Mason v. Warden Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TROY A. MASON,

CASE NO. 2:19-CV-4695

Petitioner, JUDGE EDMUND A. SARGUS, JR.

MAGISTRATE JUDGE KIMBERLY A. JOLSON

WARDEN, NOBLE CORRECTIONAL

INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

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

28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,

Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, it is

RECOMMENDED that the Petition be DENIED and this action be DISMISSED.

I. BACKGROUND

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

case as follows:

{¶ 1} Defendant-Appellant Troy A. Mason appeals from his convictions, in the

Muskingum County Court of Common Pleas, on thirty-three felony counts of

tampering with records and/or forgery. Appellee is the State of Ohio. The relevant

facts leading to this appeal are as follows.

{¶ 2} Between July 2014 and December 2016, Appellant Mason was charged and

convicted in eight misdemeanor cases filed in the Zanesville Municipal Court.

Throughout the various arrest, processing, and prosecution stages of these

misdemeanor cases, appellant pretended to be his brother, Robert Mason.

Appellant accordingly signed certain complaints, jail records, affidavits, and

guilty plea forms with Robert's name. Appellant later confessed to law

enforcement officials that he had used his brother's name in this fashion.

{¶ 3} On March 29, 2017, Appellant Mason was indicted by the Muskingum

County Grand Jury on eight felony counts of tampering with records (R.C.

2913.42(A)(1) ) and twenty-five felony counts of forgery (R.C. 2913.31(A)(2) ).

Appellant pled not guilty, and the matter proceeded to a jury trial on August 29,

2017. Prior to going forward, the State dismissed Count 30, one of the forgery

counts.

{¶ 4} After hearing the evidence and arguments, the jury found appellant guilty of

twenty-four counts of forgery and eight counts of tampering with records. On

September 8, 2017, appellant filed a Crim.R. 29(C) motion for acquittal after the

verdict, which the trial court denied via a judgment entry on September 11, 2017.

{¶ 5} At sentencing, the State and appellant stipulated to merger of offenses as

follows:

Count 1 (tampering with records) was merged with Counts 2, 3, 4, 5, and 6 (all

forgery).

Count 7 (tampering with records) was merged with Counts 8, 9, and 10 (all

forgery).

Count 11 (tampering with records) was merged with Counts 12, 13, 14, and 15

(all forgery).

Count 16 (tampering with records) was merged with Counts 17, 18 and 19 (all

forgery).

Count 20 (tampering with records) was merged with Counts 21, 22, 23, 24, and 25

(all forgery).

Count 26 (tampering with records) was merged with Counts 27 and 28 (both

forgery).

Count 29 (tampering with records) was merged with Count 31 (forgery).

Count 32 (tampering with records) was merged with Count 33 (forgery).

{¶ 6} Although the State and appellant proposed a jointly recommended sentence

of five years in prison, the trial court rejected same and ordered appellant on

October 10, 2017 to serve eight consecutive eighteen-month terms, for an

aggregate prison sentence of twelve years. A nunc pro tunc sentencing entry,

correcting a scrivener's error, was issued on October 25, 2017.

{¶ 7} On November 9, 2017, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

{¶ 8} “I. THE TRIAL COURT VIOLATED TROY MASON'S RIGHT TO DUE

PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT

EVIDENCE, IT OVERRULED HIS CRIM.R. 29(C) MOTION FOR

ACQUITTAL ON COUNTS 1, 7, 11, 16, 20, 26, AND 32 OF THE

INDICTMENT.”FN1

FN1: We note appellant does not challenge the remaining count of tampering

with records (Count 29) in the text of his assigned error.

State v. Mason, 118 N.E.2d 1057, 1058–59 (Ohio 2018). On August 17, 2018, the appellate

court affirmed the trial court’s judgment. Id. On August 6, 2019, the Ohio Supreme Court

declined to accept jurisdiction of the appeal. State v. Mason, 156 Ohio St.3d 1476 (Ohio 2019).

Petitioner sought reconsideration, but the Ohio Supreme Court denied that request, too. State v.

Mason, 157 Ohio St.3d 1430 (Ohio 2019). Meanwhile, on October 23, 2018, Petitioner filed an

application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), asserting the denial of

the effective assistance of appellate counsel. (Doc. 10, PAGEID # 164). On January 14, 2019,

the appellate court denied the Rule 26(B) application. (Id., PAGEID # 211). On August 6, 2019,

the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id., PAGEID # 266).

On October 22, 2019, Petitioner filed this pro se habeas corpus petition. He asserts that

he was denied the effective assistance of appellate counsel (claim one); and denied due process

because the jury convicted him on conduct broader than the charges set forth in the Indictment

(claim two).

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this case. The

United States Supreme Court has described 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).

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 AEDPA, the state court’s factual findings are presumed to be

correct:

In a proceeding instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

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

convincing evidence.

28 U.S.C. § 2254(e)(1).

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

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

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

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

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

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

summarized these standards as follows:

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

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

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

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

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

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

court’s decision is an “unreasonable application” under 28 U.S.C. 2254(d)(1) if it

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

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

unreasonably extends or unreasonably refuses to extend a legal principle from

Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct.

1495, 146 L.Ed.2d 389.

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

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

III. DISCUSSION

Petitioner has brought two claims. Yet, as explained below, the analysis of the two

claims overlaps.

A. Claim Two

In claim two, Petitioner asserts that he was denied fair notice of the charges, the trial

court constructively amended the Indictment through issuance of jury instructions, and his

convictions unconstitutionally differ from the charges set forth in the Indictment. The crux of

this claim involves Petitioner’s argument that the Indictment failed to properly charge him with

eight counts of third-degree felony offenses of tampering with evidence. According to the

Petitioner, the Indictment charged him only with misdemeanor offenses of tampering with

evidence. Therefore, he contends, his convictions on these charges must fail. (See Petition, Doc.

1; Traverse, Doc. 12).

Petitioner appears to have waived this claim for review by failing to raise it on direct

appeal. “It is well-settled that ‘[c]laims appearing on the face of the record must be raised on

direct appeal, or they will be waived under Ohio’s doctrine of res judicata.’” Teitelbaum v.

Turner, No. 2:17-cv-583, 2018 WL 2046456, at *15 (S.D. Ohio May 2, 2018) (citing Hill v.

Mitchell, No. 1:98-CV-452, 2006 WL 2807017, at *43 (S.D. Ohio Sept. 27, 2006)). Moreover,

Petitioner does not appear to have raised all of the same arguments that he now does here, in his

Rule 26(B) proceedings. (See Doc 10, PAGEID # 164).

A petitioner procedurally defaults his claim by failing to present it to the state appellate

court when provided the opportunity to do so. See Roberts v. Carter, 337 F.3d 609, 613 (6th Cir.

2003) (citing Teague v. Lane, 489 U.S. 288, 297–98 (1989)); see also Jackson v. Wilson, No.

1:06-cv-0059, 2007 WL 1683822, at *9 (N.D. Ohio June 8, 2007) (Petitioner procedurally

defaulted claims of ineffective assistance of appellate counsel that he did not raise in Rule 26(B)

proceedings). But Respondent has waived that affirmative defense here. See Trest v. Cain, 522

U.S. 87, 89 (1997) (noting that failure to raise procedural default normally constitutes waiver of

the default); Gray v. Netherland, 518 U.S. 152, 166 (1996) (procedural default typically is an

affirmative defense that will be waived if not raised).

The Court will, therefore, address the merits of claim two. For the ease of discussion,

claim two will be addressed in the context of Petitioner’s claim of ineffective assistance of

appellate counsel, as it was addressed by the state appellate court. Regardless, and even under a

de novo standard of review, this claim lacks record support and, as discussed below, does not

provide Petitioner a basis for relief.

B. Claim One

What Petitioner did raise before the state courts was an ineffective assistance of counsel

claim. “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) (internal quotation marks omitted) (quoting Davis v. Lafler, 658

F.3d 525, 536 (6th Cir. 2011)). To make such a showing, a petitioner must overcome the “strong

[ ] presum[ption]” that his counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 687. “To

avoid the warping effects of hindsight, [courts must] ‘indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’” Bigelow v.

Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).

The 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. citing

Wilson…. The attorney 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 March 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?

(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 v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999) (citations omitted).

The United States Supreme Court has cautioned federal habeas courts to “guard against

the danger of equating unreasonableness under Strickland with unreasonableness under

§ 2254(d).” Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court observed that while

“‘[s]urmounting Strickland’s high bar is never . . . easy.’ . . . [e]stablishing that a state court’s

application of Strickland was unreasonable under § 2254(d) is even more difficult.” Id. (quoting

Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created

under Strickland and § 2254(d) are both “‘highly deferential,’ and when the two apply in tandem,

review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (citations omitted). Thus, when a federal

habeas court reviews a state court’s determination regarding an ineffective assistance of counsel

claim, “[t]he question is not whether counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

The state appellate court rejected Petitioner’s claims of ineffective assistance of appellate

counsel in relevant part as follows:

Appellant herein asserts the following claimed errors were not properly presented

in his direct appeal:

“I. [THE] TRIAL COURT ERRED BY SUBMITTING UNSWORN

STATEMENTS BY CALLING THEM AFFIDAVITS WHEN STATEMENTS

DOD [SIC] NOT MEET THE STATUTORY DEFINITIONS OF AN

AFFIDAVIT.

“II. THE TRIAL COURT ERRED IN SENTENSING [SIC] APPELLANT TO A

THIRD-DEGREE FELONY FOR THE OFFENSE OF TAMPERING WITH

RECORDS WHERE THE CERDICT [SIC] FORM RETURNED BY THE JURY

FAILED TO COMPLY WITH THE REQUIREMENTS [SIC] OF R.C. 2045.75

FOR ENHANCING THE DEGREE OF THE OFFENSE.

“III. [THE] INDICTMENT FAILS TO PROPERLY CHARGE A FELONY

ANY/OR [SIC] ANY OFFENSE, THUS DEPRIVING [THE] TRIAL COURT

OF SUBJECT MATTER JURISDICTION.”

***

App.R. 26(B)(5) directs that “[a]n application for reopening shall be granted if

there is a genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal.” In a motion to reopen under App.R. 26(B), an

appellant must show that his counsel was deficient for failing to raise the issues

the appellant presents, as well as showing that had counsel presented those claims

on appeal, there was a “reasonable probability” that he would have been

successful. Thus an appellant bears the burden of establishing that there was a

“genuine issue” as to whether he has a “colorable claim” of ineffective assistance

of counsel on appeal. State v. Spivey (1998), 84 Ohio St.3d 24, 25.

Our general standard of review for ineffective assistance is set forth in Strickland

v. Washington (1984), 466 U.S. 668. Ohio adopted this standard in the case of

State v. Bradley (1989), 42 Ohio St.3d 136. These cases require a two-pronged

analysis in reviewing a claim for ineffective assistance of counsel. First, we must

determine whether counsel’s assistance was ineffective; whether counsel’s

performance fell below an objective standard of reasonable representation and

violative of any of his essential duties to the client. If we find ineffective

assistance of counsel, we must then determine whether or not the defense was

actually prejudiced by counsel’s ineffectiveness such that the reliability of the

outcome of the proceeding is suspect. This requires a showing that there is a

reasonable probability that but for counsel’s unprofessional error, the outcome of

the proceeding would have been different. Counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable

professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675.

I.

In his first proposed assignment of error, appellant contends his appellate counsel

should have argued that the documents at issue in forgery count numbers 3, 15,

and 23 were not shown to be proper affidavits.

Appellant was convicted of forgery on the aforesaid counts (3, 15, and 23)

pursuant to R.C. 2913.31(A)(2), which states:

No person, with purpose to defraud, or knowing that the person is

facilitating a fraud, shall * * * [f]orge any writing so that it

purports to be genuine when it is actually spurious, or to be the act

of another who did not authorize the act, or to have been executed

at a time or place or with terms different from what in fact was the

case, or to be a copy of an original when no such original existed.

As set forth in the indictment, Counts 3, 15, and 23 involved appellant’s forgery

of affidavits of indigency that were apparently intended for use in proceedings in

the Zanesville Municipal Court. Appellant presently appears to allege that these

affidavits were not properly sworn under R.C. 147.14, and as such his appellate

counsel could have challenged the State’s allegations that he forged these

documents and/or the fee waiver forms related to each (as set forth in Counts 2,

14, and 24).

While appellant provides some general case law concerning affidavit

requirements, he fails to support his claim of a cognizable potential defense to

forgery under Ohio law. We find no genuine issue as to whether appellant has a

colorable claim of ineffective assistance of appellate counsel on this basis.

II.

In his second proposed assigned error, appellant maintains his appellate counsel

should have argued that the verdict forms for the records tampering counts failed

to properly set forth enhanced offenses.

R.C. 2945.75(A)(2) states as follows: “When the presence of one or more

additional elements makes an offense one of more serious degree[,] ***[a] guilty

verdict shall state either the degree of the offense of which the offender is found

guilty, or that such additional element or elements are present. Otherwise, a

guilty verdict constitutes a finding of guilty of the least degree of the offense

charged.”

In the case sub judice, the offenses of tampering with records (Counts 1, 7, 11, 16,

20, 26, 29, and 32 of the indictment) were felonies of the third degree pursuant to

R.C. 2913.42(B)(4), infra. The jury verdict forms from the trial court record,

copies of which appellant has attached with his present motion, all show that the

abbreviation “F/3” was utilized to indicate third-degree felonies. Appellant

provides no authority that such abbreviated designations would be inadequate as

degrees of the offense under R.C. 2945.75(A)(2) and/or Pelfrey.

Accordingly, we find no genuine issue as to whether appellant has a colorable

claim of ineffective assistance of appellate counsel on the proposed verdict form

question.

III.

In his third proposed assigned error, appellant urges that his appellate counsel

should have argued that the indictment failed to properly charge the offenses for

which he was convicted.

“The primary purpose of an indictment is to notify a defendant of the offense with

which he is charged to enable his preparation for trial.” State v. Fields, 4th Dist.

Scioto No. 06CA3080, 2007-Ohio-4191, ¶ 14, citing State v. Lindway (1936), 131

Ohio St. 166, 182, 5 O.O. 538, 2 N.E.2d 490.

In regard to the offenses of tampering with records in the case sub judice (Counts

1, 7, 11, 16, 20, 26, 29, and 32 of the indictment), the pertinent statute is R.C.

2913.42(A)(1), which states: “No person, knowing the person has no privilege to

do so and with the purpose to defraud, or knowing that the person is facilitating a

fraud, shall * * * “[f]alsify, destroy, remove, conceal, alter, deface, or mutilate

any writing, computer software, data, or record.”

Appellant presently appears to propose that because the aforesaid indictment

counts all utilized terminology regarding “falsify[ing]” only, and did not reiterate

all of the remaining acts listed in R.C. 2913.42(A)(1), the indictment, as to these

tampering with records counts, should have been considered defective. We find

no merit in such an argument.

In regard to the forgery counts in the indictment (Counts 2, 3, 4, 5, 6, 8, 9, 10, 12,

13, 14, 15, 17, 18, 19, 21, 22, 23, 24, 25, 27, 28, 31, and 33), which were all

charged as fifth-degree felonies under R.C. 2913.31(A)(2), appellant appears to

argue that the indictment failed to properly allege that the forged documents in

question were kept by or belonged to a governmental entity. However, R.C.

2913.31(A)(2) merely addresses forgery of a “writing.” We find appellant is

attempting to improperly bootstrap onto his forgery counts certain enhancement

language from the records tampering statute, specifically R.C. 2913.42(B)(4) “[i]f

the writing, data, computer software, or record is kept by or belongs to a local,

state, or federal governmental entity, [the offense is] a felony of the third

degree.”)

We find no genuine issue as to whether appellant has a colorable claim of

ineffective assistance of appellate counsel on the indictment issues herein

presented.

(Judgment Entry, Doc. 10, PAGEID # 212–17).

As to Petitioner’s argument that the Indictment failed to charge him with third degree

felony offenses on the charges of tampering with evidence, the record shows that the Indictment

included language indicating that Petitioner had knowingly, with purpose to defraud or knowing

that he was facilitating a fraud, falsified records “being kept by or belonging to a local, state, or

federal governmental entity, to-wit: the Zanesville Municipal Court and/or the Zanesville City

Jail” in Counts 1, 7, 11, 16, 20, 26, 29, and 32. (Doc. 10, PAGEID # 42–50).

O.R.C. § 2913.42 provides in relevant part:

(A) No person, knowing the person has no privilege to do so, and with purpose to

defraud or knowing that the person is facilitating a fraud, shall do any of the

following:

***

(2) Utter any writing or record, knowing it to have been tampered with as

provided in division (A)(1) of this section.

(B)(1) Whoever violates this section is guilty of tampering with records.

(2) Except as provided in division (B)(4) of this section, if the offense does not

involve data or computer software, tampering with records is whichever of the

following is applicable:

(a) If division (B)(2)(b) of this section does not apply, a misdemeanor of the first

degree;

(b) If the writing or record is a will unrevoked at the time of the offense, a felony

of the fifth degree.

(3) Except as provided in division (B)(4) of this section, if the offense involves a

violation of division (A) of this section involving data or computer software,

tampering with records is whichever of the following is applicable:

(a) Except as otherwise provided in division (B)(3)(b), (c), or (d) of this section, a

misdemeanor of the first degree;

(b) If the value of the data or computer software involved in the offense or the

loss to the victim is one thousand dollars or more and is less than seven thousand

five hundred dollars, a felony of the fifth degree;

(c) If the value of the data or computer software involved in the offense or the loss

to the victim is seven thousand five hundred dollars or more and is less than one

hundred fifty thousand dollars, a felony of the fourth degree;

(d) If the value of the data or computer software involved in the offense or the

loss to the victim is one hundred fifty thousand dollars or more or if the offense is

committed for the purpose of devising or executing a scheme to defraud or to

obtain property or services and the value of the property or services or the loss to

the victim is seven thousand five hundred dollars or more, a felony of the third

degree.

(4) If the writing. . . or record is kept by or belongs to a local, state, or federal

governmental entity, a felony of the third degree.

O.R.C. § 2913.42.

Thus, the Indictment explicitly notified Petitioner that the charges involved third degree

felony offenses under the provision of O.R.C. § 2913.42(B)(4) by tracking the language of the

statute. The Indictment also designated those charges as third-degree felony charges. (Doc. 10,

PAGEID # 51). The trial court issued an Entry in connection with Petitioner’s arraignment

likewise indicating that the charges of tampering with records involved third degree felony

offenses. (Doc. 10, PAGEID # 52).

As to Petitioner’s convictions on charges of forgery under the provision of O.R.C.

§ 2913.31(A)(2), as noted by the state appellate court, even had Petitioner been able to establish

that the affidavits of indigency he falsely signed did not qualify as “affidavits” under Ohio law,

this would not have assisted the defense. In short, and for the reasons discussed by the state

appellate court, the record fails to reflect that any of Petitioner’s underlying claims provided any

potentially meritorious basis for relief. Therefore, Petitioner cannot establish the denial of the

effective assistance of appellate counsel under the two-prong Strickland test.

VI. DISPOSITION

Accordingly, it is RECOMMENDED that the petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or

in part, the findings or recommendations made herein, may receive further evidence or may

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse

decision, they may submit arguments in any objections filed, regarding whether a certificate of

appealability should issue.

IT IS SO ORDERED.

Date: July 14, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE