The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RALPH STATZER,
Petitioner, : Case No. 1:18-cv-626
- vs - District Judge William O. Bertelsman
Magistrate Judge Michael R. Merz
DAVID MARQUIS, Warden,
Richland Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
With the assistance of counsel, Petitioner Ralph Statzer brought this habeas corpus action
pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Butler County Court of
Common Pleas on five counts of oral rape of his minor granddaughter and his consequent
incarceration in Respondent’s custody. The case is ripe for decision on the Petition (ECF No. 1),
the State Court Record (ECF No. 4), Respondent’s Return of Writ (ECF No. 5), sealed portions of
the State Court Record (ECF Nos. 7 and 8), Petitioner’s Reply (ECF No. 12), a sealed Supplement
to the Record (ECF No. 14), and a Supplemental Memorandum supporting relief (ECF No. 15).
The Magistrate Judge reference in this case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 16).
Litigation History
Summary
Petitioner Ralph Statzer was originally indicted by a Butler County grand jury on May 21,
2014, on four counts of rape of his minor granddaughter in violation of Ohio Revised Code §
2907.02(A)(1)(b) (Counts 1-4) and one count of gross sexual imposition on her friend, another
minor, in violation of Ohio Revised Code § 2907.05(A)(4) (Count 5). (Indictment, Case No.
CR2014-05-0807, State Court Record ECF No. 4, SCR, Exhibit 1). A superseding indictment in
October 2014 added one count of rape. The indictment was later amended to narrow the date range
on Counts One, Two, Five, and Six (Order to Amend, State Court Record, ECF No. 4, Ex. 7).
The case was tried to the bench and Statzer was found guilty on the rape charges but not
guilty on the gross sexual imposition count. The trial court then imposed sentences of life with
parole eligibility after serving ten years on Counts 1 and 2, eighteen years to life on Count 3, and
sentences of ten years to life on Counts 4 and 5, all to run concurrently. (Judgment, State Court
Record, ECF No. 4, Ex. 9).
On direct appeal, the Ohio Twelfth District Court of Appeals overruled Statzer’s first two
assignments of error, but remanded for re-sentencing on Count Three. State v. Statzer, 2016-Ohio-
7434 (Ohio App. 12th Dist. Oct. 24, 2016)(“Statzer I”), appellate jurisdiction declined, 149 Ohio
St. 3d 1464 (2017). On remand the sentence on Count Three was amended to fifteen year to life
and the other sentences remained unchanged.
On September 23, 2016, with the assistance of counsel, Statzer filed a petition for post-
conviction relief under Ohio Revised Code § 2953.21 (State Court Record, ECF No. 4, Ex. 18).
On February 8, 2017, the trial court dismissed the petition as barred by res judicata (Entry, State
Court Record, ECF No. 4, Ex. 22). The Twelfth District affirmed the dismissal. State v. Statzer,
2018-Ohio-363 (Ohio App. 12th Dist. Jan. 29, 2018)(“Statzer II”), appellate jurisdiction declined,
2018-Ohio-2155 (2018).
Detail of Litigation History Relevant to Habeas Claims
Statzer was represented at trial by Attorney Justin W. Bartlett (See PageID 21). Bartlett is
the only attorney accused of providing ineffective assistance of trial counsel in this case. On March
3, 2015, the State moved “to exclude any evidence offered by the Defendant as to specific instances
of victims1 [name redacted; initials are “M.S.”] sexual activity, opinion evidence of victims' sexual
activity, or reputation evidence of victim's sexual activity as said evidence is inadmissible pursuant
to O.R.C. 2907.02(D), otherwise know [sic] as the "Rape Shield Law" (Motion in Limine, State
Court Record, ECF No. 4, PageID 19.)
Bartlett opposed the Motion in Limine, arguing applying the Rape Shield statute to this
case would not further the purposes of the statute as identified by the Ohio Supreme Court in State
v. Gardner, 59 Ohio St.2d 14 (1979). Specifically he said
Defendant seeks to introduce evidence of M.S.' prior allegations
against Richard Keith. Specifically, M.S. filed a complaint with the
Department of Job and Family Services in March of 2014 alleging
that Richard Keith had sexually abused her. At that time, M.S. also
made further - and inconsistent - allegations against the Defendant.
Relevantly, Job and Family Services concluded that M.S.'
complaints were "unsubstantiated." Job and Family Services made
an identical finding regarding M.S.' August 2010 complaint against
the Defendant. Based on these findings, Defendant seeks to
introduce evidence of M.S.' allegations against Richard Keith as
evidence of M.S.' credibility and possible fabrication, not merely to
1 Although the Motion uses the plural, the Magistrate Judge understands only one victim is involved.
show that M.S. is promiscuous. Accordingly, we submit that the
interests advanced by the rape shield law are not advanced by
applying it in this case.
Lastly, it should [be noted that] that the rape shield law was designed
to prevent a jury from trying the victim rather than the defendant.
As the Defendant has elected to waive his right to a jury and proceed
with a bench trial, these concerns are not present.
(Memorandum in Opposition, State Court Record, ECF No. 4, PageID 22-23.)
In response the State filed a Supplemental Memorandum disputing Mr. Bartlett’s
characterization of the findings of Job and Family Services and representing that its May 8, 2014,
report had been furnished to Bartlett on August 14, 2014 (State Court Record, ECF No. 7, PageID
453 (filed under seal in this Court)). The parties agreed that any rape shield issues would be dealt
with during trial and they were (Trial Tr., State Court Record, ECF No. 8, PageID 554-60.)
On appeal Petitioner was represented by Attorney Fred Miller (See State Court Record,
ECF No. 4, PageID 40). His first assignment of error challenged the manner in which the trial
judge handled the Rape Shield issue, which the Twelfth District overruled. Assignment of Error
Two is his ineffective assistance of trial counsel claim. Statzer argued “Counsel is ineffective
when he fails to fully cross-examine a rape victim regarding her prior inconsistent statements about
the rape, when he fails to elicit necessary facts at a rape shield hearing, and when he fails to
challenge the constitutionality of the rape shield statute.” (Appellant’s Brief, State Court Record,
ECF No. 4, PageID 42.)
The Twelfth District Court of Appeals decided Statzer’s Second Assignment of Error as
follows:
[*P14] Assignment of Error No 2:
[*P15] APPELLANT RECEIVED THE INEFFECTIVE
ASSISTANCE OF COUNSEL.
[*P16] Statzer argues that his convictions must be reversed
because he received ineffective assistance of counsel. Counsel is
strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional
judgment. State v. Hendrix, 12th Dist. Butler No. CA2012-05-109,
2012-Ohio-5610, ¶ 14. To prevail on an ineffective assistance of
counsel claim, Statzer must show his trial counsel's performance fell
below an objective standard of reasonableness and that he was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-
688, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).
[*P17] In order to demonstrate prejudice, Statzer must establish
that, but for his trial counsel's errors, there is a reasonable
probability that the result of trial would have been different. State v.
Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-
1584, ¶ 42. A "reasonable probability" is a probability that is
"sufficient to undermine confidence in the outcome." Strickland at
694. The failure to make an adequate showing on either prong is
fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶
42.
Rape shield hearing
[*P18] Statzer contends that counsel was ineffective during the
rape shield hearing and should have inquired further of the victim
concerning the alleged false allegation of rape. This argument is
meritless for the reasons set forth in our discussion on the first
assignment of error. Statzer failed to demonstrate that the victim
made a false accusation. Moreover, even if he had met his burden of
proving that the accusation was false, further cross-examination at
trial would be precluded by the rape shield law because there was
sexual activity involved.
Failure to claim rape shield statute unconstitutional as applied
[*P19] Statzer argues that his counsel was ineffective for failing to
challenge the constitutionality of the rape shield law as it was
applied to him. The rape shield law prohibits the admission of
evidence concerning a victim's sexual activity except in some
narrow circumstances. R.C. 2907.02(D). Necessarily, any
restriction on a defendant's ability to cross-examine an accuser could
impede due process rights.
[*P20] But a defendant's due process rights must be balanced
against the state's interest in the rape shield law. State v. Hart, 112
Ohio App.3d 327, 331, 678 N.E.2d 952 (12th Dist.1996). To
determine whether the rape shield law was unconstitutionally
applied, the state's interest must be balanced against the probative
value of the excluded evidence. Id. at 331-332. Legitimate state
interests include guarding the victim's privacy, preventing the victim
from undue harassment, and discouraging the tendency in rape cases
to try the victim rather than the defendant. Id. at 332.
[*P21] To assess the probative value of the excluded evidence, it
is necessary to examine its relevance to the issues for which it was
offered. Id. Here, the excluded evidence was intended to
demonstrate that the victim falsely accused another relative of a
different rape, i.e., to attack the victim's credibility. But Statzer
offered no credible evidence establishing the falsity of the
allegation. Thus, the excluded evidence lacked probative value.
Moreover, the excluded evidence was oriented exclusively towards
impeaching the victim's credibility and was not probative of any
material issue in the case, i.e., whether Statzer raped the victim on
specific dates over the course of multiple years. Consequently, an
as-applied challenge to the rape shield law would lack merit and
counsel cannot be deficient for failing to raise a meritless claim.
Failure to cross-examine and call a witness
[*P22] Statzer contends that counsel was ineffective for failing to
confront the victim with an affidavit. The affidavit, signed by a
relative, alleged that the victim told the relative that the victim's
mother pressured her into making false accusations of rape against
Statzer. However, Statzer's counsel did cross-examine the victim on
this specific allegation and the victim denied the claim.
Accordingly, this argument lacks merit.
[*P23] Statzer also argues that counsel was ineffective for failing
to ensure that the relative who signed the affidavit appeared and
testified at trial. The record demonstrates that Statzer's counsel twice
subpoenaed the relative to appear, once by personal service and once
by certified mail, and neither attempts [sic] at service were [sic]
successful. The record does not reflect whether counsel made any
additional efforts to secure the witness.
[*P24] Even if counsel made no further attempts we cannot find
any deficiency on this record. It is well-established that the choice
to call witnesses is a trial tactic.
CA2001-03-056, 2002-Ohio-5505, at ¶ 22. Trial tactics are afforded
the presumption of reasonableness. To overcome that presumption,
and to establish prejudice, Statzer "must establish that the testimony
of the witness would have significantly assisted the defense[,] and
that the testimony would have affected the outcome of the case." Id.
[*P25] We conclude that the relative's anticipated testimony would
not have changed the outcome of this case. This prosecution hinged
on the credibility of the victim, witnesses, and Statzer. Here, the
trial judge believed the victim's testimony describing five separate
instances where Statzer raped her. We defer to the factfinder on
credibility determinations. State v. Andrews, 12th Dist. Butler No.
CA2009-02-052, 2010-Ohio-108, ¶ 46.
[*P26] And after having reviewed the record, we find no error in
the trial court's determination that Statzer's testimony was not
credible. Statzer's version of events at trial was inconsistent with his
earlier statements. And Statzer's claim that the minor victim asked
him to perform oral sex on her, that she became angry at him when
he refused, and then decided to falsely accuse him of rape, strains
credibility. Consequently, we find nothing to suggest that the
relative's anticipated testimony would have affected the outcome of
the case. Accordingly, we overrule the second assignment of error.
Statzer, 2016-Ohio-7434.
Before the Twelfth District entered judgment on October 24, 2016, Statzer had already
changed lawyers and acquired the services of his present counsel, Attorney Christopher Pagan,
who filed the petition for post-conviction relief on September 23, 20162 (ECF No. 4, PageID 160,
et seq.) In that Petition, Statzer pleads one ground for relief
Statzer's 6th Amendment right to effective assistance of counsel was
violated where
1) his trial counsel failed to develop evidence at the rape shield
hearing to permit the effective cross-examination of the victim;
2 This was a month before the Twelfth District’s decision on direct appeal, but only a day before the one-year statute
of limitations for post-conviction petitions would have expired. That statute is not tolled while a direct appeal is
pending, so Statzer could not wait to see what the appellate court would do with his direct appeal ineffective assistance
of trial counsel claim.
2) his trial counsel failed to challenge the constitutionality of the
rape shield bar to permit the effective cross-examination of the
victim; and
3) his trial counsel failed to impeach the victim -- intrinsically and
extrinsically -- with a prior inconsistent statement that she had
lied in Statzer's case due to pressure from her mother.
Id. at PageID 170-71. In support of the Petition, Statzer offered the legal opinion of his appellate
attorney, Fred Miller, as follows:
4. That Statzer’s counsel was ineffective under the 6th amendment in the following
ways:
i) Counsel failed to develop a record at the rape-shield hearing to
show that the victim had made a prior, false allegation of rape.
Specifically, but not exclusively, counsel failed to obtain testimony
-- by use of compulsory process or otherwise -- from Richard Keith,
Shina Eckman, and records from the Department of Job and Family
Services to show the absence of sexual activity and that the prior
allegation was false. No reasonable trial strategy supported this
failure. The rape shield evidence was not part of the trial evidence
and the victim’s credibility was the singular basis of the State's case.
ii) Counsel also failed to challenge the constitutionality of the rape-
shield statute on an “as appljed” basis. Specifically, counsel failed
to elicit evidence from Richard Keith, Shina Ekman, and the records
from the Department of Job and Family Services to satisfy the test
from State v. Hart, 112 Ohio App. 3d 327 (1996) and State v. Young,
8th Dist., 2009-0bio-5354, ¶34, There was no reasonable trial
strategy to support this failure. The rape-shield statute must yield to
the defendant's right present a defense and confront witnesses.
Evidence that the victim previously lied regarding rape was critical
to undermining her testimony against Statzer. Asserting the
constitutional argument was a second way to achieve Statzer's right
to cross-examine the victim in the most effective way. Once the
rape-shield hearing was convened, there was no reasonable tactic to
forego the constitutional argument.
iii) Counsel failed to develop, or to use compulsory process to
develop the testimony of Shina Eckman as impeachment evidence.
The victim told Eckman she had lied about the Statzer allegations.
Thus, the victim was subject to heavy impeachment under
Evid.R.613(A) for a prior inconsistent statement going to the very
basis of the allegations. And Eckman could have been called as a
witness to repeat the victim's statements under Evid.R.613(B) to
prove the victim's bias. Statzer had a failed affair with the victim's
mother, so the allegations were in revenge for the failed affair,
establishing the victim's bias against Statzer. There was no
reasonable trial strategy to support this failure. Credibility was the
sole issue and Eckman's testimony that the victim confessed to lying
was the best evidence to attack credibility and show bias.
(Miller Affidavit, State Court Record, ECF No. 4, PageID 172-73.) There is no attached affidavit
from Shina Eckman or Richard Keith indicating what they would have testified to if called as
witnesses, either at trial or in a post-conviction evidentiary hearing.3
The State opposed the Petition for Post-Conviction Relief on the grounds of res judicata,
asserting that the ineffective assistance of trial counsel claim in the Petition was exactly the same
claim made in the then-pending direct appeal (State’s Response, State Court Record ECF No. 4,
Ex. 19). The prosecutor noted that the Post-Conviction Petition was not supported by new material
evidence outside the record, but only by appellate counsel’s affidavit, which essentially reiterated
his brief. Id.
Once the Twelfth District rendered its direct appeal decision on October 24, 2016, the State
reiterated its res judicata position in a Motion to Dismiss (State Court Record, ECF No. 4, Ex. 20).
Several months later in January 2017, Statzer opposed the Motion to Dismiss and sought an
evidentiary hearing (Memorandum, State Court Record, ECF No. 4, Ex. 21). Now the focus had
changed from Shina Eckman to Richard Keith:
He [Statzer] alleged ineffective assistance of trial counsel for failing
to develop and advance the Keith evidence. A private investigator
was engaged. The investigator interviewed Keith. Keith stated, inter
alia, that he neither orally raped nor sexually abused M.S., that Sara4
3 It appears that the statute of limitations as to M.S.’s accusations of sexual abuse against Keith would not have expired
as of the time of trial so that he would have been entitled to invoke his Fifth Amendment privilege if asked in Statzer’s
trial whether he had engaged in sexual conduct with M.S.
4 Sometimes spelled “Sara” in the record and sometimes spelled “Sarah.”
Statzer pressured M.S. to lie about him, that Sara Statzer told Keith's
sister that she lies about oral sex to 'fuck with' men, and that the
instant allegations arose after Keith confronted Sara Statzer about
her failed affair with petitioner. Exhibit A. Keith and Sara Statzer
were litigating a domestic violence case when Keith confronted
Sara.
Id. at PageID 280. Exhibit A is the Affidavit of Sherry Richardson, hired by Attorney Pagan to
investigate. Ms. Richardson provides an account of her interview with Keith which demonstrates,
if nothing else, the animus between Richard Keith and Sara Satzer
Richardson reports that an affidavit from Keith is “currently being pursued” and she has
been retained to interview two other men against whom false allegations of oral rape were,
according to Keith, made by Sara (Id. at PageID 288). No results of that investigation are later
reported and Keith, on advice of counsel, refused to give an affidavit.
Relying on controlling precedent from his own appellate district, the trial judge dismissed
the Post-Conviction Petition without an evidentiary hearing (Dismissal, State Court Record, Ex.
22, relying on State v. Lawson, 2014-Ohio-3554 (Ohio App. 12th Dist. 2014). He concluded that
Statzer’s claim that the rape shield statute was unconstitutional as applied and about impeachment
of M.S. with her prior inconsistent statements to Eckman had been decided on direct appeal. Id. at
PageID 295. Keith’s involvement and the existence of the Jobs and Family Services records were
also reflected in the trial transcript. Id. He references the places in Statzer’s appellate brief where
the relevant documents needed to raise the ineffective assistance of trial counsel issues can be
found. Id. at PageID 296. Finally he notes that the evidence offered (the Richardson and Popp
Affidavits) is entirely hearsay. Id. Hence, he concluded, the ineffective assistance of trial counsel
claims in the Post-Conviction Petition were barred by res judicata.
On appeal, again to the Twelfth District, Statzer relied on an exception to res judicata
recognized in State v. Cole, 2 Ohio St. 3d 112 (1982), for post-conviction petitions based on
evidence dehors the trial record (Appellant’s Brief, State Court Record, ECF No. 4, PageID 308-
09). He asserted the ineffective assistance of trial counsel sub-claim related to not calling Richard
Keith had been rejected on direct appeal because the Twelfth District found that the fact of M.S.’s
lying about being orally raped by Keith was outside the record. Id. at PageID 309, citing Statzer I
at ¶¶ 18, 21. The post-conviction record, however, was expanded, he says, with
A private investigator's affidavit indicated that Keith stated that
M.S. had lied about the oral rapes; and the Job and Family Services
report stated that M.S.'s allegations-which Keith said were lies-arose
after Sarah lost to Keith in custody court, and, further, that Sarah
used M.S.'s allegations against Keith to try and undo the unfavorable
custody orders.
Id.
Regarding the failure to pursue evidence from Eckman, Statzer’s Brief asserts:
Eckman signed an affidavit stating that M.S. confessed to lying
about Statzer's abuse under pressure from Sarah. [footnote omitted]
This evidence would have further impeached M.S.'s credibility and
explained that Sarah pressured M.S. to lie-comporting with Keith's
claim that Sarah likewise pressured M.S. to lie in his case regarding
oral rape. The Eckman affidavit was dehors the trial record but
submitted in postconviction.
The Twelfth District affirmed the dismissal of the post-conviction petition on res judicata
grounds. Statzer II. The court read Statzer’s ineffective assistance of trial counsel claim on direct
appeal to be that Attorney Bartlett
provided ineffective assistance of counsel ("IAC") by failing to (1)
effectively cross-examine the victim concerning an allegation that
the victim falsely accused another man — Richard Keith — of rape,
(2) challenge the constitutionality of the rape shield law as applied
to Statzer, and (3) cross-examine the victim with respect to the
affidavit of Shina Eckman, which averred that the victim's mother
pressured the victim into falsely accusing Statzer of rape. [footnote
omitted]
Id. at ¶ 3.
The appellate court noted that an Ohio trial court "properly denies a defendant's petition
for postconviction relief without holding an evidentiary hearing where the petition, the supporting
affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner
set forth sufficient operative facts to establish substantive grounds for relief." Id. at ¶ 13, citing
State v. Calhoun, 86 Ohio St. 3d 279 (1999), ¶ 2 of the syllabus.
The court rejected Statzer arguments to avoid res judicata as follows:
[*17] This court concludes that Statzer's postconviction relief
claims were barred by res judicata and that Statzer did not support
his petition with competent, relevant, and material evidence outside
the record on appeal. The IAC claims Statzer raised in his petition
could have been or were raised and addressed by this court in
Statzer's direct appeal. Accordingly, those claims are res judicata
and Statzer was precluded from re-litigating those claims in the
context of his petition for postconviction relief. Statzer disputes that
the IAC claims raised in his petition are the same as those raised in
his direct appeal. In his reply brief, he argues that the IAC claims in
postconviction are for "failing to elicit known impeachment
evidence." However, the IAC claims on direct appeal concerning the
rape shield hearing and the Eckman affidavit were both premised on
trial counsel's purported failure to impeach the victim's credibility
concerning allegations that she falsely accused Keith and Statzer of
rape. Accordingly, Statzer is simply "re-packaging" the same
argument he raised on direct appeal. Moreover, if the impeachment
evidence was "known," as Statzer concedes, then the argument
could have been raised on direct appeal and is therefore barred by
res judicata.
[*18] Statzer also contends that he supported his petition with
evidence outside the appellate record. Specifically, he claims that
this court rejected his IAC claims on direct appeal because trial
counsel failed to develop evidence concerning Keith and "the fact
that [the victim] lied was dehors the trial record." However, the
victim's statement concerning Keith was, as noted by the lower
court, "extensively explored" at trial. As this court discussed in
appellant's direct appeal, trial counsel cross-examined the victim
regarding her statement that she was "not raped" by Keith and the
victim explained that she did not understand the legal definition of
rape when making the statement, i.e. she alleged sexual abuse,
which she did not understand to be rape. Statzer, 2016-Ohio-7434 at
¶ 12, 72 N.E.3d 1202.
[*19] Moreover, the documentary evidence Statzer submitted in
support of his petition did not contain material, relevant facts
establishing grounds for postconviction relief. Appellate counsel's
affidavit summarized the claimed instances of IAC occurring at the
trial, which appellate counsel was obviously aware of during the
direct appeal and were in fact litigated during that appeal. The
affidavit of Statzer's private investigator alleged that trial counsel
failed to secure Keith's testimony at trial. This claimed issue was
known and could have been raised on direct appeal. Other facts
raised in the private investigator's affidavit, e.g., that Keith told the
private investigator that the victim lied, or that the allegations arose
during an unrelated custody dispute are marginal and insignificant.
The office manager's affidavit alleged that Keith would not provide
a sworn affidavit, which is also an insignificant fact.
[*20] The affidavit of Shina Eckman does not constitute evidence
outside the appellate record. Statzer filed the affidavit before trial
and his trial counsel used it in crossexamining the victim. This court
addressed and rejected Statzer's IAC claim concerning the Eckman
affidavit and the alleged failure to secure Eckman's testimony.
Statzer at ¶ 22-26.
[*21] Finally, the redacted Job and Family Services report does not
set forth relevant evidence outside the appellate record. The report
summarizes that the victim alleged that Keith molested her multiple
times. However, Keith retained counsel and would not provide a
statement to police. The police did not have sufficient evidence with
which to proceed against Keith and closed their investigation. This
evidence is both insignificant and unhelpful to Statzer's IAC claims.
Statzer II.
After the Supreme Court of Ohio declined appellate review, Statzer filed the instant
Petition for Writ of Habeas Corpus, pleading the following grounds for relief:
Ground One: Statzer was denied the effective assistance of counsel
under the Sixth and Fourteenth Amendments because his trial
attorney failed to elicit known impeachment evidence that
demonstrated the complainant’s bias and motive to misrepresent in
a case that turned exclusively on credibility.
Factual support: In postconviction, Statzer presented the
following:
The complainant’s mother had an affair with Statzer and had been
married to R.K. The complainant lived with the mother.
After R.K. obtained a custody order (involving another child) that
burdened the mother, the mother had Statzer’s complainant, who
was in the mother’s custody, make a false oral rape allegation
against R.K. The mother then used the R.K. rape allegation to try
and undo the unfavorable custody order.
R.K. confronted the mother about her affair with Statzer while
attending a hearing in the custody case. It was after this hearing that
the complainant similarly accused Statzer of oral rape.
The complainant told S.E. that her mother pressured her to lie about
Statzer’s oral rape because the mother was disappointed with Statzer
for their failed affair.
Ground Two: Statzer was denied the right to confront witnesses
and present a defense under the 6th and 14th Amendments: because
the state court refused to consider evidence that the complainant was
biased against Statzer and in favor of her mother, and evidence the
complainant had made a prior false allegation of oral rape against
R.K.
Factual support: On direct appeal and postconviction, Statzer
presented the following:
That the complainant was biased and had a motive to misrepresent
because of the facts stated in ¶10. This bias was reflected by her
false oral-rape allegations against R.K. and Statzer. The
complainant admitted to S.E. that she was pressured by her mother
to lie about the Statzer oral-rape allegations. And a social worker
heard the complainant yell that Statzer had not raped her – although
she discounted this statement later.
(Petition, ECF No. 1, PageID 2-3.)
Ground One: Ineffective Assistance of Trial Counsel
The Parties’ Positions
In his First Ground for Relief, Petitioner asserts he received ineffective assistance of trial
counsel when his trial attorney “failed to elicit known impeachment evidence that demonstrated
the complainant’s bias and motive to misrepresent. . . .”
Respondent asserts that this claim, insofar as it is the same claim of ineffective assistance
of trial counsel raised in post-conviction5, is barred by Statzer’s procedural default in failing to
raise the claim on direct appeal (Return of Writ, ECF No. 5, PageID 431). The Warden asserts
that Ohio’s doctrine of res judicata in criminal cases bars later Ohio court consideration of a claim
which was or could have been raise on direct appeal. Id. at PageID 433-34, citing State v. Perry,
10 Ohio St. 2d 175 (1967). The Twelfth District, the Warden argues, enforced this rule against
Statzer on appeal from denial of his post-conviction petition. Statzer II, ¶ 15, citing Perry.
Because Statzer has failed to show excusing cause and prejudice or actual innocence and the Sixth
Circuit has repeatedly held that the Perry doctrine is an adequate state procedural ground of
decision, Respondent asserts Ground One is procedurally defaulted (Return, ECF No. 5, PageID
434.)
In the Traverse Petitioner’s counsel summarizes Ground One as follows:
Statzer’s habeas claim is that trial counsel failed to investigate and
call witnesses to impeach the victim and victim’s mother6 in a rape
5 Petitioner confirms that it is the same ineffective assistance of trial counsel claim raised in post-conviction which he
says is also the same claim raised on direct appeal (Traverse, ECF No. 12). As raised on direct appeal, he calls it the
“incomplete IAC claim,” as distinguished from the “complete IAC claim” raised in post-conviction. Id.
6 As far as the Magistrate Judge has been able to determine, this mention of failure to impeach Sarah Statzer in the
Traverse is the first mention of a failure to impeach her as an instance of ineffective assistance of trial counsel. The
traverse is not an appropriate point to essentially amend habeas proceedings. Jalowiec v. Bradshaw, 657 F.3d 293 (6th
Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).
case. By Ohio rule, Statzer raised the claim with the evidence
available to him on direct review and renewed the claim in
postconviction after presenting the evidence unavailable in direct
review.
(ECF No. 12, PageID 935.) Statzer asserts no procedural default occurred and in any event
“procedural bar does not apply to a twice-presented claim (once on direct review and again in
postconviction.) Id. citing Cone v. Bell, 556 U.S. 449, 466 (2009). Petitioner also asserts that,
when this Court reaches the merits, it should not apply the deferential AEDPA standard. Instead
“[d]e novo review applies because the last-reasoned postconviction decision rested solely on res
judicata and no Ohio court ever adjudicated the merits of Statzer’s developed IAC claim. Id. citing
Hill v. Mitchell, 842 F.3d 910, 938-939, n. 14 (6th Cir. 2016). Id.
Analysis
The Ohio criminal res judicata doctrine was adopted in Perry; the relevant paragraphs of
the syllabus7 in that case provide:
7. Constitutional issues cannot be considered in postconviction
proceedings under Section 2953.21 et seq., Revised Code, where
they have already been or could have been fully litigated by the
prisoner while represented by counsel, either before his judgment of
conviction or on direct appeal from that judgment, and thus have
been adjudicated against him. ...
9. Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction or on an appeal from that
judgment.
7 From its adoption in 1858 until its abolition in 2002, the syllabus rule provided that the law in an opinion of the
Supreme Court of Ohio was stated in the syllabus.
The Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio St. 3d 112
(1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981). The Sixth Circuit has consistently held res
judicata is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423,
432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d
417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913
(S.D. Ohio 2001). However, an incorrect application of a state res judicata rule does not constitute
reliance on an adequate and independent state ground. Wogenstahl v. Mitchell, 668 F.3d 307, 341
(6th Cir. 2012), citing Durr v. Mitchell, 487 F.3d 423, 434-35 (6th Cir. 2007), and Richey v.
Bradshaw, 498 F.3d 344, 359 (6th Cir. 2007).
The Twelfth District had previously held “presentation of competent, relevant, and material
evidence dehors the record may defeat the application of res judicata.” State v. Lawson, 103 Ohio
App. 3d 307 (12th Dist. 1995). Lawson is consistent with the syllabus in Cole. But res judicata is
not defeated just by the presentation of some additional evidence.
Evidence presented outside the record must meet some threshold
standard of cogency; otherwise it would be too easy to defeat the
holding of Perry by simply attaching as exhibits evidence which is
only marginally significant and does not advance the petitioner's
claim beyond mere hypothesis and a desire for further discovery.
Lawson at 315, citing State v. Coleman, Hamilton App. No. C-900811, 1993 Ohio App. LEXIS
1485 at 7 (Mar. 17, 1993). To overcome the res judicata bar, evidence offered dehors the record
must demonstrate that the petitioner could not have appealed the constitutional claim based upon
information in the original record. Lawson at 315, citing State v. Franklin, Hamilton App. No. C-
930760,1995 Ohio App. LEXIS 183 (Jan. 25, 1995). In Lawson, which was a capital case8, the
Twelfth District held that the issues Lawson raised could have been fairly determined without
resort to evidence dehors the record. “Information contained in Lawson's exhibits do not contain
new evidence that was unavailable in the original record. Instead, the affiants have basically
repackaged information already available in the record in order to second-guess Lawson's trial
counsel.” Lawson at 367-68.
When Statzer first filed his post-conviction petition in September 2016, the only
“evidence” dehors the record that he presented was the affidavit of Fred Miller, his appellate
attorney. When he followed up in January 2017, he presented the (1) Dept. of Job and Family
Services Report, (2) the Eckman Affidavit, (3) the investigator’s affidavit (Sherry Richardson),
and his attorney’s office manager’s affidavit (Angela Popp).
The Miller Affidavit is certainly properly characterized as a “re-packaging” of what was
presented on direct appeal and does not add materially to the record. If a litigant could avoid res
judicata by presenting the expert opinion of his appellate attorney that the appeal had merit, Perry
would be a dead letter.
The Job and Family Services Report
Of the Job and Family Services Report, Statzer claims
The most important document was a Child Services’ report showing
i) the victim had made an unsubstantiated claim of oral rape against
her stepfather, Richard Keith (Keith), ii) this rape allegation arose
in custody litigation between Keith and the victim’s mother, Sarah
Statzer (Sarah), after the court awarded Keith custody of a child
8 This Court granted Jerry Lawson’s petition for habeas corpus, but he died on death row before the State’s appeal
was resolved.
because of Sarah’s assault, and iii) that social workers heard the
victim say, “I was not raped!” while discussing the Keith allegations.
Upon examination, it is unclear how many separate documents are included in the “Report.” As
filed, it comprises twenty-nine pages (ECF No. 14, PageID 949-77), but there are clearly several
different documents involved. For example, PageID 977 says it is page 12 of 12 and PageID 965
says it is page 13 of 13. The document nowhere says M.S.’s allegations of oral rape against
Richard Keith are false. Instead it says at several points that the police do not have enough
evidence to “processed.” Since the word “proceed” is clearly intended, repetition of the
misspelling supports an inference of copying and pasting, but that also suggests the “document”
was created at different points in time. The document reports that one of the reasons police could
not proceed was because Richard Keith, on advice of counsel9, refused to be interviewed. The
Report does indicate there was on ongoing custody dispute between Keith and Sarah Statzer over
their seventeen-year-old son who wanted to live with his father and who had a “no contact”
protection order against his mother. According to the Report, Sarah was quite exercised that
Family Services did not take M.S.’s allegations of rape against Keith as sufficient grounds to
remove the son from Keith’s home.
The Report includes an observation that during a telephone conversation with Sarah, M.S.
could be heard in the background saying of her accusations against Keith “it wasn’t rape.”
Attorney Bartlett used this reported occurrence in his cross-examination of M.S. who explained at
trial that she then understood “rape” to mean non-consensual vaginal intercourse and her
accusation was of cunnilingus. By the time of trial, she had learned that the Ohio legal definition
of rape can include oral penetration.
9 Presumably Attorney Joel Deutch, the same attorney who notarized the Eckman Affidavit in July 2014 and was still
refusing to allow Keith to embody his statements to Investigator Richardson in an affidavit in January 2017.
How this Report as a document could ever have been admitted in evidence is not explained.
The information it contains was used to cross-examine M.S. on the only relevant point, i.e., to
show that she made a false accusation of oral rape against her stepfather10 at the same time she
made such an accusation against Statzer, her grandfather.
The Report was clearly available to Bartlett to use in cross-examination at the time of trial.
If it was somehow necessary to prove the ineffective assistance of trial counsel claim on direct
appeal. it was available to include in the appellate record. If it was not, the fault would appear to
lie with Attorney Miller whose duty it was as counsel on appeal to make sure the record was
complete. No allegation of ineffective assistance of appellate counsel has ever been made in this
case as to him.
The Eckman Affidavit
The Shina Eckman Affidavit is dated July 16, 2014, and notarized by Joel Deutch, Richard
Keith’s attorney. It purports to report conversations Eckman had with M.S. December 16, 2013,
at Richard Keith’s home. It was provided to Attorney Bartlett August 2014.
The relevant paragraphs of Eckman’s Affidavit aver:
5. I asked her [M.S.] why she was stressed out and she told me her
mother, Sarah Statzer is making her make false accusations against
her grandfather, Ralph Statzer,
6. That, [M.S.] went on to tell me that she was being forced by her
mother, Sarah Statzer,to accuse Ralph Statzer of rape. That [M.S.]
went on to tell me that Ralph Statzer did not rape her and it was a
lie. [M.S.] was being forced to say these things because she has to
live with her mother and she has to do what her mother sais [sic].
10 The Magistrate Judge assumes “stepfather” is the correct label; the Report calls Richard Keith a stepparent. Richard
Keith and Sarah Statzer (maiden name unknown) apparently had a male child sometime before Sarah married
Petitioner’s son Rob and had M.S.
7. That I have decided to come forward at this time due to the fact I
recently became aware that Ralph Statzer is being charged with the
rape of [M.S.], That I wanted to report the above conversations to
the appropriate persons so this can be brought out into the open.
(ECF No. 14, PageID 948.)
Affidavits are by their nature hearsay, so Attorney Bartlett could not have introduced the
Eckman Affidavit in evidence at trial. However, as with the Family Services Report, he used the
information in it to cross-examine M.S. When asked M.S. if she had told Eckman that her mother
was forcing her to make false accusations, she denied having said so (Tr. Tr., ECF No. 8, PageID
543.)
Given M.S.’s denial of the statements, Ohio R. Evid. 613(B) would permit introduction of
extrinsic evidence to prove the prior inconsistent statement only if both Rule 613(B)(1) and (2)
apply. The cross-examination satisfied Rule 613(B)(1), but Statzer has not undertaken to show
how 613(B)(2) would have been satisfied, he merely cites “Ohio Evid.Rs. 616(A), 608(B), 613(B)”
en gross (Traverse, ECF No. 12, PageID 943).
Statzer next relies on State v. Ferguson, 5 Ohio St.3d 160 (1983), where the court held
The general rule is that the pendency of a civil action brought against
an accused by a witness in a criminal case is admissible as tending
to show interest and bias of the witness to prove a motive to falsify,
exaggerate or minimize on his part, in other words, to support a
claim that such witness' testimony may be false or inaccurate,
intentional or otherwise. Such evidence may be introduced in cross-
examination. * * *
Id. at 166. The rule in Ferguson would have permitted Bartlett to cross-examine M.S. directly
about whether her mother was pressuring her to make accusations against Keith and Statzer to
show her bias, but given that she had already denied admitting that to Eckman, Bartlett might
reasonably have expected a negative answer. Statzer’s argument here assumes that answer would
have been an admission of the pressure, but Bartlett could well have been obeying the oldest rule
of cross-examination: do not ask a question if you do not know the answer.
Statzer next relies on Olden v. Kentucky, 488 U.S. 227 (1988), and Davis v. Alaska, 415
U.S. 308 (1974), both of which are Confrontation Clause cases with no evident application here.
Statzer’s counsel frequently mentions that Sarah was biased against Statzer because of her
“failed affair” with him. The Court is given no record reference to admissible evidence of such an
affair. If Bartlett knew of it, i.e., if he had a good faith basis for asking the question, he could have
shown Sarah’s bias by cross-examining her about it. But the notion that he provided ineffective
assistance of trial counsel by not examining Sarah in any regard is not a claim Statzer made either
in the state courts or here until the passing reference to it in the Traverse. And Statzer did not need
any information about the “failed affair” to argue that M.S., for whatever reason, would be biased
in favor of her mother. Bartlett showed that M.S. lived with her mother and, being a minor, was
in her mother’s custody. The trial judge knew those facts which allegedly show bias and still found
M.S. to be a credible witness when compared with her grandfather.
Statzer criticizes Bartlett for not calling Eckman as a live witness at trial. However, he has
produced no post-July 2014 evidence of what she would have testified to. Her testimony consistent
with her affidavit that M.S. had said that Sarah pressured her to make the accusations would have
been forbidden extrinsic evidence of a prior statement inconsistent with M.S.’s trial testimony.
Bartlett did not need her live testimony to show that M.S. was living with her mother and was
therefore probably biased in her mother’s favor.
Bartlett is also criticized for not making sufficient effort to procure Eckman’s live
testimony. The record reflects, as the state courts found. that he served her with subpoenas twice.
Was her testimony sufficiently critical that the trial judge would have granted a continuance and
issued a bench warrant for contempt for the subpoenas? That seems very unlikely.
In sum, Eckman’s Affidavit was probably more useful to Bartlett at trial than her live
testimony would have been: M.S. was confronted with her alleged prior inconsistent statements
in a way that did not give Eckman a chance to repudiate them. In any event Statzer has never
shown Eckman’s live testimony would have been more supportive of his case. Indeed, by the time
he sought an evidentiary hearing in January 2017, he ignored Eckman and focused on Richard
Keith instead.
The (Non-Existent) Richard Keith Testimony (Richardson and Popp Affidavits)
According to Statzer, his investigator’s interview with Richard Keith produced
abundant, unused impeachment evidence. It showed i) that Keith
himself vehemently denied orally raping the victim; ii) that Sarah
made the Keith allegations in March 2014—as litigation in family
court pended between Keith and Sarah; iii) that the family court
awarded Keith custody of their son, determined that Sarah had
committed domestic violence, and issued a protection order against
Sarah in favor of Keith over the son; iv) that Keith’s alleged oral
rape occurred from 2005-2011, yet Sarah’s allegations arose three
years later in March 2014—and only after the adverse custody order;
v) that Sarah pressured social workers to undo the custody order
because of the rape allegations against Keith; vi) that Keith
confronted Sarah about her failed affair with Statzer during the
family-court litigation, which caused Sarah to make the oral rape
complaints against Statzer;
(Traverse, ECF No. 12, PageID 941; emphasis supplied).
With respect, the interview did not produce evidence. Instead it produced interesting
information which perhaps could have been turned into evidence but was not.
The Richardson Affidavit is rife with hearsay that Keith would not have been permitted to
repeat in court. For example, how does he know that Sarah pressured M.S. to accuse him falsely
of oral rape? How does he know that Sarah told his sister that Sarah uses false accusations that
men have orally raped her daughter to “fuck over” these men? How does he know that Sarah
falsely accused two other men of having orally raped M.S.? He would not have been competent
to testify to any of those asserted facts.
The facts in the Richardson Affidavit of which Keith would have been competent to testify
are that Sarah first made the allegations of oral rape of M.S. by Keith during court proceedings11
involving the custody of their son, that during a court proceeding in that case he confronted her
about her affair with Statzer, and that the allegations that Statzer orally raped M.S. were made
some time after that proceeding. The fact is, however, as was well known to Bartlett at the time
of trial, that Keith did not want to testify and had been told by his attorney not to allow himself to
be interviewed by authorities at the time the allegations were made. He still refused to commit his
evidence to affidavit form nearly three years later in January 2017, again on advice of counsel.
The trial judge knew from the questions Bartlett asked M.S. based on the Eckman Affidavit at least
that it was alleged M.S. had admitted her mother was pressuring her to testify against Statzer and
that she had made some allegations of sexual misconduct of some kind against Keith. It was at
least reasonable for the Ohio courts to conclude anything additional would not have been
significant.
Relying on Cone v. Bell, 556 U.S. 449 (2009), Statzer argues a “procedural bar does not apply
to a twice-presented claim (once on direct review and again in postconviction.)” (Traverse, ECF No.
12, PageID 935). That argument substantially overstates the holding in Cone.
Cone was a capital case from Tennessee. On direct appeal he asserted prosecutorial
misconduct in failure to make the full discovery required by Tennessee law. 556 U.S. at 457. This was
not a constitutional claim under Brady v. Maryland, 373 U.S. 83 (1963), but a state law claim. The
Tennessee Supreme Court affirmed the conviction and death sentence. Cone then filed a post-
11 From the description, the Magistrate Judge infers these were proceedings in a domestic violence criminal case rather
than in a domestic relations court. The difference is not material.
conviction petition raising, inter alia, claims of ineffective assistance of trial counsel which the
Tennessee courts also rejected. 556 U.S. at 457. Later Cone filed a second post-conviction
petition which raised a Brady claim. Id. The trial court dismissed the petition, concluding the
claims in it had been “previously determined” or were waived without categorizing particular
claims as waived or previously determined, 556 U.S. at 458. The Tennessee Court of Criminal
Appeals remanded “to allow [Cone], with the assistance of counsel, to rebut the presumption that
he had waived any of his claims by not raising them at an earlier stage in the litigation.”
While the remanded petition remained pending, Cone, under new Tennessee law, was
granted access to the prosecutor’s files and discovered previously undisclosed documents
corroborating his drug-altered condition at the time of the murders. Nevertheless the Tennessee
courts rejected the Brady claim as “previously determined.” 556 U.S. at 460-61. The Supreme
Court decided, however, that the Brady claim based on this new evidence had never been
determined on the merits. The Court itself decided the newly-discovered evidence was not
material to guilt, but remanded for the district court to decide if it was material to sentencing. 556
U.S. at 476.
Thus Cone does not hold that any time a claim is presented twice to the state courts there
is no procedural bar to its consideration in federal habeas. Rather the Supreme Court found Cone’s
Brady claim, although presented to the Tennessee courts, had never been decided by those courts
on the merits and thus could be decided on the merits in habeas.
Statzer’s ineffective assistance of trial counsel claim is not comparable to Cone’s Brady
claim. It is based on evidence that was available to him at the time of trial which could have been,
if necessary, included in the record on direct appeal.
The Magistrate Judge agrees with Petitioner that he did not default his ineffective
assistance of trial counsel claim. Instead he raised it on direct appeal12 and it was decided against
him on the merits.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-
94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
The Twelfth District’s decision in Statzer I is not an objectively unreasonable application
of relevant Supreme Court precedent. The court applied the correct federal standard enunciated in
Strickland v. Washington, 466 U.S. 668 (1984), and found that Attorney Bartlett’s performance
was neither deficient nor prejudicial. The conclusion was reasonable for the reasons already given.
The decision is entitled to deference under the Antiterrorism and Effective Death Penalty Act of
1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") as codified at 28 U.S.C. § 2254(d)(1).
If this Court were to review Statzer’s ineffective assistance of trial counsel claim de novo
it would reach the same result. Attorney Bartlett made good use of the information he had from
the Eckman Affidavit and the Family Services Report in cross-examining M.S. Once M.S. had
explained that what she alleged happened between her and Keith was sexual in nature, the rape
shield statute forbade further inquiry. Once she explained her background shouting “it wasn’t
12 The claim on direct appeal was broader than the claim made in this Court in that it contained a sub-claim of
ineffective assistance of trial counsel for failure to argue Ohio’s rape shield statute was unconstitutional as applied to
Statzer. Petitioner has not brought that claim forward in habeas.
rape” to mean it was not vaginal intercourse, Bartlett had no other way to prove the accusation was
false except for the hypothesized but never produced testimony of Richard Keith.
The decision of the Common Pleas Court, affirmed in Statzer II, that relitigating the
ineffective assistance of trial counsel claim in post-conviction was barred by res judicata was a
correct application of Ohio res judicata law as this Court understands it. Moreover, we are bound
by the Twelfth District’s determination of what Ohio res judicata law requires because that is a
question of Ohio law. "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.)
152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar
concurring).
White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th Cir. 2019), relied on by Statzer in his
Supplemental Memorandum (ECF No. 15), does not change this result. In that case the Sixth
Circuit held for the first time that Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569
U.S. 413 (2013), apply to the Ohio system of litigating post-conviction constitutional claims.
Under the Martinez/Trevino exception to the procedural default rule of Coleman v. Thompson, 501
U.S. 722, 753 (1991), if a defendant cannot appropriately litigate his claim of ineffective assistance
of trial counsel on direct appeal because of the absence of evidence in the appellate record, then
ineffective assistance of post-conviction counsel, measured by the Strickland standard, can excuse
his failure properly to present the claim in post-conviction. That is not what happened here. The
Twelfth District decided Statzer’s ineffective assistance of trial counsel claim on direct appeal in
Statzer I. When he attempted to relitigate it in post-conviction, the Ohio courts held he could not
do so because of the Perry res judicata doctrine and that the evidence he presented in post-
conviction did not bring his case within the Cole exception to Perry.
Ground Two: Denial of Confrontation and the Right to Present a Defense
In his Second Ground for Relief as pleaded, Statzer claims he was denied his Sixth
Amendment rights to confront his accusers and to present a defense. However, he makes no
argument in support of this claim in his Traverse and accordingly has abandoned it.
Conclusion
Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it
is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
March 30, 2020.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.