# Cephas v. Warden, Lebanon Correctional Institution

> District Court, S.D. Ohio · October 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10383446

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

ERNEST CEPHAS,

Petitioner, : Case No. 1:23-cv-68

- vs - District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,

:
Respondent.
REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Ernest Cephas to obtain relief
from his convictions for felonious assault and having weapons under disability in the Hamilton
County Court of Common Pleas. Relevant pleadings are the Petition (ECF No. 1), the State Court
Record (ECF No. 5), and the Warden’s Return of Writ (ECF No. 6). Although the Court set a
deadline for Petitioner to file a reply (June 5, 2023), he has not done so and the time for doing so
has expired.
The Magistrate Judge reference in this case was recently transferred to the undersigned to
help balance the workload in this District (ECF No. 7).
Litigation History

On July 13, 2016, Timothy Reed and his two-year old grandson were shot as they emerged
from a car on Whetsel Avenue in Madisonville. A Hamilton County grand jury indicted Cephas

for these shootings (State Court Record, ECF No. 5, Ex. 1). A petit jury convicted him on all
counts and he was sentenced to an aggregate term of imprisonment of twenty-five years. Id. at Ex.
9. Through new counsel, Cephas appealed to the Ohio Court of Appeals for the First District
which affirmed. State v. Cephas, 2019-Ohio-52 (Ohio App. 1st Dist. Jan. 11, 2019). The Ohio
Supreme Court declined to exercise jurisdiction over a subsequent appeal. State v. Cephas, 155
Ohio St.3d 1423 (2019).
On April 8, 2019, Cephas raised claims of ineffective assistance of appellate counsel by
filing an Application to Reopen under Ohio R. App. P. 26(B)(State Court Record, ECF No. 5, Ex.
17). The First District denied the Application. Id. at Ex. 20. Although granted leave to file a

delayed appeal because of COVID-19, Cephas did not meet the extended deadline and the Supreme
Court dismissed his subsequent appeal to that court. Id. at Ex. 23.
Petitioner’s efforts to have the appellate denial of his 26(B) vacated and re-entered were
unavailing. On June 12, 2019, he filed a Petition for Post-Conviction Relief under Ohio Revised
Code § 2953.21 and a Petition to Vacate. Id. at Exs. 31 and 32. These were denied by the Common
Pleas Court and their denial was affirmed on appeal. Id. at Ex. 39. The Ohio Supreme Court
declined to exercise jurisdiction over an appeal. Id. at Ex. 42.
Cephas filed his Petition in this Court by depositing it in the prison mailing system on
February 5, 2023 (ECF No. 1, PageID 38). He pleads the following Grounds for Relief:
Ground One: Petitioner was denied his right to due process which
is guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution, when the trial court erred by allowing in
statements of a non-testifying victim.

Where a victim does not appear in court, the police cannot simply
read and testify to what that person allegedly told them in a prior
non-sworn interview or statement.

Ground Two: Petitioner was denied his right to due process which
is guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution, when the trial court erred by allowing unfairly
prejudicial photographs to be presented at trial.

Where it is not in dispute that an infant was injured but rather how
did the injuries occur, therefore, showing multiple gruesome
photographs was unfairly prejudicial.

Ground Three: Petitioner was denied his right to effective
assistance of trial counsel as guaranteed by the Sixth Amendment to the
United States Constitution, when defense counsel made harmful
concessions during opening statements.

When defense counsel makes harmful concessions during opening
statements, and was not prepared to finish the trial, the defendant
receives ineffective assistance of counsel.

Ground Four: Petitioner was denied his right to due process which is
guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution, when the trial court erred to the prejudice of the
Petitioner because the verdict was against the manifest weight of the
evidence.

Where the evidence shows that the defendant did not commit the
offenses, there is insufficient evidence to convict on the charges.

Ground Five: Petitioner was denied his right to due process which is
guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution,

Where the record does not support the sentence imposed by the trial
court, the trial court erred by giving petitioner such a lengthy prison
sentence.

Ground Six: Petitioner was denied effective assistance of appellate
counsel as guaranteed by the Sixth Amendment of the United States
Constitution when appellate counsel failed to raise the issue of
prosecutorial misconduct on direct appeal.
Ground Seven: Petitioner was denied effective assistance of
appellate counsel as guaranteed by the Sixth Amendment of the
United States Constitution where appellate counsel failed to raise
the issue of ineffective assistance of trial counsel where the defense
counsel opened the door to hearsay testimony at trial.

Ground Eight: Petitioner was denied effective assistance of
appellate counsel as guaranteed by the Sixth Amendment of the
United States Constitution when appellate counsel failed to raise the
issue of the prosecution’s failure to secure the presence of a witness
at trial, who was a primary victim.

Ground Nine: Petitioner was denied effective assistance of
appellate counsel as guaranteed by the Sixth Amendment of the
United States Constitution when appellate counsel failed to perform
his duties to a nominal degree of representation on appellant’s direct
appeal.

Ground Ten: Petitioner was denied the right to effective assistance
of trial counsel and a fair trial in violation of the Sixth Amendment
to the United States Constitution when trial counsel failed to have
the blue t-shirt tested by an independent gun-shot residue expert.

Ground Eleven: Petitioner was denied the right to effective
assistance of trial counsel and a fair trial in violation of the Sixth
Amendment to the United States Constitution when trial counsel
failed to have the victim subpoenaed and his presence secured for
questioning at trial.

Ground Twelve: Petitioner was denied the right to effective
assistance of trial counsel and a fair trial in violation of the Sixth
Amendment to the United States Constitution when trial counsel
failed to have the car and its contents tested by an independent gun-
shot residue expert.

Ground Thirteen: Petitioner was denied the right to effective
assistance of trial counsel and a fair trial in violation of the Sixth
Amendment to the United States Constitution when trial counsel
failed to take appropriate action for the lack of an arrest warrant or
any probable cause to arrest the Petitioner.

Ground Fourteen: Petitioner was denied the right to effective
assistance of trial counsel and a fair trial in violation of the Sixth
Amendment to the United States Constitution when trial counsel
failed to inform him of the plea bargain that the prosecution was
offering him.
(Petition, ECF No. 1).

Analysis

Ground One: Admission of Statement of a Non-Testifying Witness

In his First Ground for Relief, Cephas complains that a police officer was allowed to testify
about a statement made by a non-testifying victim witness, Timothy Reed. Cephas raised this as
his First Assignment of Error on direct appeal and the First District decided it as follows:
{¶23} In his first assignment of error, Cephas contends that the trial
court erred in admitting into evidence statements by a victim who
did not testify. Specifically, he argues that the trial court violated his
right to confront the witnesses against him by allowing Detective
Kelly to testify about statements made by Reed, who did not
cooperate with police or testify at the trial. This assignment of error
is not well taken.

{¶24} The record shows that if any error occurred, it was invited
error. Under the invited-error doctrine, a party cannot take
advantage of an error that the party invited or induced the trial court
to make. State v. Bey, 85 Ohio St.3d 487, 493, 709 N.E.2d 484
(1999); State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and
C-170200, 2018-Ohio-3640, ¶ 54. The statements were not elicited
by the state in its direct examination. Instead, Cephas's counsel
asked Detective Kelly about those statements during his cross-
examination. Then, on redirect examination, the state questioned
Kelly further about Reed's statement. Cephas objected at that time,
but he had already opened the door for that testimony.
Consequently, Cephas invited the error. See In re Bailey, 1st Dist.
Hamilton No. C-990528, 2001 WL 477069 *1 (May 3, 2001) (the
term “opening the door” is based on the doctrine of invited error).

{¶25} Even if it was not invited error, any error was harmless
because Reed told Kelly that he could not identify the shooter
because he did not get a good look at him. See State v. Bayless, 48
Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of the
syllabus; State v. Robinson, 1st Dist. Hamilton No. C-060434, 2007-
Ohio-2388, ¶ 16. Consequently, we overrule Cephas's first
assignment of error.
State v. Cephas, 2019-Ohio-52.
As the First District realized, Cephas’s First Assignment of Error arises under the
Confrontation Clause1. The First District decided this claim on the merits, finding there was no
constitutional violation where Cephas’s own lawyer elicited the complained-of statements.
When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams
(Terry) v. Taylor, 529 U.S. 362, 379 (2000).
Cephas has made no legal argument on Ground One because he has not filed a reply. On
direct appeal, he cited several leading Supreme Court interpretations of the Confrontation Clause,
including Delaware v. VanArsdall, 475 U.S. 673 (1986), and Crawford v. Washington, 541 U.S. 36
(2004). In deciding that admission of Reed’s out-of-court statements did not violate the Confrontation
Clause, the First District cited only Ohio precedent on invited error. Nevertheless, this Magistrate

Judge is not aware of any Supreme Court precedent which would make the invited error doctrine
inapplicable to what would otherwise be a Confrontation Clause violation.
Accordingly, this Court should defer to the First District’s decision on Cephas’s Confrontation
Clause claim and dismiss Ground One with prejudice on the merits.

Ground Two: Admission of Gruesome Photographs

1 In the First District, Cephas argued this claim under the Confrontation Clause of the Sixth Amendment, not under
the Due Process Clause.
In his Second Ground for Relief, Cephas claims he was prejudiced by the admission of
gruesome photographs of the infant victim in violation of his Due Process rights. He presented this
claim to the First District in his second assignment of error which that court decided as follows:
{¶26} In his second assignment of error, Cephas contends that the
trial court erred in allowing unfairly prejudicial photographs into
evidence. He argues that the court should not have admitted a
photograph of the injured child that showed the child’s full body
with medical tubing, because it was cumulative to a photograph
already admitted and served only to inflame the jury. This
assignment of error is not well taken.

{¶27} Under Evid.R. 403, the decision whether to admit
photographs into evidence lies within the trial court’s discretion.
Gruesome photographs are admissible at trial as long as their
probative value is not substantially outweighed by the danger that
the accused will be unfairly prejudiced. State v. Maurer, 15 Ohio
St.3d 239, 264-265, 15 Ohio B. 379, 473 N.E.2d 768 (1984); State
v. Miller, 1st Dist. Hamilton No. C-010543, 2002-Ohio-3296, ¶ 13.

{¶28} The trial court held a hearing on the two photographs the state
presented to prove the child’s injuries. The first, to which Cephas
did not object, showed the child’s head. Cephas did not object to its
admission, stating that it “does an excellent job of covering up some
of the medical instruments that are being run to help the child.” But
Cephas contended the second photograph was unduly prejudicial
because it showed “the full body and medical tubing and all the
necessary medical supplies plugged into the child.”

{¶29} The state indicated that it had 24 pictures of the infant, and
that it had selected two as a representation of the child’s injuries.
Because Cephas was charged under both former R.C. 2903.11(A)(1)
and (A)(2), the state had to prove both serious physical harm and
physical harm by means of a deadly weapon. The state represented
that the two selected photographs “support[ed] those elements.”

{¶30} The trial court stated that because the state had the burden to
prove serious physical harm, the two photographs would be
admitted. Our review of the record shows that the second
photograph was not needlessly cumulative, and the probative value
of the photograph was not substantially outweighed by the danger
of unfair prejudice to Cephas. We cannot hold that the trial court’s
decision to admit the second photograph was so arbitrary,
unreasonable or unconscionable as to connote an abuse of
discretion. See State v. Smith, 80 Ohio St.3d 89, 108-109, 1997-
Ohio-355, 684 N.E.2d 668 (1997); State v. Morales, 32 Ohio St.3d
252, 257-258, 513 N.E.2d 267 (1987); Miller, 1st Dist. Hamilton
No. C-010543, 2002-Ohio-3296, at ¶ 13-15. Therefore, we overrule
Cephas’s second assignment of error.

State v. Cephas, supra.

Respondent asserts this claim is not cognizable in habeas corpus because it amounts only
to an attempted appeal of a state court evidentiary ruling (Return, ECF No. 6, PageID 1802-03).
In this Court Cephas labels the admission of the photograph as a violation of his Due Process
rights. In the First District, Cephas presented this claim solely as a question of state law, making
no constitutional claim whatsoever (Appellant Brief, State Court Record, ECF No. 5, PageID 93).
Because Cephas did not fairly present the photograph claim as a Due Process claim to the First
District, the constitutional claim is procedurally defaulted. As a matter of Ohio evidence law,
Cephas presented this claim as an abuse of discretion and the First District decided it was not. This
Court cannot review a claim of abuse of discretion. But abuse of discretion is not a denial of due
process. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Ground Two should therefore be dismissed with prejudice either as procedurally defaulted
or as non-cognizable in habeas.

Ground Three: Ineffective Assistance of Trial Counsel: Making Damaging Concessions and
Being Unprepared to Complete the Trial.

In his Third Ground for Relief, Cephas claims he received ineffective assistance of trial
counsel when his defense attorney made damaging admissions during opening statements and
when his attorney was unprepared to complete the trial. Cephas presented this claim as his Third
Assignment of Error on direct appeal and the First District decided it as follows:
{¶31} In his third assignment of error, Cephas contends that he was
denied the effective assistance of counsel. He argues that his counsel
made harmful concessions and was not prepared to finish the trial.
This assignment of error is not well taken.

{¶32} A court will presume that a properly licensed attorney is
competent, and the defendant bears the burden to show ineffective
assistance of counsel. State v. Hamblin, 37 Ohio St.3d 153, 155-156,
524 N.E.2d 476 (1988); State v. Hackney, 1st Dist. Hamilton No. C-
150375, 2016-Ohio-4609, ¶ 36. To sustain a claim of ineffective
assistance of counsel, the defendant must show that counsel's
performance was deficient, and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hackney at ¶ 36.

{¶33} First, Cephas takes issue with his counsel's statements in
opening arguments. Counsel stated that Cephas had “struggled
throughout his entire life with substance abuse, both narcotics and
alcohol” and that he had “dealt drugs in the past only to facilitate his
need, his addiction and to make sure that he had a constant supply
to use.” Counsel also stated that Cephas had “tried to recover
numerous times throughout his life.” He added that the day of the
offense “started off horribly for Mr. Cephas” for a number of
reasons including that he had “begun using narcotics again.” The
record shows that counsel's admissions were tactical decisions, and
Cephas has failed overcome the presumption that those admissions
were sound trial strategy. See Strickland at 689; State v. Thomas, 1st
Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 51.

{¶34} At the sentencing hearing, Cephas complained that his
counsel “misrepresented” him because counsel “wasn't in his right
mind because his wife had a miscarriage in the middle of trial.”
Cephas also complained that counsel had spoken with Cephas's
family about Cephas being suicidal, that counsel had never
discussed discovery with him, and that discovery was withheld from
him. The record contains no support for any of these assertions.
They involve matters outside the record, which we cannot consider
on direct appeal. See State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
500 (1978), paragraph one of the syllabus; State v. Fields, 1st Dist.
Hamilton No. C-090648, 2010-Ohio-4114, ¶ 15; State v. Merkle, 1st
Dist. Hamilton Nos. C-020454 and C-030557, 2004-Ohio-1913, ¶
44-47.

{¶35} The record shows that Cephas's counsel provided him with a
diligent and thorough defense. He has not demonstrated that
counsel's performance fell below an objective standard of
reasonableness or that, but for counsel's unprofessional errors, the
results of the proceeding would have been otherwise. Therefore, he
has failed to meet his burden to show ineffective assistance of
counsel. See Strickland, 466 U.S. at 687-689, 104 S.Ct. 2052, 80
L.Ed.2d 674; Hackney 1st Dist. Hamilton No. C-150375, 2016-
Ohio-4609, at ¶ 37-38. Consequently, we overrule Cephas's third
assignment of error.

State v. Cephas, supra.
The First District applied the governing federal constitutional standard, Strickland v.
Washington, 466 U.S. 668 (1984), to deciding this claim and found it was without merit. Cephas’s
burden under Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") is to show the decision was contrary to or an objectively unreasonable
application of Strickland. Because Cephas has filed no reply, the Court has no argument from him
as to how the First District’s decision runs afoul of Strickland. The First District found the
admissions in opening statement were done for tactical reasons, presumably to elicit sympathy
from the jury, and this Court cannot say that was an unreasonable conclusion. In Strickland itself,
the Supreme Court held trial counsel must be left broad discretion in making tactical decisions.
Strickland, supra, at 689. Counsel’s tactical decisions are particularly difficult to attack. O’Hara
v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). Indeed, strategic choices by defense counsel are
“virtually unchallengeable.” Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001), quoting Meeks
v. Bergen, 749 F.2d 322, 328 (6th Cir. 1984).
As for counsel’s being unprepared to complete the trial, the First District found there was
no evidence in the appellate record to support the claim. The only record reference made in the
Appellant’s Brief is to statements by Cephas at sentencing, some of which he was not competent
to make – e.g., that defense counsel was not in his right mind because of his wife’s mid-trial
miscarriage. Ohio allows constitutional claims which cannot be adjudicated on the appellate
record to be brought by a petition for post-conviction relief under Ohio Revised Code § 2953.21.
By noting that Cephas’s claim about his attorney’s state of mind could not be adjudicated on the
appellate record, it left the issue open for later consideration on a post-conviction petition.
The First District’s decision on this ineffective assistance of trial counsel claim is neither
contrary to nor an objectively unreasonable application of Strickland. Ground Three should be
dismissed with prejudice.

Ground Four: Conviction Against the Manifest Weight of the Evidence and Based on
Insufficient Evidence

In his Fourth Ground for Relief, Cephas claims his conviction is against the manifest
weight of the evidence. A manifest weight claim is not cognizable in habeas. A weight of the
evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir.
1986). Therefore the Fourth Ground for Relief should be dismissed as non-cognizable in habeas
corpus.
Cephas also asserts his conviction is not supported by sufficient evidence. This assertion
does state a claim under the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307 (1979).
Cephas presented a manifest weight claim as his Fifth Assignment of Error on appeal and an
insufficient evidence claim as his Fourth Assignment (Appellate Brief, State Court Record, ECF
No. 5, PageID 102).
The First District decided the Fourth Assignment of Error as follows:
{¶36} In his fourth assignment of error, Cephas contends that his
convictions were not supported by sufficient evidence. He argues
that no witness ever identified him as the shooter and that no
physical evidence placed him at the scene of the shooting. He also
points to various inconsistencies in the testimony of the state's
witnesses, most notably that some witnesses had stated that they had
seen a red car at the scene, rather than a green car. This assignment
of error is not well taken.
{¶37} The state's evidence was circumstantial, but circumstantial
evidence and direct evidence have the same probative value. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one
of the syllabus; State v. Durgan, 1st Dist. Hamilton No. C-170148,
2018-Ohio-2310, ¶ 39. Further, no rule of law exists that a witness's
testimony must be corroborated by physical evidence. Durgan at ¶
39. Any inconsistencies in the witnesses' testimony goes to
credibility, and in deciding if the evidence was sufficient we neither
resolve evidentiary conflicts nor assess the credibility of witnesses.
Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, at ¶
45.

{¶38} Our review of the record shows that a rational trier of fact,
after viewing the evidence in a light most favorable to the
prosecution, could have found the elements of two counts of
felonious assault under R.C. 2903.11(A)(2), the accompanying
firearm specifications, and one count of having weapons while
under disability under R.C. 2923.13(A)(3). Therefore, the evidence
was sufficient to support his convictions. See Jenks at paragraph two
of the syllabus; Hackney, 1st Dist. Hamilton No. C-150375, 2016-
Ohio-4609, at ¶ 29. Consequently, we overrule Cephas's fourth
assignment of error.

State v. Cephas, supra.

On habeas corpus review, Cephas bears the burden of showing this decision is contrary to
or an objectively unreasonable application of Jackson v. Virginia. In order for a conviction to be
constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In
re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020)(quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the AEDPA, two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010). “To
evaluate a sufficiency-of-the-evidence claim, we consider ‘whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ Smith v. Nagy, 962 F.3d 192, 205 (6th Cir.
2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “must be applied
with explicit reference to the substantive elements of the criminal offense as defined by state law.”
Id. (quoting Jackson, 443 U.S. at 324).”
Reviewing the circumstantial evidence cited by the First District, the Magistrate Judge
concludes that Court’s determination of sufficiency is entitled to deference under 28 U.S.C. §
2254(d)(2). Therefore the Fifth Ground for Relief should be dismissed with prejudice on the
merits.
Ground Six: Ineffective Assistance of Appellate Counsel: Failure to Raise Prosecutorial
Misconduct

On his first appeal of right, a criminal defendant is entitled to the effective assistance of
counsel, judged under the same two-prong standard as ineffective assistance of trial counsel,
Strickland v. Washington, 466 U.S. 668 (1984).
Cephas does not tell the Court in his Petition what claim of prosecutorial misconduct he
believes should have been raised on direct appeal. In his Application for Reopening the Direct
Appeal under Ohio R. App. P. 26(B), he complained of appellate counsel’s failure to complain of
the prosecutor’s reference in closing argument to texts on Cephas’s phone about drug dealing on
the day of the assaults. The First District’s decision of the 26(B) Application determined that
excluding the complained-of remarks would have made no difference in the jury’s verdict. Thus
their decision turned on the second prong of Strickland, finding no prejudice from appellate
counsel’s action.
Whether or not this was a reasonable application of Strickland, this Court declines to reach

its merits. Cephas procedurally defaulted this claim of ineffective assistance of appellate counsel
by not successfully completing an appeal to the Supreme Court of Ohio. Failure to present an
issue to the state supreme court on discretionary review constitutes procedural default. O’Sullivan
v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted). Petitioner’s Sixth Ground for Relief
should be dismissed with prejudice as procedurally defaulted.

Ground Seven: Ineffective Assistance of Appellate Counsel: Failure to Claim ineffective
assistance of trial counsel in trial attorney’s “opening the door” to hearsay

Petitioner’s Seventh Ground for Relief should be dismissed on the same basis as Ground
Six.
Ground Eight: Ineffective Assistance of Appellate Counsel: Failure to raise prosecution’s
failure to secure the presence of a witness at trial, who was a primary victim.

Petitioner’s Eighth Ground for Relief should be dismissed on the same basis as Ground
Six.

Ground Nine: Ineffective Assistance of Appellate Counsel: Failure to perform duties in even
a nominal manner

Petitioner’s Ninth Ground for Relief should be dismissed on the same basis as Ground Six.

Ground Ten: Ineffective Assistance of Trial Counsel: Failure to Hire Gun-Shot Residue
Expert

In his Tenth Ground for Relief, Cephas claims he received ineffective assistance of trial
counsel in violation of the Sixth Amendment when his trial attorney failed to retain a gun-shot
residue expert.
Cephas first presented this claim to the Ohio courts as Claim Number One in his Petition
for Post-Conviction Relief under Ohio Revised Code § 2953.21 (State Court Record, ECF No. 5,
Ex. 31, PageID 267). The Common Pleas Court dismissed the Petition summarily. Id. at Ex. 33.
On appeal the First District summarized Cephas’s assignments of error which repeated his claims
in the post-conviction petition:
In his petition, Cephas claimed that he had been denied the effective
assistance of counsel at trial. Counsel, Cephas asserted, should have
had his shirt and car tested for gunshot residue, should have secured
testimony at trial by victim Timothy Reed, who did not identify
Cephas as the shooter, should have challenged the lack of a warrant
or probable cause for his arrest, and should have informed him of
the state's plea offer.

State v. Cephas Judgment Entry, State Court Record 5, Ex. 39, PageID 343. The First District
rejected Cephas’s claims because he had not supported them with evidence outside the direct
appeal record:
Cephas's postconviction claims depended for their resolution on
evidence outside the record of the proceedings resulting in his
convictions. But the only outside evidence offered in support of
those challenges was Cephas's own affidavit. In his affidavit, he
merely restated each postconviction claim. And in his petition, he
explained with respect to each claim, that he had not attached any
supporting evidence, because he needed the assistance of an
attorney, an investigator, and a gunshot-residue expert.

The outside evidence offered in support of a postconviction claim
must "advance the* * • claim beyond mere hypothesis and a desire
for further discovery." State v. Coleman, 1st Dist. Hamilton No. C-
900811, 1998 WL 74756 (Mar. 17, 1993). Cephas's affidavit did not.
Thus, he failed to support his postconviction claims with evidentiary
material setting forth sufficient operative facts to demonstrate
substantive grounds for relief.

We, therefore, hold that the common pleas court did not abuse its
discretion in denying Cephas's postconviction petition without an
evidentiary hearing. Accordingly, we affirm the court's judgment.

Id.

In order to find a habeas corpus claim procedurally defaulted, the federal court must find
the State has a relevant procedural rule which was enforced against the petitioner, that the rule is
adequate in that enforces a valid state interest, and that rule is independent of federal law. Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir.
2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A petitioner can overcome
a procedural default by showing he had cause for the default (i.e., something independent of
himself which caused the default) and that he suffered prejudice thereby. Maupin.
Ohio has a relevant procedural rule – claims that a conviction is unconstitutional made in
a petition for post-conviction relief must be supported by actual evidence outside the direct appeal
record. In the absence of such evidence, the claim is treated as res judicata. State v. Perry, 10
Ohio St. 2d 175 (1967). The Sixth Circuit has repeatedly upheld this rule as adequate and
independent. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337
(6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486,
521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted). While
“presentation of competent, relevant, and material evidence dehors the record may defeat the
application of res judicata,” State v. Lawson, 103 Ohio App. 3d 307 (12th Dist. 1995), Cephas’s

petition did not present evidence dehors the record, but a request for a chance to develop such
evidence. For example, to prevail on his claim about a gun-shot residue expert, Cephas could have
submitted an opinion from such an expert about why such testing could have been material in this
case. He did not. Thus he procedurally defaulted his claim of ineffective assistance of trial counsel
for failure to present such an expert and his Tenth Ground for Relief should be dismissed with
prejudice on that basis.

Ground Eleven: Ineffective Assistance of Trial Counsel: Failure to Subpoena the Victim

Ground Eleven should be dismissed with prejudice on the same basis as Ground Ten.

Ground Twelve: Ineffective Assistance of Trial Counsel: Failure to Hire Gun-Shot Residue
Expert to Test Car Interior

Ground Twelve should be dismissed with prejudice on the same basis as Ground Ten.

Ground Thirteen: Ineffective Assistance of Trial Counsel: Failure to Challenge Lack of an
Arrest Warrant or Probable Cause for Arrest

Ground Thirteen should be dismissed with prejudice on the same basis as Ground Ten.
Ground Fourteen: Ineffective Assistance of Trial Counsel: Failure to Convey Plea Offer

In his Fourteenth Ground for Relief, Cephas alleges he received ineffective assistance of
trial counsel when his defense attorney did not advise him of a plea offer from the State. Cephas’s
procedural default here is especially striking since he certainly did not need the assistance of a new
attorney to include in his affidavit that he had not been advised by his attorney of an offered plea
bargain. Ground Fourteen should be dismissed with prejudice on the same basis as Ground Ten.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.

October 30, 2023.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #

s/ Michael R. Merz
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383446. Public record. Not legal advice.