Fetherolf v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL FETHEROLF,

CASE NO. 2:19-cv-00168

Petitioner, Judge Edmund A. Sargus, Jr.

Chief Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition and Merit Brief in Support,

Respondent’s Return of Writ, Petitioner’s Reply and Notice of State Court Exhaustion, and the

exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this

action be DISMISSED.

Petitioner’s Motion to Amend and Stay (ECF No. 53) is DENIED.

Petitioner’s Motion for Nonpublication of Documents and Motion for Evidentiary

Hearing (ECF Nos. 59, 60) are DENIED.

I. Facts and Procedural History

Petitioner challenges his convictions after a jury trial in the Union County Court of

Common Pleas on charges of rape and intimidation of a witness. The Ohio Third District Court

of Appeals summarized the facts and procedural history of the case as follows:

{¶ 3} On January 23, 2015, a superseding indictment was filed against Fetherolf.

The superseding indictment alleged 33 counts against Fetherolf, beginning with the

same allegation of Rape previously indicted (Count 1) and the same allegation of

Gross Sexual Imposition previously indicted (Count 2). The superseding indictment

then also alleged fifteen counts of Rape in violation of R.C. 2907.02(A)(1)(b), all

felonies of the first degree (Counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29,

31), fifteen counts of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4),

all felonies of the third degree (Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28,

30, 32), and one count of Intimidation of an Attorney, Victim or Witness in a

Criminal Case in violation of R.C. 2921.04(B), a felony of the third degree (Count

33). The new Rape and Gross Sexual Imposition charges were related to similar

allegations of digital penetration that Fetherolf allegedly perpetrated against A.C.

when Fetherolf had physical custody of A.C. on weekends between March of 2011

and September of 2013. The Intimidation of a Witness charge alleged that Fetherolf

threatened to spank A.C. if she told anyone about the alleged incidents, and that she

would be in trouble if she told anyone. Fetherolf pled not guilty to the charges.

{¶ 4} On March 7–10, 2016, a jury trial was held. [FN]2 Testimony at trial

indicated that A.C. was born in March of 2006 to mother Heather C., but it was not

determined that Fetherolf was A.C.’s father until a DNA test was done when A.C.

was approximately two and a half years old. After Fetherolf was determined to be

A.C.’s father, Heather testified that she contacted Fetherolf and asked if he wanted

to be involved in A.C.’s life. Fetherolf indicated that he did and Heather began

providing Fetherolf with visitation. [FN]3 Heather testified that as time passed she

started allowing overnight visits between A.C. and Fetherolf and that those

overnight visits grew into every other weekend.

FN2: A visiting judge presided over the trial.

FN3: Heather testified that all visitation was established outside of court

proceedings.

{¶ 5} Heather testified that on Friday September 20, 2013, she dropped A.C. off

with Fetherolf for his weekend visitation with the intent being that Fetherolf or his

grandmother would return A.C. on Sunday. Testimony indicated that Fetherolf was

staying in his grandmother’s trailer at the time and that he primarily exercised his

visitation with A.C. at the trailer.

{¶ 6} Heather indicated that she was contacted by Fetherolf on Saturday September

21st and Fetherolf asked her to drop off extra clothes for A.C., which she did. Then,

Heather testified that she received a text message from Fetherolf on Sunday

September 22, 2013, stating that his grandmother would bring A.C. home on

Monday morning instead of Sunday. On Monday morning, Heather testified that

she received a message from Fetherolf wherein he stated that he woke up late and

that he or his grandmother would bring A.C. home that night or take her directly to

school on Tuesday, September 24, 2013. Heather testified that she was upset with

the situation.

{¶ 7} Heather indicated that the next morning, Tuesday, she received a call from

the school inquiring about A.C. because she was not at school. Heather then began

trying to contact Fetherolf. Heather testified that when she could not get in contact

with Fetherolf, she called the police. The police located Fetherolf that day and

facilitated A.C.’s return to Heather.

{¶ 8} After A.C. was returned to her, Heather took A.C. home. Heather commented

that A.C. was dirty and looked like she needed a bath. Heather indicated that it was

around lunchtime and A.C. was hungry so Heather made her food. Heather testified

that A.C. looked “down” but was responsive. Heather testified that she asked A.C.

about her weekend and eventually asked if A.C. got in trouble at Fetherolf’s.

Heather testified that A.C. put her head down, which was unusual behavior for A.C.

{¶ 9} Heather testified that A.C. asked to take her lunch upstairs to her room.

Heather indicated that it was fine and permitted A.C. to go upstairs. Heather

testified that shortly thereafter, Heather’s sister Kara went upstairs to talk to A.C.

and a few minutes later Kara came down, “pale” with “a look of shock” and said

that Heather needed to talk to A.C. (March 7, 2016, Tr. at 196).

{¶ 10} Heather testified that she then talked to her daughter and asked what was

wrong repeatedly and Heather testified that A.C. initially told her that she did not

want to say anything because she was afraid of being spanked or getting in trouble.

Heather testified that she conveyed to A.C. that she was not going to get into trouble

and that A.C. then told her that Fetherolf touched her “in her butterfly,” and

indicated her vagina. (Id. at 197). Heather testified that she asked A.C. what she

meant and A.C. demonstrated with her hand.

She put her palm up. She took two fingers up and started going up

and down like this on her palm and then she stuck one finger inside

of her palm. And I asked her what she meant by that and she said

that he had stuck a finger inside of her.

(Id.) Heather testified that A.C. also told her that Fetherolf threatened to spank A.C.

if A.C. did not allow him to touch her “butterfly.” (March 7, 2016, Tr. at 197).

Heather testified that A.C. indicated that similar acts had been going on since A.C.

was between four and five years old. Kara, who had already talked to A.C. at that

point, testified that A.C. had told her essentially the same story, that Fetherolf

touched her in her “no-no” parts, indicating her vaginal area. (March 8, 2016, Tr.

at 16).

{¶ 11} Heather testified that after hearing A.C.’s story she was upset and she went

downstairs to make some phone calls. Kara took A.C. to a nearby park for 20–30

minutes while Heather made the calls. Heather testified that she called her mother,

Linda, who came to the house. Linda also spoke with A.C. and Linda testified that

A.C. revealed to her that Fetherolf had “stuck his fingers up in [her]” and that it had

been going on since A.C. was four or five years old. (Id. at 43). According to Linda,

A.C. also said that she did not tell anyone because her father had threatened to

spank her if she did. [FN]4

FN4: Fetherolf’s attorney objected to testimony related to A.C.’s disclosures to

Heather, Kara, and Linda. The trial court overruled these objections stating that

they were, inter alia, excited utterances. Fetherolf does not claim on appeal that it

was error for the trial court to permit these particular statements.

{¶ 12} After Heather finished making phone calls to, inter alia, her pediatrician,

A.C. was taken to a nearby hospital and referred to a separate hospital that could

more adequately handle a sexual assault examination. A.C. was then taken to the

emergency room at Nationwide Children’s Hospital by Heather, Kara, and Kara’s

boyfriend.

{¶ 13} At the emergency room, A.C. met with a number of medical professionals

including an emergency room physician and a Sexual Assault Nurse Examiner

(“SANE”). A.C. also met with a social worker, Lauren Kato, who took A.C.’s initial

history. A.C. informed the social worker and medical personnel that Fetherolf had

been drinking and had “swirl[ed]” his fingers on her “bad spot.” (March 8, 2016,

Tr. at 109). Kato testified that A.C. indicated that Fetherolf threatened to spank

A.C. if she did not cooperate. Kato testified that A.C.’s disclosure was consistent

with what A.C. had told her mother based on Kato’s interview with Heather.

{¶ 14} Shortly thereafter on the same date, A.C. was physically examined by Dr.

Helen McManus, an emergency room physician. Dr. McManus testified that she

used the initial history provided by Kato to direct her care. Dr. McManus testified

that although she did not find any marks on A.C. the exam was consistent with an

allegation of touching, which would often not leave any marks. [FN]5 Dr.

McManus testified that following her examination she concluded that A.C. had

been sexually abused.

FN5: Dr. McManus noted in her report that “[i]n more than 90% of cases of

documented sexual abuse the exam is normal.” (State’s Ex. 5 p. 4).

{¶ 15} In addition to a physical examination of A.C. by Dr. McManus, a rape kit

was performed on A.C. by Teresa Warnimont, a SANE. Warnimont collected

evidence and submitted it to BCI for testing. All swabs of A.C. checking for semen

and amylase were negative. However, DNA testing revealed that in the crotch

portion of A.C.’s underwear a male’s DNA was present, which was consistent with

a sample of Fetherolf’s DNA. [FN]6 The DNA analyst testified at trial that the

DNA present in A.C.’s underwear was more than what she would usually find with

simply touching or handling underwear.

FN6: “The partial Y–Chromosome DNA profile from the crotch and front panel of

the underwear (Item 1.7.1A) is consistent with Michael Fetherolf.” (State’s Ex. 21).

Further, the “estimated frequency 1 in every 4167 male individuals.” (Id.)

{¶ 16} A videotaped deposition of A.C. was played for the jury. [FN]7 The

deposition was dated May 18, 2015, which would have been approximately a year

and a half after the alleged incidents of September 2013. During the deposition,

A.C. often said she did not remember events. She even stated she could not

remember the answers to some questions that she was asked that were totally

unrelated to the events in question. [FN]8 A.C. was tearful in the deposition and

appeared reluctant to testify at all. At one point the deposition was stopped because

A.C. was crying and she wanted to see her mother. When the deposition resumed,

A.C. said she had gotten scared. In fact, on multiple occasions A.C. indicated that

she was scared, and she stated that she did not want to talk about Fetherolf because

she was scared. The one emphatic thing A.C. did testify to was that she did not want

to see Fetherolf. [FN]9

FN7: The parties stipulated that A.C. was unavailable to testify at trial.

FN8: At the beginning of the deposition, the judge presiding over the deposition

indicated that he had found A.C. competent to testify.

FN9: Through most of the deposition, A.C. was quiet and reluctant to say anything,

answering most questions with some variation of “I can’t remember.” However,

she was very definite in stating that she did not want to see Fetherolf. She was

much louder and emphatic. Heather also testified that since the incident A.C.

wanted nothing to do with her father.

{¶ 17} A.C. never did give an account of what Fetherolf had allegedly done to her

in her deposition. When asked what occurred on the September 2013 weekend in

question, she stated that she could not remember. However, when she was asked if

she thought she had told people what had happened to her, she stated that she

“thought so.” Separately in the deposition she stated that she told her Aunt Kara

“what [her] dad did,” but she never defined what that was.

{¶ 18} Dennis Flanagan, a detective with the City of Marysville testified as to his

involvement with this case. He testified that he tried to contact Fetherolf shortly

after the accusations were made to get his side of the story and Fetherolf called

Detective Flanagan one night just after midnight. Detective Flanagan testified that

Fetherolf sounded irate and intoxicated. Detective Flanagan testified that Fetherolf

called the allegations against him “bullshit” and stated that he would come in for

an interview. Detective Flanagan testified that Fetherolf never came in and that

Detective Flanagan was eventually contacted months later and informed that

Fetherolf was apprehended elsewhere.

{¶ 19} The State also presented the testimony of Fetherolf’s probation officer and

a paramour of Fetherolf’s, Pam Hawkins. Hawkins testified that she left her

husband to be with Fetherolf in the fall of 2013, around the time these allegations

surfaced. Hawkins testified that she thought Fetherolf was on felony probation for

failure to pay child supportFN10 and that she and Fetherolf left Ohio together, at

Fetherolf’s suggestion, to go to New York and Pennsylvania. Hawkins testified that

one evening while with Fetherolf she saw him looking at inappropriate pictures of

underage girls on a tablet. She also testified that Fetherolf purchased her a wig,

thong and a skirt to dress her up like a “little girl.” (March 8, 2016, Tr. at 137).

FN10: Any child support related accusations were not regarding A.C. They

involved another child or other children.

{¶ 20} Hawkins testified that things soured between her and Fetherolf and she

turned herself in for an outstanding warrant. Hawkins testified that she went to jail

and when she got out she alerted officers to Fetherolf’s location. At that time, she

believed he had an active warrant related to failure to pay child support.

{¶ 21} At the conclusion of the State’s case, Fetherolf’s counsel made a Crim.R.

29 motion for acquittal on all counts. The trial court sustained that motion with

regard to 30 counts of the superseding indictment. Specifically, the trial court

dismissed counts 3–32 of the superseding indictment on the basis that there was

insufficient evidence to support convictions for Rape or GSI for any instances other

than the September 2013 instance after which A.C. promptly disclosed what

happened. The trial court indicated that the other allegations related to incidents

that purportedly occurred between 2011 and 2013 were too indefinite and lacked

sufficient proof to submit to the jury.

{¶ 22} The remaining three counts against Fetherolf, Rape, Gross Sexual

Imposition, and Intimidation of a Witness related to the September 2013 incident,

were then submitted to the jury. The jury ultimately found Fetherolf guilty of all

three counts.

{¶ 23} Prior to Fetherolf’s sentencing, he filed multiple pro se motions including a

motion for a new trial, which alleged, inter alia, that the State failed to disclose

some prior convictions of one of its witnesses, Pamela Hawkins. At Fetherolf’s

sentencing hearing, the trial court overruled Fetherolf’s new trial motion, with the

exception of his argument that the State failed to disclose some of the prior

convictions of Hawkins. The trial court indicated that it would allow the State to

respond in writing to Fetherolf’s contention and that the trial court would rule on

that issue related to Fetherolf’s motion for a new trial after it received the State’s

response.

{¶ 24} As to Fetherolf’s sentencing, the trial court merged Fetherolf’s convictions

for Rape and Gross Sexual Imposition, finding that they were allied offenses of

similar import, and the State elected to proceed to sentence Fetherolf on the Rape

conviction. The trial court then ordered Fetherolf to serve 25 years to life in prison

on the Rape conviction, of which 25 years was a mandatory prison term. Fetherolf

was sentenced to serve 30 months in prison on the Intimidation of a Witness

conviction, concurrent to the Rape sentence.

{¶ 25} On April 6, 2016, a judgment entry memorializing Fetherolf’s sentence was

filed. Fetherolf filed a notice of appeal from that judgment.

{¶ 26} On April 21, 2016, the State filed a memorandum in opposition to

Fetherolf’s motion for a new trial based on the State allegedly failing to disclose

prior convictions of Hawkins. Fetherolf then filed a pro se response. On May 24,

2016, the trial court filed an entry denying Fetherolf’s motion for a new trial.

Fetherolf filed a notice of appeal from that judgment.

{¶ 27} Fetherolf’s appeals from his sentencing entry and from the denial of his

motion for a new trial were consolidated, and he asserts the following assignments

of error for our review.

Assignment of Error No. 1

The trial court erred when it allowed Dr. McManus, S.A.N.E. nurse Teresa

Warnimont, and Caseworker Kaitlin Ruddy to testify to the veracity of A.C.’s

statements.

Assignment of Error No. 2

The trial court erred when it failed to exclude: (1) details of Mr. Fetherolf’s prior

conviction and sentence when he did not testify at trial, and (2) other acts evidence

which had no bearing on any fact of consequence in contravention of Evid.R.

404(B)[.]

Assignment of Error No. 3

The trial court erred when it denied Mr. Fetherolf a new trial after the State failed

to turn over to defense counsel all of Pamela Hawkins’ prior convictions, including

a recent conviction for falsification.

Assignment of Error No. 4

Michael Fetherolf’s right to a fair trial was violated by repeated instances of

prosecutorial misconduct and deprived Mr. Fetherolf of a fair trial.

State v. Fetherolf, 3rd Dist. Nos. 14-16-10, 14-16-11, 2017 WL 1316207, at *1-5 (Ohio Ct. App.

April 10, 2017). On April 10, 2017, the appellate court affirmed the judgment of the trial court.

On December 6, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State

v. Fetherolf, 151 Ohio St.3d 1458 (Ohio 2017). On February 14, 2018, the Ohio Supreme Court

denied Petitioner’s motion for reconsideration. State v. Fetherolf, 151 Ohio St.3d 1529 (Ohio

2018).

On April 25, 2017, Petitioner filed a post-conviction petition in the state trial court,

asserting the denial of the effective assistance of trial counsel. (ECF No. 13-1, PAGEID # 1184.)

On June 7, 2017, the trial court denied that action, concluding that Petitioner’s claims of ineffective

assistance of trial counsel were barred by res judicata. (PAGEID # 1203.) Petitioner did not file

an appeal.

On July 6, 2017, Petitioner filed an application to reopen the appeal pursuant to Ohio

Appellate Rule 26(B). (PAGEID # 1207.) On August 16, 2017, the appellate court denied the

Rule 26(B) application. (PAGEID # 1254.) On December 6, 2017, the Ohio Supreme Court

declined to accept jurisdiction of the appeal. (PAGEID # 1330.) On February 14, 2018, the

Ohio Supreme Court denied Petitioner’s motion for reconsideration. (PAGEID # 1339.)

On June 15, 2018, and June 25, 2018, Petitioner filed a Motion for Relief from Judgment

Pursuant to Civil Rule 60(B)(5) Fraud Upon the Court. (ECF No. 13-1, PAGEID # 1340, 1382.)

On August 7, 2018, he filed a Motion to Supplement 60(B)(5) Motion Fraud Upon the Court.

(PAGEID # 1426.) On October 4, 2018, the trial court denied those actions as untimely post-

conviction actions. (PAGEID # 1473.) Petitioner apparently did not file an appeal.

On March 1, 2019, and June 10, 2019, Petitioner filed a Motion for Leave to File a New

Trial Motion and Motion for New Trial. (ECF No. 13-1, PAGEID # 1475, 1527.)1 On June 19,

1 Petitioner argued that he had new evidence establishing that the prosecutor made false and improper statements

regarding DNA evidence and that he was denied the effective assistance of counsel due to his attorney’s failure to

obtain a defense expert on DNA evidence. (ECF No. 13-1, PAGEID # 1478-84.) He submitted a letter from Dr.

Theodore D. Kessis dated February 18, 2019 in support, indicating as follows:

It appears that the Bureau of Criminal Investigation (BCI) collected and tested a variety of

evidentiary items in connection with a sexual assault case against you. Serology testing of the

evidence included in the rape kit taken from [A.C.] did not demonstrate the presence of either semen,

2019, the trial court denied the motion for leave to file a motion for a new trial. (PAGEID #

1544.) On October 28, 2019, the appellate court affirmed the judgment of the trial court holding

that Petitioner had failed to present any new evidence and that the action was barred under

Ohio’s doctrine of res judicata. (Judgment Entry, ECF No. 54-1.) On January 21, 2020, the

Ohio Supreme Court declined to accept jurisdiction of the appeal. (ECF No. 66-1, PAGEID #

3600.)

Petitioner also has pursued other state court action that does not affect resolution of this

action and will not be addressed here. (See Return of Writ, ECF No. 14, PAGEID # 2348.)

On January 19, 2019, Petitioner filed this petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. He asserts that he was denied a fair trial due to admission of other bad acts

evidence (claim one); that the State improperly withheld and concealed exculpatory evidence

(claim two); that he was denied the right to confront the witnesses against him (claim three); that

the prosecutor obtained his convictions by misrepresentation, falsification of evidence, and

sperm, blood, or saliva on any of the items tested. DNA testing by BCI demonstrated the presence

of a male ySTR DNA profile consistent with the DNA profile possessed by you.

With respect to the significance of BCI’s testing results, it[] should first be noted that the lab’s

negative serologic results indicate that the failed to identify the biologic source of the DNA profile

they report as being consiste[nt] with that possessed by you. Given the small amount of DNA

detected and the absence of an established biologic source such as semen, blood or saliva, it is

possible that the ySTR profile detected by the lab may have come to be deposited on the underwear

via a casual or innocent DNA transfers event.

It’s also important to [] point out that while the DNA profile reported is consistent with yours, it is

also shared by approximately 1 in 4,167 males, in addition to any male relative paternally related to

you.

Last, I would note that in the absence of knowing the biological source of the DNA detect (semen,

saliva, blood etc…..) a DNA test alone tell[s] one very little with respect to how the DNA was

deposited, where the item was when the DNA was deposited, or when the DNA was deposited.

Beyond the two laboratory reports and some case notes I have received to date, the absence of

additional documents to review makes it difficult for me to comment beyond what I have stated

here. To do so I would need the full laboratory case file associated with the testing in the case.

(ECF No. 13-1, PAGEID # 1487-88.)

submission of perjured testimony from prosecution witnesses (claim four); that he was denied

due process and the right to an impartial jury by the presentation of false evidence, perjury and

prosecutorial misconduct (claim five); that the prosecutor and expert improperly commented on

the veracity of witnesses (claim six); that he was denied the effective assistance of trial counsel

(claim seven); that he was denied the effective assistance of appellate counsel (claim eight); and

that the trial court improperly permitted admission of DNA evidence (claim nine). It is the

position of the Respondent that Petitioner’s claims are procedurally defaulted or without merit.

II. Motion to Amend and Stay Petition

Petitioner has filed a motion to amend the Petition pursuant to Rule 15(a) of the Federal

Rules of Civil Procedure to add new claim(s) based on the purported discovery of new evidence

and claims he presented these claims in his March 1, 2019 and June 10, 2019, motion for a new

trial. Petitioner has attached a copy of the proposed Amended Petition (ECF No. 53-7, PAGEID

# 2783) and requests a stay of proceedings pending resolution of his pending appeal in the Ohio

Supreme Court. Petitioner’s request for a stay is now moot, as he has since filed a Notice of

State Court Exhaustion Requirements (ECF No. 66), and the record does not indicate that he has

any remaining unexhausted claims for relief. Petitioner also has attached various documents

from the state record in support, including responses by the State to Petitioner’s discovery

request, a copy of Face Book posts on the account of Pamela Sue Hawkins Breece, a treatment

summary on the alleged victim from Mid Ohio Psychological Services, a copy of the laboratory

reports related to DNA testing in the case, and a letter dated February 18, 2019, from Dr.

Theodore D. Kessis responding to Petitioner’s request for an expert opinion on the DNA testing.

In response to the Respondent’s opposition to the motion to amend, on December 2, 2019,

Petitioner submitted yet a new proposed Amended Petition (ECF No. 56) and Amended Merits

Brief, in lieu of that he previously filed. (ECF No. 56-3.) In that filing, Petitioner clarifies that

he seeks to amend the petition to assert the following claims: The trial court abused its

discretion and denied Petitioner due process by failing to hold a hearing on Petitioner’s motion

for a new trial and denying the motion for a new trial based on new opinion evidence rebutting

the false and misleading evidence presented by the State’s expert (claim nine); and Petitioner

was denied due process and the effective assistance of appellate counsel based on his attorney’s

failure to presented meritorious claims requested by Petitioner, the misstatement of expert

testimony, falsification of testimony, and waiving oral argument (claim ten). (ECF No. 56-3,

PAGEID # 3318.) As discussed, Respondent opposes Petitioner’s requests, arguing, inter alia,

that Petitioner has not acted in good faith and a stay of proceedings would not be not appropriate.

(ECF No. 55.)

Rule 15 of the Federal Rules of Civil Procedure governs motions to amend in § 2254

proceedings. See Rose v. Warden, Chillicothe Corr. Inst., No. 1:15-cv-353, 2018 WL 1425971,

at *4 (S.D. Ohio March 22, 2018) (citing 28 U.S.C. § 2242; Rule 12 of the Rules Governing

Section 2254 Cases). Under the provision of Rule 15(a)(2), where the opposing party objects to

the amendment, “[t]he court should freely give leave when justice so requires.” The Sixth

Circuit has explained:

Under Rule 15(a), leave to amend a pleading shall be freely given when justice so

requires. This court has explained the factors that a district court should consider

when deciding whether to grant leave to amend. Several elements may be

considered in determining whether to permit an amendment. Undue delay in filing,

lack of notice to the opposing party, bad faith by the moving party, repeated failure

to cure deficiencies by previous amendments, undue prejudice to the opposing

party, and futility of amendment are all factors which may affect the decision. Delay

by itself is not sufficient reason to deny a motion to amend. Notice and substantial

prejudice to the opposing party are critical factors in determining whether an

amendment should be granted.

Coe v. Bell, 161 F.3d 320, 341–42 (6th Cir.1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130

(6th Cir. 1994)).

Petitioner’s proposed new claim(s), however, plainly fail to provide him a basis for relief

and would be futile.

The trial court denied Petitioner’s motion for a new trial as untimely and without merit,

finding that Kessis’ letter did not support Petitioner’s claims of prosecutorial misconduct or

ineffective assistance of counsel.2 This Court agrees with that determination. The appellate

court affirmed the trial court’s judgment, finding that Kessis’ statement did not constitute new

evidence, because Petitioner knew about the DNA evidence prior to trial and had raised

arguments related to the DNA evidence in his prior motion for a new trial, petition for post-

conviction relief, and motions for relief from judgment. The appellate court denied Petitioner’s

claim ineffective assistance of counsel as barred under Ohio’s doctrine of res judicata.

(Judgment Entry, ECF No. 53-8, PAGEID # 2950-51.)

That Fetherolf avers Dr. Kessis’s affidavit is a new analysis of [] DNA evidence

does not transform the DNA evidence into new evidence. Accordingly, because

Fetherolf brought or could have brought his arguments in his direct appeal or in

other prior post-conviction motions, Fetherolf is barred by the doctrine of res

2 The trial court held as follows:

[A]ssuming. . . that Defendant was unavoidably prevented from discovery of Exhibit A, and accepts

Exhibit A as newly discovered evidence, the Defendant has failed to show the Court that the new

evidence “discloses a strong probability that it will change the result if a new trial is granted.” . . .

Dr. Kessis appears to opine that the serology test admitted in the Defendant’s trial does not exclude

the Defendant (1 in 4167 males) and may have been deposited on the underwear of the victim by

casual or innocent contact. The testimony at trial appears to exclude contact with another male. In

addition, the most damaging evidence against the Defendant was the victim’s admissible hearsay

testimony that the Defendant touched her “in her butterfly,” indicating her vagina. (Tr. 197). On

another occasion the victim told her mother that the Defendant “stuck his fingers up in [her]” and it

had been going on since the victim was four or five years old. . . .

If Defendant’s attorney had obtained Dr. Kessis prior to trial and Dr. Kessis had testified consistent

with his letter (Exhibit A), the testimony would have supported the States’ theory that Defendant

could not have been excluded by the serology evidence.

(Decision Denying Defendant’s Motions for a New Trial, ECF No. 13-1, PAGEID # 1546-47.)

judicata from claiming that he was unavoidably prevented from discovering the

information contained in that affidavit.

(PAGEID # 2951; PAGEID # 2953-54.)

Although Petitioner now disputes that determination, he nonetheless has thereby

procedurally defaulted his proposed amended claims relating to prosecutorial misconduct and

ineffective assistance of counsel, barring them from this Court’s review. See Petrone v. Bunting,

2015 WL 9918661, at *9-10 (N.D. Ohio Dec. 10, 2015) (enforcing procedural default based on

state court’s dismissal of motion for a new trial as untimely) (citations omitted).

[W]here the state appellate court interpreted Crim R. 33 in accordance with Ohio

law, a federal habeas court is bound by that ruling. See Veliev v. Warden,

Chillicothe Corr. Inst., No. 2:12–CV–00346, 2014 WL 4805292, at *13 (S.D.Ohio

Sept. 26, 2014) (citing Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.2005) (this

court must “defer to a state court’s interpretation of its own rules of evidence and

procedure”); Bennett v. Warden, Lebanon Correctional Inst., 782 F.Supp.2d 466,

478 (S.D. Ohio March 15, 2011) (“[T]he state courts are the 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.”) (citing Estelle v. McGuire, 502 U.S. 62, 67, 68, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991) (“it is not the province of a federal habeas court to re-

examine state-court determinations on state law questions.”)).

Id. at *10.

Moreover, Petitioner’s claim that the state trial court abused its discretion in denying his

motions for a new trial without an evidentiary hearing does not present an issue appropriate for

federal habeas corpus relief. See Thornton v. Buchanan, No. 2:17-cv-702, 2019 WL 2373771, at

*7 (S.D. Ohio June 5, 2019) (noting that the United States Supreme Court has never held that it

is unconstitutional to deny a motion for a new trial without a hearing, and that this claim

therefore does not provide a basis for relief). “‘State collateral proceedings are not

constitutionally required as an adjunct to the state criminal proceedings,’” so there can be no

federal constitutional requirement of an evidentiary hearing in state post-conviction

proceedings.” Id. (citing Murray v. Giarratano, 492 U.S. 1, 10 (1989)). “[H]abeas corpus

cannot be used to mount challenges to a state’s scheme of post-conviction relief.” Leonard v.

Warden, 846 F.3d 832, 854 (6th Cir. 2017) (citing Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.

2001)) (citing Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986); Cress v. Palmer, 484 F.3d

844, 853 (6th Cir. 2007)). “[T]he Sixth Circuit has consistently held that errors in post-

conviction proceedings are outside the scope of federal habeas corpus review.” Farrow v.

Anderson, No. 1:08CV1429, 2009 WL 3004024, at *5 (N.D. Ohio Sept. 15, 2009) (citing Kirby,

794 F.2d at 246-47; Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002)). This is because “‘the

essence of habeas corpus is an attack by a person in custody upon the legality of that custody,

and . . . the traditional function of the writ is to secure release from illegal custody.’” Id.

(quoting Kirby, 794 F.2d at 246 (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973))).

It is settled law in the Sixth Circuit that alleged errors in post-conviction

proceedings, such as the failure to grant evidentiary hearings, are outside the scope

of federal habeas review. Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009)

(petitioner’s claim that the state court improperly denied him an evidentiary hearing

not cognizable in habeas corpus proceedings); Cress v. Palmer, 484 F.3d 844, 853

(6th Cir. 2007); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986) (“We decline to

allow the scope of the writ to reach this second tier of complaints about deficiencies

in state post-conviction proceedings.”).

Johnson v. Lazaroff, No. 1:15CV43, 2016 WL 791609, at *15 (N.D. Ohio Jan. 6, 2016).

Petitioner also seeks to amend the petition to include an additional claim of ineffective

assistance of appellate counsel. (Amended Petition, ECF No. 56-2, PAGEID # 3191.) However,

Petitioner already has raised a claim of ineffective assistance of appellate counsel. (Petition,

ECF No. 1, PAGEID # 17.) He proposes to amend the Petition to add at least some duplicative

arguments in support. However, Petitioner has already filed lengthy arguments in support.

Nothing prevented him earlier from raising these same arguments. Moreover, Petitioner has

procedurally defaulted any new proposed amended claims of ineffective assistance of appellate

counsel that he did not present in Rule 26(B) proceedings. See Williams v. Bagley, 380 F.3d 932,

971 (6th Cir. 2004); Davis v. Lazaroff, No. 1:16-cv-2131, 2018 WL 8139300, at *6 (N.D. Ohio

Oct. 17, 2018) (“Any ineffective-assistance claims that [a petitioner] could have properly

asserted, but did not, are defaulted under the Ohio doctrine of res judicata.”) (citing Jacobs, 265

F.3d at 417; Coleman, 244 F.3d at 538; Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (syllabus,

¶9)).

Amendment of the petition at this time with procedurally defaulted claims would be an

exercise in futility. See United States v. Gibson, 424 F. App’x 461, 466-67 (6th Cir. 2011). The

amendment of the petition with Petitioner’s proposed new claims additionally would cause

undue prejudice. Petitioner filed this action approximately one year ago. Respondent has

already filed a Return of Writ. (ECF No. 14). Petitioner has filed a lengthy Merit Brief and

Reply. (ECF Nos. 6, 56.) The matter is ripe for adjudication. It would be unduly prejudicial to

require Respondent to respond to entirely new claims and lengthy arguments in support in what

appears to be a revised Merit Brief including revised arguments and unidentified alterations in

the substance of Petitioner’s claims at this stage in the litigation. See Glenn v. Coleman, No.

3:13-cv-1090, 2014 WL 4983661, at *7 (N.D. Ohio Oct. 6, 2014) (denying untimely filed motion

to amend the petition with new claims as unduly prejudicial).

Petitioner’s Motion to Amend and Stay (ECF No. 53) therefore is DENIED.

III. Motion for Non Publication of Documents

Petitioner has filed a motion requesting that this Court’s rulings remain unpublished or,

liberally construing his pleadings, that they be filed under seal in view of the alleged victim’s age

as a minor child.3

3 The alleged victim was born in March 2006. See State v. Fetherolf, 2017 WL 1316207, at *1.

“Every court has supervisory power over its own records and files.” Nixon v. Warner

Commc’ns, 435 U.S. 589, 598 (1978). Historically, however, there has been a presumption of

openness and public access to judicial proceedings and documents. Press-Enterprise Co. v.

Superior Court of Cal. (Press-Enterprise II), 478 U.S. 1, 10 (1986); Press-Enterprise Co. v.

Superior Court of Cal. (Press-Enterprise I), 464 U.S. 501, 507 (1984); Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555 (1980). Addressing the presumption of access to judicial

proceedings, in Press-Enterprise II, the Supreme Court held that there is a qualified right of

public access to judicial proceedings, rooted in the First Amendment, if there is “a tradition of

accessibility” to the nature of the proceedings involved and if public access “plays a significant

positive role in the functioning of the particular process in question.” Press-Enterprise II, 478

U.S. at 8-9. The “right of access is, in part, founded on the societal interests in public awareness

of, and its understanding and confidence in, the judicial system.” Application of National

Broadcasting Co., Inc., 828 F.2d 340, 345 (6th Cir. 1987) (internal quotation marks and citations

omitted.) Thus, “the presumptive right of the public to inspect and copy judicial documents and

files[,]” which the United States Court of Appeals for the Sixth Circuit as described as a “long-

established legal tradition” limits a court’s discretion to seal records from public inspection. In

re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 473–74 (6th Cir. 1983); see also Brown &

Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178–80 (6th Cir. 1983) (discussing the

justifications for the “strong presumption in favor of openness”). “Placing court pleadings under

seal is generally disfavored, in view of the long tradition valuing public access to court

proceedings.” Garner v. Mitchell, No. 1:98-cv-870, 2010 WL 11606310, at *1 (S.D. Ohio April

28, 2010) (citing Proctor & Gamble Co. v. Banker’s Trust Company, 78 F.3d 219, 227 (6th Cir.

1996). Therefore, “[o]nly the most compelling reasons can justify non-disclosure of judicial

records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)

(internal quotation marks and citation omitted). The Sixth Circuit has indicated that exceptions

fall into two categories: (1) exceptions “based on the need to keep order and dignity in the

courtroom”; and (2) “content-based exemptions,” which “include certain privacy rights of

participants or third parties, trade secrets, and national security.” Brown & Williamson Tobacco

Corp., 710 F.2d at 1179 (citations omitted). The Sixth Circuit has emphasized the public’s

“strong interest in obtaining the information contained in the Court record.” Shane Grp., Inc.,

825 F.3d at 305 (internal quotation marks and citation omitted); see also In re Nat’l Prescription

Opiate Litig., 927 F.3d 919, 939 (6th Cir. 2019) (“‘[T]he greater the public interest in the

litigation’s subject matter, the greater the showing necessary to overcome the presumption of

access.’”) (quoting Shane Grp., Inc., 825 F.3d at 305). Accordingly, district courts must

consider “each pleading [to be] filed under seal or with redactions and to make a specific

determination as to the necessity of nondisclosure in each instance” and must “bear in mind that

the party seeking to file under seal must provide a ‘compelling reason’ to do so and demonstrate

that the seal is ‘narrowly tailored to serve that reason.’” In re Nat’l Prescription Opiate Litig.,

927 F.3d at 940 (quoting Shane Grp., 825 F.3d at 305). If a district court “permits a pleading to

be filed under seal or with redactions, it shall be incumbent upon the court to adequately explain

‘why the interests in support of nondisclosure are compelling, why the interests supporting

access are less so, and why the seal itself is no broader than necessary.’” Id. (quoting Shane

Grp., Inc., 825 F.3d at 306).

Here, the Court is not persuaded compelling interests justify the nonpublication or sealing

of records or proceedings in this matter. Further, the public interest in these habeas corpus

proceedings, particularly in view of the crimes charged, is strong, and the record does not reflect

any unusual circumstances to justify Petitioner’s request. To the contrary, the name of the

alleged victim has been redacted from the state court record, as it will also be here, and her

privacy protected in that manner.

Petitioner’s Motion for Non Publication of Documents (ECF No. 59) is DENIED.

IV. Motion for Evidentiary Hearing

Petitioner seeks an evidentiary hearing in support of habeas corpus claims seven, eight,

and nine, in which he asserts that he was denied the effective assistance of trial and appellate

counsel, and denied a fair trial based on admission of DNA evidence. Petitioner seeks to call the

prosecutor, police, defense counsel, and Dr. Kessis to testify at such a hearing, in order to further

develop the factual basis for these claims. (ECF No. 60, PAGEID # 3507.) Petitioner argues

that he acted diligently in attempting to do so in the state courts.4

Respondent opposes Petitioner’s request. (ECF No. 61.) It is the Respondent’s position

that Petitioner has procedurally defaulted his claim of ineffective assistance of trial counsel. In

response, Petitioner argues that the Respondent has misconstrued his claims, as did the state

courts. Petitioner maintains that Kessis’ letter contradicts and rebuts the false and misleading

testimony of prosecution witnesses and the prosecutor regarding DNA evidence. (See

Petitioner’s Response to Respondent’s Opposition to his Evidentiary Hearing, ECF No. 63.)

4 This Court does not agree. Petitioner’s off-the-record claims would properly be raised in post-conviction

proceedings. The state trial court denied Petitioner’s April 2017 Petition to Vacate or Set Aside Judgment of

Conviction or Sentence in relevant part as follows:

Defendant claims his counsel was ineffective with respect to 25 different matters. Many of the

matters asserted took place during the trial and are part of the record. . . . With respect to matters

outside the record (i.e., 14 - “failed to conduct an investigation”) the Defendant has failed to provide

this Court with any evidence of what would have been different at trial had his attorney done the

things Defendant claims he should have done[.]

(Decision Denying Petition, ECF No. 13-1, PAGEID # 1202.) Petitioner apparently did not file an appeal of

the trial court’s decision denying his post-conviction petition.

Petitioner argues that § 2254(d) does not apply. (See id; see also Supplemental Response to

Respondent’s Opposition to Petitioner’s Evidentiary Hearing, ECF No. 64.)

The record does not indicate that Petitioner acted diligently in attempting to develop the

factual basis for his claim of ineffective assistance of counsel. To the contrary, the trial court

denied Petitioner’s April 2017 Petition to Vacate or Set Aside Judgment of Conviction or

Sentence in relevant part as follows:

Defendant claims his counsel was ineffective with respect to 25 different matters.

Many of the matters asserted took place during the trial and are part of the record.

. . . With respect to matters outside the record (i.e., 14 - “failed to conduct an

investigation”) the Defendant has failed to provide this Court with any evidence of

what would have been different at trial had his attorney done the things Defendant

claims he should have done[.]

(Decision Denying Petition, ECF No. 13-1, PAGEID # 1202.) Petitioner apparently did not file

an appeal of the trial court’s decision denying his post-conviction petition. Moreover, an

evidentiary hearing will not assist the Court in resolving the issue of procedural default. As to

Petitioner’s claim of ineffective assistance of appellate counsel denial of a fair trial due to

admission of DNA evidence, it is the Respondent’s position that these claims lack merit.

The Supreme Court has held that this Court must limit its review under 28 U.S.C. §

2254(d)(1) of claims adjudicated on the merits to the record considered by the state court.

Cullen v. Pinholster, 563 U.S. 170, 180 (2011). “[D]istrict courts are precluded from conducting

evidentiary hearings to supplement existing state court records when a state court has issued a

decision on the merits with respect to the claim at issue.” Stermer v. Warren, 360 F.Supp.3d

639, 660 (E.D. Mich. 2018) (quoting Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013)).

Accordingly, Petitioner’s Motion for Evidentiary Hearing (ECF No. 60) is DENIED.

V. Standard of Review

The standards of the Antiterrorism and Effective Death Penalty Act (“the AEDPA”)

govern this case. The United States Supreme Court has described the AEDPA as “a formidable

barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”

and emphasized that courts must not “lightly conclude that a State’s criminal justice system has

experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.

Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011) ); see

also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential

standard for evaluating state-court rulings, and demands that state court decisions be given the

benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

The AEDPA limits the federal courts’ authority to issue writs of habeas corpus and

forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated

on the merits in State court proceedings” unless the state-court decision either

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Further, under the AEDPA, the factual findings of the state court are presumed to be

correct:

In 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 to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.

28 U.S.C. § 2254(e)(1).

Accordingly, “a writ of habeas corpus should be denied unless the state court decision

was contrary to, or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court, or based on an unreasonable determination of the facts in light

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub nom. Coley v.

Robinson, 571 U.S. 992 (2013). The United States Court of Appeals for the Sixth Circuit has

summarized these standards as follows:

A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law[,] or (2) “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives” at a

different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d

389. 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision

is an “unreasonable application” under 28 U.S.C. 2254(d)(1) if it “identifies the

correct governing legal rule from [the Supreme] Court’s cases but unreasonably

applies it to the facts of the particular ... case” or either unreasonably extends or

unreasonably refuses to extend a legal principle from Supreme Court precedent to

a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.

Id. at 748-49. The burden of satisfying the AEDPA’s standards rests with the petitioner. Cullen

v. Pinholster, 563 U.S. 170, 181 (2011).

VI. Claim One

In claim one, Petitioner asserts that he was denied a fair trial due to the admission of prior

bad acts evidence indicating that Petitioner had committed other crimes, including assault and

pandering, that he was on probation for failure to pay child support, and that he wanted his

girlfriend to dress up like a child. Petitioner contends that the prosecutor improperly presented

this evidence. (Merit Brief, ECF No. 6, PAGEID # 627, 634.) He further asserts that the trial

court issued improper jury instructions and failed to hold a hearing prior to ruling that the

evidence was admissible. For the reasons discussed previously, Petitioner has waived these

latter claims by failing to raise them on direct appeal.

As to his claim of improper admission of other acts evidence, the state appellate court

rejected that claim as follows:

{¶ 38} In Fetherolf’s second assignment of error, he argues that the trial court erred

by permitting “other acts” evidence that he contends had no bearing on any fact of

consequence, and that the trial court erred by failing to exclude details of

Fetherolf’s prior conviction and sentence when he did not testify.

Standard of Review

{¶ 39} “‘The admission of * * * [other-acts] evidence lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that created material prejudice.’”

State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, ¶ 14, quoting State v. Diar,

120 Ohio St.3d 460, 2008–Ohio–6266, ¶ 66. Under an abuse of discretion review,

“[i]t is not sufficient for an appellate court to determine that a trial court abused its

discretion simply because the appellate court might not have reached the same

conclusion or is, itself, less persuaded by the trial court’s reasoning process than by

the countervailing arguments.” Morris at ¶ 14, citing AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An

abuse of discretion standard is a deferential review. Id.

“Other Acts” Evidence

{¶ 40} The admission of “other acts” evidence is governed in part by Evid.R.

404(B), which reads,

(B) Other Crimes, Wrongs or Acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. In criminal cases, the proponent of

evidence to be offered under this rule shall provide reasonable notice

in advance of trial, or during trial if the court excuses pretrial notice

on good cause shown, of the general nature of any such evidence it

intends to introduce at trial.

{¶ 41} In this case, Fetherolf contends that the trial court erred by allowing Pamela

Hawkins, Fetherolf’s former paramour, to testify regarding consensual sexual acts

that occurred between them, which were unrelated to the charged crimes, thus

constituting impermissible “other acts” evidence. In particular, Fetherolf argues

that it was error to allow a portion of the following testimony.

Q [Prosecutor]: When you were with [Fetherolf] during this time, did you see him

on the computer?

A [Hawkins]: He was on my Tablet.

Q: Your Tablet?

A: Yes, and my cell phone.

Q: Did you see anything on your Tablet that concerned you?

[Defense Counsel]: Objection, Your Honor.

THE COURT: Overruled. I’m going to permit this witness to testify to certain

matters that appear to be other acts that the defendant was allegedly involved in and

I’m not going to permit this testimony to be introduced to prove the character of

the defendant or he acted in conformity with character but it’s being introduced for

the sole purpose to prove his motive, his opportunity, his intent, his preparation,

plan or knowledge or identity [sic].

So, it is only going to be used for that purpose, alone, and not to prove his character.

Go ahead.

[Prosecutor]: Thank you, Your Honor.

Q: What was it that you saw on your Tablet?

A: Um, this was after we left Debbie and them’s place. We went and stayed at a

motel there in Marion and—this is hard for me to say—[Fetherolf] wanted to go to

Wal–Mart for me to—

Q: Let’s talk about—or are you talking about the Tablet now?

A: Yes.

Q: Okay.

A: [Fetherolf] was looking on the Tablet at some young girls. I’m not going to say

they were—I’m going to say between 13 and younger. Some, maybe, 15 and

younger and it was some unappropriate (sic) pictures that nobody should be looking

at and he just asked me what I thought it would be like to be with a young girl like

that and I just, at the time, it didn’t really register because I was, you know, drinking

a lot at the time and it just didn’t register how he was acting and how he was talking.

Q: And then after that, did he—did you go somewhere?

A: He wanted to go to Wal–Mart. Um, he had some money sent to him by Western

Union from his mother * * * and we were going to go and get a 24 pack of Busch

beer and he started going over to where I was getting some potato chips and things

and then I was walking around getting ready to go to the register and I looked over

and he was over by the little girl’s, teenage girl’s clothing and I thought—I went

over and asked him, what are you doing? And he said, oh, I want to get—what

size—

[Defense Counsel]: Objection, Your Honor.

A: —what size do you think—

THE COURT: Okay, overruled.

Q: Go ahead.

THE COURT: Again, the same admonition. It’s not to prove character. It’s to prove

the other things I already mentioned to you. Go ahead.

A: Sorry. He wanted to know what size I would wear in thong underwear and asked

me where the wigs would be at and I said, what are you talking about? And he said,

well, I want you to dress up as a little girl tonight for me. Okay, you know, I didn’t

know what to think of that but he got a blonde wig, blue thong underwear. Got me

a strapless bra-shirt kind of thing and, like, a little mini skirt kind of thing and I

wore it for him that night.

Q: Did this happen more than one time?

A: It happened three times.

Q: And, I mean, not that you went to the store but you wore it three different times?

A: I wore it twice. He wore it once.

(March 8, 2016, Tr. at 135–137). [FN]11

FN11: Notably, before Hawkins ever testified, the parties discussed her presumed

testimony and its admissibility. The court heard arguments from both parties and

ruled that the testimony was admissible.

{¶ 42} Fetherolf contends that the preceding testimony related to consensual sexual

acts between himself and Hawkins, both adults, should have had no bearing on this

Rape trial and that they were improperly admitted. He does not argue on appeal, as

he did at the trial court level, that the testimony related to viewing inappropriate

pictures of underage girls on the tablet was improperly admitted.

{¶ 43} In our analysis of the issue raised by Fetherolf, we emphasize that during

Hawkins’ testimony, the trial court interrupted to specifically admonish the jury,

twice, to inform the jury that the testimony could only be used for the purposes

specified in Evid.R. 404(B). Arguably the evidence does touch on some of the

exceptions listed in Evid.R. 404(B), which permits testimony regarding certain

other acts; however, it is undoubtedly prejudicial and it is our conclusion that any

contention that it does fit under the 404(B) exceptions is tenuous at best.

{¶ 44} Nevertheless, the trial court is given broad discretion in these matters and

we may not reverse simply because we may have made a different decision. Even

assuming that it was error to allow the introduction of the consensual sexual acts

we cannot find that such an error prejudiced Fetherolf given the evidence presented

at trial, which has been previously referenced. Therefore, Fetherolf’s argument is

not well-taken.

Prior Conviction

{¶ 45} Next, Fetherolf contends that the trial court erred by allowing testimony that

Fetherolf was on probation for an unrelated offense when he allegedly committed

the crimes in this case.

{¶ 46} In this case, the fact that Fetherolf was on probation when he committed the

Rape of A.C. in September of 2013 was first introduced through the testimony of

Hawkins. Hawkins testified that during the fall of 2013, Fetherolf slept on the couch

at the residence of Hawkins and her husband. Hawkins testified that she left her

husband in the fall of 2013 to be with Fetherolf when Fetherolf suggested they go

for a “change of scenery.” (March 8, 2016, Tr. at 131).

{¶ 47} Hawkins testified that Fetherolf informed her that he was on probation for

“felony child support” and that there was probably a warrant out for his arrest. (Id.

at 132). Hawkins testified that she thought that was the reason Fetherolf wanted to

get away. Hawkins testified that she and Fetherolf went to Catskill, New York, then

later to Pennsylvania to a motel, then to Marion, Ohio. Hawkins testified that at one

point Fetherolf took the battery out of his cell phone because “they” were looking

for him and they would not be able to locate where he was at.

{¶ 48} Hawkins testified that she was eventually pulled over by the police while

driving alone and was arrested for an active warrant. Hawkins testified that she did

jail time and when she got out she called the police on Fetherolf, thinking he had a

warrant for felony child support. Hawkins testified that she learned at that time that

he was also wanted for Rape.

{¶ 49} Later, Fetherolf’s probation for an unrelated offense was mentioned again

at trial when his probation officer, Edward Worley, testified. Worley testified that

he was in charge of “felony non-support child support cases” and that Fetherolf was

his probationer.

{¶ 50} During Worley’s testimony, the trial court interrupted sua sponte and a

sidebar conference was held. At that time, the trial court inquired as to the purpose

of Worley’s testimony and the trial court stated, without prompting by the defense

that, “I never would have allowed him to testify in the first place about being on

probation because now this felony conviction is evidence and he hasn’t taken the

stand and that’s not proper.” (March 9, 2016, Tr. at 60).

{¶ 51} When Worley’s testimony resumed, he testified that he lost contact with

Fetherolf at some point and that he tried to locate him. Worley testified that

Fetherolf was eventually apprehended and that Fetherolf admitted to his

“violations” and the failure to pay his support. (Id. at 62). Worley then testified that

on the day Fetherolf was arrested, he obtained Fetherolf’s DNA, which was the

standard used to test against the samples taken from A.C.

{¶ 52} On appeal, Fetherolf argues that it was error for the trial court to permit any

testimony regarding Fetherolf’s convictions when Fetherolf did not testify.

Fetherolf contends that pursuant to Evid.R. 609(A)(2), evidence of a prior

conviction of a defendant can be introduced, but only if the accused chooses to

testify.

{¶ 53} In our own review, we would note that Fetherolf did not object to the

preceding testimony. In fact, even after the trial court noted that it would not have

allowed testimony related to probation, Fetherolf’s trial counsel still did not object

when Worley testified that Fetherolf admitted to violations of his child support.

{¶ 54} Even if we assumed that the testimony related to Fetherolf’s prior conviction

was not admissible, it can be argued that it was a valid trial strategy by the defense

to allow in testimony that Fetherolf was on probation for a non-violent offense.

Fetherolf essentially left the Marysville area right after the alleged incident with

A.C. and without another valid reason to leave—such as running from child

support—it could have appeared to the jury that Fetherolf was fleeing from a crime

against A.C. that he knew he had committed. Thus defense counsel may have

wanted this testimony to be introduced for a valid purpose.

{¶ 55} Nevertheless, even if we presumed that Fetherolf did object and that the

testimony was not admissible, we cannot find that the mentions of Fetherolf’s

probation and his felony child support so tainted the proceedings that his

convictions must be reversed, particularly given that it had some arguable benefit

to the defense. Moreover, the State’s case was relatively strong insofar as

statements of A.C. were actually corroborated in this case by the DNA evidence.

Therefore, Fetherolf’s argument is not well-taken, and his assignment of error is

overruled.

State v. Fetherolf, 2017 WL 1316207, at *7-10.

Generally, alleged errors in evidentiary rulings do not support a writ of habeas corpus.

See Estelle v. McGuire, 502 U.S. 62 (1991); see also Moreland v. Bradshaw, 699 F.3d 908, 923

(6th Cir. 2012) (citations omitted). To be entitled to habeas relief, a petitioner must demonstrate

that the evidentiary ruling was “so fundamentally unfair that it rises to the level of a due-process

violation.” Collier v. Lafler, 419 F. App’x 555, 558 (6th Cir. 2011) (citing Coleman v. Mitchell,

244 F.3d 533, 542 (6th Cir. 2001)). “Generally, state-court evidentiary rulings cannot rise to the

level of due process violations unless they ‘offend[ ] some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental.’” Bugh v. Mitchell, 329

F.3d 496, 512 (6th Cir. 2003) (citing Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)

(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). In order to establish a due process

violation under the AEDPA rooted in an evidentiary ruling, the Sixth Circuit typically has

required a Supreme Court case establishing a due process right with regard to that specific kind

of evidence. Id. (citing Maldonado v. Wilson, 416 F.3d 470, 477 (6th Cir. 2005)). However,

there is no clearly established Supreme Court precedent holding that a state violates due process

by permitting propensity evidence in the form of other bad acts evidence. Bugh v. Mitchell, 329

F.3d at 512. Consequently, even if the trial court’s admission of prior-bad-act evidence is

viewed as “egregious error,” the petitioner cannot meet the mandatory AEDPA showing that the

Ohio Court of Appeals’ decision rejecting his claim constituted an unreasonable application of

Supreme Court caselaw. See Goldick v. Warden, Ross Correctional Inst., No. 3:11-cv-00441,

2013 WL 2377638, at *9 (S.D. Ohio May 30, 2013) (citing Harrington v. Richter, 562 U.S. 86,

101-102 (2011)). Thus, Petitioner’s claim that the state courts deprived him of a constitutionally

fair trial due to the admission of other bad acts evidence does not provide him a basis for relief.

Claim one is without merit.

VII. Claim Two

In claim two, Petitioner asserts that the prosecutor violated Brady v. Maryland, 373 U.S.

83 (1963), by failing to disclose Pamela Hawkins’ prior criminal record.5 The state appellate

court rejected this claim, reasoning as follows:

Fetherolf contends that the State committed discovery violations by failing to

disclose Pamela Hawkins’s 2015 misdemeanor conviction for falsification.

Standard of Review

{¶ 57} In order to reverse a defendant’s conviction specifically due to a discovery

violation, it must be shown that “‘(1) the prosecution’s failure to disclose was a

willful violation of the rule; (2) foreknowledge of the information would have

benefited the accused in preparing a defense, and (3) the accused * * * suffered

prejudice.’” State v. Wangler, 3d Dist. Allen No. 1–11–18, 2012–Ohio–4878, ¶

108, quoting State v. LaMar, 95 Ohio St.3d 181, 2002–Ohio–2128, ¶ 38, citing

State v. Joseph, 73 Ohio St.3d 450, 458 (1995).

{¶ 58} Generally, we apply an abuse of discretion standard to a trial court’s decision

to deny a motion for a new trial. State v. Rice, 11th Dist. Ashtabula No. 2012–A–

0062, 2014–Ohio–4285, ¶ 9.

Fetherolf’s New Trial Motion

{¶ 59} In this case, after the jury found Fetherolf guilty, but before his sentencing

hearing, he filed a number of motions with the trial court, including a motion for a

new trial. In the motion for a new trial, Fetherolf argued, inter alia, that the State

committed a discovery violation by failing to disclose that Pamela Hawkins had a

misdemeanor falsification conviction in 2015.

{¶ 60} The State responded to the motion by contending that it had provided all

requisite discovery pursuant to Crim.R. 16. More specifically, the State contended

that Fetherolf was provided an interview with Hawkins on June 25, 2014, and that

Fetherolf was notified twice in 2015 that the State planned to call Hawkins as a

5 Petitioner also argues that the prosecutor improperly withheld the victim’s records from Mid Ohio psychological

services. (Traverse, ECF No. 57-1, PAGEID # 3379-80.) However, Petitioner did not present this same claim on

direct appeal. For the reasons discussed supra, he thereby has waived this claim for review in these proceedings.

witness. The State indicated that it provided known relevant convictions at that

time.

{¶ 61} In addition, the State argued that during the course of the trial Hawkins

readily testified to being on probation and that she had prior convictions, although

a prior conviction specifically for falsification in 2015 was not mentioned by either

party. The State contended that it was unaware of a misdemeanor conviction for

Hawkins occurring in 2015. Nevertheless, Hawkins did admit to being jailed on an

unrelated charge.

{¶ 62} After reading the arguments of the parties, the trial court ultimately

determined that Fetherolf “was not harmed by not having this information and the

State was not responsible for not investigating the prior record more than it did.”

(Doc. No. 213).

Arguments and Analysis

{¶ 63} On appeal, Fetherolf renews his argument that the State failed to provide

discovery, contending that the State should have known about the late 2015

misdemeanor conviction of Pamela Hawkins and that it should have disclosed the

conviction. Fetherolf argues that Crim.R. 16(B)(2) actually required the State to

disclose such information. Criminal Rule 16(B)(2) requires the State to disclose,

“(2) Criminal records * * * of a witness in the state’s case-in-chief * * *[.]”

{¶ 64} By contrast, the State argues that under the Supreme Court of Ohio’s

decision in State v. Petro, 148 Ohio St. 505 (1947), which discussed the granting

or denial of a motion for a new trial based on newly discovered evidence, Fetherolf

is unable to establish that he could not have discovered Hawkins’s falsification

conviction in the exercise of due diligence, precluding his motion for a new trial.

[FN]12 Further the State argues that it was not required to investigate the criminal

record of Hawkins all the way up to trial, and that the jury was apprised that

Hawkins had prior convictions, if not this specific conviction.

FN12: Fetherolf argues in his reply brief that Petro does not apply in this instance

because Petro relates to fling a motion for a new trial under Crim.R. 33(A)(6), and

this case involves a motion for a new trial pursuant to Crim.R. 33(A)(2). Criminal

Rule 33(A)(6) does not specifically relate to newly discovered evidence where the

defendant could not obtain it with reasonable diligence, and Criminal Rule 33(A)(2)

relates to misconduct of, inter alia, the prosecuting attorney.

{¶ 65} While the better practice may be for the State to continuously update the

criminal records of its witnesses, we cannot find in this case the failure to do so was

reversible error. This case was pending for years before it was brought to trial. The

State indicated that it disclosed the relevant prior convictions that it was aware of

before Hawkins was ever convicted of misdemeanor falsification in a nearby

county. Here there is no indication that the State specifically tried to hide anything

from the defense, particularly since the State actually elicited testimony from

Hawkins that she went to jail and had other convictions.

{¶ 66} Finally, given that Hawkins’s credibility was already called into question at

trial by admitting that she had prior convictions, admitting that she had gone to jail,

and admitting that she was drinking to the point of addiction during the time she

spent with Fetherolf, we cannot find that this one additional conviction would have

cast such additional doubt on her credibility that it impacted Fetherolf’s

convictions. Therefore, for all of these reasons, Fetherolf’s third assignment of error

is overruled.

State v. Fetherolf, 2017 WL 1316207, at *11-12.

To the extent that Petitioner raises a claim regarding the alleged violation of state law or

state discovery rules, such claim does not provide him a basis for relief. See Baker v. Rapelje,

No. 10-cv-13304, 2013 WL 1663550, at *5 (E.D. Mich. April 17, 2013) (citing Lorraine v.

Coyle, 291 F.3d 416, 441 (6th Cir. 2002)). “It is well-settled that there is no general

constitutional right to discovery in a criminal case.” Id. (citing Weatherford v. Bursey, 429 U.S.

545, 559 (1977); United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)). A federal court

may only grant habeas relief to a person who is “in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S .C. § 2254(a).

The Supreme Court has held that the prosecutor’s failure to disclose evidence favorable

to the defense “violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at

86. Evidence is material “[i]f there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 682 (1985). Moreover, “[i]mpeachment evidence, as well as exculpatory

evidence, falls within the Brady rule.” O’Guinn v. Dutton, 88 F.3d 1409, 1418 (6th Cir. 1996)

(citing United States v. Bagley). However, “there is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable probability that the suppressed evidence

would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999). “In the

absence of prejudice, even assuming a violation of Brady, reversal is not required.” United

States v. Jones, 766 F.2d 994, 998 n. 1 (6th Cir. 1985) (citing United States v. Campagnuolo, 592

F.2d 852, 861 & n. 9 (5th Cir. 1979)). It is the Petitioner’s burden to establish a Brady violation.

Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). Petitioner has failed to meet this burden here.

As discussed by the state appellate court, Hawkins acknowledged that she was drinking

and using drugs when she was with Petitioner. (Transcript, ECF No. 13-3, PAGEID # 1925,

1939, 1945.) She also had two warrants out for her arrest. (PAGEID # 1927-28.) She was on

probation and had failed to pay a fine. (PAGEID # 1928.) She spent thirty days in jail for

violating the terms of her probation. (PAGEID # 1929.) In view of this record, Petitioner has

failed to establish prejudice from the prosecutor’s failure to disclose Hawkins’ 2015

misdemeanor conviction. The record does not indicate that the state appellate court contravened

or unreasonably applied federal law in rejecting Petitioner’s claim.

Claim two is without merit.

VIII. Claim Five

In claim five, Petitioner raises various allegations of prosecutorial misconduct. On direct

appeal, Petitioner asserted that the prosecutor improperly elicited opinion testimony from Dr.

McManus, S.A.N.E. nurse Warnimont, and caseworker Ruddy regarding the credibility of the

alleged victim; improperly elicited testimony that Petitioner had a prior felony conviction for

failure to pay child support and had violated the terms of his probation; and failed to disclose that

Hawkins had been convicted of falsification in 2015. (See Merit Brief of Appellant Michael

Fetherolf, ECF No 13, PAGEID # 938.)

The appellate court rejected Petitioner’s claim of prosecutorial misconduct as follows:

Fetherolf argues that the prosecutor committed misconduct that deprived him of a

fair trial. Specifically, he contends that the prosecutor committed misconduct for

eliciting the testimony he claims was erroneous in the first and second assignments

of error and that the prosecutor committed misconduct by failing to disclose

Hawkins’s prior conviction for falsification referenced in the third assignment of

error.

Standard of Review

{¶ 68} Prosecutorial misconduct is generally not grounds for reversal unless it so

taints the proceedings as to deprive the defendant of a fair trial. State v. Johns, 3d.

Dist. Seneca No. 13–04–23, 13–04–24, 13–04–25, 2005–Ohio–1694, ¶ 25. Where

it is clear beyond a reasonable doubt that the jury would have found the defendant

guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed. See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011–Ohio–5418, ¶ 21. We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d

Dist. Greene No. 2007–CA–51, 2008–Ohio–2900, ¶ 42, citing Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986). “In making this determination,

an appellate court should consider several factors: (1) the nature of the remarks, (2)

whether an objection was made by counsel, (3) whether corrective instructions were

given by the court, and (4) the strength of the evidence against the defendant.” State

v. Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

Analysis

{¶ 69} Individually, we have found that none of the assigned errors by Fetherolf

were reversible. In this assignment of error, he argues essentially that the

prosecutor’s cumulative actions render his convictions reversible. Given the

evidence in this case, complete with DNA, and as noted earlier the jury’s ability to

at least observe and evaluate the victim’s demeanor, even if she did not testify

regarding the acts specifically, we cannot find that any errors we have found in this

case cumulatively resulted in reversible error based on prosecutorial misconduct.

This is particularly true given that defense counsel did not object to some of the

testimony, possibly on the basis of trial strategy, and given that some of the

testimony elicited was not objectionable at all. Thus we cannot find any

prosecutorial misconduct in this case that rises to the level of prejudicial error, and

Fetherolf’s fourth assignment of error is overruled.

State v. Fetherolf, 2017 WL 1316207, at *12.

The scope of federal habeas corpus review of a claim of prosecutorial misconduct is

narrow. A federal court does not sit as an appellate court employing supervisory powers to

rectify ordinary trial error in cases before it for habeas review. Donnell v. De Christoforo, 416

U.S. 637 (1974). Rather, the Court must consider only whether the prosecutor’s conduct was so

egregious as to deny the petitioner fundamental fairness. Id. at 642–43; Martin v. Foltz, 773

F.2d 711, 716–17 (6th Cir. 1985); Angel v. Overberg, 682 F.2d 605, 607 (6th Cir. 1982) (en

banc). This determination is made by evaluating the totality of the circumstances surrounding

the case. Angel v. Overberg, 682 F.2d at 607.

Factors relevant in making this inquiry are: the degree to which the remarks may

tend to mislead the jury and to prejudice the accused; whether the remarks were

isolated or extensive; whether they were deliberately placed before the jury; and

the strength of the case against the accused. Finally, this Court notes the “extreme

nature of the prosecutorial misconduct required for a federal court to issue the writ.”

Martin v. Foltz, 773 F.2d at 716 (citations omitted) (quoting Cook v. Bordenkircher, 602 F.2d 117,

120 (6th Cir. 1979)).

As noted by the state appellate court, Petitioner failed to object to much of the testimony

he now refers to in support of his claim of prosecutorial misconduct. For example, he did not

object to the testimony he characterizes as improper vouching for the veracity of the alleged

victim. State v. Fetherolf, 2017 WL 1316207, at *6. Also, he did not object to admission of

testimony regarding his prior felony conviction or status on probation. Id. at *10.

In fact, even after the trial court noted that it would not have allowed testimony

related to probation, Fetherolf’s trial counsel still did not object when Worley

testified that Fetherolf admitted to violations of his child support.

{¶ 54} Even if we assumed that the testimony related to Fetherolf’s prior conviction

was not admissible, it can be argued that it was a valid trial strategy by the defense

to allow in testimony that Fetherolf was on probation for a non-violent offense.

Fetherolf essentially left the Marysville area right after the alleged incident with

A.C. and without another valid reason to leave—such as running from child

support—it could have appeared to the jury that Fetherolf was fleeing from a crime

against A.C. that he knew he had committed. Thus defense counsel may have

wanted this testimony to be introduced for a valid purpose.

Claim two is without merit.

Id. As discussed below, Petitioner thereby has waived his right to raise these issues here. See

Schauer v. McKee, 410 F. App’x 97, 101 (6th Cir. 2010).

Moreover, the record does not support Petitioner’s allegation that other prosecution

witnesses improperly testified as to the veracity of the alleged victim.

Fetherolf mischaracterizes the testimony in the record on appeal. For instance, in

his brief he contends that “[b]oth Dr. McManus and [the SANE] testif[ied] that, in

their expert opinion, A.C. and her mother are credible.” (Appt.’s Br. at 16). He also

argues that Detective Flanagan and Kaitlyn Ruddy, an intake caseworker at the

department of job and family services, testified that that A.C. was credible. These

claims are simply inaccurate and do not reflect the testimony. There was testimony

from some of these witnesses that A.C. and her mother were consistent in their

statements, but these witnesses never testified specifically that A.C. was credible.

State v. Fetherolf, 2017 WL 1316207, at *6. Thus, the prosecutor did not improperly submit

opinion testimony from prosecution witness, with the possible exception of a statement made by

Sane nurse Teresa Warnimont indicating that what children “say happened is what happened[.]”

Id. at *7. The record further indicates that, prior to trial, the parties discussed Hawkins’

proposed testimony and its admissibility. The trial “court heard arguments from both parties and

ruled that the testimony was admissible.” Id. at *9 n. 11. Although the prosecutor failed to

disclose Hawkins’ 2015 falsification conviction, the record indicate that this appears to have

been an oversight, and Hawkins nonetheless admitted to being on probation and being jailed on

an unrelated charge.

In view of this record, this Court is not persuaded that the totality of circumstances reflect

that relief is warranted based on Petitioner’s claim of prosecutorial misconduct.

IX. Procedural Default

It is the Respondent’s position that Petitioner has procedurally defaulted all of his

remaining claims, with the exception of the claims he raised in Rule 26(B) proceedings.

Congress has provided that state prisoners who are in custody in violation of the

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of

habeas corpus. 28 U.S.C. § 2254(a). 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 criminal defendant with federal constitutional claims

is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).

If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition

is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,

6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971). Where a

petitioner has failed to exhaust claims but would find those claims barred if later presented to the

state courts, “there is a procedural default for purposes of federal habeas.” Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991).

The term “procedural default” has come to describe the situation where a person

convicted of a crime in a state court fails (for whatever reason) to present a particular claim to

the highest court of the State so that the State has a fair chance to correct any errors made in the

course of the trial or the appeal before a federal court intervenes in the state criminal process.

This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts

before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.

2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly

presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives

the state courts a fair opportunity to rule on the federal law claims being asserted. That means

that if the claims are not presented to the state courts in the way in which state law requires, and

the state courts therefore do not decide the claims on their merits, neither may a federal court do

so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of

federal law which were not resolved on the merits in the state proceeding due to respondent’s

failure to raise them there as required by state procedure” also cannot be resolved on their merits

in a federal habeas case—that is, they are “procedurally defaulted.”

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part

analysis of Maupin). First, the court must determine that there is a state procedural rule that is

applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. Second,

the court must determine whether the state courts actually enforced the state procedural sanction.

Third, the court must determine whether the forfeiture is an adequate and independent state

ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,

785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied

with and that the rule [has] an adequate and independent state ground, then the petitioner” may

still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause

sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged

constitutional error. Id.

Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner

must show that “some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

Constitutionally ineffective counsel may constitute cause to excuse a procedural default.

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective

assistance of counsel claim generally must “‘be presented to the state courts as an independent

claim before it may be used to establish cause for a procedural default.’” Edwards, 529 U.S. at

452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is because, before counsel’s

ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the

Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.”

Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted,

petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the

ineffective-assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The

Supreme Court explained the importance of this requirement:

We recognized the inseparability of the exhaustion rule and the procedural-default

doctrine in Coleman: “In the absence of the independent and adequate state ground

doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion

requirement by defaulting their federal claims in state court. The independent and

adequate state ground doctrine ensures that the States’ interest in correcting their

own mistakes is respected in all federal habeas cases.” 501 U.S., at 732, 111 S.Ct.

2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and

procedural default last Term in O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.

1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to “

‘protect the integrity’ of the federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119

S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144

L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion

requirement, we said, would be utterly defeated if the prisoner were able to obtain

federal habeas review simply by “‘letting the time run’” so that state remedies were

no longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those

purposes would be no less frustrated were we to allow federal review to a prisoner

who had presented his claim to the state court, but in such a manner that the state

court could not, consistent with its own procedural rules, have entertained it. In

such circumstances, though the prisoner would have “concededly exhausted his

state remedies,” it could hardly be said that, as comity and federalism require, the

State had been given a “fair ‘opportunity to pass upon [his claims].’” Id., at 854,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis

added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761

(1950)).

Edwards, 529 U.S. at 452–53.

If, after considering all four factors of the Maupin test, the court concludes that a

procedural default occurred, it must not consider the procedurally defaulted claim on the merits

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the

petitioner submits new evidence showing that a constitutional violation has probably resulted in

a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.

2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).

a. Application

In claim one, Petitioner asserts, inter alia, that he was denied a fair trial because the trial

court failed to issue appropriate jury instructions or conduct a hearing before making a

determination on the admissibility of other bad acts evidence. In claim two, Petitioner asserts,

inter alia, that the prosecutor failed to disclose the alleged victims’ medical reports. In claim

three, Petitioner asserts that his convictions violate the Confrontation Clause. In claim four,

Petitioner asserts that his convictions are against the manifest weight of the evidence6 and that

the evidence is constitutionally insufficient to sustain his convictions. (Merits Brief, ECF No. 6,

PAGEID # 678.) In claim five, Petitioner asserts that the prosecution submitted perjured or false

testimony and misrepresentations from material witnesses. In claim seven, Petitioner asserts that

he was denied a fair trial due to the ineffective assistance of trial counsel. In claim nine,

Petitioner asserts that he was denied a fair trial due to the improper admission of DNA evidence.

Petitioner failed to raise any of the foregoing claims on direct appeal, where he had the

representation of new counsel. Further, he may now no longer do so, under Ohio’s doctrine of

6 Petitioner’s claim that his convictions are against the manifest weight of the evidence does not, in any event,

provide a basis for federal habeas corpus relief. See Durdin v. Warden, Mansfield Correctional Institution, No.

2:16-cv-355, 2017 WL 1281418, at *13 (S.D. Ohio April 6, 2017) (citing Spence v. Sheets, 675 F.Supp.2d 792, 802

(S.D. Ohio 2009) (“The Due Process Clause does not provide relief for defendants whose convictions are against the

manifest weight of the evidence, but only for those who have been convicted without enough proof to allow a

rational trier of fact to find guilt beyond a reasonable doubt.”) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

res judicata. “It is well-settled that ‘[c]laims appearing on the face of the record must be raised

on direct appeal, or they will be waived under Ohio’s doctrine of res judicata.’” Teitelbaum v.

Turner, No. 2:17-cv-583, 2018 WL 2046456, at *15 (S.D. Ohio May 2, 2018) (quoting Hill v.

Mitchell, No. 1:98-cv-452, 2006 WL 2807017, at *43 (S.D. Ohio Sept. 27, 2006) (citing State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967))).

Petitioner violated the res judicata rule set forth in Perry when he failed to raise his

claims on direct appeal, and, consequently, the first prong of the Maupin test is satisfied.

Moreover, Ohio courts have consistently relied upon the doctrine of res judicata to refuse to

review the merits of procedurally barred claims. See, e.g., State v. Cole, 2 Ohio St.3d 112

(1982). The Sixth Circuit has held that Ohio’s doctrine of res judicata is an independent and

adequate ground for denying federal habeas relief. See, e.g., Lundgren v. Mitchell, 440 F.3d 754,

765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v.

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir.

2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Turning to Maupin’s independence

prong, under the circumstances presented here, Ohio’s doctrine of res judicata does not rely on

or otherwise implicate federal law. Accordingly, the undersigned finds that the first three Maupin

factors are satisfied.

To the extent that Petitioner raises any off-the-record claims of ineffective assistance of

trial counsel, he likewise has procedurally defaulted those issues for review in these proceedings

by failing to file a timely appeal in post-conviction proceedings. Petitioner filed a post-

conviction petition asserting various claims of ineffective assistance of counsel. (ECF No. 13-1,

PAGEID # 1184.) On June 7, 2017, the trial court denied that action. (PAGEID # 1201.)

Petitioner did not file a timely appeal. Moreover, he may now no longer do so, as Ohio does not

allow delayed appeals in post-conviction proceedings. See Brown v. Clipper, No. 5:14-cv-1406,

2016 WL 5173331, at *23 (N.D. Ohio March 8, 2016); Ohio Appellate Rule 5(A). The state

courts were never given the opportunity to enforce the procedural rule at issue due to the nature

of Petitioner’s procedural default.

The third Maupin factor, whether the state procedural rule is an adequate and

independent state ground, is also satisfied. Ohio App. R. 5(A)’s inapplicability to

civil cases, and specifically, post-conviction relief proceedings, is firmly

established and regularly followed by Ohio courts. See Carley v. Hudson, 563

F.Supp.2d 760, 776 (N.D. Ohio 2008) (adopting report and recommendation of

Vecchiarelli, M.J.) (citing State v. Williams, 2006 WL 2949011, at *1 (Ohio Ct.

App. 2006) (“Because post-conviction proceedings are civil in nature, App.R. 5(A)

may not be used to seek leave from the denial of a post-conviction action where the

time for an appeal as of right as provided in App.R. 4 has passed.”); State v.

Johnson, 2007 WL 2983890, at *1 (Ohio Ct. App. October 15, 2007) (“[T]he

Supreme Court of Ohio has specifically held that App.R. 5(A) is not available on

appeals regarding a post-conviction relief determination.”); State v. Nichols, 11

Ohio St.3d 40, 43, 463 N.E.2d 375 (Ohio 1984)).

Id.

In claim six, Petitioner asserts that prosecution witnesses improperly vouched for the

veracity of the alleged victim. Petitioner raised this same issue on direct appeal; however, the

state appellate court reviewed the claim for plain error only, due to his failure to object:

Fetherolf argues that the trial court erred by allowing several of the State’s

witnesses to provide testimony that he characterizes as vouching for the veracity of

A.C.’s statements.

Standard of Review

{¶ 29} We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. State v. Lauf, 3d Dist Putnam No. 12–16–06, 2017–

Ohio–608, ¶ 54, citing State v. Cassel, 2d Dist. Montgomery No. 26708, 2016–

Ohio–3479, ¶ 13, citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v.

Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, ¶ 19. An abuse of discretion

constitutes a decision that is arbitrary, capricious, or grossly unsound. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 30} However, where Fetherolf did not object to an evidentiary issue, we review

his arguments on appeal for plain error. State v. Mammone, 139 Ohio St.3d 467,

2014–Ohio–1942, ¶ 69, reconsideration denied, 139 Ohio St.3d 1487, 2014–Ohio–

3195, and cert. denied, 135 S.Ct. 959 (2015). We take notice of plain error “with

the utmost caution, under exceptional circumstances and only to prevent a

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of

the syllabus. To prevail under plain error, Fetherolf must show that an error

occurred, that the error was plain, and that but for the error, the outcome of the trial

clearly would have been otherwise. Mammone at ¶ 69, citing State v. Barnes, 94

Ohio St.3d 21, 27 (2002).

Alleged Errors and Analysis

{¶ 31} On appeal, Fetherolf argues that several of the State’s witnesses testified to

their opinion of the veracity of A.C.’s statements. Specifically, Fetherolf contends

that the emergency room physician, Dr. McManus, and the SANE, Teresa

Warnimont testified that A.C. was credible and that such testimony was improper.

Notably, Fetherolf acknowledges in his brief that he did not object to these

purportedly erroneous statements at the trial court level, and thus we review their

admissibility for plain error.

{¶ 32} It is apparent from a review of the record that Fetherolf mischaracterizes the

testimony in the record on appeal. For instance, in his brief he contends that “[b]oth

Dr. McManus and [the SANE] testif[ied] that, in their expert opinion, A.C. and her

mother are credible.” (Appt.’s Br. at 16). He also argues that Detective Flanagan

and Kaitlyn Ruddy, an intake caseworker at the department of job and family

services, testified that that A.C. was credible. These claims are simply inaccurate

and do not reflect the testimony. There was testimony from some of these witnesses

that A.C. and her mother were consistent in their statements, but these witnesses

never testified specifically that A.C. was credible.

{¶ 33} Fetherolf seems to contend that because these witnesses testified that A.C.’s

statements were consistent the witnesses were effectively testifying that A.C. was

credible. Fetherolf seeks this Court to essentially make a ruling that a witness

cannot testify that a statement is consistent because it implies that the statement is

credible. However, a statement could be consistent and still be a complete

fabrication. Whether a statement being consistent makes it more or less credible is

a factual determination to be made by the finder-of-fact. Thus we do not find any

of the witnesses’ statements related to any consistency of A.C.’s disclosures to be

error, let alone plain error.

{¶ 34} Nevertheless, Fetherolf does point us to one specific incident in the

testimony of Teresa Warnimont, the SANE, wherein Warnimont arguably went

beyond testifying that A.C.’s statements were consistent. That segment, cited by

Fetherolf, reads as follows.

Q [Prosecutor]: We have just gone through, basically, what you did at Children’s

Hospital on September 24th of 2013 for the Rape kit. Right?

A [Warnimont]: Yes.

Q: When you are doing that work, do you specifically look for items of interest?

A: Yes, we would look for any red marks or anything unusual on the patient’s body.

Q: If, upon your examination, you do not see an indication of any type of injury or

trauma to the vaginal area, does that rule out whether or not there’s been sexual

abuse?

A: No, it does not.

Q: Based on your training, experience and education, why is that?

A: The tissue in the ano-genital area is very vascularized, so it heals very easily. It,

also, is very elastic, so it stretches easy. It is not uncommon to have no findings.

Q: Based on your training, education and experience, what have you learned about

child disclosure in these type of cases?

A: That what they say happened is what happened and we treat them and give them

the support that they need after the disclosure.

Q: That’s how you handle them?

A: Correct.

(March 9, 2016, Tr. at 33–34).

{¶ 35} Fetherolf argues that the preceding statement wherein the SANE testified

that “what they say happened is what happened” constituted improper vouching for

the victim’s credibility. Contrary to Fetherolf’s argument it seems that the SANE

may have been merely saying that she “handled” the allegations for purposes of

examination as though what the child said happened is what happened.

{¶ 36} However, to the extent that the SANE was testifying that all children,

including A.C., are always telling the truth when they disclose, it would be an

overly broad and likely improper statement. Nevertheless, even assuming that the

preceding testimony of the SANE was error and should not have been introduced,

we cannot find that it was plain error in this instance.

{¶ 37} In this case the consistent statements of A.C. were corroborated by the DNA

evidence. The jury was also able to see A.C.’s deposition and at least draw

inferences from A.C.’s demeanor as to whether she may have been the victim of

sexual abuse or not. We simply cannot find that even if we read the SANE’s isolated

statement in the worst possible light that it was so egregious that it rose to the level

of plain error or that without the statement the outcome of the trial would have been

different. Therefore, we do not find Fetherolf’s arguments well-taken, and his first

assignment of error is overruled.

State v. Fetherolf, 2017 WL 1316207, at *6-7.

Petitioner thereby has procedurally defaulted this claim for review in these proceedings.

See Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Norton v. Sloan, No. 1:16-cv-854, 2017

WL 525561, at *12 (N.D. Ohio Feb. 9, 2017) (citing Durr v. McLaren, No. 15-1346, 2015 WL

5101751, at *2 (6th Cir. Aug. 28, 2015)). The United States Court of Appeals for the Sixth

Circuit has held that Ohio’s contemporaneous-objection rule constitutes an adequate and

independent state ground to preclude federal habeas review. Wogenstahl v. Mitchell, 668 F.3d

307, 334-35 (6th Cir.) (citation omitted), cert. denied sub nom. Wogenstahl v. Robinson, 568

U.S. 902 (2012); Awkal v. Mitchell, 613 F.3d 629, 648-49 (6th Cir. 2010), cert. denied, 562 U.S.

1183 (2011). The state appellate court’s plain error review does not constitute a waiver of the

state’s procedural default rules. Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006), cert. denied

sub nom. Keith v. Houk, 549 U.S. 1308 (2007). Further, any alternative ruling on the merits does

not remove the procedural default. See Conley v. Warden, Chillicothe Correctional Inst., 505 F.

App’x 501, 506 (6th Cir. 2012) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Coe v.

Bell, 161 F.3d 320, 330 (6th Cir. 1998)).

Thus, Petitioner has procedurally defaulted the foregoing issues presented in habeas

corpus claims one through seven and nine.

b. Cause and Prejudice

Petitioner may still obtain review of these claims on the merits, if he establishes cause for

his procedural defaults, as well as actual prejudice. “‘[C]ause’ under the cause and prejudice test

must be something external to the petitioner, something that cannot fairly be attributed to him[,]

‘. . . some objective factor external to the defense [that] impeded . . . efforts to comply with the

State’s procedural rule.’” Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488). It is

Petitioner’s burden to show cause and prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir.

2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). A

petitioner’s pro se status, ignorance of the law, or ignorance of procedural requirements are

insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.

2004). Instead, to establish cause, a petitioner “must present a substantial reason that is external

to himself and cannot be fairly attributed to him.” Instead, in order to establish cause, a

petitioner “must present a substantial reason that is external to himself and cannot be fairly

attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007), cert. denied sub nom.

Hartman v. Bobby, 554 U.S. 924 (2008).

As cause for his procedural defaults and in habeas corpus claim eight, Petitioner asserts

the ineffective assistance of appellate counsel. Such a claim may constitute cause for a

procedural default, see Smith v. State of Ohio Dept. of Rehab. & Corr., 463 F.3d 426, 432 (6th

Cir. 2006) (citation omitted), so long as it has been presented to the state courts, and is not, itself,

procedurally defaulted. See Monroe v. Houk, No. 2:07-cv-258, 2009 WL 2898520, at *25 (S.D.

Ohio Sept. 8, 2009) (citing Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000)). Here,

Petitioner asserted that he was denied the effective assistance of appellate counsel in Rule 26(B)

proceedings, because his attorney failed to raise on appeal a claim of insufficiency of the

evidence.7 (ECF No. 13-1, PAGEID # 1213.) The Court will consider the merits of this claim

in order to determine whether Petitioner has established cause for his procedural default of claim

two.

7 The remaining issues Petitioner referred to in Rule 26(B) proceedings had been raised on direct appeal.

c. Ineffective Assistance of Appellate Counsel

The state appellate court denied Petitioner’s Rule 26(B) application as follows:

Upon consideration the Court finds that the four additional assignments of error

raised in Appellant’s application fail to show any genuine issue as to whether he

was deprived of the effective assistance of counsel on appeal. . . . applying the

analysis of Strickland v. Washington, 466 U.S. 668 (1984). The additional

assignments of error include issues actually raised by appellate counsel on appeal

and other issues devoid of any merit. As such, the application does not show that

appellate counsel’s performance fell below an objective standard of reasonable

representation or that there is any reasonable probability that the result would have

been different. Accordingly, the application is not well taken.

(Judgment Entry, ECF No. 13-1, PAGEID # 1254.)

The Court considers this claim de novo when determining whether a petitioner can

establish cause for a procedural default. See Hively v. Warden, 2018 WL 722864, at *7 (S.D.

Ohio Feb. 5, 2018) (citing Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009) (“An

argument that ineffective assistance of counsel should excuse a procedural default is treated

differently than a free-standing claim of ineffective assistance of counsel. The latter must meet

the higher AEDPA standard of review, while the former need not.”)

“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . .

. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)

(citation omitted). The United States Supreme Court set forth the legal principles governing

claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).

Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that

his counsel’s performance was deficient and that he suffered prejudice as a result. Id. at 687;

Hale v. Davis, 512 F. App’x 516, 520 (6th Cir.), cert. denied sub. nom. Hale v. Hoffner, 134 S.

Ct. 680 (2013). A petitioner “show[s] deficient performance by counsel by demonstrating ‘that

counsel’s representation fell below an objective standard of reasonableness.’” Poole v.

MacLaren, 547 F. A’ppx 749, 754 (6th Cir. 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536

(6th Cir. 2011) (internal quotation marks omitted)); (citing Strickland, 466 U.S. at 687), cert.

denied, 135 S. Ct. 122 (2014). To make such a showing, a petitioner must overcome the “strong

[ ] presum[ption]” that his counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 687. “To

avoid the warping effects of hindsight, [courts must] ‘indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’” Bigelow v.

Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).

The Fourteenth Amendment’s Due Process clause “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The question in a

sufficiency of the evidence claim is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in original). The Jackson standard must be applied “with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351

(6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).

Additionally, when determining if the evidence was sufficient to support a petitioner’s

conviction, the reviewing court must view the evidence in the light most favorable to the

prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). The

prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.” Id.

(quoting Jackson, 443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of historical

facts that supports conflicting inferences must presume—even if it does not affirmatively appear

in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at 326).

The jury convicted Petitioner on one count of rape, in violation of O.R.C. § 2907.05(B),

for engaging in sexual conduct with A.C., a child of seven years, on or about September 22,

2013; and one count of intimidation of a witness, in violation of O.R.C. § 2921.04(B), in that he

knowingly and by force or unlawful threat of harm attempted to influence, intimidate or hinder

the alleged victim in the prosecution of criminal charges. (See Indictment, ECF No. 13.)8 In

view of the factual findings of the state appellate court, and when viewing the evidence in the

light most favorable to the prosecution, the evidence plainly is constitutionally sufficient to

sustain Petitioner’s convictions. Therefore, Petitioner cannot establish the denial of the effective

assistance of appellate counsel under Strickland based on his attorney’s failure to raise this issue

on appeal. He likewise has failed to establish cause for his procedural default of his claim of

insufficiency of the evidence.

Petitioner’s remaining allegations of ineffective assistance of appellate counsel are

waived because he failed to present those same issues to the state appellate court. See Smith v.

Warden, Toledo Corr. Inst., 780 F. App’x 208, 223 (6th Cir. 2019) (“[T]here is no right to file

successive applications for reopening under [Rule] 26(B). . . . Once ineffective assistance of

counsel has been raised and adjudicated, res judicata bars its relitigation.”) (quoting State v.

Twyford, 106 Ohio St.3d 176 (2005) (citation and internal quotation marks omitted) (other

citation omitted).

d. Actual Innocence

8 The trial court merged Petitioner’s sentence on gross sexual imposition with his rape conviction. (Journal Entry of

Sentence, ECF No. 13, PAGEID # 812.)

The United States Supreme Court has held that a claim of actual innocence may be raised

“to avoid a procedural bar to the consideration of the merits of [the petitioner’s] constitutional

claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is actually innocent, a

federal habeas court may grant the writ even in the absence of a showing of cause for the

procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible

showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise

procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in

Schlup is “‘not itself a constitutional claim, but instead a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’”

Id. at 315 (quoting Herrera v. Collins, 506 U. S. 390, 404 (1993)).

The actual innocence exception allows a petitioner to pursue his constitutional claims if it

is “more likely than not” that new evidence—not previously presented at trial—would allow no

reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577

(6th Cir. 2005). The Sixth Circuit has offered the following explanation of the actual innocence

exception:

The United States Supreme Court has held that if a habeas petitioner “presents

evidence of innocence so strong that a court cannot have confidence in the outcome

of the trial unless the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through the gateway

and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S.Ct.

851, 130 L.Ed.2d 808. Thus, the threshold inquiry is whether “new facts raise[ +]

sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result

of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish

actual innocence, “a petitioner must show that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that

“actual innocence means factual innocence, not mere legal insufficiency.” Bousley

v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To

be credible, such a claim requires petitioner to 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, 115 S.Ct. 851, 130 L.Ed.2d 808.

The Court counseled however, that the actual innocence exception should “remain

rare” and “only be applied in the ‘extraordinary case.’” Id. at 321, 513 U.S. 298,

115 S.Ct. 851, 130 L.Ed.2d 808.

Souter, 395 F.3d at 589–90 (footnote omitted).

Because Petitioner fails to satisfy these standards, the actual innocence exception does not

operate to save his otherwise procedurally defaulted claims.

Petitioner has procedurally defaulted the foregoing issues raised in claims one through

seven and nine.

X. Disposition

For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or

in part, the findings or recommendations made herein, may receive further evidence or may

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse

decision, they may submit arguments in any objections filed, regarding whether a certificate of

appealability should issue.

s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

Chief United States Magistrate Judge

Date: February 7, 2020