Carlton v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

DAMIAN CARLTON,

Petitioner, : Case No. 1:20-cv-1030

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

WARDEN

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Damian Carlton under 28 U.S.C. §

2254, is before the Court for decision on the merits. Assigned to the case under 28 U.S.C. §

636(b)(1)(B), the Magistrate Judge is obliged to provide the District Court with proposed findings

of fact and a recommendation for disposition of the case. That recommendation is subject to de

novo review by the District Judge upon substantial objection by any party.

Litigation History

On September 11, 2014, the Hamilton County grand jury indicted Carlton for aggravated

burglary with two firearm specifications in violation of Ohio Rev. Code § 2911.11(A)(2) (count 1) and

two counts of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1) and (A)(2) (counts 2

& 3). (Indictment, State Court Record, ECF No. 31, Ex. 11). A trial jury convicted Carlton of the

substantive offenses, but acquitted him on the firearm specifications. The trial judge merged the two

felonious assault convictions under Ohio Revised Code § 2941.25, then sentenced Carlton to eleven

years for aggravated burglary and eight years for felonious assault, with the terms to be served

consecutively (Sentencing Entry, State Court Record, ECF No. 31, Ex. 4).

Represented by new counsel, Carlton appealed to the First District Court of Appeals, asserting

(1) there was insufficient evidence to support the verdict or that the verdict was against the manifest

weight of the evidence and (2) the verdicts were inconsistent in that the jury convicted him of

aggravated burglary but acquitted on the firearm specifications (Appellant’s Brief, State Court Record,

ECF No. 31, Ex. 5). The First District decided the First Assignment of Error as follows:

In his first assignment of error, Carlton argues that his convictions

for felonious assault and aggravated burglary were not supported by

sufficient evidence and were against the manifest weight of the

evidence, and that the trial court erred in denying his motion for an

acquittal. The evidence presented at trial established that Carlton

had met Kristin Ivory on a chat line and arranged to meet her in

person. The two met for the first time at Ivory's apartment on July

21, 2014. While Carlton was there, Ivory showed him approximately

$500 that she had been saving to purchase a new automobile.

Carlton left Ivory's apartment at midnight, but he returned around

7:00 a.m. the following morning, asking to use her telephone to call

for a ride. When Ivory opened the door for him, Carlton pulled out

a black handgun and entered with another assailant. Carlton

demanded that Ivory give him her money. He repeatedly struck her

in the face with his handgun and choked her while his accomplice

searched her apartment. Carlton left with Ivory's cellular telephone

and her watch. Ivory suffered numerous injuries, including the

permanent loss of vision in her left eye.

Following our review of the record, we find that, when viewing the

evidence in the light most favorable to the prosecution, the jury

could reasonably have found the elements of felonious assault under

R.C. 2903.11(A)(1) and aggravated burglary under R.C.

2911.11(A)(2) proven beyond a reasonable doubt. See State v.

1 To facilitate reference, the Court has ordered the original State Court Record from Carlton’s prior habeas corpus

case, 1:18-cv-387, re-docketed in this case where it appears at ECF No. 31.

Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717

(1st Dist.1983).

State v. Carlton, 2016 Ohio App. LEXIS 29842 (1st Dist. Jun. 22, 2016), appellate jurisdiction

declined, 149 Ohio St. 3d 1409 (2017)3.

On September 20, 2016, Carlton applied under Ohio R. App. P. 26(B) to reopen his direct

appeal, claiming he received ineffective assistance of appellate counsel when his appellate attorney

omitted the following assignments of error:

1. The trial court erred by not allowing into evidence statements

made by the complaining witness contained in the affidavit for

search warrant this violated U.S.C. A. 14th Amend. due process and

equal protection.

2. The appellant was denied his Sixth Amend. Right to counsel on

his appeal as of right, which appellant counsel failed to impeach

witness with admissible impeaching evidence.

3. The appellant was denied his Sixth Amend. Right to effective

assistance of counsel failed to impeach the correct witness.

4. The trial court erred by not disclosing exculpatory evidence of

impeachment nature, pursuant to Ohio R. Crim.R. 16(B)(1)(F), to

violation U.S.C.A. 14th Amend. Due process and equal protection

of the law.

(Application, State Court Record, ECF No. 31, Ex. 8). The First District denied the Application,

holding:

In his first and third proposed assignments of error, Carlton contends

that the trial court erred in excluding from evidence statements in

the victim's affidavit in support of a search warrant that were

inconsistent with her trial testimony, and that his trial counsel was

ineffective in failing use those statements to impeach the victim.

In his fourth proposed assignment of error, Carlton alleges

prosecutorial misconduct in failing to disclose to the defense the

complete incident report compiled by the police. Because these

2 The LEXIS citation is given because the judgment entry was not officially published.

3 The Return of Writ asserts Carlton did not appeal to the Supreme Court of Ohio (ECF No. 28, PageID 1369).

However, the cited Ohio Supreme Court decision shows it was entered on appeal from the cited First District decision.

challenges depend for their resolution upon evidence outside the

trial record, the appropriate vehicle for advancing them is a

postconviction petition. See State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph nine of the syllabus. Therefore,

appellate counsel was not ineffective in failing to raise these

challenges in Carlton's direct appeal.

In his fourth proposed assignment of error, Carlton further alleges

prosecutorial misconduct in failing to include on the state's witness

list two witnesses who testified during the state's case. And in his

second proposed assignment of error, Carlton contends that he was

denied the effective assistance of counsel by counsel's failure to

impeach the victim with statements in her medical records that were

inconsistent with her trial testimony. But Carlton cannot be said to

have been denied his right to a fair trial, when the record makes

apparent beyond any reasonable doubt that, in the absence of the

alleged prosecutorial misconduct, the jury still would have found

Carlton guilty, See State v. Smith, 14 Ohio St.3d 13, 14-15, 470

N.E.2d 883 (1984). Nor can he be said to have been denied his right

to the effective assistance of trial counsel, when the record does not

demonstrate a reasonable probability that: but for the alleged

deficiency in trial counsel's performance, the result of his trial would

have been different. See Strickland at 694; Bradley at paragraph

three of the syllabus.

(Entry Denying Application, State v. Carlton, State Court Record, ECF No. 31, Ex. 11). On May

17, 2017, the Supreme Court of Ohio declined to exercise appellate jurisdiction. Id. at Ex. 14.

Carlton filed his first federal habeas corpus petition May 31, 2018, which he then voluntarily

dismissed without prejudice May 7, 2019. Case No. 1:18-cv-387.

On August 13, 2018, Carlton filed a motion for leave to file a delayed motion for new trial

(State Court Record, ECF No. 27, Ex. 15). The trial court denied the motion as being without

merit (Id. at Ex. 18) and Carlton did not appeal. He filed another motion for new trial January 8,

2019, claiming to be actually innocent, which the trial court likewise denied. Id. at Exs. 19, 20.

On November 30, 2018, Carlton filed a petition for post-conviction relief claiming actual

innocence, ineffective assistance of trial counsel, and prosecutorial misconduct (Petition, State

Court Record, ECF No. 27, Ex. 21, Amended Petition Ex. 22). The trial court denied both on

February 20, 2019. Id. at Ex. 23. The State Court Record does not reflect any appeal.

On August 25, 2019, Carlton again sought leave to file a delayed motion for new trial (State

Court Record, ECF No. 27, Ex. 36). The trial court denied the Motion (Id. at Ex. 37) and Carlton

appealed. On September 30, 2020, the First District Court of Appeals affirmed denial of the

motion for new trial. In doing so, it held:

Carlton supported his motion with "exhibits" consisting of pages

one and six of the victim's medical records. He asserted that his trial

counsel had been ineffective in failing to use those records to

challenge the victim's competency to testify and to impeach her trial

testimony. Those "exhibits" indicate that they were "generated" four

months before trial. And the record shows that they were provided

by the state in discovery and admitted into evidence at trial, and that

the state and defense counsel examined the victim concerning them.

The remaining challenges presented in the motion depended for

their resolution upon "exhibits" that were not filed with the motion.

Of the missing "exhibits," those that purportedly show the victim's

criminal record were, according to the state's response to the

defense's discovery demand, to be provided if the matter proceeded

to trial, which it did. Those records were not made a part of the

record before us, either at trial or as offered in support of Carlton's

multiple postconviction petitions and motions. The rest of the

missing "exhibits" were provided in discovery or made a part of the

record before us when offered at trial or in support of prior

postconviction petitions and motions. The evidence demonstrably

provided in discovery or offered at trial cannot, by definition, be

"newly discovered." And Carlton failed to provide with his Crim.R.

33(B) motion for leave an affidavit attesting to when or how he had

secured any of the evidence offered as "newly discovered."

(Judgment Entry, State v. Carlton, State Court Record, ECF No. 27, Ex. 43, PageID 575-76). The

State Court Record does not show that Carlton ever appealed to the Supreme Court of Ohio from

this decision. The State Court Record contains a substantial number of additional post-conviction

filings by Carlton which do not appear to be relevant to deciding this habeas corpus case.

Ordered by the Court to file an amended petition which complies with Rule 2 of the Rules

Governing § 2254 proceedings, Carlton pled the following single ground for relief:

Ground One: Petitioner was denied trial counsel a violation of

Article 6 of the United States Constitution and the 14th amendment

of the United States Constitution. Opportunity to be heard.

Supporting Facts: Petitioner was denied trial counsel when trial

counsel rendered ineffective assistance at petitioner’s jury trial by

failing to obtain favorable witnesses, and present favorable evidence

on February 23 through the 26, 2015 at Hamilton County Court of

Common Pleas violating petitioner’s right to due process of a trial.

Opportunity to be heard.

(Amended Petition, ECF No. 16, Page ID 2).

The Respondent filed a Return of Writ (ECF No. 28) which asserts the Petition is barred

by the statute of limitations (PageID 1379-91), is procedurally defaulted (PageID 1396-1401), and

is without merit (PageID 1391-96). Petitioner has filed a timely Reply (ECF No. 30), making the

case ripe for decision.

Petitioner’s Reply

Petitioner’s Reply is devoted to attempting to show he is actually innocent, a showing

which, if successful, would excuse both his untimely filing and procedural defaults along the way.

McQuiggin v. Perkins, 569 U.S. 383 (2013); House v. Bell, 547 U.S. 518 (2006); and Schlup v.

Delo, 513 U.S. 298 (1995). In developing his actual innocence claim, Carlton asserts the case

turned on the credibility of the victim-witness, Kristen Ivory (Reply, ECF No. 30, PageID 1405).

He notes that his habeas claim is that his trial counsel failed to present “exculpatory evidence.” Id.

at PageID 1406. Carlton explains:

This new evidnce [sic],was in the discovery, but counsel's

performance was deficient by violating professional norms of

competence by not knowing these were hearsay exception[s] and

therefore admissible under Ohio evidence rul&s [sic] and counsel

should have explained that to Honorable West4, fchen [then] tie [he]

would have had no problem in letting the evidence[sic] be

presenfced [sic]to the jury.

Id. Carlton explains the presence of his DNA in Ivory’s apartment by her having invited him to

come over. Id. at PageID 1409. Having quoted Ivory’s testimony from both the transcript and the

First District’s opinion, he notes that his trial attorney, Mr. Goldberg, never introduced page six of

Ivory’s medical records into evidence. That single page is now labeled Petitioner’s Exhibit 1 (ECF

No. 30-1, PageID 1456). Carlton emphasizes he is not claiming a Brady5 violation, but claiming

ineffective assistance of trial counsel for failure to present this exhibit (Reply, ECF No. 30, PageID

1406). He asserts the exhibit “is not just impeachment evidence, but it is exculpatory evidence,

and exculpatory evidence is evidence of innocence, and factual innocence is evidence not

presented to jury with a constitutional violation.” Id. at PageID 1410. He notes that the gun with

which Ivory testified he beat her was never produced at trial, but the jury believed her testimony

about it; had they seen Exhibit 1, they would not have believed her, Exhibit 1 would necessarily

have created reasonable doubt. Id. at PageID 1414-15. Carlton characterizes Exhibit 1 as “critical

physical evidence.” Id. at PageID 1418. He claims Exhibit 1 was admissible under Ohio R. Evid.

805 or 803 and his attorney did not know this.

Exhibit 2 is the second page of a police incident report regarding the offenses in suit and

contains a narrative report of the interview of the victim by Forest Park Police Officer Ronald

Wilson on July 22, 2014, the morning after the incident (ECF No. 30-1, PageID 1457). Carlton

claims trial counsel should have explained to Judge West that Exhibit 2 was admissible in evidence

under Ohio Revised Code § 2317.42 and Ohio R. Evid. 803(8) (Reply, ECF No. 30, PageID 1420.

4 The Honorable John Andrew West, Judge of the Hamilton County Court of Common Pleas, who presided at trial.

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

Exhibit 3 is the Affidavit of Detective Cory Hall in support of a search warrant to obtain a

DNA sample from Carlton by oral swab (ECF No. 30-1, PageID 1458). Carlton emphasizes the

inconsistencies between the facts recited in the Affidavit and Ivory’s testimony at trial, particularly

in that Hall believed Ivory said she was pistol-whipped by both Carston and his accomplice,

whereas her trial testimony implicated Carlton alone (Reply, ECF No. 30, PageID 1422). He

claims trial counsel should have argued it was admissible under Ohio Revised Code § 2317.42 and

Ohio R. Evid. 803(8) and 805. Id. at PageID 1723.

Carlton concedes this evidence was discovered at the time of trial, but not presented (except

for Exhibit 16) to the jury. He argues new evidence under Schlup can consist of newly-presented

evidence as well as newly discovered evidence. Id. at PageID 1426, relying on Hamilton v.

Gansheimer, 546 F.Supp.2d 825 (N.D. Ohio 2008)(Zouhary, D.J.); and Jones v. Calloway, 842

F.3d 454 (7th Cir. 2016).

At PageID 1429-30, Carlton speaks of learning in prison about forgiving and forgives Ivory

for lying on him. He apologizes to his mother and wife and to those persons to whom he sold

heroin and crack and “the men wifes I had sex with.” He avers that when released he will stop

selling drugs. He acknowledges he did not testify at trial, but avers he would do so in a new trial,

making it his word against Ivory’s. PageID 1432.

At PageID 1433, Petitioner begins an argument about the trial court’s lack of jurisdiction.

This claim, he says, is what prompted him to file a petition for an Ohio writ of habeas corpus in

the Ohio Supreme Court. Relying on Johnson v. Zerbst, 304 U.S. 458, 464 (1938), he contends

that a court which has jurisdiction at the commencement of trial can lose it by denying a

defendant’s right to counsel. He asserts the holding of the Ohio Supreme Court in Boszik v.

6 “[P]etitioner now realize [sic] that the medical record[s] were admitted into evidence; but the incident report and

affidavit for search warrant Exhibit1s 2, and 3 were not.” Id. at PageID 1426.

Hudson, 110 Ohio St. 3d 245 (2006), that an Ohio trial court does not lose jurisdiction because of

claims involving denial of counsel or ineffective assistance of trial counsel and therefore such

claims are not cognizable in habeas corpus is contrary to Supreme Court law clearly established in

Johnson. Id. at PageID 1435.

Petitioner then argues he can show cause and prejudice for procedural default because he

was not served with notice of the denial of his motions for new trial (Reply, ECF No. 30, PageID

1437-38).

Under the heading “Merits,” Petitioner asserts “Petitioner was denied counsel at trial a

violation of the United States Constitution 6th and 14th Amendments rending [sic] the judgment void

due to a lack of jurisdiction.” (ECF No. 30, PageID 1439). His evidence is that his trial attorney tried

to cross-examine Detective Dryer about the content of the search warrant affidavit and Judge West

would not permit it because the affiant was Officer Hall, not Detective Dryer.

Analysis

Statute of Limitations

The Warden asserts Carlton’s Petition is barred by the statute of limitations, 28 U.S.C. §

2244(d), which provides:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from the

latest of —

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.

The Supreme Court of Ohio declined jurisdiction over Carlton’s direct appeal on May 17,

2017, and of his appeal from denial of his 26(B) application on the same day. His deadline for

seeking review by the Supreme Court of the United States expired ninety days later on August 15,

2017. Because he did not seek certiorari review, his conviction became final on August 15, 2017,

and expired August 15, 2018, unless some tolling event happened in the meantime. Carlton filed

his first habeas corpus petition in this Court on May 31, 2018, but that filing did not toll the statute

because a federal habeas petition is not a properly filed state collateral attack on the judgment. 28

U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167 (2001).

Two days before the statute expired, on August 13, 2018, Carlton filed a motion for leave

to file a delayed motion for new trial (State Court Record, ECF No. 27, Ex. 15). Ohio sets no time

limit on motions for leave to file delayed new trial motions and the trial court denied the motion

as being without merit, rather than as not being properly filed, on August 16, 2018 (Id. at Ex. 18).

Thus this Motion tolled the statute of limitations. Carlton’s time to appeal expired September 15,

2018, and he did not appeal. Thus the tolling ceased September 15, 2018, and the statute expired

two days later because it had been tolled when there were only two days left to run.

Carlton has filed numerous additional state post-conviction motions and petitions, but even

though they may have been properly filed under Ohio law, they do not serve to re-start the federal

statute of limitations. A properly filed collateral attack on a judgment tolls the statute of

limitations, but does not re-start it. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).

Carlton does not argue for any other date on which his conviction became final. He filed

his Petition in this case by depositing it in the prison mail system on December 22, 2020 (Petition,

ECF No. 1, PageID 15). If the statute of limitations is calculated under 28

U.S.C. § 2244(d)(1)(a), the Petition was filed two years and three months after the statute expired.

Carlton seeks to excuse his delay by claiming he is actually innocent (Reply, ECF No. 30,

PageID 1405, citing House v. Bell, 547 U.S. 518 (2006), and Schlup v. Delo, 513 U.S. 298 (1995).

The Supreme Court has held that a showing of actual innocence which meets the Schlup

requirements will excuse a late filing. McQuiggin v. Perkins, 569 U.S. 383 (2013). In McQuiggin,

the Court held:

[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup and House, or, as in this case, expiration of the

statute of limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[A] petitioner does not meet the

threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.

S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,

at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the

Schlup standard is “demanding” and seldom met). And in making

an assessment of the kind Schlup envisioned, “the timing of the

[petition]” is a factor bearing on the “reliability of th[e] evidence”

purporting to show actual innocence. Schlup, 513 U. S., at 332, 115

S. Ct. 851, 130 L. Ed. 2d. 808.

Id. at 386-87.

Carlton’s claim of actual innocence to excuse his untimely filing is without merit.

First of all, the kind of evidence on which he relies does not meet the Schlup standard. In

Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit held:

[I]f a habeas petitioner "presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims." Schlup

v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is

whether "new facts raise[] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial." Id. at 317.

To establish actual innocence, "a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt." Id. at 327. The Court has noted

that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.

Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim

requires petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial." Schlup, 513 U.S. at 324.

The Court counseled however, that the actual innocence exception

should "remain rare" and "only be applied in the 'extraordinary

case.'" Id. at 321.

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

The evidence on which Carlton relies is all documentary evidence, exclusively relied on

by him to undermine the credibility of the victim-witness Ivory. It is not exculpatory scientific

evidence; indeed it is not scientific evidence at all.

Similarly, it is not trustworthy eyewitness accounts. The only eyewitnesses to the alleged

crime were the victim, Carlton, and the unidentified accomplice. We have only Ivory’s testimony;

neither Carlton nor the unidentified accomplice has provided sworn testimony.

Finally, it is not “physical” evidence, but only documentary evidence of what certain

persons may have said at various times. True, the statements have been reduced to writing and

those writings are tangible. But that is not what Schlup means by “physical” evidence. The best

example known to the Magistrate Judge is from House v. Bell, supra. There the petitioner had

been identified as the rape-murderer because his blood was found on the victim’s clothing. It was

later learned that his blood sample had been shipped to the FBI laboratory in the same container

as the victim’s clothing and one of the vials had broken or spilled in route, providing an innocent

explanation for why his blood was on the victim’s clothing. In contrast, the “new” evidence relied

on by Carlton consists entirely of statements of Ivory prior to trial which are alleged to be

inconsistent with her trial testimony.

Secondly, the Court is not persuaded that this new evidence is such that, even if it had been

considered by the jury, shows that no rational juror would have voted to convict. The jury was

presented with persuasive evidence of Ivory’s serious physical injuries which she testified Carlton

inflicted. Her pre-trial identification of Ivory as the perpetrator was not shaken on cross-

examination and his presence in her apartment was confirmed by DNA evidence. Carlton asserts

she had been involved in a domestic violence incident with the father of her child, but when,

resulting in what injuries? Carlton suggests no motive for Ivory to misidentify him.

The Magistrate Judge agrees with Carlton that the evidence not presented to the jury on

which he relies does provide possibilities of cross-examining Ivory with prior inconsistent

statements, but disagreed that they would have been strong enough to prevent a rational juror from

voting to convict. The First District reached the same conclusion in denying Carlton’s Application

for Reopening:

Nor can he be said to have been denied his right to the effective

assistance of trial counsel, when the record does not demonstrate a

reasonable probability that: but for the alleged deficiency in trial

counsel's performance, the result of his trial would have been

different. See Strickland at 694; Bradley at paragraph three of the

syllabus.

(Entry Denying Application, State v. Carlton, State Court Record, ECF No. 31, Ex. 11).

There is also a serious question whether the evidence on which Carlton relies constitutes

“new” evidence as required by Souter. Other than page six of Ivory’s medical records, these

documentary exhibits were not admitted in evidence, but Carlton concedes that they were all

provided to defense counsel in pre-trial discovery, so that they are not newly-discovered. Although

there is a circuit split on the question, the Sixth Circuit’s opinion in Souter v. Jones, 395 F.3d 577,

596 n.9 (6th Cir. 2005), suggests that newly presented evidence is sufficient. Cleveland v.

Bradshaw, 693 F.3d 626 (6th Cir. 2012); Ogle v. Mohr, 2016 U.S. Dist. LEXIS 89701 (S.D. Ohio

2016)(Sargus, Ch. J.). However, in Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017), the Sixth

Circuit held that evidence (police reports) that could have been discovered by the exercise of due

diligence before trial does not qualify as new evidence. See Clark v. Noble, 2019 U.S. Dist. LEXIS

49689, at *49-50 (S.D. Ohio 2019), citing Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir.

2012) (“(noting that the Sixth Circuit has suggested that, in addition to ‘newly discovered;

evidence, ‘newly presented’ evidence constitutes ‘new evidence’ for purposes of the actual-

innocence exception)”.).

Even if “newly-presented” is sufficient, Carlton’s new evidence could not be presented to

a jury in the form he suggests. The documents could form the good-faith basis for cross-

examination of Ivory. Ohio R. Evid. 607(B). However, the documents themselves could not be

given to the jury. Ohio R. Evid. 613(B).

In sum, Carlton has not satisfied the Schlup-McQuiggin actual innocence standard and his

Petition is therefore barred by the statute of limitations.

Procedural Default

Respondent asserts Carlton’s claim of ineffective assistance of trial counsel is also barred

by his procedural default in presenting it to the Ohio courts.

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)).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);

Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th

Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261

F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

can overcome a procedural default by showing cause for the default and prejudice from the asserted

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

Petitioner’s claim is ineffective assistance of trial counsel by failing to adequately cross-

examine the victim-witness with the documents he now presents and/or to introduce those

documents in evidence. Ohio has two methods for litigating claims of ineffective assistance of

trial counsel. If the claim is based on facts of record at the time of direct appeal, the claim must

be presented in that forum or be later barred by res judicata. State v. Perry, 10 Ohio St. 2d 175

(1967). If, on the other hand, the claim depends on facts outside (dehors) the appellate record, it

must be presented in a timely petition ford post-conviction relief under Ohio Revised Code §

2953.21.

Petitioner here concedes that the documentary evidence on which he relies was produced

in pre-trial discovery; his attorney’s failure to engage in what he believes was appropriate cross-

examination could be shown from the trial transcript. Thus the ineffective assistance of trial

counsel claim he makes in the Amended Petition should have been raised on direct appeal, but was

not.

Petitioner’s Reply is spent attempting to excuse this default by showing actual innocence;

his failure to persuade is detailed above with respect to the statute of limitations question. Another

possible excuse could be ineffective assistance of appellate counsel. Carlton raised that claim in

his Application for Reopening (See Omitted Assignments of Error 2 & 3, Application for

Reopening, State Court Record, ECF No. 31, Ex. 8). The First District denied relief on that claim.

Under 28 U.S.C. § 2254(d)(1), its decision is entitled to deference unless shown to be

contrary to or an unreasonable application of clearly established Supreme Court precedent.

Strickland v. Washington, 466 U.S. 668 (1984); 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). Appellate counsel could well have

understood that trial counsel would not want to have been seen as badgering a badly-injured

victim-witness about statements she allegedly made to others (a social worker and a police officer)

when she was completely free to repudiate or change the prior statements.

The First District’s denial of the 26(B) Application is a reasonable application of Strickland

v. Washington, 466 U.S. 668 (1984), and is therefore entitled to deference.

Trial Court Jurisdiction

Carlton spends considerable space in his Reply arguing the trial court did not have

jurisdiction of his case.

Ohio Common Pleas courts are courts of general jurisdiction, which means they have

authority to decide their own jurisdiction in the first instance. State ex rel. Winnefeld v. Court of

Common Pleas of Butler County, 159 Ohio St. 225 (1953); State ex rel Miller v. Court of Common

Pleas of Lake County, 151 Ohio St. 397 (1949). Common Pleas courts have exclusive original

jurisdiction to try felony offenses indicted in their respective counties. It is beyond doubt that the

Hamilton County Court of Common Pleas had subject matter jurisdiction over this case and

personal jurisdiction to try Carlton once he was brought before them after arrest on the warrant on

indictment.

But Carlton claims the court lost that jurisdiction once he received ineffective assistance

of trial counsel. This claim is unavailing for a number of reasons.

First of all, the lack of jurisdiction claim is not pleaded in the Amended Petition, which is

limited to the claim of ineffective assistance of trial counsel. A claim cannot be added to a habeas

corpus case by including it in the reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing

Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).

Secondly, the claim is without merit. Carlton raised this claim7 by filing an original petition

for writ of habeas corpus in the Supreme Court of Ohio (Petition, State Court Record, ECF No.

27, Ex. 61). The Ohio Supreme Court denied the Petition without opinion. Id. at Ex. 64. It did not

rely on its own holding in Boszik v. Hudson, 110 Ohio St. 3d 245 (2006), that an Ohio trial court

does not lose jurisdiction because of claims involving denial of counsel or ineffective assistance

of trial counsel which Carlton says is contrary to Supreme Court law clearly established in

Johnson. Id. at PageID 1435. This Court need not resolve that question because the Supreme Court

of Ohio did not rely on Boszik and in any event was writing there about the Ohio habeas corpus,

not federal habeas.

Carlton’s argument fares no better by direct reliance on Johnson v. Zerbst. His claim is

that failure to appoint counsel when required by law deprives the state court of jurisdiction and

thus permits federal habeas corpus. The Supreme Court never extended that holding to claims of

7 Petitioner may have raised this claim in both the Common Pleas Court and the First District Court of Appeals, but

he relies in his Reply on raising it in the Supreme Court of Ohio in an original petition.

ineffective assistance of trial counsel. Moreover, it abandoned the requirement that the federal

court find a lack of jurisdiction in the state court of conviction in order to grant habeas relief in

Waley v. Johnson, 316 U.S. 101 (1942)(per curiam), only four years after Johnson.

In sum, Carlton’s claim that the trial court was deprived of jurisdiction when his attorney

did not cross-examine the victim-witness as he believes would have been appropriate is (1) not

properly presented because not in the Amended Petition and (2) fails to state a claim under

Johnson.

Conclusion

On the basis of the foregoing analysis, the Magistrate Judge respectfully recommends the

Amended Petition 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.

October 4, 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. #

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