# Thundercloud v. Warden, Ross Correctional Institution

> District Court, S.D. Ohio · March 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10377468

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 16, 2021
- **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
EASTERN DIVISION

MICHAEL S. THUNDERCLOUD,
Case No. 2:20-cv-4747
Petitioner, Judge Edmund A. Sargus, Jr.
Magistrate Judge Kimberly A. Jolson
v.

WARDEN, ROSS CORRECTIONAL
INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition or 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, and
the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action
be DISMISSED.
I. BACKGROUND
Petitioner challenges his convictions after a jury trial on kidnapping, felonious assault,
and retaliation, with firearm specifications. (See generally Doc. 3). The Ohio Fifth District
Court of Appeals summarized the facts and procedural history of the case as follows:
{¶2} This case arose in October 2017 when Jane Doe was beaten, hog-tied, and
terrorized by a group of people at her drug dealer’s residence on Grace Avenue in
Muskingum County. The following facts are adduced from the record of the trial
of co-defendants Thundercloud and Ross.

{¶3} Jane Doe is an admitted chronic illegal drug user. She has had periods of
sobriety, but was heavily addicted in October 2017. She lost custody of both of
her children. Her husband, the father of the eldest child, died of a drug overdose.
“Josh” is the father of her youngest child and is also a long-term drug abuser. Doe
has numerous criminal convictions and has frequently violated probation due to
“dirty” drug screens.
{¶4} In October 2017, Doe’s drugs of choice were heroin and methamphetamine.
She would alternate the two, using meth to stay awake and sustain the high from
the heroin. Doe freely admits that during this period of her life, she spent all of
her time getting high, or finding money to get high, and drugs were her only
priority.

{¶5} Her dealer was Darnell Vann, known on the street and referred to at trial as
“Smoke.” Smoke had a house on Grace Avenue and Doe went there several times
a day, every day. The house was usually full of people using heroin,
methamphetamine, crack, and cocaine. Sometimes Josh accompanied Doe to
Smoke’s house to get high. Doe admittedly stole from family members to get
money for drugs. Smoke would also give her lists of items to “boost,” or steal
from stores, which she would exchange for drugs.

{¶6} The instant case relates back to an incident in 2014. In May 2014, Doe was
at a house in Crooksville when a drug bust occurred, resulting in the arrest of a
dealer named T.J. Murphy. Doe was a witness against Murphy at his ensuing trial.
In the wake of the trial, Doe and Josh occasionally heard rumors that Murphy had
“put a hit out” on Doe.

{¶7} Life continued to spiral downward for Doe in the fall of 2017. She tested
positive for fentanyl abuse and was arrested for receiving stolen property. She
violated probation and lost custody of her children yet again. She was hospitalized
for six weeks due to a hole in her spleen from chronic drug abuse. Nevertheless,
upon her release from the hospital, she immediately sought out Smoke to get high.
Doe bounced between living at Smoke’s residence and with her parents in their
one-bedroom apartment.

{¶8} Once while Doe was at Smoke’s, a woman recognized her and told everyone
in the house Doe “was the boys,” meaning Doe was a police informant. Around
this time Doe learned Smoke knew T.J. Murphy and had communicated with him
about her whereabouts.

{¶9} Doe still constantly went to Smoke’s residence despite Josh’s renewed
warnings that there was a “hit” out on her. At one point, she talked to Smoke
about the threats and he told her there was nothing to worry about. He suggested
they could “stage” something where it would appear Doe got “jumped.” Everyone
would benefit because Murphy would pay Smoke and Doe “would have the target
off [her] back.” Doe thought the staging sounded like a good idea, but no plan
was formulated and Doe told Smoke they would have to discuss it further to
figure out the details.

{¶10} On October 27 and 28, 2017, Doe went to Smoke’s residence to get high.
There were several other people present. Among these were Smoke;
Thundercloud, known as “Cherokee;” Ross, known as “Boone;” and Heather
Chandler. Also present was Byron Goodrich, who died of an overdose before trial
of the instant case.

{¶11} Doe intended to spend the night at Smoke’s because she and Josh had
fought. She used drugs and nodded off on the couch in the living room. She
awoke to someone punching her in the face. At first Doe thought she was
dreaming but became terrified as she realized she was being beaten. She was
repeatedly punched and kicked, and was pulled off the couch onto the floor. At
first one person was beating her, then it was several people. She felt a foot in her
face. She tried to cover herself and urinated on herself as the assault continued.
Finally the beating stopped and someone told her to stop screaming.

{¶12} A gun was placed to the back of her head as she lay on the floor, and she
was told to crawl into the kitchen on her hands and knees. Doe complied because
she had no choice and thought she was going to die. She was crying and in pain
from the beating, and heard people talking around her. Some threatened to kill
her; someone threatened to take her into the basement to sodomize her. In the
kitchen, she was instructed to lay flat with her arms and legs outstretched, and she
was hog-tied with a spool of phone cord.

{¶13} Appellee’s Exhibit 1 is a cell phone video of the attack as described by
Doe. Heather Chandler approaches Doe as she is asleep on the couch, and starts
pummeling her. She drags Doe onto the floor and the men join in, kicking Doe.
Boone places a gun to the back of Doe’s head. Byron Goodrich films the beating
and can be heard repeatedly stating, “What a beautiful day. Isn't it a beautiful
day?” as Doe screams and the others make threats. Smoke directs the action and
instructs Doe to crawl to the kitchen. Cherokee hog-ties her with phone cord. Doe
visibly urinates upon herself during the course of the ordeal. The video stops after
Doe is hog-tied.

{¶14} Doe didn’t know the assault was filmed until afterward. Smoke untied her,
gave her clean clothes, and told her to clean herself up. He also gave her some
“dope.” Doe followed his instructions and didn't leave the house because she was
afraid and because she wanted to get high.

{¶15} After the assault, Doe was terrified and in pain. Her face and sides were
throbbing, her lips were split, and she could barely speak. Her glasses were
broken. She had blood on her clothing. She didn't call the police or seek medical
attention because, as she testified, she learned her lesson about talking. Doe
unequivocally testified that she did not agree to be assaulted or terrorized during
this incident, nor did she plan to be. She was hurt and terrified throughout the
assault and was not acting. She still suffers from ongoing nightmares and constant
fear.

{¶16} Despite Doe’s failure to report the incident, eventually police sought her
out. Police executed a search warrant on Byron Goodrich’s cell phone in an
unrelated case and found the video of the assault. Officers recognized the interior
of Smoke’s residence and some of the people on the video. Police tracked down
Doe to find out what happened. During the course of the investigation, Doe was
threatened repeatedly and police “put her somewhere safe,” but she willingly left
the safe place to get high.

{¶17} Smoke and Chandler testified for appellee as part of plea bargains in their
own cases. Their versions of the attack largely matched Doe’s and filled in
additional details.

{¶18} Smoke learned Doe “snitched” against Murphy and spoke to Murphy about
Doe’s whereabouts. Murphy told him to beat Doe. Smoke intended to comply
with Murphy’s request to get paid. He planned to make a fake video because he
didn’t want Doe to get seriously hurt. He thus intended to have a female “jump”
Doe and to film the assault to show to Murphy. Smoke acknowledged he
mentioned this plan to Doe a few weeks prior to the assault; Doe said she was
interested but they would need to discuss it in greater detail.

{¶19} On October 27, Heather Chandler came to his residence to do Smoke’s hair
and to get high. Present in the basement with Smoke and Chandler were
Goodrich, “Boone,” and “Cherokee;” all were present when Smoke suggested to
Chandler that she should beat Doe. According to Smoke, everyone else was
“supposed to sit back.” Chandler testified, though, that when Smoke held out a
bag of “dope” as payment for the attack, everyone ran for the stairs, eager to get
in on the beating to score drugs from Smoke.

{¶20} Chandler observed Doe asleep on the couch and started beating her. At first
Smoke was filming, then Goodrich. Chandler dragged Doe off the couch and
kicked her, and Goodrich and Cherokee joined in. Boone put a gun to the back of
Doe’s head. The group forced Doe to crawl into the kitchen, and Cherokee hog-
tied her with a spool of phone cord. Boone kept a gun to her head the entire time.
Smoke also had a gun in his hand at one point.

{¶21} Smoke testified that using guns had not been planned ahead of time and the
assault spiraled out of control when the entire group got involved. He testified
Doe’s face was “beat up;” it was swollen and her lips were “busted.” She was
scared, crying, and begging them to stop. Smoke acknowledged someone
suggested they should stab her in the head, and someone else said they should
sodomize her.

{¶22} Smoke further testified that once the camera was turned off, Boone and
Goodrich wanted to take Doe into the basement and kill her because she was a
snitch. Smoke thought killing her was a bad idea because there were too many
people in the house who knew about the assault. Smoke untied Doe and told her
to clean herself up. He gave her clean clothes and some heroin.
{¶23} Smoke called Murphy and told him the assault was accomplished, but
complained Murphy never paid him.

{¶24} Smoke testified Doe did not agree to the assault, was not aware it was
going to happen, and did not consent to anything that occurred. He said that at
first, he was “staging” the assault to look good on camera, but events were out of
his control when everyone else got involved.

{¶25} Chandler testified that while she was beating Doe, she “blacked out” and
didn’t recall everything she did to Doe until she saw the video. Chandler
acknowledged that she beat Doe with full force and was not “hitting her easy.”
Chandler also confirmed Boone wanted to kill Doe and Smoke tried to calm him
down.

{¶26} After the beating of Doe, Smoke and Goodrich also beat up Josh while Doe
sat by, crying. Goodrich pulled a gun on Josh and Smoke told him to beat Josh but
not to kill him. Smoke acknowledged Josh was present weeks before when he
discussed staging an assault with Doe, but Josh didn't think it was a good idea and
didn't want any part of it.

{¶27} Despite the beatings at Smoke’s residence, Doe and Josh continued to
return regularly to get high.

{¶28} Thundercloud (“Cherokee”) and Ross (“Boone”) were indicted as follows:
Count I, kidnapping pursuant to R.C. 2905.01(A)(3), a felony of the first degree;
Count II, aggravated robbery with a firearm specification pursuant to R.C.
2911.01(A)(1), a felony of the first degree; Count III, felonious assault with a
firearm specification pursuant to R.C. 2903.11(A)(1), a felony of the second
degree; Count IV, retaliation with a firearm specification pursuant to R.C.
2921.05(A), a felony of the third degree; and Count V, kidnapping with a firearm
specification pursuant to R.C. 2905.01(A)(2), a felony of the first degree. The
firearm specifications are pursuant to R.C. 2941.145.

{¶29} Prior to trial by jury, appellee sought and was granted leave to nolle Counts
II and V, including the firearm specifications. The trial court then re-numbered
the counts for purposes of sentencing. Count I remained Count I, but Count II
became felonious assault with a firearm specification pursuant to R.C.
2903.11(A)(1), a felony of the second degree (formerly Count III); Count III
became retaliation with a firearm specification pursuant to R.C. 2921.05(A), a
felony of the third degree (formerly Count IV).

{¶30} The matter proceeded to trial by jury. Both Thundercloud and Ross moved
for judgment of acquittal pursuant to Crim.R. 29(A) upon the count of felonious
assault, asserting appellee presented insufficient evidence of serious physical
harm. The motions were overruled.
{¶31} Thundercloud was thereupon found guilty as charged. The trial court
sentenced Thundercloud to an aggregate prison term of 20 years.

{¶32} Thundercloud now appeals from the trial court's judgment entry of
conviction dated June 12, 2018.

{¶33} Thundercloud raises two assignments of error:

{¶34} “I. The trial court erred in denying Michael Thundercloud’s Motion for
Acquittal and violated his rights to due process and a fair trial when, in the
absence of sufficient evidence, it convicted him of felonious assault.”

{¶35} “II. The trial court failed to merge allied offenses of similar import and thus
imposed more prison terms than authorized by law.”

State v. Thundercloud, 5th Dist. No. CT2018-0048, 2019 WL 2564122 at *1–4 (Ohio Ct. App.
June 20, 2019). On June 20, 2019, the appellate court affirmed the trial court’s judgment. Id.
On January 21, 2020, the Ohio Supreme Court declined to accept jurisdiction of the appeal.
State v. Thundercloud, 157 Ohio St.3d 1538 (Ohio 2020).
On September 15, 2020, Petitioner filed this pro se habeas corpus petition. (Doc. 4). He
asserts that the trial court unconstitutionally denied his motion for judgment of acquittal (claim
one); and that his convictions constitute allied offenses of similar import (claim two). (Id.). It is
Respondent’s position that Petitioner’s claims are procedurally defaulted and without merit.
II. PROCEDURAL DEFAULT
A. Standard
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, a 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 the prisoner fails to do so, but still has an avenue open to present the claims, then the petition
is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S.
4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust 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
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.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting 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. Id. 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. Id. As the 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 in the
Sixth Circuit engage in a four-part test. See 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.
Maupin, 785 F.2d at 138. Second, the court must determine whether the state courts actually
enforced the state procedural sanction. Id. Third, the court must determine whether the

forfeiture is an adequate and independent state ground on which the state can rely to foreclose
review of a federal constitutional claim. Id. 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: (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)). That 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. We again considered the interplay between exhaustion and procedural
default last Term in O’Sullivan v. Boerckel, 526 U.S. 838, concluding that the
latter doctrine was necessary to “‘protect the integrity’ of the federal exhaustion
rule.” Id., at 848 (quoting id., at 853 (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 run’” so
that state remedies were no longer available. Id., at 848. 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].’” Id., at 854
(STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S.
200, 204 (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
In claim one, Petitioner asserts that the trial court unconstitutionally denied his motion for
judgment of acquittal or, liberally construing this claim, he asserts that the evidence is
constitutionally insufficient to sustain his convictions. Petitioner raised this same claim on direct
appeal; however, he failed thereafter to raise the same issue in the Ohio Supreme Court. (See
Doc. 9, PAGEID # 158–59). Further, he may no longer do so under Ohio’s doctrine of res
judicata. “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) (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 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). 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.
In claim two, Petitioner asserts that his convictions constitute allied offenses of similar
import. The appellate court reviewed this claim for plain error only, because Petitioner failed to
object:
{¶47} Thundercloud argues that the offenses of retaliation and felonious assault
were allied offenses of similar import which should have merged for purposes of
sentencing. We disagree.

{¶48} A defendant may be indicted upon and tried for allied offenses of similar
import, but may be sentenced on only one of the allied offenses. State v. Carr,
2016-Ohio-9, 57 N.E.3d 262, ¶ 42 (5th Dist.), citing State v. Brown, 119 Ohio
St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or information
may contain counts for all such offenses, and the defendant may be
convicted of all of them.

{¶49} The question of whether offenses merge for sentencing depends upon the
subjective facts of the case in addition to the elements of the offenses charged.
State v. Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d
765, ¶ 21. In a plurality opinion, the Ohio Supreme Court modified the test for
determining whether offenses are allied offenses of similar import. State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Court
directed us to look at the elements of the offenses in question and determine
whether or not it is possible to commit one offense and commit the other with the
same conduct. Id. at ¶ 48. If the answer to such question is in the affirmative, the
court must then determine whether or not the offenses were committed by the
same conduct. Id. at ¶ 49. If the answer to the above two questions is yes, then the
offenses are allied offenses of similar import and will be merged. Id. at ¶ 50. If,
however, the court determines that commission of one offense will never result in
the commission of the other, or if there is a separate animus for each offense, then
the offenses will not merge. Id. at ¶ 51.

{¶50} Johnson’s rationale has been described by the Court as “incomplete.” State
v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Court
has further instructed us to ask three questions when a defendant's conduct
supports multiple offenses: (1) were the offenses dissimilar in import or
significance? (2) were they committed separately? and (3) were they committed
with separate animus or motivation? State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative answer to any of the above will
permit separate convictions. Id. The conduct, the animus, and the import must all
be considered. Id.
{¶51} Appellate review of an allied-offense question is de novo. State v. Miku,
2018-Ohio-1584, 111 N.E.3d 558, ¶ 70 (5th Dist.), citing State v. Williams, 134
Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12. In the instant case,
however, Thundercloud did not seek merger at trial. By failing to seek the merger
of convictions as allied offenses of similar import in the trial court, a defendant
forfeits his or her allied offenses claim for appellate review, except for plain error.
See State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860, ¶ 21.
In Rogers, the Court reaffirmed that even if an accused shows the trial court
committed plain error affecting the outcome of the proceeding, the appellate court
is not required to correct it. Id. at ¶ 23. Notice of plain error under Crim.R. 52(B)
is to be taken with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph 3 of the syllabus.

{¶52} We find felonious assault and retaliation cannot be construed to be allied
offenses of similar import. The word “import” in the context of allied offenses
refers to “offenses of similar importance, consequence and signification.” State v.
Baer, 67 Ohio St.2d 220, 226, 423 N.E.2d 432 (1981). As noted supra, felonious
assault pursuant to R.C. 2903.11(A)(1) requires proof that the defendant
knowingly caused serious physical harm to another. Retaliation, R.C. 2921.05(A),
states “[n]o person, purposely and by force or by unlawful threat of harm to any
person or property, shall retaliate against a * * * witness who was involved in a *
* * criminal action or proceeding because the * * * witness discharged the duties
of the * * * witness.”

{¶53} Fundamentally, these offenses do not pass even the first level of the
Johnson test, supra. 2010-Ohio-6314 at ¶ 48. In State v. Phillips, 8th Dist.
Cuyahoga No. 79192, 2001 WL 1612103, at *6, the Eighth District considered
whether these are allied offenses of similar import:

Regardless of whether we make our determination based upon an
abstract comparison of the implicated statutes, or a specific review
and comparison of the facts of this case as they apply to the
statutes, we conclude retaliation and felonious assault are not allied
offenses. As the State plainly argued in its appellate brief, one may
commit a felonious assault without the animus to retaliate against
the victim; and one may retaliate without causing or attempting to
cause serious physical harm as required by felonious assault.

{¶54} See also, State v. Calhoun, 8th Dist. Cuyahoga No. 91328, 2009-Ohio-
2361, ¶ 27. Even if we were to find that the offenses can be allied offenses of
similar import under certain circumstances, they are not allied offenses in the
instant case. Thundercloud committed retaliation hoping to get paid in dope; he
participated in and was complicit to the ensuing felonious assault.
{¶55} The trial court did not commit plain error in failing to merge the offenses of
retaliation and felonious assault. Thundercloud’s second assignment of error is
overruled.

Thundercloud, 2019 WL 2564122, at *6–8.

Petitioner thereby has procedurally defaulted claim two. See Hinkle v. Randle, 271 F.3d
239, 244 (6th Cir. 2001); 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 United States Court of Appeals for the Sixth Circuit has held that Ohio’s
contemporaneous-objection rule constitutes an adequate and independent state ground to
preclude federal habeas review. Wogenstahl v. Mitchell, 668 F.3d 307, 334-35 (6th Cir.)
(citation omitted), cert. denied sub nom. Wogenstahl v. Robinson, 568 U.S. 902 (2012); Awkal v.
Mitchell, 613 F.3d 629, 648–49 (6th Cir. 2010), cert. denied, 562 U.S. 1183 (2011). Importantly,
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). Further, any alternative ruling on the merits does not remove the
procedural default. See 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)).
Petitioner may still obtain review of this claim on the merits if he establishes cause for his
procedural default, as well as actual prejudice from the alleged constitutional violation.
“‘[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).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Constitutionally ineffective assistance of
counsel may constitute cause for a procedural default, so long as the claim has been presented to
the state courts and is not itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446,
451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). Here, Petitioner did not
raise a claim of ineffective assistance of counsel in the Ohio courts. Further, ineffective
assistance of counsel cannot constitute cause in the filing of an appeal in the Ohio Supreme
Court, where there is no constitutional right to counsel in those proceedings. See Gulertekin v.

Tinnelman–Cooper, 340 F.3d 415, 425 (6th Cir.2003) (citing Coleman v. Thompson, 501 U.S.
722, 752–53 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to counsel
extends to the first appeal of right, and no further.”); Lopez v. Wilson, 426 F.3d 339, 352 (6th
Cir. 2005)). Petitioner has failed to establish cause for his procedural defaults.
Moreover, Petitioner does not allege, and the record does not reflect, that this is “an
extraordinary case, where a constitutional violation has probably resulted in the conviction of
one who is actually innocent[,]” Murray v. Carrier, 477 U.S. at 491, such that the Court may
nonetheless consider the merits of Petitioner’s procedurally defaulted claims. See also Sawyer v.
Whitley, 505 U.S. 333 (1992).

[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, 513 U.S. at 316. 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 (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, 589–90 (6th Cir. 2005). Petitioner does not meet this standard
here.
III. DISPOSITION
Therefore, it is RECOMMENDED that this action 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: March 16, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377468. Public record. Not legal advice.