Adkins v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ANTHONY B. ADKINS,

Petitioner, : Case No. 2:21-cv-01203

- vs - District Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

WARDEN,

London Correctional Institution,

:

Respondent.

ORDER DENYING STAY; REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Anthony Adkins, is before the Court

for decision on the merits. The relevant pleadings are the Petition (ECF No. 1), the State Court

Record (ECF No. 7), the Return of Writ (ECF No. 8), and Petitioner’s Reply (ECF No. 11). The

Magistrate Judge reference in the case has recently been transferred to the undersigned to help

balance the Magistrate Judge workload in this District (ECF No. 12).

Shortly after filing this case, Petitioner moved for a stay of these proceedings pending

conclusion of state court proceedings on some of the claims made (ECF No. 4). Upon examination

of the State Court Record, the Magistrate Judge finds those state court proceedings have been

terminated. Accordingly, the Motion for Stay is denied as moot.

Litigation History

On July 27, 2018, a Fayette County Grand Jury indicted Adkins on twenty-seven counts

related to trafficking in cocaine (Indictment, State Court Record, ECF No. 8, Ex. 1). A jury found

him guilty on fifteen of those counts and he was sentenced to an aggregated term of imprisonment

of twenty years (Judgment, State Court Record. ECF No. 8, Ex. 5; Amended Judgment, Ex. 6).

On direct appeal, the Ohio Twelfth District Court of Appeals affirmed the conviction and sentence.

State v. Adkins, 2020-Ohio-535 (12th Dist. Feb. 18, 2020), appellate jurisdiction declined, 158 Ohio

St. 3d 1523 (2020).

Adkins filed a petition for post-conviction relief under Ohio Revised Code § 2053.21 on

August 10, 2020 (State Court Record, ECF No. 8, Ex. 15). The Common Pleas Court denied the

petition without an evidentiary hearing (State Court Record, ECF No. 8, Exs. 16, 17). Adkins

sought to file a delayed appeal from that decision which the Twelfth District denied because

delayed appeals are not available in civil cases such as on petitions for post-conviction relief. Id.

at Ex. 22.

In September, 2020, Adkins filed an Application to Reopen his direct appeal under Ohio

R. App. P. 26(B)(State Court Record, ECF No. 8, Ex. 18) which the Twelfth District denied. Id. at

Ex. 19. The State Court Record does not show that Adkins appealed further to the Supreme Court

of Ohio.

On March 2, 2021, Adkins filed a petition for writ of habeas corpus in the Supreme Court

of Ohio. Id. at Ex. 23. The Ohio Supreme Court dismissed that petition sua sponte. Id. at Ex. 24.

On March 9, 2021, Adkins deposited his federal habeas corpus Petition in the prison

mailing system (ECF No. 1, PageID 31). He pleads the following grounds for relief:

Ground One: Appellant was denied his Fifth, Sixth and Fourteenth

Amendment Rights, pursuant to U.S. Constitution, to the effective

assistance of trial counsel, who failed to file pre-trial motions to

suppress evidence and dismiss counts 2 -7 and 10–15 of the

indictment; thereby denying him a fair trial.

Supporting Facts: On June 29, 2018, Fayette County law

enforcement followed Appellant to Dayton, Ohio, believing that he

was picking up a supply of narcotics. Fayette County Sheriff

Deputy, Havens, stopped Appellant’s vehicle after it entered Clinton

County from Dayton. Deputy Havens was originally staged in

Fayette County, and moved to intercept Appellant, when

investigators realized that he was not coming directly back to

Fayette County. The Deputy testified there was no traffic

violation(s) to substantiate a traffic stop. The officer followed

Appellant into Clinton County, Ohio, and activated cruiser lights.

Ohio Revised Code, section 2935.03, gives the Deputy authority to

detain and/or arrest outside of his jurisdiction for a felony when

certain necessary elements are present. The pursuit did not take

place without unreasonable delay, nor was the pursuit initiated in the

jurisdiction in which the Deputy was appointed. A motion to

suppress the evidence from the illegal stop would have been granted.

Trial counsel did not file a motion to suppress the cocaine seized

after the vehicle stop in Clinton County, Ohio. The Deputy testified

they witnessed Appellant throwing something out of the driver’s

side window of the vehicle.

At the close of the State’s case, the State moved and the trial court

granted, over defense objections, to amend the indictment to

conform to the evidence, as presented during the trial. Counts 25,

26, and 27 were amended by adding the words “and Clinton” after

the word “Fayette.”

Trial counsel through discovery process knew the State had only

unnotarized test results that items sold in counts 2-7 and 10-15 were

controlled substances. The evidence to support each count was not

admissible under Ohio Revised Code, 2925.51. The counts were

ultimately dismissed, after the jury heard repeated irrelevant and

prejudicial testimony. Lab test results that do not contain a notarized

signature, are inadmissible at trial. Counsel knew this prior to trial

and failed to file a pre-trial motion to dismiss those counts.

The jury saw evidence of video footage of alleged “drug buys” that

was used to support counts 2-7 and 10-15 of the indictment. Counsel

did object, but the court allowed the evidence to be presented. At the

end of the State’s case, defense counsel moved, pursuant to Crim.

R. 29, to dismiss counts 2-7 and 10-15, as the lab reports had not

been admitted into evidence, for those counts, to prove a controlled

substance. The trial court granted all motions, and those counts were

dismissed.

Ground Two: Appellant was denied his rights to due process and a

fair trial, in violation of the Fifth, Sixth and Fourteenth Amendments

to the U.S. Constitution when the trial court denied the Crim.R.29

Motion for Acquittal as the evidence presented was insufficient to

find guilt beyond a reasonable doubt.

Supporting Facts: The State of Ohio contends it was working on

an ongoing drug operation investigation of Appellant-Petitioner,

Anthony Adkins, in Fayette County, Ohio. This investigation was

initiated by the Confidential Informant, in January 2018, and

continued until June 29, 2018. The CI testified he became a CI at

the bequest [sic] of Fayette County Sheriff, Deputy Larry

McGarvey.

During this investigation it is alleged that Appellant-Petitioner, sold

drugs to the CI in numerous “controlled buys,” in Fayette County,

Ohio. On two occasions the CI drove himself to the location without

a valid driver’s license. During other alleged transactions, the CI

was escorted by drug task force officers. Also the CI was wearing a

recording device. It was discovered during trial that the recording

device had a malfunction, which resulted in a partial or no recording

of some of the alleged buys.

This CI, used by the authorities, was a known drug addict and

alcoholic. He was also paid for his work, and this pay increased once

he agreed to testify at trial. At no time in any of the recording, (sic)

does the CI identify the Appellant-Petitioner or that he went to those

locations specifically to see him. One of the task force handlers, Det.

Brown, stated he observed the CI under the influence of alcohol,

when he was making a controlled buy.

The CI’s trial testimony was the only he [sic] identified (sic)

Appellant-Petitioner was the seller of the drugs. The same CI, who

is an admitted liar and an addict, being paid to buy drugs. It was

noted, all the drugs he was paid to purchase all came back to the

handler, short on weight. All the relevant video footage fails to

conclusively show the drug transactions and who is involved.

The State presented evidence, through the video footage, and CI was

permitted to testify to, portions of the video, that represented

transactions, for the counts that were later dismissed. It was not until

the State presented the entire video footage and subpoenaed the

testimony from the CI, then did not dispute the issue to dismiss the

affected counts, nor did it move to admonish the jury. This created

grounds for a mistrial. Without the dismissed counts, and the

evidence presented to support those counts, there is no material

evidence to support guilt beyond a reasonable doubt. The CI’s

testimony was impeached when he was paid and admitted to being

an addict.

Ground Three: Appellant-Petitioner was denied his Fifth and Sixth

Amendments of the U.S. Constitution, rights to a fair trial and

effective assistance of trial counsel.

Supporting Facts: The State presented a large number of

documents in response to the demand for discovery. Trial counsel

failed to reasonably investigate possible issues regarding the validity

of the search warrant(s). On May 18, 2018, Fayette County Sheriff,

Det. Larry McGarvey filed an affidavit in support of a search

warrant. Had trial counsel conducted a minimal investigation into

the alleged facts, would have discovered the facts were false (sic)

and “stale.” Counsel would have discovered the search warrant was

issued, based upon fraud, by Det. Larry McGarvey.

The search warrant was issued for the placement of a tracking

device, for a 2005 black Lincoln, which listed Petitioner, as the

vehicle owner, and a false Ohio vehicle registration, that had not

been associated on that vehicle for over 6 months.

Further reading the documents would have uncovered that Police

Reports for some officers was missing (sic), and the ones presented

were falsified and contained information that contradicts each other,

on material facts. A simple reading of the discovery documents

would have given counsel needed facts for questioning and

impeaching the testimony of the State’s witnesses.

Trial counsel failed to investigate, which lead (sic) to failures in

seeking exculpatory evidence, that could have exonerated this

Petitioner. Specifically, the missing “dash cam” video footage, that

represent the alleged pursuit and throwing of items from the driver’s

side window, could support the defense Petitioner was alleged to

have taken the police on a chase. All marked Sheriff cruisers are

equipped with the dash mounted, video recording system, and

actuated when the officer turns on his lights.

The previously mentioned issue, the inadmissible lab reports, is also

an example of counsel’s lack of being prepared. The validity of the

alleged control substance, being investigated, could have been

litigated in a pre-trial proceeding. Trial counsel made no effort to

investigate or prepare any pre-trial challenge to the illegal stop and

arrest, in Clinton County, outside the Deputy’s jurisdiction. There

was no traffic violation, or proof of any felony violation during their

surveillance.

Ground Four: Appellant-Petitioner was denied his Fifth and

Fourteenth Amendments to the U.S. Constitution, rights to a fair

trial and due process, by the (sic) prosecutorial misconduct.

Supporting Facts: The misconduct by the prosecution and asst.

prosecuting attorney begins with several acts of fraud.

Several members of the Fayette County Sheriff’s office lied and

submitted false Police Reports regarding their alleged contact with

the Petitioner. The clear act of fraud is the intentional statement

alleging all criminal acts took place within Fayette County. The

Police Reports state that Petitioner’s possession of cocaine, on June

29, 2018, was in Jasper Township, Fayette County, Ohio, not in

Clinton County, Ohio. This info was presented as fact to the Fayette

County grand jury to secure an indictment.

Other acts were falsified by various members of the prosecution

team, include (sic) the suppression of “dash cam” video footage.

Without this evidence, the State witnesses (sic) could testify to

anything, unchecked, but collabarated (sic) by the testimony of other

law enforcement. The State presented testimony that Petitioner’s

alleged criminal conduct in Dayton, Ohio, was observed through

airplane surveillance, also equipped with recording system. Any

evidence of this air surveillance is material and exculpatory, and

should have been disclosed in discovery.

This prosecutorial misconduct also includes the intentional

presentation of inadmissible evidence in the video footage of the

alleged controlled buys. At no time in any video footage is the

Petitioner identified as the seller of drugs. Further, the testimony of

the CI, regarding these transactions, contradict (sic) the testimony

of the State’s law enforcement witnesses. The Prosecution team

presented affidavits to Judicial officers, which contained false

information.

(Petition, ECF No. 1, PageID 10-27).

Analysis

Respondent asserts that the only claims reviewable on the merits in this proceeding are

those fairly presented to the Twelfth District on direct appeal and that all other claims are

procedurally defaulted (Return, ECF No. 9, PageID 705). Petitioner responds that ordinary

processes in the prison were disrupted by delays caused by the COVID-19 pandemic (Reply, ECF

No. 11).

Factual Background

In the course of deciding Adkins’ direct appeal, the Twelfth District Court of Appeals made

the following findings of fact:

{¶ 2} In July 2018, the Fayette County Grand Jury indicted appellant

on 27 felony drug-related offenses. These charges arose out of an

investigation from January to June 2018 concerning crack cocaine

sales appellant made to a confidential informant. The investigation

culminated in a traffic stop and arrest by members of the Fayette

County Sheriff's Office in Clinton County, Ohio. On the day of the

traffic stop, the confidential informant had made a large purchase of

crack cocaine from appellant. Undercover officers then tracked

appellant as he travelled from his home to a suspected drug supplier

in Dayton, Ohio. As part of this operation, marked patrol units had

been staged to intercept appellant as he returned to Fayette County.

However, en route back, appellant changed course and headed into

Clinton County. Believing that appellant was heading to a friend's

house, the lead officer ordered the marked patrol units to

immediately effect a traffic stop. When deputies sought to stop

appellant a car chase ensued. Pursuing deputies apprehended

appellant after he tried to escape off-road. At no point during this

pursuit was appellant in Fayette County.

{¶ 3} Appellant entered a not guilty plea and the case proceeded to

a jury trial in February 2019. At trial, the state called nine witnesses,

including the confidential informant, the various law enforcement

officers involved, and an Ohio Bureau of Criminal Investigation

(“BCI”) forensic scientist. In addition to the witnesses, the state

presented BCI laboratory reports to identify the substances as

containing cocaine and video recordings of the drug buys.

{¶ 4} At the close of the state's case-in-chief, appellant objected to

the admission of several laboratory reports because the documents

lacked the notarized statement required by statute. The trial court

sustained the objection. As a result, the trial court granted appellant's

Crim.R. 29 motion for the 12 offenses (Counts 2-7 and 10-15)

involving the inadmissible laboratory reports. The jury found

appellant guilty on the remaining 15 counts, alleging engaging in a

pattern of corrupt activity, possession of cocaine, and trafficking in

cocaine.

State v. Adkins, 2020-Ohio-535 (12th Dist. Feb. 178, 2020).

Adkins takes issue with these findings and claims instead:

The so-called investigation includes crack cocaine sales by a

confidential informant ("CI"), who was an addict. Further review of

the investigation shows that the "CI" only identified Petitioner

during trial. At no time on video or recording does he acknowledge

Mr. Adkins as the person he was dealing with. On the day of the

traffic stop and arrest, Mr. Adkins was followed to his sister's home

in Dayton, Ohio. At no time did any of the law enforcement officers

verify who lived at the Dayton address. Nothing presented at trial

was ever authenticated. Petitioner was unlawfully stopped outside

the territorial jurisdiction of the Fayette County Sheriff. The record

of events has been altered to fit the Prosecution's theory. The Trial

Court permitted the amendment of the indictment to include Clinton

County, Ohio. The Sheriff did attempt to stop the vehicle in Clinton

County, however the testimony gave mistaken impression to the

Jury to believe he was pursued from Fayette County into Clinton

County.

The fact is, Defense Counsel did object prior to the end of the State's

case to the use of the Lab Reports. The Objection was Overruled by

the Court, and later the Counts related to the inadmissible lab reports

were dismissed. Petitioner was prejudiced by the fact that video

footage of those alleged transactions were already viewed by the

Jury. Without seeing that video evidence, the State lacked sufficient

evidence to convict on those counts. The Jury was permitted to view

evidence that the trial determined was inadmissible.

(Reply, ECF No. 741-42).

Findings of fact made by the state courts are presumed to be correct in later habeas corpus

proceedings unless the petitioner proves they are rebutted by clear and convincing evidence. 28

U.S.C. § 2254(e). The evidence on which the petitioner relies for rebuttal must be already present

in the state court record. Cullen v. Pinholster, 563 U.S. 170 (2011). Here the Petitioner has given

the Court no record references to show that his version of the facts clearly rebuts the findings of

the Twelfth District, despite the fact that Petitioner has been furnished with the same copy of the

trial transcript that has been furnished to the Court. For example, where in the record is it proved

that the confidential informant was an alcoholic and an addict1?

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Adkins claims he received ineffective assistance of trial

counsel when his trial attorney (1) failed to file a motion to suppress and (2) failed to move to

dismiss Counts 2-7 and 10-15 on the basis that they were supported by inadmissible laboratory

reports which had not been notarized.

Adkins presented these two claims as his first two assignments of error on direct appeal.

In deciding them the Twelfth District recited the generally applicable Sixth Amendment standard

from Strickland v. Washington, 466 U.S. 668 (1984). As to the first assignment of error, it found

that the underlying claim that evidence had been unlawfully seized by deputies from Fayette

County in Clinton County would not have been successful if raised by motion to suppress.

1 Presumably Petitioner intends to assert the CI was addicted to some other substance of abuse in addition to alcohol.

{¶ 13} Regarding the first assignment, the “failure to file a motion

to suppress constitutes ineffective assistance of counsel only when

the record establishes that the motion would have been successful if

made.” State v. Brown, 12th Dist. Warren No. CA2002-03-026,

2002-Ohio-5455, ¶ 11. Relevant for our purposes, R.C.

2935.03(A)(1) provides that a

sheriff [or] deputy sheriff * * * shall arrest and detain, until

a warrant can be obtained, a person found violating, within

the limits of the political subdivision, * * * in which the

peace officer is appointed, employed, or elected, a law of

this state, an ordinance of a municipal corporation, or a

resolution of a township.

{¶ 14} It is with the limited “hot pursuit” exception provided in R.C.

2935.03(D) that these peace officers may conduct a warrantless

arrest and detention of an individual outside their territorial

jurisdiction. Appellant suggests that the “hot pursuit” exception is

inapplicable because the Fayette County deputies' pursuit was not

initiated within Fayette County. Nevertheless, R.C. 2935.03 does

not provide a remedy for instances when peace officers violate the

statute by effecting a warrantless arrest outside their territorial

jurisdiction and the Ohio Supreme Court has refused to adopt its

own remedy for a violation of this statute. State v. Jones, 121 Ohio

St.3d 103, 2009-Ohio-316, ¶ 21. Therefore, appellant's reliance on

R.C. 2935.03 is misplaced. A violation of R.C. 2935.03 does not

require the exclusion of evidence. Id.; State v. Weideman, 94 Ohio

St.3d 501, 2002-Ohio-1484, paragraph one of the syllabus; State v.

Dallman, 12th Dist. Clermont Nos. CA2017-11-056 and CA2017-

11-057, 2018-Ohio-2670, ¶ 32. Any motion to suppress based on

this statutory violation alone would not have been successful.

State v. Adkins, supra.

The question of whether the seizures made by these Fayette County deputies were required

to be suppressed for the reason Adkins argues – because they were acting outside Fayette County

– is a question of Ohio law. The Twelfth District decided that question adversely to Adkins’

position and its decision on this point of Ohio law is binding on this Court. Bradshaw v. Richey,

546 U.S. 74 (2005). It cannot be ineffective assistance of trial counsel to fail to file a motion to

suppress which would have been unsuccessful. Thus the first branch of Adkins’ First Ground for

Relief is without merit.

Regarding the second claim of ineffective assistance of trial counsel, the Twelfth District’s

decision is also dispositive. Adkins is correct that, as a matter of Ohio law, the lab reports in

question could not be admitted in evidence without a notarized signature, as the Twelfth District

confirmed. But as it also noted, a motion to dismiss based on the absence of the notarizations

would almost certainly have been unsuccessful because the prosecutor could easily have obtained

the notarizations. Even if it had been successful, nothing would have prevented the prosecutor

from obtaining new notarized statements and reindicting. By withholding the objection until it

was too late for the prosecutor to do either of those things, defense counsel achieved a final

dismissal of the relevant charges. Jeopardy attaches in a jury trial when the jury is sworn. Martinez

v. Illinois, 134 S. Ct. 2070 (2014); Crist v. Bretz, 437 U.S. 28 (1978). Therefore no reindictment

was possible.

Adkins claims that dismissal before trial would have kept the jury from learning about the

conduct underlying the dismissed charges. Not so. Because these other acts were part of a course

of criminal conduct, testimony about them could have been introduced under Ohio R. Evid. 404

even if ultimately there could not have been a conviction because of the absence of the notarization.

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 Twelfth District’s

decision on Adkins first two assignments of error was a reasonable application of Strickland. On

that basis, Adkins’ First Ground for Relief should be dismissed.

Ground Two: Insufficient Evidence

In his Second Ground for Relief, Adkins claims the evidence on which his conviction is

based was insufficient to prove guilt beyond a reasonable doubt. Adkins raised this claim as his

Third Assignment of Error on direct appeal which the Twelfth District decided together with his

Fourth Assignment, a manifest weight of the evidence claim. The appellate court decided those

claims as follows:

{¶ 25} In his third and fourth assignments of error, appellant argues

that there was insufficient evidence to find him guilty of engaging

in a pattern of corrupt activity and the multiple drug offenses,

therefore the trial court erred in denying his Crim.R. 29 motion for

acquittal. Appellant further argues that the guilty verdicts were

against the manifest weight of the evidence. In support of these

claims, appellant argues that it was improper for the jury to believe

the confidential informant's testimony.

{¶ 26} The standard of review for a denial of a Crim.R. 29 motion

is the same standard used for reviewing a sufficiency of the evidence

challenge. State v. Robinson, 12th Dist. Butler No. CA2015-01-013,

2015-Ohio-4533, ¶ 37. On a sufficiency challenge, the reviewing

court must determine whether the prosecution has met its burden of

production. State v. Boles, 12th Dist. Brown No. CA2012-06-012,

2013-Ohio-5202, ¶ 34. Therefore, the reviewing court must examine

the evidence to determine whether any rational trier of fact, viewing

the evidence in a light most favorable to the prosecution, could have

found the essential elements of the crime proven beyond a

reasonable doubt. State v. Smith, 12th Dist. Warren Nos. CA2012-

02-017 and CA2012-02-018, 2012-Ohio-4644, ¶ 25.

{¶ 27} On the other hand, a manifest weight of the evidence

challenge requires the reviewing court to examine the “inclination

of the greater amount of credible evidence, offered at a trial, to

support one side of the issue rather than the other.” State v. Barnett,

12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In

conducting this examination, a reviewing court must look at the

entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether in

resolving the conflicts in the evidence, the trier of fact 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.

Sizemore, 12th Dist. Warren No. CA2019-01-006, 2019-Ohio-4400,

¶ 21. While a manifest weight of the evidence review requires this

court to evaluate credibility, the determination of witness credibility

is primarily for the trier of fact to decide. State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. A reviewing court

will overturn a conviction based on a manifest weight challenge only

in the exceptional instance, to correct a manifest miscarriage of

justice, where the evidence weighs heavily in favor of acquittal.

State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-

2298, ¶ 34. The determination that a conviction is supported by the

manifest weight of the evidence will be dispositive of the sufficiency

of the evidence challenge. State v. Jones, 12th Dist. Butler No.

CA2012-03-049, 2013-Ohio-150, ¶ 19.

{¶ 28} The jury found appellant guilty of both trafficking in cocaine

and possession of cocaine. Appellant was charged with two different

types of trafficking offenses. For six of the trafficking offenses, the

prosecution had to prove that appellant knowingly sold or offered to

sell a controlled substance or a controlled substance analog. R.C.

2925.03(A)(1). For the remaining trafficking offense, the

prosecution had to prove that appellant knowingly prepared for

shipment, shipped, transported, delivered, prepared for distribution,

or distributed a controlled substance or a controlled substance

analog, when the offender knew or had reasonable cause to believe

that the controlled substance or a controlled substance analog was

intended for sale or resale by the offender or another person. R.C.

2925.03(A)(2). For each of the possession offenses, the prosecution

had to prove that appellant knowingly obtained, possessed, or used

a controlled substance or a controlled substance analog. R.C.

2925.11(A). In order for these offenses to constitute more serious

felonies the prosecution had to prove a certain mass, i.e. to constitute

a fourth-degree felony the cocaine had to be at least 5 grams but less

than 10 grams and to constitute a first-degree felony the substance

containing cocaine had to be at least 27 grams but less than 100

grams. R.C. 2925.03(C)(4)(c) and (f).4 Finally, appellant was

charged with a major drug offender specification on count 26,

therefore the prosecution had to prove that the transaction involved

a substance containing cocaine of more than 100 grams. R.C.

2925.03(C)(4)(g).

¶ 29} After review of the record, we find that the guilty verdicts

were not against the manifest weight of the evidence. The jury heard

the confidential informant testify that on each occasion he met

appellant at either his home or a nearby hotel and exchanged money

for crack cocaine. The informant testified that he only received the

crack cocaine from appellant in these transactions. In addition to the

confidential informant, the jury heard from three detectives involved

in the investigation. These detectives testified that on each occasion

the confidential informant was physically searched by one of the

detectives and then driven by a detective to the sale location. During

the operation, the informant was under law enforcement supervision

except for the short time he would leave the vehicle to conduct the

purchases. Upon coming back to the vehicle, all the witnesses

involved in the operation testified that the informant would give the

crack cocaine to the detective escorting him. These detectives,

together with the detective assigned to evidence room supervision,

testified as to the chain of custody for the substances received from

these transactions. Moreover, the prosecution presented video

recordings taken from a device the informant carried into several of

his “buys.” In these videos, appellant can be identified as the person

meeting with the informant. Finally, the state presented laboratory

reports from the BCI identifying the purchased substances as

containing cocaine and their various weights. Altogether, this

evidence demonstrated that appellant knowingly possessed and sold

crack cocaine to the informant in six transactions, two of which

involved substances with a mass of 5.5 grams and 35.44 grams.

Appellant's convictions are not against the manifest weight of the

evidence because the jury believed the testimony of the

prosecution's witnesses. State v. Burrell, 12th Dist. Fayette No.

CA2016-04-005, 2016-Ohio-8454, ¶ 22.

{¶ 30} For the R.C. 2925.03(A)(2) trafficking offense and major

drug offender specification, the prosecution presented testimony

from the deputies involved in the traffic stop. One deputy testified

that during the pursuit, he saw appellant dumping objects out of his

window. In searching the field, deputies discovered two bags of

suspected cocaine on the ground near the tire tracks created by

appellant's vehicle. The prosecution presented photographs taken of

the two bags at the scene. To identify the substances, the prosecution

called the BCI forensic scientist to testify, in addition to submitting

her laboratory report. The scientist testified that through her testing

she determined the substances contained cocaine and the substance

from one bag weighed around 53.78 grams and the other weighed

around 52.93 grams. Therefore, this evidence again demonstrated

that appellant knowingly trafficked cocaine in an amount of more

than 100 grams.

{¶ 31} Finally, to find appellant guilty of engaging in a pattern of

corrupt activity, the prosecution had to prove that he conducted or

participated in, directly or indirectly, the affairs of an enterprise

through a pattern of corrupt activity, or the collection of an unlawful

debt, as part of his employment or association with that enterprise.

R.C. 2923.32(A)(1). An enterprise includes an individual. R.C.

2923.31(C). Corrupt activity is defined, inter alia, as engaging in

conduct constituting a violation of R.C. 2925.03 and the proceeds

from one of the violations or a combination of the violations exceeds

$1,000. R.C. 2923.31(I)(2)(c). A pattern of corrupt activity means

two or more instances of corrupt activity, whether or not there is a

prior conviction, related to the affairs of the same enterprise. R.C.

2923.31(E). Here, the jury heard evidence as to the various amounts

of money the confidential informant paid for the separate

transactions of crack cocaine. In his final transaction alone, the

informant paid around $1,800 for crack cocaine, altogether the

informant paid over $2,000 for the combination of transactions.

Moreover, a detective testified that appellant admitted during an

interview to paying his supplier $4,400 on the day of his arrest.

Therefore, based on the testimony of the amounts paid and the guilty

verdicts for the multiple possession and trafficking offenses, it was

not a manifest injustice for the jury to find appellant guilty of

engaging in a pattern of corrupt activity.

{¶ 32} Accordingly, the jury did not clearly lose its way and create

a manifest miscarriage of justice. Given our determination that

appellant's convictions were supported by the manifest weight of the

evidence, we conclude that the there was sufficient evidence to

support the jury's findings of guilt. State v. Bates, 12th Dist. Butler

No. CA2009-06-174, 2010-Ohio-1723, ¶ 11. Appellant's third and

fourth assignments of error are overruled.

State v. Adkins, supra.

As noted above, when a state court decides a constitutional question later presented in

habeas corpus, the habeas court must defer to the state court unless the state court’s decision is an

unreasonable application of clearly established Supreme Court precedent. Williams v. Taylor,

supra. A claim that a verdict is supported by insufficient evidence states a claim for habeas relief

under the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307 (1979). A weight of the

evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir.

1986).

However, a state court finding that the verdict is not against the manifest weight of the

evidence implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed. Appx.

761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-1185,

2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden, No.

1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.). The Twelfth

District recognized this in ¶ 32 of its decision.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

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.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012).

The Magistrate Judge concludes the Twelfth District’s decision on the weight of the

evidence is entitled to deference because it is not an unreasonable application of the Jackson

standard. Adkins’ Petition emphasizes the many ways in which the credibility of the confidential

informant was undermined on cross-examination, but the credibility of witnesses is for the jury to

decide and they clearly decided to believe him.

Therefore Adkins’ Second Ground for Relief should be dismissed on the merits.

Ground Three: Denial of a Fair Trial and Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Adkins claims he received ineffective assistance of trial

counsel because his attorney did not investigate the facts underlying Deputy McGarvey’s search

warrant affidavit and the missing dash cam footage which could have been exculpatory.

Adkins first presented this claim to the Ohio courts in his Petition for Post-Conviction

Relief under Ohio Revised Code § 2953.21 (State Court Record, ECF No. 8, Ex. 15, PageID 190-

92). That was appropriate because it depends on facts outside the appellate record. Ohio has two

mutually exclusive remedies for ineffective assistance of trial counsel. If the claim depends on

evidence in the appellate record and can therefore be decided on direct appeal, the claim must be

raised there or be barred by res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). On the other

hand, if the claim depends on evidence dehors (outside) the appellate record, it must be presented

in a post-conviction petition.

Defendant’s Petition for Post-Conviction Relief contains many assertions of fact outside

the appellate record. It also refers to an affidavit from Petitioner which is not in fact attached in

the State Court Record. Assuming there was such an affidavit, it would plainly contain information

outside the appellate record, presumably relating to what Adkins knew of his attorney’s

investigation.

Respondent asserts the claims made in Ground Three are barred by Petitioner’s procedural

default in failing to timely appeal from the dismissal of the Petition by the Common Pleas Court.

Petitioner responds

Petitioner's efforts to meet certain deadlines were hindered by the

prison lock-down and the national pandemic, Covid-19. He made

several 'good faith' attempts to file every document timely.

Petitioner, was prejudiced by this extraordinary situation, that

brought this country to a halt. There are still sectors of the economy

that have not and may not come back. This court will see that

Petitioner's filings were hand written, as the prison law library was

unavailable for the first 8 months of the pandemic. Upon a slow and

limited access to material, petitioner still managed to submit most

of his filing timely. There is clear "cause' and "prejudice" here,

petitioner demonstrates that he was diligent in his efforts to meet all

scheduled filings. Petitioner can further show that external elements

dealing with Outgoing Inmate Mail during that time also prevented

timely filings. Ohio DRC requires that to apply postage to outgoing

mail, inmates must submit Check-Out slip for payment of postage

to the prison Cashier's office. During the heart of this pandemic,

petitioner waited sometimes 60+ days to have his mail processed.

(Reply, ECF No. 11, PageID 745-46).

The State Court Record shows Judge Breathard entered judgment on the post-conviction

petition on February 2, 2021, and ordered the Clerk to serve a copy on Adkins (Amended

Judgment, State Court Record, ECF No. 8, Ex. 17, PageID 203-04). Adkins filed his Motion for

Delayed Appeal on March 11, 2021. Id. at Ex. 21. That Motion was filed simultaneously with the

Notice of Appeal. Id. at Ex. 20. Those simple facts seriously undermine his claim that the

pandemic prevented his timely filing of his Notice of Appeal. The content of a notice of appeal is

very simple: “I appeal from X judgment.” Adkins’ own Notice of Appeal here was prepared by

his filling in a pre-printed form and changing the court to which the appeal was taken from the

Second District to the Twelfth District. Id. No legal research or printing was required. Adkins’

Motion for Delayed Appeal is handwritten, but did not require any legal research. Nor was it

rejected because it was somehow illegible, but because Ohio appellate courts do not have

jurisdiction (authority/power) to grant a delayed appeal.

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] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims

that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),

citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).

To the extent Adkins is claiming that the COVID-19 pandemic is excusing cause for his

not timely appealing the denial of his post-conviction petition, his claim is not persuasive. For the

reasons given above, preparation of a notice of appeal is a simple matter: one sheet of paper and

no legal research. Adkins claims he made several good faith efforts to file papers in a timely

fashion, but he offers no detail about what efforts he made to file the Notice of Appeal on time.

Nor does he offer any corroboration of his supposed efforts or of how the pandemic affected his

particular prison at the particular time in question.2

Time limits on appeal are an adequate and independent state law basis for denying relief.

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(citations omitted). Lack of counsel at that

stage, lack of a trial transcript, unfamiliarity with the English language, and short time for legal

research in prison do not establish cause to excuse this default. Bonilla, citing Murray v. Carrier,

2 The Court notes that Adkins has complained loudly about the lack of corroboration of the confidential informant’s

testimony. He thereby at least implicitly confirms that uncorroborated testimony is not always completely persuasive.

477 U.S. 478, 494-95 (1986).

On this basis, the Magistrate Judge concludes Adkins’ Third Ground for Relief is barred

by his procedural default in failing to timely appeal from denial of his post-conviction petition.

Ground Four: Prosecutorial Misconduct

In his Fourth Ground for Relief, Adkins claims he was denied due process and a fair trial

by prosecutorial misconduct consisting of presenting false police reports to the grand jury,

suppressing the dashboard camera footage, not providing the results of aerial surveillance (which

is alleged to be exculpatory), presentation of inadmissible video footage of alleged controlled buys,

and presenting false affidavits to judges to obtain search warrants.

Respondent argues these claims are procedurally defaulted because they could have been

adjudicated on direct appeal but were not presented to the Twelfth District in that proceeding

(Return, ECF No. 9, PageID 735, et seq). Petitioner offers no response on this point but argues

briefly the substance of his claim that failure to disclose the dash cam footage was a violation of

Brady v. Maryland, 373 U.S. 83 (1963).

Adkins appears to have raised some of these claims for the first time in his Application to

Reopen the Appeal under Ohio R. App. P. 26(B). For example, the claimed Brady violation about

the dash cam footage and the allegation of falsified police reports appear in that filing (State Court

Record, ECF No. 8, PageID 210). Raising these claims as ineffective assistance of appellate

counsel claims, which is the sole purpose of App. R. 26(B), does not preserve the underlying

claims. The question for this Court is whether the Twelfth District’s decision of the 26(B)

Application was a reasonable application of Strickland.

The governing standard for ineffective assistance of counsel is found in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

The Strickland standard applies to evaluating claims of ineffective assistance of appellate

counsel. The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of

appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise.

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008). 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. If a reasonable probability exists that the defendant would have

prevailed had the claim been raised on appeal, the court still must consider whether the claim's

merit was so compelling that the failure to raise it amounted to ineffective assistance of appellate

counsel. 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 (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). Effective appellate advocacy is rarely characterized by presenting every non-frivolous

argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Williams v.

Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005); see Smith v. Murray,

477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the

presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876

F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).

In denying Adkins’ 26(B) application, the Twelfth District held

counsel's failure to argue those issues appellant presents in his

application does not raise a genuine issue as to whether counsel was

ineffective since counsel is not required to present every imaginable

issue on direct appeal. Counsel reasonably did not raise the issues

appellant now seeks to raise because on appeal, counsel must

"winnow out weaker arguments" and focus on key issues and

arguments. State v. Monford, 10th Dist. Franklin No. 09AP-274,

2012-Ohio-5247, 1119.

(Entry Denying Application to Reopen Appeal, State Court Record, ECF No. 8, Ex. 19, PageID

220). The Twelfth District specifically cited to Strickland and Jones v. Barnes as controlling

precedent. Id.

The Magistrate Judge concludes that the Twelfth District’s decision on the 26(B)

Application is a completely reasonable application of Strickland and is therefore entitled to

deference under 28 U.S.C. § 2254(d)(1). Because Adkins has not shown it was ineffective

assistance of appellate counsel to fail to present the omitted assignments of error which he now

pleads under Ground Four, he cannot rely on ineffective assistance of appellate counsel as excusing

cause for not presenting these claims on direct appeal. Edwards v. Carpenter, 529 U.S. 446 (2000).

Moreover, there is no indication in the State Court Record that Adkins ever appealed to the Ohio

Supreme Court from denial of his 26(B) Application which makes any claim of ineffective

assistance of appellate counsel procedurally defaulted. On these two bases, the Fourth Ground for

Relief should be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with

this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and

that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should

not be permitted to proceed in forma pauperis.

September 24, 2021.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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.