Brown v. Warden, London Correctional Institute

Filing 43

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, it is also recommended that Petitioner be denied a c ertificate of appealability and that the Court 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 6/30/2021. Signed by Magistrate Judge Michael R. Merz on 6/16/2021. (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
LARRY E. BROWN, II,
Petitioner,

:

- vs -

Case No. 3:20-cv-113
District Judge Michael J. Newman
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Larry Brown under 28 U.S.C. § 2254,
is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No. 3),
the State Court Record (ECF No. 23), Respondent’s Return of Writ (ECF No. 24), and Petitioner’s
Reply (ECF No. 38-42).

Litigation History

Brown was indicted by a Preble County Grand Jury on February 2, 2015, on one count of rape
of a person less than thirteen years of age, one count of sexual battery, two counts of gross sexual
imposition, and one count of importuning; all charges set out the date of birth of the victim.
(Indictment, State Court Record, Ex. 1). Brown waived his right to trial by jury and was tried to the
bench where he was found guilty on all counts.

1

Before sentencing, Brown filed a motion for a new trial. Id. at Ex. 9. On June 8, 2016, the trial
court denied that motion. Id. at Ex. 13. A week later the trial judge merged all the charges into the
rape count and sentenced Brown to a mandatory sentence of ten years to life imprisonment. Id. at Ex.
14.
Brown then appealed through counsel to the Ohio Court of Appeals for the Twelfth District
which affirmed the judgment of conviction. State v. Brown, 2017-Ohio-4231 (12th Dist. Jun. 12,
2017)(“Brown I”). Brown did not take a direct appeal to the Supreme Court of Ohio.
On August 22, 2017, Brown, through counsel Christopher Pagan, filed a petition for postconviction relief with the Preble County Court of Common Pleas. (Petition, State Court Record, ECF
No. 23, Ex. 19). The trial court denied the petition on res judicata grounds. Id. at Ex. 21. Brown
appealed and the Twelfth District again affirmed. State v. Brown, 2018-Ohio-3338 (12th Dist. Aug.
20, 2018)(Brown II), appellate jurisdiction declined, 154 Ohio St. 3d 1464 (2018).
On July 19, 2019, Brown filed an application for reopening his appeal pursuant to App. R.
26(B)(State Court Record, ECF No. 23, Ex. 31). The Twelfth District denied the Application as
untimely. State v. Brown, Case NO. CA2016-07-006 (12th Dist. Sept. 19, 2019)(unreported; copy

at State Court Record, ECF No. 23, Ex. 32)(“Brown III”), appellate jurisdiction declined, Id. at
Ex. 36.
On March 25, 2019, Brown, pro se, filed a motion for leave to file a delayed motion for a new
trial. (State Court Record, ECF No. 23, Ex. 37). He filed a second petition for post-conviction relief
on the same date. Id. at Ex. 38. The trial court denied both. Id. at Ex. 39. The Twelfth District
affirmed. State v. Brown, 2020-Ohio-971 (12th Dist, Mar. 16, 2020), appellate jurisdiction declined,
159 Ohio St. 3d 1465 (2020).
Brown’s Petition for writ of habeas corpus pleads the following grounds for relief:

Ground One: Ineffective Assistance of counsel at trial and prior to
trial.
2

Supporting Facts:
[a]1 Counsel failed to illicit [sic] testimony from Vosler about
poisoning and counsel failed to interview Vosler.
[b] Counsel failed to illicit [sic] testimony from Day about the
alarmed and videoed property and counsel failed to interview Day.
[c] Counsel failed to investigate all of the alleged victim’s mental
health issues, represented to his client they could not talk about or
bring in her mental health issues.
[d] Counsel failed to recognize no time brackets on the Bill of
Particulars.
[e] Counsel failed to recognize there was no charge or time brackets
on the Bill of Particulars, that the defendant was tried and convicted
for.
[f] Counsel failed to put forth evidence that the alleged victim was
not the age reflected on the indictment this also shows actual
innocence.
[g] Counsel allowed a false report to be used that compromised a
legal proceeding allowing inadmissible evidence to destroy the
defendants defense this also allows for actual innocence.
[h] Counsel failed to inform defendant of a plea agreement.
Ground Two: Defendant received ineffective assistance of
appellate counsel.
Supporting Facts:
[a] Appellate Counsel allowed petitioner to be tried for offenses that
could not have occurred, and this shows actual innocence of the
charges against the defendant.
[b] Appellate Counsel failed to recognize a confrontation clause and
examination issue.
[c] Appellate Counsel failed to recognize the expert witness was not
qualified as such.
1

The paragraphs of Petitioner’s “Supporting Facts” on their face state separate sub-claims for relief. The Magistrate
Judge has added the bracketed letters for ease of reference in later portions of this Report.

3

[d] Appellate Counsel failed to advance as error the fact trial counsel
did not see that the Bill of Particulars was without a charge and the
time brackets that the petitioner was tried and convicted for.
Ground Three: Petitioner was denied his compulsory Process
rights, fair trial and Due Process.
Supporting Facts:
[a] A witness and investigating officer in the instant case delivered
subpoenas in the same case he was investigating, he told the defense
witness the petitioner had committed the same crime he was charged
with in this trial. This was not true and violated the petitioner’s
Compulsory Process rights and the right to Due Process and fair
trial.
[b] The investigating officer presented a false report and false
affidavit.
[c] The Prosecutor presented two false reports and the false affidavit
of the investigator to the court.
Ground Four: Petitioner’s right to Due Process under the Fifth,
Sixth, and Fourteenth Amendments of the U.S. Constitution was
violated because of prosecutorial misconduct and the trial courts
misapplication of law.
Supporting Facts:
[a] The trial court misapplied the law and neglected to give the
petitioner an evidentiary hearing.
[b] The trial court allowed false 404B evidence to determine
evidentiary issues.
[c] The States Attorney failed to produce a charge and time brackets
in the Bill of Particulars that the petitioner was convicted of.
[d] The State interfered with the petitioner’s defense.
[e] The State failed to disclose a CSD report and other reports
[f] Two witnesses and investigators for the prosecution made an
assessment on a material fact of Petitioners case.

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[g] The State misrepresented issues concerning Barium poisoning.
[h] False reports and a false affidavit were presented to the court by
prosecution and law enforcement.
[i] Court did not review the case before ruling.
(Petition, ECF No. 3, PageID 10, 11, 13, 14).

Analysis
Procedural Default
Respondent asserts that all of Brown’s claims, with the exception of one raised in his first
post-conviction petition, are barred by his procedural defaults in presenting those claims to the
Ohio courts (Return, ECF No. 24, PageID 1570-97).
Petitioner responds to the procedural default defense by asserting that a procedural default
can be excused when it is caused by ineffective assistance of counsel (Reply, ECF No. 38-1,
PageID 1793, citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). He also argues that lack of
exhaustion of available state court remedies is not a jurisdictional bar and a district court may
therefore decide unexhausted claims. Id., citing Padavich v. Thalacker, 162 F. 3d 521 (8th Cir.
1998). Brown claims his postconviction attorney is at fault for not filing the direct appeal to the
Ohio Supreme Court. Id.
Brown provides a lengthy discussion of how his various retained counsel did not do what
they were paid to do (Reply, ECF No. 38-1, PageID 1794-1802). The only evidentiary reference
in that portion of the Reply to any difficulties with attorneys is the Affidavit of Dorothy Retherford,
Petitioner’s mother, which discusses her difficulties obtaining her son’s file from attorney Jim
Thomas in July 2018 (State Court Record, ECF No. 23, PageID 554-55). Nothing evidentiary was
submitted to the Ohio courts about alleged deficiencies in performance of any other attorneys in
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the case. Brown concludes this portion of his Reply by asserting that he was “let down by all of
his attorneys and should not have to pay for their ineffectiveness.” (Reply, ECF No. 38-1, PageID
1802).
In his Reply, Brown cites authority for the proposition that lack of exhaustion is not a
jurisdictional bar to habeas relief. That is correct.

The exhaustion doctrine is not jurisdictional

and is thus waivable by the State. Ex parte Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481
U.S. 129 (1987). However, the State of Ohio does not assert that Brown’s claims are unexhausted,
which would mean that there still existed some available state court remedy. Instead, the State
asserts procedural default, which amounts to saying there was a possible remedy and Brown failed
properly to invoke it.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
6

456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims
that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),
citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), 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

7

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
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). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Brown also correctly asserts that procedural default can be excused when it is caused by
ineffective assistance of counsel. Counsel's constitutionally deficient performance in state court
can serve as grounds for excusing a petitioner's procedural default. Kelly v. Lazaroff, 846 F.3d 819,
829 (6th Cir. 2017) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
However, ineffective assistance of counsel can excuse procedural default only when it
occurs in a proceeding where a defendant is constitutionally entitled to counsel under the Sixth
Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to
counsel there can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App.
LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
The right to appointed counsel extends to the first appeal of right and no further. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). In particular, there is no
constitutional guarantee of the effective assistance of counsel in post-conviction petitions or on

8

direct appeal to a state supreme court when that review is discretionary, as it is in Ohio, and thus
ineffective assistance of counsel in those proceeding will not excuse a procedural default in those
proceedings.
Brown relies on Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413
(2013), for the proposition that there is a constitutional right to effective assistance of counsel in
post-conviction proceedings. That is an incorrect reading of those cases. Taken together, they
hold that if a State requires ineffective assistance of trial counsel claims to be litigated in a postconviction collateral proceeding, then if the State denies counsel in those proceedings or the postconviction counsel’s performance is ineffective to the level prescribed in Strickland v. Washington,
466 U.S. 668 (1984), that ineffectiveness will excuse procedural default of a substantial ineffective
assistance of trial counsel claim. The Supreme Court did not extend the Sixth Amendment right
to counsel to post-conviction proceedings.
Ohio has a bifurcated procedure for litigating ineffective assistance of trial counsel claims.
If they are capable of resolution on the appellate record, they must be raised on direct appeal. If
they are not raised in that way, they are barred by res judicata from being raised in post-conviction
proceedings. State v. Perry, 10 Ohio St. 2d 175 (1967)(emphasis sic.). See also State v. Cole, 2
Ohio St. 3d 112 (1982); State v. Duling, 21 Ohio St. 2d 13 (1970).

If, on the other hand, they

depend on evidence outside (“dehors”) the appellate record, they can be raised in a post-conviction
proceeding under Ohio Revised Code § 2953.21. Ohio does not appoint counsel as a matter of
course in Ohio Revised Code § 2953.21 proceedings, so that if a retained attorney in postconviction performs below the level demanded by Strickland, a habeas court may hear a substantial
claim of ineffective assistance of trial counsel despite other procedural default. This is the
Martinez/Trevino exception and it applies in Ohio.

9

White v. Warden, Ross Corr. Inst., 940 F.3d

270 (6th Cir. 2019).
One further hurdle for the habeas petitioner is that a claim of ineffective assistance of
counsel, before it can be used to excuse a procedural default, must first be properly presented to
the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000).
Brown was represented at trial by James Thomas and on appeal by Fred Miller and then by
Christopher Pagan after Miller became a judge (ECF No. 23, PageID 259). Because Miller was
new counsel, he was obliged to raise any claims of ineffective assistance of trial counsel which
could be decided on the appellate record. Miller presented as Brown’s Second Assignment of
Error the following:
Counsel is ineffective when he fails to object to crucial evidence,
fails to present evidence that would directly impeach the
complaining witness, and fails to question the complaining witness
regardng [sic] previous false allegations similar to those in the
current case.
(Appellant’s Brief, State Court Record, ECF No. 23, PageID 261). The Twelfth District held these
claims were properly considered on direct appeal and found them to be without merit. Brown I at
¶¶ 20-24.
Brown procedurally defaulted on these claims by not appealing to the Supreme Court of
Ohio. The forty-five day time limit on appeal to Ohio Supreme Court prescribed by S. Ct. Prac.
R. 7.01(A)(1)(a)(i) has been consistently held by the Sixth Circuit to be an adequate and
independent state ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(citations
omitted). In general “denying a postconviction motion or appeal based on untimeliness is an
independent and adequate state procedural ground.” Walker v. Martin, 562 U.S. 307, 310-11
(2011); Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007).

10

Brown attempts to excuse this default by asserting that Attorney Pagan was instructed to
file a direct appeal to the Supreme Court of Ohio (Reply, ECF No. 38-1, PageID 1794). This claim
is supported only by Brown’s unsworn hearsay statements in the Reply. Even if these statements
were embodied in an affidavit, the Court could not consider them because they were not presented
to the state courts. Cullen v. Pinholster, 563 U.S. 170 (2011).
Furthermore this excuse for the failure to appeal procedural default is itself defaulted
because Brown was extremely untimely in filing his 26(B) Application and this was held against
him by the Twelfth District when it dismissed the Application as untimely. (Entry Denying
Reopening, State v. Brown, Case No. CA2016-07-006, (12th Dist. Sept. 19, 2019)(unreported; copy
at State Court Record, ECF No. 23, Ex. 32)). Under Ohio law, a claim of ineffective assistance of
appellate counsel can only be heard in a proceeding for reopening under App. R. 26(B). State v.
Murnahan, 63 Ohio St. 3d 60 (1992). “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).
Under Ohio App. R. 26(B), an application for reopening must be filed within ninety days
of journalization of the decision allegedly affected by the ineffective assistance of appellate
counsel. Brown III at PageID 498. Brown’s 26(B) Application was “more than 21 months late.”
Id. The Twelfth District enforced this state procedural rule against Brown by dismissing his 26(B)
Application without reaching the merits. Id. at PageID 500.
The timeliness rule for filing a 26(B) application has been repeatedly held by the Sixth
Circuit to be an adequate and independent state ground of decision. Parker v. Bagley, 543 F.3d
859 (6th Cir. 2008); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir. 2007)(distinguishing holding in

11

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).
In sum, Brown’s failure to take a timely direct appeal to the Supreme Court of Ohio bars
merit review in habeas corpus of any claims actually raised on direct appeal to the Twelfth District.
Respondent also asserts that most of the claims Brown has raised in state court collateral attacks
are also barred by procedural default in that they should have been raised on direct appeal but were
not and are now barred by the Ohio criminal res judicata doctrine.
Attorney Pagan filed Brown’s first post-conviction petition on August 22, 2017 (State
Court Record, ECF No. 23, Ex. 19). In the Petition Brown alleges ineffective assistance of trial
counsel in (1) failing to present evidence from Dan Day which would have impeached the victim’s
testimony that Brown had abused her on Day’s property and (2) failing to present evidence from
Dr. Scott Vosler that he had treated Brown for barium poisoning, supposedly perpetrated by the
victim’s mother and Brown’s wife, which would allegedly have shown the victim’s motive to give
false testimony. Id. at PageID 334-35.
The trial court denied this post-conviction petition on September 6, 2017, on the basis of res
judicata, and likewise denied his request for an evidentiary hearing. (Decision and Entry on PostConviction, State Court Record, ECF No. 23, Exhibit 21). Still represented by Attorney Pagan, Brown
appealed to the Twelfth District. Id. at Ex. 23. The Twelfth District affirmed the denial of relief. State
v. Brown, 2018-Ohio-3338 (12th Dist. Aug. 20, 2018), appellate jurisdiction declined, 154 Ohio St. 3d
1464 (2018).

Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St.
2d 175 (1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487
F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell,
268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent,
12

17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899,
913 (S.D. Ohio 2001). The Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio
St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981).
With respect to those claims Brown raised in his pro se second motion for new trial, he
notes that the trial court held he was not unavoidably prevented from raising those claims within
the time allowed for a new trial motion as a matter of course, as opposed to in a motion for leave
to file a delayed new trial motion and the Twelfth District affirmed on the same basis (Reply, ECF
No. 38-1, PageID 1804). He also notes that the Ohio standard for deciding and review of such
delayed new trial motions commits that decision to the sound discretion of the trial.
Brown argues that rules granting discretion to state courts to accept or not accept a filing
do not constitute adequate and independent state grounds of decision (Reply, ECF No. 38-1,
PageID 1805, citing inter alia, Deitz v. Money, 391 F.3d 804 (6th Cir. 2004)).
However, Deitz is no longer good law. In Beard v. Kindler, 558 U.S. 53, 54 (2009), the
Supreme Court held “a discretionary rule can serve as an adequate ground to bar federal habeas
review.” In Walker v. Martin, 562 U.S. 307 (2011), it held unanimously that a California rule that
requires state habeas to be filed “as promptly as the circumstances allow” and without “substantial
delay,” confers discretion but does not mean the rule is not firmly established and regularly
followed.
[A] discretionary rule can be "firmly established" and "regularly
followed"--even if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not others. See
Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev.
1128, 1140 (1986) ("[R]efusals to exercise discretion do not form
an important independent category under the inadequate state
ground doctrine").
A contrary holding would pose an unnecessary dilemma for the
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States: States could preserve flexibility by granting courts discretion
to excuse procedural errors, but only at the cost of undermining the
finality of state court judgments. Or States could preserve the
finality of their judgments by withholding such discretion, but only
at the cost of precluding any flexibility in applying the rules.
Beard v. Kindler, 558 U.S. 53, 60-61 (2009).
Recognizing the impact of these cases, the Sixth Circuit has now held:
Beard and Walker, when read together, permit a state procedural
rule to serve as an adequate state ground for preventing review of a
habeas petition even if the state rule accords courts broad discretion.
As a result of the Supreme Court’s decision in Walker, Deitz is no
longer the controlling law on this issue in our Circuit, and a
petitioner’s failure to follow Ohio Rule of Appellate Procedure 5(A)
can serve as the basis for a procedural default of a petitioner’s
habeas claims.
Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011).
The Common Pleas Court’s decision not to allow Brown to file a delayed motion for new
trial was based on its finding that he had not been unavoidably prevented from discovering the
relevant facts in time to file a motion for new trial within the time ordinarily allowed for such
motions under Ohio law. (Judgment Entry, State Court Record, ECF No. 23, Ex. 39, PageID 858).
The Twelfth District affirmed on this specific issue. (Opinion in State v. Brown, Case No.
CA2019-04-006 (12th Dist. Mar. 16, 2020)(unreported; copy at State Court Record, ECF No. 23,
Ex. 44, ¶¶ 15 et seq.).
This finding of fact by the state courts is entitled to deference in this Court under the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the
"AEDPA" unless it is “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding[s]”). 28 U.S.C. § 2254(d)(2). “[R]egardless of whether [a
federal court] would reach a different conclusion were [it] reviewing the case de novo, the findings
14

of the state court must be upheld unless there is clear and convincing evidence to the contrary.”
Clark v. O’Dea, 257 F.3d 498, 506 (6th Cir. 2001). Brown has not demonstrated by clear and
convincing evidence that the state court determination that he was not unavoidably prevented from
learning the relevant facts in a timely manner is an unreasonable determination of the facts based
on the state court evidence. This Court must thus defer to that finding of fact.
The state procedural rule in question here is the rule requiring new trial motions to be
presented within 120 days of judgment unless the defendant has been unavoidably prevented from
discovering the relevant facts. Ohio R. Crim. P. 33(B). As a rule protecting the State’s interest in
finality of criminal judgments it is adequate under federal law. On its face it is also independent
of federal law. The rule was enforced against Brown by both the Commons Pleas Court and the
Twelfth District. Brown has not shown cause and prejudice to excuse this untimely failing and
the claims raised in his second motion for new trial are thus procedurally defaulted.
The same conclusion applies to his successive petition for post-conviction relief under
Ohio Revised Code § 2953.23. Ohio places stringent limits on second or successive petitions for
post-conviction relief, similar to those imposed on second or successive habeas corpus petitions
by 28 U.S.C. § 2244(b). Ohio enforces those limits by denying jurisdiction to its courts to hear
such petitions on the merits unless they meet those stringent conditions. In this case the Common
Pleas Court concluded Brown did not meet those conditions and the Twelfth District agreed.
(Judgment Entry, State Court Record, ECF No. 23, Ex. 39, PageID 858). The Twelfth District
affirmed on this specific issue. Opinion in State v. Brown, Case No. CA2019-04-006 (12th Dist.
Mar. 16, 2020)(unreported; copy at State Court Record, ECF No. 23, Ex. 44, ¶¶ 15 et seq.).
In sum, based on the foregoing analysis, the Magistrate Judge agrees with Respondent that
all of Brown’s claims, except one presented in his first post-conviction petition, are barred from

15

merits review by Brown’s procedural defaults in presenting those claims to the Ohio courts.

Merits

Respondent concedes that the Twelfth District Court of Appeals reached the merits of
Brown’s claim that his trial attorney provided ineffective assistance of trial counsel when he failed
to present the so-called Barium Poisoning Evidence (Return, ECF No. 24, PageID 1597, et seq.).
This Court may therefore also reach the merits of this claim which is Ground for Relief 1[a],
hereinafter referred to as the Barium Poisoning Sub-claim.
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
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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."
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.

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Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
When a state court decides on the merits a federal constitutional claim such as ineffective
assistance of trial counsel 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, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529
U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court
decision was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceedings. Because the Ohio courts did decide the Barium Poisoning Subclaim on the merits, Brown’s burden in habeas is to show that the decision of the Twelfth District2
on this issue is contrary to or an objectively unreasonable application of Strickland and its progeny.
In denying relief on this claim, the Twelfth District relied both on res judicata and on lack
of merit:
[*P23] In consideration of the Barium Poisoning Evidence, the trial
court likewise found res judicata applied because Brown and his
counsel were aware of this evidence leading up to the trial and
Brown was further aware that his counsel did not present said
evidence at trial. Additionally, the trial court found this evidence "of
little value" and further found that Brown's trial counsel's decision
not to use the evidence was a "trial tactic" and did not "constitute [a]
denial of [the] effective assistance of counsel."
[*P24] As the trial court found, the record indicates the details of
the Barium Poisoning Evidence and that Brown's trial counsel was
aware of said evidence. Specifically, the record reflects that Brown
disclosed a lab report from Carlson Company in his September 1,
2015 supplemental response to the state's request for discovery. The
Carlson lab report demonstrates that the company conducted hair
2

We look to the Twelfth District’s decision because it is the last reasoned state court decision on
this issue. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
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follicle testing of Brown's hair, which disclosed elevated levels of
barium. In Brown's second supplemental discovery response, filed
on October 26, 2015, he disclosed another lab report from Carlson.
On January 12, 2016, the state provided supplemental discovery
consisting of a Preble County Sheriff's Office statement signed by
Vosler, which detailed the Barium Poisoning Evidence and a
computerized voice stress analyzer exam report indicating no
deception by B.H.'s mother in denying the poisoning.
[*P25] Additionally, the trial transcript indicates that trial counsel
did not present the Barium Poisoning Evidence. Similar to the
situation with the Day Evidence, the record reflects the substance of
the Barium Poisoning Evidence and that it was known by trial
counsel, but not presented at trial. Thus, we find the trial court did
not err in finding Brown's claim for ineffective assistance of counsel
based upon counsel's failure to present the Barium Poisoning
Evidence was barred by res judicata, as Brown could have raised the
issue in his direct appeal.
[*P26] We likewise find the trial court did not err in finding Brown
failed to present substantive grounds for relief in alleging ineffective
assistance of counsel for failure to present the Barium Poisoning
Evidence. As stated above, the trial court found the Barium
Poisoning Evidence had "little value" and trial counsel's decision not
to present it was a trial tactic. Brown asserts this evidence had
impeachment value, and therefore, his trial counsel's failure to
present the evidence may have affected the outcome of the trial.
However, there is nothing in the PCR petition, including Vosler's
affidavit, which connects B.H.'s mother's alleged attempt to poison
Brown with a motive for B.H. to lie about being sexually abused by
Brown. There is no indication that B.H. was aware of any attempted
poisoning or that her mother had encouraged her to fabricate
allegations against Brown that would serve as a basis for impeaching
B.H. Furthermore, the record reflects Brown's trial counsel
conducted a vigorous and thorough cross-examination of B.H in an
effort to impeach her credibility. Moreover, even assuming the
rationale for not presenting the Barium Poisoning Evidence may
have been debatable, as the trial court found, it was a matter of
defense strategy and trial tactics, and therefore, does not constitute
the ineffective assistance of counsel. State v. Stewart, 12th Dist.
Butler No. CA2011-09-173, 2012-Ohio-4640, ¶ 14. Thus, we find
the trial court's determinations regarding the Barium Poisoning
Evidence were not unreasonable, arbitrary, or unconscionable.
Brown II. In conducting its evaluation of the claim, the Twelfth District cited Strickland as

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incorporated in Ohio case law. Id. at ¶ 19, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d
715 (1992).
Brown argues the Barium Poisoning Sub-claim in the Reply (ECF No. 38-2, PageID 1810,
et seq.). He first argues that, under Ohio law, the Twelfth District was incorrect to dismiss this
sub-claim as a matter of res judicata. Id. at PageID 1810-12. Because Respondent has conceded
that the Court can reach the merits of this claim, we need not consider whether the Twelfth District
erred as a matter of Ohio law.
Brown then explains how he tried to get the barium poisoning evidence into the record and
that his own attorney, Mr. Thomas, and the trial judge stopped him. Id. at PageID 1812-14. He
concludes: “Based upon this evidence the Petitioner has shown that trial counsel was supposed to
use the poisoning evidence. Petitioner did not know that trial counsel was not going to use it. This
is shown in the testimony of Petitioner.” Id. at PageID 1814-15.
Ineffective assistance of counsel is not shown by proving that an attorney did not do
something his defendant-client expected him to do or even ordered him to do. Brown would have
been able to show by the expert report that he did indeed have elevated levels of barium in his hair
follicles. However, he has not shown how he would have proved that “Nicole and Britney planned
this.” Id. at PageID 1815. However much faith Brown has in his conspiracy theory about the
barium poisoning, he did not present the state courts with evidence, as opposed to speculation, to
tie the expert report to any conduct of Nicole, much less to prove that Nicole had involved the
victim in this conspiracy. Under those circumstances, the explicit basis of the Twelfth District’s
merits decision, there is no basis to find Attorney Thomas provided ineffective assistance of trial
counsel in failing to present what barium poisoning evidence he did have.
In the course of arguing this sub-claim, Brown makes many statements of purported fact.

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For example, he states “The World Health Organizations high value limit [for barium] is 1580
ug/kg [and] Petitioner’s high value was almost five times the recommended high limit.” (Reply,
ECF No. 38-2, citing PageID 341 for proof). That page is part of the report on barium testing from
the Carlson Company. It does not identify the high value limits as having come from the WHO.
It shows a value from Brown’s testing of July 23-28, 2015, of 2401 ug/kg which is not five time
the high value limit. The report is attached to the Affidavit of Scott Vosler (PageID 340), Brown’s
treating physician, which contains his completely speculative conclusion about why Nicole wanted
her husband dead: “At this time, Larry received social-security disability and the complaining
witness' mother believed she would receive social security survivorship benefits if Larry died.”
Id. at ¶ 5 It is hardly surprising that when Dr. Vosler reported this to Attorney Thomas, Thomas
responded that he thought it would “muddy the waters.” Id. at ¶ 8.
The Twelfth District’s rejection of this Barium Poisoning Sub-claim on the merits is not
an unreasonable application of Strickland and is therefore entitled to deference by this Court.

Conclusion

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, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should

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not be permitted to proceed in forma pauperis.

June 16, 2021.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.
NOTICE REGARDING RECORD CITATIONS
The attention of all parties is called to S. D. Ohio Civ. R. 7.2(b)(5) which provides:
(5) Pinpoint Citations. Except for Social Security cases, which
must comply with S.D. Ohio Civ. R. 8.1(d), all filings in this Court
that reference a prior filing must provide pinpoint citations to the
PageID number in the prior filing being referenced, along with a
brief title and the docket number (ECF No. ___ or Doc. No. ___) of
the document referenced.
The Court’s electronic filing system inserts in all filings hyperlinks to the place in the record which
has been cited following this Rule. However, as with most computer systems, the CM/ECF
program cannot read pinpoint citations which do not follow the Rule precisely. For example, the
first pinpoint citation in ODRC’s Reply reads “Plaintiff argues that he could not bring this action
until “administrative remedies as (sic) are exhausted (sic).” (Doc. 80, PageId# 987).” The correct
citation would have been Doc. No. 80, PageID 987.” Because Defendant added the “#” symbol,
the program failed to inset a hyperlink. Use of this software is mandated by the Judicial
Conference of the United States and cannot be locally modified. The parties are cautioned to
comply precisely with S. D. Ohio Civ. R. 7.2(b)(5) in any further filings.

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