# Saxton v. Warden Noble Correctional Institution

> District Court, S.D. Ohio · April 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10380006

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10380006

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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:
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 . . . . 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.

Saxton, 2019 WL6974455, at *9. This Court is bound by that determination. See Volpe, 708 F.3d
at 697. See also Delgadillo-Benuelos v. Warden, No. 2:20cv4996, 2021 WL 2291316, *10 (S.D.
Ohio June 4, 2021) (finding habeas court bound by state court determination that “the charges at
issue involve two separate offenses subject to separate penalties under Ohio law in view of the
discovery of drugs by police in separate locations at different times”).
In the Traverse, Petitioner argues that the court of appeals should not have analyzed the
merger issue under R.C. 2941.25 because the intent of the legislature to aggregate the drugs he
possessed was “clear on the face” of R.C. 2925.11, the offense statute for possession of drugs.
(Doc. 12, at PAGEID # 541). Petitioner cites State v. Pendelton, 163 Ohio St.3d 114 (2020), for

the proposition that Ohio’s drug possession statutes “provide a unique context for the application
of the Double Jeopardy Clause because the statutes create different felony levels and impose
different punishments ‘depending on the type and amount of illegal substance upon which a
criminal charge could be made.’” Id. at 119 (quoting State v. Taylor, 113 Ohio St.3d 297 (2007)).
But Pendleton is not instructive here for two reasons. First, Pendleton was decided after
Petitioner’s direct appeal. Second, Pendleton is factually and procedurally distinct. Pendleton
dealt with the interpretation of the meaning (and the weighing) of “compound, mixture,
preparation, or substance” as set forth in the statutory text of the offense statute. In that case, the
defendant had a bag containing a mixture of heroin and fentanyl, and the Ohio Supreme Court
considered whether the combined, total weight of all the drugs in the bag could be used to establish

the individual weight of each substance detected in the mixture. Id. In this case, however, R.C.
2941.25 is the appropriate vehicle for determining whether merger was appropriate because the
issue is whether Petitioner committed separate offenses by possessing drugs at separate
geographical locations. The emphasis here is on Petitioner’s conduct.
Because the Ohio Court of Appeals found that no plain error occurred where merger was
not required, trial counsel was not ineffective for failing to request an improper merger, as
Petitioner cannot establish the prejudice component of Strickland. To further analyze the issue,
the Court finds that even if the merger issue was close—which it was not, given the distinct
geographical separateness of the search locations—the record in this case also does not support a
finding of deficient performance on the part of trial counsel.
The Strickland Court cautioned that “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” 466 U.S. at 687. To that end, “[c]ounsel need not pursue every possible claim

or defense in order to avoid a finding of deficient performance.” Sylvester v. United States, 868
F.3d 503, 510 (6th Cir. 2017) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (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); see also Jalowiec v. Bradshaw, 657 F.3d 293, 321-22 (6th Cir.
2011) (stating that an “attorney is not required to raise a non-meritorious claim”). Rather, “only
when ignored issues are clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (citing
Gray v. Greer, 800 F.2d 544, 646 (7th Cir. 1986)).
The record reflects that counsel extensively litigated the search and seizure issues, seeking

to suppress the evidence seized at both the body shop and Petitioner’s residence. Counsel
challenged the scope of the warrants and the searches, the particularity of the supporting affidavit,
the description of the premises to be searched, the probable cause supporting the warrants, and
staleness. (Motion to Suppress, Doc. 8, at PAGEID # 33–42; Transcript of Suppression hearing,
Doc. 8, at PAGEID #389–466.) Counsel also challenged the inclusion of arguably misleading and
untruthful statements within the affidavit and succeeded in having certain information excised
from the search warrant affidavit. (Id.); Saxton, 2019 WL 6974455, at *6. When the motion to
suppress was denied, Petitioner entered a no-contest plea to the six charges in the Indictment, with
an eye towards appealing the suppression issues.
Having been unsuccessful on the motion to suppress, counsel went to work to get Petitioner
a sentence towards the lower range of the twelve to forty-six years that Petitioner faced. At the
sentencing hearing, counsel highlighted Petitioner’s acceptance of responsibility, noted his serious
medical issues, and argued that despite Petitioner’s history of a more than twenty-year involvement

with narcotics, Petitioner had made many attempts to engage in legal business opportunities
throughout his life in order to earn legitimate income. (Doc. 8-3, at PAGEID # 500–02.) Although
counsel did not request merger, specifically, counsel argued for a minimum sentence, noting that
all of the drugs were seized on the same date and resulted from just one investigation:
Twelve years is a long time. Troy is not going to get out early as the law
sits now, that is 12 years mandatory. We believe that is an ample punishment for
the crimes that he’s committed. These cases – even though there is multiple counts
in this indictment, this is all one investigation, this is all found on one date in time.
The predominant amount of drugs were found in one location, Your Honor.

(Id. at PAGEID # 503.) In sum, counsel did the best he could with the evidence against Petitioner.
Although the trial court did not impose a minimum sentence, the sentence was far closer to the
minimum than the maximum allowed by law, which is notable given the large quantities of drugs
involved in this case, as well as Petitioner’s prior criminal history.
Because the Court finds that counsel did not perform deficiently or to Petitioner’s
prejudice, Petitioner cannot establish cause and prejudice to excuse the procedural default of his
first ground for relief. Accordingly, the Undersigned RECOMMENDS that Petitioner’s first
ground for relief be DISMISSED with prejudice because it is procedurally defaulted.
D. Second Ground for Relief
Petitioner’s second ground for relief sets forth the same ineffective assistance of trial
counsel claim based on the failure to request merger that Petitioner offered as cause to excuse the
default of ground one. For the reasons already discussed, the Court finds that trial counsel did not
perform deficiently or to Petitioner’s prejudice and therefore, the Undersigned RECOMMENDS
that Petitioner’s second ground for relief be DISMISSED with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Undersigned RECOMMENDS that the Petition be

DISMISSED with prejudice. Further, Petitioner should not be granted a certificate of
appealability, as reasonable jurists would not debate whether Petitioner’s first ground for relief is
procedurally defaulted or whether trial counsel was ineffective for failing to request the merger of
certain counts. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Moody v. United States, 958
F.3d 485, 488 (6th Cir. 2020). The Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous, and therefore Petitioner should not be permitted to proceed in forma
pauperis on appeal.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised
that, if they intend to file an appeal of any adverse decision, they may submit arguments in any
objections filed, regarding whether a certificate of appealability should issue.

IT IS SO ORDERED.

Date: April 20, 2022 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380006. Public record. Not legal advice.