# Jewett v. Warden, Noble Correctional Institution

> District Court, S.D. Ohio · August 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10373733

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10373733

## How later opinions describe it (automated extraction)

- noting that Ohio’s “waiver rule,” which “requires that a party make a contemporaneous objection to alleged 17 trial error in order to preserve that error for appellate review,” is “of long standing” and “goes to the heart of the adversary system of justice”
- recognizing procedural default of a claim in habeas petition where appellant never raised the claim on direct appeal to the Ohio Court of Appeals and the Ohio Supreme Court
- noting that a habeas court “does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TYRONE JEWETT, Case No. 1:18-cv-406
Petitioner,
Barrett, J.
vs. Bowman, M.J.

WARDEN, NOBLE REPORT AND
CORRECTIONAL INSTITUTION, RECOMMENDATION
Respondent.

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed
a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter
is before the Court on the petition, respondent’s motion to dismiss (Doc. 7), and petitioner’s
response in opposition (Doc. 9). For the reasons stated below, the undersigned recommends that
the motion to dismiss be granted and the petition be dismissed.
I. FACTUAL BACKGROUND
The Ohio Court of Appeals set forth the following set of facts leading to petitioner’s
conviction and sentence:1
{¶8} The Scioto County Grand Jury returned a 46-count indictment against
Tyronne Jewett and 23 other defendants. The indictment charged Jewett with 41
counts and various specifications. All of the defendants, including Jewett, were
charged with engaging in a pattern of corrupt activities, conspiracy to engage in
corrupt activities, and conspiracy to traffic in drugs (heroin and cocaine). The
indictment also charged Jewett with multiple trafficking in heroin and cocaine
offenses. After the trial court appointed counsel for Jewett, he entered a plea of not
guilty to the charges.

{¶9} The remaining facts are based upon the evidence produced at a jury trial. The
Southern Ohio Drug Task Force received information that Jewett (also known as

1 28 U.S.C. § 2254(e)(1) provides that “[i]n a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court
shall be presumed correct” unless petitioner rebuts the presumption by “clear and convincing evidence.” Because
petitioner has neither cited nor presented clear and convincing evidence to rebut the Ohio Court of Appeals’ factual
findings quoted herein, the state appellate court’s factual findings are presumed to be correct. See McAdoo v. Elo,
365 F.3d 487, 493-94 (6th Cir. 2004).
“Blue” or “Ty”), who came from Dayton, was dealing heroin and cocaine in the
Portsmouth area from 2014 until early 2015. Jewett purchased heroin and cocaine
from Taevon Turnage in Dayton through Steven North, who acted as a middleman.
Jewett sold the heroin and cocaine from several different residences in Scioto
County. He then had the proceeds of the drug sales delivered or wired to Dayton
in return for more drugs. Jewett instructed several individuals to wire the money
to North. And several people drove Jewett or others on his behalf to obtain the
drugs from Dayton.

{¶10} In January 2015 the police arranged six different controlled purchases of
heroin and cocaine from Jewett by a confidential informant. The drugs seized from
those transactions went to the Bureau of Criminal Investigation (“BCI”) where the
lab found varying amounts of heroin and cocaine. BCI forensic scientist Megan
Koentep testified that the laboratory did not quantitate submitted substances, i.e.,
BCI did not determine what percentage of the substance tested is actually heroin or
cocaine—it did not test for the purity of the drug.

{¶11} Many of Jewett’s co-defendants, who were almost all drug addicts, testified
that they purchased heroin and cocaine from him, drove to Dayton to get the drugs
for him and to give money to North, and permitted Jewett to use their houses in
Scioto County to deal drugs. They provided testimony, mostly without objection,
about the types and amounts of drugs purchased from Jewett and transported by or
on behalf of him.

{¶12} After the task force had evidence of the six controlled purchases of heroin
and cocaine, the police stopped an SUV driven by Jewett’s accomplice, Christopher
Wolfe, based on Wolfe’s driving while under suspension. Jewett was in the front
passenger seat. They discovered that Jewett had an arrest warrant on an unrelated
Gallia County indictment and found a loaded semiautomatic handgun underneath
Jewett’s seat, multiple cellphones in his possession, including the one, on which he
made the drug transactions, digital scales and hypodermic needles in his coat, and
$1,563 on his person. They arrested him and took him to jail.

{¶13} Portsmouth Police Detective Lee Bower testified that based on his
experience, he was able to look at various quantities of drugs and estimate how
much they weighed. Jewett did not object to the trial court qualifying him as an
expert on giving estimates of weights of drugs based on appearance. By contrast
BCI forensic scientist Koentep testified that the BCI weighs the submitted
substances because they cannot be sure of the weight if they just looked at it.

(Doc. 6, Ex. 14).

2
II. PROCEDURAL HISTORY
State Trial Proceedings and Direct Appeal
On April 16, 2015, the Scioto County, Ohio, grand jury returned a forty-six-count
indictment against petitioner and twenty-three co-defendants. Petitioner was charged with forty-
one counts, including twenty-seven counts of drug trafficking, two counts of trafficking in
drugs/major drug offender, two counts of possession of criminal tools, five counts of money
laundering, and one count each of engaging in a pattern of corrupt activities, conspiracy to
engage in corrupt activities, weapon under disability, illegal conveyance of a drug of abuse into a
detention facility, receiving stolen property, and conspiracy to traffic in drugs. (Doc. 6, Ex. 1).

Petitioner, through counsel, entered a plea of not guilty to all counts. (Doc. 6, Ex. 2).
Prior to trial, petitioner filed a motion to suppress and supplemental motion to suppress
evidence and statements made to the police. (Doc. 6, Ex. 3, 4). The trial court denied
petitioner’s motions after holding a hearing on the matter. (Doc. 6, Ex. 5).
On September 8, 2015, following a jury trial, petitioner was found guilty of thirty-three
counts, including twenty-two counts of trafficking in heroin or cocaine, two counts of possession
of criminal tools, three counts of money laundering, and one count each of engaging in a pattern
of corrupt activity, conspiracy to engage in a pattern of corrupt activity, weapons under
disability, illegal conveyance of a drug of abuse into a detention facility, receiving stolen

property, and conspiracy to traffic in drugs. (Doc. 6, Ex. 7). Petitioner was sentenced to serve a
total aggregate prison sentence of forty years in the Ohio Department of Corrections, with
sixteen years being mandatory. (Doc. 6, Ex. 8).
On October 2, 2015, petitioner, through counsel, filed notice of appeal to the Ohio Court
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of Appeals. (Doc. 6, Ex. 9). Petitioner raised the following five assignments of error:
Assignment of Error One: The trial court erred in not granting Defendant-
Appellant’s motion to amend the indictment made at the close of the State’s case.

Issue One. In prosecuting cocaine offenses involving mixed substances under R.C.
2925.11(C)(4)(a) through (f), it must be proven that the weight of pure cocaine
meets the statutory threshold. Herein, the state failed to prove the weight of pure
cocaine in Counts Four, Nine, Thirteen, Fifteen, Sixteen, Seventeen and Thirty.
Since the language in R.C. 2925.11 and R.C. 2925.03 as to cocaine offenses is the
same the penalty enhancement in these counts must be reversed and vacated.

Assignment of Error Two: The trial court erred in not granting Defendant-
Appellant’s motion for acquittal.

Issue One. If reasonable minds could not reach the conclusion that the trier of fact
did then a conviction must be overturned. Herein, Defendant-Appellant’s
convictions as to certain counts are based exclusively upon lay testimony of the
identity and weight of controlled substances. Without the drugs, there is
insufficient evidence they were controlled substances and what they weighed.
Defendant-Appellant’s conviction must be overturned.

Assignment of Error Three: Defendant-Appellant’s convictions are against the
manifest weight of the evidence.

Issue One. When a conviction is against the manifest weight of the evidence it must
be reversed and a new trial ordered. Herein, Defendant-Appellant’s conviction is
based upon the testimony of drug addicts and co-defendants who made plea
agreements with the state, plus expert witnesses who gave conflicting opinions of
how to identify and weigh controlled substances. Defendant-Appellant’s
convictions are against the manifest weight of the evidence and must be reversed
and a new trial ordered.

Assignment of Error Four: Trial counsel provided constitutionally ineffective
assistance in violation of Defendant-Appellant’s rights under the Sixth, and
Fourteenth Amendments to the United States Constitution and Sections 10 and 16,
Article I of the Ohio Constitution.

Issue One. Under R.C. 2945.71 a person charged with a felony must be brought to
trial within 90 days after arrest if he is incarcerated the entire time prior to trial.
Herein, Defendant-Appellant was arrested on January 25, 2015, tried starting on
August 31, 2015 and incarcerated the entire time. This is a period of 228 days.
4
Trial counsel failed to move for dismissal. Trial counsel provided constitutionally
ineffective assistance.

Issue Two. Ineffective assistance of counsel occurs where a lawyer has a duty to
one client to contend for that which his duty to another client requires him to
oppose. Herein, trial counsel’s cross-examination failed to ask necessary questions
of a witness with whom he had a conflict of interest with his representation of
Defendant-Appellant. Trial counsel provided constitutionally ineffective
assistance of counsel.

Assignment of Error Five: The trial court erred and denied Defendant-Appellant
a fair trial and due process of law when it gave curative instructions that incorrectly
stated Ohio law and were simplified from those given in its final charge to the jury
and final jury instructions that were incorrect statements of Ohio law.

Issue One. Juries are presumed to follow curative instructions and an inadequate
instruction that misleads the jury constitutes reversible error. Herein, the trial court
gave two curative instructions as to the way to prove identity and weight of
controlled substances. The instructions were incorrect statements of law.
Defendant-Appellant was denied a fair trial and due process of law.

Issue Two. In prosecuting cocaine offenses involving mixed substances under R.C.
2925.11(C)(4)(a) through (f), it must be proven the weight of pure cocaine meets
the statutory threshold. Herein, the trial court gave a final jury instruction that
weight of pure cocaine did not need to be proven. Since the language in R.C.
2925.11 and R.C. 2925.03 as to cocaine offenses is the same the jury instruction
was an incorrect statement of Ohio law.

(Doc. 6, Ex. 10). Petitioner subsequently filed a motion to amend his brief. Therein, petitioner
sought to add the following language to his second assignment of error:
Defendant-Appellant contends his convictions as to Counts Three (F-1), Four (F-
3), Five (F-3), Six (F-1), Twelve (F-1), Twenty-five (F-1), Twenty-seven (F-1),
Twenty-eight (F-1), Twenty-nine (F-1), Thirty (F-1), Thirty-one (F-1), Thirty-three
(F-1), Forty (F-2), and Forty-one (F-1) are based upon the exclusive testimony of
lay witnesses and not upon expert analysis and should therefore be reversed.

(Doc. 6, Ex. 11). On April 14, 2017, the Ohio Court of Appeals overruled petitioner’s
assignments of error and affirmed the judgment of the trial court. (Doc. 6, Ex. 14).

5
Ohio Supreme Court
On May 30, 2017, petitioner filed a pro se notice of appeal to the Ohio Supreme Court.
(Doc. 6, Ex. 15). In his memorandum in support of jurisdiction, petitioner raised the following
three propositions of law:
1. The trial court erred in not granting the Appellant’s motion to amend the
indictment made at the close of the state’s case, and in not granting his motion
for acquittal, thus, the Appellant’s conviction is against the sufficiency and
manifest weight of the evidence.

2. The trial court denied the Appellant a fair trial and due process of law when it
gave curative instructions that incorrectly stated Ohio law and final jury
instructions that were incorrect statements of Ohio law.

3. Trial counsel was constitutionally ineffective when he failed to move for
dismissal of all counts pursuant to Appellant’s right to a speedy trial.

(Doc. 6, Ex. 16). On September 27, 2017, the Ohio Supreme Court declined jurisdiction of the
appeal. (Doc. 6, Ex. 18).
Application to Reopen Appeal
Meanwhile, on June 26, 2017, petitioner filed an application to reopen his appeal
pursuant to Ohio App. R. 26(B).2 (Doc. 6, Ex. 19). Petitioner claimed that his appellate counsel
was ineffective for failing to raise an assignment of error challenging the trial court’s decision
during voir dire to allow two allegedly biased jurors to sit for his trial. On September 6, 2017,
the Ohio Court of Appeals denied petitioner’s application upon finding that petitioner did not
include an affidavit as required under Rule 26(B)(5). (Doc. 6, Ex. 20).
Petitioner filed a notice of appeal to the Ohio Supreme Court from the decision. (Doc. 6,

2 The motion was captioned as an “application for reconsideration,” however petitioner stated in the application that
he sought relief pursuant to Ohio App. R. 26(B).
6
Ex. 21). In his memorandum in support of jurisdiction, petitioner raised the following two
propositions of law:
1. The trial court abused its discretion when knowingly violating the jury selection
process that allowed a bias juror to sit and hear the evidence against the
Appellant, and direct appeal counsel was ineffective for failure to raise this
Constitutional right to a fair trial by an impartial jury.

2. The trial court erred when allowing an admitted bias juror to sit and hear the
evidence against the Appellant, and direct appeal counsel was ineffective for
failure to raise this Constitutional right to a fair trial by an impartial jury.

(Doc. 6, Ex. 22). On December 6, 2017, the Ohio Supreme Court declined jurisdiction over the
appeal. (Doc. 6, Ex. 24).
Federal Habeas Corpus
On June 8, 2018, petitioner commenced the instant federal habeas corpus action. (Doc.
1). Petitioner raises the following four grounds for relief in the petition:
1. The trial court erred in not granting the petitioner’s motion to amend the
indictment and in not granting his motion for acquittal.

2. The trial court denied the petitioner a fair trial and due process of law when it
gave curative instructions that incorrectly stated Ohio law and final jury
instructions that were incorrect statements of Ohio law.

3. The trial court abused its discretion when knowingly violating the jury selection
process that allowed a bias juror to sit and hear the evidence against the
petitioner, and direct appeal counsel was ineffective for failure to raise this
constitutional right to a fair trial by an impartial jury.

4. The trial court erred when allowing an admitted bias juror to sit and hear the
evidence against the petitioner, and direct appeal counsel was ineffective for
failure to raise this constitutional right to a fair trial by an impartial jury. The
supporting facts/argument are at Page ID#13-16.

(Doc. 1 at PageID 5–9).
Respondent has filed a motion to dismiss the petition, to which petitioner has replied.
7
(Doc. 7, 9).
III. THE PETITION SHOULD BE DISMISSED.

In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state defendant with federal constitutional claims must fairly present those claims to the
state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); see also Anderson, 459 U.S. at 6; Picard v. Connor, 404 U.S. 270, 275-
76 (1971). A constitutional claim for relief must be presented to the state’s highest court in order
to satisfy the fair presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848
(1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94,
97, 99-100 (6th Cir. 1985). If the petitioner fails to fairly present his constitutional claims
through the requisite levels of state appellate review to the state’s highest court or commits some
other procedural default that prevents a merit-based review of the federal claims by the state’s
highest court, he may have waived the claims for purposes of federal habeas review. See
O’Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant,
763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir.
1989).
It is well-settled under the procedural default doctrine that the default of a federal claim

in the state court may preclude federal habeas review if the state court judgment rests on a state-
law ground that is both “independent” of the merits of the federal claim and an “adequate” basis
for the state court’s decision. See Harris, 489 U.S. at 260-62. The Supreme Court has stated:

8
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for 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). Such a default may occur if the state prisoner
fails to comply with a state procedural rule that required him to have done something at trial to
preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982);
Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit applies a four-part test to determine if a claim is procedurally defaulted:

(1) 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; (2)
the court must determine whether the state courts actually enforced the state
procedural sanction; (3) it must be decided whether the state procedural forfeiture
is an adequate and independent state ground upon which the state can rely to
foreclose review of a federal constitutional claim; and (4) if the court has
determined that a state procedural rule was not complied with and that the rule was
an adequate and independent state ground, then the petitioner is required to
demonstrate that there was cause for him not to follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.

Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986)).
In the usual case, the adequate and independent state ground doctrine will not apply to
bar consideration of a federal claim on habeas corpus review unless the last state court rendering
a judgment in the case “clearly and expressly” states that its judgment rests on a state procedural
bar. Harris, 489 U.S. at 263; see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000).3 In

3 In Harris, the Supreme Court noted that the rule requiring that the state court plainly state that its judgment rests
on a state procedural default “applies only when a state court has been presented with the federal claim” raised by
the state prisoner as a ground for federal habeas relief. Harris, 489 U.S. at 263 n.9; see also Teague v. Lane, 489
9
cases where the last state court to render a reasoned opinion explicitly relies on a procedural bar,
the court will presume that a later unexplained order did not silently disregard the procedural
default and consider the merits of the claim. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
In addition, the rule precluding federal habeas corpus review of claims rejected by the
state courts on state procedural grounds applies only in cases where the state rule relied on by the
courts is deemed “adequate” or, in other words, involves a “firmly established and regularly
followed state practice” at the time that it was applied. Ford v. Georgia, 498 U.S. 411, 423-24
(1991); Richey v. Mitchell, 395 F.3d 660, 679 (6th Cir.) (citing White v. Schotten, 201 F.3d 743,
751 (6th Cir. 2000)), rev’d on other grounds, 546 U.S. 74 (2005) (per curiam); Warner v. United

States, 975 F.2d 1207, 1213 (6th Cir. 1992); see also Rideau v. Russell, 342 F. App’x 998, 1002
(6th Cir. 2009). To be considered regularly followed, a procedural rule need not be applied in
every relevant case, but rather “[i]n the vast majority of cases.” Dugger v. Adams, 489 U.S. 401,
410 n.6 (1989); see also Byrd v. Collins, 209 F.3d 486, 521 (6th Cir. 2000).
Finally, the state court’s adequate and independent finding of procedural default will
preclude habeas corpus review of the petitioner’s federal claims unless the petitioner can show
“cause” for the default and “actual prejudice” as a result of the alleged violations of federal law,
or that failure to consider the federal claims will result in a “fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262; see also Murray v. Carrier, 477 U.S. 478,

U.S. 288, 299 (1989) (plurality opinion) (“The rule announced in Harris . . . assumes that a state court has had the
opportunity to address a claim that is later raised in a federal habeas proceeding.”). The Harris Court further noted:
“Of course, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that
the state court would hold the claim procedurally barred.” Harris, 489 U.S. at 263 n.9.
10
485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87
(1977).
A. Grounds One and Two
In Ground One, petitioner argues that the trial court erred by not granting his motion to
amend his indictment and motion for acquittal. (See Doc. 1 at PageID 5–7). At the close of the
prosecution’s case, counsel for petitioner moved to amend the indictment for the cocaine
trafficking counts that were enhanced beyond the fifth-degree based on the weight of the
cocaine, arguing that the prosecution failed to present any evidence that the weight of the cocaine
for these offenses were based on pure cocaine and not fillers.

With respect to his claim that the trial court erred in ruling on his motion for acquittal,
petitioner argues that insufficient evidence was offered as to counts for which no drugs were
seized or submitted to the BCI for analysis. Petitioner claims these counts were supported
“solely upon the testimony of drug addicts and co-defendants, whose testimony was bought and
paid for through plea deals to prove the identity and weight of the substances in these counts to
the jury.” (Doc. 1 at PageID 5).4
Related, in Ground Two, petitioner argues that curative instructions and the final jury
instructions provided at trial concerning lay witness testimony incorrectly stated Ohio law and
deprived him of his constitutional rights. (Doc. 1 at Page ID 7).

Petitioner raised these claims as assignments of error on direct appeal. In overruling
petitioner’s assignment of error regarding his motion to amend the indictment, the Ohio Court of

4 Specifically, petitioner argues that “there were no drugs to analyze as to identity, weight or purity as to counts
three, four, five, six, twelve, twenty-five, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-three,
forty and forty-one.” (Doc. 1 at PageID 6).
11
Appeals found petitioner’s claim regarding drug purity was without merit in light of the Supreme
Court of Ohio’s decision in State v. Gonzales, 81 N.E.3d 419 (Ohio 2017), holding that the entire
compound, mixture, preparation, or substance is properly considered in determining the
appropriate penalty under Ohio law:
A. Motion to Amend the Indictment

{¶16} In his first assignment of error Jewett asserts that the trial court erred by not
granting his motion to amend the indictment.

. . .

{¶17} At the close of the state’s case Jewett’s trial counsel moved for a judgment
of acquittal, which he subsequently modified to a motion to amend the indictment
for the cocaine trafficking counts that were enhanced beyond fifth-degree felonies
based on the weight of the cocaine involved. The requested amendment would not
have changed the name or identity of the trafficking in cocaine charged. Ultimately,
the jury convicted him of four of these trafficking in cocaine charges—Counts 4,
13, 15, and 30—with three of them being first-degree felonies and one of them
being a fourth-degree felony.

{¶18} The state failed to present evidence that the weight of the cocaine for these
offenses was based on pure cocaine instead of cocaine plus a filler. BCI forensic
scientist Koentop testified that the laboratory does not quantitate controlled
substances it tests, i.e., it does not determine what percentage of the substance is
actually cocaine.

{¶19} Previously, in State v. Remy, 4th Dist. Ross No. 03CA2731, 2004-Ohio-
3630, we held in a cocaine-possession case where the penalty was enhanced by the
weight of the drug, “[t]he State need not conduct qualitative analysis to determine
the purity of the cocaine” because “‘the content or purity of cocaine is immaterial
so long as there is any amount of cocaine in the compound or substance.’”
(Emphasis sic.) Id. at ¶50, quoting State v. Brown, 107 Ohio App.3d 194, 202, 668
N.E.2d 514 (3d Dist. 1995).

{¶20} The Supreme Court of Ohio recently addressed this issue by initially holding
that the offense level for cocaine possession was determined by the weight of the
actual cocaine, not by the total weight of cocaine plus any filler. State v. Gonzales,
[150] Ohio St.3d [261], 2016-Ohio-8319, [81] N.E.3d [405] (“Gonzales I”),
affirming State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461. On
12
appeal Jewett relies on the appellate court decision in Gonzales, 2015-Ohio-461.
In affirming that decision the Supreme Court reasoned that this result was dictated
by the unambiguous language of R.C. 2925.11(C)(4)(b) through (f), which require
that a person possess a certain amount “of cocaine,” not a compound or mixture
that contains cocaine plus filler material, to be guilty of a higher-degree felony than
a fifth-degree felony otherwise, which has no weight requirement. Id. at ¶ 17–20.

{¶21} In State v. Sanchez, [150] Ohio St.3d [488], 2016-Ohio-8470, [83] N.E.3d
[883], affirming State v. Sanchez, 2016-Ohio-542, 59 N.E.3d 719 (6th Dist.) the
Supreme Court of Ohio expanded its initial holding in Gonzales I to trafficking in
cocaine by virtue of the fact that the penalty enhancement provision for trafficking
offenses are identical to the ones for cocaine possession. See R.C.
2925.03(C)(4)(c)-(g). See also State v. Valdez, 3d Dist. Marion No. 9-16-01, 2017-
Ohio-241, ¶ 148 (“Although Gonzales involved the interpretation of R.C.
2925.11(drug possession) and not R.C. 2925.03 (drug trafficking), the relevant
penalty enhancement language of R.C. 2925.11(C)(4)(e) is identical to that of the
relevant penalty enhancement language in R.C. 2925.03(C)(4)(f).

{¶22} Therefore, under Sanchez and the Supreme Court’s initial decision in
Gonzales I, “to substantiate an enhanced penalty for convictions for possession and
trafficking in cocaine pursuant to R.C. § 2925.11(C)(4) and R.C. 2925.03(C)(4),
the State must prove the weight of the actual cocaine, excluding any filer or cutting
agents, involved in the offenses.” See State v. Hamilton, 1st Dist. Hamilton No.
15CA010830, 2017-Ohio-230, ¶16.1

1 The same purity requirement has never been applied to trafficking and
passion offenses involving other drugs like heroin. See Gonzales, [150]
Ohio St.3d [261], 2016-Ohio-8319, [81] N.E.3d [405], ¶ 15, citing
Gonzales, 2015-Ohio-461, ¶ 42 (“The appellate court compared this
language to the provisions for marihuana and heroin in R.C. 2925.11 and
found that these subsections did not modify ‘drug involved’ with ‘of
marihuana’ or ‘of heroin’”).

{¶23} Nevertheless, in March 2017, the Supreme Court of Ohio, composed of a
new panel of Justices, reconsidered and vacated its initial decision in Gonzales I,
[150] Ohio St. 3d [261], 2016-Ohio-8319, [81] N.E.3d [405]. See State v. Gonzales,
[150] Ohio St. 3d [276], 2017-Ohio-777, [81] N.E.3d [419] (“Gonzales II”). The
Supreme Court held that “the applicable offense level for cocaine possession under
R.C. 2925.11(C)(4) is determined by the total weight of the drug involved,
including any fillers that are part of the usable drug.” Id. at ¶ 18. Therefore,
Jewett’s reliance on the appellate court decision in Gonzales, 2015-Ohio-461, is
misplaced because that decision has now been reversed by the Supreme Court.

13
{¶24} By that holding the Supreme Court also implicitly overruled its decision in
Sanchez, which had relied solely on its initial decision in Gonzales I to expand it to
cocaine trafficking cases because of the identical penalty enhancement provisions.
Consequently, the trial court did not abuse its discretion by denying Jewett’s motion
to amend the counts charging him with enhanced felonies for trafficking in cocaine.
We overrule his first assignment of error.

(Doc. 6, Ex. 14 at PageID 254–58) (footnote omitted).
With respect to petitioner’s claim that the trial court improperly denied his motion for
judgment of acquittal, the Ohio Court of Appeals also overruled petitioner’s assignment of error.
Specifically, the Ohio appeals court determined that because petitioner did not object to the
contested lay testimony at trial that he waived all but plain error and failed to establish such
error:
{¶28} Jewett asserts that there was insufficient evidence to support 14 of his
convictions for trafficking in heroin (12) and cocaine (2) counts greater than a fifth-
degree felony because they were based upon the exclusive testimony of lay
witnesses rather than expert testimony.

{¶29} Jewett’s motion for judgment of acquittal at the close of the state’s evidence,
which he renewed at the conclusion of all the evidence, was not premised on this
ground. Instead, he based his motion at trial on the appellate court decision in
Gonzales, 2015- Ohio-461, and modified it to a motion to amend the indictment to
attack the cocaine trafficking counts that were greater than fifth degree felonies. As
previously decided, that motion was meritless. He also claimed that there was
insufficient evidence of gun specifications accompanying some of his charges.

{¶30} We reject Jewett’s contention for several reasons.

{¶31} First, he cites no authority supporting his proposition that trafficking
convictions cannot be based on the testimony of lay witnesses for the identity and
weight of the drugs. See State v. Kelly, 2016-Ohio-8582, ¶ 79, [77] N.E.3d [388]
(4th Dist.), citing App.R. 16(A)(7) (“court can summarily reject argument in
assignment of error that is not supported by any legal authority”).

{¶32} Second, for the most part, he did not object to the lay witnesses’ testimony
concerning the identity and weight of the heroin and cocaine involved in the
contested trafficking charges; thus he forfeited all but plain error. See State v. Blair,
14
2016-Ohio2872, ¶ 86, 63 N.E.3d 798 (4th Dist.).

{¶33} Third, he does not claim plain error, and he does not assign as error the trial
court’s admission of lay testimony on the identity and weight of heroin and cocaine
in the contested trafficking offenses. See State v. Gavin, 4th Dist. Scioto No.
13CA3592, 2015-Ohio-2996, ¶ 25, citing State v. Quarterman, 140 Ohio St. 3d
464, 2014-Ohio-4034, ¶ 17-20, 19 N.E.3d 900 (appellate court need not consider
plain error where appellant fails to timely raise plain-error claim); Wright v. Ohio
Dept. of Jobs and Family Servs., 9th Dist. Lorain No. 12CA010264, 2013-Ohio-
2260, ¶ 22 (where a claim is forfeited on appeal and the appellant does not raise
plain error, the appellate court will not create an argument on his behalf); see also
State v. Owens, 2016-Ohio-176, ¶ 59, 57 N.E.3d 345 (4th Dist.), quoting State v.
Nguyen, 4th Dist. Athens No. 14CA42, 2015-Ohio-4414, ¶ 41 (“‘we need not
address this contention because we review assignments of error and not mere
arguments’”).

{¶34} Fourth, notwithstanding Jewett’s claims to the contrary, courts “have
allowed lay witnesses to testify about the identity of a drug.” State v. Johnson, 4th
Dist. Gallia No. 13CA16, 2014-Ohio4032, ¶ 38. “The experience and knowledge
of a drug user lay witness can establish his or her competence to express an opinion
on the identity of a controlled substance if a foundation for this testimony is first
established.” State v. McKee, 91 Ohio St.3d 292, 2001 Ohio 41, 744 N.E.2d 737
(2002), syllabus.

{¶35} Finally, in offenses where the state fails to recover and weigh the drugs, the
offender may be convicted of the offense and the penalty enhancement associated
with the weight of the drug involved based on the testimony of lay witnesses, even
in the absence of expert testimony, as long as a proper foundation is made. See
Garr v. Warden, Madison Corr. Inst., 126 Ohio St. 3d 334, 2010-Ohio-2449, ¶ 28,
933 N.E.2d 1063 (conviction for trafficking in cocaine with a major-drug-offender
specification can be supported by lay testimony where no drug is recovered and no
testing is performed). Notably, Jewett argues only that his 14 trafficking
convictions are not supported by sufficient evidence because of his general
proposition that “they are based upon the exclusive testimony of lay witnesses and
not upon expert analysis.” He does not contend that an improper foundation was
laid for these unspecified witnesses’ lay testimony.

{¶38} Therefore, Jewett forfeited his claim on appeal and has not established any
error, much less plain error, by the trial court in denying his motion for judgment
of acquittal. We overrule his second assignment of error.

(Id. at PageID 259–61).
15
Finally, as to petitioner’s jury instructions claim as raised in Ground Two, the Ohio Court
of Appeals overruled the assignment of error, finding that the instructions were correct
statements of Ohio law and that petitioner waived all but plain error by failing to object to the
alleged error at trial:
{¶52} In his fifth assignment of error Jewett contends that the trial court erred when
it gave curative and final instructions that incorrectly stated Ohio law. A jury
instruction must present a correct, pertinent statement of the law that is appropriate
to the facts. State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248,
¶ 25. “‘Our review concerning whether jury instructions correctly state the law is
de novo.’” Kelly, 2016-Ohio-8582, [77] N.E.3d [388], ¶86, quoting State v.
Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶15.

{¶53} At the state’s request during Jewett’s cross-examination of BCI forensic
scientist Koentep, the trial court instructed the jury that “drugs can be identified by
expert witnesses and also by lay witnesses who are knowledgeable of the drugs”
and that “it is not necessary to quantitate exactly how much is in it.”

{¶54} And in its final jury instructions the trial court gave the following instruction
on the identity and weight of the drugs for charged offenses:

The burden is upon the State to show beyond a reasonable doubt the identity of the
drugs and the weight of the drugs when the weight of the drugs is over one gram.
The State does not have to prove the weight of the drug if they are not over one
gram. The State may do that in several ways. First, the State may prove the identity
and weight of the drugs by laboratory testing. In this case, the State has introduced
lab reports to identify the drugs in question and to determine the weight.

Second, the State may use lay witnesses to prove the identity and weight of the
drugs. You have hea[r]d several lay witnesses, in this case drug addicts, testify to
the identity of certain drugs, that is, that certain substances were heroin, cocaine or
marijuana and to give an opinion as to the weight of certain drugs. You are
instructed that the experience and knowledge of a drug user lay witness can
establish his or her competence to express an opinion on the identity and weight of
a controlled substance if a foundation for this testimony is first established. The
State is entitled to establish both the identity and the weight of a drug through
circumstantial evidence as long as a lay witness has firsthand knowledge and a
reasonable basis, grounded either in experience or specialized knowledge, for
arriving at the opinion expressed.

16
{¶55} The trial court’s curative instruction that the state did not need to establish
the purity of the controlled substance was correct for the cocaine and heroin
trafficking charges with elevated felonies for the same reasons we previously
discussed in resolving Jewett’s first assignment of error. See Gonzales II, [150]
Ohio St. 3d [276], 2017-Ohio-777, [81] N.E.3d [419].

{¶56} Additionally, Jewett did not object to the court’s curative and final
instructions that the state could generally use lay witnesses to prove the identity and
weight of drugs if a foundation for the testimony is first established. Instead, his
trial counsel conceded that lay witnesses can express an opinion on the identity of
the controlled substance. He thus forfeited all but plain error. See State v. Neyland,
139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 203. And he does not
argue plain error on appeal. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 17-20 (court need not consider plain error where appellant fails to
timely raise plain-error claim).

{¶57} Furthermore, as we decided in our disposition of Jewett’s second assignment
of error, the trial court did not commit error, much less plain error, by instructing
the jury on the general propriety of lay witness testimony concerning the identity
and weight of the drugs were a proper foundation for the testimony exists. McKee,
91 Ohio St.3d 292, 744 N.E.2d 737, at syllabus; Garr, 126 Ohio St.3d 334, 2010-
Ohio-2449, 933 N.E.2d 1063, at ¶ 28. We overrule his fifth assignment of error.

(Id. at PageID 267).
Petitioner is not entitled to federal habeas relief based on Grounds One or Two of the
petition. As an initial matter, petitioner procedurally defaulted his claims concerning lay witness
testimony and jury instructions by failing to object to the alleged errors at trial. Ohio’s
contemporaneous objection rule is a firmly-established, adequate and independent state
procedural rule, which serves to foreclose federal habeas review when relied on by the state
courts as a basis for denying relief. See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir.
2011) (citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)); White v. Mitchell, 431 F.3d
517, 525 (6th Cir. 2005); see also State v. Murphy, 747 N.E.2d 765, 788 (Ohio 2001) (noting that
Ohio’s “waiver rule,” which “requires that a party make a contemporaneous objection to alleged
17
trial error in order to preserve that error for appellate review,” is “of long standing” and “goes to
the heart of the adversary system of justice”). The Sixth Circuit has repeatedly held that “plain
error” review by the state appellate court “constitutes enforcement of Ohio’s contemporaneous
objection rule.” See Williams v. Bagley, 380 F.3d 932, 968-69 (6th Cir. 2004) (and Sixth Circuit
cases cited therein); see also Goodwin, 632 F.3d at 315.
The Ohio Court of Appeals clearly enforced the state procedural bar with respect to
petitioner’s assignments of error not objected to at trial by reviewing petitioner’s assignments of
error under plain error analysis. (See Doc. 6, Ex. 14 at PageID 260, 268–69). Specifically, the
Ohio appeals court noted that petitioner forfeited all but plain-error review with respect to the lay

witness testimony regarding the identity and weight of the drugs and his jury instruction claims.
(See id.). As such, the state appellate court’s plain-error review did not constitute a waiver of the
state procedural default rules. Seymour v. Weaver, 224 F.3d 542, 557 (6th Cir. 2000); see also
Goodwin, 632 F.3d at 315. The Ohio Supreme Court’s later unexplained entry denying
jurisdiction to hear petitioner’s appeal must be presumed to rely on the same state procedural
ground. See Ylst, 501 U.S. at 803. See also Abshear v. Moore, 354 F. App’x 964, 970 (6th Cir.
2009); Knuckles v. Brigano, 70 F. App’x 830, 840 (6th Cir. 2003).
Therefore, these claims are barred from review in this proceeding unless petitioner can
demonstrate cause for and prejudice from his procedural default or that a fundamental

miscarriage of justice will occur if the ground for relief is not considered on the merits by this
Court. See, e.g., Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262; Murray, 477 U.S. at 485.
No such showing has been made in this case.
Petitioner contends that he should be granted greater latitude as a pro se litigant.
18
However, to the extent that petitioner may contend that his pro se status or ignorance of the law
constitute cause for his procedural defaults (see Doc. 9 at PageID 1767–68), it is well-established
in the Sixth Circuit that such reasons are insufficient to establish cause to excuse a procedural
default. See e.g., Rogers v. Warden, Warren Corr. Inst., No. 1:10cv397, 2011 WL 1771691, at
*6 (S.D. Ohio Feb. 8, 2011) (Litkovitz, M.J.) (Report & Recommendation) (“[t]he petitioner’s
pro se status, ignorance of the law or procedural requirements, or limited access to legal
materials does not constitute cause” to excuse his procedural default of his habeas
claims), adopted, 2011 WL 1753711 (S.D. Ohio May 9, 2011) (Dlott, J.).
Because petitioner has not otherwise demonstrated that that a fundamental miscarriage of

justice will occur if his procedurally-defaulted claims for relief are not considered or, in other
words, that the alleged errors “probably resulted in the conviction of one who is actually
innocent,” see Murray, 477 U.S. at 495–96. See also Schlup v. Delo, 513 U.S. 298, 327 (1995);
Bonilla, 370 F.3d at 498,5 petitioner has procedurally defaulted and waived his claims regarding
lay witness testimony and jury instructions, as raised in Grounds One and Two of the petition.6

5 It is noted that to establish a credible claim of actual innocence sufficient to excuse his procedural default,
petitioner must “support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324. Petitioner has failed to establish a credible claim of actual innocence
under the Schlup standard, as he has not supported his allegations of constitutional error with any new evidence of
actual innocence. “Without any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court
to reach the merits of a barred claim.” Schlup, 513 U.S. at 316.

6 Even if the Court were to consider the merits of petitioner’s defaulted claims, petitioner would not be entitled to
relief. As noted by the Court of Appeals, petitioner failed to cite any authority “supporting his proposition that
trafficking convictions cannot be based on the testimony of lay witnesses for the identity and weight of the drugs.”
(Doc. 6, Ex. 14 at PageID 259). More importantly for the purposes of this federal habeas corpus action, petitioner
fails to identify any United States Supreme Court precedent so holding, such that this Court could find that the Ohio
courts adjudication was an unreasonable application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d). Furthermore, as to petitioner’s jury instruction claims, the Ohio Court
of Appeals determined that the contested jury instructions were proper statements of Ohio law and this Court is
19
Petitioner is also not entitled to federal habeas relief with respect to his claim that the
purity of the drugs was not established or that drugs were not admitted as evidence in support of
several of his convictions.7 In this federal habeas proceeding, the Court must defer to and
is bound by the state court’s ruling on state-law issues. See, e.g., Bennett v. Warden, Lebanon
Corr. Inst., 782 F. Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein) (“[B]ecause the
state courts are final authority on state-law issues, the federal habeas court must defer to and
is bound by the state court’s rulings on such matters.”); Meyers v. Ohio, No. 1:14cv1505, 2016
WL 922633, at *7 (N.D. Ohio Jan. 21, 2016) (Report & Recommendation) (citing Olsen v.
McFaul, 843 F.2d 918, 929 (6th Cir. 1988)) (“federal habeas courts are bound by decisions of

intermediate state courts on questions of state law unless convinced that the state’s highest court
would decide the issue differently”), adopted, 2016 WL 916602 (N.D. Ohio Mar. 9, 2016). See
also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68
(1991)) (“it is not the province of a federal court to reexamine state-court determinations
on state-law questions”).
As noted by the Ohio Court of Appeals in petitioner’s direct appeal, the Ohio Supreme
Court has determined that under Ohio law “the applicable level for cocaine possession under
R.C. 2925.11(C)(4) is determined by the total weight of the drug involved, including any fillers
that are part of the usable drug.” State v. Gonzales, 81 N.E.3d 419, 424 (Ohio 2017).8

bound by the state court’s ruling on state-law issues. See infra, p. 20.

7 Unlike petitioner’s lay witness and jury instruction claims, petitioner did raise these issues at trial through his
motions to amend the indictment and for acquittal.

8 Although Gonzales involved cocaine possession, the Ohio courts have observed that the penalty enhancement
provisions for trafficking offenses are identical. See, e.g., State v. Valdez, No. 9-16-01, 2017 WL 277578, at *23
(Oh. Ct. App. Jan. 23, 2017) (“Although Gonzales involved the interpretation of R.C. 2925.11 (drug possession) and
20
Furthermore, as to petitioner’s claim that drugs were not admitted into evidence in support of
several of his drug trafficking convictions, the Ohio Supreme Court has held that for offenses for
which the state fails to recover and weigh the drugs, a conviction and penalty-enhancement
based on the weight of the drug involved may be based on circumstantial evidence in the form of
the testimony of lay witnesses. See Garr v. Warden, 933 N.E.2d 1063, 1067 (Ohio 2010).9 See
also Davis v. Harris, No. 1:18-cv-822, 2019 WL 1410106, at *3 (S.D. Ohio Jan. 9, 2019)
(denying relief on the petitioner’s claim that insufficient evidence was offered in support of his
convictions because none of the drugs were seized, noting “neither the Ohio statute nor federal
constitutional law requires that drug quantities be proven by measuring and offering in evidence

drugs which have actually been seized”); State v. McKee, 744 N.Ed.2d 737 (Ohio 2001) (“the
experience and knowledge of a drug user lay witness can establish his or her competence to
express an opinion on the identity of a controlled substance if a foundation for this testimony is
first established”).10 This Court is bound by the Ohio Supreme Court’s decisions interpreting
Ohio law. See, e.g., James v. Buchanan, No. 2:18-cv-750, 2018 WL 6681787, at *5 (S.D. Ohio

not R.C. 2925.03 (drug trafficking), the relevant penalty enhancement language of R.C. 2925.11(C)(4)(e) is identical
to that of the relevant penalty enhancement language in R.C. 2925.03(C)(4)(f)”). See also Ohio v. Reyes, No. 2017-
CA-34, 2018 WL 1779366, at *4 (Oh. Ct. App. Apr. 13, 2018) (applying Gonzales to drug trafficking conviction).

9 In Garr, the Ohio Supreme Court clarified that its decision in State v. Chandler, 846 N.E.2d 1063 (Ohio 2006)—
holding that “[a] substance offered for sale must contain some detectable amount of the relevant controlled
substance before a person can be sentenced as a major drug offender under R.C. 2925.03(C)(4)(g)”—“does not
extend to cases where a substance offered for sale is not recovered or tested in order to ascertain whether it contains
a detectable amount of controlled substance.” Id. at 1064. As here, where a drug is not recovered, the Ohio
Supreme Court specified that the offender may be convicted of a drug specification through direct or circumstantial
evidence in a “properly proven case.” Id. at 1067.

10 As noted by the Ohio Court of Appeals, petitioner challenges the sufficiency of the evidence based on “his general
proposition that ‘[the convictions] are based upon the exclusive testimony of lay witnesses and not upon expert
analysis.’ He does not contend than an improper foundation was laid for these unspecified witnesses’ lay
testimony.” (Doc. 6, Ex. 14 at PageID 261). In this case petitioner similarly makes no challenge to the foundation
offered for any of the witnesses against him to offer an opinion as to the identity or weight of the drugs.
21
Dec. 19, 2018) (Report and Recommendation) (deferring to the Ohio Supreme Court’s
interpretation of its own statutes as stated in Gonzales), adopted 2019 WL 2462371 (S.D. Ohio
June 13, 2019).
Finally, petitioner is not entitled to federal habeas relief to the extent that he alleges that
the witnesses against him—drug dealers and co-defendants—were not credible. (See Doc. 9 at
PageID 1766). Petitioner contends that the prosecution relied “solely upon the testimony of drug
addicts and co-defendants, whose testimony was bought and paid for through plea deals to prove
the identity and weight of the substances in these counts to the jury.” (Doc. 1 at PageID 6).
However, it is not the province of this Court to assess the credibility of the witnesses at

petitioner’s trial. See Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (noting that a
habeas court “does not reweigh the evidence or redetermine the credibility of the witnesses
whose demeanor has been observed by the trial court”). Aside from petitioner’s previously
discussed claims regarding lay witness testimony and that no drugs were offered into evidence or
tested as to weight/purity, petitioner offers no other argument regarding the sufficiency of
evidence offered in support of his convictions. See supra n.10. Accordingly, petitioner is not
entitled to federal habeas relief based on his grounds for relief challenging the sufficiency of
evidence.
Accordingly, in sum, petitioner is not entitled to federal habeas relief based on Grounds

One or Two of the petition.
B. Grounds Three and Four

In Grounds Three and Four of the petition, petitioner argues that the trial court erred upon

letting two alleged biased jurors sit on the jury and that his appellate counsel was ineffective
22
for failing to raise his claims on direct appeal. (See Doc. 1 at PageID 9–16).

Petitioner procedurally defaulted the claims asserted in Grounds Three and Four by
failing to raise his claims on direct appeal or—as to the ineffective assistance of appellate
counsel claims—in his application to reopen. With respect to petitioner’s failure to raise the
underlying juror bias claims on direct appeal, the Sixth Circuit Court of Appeals has consistently
recognized that under Ohio law an issue that is not raised by a petitioner on direct appeal is
subsequently barred from review based on the doctrine of res judicata. See, e.g., Norris v.
Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (recognizing procedural default of a claim in habeas
petition where appellant never raised the claim on direct appeal to the Ohio Court of Appeals and
the Ohio Supreme Court); Rust, 17 F.3d at 160-61 (finding adequate and independent state
procedural rule where new claims raised in his second motion for leave to file a delayed direct
appeal were barred by the Ohio Court of Appeals as res judicata because the petitioner had
opportunity to raise constitutional claims during delayed direct appeal but failed to do so); Leroy,
151 F.2d at 100 (holding as adequate and independent state grounds the procedural default of
claims raised for the first time in a petition for writ of habeas corpus on the basis of res judicata
where petitioner failed to raise those claims in his direct appeal to the Ohio Court of Appeals and
to the Ohio Supreme Court).
As noted above, petitioner claimed that his appellate counsel was ineffective for failing to
raise the underlying claims in his 26(B) application, but the Ohio Court of Appeals dismissed the
application based on petitioner’s failure to include an affidavit as required under Rule 26(B).
(See Doc. 10, Ex. 20). Rule 26(B)(2)(d)’s requirement of a sworn affidavit is an adequate and

23
independent state procedural rule. See Thompson v. Anderson, No. 1:08-cv-2913, 2010 WL
4025936, at *7 (N.D. Ohio Mar. 19, 2010) (Report and Recommendation) (collecting cases),
adopted, 2010 WL 4026121 (N.D. Ohio Oct. 13, 2010). See also Jackson v. Sloan, No. 1:17-cv-
1081, 2019 WL 2234597, at *8–9 (N.D. Ohio Apr. 24, 2019) (Report and Recommendation)
(reviewing applicable case law and concluding “failure to comply with Ohio App. R.
26(B)(2)(d), and the state appellate court’s enforcement of the procedural rule, results in a
procedural default foreclosing consideration of any grounds for relief that Petitioner attempted to
raise therein”), adopted, 2019 WL 2233881 (N.D. Ohio May, 23 2019). The Ohio Supreme
Court’s subsequent unexplained decision declining to accept jurisdiction over the appeal (Doc. 6,

Ex. 24), must be presumed to rely upon the same procedural default. See Ylst, 501 U.S. at 803-
04.
Therefore, the claims alleged in Ground Three and Four of the petition are barred from
review in this proceeding unless petitioner can demonstrate cause for and prejudice from his
procedural default or that a fundamental miscarriage of justice will occur if the ground for relief
is not considered on the merits by this Court. See, e.g., Coleman, 501 U.S. at 750; Harris, 489
U.S. at 262; Murray, 477 U.S. at 485. As noted above, no such showing has been made in this
case.11 Because petitioner has not otherwise demonstrated that that a fundamental miscarriage
of justice will occur if his procedurally-defaulted claims for relief are not considered petitioner

11 Because petitioner procedurally defaulted his ineffective assistance of appellate counsel claims, they do not
constitute cause for the default of the underlying claims. Ineffective assistance of counsel can provide cause for a
procedural default unless the ineffective assistance of appellate counsel claim was itself procedurally defaulted. See
Murray, 477 U.S. at 488-89. See also Edwards v. Carpenter, 529 U.S. 446, 452 (2000); Burroughs v. Makowski,
411 F.3d 665, 668 (6th Cir. 2005).

24
has procedurally defaulted and waived the claims raised in Grounds Three and Four of the
petition.
Accordingly, in sum, because petitioner’s grounds for relief are procedurally defaulted or
without merit, respondent’s motion to dismiss should be granted and the petition for a writ of
habeas corpus be dismissed with prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. Respondent’s motion to dismiss (Doc. 7) be GRANTED and the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
2. A certificate of appealability should not issue with respect to the claims alleged in the

petition, which this Court has concluded are waived and thus procedurally barred from review,
because under the first prong of the applicable two-part standard enunciated in Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000), “jurists of reason” would not find it debatable whether
this Court is correct in its procedural ruling.12
A certificate of appealability should not issue with respect to the claims alleged in the
petition, which have been addressed on the merits herein, because petitioner has not stated a
“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to
deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed.

R. App. P. 22(b).

12 Because this Court finds that the first prong of the Slack standard has not been met in this case, it need not address
the second prong of Slack as to whether or not “jurists of reason” would find it debatable whether petitioner has
stated a viable constitutional claim in any of his grounds for relief. See Slack, 529 U.S. at 484.
25
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and therefore DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

26
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TYRONE JEWETT, Case No. 1:18-cv-406
Petitioner,
Barrett, J.
vs. Bowman, M.J.

WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10373733. Public record. Not legal advice.