Redding v. Warden London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ANTHONY REDDING,

Petitioner, : Case No. 2:21-cv-3882

- vs - District Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Anthony Redding under 28 U.S.C. § 2254

with the assistance of counsel is before the Court for decision on the merits on the Petition (ECF

No. 1), the State Court Record (ECF No. 4), and the Return of Writ (ECF No. 5). Petitioner’s

deadline for filing a reply (September 28, 2021) has passed without any such filing. The Magistrate

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

Magistrate Judge workload in the District (ECF No. 6).

Litigation History

On March 1, 2018, the Union County Grand Jury indicted Redding on one count of

felonious assault in violation of Ohio Revised Code § 2903.11(A)(1), (D)(1)(a), a second degree

felony, with a repeat-violent-offender specification under Ohio Revised Code § 2941.149(A).

State v. Redding, 2019-Ohio-5302 ¶ 3 (Ohio App. 3d Dist. Dec. 23, 2019). On September 19,

20181, a trial jury found him guilty of felonious assault. That same day, the trial court determined

that Redding is a repeat violent offender as alleged by the specification in the indictment. The trial

court sentenced Redding to eight years in prison on Count One and ten years in prison on the

repeat-violent-offender specification, and ordered that Redding serve the terms consecutively for

an aggregate sentence of eighteen years. Id. at ¶ 4.

The Third District allowed Redding a delayed appeal but affirmed the convictions and

sentence. Id. at ¶ 26. The Supreme Court of Ohio declined to exercise appellate jurisdiction. State

v. Redding, 158 Ohio St.3d 1467 (2020). Redding filed a timely Application to reopen the appeal,

claiming he received ineffective assistance of appellate counsel when two specific assignments of

error were omitted (Application, State Court Record, ECF No. Ex. 16). The Third District denied

the Application (Id. at Ex. 18) and Redding did not appeal to the Supreme Court of Ohio.

Redding’s counsel filed his habeas corpus Petition in this Court on July 2, 2021, pleading

the following grounds for relief:

Ground One: Redding received ineffective assistance of counsel

because his attorney failed to object to inadmissible, irrelevant, and

prejudicial evidence that he had previous arrests.

Ground Two: Petitioner received ineffective assistance of counsel

because his attorney failed to object to inadmissible, irrelevant and

prejudicial evidence that Redding has scratched profane words into

[S.S.’s] door.

(Petition, ECF No. 1, PageID 4, 8). Respondent concedes that these two Grounds for Relief were

fairly presented to the Third District on direct appeal (Return, ECF No. 5, PageID 211).

1 Judge Zimmerman’s opinion has the date as September 19, 2019, but that is plainly a typographical error.

Analysis

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). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

The Third District decided Redding’s claims of ineffective assistance of trial counsel on

the merits, holding:

{¶9} On appeal, Redding argues that his trial counsel was

ineffective for failing to object to certain “other acts” evidence that

he contends was inadmissible under the Ohio rules of evidence.

Specifically, Redding argues that his trial counsel was ineffective

for failing to object to testimonial evidence presented by Sergeant

Nathan Sachs (“Sergeant Sachs”) and Officer Jacob Smith (“Officer

Smith”) of the Marysville Police Department “suggest[ing] to the

jury that [he] had a criminal history.” (Appellant's Brief at 6).

Redding also argues that his trial counsel was ineffective for failing

to object to irrelevant and prejudicial testimonial evidence presented

by S.S. that he “allegedly scratched profane and misogynistic words

into [her] door * * * .” (Id. at 12).

{¶10} “The ‘failure to object to error, alone, is not enough to sustain

a claim of ineffective assistance of counsel.’ ” Liles at ¶ 49, quoting

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 139, citing

State v. Holloway, 38 Ohio St.3d 239, 244 (1988). “To prevail on

such a claim, a defendant must first show that there was a substantial

violation of any of defense counsel's essential duties to his client

and, second, that he was materially prejudiced by counsel's

ineffectiveness.” Holloway at 244, citing Lytle, 48 Ohio St.2d at

396-397 and Strickland, 466 U.S. at 668. “Because ‘objections tend

to disrupt the flow of a trial,and are considered technical and

bothersome by the fact-finder,' competent counsel may reasonably

hesitate to object in the jury's presence.” State v. Campbell, 69 Ohio

St.3d 38, 53 (1994), quoting Jacobs, Ohio Evidence, at iii-iv (1989).

{¶11} “ ‘Generally, evidence which tends to show that the accused

has committed other crimes or acts independent of the crime for

which he stands trial is not admissible to prove a defendant's

character or that the defendant acted in conformity therewith.’ ”

State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶

21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO

56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d

763, 770 (3d Dist.1993) and Evid.R. 404. “ ‘However, there are

exceptions to the general rule: “It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” ’ ” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-

Ohio-1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19,

2012-Ohio-5128, ¶ 69, quoting Evid.R. 404(B). See also R.C.

2945.59. “ ‘The list of acceptable reasons for admitting testimony of

prior bad acts into evidence is non-exhaustive.’ ” Bagley at ¶ 56,

quoting State v. Persohn, 7th Dist. Columbiana No. 11 CO 37, 2012-

Ohio-6091, ¶ 23, citing State v. Melton, 11th Dist. Lake No. 2009-

L-078, 2010-Ohio-1278, ¶ 78, and citing State v. Faye, 3d Dist.

Wyandot Nos. 16-99-08 and 16-99-09, 2000 WL 566741, *4 (May

4, 2000).

{¶12} Evidence of other acts is generally admissible if it is offered

for a purpose other than to prove the character of a person in order

to show action in conformity with that character; it is relevant when

offered for that purpose; and the danger of unfair prejudice does not

substantially outweigh its probative value. State v. Kirkland, 140

Ohio St.3d 73, 2014-Ohio-1966, ¶ 68, citing State v. Williams, 134

Ohio St.3d 521, 2012-Ohio-5695, ¶ 20 and Evid.R. 401, 403, and

404(B). Evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” Evid.R. 401. “Under Evid.R. 403(A), ‘[a]lthough

relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.’ ” State v. Velez,

3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 122, quoting

State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33, 2005-

Ohio-3761, ¶ 71. “ ‘Unfair prejudice is that quality of evidence

which might result in an improper basis for a jury decision.’ ” Id.,

quoting State v. Calhoun, 11th Dist. Ashtabula No. 2010-A-0057,

2012-Ohio-1128, ¶ 82.

{¶13} Even if we assume without deciding that the criminal-history

and door-vandalism evidence was inadmissible, Redding's

ineffective-assistance-of-trial-counsel argument fails because there

is no reasonable probability that, but for the admission of that

evidence, he would have been acquitted on the grounds that he acted

in self-defense. “ ‘Self-defense is an affirmative defense, which

means that the burden of going forward is on the defendant who

must prove each element by a preponderance of the evidence.’ ”1

State v. Oates, 3d Dist. Hardin No. 6-12-19, 2013-Ohio-2609, ¶ 10,

quoting State v. Kimmell, 3d Dist. Wyandot No. 16-10-06, 2011-

Ohio-660, ¶ 19, citing State v. Densmore, 3d Dist. Henry No. 7-08-

04, 2009-Ohio-6870, ¶ 24 and R.C. 2901.05 (2008) (current version

at R.C. 2901.05 (2019)). “Affirmative defenses such as self-defense

‘ “do not seek to negate any elements of the offense which the State

is required to prove” but rather they “admit[ ] the facts claimed by

the prosecution and then rel[y] on independent facts or

circumstances which the defendant claims exempt him from

liability.” ’ ” Id. at ¶ 10, quoting State v. Smith, 3d Dist. Logan No.

8-12-05, 2013-Ohio-746, ¶ 32, quoting State v. Martin, 21 Ohio

St.3d 91, 94 (1986).

{¶14} “The elements of self-defense differ depending on whether

the defendant used deadly or non-deadly force to defend himself.”

Bagley, 2014-Ohio-1787, at ¶ 15, citing Densmore at ¶ 25. “Deadly

force is ‘ “any force that carries a substantial risk that it will

proximately result in the death of any person.” ’ ” Id., quoting

Densmore at ¶ 28, quoting R.C. 2901.01(A)(2) (2017) (current

version at R.C. 2901.01(A)(2) (2019)). A “substantial risk” is “a

strong possibility, as contrasted with a remote or significant

possibility, that a certain result may occur or that certain

circumstances may exist.” R.C. 2901.01(A)(8) (2017) (current

version at R.C. 2901.01(A)(8) (2019)).

To establish self-defense through the use of deadly force,

an accused must prove: “(1) the accused was not at fault in

creating the situation giving rise to the affray; (2) the

accused had a bona fide belief that he or she was in

imminent danger of death or great bodily harm and that the

only means of escape from such danger was in the use of

force; and (3) the accused must not have violated any duty

to retreat or to avoid the danger.”

Bagley at ¶ 16, quoting State v. Thacker, 3d Dist. Marion No. 9-03-

37, 2004-Ohio-1047, ¶ 14, citing State v. Williford, 49 Ohio St.3d

247, 249 (1990) and State v. Robbins, 58 Ohio St.2d 74 (1979),

paragraph two of the syllabus.

{¶15} By contrast, to establish self-defense through the use of non-

deadly force, an accused must prove: (1) the accused was not at fault

in creating the situation giving rise to the affray, (2) the accused

(even if mistaken) had a bona fide belief that he was in imminent

danger of any bodily harm; and (3) the only means to protect himself

from such danger was the use of force not likely to cause death or

great bodily harm. Accord State v. Vu, 10th Dist. Franklin No.

09AP-606, 2010-Ohio-4019, ¶ 10; State v. Juntunen, 10th Dist.

Franklin No. 09AP-1108, 2010-Ohio-5625, ¶ 21; Ohio Jury

Instructions, CR Section 421.21 (Rev. Aug. 16, 2006). See In re J.J.,

5th Dist. Licking No. 16 CA 44, 2016-Ohio-8567, ¶ 14; State v.

Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 62;

State. v. Jeffers, 11th Dist. Lake No. 2007-L-011, 2008-Ohio-1894,

¶ 81. See also State v. Wagner, 3d Dist. Seneca No. 13-15-18, 2015-

Ohio-5183, ¶ 10. “In instances where less than deadly force is used,

the defendant need only show a fear of bodily harm, not of death or

great bodily harm.” State v. Brown, 2d Dist. Montgomery No.

27312, 2017-Ohio-7424, ¶ 24, citing State v. Gee, 2d Dist. Miami

No. 87-CA-22, 1987 WL 20260, *2 (Nov. 17, 1987) and State v.

Perez, 72 Ohio App.3d 468, 472 (10th Dist.1991).

Both versions of self-defense, however, use the term “great

bodily harm”: self-defense involving deadly force uses the

term to describe the level of harm the defendant must

perceive before he or she is justified in using deadly force,

while self-defense with non-deadly force uses the term to

describe the level of force a defendant may not apply.

Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to

retreat in cases involving non-deadly force. Brown at ¶ 25, citing

State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-

6541, ¶ 21, citing Perez at 472.

{¶16} Moreover, Ohio's “castle doctrine” creates an exception to the

duty to retreat and provides, in its relevant part, that “a person who

lawfully is in that person's residence has no duty to retreat before

using force in self-defense, defense of another, or defense of that

person's residence.” Brown at ¶ 25, citing R.C. 2901.09(B). The

legislature extended the castle doctrine under R.C. 2901.05. State v.

Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶ 46,

citing State v. Carosiello, 7th Dist. Columbiana No. 15 CO 0017,

2017-Ohio-8160, ¶ 17. R.C. 2901.05—the statutory presumption of

self-defense—provides

that a defendant is entitled to a presumption of self-defense

if the evidence shows that the defendant used defensive

force against another person who was “in the process of

unlawfully and without privilege to do so entering, or ha[d]

unlawfully and without privilege to do so entered” the

defendant's residence.

State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-

2229, ¶ 17, quoting R.C. 2901.05(B)(1) (2008) (current version at

R.C. 2901.05(B)(2) (2019)). “This is a rebuttable presumption and

may be rebutted by a preponderance of the evidence that the victim

had a right to be in the residence or the defendant was unlawfully in

the residence.” Id., citing State v. Lewis, 8th Dist. Cuyahoga No.

97211, 2012-Ohio-3684, ¶ 13, State v. Barnette, 12th Dist. Butler

No. CA2012-05-099, 2013-Ohio-990, ¶ 57, and R.C. 2901.05(B)(2),

(3) (2008) (current version at R.C. 2901.05(B)(3), (4) (2019)).

{¶17} “ ‘The difference between the Castle Doctrine and the

rebuttable presumption of self-defense lies in the legal status of the

victim.’ ” Id. at ¶ 18, quoting State v. Lewis, 8th Dist. Cuyahoga No.

97211, 2012-Ohio-3684, ¶ 18. Specifically, if the victim is lawfully

in a residence at the time the defendant used deadly force, that

defendant is not entitled to the statutory presumption of self-defense.

Id., citing Lewis at ¶ 19 and R.C. 2901.05(B)(1), (2) (2008) (current

version at R.C. 2901.05(B)(2), (3) (2019)). However, in those

circumstances, the defendant is entitled to a castle-doctrine

instruction—if that defendant is lawfully occupying the residence at

the time he or she used the force. State v. Whitman, 5th Dist. Stark

No. 2017CA00079, 2018-Ohio-2924, ¶ 57, citing Lewis at ¶ 17-19

and State v. Bushner, 9th Dist. Summit No. 26532, 2012-Ohio-5996,

¶ 16. “Under such circumstances, the defendant need only establish

the two remaining elements of a valid self-defense claim by a

preponderance of the evidence * * * .” Brown at ¶ 25, citing Dale at

¶ 18 and State v. Johnson, 11th Dist. Lake No. 2005-L-03, 2006-

Ohio-2380, ¶ 21.

{¶18} Because the elements of self-defense are cumulative, a

defendant fails to demonstrate that he or she acted in self-defense if

he fails to prove any one of the applicable elements by a

preponderance of the evidence. Bagley, 2014-Ohio-1787, at ¶ 16,

citing Thacker, 2004-Ohio-1047, at ¶ 14, citing State v. Jackson, 22

Ohio St.3d 281, 284 (1986).

{¶19} In this case, Redding was convicted of felonious assault in

violation of R.C. 2903.11(A)(1), which required the trier of fact to

find that he knowingly caused S.S. serious physical harm. See

Jeffers, 2008-Ohio-1894, at ¶ 81, citing R.C. 2903.11(A)(1). Indeed,

at trial, Redding did not dispute that he struck S.S. in her face one

time, resulting in the loss of her left eye. (See Sept. 17, 2018 Tr.,

Vol. I, at 63); (Sept. 17, 2018 Tr., Vol. II, at 107); (Appellant's Brief

at 1-2). Thus, to succeed on a defense of self-defense, Redding was

required to prove that he acted in self-defense through the use of

non-deadly force because “[a] single punch, standing alone, may not

constitute deadly force.” (Emphasis added.) Jeffers at ¶ 81, citing

Perez, 72 Ohio App.3d at 470-472. See State v. Davis, 10th Dist.

Franklin No. 17AP-438, 2018-Ohio-58, ¶ 25, citing State v. Triplett,

192 Ohio App.3d 600, 2011-Ohio-816, ¶ 14 (8th Dist.), State v.

Mendoza, 10th Dist. Franklin No. 16AP-893, 2017-Ohio-8977, ¶

91-94, Perez at 470, State v. Palmer, 10th Dist. Franklin No. 12AP-

460, 2013-Ohio-5970, ¶15, and Struthers v. Williams, 7th Dist.

Mahoning No. 07 MA 55, 2008-Ohio-6637, ¶ 14-16. See also In re

J.J., 2016-Ohio-8567, at ¶ 14-16.

{¶20} Importantly, Redding cannot demonstrate that he was

materially prejudiced by the admission of any evidence because

there is no reasonable probability that, but for the admission of that

evidence, the result of his trial would have been different. That is,

Redding cannot demonstrate that he would have been acquitted on

the grounds that he acted in self-defense. Specifically, for Redding

to succeed on a defense of self-defense through the use of non-

deadly force, the trier of fact would have to find that Redding “ ‘was

justified in using force not likely to cause death or great bodily

harm.’ ” (Emphasis added.) Jeffers at ¶ 81, quoting Ohio Jury

Instructions, CR Section 411.33 (Rev. Aug. 16, 2006) (current

version at Ohio Jury Instructions, CR Section 421.21 (Rev. Aug. 16,

2006)). Although the term “great bodily harm” is not statutorily

defined, Ohio courts of appeal have concluded that the term is

substantially similar to “serious physical harm,” which is statutorily

defined. See In re J.J. at ¶ 15, citing Juntunen, 2010-Ohio-5625, at

¶ 22, Jeffers at ¶ 81, and State v. Herrera, 6th Dist. Ottawa No. OT-

05-039, 2006-Ohio-3053, ¶ 53; R.C. 2901.01(A)(5) (2017) (current

version at R.C. 2901.01(A)(5) (2019)). See also State v. Bennett, 2d

Dist. Montgomery No. 27943, 2019-Ohio-2996, ¶ 48, fn. 6

(Froelich, J., dissenting).

{¶21} Accordingly, if the jury were to find that the force used by

Redding was not likely to cause great bodily harm, that finding

would be inconsistent with its prior determination that Redding

knowingly caused S.S. serious physical harm. See Jeffers at ¶ 81;

Triplett at ¶ 17, fn. 3 (Rocco, P.J., concurring in part and dissenting

in part). Therefore, there is no reasonable probability that Redding

would have been able to prove that he acted in self-defense through

the use of non-deadly force because he is unable to prove that he

used force not likely to cause death or great bodily harm. See In re

J.J. at ¶ 14-16 (concluding that a defendant fails to carry his burden

of proving that he acted in self-defense through the use of non-

deadly force if he caused the victim serious physical harm). See also

Mendoza at ¶ 91-94. Consequently, Redding's ineffective-

assistance-of-counsel argument is without merit, and his first and

second assignments of error are overruled.

State v. Redding, supra.

As the Third District recognized, 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).

Although there are two prongs to the Strickland test, courts may address only one prong if

it is dispositive:

Although we have discussed the performance component of an

ineffectiveness claim prior to the prejudice component, there is no

reason for a court deciding an ineffective assistance claim to

approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient

showing on one. In particular, a court need not determine whether

counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies. The

object of an ineffectiveness claim is not to grade counsel's

performance. If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed. Courts should strive to

ensure that ineffectiveness claims not become so burdensome to

defense counsel that the entire criminal justice system suffers as a

result.

Strickland, 466 U.S. at 697.

Rather than analyze whether trial counsel’s failure to object was deficient performance, the

Third District went to the second prong of Strickland and determined that Redding suffered no

prejudice from the evidence not objected to. Redding admitted that he struck the victim in the face

with force great enough to do great or serious bodily harm. That admission and the jury’s finding

of guilt on the felonious assault, which has as an element the infliction of serious bodily harm,

made it impossible for him to prevail on his defense of self-defense. Therefore his claim that

allowing the allegedly inadmissible evidence prejudiced him was inconsistent with Ohio law.

Petitioner argues in his Petition that the Third District’s decision was “unreasonable.” As

to the First Ground for Relief, he argues:

18. Petitioner would argue that the Third District Court of Appeals

decision was unreasonable. The state introduced evidence of prior

criminal history. Specifically, that the police had dealt with the

Petitioner before and that he had been unruly and violent in those

interactions. There should have been an objection as there was no

valid reason to allow this character evidence before the jury.

Reasonable jurists could find that a series of prior, violent arrests

did not meet the exceptions for allowing such character evidence

into the trial.

(Petition, ECF No. 1, PageID 7). But has noted above, a federal habeas court does not review a

state court decision on the merits of a federal constitutional claim to determine if it is “reasonable.”

Rather, the test is whether it involves an unreasonable application of clearly established Supreme

Court precedent. 28 U.S.C. § 2254(d)(1). The Sixth Circuit has held: “There is no clearly

established Supreme Court precedent which holds that a state violates due process by permitting

propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512

(6th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle v. McGuire. 502

U.S. 62 (1991). Redding’s First Ground is without merit because he has not shown it is an

unreasonable application of Strickland.

Regarding his Second Ground for Relief, Redding argues in the Petition:

23. The Third District states that Petitioner cannot ever show

prejudice by the inclusion of any evidence. Stated more plainly, it

does not matter what evidence the state introduces because he would

never be able to show he acted in self-defense. Following this

analysis, if the state introduced the result of a polygraph test, and

there was no objection, this would not be ineffective assistance. This

is objectively unreasonable. There must be some evidence that if the

state introduced it that it would trigger an ineffective assistance

claim. A court cannot make an absolute statement and expect to

escape scrutiny of the federal courts.

(Petition, ECF No. 1, PageID 10). This argument misstates what the Third District held. It did

not hold that a failure to object to any and all evidence was exempt from Strickland scrutiny.

Instead, it held admission of this evidence – obscene graffiti on the victim’s door – was not

prejudicial because Redding’s admission of the use of force sufficient to cause serious physical

harm was fatal, under Ohio law, to Redding’s defense of self-defense. We cannot review whether

this was a correct interpretation of Ohio self-defense law. Rather we are bound by the Third

District’s interpretation of that law. Bradshaw v. Richey, 546 U.S. 74 (2005). Under Ohio law,

Redding’s admission that he used force which caused serious physical harm was logically

incompatible with his claim that he acted with the force allowed for someone acting in self-defense

in the circumstances he faced.

The Third District’s decision on this claim is not an unreasonable application of Strickland.

Conclusion

Based on the foregoing analysis, the Magistrate Judge concludes the Third District’s

decision on these two ineffective assistance of trial counsel claims is entitled to deference under

28 U.S.C. § 2254(d)(1) and therefore the Petition should 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 6, 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. 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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