Smith v. Warden, Southeastern Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IVAN J. SMITH,

Case No. 2:20-cv-1382

Petitioner, Chief Judge Algenon L. Marbley

Chief Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, SOUTHEASTERN

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, and

the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action

be DISMISSED.

I. FACTS AND PROCEDURAL HISTORY

Petitioner challenges his May 27, 2017 convictions after a jury trial in the Muskingum

County Court of Common Pleas for possession of drugs, cultivation of marijuana, possession of

criminal tools, and money laundering. The Ohio Fifth District Court of Appeals summarized the

facts and procedural history of the case as follows:

{¶4} On July 13, 2016, Muskingum County Sheriff's dispatch received a complaint

about the odor of marijuana coming from the residence located at 128 Hamline

Ave., Zanesville, Ohio. The complaint also stated that the occupants at the

residence were trafficking in drugs.

{¶5} Colleena Johnson (“Colleena”) and Appellant lived at 128 Hamline Ave. 130

Hamline Ave. was vacant at the time. (Trial, Vol. I, p. 157, 159; Vol. II, p. 455).

Their residence is a duplex with 130 Hamline Ave., wherein 128 is on the south

side and 130 is on the north side. (T. at 157).

{¶6} In response to the complaint, officers approached the residence to conduct a

“knock and talk”. (T. at 152-53). Officers noticed the odor or raw marijuana, which

became stronger when Colleena came out after the officers knocked. (T. at 155-56).

Colleena refused to give consent for a search of the residence. Officers secured the

residence while Detective Matt Wilhite (“Det. Wilhite”) left to procure a search

warrant. (T. at 156). Colleena, who was not permitted to re-enter the residence

without being accompanied by an officer, left on foot. It took a little over an hour

for Det. Wilhite to return with a signed search warrant.

{¶7} Additionally, officers received consent from Dan Reinstetle, the owner of the

duplex, to search the vacant 130 Hamline Ave. residence to confirm the odor of

marijuana was not coming from it. (T. at 159). Officers also found nine (9)

marijuana plants outside, on the south side (128 side) of the duplex, in pots that

resembled pots that were later discovered inside 128 Hamline Ave. (T. at 167). The

marijuana plants outside had labels on them to identify their strand. (T. at 169).

{¶8} Inside 128 Hamline Ave., officers found Christmas tags that read “To Ivan,

From Col”, mason jars with labelling, and Ziploc vacuum sealed bags with

handwriting that was similar to the handwriting on the labels on the marijuana

plants outside. (T. at 170-71, 173). There was also marijuana residue on the bottom

of the mason jars and the labels for other strands of marijuana. (T. at 171-72).

{¶9} Officers also found five (5) butane cans inside the residence, which Det.

Wilhite testified were frequently used to process marijuana to manufacture hashish.

(T. at 172). Hashish was also found. (T. at 467-69).

{¶10} During the search, officers also found duct tape that matched duct tape on

the marijuana plants outside, as well as duct tape that would later be found in the

basement and at a storage unit. (T. at 173-74).

{¶11} A book named Cannabis Indica was found next to a cedar chest in a room

upstairs. (T. at 176). Inside that cedar chest were four (4) more mason jars with

labels, vacuum sealed bags, and a plastic tote that had Appellant's fingerprint on it.

(T. at 177, 392-94). There was a desk in the room that had mail and multiple

documents in the name of Appellant. (T. at 83-84, 205). Officers also found a

Styrofoam cup with methamphetamine inside of it. (T. at 180, 182, 301, 467-69).

{¶12} In a closet behind some clothes was a staircase that led to the attic, which

had been secured by coat hanger wire. (T. at 184). The attic can only be accessed

from 128 Hamline Ave., not from 130 Hamline Ave. (T. at 166, 269-70). In the

attic, eighty-four (84) full plants, fresh, with wet and damp soil, were found, as well

as a large, plastic, industrial grinder with ground-up marijuana inside, more mason

jars, a vacuum sealer, and other dried marijuana were found. (T. at 185, 188-89,

317-18). Appellant's fingerprints were on the grinder. (T. at 189, 392-94). There

was no lighting in the attic and the temperature was above 100 degrees. (T. at 185,

273).

{¶13} Det. Wilhite testified about his knowledge of marijuana and that marijuana

plants cannot grow in a space of that temperature and with no light, concluding that

the plants had to have recently been placed there. (T. at 185-86, 188, 273). Colleena

would not have had time to move the plants to the attic. (T. at 276).

{¶14} In the basement, officers found three (3) constructed hydroponic grow rooms

wrapped in heavy black plastic with reflective plastic on the inside, grow lights,

hydroponic stems, and filters, all used to grow marijuana. (T. at 192). There were

also hydroponic clay balls and bamboo sticks, which matched hydroponic clay balls

and bamboo sticks that were found with the outside marijuana plants. (T. at 194).

There was a box for grow lights with the name Howard Bailey on it, who previously

worked at Iroc's Hair Design Studio (“Iroc's”), which is the barbershop business

that Appellant owns, located at 125 State Street. (T. at 196, 253). There was blue

rope and blue pulleys holding up the LED grow lights from the ceiling. (T. at 196).

Howard Bailey's fingerprint was on one of the LED grow lights, which he testified

he had previously sold to Appellant. (T. at 255, 299, 366, 369). There was also

Appellant's yellow-hooded sweatshirt, which he had been seen wearing around

town, and the matching pants were located in his vehicle parked outside. (T. at 197,

231). Finally, a bag of packaged (processed) marijuana was found inside the dryer.

(T. at 414).

{¶15} Appellant's Ford Explorer was parked at 128 Hamline Ave. and was also

searched. (T. at 229-31). Located in the vehicle was a blue pulley, a pair of yellow

pants, Appellant's wallet and identification, credit cards, and numerous documents

and receipts, including an electric bill for Iroc's, a Huntington Bank bill in the name

of Appellant, and another Huntington Bank bill in the name of Ivan J. Smith dba

Iroc's Hair Design Studios. (T. at 231-32, 236, 319-320).

{¶16} In the cedar chest was also a payment book/receipts for Five Star Store It in

the name of Appellant and his company Iroc's. (T. at 203-04). That storage unit was

rented in Appellant's name for Iroc's. (T. at 252-53, 409). A K9 alerted to the

presence of narcotics in the storage unit that Appellant/Iroc's was renting. (T. at

332). A search of the storage unit revealed 2x4 framing, ventilation piping with

heavy plastic stapled to it, vacuum sealed bags with similar writing as those found

at 128 Hamline, reflective plastic, and hydroponic clay balls, all similar to those

found at 128 Hamline Ave. (T. at 215-217, 221-223). There was also a hydroponic

water pump system, further documents in the name of Appellant, heavy black

plastic and duct tape similar to that found in the basement at 128 Hamline Ave.,

and a hair salon chair with marijuana residue on it. (T. at 223, 226). The receipt for

Indoor Gardens found in the Ford Explorer led detectives to visit Indoor Gardens

and retrieve the merchant copy which showed that Appellant purchased grow lights

and other materials using his Huntington Bank business account card. (T. at 235,

248-252, 362-363).

{¶17} The scene was processed, evidence collected, and was sent away for testing

and analysis. (T. at 254). The grinder, plastic bin, and lighting systems were

processed for fingerprints. (T. at 337-338, 346-347). Five (5) of the fingerprints

came back identifying Appellant, one fingerprint belonged to Howard Bailey.

Colleena's prints were excluded from being on the evidence. (T. at 392, 394).

{¶18} The marijuana was tested and weighed and came back with a combined

weight of 1.28 kilograms, or 1,280 grams. (T. at 439, 445-446). The hashish was

tested and weighed 13.05 grams, the methamphetamine was tested and weighed

less than 0.10 grams. (T. at 467-469).

{¶19} During the search, Appellant called Detective Todd Kanavel. Appellant was

upset and asking why they were searching the house. (T. at 415). Appellant called

back asking if he needed to turn himself in, and while referring to the grow lights,

stated “the stuff isn't even turned on”. (T. at 416-17).

{¶20} On October 12, 2016, Appellant was indicted as follows:

Count 1: Possession of drugs (Marijuana), in violation of R.C. § 2925.11(A), a

felony of the third degree,

Count 2: Cultivation of Marijuana, in violation of R.C. § 2925.04(A), a felony of

the third degree, with a forfeiture specification;

Count 3: Possession of drugs (Hashish), in violation of R.C. § 2925.11(A), a felony

of the fifth degree;

Count 4: Possession of drugs (Methamphetamine), in violation of R.C. §

2925.11(A), a felony of the fifth degree;

Count 5: Possession of criminal tools, in violation of R.C. § 2923.24(A), felony of

the fifth degree;

Count 6: Money laundering, in violation of R.C. § 1315.55(A), a felony of the third

degree, with a forfeiture specification.

{¶21} On January 31, 2017, Appellant filed a motion to suppress.

{¶22} On February 10, 2017, a hearing was held on Appellant's motion to suppress.

The trial court denied the motion.

{¶23} On February 12, 2017, a jury trial commenced in this matter. One hour into

voir dire, the trial was continued due to Appellant's wish to fire his counsel and

Appellant's counsel moving the court to allow him to withdraw as counsel.

{¶24} Following deliberations, the jury found Appellant guilty on Counts One,

Two, Three, Five and Six, and the forfeiture specifications.

{¶25} On June 14, 2017, a sentencing hearing was held. At said hearing, the trial

court merged Counts One and Two for purposes of sentencing and sentenced

Appellant to thirty (30) months on those counts, twelve (12) months on Count

Three, twelve (12) months on Count Five and thirty (30) months on Count Six.

Counts Two and Six were ordered to run consecutively to one another. Counts

Three and Five were ordered to run concurrently with each other and with the

sentence on Counts Two and Six, for an aggregate prison term of sixty (60) months.

The applicable property, including real estate located 125 State Street, Zanesville,

Ohio, was also ordered to be seized and forfeited to the State of Ohio and transferred

to the County of Muskingum. The trial court waived the mandatory $5,000 fine.

{¶26} On July 10, 2017, Appellant appealed his conviction to this Court.

{¶27} By Opinion and Entry dated June 18, 2018, this Court affirmed the judgment

of the Muskingum County Common Pleas Court, upholding the conviction.1

{¶28} On May 23, 2018, Appellant filed a Motion to Vacate Costs or in the

Alternative for an Order Allowing a Monthly Partial Payment Plan.

{¶29} On June 29, 2018, the State filed opposition to Appellant's motion.

{¶30}On July 27, 2018, the trial court denied Appellant's motion.

{¶31} On August 6, 2018, Appellant filed a Notice of Appeal with the Ohio

Supreme Court. On November 13, 2018, the Ohio Supreme Court declined to

accept jurisdiction.

1 Petitioner raised the following assignments of error on direct appeal:

{¶ 28} “I. IT IS STRUCTURAL ERROR TO DEPRIVE THE APPELLANT HIS

PRESUMPTION OF INNOCENCE BY ALLOWING A WITNESS TO TESTIFY

REGARDING PRIOR CONVICTIONS.

{¶ 29} “II. THE CONVICTION FOR THE POSSESSION CHARGES WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 30} “III. THE CONVICTION FOR MONEY LAUNDERING WAS NOT

SUPPORTED BY THE MANFIEST [SIC] WEIGHT OF THE EVIDENCE.

{¶ 31} “IV. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S

MOTION FOR A JURY VIEW.”

State v. Smith, 5th Dist. No. CT2017-0044, 2018 WL 3046489, at *3-4 (Ohio Ct. App. June 18,

2018). On October 24, 2018, the Ohio Supreme Court declined to accept jurisdiction of the

appeal. State v. Smith, 153 Ohio St.3d 1504 (Ohio 2018).

{¶32} On September 21, 2018, Appellant filed an Application to Reopen his

Appeal. On December 3, 2018, this Court denied the Application to Reopen.

{¶33} On October 15, 2018, Appellant filed a motion for a delayed appeal, which

was granted by this Court. This appeal follows.

{¶34} On January 16, 2019, Appellant filed a Notice of Appeal with the Ohio

Supreme Court. On April 18, 2019, the Ohio Supreme Court declined to accept

jurisdiction.

{¶35} Appellant now appeals, raising the following assignment of error on appeal:

ASSIGNMENT OF ERROR

{¶36} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

SMITH'S MOTION TO WAIVE COURT COSTS OR TO ALLOW A MONTHLY

PAYMENT PLAN, IN VIOLATION OF HIS RIGHTS UNDER THE EIGHTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.”

State v. Smith, 5th Dist. No. CT2018-0063, 2019 WL 3404233, at *1-4 (Ohio Ct. App. July 26,

2019). On July 26, 2019, the appellate court affirmed the trial court’s denial of Petitioner’s

motion to waive court costs. Id. Petitioner did not file an appeal.

On May 3, 2019, Petitioner filed a motion for leave to file a delayed motion for a new

trial in the state trial court, asserting that newly discovered evidence, arguing that an affidavit

from Colleena Johnson would have exonerated him and the trial court inconsistently imposed

sentence. (ECF No. 11, PAGEID # 283.) On October 15, 2019, the trial court denied that

motion. (PAGEID # 326.) On October 28, 2020, the appellate court dismissed Petitioner’s

appeal. State v. Smith, 5th Dist. No. CT2019-0077, 2020 WL 6342756 (Ohio Ct. App. Oct. 28,

2020).

On March 18, 2020, Petitioner filed this pro se habeas corpus petition pursuant to 28

U.S.C. § 2254. He asserts that he was denied a fair trial due to admission of prior acts evidence

(claim one); that the evidence is constitutionally insufficient to sustain his conviction on

possession of drugs (claim two); that his conviction on money laundering is against the manifest

weight of the evidence (claim three); that the trial court improperly denied his motion for a jury

view (claim four); that he was denied the effective assistance of appellate counsel (claim five);

that he was denied a fair trial due to prosecutorial misconduct (claim six); and that he was denied

the effective assistance of trial counsel (claim seven).

II. STANDARD OF REVIEW

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

The United States Court of Appeals for the Sixth Circuit has explained the meaning of

the standards found in § 2254(d)(1) as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ “if the

state court applies a rule different from the governing law set forth in our cases, or

if it decides a case differently than we have done on a set of materially

indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152

L.Ed.2d 914 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions but unreasonably

applies the law or bases its decision on an unreasonable determination of the facts,

in light of the record before the state court. Harrington v. Richter, 562 U.S. 86, 100,

131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams, 529 U.S. at 412–13, 120 S.Ct.

1495.

Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018), cert. denied, 139 S. Ct. 798, (2019).

Moreover, under § 2254(d)(2), a state court’s factual determination is not “unreasonable”

merely because the federal habeas court would have reached a different conclusion. Wood v.

Allen, 558 U.S. 290, 301 (2010). Instead, a state court’s factual findings are “only unreasonable

where they are ‘rebutted by clear and convincing evidence’ and do not have support in the

record.” Moritz v. Woods, No. 16-1504, 2017 WL 2241814, at *5 (6th Cir. May 22, 2017)

(quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks

omitted). Moreover, “[f]actual determinations by state courts are presumed correct absent clear

and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned on factual grounds

unless objectively unreasonable in light of the evidence presented in the state-court

proceeding[.]” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (quoting Miller–El v.

Cockrell, 537 U.S. 322, 340 (2003)) (“Miller–El I”).

The burden of satisfying AEDPA’s standards rests with the petitioner. See Cullen v.

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

III. CLAIM ONE

Petitioner asserts that admission of testimony about his prior felony conviction denied

him a fair trial. This claim does not provide a basis for relief. Generally, alleged errors in

evidentiary rulings generally do not support a writ of habeas corpus. Estelle v. McGuire, 502

U.S. 62 (1991); Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012) (citations omitted).

To be entitled to habeas relief, a petitioner must demonstrate that the evidentiary ruling was “so

fundamentally unfair that it rises to the level of a due-process violation.” Collier v. Lafler, 419

F. App’x 555, 558 (6th Cir. 2011) (citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir.

2001)). “Generally, state-court evidentiary rulings cannot rise to the level of due process

violations unless they ‘offend[ ] some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.’” Bugh v. Mitchell, 329 F.3d 496, 512

(6th Cir. 2003) (citing Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)) (quoting Montana

v. Egelhoff, 518 U.S. 37, 43 (1996)). In order to establish a due process violation under the

AEDPA rooted in an evidentiary ruling, the Court of Appeals for the Sixth Circuit typically has

required a Supreme Court case establishing a due process right with regard to that specific kind

of evidence. Id. (citing Maldonado v. Wilson, 416 F.3d 470, 477 (6th Cir. 2005)). However,

there is no clearly established Supreme Court precedent holding that a state violates due process

by permitting propensity evidence in the form of other bad acts evidence. Bugh v. Mitchell, 329

F.3d at 512. Consequently, even if the trial court's admission of prior-bad-act evidence is viewed

as “egregious error,” the petitioner cannot meet the mandatory AEDPA showing that the Ohio

Court of Appeals’ decision rejecting his claim constituted an unreasonable application of

Supreme Court caselaw. See Goldick v. Warden, Ross Corr. Inst., No. 3:11-cv-00441, 2013 WL

2377638, at *9 (S.D. Ohio May 30, 2013) (citing Harrington v. Richter, 562 U.S. 86, 101-102

(2011)).

Thus, claim one does not provide Petitioner a basis for relief.

IV. CLAIM THREE

Petitioner asserts that his conviction on money laundering was against the manifest weight of

the evidence. This claim likewise does not provide Petitioner the relief he seeks. See Williams v.

Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v.

Eberlin, 258 F. App’x 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL

525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL

1337102, at *3 (S.D. Ohio)) (“Whether a conviction is against the manifest weight of the evidence

is purely a question of Ohio law.”); see also Taylor v. Warden, Lebanon Corr. Inst., No. 2:16-cv-

237, 2017 WL 1163858, at *10–11 (S.D. Ohio March 29, 2017) (same) (citations omitted).

Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—

as opposed to one based upon insufficient evidence—requires the appellate court to act as a

“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility

of witnesses to determine whether “the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a

federal habeas court does not function as an additional state appellate court, vested with the

authority to conduct such an exhaustive review, petitioner’s claim that his convictions were

against the manifest weight of the evidence cannot be considered by this Court.

Claim three does not provide a basis for relief.

V. CLAIM TWO

Petitioner asserts that the evidence is constitutionally insufficient to sustain his conviction

for possession of drugs. The state appellate court rejected this claim as follows:

Appellant argues the trial court erred in denying his Crim.R. 29 motion for acquittal

because the state failed to sufficiently prove the element of “possession,” and the

jury's verdict was against the sufficiency of the evidence. We disagree.

{¶ 41} Crim.R. 29 governs motion for acquittal. Subsection (A) states the

following:

The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment

of acquittal of one or more offenses charged in the indictment,

information, or complaint, if the evidence is insufficient to sustain a

conviction of such offense or offenses. The court may not reserve

ruling on a motion for judgment of acquittal made at the close of the

state's case.

{¶ 42} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus: “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment

of acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved beyond

a reasonable doubt.”

{¶ 43} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” Jenks at paragraph two of the syllabus, following

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 44} We note circumstantial evidence is that which can be “inferred from

reasonably and justifiably connected facts.” State v. Fairbanks, 32 Ohio St.2d 34,

289 N.E.2d 352 (1972), paragraph five of the syllabus. “[C]ircumstantial evidence

may be more certain, satisfying and persuasive than direct evidence.” State v.

Richey, 64 Ohio St.3d 353, 595 N.E.2d 915 (1992). It is to be given the same weight

and deference as direct evidence. Jenks, supra.

{¶ 45} Appellant herein was found guilty of possession of marijuana and possession

of hashish, both in violation of R.C. § 2925.11 which states: “No person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” Appellant complains that the state did not prove “possession.”

{¶ 46} R.C. § 2925.01(K) defines “possess” or “possession” as “having control

over a thing or substance, but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises upon which

the thing or substance is found.”

{¶ 47} Possession may be actual or constructive.

“Constructive possession exists when an individual knowingly

exercises dominion and control over an object, even though that

object may not be within his immediate physical possession.” State

v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus.

The evidence must prove that the defendant was able to exercise

dominion and control over the contraband. State v. Wolery, 46 Ohio

St.2d 316, 332, 348 N.E.2d 351 (1976). Dominion and control may

be proven by circumstantial evidence alone. State v. Holman, 5th

Dist. Stark No. 2017CA00114, 2018–Ohio–1373, ¶ 25, citing State

v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close

proximity to the contraband may show constructive possession.

State v. Barr, 86 Ohio App.3d 227, 235, 620 N.E.2d 242, 247–248

(8th Dist. 1993); State v. Morales, 5th Dist. Licking No. 2004 CA

68, 2005–Ohio–4714, ¶ 50; State v. Moses, 5th Dist. Stark No.

2003CA00384, 2004–Ohio–4943,¶ 9. Ownership of the contraband

need not be established in order to find constructive possession.

State v. Smith, 9th Dist. Summit No. 20885, 2002–Ohio–3034, ¶ 13,

citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th

Dist.1993). Furthermore, possession may be individual or joint.

Wolery, 46 Ohio St.2d at 332, 348 N.E.2d 351. Multiple individuals

may constructively possess a particular item of contraband

simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675,

2000–Ohio–1986. The Supreme Court has held that knowledge of

illegal goods on one's property is sufficient to show constructive

possession. State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d

1362, 1365 (1982), certiorari denied, 459 U.S. 870, 103 S.Ct. 155,

74 L.Ed.2d 130 (1982).

{¶ 48} Here, the jury heard testimony as set forth above that Appellant possessed

the drugs which were found at the premises and that Appellant was living at the

premises.

{¶ 49} Upon review, we find sufficient evidence was presented to overcome the

Crim.R. 29 challenge.

{¶ 50} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact, in this case, the jury. State v. Jamison, 49 Ohio St.3d

182, 552 N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the

demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418,

674 N.E.2d 1159 (1997).

{¶ 51} Upon review, we find sufficient evidence to support the conclusion that

Appellant was able to exercise dominion and control over the marijuana and

hashish and therefore was in possession of drugs, and we do not find any manifest

miscarriage of justice.

{¶ 52} Accordingly, Appellant's second assignment of error is overruled.

State v. Smith, 2018 WL 3046480, at *4-6.

The Fourteenth Amendment’s Due Process clause “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The question in a

sufficiency of the evidence claim is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

Jackson standard must be applied “with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)

(quoting Jackson, 443 U.S. at 324 n.16).

Again, when determining if the evidence was sufficient to support a petitioner’s

conviction, a federal habeas court must view the evidence in the light most favorable to the

prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). The

prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.” Id.

(quoting Jackson, 443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of historical

facts that supports conflicting inferences must presume—even if it does not affirmatively appear

in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at 326).

Further, federal habeas courts apply a “double layer” of deference to state court

determinations of the sufficiency of the evidence. Deference must be given, first, to the jury’s

finding of guilt because the standard, announced in Jackson, is whether “viewing the trial

testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Brown v.

Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Second, even if a de novo review of the evidence

leads to the conclusion that no rational trier of fact could have so found, a federal habeas court

“must still defer to the state appellate court’s sufficiency determination as long as it is not

unreasonable.” Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a

substantial hurdle to meet. For the reasons discussed by the state appellate court, Petitioner has

failed to do so here.

The record indicates that Petitioner lived at the house where police found multiple

marijuana plants, paraphernalia, and hashish. His car was parked in the driveway when police

executed the search warrant. Police found Petitioner’s fingerprints inside and on various drug

paraphernalia, as well as his clothes, mail, and other documents in his name. Construing this

evidence in the light most favorable to the prosecution, the evidence is constitutionally sufficient

to sustain Petitioner’s conviction on possession of drugs.

Claim two is without merit.

VI. CLAIM FIVE

Petitioner asserts that he was denied the effective assistance of appellate counsel because

his attorney failed to raise on appeal a claim that the evidence was constitutionally insufficient to

sustain his conviction on money laundering and police lacked probable cause for the search

warrant. The state appellate court also rejected these claims. “We find Appellant’s arguments

unpersuasive and thus find that no genuine issue exists as to whether Appellant was denied the

effective assistance of counsel on appeal.” (Judgment Entry, ECF No. 11, PAGEID # 256.)

“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 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, 571 U.S. 1074

(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).

Applied here, the appellate court rejected Petitioner’s claim that his money laundering

conviction was against the manifest weight of the evidence as follows:

{¶ 55} Appellant was convicted of money laundering, in violation of R.C. §

1315.55(A)(3) which states:

{¶ 56} “No person shall conduct or attempt to conduct a transaction with the

purpose to promote, manage, establish, carry on, or facilitate the promotion,

management, establishment, or carrying on of corrupt activity.”

{¶ 57} At trial, the state presented evidence that Appellant's credit card was used

to purchase fluorescent grow lights from Indoor Gardens, and that these lights were

used to grow marijuana. Appellant's fingerprints were found on the light. Evidence

was also presented that Appellant's business account was used to rent a storage unit

to keep the grow materials. Further, the materials found in the grow rooms matched

the materials found in the storage unit. These actions, taken together show that

Appellant conducted and engaged in transactions for the purpose of carrying on a

corrupt activity, that being the cultivation of marijuana and resulting possession of

marijuana.

State v. Smith, 2018 WL 3046480, at *6.

This evidence, when viewed in the light most favorable to the prosecution, is

constitutionally sufficient to sustain Petitioner’s conviction on money laundering.

The record further indicates that police obtained a search warrant after conducting a

“knock and talk” based on complaints about the odor of marijuana coming from Petitioner’s

home. (Transcript, ECF No. 11-1, PAGEID # 397-98.) When Petitioner’s roommate opened the

door, police detected a strong odor of marijuana. (PAGEID # 400-01.) Police also observed

grown marijuana plants on the south side of the residence. (PAGEID # 404-05.) “There is an

implied consent for the public, including police officers, to be able to approach an unobstructed

residence and knock on the front door.” United States v. Rounsaville, No. 1:17-cr-69-HSM-

SKL, 2018 WL 6177963, at * (E.D. Tenn. July 27, 2018). “The Sixth Circuit recognizes the use

of knock and talk consensual encounters as a legitimate investigative technique at the home of a

suspect or an individual with information about an investigation.” Id. (quoting United States v.

Chapman, No. 1:08-CR-42, 2009 WL 301906, at *3 (E.D. Tenn. Feb. 6, 2009) (internal

quotation marks omitted) (quoting United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)).

Further, “[a] police officer's detection of the odor of marijuana is sufficient to support probable

cause for a search of a residence.” United States v. Fiek, 54 F. Supp. 3d 841, 849 (W.D. Mich.

2014) (citing United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002).

The Sixth Circuit [has] explained:

This court has held that an officer's detection of the smell of marijuana in an

automobile can by itself establish probable cause for a search. United States v.

Garza, 10 F.3d 1241, 1246 (6th Cir.1993). The same may be true when marijuana

is smelled within a home. See United States v. Tobin, 923 F.2d 1506, 1512 & n. 4

(11th Cir. 1991); 2 LaFave, Search and Seizure § 3.6(b), at pp. 290–92; see also

United States v. Gonzalez, No. 94–6503, 1995 WL 626286, at *3 (6th Cir. Oct. 24,

1995) (unpublished opinion) (per curium) (holding that smell of marijuana alone

created probable cause for roadside search of a motor home).

Id. (quoting United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002)). Thus, the record reflects

sufficient probable cause to support the search warrant.

In view of the foregoing, Petitioner has failed to establish the ineffective assistance of

appellate counsel for failing to raise issues of insufficiency of the evidence and lack of probable

cause for the search warrant.

Claim five is without merit.

VII. PROCEDURAL DEFAULT

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. That means

that if the claims are not presented to the state courts in the way in which state law requires, and

the state courts therefore do not decide the claims on their merits, neither may a federal court do

so. As the 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. Second,

the court must determine whether the state courts actually enforced the state procedural sanction.

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. Maupin,

785 F.2d at 138. 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, 111 S.Ct.

2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and

procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.

1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to

“‘protect the integrity’ of the federal exhaustion rule.” Id., at 848, 526 U.S. 838,

119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728,

144 L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion

requirement, we said, would be utterly defeated if the prisoner were able to obtain

federal habeas review simply by “‘letting the time run’” so that state remedies were

no longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those

purposes would be no less frustrated were we to allow federal review to a prisoner

who had presented his claim to the state court, but in such a manner that the state

court could not, consistent with its own procedural rules, have entertained it. In

such circumstances, though the prisoner would have “concededly exhausted his

state remedies,” it could hardly be said that, as comity and federalism require, the

State had been given a “fair ‘opportunity to pass upon [his claims].’” Id., at 854,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis

added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761

(1950)).

Edwards, 529 U.S. at 452–53.

If, after considering all four factors of the Maupin test, the court concludes that a

procedural default occurred, it must not consider the procedurally defaulted claim on the merits

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the

petitioner submits new evidence showing that a constitutional violation has probably resulted in

a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.

2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).

Application

In claim four, Petitioner complains that the trial court improperly denied his request for a

jury view. Petitioner failed to raise this claim in the Ohio Supreme Court. (See Memorandum in

Support of Jurisdiction, ECF No. 11, PAGEID # 197.) Further, he may now no longer do so, by

application of Ohio’s doctrine of res judicata. See Williams v. Mitchell, 792 F.3d 606. 613 (6th

Cir. 2015) (holding that, to avoid a procedural default, petitioner must exhaust all state-court

remedies by fairly presenting claim to the state court of appeals and state supreme court)

(citations omitted); Sturm v. Darnell, No. 2:10-cv-00247, 2012 WL 220211, at *15 (S.D. Ohio

Jan. 25, 2012) (citations omitted) (petitioner procedurally defaulted his claim of ineffective

assistance by failing to raise it in the Ohio Supreme Court); Hemphill v. Hudson, No. 1:09-cv-

009, 2009 WL 1107890, at *2 (N.D. Ohio Apr. 23, 2009) (petitioner procedurally defaulted

claim of ineffective assistance of appellate counsel procedurally defaulted where he failed to

raise it in the Ohio Supreme Court).

In claim six, Petitioner asserts that the prosecutor improperly obstructed communication

between Colleena Johnson and defense counsel. In claim seven, Petitioner asserts that he was

denied the effective assistance of trial counsel because his attorney conspired to assist the

prosecutor in denying Petitioner access to a potential defense witness. (Petition, ECF No. 1,

PAGEID # 20.) Petitioner never presented a claim of prosecutorial misconduct to the state

courts. He first attempted to raise this claim of ineffective assistance of trial counsel in his

delayed motion for a new trial. The appellate court refused to address the merits of that claim,

however, as untimely and barred under Ohio’s doctrine of res judicata:

{¶31} In Appellant's First Assignment of Error, Appellant argues the trial court

erred in denying Appellant's Motion for Leave to File a Delayed Motion for New

Trial, and that Appellant's trial counsel was ineffective when he failed to subpoena

Colleena Johnson, Patrolman Swingle, and Curtis Federal Supervision Officer Joe

Moore. We disagree.

***

{¶34} The verdict in Appellant's case was rendered on May 24, 2017, but his

motion was not filed until May 3, 2019. “Because appellant's motion was filed well

outside the 120-day period, he was required to obtain leave of court to file his

motion for new trial.” State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911,

68 N.E.3d 381, ¶17. To obtain such leave, the defendant must demonstrate by clear

and convincing proof that he or she was unavoidably prevented from discerning the

evidence within the 120 days. Id. A party is “unavoidably prevented” from filing a

motion for a new trial if they had no knowledge of the ground supporting the motion

and could not have learned of the existence of that ground within the time

prescribed for filing the motion in the exercise of reasonable diligence.” Id. quoting

State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859, 865 (10th Dist.

1984).

{¶35} Appellant's proof must be more than conclusory allegations. “Clear and

convincing proof that the defendant was ‘unavoidably prevented’ from filing

‘requires more than a mere allegation that a defendant has been unavoidably

prevented from discovering the evidence he seeks to introduce as support for a new

trial.’” State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶9. The

requirement of clear and convincing evidence puts the burden on the defendant to

prove he was unavoidably prevented from discovering the evidence in a timely

manner. State v. Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-

5360, ¶11. Clear and convincing proof is that “which will produce in the mind of

the trier of facts a firm belief of conviction as to the facts sought to be established.”

Schiebel, supra at 74.

{¶36} The “unavoidably prevented” requirement in Crim.R. 33 mirrors the

“unavoidably prevented” requirement in R.C. 2953.23. Thornton at ¶47. “The

phrase ‘unavoidably prevented’ means that a defendant was both unaware of the

facts and was unable to learn of them through reasonable diligence.” Id.

{¶37} Thus, the central inquiry in Appellant's motion for leave to file a motion for

a new trial is whether he was unaware of the facts disclosed by the evidence and

whether he was unavoidably prevented from obtaining that information through

reasonable diligence.

{¶38} The trial court correctly points out Appellant did not discover any new

evidence. While the affidavit itself did not exist before trial, the evidence, that he

did not reside at 128 Hamline Avenue and that he did not own the contraband found

there at the time of trial, and existence of the witness, Ms. Johnson, was known at

the time of the trial. As such, Appellant was not unavoidably prevented from

discovering this evidence. Therefore, the trial court did not abuse its discretion in

denying Appellant's motion without conducting an evidentiary hearing.

{¶39} Under his first Assignment of Error, Appellant also argues his trial counsel

was rendered ineffective when he failed to subpoena Colleena Johnson, Patrolman

Swingle, and Federal Supervision Officer Joe Moore, and add them to the defense

witness list.

{¶40} Appellant has previously filed an appeal related to his conviction in 2017

and now points to an alleged error by citing the record of the proceedings before

the trial court that his counsel did not call Ms. Johnson, Patrolman Swingle, or

Federal Supervision Officer Joe Moore as witnesses. These facts raise the issue of

the applicability of the doctrine of res judicata.

{¶41} The doctrine of res judicata, “serves to preclude a defendant who has had his

day in court from seeking a second on that same issue.” State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶18. Therefore, “any issue that could

have been raised on direct appeal and was not is res judicata and not subject to

review in subsequent proceedings.” Id. at ¶16. As Appellant failed to raise the

ineffective assistance of counsel argument as part of his direct appeal, the argument

is barred by the doctrine of res judicata, and he cannot now raise it on appeal.

{¶42} Accordingly, we find the trial court did not abuse its discretion in denying

Appellant's Motion for Leave to File a Motion for New Trial without an evidentiary

hearing.

State v. Smith, 2020 WL 6342756, at *5-6. Petitioner has thereby committed a procedural

default. See Fetherolf v. Warden, Chillicothe Corr. Inst., No. 19-cv-001681, 2020 WL 605928,

at *9 (S.D. Ohio Feb. 7, 2020) (citing Petrone v. Bunting, No. 5:13-cv-02187, 2015 WL

9918661, at *9-10 (N.D. Ohio Dec. 10, 2015)).

Petitioner may still obtain review of these claims on the merits, if he establishes cause for

his procedural defaults, as well as actual prejudice from the alleged constitutional violations.

“[P]etitioner has the burden of showing cause and prejudice to overcome a procedural default.”

Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418

(6th Cir. 1999) (internal citation omitted)). A petitioner’s pro se status, ignorance of the law, or

ignorance of procedural requirements are insufficient bases to excuse a procedural default.

Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.), cert. denied, 543 U.S. 989 (2004). Instead, in

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

and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007),

cert. denied sub nom. Hartman v. Bobby, 554 U.S. 924 (2008). Further, attorney error in

proceedings wherein there is no right to counsel – such as in the filing of a motion for a

discretionary appeal with the Ohio Supreme Court – cannot serve as cause for a procedural

default. See McClain v. Kelly, 631 F. App’x 422, 429 (6th Cir. 2015) (citing Coleman v.

Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (The

right to counsel extends to the first appeal of right and no further).

Petitioner has failed to establish cause for his procedural defaults.

VIII. DISPOSITION

For the reasons set forth above, 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.

_s/ Elizabeth A. Preston Deavers_______

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE