Henley v. Warden Richland Correctional Institution

Filing 21

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appeala bility 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 8/7/2018. Signed by Magistrate Judge Michael R. Merz on 7/23/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRIAN DAMONT HENLEY,
Petitioner,

:

- vs -

Case No. 3:17-cv-421
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

DAVID MARQUIS, Warden,
Richland Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court for decision on the merits on the Petition
(ECF No. 1), the State Court Record (ECF No. 12, 16 & 19), the Return of Writ (ECF No. 13) and
Petitioner’s Reply (ECF No. 20).
Petitioner pleads the following grounds for relief:
Ground 1: Trial court erred in imposing sentence which violates
6th and 14th Am. right to jury trial in U.S. Const.
Supporting Facts: Trial court relied upon facts that were neither
admitted by defendant or found by a jury when the trial court
imposed the sentence and labelled defendant as a sexual predator.
Ground 2: Appellate counsel was ineffective in violation of 6th and
14th Am. of U.S. Const.
Supporting Facts: Appellate counsel failed to challenge trial
counsel’s failure to: challenge trial court bias at sentencing and
sexual classification hearing when the trial court accused defendant
of having committed several rapes not supported by the record; trial
court imposed sentence based on facts not found by the jury or
admitted by defendant and likewise labelled defendant a sexual
predator;
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Ground 3: Trial court violated defendant’s federal rights to
confrontation and compulsory process.
Supporting Facts: Trial court arbitrarily restricted the testimony of
a key defense witness. (Barbara Pettiford). (Due process violation
of the 14th Am. to the U.S. Constitution).
Ground 4: Trial court violated defendant’s state and federal right to
challenge conviction and sentence. 14th Am. U.S. Const.
Supporting Facts: At my resentencing hearing held on October 27,
2016, the trial court refused to allow me to raise challenges to my
underlying convictions and sentences in violation of my federal and
state rights to due process. 14th Am. U.S. Const.
Ground 5: The sentence imposed in this case is void in violation of
petitioner’s state and federal rights to due process.
Supporting Facts: The trial court relied upon unconstitutional
statutes when imposing the sentence.
Ground 6: Appellate counsel was ineffective in failing to raise trial
counsel’s failure to object to prosecutor misconduct. 6th and 14th
Am. U.S. Constitution.
Supporting Facts: The prosecutor remarked to the jury, during
summation, that petitioner’s presence at his own trial allowed him
to hear all of the evidence and then tailor his story to fit into that
evidence.
Ground 7: The trial court violated defendant’s state and federal
rights against being put twice in jeopardy for the same offense. 5th
and 14th Am. U.S. Const.
Supporting Facts: The trial court failed to merge the rape and
kidnap counts 1-5 and the court failed to merge the multiple
felonious assault and attempted felonious assault counts 6-8 when
the offenses are clearly allied offenses of similar import in violation
of state and federal double jeopardy prohibitions.
Ground 8: Trial counsel was ineffective in violation of petitioner’s
6th and 14th Am. rights to the effective assistance of counsel. U.S.
Con. 6th and 14th Am.
Supporting Facts: Trial counsel was ineffective at trial when
counsel requested a jury instruction for “self-defense” in relation to
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the attempted felonious assault charge when petitioner never
claimed to have committed attempted felonious assault in selfdefense and, in fact, petitioner denied having committed attempted
felonious assault at all.
Ground 9: Appellate counsel was ineffective in failing to raise trial
counsel’s ineffectiveness in not challenging a sentence imposed for
allied offenses and allied offenses of similar import in violation of
appellant’s state and federal rights to the effective assistance of
counsel where the sentences imposed violate state and federal
double jeopardy prohibitions.
Supporting Facts: The trial court imposed multiple sentences for
offenses that were clearly ‘allied’ in violation of state and federal
double jeopardy prohibitions. The multiple rape counts should have
merged with the kidnap counts and the multiple felonious assault
counts should have merged with each other as well as with the
attempted felonious assault count. Appellate counsel should’ve
challenged trial counsel’s failure to raise this issue.
Ground 10: The evidence at trial was insufficient to sustain the
conviction of ‘attempted felonious assault’ in violation of
petitioner’s state and federal rights to due process.
Supporting Facts: There was absolutely no evidence presented at
trial to prove that petitioner ‘attempted’ to suffocate his accuser with
a pillow.
(Petition, ECF No. 1, PageID 5-16.)
Petitioner has expressly waived Grounds for Relief Four, Five, Six, Eight, and Ten (Reply,
ECF No. 20, PageID 1723) and they will not be considered further.

Underlying Offense Conduct

On September 28, 2004, a jury in Montgomery County, Ohio convicted Henley of one
count of kidnapping, four counts of rape, two counts of felonious assault, and one count of
attempted felonious assault. The convictions stemmed from an incident occurring on the morning
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of May 24, 2004, when Henley offered the victim a ride home after her restaurant shift. On the
pretext of needing to use the restroom, Henley gained access to her apartment. Henley raped the
victim multiple times, after binding her mouth and hands with duct tape. He held a knife against
her, threatening to kill her, and then attempted to suffocate her with a pillow. When she tried to
escape, he also choked her and stabbed her. See State v. Henley, No. 20789, 2005-Ohio-6142,
2005 Ohio App. LEXIS 5531, at *2-9 (2nd Dist. Nov. 18, 2005).
There is an extended procedural history in this case which will be referred to as necessary
as it relates to particular grounds for relief.

Analysis

Ground One: Violation of Right to Jury Determination

In his First Ground for Relief, Petitioner asserts the trial court violated his Sixth
Amendment right to trial by jury by imposing a sentence and sexual predator designation on facts
not found by the jury.
Respondent asserts the Court lacks subject matter jurisdiction to consider this claim
because Henley is no longer in custody on his rape and kidnapping convictions. Petitioner replies
with controlling precedent, Garlotte v. Fordice, 515 U.S. 39 (1995). The Magistrate Judge
concludes the Court has subject matter jurisdiction over Ground One.
Respondent asserts this Court lacks authority to grant relief on Henley’s claim that he was

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improperly classified as a sexual predator, relying on Bevins v. Brunsman, 2009 WL 5612338
(S.D. Ohio Dec. 17, 2009), quoting Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002). Leslie holds
the restrictions on liberty of a classified sexual offender do not rise to the level of placing or
keeping the offender in custody. 296 F.3d at 522-23. Under Garlotte, because Henley remains in
custody on a consecutive sentence, he could attack in habeas the underlying rape conviction, but
not the sexual predator classification.
In his appeal from denial of his prior habeas petition, Henley made the claim that it was
ineffective assistance of appellate counsel to fail to argue that his trial attorney provided ineffective
assistance by not objecting that the sexual predator classification violated the rule in Blakely v.
Washington, 542 U.S. 296 (2004). Henley relies on Judge Merritt’s dissent in the case in which
he opined that Blakely prevented the Ohio courts from making the sexual predator determination
without submitting the question to the jury. But it is the majority opinion in the prior appeal that
binds this Court; we are not free to follow the dissent. Henley points to no authority since his prior
appeal that has adopted Judge Merritt’s position.
Respondent relies on the majority decision in the prior appeal, as well as other prior rulings
in the first case, to assert Ground One is barred by the law of the case doctrine (Return, ECF No.
13, PageID 431-33). Henley responds that law of the case doctrine does not apply because there
is a new intervening judgment, relying on In re Stansell, 828 F.3d 412 (6th Cir. 2016). Stansell
holds that the intervening judgment resets the AEDPA one-year statute of limitations in habeas
corpus and also prevents a new habeas petition from being second or successive and therefore
requiring permission from the circuit court to proceed. But Stansell does not control application
of the law of the case doctrine.
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Under the doctrine of law of the case, findings made at one point in the litigation become the
law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d
1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As
most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages in the
same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice
¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of
Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it is important for courts to treat like matters alike
in different cases, it is indispensable that they ‘treat the same litigants in the same case the same
way throughout the same dispute.’” United States v. Charles, 843 F.3d 1142, 1145 (6th Cir.
2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).
"Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing
Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912);
see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995).
While the “law of the case” doctrine is not an inexorable command,
a decision of a legal issue establishes the “law of the case” and must
be followed in all subsequent proceedings in the same case in the
trial court or on a later appeal in the appellate court, unless the
evidence on a subsequent trial was substantially different,
controlling authority has since made a contrary decision of the law
applicable to such issues, or the decision was clearly erroneous and
would work a manifest injustice.
White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Association of Frigidaire
Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995).
The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled
issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United
States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice. A generally liberal
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view is expressed in Gillig v. Advanced Cardiovascular Systems, Inc. 67 F.3d 586 (6th Cir. 1995).
“We generally will not disturb these [prior holdings] unless there is
'(1) an intervening change of controlling law; (2) new evidence
available; or (3) a need to correct a clear error or prevent manifest
injustice.'" Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742
(6th Cir. 2013), cert. denied, 134 S.Ct. 906, 187 L.Ed.2d 778 (2014)
(quoting Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com, L.P.,
590 F.3d 381, 389 (6th Cir. 2009)).
Howe v. City of Akron, 801 F.3d 718, 741 (6th Cir. 2015).
The doctrine of law of the case provides that the courts should not
"reconsider a matter once resolved in a continuing proceeding." 18B
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND
RELATED MATTERS § 4478 (4th ed. 2015). "The purpose of the lawof-the-case doctrine is to ensure that 'the same issue presented a
second time in the same case in the same court should lead to the
same result.'" Sherley v. Sebelius, 689 F.3d 776, 780, 402 U.S. App.
D.C. 178 (D.C. Cir. 2012) (quoting LaShawn A. v. Barry, 87 F.3d
1389, 1393, 318 U.S. App. D.C. 380 (D.C. Cir. 1996)). For a prior
decision to control, the prior tribunal must have actually decided the
issue. WRIGHT ET AL., supra, § 4478. "A position that has been
assumed without decision for purposes of resolving another issue is
not the law of the case." Id. "An alternate holding, however, does
establish the law of the case." Id. Unlike claim preclusion, the law
of the case does not apply to issues that a party could have raised,
but did not. Id. The law-of-the-case doctrine is a prudential practice;
a court may revisit earlier issues, but should decline to do so to
encourage efficient litigation and deter "indefatigable diehards." Id.
Id. at 739-740.
The law of the case doctrine is not an appropriate basis for denying relief when the statement
of the law in an appellate opinion is both dictum and in error. Landrum v. Anderson, 813 F.3d 330
n.1 (6th Cir. 2016), citing United States v. McMurray, 653 F.3d 367 (6th Cir. 2011).
Petitioner relies on Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003)(en banc), where
the Sixth Circuit expressed doubts about the straightforward application of law of the case doctrine
to successive habeas corpus cases involving the same petitioner.

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[I]t is not at all clear to us that the law-of-the-case doctrine should
apply to successive habeas petitions. "Law-of-the-case rules have
developed to maintain consistency and avoid reconsideration of
matters once decided during the course of a single continuing
lawsuit." 18B Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4478 (2d ed. 2002).
Whether successive habeas petitions constitute stages in a single,
continuing lawsuit is a question that should be carefully considered.
See Lacy v. Gardino, 791 F.2d 980, 984-85 (1st Cir.), cert. denied,
479 U.S. 888, 93 L. Ed. 2d 259, 107 S. Ct. 284 (1986). Although we
do not decide the question, we, like the First Circuit, think it likely
that each habeas petition is a separate and distinct case. See id.; see
also McCleskey v. Zant, 499 U.S. 467, 479-85, 113 L. Ed. 2d 517,
111 S. Ct. 1454 (1991) (explaining that the "abuse of the writ"
doctrine arose because, "at common law, res judicata did not attach
to a court's denial of habeas relief. [A] refusal to discharge on one
writ [was] not a bar to the issuance of a new writ." (quotation
omitted)); but cf. Shore v. Warden, Stateville Prison, 942 F.2d 1117,
1123 (7th Cir. 1991), cert. denied, 504 U.S. 922, 118 L. Ed. 2d 573,
112 S. Ct. 1973 (1992) ("The law of the case doctrine is applicable
to habeas proceedings."); Raulerson v. Wainwright, 753 F.2d 869,
875 (11th Cir. 1985) (applying the law of the case doctrine to a
successive habeas petition).
Id. at 398.
It is certainly correct that decisions on a prior habeas application attacking the same
underlying convictions are not binding in the way a prior civil judgment is binding under res
judicata doctrine. Res judicata traditionally does not apply in habeas, so a district court is free to
re-think its own decisions on prior points of law in the same controversy. Nevertheless, Judge
Sutton’s observation in Charles, supra, is pertinent: we ought to ‘treat the same litigants in the
same case the same way throughout the same dispute.’” Although this is a “new” habeas case
attacking a “new” sentencing entry, it is the same dispute the Court previously litigated. This
Court should follow the decisions it previously made on points of law in this dispute unless one of
the parties offers persuasive argument for a different result, e.g., that there is new controlling law
from the circuit court or the Supreme Court.
8

A particular, more binding, part of law of the case is the so-called mandate rule. The basic
tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the
court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate rule
is a distinct concept which preserves the hierarchy of the court system. Scott v. Churchill, 377
F.3d 565, 570 (6th Cir. 2004).
The law of the case doctrine provides that "when a court decides
upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case." Scott v. Churchill, 377
F.3d 565, 569-70 (6th Cir. 2004) (quoting Arizona v. California, 460
U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)). The
doctrine precludes a court from reconsideration of issues "decided
at an early stage of the litigation, either explicitly or by necessary
inference from the disposition." Hanover Ins. Co. v. Am. Eng'g Co.,
105 F.3d 306, 312 (6th Cir. 1997) (quoting Coal Res., Inc. v. Gulf &
Western Indus., Inc., 865 F.2d 761, 766 (6th Cir. 1989)). Pursuant
to the law of the case doctrine, and the complementary "mandate
rule," upon remand the trial court is bound to "proceed in accordance
with the mandate and law of the case as established by the appellate
court." Id. (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493
(6th Cir.), cert. denied, 414 U.S. 859, 94 S. Ct. 71, 38 L. Ed. 2d 110
(1973)). The trial court is required to "implement both the letter and
the spirit" of the appellate court's mandate, "taking into account the
appellate court's opinion and the circumstances it embraces." Brunet
v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995).
Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006).
Denial of a certificate of appealability becomes the law of the case, binding in subsequent
stages of the litigation. Dillingham v. Jenkins, Case No. 17-3813 (6th Cir. Nov. 8, 2017)
(unreported; copy at ECF No. 65 in 3:13-cv-468), citing Moore v. Mitchell, 848 F.3d 774, 776 (6th
Cir. 2017).
Henley’s First Ground for Relief relies on Blakely, supra. In that case the Supreme Court
held that any fact which increases the sentence beyond a legislatively mandated guideline, even if
within a statutory maximum for the offense, must be pleaded as an element in the indictment and
proved to the jury beyond a reasonable doubt. Construing Henley’s pro se petition liberally, the
9

Magistrate Judge reads Ground One as pleading two possible Blakely violations, to wit, (1) that
the sentence was improper and (2) the sexual predator classification was improper.
As to the first of these claims, Common Pleas Judge Dennis Langer made separately the
findings required by Ohio law (Ohio Revised Code § 2929.11 and 2929.12) for imposing more
than the minimum sentence, for imposing the maximum sentence, and for imposing consecutive
sentences (State Court Record, ECF No. 16, PageID 481-85). It did not violate Blakely to have
the trial judge make these findings. None of them were necessary to impose a mandatory minimum
sentence. Compare Alleyne v. United States. 570 U.S. 99 (2013), overruling Harris v. United
States, 536 U.S. 545 (2002). Blakely is not applicable to judicial factfinding that increases the
minimum sentence.

Arias v. Hudson, 589 F.3d 315 (6th Cir. 2009), citing McMillan v.

Pennsylvania, 477 U.S. 79 (1986); United States v. Harris, 536 U.S. 545, 568 (2002); Chontos v.
Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009).
Blakely has never been held applicable to factfinding required by state law to justify a
maximum sentence so long as it is within the range provided by statute. Imposition of consecutive
sentences for multiple offenses, based on facts found by the court rather than the jury, does not
violate constitutional right to jury trial, since the jury historically played no role in determining
consecutive or concurrent sentences and state had sovereign authority to administer its penal
system. Oregon v. Ice, 555 U.S. 160 (2009). Thus nothing Judge Langer did in imposing a
sentence for the crimes of conviction violates the rule in Blakely.
Henley also asserts that classifying him as a sexual predator required jury fact finding under
Blakely. But classification as a sexual offender is not a punishment, but rather a collateral
consequence of conviction of certain offenses. Further classification as a sexual predator does
10

require a judicial finding as was done here, but Henley cites no authority for the proposition that
such a finding must be made by a jury. Indeed, as the Sixth Circuit noted in Leslie, supra, the
Ohio Supreme Court has held that the sexual predator statute is remedial as opposed to punitive in
nature. 296 F.3d at 522-23, citing State v. Cook, 83 Ohio St. 3d 404 (1998).
Considering the matter de novo and without parsing the extent to which law of the case
doctrine may or may not suggest a different answer, the Magistrate Judge concludes Ground One
is without merit and should be dismissed.

Ground Two: Ineffective Assistance of Appellate Counsel

In his Second Ground for Relief, Henley asserts his appellate counsel provided ineffective
assistance when he failed to claim trial counsel was ineffective in failing to challenge judicial bias
at sentencing and the Blakely error asserted in Ground One.
Respondent asserts this Court lacks jurisdiction to consider this claim because Henley is
no longer in custody on the relevant charges and is barred under the law of the case doctrine
(Return, ECF No. 13, PageID 432-33). For the reasons given as to Ground One, the Magistrate
Judge concludes the Court has jurisdiction because Henley continues to serve a consecutive
sentence.
However, the Magistrate Judge also concludes the law of the case is applicable to this claim
because it is precisely the same claim that was before the Sixth Circuit on Henley’s appeal from
dismissal of his first case. The Sixth Circuit holding that Henley did not suffer ineffective
assistance of appellate counsel as alleged here is directly in point.
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Henley asserts “both this Court [presumably meaning the Magistrate Judge] and the
District Court failed to comply with the Sixth Circuit mandate [in that they] failed to analyze the
underlying claim of ‘judicial bias’ in relation to the claim that appellate counsel was ineffective in
failing to challenge trial counsel’s ineffectiveness in not challenging the judicial bias.” (Reply,
ECF No. 20, PageID 1736). No such mandate exists. The Sixth Circuit in Henley v. Brunsman,
supra, merely ruled that “we affirm the district court’s decision.” There was no remand for any
purpose.
Ground Two is without merit and should be dismissed.

Ground Three: Confrontation and Compulsory Process

In his Third Ground for Relief, Henley claims his constitutional rights to confront witnesses
against him and compel witnesses in his behalf was violated in the manner in which the trial court
restricted the testimony of Barbara Pettiford.
Respondent asserts there is applicable law of the case on this claim because it was
previously pleaded as Ground Two in the prior case (Return, ECF No. 13, PageID 432). This
claim was indeed made as part of Ground Two and the Magistrate Judge recommended deciding
it as follows:
Ground 2(a): Exclusion of Part of the Testimony of Barbara
Pettiford
After his sexual encounter with the victim and his alleged encounter
with another male in the victim's apartment, Henley went to the
apartment of his girlfriend, Barbara Pettiford. What he then said to
Pettiford at her apartment was admitted in evidence, when elicited
12

from Pettiford at trial, under the excited utterance exception to the
hearsay rule. Henley and Pettiford then drove to the Dayton Mall
where Henley made additional statements about what happened;
these were excluded by the trial court as no longer meeting the
excited utterance exception.
Henley preserved this claim for federal review by raising it as his
First Assignment of Error on direct appeal. The Ohio Court of
Appeals did not decide the constitutional claim, leaving it for this
Court to consider de novo.
A fair opportunity to present a defense in a criminal case is of course
a constitutional right. Baze v. Parker, 371 F.3d 310 (6th Cir. 2004),
citing Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L.
Ed. 2d 636 (1986). Presenting relevant evidence is integral to that
right. Taylor v. Illinois, 484 U.S. 400, 409-09, 108 S. Ct. 646, 98 L.
Ed. 2d 798 (1988). Few rights are more fundamental than that of an
accused to present witnesses in his own defense. Chambers v.
Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297
(1973). However, a defendant must comply with established rules
of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence. Id. The right
to present relevant evidence is not unlimited, but subject to
reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308,
118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998), and may bow to
accommodate other legitimate interests in the criminal trial process.
Rock v. Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 97 L. Ed. 2d 37
(1987).
The hearsay rule is a long-standing rule of evidence both at English
common law and in the United States. There is no doubt that the
evidence Henley attempted to present through Pettiford was
hearsay: an out-of-court statement that Henley made to Pettiford,
offered to prove the truth of the content of the statement, to wit, that
Henley was himself the victim of attempted robbery by the victim's
male accomplice. See Ohio R. Evid. 801. Petitioner presents no law
establishing a constitutionally-mandated [sic] hearsay exception for
criminal defendants. In fact, hearsay restrictions are often more
rigidly enforced in criminal cases to protect defendants. See, e.g,
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004). One purpose of the hearsay rule is to subject hearsay
declarants to cross-examination. Therefore, exclusion of hearsay
which constitutes justificatory narrative spoken by a criminal
defendant is particularly well suited to make trial results reliable,
since a defendant cannot be compelled to take the stand and be
cross-examined himself on any explanation he may have given to a
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third party. There was no violation of Petitioner's constitutional right
to present a defense in the trial court's exclusion of part of the
hearsay offered through Pettiford. Ground for Relief 2 (a) is without
merit.
Henley v. Moore, 2007 U.S. Dist. LEXIS 96373, *40-42 (S.D. Ohio June 28, 2007). Thus Henley
received de novo consideration of this claim in his prior case. Although District Judge Rice, to
whom the prior case was assigned, rejected the Magistrate Judge’s Rule 26(B) analysis, he adopted
this conclusion on Ground Two and denied a certificate of appealability on this Ground. Henley
v. Moore, 2008 U.S. Dist. LEXIS 8371 (S.D. Ohio Feb. 5, 2008). Henley sought an expansion of
the certificate of appealability from the Sixth Circuit which that court declined to grant. Henley v.
Moore, Case No. 08-3288 (Order of Oct. 7, 2008)(unreported; available from the Sixth Circuit).
The determination to deny a certificate of appealability means the Sixth Circuit decided the issues
not certified were not even debatable among jurists of reason. As noted above, a decision denying
a certificate of appealability becomes part of the law of the case. Dillingham, supra.
Having reconsidered the question in light of Petitioner’s Reply, the Magistrate Judge
remains persuaded of the correctness of his prior recommendation. It is within the function of an
Ohio trial judge, as it is with federal trial judges, to make an initial determination of the
admissibility of proffered evidence. Here Judge Langer accepted what Henley first said to
Pettiford as an excited utterance, but declined to find the later statements were excited utterances.
No authority cited by Henley compels the admission of a defendant’s own hearsay statements to
another person when made outside the traditional parameters of excited utterance. There is
therefore no reason to depart form the law of the case on this issue. Ground Three is without merit
and should be dismissed.

14

Ground Seven: Double Jeopardy

In his Seventh Ground for Relief, Petitioner asserts the trial court violated his right to
protection against being placed twice in jeopardy when it refused to merge the rape and kidnapping
offenses and the assault offenses under Ohio Revised Code § 2941.25.
Respondent asserts there is applicable law of the case on this claim, stating it was Ground
2(d) in the original petition (Return, ECF No. 13, PageID 432). In the prior case, Henley argued
this solely as a claim under the Ohio Revised Code and not as a Double Jeopardy violation. On
that basis the Magistrate Judge recommended dismissal because claims under Ohio Revised Code
§ 2941.25 are not cognizable as federal habeas claims. Henley v. Moore, 2007 U.S. Dist. LEXIS
96373 *43-44 (S.D. Ohio June 28, 2007). Judge Rice accepted this portion of the Report and the
Sixth Circuit denied a certificate of appealability. The law of the case would therefore bar this
claim as it is made under Ohio Revised Code § 2941.25.
Henley’s Reply spends time discussing the allied offenses issue, which is not by itself a
question of federal constitutional law (Reply, ECF No. 20, PageID 1759-61). That is, not every
violation of Ohio Revised Code § 2941.25 will also violate the Double Jeopardy Clause. But
Henley is correct that the Sixth Circuit has held that a state court decision that solely considers and
rejects a § 2941.25 challenge is dispositive of the Double Jeopardy claim. Jackson v. Smith, 745
F.3d 206 (6th Cir. 2014).
On direct appeal to the Ohio Court of Appeals for the Second District, Henley raised the
failure to merge the rape and kidnapping charges as part of his Third Assignment of Error. The
15

Second District decided the claim as follows:
[*P38] First, Henley contends that the trial court erred by failing to
merge the offenses of Rape and Kidnapping as allied offenses of
similar import. Henley concedes that we must review this issue
under the plain error standard since he failed to bring the error to the
attention of the trial court.
[*P39] In this case, we find that the trial court did err by failing to
merge these two offenses. However, we cannot say that this failure
rises to the level of plain error. "To be 'plain' within the meaning of
Crim.R. 52(B), an error must be an 'obvious' defect in the trial
proceedings." State v. Barnes (2002), 94 Ohio St.3d 21, 27, 2002
Ohio 68, 759 N.E.2d 1240. The issue of whether a kidnapping
offense merges with a rape offense when the two offenses are
committed during the same general course of conduct is inherently
fact-sensitive and difficult. The Ohio Supreme Court has adopted
the following guidelines:
[*P40] "(a) Where the restraint or movement of the victim is
merely incidental to a separate underlying crime, there exists
no separate animus sufficient to sustain separate convictions;
however, where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate
a significance independent of the other offense, there exists a
separate animus as to each offense sufficient to support
separate convictions;
[*P41] "(b) Where the asportation or restraint of the victim
subjects the victim to a substantial increase in risk of harm
separate and apart from that involved in the underlying crime,
there exists a separate animus as to each offense sufficient to
support separate convictions." State v. Logan (1979), 60 Ohio
St.2d 126, 397 N.E.2d 1345, syllabus.
[*P42] The cases cited by the parties in the case before us are a
testament to the fineness with which these distinctions are made.
The State cites State v. Logan, supra, State v. Collins (4th District),
2002 Ohio 3212, and State v. Payton (5th District), 2005 Ohio 737.
In the first two of these cases, the Kidnapping and Rape offenses
were merged; in the third, they were not merged. Although the State
argues that these cases are readily distinguishable, and that the case
before us is more like State v. Payton, supra, where the offenses
were not merged, in our view the three cases are difficult, if not
impossible, to distinguish on their facts. Taken together, they
demonstrate, to our satisfaction, that the trial court's error, in the case
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before us, in failing to merge the Kidnapping and Rape offenses on
the facts before us, was anything but obvious. Fortunately for
Henley, the sentences for these two offenses were ordered to be
served concurrently, rather than consecutively.
[*P43] Although we conclude that the trial court did err by failing
to merge the Kidnapping and Rape offenses, we conclude that this
error is not sufficiently obvious to constitute plain error.
State v. Henley, 2005-Ohio-6142, 2005 Ohio App. LEXIS 5531 (2nd Dist. Nov. 18, 2005).
Henley, satisfied with the Second District’s conclusion that rape and kidnapping in this
case were allied offenses of similar import, wants this Court to accept that finding but overrule the
Second District’s conclusion that it was not plain error (Reply, ECF No. 20, PageID 1760). This
Court should not do so for two reasons. First of all, the Second District found as a matter of fact
that Henley had conceded the needed to show plain error. Id. at ¶ 38. This state court finding of
fact is binding on us unless Henley can show it is erroneous by clear and convincing evidence,
which he has not attempted to do. Second, the question whether this was plain error is a question
of state law under Ohio R. Crim. P. 52 on which we are bound by state court rulings.
Henley argues that the Second District’s finding that there was no plain error implies a
finding of harmlessness (Reply, ECF No. 20, PageID 1762). This is incorrect. These are separate
considerations and the Second District said nothing about harmlessness.
Henley claims under this Ground for Relief that his two felonious assault convictions, to
wit, for causing serious physical harm under Ohio Revised Code § 2903.11(A)(1) and for use of a
deadly weapon under Ohio Revised Code § 2903.11(A)(2) should be merged (Reply, ECF No. 20,
PageID 1763-65). Henley asserts the Second District “was silent and failed to address this
particular issue of the two felonious assault counts being merged with each other.” (Reply, ECF

17

No. 20, PageID 1764). However, Henley did not raise this issue on direct appeal. His Brief
addresses only merger of felonious assault convictions with the attempted felonious assault
conviction, but not with each other:
Next, it is respectfully submitted that the trial court erred in
sentencing Mr. Henley for the offenses of felonious assault and
attempted felonious assault. Upon a review of the elements of the
aforementioned charges, this Court will see that the trial court erred
in sentencing Mr. Henley for both offenses fo [sic] felonious assault
and attempted felonious assault. As previously set forth herein,
undersigned counsel would request this Court review the standard
as set forth in State v. Jones (1997), 78 Ohio St.3d 12, wherein it
was indicated that Courts should assess, by aligning the elements of
each crime the abstract, whether the statutory elements of the crimes
"correspond to such a degree that the commission of one crime will
result in the commission of the other.” Jones, supra. It is
respectfully submitted that there is no better example of allied
offenses of similar import than in the case of felonious assault and
attempted felonious assault. Specifically, it is submitted that this
very charge may be even more compelling than most statutes
inasmuch as the felonious assault statute has the "attempt” language
already set forth in the body of the statute. Therefore, based on the
foregoing, it is clear that these offenses, which are found in Counts
six, seven and eight of the indictment are allied offenses of similar
import. Additionally, under the standards as set forth herein, it is
respectfully submitted that it is clear that the charges against Mr.
Henley (as in the case of Collins) arose from a single incident and
therefore, he did not commit the offenses separately. See; State v.
Collins 2002-0hio-321. Based on the foregoing, it is respectfully
submitted that the trial court erred in determining that Mr. Henley
could be convicted of and sentenced consecutively for the offenses
of felonious assault and attempted felonious assault.
(Appellant’s Brief, State Court Record, ECF No. 16, PageID 520-21.) This issue of the merger of
the convictions under Ohio Revised Code § 2903.11(A)(1) and (A)(2) is plainly available on the
face of the appellate record, but was not raised and is therefore procedurally defaulted.
As just quoted, Henley did raise on direct appeal his claim that the felonious assault
conviction and the attempted felonious assault conviction should have been merged. The Second
District rejected this claim on the merits:
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[*P44] Next, Henley contends that the trial court committed plain
error by failing to merge the offenses of Felonious Assault and
Attempted Felonious Assault. We find no support for this argument.
Henley's act of attempting to suffocate the victim with a pillow -Attempted Felonious Assault -- is distinct and separate from his act
of stabbing the victim -- Felonious Assault. We conclude that each
of these two acts could reasonably be considered as having a
separate and distinct animus. Thus, we find no error, and certainly
no plain error, in the trial court's failure to merge these counts.
State v. Henley, 2005-Ohio-6142, 20015 Ohio App. LEXIS 5531 (2nd Dist. Nov. 18, 2005).
Henley argues the Second District should have applied the comparison-of-elements test of
State v. Rance, 85 Ohio St. 3d 632 (1999), in deciding this issue (Reply, ECF No. 20, PageID
1768). The Supreme Court of Ohio has abandoned the Rance approach to determining legislative
intent in State v. Johnson, 128 Ohio St. 3d 153 (2010). Rance would have been the controlling
precedent at the time Henley’s case was before the Second District. This fact is unavailing to
Henley, however, because a comparison of elements is immaterial. Under Ohio Revised Code §
2941.25, the first question is whether one is dealing with the same “conduct” or “act” of a
defendant. In Rance, for example, there was only one act of the defendant which was charged
both as involuntary manslaughter and aggravated robbery. In this case as the Second District
recounted the testimony, the attempted suffocation occurred during the rape after the victim
accidentally urinated. The stabbing occurred later after the victim free her hands, broke out the
bedroom window to cry for help, and then grabbed Henley in the genitals. The Second District
decided these were separate acts with distinct animus. Id.
Under Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014), this constitutes a decision on the
merits of Henley’s Double Jeopardy claim which is entitled to deference under the AEDPA unless
it is an objectively unreasonable application of clearly established United States Supreme Court
19

precedent. Henley has not shown that it is.
Ground Seven should therefore be dismissed with prejudice.

Ground Nine: Ineffective Assistance of Appellate Counsel

In his Ninth Ground for Relief, Henley claims he received ineffective assistance of
appellate counsel when his appellate attorney failed to claim his trial counsel provided ineffective
assistance of trial counsel when he did not object to sentences imposed in violation of Ohio Revised
Code § 2941.25 and the Double Jeopardy Clause.
Respondent notes that Henley raised this claim in his Application to Reopen his direct
appeal under Ohio R. App. P. 26(B). In that pleading he complained of the failure to merge the
four rape counts. The Second District decided that these four counts were for separate offenses:
Henley was convicted of four counts of Rape. Specifically, he was
convicted of committing Rape by vaginal intercourse, anal
intercourse, insertion of his tongue into the anal cavity and Insertion
of his tongue into the vaginal cavity. Each of these offenses have
distinct elements that do not correspond to such a degree that
commission of one crime will result in commission of the other
crime. In other words, the commission of oral Rape does not
constitute commission of vaginal Rape, and neither of those
constitute anal Rape. The argument Henley seeks to make has been
rejected by this court, as well as the Ohio Supreme Court. See, State
v. Burgess, 162 Ohio App. 3d 291, 2005-Ohio-3747, ¶¶ 33-36; State
v. Nicholas (1993), 66 Ohio St.3d 431.
State v. Henley, Case No. 20789 (2nd Dist. Apr. 10, 2006)(unreported; copy at State Court Record
ECF No. 16, PageID 721). Thus the Second District decided that, because these four rapes were
separate offenses, it was not ineffective assistance of trial counsel to fail to move to merge them,
and not ineffective assistance of appellate counsel to fail to complain of trial counsel’s omission.
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Henley has not demonstrated this is an objectively unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), as it applies to appellate counsel.
Henley also complained in his 26(B) Application of the failure to merge the two counts of
felonious assault. The Second District found “given that trial court merged the convictions and
sentences for these two offenses, we fail to see how Henley has been prejudiced by the failure to
raise the matter on direct appeal.”

State v. Henley, Case No. 20789 (2nd Dist. Apr. 10,

2006)(unreported; copy at State Court Record ECF No. 16, PageID 722). Henley argues that this
is a misreading of the trial court record and that, instead, the trial court ordered the sentences on
Counts 6 and 7 to be served concurrently and did not merge them (Reply, ECF No. 20, PageID
1764). The Amended Termination Entry of November 24, 2004, reflects concurrent sentences for
Counts 6 and 7 (State Court Record, ECF No. 16, PageID 489).
This factual error by the Second District does not entitle Henley to habeas corpus relief,
however. The cited decision on the 26(B) application constitutes a ruling on the merits of this
particular claim. Under Harrington v. Richter, 562 U.S. 86, 103 (2011), this Court must defer to
that decision unless it is not supportable by any reasonable theory on which the Second District
could have relied.
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
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counsel's actions “more likely than not altered the outcome,” but the difference between
Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only
in the rarest case.” Id., at 693, 697, 104 S.Ct. 2052, 80L.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).
Recognizing the duty and ability of our state-court colleagues to
adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires “a
state prisoner [to] show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that
there was an error . . . beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. [86, 103,] 131 S.Ct.
770, 178 L.Ed.2d 624, 641 (2011). “If this standard is difficult to
meet”—and it is—“that is because it was meant to be.” Id., at [102],
131 S.Ct. 770, 178 L.Ed.2d 624, 641. We will not lightly conclude
that a State’s criminal justice system has experienced the “extreme
malfunctio[n] [sic]” for which federal habeas relief is the remedy.
Id., . . . , 131 S.Ct. 770, 178 L.Ed. 2d 624, 641 (internal quotation
marks omitted).
Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

In assessing an ineffective assistance of appellate counsel claim, the Strickland standard of
deficient performance and prejudice is applicable. Smith v. Robbins, 528 U.S. 259, 285 (2000);
Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate
counsel, then, the court must assess the strength of the claim that counsel failed to raise. Henness
v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).
Counsel's failure to raise an issue on appeal amounts to ineffective assistance only if a reasonable
probability exists that inclusion of the issue would have changed the result of the appeal. Id., citing
Wilson. If a reasonable probability exists that the defendant would have prevailed had the claim
been raised on appeal, the court still must consider whether the claim's merit was so compelling
22

that the failure to raise it amounted to ineffective assistance of appellate counsel. Id., citing Wilson.
The attorney need not advance every argument, regardless of merit, urged by the appellant. Jones
v. Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues." 463 U.S. 751-52). Effective appellate
advocacy is rarely characterized by presenting every non-frivolous argument which can be made.
Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Williams v. Bagley, 380 F.3d 932, 971 (6th
Cir. 2004), cert. denied, 544 U.S. 1003 (2005); see Smith v. Murray, 477 U.S. 527 (1986). “Only
when ignored issues are clearly stronger than those presented will the presumption of effective
assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017),
quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).
Ineffective assistance of trial counsel for failure to argue for merger of Henley’s two
felonious assault convictions was far from the strongest argument available on appeal. For
example, Henley’s Blakely argument regarding sexual predator classification was strong enough
to draw a dissent on appeal from Judge Merritt. The assignment of error about excluding part of
the testimony of Barbara Pettiford also seems stronger. Because appellate counsel did not perform
deficiently in omitting this claim, the Second District’s rejection of this claim of ineffective
assistance of appellate counsel is not objectively unreasonable. Ground Nine should be dismissed
as without merit.

Conclusion

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Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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.

July 23, 2018.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

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