Petition, ECF No. 1, PageID 14
How later courts described this case
- Petition, ECF No. 1, PageID 14
- “relatedness” of a claim will not save it
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DEMETRIUS WILLIAMS,
Petitioner, : Case No. 3:21-cv-186
- vs - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
CHAE HARRIS, Warden,
Lebanon Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Demetrius Williams with the assistance of
counsel1, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF
Nos. 1, 1-2), the State Court Record (ECF No. 6), the Warden’s Return of Writ (ECF No. 7), and
Petitioner’s Traverse (ECF No. 10).
Litigation History
Early in the morning of September 4, 2017, Pierre Jackson and his cousin Rino Lattimore
were shot in the parking lot of the Plush Gentlemen’s Club in Harrison Township. On September 15,
1 The Return of Writ identifies the Petition as having been filed pro se (ECF No. 7, PageID 1218). The docket,
however, reflects that Williams had been represented by counsel Since the inception of the case.
1
2017, a Montgomery County Grand Jury indicted Petitioner Demetrius Williams on two counts of
Murder (Counts 1, 3), each with three three-year firearm specification; two counts of felonious assault
(Counts 2, 5), each with a three-year firearm specification; two counts of felonious assault, each with
a serious physical harm specification (Counts 4, 6); and one count of having weapons while under
disability (Count 7). (Indictment, State Court Record, ECF No. 6, Exhibit 1).
Several pretrial motions to suppress were withdrawn by defense counsel before being heard
and decided. Counts one through six with the accompanying firearms specifications were tried to a
jury which found Williams guilty. The weapons under disability count was tried to the bench, also
resulting in a guilty finding. After a number of counts were merged at sentencing, Williams was
sentenced to an aggregate term of imprisonment of twenty-nine years to life (Termination Entry, State
Court Record, ECF No. 6, Ex. 11).
Williams appealed to the Ohio Court of Appeals for the Second District which affirmed
the conviction. State v. Williams, 2019-Ohio-4105 (Ohio App. 2nd Dist. Oct. 4, 2019). The
Supreme Court of Ohio allowed Williams to file a delayed appeal, but then declined to exercise
jurisdiction. State v. Williams, 158 Ohio St.3d 1465 (2020).
On December 23, 2019, Williams filed an application to reopen his appeal pursuant to Ohio
App. R. 26(B), accompanied by his own affidavit. (Application for Reopening, State Court Record,
ECF No. 6, Exhibits 24, 25). The Second District denied the Application on the merits (Decision, State
Court Record, ECF No. 6, Ex. 27) and the Ohio Supreme Court again declined appellate jurisdiction.
Id. at Ex. 31. Williams filed his Petition for Writ of Habeas Corpus in this Court on July 13, 2021.
2
Analysis
Williams pleads the following Grounds for Relief:
Ground One: Due Process violation when denied the constitutional
right to present a defense.
Supporting Facts:
1. Petitioner was denied his constitutional right to present a defense,
in violation of the Sixth Amendment to the United States
Constitution.
2. “The United States Supreme court has long held that an accused’s
right to establish a defense is a fundamental element of the due
process of law”. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.
1920, 18 L.Ed 2d 1019 (1967.)
3. The right to a defense is “in plain terms the right to present a
defense, the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so it may decide whether the
truth lies.” Id. at 19.
4. “The right to testify on one’s own behalf at a criminal trial has
sources in several provision of the Constitution. It is one of the rights
that “are essential to due process of law in a fair adversary process.”’
Rock v. Arkansas, 483 US. 44, 51, 107 S.Ct. 2704, 97 L.Ed 2d
37(1987), quoting Faretta v. California, 422 U.S. 806, 819, 95 S.Ct.
2525, 45 L.Ed 2d 562(1972).
5. In this matter, Mr. Williams averred that he wanted to testify at
trial, but was not permitted to do so. Mr. Williams’ due process
rights were violated when he was denied the right to present a
defense.
Ground Two: Denial of Effective Assistance of Counsel
Supporting Facts:
6. Mr. Williams incorporates each allegation contained elsewhere in
this petition as if fully rewritten herein.
3
7. Mr. Williams was denied the effective assistance of counsel as
mandated by the Sixth Amendment to the United States
Constitution.
8. Trial counsel was so ineffective that he did not live up to the
standard of assistance of counsel as prescribed in the Sixth
Amendment to the United States Constitution thereby depriving Mr.
Williams of a fair and reliable trial.
9. The sixth Amendment states “[i]n all criminal prosecutions, the
accused shall enjoy the Assistance of Counsel for his defen[s]e.”
10. The Supreme Court’s decision in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L. Ed 2d 674(1984) has established the
process by which courts are to decide ineffective assistance of
counsel claims. Under Strickland a defendant must first show that
counsel’s performance was so inadequate that counsel did not meet
the standard set by the Sixth Amendment. Id. at 687. Second, a
defendant must establish that counsel’s inadequate performance
deprived the defendant of a fair and reliable trial. Id.
11. Trial counsel failed to meet the standard of assistance of counsel
as guaranteed by the Sixth Amendment and as described in
Strickland in that he failed to obtain a crime-scene reconstructionist;
failed to investigate the Government’s forensic evidence; failed to
contact, interview, or call witnesses to testify at trial; failed to allow
Mr. Williams to testify in his own defense; and failed to suppress
evidence including Mr. Williams’ statements and identification.
These failures of trial counsel deprived Petitioner of his right to a
fair and reliable trial as guaranteed under Strickland.
12. All these stated examples show trial counsel’s performance was
not reasonable as they demonstrate a lack of diligence in
preparation, for which there is no reasonable explanation under the
circumstances. As a result, Mr. Williams was prejudiced as
confidence in the outcome was severely undetermined.
13. Trial counsel failed to thoroughly investigate the forensic
evidence in this matter and should have retained an accident
reconstructionist. In this matter, no forensic evidence linked Mr.
Williams to the murder weapon. In fact, a bullet recovered from
another vehicle on scene was not thoroughly investigated by the
defense. A reconstructionist could have demonstrated a second
shooter.
4
14. Additionally, before the trial, trial counsel filed motions to
suppress evidence challenging statements and identification of Mr.
Williams. Trial counsel subsequently withdrew all pending motions
to suppress prior to trial. Trial counsel was ineffective by
withdrawing the motions to suppress and by failing to suppress in-
court identification of Mr. Williams.
15. The Supreme Court of the United States holds that an
identification derived from unnecessarily suggestive procedures,
which have a likelihood of leading to a misidentification, violate a
defendant’s due process. Neil v. Bigger[s], 409 U.S. 188, 93 S. Ct.
375, 34 L. Ed. 2d 401 (1972).
16. A two-step process should be used to determine the admissibility
of identification testimony. First, the court must decide whether the
identification was impermissibly suggestive. If the identification
was suggestive, the court must determine if the identification was
reliable and there was not a substantial likelihood of irreparable
misidentification. Mason [sic] v. Brathwaite, 432 U.S. 98, 97 S. Ct.
2243; 53 L. Ed. 2d 140 (1977).
17. “It is obviously suggestive to ask a witness to identify a
perpetrator in the courtroom when it is clear who is the defendant.”
U.S. v. Rogers, 126 F.3d 655 (5th Cir. 1997). Citing U.S. v.
Archibald, 734 F.2d 938, 941, 943 (2d Cir. 1984); U.S. v. Hill, 967
F.2d 226, 232 (6th Cir. 1992); U.S. v. Rundell, 858 F.2d 425, 427
(8th Cir. 1988).
18. There are five factors to be considered in determining the
likelihood of misidentification: 1) the opportunity of the witness to
observe the criminal at the time of the crime; 2) the witness’s degree
of attention; 3) the accuracy of the witness’s prior description; 4) the
witness’s level of certainty and 5) the time between the crime and
the identification. Biggers at 199.
19. In this matter, the felonious assault victim identified Mr.
Williams as the shooter. However, he admitted he did not see the
deceased get shot, and if fact, testified that he thought another
individual shot the deceased. No DNA or other forensic evidence
tied Mr. Williams to the murder weapon. Identification of Mr.
Williams as the perpetrator of the felonious assault tainted
subsequent identification of Mr. Williams as the murderer. The
identification is impermissibly suggestive resulting in a substantial
5
likelihood of irreparable misidentification. Trial counsel fell below
the Strickland Standard by failing to challenge in-court
identification of Mr. Williams.
20. Ultimately, Mr. Williams was denied his Constitutional right to
effective assistance of counsel at the trial level due to the detrimental
failings of his trial counsel. Because Mr. Williams was denied
effective assistance of counsel in clear violation of the Constitution
and firmly established Supreme Court precedent, he is entitled to
habeas relief.
(Petition, ECF No. 1-2, PageID 20-23).
Petitioner asserts his Petition is timely under the “Holding in Clay,” presumably intending
Clay v. United States, 537 U.S. 522, 532 (2003)(Petition, ECF No. 1, PageID 14). By
Respondent’s calculation, the Petition was filed on the last day of the limitations period, making
it timely. No analysis under Clay is needed.
Generally Applicable Law
As will be seen below, all of Petitioner’s claims are properly analyzed as Sixth Amendment
ineffective assistance of counsel claims at either the trial or appellate level2.
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
2 Williams was represented by different counsel at trial, on appeal, and in these habeas proceedings.
6
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). The Strickland test
7
applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483
U.S. 776 (1987).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, such as ineffective assistance of trial counsel or ineffective assistance of
appellate counsel, 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). The Supreme Court has held this
deference is particularly required with ineffective assistance of counsel claims.
Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,”
id., at 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674; Lindh v. Murphy, 521
U.S. 320, 333, n. 7, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and
when the two apply in tandem, review is “doubly” so, Knowles, 556
U.S., at ___, 129 S. Ct. 1411, 173 L. Ed. 2d 251. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S., at ___, 129 S. Ct. 1411, 173 L. Ed. 2d 251.
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland's
deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
8
Ground One: Denial of the Right to Testify (Ineffective Assistance in Advising Not to Testify)
In his First Ground for Relief, Williams asserts he was prevented from testifying in his own
defense. On its face, this claim is pleaded as a due process claim that Williams “was prevented”
from presenting a defense. Use of the passive voice – was prevented – suggests Williams is
claiming the State prevented him from presenting a defense. The leading case he cites, Washington
v. Texas, 388 U.S. 14 (1967), found Texas had breached this right by denying defendant
compulsory process to obtain testimony from a witness. This right to present a defense clearly
includes the right to testify in one’s own defense3. Rock v. Arkansas, 483 U.S. 44 (1987).
But these citations are misplaced. Williams never argues in either the Petition or the
Traverse that the State did anything to prevent him from testifying. Rather this claim is properly
read as an ineffective assistance of trial counsel claim, to wit, that trial counsel gave poor advice
when he told Williams not to testify.
Respondent asserts this claim is procedurally defaulted because it was presented to the
Ohio courts for the first time in Williams’ Application to Reopen his direct appeal (Return, ECF
No. 7, PageID 1223). In response Williams asserts “t]his claim was raised in Mr. Williams’ fourth
assignment of error to the Ohio Second District Court of Appeals on April 26, 2019” (Traverse,
ECF No. 10, PageID 1256)4. The Magistrate Judge disagrees.
The Fourth Assignment of Error on direct appeal reads:
3 At common law a criminal defendant was not permitted to testify in his own defense because the temptation to
perjury was thought to be too high. Sir Walter Raleigh and Sir Thomas More were both executed for high treason
without a chance to testify in their own defense.
4 Counsel also asserts “[t]his claim was exhausted as his Fourth Proposition of Law in his Memorandum in Support
of Jurisdiction filed with the Ohio Supreme Court on February 9, 2020.” That Proposition of Law repeats verbatim
the Fourth Assignment of Error (Memorandum in Support of Jurisdiction, State Court Record, ECF No. 6, Ex. 21,
PageID 197).
9
FOURTH ASSIGNMENT OF ERROR: Mr. Williams received
ineffective assistance of counsel when counsel failed to properly
advise him throughout the course of the proceedings in violation of
Mr. Williams' Sixth and Fourteenth Amendment rights under both
the United States and Ohio Constitutions
(Appellant’s Brief, State Court Record, ECF No. 6, Ex. 14, PageID 79). Thus on its face the Fourth
Assignment is a claim of ineffective assistance of trial counsel, not a claim that Williams was
somehow prevented from testifying. Examining the content of the ineffective assistance of trial
counsel claim, the Court finds Williams asserted his counsel was ineffective “when counsel failed
to: provide discovery to Mr. Williams; obtain ballistic expertise and a detective to investigate the case; seek
suppression of evidence at trial; and counsel failed to investigate and properly prepare for trial and
sentencing.” Id. at PageID 94. There is no mention of trial counsel somehow preventing Williams from
testifying or even advising him not to. In deciding the Fourth Assignment of Error, the Second District did
not mention any claim that either the trial court or Williams’ attorney somehow “prevented” him from
testifying. And of course a defense attorney has neither the power nor the authority to prevent a
defendant from testifying.
The Magistrate Judge concludes Williams did not raise on direct appeal either a due process
claim that he was prevented from testifying by the trial court or a Sixth Amendment claim that his
attorney provided ineffective assistance of trial counsel when he advised him not to testify.
When he filed his Application to Reopen the direct appeal, Williams pleaded as his fourth
omitted assignment of error that trial counsel “Failed to inform the Defendant-Appellant of his
right to testify and usurping said right to testify.” (State Court Record, ECF No. 6, Ex. 24, PageID
251). This reads as an omitted ineffective assistance of trial counsel claim, not a claim that the
State prevented Williams from testifying.
This Report foregoes any further analysis of the First Ground for Relief as a due process
10
claim of state interference with presenting a defense claim and proceeds on the theory that
Williams is actually raising a Sixth Amendment ineffective assistance of trial counsel claim, which is the
way the Ohio courts understood the claim. If Williams actually intends to present a Due Process claim, he
has procedurally defaulted that claim in the most fundamental way – he has never presented it to any Ohio
court in those terms.
The Second District found Williams ineffective assistance of appellate counsel claim, argued as the
fourth omitted assignment of error, had no merit because the underlying ineffective assistance of trial
counsel claim – that trial counsel prevented Williams from testifying -- was not supported by any evidence
in the trial court record and therefore could not have been raised on direct appeal (Decision and Entry, State
Court Record, ECF No. 6, Ex. 27, ¶¶ 17-21, PageID 272-74). An appellate attorney obviously cannot be
faulted for failing to raise a claim that is not cognizable.
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.
11
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.
12
. . . .
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 excusing cause for the default and prejudice from
the asserted error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ohio has a relevant procedural rule, to wit, that all claims, including ineffective assistance
of trial counsel claims, which can be adjudicated on the appellate record must be presented on
direct appeal or be barred by res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). Conversely,
claims that depend on evidence outside the trial court record must be presented in a petition for
post-conviction relief under Ohio Revised Code § 2953.21. As established above, this claim
(either as a due process claim or an ineffective assistance of trial counsel claim) was never
presented on direct appeal. When Williams did present evidence dehors the record on this issue,
it was by way of his Affidavit in support of his 26(B) Application (ECF No. 6, Ex. 25).5
5 Counsel claims several times that Williams “averred” facts related to this claim. See, e.g. Petition, ECF No. 1-2, ¶
5, PageID 20. Black defines “averment” as “a positive declaration or affirmation of fact; esp., an assertion or allegation
in a pleading.” Black’s Law Dictionary (7th ed.). So far as the Magistrate Judge is advised, the only averment by
13
The Second District enforced this res judicata procedural rule by declining to decide
Williams’ ineffective assistance of trial counsel claim on the merits (i.e., by refusing to reopen the
appeal to permit its presentation). Any attempt by Williams to present that claim in a petition for
post-conviction relief would have been barred by the relevant statute of limitations, Ohio Revised
Code § 2953.23, which is a jurisdictional bar.6
A procedural default can be avoided by showing excusing cause and prejudice. Murray v.
Carrier, 477 U.S. 478, 494-95 (1986). To this end, Williams claims the benefit of Martinez v.
Ryan, 566 U.S. 1 (2012), but Martinez is of no assistance to him. Martinez will excuse procedural
default of a substantial ineffective assistance of trial counsel claim if that claim was required to be
presented in an initial collateral attack on the judgment and the defendant had no counsel in post-
conviction or that counsel was ineffective to the level of a Strickland violation. Ohio courts have
the authority to appoint counsel in Ohio Revised Code § 2953.21 proceeding for indigent
petitioners, but there is no showing Williams is indigent: he was represented by retained counsel
at trial, different counsel on appeal, and again by retained counsel in these proceedings. More
importantly, Williams has not shown he ever asked for appointed counsel for a petition for post-
conviction relief.
The Sixth Circuit has recognized the application of Martinez and its extension in Trevino
v. Thaler, 569 U.S. 413 (2013), to the Ohio system of post-conviction relief, but only with
considerable hesitation and limitations. See White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th
Cir. 2019), and Hugueley v. Mays, 964 F.3d 489 (6th Cir. 2020).
Williams of relevant facts about trial counsel’s advice on the right to testify is in the referenced Affidavit.
6 Any petition under Ohio Revised Code § 2953.21 must be filed within 365 days of the filing of the transcript on
appeal which occurred May 21, 2018 (See Transcript, State Court Record, ECF No. 6-2, PageID 354). Williams has
filed no Ohio Revised Code § 2953.21 petition at all.
14
One of those limitations, recognized in Martinez itself, is that the underlying claim of
ineffective assistance of trial counsel must be “substantial.” Williams’ ineffective assistance of
trial counsel claim is not substantial for the reasons given by the Second District in denying his
Application to Reopen:
¶ 19 Here, the record reflects that the trial court found Williams
guilty of having weapons under disability based on a prior drug
conviction that barred him from carrying a firearm (see Verdict
Entry Count 7, filed on February 6, 2018); trial counsel succeeded
in keeping the jury unaware of Williams' prior conviction by
submitting the weapons under disability count to the trial court.
Permitting Williams to testify in his own defense would have made
the jury aware of the prior conviction and may have subjected him
to cross-examination about his prior criminal activity. A trial
attorney's advising a defendant not to testify has been found to
constitute "sound trial strategy" where that advice prevented the
jury, from learning about the defendant's criminal background. See
State v. Strong, 4th Dist. Lawrence No. 00CA35, 2001 WL 994118,
*3 (Aug. 17, 2001). Accordingly, even if Williams' trial attorney
strongly discouraged Williams from testifying, that trial strategy
would not amount to ineffective assistance of trial counsel.
(Decision and Entry, State Court Record, ECF No. 6, Ex. 27, PageID 273). The desire to prevent
a jury from learning of prior felony convictions is a common premise of defense attorneys in
advising a defendant not to take the stand. Although Williams had an absolute right to reject
Williams’ advice and take the stand, his Affidavit gives no hint of what he would have testified to
or why defense counsel Bennett’s advice was bad advice. A mere claim that Williams wanted to
take the stand does not show ineffective assistance of trial counsel in advising him not to. Unless
Williams had some exonerating testimony to give – testimony he did not share with the Ohio courts
– he has not shown any prejudice from counsel’s supposedly bad advice.
Williams also attempts to avoid procedural default by relying on the miscarriage of justice
exception (Traverse, ECF No. 10, PageID 1259). However, that exception requires a petitioner to
15
present reliable new evidence not presented to the jury that he is actually (i.e. factually) innocent.
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). Williams has presented no new evidence of
actual innocence at all.
Accordingly, the Magistrate Judge concludes Williams has procedurally defaulted his First
Ground for Relief and has not presented persuasive excusing cause and prejudice. The First
Ground should be dismissed with prejudice on that basis.
In the alternative, if the Court should reach the merits of the First Ground for Relief, it
should be dismissed as without merit for the reasons given by the Second District: in the absence
of proof to the contrary, it is not ineffective assistance of trial counsel to advise a defendant charged
with murder not to take the stand and have to admit a prior felony drug conviction to a jury.
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Ground Two: Ineffective Assistance of Trial Counsel
In his Second Ground for Relief, Williams asserts he received ineffective assistance of trial
counsel when his trial attorney (1) failed to obtain a crime-scene reconstructionist; (2) failed to
investigate the Government’s forensic evidence; (3) failed to contact, interview, or call witnesses
to testify at trial; (4) failed to allow Mr. Williams to testify in his own defense; and (5) failed to
suppress evidence including Mr. Williams’ statements and identification.
On direct appeal and as noted above, Williams presented a claim of ineffective assistance
of trial counsel as follows:
FOURTH ASSIGNMENT OF ERROR: Mr. Williams received
ineffective assistance of counsel when counsel failed to properly
advise him throughout the course of the proceedings in violation of
Mr. Williams' Sixth and Fourteenth Amendment rights under both
the United States and Ohio Constitutions
(Appellant’s Brief, State Court Record, ECF No. 6, Ex. 14, PageID 79.) In the body of the Brief,
Williams particularized this assignment by asserting counsel was ineffective “when counsel failed
to: [1] provide discovery to Mr. Williams; [2] obtain ballistic expertise and a detective to investigate the
case; [3] seek suppression of evidence at trial; and counsel [4] failed to investigate and properly prepare for
trial and sentencing.” Id. at PageID 94. As can be readily seen the five sub-claims of ineffective assistance
of trial counsel Williams makes in his Petition are not the same as the sub-claims he made on direct appeal.
No court can competently and fairly adjudicate a claim that is not fairly presented to it. For that
reason, a habeas petitioner forfeits any federal constitutional claims he or she has not fairly presented to the
state courts. To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
17
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
Claims of ineffective assistance of trial counsel are particularly susceptible to this problem.
Every habeas petitioner has lost his or her case in the state trial and appellate courts. After losing,
it is easy to conjecture things the defense counsel could have done differently and to suppose they
would have made a difference. But to prevail on a claim of ineffective assistance of trial counsel
a defendant must complain to the courts about what particular things the trial attorney did or did
not do that constituted prejudicial deficient performance.
A pleading that merely says to a court “I was denied due process and a fair trial” does not
fairly present a claim. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose,
811 F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing
Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere use of the words “due process
and a fair trial by an impartial jury” are insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6th
Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)(same). “A lawyer need not
develop a constitutional argument at length, but he must make one; the words ‘due process’ are
not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).
Similarly, merely saying “My lawyer did a bad job” does not suffice, even when dressed
up in the Sixth Amendment language of ineffective assistance of counsel. If a petitioner’s claims
in federal habeas rest on different theories than those presented to the state courts, e.g., different
18
ways in which defense counsel did not perform competently, they are procedurally defaulted.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th
Cir. 2002), citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594,
607, 619 (6th Cir. 2001)(“relatedness” of a claim will not save it).
In this case Williams did not present the ineffective assistance of trial counsel claims in his
Petition on direct appeal. Instead, he presented those claims as underlying his ineffective
assistance of appellate counsel claim when he filed his Application to Reopen. In denying his
Application, the Second District applied against him Ohio’s criminal res judicata doctrine
announced in State v. Perry, supra:
¶ 10 Where the issue of trial counsel's ineffective assistance was
reviewed on direct appeal and found to be without merit, further
instances of trial counsel's alleged ineffectiveness raised in support
of the appellant's application for reopening his appeal are res
judicata and cannot support a claim for ineffective assistance of
appellate counsel. See State v. Mullins, 76 Ohio St.3d 129, 666
N.E.2d 1117 (1996).
(Decision and Entry, State Court Record, ECF No. 6, Ex. 27, PageID 268). The Perry doctrine
has been repeatedly upheld by the Sixth Circuit as an adequate and independent state ground of
decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th
Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-
22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v.
Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
The Second District also rejected on the merits of the 26(B) Application those underlying
claims of ineffective assistance of trial counsel which could be distinguished from the claims raised
on direct appeal:
19
¶ 14. Further, even to the extent that Williams's current allegations
may be distinguishable from his prior ineffective assistance of
counsel claims, those allegations still fall short of demonstrating that
Williams's trial attorney provided ineffective assistance. Williams
has filed his own affidavit in order to comply with App.R.
26(8)(2)(d)'s requirement of a sworn statement. However, he has
offered no cognizable evidence to corroborate his affidavit's
assertion that an independent eyewitness who testified at trial "could
not have heard the gunshots and s[een] the victim fall to the ground"
as that witness claimed. (Affidavit of Demetrius Williams
("Williams Affid."), ¶ 6). Further, Williams has presented no
evidence to substantiate his assertions that a bullet recovered from
the hood of a car at the shooting scene and the testimony of two
other eyewitnesses could have proven "that someone else was
shooting." (Id., ¶ 4).
(Decision and Entry, State Court Record, ECF No. 6, Ex. 27, PageID 270-71).
In his Traverse, Williams presents additional claims of ineffective assistance of trial
counsel:
The failure of trial counsel to suppress the multitude of pictures from
the crime scene and the autopsy were extremely prejudicial to Mr.
Williams’ case and sought only to enflame the jury. Furthermore,
the failure of trial counsel to suppress Mr. Williams’ statements
detrimentally affected the outcome of his case. Mr. Williams was
incapable of waiving his Miranda Rights due to his mental capacity
at the time of the questioning.
(Traverse, ECF No. 10, PageID 1263). The gruesome pictures claim was raised on direct appeal
as a trial court error rather than ineffective assistance of trial counsel as the First Assignment of
Error and decided on the merits. State v. Williams, supra, ¶ 28. The Court of Appeals explicitly
recognized trial counsel moved to exclude these photographs. Id. at ¶ 35. Because the photographs
would not have been excluded if counsel persisted in the motion to exclude, it does not constitute
ineffective assistance of trial counsel to fail to persist.
Regarding pre-trial identification, counsel filed and then withdrew motions to suppress.
20
The Second District held this was not ineffective assistance of trial counsel:
¶ 44 With respect to efforts to suppress evidence, Williams again
does not identify what evidence he believes his attorney should have
tried to exclude but did not. As discussed above, defense counsel did
attempt, albeit unsuccessfully, to prevent the admission of certain
photographs of Jackson's body. Although Williams's trial attorney
voluntarily withdrew other motions to suppress, the record confirms
that challenging Williams's identification was not a viable defense
in this case, where Williams was well known to the surviving
shooting victim (Lattimore) and at least one other eyewitness
(Vaughn), both of whom identified him as the shooter. His trial
attorney also reasonably assessed the statements Williams made
during his police interview to be not significantly probative of guilt.
Williams has not demonstrated that the outcome of his trial would
have been changed by further efforts to exclude evidence presented
by the State.
State v. Williams, supra.
In the Petition, Williams also claims his trial attorney should have moved to suppress the
in-court identification made during trial (ECF No. 1-2, PageID 22). He argues
17) “It is obviously suggestive to ask a witness to identify a
perpetrator in the courtroom when it is clear who is the defendant.”
U.S. v. Rogers, 126 F.3d 655 (5th Cir. 1997). Citing U.S. v.
Archibald, 734 F.2d 938, 941, 943 (2d Cir. 1984); U.S. v. Hill, 967
F.2d 226, 232 (6th Cir. 1992); U.S. v Rundell, 858 F.2d 425, 427
(8th Cir. 1988).
Id. The testimony of Rino Lattimore, the surviving victim, begins at Trial Transcript ECF No. 6-
3, PageID 695. Lattimore testifies that he has known Williams all his life. Id. They were best
friends prior to this incident. Id. Prior to this incident, he saw Williams every day. Id. He then
pointed Williams out in the courtroom. Id. at PageID 696. The trial court noted for the record that
Lattimore had identified Williams and defense counsel made no objection. Id.
The record does not reflect where Petitioner was seated at the time but appears to indicate
he was not wearing distinctive jail clothing; he had a constitutional right not to appear before the
21
jury in such clothing, and the Court assumes Judge Skelton, himself a successful defense attorney
for many years before becoming a judge, would have been particularly sensitive on this point. The
Magistrate Judge also assumes, although no proof is offered, that Petitioner was seated at a table
with his attorney rather than in the well of the courtroom, since this is so customary an arrangement
at trial in Ohio.
In United States v. Hill, 967 F.2d 226 (6th Cir. 1992), relied on by Williams, the Sixth
Circuit held that the analysis in Neil v. Biggers, 409 U.S. 188 (1972), which applies to pre-trial
identifications also applies to in-court identifications. 967 F. 2d at 232. Judge Boggs noted the
observation of the Rundell court “that the eyewitnesses' inherent knowledge that the person seated
at counsel table was the defendant made the in-court identification impermissibly suggestive”. Id.
Nonetheless the Sixth Circuit allowed the in-court identification in Hill, apply the reliability prong
of the Biggers analysis, even though it had been five years since the crime.
In Biggers the Supreme Court held:
[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of attention, the
accuracy of the witness' prior description of the criminal, the level
of certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation.
409 U.S. at 199; accord, Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Magistrate Judge
accepts the premise that having an in-court identification made of a person seated as defendants
usually are in American criminal trials is inherently suggestive. But applying the Biggers
reliability factors, the Court finds no violation of Williams’ due process rights by Lattimore’s in-
court identification. There is no evidence to contradict Lattimore’s testimony that he and Williams
were best friends until this incident, that they had grown up together, and saw each other every
22
day. It is difficult to imagine a more reliable identification. Certainly the in-court identification
in Hill, which occurred five years after the crime and made by someone to whom the defendant
was a stranger, scored lower on the reliability tests. Because a motion to suppress the in-court
identification here would certainly have failed, defense counsel did not perform deficiently in
failing to object.
In each instance when it was presented with an ineffective assistance of trial counsel or
ineffective assistance of appellate counsel claim, the Second District Court of Appeals applied the
proper standard from Strickland. In each instance its application was objectively reasonable.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
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.
January 18, 2022.
s/ Michael R. Merz
United States Magistrate Judge
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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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