Shoecraft v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MARK SHOECRAFT,

Petitioner, : Case No. 3:19-cv-261

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

TIM SHOOP, Warden,

Chillicothe Correctional Institution,

:

Respondent.

DECISION AND ORDER

This habeas corpus case, brought by petitioner Mark Shoecraft pro se under 28 U.S.C. §

2254, is before the Court on Petitioner’s Objections (“Objections,” ECF No. 16) to the Magistrate

Judge’s Report and Recommendations recommending dismissal of the case (“Report,” ECF No.

15). The Warden has filed a timely Response to the Objections (“Response,” ECF No. 19).

As required by Fed.R.Civ.P. 72(b), the Court has reviewed de novo all portions of the

Report to which Petitioner has made specific objection, and rules herein on those objections.

Litigation History

A Montgomery County, Ohio grand jury returned a ten-count indictment against Petitioner

on February 13, 2017, in connection with the fatal shooting of Eric Raglin on the evening of

January 31, 2017 (Indictment, State Court Record, ECF No. 7, PageID 59-68). Raglin had been a

customer of Shoecraft’s for a trafficking amount of methamphetamine. When Raglin tried to flee

with the drugs without paying the agreed $600 price, Shoecraft shot at the fleeing car and mortally

wounded Raglin. Petitioner waived trial by jury and the trial judge convicted him on all counts

except for the charge of trafficking in cocaine (Count Nine and its firearm specification). The trial

judge also found Shoecraft guilty as to the firearm specifications attached to seven of the nine

counts on which he was found guilty. Id. at PageID 69-70, 72- After merging some of the

convictions under Ohio Revised Code § 2941.25, the trial judge sentenced Petitioner to an

aggregate sentence of forty years to life imprisonment. Id. at PageID 90-93.

Petitioner appealed raising five assignments of error, and the Ohio Second District Court

of Appeals affirmed the convictions, State v. Shoecraft, No. 27860, 2018-Ohio-3920 (Ohio App.

2nd Dist. Sep. 28, 2018). The Second District granted Shoecraft leave to file a delayed application

for reconsideration, but then per curiam denied substantive relief (State Court Record, ECF No. 7,

PageID 207-19). Shoecraft sought and received permission to file a delayed appeal to the Supreme

Court of Ohio, State v. Shoecraft, 155 Ohio St. 3d 1455, 2019-Ohio-1759, but the delayed appeal

was dismissed for want of prosecution. State v. Shoecraft, 156 Ohio St. 3d 1411, 2019-Ohio-2402.

On February 21, 2019, Petitioner applied to reopen his direct appeal under Ohio R. App.

P. 26(B), claiming his appellate attorney was ineffective for failing to claim his trial attorney was

ineffective for not presenting a cultural expert (State Court Record, ECF No. 7, PageID 243-59).

The Second District denied reopening, id. at PageID 260-64, and the Supreme Court of Ohio

declined appellate jurisdiction. State v. Shoecraft, 156 Ohio St. 3d 1455, 2019-Ohio-2780.

Prior to that, Petitioner filed for post-conviction relief under Ohio Revised Code § 2953.21

(State Court Record, ECF No. 7, PageID 294-302), which was denied in August 2019. Id. at

PageID 327-36). Petitioner took no appeal, but filed the instant habeas corpus petition August 19,

2019, pleading the following grounds for relief:

Ground One: Petitioner did not voluntarily waive his right to a jury

trial in violation of his 5th, 6th, and 14th Amendment rights.

Supporting Facts: Petitioner submits that the records establishes

[sic] that he did not waive his rights to a jury trial in a knowing,

intelligent, and voluntary fashion, as petitioner was not sufficiently

appraised [sic] of how his guilt could be decided.

Ground Two: The trial court erred by rejecting petitioner’s

affirmative defense of self-defense and defense of another, violating

the 5th & 14th Amendments.

Supporting Facts: The records establishes [sic] that, at the time

Raglin (victim) attempted to drive away with the drugs without

paying, petitioner and his friend Glenn were standing along the

driver’s side of the car, petitioner argued at trial that he believed he

and Glenn were in danger, and based upon Raglin’s actions,

petitioner was legally justified in shooting in self-defense.

Ground Three: The trial court erred in rejecting voluntary

manslaughter an inferior degree of murder, violating the 5th, 14th,

Amendment [sic].

Supporting Facts: Petitioner submits that there was more than

sufficient provocation to bring extreme stress involved in this case,

and it was the trial court judge’s ignorance of petitioner’s race and

environment that kept the judge/trier of fact from seeing the

justification in the petitioner’s actions.

Ground Four: The trial court committed plain error in sentencing

petitioner on allied offenses.

Ground Five: The petitioner’s conviction on the charge of felonious

assault against Ms. Houchins was against both the sufficiency of the

evidence, and against the manifest weight of the evidence, violating

the 5th and 14th Amendments.

Supporting Facts: Petitioner had absolutely no intent to harm Ms.

Houchins, and there was not testimony produced that suggested

petitioner did, what could have happened in hind-sight and what did

is completely different.

Ground Six: Petitioner was denied effective assistance of trial

counsel in violation of his Sixth Amendment where counsel failed

to request a cultural expert.

Supporting Facts: Because of the cultural differences between the

judge and the parties involved, counsel was required to bring forth

a witness in mitigation of sentence, and to aid the defense in

establishing why petitioner felt threatened enough to shoot when a

white surbanian [sic] might not.

(Petition, ECF No. 4, PageID 39-45.)

Analysis

Ineffective Assistance of Trial and Appellate Counsel Regarding Forensics

In his Traverse, Petitioner argued that the statement of facts by the Second District Court

of Appeals was in error in regard to describing how the fatal shooting actually occurred (ECF No.

14, PageID 889-92). He quotes at length for the actual trial testimony on the bullet trajectories.

At the end of this section he states:

As plainly demonstrated in this rebuttal, the state appellate court’s

factual findings are clearly incorrect and contrary to the actual

evidence in this case. And for reasons that should be clear to this

Court, this is a sure reflection on the ineffectiveness of trial and

appellate counsel as well.

Id. at PageID 892.

In the Report, the Magistrate Judge concluded that even if this part of the statement of facts

was in error, that was not material to the case (Report, ECF No. 15, PageID 914). This is so, the

Report stated, because: “It is undisputed that Shoecraft, and only Shoecraft, fired seven shots at

the fleeing car. It is undisputed that one of those shots lodged in Raglin’s brain and killed him.”

Id.

In his Objections, Petitioner argues that his rebuttal of the statement of facts is important

because it shows the evidence to convict was constitutionally insufficient as well as showing both

ineffective assistance of trial counsel and ineffective assistance of appellate counsel for not hiring

a forensics expert.

Petitioner’s objections are not persuasive. Shoecraft did not raise insufficiency of the

forensic evidence on direct appeal (Appellant’s Brief, State Court Record, ECF No. 7, PageID 100

et seq.). He did not raise ineffective assistance of trial counsel for failing to hire a forensic expert

in his petition for post-conviction relief. Id. at PageID 294-302. And the only issue he raised in

his 26(B) Application was a claim appellate counsel was ineffective for not claiming trial counsel

was ineffective for failure to call a cultural expert. Id. at PageID 243-59. Petitioner did not plead

insufficiency of the forensic evidence or ineffective assistance of trial counsel or ineffective

assistance of appellate counsel regarding forensic evidence even in his Petition. Thus Petitioner

procedurally defaulted this claim in the Ohio courts and never properly pleaded it as a claim here.1

Moreover, Petitioner has not explained away the undisputed facts noted by the Magistrate

Judge: Shoecraft fired at least seven shots at Raglin’s fleeing car. No one else shot at the car at

all. Raglin, at whom Shoecraft was aiming, died of a bullet wound to back of the head. Whether

or not, as Petitioner argues, a forensic expert would have “shredded the state’s case in this

regard[,]” (ECF No. 16, PageID 919), there is no other rational explanation of how Eric Raglin

was shot in the back of the head.

Ground One: Involuntary Waiver of Jury Trial

1 A district court may decline to review a claim a petitioner raises for the first time in his traverse

or reply. Jalowiec v. Bradshaw, 657 F.3d 293, 311-12 (6th Cir. 2011), citing Tyler v. Mitchell, 416

F.3d 500, 504 (6th Cir. 2005).

This case was tried to the bench after Petitioner waived his right to trial by jury. In his

First Ground for Relief, he claimed his waiver was not sufficiently well informed and therefore

involuntary. The Report noted that this claim had been argued under both Ohio and federal

constitutional law on direct appeal, the Second District Court of Appeals decided it on the merits,

and that decision was entitled to deference under 28 U.S.C. § 2254(d)(1) (ECF No. 15, PageID

902-04). The Report also found this claim was procedurally defaulted because Shoecraft’s delayed

appeal to the Supreme Court of Ohio was dismissed for want of prosecution. Id. at PageID 904-

06.

Petitioner makes no objection to the procedural default finding. As to the merits, this Court

can in fact only grant relief on a constitutional claim decided on the merits by the state courts if

the state court decision was an unreasonable application of Supreme Court precedent. Petitioner

does not even claim that there is such a case, either in his Traverse or his Objections. That is, he

does not point to any case in which the Supreme Court held a jury waiver was invalid based on

omission of the information Shoecraft claims he was not told, to wit, that a jury verdict had to be

unanimous and that he would be allowed to participate in the jury selection process. Petitioner’s

Objections on Ground One are OVERRULED.

Ground Two: Self Defense and Defense of Another

In his Second Ground for Relief, Petitioner asserts the trial judge committed error in not

accepting his affirmative defenses of self-defense and defense of another. The Second District

Court of Appeals rejected these defenses by holding the trial evidence did not support them. State

v. Shoecraft, 2018-Ohio-3920 (Ohio App. 2nd Dist. 2018). This claim had been presented to that

court as a manifest weight of the evidence claim and the Magistrate Judge held that such a claim

is not cognizable under the United States Constitution (Report, ECF No. 15, PageID 907, citing

Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986)).

Petitioner objects that “affirmative defenses deals [sic] with sufficiency of the evidence,

which the petitioner had the burden of proving by a preponderance of the evidence. . . . This

constitutional claim should be reviewed for sufficiency of evidence.” (Objections, ECF No. 16,

PageID 921.)

In his brief on appeal, Shoecraft admitted that self-defense and defense of another are

affirmative defenses under Ohio law on which a defendant bears the burden of proof by a

preponderance of the evidence (State Court Record, ECF No. 7, PageID 116). To prevail on a

claim that there was insufficient evidence to convict in the face of a claim of self-defense, a

defendant would have to show that the evidence supporting the defense was so strong that no

rational trier of fact could have rejected it. Here the Second District essentially found that there

was insufficient evidence of self-defense or defense of another to prove those defenses.

Petitioner’s appellate counsel correctly quoted the elements of self-defense:

To prove self-defense, a defendant must prove three elements. The

defendant must prove that he: (1) was not at fault in creating the

situation that gave rise to the fight; (2) had a bona fide belief that he

was in imminent danger of death or great bodily harm and that the

use of force was his only means of escape; and (3) he did not violate

any duty to retreat or avoid the danger. State v. Goff, 128 Ohio St.3d

169, 2010-Ohio-6317, 942 N.E.2d 1075, ,136, quoting State v.

Thomas, 11 Ohio St.3d 323,326,673 N.E.2d 1339 (1997); State v.

Williford, 49 Ohio St.3d 247,249 (1990), citing State v. Robbins, 58

Ohio St2d 74 (1979), at paragraph two of the syllabus. Generally,

one has a duty to retreat/if possible, before resorting to lethal force.

Id. at 250.

Id. at PageID 117. The Second District, in effect, held that Shoecraft had presented insufficient

evidence to establish any of these elements of self-defense or defense of another. Shoecraft, 2018-

Ohio-3920, ¶¶ 35-39.

In a sufficiency of the evidence habeas corpus case, deference must be given to the trier-

of-fact’s verdict under Jackson v. Virginia, 443 U.S. 307 (1979), and then to the appellate court's

consideration of that verdict, as commanded by AEDPA. Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Tucker v.

Palmer, 541 F.3d 652 (6th Cir. 2008) .

Petitioner’s Objections as to Ground Two are OVERRULED.

Ground Three: Failure to Accept Voluntary Manslaughter as Lesser Included Offense

In his Third Ground for Relief, Petitioner claims there was sufficient evidence of the

provocation he was under to justify a conviction for voluntary manslaughter instead of murder. In

his closing argument trial counsel asked the trial judge to consider the lesser included offense of

voluntary manslaughter. Shoecraft, 2018-Ohio-3920, ¶ 43. The Magistrate Judge found the

Second District rejected this claim because it was inconsistent with Shoecraft’s own testimony that

he shot Raglin out of fear and fear is insufficient under Ohio law to constitute the sudden passion

or fit of rage necessary to reduce murder to voluntary manslaughter. Id. at ¶¶ 47-48.

The Report recommended dismissing this Ground for Relief because a habeas court may

not re-weigh the credibility of witnesses and there is no federal constitutional rule to require

conviction on a lesser included offense (Report, ECF No. 15, PageID 908).

Petitioner was understandably upset that Raglin was attempting to get away without paying

for $600 worth of methamphetamine. The Second District noted that voluntary manslaughter

under Ohio law requires meeting both an objective and a subjective test. Objectively, a defendant

must prove the provocation was sufficient to arouse “the passion of an ordinary person beyond the

power of his or her control” of the impulsive rage to use deadly force. Shoecraft, 2018-Ohio-3920,

¶ 46. Only if an ordinary person would be so aroused does the court reach the subjective question:

was this defendant thus aroused? Petitioner complains that nobody asked him how angry he felt

at having $600 of contraband ripped off (Objections, ECF No. 16, PageID 922). But the subjective

question is not reached until an affirmative answer is reached on the objective question. Here the

Second District noted that, under governing Ohio case law, the fear sufficient to sustain a self-

defense position, which is what Shoecraft claimed, is not sufficient and it had already held the

facts would not support self-defense. Shoecraft, 2018-Ohio-3920, ¶ 47. A fortiori they would not

support a reduction to voluntary manslaughter.

The question of what evidence is required to reduce murder to voluntary manslaughter is a

question of Ohio law. On that question, this Court is bound by the Second District’s conclusion.

We are also bound by its weighing of the evidence since we may not reevaluate the credibility of

the witnesses. Petitioner’s Objections on Ground Three are OVERRULED.

Ground Four: Allied Offenses/Double Jeopardy

In his fourth assignment of error, Shoecraft argued on direct appeal “that the trial court

erred when it failed to merge his convictions for murder (Raglin), felonious assault (Houchins),

carrying a concealed weapon, discharge of firearm on or near prohibited premises, having a

weapon while under disability, and trafficking in drugs.” Shoecraft, 2018-Ohio-3920, ¶ 51.

The Report concluded this claim was barred by Petitioner’s procedural default in not

making any contemporaneous objection at trial, a default enforced by the Second District’s review

only for plain error (Report, ECF No. 15, PageID 908-09).

Petitioner objects that “the contemporaneous objection rule does not apply to the appeal of

an unlawful sentence.” (Objections, ECF No. 16, PageID 923.) For support he appeals to the very

paragraph of the Second District’s decision which applied the contemporaneous objection rule to

him in this case. The court wrote:

Initially, we note that Shoecraft has waived all but plain error by

failing to object to the failure of the trial court to merge his

convictions at his sentencing hearing. See State v. Rogers, 2d Dist.

Greene No. 2011 CA 0057, 2012-Ohio-4451, ¶ 5. However, failure

to merge allied offenses of similar import is plain error. Id. In order

to prevail under the plain error standard, an appellant must

demonstrate both that there was an obvious error in the proceedings

and that but for the error, the outcome of the trial clearly would have

been otherwise. Id., citing State v. Noling, 98 Ohio St.3d 44, 2002-

Ohio-7044, 781 N.E.2d 88.

Shoecraft, 2018-Ohio-3920, ¶ 56. Thus, Petitioner is in error when he claims the contemporaneous

objection rule does not apply to allied offenses claims.

Despite Petitioner’s procedural default, the Second District did analyze his allied offenses

claim for plain error. It concluded the felony murder of Raglin and the felonious assault on

Houchins did not merge because there were different victims. Shoecraft, 2018-Ohio-3920, ¶ 57.

It concluded the conviction for discharge of a firearm upon or over a public roadway did not merge

because the general public that uses the roadway is the victim of the risk created, even if no one

besides the murder victim is hurt. Id. at ¶ 58, following its own precedent in State v. Williams, No.

27663, 2018-Ohio-11647 (Ohio App. 2nd Dist. Apr. 27, 2018).

Although the Objections cite other Ohio cases which have held the same as the Second

District did in this case and in Williams, but concludes that punishing Shoecraft for both offenses

violates the Double Jeopardy Clause because it “depends on the same identifiable harm of the

person injured by the same discharging of a firearm to increase the penalty for the offense . . .

[and] petitioner has already been punished for that harm in a separate offense.” (Objections, ECF

No. 16, PageID 925.)

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution

affords a defendant three basic protections:

It protects against a second prosecution for the same offense after

acquittal. It protects against a second prosecution for the same

offense after conviction. And it protects against multiple

punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717

(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). The Double

Jeopardy Clause was held to be applicable to the States through the Fourteenth Amendment in

Benton v. Maryland, 395 U.S. 784, 794 (1969).

The test for whether two offenses constitute the same offense for Double Jeopardy purposes

is “whether each offense contains an element not contained in the other[.]” United States v. Dixon,

509 U.S. 688, 696 (1993), citing Blockburger v. United States, 284 U.S. 299, 304 (1932). Yet,

even where two offenses are the same for Blockburger purposes, multiple punishments can be

imposed if the legislature clearly intended to do so. Garrett v. United States, 471 U.S. 773, 779

(1985), citing Missouri v. Hunter, 459 U.S. 359, 368 (1983) and Albernaz v. United States, 450

U.S. 333, 344 (1981); .

An Ohio court of appeals decision of a double jeopardy claim limited to the application of

Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy claim. Jackson v.

Smith, 745 F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632, 705 (1999),

overruled prospectively by State v. Johnson, 128 Ohio St. 3d 153 (2010) (see Volpe v. Trim, 708

F.3d 688 F.3d 688, 701 (6th Cir. 2013).

What determines whether the constitutional prohibition against

multiple punishments has been violated is the state legislature’s

intent concerning punishment. Specifically, “[w]ith respect to

cumulative sentences imposed in a single trial, the Double Jeopardy

Clause does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.”

Jackson, 745 F.3d at 211 (alteration in original), quoting Hunter, 459 U.S. at 366 . Ohio Rev.

Code § 2941.25, and not the Blockburger test, determines whether a person has been punished

twice for the same offense under Ohio law in violation of the federal Double Jeopardy Clause.

Jackson v. Smith, 745 F.3d at 213.

Here the Second District in this case and Williams, as well as the other cases cited by

Petitioner in his objections, have determined that the single act of firing a gun at a fleeing car with

a driver and a passenger is three separate offenses because there are three separate victims: the

driver, the passenger, and the road-using public. Because these are not allied offenses of similar

import under Ohio Revised Code § 2941.25, Petitioner’s conviction for all three does not violate

the Double Jeopardy Clause. Petitioner’s Objections on Ground Four are OVERRULED..

Ground Five: Insufficient Evidence on Assault on Houchins

In his Fifth Ground for Relief, Shoecraft claims there was insufficient evidence to convict

him of felonious assault on Amanda Houchins, the front seat passenger in Raglin’s car when

Shoecraft shot at it. Petitioner presented this as his fifth assignment of error on direct appeal. The

Second District noted that Shoecraft admitted knowing Houchins was in the front passenger seat.

Shoecraft, 2018-Ohio-3920, ¶ 74. “As Raglin drove away without paying for the

methamphetamine, Shoecraft fired at least seven shots from a handgun at Raglin's vehicle.

However, Shoecraft argues that because he only intended to shoot at Raglin, he could not be

convicted for felonious assault against Houchins.” Id.

The Report concluded this decision was not an unreasonable application of the controlling

Supreme Court precedent, Jackson, 443 U.S. 307, and was therefore entitled to deference under

28 U.S.C. § 2254(d)(1) (Report, ECF No. 15, PageID 912). The Magistrate Judge also noted this

claim was procedurally defaulted when Petitioner failed to prosecute his appeal in the Supreme

Court of Ohio. Id.

Petitioner’s Objections assert this interpretation is contrary to the plain language of the

felonious assault statute (ECF No. 16, PageID 926), but we are bound by the Second District’s

interpretation of that statute. Petitioner admits he was trying to shoot Raglin and the Second

District reasonably found that in doing so he fired at least seven bullets into the rear of the car in

which Houchins was a passenger. This fits squarely within the doctrine of transferred intent cited

in the Report (ECF No. 15, PageID 910, citing Bradshaw v. Richey, 546 U.S. 74, 76-78 (2005)).

Aside from the merits, Petitioner makes no effort to excuse his procedural default of this

claim in the Supreme Court of Ohio. His Objections on the Fifth Ground for Relief are

OVERRULED.

Ground Six: Ineffective Assistance of Trial Counsel: Failure to Retain a Cultural Expert

In his Sixth Ground for Relief, Petitioner claims he received ineffective assistance of trial

counsel when his trial attorney did not retain a cultural expert who could have testified that

Shoecraft’s shooting of Raglin was justified or at least the seriousness could be mitigated because

Raglin felt threatened enough to shoot when a white suburbanite might not have.

The Report rejected this claim in part because Petitioner had not cited any Supreme Court

authority for the proposition that failure to employ such an expert would have been deficient

performance as required by Strickland v. Washington, 466 U.S. 668 (1984) (Report, ECF No. 15,

PageID 913). The Magistrate Judge also found the claim procedurally defaulted because it would

obviously depend on evidence outside the direct appeal record – for example, proof that there

exists a reputable cultural expert willing to testify as Petitioner suggests – and no such proof was

submitted with Shoecraft’s petition for post-conviction relief. Id. at PageID 913-14.

Petitioner now asks the Court to stay and abey this case so that he can return to state court

to present such evidence and exhaust this ground for relief, as well as his claim about failure to

call a forensic expert (Objections, ECF No. 16, PageID 926). However, that request misses the

point of procedural default: Shoecraft already had an opportunity to present this claim in a post-

conviction petition and failed to do so. The circumstance in which an Ohio court will entertain a

second post-conviction petition are very limited, and Shoecraft does not meet them. See Ohio

Revised Code § 2953.23. Moreover, in authorizing the stay and abeyance procedure, the Supreme

Court held:

[S]tay and abeyance should be available only in limited

circumstances. Because granting a stay effectively excuses a

petitioner's failure to present his claims first to the state courts, stay

and abeyance is only appropriate when the district court determines

there was good cause for the petitioner's failure to exhaust his claims

first in state court. Moreover, even if a petitioner had good cause for

that failure, the district court would abuse its discretion if it were to

grant him a stay when his unexhausted claims are plainly meritless.

Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the courts of the

State”). . . .

Rhines v. Weber, 544 U.S. 269, 277-278 (2005). Petitioner’s claim that his trial attorney should

have hired a cultural expert to testify that Shoecraft’s shooting of Raglin is somehow justified or

its seriousness mitigated by Shoecraft’s ethnicity or upbringing is plainly meritless. He has not

shown that any such expert exists. Petitioner’s Objections on Ground six are OVERRULED.

Separate Objection on Overcoming Procedural Default

At the conclusion of his Objections, Petitioner argues at length that his procedural default

in the Supreme Court of Ohio is excused by ineffective assistance of appellate counsel in the form

of Ohio’s denial of appointed counsel at the stage of appeal to the Supreme Court of Ohio

(Objections, ECF No. 16, PageID 927-30).

This Objection is without merit. Ineffective assistance of counsel can excuse procedural

default only if it occurs in a proceeding in which a defendant is entitled to appointee counsel under

the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional

right to counsel there can be no deprivation of effective counsel); Riggins v. Turner, No. 95-4027

1997 U.S. App. LEXIS 6115, *5 (6th Cir. Mar. 27, 1997); Barkley v. Konteh, 240 F. Supp. 2d 708,

714 (N.D. Ohio 2002). The right to appointed counsel extends to the first appeal of right and no

further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).

While habeas petitioners are required to exhaust their remedy of an appeal to the Supreme Court

of Ohio, review by that court is discretionary (except in capital cases) and not a matter of right.

Attorney error cannot constitute cause where the error caused a petitioner to default in a proceeding

in which he was not constitutionally entitled to counsel, e.g., a discretionary appeal or state post-

conviction proceeding. Coleman v. Thompson, 501 U.S. 722, 756 (1991). Lack of counsel in

Supreme Court of Ohio proceedings and lack of a trial transcript at that stage of the case does not

excuse default in those proceedings. Bonilla v. Hurley, 370 F.3d 494, 497-98 (6th Cir. 2004).

Petitioner’s argument that lack of counsel in Supreme Court of Ohio proceedings excuses

his default in those proceedings is OVERRULED.

Conclusion

Having review the Magistrate Judge’s Report in light of the Objections, the Court

ADOPTS the Report and orders that this case be dismissed with prejudice. The Clerk shall enter

judgment to that effect. Because reasonable jurists would not disagree with this conclusion,

Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that

any appeal would be objectively frivolous and therefore should not be permitted to proceed in

forma pauperis.

February 24, 2020 *s/Thomas M. Rose

_____________________________

Thomas M. Rose

United States District Judge