Sanders, III v. Warden, London Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

OLIVER L. SANDERS III,

Petitioner, CASE No. 3:22-cv-291

v. District Judge Michael J. Newman

Magistrate Judge Kimberly A. Jolson

WARDEN, SOUTHEASTERN

CORRECTIONAL INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody at the Southeastern Correctional Institution, has filed

a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This case

has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and General Order 22-05

regarding assignments and references to United States Magistrate Judges.

This matter is before the Court to consider the Petition (Doc. 1), Respondent Warden’s

Return of Writ (Doc. 6), Petitioner’s Traverse (Doc. 13), and the state court record. (Doc. 5). For

the reasons that follow, it is RECOMMENDED that the Petition be DENIED and this action be

DISMISSED WITH PREJUDICE.

I. BACKGROUND

In 2019, and as part of a child sexual assault investigation, pornographic images and videos

of minors were found stored on Petitioner’s cellphone. The Ohio Second District Court of Appeals

summarized the facts of the case as follows:

{¶ 2} In March 2019, nine-year-old R.H. told her mother that she had been sexually

abused by Sanders, a relative. The police were contacted, and an investigation

began. R.H. was interviewed by Ann Mann, a forensic interviewer at

the Clark County Child Advocacy Center. R.H.’s older sister, thirteen-year-old

K.H., was also interviewed. K.H. said that Sanders had sexually abused her too and

showed her images of child pornography on his cellphone. Later, Sanders was

interviewed by Detective Sandy Fent of the Springfield Police Department, and he

gave Fent his cellphone for examination. A forensic examination of the phone

revealed numerous images and videos of child pornography. In late April 2019,

Sanders was indicted on nine counts of rape and one count of gross sexual

imposition, as well as 38 counts of pandering sexually oriented matter involving a

minor, six counts of pandering obscenity involving a minor, and seven counts of

illegal use of a minor in nudity-oriented material. The case was tried to a jury.

{¶ 3} At the trial, Detective Brian Melchi testified that he had been trained to

perform a forensic examination of cellphones and that he had performed a forensic

extraction of all the data on Sanders’s cellphone and placed the data on a USB drive,

which he gave to Detective Fent. There were 487 images and videos on the

cellphone. Detective Fent testified that she had examined each one and found 27

images and videos showing sexual activity involving minors, naked minors, and the

genitalia of minors. Detective Fent also found numerous personal, non-

pornographic pictures and videos stored on the phone that plainly identified the

cellphone as Sanders’s. Fent testified that the pornographic material was stored

intermingled with the personal material. She also testified that the creation dates of

the digital files containing the pornography (September 2017 - January 2019)

overlapped with the creation dates of the files containing the personal images and

videos (June 2015 - January 2019). Detective Fent testified that the pornographic

material was “downloaded to [Sanders’s] phone.” (Tr. 200.) While the creation

dates of some files predated when Sanders said he got the phone, Fent said that

those files could have been transferred onto the phone.

{¶ 4} K.H. took the stand and testified that, in late 2015, Sanders tried to show her

child pornography on his cellphone:

Q. And did he show you lots of pictures? How many pictures?

A. Yeah, it was like on a web browser, so it was like he searched it

up and was like swiping through and showing me them.

Q. So he—are you saying that he pulled it up off the Internet right

there in front of you?

A. No, it was already like pulled up on his phone.

(Tr. 336.)

{¶ 5} Sanders took the stand in his own defense and basically said that he did not

know how the pornographic material got on his cellphone. He testified that he did

not own a phone until 2016, when he rented one for two to four months. Sanders

said that he bought the phone on which the child pornography was found used from

Amazon.com in February 2017. He testified that he did not transfer any pictures

and did not know how the pornographic material got on the phone. Sanders said

that he had had problems with images he did not recognize showing up on the phone

and that he had purchased antivirus software to fix the problem.

{¶ 6} Sanders moved for a judgment of acquittal on all the counts. The trial court

dismissed four counts of rape and two counts of illegal use of a minor in nudity-

oriented material. The jury found Sanders not guilty of the remaining rape charges

and the charge of gross sexual imposition, but it found him guilty of the remaining

49 counts based on the child pornography. The trial court declined to merge any of

the offenses as allied offenses of similar import, and it sentenced Sanders to prison

for 16 years: eight years total for the six charges of pandering obscenity involving

a minor; eight years total for the 38 charges of pandering sexually-oriented matter

involving a minor, consecutive to the sentence for pandering obscenity; and five

years total for the five charges of illegal use of a minor in nudity oriented material,

concurrent with the other sentences.

State v. Sanders, No. 2019-CA-86, 2021 WL 3012064, *1-2 (Ohio App. 2nd Dist. July 16, 2021).

To summarize, on October 24, 2019, a Clark County, Ohio, jury convicted Petitioner of a

total of forty-nine counts of pandering obscenity involving a minor, pandering sexually oriented

matter involving a minor, and illegal use of a minor in nudity-oriented material. On October 30,

2019, the trial court sentenced Petitioner to sixteen years in prison: eight years total for the six

charges of pandering obscenity involving a minor; eight years total for the thirty-eight charges of

pandering sexually-oriented matter involving a minor, consecutive to the sentence for pandering

obscenity; and five years total for the five charges of illegal use of a minor in nudity-oriented

material, to be served concurrently with the other sentences. (Doc. 5 at PAGEID # 63–67).

Petitioner took a timely appeal, raising five assignments of error before the Second District

Court of Appeals:

First Assignment of Error: The trial court committed error when it overruled

Defense Rule 29 Motion to Dismiss Counts 13-60.

Second Assignment of Error: The jury had insufficient evidence to convict

Appellant.

Third Assignment of Error: The prosecutor committed reversible error by violating

Appellant’s Fifth Amendment due process right to a fair trial.

Fourth Assignment of Error: The trial court erred in finding the offenses were not

allied.

Fifth Assignment of error: The court erred when it gave consecutive sentences.

(Doc. 5 at PAGEID # 69, 72–73). On July 16, 2021, the Court of Appeals affirmed the judgment

of the trial court, overruling each of Petitioner’s assignments of error. (Id. at PAGEID # 122);

Sanders, 2021 WL 3012064.

Petitioner, proceeding pro se, sought review by the Ohio Supreme Court, raising the

following propositions of law:

First Proposition of Law: The trial court committed error when it overruled

Defense Rule 29 Motion to dismiss counts 13-60.

Second Proposition of Law: The jury lost its way and there [sic] finding of guilty

was against the manifest weight of the evidence.

Third Proposition of Law: The prosecutor committed reversible error by violating

Appellant’s Fifth Amendment due process right to a fair trial.

Fourth Proposition of Law: The trial court erred in finding the offenses were not

allied.

Fifth Proposition of Law: The court erred when it gave consecutive sentences.

(Doc. # 5, at PAGEID # 141, 145). On November 9, 2021, the Ohio Supreme Court declined to

exercise jurisdiction over the appeal. (Id. at PAGEID # 165); State v. Sanders, 165 Ohio St. 3d

1444 (2021).

On December 6, 2021, Petitioner filed a pro se petition for postconviction relief, asserting

the State violated his Fourth Amendment rights by searching his cellular phone without a warrant

and arguing the evidence was insufficient to support his convictions. (Doc. 5, at PAGEID # 167).

On January 21, 2022, the trial court dismissed the petition as untimely. (Id. at PAGEID # 172).

Additionally, on October 12, 2021, Petitioner filed a pro se application to reopen his direct

appeal pursuant to Ohio Appellate Rule 26(B), arguing his appellate counsel was ineffective for

failing to raise a claim of ineffective assistance of trial counsel in connection with trial counsel’s

failure to move to suppress the cell phone evidence. (Id., at PAGEID # 175). On February 21,

2023, the state appellate court denied the application to reopen, (Doc. 12-1, at PAGEID # 743–

49), and it does not appear that Petitioner attempted to appeal the decision to the Ohio Supreme

Court.

II. HABEAS PROCEEDINGS

On October 7, 2022, Petitioner, proceeding pro se, filed the instant federal habeas petition,

raising six claims for relief:

Ground One: The trial court committed error when it overruled defense Rule

29 motion to dismiss counts 13-60.

Supporting Facts: Sanders does not dispute the pornographic character of any of

the material or that minors were depicted. Rather, he contends that the evidence

was insufficient to show that he knew about the material or that he was responsible

for its being on his cellphone. Sanders presented as evidence the bill of purchase

for the phone during trial, showing the images were downloaded to the phone two

years prior to Sanders purchasing the phone. Prosecution continued to speculate as

to how the files got on the phone, but admitted to having no concrete evidence

Sanders was responsible.

Ground Two: Jury lost its way and their finding of guilty was against the

manifest weight of the evidence.

Supporting Facts: During trial. Prosecutor ignored defense counsel’s objection

while showing images and videos pulled from Sanders’ phone, using the files to

emotionally compromise the jury, while completely disregarding the evidence that

placed those same images and videos on the phone two years before Sanders had

bought the device. This created an emotionally charged bias in the jury, causing

them to lose their way. This act of the Prosecutor had also resulted in jury

manipulation, whereas two or three files would have sufficed to show the content

was there, but when the prosecution used close to, if not more than, one dozen (12)

of those file[s], this became jury manipulation.

Ground Three: Prosecutor committed reversible error by violating the

petitioner’s Fifth-Amendment right to a fair trial.

Supporting Facts: Prosecutor vehemently ignored defense counsel’s objections

during cross-examination, thus violating Sanders’ right to fair trial.

During trial, arresting Detective Sandra Fent had taken the stand under cross

examination and admitted that neither her department nor the prosecutions

department knew if Sanders was responsible for any crime or not, once again

violating Sanders’ right to a fair trial. By admitting this, Det. Fent reasoned that

even though she nor the prosecutor could declare beyond a reasonable doubt that

Sanders was guilty, they expected [the] jury to do just that.

Ground Four: Trial court erred in finding the offenses were not allied.

Supporting Facts: Sanders contends on appeal that all 49 offenses were allied

offenses of similar import and should have been merged for sentencing, because

they were all, at root, based on the same conduct – possessing obscene material

showing a minor.

Ground 5: The trial court erred when it gave consecutive sentences.

Supporting Facts: Sanders argues that the record does not support the trial court’s

consecutive-sentence findings. Sanders was given two eight (8) year sentences,

consecutive to one another. Given this was [] Sanders’ first criminal offense, the

sentences should not have been consecutive. R.C. 2953.08(G)(2)(a) compels

appellate courts to modify or vacate sentences if they find by clear and convincing

evidence that the record does not support any relevant findings.

Ground 6: Court had insufficient evidence to convict petitioner.

Supporting Facts: During trial, prosecution had only the printout of the extraction

report presented by the Springfield Police Department to use as evidence. The

extraction report had all images and videos petitioner was accused of, but no

evidence showing that petitioner was guilty of procuring the files, or even that

petitioner was aware of their existence. Defense presented evidence showing that

the files pre-existed the petitioners purchase of the phone by two years. Prosecution

could only speculate during trial as to how the files were added to the phone, but

admitted to not having any physical evidence to prove their theories.

(Doc. 1).

In December 2022, Respondent Warden filed the state court record and a Return of Writ.

(Docs. 5–6). Respondent argues that all of Petitioner’s claims are procedurally defaulted, are non-

cognizable, or lack merit. On May 12, 2023, Petitioner filed the Traverse. (Doc. 13). For the

following reasons, the Court finds Petitioner is not entitled to relief on his claims, and the

Undersigned RECOMMENDS this action be DISMISSED WITH PREJUDICE.

III. LEGAL STANDARDS

A. AEDPA

Because this is a habeas corpus case, provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) apply to this case. See generally 28 U.S.C. § 2254; Lindh v.

Murphy, 521 U.S. 320, 336 (1997). The United States Supreme Court has described AEDPA as

“a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court” and emphasized that courts must not “lightly conclude that a State’s criminal justice

system has experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.”

Burt v. Titlow, 571 U.S. 12, 19-20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011));

see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential

standard for evaluating state-court rulings, and demands that state-court decisions be given the

benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

AEDPA limits the circumstances under which a federal court may grant a writ of habeas

corpus with respect to any claim that was adjudicated on the merits in a state court proceeding.

Specifically, under AEDPA, a federal court shall not grant a writ unless the state court adjudication

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). Section 2254(d)(1)

circumscribes a federal court’s review of claimed legal errors, while Section 2254(d)(2) places

restrictions on a federal court’s review of claimed factual errors. This standard is “intentionally

difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015). Additionally, this Court’s habeas

review is limited to the record that was before the state court that adjudicated the claim on the

merits. Cullen v. Pinholster, 563 U.S. 170 (2011).

B. Procedural Default

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and in order to prevent needless friction between the state and federal

courts, a state criminal defendant with federal constitutional claims is required to first present those

claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so

but still has an avenue open to present the claims, then the petition is subject to dismissal for failure

to exhaust state remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard

v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust claims, but

would find those claims barred if later presented to the state courts, “there is a procedural default

for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Over time, the term “procedural default” has come to describe a situation where a person

convicted of a crime in a state court fails (for whatever reason) to properly present a particular

claim to the highest court of the state, so that the state has a fair chance to correct any errors made

in the course of the trial or the appeal. This “requires the petitioner to present ‘the same claim

under the same theory’ to the state courts before raising it on federal habeas review.” Hicks v.

Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th

Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a habeas

petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal

law claims being asserted. That means that if the claims are not presented to the state courts in the

way in which state law requires, and the state courts therefore do not decide the claims on their

merits, neither may a federal court. As the Supreme Court found in Wainwright v. Sykes, 433 U.S.

72, 87 (1977), “contentions of federal law which were not resolved on the merits in the state

proceeding due to [the] failure to raise them there as required by state procedure” also cannot be

resolved on their merits in a federal habeas case – that is, they are “procedurally defaulted.” It is

well settled that “[a] common example of a procedural default is a failure to raise a claim in state

court in a timely manner.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021). Under Ohio law,

failure to make timely objections at trial or to raise issues on direct appeal, if possible, bars a

petitioner from raising that claim in a federal habeas corpus petition. Seymour v. Walker, 224 F.3d

542, 555 (6th Cir. 2000) (citing State v. Perry, 10 Ohio St. 2d 175 (1967)).

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin

standard). First, the court must determine whether there is a state procedural rule that is applicable

to the petitioner’s claim and whether the petitioner failed to comply with the rule. Second, the

court must determine whether the state courts actually enforced the state procedural sanction.

Third, the court must determine whether the forfeiture is an adequate and independent state ground

on which the state can rely to foreclose review of a federal constitutional claim. Finally, if the

court determines that a state procedural rule was not complied with and the rule is an adequate and

independent state ground, then the petitioner may not obtain review of his or her claims on the

merits unless the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or

she was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. In order

to establish cause, a petitioner must show that “some objective factor external to the defense”

impeded the petitioner’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477

U.S. 478, 488 (1986). The petitioner bears the burden of showing cause and prejudice. Hinkle v.

Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir.

1999)).

IV. DISCUSSION

A. Claims One and Six – Sufficiency of the Evidence

In his first and sixth grounds for relief, Petitioner argues the trial court erred when it

overruled his Rule 29 motion for acquittal as to all counts and that his convictions are not supported

by sufficient evidence. The state appellate court rejected these claims on the merits:

{¶ 8} The first assignment of error alleges:

THE TRIAL COURT COMMITTED ERROR WHEN IT

OVERRULED DEFENSE RULE 29 MOTION TO DISMISS

COUNTS 13-60.

{¶ 9} Sanders does not dispute the pornographic character of any of the material or

that minors were depicted. Rather, he contends that the evidence was insufficient

to show that he knew about the material or that he was responsible for its being on

his cellphone.

{¶ 10} “A motion for acquittal under Crim.R. 29(A) is governed by the same

standard as the one for determining whether a verdict is supported by sufficient

evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386,

¶ 37. “The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 11} The 49 offenses of which Sanders was found guilty comprised violations of

three different statutes. Six offenses were pandering obscenity involving a minor

under R.C. 2907.321, three of which were charged under R.C. 2907.321(A)(1) and

three under (A)(5):

(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

(1) Create, reproduce, or publish any obscene material that has a

minor or impaired person as one of its participants or portrayed

observers.

* * *

(5) Buy, procure, possess, or control any obscene material, that has

a minor or impaired person as one of its participants.

Thirty-eight offenses were pandering sexually oriented matter involving a minor

under R.C. 2907.322; of those, 19 counts were violations of division (A)(1) and 19

were violations of division (A)(5):

(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

(1) Create, record, photograph, film, develop, reproduce, or publish

any material that shows a minor or impaired person participating or

engaging in sexual activity, masturbation, or bestiality.

* * *

(5) Knowingly solicit, receive, purchase, exchange, possess, or

control any material that shows a minor or impaired person

participating or engaging in sexual activity, masturbation, or

bestiality.

Finally, five offenses were illegal use of a minor in nudity-oriented material under

R.C. 2907.323(A)(3):

(A) No person shall do any of the following:

* * *

(3) Possess or view any material or performance that shows a minor

* * * who is not the person’s child or ward in a state of nudity[.]

{¶ 12} Sanders was found guilty under division (A)(1) of R.C. 2907.321 and

2907.322 for “reproduc[ing]” pornographic material and under division (A)(5) of

that statute for “possess[ing]” the material. “The state can prove that an offender

reproduced such material by presenting evidence that the offender downloaded

images from the Internet onto a hard drive.” State v. Kraft, 1st Dist. Hamilton No.

C-060238, 2007-Ohio-2247, ¶ 92, citing State v. Huffman, 165 Ohio App.3d 518.

2006-Ohio-1106, 847 N.E.2d 58 (1st Dist.) (evidence proving sexually orientated

matter was downloaded from the internet and stored is sufficient evidence for a trier

of fact to conclude the images were reproduced for purposes of R.C. 2907.322(A)).

Accord State v. Sullivan, 2d Dist. Montgomery No. 23948, 2011-Ohio-2976, ¶ 34

(agreeing with Huffman). As for possession, “[p]ossession is a voluntary act if the

possessor knowingly procured or received the thing possessed, or was aware of the

possessor’s control of the thing possessed for a sufficient time to have ended

possession.” R.C. 2901.21(F)(1). We note too that “[t]he state may rely solely on

circumstantial evidence in proving that the defendant had knowledge of the

character of the material.” Kraft at ¶ 87 (referring to R.C. 2907.322), citing State v.

Burgin, 56 Ohio St.2d 354, 364, 384 N.E.2d 255 (1978).

{¶ 13} Sanders was found guilty of the 49 offenses for “reproduc[ing]” and of

“possess[ing]” 27 different images and videos of child pornography. The

pornographic material was found on his cellphone intermingled with personal

photographs and videos. The evidence showed that the pornographic material was

downloaded to the phone after Sanders got the phone. According to the testimony,

the pornographic material also could have been transferred onto the phone. Finally,

there was testimony showing that, in the past, Sanders had stored pornographic

images of children on his cellphone.

{¶ 14} Viewing this evidence in a light most favorable to the prosecution, we

conclude that the jury could have reasonably inferred that Sanders, knowing its

character, viewed and downloaded the pornographic material and stored it on his

cellphone. Therefore, the trial court did not err by overruling his motion for

acquittal of the 49 offenses.

{¶ 15} The first assignment of error is overruled.

State v. Sanders, No. 2019-CA-86, 2021 WL 3012064, *2-3 (Ohio App. 2nd Dist. July 16, 2021).

To the extent Petitioner’s first claim for relief argues the trial court erred in denying his

Motion for Acquittal under Ohio Criminal Rule 29, his claim is not cognizable on habeas review.

That is because this Court has habeas jurisdiction only over claims that challenge the legality of a

petitioner’s custody based on a “violation of the Constitution or law or treaties of the United

States.” 28 U.S.C. § 2254(a). “The decision whether to grant a motion for acquittal pursuant to

Ohio Crim. R. 29 is a matter of state law and is cognizable in habeas only if the denial of such a

motion is a violation of due process.” Smith v. Bobby, No. 5:04-cv-2353, 2005 WL 2076667, at

*24 (N.D. Ohio Aug. 25, 2005), report and recommendation adopted, No. 5:04-cv-2353, 2007

WL 2427999 (N.D. Ohio Aug. 21, 2007); see also Small v. Warden, No. 2:12-cv-0958, 2012 WL

3745834, *4 (S.D. Ohio July 15, 2013) (“Petitioner’s claim, as it relates to the trial court’s denial

of his motion for judgment of acquittal pursuant to Ohio Crim. R. 29 presents an issue of state law

that cannot be reviewed in federal habeas corpus.”), report and recommendation adopted, No.

2:12-cv-0958, 2013 WL 9894270 (S.D. Ohio Aug. 19, 2013). Thus, to the extent Petitioner argues

the trial court abused its discretion under Ohio law by denying the motion for acquittal as to all

counts, this claim does not present a question of federal law and is not cognizable on habeas

review.

Petitioner’s underlying claim – that his Due Process rights were violated because there was

insufficient evidence to convict him as set forth in his sixth claim for relief – is also unavailing.

The Due Process Clause “protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re

Winship, 397 U.S. 358, 364 (1970). It is well-settled that the standard for evaluating the merits of

constitutional claims challenging the sufficiency of the evidence was established by the Supreme

Court in Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court held that “the

relevant question” in a sufficiency of the evidence claim 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.” 443 U.S. at 319 (emphasis in original).

The Jackson standard must be applied “with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)

(quoting Jackson, 443 U.S. at 324 n.16).

When determining if the evidence was sufficient to support a petitioner’s conviction, a

federal habeas court must view the evidence in the light most favorable to the prosecution. Wright

v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). The prosecution is not

affirmatively required to “rule out every hypothesis except that of guilt.” Id. (quoting Jackson,

443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of historical facts that supports

conflicting inferences must presume – even if it does not affirmatively appear in the record – that

the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.’” Id. at 296-97 (quoting Jackson, 443 U.S. at 326). Moreover, federal habeas courts

must afford a double layer of deference to state court determinations of the sufficiency of the

evidence. As explained in Brown v. Konteh, deference must be given, first, to the jury’s finding

of guilt because the standard, announced in Jackson, is 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.” 567 F.3d 191, 205 (6th Cir. 2009).

Second, even if a de novo review of the evidence leads to the conclusion that no rational trier of

fact could have so found, a federal habeas court “must still defer to the state appellate court’s

sufficiency determination as long as it is not unreasonable.” Id.; see also White v. Steele, 602 F.3d

707, 710 (6th Cir. 2009). In either instance, this is a substantial hurdle – one that Petitioner cannot

surmount.

With these standards in mind, this Court simply cannot say that the state appellate court’s

rejection of Petitioner’s sufficiency of the evidence claim was contrary to or an unreasonable

application of Jackson. This Court must give deference to the state appellate court’s interpretation

of state law with respect to the offenses of pandering sexually oriented matter involving a minor,

pandering obscenity involving a minor, and illegal use of a minor in nudity-oriented material.

Here, the appellate court set forth the applicable sections of the Ohio Revised Code and determined

the evidence was sufficient to support Petitioner’s convictions for multiple acts regarding the

reproducing, downloading, and possession of prohibited material involving minors. The record

supports this determination and contains sufficient circumstantial evidence from which the jury

could infer the material in question was known to Petitioner, including evidence that the material

was created/downloaded and stored in a manner that overlapped and was intermingled with

Petitioner’s personal photos, selfies, and other personal information, such as photos of his resume

and photo ID. It is well settled that “[s]tates can prove guilt beyond a reasonable doubt using

exclusively circumstantial evidence.” James v. Corrigan, No. 22-1507, 2023 WL 7031567, *3

(6th Cir. Oct. 26, 2023). Here, contrary to Petitioner’s assertions, the evidence suggested that the

creation/download dates for both the child pornography and the personal material on the phone

both preceded and succeeded Petitioner’s purchase of his phone, suggesting that some images were

transferred onto the device and some items were obtained after his purchase of the phone. (Doc.

5-1, at PAGEID # 229–241; Doc. 5-2, at PAGEID # 281–92). The creation dates of the prohibited

materials ranged from September 2017 through January 2019, and the creation dates of Petitioner’s

personal material ranged from June 2015 through January 2019. (Doc. 5-1, PAGEID # 229–235).

Direct testimony was also presented that Petitioner showed some of the images to K.H., a thirteen-

year-old relative, by swiping through stored data and not by accessing the images from the internet.

(Doc. 5-2, at PAGEID # 415–430).

Petitioner contends the evidence was insufficient to show that he personally was

responsible for the images on his phone, which he purchased in used condition, as opposed to a

prior owner of the phone. But it is not the role of this Court to reweigh the evidence or judge the

credibility of witnesses who testified at trial. It is the function of the jury as the trier of fact to

resolve conflicts in testimony, weigh the evidence and draw reasonable inferences from that

evidence. “Juries choose which witnesses and statements to believe, and a court can’t substitute

its judgments for a jury’s.” James, 2023 WL 7031567, *4 (“James can’t repackage his credibility

challenges as sufficiency arguments.”). Simply put, the jury in this case was free to disbelieve

Petitioner, and it did precisely that. And this Court is bound to defer to the jury’s resolution of

those issues and the state appellate court’s decision that the evidence was sufficient to support the

conviction. Jackson, 443 U.S. at 319. Moreover, Petitioner’s argument that the State should have

consulted BCI to analyze the phone is not meritorious. The fact that the State could have done

more does not mean the State did not do enough. Viewing the evidence in a light most favorable

to the prosecution, the record contained sufficient evidence that Petitioner was aware the material

was on his device, and the Court finds habeas relief is not warranted on Petitioner’s sufficiency of

the evidence claim.

For the foregoing reasons, the Undersigned RECOMMENDS that Petitioner’s first and

sixth claims for relief be DENIED.

B. Claim Two – Manifest Weight of the Evidence

In his second claim for relief, Petitioner asserts his convictions are against the manifest

weight of the evidence. This claim does not provide a basis for federal habeas relief. Under Ohio

law, a claim that a verdict was against the manifest weight of the evidence—as opposed to one

based upon insufficient evidence—requires the appellate court to act as a “thirteenth juror” and

review the entire record, weigh the evidence, and consider the credibility of witnesses to determine

whether “the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175

(1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Because a federal habeas court does not function

as an additional state appellate court vested with the authority to conduct such an exhaustive

review, petitioner’s claim that his convictions are against the manifest weight of the evidence

cannot be considered by this Court. See, e.g., Stokes v. Warden, No. 2:22-cv-3921, 2023 WL

6961414, *11 (S.D. Ohio Oct. 20, 2023) (Silvain, M.J.) (“Manifest weight of the evidence is a

matter of pure state law, and thus, is not a cognizable claim in habeas.”); see also Ross v. Pineda,

No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio Apr. 7, 2011), aff’d, 549 F. App’x 444 (6th

Cir. 2013) (“Whether a conviction is against the manifest weight of the evidence is purely a

question of Ohio law.”). Accordingly, the Undersigned RECOMMENDS that Petitioner’s second

claim for relief be DENIED.

C. Claim Three – Prosecutorial Misconduct

In his third claim for relief, Petitioner argues the prosecutor committed misconduct in

connection with the testimony of Detective Sandra Fent. On direct appeal, Petitioner raised a claim

of prosecutorial misconduct but limited his argument to two allegations: that the prosecutor

committed misconduct in connection with the testimony of Ann Mann, the juvenile forensic

interviewer, and during closing arguments by misleading the jury regarding the burden of proof.

Respondent alleges in the Return of Writ that Petitioner has procedurally defaulted his

claim of prosecutorial misconduct concerning the testimony of Detective Fent by not presenting

this allegation to the state appellate court as part of his assignment of error alleging prosecutorial

misconduct on direct appeal. (Doc. 6, at PAGEID # 706). Petitioner agrees, and in the Traverse,

“concedes to the procedural default” of his third ground for relief, wherein he sets forth a single

claim of prosecutorial misconduct challenging the Detective Fent testimony. (Doc. 13, at PAGEID

# 759). Because Petitioner concedes his third claim for relief is defaulted, and because he does

not argue that cause exists to excuse this procedural default, the Undersigned RECOMMENDS

Petitioner’s third claim for relief be DENIED.

D. Claim Four – Allied Offenses Claim

In his fourth claim for relief, Petitioner argues the trial court failed to merge allied offenses

of similar import for sentencing. Petitioner asserts that “all 49 offenses” should have merged for

sentencing, because “they were all, at root, based on the same conduct – possessing obscene

material showing a minor.” (Doc. 1, at PAGEID # 10).

In the Return of Writ, Respondent asserts Petitioner’s fourth claim for relief is procedurally

defaulted. Respondent notes that before the trial court at sentencing, Petitioner argued that only a

handful of offenses – specifically the “reproducing offenses” – should have merged. But on direct

appeal, Petitioner argued the trial court erred by failing to merge all forty-nine counts at sentencing

as allied offenses of similar import. Respondent is correct. On direct appeal, the appellate court

determined Petitioner’s claim was subject to plain error review, because Petitioner did not present

the full scope of his claim to the trial court for consideration at sentencing:

{¶ 29} The fourth assignment of error alleges:

THE TRIAL COURT ERRED IN FINDING THE OFFENSES

WERE NOT ALLIED.

{¶ 30} The U.S. and Ohio Constitutions prohibit multiple punishments for the same

offense. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d

923, ¶ 23. R.C. 2941.25 codifies these constitutional protections by prohibiting a

court from imposing separate sentences for what are called “allied offenses of

similar import.” The Ohio Supreme Court has said that offenses are not allied and

that separate sentences may be imposed if the answer to any of the following

questions is yes: “(1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with separate

animus or motivation?” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, ¶ 31. “A defendant who argues on appeal that the trial court erred by

not merging multiple offenses bears the burden to show that the offenses are allied

pursuant to R.C. 2941.25.” (Citation omitted.) State v. Sullivan, 2d Dist.

Montgomery No. 23948, 2012-Ohio-4317, ¶ 13.

{¶ 31} Sanders contends on appeal that all 49 offenses were allied offenses of

similar import and should have been merged for sentencing, because they were all,

at root, based on the same conduct—possessing obscene material showing a minor.

{¶ 32} But this was not what Sanders argued in the trial court. There, Sanders’s

merger argument was much more limited. According to the transcript of the

sentencing hearing, Sanders submitted a sentencing memorandum that raised the

issue of merger. The memorandum is not in the record, nor is it listed on the docket

sheet. When given the opportunity to address the merger issue, defense counsel

seemed to concede that most of the offenses did not merge and argued only that the

“reproducing” offenses based on a series of images that were downloaded in quick

succession should merge:

* * * Your Honor, I’ve read the case law. I thank the prosecutor for

him in State v. Campbell [sic], but I’ve read other case law in

anticipation of this; and it’s clear that when it comes to this specific

offense, the courts have determined that each and every [count] of

all this is considered a separate offense, and I understand that.

However, the only thing I’d point out is that, and I don’t have the—

in front of me but there were, I think, four or five pictures

downloaded, I think, at the exact same time, and I don’t know which

ones they are but I would—I guess my position would be, those

appear to be exact minutes, so I think my argument would be that

those should be merged for purposes of sentencing, as they appear

to be all happening at once as best I can tell from what I was given

in discovery, Your Honor. Thank you.

(Sentencing Tr. 4). The State responded by citing State v. Campbell, 12th Dist.

Butler No. CA2014-06-137, 2015-Ohio-1409, which states that “[a]lthough the

defendant may have obtained images around the same time, each file obtained

constitutes a new and distinct crime because the ‘mere fact that the crimes occurred

in quick succession does not mean that they were not committed separately or with

separate animus.’” Id. at ¶ 20, quoting State v. Eal, 10th Dist. Franklin No. 11AP-

460, 2012-Ohio-1373, ¶ 93. The trial court agreed with the State and, citing

Campbell, ruled against merging the offenses.

{¶ 33} The trial court’s ruling is undoubtedly correct.

{¶ 34} But that ruling is very narrow compared to Sanders’s argument here that all

the offenses should merge. “A first principle of appellate jurisdiction is that a party

ordinarily may not present an argument on appeal that it failed to raise below.”

State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10,

citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997).

Sanders never objected to separate sentences for any other offenses. Because he

failed to bring the claim of error to the trial court’s attention, he forfeited it. So to

this forfeited claim, Crim.R. 52(B)’s plain-error standard applies. Sanders cannot

prevail on his merger claim unless he shows that “(1) there was an error, (2) the

error was ‘plain,’ i.e., obvious, and (3) the error affected substantial rights.” State

v. Tench, 156 Ohio St.3d 955, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 217, citing State

v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 35} Sanders was found guilty of 49 offenses based on 27 different images or

videos. The law is clear that child pornography offenses are offenses of dissimilar

import if each offense involves a separate file or image. See State v. Stapleton, 4th

Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶ 54 (“Ohio courts have found that

child pornography offenses are offenses of dissimilar import when each offense

involves a separate file or image.”); State v. Mannarino, 8th Dist. Cuyahoga No.

98727, 2013-Ohio-1795, ¶ 53, quoting Eal at ¶ 93 (“Each child pornography file or

image that is downloaded is ‘a new and distinct crime.’”); State v. Blanchard, 8th

Dist. Cuyahoga No. 90935, 2009-Ohio-1357, ¶ 12, rev’d on other grounds in In re

Cases Held for Decision in State v. Williams, 130 Ohio St.3d 254, 2011-Ohio-5348,

957 N.E.2d 289 (holding that the trial court was not required to merge various

charges of pandering based on numerous photographs, because each photo involved

“a separate physical act to take the photograph, and resulted in a separate

photographic image”). Thus, 27 of Sanders’s offenses definitely did not merge as

allied offenses.

{¶ 36} The images and videos here formed three groups. Five images showed nude

minors, and these were the basis of the five illegal-use offenses under R.C.

2907.323(A)(3). Nineteen images and videos showed a minor engaging in sexual

activity, and these were the basis of the 19 reproducing sexually oriented material

offenses under R.C. 2907.322(A)(1), as well as the 19 possessing offenses under

R.C. 2907.322(A)(5). Lastly, three images focused on the genitalia of minors, and

these were the basis for the three reproducing obscene material offenses under R.C.

2907.321(A)(1) and for the three possessing offenses under 2907.321(A)(5). Those

offenses that did not merge, then, were: the five illegal-use offenses, either the 19

reproducing sexually-oriented material offenses or the 19 possessing sexually-

oriented material offenses, and either the three reproducing obscene-material

offenses or the three possessing obscene-material offenses. So the merger issue in

this case boils down to whether the reproducing and possessing offenses charged

under each statute were allied offenses.

{¶ 37} “At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26. It is the evidence that “reveal[s]

whether the offenses have similar import.” Id “A trial court and the reviewing court

on appeal when considering whether there are allied offenses that merge into a

single conviction under R.C. 2941.25(A) must first take into account the conduct

of the defendant. In other words, how were the offenses committed?” Id. at ¶ 25.

Accordingly, we turn to what the evidence showed about how Sanders committed

the reproducing and possessing offenses.

{¶ 38} Sanders was found to have downloaded the pornographic material over the

internet onto his cellphone (reproducing) and to have viewed it or stored it there

(possessing). We think that this represents separate conduct. A person who views

images or videos on a webpage “possesses” that material, at least temporarily. If

the person then downloads the material, saving it to his device, he has reproduced

it. As we said earlier, creating a copy of a pornographic image by downloading it

over the internet constitutes reproduction. See State v. Hodge, 2d Dist. Miami No.

2013-CA-27, 2014-Ohio-1860, ¶ 10. Not only does the conduct in these two

scenarios differ, but also the potential harm that could result. Simply viewing the

pornographic material on a website is arguably less harmful than the harm that

could result from downloading the material, because saving a copy of material

allows one to easy distribute it or show it to another person.

{¶ 39} Sanders did not carry his burden to prove that the offenses were allied. Given

the evidence in this case, the reproducing and possessing offenses under R.C.

2907.322 and R.C. 2907.321 were supported by different conduct. The trial court

did not plainly err by imposing separate sentences for each offense.

{¶ 40} The fourth assignment of error is overruled.

State v. Sanders, No. 2019-CA-86, 2021 WL 3012064, *1-3 (Ohio App. 2nd Dist. July 16, 2021).

Ohio’s contemporaneous objection rule has been explained many times. It “requires the

parties to preserve errors for appeal by calling them to the attention of the trial court at a time when

the error could be avoided or corrected.” Twyford v. Bradshaw, No. 2:03-cv-906, 2017 WL

4280955, at *19 (S.D. Ohio Sept. 27, 2017). It has been held time and again that the enforcement

of this rule is an adequate and independent state ground of decision sufficient to bar federal habeas

relief. See, e.g., Hand v. Houk, 871 F.3d 390, 417 (6th Cir. 2017) (citing Wogenstahl v. Mitchell,

668 F.3d 307, 335 (6th Cir. 2012) (“Failure to adhere to the firmly-established Ohio

contemporaneous objection rule is an independent and adequate state ground of decision.”));

Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011) (“Ohio’s contemporaneous objection rule

is a firmly established procedural rule that is an adequate and independent state ground to foreclose

federal relief.”); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010) (same).

Here, Petitioner has waived his claim that he was improperly sentenced on allied offenses

of similar import, because he failed to make a contemporaneous objection to the lack of merger –

and failed to request merger as to all (or even specific) counts – at sentencing. The court of appeals

noted that Petitioner submitted a sentencing memorandum raising the issue of merger, but that

memorandum was not made part of the record on appeal, and it was also not listed on the court’s

docket sheet. Sanders, 2021 WL 3012064 at *6. What is apparent, however, is that before the

trial court, counsel mostly abandoned the issue of merger and seemingly conceded that the offenses

did not merge. Trial counsel recognized that “the courts have determined that each and every

[count] of all this is considered a separate offense, and I understand that.” Id. Counsel then

vaguely suggested that certain “reproducing” offenses should merge, although he did not identify

the counts or the pertinent content underlying the counts with sufficient particularity to provide

notice of what, exactly, he was requesting. The court of appeals quoted the following statement

by counsel: “the only thing I’d point out is that, and I don’t have the – in front of me but there

were, I think, four or five pictures downloaded, I think, at the exact same time, and I don’t know

which ones they are but I would – I guess my position would be, those appear to be exact minutes,

so I think my argument would be that those should be merged for purposes of sentencing, as they

appear to be all happening at once as best I can tell from what I was given in discovery.” Id.

Counsel did not argue that all forty-nine offenses should merge as allied offenses of similar import,

as Petitioner attempted to argue on direct appeal and as he argues here, nor did counsel identify

any specific counts that should have merged. Based on the existing state court record, it is difficult

if not impossible to ascertain the specific counts trial counsel sought to have merged at sentencing

and which counts counsel recognized as separate and distinct for sentencing purposes. This Court

cannot say that the factual or legal basis of the merger request is apparent from the record or was

made apparent at sentencing.

In this case, the Ohio Court of Appeals enforced the waiver by finding Petitioner failed to

object to the separate sentences and failed to request merger on the basis of allied offenses at trial.

The state appellate court’s plain error review does not save Petitioner from this procedural default.

This is because “[a] plain error analysis is not tantamount to a review on the merits,” meaning the

state appellate court’s review for plain error does not imply it overlooked the procedural default.

Scott v. Mitchell, 209 F.3d 854, 865 (6th Cir. 2000); see also Lundgren v. Mitchell, 440 F.3d 754,

765 (6th Cir. 2006) (holding that plain error analysis is “viewed as a court’s right to overlook

procedural defects to prevent manifest injustice, but is not equivalent to a review of the merits”).

Said differently, an appellate court’s alternative ruling on the merits does not remove the

procedural default. Wade v. Timmerman-Cooper, 785 F.3d 1059, 1076 (6th Cir. 2015); Adams v.

Wainwright, No. 20-3646, 2022 WL 808036, *4–5 (6th Cir. Mar. 17, 2022) (citing Mason v.

Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)).

In sum, Petitioner’s fourth claim for relief is procedurally defaulted to the extent he failed

to request merger of allied offenses of similar import at trial and sentencing. The Undersigned

RECOMMENDS this claim be DENIED as defaulted.

E. Consecutive Sentencing Claim

Finally, in his fifth claim for relief, Petitioner argues the trial court erred in imposing

consecutive sentences. According to Petitioner, “the record does not support the trial court’s

consecutive-sentence findings. Sanders was given two eight (8) year sentences, consecutive to

one another. Given this was [] Sanders’ first criminal offense, the sentences should not have been

consecutive.” (Doc. 1, at PAGEID # 12). Respondent argues Petitioner’s claim is non-cognizable

in federal habeas corpus, because Petitioner has raised a state law claim that “merely challeng[es]

Ohio’s imposition of its own sentencing laws.” (Doc. 6, at PAGEID # 714).

Upon review, the Undersigned finds that Petitioner’s fifth claim for relief challenges his

sentence only as it relates to Ohio law. Under Ohio law, specifically R.C. § 2929.14(C)(4), if

prison terms are to be imposed for multiple offenses, a trial court “may require the offender to

serve the prison terms consecutively” if the judge makes certain findings. The state appellate court

affirmed Petitioner’s sentence and determined the trial court made the findings required by R.C.

2929.14(C)(4) to support consecutive sentences, including a finding that consecutive sentences

were necessary to protect the public from future crimes and to punish Petitioner. The appellate

court also reiterated that “Ohio courts have regularly found consecutive sentences to be appropriate

where a defendant is in possession of multiple pornographic images.” Sanders, 2021 WL 3012064,

*8 (citing cases).

To the extent Petitioner alleges the trial court erred in interpreting and applying Ohio law

in imposing consecutive sentences, Petitioner has raised an issue of state law that is not cognizable

in this federal habeas proceeding. See, e.g., Crawford v. Foley, No. 1:22-cv-1096, 2023 WL

6131059, at *10-11 (N.D. Ohio Aug. 31, 2023), report and recommendation adopted, 2023 WL

6129950 (N.D. Ohio Sept. 19, 2023) (finding state consecutive sentences claim not cognizable on

federal habeas review “because it asserts a violation of state sentencing laws, which is a state-law

issue”). See also Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (an alleged violation of state

sentencing laws is not cognizable on federal habeas review) (citing Pulley v. Harris, 465 U.S. 37,

41 (1984)); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (“A state court’s alleged

misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern

only.”); Blair v. Cook, No. 1:16-cv-940, 2017 WL 6316695, at *5 (S.D. Ohio Dec. 11, 2017)

(“Because the question of whether the trial court complied with Ohio Revised Code

§ 2929.14(C)(4) in imposing consecutive sentences is purely one of state law, it is not cognizable

in federal habeas corpus.”)

This Court has habeas jurisdiction to review Petitioner’s claim only to the extent Petitioner

challenges his confinement based on an alleged violation of the Constitution, laws, or treaties of

the United States. The United States Supreme Court has held that the imposition of consecutive

sentences for different offenses generally does not violate the United States Constitution. See

Oregon v. Ice, 555 U.S. 160 (2009). Indeed, the Supreme Court emphasized that the choice

whether to impose sentences consecutively or concurrently is a matter that has historically rested

“exclusively” with the sentencing judge. Id. at 168–69. Courts addressing this issue have

consistently held that a claim alleging a constitutional violation due to the imposition of

consecutive sentences is not cognizable unless the petitioner demonstrates that the sentence

exceeds the statutory range authorized by State law. See, e.g., Austin v. Jackson, 213 F.3d 298,

301 (6th Cir. 2000) (“As long as the sentence remains within the statutory limits, trial courts have

historically been given wide discretion in determining the type and extent of punishment for

convicted defendants.”) (internal quotation marks and citation omitted). See also Rognon v.

Turner, No. 3:20-cv-2519, 2023 WL 4710873, at *8 (N.D. Ohio Mar. 13, 2023), report and

recommendation adopted sub nom., 2023 WL 4706764 (N.D. Ohio July 24, 2023) (same). At no

point in these proceedings has Petitioner alleged or established that the trial court exceeded the

maximum sentence authorized under Ohio law when it imposed consecutive sentences. This

Court’s own review of the sentencing record does not reflect any error of constitutional dimension.

The Undersigned RECOMMENDS that Petitioner’s fifth claim for relief be DENIED.

V. CONCLUSION

For the foregoing reasons, the Undersigned RECOMMENDS that all of Petitioner’s

claims be DENIED and the Petition be DISMISSED with prejudice.

Because no reasonable jurist would disagree with the recommendations contained herein,

Petitioner should not be granted a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003); Moody v. United States, 958 F.3d 485, 488 (6th Cir. 2020). Further, this Court should

certify to the Sixth Circuit that any appeal would be objectively frivolous, and therefore, Petitioner

should not be permitted to proceed in forma pauperis on appeal.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised

that if they intend to file an appeal of any adverse decision, they may submit arguments in any

objections filed, regarding whether a certificate of appealability should issue.

IT IS SO ORDERED.

s/Kimberly A. Jolson

KIMBERLY A. JOLSON

November 16, 2023 UNITED STATES MAGISTRATE JUDGE