Hamm v. Warden, Lebanon Correctional Institute

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

QURAN HAMM,

Petitioner, : Case No. 1:18-cv-820

- vs - District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

Ron Erdos1, Warden, Southern

Ohio Correctional Facility

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Quran Hamm under 28 U.S.C. §

2254, is before the Court for decision on the merits on the Petition (ECF No. 5), the State Court

Record (ECF No. 8, 15), and the Return of Writ (ECF No. 9). In the Order for Answer, Magistrate

Judge Litkovitz set a deadline of twenty-one days after the Return for Petitioner to file a reply

(ECF No. 4, PageID 24). That time expired March 26, 2019, and no reply has been filed.

The Magistrate Judge reference in this case was recently transferred to the undersigned to

help balance the Magistrate Judge workload in the District.

1 As the Warden at SOCF, Erdos is the custodian of Petitioner and therefore the correct respondent in this case. The

caption is ordered amended as set forth above.

Litigation History

On September 12, 2014, the Hamilton County Grand Jury indicted Hamm in Case No.

B1405019 on two counts of Felonious Assault with three firearm specifications each, in violation

of Ohio Revised Code § 2903.11(A)(2)) (Counts 1 and 2); one count of Trafficking in Marijuana

in violation of Ohio Revised Code § 2925.03(A)(2)) (Count 3); two counts of Having Weapons

While Under Disability in violation of Ohio Revised Code § 2923.13(A)(2)) (Counts 4 and 5); and

one count of Having Weapons While Under Disability in violation of Ohio Revised Code §

2923.13(A)(3)) (Count 6). (Indictment, State Court Record, ECF No. 8, Exhibit 1).

On July 23, 2015, the Hamilton County Grand Jury indicted Hamm in Case No. B1503840 on

one count of Felonious Assault in violation of Ohio Revised Code § 2903.11(A)(1)) (Count

1)(Indictment, State Court Record. ECF No. 8, Exhibit 4). Over Hamm’s objection, the cases were

consolidated for trial.

Hamm pleaded guilty to a reduced charge of marijuana trafficking, but elected a jury trial on

the felonious assault counts and specifications and a bench trial on the weapons under disability

charges. The jury convicted Hamm on one felonious assault charge from each case with the firearm

specification. The court found him guilty of two counts of having weapons while under disability

(Case No. B1405019, Counts 4 and 5). After merging some counts and specifications, the court

imposed an aggregate sentence of twenty-nine years.

The cases were consolidated on appeal and the judgments were affirmed. State v. Hamm, 2017-

Ohio-2663 (Ohio App. 1st Dist. June 30, 2017). Hamm filed an untimely notice of appeal to the

Supreme Court of Ohio on September 20, 2017, which that court denied. State v. Hamm, 151 Ohio St.

3d 1451 (2017).

Hamm filed a motion to dismiss for lack of jurisdiction in the Common Pleas Court, but he did

not appeal from a denial of that motion. He then filed his Petition in this Court, pleading the following

claims:

GROUND ONE: “The trial court erred to the prejudice of

Defendant by allowing the State to present inadmissible other acts

evidence of prior administrative and jail disciplinary incidents and

purported witness intimidation to the jury pursuant to Evid. R.

404(B).”

*

GROUND TWO: “The trial court abused its discretion by

improperly joining the two indictments against Defendant into a

single trial. Evidence from the B-1405019 case was heard by the

same jury hearing the B1503840 case and prejudice evidence.”

*

GROUND THREE: “The trial court erred to the prejudice of

Defendant by allowing the State to present the inadmissible hearsay

testimony of Donnell Woods to the jury. Woods state certainly

testimonial it was a solemn declaration that he made in order to

establish that somebody fired a gunshot at officers Weigand and

Bode.”

*

GROUND FOUR: “The trial courts admission of Donnell Woods

testimony statement violated Defendant’s constitutional right to

confront his accusers. It cannot be said that this testimony’s

introduction was harmless. Woods statement was perhaps the most

compelling and damning piece of evidence pertaining to the critical

issue of whether the officers were shot at to begin with.”

*

GROUND FIVE: “Defendant was deprived of his constitutional

right to the effective assistance of counsel. It came to light right

before trial Mr. Hamm’s previous attorney Mary Jill Donovan

assisted Christopher Hill with arranging a meeting with the

Hamilton County Prosecutor’s Office detective to exchange and

offer his testimony against Mr. Hamm for case consideration.”

*

GROUND SIX: “Defendant was deprived of his constitutional right

to the effective assistance of trial counsel. Defendant’s counsel

Mary J. Donovan represented Mr. Hamm and Christopher Hill

concurrently. She arranged a meeting between the Hamilton County

Prosecutors Office detective Pitchford to offer his prejudice and

false testimony against the Defendant in exchange for case

consideration. Creating a conflict of interest. Denying the Defendant

his right to effective assistance of counsel.”

*

GROUND SEVEN: “Defendant claims actual innocence.

Defendant is innocent of the crime regarding case #B1405019. The

crime never happened for the defendant to be indicted and the trial

court impose the judgment and sentence on the defendant he

received. The victims in B1405019 case never confirmed that a

crime took place during their testimonies and there was evidence of

a crime. The defendant is innocent in the B1405019 case the State

used false and prejuried [sic] testimony to convict defendant.”

(Petition, ECF No. 5, PageID 29-38).

Analysis

Ground One: Trial Court Error in Admitting Evidence

In his First Ground for Relief, Hamm claims the trial court erred by admitting evidence of

other bad acts in violation of Ohio R. Evid. 404(B).

Respondent asserts this Ground for Relief, as well as Grounds Two, Three, Four, Five, and

Six, is procedurally defaulted because, although it was raised on direct appeal, Hamm failed to

timely file an appeal to the Ohio Supreme Court from the First District’s decision.

The procedural default doctrine in habeas corpus is described by the Supreme Court as

follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,

456 U.S. at 110; Wainwright, 433 U.S. at 87.

Failure to raise a constitutional issue at all on direct appeal is subject to the cause and

prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,

485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th

Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure

to present an issue to the state supreme court on discretionary review constitutes procedural

default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);

Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th

Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261

F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

can overcome a procedural default by showing cause for the default and prejudice from the asserted

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

Ohio has a relevant procedural rule: an appeal to the Supreme Court of Ohio from a

decision of an intermediate court of appeals must be filed within forty-five days of the appellate

judgment. S.Ct.Prac.R. 7.01(A)(1)(a)(i). That rule is an adequate and independent state ground

of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). The rule was enforced against

Hamm when the Ohio Supreme Court denied his motion for leave to file a delayed appeal and

dismissed the appeal (Entry, State Court Record, ECF No. 8, Ex. 23, PageID 190). Where a state

court is entirely silent as to its reasons for denying requested relief, as when the Ohio Supreme

Court denies leave to file a delayed appeal by form entry, the federal courts assume that the state

court would have enforced any applicable procedural bar. Bonilla,370 F.3d at 497, citing Simpson

v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).

The question then is whether Hamm can show cause and prejudice excusing his default.

In her Report recommending that a stay be denied, Magistrate Judge Litkovitz noted

As cause for his failure to file a timely appeal to the Ohio Supreme

Court, petitioner argued that he provided his appeal to the Lebanon

Correctional Institution mailroom on August 8, 2017, but that it was

not received by the Ohio Supreme Court Clerk until August 15,

2017, one day after the deadline for submitting a timely appeal. (See

Doc. 8, Ex. 22). See Henderson v. Palmer, 730 F.3d 554 (6th Cir.

2013) ("when a prisoner submits a petition to the prison mailroom

five days prior to a filing deadline and it is not delivered there is

cause to excuse the procedural default"). See also Foster v. Warden,

575 F. App'x 650, 654 (6th Cir.20 14) (holding that an Ohio

prisoner, who had "delivered his filing to prison officials at least five

days before it was due," established cause for his procedural default

because "[e]ven allowing for a prison 's mail procedures, five days

certainly provided sufficient time for it to arrive timely in the normal

course of events") (internal citation and quotation marks omitted).

(Report, ECF No. 13, PageID 1432, n.3).

Although Judge Litkovitz did not adjudicate the procedural default defense at that point,

the authority she cited permits the Court to find Hamm has excused his default. His Affidavit

attached to his Motion for Delayed Appeal avers that he delivered his Memorandum in Support of

Jurisdiction to the institutional mailroom on August 8, 2017, six days before it was due to be filed

(State Court Record, ECF No. 8, PageID 171). That claim is corroborated by the attached Cash

Withdrawal slip showing a request for funds on August 7, 2017. Id. at PageID 173. While the

Affidavit was not enough to satisfy the Supreme Court of Ohio, this Court has no competing

evidence. Hamm’s Affidavit brings him within the time frames accepted by the Sixth Circuit in

Henderson and Foster, supra.

Accordingly, the Magistrate Judge recommends that Respondent’s procedural default

defense as to Grounds One, Two, Three, Four, Five, and Six based on Hamm’s failure to timely

appeal to the Supreme Court of Ohio be OVERRULED.

Respondent also defends Ground One on the merits, asserting that it is not cognizable in

federal habeas corpus (Return, ECF No. 9, 1407-08). This defense is well taken. As Respondent

notes, Hamm presented this claim to the First District Court of Appeals solely as an Ohio evidence

law claim under Ohio R. Evid. 404(B) and Ohio Revised Code § 2945.59. This Court is bound by

the First District’s determination of Ohio law. Bradshaw v. Richey, 546 U.S. 74 (2005). Federal

habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a);

Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v.

Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[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).

Hamm does not mention the United States Constitution in his First Ground for Relief, but

a claim that admission of other bad acts evidence violated the Constitution would be unavailing.

“There is no clearly established Supreme Court precedent which holds that a state violates due

process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the

issue in Estelle v. McGuire. 502 U.S. 62 (1991).

Hamm’s Ground One should be dismissed on the merits.

Ground Two: Improper Joinder

In his Second Ground for Relief, Hamm asserts the Common Pleas Court abused its

discretion in joining his two cases for trial. As with Ground One, this claim does not on its face

state a claim under the Constitution and Hamm did not present this claim as a federal constitutional

claim to the Ohio courts. Although it is not procedurally defaulted by Hamm’s failure to timely

appeal to the Supreme Court of Ohio, it is defaulted by his failure to present it as a constitutional

claim before coming to federal court.

In the Ohio courts, this was presented as a claim of abuse of discretion by the trial judge.

However, an abuse of discretion by a state judge does not constituted a violation of due process.

Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).

Even if the joinder here were improper, “Improper joinder does not, in itself, violate the

Constitution.” United States v. Lane, 474 U.S. 438, 446 n. 8 (1986). To obtain federal habeas

relief on a misjoinder claim involving state law, a petitioner “must show that misjoinder of the

counts ‘result[ed] in prejudice so great as to deny a defendant his . . .right to a fair trial.” Davis v.

Coyle, 475 F.3d 761, 777 (6th Cir. 2007)(quoting Lane, 474 U.S. at 446 n.8). Hamm has made no

such showing. As the First District found, the evidence as to the two cases was simple and direct.

State v. Hamm, supra, at ¶ 24.

Hamm’s Second Ground for Relief should be dismissed as without merit.

Ground Three: Admission of Inadmissible Hearsay

In his Third Ground for Relief, Hamm complains of the admission of the hearsay statement

of Donnell Woods. Woods was the driver of a car which was stopped by police. When the stop

occurred, Hamm jumped from the car, shot at the officers, and then ran. Officer Weigand testified

that Woods said “I didn’t know that motherfucker was going to shoot at you.” The Fist District

overruled an assignment of error claiming it was improper to allow this testimony from Weigand,

finding that it was an admissible excited utterance and that there had been no contemporaneous

objection.

Because there had been no contemporaneous objection, the First District reviewed this

assignment only for plain error. Review for plain error is an enforcement of the contemporaneous

objection rule, not a waiver of it. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells

v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006);

White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);

Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001).

Furthermore, the Sixth Circuit has repeatedly held Ohio’s contemporaneous objection rule

— that parties must preserve errors for appeal by calling them to the attention of the trial court at

a time when the error could have been avoided or corrected, set forth in State v. Glaros, 170 Ohio

St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162

(1998) — is an adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668

F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin

v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.

2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th

Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d

239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456

U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin

v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.),

cert. denied, 562 U.S. 876 (2010).

Ground Three should be dismissed as procedurally defaulted for lack of a contemporaneous

objection.

Ground Four: Violation of the Confrontation Clause

In his Fourth Ground for Relief, Hamm asserts admission of Woods’ statement violated his

rights under the Confrontation Clause.

The Confrontation Clause bars “admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant has a prior opportunity

for cross-examination…” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). However, not all

out-of-court statements constitute testimony. Here the First District rejected Hamm’s claim that

Woods’ statement was testimonial by classifying it under the hearsay exception for excited

utterances.

{32}. The Sixth Amendment to the United States Constitution

provides, in pertinent part, that "In all criminal prosecutions, the

accused shall enjoy the right * * * to be confronted with the

witnesses against him." The Confrontation Clause bars the "

'admission of testimonial statements of a witness who did not appear

at trial unless he was unavailable to testify, and the defendant had a

prior opportunity for cross-examination.' " State v. Lewis, 1st Dist.

Hamilton Nos. C-050989 and C-060010, 2007-Ohio-1485, ,i 29,

quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004). A "testimonial statement" is one that

is "made 'under circumstances which would lead an objective

witness reasonably to believe that the statement would be available

for use at a later trial.' " Lewis at 411 31, quoting State v. Stahl, 111

Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of

the syllabus, quoting Crawford at 52. At a minimum, the term

"testimonial" applies "to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police interrogations/

Crawford at 68. The Crawford court noted these practices bore."the

closest kinship to the abuses at which the Confrontation Clause was

directed." Id.

{33} Here, Woods's "excited utterance" was not testimonial in

nature. It was not in response to police questioning, nor was it

offered during any type of formal proceeding or questioning. Rather,

by definition, it was volunteered under circumstances where there

was no time for the speaker to reflect and falsify his or her account

of an event. Therefore, this was not the type of statement that

implicates the Confrontation Clause. See State v. Byrd, 160 Ohio

App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133, ¶ 17 (2d Dist.),

citing State v. Williams, 2d Dist. Montgomery No. 20368, 2005-

Ohio-213, ¶20 (an excited utterance is generally nontestirnonial in

nature).

State v. Hamm, supra.

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).

Here the First District applied the correct Supreme Court precedent, Crawford, supra. Its

application was completely reasonable and within the parameters of other recognized hearsay

exceptions which have been found to satisfy the Crawford test. It is therefore entitled to deference

and the Fourth Ground for Relief should be dismissed as without merit. Furthermore, as noted

with Ground Three, there was no contemporaneous objection and is also, therefore, procedurally

defaulted.

Grounds Five and Six: Ineffective Assistance of Trial Counsel

In his Fifth and Sixth Grounds for Relief, Hamm argues he received ineffective assistance

of trial counsel when his prior attorney, Mary Jill Donovan, simultaneously represented him and

Christopher Hill, who gave the police information against him. Hamm raised this as his Fifth

Assignment of Error on direct appeal and the First District rejected it because the conflict was not

proven from the record. It held:

{35} In his fifth assignment of error, Hamm claims that he was

denied the effective assistance of counsel. To prove ineffective

assistance of counsel, a defendant has to demonstrate that counsel's

performance was deficient and that the deficient performance was

prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

141-142, 538 L.E.2d 373 (1989). Prejudice results when there is a

reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. Strickland at

694; Bradley at 142.

{136} Hamm claims that he was denied the effective assistance of

counsel because attorney M.J. Donovan, who had represented him

prior to trial, had failed to immediately withdraw from representing

both Hamm and Hill upon becoming aware that Hill wanted to

provide the state with evidence against Hamm. Hamm also contends

that Donovan was ineffective because she had assisted Hill in

arranging a meeting with Detective Pitchford so that Hill could

provide the state with evidence against Hamm.

{137} Hamm's arguments are based in large part on unsworn

representations of counsel made during a hearing on pretrial

motions. To the extent that our record contains some evidence

concerning Donovan's representation of Hamm, that evidence is

inconclusive.

{38} First, the record is inconclusive concerning Donovan's

continuing representation of Hamm and Hill after she learned that

Hill had wanted to provide evidence against Hamm. It appears that

Donovan may have been representing both Hill and Hamm at the

time that Hill had spoken to Pitchford. But the record does not

conclusively indicate the exact date that Hill had spoken with

Pitchford. Further, the record does not indicate whether Donovan

immediately moved to withdraw from representing Hamm and Hill

upon learning of her conflict, as Hamm contends that she should

have. Instead, it reflects only that the trial court allowed her to

withdraw on July 15, 2015, "for good cause shown." And our record

does not reflect whether or when she moved to withdraw from

representing Hill. Finally, Hamm does not expound on the reasons

why Donovan was required to withdraw from representing Hill, and

we do not address here whether Donovan was required to do so.

{39} Second, we are unable to determine whether Donovan assisted

Hill in providing information to Pitchford while she represented

Hamm. Hill testified at trial that he had contacted Donovan and told

her that he had information about Hamm. Hill further stated that,

Donovan "stopped me from [sic] right there," and refused to speak

to him about the matter. Hill did not know whether Donovan had

contacted the prosecutor's office. And Detective Pitchford testified

that "an attorney" had contacted him about Hill.

{40} Overall, we do not have a reliable basis for determining what

Donovan did or said. In sum, Hamm's challenge depends for its

resolution upon evidence outside of the trial record. We therefore

must overrule this assignment of error.

State v. Hamm, supra.

Essentially the First District held that Hamm had failed to satisfy his burden of proving

that there was a prejudicial conflict of interest. To the extent that Hamm had a claim which could

have been proved by evidence outside the trial record, he has procedurally defaulted that clakim

by never filing a petition for post-conviction relief under Ohio Revised Code § 2953.21, which is

the vehicle in Ohio law form presenting claims of ineffective assistance of trial counsel which

depend on evidence outside the trial record. Hamm points to nothing in the trial record which

would make the First District’s determination of fact unreasonable and it applied the correct legal

standard set out in Strickland and Bradley.

Therefore Hamm’s Fifth and Sixth Grounds for Relief should be dismissed on the merits.

Ground Seven: Actual Innocence

In his Seventh Ground for Relief, Hamm claims he is actually innocent of the crimes

charged in the indictment in Case B1505019.

As Respondent argues, this claim is procedurally defaulted because it was never presented

to any Ohio court. Moreover, the Supreme Court has never recognized a so-called freestanding

claim of actual innocence, in contrast to a claim of actual innocence which can be used to excuse

a procedural default. A claim of actual innocence alone is insufficient to warrant habeas relief.

Herrera v. Collins, 506 U.S. 390 (1993). “A claim of actual innocence 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.” Hodgson v. Warren, 622 F.3d 591, 601 (6th

Cir. 2010).

Ground Seven should therefore be dismissed on the merits because it does not state a claim

for relief under the United States Constitution and also as procedurally defaulted.

Conclusion

In accordance with gthe 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.

May 14, 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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. 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.