Johnson v. Warden Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

BRIAN A. JOHNSON, wo Jan □□ □

Case No. 2:16-cv-985 ii

Petitioner, Judge Edmund A. Sargus, Jr. □ LLEBEOUS

Magistrate Judge Chelsey M. Vascura

v.

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

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 (ECF No. 1), Respondent’s Return

of Writ and Supplemental Memorandum in Support (ECF Nos. 22, 23), Petitioner’s Reply (ECF

No. 51), and the exhibits of the parties. For the reasons that follow, this action is DISMISSED.

In addition, Petitioner’s Motion to Request an Evidentiary Hearing (ECF No. 50) and his

Motion to Expedite (ECF No. 57) are DENIED as moot.

I. BACKGROUND

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of

the case as follows:

{] 2} L.A. is a 56-year-old female who is developmentally disabled. L.A. has an

1.Q. of 56 and a diagnosis of dependent personality disorder. At the time of these

events, L.A. lived alone in a condo in the Abbeycross neighborhood of

Westerville, Delaware County, Ohio. Although L.A. had some ability to live

independently, she was closely supervised by her cousin who lived nearby and her

caseworker from the Delaware County Board of D.D. Both of her parents are

deceased. L.A. does not drive and is dependent upon others to manage her money

and to help her meet her own basic needs. She regularly attends a workshop called

“All R Friends” and has worked some part-time jobs at care facilities and in her

cousin's office.

□□ 3} Appellant's cousin has been L.A.'s closest caretaker since both of their

mothers were killed in an automobile accident in 2008. L.A. was the sole survivor

of that accident. L.A.'s cousin testified she is mentally similar to a five- to ten-

year-old child.

{{] 4} Evidence at trial established that between September 7 and September 9,

2013, L.A. observed appellant delivering newspapers in her neighborhood. L.A.

testified appellant asked to come inside her condo and she allowed him to come

in. Once inside, they entered one of the condo's three bedrooms which L.A.

referred to as her dad's bedroom.

{J 5} L.A. testified she understood appellant wanted to have “sex” and she said

no. She said he pushed her onto the bed and assaulted her. L.A. described digital

penetration and intercourse with the aid of anatomically-correct drawings. L.A.

said the sexual assault hurt and made a “mess” which she attempted to clean up.

At trial she repeatedly said cleaning up the mess was a “mistake” because she

later understood the police wanted the evidence.

{{ 6} After the sexual assault, L.A. was scared to call police but called the

security manager of the Columbus Dispatch to ask for help. The security manager

told her to report the matter to the police and she did. Westerville detectives

interviewed L.A. with the assistance of her case manager. L.A. became very upset

when the detective asked her to explain what happened by role-playing. Her

caseworker testified she “freaked” and became distraught. L.A. identified

appellant as her attacker in a photo lineup and at trial.

□□ 7} The Westerville police made contact with appellant, who worked his

mother's paper route throughout L.A.'s neighborhood. Appellant admitted entering

L.A.'s condo and admitted digital penetration, although he denied intercourse. He

told police L.A. “seemed somewhat normal” but was “a little strange.”

{8} Appellant was charged by indictmentFN1 upon one count of rape pursuant

to R.C. 2907.02(A)(1)(c) [Count I]; one count of rape pursuant to R.C.

2907.02(A)(2) [Count II]; one count of rape pursuant to R.C. 2907.02(A)(1)(c)

{Count IIT]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count IV]; one

count of sexual battery pursuant to R.C. 2907.03(A)(2) [Count V]; one count of

sexual battery pursuant to R.C. 2907.03(A)(1) [Count VI]; one count of sexual

battery pursuant to R.C. 2907.03(A)(2) [Count VII]; and one count of sexual

battery pursuant to R.C. 2907.03(A)(1) [Count VIII]. Appellant entered pleas of

not guilty.

FN1: An earlier indictment upon four counts of rape under case number 13 CR I

04 0169 was dismissed on February 26, 2014. All pleadings and bond in the 2013

case transferred to the subsequent indictment under case number 14 CR I 01 0019.

{ 9} Pursuant to the bill of particulars filed on February 5, 2014, the charges

represented the following conduct:

Count I: vaginal penetration when victim's ability to consent was substantially

impaired due to mental or physical condition.

Count II: vaginal penetration by force or threat of force.

Count Il}: digital penetration when victim's ability to consent was substantially

impaired due to mental or physical condition.

Count IV: digital penetration by force or threat of force.

Count V: sexual battery by means of vaginal penetration when victim's ability to

consent was substantially impaired due to mental or physical condition.

Count VI: sexual battery by means of vaginal penetration when offender coerces

the other person to submit by any means that would prevent resistance by a person

of ordinary resolution.

Count VII: sexual battery by means of digital penetration when offender knows

that the other person's ability to appraise the nature of or control the other person's

own conduct is substantially impaired.

Count VIII: sexual battery by means of digital penetration when offender coerces

the other person to submit by any means that would prevent resistance by a person

of ordinary resolution,

{§ 10} At a status conference on May 13, 2014, the trial court heard argument on

several motions. No exhibits were admitted and no evidence was taken.

Appellant's counsel argued in favor of admitting evidence that the fitted bed sheet

taken as evidence from L.A,.'s condo was swabbed by a forensic analyst and,

apparently, found to contain D.N.A. of someone other than appellant. The trial

court concluded the evidence was not admissible. Then the parties addressed the

matter of the competency of L.A., who was not present for the conference:

[DEFENSE COUNSEL:] Judge, are you intending to do a competency hearing on

the 601 on [the day of trial] I mean?

THE COURT: I wasn't. I wasn't.

[DEFENSE COUNSEL:] You were not?

THE COURT: Well, if she—

[DEFENSE COUNSEL:] Okay.

THE COURRT: Who wants it?

[PROSECUTOR:] She knows the difference between telling the truth and telling

a lie out of an abundance of caution.

THE COURT: We'll have one then.

[DEFENSE COUNSEL:] I don't know that we necessarily need one. I've not

talked with her, but I was just trying to figure out maybe.

[PROSECUTOR:] If you want to voir dire her right before we go on. I don't think

there's going to be a problem with the competency issue. The Court has a copy of

the disc.

Ww kk

THE COURT: * * * *.

In light of what the evidence will be, we probably need to voir dire her outside the

presence of the jury and we should not, we should do it before we swear the

jury—

[PROSECUTOR:] I would agree.

[DEFENSE COUNSEL:] Okay.

THE COURT:—because we don't want jeopardy to attach. * * * *.

ok ok *

THE COURT: All right, we'll have the competency hearing the first thing in the

morning.

{f 11} The record is then devoid of any further mention of a competency hearing.

No competency hearing was requested or held before trial or prior to the

testimony of L.A.

{| 12} The case proceeded to trial by jury. Appellant moved for a judgment of

acquittal at the close of appellee's evidence. In response, the trial court amended

Counts If, IV, VII, and VIII to attempted offenses. Appellant was thereupon

found guilty as charged.

{ 13} At sentencing, the trial court found Counts I, II, V, and VI merge, and

Counts III, IV, VII, and VIII merge. The trial court sentenced appellant upon

Counts II and IV to an aggregate prison term of 14 years. Appellant now appeals

from the judgment entry of conviction and sentence.

{J 15} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{J 16} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

FAILED TO CONDUCT A VOIR DIRE COMPETENCY EXAMINATION OF

THE ALLEGED VICTIM WHEN IT WAS INFORMED THAT THE VICTIM

IN THIS CASE SUFFERED FROM MENTAL RETARDATION AND CO-

DEPENDENCY PERSONALITY DISORDER.”

{f 17} “Il. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION WAS VIOLATED.”

{J 18} “Il. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

RULED THAT DNA EVIDENCE OF ANOTHER INDIVIDUAL FOUND AT

THE LOCATION OF THE ALLEGED OFFENSE WAS INADMISSIBLE

UNDER OHIO'S RAPE SHIELD STATUTE.”

State v, Johnson, No. 14CA070039, 2015 WL 1960568, at *1-3 (Ohio App. 5th Dist. Apr. 29,

2015). On April 29, 2015, the appellate court affirmed the judgment of the trial court. Jd. On

October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.

Johnson, 143 Ohio St.3d 1501 (2015).

On July 16, 2015, Petitioner filed an application to reopen the appeal pursuant to Ohio

Appellate Rule 26(B). Petitioner asserted that he was denied the effective assistance of appellate

counsel because his attorney failed to raise on appeal claims of prosecutorial misconduct, judicial

misconduct, and the denial of the effective assistance of trial counsel. (ECF No. 22-2, PAGEID

# 1080-81.) On December 4, 2015, the appellate court denied the Rule 26(B) application.

(Judgment Entry, ECF No, 22-2, PAGEID # 1078.) On March 23, 2016, the Ohio Supreme

Court declined to accept jurisdiction of the appeal. (PAGEID # 1138.)

Petitioner also pursued post-conviction relief. The Ohio Court of Appeals summarized

those proceedings as follows:

4} On February 26, 2015, appellant filed a petition for postconviction relief

focusing on ineffective assistance of counsel. By a thorough and lengthy

judgment entry filed March 12, 2015, the trial court denied the petition without a

hearing. Appellant filed an appeal which this court dismissed for unauthorized

practice of law. State v. Johnson, 5th Dist. Delaware No. 15 CAA 03 0027.!

{{ 5} On October 21, 2015, appellant filed another petition for postconviction

relief which the trial court denied the next day as a successive petition not

meeting the requirements of R.C. 2953.23(A)(1). Appellant filed an appeal and

this court affirmed the trial court's decision. State v. Johnson, 5th Dist. Delaware

No. 15 CAA 11 0092, 2016-Ohio—1213, appeal not accepted, 146 Ohio St.3d

1471, 2016—Ohio—5108,

{| 6} On November 25, 2015, appellant moved for appointment of counsel which

the trial court denied on November 30, 2015. Appellant filed an appeal which this

court dismissed for want of prosecution. State v. Johnson, 5th Dist. Delaware No.

15 CAA 12 0096.

{§] 7} On March 3, 2016, appellant filed a motion for resentencing which the trial

court denied on the same day. Appellant filed an appeal and this court affirmed

the trial court's decision, but remanded the matter to the trial court to issue a nunc

pro tunc sentencing entry stating the rape sentences are mandatory. State y.

Johnson, 5th Dist. Delaware No. 16CAA030011, 2016-Ohio—4617. Appellant did

not appeal to the Supreme Court of Ohio. Instead, appellant filed a motion for

reconsideration which this court denied on October 20, 2016.

{J 8} On June 24, 2016, the trial court issued a nunc pro tunc judgment entry as

directed by this court.

9} On July 21, 2016, appellant filed a second motion for resentencing which

the trial court denied the next day.

{J 10} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

{{ 11} “DEFENDANT-APPELLANT'S FUNDAMENTAL AND

SUBSTANTIAL RIGHT TO PROCEDURAL DUE PROCESS AND EQUAL

PROTECTION OF THE LAWS, GUARANTEED BY THE 14TH

Petitioner did not file an appeal to the Ohio Supreme Court.

AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I,

SECTIONS 2 & 16 OF THE OHIO CONSTITUTION, WAS VIOLATED;

WHEN THE TRIAL COURT [FAILED TO COMPLY WITH STATUTORILY

MANDATED TERMS AND RULE REQUIREMENTS] PURSUANT TO

CRIM.R. 32(B)(3)(a), (b);_ CRIM.R.32(C);_ R.C. 120.05(A); OHIO

ADMINISTRATIVE CODE RULE: 120-1-03; 120-i-05; RESULTING IN

[JURISDICTIONAL, PROCEDURAL, PREJUDICIAL, AND REVERSIBLE

PLAIN ERROR], THEREBY, RENDERING HIS [SENTENCE &

SENTENCING ENTRY], [UNAUTHORIZED BY LAW], [CONTRARY TO

LAW], [A NULLITY AND VOID IN-PART].”

Il

{{ 12} “DEFENDANT-APPELLANT'S FUNDAMENTAL AND

SUBSTANTIAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL,

GUARANTEED BY THE 6TH AMENDMENT, UNDER THE EQUAL

PROTECTION AND DUE PROCESS CLAUSE OF THE 14TH AMENDMENT

TO THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 2, 10 &

16, OF THE OHIO CONSTITUTION, WAS VIOLATED; WHEN TRIAL

COUNSEL FAILED TO [OBJECT] TO THE COURT'S VOID IMPOSITION

OF SENTENCE PURSUANT TO CRIM.R.44 (A); CRIM.R. 32(B)(3)(a),(b) AS

WELL AS APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE ON

APPEAL; ALSO TRIAL COUNSEL FAILED TO COMPLY WITH R.C.

120.05¢A), (B); FAILING TO [INVESTIGATE] AND SUBMIT A FINANCIAL

DISCLOSURE/AFFIDAVIT OF INDIGENCY FORM TO THE COURT FOR

DETERMINATION OF INDIGENCY AND POSSIBLE WAIVER OF COURT

COSTS, AS WELL AS APPELLANT COUNSELS FAILURE TO RAISE THIS

ISSUE ON APPEAL; TRIAL COUNSEL ALSO, [FAILED TO INFORM,

CONSULT, ADVISE, AND EXPLAIN] THESE CIRCUMSTANCES AS A

POSSIBLE OUTCOME OR PENALTY IN THE EVENT OF CONVICTION TO

APPELLANT, DURING [PRETRIAL PLEA NEGOTIATIONS]; THUS,

RENDERING [BOTH] COUNSEL'S PERFORMANCE CONSTITUTIONALLY

DEFICIENT, BELOW AN OBJECTIVE STANDARD OF

REASONABLENESS, THEREBY, RESULTING IN A [VOIDABLE

CONVICTION] IN THIS REGARD, AND A [SUBSTANTIAL PREJUDICE

SUFFERED].

State v. Johnson, No. 16 CAA 08 0033, 2016 WL 6673536, at *1-2 (Ohio App. 5th Dist. Nov.

10, 2016). On November 10, 2016, the appellate court affirmed the trial court’s dismissal of the

action as a successive post-conviction action and barred under Ohio’s doctrine of res judicata.

id, On June 21, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal.

State v. Johnson, 149 Ohio 8t.3d 1433 (2017).

On August 23, 2016, Petitioner filed a motion to strike and a third motion for re-

sentencing. (ECF No. 22-6, PAGEID # 2963, 2995.) The trial court denied those motions.

(PAGEID # 3049.) Petitioner filed a timely appeal, asserting as follows:

{J 15} “I. WAS THE DEFENDANT-APPELLANT'S FUNDAMENTAL AND

SUBSTANTIVE RIGHTS TO SUBSTANTIVE, PROCEDURAL DUE

PROCESS AND EQUAL PROTECTION OF THE LAWS, GUARANTEED BY

THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION;

ARTICLE I, SECTION 2 & 16 OF THE OHIO CONSTITUTION,

[VIOLATED]? WHEN THE TRIAL COURT FAILED TO COMPLY WITH

R.C, 2929.19(B)(2)(A), (B); AND AS A RESULT OF APPEAL

ADJUDICATION IN CASE NO. 16-CAA-03-0011, THE APPEAL COURT

FAILED TO REVIEW THE MERITS UNDER A [CONTRARY TO LAW AND

PLAIN ERROR] ANALYSIS PURSUANT TO R.C. 2953.08(G)(2)(b), AND

CRIM.R. 52(B); THUS, DID THE TRIAL AND APPELLATE COURT

COMMIT PLAIN AND MANIFEST ERROR WHEN IT FAILED TO SUA

SPONTE RAISE QUESTION TO ITS JURISDICTION TO HEAR THE

APPEAL AND ISSUE A NUNC PRO TUNC CORRECTION SENTENCING

ENTRY ON THE MATTER PURSUANT TO R.C. 2929.19(B)(7), THUS,

RAISING A CONSTITUTIONAL QUESTION AND CHALLENGE ON THIS

MERIT; THEREFORE, IS SECTION (B)(&7) UNCONSTITUTIONAL IN

PART, AND APPELLANT'S SENTENCE VOID IN PART; THEREBY, AS A

RESULT WAS THE DEFENDANT-APPELLANT PREJUDICED BY THESE

ERRORS AS CITED BY HIS INEFFECTIVE CLAIM IN THIS REGARD?”

[brackets in original] [sic throughout].

16} “Il. WAS THE DEFENDANT-APPELLANT'S FUNDAMENTAL

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED

BY THE 6TH AMENDMENT UNDER THE EQUAL PROTECTION AND

DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE UNITED

STATES CONSTITUTION; ARTICLE I, SECTION 2, 10 & 16 OF THE OHIO

CONSTITUTION, [VIOLATED]? WHEN TRIAL COURT FAILED TO

OBJECT TO THE TRIAL COURTS FAILURE TO COMPLY WITH R.C.

2929.19(B)(2)(a)} AND COUNSEL'S FAILURE TO CHALLENGE THE

CONSTITUTIONALITY AND SEVERABILITY OF SECTION (B)(7); IN

ADDITION, DID COUNSEL'S FAILURE TO CONSULT THE DEFENDANT—

APPELLANT ON THE POSSIBLE MANDATORY PENALTY IN THE

EVENT OF CONVICTION DURING PLEA NEGOTIATIONS RENDER HIS

CONVICTION VOIDABLE WITH A _ SUBSTANTIAL PREJUDICE

SUFFERED BY APPELLANT?” [brackets in original] [sic throughout].

State v. Johnson, No. 16CAA080037, 2016 WL 8465806, at *2 (Ohio App. Sth Dist. Dec.

16, 2016). On December 16, 2016, the appellate court affirmed the judgment of the trial

court. id. On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of

the appeal. State v. Johnson, 150 Ohio St.3d 1410 (2017).

On October 3, 2016, Appellant filed a first motion for relief from judgment or

order pursuant to Ohio Civil Rule 60(B). The trial court denied the motion via

Judgment Entry of October 4, 2016.

{{ 16} On October 12, 2016, Appellant filed a second motion for relief from

judgment or order pursuant to Ohio Civil Rule 60(B). The motion was denied via

Judgment Entry of October 13, 2016.

{17} In Appellate Number 16CAA100045, Appellant filed an appeal from the

October 4, 2016 judgment entry denying his first motion for relief from judgment

or order pursuant to Ohio Civil Rule 60(B).

{{ 18} In Appellate Number 16CAA100046, Appellant filed an appeal from the

October 13, 2016 Judgment Entry.

{ 19} Both appeals were assigned to this Court's accelerated calendar. Pursuant

to Ohio Appellate Rule 11.1(E),

(E) Determination and Judgment on Appeal. The appeal will be determined as

provided by App. R. 11.1. It shall be sufficient compliance with App. R. 12(A) for

the statement of the reason for the court's decision as to each error to be in brief

and conclusionary form.

The decision may be by judgment entry in which case it will not be published in

any form. (See Form 3, Appendix of Forms.)

Ohio App. R. 11.1

{20} In Case No. 16CAA100045, Appellant assigns as error,

DEFENDANT-APPELLANT'S FUNDAMENTAL & SUBSTANTIAL RIGHT

TO A FAIR TRIAL UNDER EQUAL PROTECTION, SUBSTANTIVE AND

PROCEDURAL DUE PROCESS OF THE LAW, GUARANTEED BY THE

14TH AMENDMENT TO THE UNITED STATES CONSTITUTION;

ARTICLE I, SECTION 2 & 16 OF THE OHIO CONSTITUTION, WAS

VIOLATED; WHEN THE TRIAL COURT FAILED TO COMPLY WITH

STATUTORY PRIVISIONS [SIC], CONTRARY TO OHIO EVID. R. 104(A);

EVID. R. 601(A); R.C. 2317.01; THEREBY, FAILING TO SUA SPONTE

CHECK THE COMPETENCY OF A PRESUMED MENTALLY

INCOMPETENT & DISABLED ALLEGED VICTIM WITNESS PRIOR TO

RECEIVING HER TESTIMONY AT TRIAL; THEREFORE, THE COURT

LACKED THE JURISDICITON TO RECEIVE THE TESTIMONY,

RENDERING IT INADMISSIBLE AND APPELLANT'S CONVICTION VOID

AB INITIO; THUS, RESULTING IN FRAUD UPON THE COURT,

MANIFEST, PLAIN PREJUDICIAL ERROR & A MISCARRIAGE OF

JUSTICE.

{21} In Case No.2016CAA100046, Appellant assigns as error,

*3 > DEFENDANT-APPELLANT'S FUNDAMENTAL & SUBSTANTIAL

RIGHT TO A[SIC] IMPARTIAL JURY AND FAIR TRIAL UNDER EQUAL

PROTECTION, SUBSTANTIVE AND PROCEDURAL DUE PROCESS OF

THE LAW, GUARANTEED BY THE 6TH & 14TH AMENDMENTS TO THE

UNITED STATES CONSTITUTION; WAS VIOLATED; WHEN THE TRIAL

COURT FAILED TO SUA SPONTE VOIR DIRE THE JURY ON THE BASIS

OF RACIAL PREJUDICE OR BIAS, RESULTING IN PLAIN PREJUDICIAL

ERROR & A MISCARRIAGE OF JUSTICE.

State v. Johnson, Nos. 16 CAA 100045, 16 CAA 100046, 2017 WL 121840, at *1-3 (Ohio App.

Sth Dist. Jan. 10, 2017). On January 10, 2017, the appellate court again affirmed the judgment

of the trial court, finding Petitioner’s claims to be barred under the doctrine of res judicata. id.

On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.

Johnson, 150 Ohio St.3d 1410 (2017).

On October 13, 2016, proceeding without counsel, Petitioner filed this habeas corpus

petition. He asserts that he was denied a fair trial based on judicial misconduct due to the trial

court’s use of racial epithets at a pre-trial hearing (claim one); that he was denied the effective

assistance of counsel because his attorney failed to object or motion to disqualify the trial judge

(claim two); that he was denied a fair trial because the trial court failed to voir dire the jury on

racial prejudice and bias (claim three); that he was denied the right to an impartial jury and the

effective assistance of counsel because his attorney failed to object or request the trial court to

voir dire the jury on racial prejudice and bias (claim four); that he was denied a fair trial because

the trial court failed to determine the competency of the alleged victim, resulting in fraud on the

court (claim five); that he was denied a fair trial and the effective assistance of counsel because

10

his attorney failed to investigate or request the trial court to determine the competency of the

alleged victim and failed to object or move to strike her testimony (claim six); that he was denied

a fair trial due to prosecutorial misconduct based on perjured testimony (claim seven); that he

was denied the right to confront witnesses and the effective assistance of counsel because his

attomey failed to object to perjured testimony by the alleged victim, move for an in camera

review of her testimony, or request a mistrial (claim eight); that he was denied a fair trial, the

right to confrontation and compulsory process when the trial court ruled that DNA evidence of

another individual was inadmissible under Ohio’s rape shield law (claim nine); that he was

denied a fair trial and the right to confrontation, compulsory process, and the effective assistance

of counsel because his attorney failed to present testimony from a DNA expert (claim ten); that

he was denied a fair trial, compulsory process, confrontation, and the effective assistance of

counsel because his attorney failed to investigate or subpoena favorable witnesses and records,

present an alibi defense, or consult with the Petitioner during pre-trial negotiations (claim

eleven); that he was denied the effective assistance of counsel because his attorney failed to

provide Petitioner with a copy of the entire case file or consult with him during plea negotiations

(claim twelve); that the trial court failed to comply with Ohio’s sentencing statutes (claim

thirteen); that he was denied the effective assistance of counsel because his attorney failed to

object to imposition of a void sentence or advise Petitioner of potential sentencing ramifications

(claim fourteen); that he was denied due process and equal protection because the trial court

failed to comply with Ohio law rendering his sentence void (claim fifteen); that he was denied

the right to the effective assistance of counsel because his attorney failed to object to the trial

court’s imposition of a void sentence or submit a financial disclosure form for determination of

Petitioner’s indigent status (claim sixteen); that he was denied due process because the trial and

11

appellate court failed to comply with O.R.C. § 2929.19(B)(7) (claim seventeen); and that he was

denied the effective assistance of counsel because his attorney failed to challenge the

constitutionality of his sentence or advise Petitioner of the potential mandatory penalty that he

faced (claim eighteen).

It is the Respondent’s position that Petitioner has procedurally defaulted these claims and

that habeas corpus claim six lacks merit.

Il. PROCEDURAL DEFAULT

A. Procedural Default Standards

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, 2 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 he fails to do so, but still has an avenue open to him by which he may present his claims, his

petition is subject to dismissal for failure to exhaust state remedies. Jd; Anderson v. Harless,

459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)).

Where a petitioner has failed to exhaust his 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

12

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. 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 United States 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 within

the Sixth Circuit engage in a four-part test. 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.” Jd.

Second, the Court must determine whether the state courts actually enforced the state procedural

sanction. /d. Third, the Court must determine whether the state procedural forfeiture is an

adequate and independent state ground upon which the state can rely to foreclose review of a

federal constitutional claim, fd. 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

13

(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)). This 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

14

run’” so that state remedies were no longer available. Jd., at 848, 526 U.S. 838,

119 8.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].’” /d., 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)).

B. Application

1. Failure to Raise Claims on Direct Appeal

Petitioner has procedurally defaulted most of his claims by failing to raise them on direct

appeal. Specifically, Petitioner failed to raise habeas corpus claims one through four, seven,

eight, ten, fourteen, fifteen, and sixteen on direct appeal, where he had the representation of new

counsel.

Ohio’s doctrine of res judicata precludes Petitioner from raising these claims now. “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 *155 (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

15

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). Further, the United States Court of Appeals for 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.

Petitioner attempted to present claim seven in the first instance in his appeal to the Ohio

Supreme Court. (ECF No. 22-2, PAGEID # 1004). However, he did not thereby preserve this

claim for review, as the Ohio Supreme Court does not ordinarily consider claims not raised in the

appellate court below. See Glenn v. Bobby, No. 1:13-cv-128, 2013 WL 3421888, at *10 (N.D.

Ohio July 8, 2013) (citing State v. Jester, 32 Ohio St.3d 147, 154 (1987).

In addition, Petitioner raised claims three and four in his Second Motion for Relief from

Judgment pursuant to Ohio Civil Rule 60(b). (ECF No. 22-7, PAGEID # 3671.) However, the

appellate court explicitly refused to consider the merits of those claims as barred under the

doctrine of res judicata, because these issues had been raised or could have been raised on direct

appeal. (See PAGEID # 3976.) Petitioner also attempted to present claim ten in his first petition

16

for post-conviction relief. However, the trial court explicitly refused to address the merits of that

claim as barred under Ohio’s doctrine of res judicata:

[D]efendant’s fourth post-conviction claim focuses on his trial attorney’s alleged

failure to present testimony at trial from a DNA expert. Yet like all of the other

claims in thepost-conviction petition, that claim is one that could have been raised

in the direct appeal without the defendant’s appellate counsel needing to look

beyond the trial-court record. Testimony at the trial touched on the washing of

bed sheets (page 248 of the trial transcript) and on the collection of sheets and

underwear from the victim (pages 417 and 441 of the trial transcript), and in his

closing argument the prosecutor noted that the State had presented “no

fingerprints, DNA, [or] carpet fiber analysis” during the trial. (page 543 of the

trial transcript). All of that information could readily have alerted the defendant’s

appellate counsel to any appropriate DNA-related ineffective-assistance claim. (I

am at a loss, though, to understand what benefit a DNA expert might have

provided to the defendant at trial, as there was no DNA evidence presented by the

State at the trial linking the defendant to the crime or the crime scene.) In any

event, no outside-the-record information was needed by defense counsel to raise

that DNA-related ineffective assistance claim in the direct appeal.

(Judgment Entry Denying the Defendant’s 2/26/15 Post-Conviction Petition, ECF No. 22-2,

PAGEID # 1395.) Again, therefore, Petitioner has failed to preserve claims three, four, and ten

for review in these proceedings.

2. Failure to Object

In claim five, Petitioner asserts that he was denied a fair trial because the trial court failed

to determine the alleged victim’s competency. In claim nine, Petitioner asserts that he was

denied a fair trial because the trial court refused to permit admission of certain DNA evidence

under Ohio’s Rape Shield Law. Petitioner raised both of the foregoing claims on direct appeal,

but the appellate court reviewed his claims for plain error only, due to his failure to object:

[A]ppellant argues the trial court abused its discretion in failing to conduct a voir

dire competency examination of the victim despite evidence of her cognitive

limitations. We disagree.

? The appellate court sua sponte dismissed Petitioner’s appeal, because one “Uniqua Palmer,” a

non-attorney, signed it, but Petitioner did not. (Judgment Entry, ECF No. 22-3, PAGEID #

1449-50.)

17

{J 20} Pursuant to Ohio Evid.R. 601, “Every person is competent to be a witness

except those of unsound mind, and children under ten years of age, who appear

incapable of receiving just impressions of the facts and transactions respecting

which they are examined, or of relating them truly.” See also R.C. 2317.01. “Of

unsound mind” includes all forms of mental retardation. R.C. 1.02(C).

{§ 21} The competency of a witness to testify at trial is a matter to be determined

by the trial court, and absent an abuse of discretion, will not be disturbed on

appeal. State v. Richmond, 1st Dist. Hamilton No. 824578, 1983 WL 5309, *1

(Nov. 9, 1983), citing State v. Wildman, 145 Ohio St. 379, 61 N.E.2d 790 (1945)

and Shupp v. Farrar, 85 Ohio App. 366, 88 N.E.2d 924 (6th Dist.1949). Beyond

the discussion at the May 13 status conference, however, appellant did not move

the trial court to hold a pre-trial competency hearing or request a voir dire

competency examination. Nor did appellant raise an objection to L.A.'s testimony

at trial. We therefore review this claim for plain error. State v. Laws, 12th Dist.

Clermont No. CA87-12-097, unreported, 1988 WL 75354, *1 (July 18, 1988);

State v. Jackson, 8th Dist. Cuyahoga No. 79871, 2002—Ohio—2137, { 13. Absent

an objection to the testimony of the witness, we must determine whether the

court's failure to conduct a voir dire examination of L.A.'s competency was so

obvious and prejudicial as to amount to plain error. See, State v. Kinney, 35 Ohio

App.3d 84, 86, 519 N.E.2d 1386 (1st Dist.1987).

{| 22} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the

court.” The rule places several limitations on a reviewing court's determination to

correct an error despite the absence of timely objection at trial: (1) “there must be

an error, i.e., a deviation from a legal rule,” (2) “the error must be plain,” that is,

an error that constitutes “an ‘obvious! defect in the trial proceedings,” and (3) the

error must have affected “substantial rights” such that “the trial court's error must

have affected the outcome of the trial.” State v. Dunn, 5th Dist. No.2008-CA—

00137, 2009—Ohio-1688, citing State v. Morales, 10 Dist. Nos. 03-AP-318, 03-

AP-319, 2004—Ohio-3391, at J 19 (citation omitted). The decision to correct a

plain error is discretionary and should be made “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

{23} We find the instant case distinguishable from Kinney, supra, in which the

appellate court determined the trial court should have inquired into a child

victim's “capacity to receive just impressions of the facts and to relate them truly,

and that the failure to do so was error.” 35 Ohio St.3d at 86. In the instant case,

appellee established by expert testimony L.A. is a developmentally-disabled adult

and suffers a personality disorder. Nevertheless, there was no indication L.A.

could not give a correct account of the incident and she testified she knew the

most important thing about court is “to tell the truth,” therefore satisfying an

18

“{nquiry [ ] generally part of the voir dire of a witness to determine competency.”

State v. Miller, 44 Ohio App.3d 42, 44-45, 541 N.E.2d 105, 108-09 (6th

Dist.1988). As in Miller, we note L.A. was able to testify to the sexual assault

clearly and concisely and there is no indication she did not appreciate the

necessity of providing a true account of the sexual assault; so too were her

answers adequately responsive and she did not appear to be overtly confused or

illogical. See, State v. Barnett, 3rd Dist. Defiance No. 4-98-14, 1999 WL 180830,

*6 (Mar. 16, 1999), citing Miller, supra, 44 Ohio App.3d 42 at paragraph three of

the syllabus.

{J 24} The Ohio Supreme Court has noted that a person who suffers from “some

unsoundness of mind” can still be competent to testify if he “is able to correctly

state matters which have come within his perception with respect to the issues

involved and appreciates and understands the nature and obligation of an oath.”

Wildman at paragraph three of the syllabus. In this case, L.A. suffered from a

mental disability which did not affect her ability to receive just impression of

facts and relate them truthfully. See, State vy. Freeze, 12th Dist. Butler No.

CA2011-11-209, 2012-Ohio—5840.

{f 25} We conclude L.A. was a competent witness and the trial court did not err

in failing to voir dire her, Appellant's first assignment of error is overruled.

State v. Johnson, 2015 WL 1960568, at *3-5,

[A]ppellant argues the trial court's decision to exclude alleged DNA evidence of

another individual was an abuse of discretion. We disagree.

{J 33} On October 30, 2013, one of appellant's attorneysFN2 filed a motion in

limine and for an in-camera hearing regarding the admissibility of alleged DNA

evidence of a male other than appellant found on the fitted sheet. The trial court

requested transcripts of L.A.'s statements and appellant's statements to determine

any possible relevance of the DNA report. At the status conference on May 13,

2014, the trial court determined the evidence was inadmissible. We are unable to

find any proffer of this evidence in the record and neither party points to any such

proffer. We are thus left to determine the admissibility of “evidence of an

unknown male's DNA on bedsheets.” (Appellee's Brief, 12). Appellant states this

evidence “did not include semen.” (Appellant's brief, 18).

FN2: Appellant had at least four succeeding trial counsel, each of whom moved

to withdraw; appellant was ultimately represented by Assistant Ohio Public

Defender McVay at trial.

{J 34} We note the trial court's ruling at the status conference was preliminary.

We are also unable to find in the trial record where the error was preserved, if at

all. “In general, the ruling on a motion in limine does not preserve the record on

appeal and an appellate court need not review the ruling unless the claimed error

19

is preserved by an objection at trial.” State v. Pyo, 5th Dist. Delaware No.

04CAA01009, 2004—Ohio—-4768, | 19, citing State v. Grubb, 28 Ohio St.3d 199,

503 N.E.2d 142 (1986), paragraph two of the syllabus; State v. Leslie, 14 Ohio

App.3d 343, 344, 471 N.E.2d 503 (2nd Dist.1984); State v. Brown, 38 Ohio St.3d

305, 528 N.E.2d 523 (1988), paragraph three of the syllabus; State v. Maurer, 15

Ohio St.3d 239, 259, 473 N.E.2d 768 (1984).

{4 35} Our standard of review in this case is therefore plain error. Criminal Rule

52(B) provides that “plain errors or defects effecting substantial rights may be

noticed although they were not brought to the attention of the court.” In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating

the outcome of the trial clearly would have been different but for the error. Notice

of plain error must be taken with utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice. State v. Simmons, 5th Dist.

Stark No.2001CA00245, 2002—Ohio-3944, at J 11, citing State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph 3 of the syllabus; State v.

D'Ambrosio, 67 Ohio St.3d 185, 191, 1993-Ohic—170, 616 N.E.2d 909.

{J 36} We review the admission or exclusion of relevant evidence for an abuse of

discretion. Absent an abuse of discretion resulting in material prejudice to the

defendant, a reviewing court should be reluctant to interfere with a trial court's

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126

(1967).

{9 37} We will not speculate what this evidence might have consisted of: based

solely upon appellant's contention here—someone's DNA on a bedsheet—the

admission of such evidence would violate Ohio's rape shield law, which excludes

reputation, opinion, and specific-acts evidence of a victim's alleged sexual history

unless an exception applies. R.C. 2907.02(D); R.C. 2907.05(E). Appellant's

summary argument does not include any exception under which such evidence

would be relevant or admissible. The trial court did not abuse its discretion in

excluding this evidence.

38} Appellant's [] assignment of error is overruled.

Id. at *5-6.

Because the state appellate court reviewed Petitioner’s claims for plain error only based

on his failure to object, Petitioner has waived claims five and nine for review in these

proceedings. See 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 Sixth Circuit has held that Ohio’s contemporaneous-objection rule constitutes an adequate

20

and independent state ground to preclude federal habeas review. Wogenstahi v. Mitchell, 668

F.3d 307, 334-35 (6th Cir.) (citation omitted), cert. denied sub nom. Wogenstahl v, Robinson,

368 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). Moreover, an appellate court’s alternative

ruling on the merits does not remove the procedural default. See Teitelbaum v. Turner, No. 2:17-

cv-583, 2018 WL 2046456, at *21 (S.D. Ohio May 2, 2018) (citing Conley v. Warden,

Chillicothe Corr. 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)).

3. Post-Conviction Proceedings

Petitioner has waived other claims he now presents for review by failing properly to

present them in state post-conviction proceedings. For example, in claim eleven, Petitioner

asserts that he was denied the right to a fair trial, compulsory process, confrontation, and the

effective assistance of counsel because his attorney failed to investigate and subpoena favorable

witnesses and records, failed to present an alibi defense, and failed to consult with Petitioner

during pre-trial negotiations. In claim twelve, Petitioner asserts that he was denied the effective

assistance of counsel, because his attorney failed to provide him with a copy of his case file and

failed to consult with him during plea negotiations. In claim fourteen, Petitioner asserts, inter

alia, that he was denied the effective assistance of counsel during plea negotiations. Petitioner

raised these claims in his second, October 21, 2015 petition for post-conviction relief. However,

the state appellate court affirmed the trial court’s dismissal of that action for failure to meet the

21

requirements of Ohio Revised Code § 2953.23 for consideration of a successive post-conviction

petition:

This is Johnson’s second petition for post-conviction relief. The trial court

determined it did not have jurisdiction to entertain Johnson's second petition for

post-conviction relief pursuant to R.C, 2953.23(A)(1). R.C. 2953.23 states:

(A) Whether a hearing is or is not held on a petition filed pursuant to section

2953.21 of the Revised Code, a court may not entertain a petition filed after the

expiration of the period prescribed in division (A) of that section or a second

petition or successive petitions for similar relief on behalf of a petitioner unless

division (A)}(1) or (2) of this section applies:

(1) Both of the following apply:

(a) Either the petitioner shows that the petitioner was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for

relief, or, subsequent to the period prescribed in division (A)(2) of section

2953.21 of the Revised Code or to the filing of an earlier petition, the United

States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner's situation, and the petition asserts a

claim based on that right.

(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted or, if the

claim challenges a sentence of death that, but for constitutional error at the

sentencing hearing, no reasonable factfinder would have found the petitioner

eligible for the death sentence.

{| 23} In Johnson’s first and second petitions for post-conviction relief, the trial

court noted Johnson raised a claim for ineffective assistance of counsel. The trial

court determined Johnson did not raise any arguments based on new facts or on a

new federal or state right as required by R.C. 2953.23(A)(1)(a). The trial court

next determined that Johnson failed to demonstrate by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would

have found the petitioner guilty of the offense of which the petitioner was

convicted pursuant to R.C. 2953.23(A)(1)}(b).

{24} A review of Johnson’s arguments on appeal supports the trial court’s

determination that Johnson does not point the court to new facts or a new federal

or state right upon which to allow Johnson to succeed on a successive petition for

post-conviction relief. Further, Johnson has not directed this court to any evidence

that but for constitutional error, no reasonable fact finder would have found

Johnson guilty of rape. Upon our review of Johnson’s arguments and the trial

22

court’s decision, we find the trial court did not abuse its discretion to deny

Johnson’s successive petition for post-conviction relief.

State v. Johnson, No. 15 CAA 11 0092, 2016 WL 1175979, at *4-5 (Ohio App. Sth Dist. Mar.

21, 2016). Because the appellate court refused to address the merits of Petitioner’s claims for

failure to meet the requirements for the filing of a successive post-conviction petition, Petitioner

has procedurally defaulted these claims for review. See, e.g., Moore v. Mitchell, 708 F.3d 760,

776 (6th Cir. 2013), cert. denied sub nom. Moore v. Robinson, 571 U.S. 1077 (2013); (petitioner

procedurally defaulted claim where he could not meet the requirements for the filing of a

successive post-conviction action under Ohio Rev. Code § 2953.23); Wright v. Lazaroff, 643

F.Supp.2d 971, 998 (S.D. Ohio 2009) (same).

Petitioner likewise did not preserve claims eleven and twelve through the filing of his

first post-conviction petition, as the trial court denied that action as barred under Ohio’s doctrine

of res judicata:

[T]he defendant contends that his trial counsel incorrectly prepared a subpoena

for records, and that error — according to the defendant — hampered the

defendant’s ability to pursue any alibi defense. The 5/13/14 subpoena that

defendant cites is, however, part of the trial-court record, and the defendant could

readily have argued in his direct appeal that that subpoena was defective. The

subpoena was presumably intended, as defendant claims, to establish an alibi

defense. Its presence in the record could have readily alerted the defendant’s

appellate counsel to the possibility of an alibi defense, and trial counsel’s decision

not to pursue that defense — and to argue instead that any sexual conduct at issue

in this case was consensual — could have been challenged in the direct appeal

based on the trial-court record. Given the compelling evidence at trial that the

defendant was in fact present at the crime scene and did in fact engage in sexual

conduct with the victim, though, the notion that an alibi defense ought to have

been raised is specious at best. In any event, the issue of trial counsel’s choice to

forgo that defense is part of the record and could have been challenged in the

direct appeal.

..- [T]he defendant argues that his trial counsel ought to have more aggressively

challenged the mental health of the alleged victim. . . [and] focuses on defense

counsel’s decision at trial to forgo the opportunity to present additional expert

testimony about that issue. The mental health of the allged victim was, though,

23

addressed on the record, as even the pages of trial transcript attached to the

defendant’s post-conviction petition indicate. See, e.g., page 353 of the trial

transcript (quoting an on-the-record discussion about “the right to have a mental

evaluation of a victim” and “the right to have an independent evaluation done”);

page 341 of the trial transcript (quoting a mid-trial discussion about the victim’s

“TQ” and her “co-dependent personality disorder”); page 567 of the trial transcript

(quoting attorney McVay’s closing argument in which he noted the alleged

victim’s “IQ of 56”).

Likewise, the defendant’s trial brief filed on 5/13/14 before the trial began notes

that two of the rape charges at issue in the case required the prosecution to prove

that a “mental or physical condition” of the alleged victim had affected her ability

to resist or consent to the defendant’s sexual conduct. In short, the mental health

of the alleged victim was woven deeply into the trial-court record, and any

appellate challenges to defense counsel’s trial-level handling of that issue could

have been raised in the direct appeal following the trial. (And indeed that

particular ineffective-assistance claim — with a focus on defense counsel’s

handling at trial of the victim’s alleged mental-health limitations — is in fact the

very ineffective-assistance claim that attorney Workman has raised in the

defendant’s appeal, making the issue all-the-more-inappropriate one for the

defendant to raise at the same time in this post-convcition proceeding.)

(Judgment Entry Denying the Defendant’s 2/26/15 Post-Conviction Petition, ECF No. 22-2,

PAGEID # 1394-95.) Further, the state appellate court issued a Judgment Entry striking

Petitioner’s appeal because he did not sign it, and it had been signed by a non-attorney, for

unauthorized practice of law. (ECF No. 22-3, PAGEID # 1449-50.) Moreover, Petitioner failed

to file a timely appeal to the Ohio Supreme Court. He may no longer do so, as Ohio does not

permit delayed appeals in post-conviction proceedings. Ohio Supreme Court Rule of Practice

7.01{A)(4)(c). The state courts have not been provided the opportunity to enforce this procedural

rule, due to the nature of Petitioner’s procedural default. For all of these reasons, Petitioner has

procedurally defaulted habeas corpus claims eleven and twelve. See Johnson v. Turner, No.

2:14-cv-01908, 2016 WL 6963177, at *6 (S.D. Ohio Nov. 29, 2016) (petitioner procedurally

defaulted his claims by failing to file a timely appeal to Ohio Supreme Court, when the Ohio

Supreme Court does not permit the filing of a delayed appeal).

24

Petitioner asserted that he had been denied the effective assistance of counsel during plea

negotiations in his March 3, 2016 Motion for Resentencing Based on a Void and Voidable

Judgment. (ECF No. 22-4, PAGEID # 2023.) The state appellate court determined that

Petitioner premised this claim on facts outside of the record and therefore such a claim could

properly be raised in post-conviction proceedings. Petitioner, however, had already filed two

such actions, and could not meet the requirements for consideration of the claim in an untimely

and successive post-conviction petition. (Opinion, ECF No. 22-4, PAGEID # 2299-2300.)

Thus, Petitioner has failed to preserve any such claim for review in these proceedings.

In summary, Petitioner has waived all of his claims, with the exception of habeas corpus

claim six. He may, however, still secure review of his claims on the merits if he demonstrates

cause for his failure to follow the state procedural rules, as well as actual prejudice from the

constitutional violations that he alleges.

““[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

v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

“(Petitioner has the burden of showing cause and prejudice to overcome a procedural default.”

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.), cert. denied, 543 U.S. 989 (2004). Instead, in

order to establish cause, a petitioner “must present a substantial reason that is external to himself

25

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 default, Petitioner asserts that he was denied the effective

assistance of appellate counsel. Petitioner asserted in Rule 26(B) proceedings that he was denied

the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim

of prosecutorial misconduct based on the known presentation of perjured testimony, judicial

misconduct due to the trial court’s alleged participation in racially discriminatory and biased

remarks, and the denial of the effective assistance of trial counsel. (See Judgment Entry, ECF

No. 2-2, PAGEID # 1080-81.) The state appellate court rejected these claims as follows:

The Ohio Supreme Court has determined the two-prong analysis articulated in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is

the appropriate standard for evaluation of a claim of ineffective assistance of

appellate counsel. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996).

To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong

test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Jd. at 689, citing Michel v.

Louisiana, 350 U.S. 91, 101, 76 8.Ct. 158 (1955).

“There are countless ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a particular client in the

same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690. Even

if a defendant shows that counsel was incompetent, the defendant must then

satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

teak ok

[A]ppellant argues his convictions were obtained upon the basis of “perjured

testimony” and points to a number of inconsistencies in the victim’s testimony in

26

the record. Appellant argues appellee thus used “known perjured testimony” to

obtain the convictions. We disagree.

Inconsistencies in the victim’s testimony are not “perjury.” Perjury is a criminal

offense defined in R.C. 2921.11{A) as: “No person, in any official proceeding,

shall knowingly make a false statement under oath or affirmation, or knowingly

swear or affirm the truth of a false statement previously made, when either

statement is material.” Each example of inconsistent testimony cited by appellant

arises from the victim’s multiple statements given at different times regarding

what occurred during the sexual assaults. The truth or falsity of each of these

statements is thus known only to the victim and appellant. Pursuant to R.C.

2921.11(e), “[n]o person shall be convicted of a violation of this section where

proof of falsity rests solely upon contradiction by testimony of one person other

than the defendant.” Thus it is not accurate to refer to the challenged statements

as “perjury.”

The inconsistent statements made by the victim were before the trier of fact and

could be weighed by the trier of fact in determining her credibility. Appellant

argues, though, that appellee knowingly used perjured testimony to obtain the

convictions. As we just explained, inconsistencies in a witness’ testimony go to

the witness’ credibility but do not necessarily establish the criminal offense of

perjury. Appellant asks us to make a further unsupported conclusion and find the

prosecutor committed misconduct.

Appellant argues the prosecutor knowingly elicited false testimony from the

victim because details of her trial testimony varied from details of her statements

to investigators. The knowing use of false testimony may be prosecutorial

misconduct if certain elements are established. The Tenth District Court of

appeals has cited federal courts in describing the test for prosecutorial misconduct

under these circumstances. See, Columbus vy. Joyce, 10th Dist. Franklin No.

OOAP-1486, 2001-Ohio-3989; State v. Young, 10th Dist. Franklin No. 05AP-641,

2006-Ohio-1156. “The knowing use of false or perjured testimony constitutes a

denial of due process if there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.” United States v. Lochmondy, 890

F.2d 817, 822 (C.A.6, 1989). “The same result obtains when the State, although

not soliciting false evidence, allows it to go uncorrected when it appears.” Napue

v. Illinois, 360 U.S. 264, 269 (1959). In order to meet the test for prosecutorial

misconduct under these circumstances, the defendant must show that: (1) the

statement was false; (2) the statement was material; and (3) the prosecutor knew it

was false. United States v. Griley, 814 F.2d 967, 971 (C.A.4, 1987). Even when

a prosecutor engages in misconduct, however, the reviewing court should not

reverse the conviction if the error produced is harmless. See United States v.

Young, 470 U.S. 1, 13 (1985), n.13; Joyce, supra, 2001-Ohio-3989 at *8.

As we have already discussed, appellant has not established the falsity of the

victim’s challenged statements. The victim in this case is a mentally disabled

27

adult with an IQ of 56. Johnson, supra, 2015-Ohio-1676 at J 2. Nevertheless, “*

* * [she] was able to testify to the sexual assault clearly and concisely and there is

no indication she did not appreciate the necessity of providing a true account of

the sexual assault; so too were her answers adequately responsive and she did not

appear to be overtly confused or illogical.” State v. Johnson, supra, 2015-Ohio-

1676, at J 23, citing State v. Barnett, 3rd Dist. Defiance No. 4-98-14, 1999 WL

180830, *6 (Mar. 16, 1999), citing Miller, supra, 44 Ohio App.3d 42 at paragraph

three of the syllabus. Appellant infers from the inconsistent statements such as

the offender picked her up and placed her on the bed, versus the offender pushed

her onto the bed, that one of these statements is false. With both statements

before the jury, however, the inconsistencies are simply a factor to be weighed in

evaluating the victim’s credibility.

Appellant summarily claims some of the inconsistencies were “material,” but the

perjury statute defines the term as “[a] falsification is material * * * if it can affect

the course or outcome of the proceeding. R.C. 2921.11(B). None of the

inconsistencies cited by appellant go to the elements of the offenses, and even if

the factfinder had disregarded all of the conflicting statements, sufficient evidence

remained to support appellant’s convictions. Appellant has not demonstrated the

outcome of the proceedings would have been different absent the challenged

statements.

Finally, appellant has not demonstrated the prosecutor knew any of the statements

were “false” especially in light of the fact that all of the challenged statements

were before the jury.

Appellant’s [] assignment of error is overruled because he has not established

prosecutorial misconduct.

... [A]ppellant argues the trial judge should have been disqualified on the basis of

alleged racially discriminatory remarks. We disagree.

We note appellant has attached only a portion of the discussion in which the

allegedly inflammatory remarks were made. During a pretrial, in the context of a

discussion of appropriate terms to be used during trial regarding the victim’s

mental capacity, the parties discussed the role of bias toward the mentally

disabled during voir dire. The judge referred to an analogous trial experience in

which counsel used racial epithets. The record does not demonstrate the judge

used racial epithets toward appellant or toward anyone else in the courtroom; his

point was that the use of inappropriate racial epithets by counsel led to a

discussion whether jurors should be polled as to their attitudes and biases.

Appellant argues, though, the trial judge should have been disqualified because

“the racial remarks were demeaning and directed at the appellant,” a statement not

supported by the record. “A judge is presumed to follow the law and not to be

biased, and the appearance of bias or prejudice must be compelling to overcome

28

these presumptions.” in re Disqualification of George, 100 Ohio St.3d 1241,

2003-Ohio-5489, 798 N.E.2d 23, 7 5.

Evidence of racial bias cannot be inferred but must be clearly demonstrated in the

record:

Allegations of racial bias are among the most serious and

damaging claims that can be directed at a judge, since such

allegations, if true, would not only constitute a violation of the

judge’s oath of office and the Code of Judicial Conduct, see R.C.

3.23 and Canon 3(B)5) of the Code of Judicial Conduct, but also

would strike at the very heart of the integrity of the judiciary. In

order to warrant a judge’s disqualification, these claims must be

demonstrated by clear evidence that establishes the existence of

bias.

In re Disqualification of Cunningham, 100 Ohio St.3d 1216, 2002-

Ohio-7470, 798 N.E.2d 4, ¥ 2.

Appellant points to no remark directed to him and no ruling by the judge

reflecting any racial bias. Appellant has thus provided “no evidence, beyond

speculation, to support his assertions that [the trial court’s] decisions are the

product of bias and prejudice, racial or otherwise.” fd; see also, In re

Disqualification of Donofrio, 135 Ohio St.3d 1253, 2012-Ohio-6338, 986 N.E.2d

13,75.

We further note the Chief Justice of the Supreme Court of Ohio, or her designee,

has exclusive jurisdiction to determine a claim that a common pleas judge is

biased or prejudiced. Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d

775 (1978). “We conclude that R.C. 2701.03 provides the exclusive means by

which a litigant may claim that a common pleas judge is biased and prejudiced.”

Jones v. Billingham, 105 Ohio app.3d 8, 11, 663 N.E.2d 657 (2nd Dist. 1995). It

is not within the purview of the court of appeals to void a trial court judgment on

the basis of disqualification of a trial court judge. Furlan v. Saloka, 8th Dist.

Cuyahoga No. 83186, 2004-Ohio-1250, at 7 19.

eR

... [A]ppellant argues he received ineffective assistance of trial counsel because

counsel did not adequately challenge the victim’s “perjured” testimony and did

not seek disqualification of the trial judge. We disagree.

As stated supra, to succeed on a claim of ineffectiveness, a defendant must satisfy

a two-prong test: that trial counsel acted incompetently and that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” See, Strickland v. Washington, 466

29

U.S. 668, 104 S.Ct. 2052 (1984). In light of our findings in appellant’s first and

second proposed assignments of error, appellant cannot show trial counsel acted

incompetently in failing to raise meritless arguments.

(Judgment Entry, ECF No. 22-2, PAGEID # 1078-89.)

This Court must consider Petitioner’s claim of the denial of the effective assistance of

counsel de nove when determining whether a petitioner can establish cause for a procedural

default. See Hively v. Warden, No. 2:17-cv-222, 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.”)).

C. De Novo Review of Assertion of Ineffective Assistance of Counsel

“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. App’x 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.

30

denied, 135 8. 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, 376 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259,

285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Burger v. Kemp, 483 U.S. 776, 107

S.Ct. 3114, 97 L.Ed.2d 638 (1987). . . . Counsel’s failure to raise an issue on

appeal amounts to ineffective assistance only if a reasonable probability exists

that inclusion of the issue would have changed the result of the appeal. id... .

The attomey need not advance every argument, regardless of merit, urged by the

appellant. Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d

987 (1983) (“Experienced advocates since time beyond memory have emphasized

the importance of winnowing out weaker arguments on appeal and focusing on

one central issue if possible, or at most on a few key issues.” 463 U.S. 751-52).

Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D.

Ohio Mar. 6, 2013). Factors to be considered in determining whether a defendant has been

denied the effective assistance of appellate counsel include:

(1) Were the omitted issues “significant and obvious”?

(2) Was there arguably contrary authority on the omitted issues?

(3) Were the omitted issues clearly stronger than those presented?

(4) Were the omitted issues objected to at trial?

(5) Were the trial court’s rulings subject to deference on appeal?

(6) Did appellate counsel testify in a collateral proceeding as to his appeal

strategy and, if so, were the justifications reasonable?

(7) What was appellate counsel’s level of experience and expertise?

(8) Did the petitioner and appellate counsel meet and go over possible issues?

31

(9) Is there evidence that counsel reviewed all the facts?

(10) Were the omitted issues dealt with in other assignments of error?

(11) Was the decision to omit an issue an unreasonable one which only an

incompetent attorney would adopt?

Mapes y. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citations omitted).

Petitioner has failed to meet this standard here. As the state appellate court pointed out,

nothing in the record supports Petitioner’s assertion that the alleged victim lied or that the

prosecutor knowingly submitted perjured testimony. The trial transcript likewise fails to support

Petitioner’s claim of judicial bias. (See Transcript, ECF No. 23, PAGEID # 4248-50.)

Therefore, Petitioner cannot establish the denial of the effective assistance of counsel under the

two-prong Strickland test. Because Petitioner has failed to establish a claim for ineffective

assistance of appellate counsel, he cannot establish cause for his procedural defaults.

D. Actual Innocence

Petitioner next asserts that he is actually innocent and the victim of a manifest

miscarriage of justice. (See Reply, ECF No. 51, PAGEID # 5701-07.) In support, Petitioner

refers to evidence never presented to the jury indicating that the DNA of an unknown male had

been found on the bedsheets of the alleged victim, as well as the lack of his DNA on the alleged

victim’s underwear. Petitioner also challenges the credibility of the alleged victim, arguing that

she made prior inconsistent statements and the trial court improperly failed to make a

competency determination.

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 [a petitioner’s] constitutional

claims.” Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “[I]jn an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is actually innocent, a

32

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 Schiup, the Supreme Court held that a credible

showing of actual innocence was sufficient to authorize a federal court in reaching the merits of

an otherwise procedurally-barred habeas petition. Schiup, 513 U.S. at 317. However, the actual

innocence claim 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.’” Jd. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

The actual innocence exception to procedural default 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, 590 (6th Cir. 2005). The Sixth Circuit explained this exception as

follows:

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.” Jd. 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.” /d. 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.” Schiup, 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.’ ” /d. at 321, 513 U.S. 298, 115 S. Ct. 851, 130 L.Ed. 2d 808.

33

Souter, 395 F.3d at 589-90 (footnote omitted). “The Sixth Circuit has recognized the circuits are

split on whether the ‘new evidence’ required under Schlup includes only newly-discovered

evidence that was not available at trial, or encompasses any evidence not presented during trial.”

Fortson v. Eppinger, No. 15-cv-2078, 2016 WL 11259032, at *33 (N.D. Ohio Nov. 21, 2016)

(citing Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012)).

In this case, the testimony of the alleged victim upon which Petitioner relies does not

involve “new evidence” of his actual innocence. Petitioner had the opportunity to challenge the

alleged victim’s credibility at trial, and the record reflects that defense counsel did, in fact, cross-

examined the alleged victim regarding her prior inconsistent statements to police. (Transcript,

ECF No. 23, PAGEID # 4497-4514.) Additionally, the state appellate court determined that the

alleged victim was competent to testify. State v. Johnson, 2015 WL 1960568, at *5. This

finding is presumed to be correct, 28 U.S.C. § 2254(e), and the trial transcript supports the

appellate court’s determination. Further, the state appellate court affirmed the trial court’s

refusal to permit admission of evidence reflecting the presence an unknown male’s DNA on the

bedsheets of the alleged victim. Jd. at *5-6. This evidence did not include semen. Jd. at *5. In

any event, neither the lack of Petitioner’s DNA on the alleged victim’s underwear nor the

unknown male’s DNA on the alleged victim’s bedsheets satisfies the high standard required to

establish a gateway claim of actual innocence. Upon an independent review of the entire record,

the Court does not deem this case to be so rare and extraordinary as to relieve Petitioner of his

procedural defaults.

II. CLAIM SIX: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. AEDPA Standard of Review

34

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, 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).

35

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, 134 §.Ct. 513 (2013). 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 (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 8.Ct. 1495, 146 L.Ed.2d 389.

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

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

Petitioner asserts that he was denied the right to the effective assistance of counsel,

because his attorney failed to investigate or request determination of the alleged victim’s

competency and failed to object or move to strike her testimony from the record. The state

appellate court rejected this claim, reasoning as follows:

[A]ppellant argues he received ineffective assistance of counsel because trial

counsel failed to properly raise the issue of L.A.’s potential incompetency as a

witness. We disagree.

{§] 27} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the

36

defendant must overcome the presumption that, under the circumstances, the.

challenged action ‘might be considered sound trial strategy.’” Jd. at 689, citing

Michel v. Louisiana, 350 U.S. 91, 101, 76 8.Ct. 158 (1955).

28} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client

in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Jd. at 690.

{{ 29} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual

prejudice” prong, the defendant must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.

{f 30} In the instant case, appellant cites counsel’s failure to move for a

competency hearing of L.A. and to object to her testimony as examples of

ineffective assistance, We have already determined in our discussion of the first

assignment of error that L.A. was a competent witness, however. Appellant

cannot establish that if counsel properly raised the issue, the outcome would have

been different.

{4 31} Appellant has therefore failed to establish ineffective assistance of counsel

and his second assignment of error is overruled.

State v. Johnson, 2015 WL 1960568, at *5.

In addition, as discussed above, the appellate court also found the alleged victim to be

competent to testify:

L.A. is a developmentally-disabled adult and suffers a personality disorder.

Nevertheless, there was no indication L.A. could not give a correct account of the

incident and she testified she knew the most important thing about court is “to tell

the truth,” therefore satisfying an “inquiry [ ] generally part of the voir dire of a

witness to determine competency.” State v. Miller, 44 Ohio App.3d 42, 44-45,

541 N.E.2d 105, 108-09 (6th Dist.1988). As in Miller, we note L.A. was able to

testify to the sexual assault clearly and concisely and there is no indication she did

not appreciate the necessity of providing a true account of the sexual assault; so

too were her answers adequately responsive and she did not appear to be overtly

confused or illogical. See, State v. Barnett, 3rd Dist. Defiance No. 4-98-14, 1999

WL 180830, *6 (Mar. 16, 1999), citing Miller, supra, 44 Ohio App.3d 42 at

paragraph three of the syllabus.

{J 24} The Ohio Supreme Court has noted that a person who suffers from “some

unsoundness of mind” can still be competent to testify if he “is able to correctly

37

state matters which have come within his perception with respect to the issues

involved and appreciates and understands the nature and obligation of an oath.”

Wildman at paragraph three of the syllabus. In this case, L.A. suffered from a

mental disability which did not affect her ability to receive just impression of

facts and relate them truthfully. See, State v. Freeze, 12th Dist. Butler No.

CA2011-11-209, 2012-Ohio—5840.

{4 25} We conclude L.A. was a competent witness and the trial court did not err

in failing to voir dire her.

State v. Johnson, 2015 WL 1960568, at *4-5.

The appellate court’s factual finding regarding L.A.’s competence is presumed to be

correct. See Harvey v. Tambi, 1:12-cv-3037, 2015 WL 5055470, at *2 (N.D. Ohio Aug. 26,

2015) {citing Thompson v. Keohane, 516 U.S. 99, 108-11 (1995)). Further,

“regardless of whether we would reach a different conclusion were we reviewing

the case de novo, the findings of the state court must be upheld unless there is

clear and convincing evidence to the contrary.” Clear v. O'Dea, 257 F.3d 498,

506 (6th Cir. 2001) (applying 28 U.S.C. § 2254(e) (1)); see also Wood vy. Allen,

558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010) (under 28 U.S.C. §

2254(d\(2), “a state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different conclusion in the

first instance”). This deference must be paid even to state-court factual findings

made on appeal. See Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78

L,Ed.2d 267 (1983).

Id.

Here, Petitioner has failed to rebut the presumption of correctness afforded to the state

appellate court’s factual finding. Accordingly, Petitioner cannot establish the denial of the

effective assistance of counsel under the two-prong Strickland test based on his attorney’s failure

to request a competency determination or move to strike the testimony of the alleged victim.

Petitioner’s claim six therefore lacks merit.

IV. DISPOSITION

38

For the foregoing reasons, it is Petitioner’s action is DISMISSED. In addition,

Petitioner’s Motion to Request an Evidentiary Hearing (ECF No. 50) and his Motion to Expedite

(ECF No. 57) are DENIED as moot.

IT IS SO ORDERED.

3-97-3040

DATE ED . SARGUS, JR.

UNITED STATES DISTRICT JUDGE

39