# Cultrona v. Warden Correctional Reception Center

> District Court, S.D. Ohio · May 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10384638

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 15, 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/10384638

## How later opinions describe it (automated extraction)

- holding that a state court’s alleged abuse of discretion in denying a severance motion is not, by itself, a violation of the Constitution
- 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
- discussing Ohio’s contemporaneous objection rule

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384638. Public record. Not legal advice.