The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADAM M. DeVORE, ) Case No. 1:19-cv-02442
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) Jennifer Dowdell Armstrong
KENNETH BLACK, Warden, )
)
Respondent. )
)
OPINION AND ORDER
A jury found Petitioner Adam DeVore guilty of abduction and domestic violence
after a trial in State court at which Mr. DeVore represented himself. The State trial
court imposed a prison sentence of 72 months. Mr. DeVore filed a petition for a writ
of habeas corpus, asserting nine grounds for relief. Petitioner contends that there is
insufficient evidence to support both convictions, the State trial court abused its
discretion in certain procedural rulings, his sentence is inconsistent with the record,
and he also raises five claims for ineffective assistance of appellate counsel.
The Magistrate Judge recommends that the Court deny the petition. (ECF
No. 31.) Petitioner objects to this recommendation. For the reasons that follow, the
Court OVERRULES Petitioner’s objections and ADOPTS the Magistrate Judge’s
report and recommendation. Further, the Court DECLINES to issue a certificate of
appealability because Petitioner has not shown that reasonable jurists could conclude
that this assessment is debatable or wrong. In other words, in the Court’s view,
Petitioner has not made a substantial showing of the denial of a constitutional right.
FACTUAL AND PROCEDURAL BACKGROUND
This petition for a writ of habeas corpus arises from a State conviction in
Ashland County, Ohio.
A. Indictment and Trial
On January 12, 2017, a grand jury indicted Mr. DeVore on one count of rape,
one count of abduction, and one count of domestic violence. (ECF No. 15-2, PageID
#567.) The victim, his girlfriend, obtained a temporary protection order against
Mr. DeVore. (Id., PageID #452–453.) Through counsel, Mr. DeVore entered a plea of
not guilty by reason of insanity. (Id. PageID #567.) Later, he withdrew this plea and
moved to proceed without counsel, which the State trial court granted. (Id.) A jury
trial commenced on January 9, 2018. (Id.)
At trial, the victim testified. (Id.) She stated that she began a romantic
relationship with Mr. DeVore in 2016. (Id., PageID #567–68.) Mr. DeVore lived at
the victim’s home, along with her two children. (Id.) She testified that on one
occasion in October of 2016, Mr. DeVore lost his temper because of another past
relationship and struck her. (Id., PageID #568–69.) Mr. DeVore left the victim’s
home the next day, and the victim removed his belongings. (Id., PageID #569.) She
testified that soon after this incident, Mr. DeVore returned unannounced to the
victim’s home to move back in. (Id.) By this time, she felt unable to say no to
Mr. DeVore out of fear for her own safety. (Id.)
The victim’s testimony continued that one evening in January 2017 the couple
began to watch the movie “12 Years a Slave.” (Id.) Mr. DeVore had been drinking
and lost his temper, she testified. (Id.) Two days later, the victim woke up from being
asleep on the couch to Mr. DeVore strangling, hitting, and yelling profanities at her.
(Id.) According to her testimony, Mr. DeVore pulled the victim’s pants down against
her will and began punching her pelvis area and used his hand to penetrate her. (Id.,
PageID #571.) Mr. DeVore told the victim that she was going to die and that he had
nothing else to lose. (Id., PageID #572.) Fearing for her life, the victim testified that
she attempted to calm Mr. DeVore by saying she loved him and asking him to lie with
her. (Id.) Her efforts succeeded in stopping the violence, she testified, but Mr. DeVore
would not let her leave the couch for the rest of the night. (Id.)
The next morning, Mr. DeVore allowed the victim to leave the couch only to
use the bathroom. (Id., PageID #573.) Later that day, Mr. DeVore left the home to
purchase cigarettes. (Id.) Once he was gone, the victim ran to her parents’ home up
the street with her children and called the police. (Id.) She travelled through
backyards to avoid detection in case he returned early from the errand. (Id.) On
arrival, the police drove the victim to a hospital and arrested Mr. DeVore. (Id.)
In addition to the victim, other witnesses testified at trial, including: the
victim’s daughter; the certified nurse practitioner who examined the victim at the
hospital; the SAFE (Sexual Assault Forensic Examining) nurse who worked at the
hospital; the police officer who responded to the 911 call; and the police sergeant who
arrived at the scene. (Id., PageID #574–76.)
Following the sergeant’s testimony, the State rested its case pending the
admission of exhibits. (Id., PageID #577.) The State trial court told the prosecution
that it intended to deny the admission of certified exhibits relating to Mr. DeVore’s
prior domestic violence convictions because the exhibits were not sufficiently linked
to Mr. DeVore through evidence. (Id.) Over Mr. Devore’s objection, the State trial
court permitted the prosecution to reopen its case for the purpose of tying those
certified exhibits to Mr. DeVore through police testimony. (Id., PageID #577–78.)
Following deliberations, the jury acquitted Mr. DeVore of rape but convicted
him of abduction and domestic violence. (Id.) The State trial court sentenced Mr.
DeVore to 36 months in prison for each crime, to be served consecutively for a prison
sentence totaling 72 months. (Id.)
B. Direct Appeal
Through counsel, Mr. DeVore appealed his conviction and raised four
assignments of error: (1) the conviction for abduction was against the manifest
weight of the evidence; (2) the conviction for domestic violence was not supported by
sufficient evidence; (3) the trial court abused its discretion by permitting the State to
reopen its case; and (4) the maximum and consecutive sentence was not supported by
the record. (Id., PageID #510 & #523.) In a reasoned opinion, the State appellate
court overruled each assignment of error and affirmed the convictions and sentence.
(Id., PageID #566.) Raising nearly the same arguments, Mr. DeVore appealed this
decision to the Ohio Supreme Court, which declined to accept jurisdiction. (Id.,
PageID #593–95.)
C. Application to Reopen Appeal
Proceeding pro se, Mr. DeVore sought to reopen his direct appeal due to
ineffective assistance of appellate counsel. (Id., PageID #653.) He claimed that
counsel should have advanced five additional arguments on direct appeal: (1) his
offenses of conviction were allied offenses, making the consecutive sentences a
violation of the constitutional guarantee against double jeopardy; (2) the State trial
court abused its and the prosecutor engaged in misconduct; (3) the denial of records
for challenging credibility of State witnesses denied him due process and a fair trial;
(4) the admission of an edited and shortened police interview of defendant prejudiced
him; and (5) various other rulings, along with these, amounted to cumulative error.
(Id.) The State appellate court rejected his arguments, and the Ohio Supreme Court
declined to accept jurisdiction. (Id. PageID #791 & #828.)
D. Habeas Petition
Mr. DeVore filed a petition for a writ of habeas corpus. (ECF No. 1.) In 104
pages, Mr. DeVore asserted nine grounds for relief, which are summarized as follows:
1. The abduction conviction is against the manifest weight of the evidence and
is not supported by sufficient evidence.
2. The domestic violence conviction is not supported by sufficient evidence.
3. The trial court abused its discretion by allowing the State to reopen its case
after resting.
4. The maximum and consecutive sentences are inconsistent with the record.
5. Appellate counsel was ineffective for failing to raise that Petitioner’s
sentences are a violation of double jeopardy and Ohio’s allied offenses law.
6. Appellate counsel was ineffective for “failing to raise abuse of discretion and
prosecutorial misconduct in the regulation of discovery.”
7. Appellate counsel was ineffective for “failing to raise denial of records
specific for challenging the credibility of the State’s witnesses, prejudicing
Petitioner’s right to due process and the right to a fair trial.”
8. Appellate counsel was ineffective for “failing to raise the admission of edited
and shortened interview of the Petitioner.”
9. Appellate counsel was ineffective for “failing to raise the error and prejudice
of Petitioner’s court ordered incommunicado towards a blanket denial of
witnesses and 30 of 31 pretrial motions and the cumulative [e]ffect of all
claims.”
(Id., PageID #29.)
In her report and recommendation, the Magistrate Judge recommends that the
Court to dismiss all grounds as meritless, non-cognizable, or procedurally defaulted.
She also recommends against issuing a certificate of appealability. (ECF No. 31,
PageID #2218.) Petitioner filed eighty-three pages of unnumbered objections to the
report and recommendation. (ECF No. 33.)
STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition, by a judge of the court,” 28
U.S.C. § 636(b)(1)(B), of a petition for a writ of habeas corpus, which the Court does
by local rule, see LR 72.2. When reviewing a report and recommendation, if a party
objects within the allotted time, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); United States
v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). “Objections must be specific, not
general” and should direct the Court’s attention to a particular dispute. Howard v.
Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing of
objections to a magistrate’s report enables the district judge to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).
Upon review, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). Importantly, the Court’s job is not to conduct a free-wheeling
examination of the entire report and recommendation, but only to address any
specific objections that a party has advanced to some identified portion of it.
Accordingly, it is the Court’s task in this matter to review the Magistrate Judge’s
report and recommendation de novo, based on the specific objections Petitioner raises.
GOVERNING LEGAL STANDARD
Where a petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.
§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the
State court proceedings resulting in the deprivation of the petitioner’s liberty. See,
e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388
(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)); Skaggs v.
Parker, 235 F.3d 261, 266 (6th Cir. 2000).
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
“With the AEDPA, Congress limited the source of law for habeas relief to cases
decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000).
A State court adjudication is “contrary to” Supreme Court precedent under
Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent” and arrives
at a different result. Williams, 529 U.S. at 405. “Avoiding these pitfalls does not
require citation of [Supreme Court] cases—indeed, it does not even require awareness
of [the] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Under Section 2254(d)(1), an unreasonable application of federal law is
different than an incorrect application of federal law. See Harrington v. Richter, 562
U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410). A State court adjudication
involves “an unreasonable application of” Supreme Court precedent under Section
2254(d)(1) in one of two ways: (1) if the State court identifies the correct governing
legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of
the particular State prisoner’s case; or (2) if the State court either unreasonably
extends a legal principle from the Court’s precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it
should apply. See Williams, 529 U.S. at 407.
Generally, a petitioner must demonstrate that he has “exhaust[ed] all
available opportunities to pursue his claim in state court.” Gerth v. Warden, Allen
Oakwood Corr. Inst., 938 F.3d 821, 826–27 (6th Cir. 2019). Further, a federal court
may not consider a habeas petition unless a State prisoner has presented his claim
to the State courts in accordance with their procedural rules. See Shinn v. Ramirez,
142 S. Ct. 1718, 1727 (2022). A petitioner may procedurally default a claim by failing
to raise it in State court and pursue it through the State’s appellate review
procedures. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). If State law no
longer allows the petitioner to raise or appeal the claim at the time of the habeas
petition, the claim is procedurally defaulted. Id.; see also Shinn, 142 S. Ct. at
1727–28. Procedural default may be excused where a petitioner can show that an
external factor prevented him from complying with the procedural rule at issue,
through no fault of his own, and that the alleged constitutional violation resulted in
actual prejudice. Coleman v. Thompson, 501 U.S. 722, 753 (1991).
ANALYSIS
Petitioner’s objections to the report and recommendation are numerous and
unnumbered. Most of Petitioner’s arguments, though styled as objections, are
reprisals of his underlying grounds for relief in the petition. These objections are
improper. For this reason alone, the Court OVERRULES Petitioner’s objections.
Because Mr. DeVore proceeds pro se, the Court provides the following analysis
to show that, even if it construed Petitioner’s objections as somehow proper, they
nevertheless lack merit. In doing so, for ease of analysis, the Court groups the
objections in the following six categories: (1) fact-based objections; (2) evidentiary
sufficiency; (3) abuse of discretion; (4) sentencing; (5) ineffective assistance of
appellate counsel; and (6) the remaining objections. At bottom, none of Petitioner’s
objections warrants relief.
I. Factual Objections
Petitioner raised many objections to the report and recommendation’s findings
of fact and the factual record determined by the State courts. He asserts that he has
presented clear and convincing evidence to rebut these facts and that the
determination of facts is unreasonable in light of the evidence he has presented. (ECF
No. 33, PageID #2225, #2230, #2291, #2294 & #2300.)
Habeas review is “limited to the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011). A factual determination made by a State
court is presumed to be correct, and Petitioner has the burden of rebutting this
presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). This
deference to State court factual findings extends to those made in a State appellate
court. Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012). “Generally, state
evidentiary issues are not cognizable on federal habeas review.” Gordon v. May,
No. 22-4003, 2023 WL 3719068, at *5 (6th Cir. Apr. 25, 2023). An evidentiary ruling
made at trial violates due process only where the “ruling is so egregious that it results
in a denial of fundamental fairness.” Id. (quoting Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003)).
Contrary to the contentions he makes in his objections, Petitioner has not
rebutted the factual record. Instead, he attempts to explain his version of the facts
or argues that facts in the record are irrelevant to his conviction. (ECF No. 20,
PageID #1746–56.) While this approach might be appropriate at trial or possibly on
direct appeal, on a petition for a writ of habeas corpus, the facts as determined and
stated in the State court proceedings are taken as correct. Franklin, 695 F.3d at 447.
Nothing Petitioner addressed in his objections suffices to rebut the presumption of
the correctness of the State courts’ factfinding—let alone by clear and convincing
evidence.
Further, Petitioner objects to the relevance of the victim’s testimony regarding
their first altercation in October 2016. (ECF No. 33, PageID #2252, #2254 & #2277.)
Even if Petitioner is correct, challenges to evidentiary rulings made at trial are non-
cognizable on habeas review unless the evidentiary ruling is egregious. Bugh, 329
F.3d at 512. This evidentiary decision falls well within a trial court’s discretion.
Nothing about that ruling, even if incorrect or an abuse of discretion, presents the
sort of egregious evidentiary ruling to warrant a departure from the rule insulating
the ruling from collateral review in this habeas action.
The Court OVERRULES Petitioner’s factual objections in this first grouping
of objections.
II. Sufficiency of the Evidence
Petitioner’s first two grounds for relief challenge the sufficiency of the evidence
used to convict him of abduction and domestic violence. (ECF No.1-2, PageID #42 &
#51.) Petitioner objects to the recommendation that the Court deny these grounds,
arguing: (1) the evidence shows only that there was an assault and is insufficient to
satisfy the elements of abduction, and (2) his conviction is void because the State
court lacked jurisdiction over his domestic violence charge. See (ECF No. 33, PageID
#2229 & #2251.)
Evidence is sufficient to support a conviction if, “viewing the evidence in the
light most favorable to the prosecution, any trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). It is not the Court’s job to “reweigh the evidence, re-evaluate the
credibility of witnesses, or substitute [the Court’s] judgment for that of the jury.”
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Rather, it is the trier of fact’s
responsibility to “decide what conclusions should be drawn from evidence admitted
at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curium). Even if the Court
agreed that no trier of fact could have found that the evidence was sufficient to
support Petitioner’s conviction, on habeas review a State appellate court’s
determination that the evidence was sufficient receives deference “as long as it is not
unreasonable.” Brown, 567 F.3d at 205.
II.A. Abduction
Petitioner’s objections continue to challenge the sufficiency of the evidence for
his abduction conviction and point to witness testimony that was already before the
jury when they deliberated, which he says proves he did not commit an abduction.
(ECF No. 33, PageID #2235–39 & #2241–46.) However, the evidence that the report
and recommendation points to in its analysis, which was derived from the factual
record before the State court, is sufficient to sustain the conviction. (ECF No. 31,
PageID #2158–2160.) Viewing the evidence in a light most favorable to the
prosecution, a trier of fact could have found Petitioner guilty of abduction beyond a
reasonable doubt based on the conduct that took place between January 7, 2017 and
January 9, 2017. Jackson, 443 U.S. at 319. Petitioner asks the Court to reweigh the
evidence, which the Court cannot do. United States v. Callahan, 801 F.3d 606, 616
(2015) (citation omitted).
II.B. Domestic Violence
Petitioner’s objections to the report and recommendation on this ground argue
that, when he sought to reopen his direct appeal, the State appellate court lacked
subject-matter jurisdiction over his domestic violence conviction because the court
applied “[ir]relevant and uncharged facts to change the time and location of the
domestic violence charge.” (ECF No. 33, PageID #2251.) Petitioner objects that the
State appellate court punished him for the incident that occurred in October 2016;
but the State appellate court lacked jurisdiction, he contends, because he was never
indited for this incident. (Id., PageID #2252–54.)
The indictment charged Petitioner for conduct that took place on or about the
time period between January 7, 2017 and January 9, 2017. (ECF No. 15-2, PageID
#450.) The State appellate court did not change the relevant time frame by
referencing the incident from October 2016. Discussion of that incident came as part
of the victim’s testimony admitted at trial and is, therefore, a part of the factual
record. (Id., PageID #567.) As already discussed, this sort of objection to the
evidentiary rulings at a trial in State court does not present a proper ground for relief
on habeas review.
* * *
The Court OVERRULES Petitioner’s factual objections in this grouping of
objections.
III. Abuse of Discretion
Petitioner asserts that the State trial court abused its discretion by allowing
the prosecution to reopen its case-in-chief after resting, without “reasonable
explanation,” to provide evidence linking Petitioner to his past domestic violence
charges. (ECF No. 1-2, PageID #55.) With this ruling, which favored the prosecution
at trial, the State trial court judge effectively acted as the prosecutor to secure
Petitioner’s conviction. (See ECF No.33, PageID #2256 & #2258.)
An alleged abuse of discretion by a State trial court does not by itself violate
the Constitution. Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001). Here,
Petitioner basis his claim on a procedural or evidentiary ruling, based on State law.
Generally, such rulings do not provide a ground for federal habeas relief. See Bugh,
329 F.3d at 512.
Gordon v. May, No. 22-4003, 2023 WL 3719068, at *5 (6th Cir. Apr. 25, 2023).
An evidentiary ruling made at trial violates due process only where the “ruling is so
egregious that it results in a denial of fundamental fairness.” Id. (quoting Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)). Nor does it present an issue calling the
fundamental fairness of the proceedings into question to the point where it might
have deprived Petitioner of a constitutional right. Therefore, this ground for relief
lacks merit.
Additionally, Petitioner’s objections to the report and recommendation on this
ground are either conclusory, restatements of the arguments presented in his original
petition, or fail to point to any flaw in the analysis in the report and recommendation.
Petitioner reiterates that the State did not provide a “reasonable explanation” for
reopening their case, as is required. (ECF No.33, PageID #2256–2257.) After moving
to reopen its case, however, the prosecution discussed at length how granting the
motion would be in the interest of justice. (ECF No. 15-3, PageID #1463–68.)
Petitioner argues that the report and recommendation recounts the proceedings
surrounding the prosecution’s reopening in reverse, but it does not. (ECF No. 31,
PageID #2168–69.) Petitioner reiterates in his objections that he believes there were
ex parte communications between the prosecution and the State trial court judge to
assist the prosecution and that the judge conspired to assist the prosecution in
securing his conviction. The report and recommendation already addressed these
allegations, and Petitioner’s objections merely repeat the arguments in his petition
in entirely conclusory fashion. (ECF No. 33, PageID #2257–61.)
For all these reasons, the Court OVERRULES Petitioner’s objections
organized under this heading.
IV. Consecutive Maximum Sentence
Petitioner’s fourth ground asserts that his consecutive sentence violates the
Fourth and Fourteenth Amendments. (ECF No. 1-2, PageID #60.) He contends that
the State trial court relied on materially false information provided by the victim and
the victim’s mother in a victim impact statement at sentencing. (Id.) He claims an
entitlement to an evidentiary hearing to confront that false information. (Id.) In her
report and recommendation, the Magistrate Judge explained that this ground for
relief is partially procedurally defaulted and partially non-cognizable. (ECF No. 31,
PageID #2178–81.) She explains that Petitioner did not present this claim to the
State courts in his direct appeal. (Id., PageID #2178–79.) Moreover, the report and
recommendation points out that challenges to the application of State sentencing
laws and guidelines are non-cognizable in federal habeas review. (ECF No. 31,
PageID #2180–81; see Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003).)
Petitioner objects that his claim is not procedurally defaulted. (ECF No. 33,
PageID #2262.) On direct appeal, he argued that his sentence was inconsistent with
the record. However, he did not argue that his sentence was based on materially false
information. He first made this argument when he raised ineffective assistance of
appellate counsel. (ECF No. 15-2, PageID #535–37, #778–81.) “[I]f an Ohio petitioner
failed to raise a claim on direct appeal, which could have been raised on direct appeal,
the claim is procedurally defaulted.” Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006) (citation omitted).
To excuse this procedural default, Petitioner points to his appellate counsel’s
ineffective assistance. (ECF No. 33, PageID #2263.) However, attorney “ignorance
or inadvertence” does excuse a procedural default unless the attorney error rises to
the level of ineffective assistance of counsel. Coleman v. Thompson, 501 U.S. 722,
753–54 (1991). For the reasons discussed below, Petitioner’s appellate counsel did
not provide ineffective assistance. Therefore, Petitioner procedurally defaulted this
claim because he did not raise these arguments at the earliest opportunity—on direct
appeal.
In his objections, Petitioner also makes new arguments about jail-time credit.
(ECF No. 33, PageID #2268–71.) Nowhere in his petition did he raise these issues.
They are entirely new and do not meet the substance of the report and
recommendation. For all these reasons, the Court OVERRULES Petitioner’s
objections discussed under this heading.
V. Ineffective Assistance of Appellate Counsel
To support his claim of ineffective assistance of appellate counsel, Petitioner
asserts five separate bases. The Magistrate Judge recommends denying each as
meritless or procedurally defaulted. Petitioner interposes numerous objections to the
report and recommendation. For example, he maintains that (1) his convictions for
abduction and domestic violence should have merged under Ohio’s allied offenses
statute (ECF No.33, PageID #2277); (2) appellate counsel should have raised various
abuses in the discovery process (id., PageID #2280); (3) the Magistrate Judge
improperly reviewed Petitioner’s claims of Brady violations (id., PageID #2286–94);
(4) Petitioner sufficiently showed that a videotape of his police interview was edited
(id., PageID #2294–97); and (5) the report and recommendation misapplies case law
in determining that his ineffective assistance of appellate counsel claims lack merit
(id., PageID #2300–03).
The Sixth and Fourteenth Amendments afford criminal defendants the right
to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S.
688, 687 (1984). To succeed on a claim of ineffective assistance of counsel, a petitioner
must show that (1) the performance of counsel fell below an objective standard of
reasonableness, such that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment, and (2) the ineffectiveness of the counsel prejudiced the
petitioner’s defense. Id. at 687–88. Counsel enjoy the presumption that they
discharge their duties in a sufficiently effective manner and exercise reasonable
professional judgment based on the circumstances at the time. Id. at 690.
The standard for ineffective assistance of counsel laid out in Strickland also
applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). “[E]ffective
appellate counsel should not raise every nonfrivolous argument on appeal, but rather
only those arguments most likely to succeed.” Davila v. Davis, 582 U.S. 521, 533
(2017). Counsel declining to raise an issue on appeal only amounts to deficient
performance where the issue he failed to raise is clearly stronger than the claims
actually raised. Id. To establish prejudice for ineffective appellate counsel, the
petitioner must show that, but for his counsel’s “unreasonable failure to raise a claim,
he would have prevailed on his appeal.” Gordon v. May, No. 22-4003, 2023 WL
3719068, at *4 (6th Cir. Apr. 25, 2023) (citation omitted).
The Magistrate Judge explained that Petitioner failed to show that the
performance of his appellate counsel fell below an objective standard of
reasonableness to his prejudice. Petitioner’s objections either duplicate the
arguments that were raised in his petition, which were already addressed by the
Magistrate Judge, or fail to address any claimed shortcoming in the analysis of the
report and recommendation. Petitioner repeatedly argues in his objections that
because his convictions are for conduct that occurred in the same vicinity and at
approximately the same time, his convictions should have merged into one conviction
under Ohio’s allied offenses law. (ECF No. 33, PageID #2272.) These objections are
unfounded. The victim testified that she was confined and attacked between January
7, 2017, and January 9, 2017. (ECF No. 15-2.) The span of time at issue allowed a
finding that different acts constituting different offenses occurred at different times
and do not merge.
Petitioner objects to the Magistrate Judge’s failure to address medical records
in her analysis of Petitioner’s alleged Brady violation. (ECF No. 31, 2286–94.) While
the Magistrate Judge focused on the photographs of the victim’s injuries in her
analysis of Petitioner’s Brady claim, she did in fact mention medical records, and they
factored into her analysis: “[Petitioner] has not adequately developed his assertion
that photos and reports were favorable and material to the defense.” (Id., PageID
#2193.) Petitioner’s objections do not show how appellate counsel was ineffective for
failing to raise a Brady violation over the non-disclosure of photographs and medical
records at trial.
The Magistrate Jude determined that Petitioner’s argument regarding the
alleged edited of video footage of his interview with police had not merit. (Id., PageID
#2294.) Nothing Petitioner cites in the record shows how the video interview was
tampered with or explains how missing footage from the video interview would have
helped his case at trial.
Petitioner’s appellate counsel was not required to raise all nonfrivolous claims
on his behalf on appeal. Davila, 582 U.S. at 533. Many of the positions Petitioner
believes his appellate counsel should have advanced on direct appeal were not
preserved at trial, subjecting them to plain error review. Moreover, appellate
counsel’s failure to raise certain arguments did not prejudice Petitioner because the
arguments challenged errors that were, at best, harmless. For example, arguments
based on discovery and evidence on appeal were harmless in light of the victim’s
testimony against Petitioner, which the jury was entitled to credit.
When Petitioner sought post-conviction relief in State court to reopen his
appeal to raise claims of ineffective assistance of appellate counsel, the Ohio appellate
court issued a reasoned opinion denying his motion. (ECF No. 15-2, PageID #791.)
On habeas review, the Court “afford[s] double deference to the Ohio appellate court’s
decision, the last reasoned state court decision on the issue” of ineffective assistance.
Coleman v. Bradshaw, 974 F.3d 710, 720 (6th Cir. 2020). Under this doubly
deferential standard, the Court cannot say that to the extent any his claims meet the
standard in Section 2254 for the issuance of a writ. Accordingly, the Court
OVERRULES these objections.
VI. Petitioner’s Remaining Objections
Petitioner raises a host of additional objections to the report and
recommendation. For an objection to be properly raised, however, it must be specific
and directed at a particular dispute. Howard, 932 F.2d at 509. “The filing of vague,
general, or conclusory objections does not meet the requirement of specific objections
and is tantamount to a complete failure to object.” Cole v. Yuki, 7 F. App’x 354, 356
(6th Cir. 2001).
Petitioner raised vague or general objections throughout his submission to the
Court. For instance, Petitioner objects to the entire report and recommendation, and
its recommendation to dismiss or deny the petition. (ECF No. 33, PageID #2224–25.)
Also, Petitioner objects to the Magistrate Judge’s authority to issue the report and
recommendation, only to rescind this objection later. (Id., PageID #2224–25, #2305.)
Further, some of Petitioner’s objections are plainly unsupported in the record.
Petitioner objects to the report and recommendation saying he was sentenced to
seventy-two months in prison, saying instead that he was sentenced to seventy-eight
months in prison, but this is without support in the record. (Id., PageID #2227.)
The Court OVERRULES Petitioner’s remaining numerous objections, which
do not adequately present an issue to the Court for review.
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C.S § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C.S. § 2253(c)(2). This means that the petitioner must
show that reasonable jurists could find the district court’s determination of the
relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.
274, 282 (2004). The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
Based on this standard, Petitioner does not qualify for a certificate of
eligibility. Because the claims presented by Petitioner are either meritless, non-
cognizable, or procedurally defaulted, Petitioner is not entitled to a certificate of
appealability.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections
(ECF No. 33) and ADOPTS the Magistrate Judge’s report and recommendation (ECF
No. 31). Further, the Court DECLINES to issue a certificate of appealability under
28 U.S.C. § 2253(c).
SO ORDERED.
Dated: July 24, 2023
J.PhilipCalabrese
United States District Judge
Northern District of Ohio
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