# Cox v. Warden, Chillicothe Correctional Institution

> District Court, S.D. Ohio · January 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10383966

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10383966

## Opinion text

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

MICAH A. COX,
Petitioner,
. Case No. 3:22-cv-33
V. □
Judge Walter H. Rice
JENNY HILDEBRAND,
. Magistrate Judge Michael R. Merz
Warden, Madison °
Correctional Institution,
Respondent. .

ENTRY ADOPTING INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS (DOC.
#30, 35), OVERRULING OBJECTIONS THERETO (DOC. #33, 40), AND DISMISSING WITH
PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS (DOC. #4); JUDGMENT TO BE ENTERED
IN FAVOR OF RESPONDENT WARDEN AND AGAINST PETITIONER MICAH A. COX; PETITIONER
IS DENIED A CERTIFICATE OF APPEALABILITY AND SHOULD NOT BE PERMITTED TO
PROCEED ON APPEAL IN FORMA PAUPERIS; TERMINATION ENTRY

Pro Se Petitioner Micah A. Cox has filed a Petition for writ of habeas corpus.
(Petition, Doc. #3). Pursuant to 28 U.S.C. § 636(b) and General Order Day No. 22-01,
the matter was referred to Magistrate Judge Michael R. Merz for a Report and
Recommendations, which the Magistrate Judge filed on August 1, 2023. (Initial Report,
Doc. #30). Petitioner filed Objections (Doc. #33), and the undersigned recommitted the
matter to the Magistrate Judge (Recommittal Order, Doc. #34), who issued a
Supplemental Report and Recommendations (Doc. #35), to which Petitioner again
objected. (Supp. Objections, Doc. # 40). For the reasons set forth below, the Court

ADOPTS the Initial and Supplemental Reports, OVERRULES the Objections thereto,
and DISMISSES the Petition WITH PREJUDICE.

I. Procedural History and Legal Standards
The Initial Report fairly and completely set forth the factual background and
procedural history with respect to the Petitioner and Petition. (Doc. #30, PagelD 509-
11). The Court adopts that portion of the Initial Report and incorporates it by reference
herein.
As “a prisoner petition challenging the conditions of confinement{,]” the Petition
was referred to the Magistrate Judge pursuant to Federal Rule of Civil Procedure 72(b),
under which the Magistrate Judge “must enter a recommended disposition,” and “a
party may serve and file specific written objections to the proposed findings and
recommendations.” FED.R.Civ.P. 72(b)(1-2). “The district judge must determine de
novo any part of the magistrate judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.”
FED.R.Civ.P. 72(b)(3).
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-
132, 110 Stat. 1214, this Court's review of a claim adjudicated on the merits by a state
court is sharply circumscribed. The Court may grant relief only if that state-court
adjudication “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;

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)(1-2). Further, “a
determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1). “lf this standard is difficult to meet,
that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
A state court may be found to have acted “contrary to” federal law by two means:
(1) if the state court's decision is “substantially different from the relevant precedent” of
the U.S. Supreme Court; or (2) if “the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [Supreme Court] precedent.” Williams (Terry) v. Taylor,
529 U.S. 362, 405, 406 (2000). A state court does not act contrary to federal law simply
because its application of federal law was incorrect. Rather, the decision must have
been “mutually opposed],]” id. at 406, to clearly established federal law, which
encompasses only the holdings of Supreme Court decisions, and not their dicta.
Williams (Terry), 529 U.S. at 412.
A federal habeas corpus petitioner must exhaust his federal constitutional claims
in the state court before he may bring those claims before this Court. 28 U.S.C. §
2254(b)(2). Exhaustion may be shown by demonstrating that: (1) the highest court of a
state has adjudicated the merits of the claim; or (2) under state law, the claims are
procedurally barred. Williams (Terry), 529 U.S. at 402-03; Gray v. Netherland, 518 U.S.
152, 161-62 (1996). “[T]he doctrine of exhaustion requires that a claim be presented to

the state courts under the same theory on which it is later presented in federal court.”
Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). However, if a claim is procedurally
barred under state law because “a state prisoner has defaulted his federal claims in
state court pursuant to an independent and adequate state procedural rule, [then]
federal habeas review of the claims is barred” unless the petitioner can demonstrate
cause and prejudice or that failure to adjudicate the claim “will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

il. Analysis
A. Claim One
Claim One is divided into two subclaims. In the first or “failure to object”
subclaim, Petitioner asserts that, at resentencing, his appointed counsel was allegedly
ineffective by failing to object to Petitioner not being physically present at the
resentencing. In the second or “divided loyalties” subclaim, Petitioner claims that prior
to resentencing, counsel demonstrated “divided loyalties” by failing to confer with
Petitioner about his desire to have a fine imposed at resentencing. Petitioner argues
that, had counsel conferred and represented to the trial court that Petitioner wanted the
fine to be imposed, the proceeding would have been a “de novo resentencing hearing”
as to the fine, and Petitioner would have been allowed to “to file another federal habeas
petition without its being considered successive.” (Doc. #30, PAGEID 515 (internal
quotation marks omitted), quoting State Court Record, Doc. #19, PAGEID 251; accord:
Doc. #3, PAGEID 57).

The Magistrate Judge concluded that the first subclaim is procedurally defaulted
because, on direct appeal, Petitioner merely raised a very general ineffective assistance
claim under Strickland v. Washington, 466 U.S. 668 (1984): that “Appellant was denied
his sixth amendment right to the effective assistance of counsel at resentencing.” (Doc.
#30, PAGEID 514, quoting Doc. #19, PAGEID 251). Petitioner did not mention anything
about counsel's failure to object, and the state appellate court did not mention any
failure to object in its decision. Thus, the Magistrate Judge reasoned, Petitioner did not
raise the legal and factual basis of a failure to object claim, and the lack of “fair
presentation” of the claim “at every stage of the appellate process” means that it cannot
be reviewed by this habeas Court. (/d. at PAGEID 514-15, citing Wagner v. Smith, 581
F.3d 410, 418 (6th Cir. 2009); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006);
State v. Cox, 2d Dist. Greene No. 2020-CA-14, 2020-Ohio-5030, JJ 7-9 (Oct. 23,
2020)).
The Magistrate Judge further concluded that the divided loyalties subclaim was
not properly raised in the state courts. The Magistrate Judge noted that while Petitioner
raised the divided loyalties claim, he did so not on direct appeal, but on a collateral
Motion for Final Appealable Order. In that latter motion, Petitioner claimed that because
his sentence did not include the mandatory fine, the sentence was void under Stafe ex
rel. Roberts v. Marsh. (Doc. #30 at PAGEID 510, 515-16, citing Doc. #19, PAGEID 251;
Marsh, 156 Ohio St. 3d 440, 2019-Ohio-1569, f] 10 (per curiam)). However, as the
Magistrate Judge discussed (id. at PAGEID 515-16), after the Motion was filed, the
Supreme Court of Ohio overruled numerous previous cases and held that “[w]hen a

case is within a court's subject-matter jurisdiction and the accused is properly before the
court, any error in the exercise of that jurisdiction in imposing postrelease control
renders the court's judgment voidable,” rather than void, “permitting the sentence to be
set aside if the error has been successfully challenged on direct appeal.” State v.
Harper, 160 Ohio St. 3d 480, 2020-Ohio-2913, J 4 (emphasis added). Before the
Second District Court of Appeals ruled on the motion, the Supreme Court of Ohio
extended Harper to instances, such as that of Petitioner, where a mandatory fine was
not imposed, holding that such failure to impose renders the judgment voidable. State
v. Henderson, 161 Ohio St. 3d 285, 2020-Ohio-4784, J 37. The Second District held
that:
[T]he Harper jurisprudence realignment applies to the failure to impose a
mandatory fine, and that part of Cox's judgment was not void. Because he
did not raise the mandatory fine error in his direct appeal, he cannot raise
it now.
Cox, 2020-Ohio-5030 at J 3.n.1, citing Harper, 2020-Ohio-2913 at J 43.
From the above, the Magistrate Judge concluded that the Second District was
correct to hold that the divided loyalties subclaim was defaulted. (Doc. #30, PAGEID
516). Alternatively, the Magistrate Judge concluded that, even if the subclaim were not
defaulted, Petitioner did not have a viable Strickland claim because he “failed to show
prejudice because|[,] under Ohio law[,] he was not entitled to collaterally attack his
sentence for failure to include the mandatory fine.” (Id. at 517, citing Strickland, 466
U.S. at 687).

While not a model of clarity, in his Objections, Petitioner appeared to argue that
he raised the failure to object subclaim as his first Proposition of Law to the Supreme
Court of Ohio, and that the divided loyalties subclaim was fairly raised as part of his
general ineffective assistance of counsel claim. Because, Petitioner argued, the state
court had fair opportunity to assess his Strickland claim, any failure to fashion the
subclaim precisely as a failure to object should be excused. (Initial Obj., Doc. #33,
PAGEID 529-31). As to the divided loyalties subclaim, Petitioner argued that the
Magistrate Judge’s reliance on Harper and Henderson was improper and amounted to
an imposition of ex post facto law. (/d. at PAGEID 532, citing Williams (Terry), 529 U.S.
at 409-10). Specifically, he argued that the holding in Harper was only to be applied
prospectively, and because his initial judgment predated Harper and Henderson, his
resentencing was void, rather than voidable, and must be vacated. (/d. at 532-33,
quoting Harper, 2020-Ohio-2913 at J 43).
In the Supplemental Report, the Magistrate Judge noted that Petitioner's focus
on whether he failed to exhaust fully the failure to object subclaim was misplaced,
because it was Petitioner's failure to fairly present the subclaim at aif that rendered it
procedurally defaulted. (Supp. Report, Doc. #35, PAGEID 546). As Petitioner had not
shown good cause for the default, the Court cannot consider the claim or even hold the
Petition in abeyance while Petitioner returns to state court, as it could with a merely
unexhausted claim. (/d., citing Rhines v. Weber, 544 U.S. 269 (2005); Wainwright v.
Sykes, 433 U.S. 72, 86-87 (1977)). As to the divided loyalties subclaim, the Magistrate
Judge emphasized that Petitioner was raising a Strickland claim, which the Second

District had already rejected on the merits, concluding that: (1) nothing in the record
suggests that counsel was aware of Petitioner's desire to be fined, meaning there could
not have been deficient performance, and (2) the trial court was required to waive the
fine regardless, meaning that even if counsel erred by not consulting with Petitioner
about wanting the fine imposed, there was no prejudice. (/d. at PagelD 547-48, quoting
Cox, 2020-Ohio-5030 at ¥ 9).
In the Supplemental Objections, Petitioner asserted that failure to exhaust is a
type of procedural default (which may be excused by a showing of cause and
prejudice), and that this the failure to object subclaim comes within the narrow class of
cases for which default would be a fundamental miscarriage of justice. (Supp. Obj.,
Doc. #40, PAGEID 564, quoting Schlup v. Delo, 513 U.S. 298, 314-15 (1995); Breard v.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998), limited on other grounds by Mueller v.
Angelone, 181 F.3d 557 (4th Cir. 1999)). As to the divided loyalties subclaim, Petitioner
argued that he did not know that sentencing counsel had even been appointed, much
less that said counsel would decline to waive Petitioner's right to be present at
sentencing without consulting him. (/d. at PAGEID 565-66). Had counsel’s primary
loyalty been to him and not the State, Petitioner claimed, counsel would have consulted
with him as to why he wanted a $7,500 fine imposed at resentencing. (/d. at PAGEID
566-67). This failure to consult meant that a new valid judgment was not imposed, and
Petitioner unnecessarily had to obtain leave from the United States Court of Appeals for
the Sixth Circuit to file the instant Petition. (/d. at PAGEID 568; see also Transfer Order,
Doc. #13; In re Cox, Doc. #14, PAGEID 159 (citations omitted) (“Cox’s proposed

habeas petition is not second or successive[,] because the factual predicate for his
proposed claims did not arise until several years after his initial petition was fully
adjudicated. Thus, Cox need not obtain our authorization to proceed with the
petition.”)).
As to the failure to object subclaim, Petitioner's Strickland claim in state court
was based on counsel not following through with Petitioner's strategy for a fine to be
imposed at resentencing (Doc. #19, PAGEID 251-52), and “act[ing] without consulting
with appellant regarding his ‘pro se’ plan of action prior to participating in the
resentencing hearing.” (/d. at PAGEID 252). There was no mention of counsel being
deficient by failing to object to his absence at the hearing. Further, as the Magistrate
Judge noted, the Second District, in adjudicating Petitioner's ineffective assistance
claim on the merits, did not discuss any failure to object to Petitioner not being present
at the resentencing hearing. Cox, 2020-Ohio-5030 at | 7-9. This failure to put the
state court on notice of the factual basis of the subclaim means that it is procedurally
defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006), citing McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
As discussed above, a procedural default may be overcome only by a showing of
good cause for failing to present and prejudice from that failure, or that not excusing the
default would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at
750. In neither this subclaim nor any claim discussed infra that is also procedurally
defaulted has Petitioner attempted to show, much less shown, good cause as to why he
did not fairly present the claim or subclaim in every instance in state court. Petitioner

also has failed to show his factual innocence or convince the Court that there was
sufficient doubt as to his guilt; thus, Petitioner cannot meet the “fundamental
miscarriage” standard. See Schiup, 513 U.S. at 317, 321 (“To ensure that the
fundamental miscarriage of justice exception would remain ‘rare’ and would only be
applied in the ‘extraordinary case,’. . . this Court explicitly tied the miscarriage of justice
exception to the petitioner’s innocence.”). Consequently, this Court may not consider
the failure to object subclaim.
The divided loyalties subclaim, arising under Strickland, requires that a claimant
demonstrate prejudice from any ineffective assistance, and Petitioner cannot do so.
Even assuming that the state trial court’s decision not to fine Petitioner several
thousand dollars was improper, the Sixth Circuit allowed the Petition to proceed as first-
in-time, rather than second-or-successive.’ Any procedural error by this Court in
treating the Petition as second-or-sucessive and transferring it to the Sixth Circuit is
definitionally outside the scope of habeas corpus, which deals solely with state court
judgments. 28 U.S.C. § 2254(d). Petitioner has not identified any other way in which
he may have been prejudiced. Thus, even assuming that the divided loyalties subclaim
was not procedurally defaulted, Petitioner cannot satisfy Strickland, and the subclaim
must be dismissed.

1 The only prejudice Petitioner theoretically suffered was having his Petition erroneously
transferred from this Court, and the roughly five months delay in beginning merits adjudication.
Petitioner cites no caselaw suggesting that this qualifies as prejudice under Strickland; nor
could it, as the theoretical prejudice occurred from an act or omission by the Court, rather than
counsel. 10

B. Claim Two
In his second claim, Petitioner asserts that he “was denied his Sixth Amendment
right to be physically present for resentencing”; specifically, he “was resentenced in
absentia due to his refusal to waive his right to be present.” (Doc. #3, PAGEID #59).
Petitioner raised this claim on direct appeal solely as a violation of Ohio Criminal Rule
43(A) and section 10, Article 1 of the Ohio Constitution. (Doc. #19, PAGEID 253). The
Second District acknowledged that the trial court violated Rule 43(A) by resentencing
him in absentia without an express waiver by Petitioner or his counsel. Cox, 2020-Ohio-
5030, J 12. However, the Second District concluded that there was “no evidence to
suggest that the outcome would have been different if Cox had been physically
presenit{[,]” because “[b]jased on Cox’s own affidavit, the trial court found him indigent
and waived the fine, as it was required by statute to do[.]” /d. at ] 13. Thus, even if
Petitioner had fired counsel and, acting pro se, had asked the trial court to impose a
fine, as he claimed he wanted to do, the trial court could not have done so. As
Petitioner was not prejudiced, the Second District concluded that the trial court's
violation of Rule 43(A) was harmless and overruled the assignment. /d. The Second
District did not address any federal constitutional issue.
In the Initial Report, the Magistrate Judge concluded that the failure to present
the claim as a federal constitutional issue to the Second District meant the claim is
procedurally defaulted. (Doc. #30, PAGEID 519). The Magistrate Judge is correct. It is
well-settled Sixth Circuit law that “[flor a claim to be reviewable at the federal level, each
claim must be fairly presented at every stage of the state appellate process.” Wagner v.
11

Smith, 581 F.3d 410, 418 (6th Cir. 2009) (emphasis added). Even if Petitioner is correct
that he obliquely asserted a Sixth Amendment claim to the Supreme Court of Ohio
(Traverse, Doc. #29, PAGEID 498-99), the failure to present the claim to the state’s
Second District renders it forever defaulted.
In the Objections, Petitioner claimed that his complaint that he was not present at
sentencing was sufficient to invoke his Sixth and Fourteenth Amendment rights to a fair
trial. (Doc. #33, PAGEID 537-38, citing Verdin v. O'Leary, 972 F.2d 1467, 1478, 1481
(6th Cir. 1992)). He asserted that his state appellate argument was that Criminal Rule
43(A) was the embodiment of the federal constitutional guarantee of “the right to be
present at all stages of a criminal proceeding that is critical to its outcome when his or
her absence may frustrate the fairness of the proceedings.” (/d. at PAGEID 537, citing
Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Again, Petitioner raised this argument
in his memorandum in support of jurisdiction to the Supreme Court of Ohio; he never
made a federal constitutional argument to the state’s Second District. That initial
omission means that the claim is barred from federal habeas review, no matter how
many times he raised it subsequently. Consequently, the claim must be dismissed.
Cc. Ciaim Three
Petitioner claimed that he “was denied due process and equal protection under
the law when an appellate court commit[ted] a mistake of law.” Specifically, he alleged
that the Second District “erroneously determined R.C. 2929.18(B)(1) does not apply to
Petitioner's case despite explicit language to the contrary.” (Doc. #3, PAGEID #60).
The Magistrate Judge concluded that this claim, like Claim Two, was procedurally
12

defaulted because Petitioner did not raise that constitutional claim to the Supreme Court
of Ohio. (Doc. #30, PAGEID 520-21). Further, even if the state’s Second District
violated Ohio Revised Code § 2929.18(B)(1) by failing to vacate his sentence for the
trial court's failure to impose a fine, that violation does not, by itself, create a cognizable
habeas claim. (/d. at PAGEID 521, citing Levine v. Torvik, 1515 (6th Cir. 1993),
overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995)).
Petitioner argued that “he has exhausted this Due Process claim by presenting it
as a ‘sufficiency of evidence’ claim.” (Doc. #33, PAGEID 539, citing Evans v. Court of
Common Pleas, 959 F.2d 1227, 1231-33 (3d Cir. 1992); West v. Wright, 931 F.2d 262,
266 (4th Cir. 1991), rev'd on other grounds, 505 U.S. 277 (1992)). However, the
“insufficient affidavit” alleged by Petitioner with respect to his ability to pay a fine, Cox,
2020-Ohio-5030, J 14, has to do with state criminal procedure, and is distinct from the
“sufficiency of the evidence” necessary to sustain a conviction, and which implicates
federal due process. See, e.g., Evans, 959 F.2d at 1231. As there was no presentation
of a due process or equal protection claim anywhere in the state court, Petitioner may
not raise it here. Thus, Claim Three is dismissed as procedurally defaulted.
D. Claim Four
Finally, Petitioner claimed that he “was denied due process when he was denied
his right of allocution by” the trial judge “resentencing him in his absence.” (Doc. #3,
PAGEID 62). The Magistrate Judge correctly noted that there is no constitutional right
to allocution. (Doc. #30, PAGEID 521-22, citing Hill v. United States, 368 U.S. 424, 428
(1962)). The Magistrate Judge also properly rejected Petitioner's attempt, in his
13

Traverse, to refashion the claim as arising under Strickland, based on Petitioner's
counsel failing to object at sentencing to Petitioner losing his purported right to allocute.
(/d. at 522, citing Jalowiec v. Bradshaw, 657 F.3d 293, 311-12 (6th Cir. 2011); Tyler v.
Mitchell, 416 F.3d 500, 504 (6th Cir. 2005); Traverse, Doc. #29, PAGEID 503-07).
Petitioner did not object to the Magistrate Judge’s conclusions. Nor could he
reasonably do so, as it is well-established that: (a) denial of allocution does not
implicate due process; (b) a district court is well within its discretion not to consider an
argument raised for the first time in a Traverse. Accordingly, Claim Four is dismissed.

lll. Conclusion
In light of the above, the Court ADOPTS the Initial (Doc. #30) and Supplemental
(Doc. #35) Report and Recommendations and OVERRULES Petitioners Objections
thereto (Docs. #33, 40). The Petition (Doc. #3) is DISMISSED WITH PREJUDICE.
Judgment shall enter in favor of the Respondent Warden and against Petitioner.
Because Petitioner has not “made a substantial showing of the denial of a constitutional
right[,]” 28 U.S.C. § 2253(c)(2), and the result reached herein would not be debatable
among reasonable jurists, the Court does not grant him a certificate of appealability.
The Court further certifies that any appeal to the Sixth Circuit would not be taken in
good faith, and Petitioner should not be permitted to proceed on appeal in forma
pauperis.

14

The captioned cause is hereby ordered terminated upon the docket records of
the United States District Court for the Southern District of Ohio, Western Division, at
Dayton.
IT IS SO ORDERED.
/

WALTER H. RICE, JUDGE
January 29, 2024 UNITED STATES DISTRICT COURT

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383966. Public record. Not legal advice.