Penland v. Warden, Toledo Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALEX PENLAND,

Petitioner,

Case No. 1:18-cv-648

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Merz

WARDEN, TOLEDO

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

This cause comes before the Court on the Magistrate Judge’s Report and

Recommendations (“R&R”) advising the Court to dismiss Petitioner Alex Penland’s

Habeas Petition with prejudice. For the reasons discussed below, the Court ADOPTS

the R&R (Doc. 113) and DISMISSES Penland’s Petition (Doc. 1) WITH

PREJUDICE. Further, the Court DENIES Penland’s Objections to the Order

Denying his Motion for Reconsideration (Doc. 114) AS MOOT.

BACKGROUND

A. Factual Background And Trial Proceedings

Because the factual basis of Penland’s conviction matters to this Opinion, the

Court begins there. In doing so, the Court relies on the Ohio First District Court of

Appeals’ recitation of the facts. 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358,

360–61 (6th Cir. 1998).

Start with the facts the parties agree upon as reflected in the state court record.

On July 25, 2014, Penland shot and killed Damien Cure in the parking lot of a bar.

(Doc. 8, #126). Before the shooting, Penland had been relaxing at the bar with his

girlfriend. (Id.). Cure entered the bar. (Id.). Once Penland saw Cure, Penland

immediately left the bar and began walking to his car. (Id.). Cure followed Penland

out, repeatedly asking Penland why he was going to his car. (Id.). Both walked to

their vehicles. (Id.). Penland retrieved a gun and shot Cure. (Id.). At some point,

Penland too was hit. (Id.). Police found a gun in Cure’s hand, but never located

Penland’s firearm. (Id.). The grand jury indicted Penland for murder (along with a

weapons charge and a drug charge). (Id. at #30–32).

Penland went to trial in May 2015. He took the stand, claiming self-defense.

In Penland’s telling, he had heard rumors that Cure intended to rob and kill him.

(Doc. 8-4, #885–86). Once Cure arrived in the bar that night, Penland immediately

left to avoid an encounter. (Id. at #885). After leaving, Cure followed him. (Id. at

#889). As Cure tailed him, Penland claims Cure threatened to kill him. (Id.). Cure

eventually walked to his own vehicle and got in, allegedly telling Penland he was

retrieving his gun. (Id. at #890–91). Scared, Penland retrieved a loaded handgun1

from his car. (Id. at #891). Turning to Cure, Penland claims that he saw Cure aiming

a silver gun at him. (Id. at #892–93). The shooting started. (Id.). While firing, Penland

walked towards Cure’s vehicle and outstretched his arm inside the now-shattered car

window to shoot point-blank. (Id. at #911). In the ensuing moments, Penland claims

he was hit twice. (Id. at #892). And in Penland’s telling, he did not desire to shoot or

kill Cure. (Id. at #910). Penland only fired to “stop [Cure] from hurting” him. (Id. at

1 Penland claims that the gun belonged to his wife. (Doc. 8-4, #909). He also claims he did not

load it himself, but assumed it was loaded when he pulled the trigger. (Id.).

#910–12). Of course, this is somewhat inconsistent, as Penland’s admitted method of

“stopping” Cure necessarily meant shooting him. In any event, Penland vigorously

denied any interest in harming Cure. (Id. at #911–12).

Prosecutors told a different story—one in which Penland was the aggressor. In

the prosecutors’ version, Penland believed Cure had recently raided the home of

Penland’s girlfriend looking for Penland, and as a result, Penland wanted to take

revenge on Cure. (See Doc. 8-4, #918–19). According to prosecutors, Penland had

commented to his girlfriend that he was “not going to let that n***** threaten me

anymore.” (Id. at #925). So when Penland saw Cure that night at the bar, Penland

quickly headed for his car to get his gun. (Doc. 8-5, #969). And prosecutors said

Penland did not hesitate to follow through on his threat, immediately shooting Cure

as soon as he could. (Id. at #969–70).

To bolster the state’s case, prosecutors introduced two key pieces of evidence.

First, video recordings captured by surveillance cameras both inside and outside the

bar. (See, e.g., id.). The Court has not seen these videos but has reviewed trial

testimony describing their contents in detail. Second, eyewitness testimony from

Steven Breuing, who owned the bar where the shooting occurred. (See, e.g., id.). While

(allegedly) witnessing the events in the bar’s parking lot, Breuing says he stood just

below where a camera was mounted and recording. (Doc. 8-3, #770–71).

Breuing factors centrally into Penland’s objections here. After the shooting,

Breuing ran inside the bar and called 911. (Id. at #759). The operator three times

asked Breuing if he had seen anything. (Traverse, Doc. 34, #1540). Finally, Breuing

told the operator: “No. No, I just heard the guns going off.” (Id.). At trial, Penland’s

counsel did not ask Breuing about this call or about that statement.

In addition, prosecutors strengthened their case with testimony from

investigators and experts. Medical experts from the coroner’s office testified that Cure

had been found with bullet wounds in the back of his left arm and in his chest—

consistent with Cure taking a defensive posture while being shot. (Doc. 8-4, #847–49,

854–55). Investigators testified that no bullet holes were identified in the vehicles

that were near or behind Penland. (Doc. 8-3, #667).

Ultimately, the jury convicted Penland of murder. (Doc. 8, #65).2 The trial court

sentenced him to 21 years to life incarceration. (Id. at #75).

B. State Postconviction Proceedings

Assisted by new counsel, Penland appealed. The First District Court of Appeals

ordered the record filed on or before October 14, 2015. (Doc. 8, #82). Penland raised

seven assignments of error to the First District.

1. The court abused its discretion in granting the motion to

consolidate indictments.

2. The court abused its discretion in allowing in testimony of an

unrelated robbery that the appellant was not named in as either

a victim or defendant.

3. The trial court erred to the prejudice of defendant-appellant as

there was insufficient evidence to convict.

4. The trial court erred to the prejudice of defendant-appellant

because the verdict was against the manifest weight of evidence.

2 The jury also convicted him of having a weapon under disability and trafficking in heroin

(id. at #67–68), but those convictions do not factor into these habeas proceedings.

5. The defendant received ineffective assistance of trial counsel.

6. The imposition of a consecutive sentence on the weapon under

disability charge, when there was already a gun specification, was

not supported by the record.

7. The defendant-appellant’s right to a fair trial was compromised

by cumulative error.

(Id. at #83–106). On May 6, 2016, the appellate court affirmed Penland’s conviction.

(Id. at #126).

Penland did not immediately seek review by the Ohio Supreme Court. Instead,

on June 27, 2016, he filed a pro se application for a delayed reopening of his direct

appeal under Ohio Rule of Appellate Procedure 26(B). (Id. at #129). In that

application, Penland accused his appellate counsel of ineffective assistance for failing

to raise five more assignments of error on direct appeal:

1. When defense counsel fails to object to inappropriate questions

designed to elicit inadmissible evidence, fails to object to

misstatements of law and known facts, fails to object to state

prosecutor’s vouching for its witness’s [sic], and fails to object to

inappropriate comments, and fails to investigate and call

witness’s favorable to appellant, the appellant receives ineffective

assistance of counsel.

2. It is inexcusable for the Prosecution to continue a line of jury

argument after an objection has been made and sustained.

3. Prosecutor’s deliberated [sic] act of withholding known evidence

from the jury and other acts constitute Prosecutorial Misconduct.

4. The trial court abused its discretion when it failed to use its

mandatory sua sponte duty to stop improper argument of the

government.

5. Where during a trial numerous error [sic] [occur] that taken

together prejudice a fair trial, a new trial should be ordered.

(Id. at #131–38).

The First District denied the application on multiple grounds, finding his

appellate counsel had not been ineffective. (Id. at #242). First, Penland’s attempt to

add to his initial appeal would push his filing over the maximum page limit. (Id. at

#242). Second, Penland’s appellate counsel could not have been deficient in failing to

raise claims about the “state’s failure to disclose a witness’s allegedly exculpatory

statements” and his trial counsel’s failure to raise a defense along these lines. (Id. at

#243). That was so, according to the First District, because “[t]hose proposed

challenges depend for their resolution upon evidence outside the trial record.” (Id.).

As a result, these challenges had to be raised in a timely postconviction petition under

Ohio Revised Code § 2953.21, rather than on direct appeal. (Id.). Third, the First

District held Penland’s appellate counsel had not been deficient for failing to raise

claims based on prosecutorial misconduct or Penland’s trial counsel ineffectiveness

for not objecting. (Id.). In cursory fashion, the appellate court found neither supposed

error prejudiced him. (Id.). Finally, the appellate court found that Penland was not

entitled to relief for “cumulative error.” (Id.).

Only then did Penland appeal his conviction to the Ohio Supreme Court. On

July 7, 2017, Penland noticed an untimely appeal and moved for delayed appeal. (Id.

at #245, 248). He claimed he mistakenly believed his Rule 26(B) motion tolled the

deadline to notice his appeal. (Id. at #249). The Ohio Supreme Court denied review

without an opinion. State v. Penland, 81 N.E.3d 1270 (Ohio 2017).

On September 23, 2016, Penland claims he petitioned for postconviction relief

under Ohio Revised Code § 2953.21. (Doc. 34-1, #1543). The materials Penland

submitted with his traverse include what looks like a cover sheet from that petition

that the state court clerk date stamped and returned to Penland. (Id.). However, for

some reason, the compiled state record does not include Penland’s actual petition.

Penland claims he raised two issues in this petition:

1. When counsel fails to investigate and call witnesses favorable to

defendant, the defendant receives ineffective assistance of

counsel; and

2. When counsel suffers from a conflict of interest, defendant

receives ineffective assistance of counsel.

(Obj. to R&R, Doc. 117, #3469).

While the Court does not have Penland’s state postconviction petition, the

Court assumes Penland raised the same three principal factual allegations there as

those he now raises in these habeas proceedings. First, counsel did not interview or

call to the stand Miranda Austin. Austin claims to have witnessed the shooting,

telling police she saw a shooter fleeing the scene in a “dark color shirt/dark color

denim jeans.”(Doc. 8, #211). Second, counsel did not listen to Breuing’s 911 call or

impeach him with his statement during that call denying he saw anything. (Id. at

#320–21). Third, counsel suffered from a conflict of interest because he

simultaneously represented Kenyon Barnes in an unrelated prosecution. That is a

conflict, Penland says, because Penland believes that Barnes participated in the plot

to kill Penland, and that the dark-clothed person Austin saw flee from the scene that

evening was in fact Barnes. Three days after the date stamp indicates the petition

was filed, the trial court summarily denied Penland’s petition, based on that court’s

consideration of the petition “and all materials and law pertinent to” it. (Id. at #259).

Penland appealed this denial to the First District. (Id. at #262). His appeal

maintained those same issues and added an assignment of error for the trial court’s

failure to conduct an inquiry into his counsel’s conflict of interest. (Id. at #275).

The First District denied the appeal on March 7, 2018. (Id. at #295). Although

acknowledging the trial court apparently had entered judgment on a postconviction

petition, the appellate court stated “the record does not reflect the filing … of a

[§ 2953.21 petition] seeking postconviction relief.” (Id. at #296). In other words, the

appellate court concluded that the trial court record included no postconviction

petition. As a result, the court held “the record cannot be said to manifest the errors

of which Penland now complains.” (Id.). No one knows why the record did not include

Penland’s petition.

Penland appealed to the Ohio Supreme Court on April 23, 2018. (Id. at #297–

300). There, Penland pushed a new issue relating to the trial court’s refusal to

announce findings of fact and conclusions of law when denying Penland’s

postconviction petition. (Id. at #300). But Penland did not elevate his ineffective

assistance claims that he had (allegedly) presented to the trial court and then to the

appellate court in his postconviction proceedings. The Ohio Supreme Court denied

review. (Id. at #315).

On May 15, 2018, Penland filed an Ohio Rule of Civil Procedure 60(B) motion

in the postconviction case in trial court. (Id. at #316). His motion accused Breuing of

lying to the jury when he testified to seeing the shooting and the prosecution of

misconduct for allowing Breuing to lie. (Id. at #317–18). Penland also accused the

prosecution of violating Giglio by telling Penland’s counsel the state was “unaware of

any evidence favorable to the defendant,” despite knowing Breuing denied seeing

anything on the 911 call. (Id. at #320–21). Two days later, the trial court summarily

denied Penland’s motion. (Id. at #395).

Penland appealed June 18, 2018, arguing the trial court abused its discretion

by not entertaining his allegations. (Id. at #398). The First District disagreed. State

v. Penland, No. C-1803302019, 2019 Ohio App. LEXIS 3118 (Ohio Ct. App. July 26,

2019). Although Penland moved under Rule 60(B), the appeals court found Penland

had, in effect, pursued relief under § 2953.21. Id. at *2. But whatever the label,

Penland’s request was grossly untimely under § 2953.21(A)(2). Id. Moreover, even in

light of Penland’s 911 call allegations, the appellate court found him not entitled to

file a delinquent postconviction petition under § 2953.23. Id. at *3–4. As a result, the

trial court lacked jurisdiction to consider Penland’s request. Id. Penland again

unsuccessfully sought appeal to the Ohio Supreme Court. State v. Penland, 157 Ohio

St. 3d 1468 (2019).

C. Habeas Proceedings

Penland filed a petition for a writ of habeas corpus on September 14, 2018,

under 28 U.S.C. § 2254. (Doc. 1).3 Penland nominally raised nine grounds for relief:

Ground One: The trial court abused its discretion in granting the

motion to consolidate indictment.

3 As the R&R pointed out, although Penland seeks relief for his convictions for murder, drug

trafficking, and having a weapon under disability, Penland took the stand at trial and

admitted to the latter two convictions. (Doc. 113, #2408). Thus, only his murder conviction is

at issue here.

Ground Two: The court abused its discretion in allowing in testimony of

an unrelated robbery that petitioner was not named in as either a victim

or defendant.

Ground Three: The court erred to the prejudice of petitioner because the

verdict was against the manifest weight of the evidence.

Ground Four: The trial court erred to the prejudice of the petitioner as

there was insufficient evidence to convict.

Ground Five: The imposition of consecutive sentence on weapon under

disability when there was already a gun specification was not supported

by the record.

Ground Six: Petitioner Penland’s right to a fair trial was compromised

by cumulative error.

Ground Seven: Petitioner Penland was deprived of his constitutional

due process rights to a fair trial when the prosecutor deliberate act of

withholding known evidence from the jury, and other acts constitute

prosecutorial misconduct, the cumulative effect of which denied the

petitioner of a fair trial.

Ground Eight: Petitioner Penland was deprived of his right to effective

assistance of counsel guaranteed by the United States Constitution, (A)

due to counsel’s failure to investigate and present witnesses to support

self-defense, (B) failure to impeach prosecution witness with known

evidence, (C) engaging in a conflict of interest, (D) failure to object to

prosecutorial misconduct, the cumulative effect of which denied

petitioner a fair trial.

Ground Nine: The procedural default doctrine is inapplicable and

petitioner has otherwise established good cause and actual prejudice

avoiding any procedural default raised in post-conviction collateral

proceedings.

(Id. at #5–6). After the Magistrate Judge ordered, and then dissolved, a stay (Docs.

20, 26), Penland filed an extensive traverse on December 2, 2019, totaling 145 pages.

(Doc. 34). Penland also attached exhibits supporting his Petition. (Doc. 34-1).

Penland then filed a series of motions and objections. Many have been resolved,

but one matter remains (beside the disposition of his habeas petition itself). On

February 25, 2020, Penland moved to file his Third Amended Petition. (Doc. 71). The

Magistrate Judge denied the motion. (Doc. 75). Penland objected. (Doc. 80). On April

28, 2022, the Court affirmed the Magistrate Judge’s denial. (Doc. 105). Two months

later, Penland moved for reconsideration. (Doc. 111). The Magistrate Judge issued an

Order denying the motion for reconsideration four days later. (Doc. 112). Penland

objected to that Order (Doc. 114), and that Objection remains pending.

Finally, the Magistrate Judge issued an R&R on June 17, 2022, advising the

Court to dismiss Penland’s Petition with prejudice. (Doc. 113, #2433). The R&R found

each of Penland’s grounds procedurally defaulted. (See Doc. 113).

Penland objected. (Doc. 117). Read generously, Penland raises three

challenges: (1) his prosecutorial misconduct ground is meritorious; (2) his ineffective

assistance ground is meritorious; and (3) his Sixth Amendment’s Confrontation

Clause rights were violated.4 (See id.). Penland devotes almost his entire filing to

arguing the merits of his claims. At the conclusion, he turns to procedural default:

Mr. Penland did submit to this court via (ECF No. 34) [his traverse]

evidence of cause to excuse any perceived procedural default. Mr.

Penland adopts by reference and incorporates (ECF No. 34) as if it were

fully rewritten right here.

(Doc. 117, #2490). That’s it. The matter is now ripe.

In sum, before the Court for decision are the R&R advising the Court to dismiss

Penland’s Petition with prejudice (Doc. 113), along with Penland’s Objections to that

R&R (Doc. 117). Also before the Court are Penland’s Objections (Doc. 114) to the

4 He also seemingly raises a Brady/Giglio claim. For the reasons discussed below, this claim

in not well taken.

Magistrate Judge’s Order (Doc. 112) denying Penland’s Motion to Reconsider the

Denial of his Third Motion to Amend.

LEGAL STANDARD

Under Fed. R. Civ. P. 72(b)(3), district courts review an R&R de novo after a

party files a timely objection. This review, however, applies only to “any portion to

which a proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL

5487045, at *1 (S.D. Ohio Sept. 30, 2013). In response to such an objection, “[t]he

district court ‘may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.’” Id.

(quoting Fed. R. Civ. P. 72(b)(3)). By contrast, if a party makes only a general

objection, that “has the same effect[] as would a failure to object.” Howard v. Sec’y of

Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991); Boyd v. United States, No.

1:16-cv-802, 2017 WL 680634, at *1 (S.D. Ohio Feb. 21, 2017). That is, a litigant must

identify each issue in the R&R to which he or she objects with sufficient clarity that

the Court can identify it, or else that issue is deemed waived. Miller v. Currie, 50 F.3d

373, 380 (6th Cir. 1995) (“The objections must be clear enough to enable the district

court to discern those issues that are dispositive and contentious.”).

That said, here, Penland is proceeding pro se. A pro se litigant’s pleadings are

to be construed liberally and are subject to less stringent standards than formal

pleadings filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Franklin

v. Rose, 765 F.2d 82, 84–85 (6th Cir. 1985). At the same time, pro se litigants still

must comply with the procedural rules that govern civil cases. McNeil v. United

States, 508 U.S. 106, 113 (1993).

As to those unobjected portions of the R&R, the Court still has an obligation to

review the recommendation. The advisory committee notes to Federal Rule of Civil

Procedure 72(b) suggest that the Court still must “satisfy itself that there is no clear

error on the face of the record in order to accept the recommendation.” See Redmon

v. Noel, No. 1:21-CV-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (citing

cases).

LAW AND ANALYSIS

Penland’s Petition proposes eight grounds for habeas relief. The R&R found

each procedurally defaulted. (Doc. 113, #2414–29). As has been his habit, Penland

submitted a long objection primarily re-arguing the merits of his claims. (Doc. 117).

As noted, Penland raises three main challenges: (1) his prosecutorial misconduct

ground is meritorious; (2) his ineffective assistance ground is meritorious; and (3) his

Sixth Amendment’s Confrontation Clause rights were violated.5 (See id.). To begin,

Penland did not raise a Confrontation Clause allegation in his Petition. (Doc. 1). Thus,

his “objection” to the R&R on Confrontation Clause grounds, if it can even be called

that, is not well taken.

5 Penland’s objection purports to also allege a Brady/Giglio violation. (Doc. 117, #2464–66).

But Penland’s Habeas Petition makes no mention of a Brady/Giglio violation. Granted, his

Petition did raise a claim of “other acts” of prosecutorial misconduct. (Doc. 1, #6). But this is

insufficient to give the Warden notice of his Brady/Giglio arguments. And even if Penland

did properly raise a Brady/Giglio ground for habeas relief, as described below, he still

procedurally defaulted that claim by not raising it in a timely postconviction petition.

But Penland’s troubles do not end there. For two reasons, Penland’s remaining

objections fail: (1) Penland has offered only a general objection to the R&R’s finding

that he procedurally defaulted his grounds; and (2) even had Penland properly

objected, his grounds are in fact procedurally defaulted. Thus, the Court ADOPTS

the R&R’s (Doc. 113) conclusion (although for slightly different reasons) and

DISMISSES Penland’s Petition (Doc. 1) WITH PREJUDICE. Also, the Court

DENIES Penland’s Objections to the Order Denying his Motion for Reconsideration

(Doc. 114) AS MOOT.

A. Penland Made A General Objection To The R&R’s Finding He

Procedurally Defaulted His Grounds.

As noted, when a party makes only a general objection, that “has the same

effect[] as would a failure to object.” Howard, 932 F.2d at 509. “A general objection,

or one that merely restates the arguments previously presented and addressed by the

Magistrate Judge, does not sufficiently identify alleged errors in the [R&R] to trigger

de novo review.” Fondren v. Am. Home Shield Corp., No. 17-cv-2519, 2018 WL

3414322, at *2 (W.D. Tenn. July 13, 2018); see also Aldrich v. Bock, 327 F. Supp. 2d

743, 747 (E.D. Mich. 2004) (“An ‘objection’ that does nothing more than state a

disagreement with a magistrate’s suggested resolution, or simply summarizes what

has been presented before, is not an ‘objection’ as that term is used in this context.”).

In other words, “objecting” to an R&R by “incorporating by reference” arguments

already considered by the Magistrate Judge is not really an objection. Deters v.

Hammer, 568 F. Supp. 3d 883, 887 (S.D. Ohio 2021).

Applying that framework here, Penland did not properly object to the R&R’s

procedural default conclusions. As noted, the R&R found each of Penland’s grounds

procedurally defaulted. But Penland seemingly views default as an afterthought. His

entire discussion of that topic consists of two sentences:

Mr. Penland did submit to this court via (ECF No. 34) evidence of cause

to excuse any perceived procedural default. Mr. Penland adopts by

reference and incorporates (ECF No. 34) as if it were fully rewritten

right here.

(Doc. 117, #2490). Docket entry 34, which Penland “incorporates,” is his 145-page

Traverse. (Doc. 34). As such, Penland has failed to properly object to the R&R’s

conclusion that he procedurally defaulted each ground in his Petition. See Deters, 568

F. Supp. 3d at 887 (finding plaintiff made a general objection where plaintiff

incorporated arguments already considered and rejected by the Magistrate Judge).

B. Penland Procedurally Defaulted His Claims, And He Has Not Shown

An Entitlement To Evade That Default.

While damning, Penland general objection isn’t the end of the story. After all,

a general objection is treated as a failure to object. Howard, 932 F.2d at 509. And

even where a party has not objected to an R&R, the advisory committee notes to

Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation.” See also Redmon v. Noel, No. 1:21-cv-445, 2021 WL 4771259, at *1

(S.D. Ohio Oct. 13, 2021) (citing cases). With that in mind, the Court examines the

state record and Penland’s arguments to see whether the R&R committed clear error.

For the reasons discussed below, the Court finds it did not.

Habeas petitioners must exhaust their grounds in state court before a federal

court may rule on their merits. Rose v. Lundy, 455 U.S. 509, 518 (1982). The

exhaustion doctrine “encourage[s] state prisoners to seek full relief first from the

state courts, thus giving those courts the first opportunity to review all claims of

constitutional error.” Id. at 518–19. Failing to exhaust has consequences.

If a state procedural bar prevents a petitioner from exhausting his or her claim,

the Court likewise cannot grant habeas relief. Lovins v. Parker, 712 F.3d 283, 295

(6th Cir. 2013). In other words, “[a] federal court may not review federal claims that

were procedurally defaulted in state court—that is, claims that the state court denied

based on an adequate and independent state procedural rule.” Davila v. Davis, 137

S. Ct. 2058, 2064 (2017) (citing Beard v. Kindler, 558 U.S. 53, 55 (2009)). The doctrine

“advances the same comity, finality, and federalism interests advanced by the

exhaustion doctrine.” Id. (citing McCleskey v. Zant, 499 U.S. 467, 493 (1991)).

There are two ways procedural default can occur. “First, a claim is procedurally

defaulted where state-court remedies have been exhausted … but where the last

reasoned state-court judgment declines to reach the merits because of a petitioner’s

failure to comply with a state procedural rule.” Lovins, 712 F.3d at 295. In that

circumstance, “there must be unambiguous state-court reliance on a procedural

default for it to block [review].” Bowling v. Parker, 344 F.3d 487, 499 (6th Cir. 2003);

see also Skinner v. McLemore, 425 F. App’x 491, 496 (6th Cir. 2011). And “[s]econd, a

claim is procedurally defaulted where the petitioner failed to exhaust state court

remedies, and the remedies are no longer available at the time the federal petition is

filed because of a state procedural rule.” Lovins, 712 F.3d at 295; see also Wright v.

Lazaroff, 643 F. Supp. 2d 971, 987 (S.D. Ohio 2009) (“[T]he federal habeas court may

hold the claim procedurally defaulted ‘if it is clear that the state court would hold the

claim procedurally barred.’” (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989))).

The Sixth Circuit requires a multi-part test to determine whether a petitioner’s

unexhausted habeas claim cannot be considered in habeas due to state-law

procedural default:

(1) the petitioner fails to comply with a state procedural rule; (2) the

state courts enforce the rule; (3) the state procedural rule is an adequate

and independent state ground for denying review of a federal

constitutional claim; and (4) the petitioner cannot show cause and

prejudice excusing the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc); see also Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986). As to the fourth prong, though, a petitioner

can alternatively excuse their default by showing a fundamental miscarriage of

justice rather than cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750

(1991). As described below, however, Penland does not argue a fundamental

miscarriage of justice, but only seeks to evade procedural default based on cause and

prejudice. (See Doc. 34, #1496–506; Doc. 117, #2490).

Following the R&R, Penland’s objections mainly discuss his prosecutorial

misconduct and ineffective assistance of trial counsel claims. But his objections blend

various allegations together. Read expansively, Penland’s objections can be divided

two ways—between claims of prosecutorial misconduct and ineffective assistance,

and between claims evident from the trial record and those evident only through

investigation outside the trial record.

Thus categorized, Penland presents four distinct allegations. First, prosecutors

improperly withheld evidence from the jury (not evident from the trial record). (Doc.

117, #2464–66). Second, prosecutors made improper comments during trial rising to

prosecutorial misconduct (evident from the trial record). (Id. at #2448–60). Third,

Penland’s counsel failed to object to prosecutors’ improper comments at trial (evident

from the trial record). (Id. at #2473). And fourth, Penland’s counsel failed to

investigate the case and had a conflict of interest (not evident from the trial record).

(Id. at #2466–72, 2480–86). As explored below, Penland cannot prevail as to any.

1. Penland Procedurally Defaulted His Prosecutorial Misconduct

Ground Alleging Prosecutors Improperly “Withheld” Evidence.

Penland claims prosecutors violated his due process rights by withholding

evidence from the jury. (Doc. 117, #2464–66). First, Penland points to Breuing’s 911

call as proof that Breuing did not see the shooting in person. (Doc. 34, #1540). Yet

prosecutors called Breuing to testify as an eyewitness. Penland argues prosecutors

knew of Breuing’s comments on his 911 call and so violated Penland’s due process

rights by knowingly eliciting false testimony from Breuing. (Doc. 117, #2464–66). In

addition, Penland argues prosecutors improperly withheld evidence of Miranda

Austin’s testimony from the jury by presenting Breuing as the “only eyewitness” to

the shooting. (Id. at #2466).6

6 Notably, Penland does not allege prosecutors concealed information from Penland and his

counsel. The record reflects, and Penland admits, that “Austin was on the State’s Civilian

Witness List.” (Doc. 8, #211; Doc. 117, #2466). The record also reflects, and Penland admits,

that the 911 call audio was provided in discovery. (Doc. 8, #207; Doc. 117, #2473).

Penland did not raise this claim in his initial direct appeal. (Doc. 8, #84–87).

The R&R concluded Penland’s failure to do so means he procedurally defaulted this

claim based on res judicata. (Doc. 113, #2426–27). The Court agrees Penland has

procedurally defaulted this claim but for a different reason.

Penland first mentioned this allegation to the First District Court of Appeals

in a Rule 26(B) motion to reopen his appeal. (Doc. 8, #134–38). In essence, Penland

claimed his appellate counsel performed deficiently by not including in his direct

appeal allegations the prosecution improperly withheld evidence from the jury. (Id.

at #131).

The First District rejected Penland’s allegations of ineffective assistance of

appellate counsel. (Id. at #242–44). The District’s reasoning, though, matters here:

Appellate counsel was not ineffective in failing to submit assignments of

error alleging that the state’s failure to disclose a witness’s allegedly

exculpatory statements had denied Penland a fair trial … . [That]

proposed challenge[] depend[s] for [its] resolution upon evidence outside

the trial record. Therefore, the appropriate vehicle for advancing [it] is a

postconviction petition, not an appeal.

(Id. at #243 (citing See State v. Perry, 226 N.E.2d 104, 106 (Ohio 1967) (emphasis

added))). In other words, Penland could only raise this claim in a timely

postconviction petition.

Under Ohio law, a petitioner must submit for postconviction relief within 365

days after the transcript of the proceedings has been filed for appeal. Ohio Rev. Code

§ 2953.21(A)(2). An Ohio court cannot entertain an untimely or successive petition

for postconviction relief unless a “petitioner was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for

relief,” or there has been intervening United States Supreme Court precedent that

retroactively gives the petitioner a claim to relief. Ohio Rev. Code § 2953.23(A)(1)(a).

In addition, the petitioner must demonstrate by “clear and convincing evidence that,

but for constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense” in question. Id. § 2953.23(A)(1)(b).

As best the Court can tell, the transcript was filed with the First District Court

of Appeals on or before October 14, 2015. (Doc. 8, #82). (To be as generous as possible

to Penland, the Court will assume the transcript was filed on October 14, 2015.) And

to his credit, Penland did apparently file a timely § 2953.21 postconviction petition.

Although its contents do not appear in the state court record,7 Penland provided a

stamped cover-sheet of a petition for postconviction relief filed on September 23,

2016—within the one-year limit. (Doc. 34-1, #1543; Doc. 117, #2468–69). According

to Penland, he raised two claims in that timely petition:

1. When counsel fails to investigate and call witnesses favorable to

defendant, the defendant receives ineffective assistance of

counsel; and

2. When counsel engages in a conflict of interest defendant receives

ineffective assistance of counsel.

(Doc. 117, #3469). Taking Penland at his word, then, he did not raise any allegation

of prosecutorial misconduct in his timely postconviction petition.

7 The Court has never reviewed the contents of Penland’s September 23, 2016, postconviction

petition. And judging from the Warden’s Reply, they have not either. In any event, the cover

sheet provided by Penland is stamped by the Hamilton County Clerk of Courts, so the Court

takes Penland at his word he filed such a petition and raised the two claims discussed.

Instead, Penland first raised a claim of prosecutorial misconduct in his 2018

motion seeking postconviction relief. (Doc. 8, #317–18). The trial court summarily

denied his motion, and Penland appealed. (Id. at #395, 396). The First District,

though, determined Penland had, in effect, filed an untimely § 2953.21 postconviction

petition8 without a qualifying justification, depriving the trial court of jurisdiction to

even entertain Penland’s claim. State v. Penland, No. C-1803302019, 2019 Ohio App.

LEXIS 3118, at *2–3 (Ohio Ct. App. July 26, 2019). The Ohio Supreme Court

thereafter denied review without opinion, making the First District’s opinion the final

reasoned judgment in Penland’s state court saga.

On those facts, Penland procedurally defaulted this ground by failing to comply

with § 2953.21’s requirements. See Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d

450, 464 (6th Cir. 2015). By not raising any allegation of prosecutorial misconduct in

his timely postconviction petition, he deprived the Ohio courts of the ability to

consider the merits of his allegation. See State v. Apanovitch, 121 N.E.3d 351, 360

(Ohio 2018) (“[A] petitioner’s failure to satisfy [Ohio Rev. Code § 2953.23’s statutory

requirements] deprives a trial court of jurisdiction to adjudicate the merits of an

untimely or successive postconviction petition.”).

Ohio courts enforced this requirement in Penland’s case. When he tried to

bring this claim in 2018, the First District held the Ohio courts lacked jurisdiction to

even entertain Penland’s untimely request. See Penland, 2019 Ohio App. LEXIS

8 Arguably, Penland actually filed a successive § 2953.21 postconviction petition, given his

September 23, 2016, petition. But this distinction is of little importance here because the

standards for untimely and successive petitions are the same.

3118, at *2–3. And the appellate court held Penland lacked grounds to bring an

untimely postconviction petition because “he failed to satisfy the R.C.

2953.23(A)(1)(b) jurisdictional requirement for a late postconviction petition.” Id. at

*3–4.

Finally, § 2953.21’s jurisdictional requirements are an adequate and

independent state law grounds. See Savage v. Warden, Pickaway Corr. Inst., No. 1:21-

cv-33, 2022 WL 4357465, at *8–10 (S.D. Ohio Sept. 20, 2022) (holding § 2953.21’s

general prohibition on untimely and successive is an adequate and independent state

law ground).

As for cause and prejudice, through his hundreds of pages of briefing, Penland

has never discussed, let alone explained, why he did not raise his allegations of

prosecutorial misconduct in his timely postconviction petition. Penland has

procedurally defaulted any allegation prosecutors wrongfully withheld evidence from

the jury.

2. Penland Procedurally Defaulted His Prosecutorial Misconduct

Ground Alleging Prosecutors Made Improper Comments At

Trial.

Penland separately argues prosecutors violated his due process rights by

making inappropriate comments during his trial. These include claims prosecutors

knowingly misrepresented the evidence, called Penland a liar, vouched for their own

witnesses’ credibility, and inflamed the jury. (Doc. 117, #2451–57). A common thread

running through all these complaints, though, is that all were plainly evident at trial.

Despite appearing on the face of the trial record, Penland did not raise these

allegations in his direct appeal. (Doc. 8, #84–87). In fact, even if one also considers

Penland’s entire post-conviction state proceedings, a state court has never properly

reviewed the merits of these claims. Penland has not exhausted his claims of

prosecutorial misconduct based on the prosecutors’ actions at trial.

To be sure, Penland discussed these allegations of prosecutorial misconduct

when seeking to reopen his direct appeal. A month after the First District rejected

Penland’s direct appeal, Penland moved under Rule 26(B), alleging ineffective

assistance of appellate counsel. (Doc. 8, #129–38). In part, Penland claimed his

appellate counsel performed deficiently by not pursuing an assignment of error

claiming prosecutorial trial misconduct. (Id.). But the First District denied Penland’s

motion, finding his allegations did not warrant reopening the appeal. (Id. at #242).

Therefore, this rejection cannot be considered a fair presentment to a state court.9

Given Penland’s failure to fairly present these claims to any Ohio court, the

R&R correctly found Penland procedurally defaulted under the doctrine of res

judicata. (Doc. 113, #2426). Ohio courts routinely apply res judicata to prohibit

subsequent review when a party fails to raise all evident claims in one appeal. See

State v. Perry, 226 N.E.2d 104, 106 (Ohio 1967); Durr v. Mitchell, 487 F.3d 423, 432

9 Granted, the First District did briefly mention the merits of Penland’s prosecutorial

misconduct claim to conclude Penland had not be prejudiced by any alleged appellate counsel

errors. The court stated: “Nor was Penland demonstrably prejudiced by appellate counsel’s

failure to assign as error the other alleged instances of prosecutorial misconduct … the record

makes apparent beyond any reasonable doubt that, in the absence of the … alleged instances

of prosecutorial misconduct, the jury still would have found Penland guilty.” (Doc. 8, #243–

44). Although the appellate court did make passing mention of Penland’s claim, this is far

from the fair presentment contemplated by the habeas exhaustion requirement.

(6th Cir. 2007). Because Penland did not raise these claims on direct appeal, he

cannot now. Lovins, 712 F.3d at 295; Monzo v. Edwards, 281 F.3d 568, 576–77 (6th

Cir. 2002) (holding res judicata is “an adequate and independent state procedural

ground”).

Penland’s procedural default precludes habeas relief unless he can show cause

and prejudice. What does he offer on that front? As noted, Penland alleged ineffective

assistance of appellate counsel in pursuing his direct appeal. (Doc. 8, #129). In

fairness to Penland, “in certain circumstances counsel’s ineffectiveness in failing

properly to preserve the claim for review in state court will” establish cause to excuse

a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray

v. Carrier, 477 U.S. 478, 488–892 (1986)). And Penland alleged his appellate counsel

performed deficiently by failing to raise an assignment of error relating to

prosecutorial misconduct at trial. (Doc. 8, #134–36, 141–44).

But the problem for Penland is that the First District heard and rejected

Penland’s ineffective appellate counsel allegations. (Doc. 8, #243–44). As the R&R

noted, the Court defers to this determination “unless it is found contrary to or an

unreasonable application of Supreme Court precedent.” (Doc. 113, #2431 (citing 28

U.S.C. § 2254(d)(1))); Miles v. Bradshaw, No. 5:13-cv-1078, 2014 WL 977702, at *10

(N.D. Ohio Mar. 12, 2014) (“Petitioner failed to overcome the presumed correctness

of the appellate court decision’s denying his Rule 26(B) motion.”). After reviewing the

record, the Court agrees the First District did not unreasonably apply Supreme Court

precedent in denying Penland’s claim of ineffective assistance of appellate counsel.

Therefore, Penland cannot rely on ineffective assistance of appellate counsel as cause

to excuse his procedural default.

3. Penland Procedurally Defaulted His Ineffective Assistance

Ground Alleging His Counsel Performed Deficiently At Trial.

Turn next to Penland’s claim of ineffective assistance of trial counsel for errors

evident at trial. The R&R concluded Penland procedurally defaulted this claim by

failing to timely appeal it to the Ohio Supreme Court. (Doc. 113, #2428). The Court

agrees Penland has defaulted this claim but again on slightly different grounds.

In his direct appeal, Penland presented an assignment of error for ineffective

assistance of trial counsel. (Doc. 8, #102). But there, Penland only argued his counsel

“fail[ed] to use a crime scene re-constructionist when the timeline of events [was]

crucial to [his] case.” (Id.). This specific allegation (which has been exhausted)

appears nowhere in his current Petition nor his Objections.

Instead, Penland now accuses trial counsel of failing to object to the

prosecutors’ inappropriate conduct at trial. (Doc. 117, #2467). This failure-to-object

allegation has never been fairly presented to any Ohio court.10 “[T]he doctrine of

exhaustion requires that the same claim under the same theory be presented to the

state courts before raising it in a federal habeas petition.” Wagner v. Smith, 581 F.3d

410, 417 (6th Cir. 2009). As described above, Penland cannot now present this claim

10 Penland did raise a similar claim in his Rule 26(B) motion to reopen his appeal for

ineffective assistance of appellate counsel. (Doc. 8, #131). As described above, though, the

First District did not rule on the merits of this claim, only holding Penland’s appellate counsel

had not been constitutionally ineffective. (Id. at #244).

because Ohio courts would enforce the procedural bars of both res judicata and the

prohibition on subsequent § 2953.21 postconviction petitions. Lovins, 712 F.3d at 295.

To evade his default, Penland again claims he has cause from his appellate

counsel’s alleged ineffective assistance. For the reasons already discussed, Penland

has not shown cause. This claim remains procedurally defaulted.

4. Penland Procedurally Defaulted His Ineffective Assistance

Ground Based On His Counsel’s Alleged Failure To Investigate

And Conflict Of Interest.

That leaves Penland’s remaining ineffective assistance of trial counsel

grounds—those grounds that require evidence beyond the trial court record. On this

front, he claims he received ineffective assistance of trial counsel from his counsel’s

(1) failure to investigate relevant impeachment and exculpatory evidence, and

(2) conflict of interest from representing a potentially exculpatory witness. (Doc. 117,

#2469–70). The R&R found these claims procedurally defaulted because Penland

failed to timely appeal his ineffective assistance claim on direct appeal to the Ohio

Supreme Court. (Doc. 113, #2428–29). This Court agrees Penland is not entitled to

habeas relief, although the Court relies on different reasons.

a. Penland Procedurally Defaulted This Ground.

Ineffective assistance of trial counsel claims based on counsel’s failure to

investigate or counsel’s conflict of interest often will not be evident at trial. See, e.g.,

Schooler v. Erwin, No. 3:05-cv-259, 2006 WL 1071840, at *4 (S.D. Ohio Apr. 21, 2006).

Instead, under Ohio law, defendants typically raise these claims in § 2953.21

petitions for postconviction relief. White v. Mitchell, 431 F.3d 517, 527 (6th Cir. 2005).

As discussed, a petitioner generally has one year to bring such a petition following

the filing of the trial transcript with the appeals court. Ohio Rev. Code

§ 2953.21(A)(2)(a). Here, Penland claims to have petitioned for postconviction relief

within that one-year window on September 23, 2016. (Doc. 117, #2468–69). And his

petition (allegedly) included his failure to investigate and conflict of interest

allegations against his trial counsel, along with supportive evidence. (Id.). In other

words, Penland started off on the right track.

Yet inexplicably, Penland found himself derailed by an apparent state

recordkeeping error. Three days after Penland petitioned, the trial court issued a

summary denial without referring to his specific claims. (Doc. 8, #259). When Penland

appealed, the First District reported that the record contained no filing from Penland

at all. (Id. at #295). The First District then affirmed the trial court because “the record

does not reflect the filing … of a motion seeking postconviction relief” and so “the

record cannot be said to manifest the errors of which Penland now complains.” (Id. at

#296). This is all the more bizarre because Penland has provided this Court his

purported postconviction petition’s cover sheet—apparently stamped as received by

the county clerk of courts on September 23, 2016. (Doc. 34-1, #1543). Moreover, the

trial court’s denial referenced considering Penland’s “motion and all materials” before

finding them not well taken. (Doc. 8, #259). Although perhaps form language, the

trial court’s order implies Penland did in fact file a motion and accompanying support

for that motion.

In any event, Penland appealed to the Ohio Supreme Court. (Id. at #297).

Notably, though, he seemingly abandoned his ineffective assistance allegations. On

appeal, he only pressed the issue of whether the trial court erred by not issuing

“findings of facts and conclusions of law when the court denies [] postconviction relief

pursuant to RC § 2953.21(C).” (Id. at #300). But recall exhaustion requires a

petitioner give Ohio courts “one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review process.”

Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004) (quoting O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999)). By not elevating his ineffective assistance claims to the

Ohio Supreme Court, Penland has not fully exhausted them.

And now these claims are procedurally defaulted. If tomorrow Penland

returned to the Ohio Supreme Court to exhaust, that court would decline review

under res judicata. Again, Ohio courts routinely apply res judicata to available but

unraised issues on appeal. See State ex rel. Essig v. Blackwell, 817 N.E.2d 5, 12 (Ohio

2004); Perry, 226 N.E.2d at 106. And, again, res judicata is routinely enforced as a

procedural default. See Durr, 487 F.3d at 432; Ream v. Wainwright, No. 18-3257, 2018

WL 3090778, at *2 (6th Cir. June 1, 2018) (“Ream’s remaining claims were … not

brought before the Ohio Supreme Court on direct appeal, and because these claims

… could have been raised on direct appeal … review in the Ohio courts is now barred

under the doctrine of res judicata.”).

b. Penland Has Perhaps Shown Cause But Cannot Show

Prejudice To Evade His Default.

That isn’t the end of the story though. Recall Penland may excuse his

procedural default by showing cause and prejudice. And in fairness, Penland has

some claim to “cause” here. True, “ignorance of the law and procedural requirements

for filing a timely notice of appeal is insufficient to establish cause.” Bonilla v. Hurley,

370 F.3d 494, 498 (6th Cir. 2004). But cause will be normally found where a petitioner

can show “some objective factor external to the defense impeded [their] efforts to

comply with the State’s procedural rule.” Murray, 477 U.S. at 488. To illustrate, cause

exists where a petitioner defaulted as the result of “some interference by officials”

that “made compliance” with the procedural rule “impractical.” Amadeo v. Zant, 486

U.S. 214, 222 (1988) (quoting Murray, 477 U.S. at 488).

Here, it appears the state court system may well have lost Penland’s timely

§ 2953.21 petition. To this day, no party has located Penland’s filing. (See Doc. 9,

#1138). Inmates proceeding pro se face a daunting host of challenges in prosecuting

their appeals and habeas petitions. Often, inmates default through their own error.

But they should not bear the risks associated with state recordkeeping errors.

Ohio law obligated the clerk of the court, not Penland, to transfer the lower

court record to the First District.11 See Cobb v. Cobb, 403 N.E.2d 991, 992–93 (Ohio

11 Penland perhaps could have moved under Ohio Rule of Appellate Procedure 9(E) to correct

the omissions in the record. Ohio R. App. P. 9(E); Cobb, 403 N.E.2d at 993. But he would have

needed notice of the omission first. As an incarcerated pro se petitioner, it is unclear whether

Penland received adequate notice of the omission prior to the First District’s ruling. And the

First District could have—perhaps should have—attempted to fix the omission “of its own

initiative.” Ohio R. App. P. 9(E).

1980). In effect, the State’s error deprived Penland of his one bite at the

postconviction-relief-apple. Whether this error was intentional or inadvertent, the

Court finds Penland’s default can be, at least in part, attributed to “some interference

by officials.” Amadeo, 486 U.S. at 222. Thus, Penland has shown cause.12

But that is not enough. Even with cause, Penland must separately

demonstrate prejudice to excuse his procedural default. To show prejudice, Penland

“must shoulder the burden of showing, not merely that the errors at his trial created

a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis added). In the context of

ineffective assistance of trial counsel, a defaulted claim creates a “substantial

disadvantage” where the petitioner “demonstrate[s] that the claim has some merit.”

Martinez v. Ryan, 566 U.S. 1, 14 (2012).

Therefore, to properly evaluate the “prejudice” created by Penland’s procedural

default, the Court must perform a cursory analysis of Penland’s relevant ineffective

assistance claims. Before diving in, the Court offers a summary: Penland has not

carried his burden to show ineffective assistance of counsel because, given the

overwhelming evidence against him, he would have been convicted regardless. And

because the result would be the same anyway, Penland has not shown the “actual

12 True, Penland still could have appealed his ineffective assistance claims to the Ohio

Supreme Court anyway. But as the First District denied Penland’s petition without seeing or

reviewing the merits, it is unlikely the Ohio Supreme Court could have given his petition a

substantive review.

and substantial disadvantage” necessary to evade his procedural default. Frady, 456

U.S. at 170.

Generally, ineffective assistance of counsel has two prongs. First, deficient

performance—“counsel’s representation fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second,

prejudice—“a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

“In assessing performance, ‘strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support

the limitations on investigation.’” Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002)

(quoting Strickland, 466 U.S. at 690–91). As for prejudice, “[t]he likelihood of a

different result must be substantial, not just conceivable” based on “the totality of the

evidence.” Darby v. Brown, No. 21-1001, 2022 WL 558042, at *4 (6th Cir. Feb. 24,

2022) (quoting Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), and Towns v.

Smith, 395 F.3d 251, 257 (6th Cir. 2005)).

Alternatively, ineffective assistance can be shown if counsel labored under a

conflict of interest. Gillard v. Mitchell, 445 F.3d 883, 890 (6th Cir. 2006). In either

case, “[t]he benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland, 466

U.S. at 686.

Begin with Penland’s failure to investigate claims. “[T]rial counsel has a duty

to investigate his case.” Steward v. Wolfenbarger, 468 F.3d 338, 256 (6th Cir. 2006).

Accordingly, trial counsel’s failure to investigate certain witnesses can constitute

deficient performance. See, e.g., Towns, 395 F.3d at 258 (“This duty includes the

obligation to investigate all witnesses who may have information concerning his or

her client’s guilt or innocence.”). To state this type of claim, a petitioner must explain

“what evidence counsel should have pursued and how such evidence would have been

material.” Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002) (citing Austin v. Bell,

126 F.3d 843, 848 (6th Cir. 1997)). That said, while a failure to investigate perhaps

evidences deficient performance, a petitioner must still demonstrate resulting

prejudice. See, e.g., id. at 258; Stewart, 468 F.3d at 357–58.

Penland makes two failure-to-investigate allegations. First, his counsel did not

interview or call to the stand Miranda Austin, a witness the police interviewed. (Doc.

117, #2470). Second, his counsel did not review Steven Breuing’s 911 audio and

impeach Breuing with it.13 (Id.). But even assuming these errors meant his counsel’s

performance fell below an objective standard of reasonableness, Penland is still not

13 Penland also seemingly alleges his counsel did not discover that Breuing had (allegedly)

been threated to lie on the stand. (See Doc. 117, #2476–77; Doc. 117-2, #2493–94). But

Penland never explains how his counsel could have discovered this pre-trial. In any event,

there is no record of Penland presenting this allegation to any state court, making it

unexhausted and therefore procedurally defaulted for the reasons already discussed.

entitled to relief. In light of the other trial evidence, Penland has not shown these

errors, either alone or cumulatively, prejudiced him.

Take Miranda Austin. Penland alleges his counsel failed to interview and call

her to the stand when she allegedly could testify to seeing a potential third shooter

in a “dark color shirt/dark color denim jeans” before he fled the scene. (Doc. 8, #211;

Doc. 117, #2470). The Court has reviewed an affidavit from Austin to this effect. (Doc.

117-1, #2491–92). To Penland, Austin provided evidence of “an additional assailant

attacking” him that could bolster this self-defense theory. (Doc. 117, #2477).

Specifically, Penland believes Austin’s “additional assailant” is Kenyon Barnes, who

(according to Penland) knew of and participated in Cure’s scheme to kill Penland. (Id.

at #2483–85). For prejudice, Penland pointed to the prosecutor’s closing remark that

Penland had presented no other evidence to support self-defense. (Id. at #2478).

Penland’s problem, though, is his own trial testimony belies any allegation of

a third shooter. (See Doc. 8-4, #879–942). Penland based his self-defense theory on

the threat posed by Cure alone. In presenting his defense, Penland testified only to

Cure following him. (Id. at #887). He testified to only Cure threatening him that

evening. (Id. at #889). And he testified to only seeing Cure hold a gun and only seeing

Cure fire at him. (Id. at #891–92). Neither Barnes’s name, nor any other’s besides

Cure, appears in Penland’s account while he explained his perceived need to shoot in

self-defense.14

14 Another witness does testify to briefly seeing Barnes enter the bar with Cure. (Doc. 8-2,

#553–54). But Penland never mentions Barnes at all.

Granted, Penland argues Austin’s testimony may have unlocked a new line of

argument—presumably relieving Penland of his need to testify. (Doc. 117, #2483).

And he believes this “two attackers” theory would have bolstered his position at trial.

He summarizes his “best defense was to contend [Cure] and [Barnes] observed …

Penland’s car parked in the Bar’s parking lot and they decided to confront him and

lure him outside to attack him.” (Id. at #2485).

Three problems though. First, the jury saw a video of the incident. Although

the Court cannot access the video itself, the trial testimony describing the video never

indicates a third individual displayed in the altercation. The only two individuals

described in the relevant video are Penland and Cure. (See Doc. 8-4, #833–34).

Second, Penland cannot advance hypotheticals in conflict with his own trial

testimony. He offered his testimony under oath before a jury of his peers, and the

Court will not assume Penland perjured himself or intentionally omitted a

justification for his shooting. Cf. Blackledge v. Allison, 431 U.S. 63, 74 (1977)

(“Solemn declarations in open court carry a strong presumption of verity.”). Third,

Penland’s theory that Austin saw Barnes flee is undermined by other evidence.

Austin reported the fleeing shooter wore a “dark shirt.” (Doc. 8, #211). Other evidence,

though, suggests Barnes wore a “white shirt” that evening. (Doc. 34-1, #1547). Taken

together, Penland has not shown his counsel’s failure to investigate Austin prejudiced

him.

Next, Breuing’s 911 call. Penland alleges his counsel neither listened to

Breuing’s 911 call nor reviewed the transcript. (Doc. 117, #2470–71). On this call, the

dispatcher asked Breuing three times whether he had seen anything. (Doc. 34,

#1540). After the third, Breuing said “No. No, I just heard the guns going off.” (Id.).

At trial, however, Breuing reported he had seen the shootings and described the

events in detail. (Doc. 8-3, #755–59). And, supporting the prosecution’s theory

Penland did not kill in self-defense, Breuing testified to seeing Penland shoot first.

(Id. at #759–60, 789). Penland argues his counsel should have impeached Breuing

with his inconsistent testimony. (Doc. 117, #2472). To Penland, his counsel’s error

constituted not only deficient performance but also resulted in clear prejudice because

a key eyewitness went unimpeached.

The Court acknowledges some sympathy for Penland’s position. Assuming his

counsel failed to impeach Breuing because he never listened to the 911 call, Penland

has a credible allegation his counsel performed deficiently. But still, Penland has not

carried his burden to show prejudice—there is no reasonable probability the result

would have been different. The other trial evidence was simply too weighty, and

Breuing’s additions too minor, for his impeachment to have altered the outcome.

First, once again, the jury watched the video depicting the shooting. The video

is damning for Penland, and Breuing’s testimony by and large merely affirms what

the video shows. After all, while Breuing testified to seeing the events, he also

testified that the camera had a better view than he did. (Doc. 8-3, #770–71). So even

if Penland’s counsel had impeached Breuing, the jury still would have seen and relied

on the camera’s video for its superior view.

The video does not help Penland. Take, for example, the question of who was

the aggressor.15 The video depicts Penland rapidly advancing on Cure while firing

and reaching through the empty car window to shoot at point-blank range. (Doc. 8-5,

#911). Further, although Penland argued Cure hit him early in the exchange (Doc. 8-

4, #892), the video instead shows Penland first react to being hit at the end of the

gunfire. (Doc. 8-3, #662–63; Doc. 8-5, #975–76). In short, the video largely reflects

Breuing’s testimony.

Second, the tangible evidence favors the prosecution’s theory that Penland did

not kill in self-defense. Cure’s wounds showed he was shot through the back of his

left arm with a bullet that exited out his arm before entering his chest. (Doc. 8-4,

#847–49, 854–55). Based on this evidence, prosecutors argued Cure assumed a

defensive posture, holding his arm up to (in vain) shield himself. (Doc. 8-5, #972–73).

And investigators located no other bullet markings in cars around Penland, further

demonstrating the shots fired mostly came from Penland towards Cure. (Doc. 8-3,

#667).

In sum, the jury weighed Breuing’s testimony alongside the other evidence.

Even had Penland’s counsel attempted to impeach Breuing based on the 911 call and

undermined his story, the jury still had evidence beyond a reasonable doubt to convict

Penland.

15 The parties dispute whether the video shows Penland hesitate with his gun in hand before

firing. (Doc. 8-5, #969–70, 1013–14). But again, the jury saw the video and decided whose

story to believe.

That leaves Penland’s allegation his counsel labored under a conflict of

interest. To begin, the Court notes Penland did not object to a conflict of interest at

trial. See Holloway v. Arkansas, 435 U.S. 475, 484 (1978) (holding a timely objection

to joint and antagonistic representation that is overruled by the trial court requires

automatic reversal). Instead, he first objected in his timely postconviction petition.

(See Doc. 117, #2468–69).

Where a defendant objects to a perceived conflict of interest after trial, a

defendant received constitutionally ineffective assistance if he can show his counsel

“actively represented conflicting interests” and that this “actual conflict of interest

adversely affected” the lawyer’s performance. United States v. Kilpatrick, 798 F.3d

365, 374–75 (6th Cir. 2015) (quoting Burger v. Kemp, 483 U.S. 776, 783 (1987)). Under

these circumstances, courts will presume a counsel’s conflict of interest prejudiced

the defendant, resulting in a Sixth Amendment violation. Id. “To prove actual conflict,

a defendant must ‘point to specific instances in the record’ and ‘make a factual

showing of inconsistent interests.’” Id. at 375 (quoting Thomas v. Foltz, 818 F.2d 476,

481 (6th Cir. 1987)).

Applying this framework, counsel provides ineffective assistance where the

conflict results in counsel taking an action detrimental to the petitioner to protect the

interests of counsel’s other client. McFarland v. Yukins, 356 F.3d 688, 706 (6th Cir.

2004). Thus, “where counsel fails to pursue a strong and obvious defense, when

pursuit of that defense would have inculpated counsel’s other client, and where there

is no countervailing benefit to [him] from foregoing that defense or other explanation

for counsel’s conduct, [it] amount[s] to evidence of disloyalty.” Id. at 707.

“[T]he reasonableness of counsel’s choice can be relevant as a factor in proving

the choice was caused by the conflict.” Id. at 706. In essence, “the more reasonable

the lawyer’s choice, the less likely it was the result of actual conflict.” Kilpatrick, 798

F.3d at 375. Accordingly, counsel’s choice will not result in a finding of ineffective

assistance unless it is “clear that the choice was not part of a legitimate strategy,

judged under the deferential review of counsel’s performance prescribed in Strickland

v. Washington.” McFarland, 356 F.3d at 706 (citing Strickland, 466 U.S. 668).

Penland argues his counsel labored under a conflict by representing Kenyon

Barnes in a separate prosecution starting March 9, 2015. (Doc. 34-1, #1544). Recall

Penland went to trial in May 2015 (Doc. 8, #62–63), meaning his counsel represented

both Barnes and Penland around the same time in different cases. And Penland says

this conflict deterred his counsel from pursuing Penland’s best defense. Counsel did

not call Barnes to testify that Cure had (according to Penland) told Barnes he planned

to kill Penland, nor to support Penland’s theory that Barnes participated as a third

shooter. (Doc. 117, #2483). According to Penland, his counsel’s conflict adversely

affected Penland by limiting the arguments counsel could raise without incriminating

Barnes.

That won’t cut it. First, it is unclear Penland’s counsel simultaneously

represented Barnes. All Penland provides is documentation showing his counsel

represented Barnes in a different prosecution. (Doc. 34-1, #1544). But Penland

nowhere says what that prosecution was for or when that representation ended.

From a review of Hamilton County court records, the Court takes judicial

notice that Penland’s counsel represented Barnes in a prosecution for trafficking in

heroin. Hamilton County Court of Common Pleas, Case #B1500731; see also Rodic v.

Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (recognizing courts

may take judicial notice of other court records). Those records show Barnes pled guilty

and was sentenced on April 30, 2015—weeks before Penland’s trial. Thus, Penland

has not even shown his counsel had a present conflict when he presented Penland’s

case to the jury.16

Second, Penland provides mere allegations, not evidence, that Barnes had

interests antagonistic to his. To prevail, Penland needs to “make a factual showing of

inconsistent interests.” Kilpatrick, 798 F.3d at 375 (emphasis added). Penland simply

has no evidence Barnes took part in or knew of a plot to kill Penland. All Penland

provides are contemporaneous handwritten reports detailing that “KB” showed up at

the bar and spoke with “Dollar” (Penland’s nickname) and that someone saw “KB” in

a black car with “Boo” (Cure’s nickname).17 (Doc. 34-1, #1545–46). Even assuming

16 Granted, successive representation can result in a constitutionally improper conflict of

interest in some circumstances. See Moss v. United States, 323 F.3d 445, 459–62 (6th Cir.

2003). But for the other reasons discussed, Penland has not stated a meritorious ineffective

assistance claim anyway.

17 From the Court’s review of the trial transcript, Barnes’s name only appears when a witness

testified that Barnes entered the bar with Cure and that the two were “buddies.” (Doc. 8-2,

#553). But being seen with Cure, or even being “buddies” with him, is not evidence Barnes

attempted to murder Penland. Notably, no one testified to seeing Barnes leave the bar with

Cure.

“KB” refers to Kenyon Barnes, that’s not evidence Barnes joined a conspiracy to kill

Penland. Nothing more than Penland’s speculation connects Barnes to the shooting.18

Third, Penland’s counsel did not pursue an ineffectual defense of Penland to

protect his other client (or potentially former client). Instead, the trial evidence shows

he offered Penland’s best defense. As noted, the prosecution introduced video

evidence showing Penland and Cure alone interacting right before and during the

shooting. Little could be gained by introducing a “third shooter” theory inconsistent

with the video. This is particularly true given the lack of additional bullet holes in

the vehicles surrounding Penland. (See Doc. 8-3, #667). Plainly, there is no physical

evidence to support a “third shooter” theory. Thus, counsel did not fail to pursue a

“strong and obvious defense” by not calling Barnes to the stand—both counsel and

Penland himself offered the best defense available. McFarland, 356 F.3d at 707.

In summary, Penland has not shown an actual and substantial disadvantage

from his procedural default because he has not shown his counsel’s alleged errors

prejudiced him. Penland’s procedural default stands.

Finally, because the Court dismisses Penland’s Habeas Petition (Doc. 1) with

prejudice, the Court also DENIES Penland’s Objections to the Order Denying his

Motion for Reconsideration (Doc. 114) AS MOOT.

18 Penland’s theory is that Austin actually saw Barnes fire a gun and flee the scene. But

again, this is Penland’s speculation. Austin never not identified who she saw. And she

believes the shooter wore dark clothes (Doc. 8, #211), while other reports suggest Barnes wore

white that evening. (Doc. 34-1, #1547).

CONCLUSION

For the reasons discussed, the Court ADOPTS the R&R (Doc. 118) insofar as

it recommends dismissal and DISMISSES Penland’s Petition (Doc. 1) WITH

PREJUDICE. Further, the Court DENIES Penland’s Objections to the Order

Denying his Motion for Reconsideration (Doc. 114) AS MOOT. The Court DIRECTS

the Clerk to enter judgment and TERMINATE this matter on the Court’s docket.

The Court also DENIES Penland a Certificate of Appealability, CERTIFIES

pursuant to 28 U.S.C. § 1915 that any appeal of this Opinion would be objectively

frivolous, and DENIES him leave to proceed in forma pauperis on appeal.

SO ORDERED.

March 23, 2023

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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