Castellon v. Buchanan

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

ESTEPHEN CASTELLON, CASE NO. 1:20 CV 940

Petitioner,

v. JUDGE JAMES R. KNEPP II

WARDEN JAY FORSHEY,

MEMORANDUM OPINION AND

Respondent. ORDER

Petitioner Estephen Castellon (“Petitioner), a prisoner in state custody, filed a Petition

seeking a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). This case was referred to

Magistrate Judge Darrell A. Clay for a Report and Recommendation (“R&R”) regarding the

Petition under Local Civil Rule 72.2(b)(2). On April 28, 2023, Judge Clay issued an R&R

recommending the Court dismiss the Petition. (Doc. 30). Petitioner filed objections to the R&R.

(Doc. 36). Petitioner also filed a Motion to Stay (Doc. 32), which Respondent opposes (Doc. 33)

and Petitioner replies (Doc. 37).

The Court has jurisdiction over the Petition under 28 U.S.C. § 2254(a). For the reasons set

forth below, the Court overrules Petitioner’s objections, adopts the R&R, and denies Petitioner’s

habeas Petition.

BACKGROUND

This habeas case, filed on April 30, 2020, stems from Petitioner’s December 2017

conviction on two counts of rape and one count of kidnapping with a sexual motivation

specification. See Doc. 1. Petitioner presented six grounds for relief1:

Ground One: There was insufficient evidence to support a finding of guilt on all

counts/charges. Specifically, there was insufficient evidence to support the force or

threat of force element of rape and insufficient evidence to support restraint of

movement to support kidnapping.

Ground Two: Petitioner was denied effective assistance of trial counsel because

(a) warrantless, manipulated cell phone data went unchallenged; (b) body camera

footage was withheld due to counsel’s negligence; (c) jail calls were admitted

without objection; and (d) counsel failed to admit proof of address to impeach

implication of flight.

Ground Three: Cumulative errors denied Petitioner a fair trial.

Ground Four: Prosecutorial Misconduct produced tainted evidence and denied a

fair trial due to (a) the presentation testimony regarding recorded jail phone calls;

(b) misconduct regarding the evidence obtained from Petitioner’s cell phone; (c)

failure to produce body camera footage; and (d) reliance on unjust evidence to

establish flight.

Ground Five: Petitioner was denied the right to confront state witnesses –

Petitioner’s mother and ex-girlfriend.

Ground Six: Petitioner was denied his constitutional right to a speedy trial.

(Doc. 1).

In his R&R, Judge Clay recommends the Court find Ground One meritless; subparts (a),

(b), and (d) of Ground Two procedurally defaulted, and subpart (c) of Ground Two meritless;

Ground Three non-cognizable; Ground Four procedurally defaulted; Ground Five procedurally

1. The Court presents brief paraphrased summaries of Petitioner’s grounds here. The R&R

reproduces Plaintiff’s exact claims. See Doc. 30, at 10-12.

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defaulted and alternatively meritless; and Ground Six procedurally defaulted and alternatively

meritless. (Doc. 30).

STANDARD OF REVIEW

When a party objects to the Magistrate Judge’s R&R, the district judge “must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to. The district judge may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

This Court adopts all uncontested findings and conclusions from the R&R and reviews de

novo those portions of the R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Hill

v. Duriron Co., 656 F.2d 1208, 1213–14 (6th Cir. 1981). To trigger de novo review, objections

must be specific, not “vague, general, or conclusory.” Cole v. Yukins, 7 F. App’x 354, 356 (6th

Cir. 2001). This specific-objection requirement is meant to direct this Court to “specific issues for

review.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). General

objections, by contrast, ask this Court to review the entire matter de novo, “making the initial

reference to the magistrate useless.” Id.

“A general objection, or one that merely restates the arguments previously presented and

addressed by the Magistrate Judge, does not sufficiently identify alleged errors in the [R&R]” to

trigger de novo review. Fondren v. American Home Shield Corp., 2018 WL 3414322, at *2 (W.D.

Tenn. 2018); see also Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“An

‘objection’ that does nothing more than state a disagreement with a magistrate’s suggested

resolution, or simply summarizes what has been presented before, is not an ‘objection’ as that term

is used in this context.”). General objections trigger only clear-error review. Equal Employment

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Opportunity Comm’n v. Dolgencorp, LLC, 277 F. Supp. 3d 932, 965 (E.D. Tenn. 2017), aff'd, 899

F.3d 428 (6th Cir. 2018).

DISCUSSION

Petitioner filed Objections to the R&R (Doc. 36) as well as a Motion to Stay (Doc. 32).

Below, the Court addresses each in turn.

Motion to Stay (Doc. 32)

Following the issuance of the R&R and before he filed his Objections, Petitioner filed a

Motion to Stay Habeas Proceedings. (Doc. 32). Therein, he requests the Court stay these

proceedings while he litigates a successive petition for post-conviction relief in the state courts.

Id. Petitioner’s successive petition was filed in February 2023, and denied by the trial court. See

State v. Castellon, No. CR-16-610907 (Cuyahoga Cnty. Ct. of Common Pleas). It is currently

pending on appeal. See State v. Castellon, No. CA-23-112522 (Ohio Ct. App. 8th Dist.).

Petitioner contends a stay is necessary due to newly discovered evidence (information

obtained via FOIA from the Department of Justice) and asserts it is necessary to “exhaust[]

unexhausted claims pending in the state courts.” (Doc. 32, at 1). Respondent opposes a stay, noting

(1) Petitioner does not seek to add new claims to his habeas petition, and the original habeas

petition was not a “mixed” petition containing exhausted and unexhausted claims; (2) a stay is not

permitted for unexhausted evidence, only for unexhausted claims; and (3) even if the stay

procedure were applicable, Petitioner has not demonstrated a meritorious claim or that he acted

diligently in seeking to obtain the new evidence. (Doc. 33). In reply, Petitioner contends the “newly

discovered evidence in the FOIA report has restructured the dynamics of the claims” and “reveals

the furtherance of a sham legal process as well as obstruction.” (Doc. 37, at 1). It appears Petitioner

attempts to assert the contents of his cell phone were tampered with.

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A district court is authorized to stay a habeas petition in "limited circumstances" to allow

a petitioner to present unexhausted claims to the state court. Rhines v. Weber, 544 U.S. 269, 277

(2005). Pursuant to Rhines, the procedure is only appropriate when: (1) there is good cause for

failure to exhaust in state court; (2) the unexhausted claims are not “plainly meritless”; and (3)

there is no indication the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-

78.

The Court agrees with Respondent and denies Petitioner’s motion to stay. As the two

Magistrate Judges assigned to this case have previously held in addressing Petitioner’s various

discovery requests, such requests relate to claims that were either adjudicated on the merits by the

state court (and thus, under Cullen v. Pinholster, 563 U.S. 170, 181 (2011), this Court is limited to

the record as presented to the state court) or claims that are procedurally defaulted (and an

expansion of the record would not serve to demonstrate cause for the default or change the

outcome). See Docs. 16, 19, 23, 29.

Petitioner now seeks a stay while he pursues a successive post-conviction petition in state

court based on some of the evidence previously sought. (Doc. 32). He states he “received a FOIA

report from the DOJ after a six-year process.” Id. at 1. But a similar rationale as previously applied

regarding Petitioner’s requests for discovery applies to Petitioner’s request for a stay. A stay in a

habeas proceeding is not permitted for unexhausted evidence, only for unexhausted claims. Carter

v. Mitchell, 829 F.3d 455, 465-67 (6th Cir. 2016); see also Carter v. Mitchell, 2013 U.S. Dist.

LEXIS 62231 * 4 (S.D. Ohio) (“the concept of ‘unexhausted evidence’ is unknown to habeas

corpus jurisprudence”). And Petitioner has not argued (nor has Respondent) that any of his claims

are unexhausted. Petitioner does not seek to exhaust an unexhausted claim, or add a new

unexhausted claim. He does not assert that his original petition was a “mixed petition”. “Courts

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within the Sixth Circuit have declined to extend the Rhines stay-and-abeyance procedure to

petitions, like the Petitioner's, that do not include unexhausted claims.” Mix v. Warden, 2020 WL

977875, at *3 (S.D. Ohio); see also Elmore v. Shoop, 2020 WL 3410764, at *13 (S.D. Ohio)

(“[T]he stay-and-abeyance remedy set forth in Rhines [ ] applies only to ‘mixed’ petitions

containing both exhausted and unexhausted claims.").

Petitioner’s motion to stay (Doc. 32) is denied. The Court therefore turns to Petitioner’s

specific objections to the R&R.

Objection 1: Consideration of Petitioner’s Supplement to Traverse

In his first objection, Petitioner states that the Magistrate Judge “mentioned” his

Supplement to Traverse (Doc. 24), but “it’s unclear if it was ruled upon.” (Doc. 36, at 1). In an

earlier Order, the Magistrate Judge granted Petitioner’s request to supplement his traverse. (Doc.

29). Further, Petitioner cites nothing specific therein that was omitted from consideration.

Therefore, this objection is overruled as moot.

Objection 2: Misrepresentation of Trial Testimony

In his second objection, Petitioner contends the Magistrate Judge (relying on the Ohio

appellate court decision) misrepresented the trial testimony. (Doc. 36, at 1). When a petitioner

challenges factual determinations, “a determination of [the] factual issue made by [the state] court

shall be presumed correct,” and the petitioner “shall have the burden of rebutting the presumption

of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Petitioner presents four arguments in this regard. First, he contends the Ohio Appellate

Court incorrectly found Petitioner was on the victim’s legs and she could not move. He asserts the

trial testimony does not support this. The at-issue portion of the appellate court decision states the

victim was awakened to “someone . . . engaging in sexual contact with her. She was on her stomach

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and the person was on her legs and she could not move.” State v. Castellon, 2019 WL 856246, at

¶ 10 (Ohio Ct. App.) (“Castellon I”). Petitioner presented this argument to the Magistrate Judge,

who found Petitioner had not presented clear and convincing evidence the factual determination

was incorrect; rather, he found the state court opinion was a “near duplication” of the victim’s

testimony at trial. (Doc. 30, at 25-26). On de novo review, the Court agrees with the analysis in

the R&R.

Second, Petitioner contends the appellate court’s factual determination that “[d]efense

counsel indicated that she had listened to the [jail phone] calls”, Castellon I, 2019 WL 856246, at

¶ 14, is incorrect because on the record, counsel stated she “had an opportunity to listen to the jail

calls” and later stated, “[t]he information that I believe the detective is going to be discussing is

summarized in his police report. He listened to it directly.” (Doc. 36, at 2) (citing Trial Transcript,

at 139). Petitioner seems to argue the contrast between the language “an opportunity to listen” and

“[h]e listened to it directly” means defense counsel did not listen to the recording herself. The

Court is unpersuaded, and having reviewed this portion of the transcript, finds Petitioner has not

demonstrated the state court’s factual finding is erroneous by clear and convincing evidence.

Third, Petitioner objects to the state appellate court’s use of the word “recordings” to refer

to Detective Mladek’s testimony regarding jail phone calls when the actual recordings were not

played in court “and his inadmissible testimony does not reflect the recordings.” (Doc. 36, at 2)

(citing Castellon I, 2019 WL 856246, at ¶¶ 14, 15, 16). The Court finds Petitioner has not presented

“clear and convincing evidence” that the state court’s factual findings were erroneous. In context,

it is clear from the appellate court’s opinion that its factual findings and references to “recordings”

reflect that the actual recordings were not played in court, and the facts are based upon the

detective’s testimony or the recording transcript:

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The investigating detective, Donald Mladek (“Detective Mladek”), also testified.

Prior to his testimony, the state and defense agreed that he would be allowed to

summarize jail calls made by Castellon without playing the actual calls or requiring

the translator who translated the “Spanglish” portions of the calls to testify. Defense

counsel indicated that she had listened to the calls and did not object to the transcript

of the calls being admitted into evidence.

See Castellon I, 2019 WL 856246, at ¶ 14 (footnote omitted)

Fourth and finally, Petitioner objects to a statement in the appellate court decision

regarding text messages between the victim and her friend on the day of the incident. (Doc. 36, at

2) (citing Castellon I, 2019 WL 856246, at ¶ 17). He contends the text messages “are not in [the

victim’s] phone records[,] proving manipulation (spoof) of technical evidence and are part of

prosecutorial misconduct.” (Doc. 36, at 2). The state appellate court decision says:

Detective Mladek also photographed the text messages exchanged between A.I. and

her friend on the day of the incident. Further, the detective obtained Castellon’s cell

phone and obtained a search warrant to take a mirror image of the phone. Although

it had been deleted, the detective located Castellon’s text to A.I. apologizing.

Detective Mladek also recovered a deleted text message to Castellon confirming a

reservation for an airline flight from Cleveland to Los Angeles for three days after

the incident occurred.

2019 WL 856246, at ¶ 17. Petitioner’s objection on this point is not entirely clear. As such, the

Court finds Petitioner has not satisfied his burden to “rebut[] the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Objection 3: Untimely Supreme Court of Ohio Appeal

In his third objection, Petitioner appears to contend the Magistrate Judge’s statement that

he “did not timely file [his direct] appeal in the Supreme Court of Ohio” is incorrect because the

R&R also states, on the following page, that Petitioner “appealed the [appellate court’s] decisions

affirming judgment on direct appeal and denying his application to reopen the appeal to the

Supreme Court of Ohio.” (Doc. 36, at 2) (citing Doc. 30, at 8-9). He contends “[a] major detail

that the magistrate is disregarding is the initial jurisdictional appeal to the Ohio Supreme Court

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was delayed for a week and filed two days late.” Id. Thus, Petitioner appears to admit the appeal

was not timely filed. He then asserts he explained the reason for the late filing. Id. at 2-3. On de

novo review of the record, the Court finds no error in the Magistrate Judge’s determination that

Petitioner did not timely file his direct appeal to the Supreme Court of Ohio. See Ohio Sup. Ct.

Practice R. 7.01(A)(1)(a) (requiring an appeal be filed within 45 days).

Petitioner’s assertion that his initial jurisdictional appeal to the Ohio Supreme Court was

“filed two days late” is not supported by the record, which evidences no separate initial

jurisdictional appeal to the Ohio Supreme Court. See Doc. 10-1. That Petitioner attempted to file

an appeal of his direct appeal at the same time as the denial of his application to reopen does not

render his appeal of the appellate court’s denial of his direct appeal timely. This objection is

overruled.

Objection Four: Sufficiency of the Evidence (Ground One)

In his fourth objection, Petitioner challenges the R&R’s conclusion that the state appellate

court decision that sufficient evidence supported Petitioner’s convictions was not based on an

unreasonable determination of the facts or unreasonable application of clearly established federal

law. (Doc. 36, at 3-10). Specifically, he argues “the factual predicates for the cases used by the

appellate court are distinct from those in the instant case” and asserts the evidence was insufficient

to demonstrate the force element of rape and the restraint element of kidnapping. Id. at 3. He relies

on a 2023 Ohio appellate court decision explaining disagreements among Ohio courts regarding

what evidence is necessary to prove the force element of rape. Id. at 5-9 (quoting State v. Torres,

2023 WL 3144538 (Ohio Ct. App.)).

In reviewing the sufficiency of the evidence, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

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have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). The reviewing court may not “reweigh the evidence, re-evaluate the

credibility of witnesses, or substitute [its] judgment for that of the [fact-finder].” Brown v. Konteh,

567 F.3d 191, 205 (6th Cir. 2009). On habeas review this question involves “a double layer of

deference”: Jackson allows the state court to view the evidence in the light most favorable to the

prosecution and to overturn only an unreasonable verdict, and AEDPA forbids the habeas court

from overturning the conviction unless the state court’s sufficiency determination itself was

unreasonable. White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). Given this “double deference,”

a habeas petitioner “who challenges the sufficiency of the evidence to sustain his conviction faces

a nearly insurmountable hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (quoting

United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

As already discussed with regard to Petitioner’s first objection, the Court agrees with the

R&R’s analysis regarding the appellate court’s determination of the facts. And this argument at its

core asks the Court to delve into the interpretation of Ohio law. To the extent Petitioner contends

the appellate court was incorrect as a matter of state law, such a claim is not cognizable on federal

habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is the prerogative of the state

to define the elements of a crime and that definition binds the federal courts. See Johnson v. United

States, 559 U.S. 133, 138 (2010) (“We are, however, bound by the Florida Supreme Court's

interpretation of state law, including its determination of the elements[.]”). And federal habeas

courts are bound by a state court’s interpretation of state law, including an interpretation made on

direct appeal of the conviction being challenged. See Davis v. Straub, 430 F.3d 281, 291 (6th Cir.

2005).

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The state court’s finding that “[a]s to the use of force or threat of force required for a rape

conviction, the Supreme Court of Ohio has stated that ‘[f]orce need not be overt and physically

brutal, but can be subtle and psychological. As long as it can be shown that the rape victim’s will

was overcome by fear or duress, the forcible element of rape can be established’” is a state court

interpretation of state law. Castellon I, 2019 WL 856246, at ¶ 23 (quoting State v. Eskridge, 38

Ohio St. 3d 56, 58-59 (Ohio 1998)). The state court found the victim’s testimony that she could

not move and was afraid to move, and that Petitioner pulled her legs toward the edge of the bed,

was sufficient factual evidence to establish the forcible element of rape, as well as that the victim’s

liberty was restrained as necessary to support a kidnapping conviction. Id. at ¶¶ 23, 27. The

appellate court’s conclusion in this regard was not “far out of line with the very general standard

set forth in Jackson v. Virginia” so as to require habeas relief. Davis, 658 F.3d at 535. Therefore,

the Court agrees with the R&R’s conclusion and finds the state court decision was neither an

unreasonable application of, nor contrary to, federal law regarding sufficiency of the evidence.

This is particularly so given the “double deference” applicable to a sufficiency challenge under

AEDPA. Davis, 658 F.3d at 534.

Objection Five: Ineffective Assistance of Trial Counsel re: Jail Phone Calls (Ground 2)

In his fifth objection, Petitioner contends the R&R’s conclusion regarding his ineffective

assistance of trial counsel claim (for failure to subpoena the translator of recorded jail phone calls)

is incorrect. (Doc. 36, at 10-14). He again relies on an Ohio appellate case to make his argument,

contending the Magistrate Judge failed to address the case. Id.at 12-13.

Once again, on habeas review, the Court does not resolve questions of state law. And, on

de novo review, the Court agrees with the R&R’s conclusion that this subclaim is meritless in that

the state court decision – finding, inter alia, Petitioner had not demonstrated the required prejudice

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under Strickland v. Washington, 466 U.S. 668 (1984) – is not contrary to or an unreasonable

application of federal law. 28 U.S.C. § 2254(a).

Objection Six: Procedural Default of Ineffective Assistance of Trial Counsel Claims (Ground 2)

In his sixth objection, Petitioner objects to the R&R’s conclusion that he procedurally

defaulted all of his other ineffective assistance of trial counsel subclaims. (Doc. 36, at 14-15).

These subclaims raise assertions of ineffective assistance of trial counsel for (1) failing to challenge

“warrantless, manipulated cell phone data”; (2) “negligently allowing body cam footage to be

withheld”; and (3) failing to introduce evidence of his address to “impeach implication of flight.”

See Doc. 1, at 3-4. The R&R recommends the Court find these claims procedurally defaulted

because Petitioner did not raise these claims on direct appeal. (Doc. 30, at 27-29). It further notes

that Petitioner’s post-conviction petition raising these claims may not serve as cause to excuse the

default because the trial court denied that petition as untimely. Id. at 29.

To the extent these subclaims were based on evidence in the trial record, Petitioner was

required to raise them on direct appeal and they are defaulted by his failure to do so. Hill v.

Mitchell, 842 F.3d 910, 936 (6th Cir. 2016) (In Ohio, “[c]laims based on evidence wholly within

the trial record must be brought on direct appeal, while claims based on evidence outside the trial

record cannot be brought on direct review and must be raised in a petition for state post-conviction

relief.”).

Even if any of these ineffective assistance claims were properly raised for the first time in

his post-conviction petition, Petitioner procedurally defaulted them when he failed to appeal from

the trial court’s denial of that petition. Petitioner thus failed to pursue these claims “one complete

round of the State’s established appellate review process,” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999), and there is no remaining state-court remedy for the claim, see State v. Nichols, 11

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Ohio St. 3d 40, 43 (Ohio 1984) (“[W]e hold a delayed appeal pursuant to App. R. 5(A) is not

available in the appeal of a post-conviction relief determination . . . .”). See, e.g., Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (“Where state court remedies are no longer available

to a petitioner because he or she failed to use them within the required time period, procedural

default and not exhaustion bars federal court review.”). The Court overrules Petitioner’s objection

to the R&R in this regard.

Objection Seven: Procedural Default of Prosecutorial Misconduct Claims (Ground 4)

Petitioner objects to the R&R’s conclusion that he procedurally defaulted all of his

prosecutorial misconduct claims, contending these claims are not defaulted for the same reasons

his ineffective assistance of counsel claims are not defaulted. However, the Court agrees with the

R&R on de novo review and finds these claims procedurally defaulted. These claims were first

raised in Petitioner’s post-conviction petition. See Ex. 69, Doc. 10-1, at 274-78. Even assuming

arguendo this was the proper first place to raise such claims, Petitioner defaulted them by not

appealing the trial court’s denial of that petition (just as with the ineffective assistance of counsel

claims above).

Objection Eight: Prosecutorial Misconduct Regarding Jail Calls (Ground 4)

Petitioner raises two objections regarding the Magistrate Judge’s analysis of his claim of

prosecutorial misconduct regarding the admission of jail phone calls. First, Petitioner contends the

R&R ignored his argument that the state court improperly applied res judicata. He argues the state

court incorrectly applied res judicata because the state appellate court on direct appeal only

addressed the jail recordings claim in the context of ineffective assistance of trial counsel claim,

and his 26(B) claim regarding ineffective assistance of appellate counsel for failure to assert a

prosecutorial misconduct claim based on the jail phone calls is a different cause of action. (Doc.

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36, at 16). Ohio’s res judicata rule bars a defendant from raising in post-conviction review a claim

that was or could have been raised on direct appeal. See State v. Perry, 10 Ohio St.2d 175, 180,

226 N.E.2d 104 (1967). The Ohio appellate court held that res judicata prevented it from “once

again determining whether Castellon was prejudiced by the admission of the recorded jail phone

conversations” because in the direct appeal it had determined the statements were admissible. State

v. Castellon, 2019 WL 4316513, at *1-2 (Ohio Ct. App.) (“Castellon II”). In both his ineffective

assistance of trial counsel claim and his prosecutorial misconduct claim, Petitioner asserted the

evidence used was inadmissible. Thus, Petitioner has not shown the state court application of res

judicata was improper.

And even if he had, this is not the basis on which the R&R ultimately based its conclusion.

Rather, it concluded that Petitioner procedurally defaulted this claim when he failed to raise it to

the Ohio Supreme Court. In this regard, Petitioner objects to the R&R’s citation of Carter v.

Mitchell, 693 F.3d 555 (6th Cir. 2012), in finding Petitioner had procedurally defaulted this

particular claim of prosecutorial misconduct. (Doc. 36, at 15-16). Specifically, he contends Carter

addressed a default based on the failure to appeal a 26(B) application to the Ohio Supreme Court,

but Petitioner did so appeal here. Id. The Magistrate Judge did not err. As he correctly pointed out,

in Petitioner’s appeal of the denial of his 26(B) application, Petitioner argued the merits of his

prosecutorial misconduct claim related to the admission of jail phone calls rather than his

ineffective assistance of appellate counsel claim. See Doc. 30, at 39; Ex. 81, Doc. 10-1, at 364-65.

As such, this claim is defaulted and Petitioner’s objection is overruled.

Objection Nine: Confrontation (Ground 5)

Petitioner objects to the R&R’s conclusion that his confrontation clause claim is

procedurally defaulted. (Doc. 36, at 16-17). Specifically, this claim relates to testimony presented

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at trial about recorded jail calls with Petitioner’s mother and ex-girlfriend, when neither was

available for cross-examination. This claim was not raised on direct appeal. Petitioner seemingly

objects to the R&R’s conclusion that he could not show cause to overcome the default.

On de novo review, the Court concludes the Magistrate Judge correctly found this claim

procedurally defaulted as it was not raised on direct appeal. Petitioner did raise this claim in his

Rule 26(B) application to reopen, but the appellate court found Petitioner could not demonstrate

counsel’s performance was deficient, nor could he show prejudice. Castellon II, 2019 WL

4316513, at *3 (“The decision of trial counsel to confront any witnesses falls squarely within the

realm of trial strategy and tactics that will not be disturbed on appeal absent the demonstration of

prejudice . . . We conclude a lack of prejudice because Castellon has failed to demonstrate that had

the failure to cross-examine his ex-girlfriend and mother been presented as an argument in the

direct appeal, this court would have reversed his conviction.”). Because this determination is not

contrary to or an unreasonable application of federal law (Strickland v. Washington, 466 U.S. 688

(1984)), Petitioner cannot rely on ineffective assistance of appellate counsel as cause for the

default. See Moore v. Mitchell, 708 F.3d 760, 777-78 (6th Cir. 2013). This objection is overruled.

Objection Ten: Speedy Trial (Ground 6)

Petitioner objects to the Magistrate Judge’s finding that he procedurally defaulted his

speedy trial claim. (Doc. 36, at 18). He contends that the R&R “overlooks the fact that Castellon

raised speedy trial in his 26(B)” and “the record reflects that the issue was raised and considered.”

Id.. The Magistrate Judge found Petitioner procedurally defaulted this claim because when he

appealed the denial of his 26(B) application “he did not pursue the ineffective assistance claim,

and instead asserted only the underlying claim—that his right to a speedy trial was violated.” (Doc.

30, at 45).

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First, to the extent Petitioner argues this issue was preserved for federal habeas review

because the state court addressed the merits of the claim, he is incorrect. The state appellate court

only addressed the merits of the claim through the lens of a claim of ineffective assistance of

counsel. See Castellon II, 2019 WL 4316513, at *3-4. Second, on de novo review, the Court agrees

with the R&R’s conclusion. In Petitioner’s memorandum in support of jurisdiction to the Ohio

Supreme Court, he asserted he was denied his constitutional right to a speedy trial; he did not

specifically assert he was denied the effective assistance of appellate counsel for failure to assert

that claim on direct appeal. See Ex. 81, Doc. 10-1, at 364-65. Third, even if Petitioner had not

procedurally defaulted the ineffective assistance of appellate counsel claim on these facts, the state

court’s determination that Petitioner could not show prejudice under Strickland for such a claim

(Castellon II, 2019 WL 4316513, at *4) is not contrary to or an unreasonable application of federal

law. As such, Petitioner cannot rely on ineffective assistance of appellate counsel as cause for the

default. See Moore, 708 F.3d at 777-78 Finally, the Court agrees with the Magistrate Judge’s

analysis that even if this claim were not defaulted, it would fail on the merits. (Doc. 30, at 46-53).

This objection is overruled.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Petitioner’s Motion to Stay (Doc. 32) be and the same hereby is, DENIED;

and it is

FURTHER ORDERED that Judge Clay’s R&R (Doc. 30) be, and the same hereby is,

ADOPTED as the Order of this Court, and the Petition (Doc. 1) is DENIED and DISMISSED as

set forth therein; and it is

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FURTHER ORDERED that, because Petitioner has not made a substantial showing of a

denial of a constitutional right directly related to his conviction or custody, no certificate of

appealability shall issue. 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Rule 11 of Rules

Governing § 2254 Cases. And the Court

FURTHER CERTIFIES that an appeal from this decision could not be taken in good faith.

28 U.S.C. § 1915(a)(3).

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

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