Ibrahim v. Schweitzer

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

MOHAMED IBRAHIM,

Petitioner, : Case No. 2:21-cv-5065

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

TOM SCHWEITZER, Warden,

Madison Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATION

This is a habeas corpus case brought by Petitioner Mohamed Ibrahim pursuant to 28 U.S.C.

§ 2254 with the assistance of counsel. Ibrahim seeks relief from his convictions in the Franklin

County Court of Common Pleas on two counts of felonious assault, one count of aggravated

burglary, eleven counts of kidnapping, and eleven counts of aggravated robbery with a firearm

specification, resulting in a combined sentence of fifty-seven years imprisonment (Petition, ECF

No. 1, PageID 1). The relevant pleadings are the Petition (ECF No. 1), the State Court Record

(ECF No. 8), the Return of Writ (ECF No. 9) and the Amended1 Reply (ECF No. 25).

1 The Magistrate Judge ordered an amended reply because the original reply did not contain record citations as required

by S. D. Ohio Civ. R. 7.2(b)(3).

Litigation History

On January 31, 2012, Petitioner was indicted on the counts of conviction plus twenty-two

counts of robbery; the robbery counts were dismissed before trial (Indictment, State Court Record,

ECF No. 8, Ex. 1). Ibrahim was convicted by a jury and sentenced as indicated. He appealed to

the Ohio Tenth District Court of Appeals which affirmed. State v. Ibrahim, 2014-Ohio-666 (Ohio

App. 10th Dist. Feb. 25, 2014). Ibrahim did not appeal to the Supreme Court of Ohio.

While the direct appeal was pending, Ibrahim, with the assistance of counsel other than the

attorney who now represents him, filed a petition for post-conviction relief under Ohio Revised

Code § 2953.21, pleading that he had received ineffective assistance of trial counsel in the

following respects:

(1) Failure to investigate and adequately prepare for trial;

(2) Failure to subpoena key witnesses to testify on Petitioner's behalf;

(3) Failure to inform Petitioner sufficiently to enable him to assist in

his own defense;

(4) (a) Failure to preserve the record of an objectionable translation

of testimony offered at trial in the Somalian language; (b) failure to

request that the interpreter's qualifications be established on the

record; (c) failure to question the availability of a certified

interpreter; (d) failure to object to less than a word-for-word

translation; and (e) failure to request that the interpreter be sworn in

on the record;

(5) Failure to argue self-defense or request a self-defense

instruction;

(6) Failure to adequately present or develop significant evidence at

trial;

(7) Failure to investigate, evaluate, and present evidence of

mitigating circumstances with respect to Petitioner’s sentencing;

(8) Failure to object to separate sentences for aggravated robbery

and kidnapping convictions

(Petition for Post-Conviction Relief, State Court Record, ECF No. 8, Ex. 10).

The trial court denied relief. Id. at Ex. 15. Ibrahim then appealed to the Tenth District

Court of Appeals, raising as his sole assignment of error that the trial court should have granted

him an evidentiary hearing on his Petition. The court of appeals affirmed except for ordering an

evidentiary hearing with testimony from Amina Manguera, Mowlina Aboke, and Aweis Ibrahim whose

credibility could not be properly evaluated without a hearing. State v. Ibrahim, 2014-Ohio-5307 (Ohio

App. 10th Dist. Nov. 28, 2014)(Judges Dorian, Klatt, and O’Grady). On the way to reaching that

conclusion, the court found a number of ineffective assistance of trial counsel claims barred by res

judicata:

{¶ 17} Appellant also claimed that counsel should have questioned

the witnesses at trial regarding: (1) the fact that there was no blood

on his face mask because he removed it before entering the

apartment; (2) the fact that the police only collected the cellphones

of appellant and co-defendant Noor; (3) the fact that appellant's

wallet and $80 were stolen from him during the incident; (4) the fact

that appellant did not own the gun; (5) the fact that the apartment

was a known drug house; (6) the fact that appellant had an

altercation with Abdi Mohamed ten days prior to the robbery; and

(7) the fact that the prosecuting witnesses fabricated a story. Several

police officers testified at trial and could have been questioned as to

the issues relating to physical evidence. Appellant himself testified

that he did not own a gun, and numerous witnesses testified that the

apartment was a known drug house. Appellant also testified that he

and Abdi Mohamed had gotten into it on the streets before and that

the prosecuting witnesses must have coordinated their stories. All of

this was clear from the transcript. These claims could have been

raised on direct appeal and, accordingly, are barred by res judicata.

Therefore, we affirm the trial court's denial of the petition for

postconviction relief on grounds of ineffective assistance of trial

counsel for failure to advise appellant regarding these issues.

Ibbrahim, supra.

With regard to the claim of ineffective assistance of trial counsel by failure to investigate,

the Tenth District held on the first post-conviction appeal:

{¶ 19} Furthermore, with regard to appellant's averments that he

asked his trial counsel to further investigate certain issues, we keep

in mind that appellant did not present the affidavit of his trial counsel

to corroborate either that trial counsel had been advised of these

issues and witnesses by appellant or that he did not further

investigate these issues. The lack of such an affidavit by trial counsel

is significant because there is no evidence indicating what steps trial

counsel took to prepare for trial.

Id., citing State v. Messer–Tomak, 10th Dist. No. 10AP–847, 2011–Ohio–3700, ¶ 14–15.

With regard to the other witnesses whose affidavits were filed in support of the Petition,

the court found they did not justify an evidentiary hearing because

{¶ 25} The affidavits of Fatima Ali Yussuf, Hussein Ibrahim, Luuley

Mohamed, and Mohamed Bukdow contain nearly identical language

and appear to have been drafted by the same person. Furthermore,

these affidavits, as well as the affidavit of Abdullah Aboke, state

generally that the affiants "had information" to offer but do not

specify what particular information they would have offered, nor

whether the information would have been helpful to appellant at

trial. The affidavit of Marian Mohamed establishes that the

information she would have offered to an investigator or at trial was

made known to her after appellant's trial. Trial counsel cannot be

considered ineffective for failing to investigate information gathered

after trial. For these reasons, we find the trial court did not err in not

holding a hearing to determine the credibility of these six affiants.

Id. In addition to finding it was not deficient performance to fail to present some of the evidence

tendered in post-conviction, the panel also concluded Ibrahim had failed to show prejudice as to

some of the omitted evidence:

To demonstrate prejudice, a petitioner must show not only that there

was mitigating evidence that counsel failed to present, but also that

“there is a reasonable probability that the evidence would have

swayed the jury to impose [a lesser sentence].” Keith at 536. We

find that appellant himself informed the court that he had a family.

Furthermore, although appellant's counsel did not present all the

mitigating evidence Manguera and Aweis presented, we cannot say

there was a reasonable probability that the evidence would have

swayed the jury to impose a lesser sentence.

Id. at ¶35.

After an evidentiary hearing, the trial court again denied the post-conviction petition (State

Court Record, ECF No. 8, Ex. 58). The trial judge concluded, for reasons he explains, “defendant

failed to demonstrate ineffective assistance of trial counsel, because the factual bases underlying

his claim are speculative, uncertain, vague, contradicted, and incredible.” Id. at ¶ 22.

Ibrahim again appealed to the Tenth District which affirmed, albeit by a divided vote. State

v. Ibrahim, 2020-Ohio-3425 (Ohio App. 10th Dist. Jun. 23, 2020)(Dorrian, Brown, and Brunner

(dissenting)). In reaching its ultimate conclusion, the Tenth District added to the findings it had

made on the prior appeal.

{¶ 15} In its decision and entry denying the petition, the trial court

rendered the following findings of fact based on the evidence

presented at the evidentiary hearing following remand. Appellant's

brother, Aweis, testified “he was not present when the offenses

occurred.” Aweis testified that Abdi Mohamed, the owner of a

coffee shop, “bragged about beating up [appellant] and putting him

in jail for life.” (July 19, 2017 Decision at 2.) Aweis “also testified

that his uncle, Abdulkadir Aden, ‘a couple of guys,’ ‘the lady that

owned the place,’ and ‘one of the guy[s]’ asked for $10,000 to not

appear for trial.” (July 19, 2017 Decision at 2-3.) In his affidavit,

Aweis “averred that ‘Somalilander witnesses’ made these purported

statements.” (July 19, 2017 Decision at 3.)

{¶ 16} Aweis stated “he was aware of the alleged extortion attempt

before [appellant's] trial began * * * but never provided this

information to [appellant's] trial attorney.” Aweis “never came to

court during the week-long jury trial, even though he knew the trial

was going on, and [appellant's] trial attorney was present.” Aweis

“never spoke to trial counsel, the prosecutor, or the police.” Aweis

visited [appellant] in jail “seven times in 2012.” (July 19, 2017

Decision at 3.)

{¶ 17} Mowlina Aboke testified that Abdi Mohamed came into

Aboke's barbershop “after the offenses occurred with ‘a patch or

something’ on ‘his neck or head.’ ” Mohamed “said ‘he got hit on

the night of that incident.’ ” Mohamed further “said two guys came

in to buy khat, and they were robbed.” Aboke “did not believe Abdi

Mohamed.” Aboke “refuted” the averment in his affidavit “that

Abdi Mohamed told Aboke that the occupants of the apartment

attempted to extort money from [appellant's] family.” According to

Aboke, “it was ‘not just one person’ * * * talking about the $10,000

in his barbershop, that it was not ‘the coffee shop guy,’ that it was

‘the person that got shot.’ ” This conversation “occurred within a

few days or one week of the offenses.” Aboke was aware “that

[appellant's] trial took place one year later.” Aboke “did not tell the

police, or the prosecutor, or [appellant's] trial attorney.” (July 19,

2017 Decision at 3.)

{¶ 18} Amina Manguera, appellant's aunt, testified and “refuted the

statements in her affidavit.” Manguera “testified that she told

[appellant's] post-conviction attorney that * * * the things you are

telling me, it's not correct.” (July 19, 2017 Decision at 3.) Manguera

“testified, ‘Like I told you before, I don't know anything about this.

* * * And I'm telling you the same thing again.’ ” (July 19, 2017

Decision at 3-4.) When Manguera was shown her affidavit “she did

not recognize it,” and “testified, ‘I cannot read or write. They must

have wrote those things.’ ” Manguera “testified that what was said

in her affidavit she either did not say or did not remember saying.”

Manguera “also testified she did not know whether there was a party

or drug activity, that she was not there, and that she did not witness

anything.” (July 19, 2017 Decision at 4.)

{¶ 19} Appellant testified “that he told his trial attorney that the

witnesses were not going to come to court * * *, that he never asked

his trial attorney to speak with his family, and that his trial attorney

provided discovery, which they discussed.” Appellant “also

acknowledged that his trial attorney visited him eight times while he

was in jail.” Appellant “did not know of the alleged extortion

attempt until after his trial,” and testified “that he obtained the

‘visiting list’ * * * from his ‘case manager.’ ” Appellant “thought

two of the victims, Farheyo [Abdulkar] and Abdi Aden, tried to visit

him, but they never did, either in prison or in jail.” (July 19, 2017

Decision at 4.)

{¶ 20} Trial counsel for appellant, Jeffrey M. Basnett, visited

appellant in jail “six times in 2012, and twice in 2013.” During these

visits, Basnett “repeatedly asked [appellant] to tell him what

happened.” Appellant “refused, simply stating over and over again

that the witnesses were not going to come to court.” Appellant

“never talked to counsel about any kind of extortion plot or anything

like that.” (July 19, 2017 Decision at 4.)

{¶ 21} Basnett “never spoke to [appellant's] brother, never had

contact with [appellant's] brother, and never received any messages

from [appellant's] brother, even though * * * Basnett's office was

right across the street from the courthouse.” (July 19, 2017 Decision

at 4-5.) Basnett “also never spoke with Mowlina Aboke or Amina

Manguera.” (July 19, 2017 Decision at 5.)

{¶ 22} Appellant's “Exhibit 15, attached to his post-conviction

petition and identified as ‘Jail Visitation List’ is an ODRC

document, and is not a list of persons who visited [appellant] in

prison.” (July 19, 2017 Decision at 5.)

State v. Ibrahim, 2020-Ohio-3425 (10th Dist. June 23, 2020).

The Tenth District on this second appeal declined to hear claims of ineffective assistance

of trial counsel that were barred by res judicata because they could have been raised on direct

appeal or were barred by the law of the case because they had already been decided on the prior

appeal or were not within the issues remanded for evidentiary hearing. On the two remanded

issues, the Tenth District found the supposed jail visitor log that purportedly showed Ibrahim was

visited by two witnesses in fact was not such a log and the presence of the two relevant names on

the document showed they had not visited Ibrahim. As to the supposed extortion plot, the Tenth

District found that the record supported the trial court’s conclusion that the affidavit testimony

presented was not credible, in part because two of the witnesses refuted their own affidavits in live

testimony. It also affirmed the trial court’s finding that Ibrahim’s brother did not have admissible

testimony and his bias in favor of his brother undermined his credibility.

Having also presided at trial, the post-conviction judge added his own observations of the

trial attorney’s performance, both in this case and others. He noted that none of Ibrahim’s post-

conviction witnesses had been present during the crime, but that nine of the victims had testified.

Finally, Ibrahim and his co-defendant were found inside the crime scene when the police arrived

and Ibrahim’s DNA were found there on a ski mask and firearm. These factual findings supported

the conclusion on the prejudice prong of Strickland.

The Supreme Court of Ohio declined jurisdiction over a further appeal. State v. Ibrahim,

160 Ohio St.3d 1421 (2020).

On February 18, 2020, Ibrahim filed an application for reopening his direct appeal pursuant to

Ohio R. App. P. 26(B)(State Court Record, ECF No. 8, Ex. 68). The Tenth District dismissed the

Application because it was untimely and beyond the permitted length; Ibrahim did not appeal.

Petitioner then, with the assistance of counsel, filed the instant habeas corpus Petition on

October 8, 2021, raising the following one ground for relief:

Ground One: Ineffective assistance of counsel in violation of the

Sixth and Fourteenth Amendments.

Supporting Facts: Trial counsel admitted to conducting no

independent investigation of the case. As a result, he failed to

discover witnesses, including alleged victims who had bragged that

a robbery did not occur, and who had attempted to extort $10,000

from Petitioner’s family in exchange for not testifying at Petitioner’s

trial.

In addition, there were witnesses who heard from alleged victims

that the place where the alleged robbery occurred was a drug house

and that the claim of robbery was a fabrication.

Trial counsel further admitted he did not retain or request funds to

hire an investigator, never interviewed anyone, never viewed the

alleged crime scene, and never looked for security cameras which

may have revealed relevant activity.

Trial counsel had been diagnosed with cancer just prior to the trial,

which clearly affected his ability to prepare for trial and to be fully

effective during each day of the trial.

Petitioner’s brother was unable to communicate with trial counsel

because counsel did not return his telephone calls nor meet with him.

Petitioner’s brother had significant relevant information which

would have exonerated Petitioner.

Petitioner’s brother also had information relevant to the character of

Petitioner which would have been relevant to mitigation.

(Petition, ECF No. 1, PageID 7).

Analysis

Petitioner’s sole overarching ground for relief is that he received ineffective assistance of

trial counsel, but he lays out numerous subclaims. Respondent concedes that Ibrahim’s claim was

“presented in his pleadings to all state courts in his post-conviction actions, [and therefore] has been

exhausted before the Ohio courts.” (Return, ECF No. 9, PageID 1991).

By the time the case had reached the Reply stage, Petitioner phrased his claim thus:

When trial counsel has self-admitted conducting no independent

investigation without strategic decision making, counsel's

representation is deficient and has fallen below a tolerable standard

for effective assistance of counsel.

(Amended Reply, ECF No. 25, PageID 2139). Thus the Court treats as abandoned the other

ineffective assistance of trial counsel sub-claims made in the Petition.

The governing standard for ineffective assistance of counsel is found in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and resulting prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010),

citing Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

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

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

In the appeals from denial of Ibrahim’s petition for post-conviction relief, the Tenth District

decided his claim of ineffective assistance of trial counsel on the merits. Therefore to prevail in

habeas corpus, Ibrahim must show that the Tenth District’s decision was an unreasonable

application of Strickland or based on an unreasonable determination of the facts in light of the

evidence presented in the state courts.

In the Amended Reply, Ibrahim suggests no deference is due to the Ohio courts’ factual

determinations in this case because “[a] state court fails to make factual determinations entitled to

review under §2254(e)(l)'s limitations when it simply provides the "background to its decision."

Amended Reply, ECF No. 25 , PageID 2139, citing Vasquez v. Bradshaw, 345 Fed. Appx. 104, 113

(6th Cir. Sept.2, 2009). Any suggestion that the two Tenth District decisions in this case are mere

“recitations of background” would be a grossly unfair characterization. In both instances the court

majority made definitive findings on the factual issues, based on thorough consideration of the

underlying evidence. Ibrahim contrasts the majority findings on both appeals with Judge

Brunner’s assessment of the fact in her dissent on the second appeal. But multi-judge courts make

decisions by majority vote. On both appeals, the Tenth District decided the presented questions

of fact by majority vote.

Ibrahim notes that a habeas petitioner can overcome the presumption of correctness in state

court fact findings “by showing [by] clear and convincing evidence that the state court's factual

determination was erroneous.” (Amended Reply, ECF No. 25, PageID 2138, citing Sawyer v.

Hofbauer, 299 F.3d 605, 609 (6th Cir. 2002). That is certainly a correct general principle of law in

habeas jurisprudence, but, invoking it, a habeas petitioner must actually point to the evidence in the

state court record which shows the state court determination is inaccurate.

When the Magistrate Judge began to attempt to write this Report, he observed that Ibrahim

was apparently asking this Court to review the evidence of ineffective assistance of trial counsel

de novo (Order for Amended Reply, ECF No. 19, PageID 2063). The Order pointed out the

deficiencies of the original Reply in not complying with S. D. Ohio Civ. R. 7.2(b)(3) to provide

record references and required that they be corrected. The Order continues:

Much more importantly, the case shapes up as a contest between the

majority opinion on the second postconviction appeal and Judge

Brunner’s dissent. Ibrahim’s sole ground for relief is that he

received ineffective assistance of trial counsel (Petition, ECF No. 1,

PageID 7). The Ohio Tenth District Court of Appeals decided that

question on the merits. To prevail, Ibrahim must overcome the

presumption of correctness of that conclusion by showing it is

contrary to or an objectively unreasonable application of clearly

established Supreme Court precedent or “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)(1) and (d)((2).

With this alert to the critical issue in the case, the Court gave Petitioner’s counsel an

opportunity to address that issue with an Amended Reply. Apparently ignoring the point, Ibrahim

begins his Amended Reply by stating he “acknowledges the statement of facts set forth in

Respondent's Return of Writ with the additional statement of case and facts which appear in the

dissenting opinion in State of Ohio v. Mohamed Ibrahim, 2020-Ohio-3425 (10th Dist., 2020).”

(ECF No. 25, PageID 2129). The Amended Reply then proceeds to quote verbatim from Judge

Brunner’s dissent ¶¶ 105-119, with the quotation occupying PageID 2129-35, almost half of the

Amended Reply. And aside from the quotation, there is no argument whatsoever on what the

evidence shows as compared to what the two panels of the Tenth District found. See PageID 2135.

Petitioner’s various sub-claims of ineffective assistance of trial counsel are analyzed

separately below in slightly different order from their presentation in the Petition.

Distraction by Cancer Diagnosis

Petitioner claims his trial attorney was diagnosed with cancer shortly before trial and the

diagnosis interfered with his ability to prepare for and conduct the trial (Petition, ECF No. 1,

PageID 7).

As Respondent points out in the Return, the trial attorney’s cancer diagnosis did not happen

until July 2013 and the trial in this case was concluded in January, 2013 (Return, ECF No. 9,

PageID 2002, citing PCR Tr. TR., ECF No. 8-3, PageID 1768). A diagnosis that happened six months

after trial cannot have caused distraction at the time of trial. Petitioner appears to have abandoned this

claim as it is not argued in the Amended Reply.

Failure to Investigate, Interview Witnesses, Seek Expert Assistance

Petitioner claims his trial attorney conducted no independent investigation, never visited the

crime scene, did not interview witnesses who were prepared to testify that alleged victims admitted the

crime was fabricated, never sought to review security camera footage, etc.

Respondent defends this claim on the merits, asserting that the Tenth District’s decision on

these asserted deficiencies is a reasonable application of Strickland2.

In reciting the trial attorney’s alleged deficiencies of failure to investigate, failure to visit

the crime scene, or failure to attempt to view security footage, the Amended Reply does not discuss

the trial attorney’s unrefuted testimony that Ibrahim refused to cooperate by providing counsel

with any leads for investigation, insisting the opposing witnesses/victims would not appear for

trial. Ibrahim claims counsel failed “to interview promising witnesses, having no reason to believe

they would not be valuable in securing a defendant's release, constitutes negligence, not trial

strategy.” But who are these supposed promising witnesses? The witnesses who testified in post-

conviction had not been identified to counsel before trial. None of them were present during the

crime and so could not have testified from personal knowledge. Much of the evidence relied on

by Ibrahim in the Amended Reply to show deficient performance not only was not known to

counsel, but could not have been discovered by reasonably diligent investigation. For example,

how would counsel have known of the neighborhood barber who eventually testified in post-

conviction?

Of course as a general proposition there are a number of steps competent counsel should

take to prepare for trial. But to show ineffective assistance a habeas petitioner must show not only

deficient performance, but prejudice. The Ohio courts found no prejudice from counsel’s asserted

omissions because Ibrahim, even after many years of pursuing post-conviction relief, had not

2 Technically, Petitioner must show it is an objectively unreasonable application of Strickland.

found a witness who would likely have made any difference in outcome, given the trial testimony.

Instead of proving prejudice, the Amended Reply attempts to rely on the presumption of

prejudice recognized in United States v. Cronic, 466 U.S. 648 (1984), where counsel is denied or

absent during a critical stage of the proceedings. That will not do; counsel was never absent from

the proceedings in such a way as to give rise to a presumption of prejudice. If there were witnesses

who should have been called to testify and who would have made a difference in the outcome,

Ibrahim was required by Strickland to show the state courts who they are and what they would

have testified to. Having failed to persuade the state courts, Ibrahim must now show this Court

that he presented that evidence to the Ohio courts which nevertheless unreasonably failed to find

his evidence persuasive. The fact that one Ohio appellate judge found the evidence persuasive

does not demonstrate that the other five were unreasonable.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition be dismissed with prejudice. Judge Brunner’s dissent demonstrates that reasonable jurists

could disagree on the ultimate issue: did Ibrahim suffer from ineffective assistance of trial

counsel? Therefore Petitioner should be granted a certificate of appealability if requested.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal. #

July 11, 2022.

s/ Michael R. Merz

United States Magistrate Judge

16