# Pettus v. Warden, Franklin Medical Center

> District Court, S.D. Ohio · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10383247

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LaShawn R. Pettus,1 )
)
Petitioner, ) Case No.: 1:20-cv-00187
)
vs. ) Judge Michael R. Barrett
)
Warden, Franklin Medical Center, )
)
Respondent. )
)
)

ORDER

This matter is before the Court on the August 2, 2021 Report and
Recommendations (Doc. 56), as well as the August 20, 2021 Supplemental Report and
Recommendations (Doc. 62), issued by the Magistrate Judge.2
I. BACKGROUND
On October 21, 2016, a Hamilton County, Ohio grand jury indicted LaShawn Pettus
on twelve counts of forgery (in violation of Ohio Rev. Code § 2913.31(A)(3)) and four
counts of theft (in violation of Ohio Rev. Code § 2913.02(A)(3)). (State Court Record,
Doc. 23 (Exh. 1)). All individual counts of theft were aggregated and charged as a single

1 Petitioner was released from prison (pursuant to Ohio Rev. Code § 2929.20) on February 1,
2021 and placed on community control, “with intensive supervision,” for a period of five years. (Docs. 37,
37-1, 38). Respondent does not challenge “custody” for purposes of habeas corpus jurisdiction. See
generally Corridore v. Washington, 71 F.4th 491, 493–96 (6th Cir. 2023) (noting that the Supreme Court
has broadened the conception of “in custody” to include petitioners on parole).

2 The parties were given proper notice under Fed. R. Civ. P. 72(b), including notice that they
would forfeit rights on appeal if they failed to file objections to the R&R in a timely manner. United States
v. Walters, 638 F.2d 947 (6th Cir. 1981); see Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).
Petitioner filed timely objections (Docs. 60, 63) to both R&Rs.
offense pursuant to Ohio Rev. Code § 2913.61(C)(1). (Id.). Pettus’ case was tried to the
bench. (State Court Record, Doc. 23 (Exh. 21)). The trial court dismissed one of the
forgery counts (for lack of jurisdiction) and found Pettus guilty of all remaining offenses.
(State Court Record, Doc. 23 (Exhs. 22, 23)). He received an aggregate sentence of 60
months of imprisonment. (State Court Record, Doc. 23 (Exh. 27)).3

Pettus appealed. (State Court Record, Doc. 23 (Exh. 29)). On May 24, 2019, the
Ohio First District Court of Appeals determined that the trial court erred in imposing
consecutive sentences without making the required findings at the sentencing hearing
and remanded for resentencing. (State Court Record, Doc. 23 (Exh. 41 (¶¶ 64–69, 84,
85))).4 The First District otherwise affirmed the judgment of the trial court. (Id.).
On August 20, 2019, Pettus filed an application to reopen his direct appeal under
Ohio App. R. 26(B)5, asserting ineffective assistance of appellate counsel because
appellate counsel failed to include two additional assignments of error:
1. Pettus’ was denied his right to a preliminary hearing, in violation
of his rights to equal protection under the federal and state
constitutions.

2. Pettus’ was denied his right to hire private counsel, in violation of
his rights under the Sixth Amendment to the United States
Constitution.

3 Pettus also was sentenced to an additional six months of imprisonment, to run consecutive to
the 60-month term, because these the offenses were committed while Pettus was on transitional control
(at Talbert House) for a prior (and unrelated) conviction. (State Court Record, Doc. 23 (Exh. 27) PAGEID
392). See Ohio Rev. Code § 2929.141.

4 See State v. Bonnell, 140 Ohio St. 3d 209, 16 N.E.3d 659, syl. & at ¶ 29 (Ohio 2014).

5 “A defendant in a criminal case may apply for reopening of the appeal from the judgment of
conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application
for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.”
Ohio App. R. 26(B)(1).
(State Court Record, Doc. 23-1 (Exh. 57)). The First District denied the application on
December 23, 2020. (State Court Record, Doc. 46 (Exh. 80)). The Ohio Supreme Court
declined to accept jurisdiction of Pettus’ appeal on April 13, 2021. (State Court Record,
Doc. 46 (Exh. 83)).

Meanwhile, on March 4, 2020, Petitioner, proceeding pro se, filed in this Court his
Verified Petition for a Writ of Habeas Corpus. (Doc. 1).6 In it, he asserted six grounds
for relief. (Id. PAGEID 6–7 (¶ 23)). Counsel subsequently entered an appearance on
April 9, 2020. (Doc. 11). He later filed a motion to voluntarily dismiss Ground 6 of
Petitioner’s Petition on February 3, 2021. (Doc. 32).7 These five grounds remain for
adjudication:
Ground One: Violation of Equal Protection Clause: Pettus was
denied his right to a preliminary hearing prior to his indictment;

Ground Two: Violation of Sixth Amendment: Pettus has the right to
be represented by an otherwise qualified attorney whom that he, as
a defendant, can afford to hire;

Ground Three: Violation of Double Jeopardy Clause: Allied
Offenses, R.C. 2941.25: Forgery and Theft offenses merge when
the act of forgery provides the means for which the theft occurs;

Ground Four: Violation of Due Process and Equal Protection
Clauses: Pettus, represented by appointed counsel, is entitled to file,
pro se, a brief as a supplement to the brief filed by counsel;

Ground Five: Violation of Sixth Amendment: Ineffective Assistance
of Appellate Counsel – Counsel was deficient for failing to raise
issues that have a “reasonable probability” to be successful[.]

(Doc. 1 PAGEID 6–7 (¶ 23)).

6 As detailed in the Court’s July 27, 2021 Order, Petitioner has engaged in extensive motion
practice. (See Doc. 58).

7 Noting that Fed. R. Civ. P. 41(a) speaks of the dismissal of actions—that is, whole cases—as
opposed to individual claims, the Magistrate Judge treated the motion as one to amend pursuant to 28
U.S.C. § 2242 and, thus construed, granted the motion. (See Doc. 36).
II. STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are received
on a dispositive matter, the assigned district judge “must determine de novo any part of
the magistrate judge's disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
General objections are insufficient to preserve an issue for review. “A general
objection to the entirety of the magistrate[ judge]’s report has the same effects as would
a failure to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991); see 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[ judge]’s
suggested resolution, or simply summarizes what has been presented before, is not an
‘objection’ as that term is used in this context.”); Renchen v. Comm’r of Soc. Sec., No.
1:13-cv-752, 2015 WL 1097349, at *6 (S.D. Ohio Mar. 11, 2015) (plaintiff’s objection “is

an almost verbatim recitation of the argument presented to and considered by the
Magistrate Judge” and therefore need not be reconsidered) (citing Howard, 932 F.2d at
508–09).
III. DISCUSSION

The August 2, 2021 R&R (Doc. 59). The August 2, 2021 R&R recommends that
all five grounds for relief pled be dismissed with prejudice and that Pettus be denied a
certificate of appealability. The Magistrate Judge’s reasoning is summarized below.
Ground One. In his first ground for relief, Pettus asserts he was denied equal
protection of the laws (as guaranteed by the Fourteenth Amendment to the United States
Constitution) when he was denied a preliminary hearing before being indicted. Because
it was not included in the initial brief on direct appeal, a fact Pettus does not contest, the

Warden argues that this claim is procedurally defaulted. Not necessarily so, according to
the Magistrate Judge, who explains that Pettus properly preserved it under Ohio law by
presenting it in his 26(B) application.8 The Magistrate Judge further explains that “[i]f it
was ineffective assistance of appellate counsel to omit that claim, then the omission will
excuse the procedural default.” (Doc. 59 PAGEID 2536).
Under Strickland v. Washington, 466 U.S. 688 (1984), to establish ineffective
assistance of counsel, a defendant must show both deficient performance and prejudice.

Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (citing Knowles v. Mirzayance, 556
U.S. 111, 122 (2009)). The Magistrate Judge concludes that the First District decided the
ineffective assistance of appellate counsel claim on the merits when it denied his 26(B)
application. Quoting from that decision, the state appellate court determined that
“Appellate counsel was not constitutionally ineffective in failing to assign this matter as
error[ ]” . . . because it “presented no prospect for success had it been presented on
appeal.”9 (State Court Record, Doc. 46 (Exh. 80) PAGEID 2270–2271). The Magistrate

8 See State v. Davis, 119 Ohio St. 3d 422, 894 N.E.2d 1221 (Ohio 2008).

9 As noted by the Magistrate Judge, Ҥ 2254(d) does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington v. Richter, 562
U.S. 86, 100 (2011). “Instead, ‘[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the statute court adjudicated the claim on the merits in
the absence of any indication or state-law procedural principles to the contrary.’” Brown v. Bobby, 656
F.3d 325, 329 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 99).
Judge further concludes that the First District’s decision is entitled to deference under
28 U.S.C. § 2254(d)(1)10, because it “was not an objectively unreasonable application of
Strickland.” (Doc. 59 PAGEID 2541). Thus, the Magistrate Judge recommends that
Ground One be dismissed as procedurally defaulted because Pettus has not established

ineffective assistance of appellate counsel to excuse not presenting this claim on direct
appeal.
Additionally, Ground One should be dismissed as procedurally defaulted because
Pettus failed to timely present his equal protection claim to the trial court. Pettus was
indicted on October 21, 2016 and, at the request of the prosecutor, a warrant for his arrest
was issued the same day. (State Court Record, Doc. 23 (Exh. 1)). He was later arrested
on November 15, 2016 and presented with a copy of the Indictment three days later in

open court. (State Court Record, Doc. 23 (Exhs. 3, 14)). On February 16, 2017, Pettus
filed with the Hamilton County (Ohio) Court of Common Pleas a “Motion to Dismiss” in
which he raised the claim that he “was never afforded the privilege of, nor the opportunity
to request, a preliminary hearing prior to the issuance of the indictment.” (State Court
Record, Doc. 23 (Exh. 14) PAGEID 290 (emphasis in original)). Because “[t]he State has
afforded these privileges to other defendants in the State of Ohio[,]” but not him, this “is
in fact a violation of the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States.” (Id.). The trial court denied Pettus’ motion because it

10 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim—resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1).
was untimely filed under Ohio Crim. R. 12(D)11 and, on the merits, presented “no colorable
basis, in law or fact, for dismissal[.]” (State Court Record, Doc. 23 (Exh. 16) PAGEID
298). The trial court explained:

A preliminary hearing is a procedure conducted by a
municipal or county court to determine whether there is probable
cause to bind the defendant over to the common pleas court for
possible indictment. Where a defendant has already been directly
indicted, and is first arrested and arraigned upon an indictment no
preliminary hearing is necessary or appropriate. Under Criminal R.
5(A), “[w]hen a defendant first appears before a judge or magistrate,
the judge or magistrate … shall inform the defendant: … (4) Of his
right to a preliminary hearing in a felony case, when his initial
appearance is not pursuant to indictment….”
Because Mr. Pettus was directly indicted in this court, he was
not entitled to a preliminary hearing in the Hamilton County Municipal
Court. The judge or magistrate had no duty to inform him of a right
to a preliminary hearing, because he had none. Had leave to file the
motion to dismiss been granted, it lacks merit and would be denied.

(Id.). On these facts, the Magistrate Judge notes that: (1) Ohio has a rule governing the
timing of pretrial motions in felony cases; (2) Pettus breached that rule by filing his motion
to dismiss late; and (3) the trial judge enforced that rule against Pettus. (Doc. 59 PAGEID
2542–2543). He then concludes that Ohio Crim. R. 12(D) is an adequate and
independent procedural rule because it does not discriminate against claims based on
federal law and is necessary to protect the State’s interest in trying felony cases promptly.
(Id. PAGEID 2543 (citing Ohio Rev. Code § 2945.71)). Ohio, therefore, “meets the four
requirements for an enforceable procedural default in this instance.” (Id. (citing Maupin

11 “All pretrial motions except as provided in Crim.R. 7(E) and 16(M) shall be made within thirty-
five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of
justice may extend the time for making pretrial motions.” Ohio Crim. R. 12(D).
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)12). Because Pettus has made no attempt to
show excusing “cause and prejudice”13, his equal protection claim is procedurally
defaulted for this reason, too.

It also lacks merit, according to the Magistrate Judge. Pettus claims he was denied
a preliminary hearing based on a “literal application” of Ohio R. Crim. P. 5(B)(1), which
provides that, “[i]n felony cases a defendant is entitled to a preliminary hearing unless
waived in writing[,] . . . [but a] preliminary hearing shall not be held[ ] if the defendant
is indicted.”14 Because Pettus does not claim that this “classification of felony defendants”
is on some “invidious” basis (such as race, ethnicity, color, gender or national origin), the
Court must examine whether a rational basis supports it. (Doc. 59 PAGEID 2544). And
one does:

Preliminary hearings consume scarce judicial resources: scheduling
time, hearing time, and writing time. Their purpose is to determine if
there is probable cause to proceed with a case, but for persons
already indicted, that determination has been made by the body with
ultimate authority on the question, the grand jury. Since grand jury
indictment is guaranteed to Ohio felony defendants by the Ohio
Constitution, it would be more efficient to present every case in the
first instance to a grand jury, but preliminary hearing practice has
deep roots in English criminal practice and has been part of Ohio and
federal criminal practice since the Founding. But no court to the
Magistrate Judge’s knowledge and certainly none cited by Petitioner
has ever held there was a federal constitutional right to a preliminary
hearing.

12 Accord Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007) (quoting Monzo v. Edwards, 281
F.3d 568, 576 (6th Cir. 2002)).

13 See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

14 The Magistrate Judge agrees with Pettus that “there are tactical advantages to having a
preliminary hearing, particularly discovering the witnesses for the State and subjecting them to probing
cross-examination.” (Doc. 59 PAGEID 2543–2544). But, he explains, “‘winning’ at a preliminary [hearing]
(i.e., having the municipal judge find no probable cause) does not conclude the case. There is no res
judicata or double jeopardy effect to such a finding and the prosecutor is free to proceed to present the
case to a grand jury.” (Id. PAGEID 2544).
(Id. PAGEID 2546). Because Pettus’ equal protection preliminary hearing claim is twice
procedurally defaulted and, alternatively, without merit, the Magistrate Judge
recommends that it be dismissed with prejudice.

Ground Two. In his second ground for relief, Pettus asserts he was denied the
right to be represented in the trial court by counsel of his choice in violation of the Sixth
Amendment to the United States Constitution.15 The Warden argues, as he did with
respect to Ground One, that this claim is procedurally defaulted. The Magistrate Judge
engages in the same analysis as before, noting that Pettus presented this claim to the
First District “in the same way he presented the parallel claim as to Ground One” by
including it in his 26(B) application. (Doc. 59 PAGEID 2547). The Magistrate Judge
concludes that the First District “also decided this claim on the merits.” (Id.). Specifically,
the First District made a series of factual findings and determined that Pettus “had given

up his right to employ counsel of choice by not exercising it when given the opportunity.”
(Id. PAGEID 2548). Quoting (again) from the First District’s decision denying Pettus’
26(B) application, “The record shows that Pettus had ample opportunity to retain counsel
over the course of the year between his October 2016 indictment and his October 2017
trial. Therefore, his second proposed assignment of error would have presented no
reasonable probability for success had it been advance in the direct appeal.” (State Court
Record, Doc. 46 (Exh. 80) PAGEID 2271–2272). The Magistrate Judge further concludes

15 The Sixth Amendment guarantees a defendant “the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant
even though he is without funds.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (cleaned
up).
that the First District’s decision is entitled to deference under 28 U.S.C. § 2254(d)(1)16
because it “applied Strickland as it is relevant to the appellate context and concluded, as
it had with Ground One, that the assignment of error would not have been successful if it
had been raised by the first appellate attorney.” (Doc. 59 PAGEID 2548).

The Magistrate Judge explains that, under 28 U.S.C. § 2254(d)(2)17, the Court is
bound by the First District’s factual conclusion that Pettus forfeited his right to hire counsel
of his choice unless Pettus can show that it was an “unreasonable” determination of the
facts based on the evidence in the record. (Doc. 59 PAGEID 2548). He cannot, according
to the Magistrate Judge. Pettus focuses on the August 30, 2017 hearing on the motion
to withdraw by his second appointed counsel, Brian Goldberg. (Id. (citing State Court
Record, ECF No. 23-14)). Goldberg explained that he and Pettus disagreed over whether

to subpoena certain witnesses for trial. Additionally, Pettus “keeps saying I’m retaining
M.J. [Hugan].” (State Court Record, Doc. 23-14 PAGEID 1108–1109). The trial judge,
Jerome Metz, noted that Pettus had not yet retained attorney Hugan and, based on his
knowledge of her schedule “in general[,] . . . it’s probably six months before she can set
a trial date.” (Id. PAGEID 1110). Judge Metz then gave Pettus two choices:
[Y]our choices are essentially to go forward with Mr. Goldberg or to
appear on [October] 16th to represent yourself. This is your second
counsel. You’ve dismissed one, you’ve refused one.18 You have

16 See supra note 15.

17 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim—resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2).

18 (State Court Record, Doc. 23 (Exh. 2) PAGEID 222 (Entry Appointing Counsel (Arica
Underwood)), (Exh. 3) PAGEID 224 (Notice of Refusal of Attorney)).
delayed this case over and over again and it’s not happening again
today.

(Id. PAGEID 1110–1111). “Ample” evidence supports Judge Metz’s conclusion, in the
Magistrate Judge’s view, because “[s]o far as the record shows, Pettus never paid
M.J.[ Hugan]’s retainer and neither she nor any other retained attorney ever tendered a
substitution of counsel, much less with a representation that the trial could go forward as
scheduled.” (Doc. 59 PAGEID 2549). “On the record as it stands,” the Magistrate Judge
reflects that “Pettus’s choice of Attorney Hugan remains completely hypothetical.” (Id.
PAGEID 2560).
Ground Three. In his third ground for relief, Pettus asserts that his theft and

forgery convictions should have been merged (pursuant to Ohio Rev. Code § 2941.25) in
violation of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution.19 The Magistrate Judge agrees with Pettus that State v. Ruff, 143 Ohio St.
3d 114, 2015-Ohio-995, 34 N.E.3d 892 (Ohio 2015), controls. (Doc. 59 PAGEID 2253–
2254 (citing Allen v. Warden, Warren Corr. Inst., No. 1:19-cv-315, 2020 WL 3642508, at
*4–6 (S.D. Ohio July 6, 2020))). But the Magistrate Judge disagrees with Pettus that the

19 In Benton v. Maryland, the Supreme Court held that “the double jeopardy prohibition of the Fifth
Amendment” applies to the States through the Fourteenth Amendment of the United States Constitution.
395 U.S. 784, 794 (1969).
First District incorrectly applied Ruff.20 Regardless, the First District’s interpretation of
Ohio law binds this Court on habeas review. (Id. PAGEID 2555).21

As the Magistrate Judge explains, “[a]n Ohio court of appeals decision of a double
jeopardy claim which is limited to the application of Ohio Rev. Code § 2941.25 is entirely
dispositive of the federal double jeopardy claim.” (Id. PAGEID 2556 (citing Jackson v.
Smith, 745 F.3d 206, 211 (6th Cir. 2014) (“What determines whether the constitutional
prohibition against multiple punishments has been violated is the state legislature’s intent
concerning punishment. Specifically, ‘[w]ith respect to cumulative sentences imposed in
a single trial, the Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.’”) (quoting
Missouri v. Hunter, 459 U.S. 359, 366 (1983)))). Because the First District has

“definitively” held that he was “properly punished under Ohio law for separate offices,” the
Magistrate Judge recommends that Pettus’ Double Jeopardy Clause claim be dismissed
with prejudice. (Id. PAGEID 2556).

20 Paragraph three of the syllabus in Ruff states: “Under R.C. 2941.25(B), a defendant whose
conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true:
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses were committed with separate
animus.” Ruff, 34 N.E.3d 892, syl. ¶ 3 (emphasis added). The First District found that “the offenses of
forgery and theft were committed separately.” (State Court Record, Doc. 23 (Exh. 41 (¶ 80))). Pettus
does not challenge this finding, but, instead, contends that the offenses were all committed with the same
animus. But as the Magistrate Judge explains, “under Ruff separate conduct is sufficient even if the
same animus motivates both offenses. Thus it appears [ ] that the First District has correctly
applied Ruff to uphold the denial of merger here.” (Doc. 59 PAGEID 2554 (emphasis in original)).

21 Railey v. Webb, 540 F.3d 393, 398 (6th Cir. 2008) (‘[W]e do not consider on habeas review a
state court’s determination of state law.”) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have
repeatedly held that a state court’s interpretation of state law, including one announced on direct appeal
of the challenged conviction, binds a federal court sitting in habeas corpus.”)).
Ground Four. In his fourth ground for relief, Pettus asserts he was denied due
process of law, and equal protection of the laws, (both as guaranteed by the Fourteenth
Amendment to the United States Constitution), when he was denied the opportunity to
file a pro se brief with the First District as a supplement to the brief filed by his appointed

appellate counsel. Pettus wished to add as assignments of error his preliminary hearing
and counsel-of-choice claims.
The Magistrate Judge agrees with the Warden that this claim is procedurally
defaulted because Pettus did not “fairly present” it as a constitutional claim to either the
First District or the Ohio Supreme Court. (Doc. 59 PAGEID 2557–2558).22 The
Magistrate Judge further agrees with the Warden that, alternatively, this claim is without
merit, because there is no constitutional right to hybrid representation. (Id. PAGEID

2559).23
In an effort to side-step the Warden’s merits argument, Pettus claims that “this
Court has already recognized there is a right to file a pro se supplemental brief[.]”
(Id. PAGEID 2559).24 But the Magistrate Judge explains that Pettus “completely misreads
and quotes out of context what Judge Barrett wrote.” (Id.). “Judge Barrett did not
recognize any right to file a pro se supplemental appellate brief. Rather, . . . he recognized

that Pettus was claiming such a right which Judge Barrett found was unlikely to be

22 See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).

23 State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, 781 N.E.2d 72, at ¶ 43 (Ohio 2002) (citing
State v. Thompson, 33 Ohio St. 3d 1, 6–7, 514 N.E.2d 407, 414 (Ohio 1987) (citing McKaskle v. Wiggins,
465 U.S. 168 (1984))).

24 (See Traverse in Support of Writ of Habeas Corpus/Petitioner’s Reply to Respondent’s
Amended Return of Writ, Doc. 51 PAGEID 2480).
recognized when the Court reached the merits of the claim.” (Id. PAGEID 2559– 2560
(referring to May 26, 2020 Order, Doc. 22 PAGEID 200) (emphasis in original)). As for
Pettus’ continued reliance on State v. Smith, No. C-080607, 2009 WL 1900428 (Ohio Ct.
App. 1st Dist. July 2, 2009), the Magistrate Judge repeats that, “as Judge Barrett

previously noted, the Smith court was not presented with the question presented here, to
wit, whether there is a right to file a pro se brief. Instead, the Smith court noted it had
permitted a pro se brief and would therefore consider the pro se assignments of error.”
(Id. PAGEID 2560 (emphasis added)). The Magistrate Judge acknowledges that Ohio R.
App. P. 16(C) confers “discretion” on a court of appeals to allow additional briefing but
makes clear that “it does not mandate allowance of such briefing by any party, pro se or
otherwise.” (Id. (emphasis added)). Finally, that another court of appeals allowed pro se
briefing in a different case25 is persuasive only if Pettus is similarly situated to the
appellant who received the permission he was denied and no rational basis supported
the distinction between them.

The Magistrate Judge recommends that Ground Four be dismissed with prejudice
because Pettus’ claim—that he has been denied due process and his right to equal
protection of the laws to file a pro se supplemental brief—is procedurally defaulted and,
alternatively, without merit.

Ground Five. In his fifth ground for relief, Pettus asserts that he received
ineffective assistance of appellate counsel in violation of the Sixth Amendment to the

25 (See Traverse in Support of Writ of Habeas Corpus/Petitioner’s Reply to Respondent’s
Amended Return of Writ, Doc. 51 PAGEID 2480 (citing State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942,
at ¶ 26 (Ohio Ct. App. 4th Dist. 2017))).
United States Constitution. Here, the Magistrate Judge recalls that, “when considering
ineffective assistance of appellate counsel as potential cause to excuse the procedural
default of Grounds One and Two, the First District decided Pettus’s ineffective assistance
of appellate counsel claim on the merits when it denied his 26(B) Application.” (Doc. 59

PAGEID 2561). And “[b]ecause that decision was an objectively reasonable application
of Strickland [v. Washington, 466 U.S. 688 (1984)], it is entitled to deference under 28
U.S.C. § 2254(d)(1).” (Id. PAGEID 2561–2561). Thus, the Magistrate Judge
recommends that Ground Five be dismissed with prejudice.
Pettus’ Objections to the R&R (Doc. 60). Pettus filed timely objections to the
August 2, 2021 R&R (Doc. 59), after which the Court recommitted the matter to the
Magistrate Judge “with instructions to file a supplemental report analyzing the Objections

and making recommendations based on that analysis.” (Doc. 61). Briefly, as to Ground
One, and with regard to whether he procedurally defaulted his claim, Pettus argues that
the First District’s decision is not entitled to deference under 28 U.S.C. § 2254(d)(1),
because it “deviated” from what Ohio R. App. P. 26(B) requires. (Doc. 60 PAGEID 2568–
2569 (citing State v. Simpson, 164 Ohio St. 3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at
¶ 29 (Fischer, J., concurring))). And, having deviated, the First District “could not make a
reasonable determination of the facts in light of the evidence presented in the state court
proceeding, as required for the entitlement of deference.” (Id. PAGEID 2569–2570).
Primarily, though, Pettus objects to the Magistrate Judge’s determination that he did not

assert a violation of equal protection based on race, which would trigger a strict scrutiny
(versus rational basis) analysis. As to Ground Two, Pettus objects to the Magistrate
Judge’s determination that his choice-of-counsel claim lacks merit because it was
“hypothetical”. As to the remaining Grounds, Pettus reprises the same arguments, largely
word-for-word, that his counsel included in his Traverse/Reply. (Cf. Doc. 60 PAGEID
2570–2571 with Doc. 51 PAGEID 2478–2479 (Ground Three); cf. Doc. 60 PAGEID 2572–
2573 with Doc. 51 PAGEID 2480–2481 (Ground Four); cf. Doc. 60 PAGEID 2573 with

Doc. 51 PAGEID 2481–2482 (Ground Five)). Pettus also objects to the recommendation
that he be denied a certificate of appealability because the Magistrate Judge’s report is
thirty-two pages long. (Doc. 60 PAGEID 2573).
The August 20, 2021 Supplemental R&R (Doc. 62). The August 20, 2021
Supplemental R&R recommends (again) that all five grounds for relief pled be dismissed
with prejudice and that Pettus be denied a certificate of appealability.

Ground One. The original R&R recommends that Pettus’ equal protection
preliminary hearing claim be dismissed because it is twice procedurally defaulted: first,
because Pettus did not establish ineffective assistance of appellate counsel to excuse not
presenting this claim on direct appeal and, second, because Pettus failed to timely
present his claim to the trial court. Pettus takes issue (only) with the first procedural
default analysis. The Magistrate Judge finds this objection to be without merit, because
it turns solely on Pettus’s “own interpretation of what process is required under Rule

26(B).” (Doc. 62 PAGEID 2577 (“No Ohio court has adopted his position that the merits
of a 26(B) application cannot be properly decided without a two-step briefing process.”)).
Also, Pettus does not identify which “facts” in the record support his position that the First
District’s decision is unreasonable and the Magistrate Judge is aware of none.
The original R&R alternatively recommends that Pettus’ equal protection
preliminary hearing claim be dismissed because it is without merit. Ohio R. Crim. P.
5(B)(1) provides that a felony defendant is entitled to a preliminary hearing, unless he is
indicted by the grand jury. A rational basis supports this distinction between felony
defendants, because “[p]reliminary hearings consume scarce judicial resources:
scheduling time, hearing time, and writing time.” (Doc. 59 PAGEID 2546). Pettus objects,

insisting that this disparity should be subject to strict scrutiny review. (Doc. 60 PAGEID
2566 (“Pettus did contend in his petition that African Americas have been systematically
denied the right to a preliminary hearing.”) (emphasis added)).26 Not so, the Magistrate
Judge explains:
Ground One contains absolutely no mention of race or racial
discrimination at all. When Pettus first made his equal protection
claim in his Motion to Dismiss, he made no mention of race or racial
discrimination[.] (Motion, State Court Record, ECF No. 23, Ex. 14).
In his 26(B) Application when he presented this claim to the First
District as an omitted assignment of error, he wrote “Pettus’ was
denied his right to a preliminary hearing, in violation of his rights to
equal protection under the federal and state constitutions.”
(Application, State Court Record, ECF No. 23, Ex. 27, PageID 781).
Both the Assignment and the accompanying text never mention race
or racial discrimination.

(Doc. 62 PAGEID 2579). “Thus, the first time Pettus makes a claim that he was denied
a preliminary hearing on the basis of his race is in his Objections.” (Id.). This objection
fails, because “[a] habeas petitioner may not raise a new claim in a traverse or reply,

26 (Doc. 60 PAGEID 2566 (“Disparate treatment, based on race, require[s] a strict scrutiny
analysis in order for the disparate treatment to pass constitutional muster. Johnson v. California, 125
S.Ct. 1141 (2005).”)).
much less in a set of objections.” (Id. (citing Jalowiec v. Bradshaw, 657 F.3d 293, 311–
12 (6th Cir. 2011) (citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005)))).27

As to Pettus’ additional argument that a strict scrutiny analysis is required because
Rule 5(B)(1) “touches on fundamental interests[,]” the Magistrate Judge distinguishes the
cases he cites in support. (Doc. 62 PAGEID 2580–2581 (the analysis in Coleman v.
Alabama, 399 U.S. 1 (1970) “was entirely under the Sixth Amendment; no mention is
made of strict scrutiny or the Equal Protection Clause”) & (the Court in Obergefell v.
Hodges, 576 U.S. 644 (2015) “did not reach its conclusion by applying a strict scrutiny
test under the Equal Protection Clause, but rather by finding that the right to marry was a
fundamental right protected by the substantive branch of the Due Process Clause”)).

No case cited by Pettus, or independently known by the Magistrate Judge, holds
that “there is a constitutional right to a preliminary hearing at all, despite the fact that it
may be advantageous to the defendant.” (Doc. 62 PAGEID 2581). The Magistrate Judge
remains convinced that a rational basis (and not strict scrutiny) analysis is warranted. He
renews his recommendation that Ground One be dismissed with prejudice.

Ground Two. The original R&R recommends that Pettus’ claim that his Sixth
Amendment right to retain counsel of his choice be dismissed because it is procedurally
defaulted. Like his equal protection preliminary hearing claim, Pettus has not established
ineffective assistance of appellate counsel to excuse not presenting this claim on direct
appeal. The First District’s conclusion that Pettus had “ample opportunity to retain

27 The Magistrate Judge notes that, if Pettus were to seek leave to amend his petition, his motion
“would be denied as futile because barred by procedural default (never presented to the state courts) and
the statute of limitations.” (Doc. 62 PAGEID 2579–2580).
counsel of choice, opportunity which he did not exercise,” is supported by facts in the
record and is thus entitled to deference under 28 U.S.C. 2254(d). (Doc. 62 PAGEID
2581). Pettus objects, but “[h]e does nothing to rebut the Report’s finding that he never
tendered an entry of appearance from his chosen counsel and does not claim that he

ever paid her retainer.” (Id.). The Magistrate Judge renews his recommendation that
Ground Two be dismissed with prejudice.
Ground Three. The original R&R recommends that Pettus’ Double Jeopardy
Clause claim be dismissed with prejudice. The Magistrate Judge reaffirms that State v.
Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892 (Ohio 2015) controls and notes
that the cases Pettus cites predate Ruff. Regardless, the Magistrate Judge reiterates
that, under circuit precedent, “an Ohio court of appeals decision of a double jeopardy

claim which is limited to the application of Ohio Rev. Code § 2941.25 is entirely
dispositive of the federal double jeopardy claim[.]” (Doc. 62 PAGEID 2582 (citing
Jackson v. Smith, 745 F.3d 206, 210 (6th Cir. 2014) (emphasis added))).
Ground Four. The original R&R recommends that Pettus’ due process and equal
protection clause claim be dismissed as procedurally defaulted because he did not “fairly
present” it to the First District or the Ohio Supreme Court as a constitutional claim.

Alternatively, it should be dismissed on the merits because there is no constitutional right
to hybrid representation. The Magistrate Judge repeats his observation that “a
reservation of discretion to allow a pro se brief does not mean, as Pettus argues, that
everyone who seeks leave to file a supplemental pro se brief is ‘entitled’ to file one.” (Doc.
62 PAGEID 2583). “[M]erely asserting that something is a right does not make it [s]o.”
(Id.).
Ground Five. The original R&R recommends that Pettus’ claim that he received
ineffective assistance of appellate counsel be dismissed with prejudice, because it was
previously analyzed in the context of excusing procedural default vis-à-vis Grounds One
and Two. The Magistrate Judge engages in no further analysis because, while Pettus

objects, he simply incorporates prior arguments.
Certificate of Appealability. Pettus objects to the Magistrate Judge’s
recommendation that he be denied a certificate of appealability because the R&R is thirty-
two pages long. The Magistrate Judge notes, however, that Pettus “cites no jurist who
has disagreed with any of the conclusions the Report reached.” (Doc. 62 PAGEID 2584).

Pettus’ Objections to the Supplemental R&R (Doc. 63). Pettus filed timely
objections to the Supplemental R&R (Doc. 62), all of which the Court will overrule.
Pettus urges that any procedural default as to Grounds One and Two should be
excused “because of the state court’s procedural irregularities and civil rights violations,
one of which this Court has already recognized.” (Doc. 63 PAGEID 2589 (citing May 26,

2020 Order, Doc. 22 PAGEID 200 (“a ‘right’ was created [by the Ohio appellate court] that
was later denied to [Pettus].” (Barrett, J.)))). The purported “right” to which Pettus refers
is the “right” to file a pro se brief (to supplement appointed appellate counsel’s brief) in
which he argues his equal protection preliminary hearing claim (Ground One) and his
Sixth Amendment choice-of-counsel claim (Ground Two). As the Magistrate Judge
observed, the undersigned did not recognize any such right. The undersigned was simply
paraphrasing the (unavailing) argument of habeas counsel. Similarly, as to Ground Four,
Pettus argues that the Magistrate Judge never addresses the “right” to file a pro se
supplemental brief “[d]espite the fact the Article III judge in this action recognized that a
right was created that was later denied to Pettus[.]” (Doc. 63 PAGEID 2590). This
statement is wildly inaccurate28 and, as such, cannot substantiate an objection.

As to the Magistrate Judge’s alternative recommendation that Ground One be
dismissed with prejudice because it is without merit, habeas counsel maintains (again)
that “Pettus did contend in his petition that African American have been systematically
denied the right to a preliminary hearing.” (Doc. 63 PAGEID 2591 (emphasis added)).
This statement is entirely false, as the Magistrate Judge explains and as any competent
reader can discern. Ground One claims a violation of the Equal Protection Clause in that
“Pettus was denied his right to a preliminary hearing prior to his indictment[.]” (Doc. 1
(¶ 23) PAGEID 6). Facts in support state simply, “Petitioner was denied the right to a
preliminary hearing by the State with its use a loophole in Ohio’s Crim.R. 5(B), while other

similarly situated defendants in Ohio were in fact permitted the right to have preliminary
hearings.” (Id.). There is no mention of race. None. A rational basis (rather than strict
scrutiny) analysis applies, and the Magistrate Judge correctly identified one. The balance
of Pettus’ objection as to Ground One is an almost verbatim recitation of the argument
presented to and rejected by the Magistrate Judge. (Cf. Doc. 51 PAGEID 2474 with Doc.
63 PAGEID 2591–2593). Under Aldrich and Renchen, it is properly overruled.

As to the Magistrate Judge’s alternative recommendation that Ground Two be
dismissed with prejudice because it is without merit, Pettus refers the Court to the July
14, 2017 hearing at which time Brian Goldberg was appointed as his counsel to replace
Arika Underwood. (Doc. 63 PAGEID 2595 (citing State Court Record, ECF No. 23-13)).

28 (See Aug. 2, 2021 R&R, Doc. 59 PAGEID 2557–2561 & Aug. 20, 2021 Supp. R&R, Doc. 62
PAGEID 2583).
Pettus contends that Judge Metz knew as early as July 14, 2017 that he “was in the
process of retaining Mary Jo (MJ) Hugan as private counsel.” (Id. (citing ECF No. 23-13
PAGEID 1100)). And “[a]s there had not been any delays with the initial trial date, nor
continuances requested by either party, the trial court recognized this was Pettus’ first

time seeking private counsel and expressly stated that the trial ‘court would continue that
[Oct. . . .trial] date’ if necessary.” (Id. (citing ECF No. 23-13 PAGEID 1104)). Once again,
however, habeas counsel has misstated the record. First, Pettus told Judge Metz that
his mother was speaking both to Ms. Hugan and attorney Clyde Bennett. (Doc. 23-13
PAGEID 1100). Attorney Bennett, who was in the courtroom, advised Judge Metz that
“at this point” he had not been retained on the case. (Id. PAGEID 1101). Second, the
discussion around the trial date concerned appointed counsel Goldberg’s schedule. (Id.
PAGEID 1103–1104). Judge Metz expressly told Pettus that if he retained private
counsel and they appeared at the next status call, “and if they can meet this trial
schedule or improve it, I have no problem with substituting them.” (Id. PAGEID 1105

(emphasis added)).
Pettus’ objection as to Ground Three is a reprise of arguments made in his
Traverse/Reply. (Cf. Doc. 51 PAGEID 2478–2479 with Doc. 63 PAGEID 2597–2598).
Under Aldrich and Renchen, it is properly overruled.

Pettus’ objection as to Ground Four repeats arguments made in his
Traverse/Reply and in his Objections to the August 2, 2021 R&R. (Cf. Doc. 51 PAGEID
2479–2481 with Doc. 60 PAGEID 2571–2573 with Doc. 63 PAGEID 2599–2601). Under
Aldrich and Renchen, it is properly overruled.
The same holds true regarding Pettus’ objection as to Ground Five. Cf. Doc. 51
PAGEID 2482 with Doc. 60 PAGEID 2573 with Doc. 63 PAGEID 2601). Under Aldrich
and Renchen, it is properly overruled.

Finally, Pettus appeals to the undersigned Article III judge to be the “reasonable
jurist” that disagrees with the recommendation that he be denied a certificate of
appealability. Habeas counsel misconstrues the standard, which contemplates more than
whether the undersigned views the Magistrate Judge’s recommendations to be correct.

IV. CONCLUSION
The Court ACCEPTS and ADOPTS the August 2, 2021 R&R (Doc. 59), as
supplemented (Doc. 62) on August 20, 2021. Petitioner’s objections (Docs. 60, 63) are
OVERRULED. Accordingly, the Petition (Doc. 1) is DISMISSED in its entirety with
prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner
is DENIED a certificate of appealability. The Court CERTIFIES that any appeal to the
United States Court of Appeals for the Sixth Circuit would be objectively frivolous and,

consequently, Petitioner is DENIED leave to appeal in forma pauperis.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383247. Public record. Not legal advice.