Cultrona v. Warden Correctional Reception Center

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IAN A. CULTRONA, :

:

Petitioner, :

: Case No. 2:22-cv-1965

v. :

: Chief Judge Algenon L. Marbley

WARDEN, Correctional Reception Center, :

: Magistrate Judge Michael R. Merz

Respondent. :

:

OPINION & ORDER

In April 2022, Petitioner Ian Cultrona, a state prisoner, filed a Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Now before this Court are Petitioner’s

Objections (ECF Nos. 22, 27) to the Magistrate Judge’s Report and Recommendation (“R&R”)

(ECF No. 19) and Supplemental Report and Recommendation (“SR&R”) (ECF No. 24). For the

reasons stated below, the Magistrate Judge’s R&R (ECF No. 19) is ADOPTED with

modifications. Accordingly, Petitioners Objections (ECF No. 22; ECF No. 27) are

OVERRULED, and his Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED.

I. BACKGROUND

Petitioner Ian Cultrona is incarcerated at the Correctional Reception Center in Orient, Ohio.

(ECF No. 1 at 1). On January 18, 2019, the Tuscarawas County Grand Jury returned an eight-

count indictment in case number 2018 CR 12 0462, charging Petitioner with three counts of

attempted murder, one count of aggravated robbery, three counts of felonious assault, and one

count of conspiracy, each with a firearm specification. (ECF No. 13, Ex. 1). At trial, Petitioner

was found guilty of aggravated robbery and felonious assault, the latter with a firearm

specification. (ECF No. 13, Ex. 20). Petitioner was found not guilty of conspiracy, as well as not

guilty of the firearm specifications on the conspiracy and aggravated robbery counts. (Id.). The

jury was unable to reach a verdict on the three counts of attempted murder and the court declared

a mistrial on those charges and the associated firearm specifications. (ECF No. 13, Ex. 21).

Cultrona was sentenced to an aggregate prison term of eleven years; the State did not retry the

mistried counts.

Petitioner appealed to the Ohio Fifth District Court of Appeals, raising two assignments of

error:

{¶ 18} The trial court committed an error when it permitted Sergeant

Hamilton to testify a second time regarding his newly created cell

phone map, as that testimony violated discovery rules and

appellant’s constitutional right to a fair trial.

{¶ 19} The trial court committed error when it overruled defendant’s

motion in limine and gave the jury an instruction on “flight”.

State v. Cultrona, 2020-Ohio-3250 ¶¶ 18–19, 2021-Ohio-678, 161 Ohio St. 3d 1470, 164 N.E.3d

469. The Fifth District overruled both assignments of error and affirmed the judgment of the trial

court. Id. at ¶¶ 30, 38–39.

Petitioner then filed an Application to Reopen his direct appeal under Ohio R. App. P.

26(B), asserting ineffective assistance of appellate counsel in failing to raise the following

assignments of error:

1. The trial court abused its discretion in permitting irrelevant

prejudicial prior acts evidence and inferences in violation of Evid.

R. 404(B).

2. Violation of Cultrona’s Sixth Amendment right to effective

assistance of counsel.

Cultrona’s trial counsel’s performance was deficient and prejudicial

when said counsel failed to properly and effectively cross-examine

key witnesses, introduce key exculpatory evidence of bullet holes in

Cultrona’s van that occurred during the shooting, and failed to

properly investigate the case.

(ECF No. 13, Ex. 32). Petitioner’s application was denied. (ECF No. 13, Ex. 34). Petitioner

subsequently filed a motion for reconsideration pursuant to Ohio R. App. P. 26(A), which was also

denied. (ECF No. 13, Ex. 36). Petitioner then appealed these denials to the Supreme Court of

Ohio (ECF No. 13, Ex. 41), which declined to accept jurisdiction. (ECF No. 13, Ex. 44). The

Ohio Supreme Court did, however, later grant Petitioner leave to file a delayed direct appeal, (ECF

No. 13, Ex. 50), but ultimately declined to exercise jurisdiction over it as well. (ECF No. 13, Ex.

53).

Following the Ohio Supreme Court’s refusal to exercise jurisdiction, Petitioner filed a

motion to correct the record with the trial court (ECF No. 13, Ex. 54), which denied the motion on

the grounds that it lacked jurisdiction to modify the appellate court’s opinion. (ECF No. 13, Ex.

56). Petitioner appealed to the Fifth District, but failed to file an appellate brief, and the appellate

court dismissed the case. (ECF No. 13, Ex. 58). The appellate court denied Petitioner’s subsequent

motion to reconsider. (ECF No. 13, Ex. 60). Petitioner filed a notice of appeal with the Ohio

Supreme Court, which declined to accept jurisdiction. (ECF No. 13, Ex. 64).

Petitioner then filed the instant Petition for Writ of Habeas Corpus (“Petition”) pursuant to

28 U.S.C. § 2254. (Petition, ECF No. 1). In his Petition, Petitioner identifies four grounds on

which he seeks habeas relief:

GROUND ONE: The trial court committed an error when it

permitted testimony that violated discovery rules and Petitioner’s

constitutional right to a fair trial.

SUPPORTING FACTS: Sergeant Hamilton testified a second time

about his newly created cell phone map.

GROUND TWO: The trial court committed error when it overruled

Defendant’s motion in limine and gave the jury an instruction on

“flight”.

SUPPORTING FACTS: There was a two-month time span between

his crimes and his flight, the matter was a bond violation rather than

a flight from justice and did not warrant a flight instruction.

GROUND THREE: The trial court abused its discretion in

permitting irrelevant prejudicial prior acts evidence and inferences

in violation of Evid. R. 404(B).

SUPPORTING FACTS: Appellate counsel was ineffective for

failing to raise an ineffective assistance of trial counsel argument

citing trial counsel’s failure to present exculpatory evidence and

effectively cross-examine witnesses.

GROUND FOUR: Trial counsel was ineffective.

SUPPORTING FACTS: Trial counsel failed to properly investigate

the case, failed to effectively cross examine key witness[sic], and

failed to introduce exculpatory evidence.

(Id. at 5–10). Petitioner, in his Reply, also contested the Fifth District’s factual findings and

provided his own version of the facts (ECF No. 18 at 4–6), which he later supported with citations

to the record in his first Objections to the R&R. (ECF No. 22 at 3–21).

The Magistrate Judge considered the grounds that Petitioner raised and recommended that

the Petition be dismissed with prejudice, that the Petitioner be denied a certificate of appealability,

and that this Court certify to the Sixth Circuit that any appeal would be objectively frivolous and

should not be permitted to proceed in forma pauperis. (R&R, ECF No. 19 at 16). Petitioner filed

an objection to the Magistrate Judge’s R&R, in which he attempted to rebut the factual findings of

the Fifth District Court of Appeals and asserted that the Magistrate Judge’s conclusions regarding

Grounds 3 and 4 were incorrect. (Cultrona’s Objection, ECF No. 22). Petitioner did not object to

the Magistrate Judge’s conclusions regarding Grounds 1 and 2. (Id.).

In response to Petitioner’s objections, the Magistrate Judge issued the SR&R that addressed

each of Petitioner’s objections and recommended, again, that the Petition be dismissed with

prejudice. (SR&R, ECF No. 24). Petitioner filed an objection to the SR&R, in which he asserted

that the Magistrate Judge’s analysis of his three objections was incorrect. (Objection of Ian

Cultrona, ECF No. 27). Over a month later, Petitioner filed an untimely amended objection that

mixed previously made arguments against the Magistrate Judge’s conclusions within the SR&R

with novel ones. (Amended Objection of Ian A. Cultrona, ECF No. 28). These objections were

struck for untimeliness (ECF No. 29), and Petitioner’s motion to alter or amend that order was

denied. (ECF No. 31). The Petition is now ripe for this Court’s consideration.

II. STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the “judge must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(c). After this review, the district

judge “may accept, reject, or modify the recommended disposition; receive further evidence; or

return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

III. LAW AND ANALYSIS

As an initial matter, Petitioner has not objected to the Magistrate Judge’s R&R regarding

Grounds 1 and 2. Therefore, this Court will only review the Magistrate Judge’s R&R with respect

to Ground 3 (abuse of discretion by the trial court in admitting prior bad acts evidence) and Ground

4 (ineffective assistance of trial counsel).

A. Failure to State a Claim

Based on Petitioner’s Reply and Objections, it appears Petitioner’s third Ground for Relief

has two parts. Petitioner argues that: (1) the trial court violated his constitutional right to a fair

trial when it allowed prior bad acts evidence to be introduced; and (2) the Fifth District’s decision

to overrule this claim was based on an unreasonable determination of the facts in light of the

evidence. For the following reasons, the first part of Petitioner’s third Ground for Relief does not

state a claim upon which habeas corpus relief can be granted.

The Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214

(“AEDPA”) applies to habeas corpus petitions filed after 1996, including the Petition before this

Court. See Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). Under AEDPA, an application

for a writ of habeas corpus can only be granted where the state court’s adjudication of the claims

raised in the application:

(1) 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; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d); Miller, 269 F.3d at 613–614.

Under § 2254(d)(1), “clearly established Federal law” refers to the holdings of the Supreme

Court at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state court decision is “contrary to” clearly established Federal law where its conclusion is

opposite to that reached by the Supreme Court on a question of law or where its outcome is

different than an outcome previously reached by the Supreme Court on “materially

indistinguishable facts.” Id. at 412–13. An incorrect application of federal law is not necessarily

an unreasonable application of federal law; a federal court may only issue a writ of habeas corpus

under the “unreasonable application” prong of § 2254(d)(1) where it concludes that the application

was incorrect and unreasonable. Id. at 410–11.

As the Magistrate Judge’s R&R explains, an alleged abuse of discretion by a state court

judge, without more, is not a constitutional violation. See Sinistraj v. Burt, 66 F.3d 804, 808 (6th

Cir. 1995) (holding that a state court’s abuse of discretion in denying a motion to withdraw a

waiver of a jury trial is not a per se violation of the federal Constitution); Stanford v. Parker, 266

F.3d 442, 459 (6th Cir. 2001) (holding that a state court’s alleged abuse of discretion in denying a

severance motion is not, by itself, a violation of the Constitution). Furthermore, the Supreme Court

has never held that a state violates due process by permitting bad acts evidence. Bugh v. Mitchell,

329 F.3d 496, 512–13 (6th Cir. 2003) (holding that, because “[t]here is no clearly established

Supreme Court precedent which holds that a state violates due process by permitting propensity

evidence in the form of other bad acts evidence[,]” a trial court’s decision to allow such evidence

could not be considered “contrary to” Supreme Court precedent under AEDPA). State courts enjoy

a “wide latitude” with regard to evidentiary matters under the Due Process Clause. Seymour v.

Walker, 224 F.3d 542, 552 (6th Cir. 2000). In order for a state court evidentiary ruling to rise to

the level of a due process violation, the ruling must “offend[ ] some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as fundamental.” Seymour, 224 F.3d

at 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). Establishing whether a principle is

fundamental is guided by historical practice. Montana v. Egelhoff, 518 U.S. 37, 43 (1996).

In his first Objection, Petitioner states that the admission of prior bad acts evidence violated

his constitutional right to a fair trial. (ECF No. 22 at 22). Petitioner fails to support his argument,

however, with any authority to undermine the Sixth Circuit’s holding in Bugh. Therefore, he fails

to meet his heavy burden to establish that a certain principle of justice is “fundamental.” As a

result, Petitioner has not demonstrated that the state court’s decision is contrary to any “established

Federal law,” and has not stated a cognizable claim for relief under § 2254(d)(1).

The second part of Petitioner’s third Ground for Relief and Petitioner’s fourth Ground for

Relief, however, do not suffer from the same infirmity and are discussed further below.

B. Procedural Default

Having concluded that the first part of Petitioner’s third Ground for Relief does not state a

cognizable habeas claim, this Court now considers whether the remaining claims—part two of

Petitioner’s third Ground for Relief and his fourth Ground for Relief—are procedurally defaulted.

1. Failure to Exhaust State Remedies

Individuals like Petitioner, who are convicted of an Ohio criminal offense may challenge

their convictions in multiple ways in state court. In fact, “[i]n 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 present those claims to the state courts for consideration”

before bringing a petition for federal habeas corpus to this Court. Twyford v. Bradshaw, 2017 WL

4280955, at *16 (S.D. Ohio Sept. 27, 2017) (emphasis added) (citing 28 U.S.C. § 2254(b), (c)). If

a defendant fails to do so and can no longer present his claims to the state courts—in other words,

he has procedurally defaulted on the claims—he has also waived those claims for purposes of

federal habeas corpus review. Id.

Procedural default analysis is performed on a claim-by-claim basis, and there are several

junctures at which a defendant may procedurally default on a claim. During trial, counsel must

lodge a contemporaneous objection to preserve an issue for review under any standard but “plain

error.” See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011) (discussing Ohio’s

contemporaneous objection rule). In Ohio, claims that appear on the face of the trial record must

be raised on direct appeal, or they will be waived under Ohio’s doctrine of res judicata. State v.

Perry, 10 Ohio St. 2d 175, 179–80 (1967). A petitioner must also present those claims to the

state’s highest court, in order to exhaust his state remedies. O’Sullivan v. Boerckel, 526 U.S. 838,

844-45 (1999). Additionally, in order to preserve claims on either level of appeal, a petitioner

must fairly present both the factual and legal underpinnings of each of his federal claims to the

state courts. Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). It is true that “a petitioner need

not recite ‘book and verse on the federal constitution,’” id., but that does not absolve him of making

legal arguments in his habeas petition under the federal law or constitutional amendment that he

urges was violated.

Claims that are based on facts outside the record will not be barred by res judicata in Ohio

if the evidence outside the record demonstrates that the petitioner was unable to appeal the

constitutional claim based upon information contained within the record. Gaston v. State of Ohio,

27 Fed.Appx. 301, 306 (6th Cir. 2001) (unreported) (citing State v. Lawson, 103 Ohio App.3d 307,

315 (Ohio Ct. App. 1995)). In this scenario, an individual must petition an Ohio state court for

post-conviction relief under O.R.C. § 2953.21 and present the necessary outside evidence. Id.

(citing Ohio v. Cooperrider, 4 Ohio St.3d 226 (1983)).

An individual claiming a constitutional violation must file his Ohio post-conviction

petition within three hundred and sixty-five days after the trial transcript is filed in the court of

appeals. O.R.C. § 2953.21(A)(2)(a). Untimely petitions will not be entertained, except under very

narrow circumstances. O.R.C. § 2953.23(A). A petitioner’s failure to file timely constitutes a

failure to exhaust state remedies, and therefore, procedural default. See Gunner v. Welch, 749 F.3d

511, 516 (6th Cir. 2014) (“it is common ground that, unless petitioner can show cause for his

failure to file a petition for post-conviction relief in Ohio . . . the claim is procedurally forfeited”);

Gaston, 27 Fed.Appx. at 307 (remanding with instructions to dismiss claims for failure to exhaust

state remedies because the petitioner—who had missed the deadline to file a timely petition for

post-conviction relief under O.R.C. § 2953.21—had not yet filed an untimely petition for post-

conviction relief under O.R.C. § 2953.23).

If a petitioner has procedurally defaulted, this Court is barred from reaching the defaulted

claims unless Petitioner can show either: (1) cause for the procedural default and prejudice from

the alleged constitutional error; or (2) that failure to consider the claims will result in a

“fundamental miscarriage of justice,” Coleman v. Thompson, 501 U.S. 722, 750 (1991), because

of Petitioner’s “actual innocence of the substantive offense,” Dretke v. Haley, 541 U.S. 386, 387

(2004) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986)). To show “cause,” Petitioner must

show that “some objective factor external to the defense impeded counsel’s efforts to comply with

the State’s procedural rule,” or that Petitioner’s counsel—trial counsel or appellate counsel—was

ineffective under Strickland v. Washington, 466 U.S. 687 (1984). Coleman, 501 U.S. at 753; Smith

v. State of Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 432–33 (6th Cir. 2006); Moore v. Mitchell,

708 F.3d 760, 776 (6th Cir. 2013). A petitioner can show “prejudice” if he can show that he “might

not have been convicted” but for the constitutional error. Reed v. Ross, 468 U.S. 1, 12 (1984).

The “actual innocence” exception is a notoriously narrow one that requires new evidence of

innocence. See Sawyer v. Whitley, 505 U.S. 333, 340 (1992).

In his fourth Ground for Relief, Petitioner argues that his trial counsel was ineffective for

failing to investigate the case, cross-examine a key witness, and introduce exculpatory evidence.

Petitioner has not yet filed for post-conviction relief in Ohio, so any arguments that rely on

evidence beyond the record are not ripe for federal habeas review. Furthermore, while Petitioner

brought a claim of ineffective assistance of trial counsel to the state appellate court in his motion

to reopen, he failed to support the claim with sufficient specificity and evidence and the motion

was denied for failing to follow the Ohio Rules of Appellate Procedure. (ECF No. 13, Exhibit 34).

He attempted to provide the requisite support in a subsequent motion to reconsider, but the Fifth

District denied that motion as well, because “a motion for reconsideration is not an opportunity for

a second bite of the apple.” (ECF No. 13, Exhibit 36). Thus, any ineffective assistance of trial

counsel arguments that rely on evidence within the record have also not been properly preserved

for federal habeas review, and they are procedurally defaulted unless Petitioner can show either

“cause and prejudice” or “actual innocence.”

Petitioner alleges that his trial counsel was ineffective for: (1) failing to investigate the case

properly; (2) failing to cross examine a key witness effectively; and (3) failing to introduce

exculpatory evidence. (ECF No. 1 at 10). In his Reply, Petitioner reiterates those allegations and

adds that his trial counsel made poor strategic or tactical choices, lacked a strategy of

consequences, and acted “with reckless disregard for [Petitioner’s] best interest and apparently

with the intention to weaken [Petitioner’s] case.” (ECF No. 18 at 24). While Petitioner failed to

include more specific allegations in his Petition and Reply describing how these alleged failures

rendered his trial counsel’s performance ineffective, these details can be found in the Motion to

Reconsider he filed in his direct appeal to the Ohio Fifth District Court of Appeals. (ECF No. 13,

Ex. 35). In that motion, Petitioner specifically argued that his trial counsel: (a) failed to use the

evidence and testimony available to establish that there were two gunmen, not three; (b) failed to

impeach the eyewitness that claimed Petitioner was one of the gunmen using her prior inconsistent

statements and possible motivation to fabricate testimony; (c) failed to impeach witnesses using

their prior inconsistent statements to show that their recollection of the incident changed after

meeting with one of the detectives; and (d) “failed to properly investigate the case and present the

Evidence Technician Report . . . or the pictures . . . showing everything [Petitioner] had on him

[when he was arrested]” to rebut the allegation that Petitioner was found with a “yellow bag of

marijuana among his belongings[.]” (Id.). Petitioner’s specific allegations contained within his

Motion to Reconsider are supported by citations to both trial testimony and police reports that were

not admitted into evidence. Police reports that were not admitted into evidence are not part of the

record on appeal.

Petitioner’s first argument, that his trial counsel failed to establish that there were two

gunmen instead of three, does not rely on evidence beyond the record. Petitioner cites to both

witness testimony and police reports in support of his argument, and a review of the record as a

whole demonstrates that the relevant contents of the police reports—which were not admitted into

evidence—were nonetheless disclosed during cross-examination if they contradicted the witness’s

testimony on direct examination. (Direct Examination of Gannon Baker, ECF No. 13-2 at 430–

33 (Baker, a victim, testifying that he saw two gunmen exit Petitioner’s van, but did not look

behind his car or see a third gunman, which is fully consistent with what Petitioner alleges Baker

said in the police report); Cross-examination of Brennan Wilkens, ECF No. 13-2 at 776–78

(Petitioner’s trial counsel impeaching Wilkins, a victim, with his prior inconsistent statements to

police regarding how many gunmen were present); Cross-examination of J’Meara Sterns, ECF

No. 13-2 at 795–96 (Petitioner’s trial counsel impeaching Sterns, a victim, with his prior

inconsistent statements to police regarding how many gunmen were present)). Thus, all of

Petitioner’s support for this argument is contained within the record and the argument is, therefore,

procedurally barred from federal habeas review because Petitioner failed to preserve the argument

properly on his direct appeal (ECF No. 13, Exhibit 34), unless Petitioner can show either “cause

and prejudice” or “actual innocence.”

Petitioner’s second argument, that his trial counsel failed to impeach the eyewitness who

claimed that Petitioner was one of the gunmen, relies on evidence contained wholly within the

record. Similar to the first argument, Petitioner cites to witness testimony and police reports, and

a review of the record as a whole demonstrates that the relevant contents of the police reports—

which were not admitted into evidence—were nonetheless disclosed during the cross-examination

of the witness. (Cross-examination of Samantha Owens, ECF No. 13-2 at 741–50 (Petitioner’s

counsel impeaching Owens, a co-conspirator, using her prior inconsistent statements to police and

the deal she was offered by the prosecution for her testimony)). Thus, all of Petitioner’s support

for this argument is contained within the record and the argument is, therefore, procedurally barred

from federal habeas review because Petitioner failed to preserve the argument properly on his

direct appeal (ECF No. 13, Exhibit 34), unless Petitioner can show either “cause and prejudice” or

“actual innocence.”

Petitioner’s third argument, that his trial counsel failed to impeach witnesses using their

prior inconsistent statements to show that their recollection of the incident changed after meeting

with one of the detectives, relies on evidence beyond the record. Petitioner alleges that Detective

Moore “suggested details to the witnesses that caused them to change their stor[ies]” and that his

trial counsel “failed to cross examine” them on that change. (Exhibit 35, ECF No. 13 at 263).

Petitioner cites one example in the record where a witness states that the detective told him the van

involved in the incident was a different color than the witness remembered it to be. (Id.). But the

witness in Petitioner’s example did not change their story; rather, the witness maintained that the

van was red in his testimony contrary to what Detective Moore told him. (Testimony of Gannon

Baker, ECF No. 13-2 at 392, 395). In order to show that his trial counsel failed to establish that

Detective Moore’s suggestions caused witnesses to change their testimony, Petitioner must

necessarily rely on evidence beyond the record. This would include the prior statements made to

police that contradicted the testimony at trial, evidence that Detective Moore made suggestions of

facts to the witnesses, and evidence that shows the witnesses changed their stories in response to

the detective’s suggestions. This argument is barred from review by this Court at this time because

Petitioner has not sought post-conviction relief under O.R.C. § 2953.21. Because the deadline for

filing a timely petition under this statute has expired, Petitioner must seek relief with an untimely

petition filed pursuant to O.R.C. § 2953.23. However, if Petitioner cannot meet the stringent

requirements for an untimely petition, the argument is procedurally defaulted and barred from

federal habeas review.

Petitioner’s fourth and final argument, that his trial counsel “failed to properly investigate

the case and present the Evidence Technician Report . . . or the pictures . . . showing everything

[Petitioner] had on him [when he was arrested]” to rebut the allegation that Petitioner was found

with a “yellow bag of marijuana among his belongings[,]” does not necessarily rely on evidence

beyond the trial record. While the Evidence Technician Report was not admitted into evidence,

the photographs Petitioner references were admitted. These photographs, along with the testimony

of a witness, establish that Petitioner did not have a bag of marijuana on his person when he was

arrested, which is exactly what Petitioner alleges the Evidence Technician Report would confirm.

The photographs and testimony do, however, establish that a yellow bag of marijuana was found

in the room he was arrested in, which would not have been noted in the Evidence Technician

Report. Thus, all of Petitioner’s necessary support for this argument is contained within the record

and the argument is, therefore, procedurally barred from federal habeas review because Petitioner

failed to preserve the argument properly on his direct appeal (ECF No. 13, Exhibit 34), unless

Petitioner can show either “cause and prejudice” or “actual innocence.”

2. Cause and Prejudice

Petitioner does not argue “actual innocence,” but he does argue that his procedural defaults

are excused due to ineffective assistance of appellate counsel. Petitioner had two opportunities to

present the state appellate court with his ineffective assistance of trial counsel argument.

The first opportunity to present this argument to the appellate court was on his direct

appeal, where his appellate counsel omitted the argument in favor of others. Petitioner, in his

Reply (ECF No. 18 at 13) and First Objections (ECF No. 22 at 24), recites the law regarding

whether an appellate counsel’s failure to raise an issue on appeal rises to the level of ineffective

assistance of counsel, but makes no actual argument that his appellate counsel was deficient in this

regard.

The second opportunity was in Petitioner’s motion to reopen his direct appeal under Ohio

R. App. 26(B), where Petitioner attempted to include the argument but failed to support adequately

the argument as required by Ohio R. App. 16(A)(7). As “cause” for this failure, Petitioner states

that his appellate counsel failed to provide him with “a transcript of all the evidence submitted to

the Fifth District [Court of Appeals]” and, as a result, Petitioner was unable to provide sufficiently

specific support in his application to reopen his appeal. (Petitioner’s Objections to the R&R, ECF

No. 22 at 24–25); (Petitioner’s Objections to the Supplemental R&R, ECF No. 27 at 6). In support

of this argument, Petitioner has submitted several communications between himself and his

appellate counsel that indicate he repeatedly sought his transcripts from his appellate counsel

throughout the appellate process—nine months of futile requests—until he finally acquired them

at some time after his appeal was denied. (ECF No. 27 at 10–23). Petitioner alleges that, by failing

to provide a trial transcript, his appellate counsel’s performance was deficient. (Id. at 6).

This Court is not persuaded and concludes that Petitioner has not established “cause” that

would excuse his procedural default on the remaining arguments under Ground Four. Petitioner’s

counsel’s performance cannot be considered deficient when, at the time Petitioner was preparing

his application to reopen his appeal, he was no longer represented by his appellate counsel.

Petitioner was also not prevented from obtaining the trial transcript by his former appellate

counsel. In Petitioner’s only letter to his appellate counsel dated after the appellate court’s decision

to deny his appeal, Petitioner acknowledged that he had a limited window of time to file his

application to reopen his appeal, gave permission for a third-party to pick up the trial transcripts

from his appellate counsel and mail them to him, and admitted that his sister lived only three hours

away and could have picked up the transcripts at any time. Further undermining Petitioner’s claim

that he could not acquire the transcripts in time to support his application to reopen properly is the

fact that he submitted his application over a week before the deadline. Finally, and most notably,

nowhere in Petitioner’s arguments does he state that he ever filed a request for the transcripts with

the Tuscarawas County Court of Common Pleas.

In short, Petitioner has failed to provide sufficient evidence for this Court to find that his

procedural defaults are excused. This conclusion is not inconsistent with the past decisions of this

Court and other district courts within the Sixth Circuit. See, e.g., Book v. Cook, No. 2:10-CV-

1081, 2012 WL 628716 (S.D. Ohio Feb. 27, 2012), report and recommendation adopted, No.

2:10CV1081, 2012 WL 1030522 (S.D. Ohio Mar. 27, 2012) (concluding that a claim of ineffective

assistance of appellate counsel for failure to provide the petitioner with trial transcripts is “without

merit”); United States v. Groenendal, No. 1:11-CR-260, 2020 WL 3046010 (W.D. Mich. June 8,

2020) (stating that there is no constitutional right to the assistance of counsel after a court of

appeals has denied an appeal, and, therefore, the petitioner’s constitutional rights were not violated

when his appellate counsel refused to provide him with copies of his trial and sentencing transcripts

and there was no evidence that petitioner ever requested his transcripts from any court); see also

Russell v. Jackson, No. 2:08-CV-171, 2009 WL 1542821 (S.D. Ohio May 29, 2009), report and

recommendation adopted, No. 2:08CV171, 2009 WL 2487070 (S.D. Ohio Aug. 11, 2009) (finding

that there is no “cause” to excuse procedural default where the petitioner was given trial transcripts

by their appellate counsel only fifty-seven days prior to the deadline to file a motion to reopen

under Ohio R. App. P. 26(B) and the petitioner failed to provide any evidence to show he was

prevented from requesting a copy of his transcripts earlier).

Even if this Court assumes arguendo that the failure to send Petitioner the trial transcripts

qualifies as “cause” for his procedural default, Petitioner has failed to persuade this Court that the

ineffective assistance of which he complains was prejudicial. That is, it is far from evident that

the outcome of Petitioner’s trial would have been different. The record clearly demonstrates that

Petitioner’s trial counsel did cross-examine and impeach the witnesses who gave prior inconsistent

statements to the police, and counsel even highlighted those inconsistencies again during closing

arguments. Furthermore, Petitioner’s argument about whether the bag of marijuana was found

“among his belongings” or merely in the room in which he was arrested lacks any material amount

of exculpatory value when compared to the rest of the record.

C. Merits

This Court now turns to the second part of Petitioner’s third Ground for Relief. Petitioner

argues that the Fifth District’s decision to reject his proposed assignment of error—that his

appellate counsel was ineffective for not arguing that the trial court abused its discretion in

permitting prior bad acts evidence—is based on an unreasonable determination of the facts in light

of the evidence presented at trial.

“A federal court may grant a writ under § 2254(d)(2) if the state court proceedings ‘resulted

in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” Hill v. Shoop, 11 F.4th 373, 384 (6th Cir. 2021) (en

banc) (quoting 28 U.S.C. § 2254(d)(2)). A merely incorrect determination is not necessarily an

unreasonable determination, which is a “substantially higher threshold.” Id. (quoting Schiro v.

Landrigan, 550 U.S. 465, 473 (2007)). An “unreasonable determination” is one that “is so

obviously wrong that its error lies ‘beyond any possibility for fairminded disagreement.’” Miles

v. Jordan, 988 F.3d 916 (6th Cir. 2021) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

Additionally, “the petitioner must show that the resulting state court decision was ‘based on’ that

unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). The factual

findings of the state court are presumed to be correct, but this presumption may be rebutted by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Federal courts should only review the

factual findings and legal conclusions of the state court that most recently adjudicated the claims

made in the habeas petition on their merits. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).

In adjudicating Petitioner’s third Ground, the Fifth District agreed with Petitioner that the

prior bad acts evidence was improperly admitted. (ECF No. 13, Ex. 34). However, the Fifth

District concluded that the error “did not have an impact on the verdict and the error was harmless

beyond a reasonable doubt.” (Id.). The justification for this conclusion was that: (1) “Cultrona

was acquitted of the most serious counts of the indictment”; and (2) there was “ample evidence”

introduced at trial “to prove Petitioner possessed a firearm on the day of the incident.” (Id.). While

the first reason is irrelevant because it does not rely on the factual findings, the Fifth District’s

second reason directly ties its ultimate decision to its factual findings. The court, in support of

their holding, pointed to “three witnesses” that proved Petitioner had brandished a gun prior to the

admission of the improper character evidence. (Id.). Those three witnesses were Samantha

Owens, who testified that Petitioner had a gun that day and brandished it in commission of the

robbery, Lisa Freetage, who testified that Petitioner was in possession of a firearm immediately

before travelling to the scene of the incident, and Detective Sergeant Ryan Hamilton, who testified

that Petitioner was arrested the day of the incident while in possession of a firearm. (Id.).

Petitioner, to succeed on this claim, must establish several crucial elements. The first is

that he must show, by clear and convincing evidence, that the factual findings of the state court

are incorrect. Next, Petitioner must show that the incorrect factual findings are also unreasonable.

Finally, he must show that the state court based their decision on these unreasonable facts.

Petitioner has not met any of these requirements.

In Petitioner’s version of the factual findings contained within his Reply, he admits to

possessing a firearm on the day in question. (ECF No. 18 at 4). However, Petitioner argues that

the Fifth District’s finding that he—at the same time as his co-defendants—left his van and

brandished a handgun is unreasonable because (1) he was found not guilty of conspiracy;1 and (2)

he was found not guilty of the firearm specification to the aggravated robbery. (Petitioner’s

Objections to the R&R, ECF No. 22 at 10). Petitioner also argues that the Fifth District’s finding

that he “aim[ed] [his] weapon[] at the occupants and demand[ed] [the victim’s] marijuana and

cash” is unreasonable because he was acquitted of the firearm specification to the aggravated

robbery charge. (Id. at 12).

Magistrate Judge Merz, in his SR&R, states that Petitioner, in order to prevail on this

argument, must “point to evidence in the record which showed he was somewhere else or he

actively dissented from the arrangement of something of that sort.” (ECF No. 24 at 2). The SR&R

further states that a not guilty verdict means the jury did not find that each element was proven

beyond a reasonable doubt, nothing more. (Id.). It does not mean that “the facts are opposite of

what the state court found.” (Id.).

1 Petitioner argues that his acquittal of the conspiracy charge necessarily means he could not have exited his car and

brandished a gun in unison with two other co-conspirators, presumably because such synchronous action—in

Petitioner’s view—would have required prior planning.

This Court agrees with the Magistrate Judge in part. The only legal conclusion that a not

guilty verdict supports is that at least one element of the charged offense was not proven beyond a

reasonable doubt. This Court, however, disagrees to the extent that Petitioner could prevail on this

argument, even in the absence of evidence that he was somewhere else or that he actively dissented

from the arrangement, if there was no evidence to support the Fifth District’s factual findings. This

is not the case. For whatever weight—if any—Petitioner’s not guilty verdicts on the conspiracy

charge and the firearm specification on the aggravated robbery charge is worth, it is certainly

equaled or outweighed by the weight of his convictions on the three felonious assault charges, all

with firearm specifications.

Looking beyond the jury verdicts themselves, the evidence at trial is sufficient to support

the Fifth District’s factual findings as well. One eyewitness testified that she saw Petitioner

brandish a gun while being an active participant in the robbery. Petitioner argues that her

testimony is unreliable because of her prior inconsistent statements and deal with the prosecution.

This argument, however, goes towards the weight of her testimony, not its sufficiency. It is not

this Court’s place to question the weight that the Fifth District gave to her testimony, the fact that

it exists and is not demonstrably false is enough for this Court to conclude that Petitioner has failed

to establish that the Fifth District’s decision is so obviously wrong that its error lies “beyond any

possibility for fairminded disagreement.” The second part of Petitioner’s third Ground for Relief

is denied.

IV. CONCLUSION

Having considered Petitioner’s grounds for relief and his objections to the Magistrate

Judge’s R&R and SR&R, this Court finds they are without merit. Accordingly, the Magistrate

Judge’s R&R (ECF No. 19) is hereby ADOPTED with modifications, Petitioner’s Objections

(ECF No. 22; ECF No. 27) are OVERRULED, and Petitioner’s Petition for Writ of Habeas

Corpus (ECF No. 1) is DISMISSED WITH PREJUDICE. Furthermore, because reasonable

jurists would not disagree with this conclusion, this Court DECLINES to issue a certificate of

appealability and CERTIFIES to the Sixth Circuit that any appeal would be objectively frivolous

and should not be permitted to proceed in forma pauperis.

IT ISSO ORDERED. wi

ALGENON L. MARB

CHIEF UNITED STATES DISTRICT JUDGE

DATED: May 15, 2024

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