# Wood v. Warden, Noble Correctional Institution

> District Court, S.D. Ohio · September 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10376364

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

MICHAEL A. WOOD,

Petitioner, : Case No. 3:19-cv-304

- vs - District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

TIM BUCHANAN, Warden,
Noble Correctional Institution,

:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 30) to the
Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 17). Judge Rice has
recommitted the case for reconsideration in light of the Objections (ECF No. 31).
At the time of the original Report, Wood was proceeding pro se. After the Report was
filed, Wood retained counsel who was given extensions of time of over sixty days to prepare the
Objections (ECF Nos. 24-29).
Instead of numbering all his grounds for relief in one numerical series, Petitioner grouped
his claims separately in relation to the state court proceedings from which they arose (direct appeal
(five grounds), 26(B) application (four grounds), and post-conviction petition (three grounds). The
Report maintained Wood’s organization because the Petition was quite lengthy (116 pages) and
complex in its argument.
Rather than object to specific portions of the Report as it parallels the Petition, counsel
asserts:
All the claims raised by Petitioner in his Petition for Writ of Habeas
Corpus (ECF No. 1) are subsumed in his claims of ineffective
assistance of counsel. That is, even though each of the Grounds set
forth in his Petition are, in their own right, reversible errors in his
state proceedings, they only become constitutional violations
justifying his prayer for habeas relief because of the conduct – or
lack thereof – of his attorneys.

(Objections, ECF No. 30, PageID 1333.) That is, Wood now asserts through counsel that he is
unconstitutionally convicted because he received ineffective assistance of both trial and appellate
counsel. Id. at PageID 1334.
The governing standard for assessing ineffective assistance of trial counsel and ineffective
assistance of appellate counsel was adopted by the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), and is set forth in the Report (ECF No. 17, PageID 1303-1304). That is the
standard the Second District purportedly applied in deciding this case. State v. Wood, 2018-Ohio-
875 (Ohio App. 2nd Dist. Mar. 9, 2018)(direct appeal); State v. Wood, Case No. CA 2016-CA-69
(2nd Dist. Jul. 6, 2018)(unreported; copy at State Court Record, ECF No. 14, Ex. 23)(26(B)
application); State v. Wood, 2018-Ohio-3204 (Ohio App. 2nd Dist. Aug. 10, 2018)(post-conviction
appeal)1. Thus the question for this habeas court is whether the Second District’s decisions are
objectively unreasonable applications of Strickland. 28 U.S.C. § 2254(d)(1); Williams (Terry) v.
Taylor, 529 U.S. 362, 379 (2000); Harrington v. Richter, 562 U.S. 86 (2011):
This Supplemental Report will analyze the Objections in the order in which they are
presented, rather than attempting to rearrange them according to the claims in Petition.

1 The Supreme Court of Ohio declined to exercise appellate jurisdiction over all three of these decisions.
The Birchfield Claim

Habeas counsel asserts trial and appellate counsel were ineffective for failure to argue
Wood’s conviction in Case No. 2016-CR-1432 is unconstitutional under Birchfield v. North Dakota,

___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016))(Objections, ECF No. 30, PageID 1334).
Birchfield was announced June 23, 2016, and thus precedential at the time of Wood’s conviction
on September 29, 2016. If Birchfield makes Wood’s conviction unconstitutional, it would
certainly have been deficient performance under Strickland v. Washington, 466 U.S. 668 (1984),
to fail to raise that claim. Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987).
North Dakota and Minnesota had made it a crime to refuse a chemical test of one’s blood,
urine, or breath for alcohol content when arrested for driving under the influence of alcohol. In
Birchfield the Supreme Court held that a State may not constitutionally criminalize a refusal of a
blood test, but may do so with refusal of the less intrusive breath test. Wood argues his conviction
in Case No. 2016-CR-143 is unconstitutional under Birchfield.

The grand jury indicted Wood on three counts related to his conduct on February 2, 2016:
a violation of Ohio Revised Code § 4511.19(A)(1)(A) with a specification of five prior DUI
convictions within twenty years (Count 1), a violation of Ohio Revised Code § 4511.19(A)(2)(b)
with the same specification (Count 2), and a violation of Ohio Revised Code § 4511.19(A)(1)(A)
with no specification (Count 3). Ohio Revised Code § 4511.19(C) permits a jury to return verdicts
on separate counts under 4511.19, but requires the State to elect on which charge it will proceed.
In this case the State elected to proceed under on Count Two (Judgment Entry, State Court Record,
ECF No. 10, Ex. 14).

2 Wood was convicted in Case Nos. 2016-CR-143 and 144 which were tried together. The 143 case involves an
incident on February 2, 2016, and the 144 case incident happened on March 17, 2016.
Ohio Revised Code § 4511.19(A)(2) provides
(2) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of
or pleaded guilty to a violation of this division, a violation of
division (A)(1) or (B) of this section, or any other equivalent offense
shall do both of the following:

(a) Operate any vehicle, streetcar, or trackless trolley within this
state while under the influence of alcohol, a drug of abuse, or a
combination of them;

(b) Subsequent to being arrested for operating the vehicle, streetcar,
or trackless trolley as described in division (A)(2)(a) of this
section, being asked by a law enforcement officer to submit to a
chemical test or tests under section 4511.191 of the Revised
Code, and being advised by the officer in accordance with
section 4511.192 of the Revised Code of the consequences of
the person's refusal or submission to the test or tests, refuse to
submit to the test or tests.

(Emphasis supplied)
Unlike the statutes at issue in Birchfield, the Ohio statute does not criminalize the mere
refusal of a chemical test. Instead, it criminalizes driving under the influence a second time within
twenty years and, after arrest for that conduct, refusing a chemical test3. To convict Wood on
Count 2, the State had to prove that (1) he operated a motor vehicle under the influence, (2) when
arrested and advised of the consequences of doing so, he refused a chemical test, and (3) he had
been convicted of DUI once before within the last twenty years. Ohio Revised Code §
4511.19(A)(2)(a) and (b) are not alternatives; as the statute expressly provides, both must be
proved to obtain a conviction under this statute.
Birchfield does not invalidate Ohio Revised Code § 4511.19(A)(2) because it does not
criminalize mere refusal of a chemical test. Because of that, it cannot have been ineffective

3 The only test offered to Wood on the February arrest was a blood test at a hospital.
assistance of trial or appellate counsel to fail to make that argument. Failing to raise wholly
meritless claims is neither deficient nor prejudicial. Moody v. United States, 958 F.3d 485, 492 (6th
Cir. 2020), citing Bennett v. Brewer, 940 F.3d 279, 286-87 (6th Cir. 2019); Sutton v. Bell, 645 F.3d
752, 755 (6th Cir. 2011). Wood’s first claim of ineffective assistance in the Objections is without

merit.
Not only is the Birchfield claim without merit, it is also procedurally defaulted. No claim
was made in the trial court, on direct appeal, in post-conviction, or in the 26(B) application that
Birchfield rendered Ohio Revised Code § 4511.19(A)(2) unconstitutional.
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.
"A claim may become procedurally defaulted in two ways."
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a
claim is procedurally defaulted where state-court remedies have
been exhausted within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits because
of a petitioner's failure to comply with a state procedural rule. Id.

Second, a claim is procedurally defaulted where the petitioner failed
to exhaust state court remedies, and the remedies are no longer
available at the time the federal petition is filed because of a state
procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013). Wood’s Birchfield claim, whether a matter of
trial court error or of ineffective assistance of trial or appellate counsel is procedurally defaulted
because it was never raised in the state courts and there remains no available state court remedy to
exhaust.
Wood’s Birchfield claim is procedurally barred in yet another way. It is not pleaded in the
Petition4, but was raised for the first time in the Objections. A habeas petitioner may not plead a
new claim in his traverse. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v.
Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). A fortiori, he may not raise a new claim in Objections.

Failure to File a Motion to Suppress in the March 17, 2016, Case

Wood’s second claim in the Objections is that he received ineffective assistance of trial
counsel when his attorney did not file a motion to suppress the fruits of his arrest on March 17,
2016. Habeas counsel argues at some length the Ohio case law which he believes undercuts the

4 Birchfield is mentioned in the Petition, but only as a case cited in an opinion from another court. Wood makes no
claim in the Petition of trial court error by virtue of Birchfield or of either ineffective assistance of trial counsel or
ineffective assistance of appellate counsel for failing to raise such a claim. (Objections, ECF No. 30, PageID 1342,
citing ECF No. 1, PageID 39-40).
validity of the stop in Case 144 (Objections, ECF No. 30, PageID 1342-57).
The Objections contain no discussion whatsoever about where this or related claims have
previously been raised in the case. The failure to file a motion to suppress would have been evident
on the face of the appellate record and Wood’s appellate counsel raised it as part of his fourth

assignment of error on direct appeal. The Second District decided that claim as follows:
[*P46] With respect to a motion to suppress evidence, Wood argues
that trial counsel should have sought to suppress "the unlawful
arrests and evidence obtained during the illegal detentions." His
brief does not contain any support for his assertions that the arrests
were unlawful or the detentions illegal, nor does it make clear why
trial counsel should have been "aware of the necessary arguments
based on his position at trial" that the officers lacked a "reasonable
articulable suspicion of impairment to conduct field sobriety tests."

State v. Wood, 2018-Ohio-875 (2nd Dist. Mar. 9, 2018).
When Wood filed his 26(B) Application, he pleaded as one of the omitted assignments of
error
MR. WOOD'S APPELLATE COUNSEL WAS INEFFECTIVE
FOR FAILING TO ADDRESS INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, WHEREAS MR. WOOD'S TRIAL COUNSEL
FAILED TO FILE PRE TRIAL MOTIONS SUBJECTING THE
BASIS OF THE STOPS TO ADVERSERIAL TESTING AND
FAILED TO CALL EXPERT WITNESSES

(26(B) Application, State Court Record, ECF No. 14, Ex. 20, PageID 481).
The Second District decided this claim on the merits, holding:
Second, Wood argues that appellate counsel was ineffective in
failing to raise trial counsel's failure to "file pretrial motions
subjecting the basis of the stops to adversarial testing and ***to call
expert witnesses."

As discussed in our Opinion [on direct appeal], appellate counsel
did argue on appeal that trial counsel was ineffective for failing to
file a motion to suppress evidence, and we rejected this argument.
See Wood at ¶¶ 46-48. However, Wood's application offers an
additional basis for a motion to suppress that was not previously
raised, namely that the traffic stop in Case No. 16 CR 144 was
pretextual. Specifically, he argues that Officer Finney "noticed that
[Wood's] license validation sticker was obstructed," Wood at ¶ 13,
but he points out that there "was no testimony or indication that the
alleged obstruction of a sticker prevented [Finney] from identifying
any one of the characters on the plate." However, Finney also
testified that she witnessed Wood commit several lane violations
prior to the traffic stop. Thus, although Officer Finney noticed the
partial obstruction of the license plate when she pulled her cruiser
behind Wood's car, she did not assert that the plate obstruction was
the sole basis for the traffic stop; Wood acknowledges this fact in
his application. Moreover, the Ohio Supreme Court has held that,
whether pretextual or not, a traffic violation, however minor, gives
an officer a reasonable, articulable suspicion justifying a traffic stop.
See State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 20. Neither trial counsel nor appellate counsel was
ineffective in failing to raise this argument.

State v. Wood, Case No. 2016-CA-169 (2nd Dist. Jul. 9, 2018)(unreported; copy at State Court
Record, ECF No. 14, PageID 589-90).
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 Second District decided
on the merits Wood’s motion-to-suppress ineffective assistance of trial counsel and ineffective
assistance of appellate counsel claims. Wood’s burden in habeas, then, is to show that those two
decisions unreasonably apply Strickland. He has not done so. His Objections argue this claim
essentially as if this Court were to consider it de novo, rather than with AEDPA deference. But
AEDPA deference is to be accorded state court ineffective assistance decisions on the merits.
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” White v. Woodall, 572 U.S. [415], ___ (2014), slip
op. at 4.

When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ___, ___ (2013), slip op. at
9)(quoting Strickland v, Washington, 466 U.S. 668, 690 (1984);
internal quotation marks omitted). In such circumstances, federal
courts are to afford “both the state court and the defense attorney the
benefit of the doubt.” at ___ (slip op. at 1).

Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016). The Report concluded the Second
District’s ineffective assistance decisions was entitled to AEDPA deference (ECF No. 17, PageID
1294), but the Objections do not address that conclusion, instead arguing the motion to suppress
issue as if it were de novo.

Unconstitutional Prior Convictions in Support of the Repeat Offender Specification

Wood was convicted of the specification to Count Two that he had previously been
convicted, within the past twenty years, of five DUI offenses. He claims that two of the five prior
convictions were unconstitutional because they were uncounseled and that his trial attorney
provided ineffective assistance of trial counsel by failing to file a motion in limine to exclude those
two.
On direct appeal the Second District held there was no evidence in the appellate record to
show the two convictions were unconstitutional, so the claim that they were and that trial counsel
was ineffective in failing to present that evidence had to be presented in post-conviction. Wood,
supra, at ¶ 49. The Report found this was not an unreasonable application of Strickland (ECF No.
17, PageID 1294). The Objections do not take issue with this conclusion, but rather with the
Report’s rejection of this claim as raised in post-conviction (ECF No. 30, PageID 1358). In

Ground One of Part Three of his Petition, Wood asserted:
GROUND ONE: Mr. Wood's 2001 and 2007 prior misdemeanor
convictions were uncounseled without valid waiver, resulted in
imprisonment, were, thus, constitutionally infirm, and should have
not been used to enhance the degree of the present charges; violating
Petitioner's Fifth, Sixth and Fourteenth Amendment rights to the
U.S. Constitution and Article I, Section 5, 10 and 16 of the Ohio
Constitution, resulting in a fundamental miscarriage of justice.

(Petition, ECF No. 1, PageID 93.) The Second District had considered this claim on the merits on
Wood’s appeal from denial of his petition for post-conviction relief. Its decision is set out in full in
the Report (ECF No. 30, PageID 1307-09, quoting State v. Wood, 2018-Ohio-3204, ¶¶ 11-18 (2nd Dist.
Aug. 10, 2018)). In essence, the Second District found Wood had not supplied cognizable evidence
that the prior convictions were unconstitutional because the evidence he submitted with his post-
conviction petition did not meet the requirements of Ohio Revised Code § 2953.21.
Wood had argued in his Petition that the absence of notarization on his post-conviction affidavit
was a mere procedural technicality and the Report responded that it was a required technicality to make
evidence out of a mere statement (ECF No. 30, PageID 1309). The Objections “assert these procedural
inadequacies this Court observed should have been treated with greater tolerance” (ECF No. 30,
PageID 1358.) But these “procedural inadequacies” were not imposed by the Magistrate Judge, but
instead are the grounds on which the Second District declined to hear this ineffective assistance of trial
counsel claim on the merits.
The State relied repeatedly on Wood’s various procedural defaults in presenting his claims to
the state courts (Return, ECF No. 15). 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).
Ohio has a rule which it shares with most State and the federal courts that affidavits must
be notarized. The Second District enforced that rule against Wood in this case. In allowing
affidavits at all, Ohio has relaxed the hearsay rule because an affidavit is classic hearsay: an out-
of-court statement offered to prove the truth of its content. In requiring that affidavits be notarized,
Ohio is merely taking the precaution of requiring that the statement be made before a state official
and that lying in an affidavit is punishable as perjury. Thus the notarization requirement is
adequate in the Maupin sense. It is completely independent of federal law – Ohio does not require
affidavits related to federal claims to be notarized while excusing the requirement on other
affidavits.
Wood suggests there is excusing cause and prejudice to overcome this procedural default,

principally that at the stages of his state court proceedings after direct appeal, he has, until now,
been without the assistance of counsel (Objections, ECF No. 30, PageID 1358). That limitation
and others associated with being incarcerated do not excuse procedural default. Bonilla v. Hurley,
370 F.3d 494, 497 (6th Cir. 2004), citing Murray v. Carrier, 477 U.S. 478, 494-95 (1986). He also
argues he is entitled to leniency in enforcement of these rules under Haines v. Kerner, 404 U.S.
519 (1972). Haines, however, requires the liberal construction of allegations in pleadings. It does
not apply to following easily-understood procedural rules, such as the requirement for notarization
of affidavits. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)(Norris, J.), citing Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991).
Counsel cites several occasions in which federal courts of appeals have allowed district

courts to consider unsworn statements in immigration proceedings (Objections, ECF No. 30,
PageID 1362). But it is not the Federal Rules of Evidence that are at issue here, but whether
requiring notarization was an adequate and independent state ground of decision. No court known
to the Magistrate Judge has found that requiring notarization of affidavits in post-conviction
somehow denied a petitioner due process of law, yet this is Wood’s ultimate conclusion (ECF No.
30, PageID 1364).
Actual Innocence Excuses Procedural Defaults

Wood argues that because his conviction on Count Two in the 143 case is unconstitutional
under Birchfield, he is actually innocent of that charge and this will excuse his procedural defaults

on any of his claims in the case (Objections, ECF No. 30, PageID 1364-67).
For reasons given above, the Magistrate Judge disagrees with the claim that Birchfield
renders the conviction on Count 2 of the 143 case unconstitutional. But habeas counsel’s argument
in this section of the Objections betrays a fundamental misunderstanding of the actual innocence
doctrine.
The controlling precedent on actual innocence is now the Supreme Court’s decision in
McQuiggin v. Perkins, 569 U.S. 383 (2013).

[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as
it was in Schlup and House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable actual-
innocence gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.
S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,
at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making
an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U. S., at 332, 115
S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway
claim, should count unjustifiable delay on a habeas petitioner’s part,
not as an absolute barrier to relief, but as a factor in determining
whether actual innocence has been reliably shown.

McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013).
In Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit anticipated McQuiggin
and held Congress enacted the statute of limitations in 28 U.S.C. § 2244(d)(1) “consistent with the
Schlup [v. Delo] actual innocence exception.” The Souter court also held:

[I]f 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
v. Delo, 513 U.S. 298, 316 (1995)." 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." Id. at 317.
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." Id. at 327. The Court has noted
that "actual innocence means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.
Ed. 2d 828, 118 S. Ct. 1604 (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." Schlup, 513 U.S. at 324.
The Court counseled however, that the actual innocence exception
should "remain rare" and "only be applied in the 'extraordinary
case.'" Id. at 321.

Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).

“Actual” innocence means “factual” innocence. Bousely, supra. The Souter exception
does not apply when a petitioner’s assertion of actual innocence is based solely on his
interpretation of the law; new exculpatory evidence is required. Ross v. Berghuis, 417 F.3d 552,
555 (6th Cir. 2005). Wood has presented absolutely no new evidence of his actual innocence
within the meaning of that term in Schlup and Souter.
Merits of Petitioner’s Claims

In this section of his Objections (ECF No. 30, PageID 1367-70), Wood argues the merits
of some of his claims5. To the extent those arguments are not dealt with above, this Supplemental

Report considers them here.
Wood claims he was denied a fair trial because his two cases were tried together. He
blames the failure to sever on his trial attorney’s flawed legal arguments on this issue (Objections,
ECF No. 30, PageID 1368). The Report noted that the joinder issue, on the merits and not as an
ineffective assistance of trial counsel claim, had been raised on direct appeal and decided adversely
to Wood by the Second District (Report, ECF No. 17, PageID 1295-99). The appellate court noted
that joinder is favored in Ohio because of judicial economy, that the evidence was simple and
direct, and there was an overlapping witness, Corporal Perry.
The principal basis on which Wood objected to joinder in the Petition was that without it
the jury would not have heard about all his prior DUI convictions. The Report found this to be

inaccurate because both indictments included the five prior convictions specifications. Under
Apprendi v. New Jersey, 530 U.S. 466 (2000), every element of the enhancement specification had
to be proved to the jury beyond a reasonable doubt. The Report concluded that the Second
District’s decision was not an unreasonable application of clearly established Supreme Court
precedent on the joinder question and the Objections do not respond to that conclusion at all.

5 Habeas counsel graciously concedes that the Report did not err in all of its conclusions (Objections, ECF No. 30,
PageID 1367, n. 9).
Certificate of Appealability

Wood objects separately to the Magistrate Judge’s recommendation that the Court deny a
certificate of appealability (Objections, ECF No. 30, PageID 1371-73). While he recites correctly

the general standard for a certificate, he fails to show with any particularity which reasonable
jurists would disagree with which conclusions in the Report. For example, he cites no judge who
has found a statute like Ohio Revised Code § 4511.19(A(2) is unconstitutional under Birchfield or
any jurist who has found a convincing case of actual innocence based on an argument such as the
one he makes based on Birchfield.
The Sixth Circuit has recently sharpened the standard on issuance of certificates of
appealability:
In short, a court should not grant a certificate without some
substantial reason to think that the denial of relief might be incorrect.
Crucially, in applying this standard, a court must consider not only
the merits of the underlying constitutional claim but also any
procedural barriers to relief. Buck v. Davis, 137 S. Ct. 759, 777, 197
L. Ed. 2d 1 (2017); Slack [v. McDaniel], 529 U.S. at 484-85; see
also Dufresne v. Palmer, 876 F.3d 248, 254 (6th Cir. 2017). To put
it simply, a claim does not merit a certificate unless every
independent reason to deny the claim is reasonably debatable.

Moody v. United States, 958 F.3d 485 (6th Cir. 2020).

The Magistrate Judge continues to believe Wood has not met the standard for a certificate
of appealability.

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice. Because Wood has not
shown reasonable jurists would 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.

September 18, 2020.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376364. Public record. Not legal advice.