held in violation of his 5th, 6th,
and 14th Amendment right to testify in his own defense and in
violation of due process and equal protection of the law.
Supporting Facts: The joinder of offenses deprived petitioner of his
right to testify in his own behalf.
Ground Three: Petitioner is being held in violation of his 6th
Amendment right to confront the witnesses against him.
Supporting Facts: The State introduced into evidence a 911 call
from Erron Daniels, the alleged victim of the Nov. 17, 2014
robbery, who did not testify at trial.
Ground Four: Petitioner is being held in violation of his right to
the effective assistance of counsel on appeal guaranteed by the 5th,
6th and 14th Amendments to the U.S. Constitution.
Supporting Facts: Appellate counsel was ineffective for failing
to argue: 1. that trial counsel was ineffective for: a. informing the
jury that Petitioner was guilty, b. failing to request a dismissal of
count two when Erron Daniels failed to show up to court or for
failing to ask for a continuance, c. failing to call Tritania Knight as
an alibi witness, d. failing to request dismissal after the state's
witnesses perjured themselves, e. failing to impeach several
witnesses with prior inconsistent statements; 2. failing to argue
petitioner's right to confrontation was violated; 3. failing to argue
prosecutorial misconduct based upon the prosecutor's knowing use
of perjury.
(Petition, ECF No. 3.)

Procedural History

Petitioner Ward was arrested for two armed robberies which occurred on consecutive
days in November 2014. State v. Ward, 2016-Ohio-5354, ¶ 3, 2016 Ohio App. LEXIS 3218 (2nd
2

Dist. Aug. 12, 2016), motion for delayed appeal denied, 147 Ohio St. 3d 1473 (2016). He was
indicted on two counts of aggravated robbery with firearm specifications and convicted by a jury
on all counts. The trial court imposed a six-year term for the first robbery, a concurrent fouryear term for the second robbery, and two consecutive three-year terms for the firearm
specifications. Id. at ¶ 7. Ward took a direct appeal to the Ohio Second District Court of
Appeals which affirmed the convictions and sentence. Id. As noted, the Ohio Supreme Court
denied a motion for delayed appeal after no notice of appeal was filed by the due date, forty-five
days after judgment in the court of appeals. Ward filed a motion to reopen his direct appeal
under Ohio App. R. 26(B) to present claims of ineffective assistance of appellate counsel which
was denied as untimely. State v. Ward, Case No. 26773 (2nd Dist. Mar. 17, 2017)(unreported;
copy available at mcclerkofcourts.org), appellate jurisdiction declined 149 Ohio St. 3d 1408
(2017). Ward avers he placed his Petition for Writ of Habeas Corpus in the prison mailing
system on August 4, 2017, but on the same page he says he did not sign the Petition until August
24, 2017 (ECF No. 3, PageID 18).

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Ward claims his trial attorney provided ineffective
assistance of trial counsel when he did not challenge venireman Clapp for cause or peremptorily,

3

when he did not renew the motion to severe the two offenses, and when he did not present a
“complete defense.”
Ward’s First Assignment of Error on direct appeal raised the claim of ineffective
assistance of trial counsel regarding Juror Clapp. The Second District decided the claim as
follows:
[*P8] In his first assignment of error, Ward contends his trial
counsel provided ineffective assistance by failing to challenge a
particular juror either for cause or peremptorily. The juror in
question stated during voir dire that he worked as a delivery driver
for a beer distributor and knew people in his profession who had
been robbed at gunpoint. He agreed that the nature of Ward's case
gave him "some pause for concern." He believed the fact that
Ward's case involved the robbery of delivery drivers would make it
difficult for him to sit as a juror. When asked whether he could set
aside his feelings and judge the case solely based on the evidence,
he responded: "I would like to think that I would, but I'm not sure."
The juror explained that he had observed the emotional impact
being robbed had taken on other drivers. When asked whether that
would affect his ability to sit as a juror, he responded:
I would like to say I would be fair. But I'm saying past
experiences and sympathizing with the people and the
stuff that's happened to them, knowing what happened to
them even though there wasn't a physical thing, mentally
and what it's done to their lives up until now, it makes it
really hard to, you know, sit on one—and witness going
through this again. You know what I'm saying? You
know, there's—it's—just for example, there was an older
lady that was pistol whipped to give money away and was
severely injured and had to spend a year off work. And I
was really close to her. And I tell you what, if I'd have got
my chance to get a hand on that guy, I would have
lobbied some justice. You know?
So I'm just saying, it's—being—you know, I'm
sympathetic to the carry out people that it's happened to.
And through thirty-five years I've had a number of
occasions to be close to people that it's happened to. And
like I said, just having a—I'm—actually, in my line of
work I've had a pistol pointed in front of me. I know the
feeling, you know. * * *
4

(Tr. at 169-170).
[*P9] To prevail on an ineffective-assistance claim, a defendant
must show deficient performance and resulting prejudice.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). To show deficiency, a defendant must show
that trial counsel's representation fell below an objective standard
of reasonableness. Id. Prejudice exists and a reversal is warranted
only where a defendant shows a reasonable probability that but for
counsel's deficient performance the result of the proceeding would
have been different. State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373 (1989).
[*P10] We find no ineffective assistance of counsel here. We
cannot know, of course, why defense counsel failed to challenge
the juror at issue, either for cause or through a peremptory
challenge. But even if we assume arguendo that defense counsel
provided deficient representation by not seeking to have the juror
stricken from the pool, Ward cannot demonstrate prejudice. HN2
"When a defendant bases an ineffective-assistance claim on an
assertion that his counsel allowed the impanelment of a biased
juror, the defendant 'must show that the juror was actually biased
against him.'" (Citations omitted.) State v. Mundt, 115 Ohio St.3d
22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67.
[*P11] In this case, the juror in question never stated that he
could not be fair or that he was actually biased against Ward
personally, as is required to establish prejudice. State v. Pickens,
141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 213. The
juror expressed unease and conveyed his belief that the nature of
the cause would make it difficult for him to be objective. This is
not the same as admitting or acknowledging a personal [**8] bias
against Ward, who the juror acknowledged remained innocent in
his eyes. We note too that HN3 the use of peremptory challenges
"is inherently subjective and intuitive," meaning that the record
rarely will reveal ineffective assistance. (Citations omitted) Id. at ¶
214. Ward's case is one where the record does not. His first
assignment of error is overruled.

State v. Ward, supra.
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
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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 governing standard for ineffective assistance of trial counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
6

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 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
Here the Second District decided the ineffective assistance of trial counsel sub-claim
regarding excuse of Juror Clapp by applying the correct federal standard, stated in Strickland,
supra, It concluded that even if deficient performance were presumed, there had been no
showing of prejudice. This was not an objectively unreasonable application of Strickland.
Ward’s second sub-claim of ineffective assistance of trial counsel is for counsel’s failure
to renew at trial the motion for severance. This was his Second Assignment of Error on direct
appeal which the Second District decided as follows:
[*P12] In his second assignment of error, Ward asserts ineffective
assistance of counsel based on his attorney's failure to renew a
Crim.R. 14 motion for severance of the two aggravated-robbery
charges during trial.
[*P13] The record reflects that Ward's attorney filed a pretrial
motion to have the two aggravated-robbery charges tried
separately. The trial court overruled the motion, and defense
counsel did not renew the request during trial. Ward argues that his
attorney's failure to renew the motion resulted in the waiver of all
but plain error and constituted prejudicially deficient performance.
We disagree. As explained more fully in our analysis of Ward's
third assignment of error below, joinder of the two offenses for
trial was appropriate and severance was not required. Because the
trial court's denial of the pretrial motion for severance was
proper, and we see nothing that would have changed the result if
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the motion had been renewed at trial, defense counsel did not
provide ineffective assistance by failing to renew the motion. The
second assignment of error is overruled.
State v. Ward, supra.
This too was a not unreasonable application of Strickland. Because nothing changed
between the pretrial denial of severance and trial, nothing would have been gained by renewing
the motion and therefore it was not deficient performance to fail to do so. In particular Ward did
not suffer the prejudice he claimed of being limited to plain error review on appeal.
Ward’s third sub-claim of ineffective assistance of trial counsel is that his trial attorney
failed to present a “complete defense.” The Petition does not explain what a “complete defense”
would have been, but he presented this claim to the Second District on direct appeal as his Fourth
Assignment of Error which that court decided as follows:
[*P19] In his fourth assignment of error, Ward alleges ineffective
assistance of counsel based on his attorney's failure to present a
complete defense. Specifically, he contends counsel provided
ineffective assistance by (1) identifying Tationna Knight in a
pretrial notice as an alibi witness with regard to the Dragon City
robbery but not the Submarine House robbery and (2) subsequently
not calling her as a trial witness at all.
[*P20] On the record before us, Ward cannot possibly
demonstrate ineffective assistance of counsel on either of the
foregoing grounds. The appellate record does not reflect why
defense counsel did not identify Knight as an alibi witness for the
Submarine House robbery or why defense counsel did not call her
as a trial witness at all. With regard to the former issue, Knight
may have been unable to provide an alibi for the robbery of the
Submarine House driver. Because the record does not establish that
Knight had any alibi testimony to provide about that robbery,
Ward cannot show prejudicially deficient representation in
counsel's failure to list her as an alibi witness. With regard to
counsel's failure to call Knight to provide alibi testimony in
connection with the Dragon City robbery, counsel's decision likely
was influenced by the fact that Ward already had admitted
committing that offense. In light of Ward's confession, defense
counsel reasonably could have concluded that calling Knight as an

8

alibi witness would be counterproductive. The fourth assignment
of error is overruled.
State v. Ward, supra. As the Second District held, the record on direct appeal did not establish a
number of facts which would have made Ms. Knight a viable witness, particularly what she
would have said about the Submarine House delivery driver robbery. Ward did not attempt to
establish these facts by filing a petition for post-conviction relief. Here, again the Second
District’s decision is not an objectively unreasonable application of Strickland, supra.

Ground Two: Improper Joinder

In his Second Ground for Relief, Ward claims he was denied his right to testify in his
own defense by the trial court’s refusal to sever the two offenses for trial. Ward raised this claim
as his Third Assignment of Error on direct appeal. The Second District decided the claim as
follows:
[P14] In his third assignment of error, Ward argues that the
joinder of both aggravated-robbery offenses for trial deprived him
of his right to testify on his own behalf. He asserts that he wanted
to testify about the robbery of the Submarine House delivery driver
but not the robbery of the Dragon City driver. According to Ward,
he did not wish to testify about the second robbery because he
already had confessed to it. He maintains that the trial court's
failure to sever the two robberies for separate trials deprived him
of the opportunity to make this choice, effectively forcing him not
to testify at all.
[*P15] Upon review, we find Ward's argument to be
unpersuasive. "The law favors joinder to prevent successive trials,
to minimize the possibility of incongruous results in successive
trials before different juries, to conserve judicial resources, and to
diminish the inconvenience to witnesses." State v. Broadnax, 2d
Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33. Here the two
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aggravated robberies were permitted to be joined for trial
because [**10] they were "of the same or similar character," as
required by Crim.R. 8(A). The virtually identical crimes occurred
on consecutive days in the same location. They both involved the
armed robbery of a delivery driver by a perpetrator who fled in a
small black car. Under these circumstances, joinder undoubtedly
was proper. Id. at ¶ 34 ("Joinder was proper in this case because all
of the offenses at issue were of the same or similar character, being
aggravated robberies, all were committed within a six day period.
All of the offenses involved a similar modus operandi and were
committed the same way, and all of the offenses involved a
common scheme, plan or course of criminal conduct.").
[*P16] When offenses are joined, a defendant still may seek
severance under Crim.R. 14. To prevail on a claim that the trial
court erred in denying severance, Ward must demonstrate that his
rights were prejudiced. "To affirmatively show that his rights have
been prejudiced by the joinder, the defendant must furnish the trial
court with information sufficient to allow the court to weigh the
considerations favoring joinder against the defendant's right to a
fair trial, and the defendant must demonstrate that the court abused
its discretion in refusing to separate the charges for trial." Id. at ¶
37. A defendant normally cannot establish prejudice, however,
where either (1) the evidence of each of the crimes joined at trial is
simple and direct or (2) the State could have introduced evidence
of one offense in a separate trial of the other offense had severance
been granted. State v. Franklin, 62 Ohio St.3d 118, 122, 580
N.E.2d 1 (1991).
[*P17] Here Ward has not demonstrated prejudice resulting from
the trial court's failure to sever the charges against him. This court
rejected an argument quite similar to his in Broadnax, reasoning:
To show that he was prejudiced by the joinder of these
aggravated robbery offenses for trial, Defendant
complains that he wanted to testify as to the Trotwood
Speedway robbery while remaining silent as to the
Harrison Township robberies. Defendant claims that, as to
the Trotwood robbery, he wanted to provide the jury with
the same explanation he gave to police for why he was in
the Buick Regal they stopped just five minutes after the
Speedway station was robbed, and why he ran from
police. Defendant further claims that as to the Harrison
Township robberies, he intended to present an alibi
defense for those offenses, and he wanted to avoid
exposing his prior criminal record to the jury.
10

Defendant has not made a convincing showing that he had
important testimony to give concerning one charge and a
strong need to refrain from testifying concerning the
others. State v. Roberts (1980), 62 Ohio St.2d 170, 176,
405 N.E.2d 247. The mere possibility that a defendant
might desire to testify on one count and not the other is
insubstantial, speculative, and insufficient to show
prejudice. * * * Further, the prejudice Defendant suggests
is not in the jury's confusion of the facts concerning the
multiple alleged offenses, but in disbelieving his alibi
defenses if his testimony concerning other offenses
caused the jury to reject his credibility. That is merely a
tactical concern, not one relating to the fairness of
Defendant's trial.
More importantly, Defendant was not prejudiced by the
joinder of these robbery offenses for trial because the
evidence pertaining to each offense is simple and direct. *
* * All of the robberies involve different stores and
different witnesses. Witnesses in each of the robberies
independently identified Defendant as the robber. We find
the evidence as to each offense is straight-forward and
uncomplicated. Under those circumstances, it is
improbable that the trier of facts would confuse the
evidence or improperly consider the testimony concerning
one offense as corroborative of the other offenses. * * *
Defendant fails to affirmatively demonstrate prejudice
resulting from the joinder of these offenses for trial. We
cannot find that the trial court abused its discretion when
it denied Defendant's motion to sever the charges.
Broadnax at ¶ 39-41.
[*P18] We reach the same conclusion in Ward's case for at least
three independent reasons. First, he has not made a convincing
showing that he had important testimony to give concerning the
robbery of the Submarine House driver and a strong need to refrain
from testifying about the robbery of the Dragon City driver. Ward
has not identified what his testimony would have been with regard
to the first robbery. Furthermore, it is unclear why his confession
to the second robbery created a strong need for him to refrain from
testifying in that case. He simply could have admitted to the jury
what he had admitted to the police while still maintaining his
innocence with regard to the first robbery. Indeed, his willingness
to admit one of the robberies seemingly would have made his
denial of the other one more credible. Second, the motion for
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severance Ward filed below failed to cite his desire to testify in just
one of the two cases as a basis for finding prejudice. (See Doc.
#28, 35). Because Ward did not even mention this argument
below, he necessarily failed to provide the trial court with
information sufficient to allow it to weigh the considerations
favoring joinder against his right to a fair trial. Third, our review of
the record convinces us that Ward was not prejudiced by the
joinder in any event because the evidence pertaining to each
offense was simple and direct, and the evidence from one would
have been admissible in the other. Accordingly, his third
assignment of error is overruled.
State v. Ward, supra. Because Ward presented no basis to show he would be prejudiced by
failure to sever and particularly how joinder prevented him from testifying about the Submarine
House robbery, the Second District’s decision that there was no constitutional violation involved
is not an objectively unreasonable application of clearly established Supreme Court precedent.

Ground Three: Violation of Right to Confrontation as to Witness Erron Daniel

In his Third Ground for Relief, Ward claims his right to confront witnesses was violated
when the trial court admitted an out-of-court statement of witness Erron Daniel. Ward raised this
claim as his Fifth Assignment of Error on direct appeal and the Second District decided the claim
as follows:

[*P21] In his fifth assignment of error, Ward contends the trial
court violated his Sixth Amendment confrontation rights by
allowing the State to introduce into evidence a partial recording of
the 911 call from Erron Daniel, the victim of the Dragon City
robbery, who did not testify at trial.
[*P22] Ward objected to the recording being admitted, arguing

that Daniel's statements on the recording were testimonial in
nature. Over Ward's objection, the trial court admitted a portion of
the recorded call into evidence, concluding that the primary
12

purpose of Daniel's statements was to address an ongoing
emergency and, therefore, that the statements were nontestimonial. That being so, the trial court found no Sixth
Amendment violation.
[*P23] On appeal, Ward asserts that no emergency was in
progress and no immediate threat existed when Daniel made his
911 call. To the contrary, Ward contends that Daniel and the
perpetrator both had left the scene of the robbery when the call was
made. Ward notes too that Daniel said he was unharmed during the
call. Daniel also had spoken with his employer before dialing 911.
Under these circumstances, Ward asserts that Daniel's statements
on the 911 recording were testimonial, making their use at trial in
his absence a violation of his confrontation rights.

[*P24] Upon review, we find Ward's argument to be
unpersuasive. "The U.S. Supreme Court has recognized that a
defendant's Sixth Amendment right to confront witnesses against
him is violated when an out-of-court statement that is testimonial
in nature is admitted into evidence without the defendant having
had the opportunity to cross-examine the declarant." State v.
Eicholtz, 2d Dist. Clark No. 2012-CA-7, 2013-Ohio- 302, ¶ 26,
citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). Testimonial statements include
statements "'that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would
be available for use at a later trial.'" State v. Kelley, 2d Dist. Clark
No. 2011 CA 37, 2012-Ohio-1095, ¶ 58, quoting Crawford at 52.
"'[S]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.'" Eicholtz at ¶ 26, quoting Davis v. Washington, 547
U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), paragraph one
of the syllabus. "Typically, 911 calls made to report an ongoing
emergency that requires police assistance to resolve that
emergency are not 'testimonial' in nature and therefore the
Confrontation Clause does not apply." (Citations omitted.) State v.
Mc Daniel, 2d Dist. Montgomery No. 24423, 2011-Ohio-6326, ¶
24.
[*P25] The portion of the 911 call played for the jury is one
minute and twenty seconds long. Daniel can be heard telling the

13

911 operator that he had "just" been robbed at gunpoint near
Arlene Avenue and Prescott Avenue while making a delivery. He
reported the direction that the perpetrator had fled. He also
described the perpetrator as a black male in a black hoodie who
had fled in a small, black Mazda or Toyota. Finally, he gave the
operator his own name. Elsewhere in the full recording of the 911
call, Daniel reported that he was unharmed and that the robbery
had occurred no more than two minutes earlier. The tone and
volume of his voice suggested that he remained under the stress
and excitement of the incident.
[*P26] In rejecting Ward's confrontation argument, the trial court

reasoned:
In the first place the Court would start as I've listened to
the part of the tape with counsel that the State intends to
play, it's clear to me that Mr. Daniel['s] utterances are
excited based on his voice and the nature of the call and
listening to it. It's clear to me that it's certainly a present
sense impression. It happened within moments of the call.
So those two hearsay exceptions would put it in.
And then you get to the primary purpose. And what is the
primary purpose? And I believe, again, as [defense
counsel] accurately states, you got to look at the totality
of the circumstances but I think objectively the primary
purpose was to deal with an ongoing emergency, that is,
an armed guy that just robbed somebody at gunpoint and
whether they're still in the proximity. And I think that's an
emergency.
And I will also say, listening to the tape, I think there's
virtually a complete absence of interrogation by law
enforcement. Almost entirely what's on the tape is what's
being volunteered on this call.
Now, so therefore, the Court's going to rule that this is
nontestimonial in nature. It was a call made in response to
an emergent situation that had not been resolved. To
suggest that once the person flees there's no longer an
emergency I think is a much too narrow drawing of the
exception or what's emergent versus non-emergent and
I'm not going to do it. * * *.
(Tr. at 335-336).

[*P27] We agree with the trial court. Although Ward has not
raised a hearsay argument on appeal, we harbor no doubt that
14

Daniel's statements qualified as excited utterances and, therefore,
were admissible under the Ohio Rules of Evidence. With regard to
the Confrontation Clause, we note that "whether an emergency
exists and is ongoing is a highly context-dependent inquiry."
Michigan v. Bryant, 562 U.S. 344, 363,131 S.Ct. 1143, 179
L.Ed.2d 93 (2011). The mere fact that Daniel was unharmed and
that the perpetrator had fled the immediate location did not negate
the existence of an ongoing emergency. "An assessment of
whether an emergency that threatens the police and public is
ongoing cannot narrowly focus on whether the threat solely to the
first victim has been neutralized because the threat to the first
responders and public may continue." Id.
[*P28] The primary purpose of the 911 call here was to assist
police in apprehending a dangerous criminal who had just robbed
Daniel at gunpoint before fleeing into the night. These
circumstances presented a continuing emergency situation. See
United States v. Hayden, 612 Fed.Appx. 381, 384 (7th Cir.2015)
("[T]he 911 call at issue and statements to police were nontestimonial because their primary purpose was to provide police
officers with basic information to address an ongoing emergency.
The statements occurred within minutes of the robbery while an
armed suspect was still fleeing the scene and they provided only
basic information that might enable police to capture the suspect.
The content of the call was limited to informing police that a
robbery had occurred; the location of the robbery; that the robber
wore a gray and black striped shirt; that the robber was armed; and
that the robber fled in a certain direction. For this reason, the
statements were clearly non-testimonial and it was proper for the
trial court to allow them into evidence."); see also Cleveland v.
Merritt, 8th Dist. Cuyahoga No. 103275, 2016-Ohio-4693, ¶ 10, 19
(recognizing that an ongoing emergency situation can exist after
the perpetrator has left the scene if a potential threat to the police
or the public remains).
[*P29] Finally, nothing in the 911 recording indicates that Daniel
had traveled far from the scene of the robbery, if he had left it at all
when he made his 911 call, and the fact that he had spoken to his
employer before calling 911 was inconsequential. The full 911
recording reflects that Daniel's boss called him just before he
called 911, which resulted in him hanging up to place the
emergency call. Based on the foregoing reasoning, we overrule
Ward's fifth assignment of error.
State v. Ward, supra.

15

The analysis of the Second District carefully tracks the distinction between testimonial
and emergency communications with law enforcement which the Supreme Court has recognized
in the wake of Crawford v. Washington, supra. See Michigan v. Bryant, 562 U.S. 344 (2011).

Ground Four: Ineffective Assistance of Counsel on Direct Appeal

In his Fourth Ground for Relief, Ward claims he received ineffective assistance of
appellate counsel in several respects. Ward presented these claims to the Second District Court
of Appeals in his Application for Reopening under Ohio R. App. P. 26(B). Under Ohio law that
is the proper, and only, forum for raising claims of ineffective assistance of appellate counsel.
State v. Murnahan, 63 Ohio St. 3d 60 (1992). Manning v. Alexander, 912 F.2d 878 (6th Cir.
1990), which had said Ohio Revised Code § 2953.21 was available, explicitly disapproved. “In
Ohio, claims of ineffective assistance of appellate counsel are not cognizable in the normal
course of post-conviction proceedings, and must be raised through an application to reopen the
direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B).” Carter v. Mitchell, 693 F.3d
555, 564 (6th Cir. 2012).
However, Ward’s 26(B) Application was filed outside the time allowed for such motions
under Ohio law.

His claims of ineffective assistance of appellate counsel are therefore

procedurally defaulted.
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
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prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis 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.
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Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In noncapital cases, the timeliness rule for filing a 26(B) application is an adequate and
independent state ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008)(noting that
Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir. 2007)(distinguishing
holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets,
594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th Cir. 2009).
Since 1996, "Ohio law has provided sufficient guidance on what constitutes a 'good
cause' for a late filing under Rule 26(B)," and "'the time constraints of Rule 26(B) [have been]
firmly established and regularly followed.'" Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir.
2012), quoting Hoffner v. Bradshaw, 622 F.3d 487, 504-05 (6th Cir. 2010) (quoting Parker v.
Bagley, 543 F.3d 859, 861 (6th Cir. 2008)). Thus, Rule 26(B) is an adequate and independent
ground on which to find procedural default. Id.
Here the Second District enforced against Ward the ninety-day time limit for filing,
concluding he had not shown good cause for being late. Ward has offered in his Petition no
suggested cause to excuse this procedural default.

Conclusion

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

September 1, 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
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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