Opinion

Saxton v. Warden Noble Correctional Institution

Court: District Court, S.D. Ohio
Filed: Apr 20, 2022
Cited by: 0 cases
Authority: More cited than 28.3%

“An argument that ineffective assistance of counsel should excuse a procedural default is treated differently than a free-standing claim of ineffective assistance of counsel. The latter must meet the higher AEDPA standard of review, while the former need not.”

How later courts described this case

“An argument that ineffective assistance of counsel should excuse a procedural default is treated differently than a free-standing claim of ineffective assistance of counsel. The latter must meet the higher AEDPA standard of review, while the former need not.”
holding that plain error analysis is “viewed as a court’s right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a review of the merits”
“Failure to adhere to the firmly-established Ohio contemporaneous objection rule is an independent and adequate state ground of decision.”
reiterating that the Supreme Court “has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance of success” to avoid a finding of deficient performance under Strickland

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TROY G. SAXTON,

Petitioner, Case No. 2:21-cv-4019

v. Judge Sarah D. Morrison

Magistrate Judge Kimberly A. Jolson

WARDEN, NOBLE CORRECTIONAL

INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and

Columbus’ General Order 14-1 regarding assignments and references to United States Magistrate

Judges.

This matter is before the Court to consider the Petition (Doc. 1), Respondent’s Return of

Writ (Doc. 9), Petitioner’s Traverse (Doc. 12), and the state court record (Doc. 8). For the reasons

that follow, it is RECOMMENDED that this action be DISMISSED.

I. BACKGROUND

On August 25, 2017, in case number 17CR4696, a Franklin County, Ohio Grand Jury

returned a six-count Indictment charging Petitioner with multiple drug offenses. Specifically,

Petitioner was charged with one count of possession of cocaine as a major drug offender (MDO)

in violation of Ohio Revised Code § 2925.11, a first-degree felony (count one); one count of

possession of heroin as a MDO in violation of R.C. § 2925.11, a first-degree felony (count two);

one count of aggravated possession of drugs in violation of R.C. § 2925.11, a fifth-degree felony

(count three); one count of possession of cocaine in violation of R.C. § 2925.11, a first-degree

felony with an accompanying one-year firearm specification (count four); one count of possession

of heroin in violation of § 2925.11, a second-degree felony, with an accompanying one-year

firearm specification (count five); and one count of having a weapon while under disability in

violation of R.C. § 2923.13, a third-degree felony (count six).

The charges against Petitioner followed the execution of two search warrants in January

2017. One warrant related to a search of 2100 Courtright Road, an auto-body shop co-owned by

Petitioner, and the other related to Petitioner’s residence at 6144 Stornoway Drive. It is the two

counts of possession of cocaine (counts one and four), and the two counts of possession of heroin

(counts two and five) that are at issue in this case.

The Ohio Tenth District Court of Appeals summarized the facts of the case as follows:

On November 28, 2017, Saxton filed a motion to suppress, arguing the officers

lacked probable cause to obtain the two search warrants. Specifically, Saxton

argued the warrant for 2100 Courtright Road lacked sufficient particularity; the

affidavit in support of the search warrant did not establish a nexus between 6144

Stornoway Drive and illegal activity; that the information in the search warrant

affidavit had become stale; that the affidavit was deliberately or recklessly

misleading; and that officers did not rely on the warrant in good faith. The state

opposed the motion, and the trial court set the matter for a hearing.

At the suppression hearing on May 17, 2018, the state introduced copies of the

search warrants for both Courtright Road and Stornoway Drive and the affidavit

used to obtain both search warrants. The affidavit was signed by Detective Earl

Grinstead of the Whitehall Police Department. In it, Detective Grinstead averred

that four separate informants had contacted the narcotics unit of the Whitehall

Police with information regarding a large-scale narcotics trafficking operation

occurring at the auto body shop located at 2100 Courtright Road. The informants

implicated Saxton and Malcolm Sunderland, the co-owners of the body shop, as

well as other individuals associated with the body shop.

The affidavit further stated that based on the information from the informants,

Whitehall police set up surveillance of 2100 Courtright Road and observed Saxton

regularly come and go from the west door of the body shop. Police observed Saxton

drive a GMC Yukon registered in his daughter’s name, and a records check

revealed Saxton’s daughter had criminal cases in 2010 and 2014 involving drugs

and a cash seizure of over $40,000. Detective Grinstead averred in the affidavit that

throughout the course of the surveillance, police officers witnessed a “constant

flow” of traffic from both pedestrians and vehicles and interactions that resembled

drug transactions in the parking lot of the body shop.

Detective Grinstead further averred that police checked Saxton’s name and the

2100 Courtright Road address through their records system, and both had been

“flagged” by the high intensity drug trafficking area task force (“HIDTA”).

Specifically, the affidavit stated that a March 2016 investigation found Saxton

“responsible” for the distribution of “multiple kilograms of cocaine” at the 2100

Courtright Road location. (Aff. in Support of Warrant to Search at 2.) The 2016

investigation also linked the location of 6144 Stornoway Drive to Saxton, which

HIDTA investigators believed to be Saxton’s residence. The HIDTA investigation

allowed HIDTA agents to identify several “source dealers” linked to Saxton, and

HIDTA agents recovered $36,000 in cash that Saxton had given to a source dealer

for a kilogram of cocaine. (Aff. in Support of Warrant to Search at 3.) Detective

Grinstead then averred in the affidavit that an “indictment for conspiracy to

distribute is pending against Troy Saxton” as a result of the HIDTA investigation.

(Aff. in Support of Warrant to Search at 3.)

The affidavit also stated that on January 2, 2017, Whitehall police officers set up a

controlled buy of crack cocaine at 2100 Courtright Road using an informant. The

informant successfully purchased crack in the parking lot of the body shop from a

person named Nick. Further, the affidavit stated that within 72 hours prior to the

affidavit, Whitehall police officers instructed an informant to arrange a controlled

buy of cocaine from Saxton at the body shop at 2100 Courtright Road. Prior to the

transaction, officers witnessed Saxton arrive at the body shop and enter through the

west door. A few minutes later, officers observed Saxton come back outside, meet

the informant in the parking lot, and escort the informant back inside the body shop.

The informant successfully purchased cocaine while inside the body shop.

Following the controlled drug transaction, the affidavit stated Whitehall officers

followed Saxton to 6144 Stornoway Drive where he parked his vehicle in the

“designated parking spot” for that address and entered the apartment through the

rear door. (Aff. in Support of Warrant to Search at 5.) Detective Grinstead averred

that he believed the proceeds from the drug transaction would be at Saxton’s

residence along with drugs and drug-related assets. Additionally, Detective

Grinstead noted that the prior HIDTA investigation “shows [Saxton] in and out of

[6144 Stornoway Drive] prior to and after suspected drug transactions.” (Aff. in

Support of Warrant to Search at 5.) Finally, the affidavit noted Saxton’s prior

criminal history includes several convictions for drug-related offenses, as well as

convictions for domestic violence and assault.

* * *

Following the hearing, the trial court denied Saxton’s motion to suppress in a May

31, 2018 decision and entry. Specifically, the trial court found both search warrants

were valid and contained probable cause to search both the body shop on Courtright

Road and the apartment on Stornoway Drive. * * *

Subsequently, on June 18, 2018, Saxton entered pleas of no contest to all six counts

of the indictment. At the plea hearing, the state provided the following facts: when

police apprehended Saxton, he had $635 in cash on his person as well as pills in his

jacket pockets and in the console of his vehicle. The search of Stornoway Drive

yielded approximately 267 grams of cocaine, 36 grams of heroin, 2,000 grams of

“brick-sized” cocaine, another 830 grams of heroin, digital scales, and a drug press.

(June 18, 2018 Tr. at 7-8.) Additionally, the search of Courtright Road yielded 68

grams of cocaine, 45 grams of heroin, a digital scale, a notebook with names and

addresses, 31 individually wrapped pills, 3 grams of crack cocaine, and a loaded

pistol in a crate in the mechanic’s bay of the body shop. The trial court accepted

Saxton’s plea, found him guilty of all six offenses, and sentenced him to an

aggregate prison term of 18 years, journalizing his conviction in a November 1,

2018 judgment entry.

State v. Saxton, No. 18AP-925, 2019 WL 6974455, *1-3 (Ohio App. 10th Dist. Dec. 19, 2019).

Following the denial of Petitioner’s motion to suppress, Petitioner entered a no contest plea

to all six counts of the Indictment. The trial court sentenced Petitioner to an aggregate prison term

of eighteen years. Specifically, the trial court sentenced Petitioner to eleven years as to both counts

one (possession of cocaine) and two (possession of heroin), to run concurrently. The court

sentenced Petitioner to an additional seven years—twelve months on count three (aggravated

possession of drugs), three years plus a one-year firearm specification on count four (possession

of cocaine), and two years on count five (possession of heroin)—to run consecutively to each other

and count one. The court sentenced Petitioner to twelve months imprisonment on count six

(weapon under disability) to run concurrently to count one. (Doc. 8, at PAGEID # 100.)

Petitioner took a timely appeal, raising three assignments of error:

First Assignment of Error: The trial court erred in denying defendant-appellant’s

motion to suppress heroin, cocaine, and a firearm seized by law enforcement

officers pursuant to search warrants that were issued and executed in violation of

his rights under the Fourth and Fourteenth Amendments to the United States

Constitution.

Second Assignment of Error: The trial court’s failure to merge the two counts of

possession of cocaine and the two counts of possession of heroin violated

defendant-appellant’s rights under the double jeopardy clause of the Fifth and

Fourteenth Amendments to the United States Constitution, and Article 1, Section

10 of the Ohio Constitution.

Third Assignment of Error: Defendant-appellant was denied his right to the

effective assistance of counsel as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution.

On December 19, 2019, the Tenth District Court of Appeals affirmed the judgment of the trial

court. State v. Saxton, No. 18AP-925, 2019 WL 6974455 (Ohio App. 10th Dist. Dec. 19, 2019).

Petitioner sought review by the Ohio Supreme Court. On April 28, 2020, the Ohio Supreme Court

declined to exercise jurisdiction and dismissed the appeal. State v. Saxton, 158 Ohio St.3d 1488

(2020).

II. HABEAS PROCEEDINGS

On July 26, 2021, Petitioner, through counsel, filed the instant federal habeas petition,

raising the following two claims for relief:

Ground One: The state court’s failure to merge multiple counts involving the

simultaneous possession of the same drug violated Petitioner’s rights under the

Double Jeopardy Clause of the 5th/14th Amendments.

Supporting Facts: The state prosecuted Petitioner for counts of possession of heroin

and possession of cocaine in respect to quantities of each drug seized from his

residence, and for additional counts of possession of heroin and possession of

cocaine in respect to quantities of each drug seized from his business. The seizures

occurred on the same day. The state court ordered that the prison terms imposed

for the former (residence) pair of counts be served consecutively to the prison terms

imposed for the latter (business) pair of counts. As a consequence, Petitioner was

illegally subjected to multiple punishments for the same crime.

Ground Two: Trial counsel’s failure to request merger of multiple counts involving

simultaneous possession of the same drug violated Petitioner’s 6th/14th

Amendment right to effective assistance of counsel.

Supporting Facts: Trial counsel failed to ask the trial judge to merge the pair of

possession of heroin counts relating to the simultaneous seizures from Petitioner’s

residence and business. This omission was so serious as [to] constitute

constitutionally deficient performance. This omission was prejudicial. There is a

reasonable probability that Petitioner would not have been subjected to multiple

punishments for the same crimes if trial counsel had made a timely request for

merger of the counts.

(Doc. 1, at PAGEID # 5, 7.)

On December 23, 2021, Respondent filed a Return of Writ. (Doc. 9.) Respondent argues

that Petitioner’s first ground for relief is procedurally defaulted, because Petitioner failed to request

merger of the various counts at the time of sentencing. (Id. at PAGEID # 526.) The state court

enforced this default, Respondent argues, by analyzing this ground for relief under a plain error

standard. (Id.) Next, Respondent asserts that Petitioner’s claim of ineffective assistance of trial

counsel for failing to request merger—which is offered by Petitioner as both cause and prejudice

to excuse the default of count one and as a freestanding ground for relief in count two—also lacks

merit. Finally, Respondent contends that Petitioner’s first ground for relief lacks merit, because

the various drug offenses involved separate geographic locations and were not entitled to merger.

(Id. at 529.)

III. DISCUSSION

Before considering the merits of Petitioner’s habeas claims, the Court must first determine

whether Petitioner has cleared certain procedural hurdles. Respondent says that Petitioner has not,

and that Petitioner’s first ground for relief is barred by procedural default. The Court agrees.

A. AEDPA and Procedural Default

Because this is a habeas corpus case, provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub.L. 104-132, 110 Stat. 1214, apply. See Lindh v. Murphy,

521 U.S. 320, 336 (1997). The AEDPA limits the circumstances under which a federal court may

grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in a state

court proceeding. Specifically, under AEDPA, a federal court shall not grant a writ unless the

state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). Section

2254(d)(1) circumscribes a federal court’s review of claimed legal errors, while § 2254(d)(2)

places restrictions on a federal court’s review of claimed factual errors.

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and in order to prevent needless friction between the state and federal

courts, a state criminal defendant with federal constitutional claims is required to first present those

claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so,

but still has an avenue open to present the claims, then the petition is subject to dismissal for failure

to exhaust state remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard

v. Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner has failed to exhaust claims but

would find those claims barred if later presented to the state courts, “there is a procedural default

for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Over time, the term “procedural default” has come to describe a situation where a person

convicted of a crime in a state court fails (for whatever reason) to properly present a particular

claim to the highest court of the state so that the state has a fair chance to correct any errors made

during the trial or the appeal, before a federal court intervenes in the state criminal process. This

“requires the petitioner to present ‘the same claim under the same theory’ to the state courts before

raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004)

(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly

presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives the

state courts a fair opportunity to rule on the federal law claims being asserted. That means that if

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

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

Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law

which were not resolved on the merits in the state proceeding due to [the] failure to raise them

there as required by state procedure” also cannot be resolved on their merits in a

federal habeas case – that is, they are “procedurally defaulted.” It is well settled that “[a] common

example of a procedural default is a failure to raise a claim in state court in a timely manner.”

Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin

standard). First, the court must determine whether there is a state procedural rule that is applicable

to the petitioner’s claim and whether the petitioner failed to comply with the rule. Second, the

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

Third, the court must determine whether the forfeiture is an adequate and independent state ground

on which the state can rely to foreclose review of a federal constitutional claim. Finally, if the

court determines that a state procedural rule was not complied with and the rule has an adequate

and independent state ground, then the petitioner may still obtain review of his or her claims on

the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or

she was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. In order

to establish cause, a petitioner must show that “some objective factor external to the defense”

impeded the petitioner’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477

U.S. 478, 488 (1986). The petitioner bears the burden of showing cause and prejudice. Hinkle v.

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

1999)).

B. Application to Petitioner’s First Ground for Relief

In his first ground for relief, Petitioner argues that the state trial court violated his rights

under the Double Jeopardy Clause when the court failed to merge his two convictions for

possession of cocaine, and also failed to merge his two convictions for possession of heroin, which

were based on separate amounts of cocaine and heroin seized from his home and business. (Doc.

1, at PAGEID # 5.) In essence, Petitioner contends that he should have only one conviction for

possession of cocaine, based on the total weight of cocaine seized on the same day from his home

and business, and one conviction for possession of heroin, also based on the total weight of heroin

seized from the two locations. Petitioner argues:

In the direct appeal, Saxton argued that Division (C) of Ohio Rev. Code §2925.11

evinces a legislative intent to calibrate the seriousness of a controlled substance

violation and the corresponding punishment according to the type of drug (e.g.

cocaine, heroin, marijuana) and the aggregate quantity of drug whether or not it is

stored in one or more stashes. He maintained that a practice of charging a drug

offender with multiple counts of possession of the same controlled substance based

on the seizure of different stashes of the drug in different locations on the same day

is inconsistent with this intent.

(Doc. 12, at PAGEID # 540.) Under Petitioner’s theory, because the total weight of the cocaine

and heroin seized from his residence qualified him as a major drug offender and resulted in felony-

one offense levels, he should not have been subject to any additional penalties for the separate

amounts of cocaine and heroin seized from his body shop, which were the subject of counts four

and five, and which resulted in consecutive prison time. Basically, Petitioner wants a free pass on

the body shop drugs.

Petitioner made this argument on direct appeal. But the Tenth District Court of Appeals

determined that Petitioner failed to properly preserve the claim because he failed to request merger

of the counts at sentencing. The court of appeals reviewed the claim for plain error:

In his second assignment of error, Saxton argues the trial court erred in failing to

merge his two cocaine possession counts and his two heroin possession counts.

Saxton does not argue the possession counts for the different drugs should merge,

just that the possession counts for the same drugs should merge with each other. As

the state notes, Saxton did not raise any merger issue in the trial court, and thus our

review is limited to plain error. State v. Adams, 10th Dist. No. 13AP-783, 2014-

Ohio-1809, ¶ 6, citing State v. Taylor, 10th Dist. No. 10AP-939, 2011-Ohio-3162,

¶ 34. A trial court’s failure to merge convictions on allied offenses constitutes plain

error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.

In reviewing a trial court’s determination of whether a defendant’s offenses should

merge pursuant to the multiple counts statute, an appellate court reviews the trial

court’s R.C. 2941.25 determination de novo. State v. S.S., 10th Dist. No. 13AP-

1060, 2014-Ohio-5352, ¶ 28, citing State v. Williams, 134 Ohio St.3d 482, 2012-

Ohio-5699, ¶ 1. “‘Appellate courts apply the law to the facts of individual cases to

make a legal determination as to whether R.C. 2941.25 allows multiple convictions.

That facts are involved in the analysis does not make the issue a question of fact

deserving of deference to a trial court.’” S.S. at ¶ 28, quoting Williams at ¶ 25.

R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a

separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them.

Saxton argues the trial court erred when it failed to merge the offenses of possession

of cocaine as a major drug offender and possession of cocaine as well as for failing

to merge the offense of possession of heroin as a major drug offender and

possession of heroin. “When the defendant’s conduct constitutes a single offense,

the defendant may be convicted and punished only for that offense. When the

conduct supports more than one offense, however, a court must conduct an analysis

of allied offenses of similar import to determine whether the offenses merge or

whether the defendant may be convicted of separate offenses.” State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, ¶ 24.

“To determine whether two offenses are allied offenses that merge into a single

conviction, a court must evaluate three separate factors: the conduct, the animus,

and the import.” State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 42,

citing Ruff at paragraph one of the syllabus. “If any of the following is true, the

offenses cannot merge and the defendant may be convicted and sentenced for

multiple offenses: (1) the offenses are dissimilar in import or significance—in other

words, each offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate animus or

motivation.” Ruff at ¶ 25. Ultimately, if the harm resulting from each offense is

separate and identifiable, the offenses are of dissimilar import and do not

merge. Harris at ¶ 42, citing Ruff at ¶ 25.

In conducting an analysis of whether two offenses are allied offenses of similar

import, the Supreme Court of Ohio directs an appellate court to look beyond the

statutory elements and to consider the defendant’s conduct. “A trial court and the

reviewing court on appeal when considering whether there are allied offenses that

merge into a single conviction under R.C. 2941.25(A) must first take into account

the conduct of the defendant. In other words, how were the offenses

committed?” Ruff at ¶ 25.

Here, Saxton argues we need not engage in the Ruff analysis because R.C. 2925.11,

the possession statute, indicates a legislative intent to calibrate the punishment for

the offense based on the aggregate drug weight. In support of this argument, Saxton

relies on State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, which states it is

not necessary to resort to an analysis under the multiple counts statute when the

legislature’s intent on multiplicity of indictments “is clear from the language of the

[offense] statute.” Miranda at ¶ 10. We are mindful that Miranda predates Ruff, but

we nonetheless will address Saxton’s argument about aggregating the quantities of

drugs.

Saxton was convicted of one count of possession of cocaine as a major drug

offender and one count of possession of cocaine as a first-degree felony, as well as

one count of possession of heroin as a major drug offender and one count of

possession of heroin as a second-degree felony. All of these offenses are violations

of R.C. 2925.11. To trigger major drug offender status, which carries a mandatory

11-year prison term, an offender must possess an amount that equals or exceeds

100 grams of cocaine or 100 grams of heroin. R.C. 2925.11(C)(4)(f); R.C.

2925.11(C)(6)(f). Separately, for possession of cocaine to be a first-degree felony

but without major drug offender status, an offender must possess an amount of

cocaine that equals or exceeds 27 grams but is less than 100 grams. R.C.

2925.11(C)(4)(e). Additionally, for possession of heroin to be a second-degree

felony an offender must possess an amount of heroin that equals or exceeds 10

grams but is less than 50 grams. R.C. 2925.11(C)(6)(d).

Saxton essentially argues that once the state is able to charge an offender as a major

drug offender, all of the possession charges for that same drug must necessarily

aggregate into one amount and the state cannot convict the offender of additional

possession counts. However, as the state notes, the separate charges in the

indictment relate to the separate searches of Stornoway Drive and Courtright Road.

The amount of cocaine and heroin seized at Stornoway Drive, on its own, was

enough to trigger major drug offender status for each of those drugs: more than

2,000 grams of cocaine and more than 830 grams of heroin. At a separate

geographic location, Courtright Road, police then seized additional amounts of

cocaine and heroin in amounts sufficient to charge Saxton with first-degree felony

possession of cocaine and second-degree felony possession of heroin: specifically,

68 grams of cocaine and 45 grams of heroin. Thus, the state did not rely on

aggregating the quantities of the drugs seized at the two locations in order to

authorize charging Saxton as a major drug offender. Despite Saxton’s Miranda

argument, we do not read R.C. 2925.11 as evincing an intent to preclude additional

possession charges once the major drug offender threshold has been reached and

the offender possessed the additional drugs at a separate geographic location.

Accordingly, we do not agree with Saxton that the Ruff analysis does not apply

here.

The second prong of the Ruff analysis provides that offenses do not merge if the

offenses were committed separately. Ruff at ¶ 25. Here, the amount of cocaine and

heroin supporting the major drug offender charges was separately packaged, in a

separate geographic location, recovered at separate times, and as a result of separate

searches than the non-major drug offender possession charges. Under these

circumstances, we find that the two sets of offenses were committed

separately. State v. Stoermer, 2d Dist. No. 2017-CA-93, 2018-Ohio-4522, ¶ 27-28

(where the same drug was separately packaged and found in “two geographically

separate locations” at separate times and as a result of separate searches, the two

counts for possession of the same drug do not merge). Accordingly, the offenses

were not allied offenses, and Saxton may be convicted and sentenced for both sets

of offenses. The trial court, therefore, did not plainly err when it did not treat

Saxton’s two cocaine possession convictions or his two heroin possession

convictions as allied offenses. We overrule his second assignment of error.

Saxton, 2019 WL 6974455, at *8-10.

Here, Petitioner has waived his claim that he was improperly sentenced on allied offenses

of similar import in violation of the Double Jeopardy Clause because he failed to make a

contemporaneous objection to the lack of merger—and failed to request merger—at sentencing.

The Ohio Court of Appeals enforced that waiver by finding Petitioner failed to preserve the claim

and reviewing it for plain error only. Ohio’s contemporaneous objection rule has been explained

many times. It “requires the parties to preserve errors for appeal by calling them to the attention

of the trial court at a time when the error could be avoided or corrected.” Twyford v. Bradshaw,

No. 2:03-cv-906, 2017 WL 4280955, at *19 (S.D. Ohio Sept. 27, 2017) (Marbley, Chief D.J.). It

has been held time and again that the enforcement of this rule is an adequate and independent state

ground of decision sufficient to bar federal habeas relief. See, e.g., Hand v. Houk, 871 F.3d 390,

417 (6th Cir. 2017) (citing Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012) (“Failure to

adhere to the firmly-established Ohio contemporaneous objection rule is an independent and

adequate state ground of decision.”)); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011)

(“Ohio’s contemporaneous objection rule is a firmly established procedural rule that is an adequate

and independent state ground to foreclose federal relief.”); Smith v. Bradshaw, 591 F.3d 517, 522

(6th Cir. 2010) (same).

The state appellate court’s plain error review does not save Petitioner from this procedural

default. This is because “[a] plain error analysis is not tantamount to a review on the merits,”

meaning the state appellate court’s review for plain error does not imply it overlooked Petitioner’s

procedural default. Scott v. Mitchell, 209 F.3d 854, 865 (6th Cir. 2000); see also Lundgren v.

Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (holding that plain error analysis is “viewed as a court’s

right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a review

of the merits”). Said differently, an appellate court’s alternative ruling on the merits does not

remove the procedural default. Wade v. Timmerman-Cooper, 785 F.3d 1059, 1076 (6th Cir. 2015);

Adams v. Wainwright, No. 20-3646, 2022 WL 808036, *4–5 (6th Cir. Mar. 17, 2022) (citing

Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)).

In sum, Petitioner’s first ground for relief is procedurally defaulted.

C. Cause and Prejudice

In an attempt to overcome his procedural default, Petitioner offers the ineffective

assistance of trial counsel as cause and prejudice to excuse the default of his first ground for relief.

(Doc. 12, at PAGEID # 545.) Specifically, Petitioner asserts that his trial counsel was ineffective

for failing to request merger and failing to object to the imposition of separate and consecutive

sentences on the two counts of possession of cocaine and the two counts of possession of heroin,

in violation of the Double Jeopardy Clause. Petitioner argues his trial counsel had a duty to litigate

the potentially meritorious merger claim at the time of sentencing, and counsel’s failure to do so

constitutes deficient performance. (Id. at PAGEID # 546.) According to Petitioner, “[t]he decision

to request merger has potential upside, but absolutely no downside. There was no tactical or

strategic reason for not making the request.” (Id.) This also happens to be Petitioner’s second

ground for relief.

To begin, “Petitioner has the burden of showing cause and prejudice to overcome a

procedural default.” Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (internal citation omitted)

(citing Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999)). The ineffective assistance of counsel

may constitute cause for a procedural default, so long as that claim itself is not procedurally

defaulted. See Gross v. Warden, 426 F. App’x 349, 360 (6th Cir. 2011) (citing Edwards v.

Carpenter, 529 U.S. 446, 451 (2000)). Here, there is no Edwards v. Carpenter issue, because

Petitioner raised this same ineffective assistance of trial counsel claim on direct appeal as his third

assignment of error. The Tenth District Court of Appeals considered the claim on the merits and

it is properly before the Court on habeas review.

The Supreme Court set forth the legal principles governing claims of ineffective assistance

of counsel in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a petitioner

claiming the ineffective assistance of counsel to demonstrate both that his counsel’s performance

was deficient and that he suffered prejudice as a result. Id. at 687; Shinn v. Kayer, 141 S.Ct 517,

522–23 (2020). A petitioner shows deficient performance by demonstrating “that counsel’s

representation fell below an objective standard of reasonableness.” Davis v. Lafler, 658 F.3d 525,

536 (6th Cir. 2011) (citing Strickland). To make such a showing, a petitioner “must overcome the

‘strong [] presum[ption]’ that his counsel ‘rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.’” Hale v. Davis, 512 F. App’x 516,

520 (6th Cir. 2013) (quoting Strickland, 466 U.S. at 690). “To avoid the warping effects of

hindsight, [courts must] ‘indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir.

2009) (quoting Strickland, 466 U.S. at 689).

The prejudice prong “requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is unreliable.” Strickland, 466 U.S. at 687. The

movant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 703. Counsel is constitutionally

ineffective only if counsel’s deficient performance “caused the defendant to lose what he otherwise

would probably have won” and it must have been “so manifestly ineffective that defeat was

snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th

Cir. 1992). Because Petitioner must satisfy both prongs of the Strickland test to demonstrate

ineffective assistance of counsel, if the Court determines that Petitioner has failed to satisfy one

prong, it need not consider the other. Strickland, 466 U.S. at 697 (“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.”).

Here, the Tenth District Court of Appeals skipped straight to Strickland’s second step,

concluding Petitioner failed to establish prejudice resulting from trial counsel’s failure to request

merger of the various counts at sentencing. In rejecting Petitioner’s claim, the court of appeals

held, in pertinent part:

Saxton contends his trial counsel was ineffective in . . . failing to request merger of

the two cocaine possession counts with each other and the two heroin possession

counts with each other.

* * *

Saxton’s argument reflects the argument he made under his second assignment of

error on appeal. Because Saxton’s trial counsel did not raise the merger issue in the

trial court, we reviewed Saxton’s argument under a plain error standard, and, in

disposing of that argument, we concluded Saxton was unable to demonstrate plain

error. “‘[W]here the failure to object does not constitute plain error, the issue cannot

be reversed by claiming ineffective assistance of counsel.’” State v. Roy, 10th Dist.

No. 14AP-223, 2014-Ohio-4587, ¶ 20, quoting State v. Carson, 10th Dist. No.

05AP-13, 2006-Ohio-2440, ¶ 51. Having previously held, in addressing Saxton’s

second assignment of error, that the trial court did not plainly err when it did not

merge his convictions, we conclude Saxton’s argument in this regard fails to satisfy

the second prong of the Strickland test. State v. Abdullahi, 10th Dist. No. 18AP-

222, 2018-Ohio-5146, ¶ 49.

Thus, because Saxton cannot satisfy the Strickland test, Saxton’s claim of

ineffective assistance of counsel must fail.

Saxton, 2019 WL 6974455, at *10–11.

Although the court of appeals rejected Petitioner’s ineffectiveness claim on the merits, this

Court conducts a de novo review of an ineffectiveness claim when determining whether Petitioner

can establish cause for a procedural default. See Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir.

2020) (citing Hall v. Vasbinder, 563 F.3d 222, 236–37 (6th Cir. 2009) (“An argument that

ineffective assistance of counsel should excuse a procedural default is treated differently than a

free-standing claim of ineffective assistance of counsel. The latter must meet the higher AEDPA

standard of review, while the former need not.”)). In so doing, the Court concludes that Petitioner

cannot satisfy either the deficient performance or the prejudice prong of the Strickland test.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution

affords a defendant three basic protections: “It protects against a second prosecution for the same

offense after acquittal. It protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the same offense.” Brown v. Ohio

432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The

Double Jeopardy Clause was held applicable to the States through the Fourteenth Amendment in

Benton v. Maryland, 395 U.S. 784, 794 (1969). Relevant to this case, “‘[w]ith respect to

cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature intended.’”

Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014) (quoting Missouri v. Hunter, 459 U.S. 359,

366 (1983)).

In Ohio, courts apply R.C. 2941.25, the allied offenses statute, to ascertain Ohio’s

legislative intent. Jackson, 745 F.3d at 212. The Sixth Circuit has held that an Ohio court of

appeals’ analysis of a double jeopardy claim that is limited to the application of R.C. 2941.25 is

“entirely dispositive of the federal double jeopardy claim.” Id. at 210. That is, “[w]hen assessing

the intent of a state legislature, a federal court is bound by a state court’s interpretation of that

state’s own statutes.” Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013). See also Jackson, 745

F.3d at 211 (“What determines whether the constitutional prohibition against multiple punishments

has been violated is the state legislature’s intent concerning punishment.”); Scott v. Turner, No.

20-4028, 2021 WL 1327145, *2 (6th Cir. Feb. 4, 2021) (noting that the state-court’s R.C. 2941.25

determination on merger of allied offenses “is conclusive” on habeas review).

In reviewing Petitioner’s merger claim for plain error, the court of appeals looked to Ohio

Revised Code Section 2941.25 and determined that Petitioner’s two convictions for possession of

cocaine and the two convictions for possession of heroin were committed separately and were

subject to separate penalties. Citing State v. Ruff, 143 Ohio St.3d 114 (2015), the appellate court

noted that it must “look beyond the statutory elements and consider the defendant’s conduct.”

Saxton, 2019 WL 6974455, at *8. In so doing, the court opined that the separate amounts of

cocaine and heroin were seized from geographically distinct locations, and therefore did not

constitute allied offenses and did not merge: