Brown v. Gray

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

AULETTI BROWN, CASE NO. 5:20-cv-1233

Plaintiff, DISTRICT JUDGE

BRIDGET MEEHAN BRENNAN

vs.

MAGISTRATE JUDGE

WARDEN DAVID GRAY, JAMES E. GRIMES JR.

Defendant.

REPORT AND

RECOMMENDATION

Auletti Brown filed a Petition under 28 U.S.C. § 2254 for a Writ of

Habeas Corpus. Doc. 1. Brown is currently in custody at the Belmont

Correctional Institution serving an aggregate sentence of imprisonment of 25

years to life imposed by the Stark County Court of Common Pleas in State v.

Brown, Case No. 2017CR2362. The Court referred this matter to a Magistrate

Judge under Local Rule 72.2 for the preparation of a Report and

Recommendation. For the following reasons, I recommend that the Court

dismiss Brown’s petition.

Summary of underlying facts

In habeas corpus proceedings brought under 28 U.S.C. § 2254, factual

determinations made by state courts are presumed correct. 28 U.S.C. §

2254(e)(1). “This presumption also applies to the factual findings that [a] state

appellate court makes on its review of the state trial record.” Johnson v. Bell,

525 F.3d 466, 474 (6th Cir. 2008). The petitioner has the burden of rebutting

that presumption by clear and convincing evidence. Id.

The Ohio Court of Appeals for the Fifth Appellate District summarized

the facts underlying Brown’s conviction as follows:

{¶2} Y.W.’s and his fiancée M.L. lived on Ingram

Avenue, SW, Canton, Stark County, Ohio, with her

four children, including a three-year-old son that she

had with Y.W. M.L. is Brown’s cousin.

{¶3} On December 10, 2017, around seven o’clock in

the evening, Y.W. and M.L. were at home with their

children, drinking alcohol and smoking marijuana.

Y.W. left and walked to Maggiore’s Drive-thru to

purchase alcohol. At approximately the same time,

Brown left his home on Maryland Avenue, SW to go

to Maggiore’s Drive-thru to purchase beer and

cigarettes. Brown testified that when he left home,

he put his knife in his pants pocket because he

always carried a knife with him when he left his

house.

{¶4} Brown and Y.W. got into a verbal and physical

altercation outside the Maggiore’s drive thru on

Dueber and 9th Street in Canton, Ohio. Y.W. pushed

Brown to the ground and accused Brown of slashing

his car tires. Brown called 9-1-1, told the dispatcher

never mind and hung up. Both left the area and

walked to their respective homes, which were within

blocks of each other. Surveillance cameras in the

area captured portions of this altercation.

{¶5} M.L. testified that Brown had been told to stay

away from their home “because his drinking leads to

violence.” 1T. at 1871. M.L. testified when Y.W.

returned from the drive thru he was angry. Y.W. told

her that he had pushed Brown down and that if

Brown was not her cousin he would have really

punched on him. 1T.at 194. M.L. testified that she

never heard a knock on the door that day, but heard

Brown outside hollering and screaming, “Mother

fucker.” 1T.at 208; 3T. at 535. M.L. testified that she

saw Y.W. head for the door and she told him not to

go, but Y.W. said, “I’m tired of him.” M.L. testified

that Brown came up the steps with his hands in his

pockets. Y.W. took a swing at Brown and missed.

She then saw Y.W. fall to the ground. M.L. testified

that when Y.W. walked back up the steps, he was

bleeding like a faucet and said, “He stabbed me Bae”

and fell. 1T. at 197. Then she heard Brown say

“Yeah, Nigga” and then Brown calmly walked away.

{¶6} On his way home, Brown hid the knife in the

bushes by his neighbor’s house. Officers responding

to Brown’s 9-1-1 call, saw Brown, and observed that

he fit the physical description of Y.W.’s assailant.

The officers tried to talk with Brown, but Brown put

his head down and ran. The officers eventually

cornered Brown and took him into custody. The

arresting officers took photos of Brown’s neck and

abdomen and did not observe any physical injuries

to his neck. When Brown was initially questioned by

the police he claimed he did not know Y.W. but later

admitted he went to the house to speak with

“Yoshie” and that he stabbed Y.W. claiming it was in

self-defense. 3T. at 627. He also told the detectives,

“No one gets over on Auletti Brown.” At trial Brown

testified that he was being strangled when he

stabbed Y.W.

{¶7} Dr. Renee Robinson, a forensic pathologist at

the Stark County Coroner’s Office, performed the

autopsy on Y.W. Dr. Robinson testified that she

observed defensive wounds on Y.W.’s forearms. She

stated that it would have been difficult for a person

to sustain the injuries unless they were in a

defensive position. She testified that the puncture

wound to Y.W.’s’ heart was the result of a sharp force

to Y.W.’s arm and chest in a single action and

consistent with the knife in evidence. 3T. at 471-476.

She testified that the puncture to Y.W.’s heart

resulted in excessive bleeding and that he lost

approximately 2 liters of blood as the result. Dr.

Robinson testified that Y.W. died because of a sharp

force injury to the chest.

{¶8} At trial, Brown represented himself, called

witnesses and testified on his own behalf.

Throughout the proceedings, Brown maintained

that he acted in self-defense. After the presentation

of evidence, Brown requested and was granted a jury

instruction on self-defense.

{¶9} The jury found Brown guilty of murder and

felonious assault. The court found Brown guilty of

the Repeat Violent Offender Specification. The state

agreed that the felonious assault conviction merged

into the murder conviction and elected for

sentencing on the murder charge.

State v. Brown, 2019-Ohio-2187, 2019 WL 2354950, at *1–2 (Ohio Ct. App.

2019).

Procedural background

Trial court proceedings

In January 2018, a Stark County grand jury indicted Brown on one

count of murder in violation of Ohio Revised Code § 2903.02(B) and one count

of felonious assault in violation of Ohio Revised Code § 2903.11(A)(1) “and/or”

(A)(2). Doc. 41-1, at 10. Both counts carried a repeat-violent-offender

specification. Id. at 10–11.

After pleading not guilty, id. at 12, Brown filed a motion to suppress in

which he argued that he was questioned in violation of Miranda v. Arizona,

384 U.S. 436 (1966) and that his incriminating statements to police were

involuntary, Doc. 41-1, at 13–17. The trial court denied the motion, finding

that “Brown knowingly, voluntarily, and intelligently gave up his Miranda

rights.” Id. at 44. Contrary to Brown’s argument, the court found that Brown

did not “‘unequivocally and unambiguously’ ask for an attorney” during his

questioning. Id. at 45.

Following the trial court’s decision denying Brown’s suppression motion,

Brown waived his right to counsel and the trial court granted counsel’s motion

to withdraw. See id. at 49–55. The trial court then appointed “standby counsel.”

Id. at 53.

In June 2018, a jury found Brown guilty of both charges. Id. at 66–67.

The trial court sentenced Brown on count one to imprisonment for 15 years to

life and to a consecutive term of 10 years’ imprisonment on the repeat-violent

offender specification. Id. at 64. The court determined that Brown’s felonious

assault conviction merged with his murder conviction. Id.

Direct appeal

Brown filed a timely notice of appeal with the Ohio court of appeals. Doc.

41-1, at 75. In his supporting brief, Brown raised two assignments of error:

1. The trial court erred by denying Appellant’s

motion to suppress.

A. Officers violated Appellant’s Miranda

rights by continuing to question Appellant

after he invoked his right to counsel.

B. Officers violated Appellant’s Miranda

rights by not re-advising him of his Miranda

rights prior to resuming questioning.

C. Appellant did not voluntarily waive his

Miranda rights.

2. Appellant’s convictions were against the manifest

weight of the evidence.

Id. at 76–95. The court of appeals affirmed Brown’s conviction in June 2019.

Brown, 2019 WL 2354950.

In January 2020, Brown filed a motion for delayed appeal with the Ohio

Supreme Court. Doc. 41-1, at 199–200. The Ohio Supreme Court denied

Brown’s motion in March 2020. Id. at 205. Brown filed a motion to reconsider,

id. at 206–09, which the court denied in May 2020, id. at 213.

Petition to reopen appeal

In the meantime in August 2019, Brown filed in the court of appeals an

application under Ohio Appellate Rule 26(B) to reopen his appeal based on a

claim of ineffective assistance of appellate counsel.1 Id. at 214–25. Brown

argued that counsel was ineffective for not alleging error based on the trial

court’s failure to instruct the jury on the lesser-included offense of involuntary

manslaughter. Id. at 215–24. The court of appeals denied Brown’s application

in September 2019, holding that “the trial court was correct in denying the

1 Rule 26(B)(1) provides:

A defendant in a criminal case may apply for

reopening of the appeal from the judgment of

conviction and sentence, based on a claim of

ineffective assistance of appellate counsel. An

application for reopening shall be filed in the court

of appeals where the appeal was decided within

ninety days from journalization of the appellate

judgment unless the applicant shows good cause for

filing at a later time.

request for the involuntary manslaughter instruction.” Id. at 273–80. Brown

did not appeal to the Ohio Supreme Court.

Petition for post-conviction relief

In October 2019, Brown filed in the trial court a petition for post-

conviction relief. Doc. 41-1, at 293–97. Acting with the assistance of Attorney

Russell S. Bensing, Brown alleged that a “portion of the interrogation in which

he told the detectives that he was being choked was redacted from the video

that was played in court.” Id. at 297. The petition concluded with the following:

The basic purpose of this motion is to give Mr. Brown

a vehicle by which he can obtain the original video.

Contemporaneously with the filing of this motion, a

subpoena has been issued for the production of that

video. If that video confirms Mr. Brown’s claim, a

supplemental brief will be submitted setting forth

Mr. Brown’s arguments in more detail. If the video

does not confirm Mr. Brown’s claim, this petition

will be dismissed.

Id. at 297.

The State responded that Brown’s petition amounted to “an effort to

conduct discovery in the criminal case, to determine whether his claim has

merit.” Id. at 302. It then asserted that Brown was attempting “to embark on

a fishing expedition for exculpatory evidence” and argued that “[p]etitions for

post-conviction relief are only available to defendants to rectify errors in prior

proceedings and to effectuate justice” but not for “fishing expeditions.” Id. The

State also recounted that Brown represented himself at trial, received

discovery, testified on his own behalf, and admitted that photos taken when he

was arrested did not show that he suffered physical injuries. Id. at 303.

In December 2019, the trial court denied Brown’s petition for the

reasons stated by the State in its opposition. Id. at 305–06.

Brown filed a notice of appeal and notice of delayed appeal in late

February 2020. Id. at 309–12. The court of appeals construed the notice of

delayed appeal as a motion for a delayed appeal and, so construed, denied it

because a delayed appeal is not available in a post-conviction relief appeal. Id.

at 315. It thus dismissed Brown’s appeal. Id. at 316. Brown did not appeal this

denial to the Ohio Supreme Court.

Brown’s 2020 trial court motions

In June 2020, citing Rule 33(A)(6) of the Ohio Rules of Criminal

Procedure and Ohio Revised Code § 2945.79(F), Brown filed a motion for a new

trial.2 Doc. 41-1, at 317–25. Among other matters, Brown alleged that video of

his confession that was played for the jury did not match the transcript of his

statement and that a forensic analysis showed that the video of his questioning

was incomplete and thus “not a true and accurate … reproduction of the

interview.” Id. at 319–20. He also alleged that his “interrogation” continued

“after the ending of the video.” Id. at 322. Among other things, Brown

2 Ohio Criminal Rule 33(F) provides a basis to file a motion for a new trial

“[w]hen new evidence material to the defense is discovered which the

defendant could not with reasonable diligence have discovered and produced

at the trial.” Section 2945.79(F) provides a similar basis for a new trial.

supported his motion with a forensic report authored by Herbert Joe, id. at

349–57, which detailed that there was no discontinuity in the audio or visual

aspects of the video but that the video ended before the end of the interview,

id. at 354. The report thus concluded that the video was not complete. Id.

In June 2020, Brown also filed a “motion to comply,” in which he asked

the trial court to order its clerk to provide Brown with a copy of a subpoena

that Attorney Bensing allegedly issued to the Canton police department when

Bensing filed Brown’s petition for post-conviction relief. Id. at 358.

In mid-October 2020, Brown submitted a filing styled as “(Addendum)

Motion pursuant [to] Criminal Rule 33 and O.R.C. 2945.79 Appellant Auletti

Brown.” Id. at 380–90. In this filing, Brown asserted that forensic analysis had

shown that the video played during his trial differed from the one played

during his suppression hearing. Id. at 361.

The State filed an opposition to Brown’s motion for a new trial, arguing

that Brown had not presented new evidence. Id. at 371–73. As it relates to

Brown’s amended petition, it also argued that the forensic report showed that

the video was not altered, which is not an exculpatory fact. Id. at 373.

According to the State, the forensic analysis stated the “obvious” fact that the

visual portion of the video stopped before the end of the interview but ignored

the fact, evident from the transcript, that the audio portion of the video

continued until the end. Id. at 374–75. It noted that the jurors “had both the

audio and video files available to them.” Id. at 375. And, the State added,

“because the defendant had the audio recording, the video recording, and

transcript, he could have certainly inquired about the discrepancy at the end

of the video during his cross examination of the officers.” Id.

Later in October 2020, Brown submitted another filing styled as

“(Addendum) Motion pursuant [to] Criminal Rule 33 and O.R.C. 2945.79

Appellant Auletti Brown.” Id. at 380–90. This filing contained the same claims

as in Brown’s previous addendum. Id. at 381.

In November 2020, Brown filed a motion to dismiss his then-pending

motion for a new trial, together with a motion for leave to file a delayed motion

for new trial. Id. at 396–403.

In November 2020, the trial court determined that Brown’s motion to

dismiss constituted a motion to withdraw his June motion for a new trial and

his addendums. Id. at 405. And the motion to dismiss rendered moot a motion

to strike that Brown had filed. Id.; see id. at 391–95.

In December 2020, Brown filed a motion for leave to file a delayed

motion for a new trial, together with a motion for a new trial. See Doc. 41-1, at

407–31. In his motion for leave, Brown said that he was “raising a claim based

on newly discovered evidence of Prosecutor Misconduct resulting in a Fraud

upon this Court of Common Pleas.” Id. at 408. In his motion for a new trial,

Brown asserted that detectives continued to question him after he invoked his

right to counsel, referenced the forensic report which showed that the video of

Brown’s questioning was incomplete, asserted that the transcript of his

questioning did not match the video of it, and questioned whether “how much

additional interrogation was not recorded at all.” Id. at 419–26. Brown also

argued that a statutory amendment, enacted after Brown’s trial, which

affected the State’s burden of proof, meant that the State failed to carry its

burden in Brown’s case.3 Id. at 426–27. In support of this motion, Brown

submitted the previously filed forensic report from Herbert Joe, id. at 432–41,

Brown’s type-written notes of his trial and interrogation transcript, id. at 442–

43, portions of his trial transcript, id. at 444–47, a draft transcript from Joe,

id. at 448, an affidavit from Jennifer Walker concerning statements made

during Brown’s trial, id. at 450, and annotated portions of Brown’s trial

transcript, id. at 451–54.

After the State filed a response, id. at 455–65, Brown moved to strike it

as untimely, id. at 471–74. He also filed a request that the trial court take

judicial notice of recent Ohio statutory amendments related to the duty to

retreat when in one’s own home. Id. at 466–68.

In September 2021, Brown submitted in the trial court a filing styled as

“filing of supplemental evidence via modified report.” Id. at 484–87. Attached

3 At the time of Brown’s trial, defendants had the burden by a

preponderance of the evidence to prove self-defense. See State v. Brooks, 208

N.E.3d 751, 757 (Ohio 2022). Effective in March 2019, the Ohio legislature

amended Ohio Revised Code § 2901.05 to provide that when self-defense is

raised in a trial, the prosecution “must prove beyond a reasonable doubt that

the accused person did not use the force in self-defense, defense of another, or

defense of that person's residence, as the case may be.” Id. at 755–56; see Am.

Sub. H.B. No. 228.

to this filing was an affidavit from Joe in which he attested that the video of

Brown’s questioning was incomplete, that Brown was asked by detectives

whether he “want[ed] [his] lawyer now,” and that during the interview, Brown

said the names Yoshawn, Taishawn, and Yoshi, six times. Id. at 492–96

(emphasis added). Brown also attached a portion of letter from Attorney

Bensing to the Cleveland Metropolitan Bar Association in which Bensing

admitted that due his wife’s passing, he had “neglected” Brown’s case. Id. at

499. Bensing also discussed Brown’s prosecutorial misconduct claim and the

fact that Joe’s report “found no evidence of editing.” Id.

The trial court ruled on many of Brown’s motions in September 2021.

Id. at 500–02. The trial court noted that under Ohio Criminal Rule 33(B),

Brown had to file a motion for new trial within 120 days after his verdict was

rendered unless he could show “by clear and convincing proof that [he] was

unavoidably prevented from the discovery of the evidence upon which he must

rely.” Id. at 501 (quoting Ohio Crim. R. 33(B)). The court explained:

Upon review, the Court finds that the basis of the

defendant’s motion relates to his continuing

argument that there were “multiple” versions of the

video statement that he made to detectives

regarding the death of Yoshawn Williams. This

argument was asserted by the defendant at pre-trial

hearings, as well as to the jury at the trial in this

matter. The video of this statement, along with the

audio and transcription version of same, were made

available to the defendant prior to trial and the

defendant was present during the suppression

hearing and trial when the video was played. As

such, the defendant had the opportunity to compare

the statements and have them analyzed within the

timeframe set forth in Crim.R. 33. While the

defendant now attempts to assert that the forensic

analysis that was done on the video and submitted

in conjunction with his motion is “newly discovered”

evidence, the Court finds that the analysis could

have been done prior to trial and within the

timeframe set forth in Crim.R. 33.

For the reasons set forth herein, as well as those set

forth in the State’s response, the defendant’s

Motions for Leave to File a Delayed Motion for New

Trial, filed November 9, 2020, and December 8,

2020, are, hereby, OVERRULED. Additionally, the

defendant’s “Motion to Strike State’s Untimely

Response Brief” is OVERRULED.

Id. at 502.4

In a separate order, the trial court denied Brown’s motion to comply in

which he sought a copy of a subpoena that Bensing allegedly submitted to the

Canton Police Department.” Id. at 503. The court noted that Bensing had not

filed the referenced subpoena but had instead filed a public records request,

“which would not be part of the docket in this matter.” Id. As a result, the court

denied Brown’s motion. Id.

Brown filed a notice of appeal from the denial of his motion for leave to

file a delayed motion for a new trial. Doc. 41-1, at 504. The court of appeals

affirmed in March 2022. Id. at 604–14. The court of appeals noted that because

Brown’s “‘motion was filed well outside the 120-day period, he was required to

obtain leave of court to file his motion for new trial.’” Id. at 611 (quoting State

4 In a footnote responding to a “Judicial Notice” which Brown had filed,

see Doc. 41-1, at 466–68, the trial court stated that the statutory amendment

related to self-defense did not apply retroactively, id. at 500 n.2.

v. Waddy, 68 N.E.3d 381, 388 (Ohio Ct. App. 2016)); see Ohio Crim. R. 33(B).

And to obtain leave, Brown had to “demonstrate by clear and convincing proof

that he … was unavoidably prevented from discerning the evidence within the

120 days.” Id. Under Ohio precedent, a defendant “is ‘unavoidably prevented’

from filing a motion for a new trial if [the defendant] had no knowledge of the

ground supporting the motion and could not have learned of the existence of

that ground within the time prescribed for filing the motion in the exercise of

reasonable diligence.’” Id. (quoting Waddy, 68 N.E.3d at 388). The court of

appeals recited that “‘[c]lear and convincing proof that the defendant was

unavoidably prevented from filing requires more than a mere allegation that a

defendant has been unavoidably prevented from discovering the evidence he

seeks to introduce as support for a new trial.’” Id. (citation omitted). This

requirement “puts the burden on the defendant to prove that he was

unavoidably prevented from discovering the evidence in a timely manner.” Id.

According to the court of appeals, “[t]he ‘unavoidably prevented’

requirement in Crim.R. 33 mirrors the ‘unavoidably prevented’ requirement

in” Ohio Revised Code § 2953.23. Id. at 612. And “[t]he phrase ‘unavoidably

prevented’ means that a defendant was both unaware of the facts and was

unable to learn of them through reasonable diligence.” Id.

The court of appeals held that Brown “failed to support his motion with

any affidavits of documentary evidence” and “did not discover any ‘new

evidence.’” Id. at 612. It explained that:

The recordings and transcripts of the recordings

existed at the time of the trial. Appellant even

asserted these claims during his trial. The trial court

stated that the video, audio, and transcription of

[Brown’s] interview were made available to [Brown]

prior to his June 18, 2018, trial and … [Brown] had

heard and seen the video as early as April 19, 2018,

at the suppression hearing.

Id. The court concluded, as a result, that Brown “was not unavoidably

prevented from discovering whatever evidence he is claiming supports his

arguments as it relates to the analysis of the video.” Id. at 613. It thus

“overruled” Brown’s assignment of error. Id.

In June 2022, Brown filed in the Ohio Supreme Court a “motion for

delayed appeal,” Doc. 41-1, at 621–25, a notice of filing a delayed appeal, id. at

646–47, and a motion for court to take judicial notice, id. at 648–50. The Ohio

Supreme Court granted Brown’s motion to file a delayed appeal in early

August 2022. Id. at 651.

In his memorandum in support of jurisdiction, Brown raised four

propositions of law:

1.When prosecutor misconduct/a Brady violation

has been proven after a jury verdict of guilt, can the

conviction be allowed to stand?

2. When a Courts Miranda/Edwards decision

denying a motion to suppress an accused persons

statement is based on evidence that was the result

of prosecutor misconduct through a Brady violation,

is this a reversible fair trial violation?

3. When an Appellant has filed a motion for a new

trial based on evidence of prosecutor misconduct

related to a Brady violation. is it an abuse of

discretion for a trial court to deny the motion for

leave to file a motion for a new trial to avoid

addressing the trial courts making the

Miranda/Edwards question based on evidence that

has been proven to have signs of tampering or

editing, is not a true and complete copy of the

statement in question.

4. Violation of due process lack of adequate review;

is appellate court’s decision contrary to this court’s

recent decisions made in State v. Bethel, 2022-Ohio-

783.5

Id. at 653. On October 25, 2022, the Ohio Supreme Court declined under Rule

7.08(B)(4) of its rules of practice to accept jurisdiction. Id. at 701. It also denied

Brown’s motion to take judicial notice. Id.

Brown’s 2022 trial court filings

In February 2022, Brown filed in the trial court a motion under Rule

60(B)(5) of Ohio’s rules of civil procedure “to vacate” the trial court’s “judgment

in this matter.” Doc. 41-1, at 702. The trial court quickly denied the motion

because civil rule 60 does not apply in criminal proceedings. Id. at 724. In June

2022, the Ohio court of appeals dismissed as untimely Brown’s subsequent

appeal. Id. at 769; see id. at 725. And in August 2022, the court of appeals

denied a motion Brown filed for leave to file a delayed appeal. Id. at 829; see

id. at 784–89.

5 Unless otherwise indicated, Brown’s propositions of law and issues

presented in this report and recommendation are reproduced as written.

In August 2022, Brown filed a notice of appeal with the Ohio Supreme

Court. Id. at 831–32. In his memorandum in support of jurisdiction, Brown

raised two propositions of law:

1. Did the appellate court abuse their discretion in

refusing to file Appellant’s initial notice of appeal?

2. Did the appellate court abuse their discretion in

refusing to grant Appellant’s Motion to File Delayed

Appeal in light of his making a significant showing

of institutional interference and delay in the

delivery of his initial Notice of Appeal?

Id. at 847. On October 25, 2022, the Ohio Supreme Court declined under Rule

7.08(B)(4) of its rules of practice to accept jurisdiction. Id. at 861.

Meanwhile, in September 2022, Brown filed in the court of appeals a

motion styled as “Rule 60(B)(5) motion for relief from judgment.” Id. at 862–

78. This motion was directed to the court of appeals’ August 2022 decision

denying Brown’s motion for leave to file a delayed appeal. See id. at 862; see

also id. at 926.

The court of appeals denied this motion in November 2022. Id. at 926–

27. In doing so, the court noted that Rule 60 does not apply in appeals. Id. at

926. It thus treated Brown’s motion as a motion to reconsider. Id. at 926. Under

Ohio Appellate Rule 26(A), however, a motion to reconsider must be filed

within 10 days of the order at issue. Id. Because Brown filed his motion outside

the ten-day window, it was untimely. Id. Additionally, the motion simply

repeated Brown’s previous arguments. Id.

Brown filed a notice of appeal with the Ohio Supreme Court in December

2022. Id. at 928. In a memorandum in support of jurisdiction, Brown raised

two propositions of law:

1. Did the appellate court err in finding that Ohio

Civ. R. 60(b) is inapplicable to appeal?

2. Did the appellate court abuse the court’s

discretion in failing to review the affidavits

submitted as evidence in defendant’s motion for

leave to file a delayed appeal?

Id. at 931. On February 28, 2023, the Ohio Supreme Court declined under Rule

7.08(B)(4) of its rules of practice to accept jurisdiction. Id. at 949.

Federal habeas proceedings

Brown filed a petition for writ of habeas corpus on May 26, 2020. Doc. 1,

at 15; see Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that an

imprisoned petitioner’s petition is deemed filed when he places it in his prison’s

mailing system). He raised four grounds for relief:

GROUND ONE: Trial court erred by denying

appellant’s motion to suppress statements made

when and after his Miranda rights were violated, i.e.

continued questioning after invoking right to

counsel, did not re-advise Miranda rights prior to

resuming questioning and that appellant did not

voluntarily waive his Miranda rights.

GROUND TWO: Appellant’s convictions were

against the manifest weight of the evidence.

GROUND THREE: Custodial interrogation of the

accused must cease when the accuse requests

counsel, and where there has been such a request,

police officials may not re-initiate interrogation

without counsel present. Fifth & Fourteenth

Amendment to U.S. Constitution, Miranda v.

Arizona (1966).

GROUND FOUR: Appellant denied due process and

fair trial when prosecution played an altered

interrogation video without the deleted sections

specifically Appellant’s explaining in acted-out

detail that he acted in self-defense. Taped interview

transcripts failed to match the edited video.

Doc. 1, at 5–10.6

Brown soon filed a “motion for stay and abeyance,” so that he could

exhaust his remedies in Ohio’s courts. See Doc. 7, at 1. Respondent Warden did

not oppose Brown’s motion, see Doc. 13, at 1, and the Court granted it in

November 2020.

In March 2023, Brown moved to file an amended habeas petition. Doc.

31. After the Court granted Brown’s motion, he filed an amended petition. See

Doc. 37. In it he raises five grounds for relief:

GROUND ONE: Violation of Fifth, Sixth and

Fourteenth Amendments, Trial Court erred by

denying appellants Motion to Suppress Statements

made when and after Mr. Brown’s Miranda Rights

were violated. When addressing this issue, this court

should be aware from the beginning the

conversation around the Miranda issue was being

quoted inaccurately and the transcript of the

interrogation from the motion of discovery were not

accurate, which led Mr. Brown to hire a Forensic

Expert to analyze the video (refer to report).

GROUND TWO: Mr. Browns convictions were

against the manifest weight of the evidence these

convictions are not supported by sufficient evidence

that Mr. Brown acted outside of the elements of self-

6 Given their length, I have not reproduced Brown’s supporting facts.

defense, showing he acted in a lawful self-defense

which is a fundamental constitutional right under

both the Ohio Constitution and the United States

Constitution. The appellate courts findings are not

subject to deference under the AEDPA because their

review of the evidence resulted in an unreasonable

determination of the facts related to Mr. Browns

claim that he acted in self-defense. Each of the

common law elements required to be proven to

support a claim of acting in self-defense. Each of the

common law elements required to be proven to

support a claim of acting in self-defense were proven

by the states own evidence and witness.

GROUND THREE: Custodial interrogation of an

accused person must cease when the accused person

requests counsel, and where there has been such a

request, police officials may not reinitiate the

interrogation without counsel present. Fifth, Sixth

& 14th Amendment’s to the U.S. Constitution

violated pursuant Miranda v. Ariz., 384 U.S. 436,

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880,

68 L. Ed. 2d 378 (1981), Minnick v. Mississippi, 498

U.S. 146, 147, 111 S. Ct. 486, 112 L. Ed. 2d 489

(1990).

GROUND FOUR: Mr. Brown was denied his rights

to due process and fair trial proceedings when

prosecution played an altered interrogation video

without the deleted sections specifically portions of

Mr. Brown explaining and acting out the details of

how he was forced to act in self-defense. The video-

taped interview/interrogation failed to match the

edited video. This edited video most importantly had

a direct effect on the trial court judge’s decision

regarding the issue of the suppression of this video

and the statements made in the video.

GROUND FIVE: Petitioner Mr. Brown is entitled to

the retroactive application of the repeal and

reenactment of Ohio Revised Code 2901.05 and the

Burden of Proof Beyond a Reasonable Doubt being

placed on the State of Ohio and proof by a

preponderance of the evidence being removed from

the defense, Pursuant the constitutional commands

contained within, Griffith v. KY, 479 U.S. 314, 316,

107 S. Ct. 708, 709, 93 L. Ed. 2d 649, 654, 1987 U.S.

LEXIS 283,, 55 U.S.L.W. 4089 (U.S. January 13,

1987), Teague v. Lame, 489 U.S. 288, Montgomery

v. Louisiana, 577 U.S. 190, 197-198, 136 S. Ct. 718,

727-728, 193 L. Ed. 2d 599, 612, 2016 U.S. LEXIS

862, *12, 84 U.S.L.W. 4063, 25 Fla. L. Weekly Fed.

S 611 (U.S. January 25, 2016). Mr. Brown is entitled

to retrial through the retroactive application of this

new rule of criminal procedure.

Doc. 37, at 8, 13, 17, 20, 27. The Warden filed a return, Doc. 41, and Brown

filed a traverse.

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. 104-132, § 104, 110 Stat. 1214 (AEDPA or the 1996 Act), habeas petitioners

must meet certain procedural requirements to have their claims reviewed in

federal court. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th

Cir. 2006). “Procedural barriers, such as statutes of limitations and rules

concerning procedural default and exhaustion of remedies, operate to limit

access to review on the merits of a constitutional claim.” Daniels v. United

States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes

confused with exhaustion, exhaustion and procedural default are distinct

concepts. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Failure to

exhaust applies when state remedies are “still available at the time of the

federal petition.” Id. (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)).

But when “state court remedies are no longer available to a petitioner because

he or she failed to use them within the required time period, procedural default

and not exhaustion bars federal court review.” Id.

Exhaustion

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A); Robinson v. Horton, 950 F.3d 337, 343 (6th Cir. 2020). To

exhaust his remedies, a state defendant with federal constitutional claims

must “fairly presen[t]” those claims to the state courts before raising them in

a federal habeas corpus action. Robinson, 950 F.3d at 343 (quoting Duncan v.

Henry, 513 U.S. 364, 365 (1995)); see also Fulcher v. Motley, 444 F.3d 791, 798

(6th Cir. 2006). A constitutional claim for relief must be presented to the state’s

highest court to satisfy the fair presentation requirement. See O’Sullivan v.

Boerckel, 526 U.S. 838, 845–48 (1999); Caver v. Straub, 349 F.3d 340, 345 (6th

Cir. 2003). And a habeas petitioner must “present[] both the factual and legal

basis for [the] claims to the state courts.” Hanna v. Ishee, 694 F.3d 596, 606

(6th Cir. 2012). This means that the “‘petitioner must present his claim to the

state courts as a federal constitutional issue—not merely as an issue arising

under state law.’” Williams, 460 F.3d at 806 (quoting Koontz v. Glossa, 731

F.2d 365, 368 (6th Cir. 1984)). “‘[G]eneral allegations of the denial of rights to

a “fair trial” and “due process” do not “fairly present claims” that specific

constitutional rights were violated.’” Hand v. Houk, 871 F.3d 390, 418 (6th Cir.

2017) (quoting Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006)).

Procedural default

Procedural default may occur in two ways. Williams, 460 F.3d at 806.

First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.

In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors

when determining whether a claim is barred on habeas corpus review due to a

petitioner’s failure to comply with a state procedural rule: (1) whether there is

a state procedural rule applicable to the petitioner’s claim and whether the

petitioner failed to comply with that rule; (2) whether the state court enforced

the procedural rule; (3) whether the state procedural rule is an adequate and

independent state ground on which the state can foreclose review of the federal

constitutional claim; and (4) whether the petitioner can demonstrate cause for

failing to follow the rule and actual prejudice by the alleged constitutional

error. 785 F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If,

due to the petitioner’s failure to comply with the procedural rule, the state

court declines to reach the merits of the issue, and the state procedural rule is

an independent and adequate grounds for precluding relief, the claim is

procedurally defaulted.”) (citing Maupin, 785 F.2d at 138).

Second, “a petitioner may procedurally default a claim by failing to raise

a claim in state court and pursue that claim through the state’s ‘ordinary

appellate review procedures.’” Williams, 460 F.3d at 806 (quoting O’Sullivan,

526 U.S. at 848); see Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir. 2015)

(“When a petitioner has failed to fairly present … claims to the state courts

and no state remedy remains, [the] claims are considered to be procedurally

defaulted.”) (citing Gray v. Netherland, 518 U.S. 152, 161–62 (1996)). While

the exhaustion requirement is technically satisfied in this circumstance

because state remedies are no longer available to the petitioner, see Coleman

v. Thompson, 501 U.S. 722, 732 (1991), a petitioner’s failure to have the federal

claims considered in the state courts constitutes a procedural default of those

claims that bars federal court review, Williams, 460 F.3d at 806.

To overcome a procedural bar, a petitioner must show “cause for the

default and actual prejudice as a result of the alleged violation of federal law,”

or show that a “fundamental miscarriage of justice” will result if the

petitioner’s claims are not considered. Coleman, 501 U.S. at 750.

Merits review

If a state’s courts adjudicated the merits of a claim, a habeas petitioner

may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish

one of two predicates. To establish the first predicate, the petitioner “must

identify a ‘clearly established’ principle of ‘Federal law’ that” has been

established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,

231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must

then show that the state court’s adjudication “was contrary to,” or “involved an

unreasonable application of” that “clearly established” precedent. 28 U.S.C. §

2254(d)(1); see Fields, 86 F.4th at 232.

To establish the second predicate, the petitioner must show that the

state’s court’s adjudication “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)(2).

“Under the ‘contrary to’ clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by the

[United States Supreme] Court on a question of law or” based on “a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13

(2000). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal

principle from th[e] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application

of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely

wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419

(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).

“[A] ‘clearly established’ principle of ‘Federal law’” refers to the

“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at

231 (quoting 28 U.S.C. § 2254(d)(1) and Woodall, 572 U.S. at 419). A state court

is not required to cite Supreme Court precedent or reflect an “awareness” of

Supreme Court cases, “so long as neither the reasoning nor the result of the

state-court decision contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8

(2002); see Lopez v. Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme

Court has not addressed the petitioner’s specific claims, a reviewing district

court cannot find that a state court acted contrary to, or unreasonably applied,

Supreme Court precedent or clearly established federal law. Carey v.

Musladin, 549 U.S. 70, 77 (2006); see White, 572 U.S. at 426 (“Section

2254(d)(1) provides a remedy for instances in which a state court unreasonably

applies this Court’s precedent; it does not require state courts to extend that

precedent or license federal courts to treat the failure to do so as error.”).

In determining whether the state court’s decision involved an

unreasonable application of law, the Court uses an objective standard.

Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks

merit precludes federal habeas review so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

1. Brown’s first and third grounds for relief are procedurally defaulted

In his first ground for relief, Brown alleges that the trial court erred, in

violation of his rights under the Fifth, Sixth and Fourteenth Amendments,

when it denied his motion to suppress statements that Brown argues were

made in violation of his rights under Miranda v. Arizona. Doc. 37, at 8. In his

third ground, Brown similarly alleges that police officials violated of his rights

under the Fifth, Sixth and Fourteenth Amendments when, after he invoked

his right to counsel, they questioned him without counsel being present. Doc.

37, at 17.

“‘A petitioner procedurally defaults claims for habeas relief if the

petitioner has not presented those claims to the state courts in accordance with

the state’s procedural rules.’” Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.

2004) (quoting Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000)). The denial

by the Ohio Supreme Court of a “motion for leave to file a delayed appeal

constitutes a procedural ruling sufficient to bar federal court review of [a

petitioner’s] habeas corpus petition.” Id.

Brown raised the basis for the issues presented in his first and third

grounds in his appeal to the Ohio court of appeals. See Doc. 41-1, at 89–93.

Following that court’s rejection of Brown’s arguments, however, Brown failed

to file a timely appeal with the Ohio Supreme Court. Instead, Brown filed a

motion for delayed appeal with the Ohio Supreme Court. Doc. 41-1, at 199–

200. And that court denied Brown’s motion, id. at 205, and his motion to

reconsider, id. at 213.

In light of Bonilla, Brown has procedurally defaulted his first and third

grounds for relief and review of those grounds “is barred unless [he] can

demonstrate cause for the default and actual prejudice ... or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of

justice.” Bonilla, 370 F.3d at 497. To show cause, Brown must show that “‘some

objective factor external to the defense’ prevented [his] compliance with a state

procedural rule.” Id. at 498.

As an initial matter, Brown argues that Bonilla does not apply because

the Ohio Supreme Court granted his motion to file a delayed appeal. Doc. 44,

at 3. Brown is mistaken.

Although the Ohio Supreme Court did grant a motion Brown filed to file

a delayed appeal, Doc. 41-1, at 651, that motion was filed in the context of

Brown’s appeal of the denial of his motion for a new trial, id. at 621–25. In the

context of Brown’s direct appeal and the review of the issues presented in

Brown’s first and third grounds for relief, the Ohio Supreme Court denied his

motion. Id. at 205. So Bonilla applies.

Next, Brown says that he can point to an objective factor external to him

that prevented him from complying with a state procedural rule. Doc. 44, at 4.

Brown claims that “it was interference in the institutional mail room and

confusion within the Clerk of Court’s Office that resulted in the notices’ of

appeal being filed untimely.” Id. But to support this assertion, Brown points to

his motion to file a delayed appeal and supporting affidavit submitted in the

context of the review of the denial of motion for a new trial. Id. (citing Doc. 41-

1, at 621–28).7 And that motion and supporting affidavit discussed events in

2022, see Doc. 41-1, at 621–28, after the events in the period between June

2019, when the court of appeals decided Brown’s direct appeal, and January

2020, when Brown filed a motion to file a delayed appeal in his direct appeal.

So Brown has not shown cause as to the procedural default of his first and third

grounds for relief.

Because Brown has failed to show cause, there is no need to consider

prejudice. See Bonilla, 370 F.3d at 497.

Brown could also attempt to avoid his default by showing that a

“‘fundamental miscarriage of justice’” would result “if the court declines to

consider” his first and third grounds. Carr v. Warden, Lebanon Corr. Inst., 401

F. App’x 34, 37 (6th Cir. 2010). But he doesn’t claim that such a result would

occur or offer a claim of actual innocence sufficient to a establish a fundamental

miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 324 (1995); Murray v.

Carrier, 477 U.S. 478, 496 (1986).

Brown has procedurally defaulted his first and third grounds for relief.

7 Brown cites ECF PageID 1027–34. See Doc. 44, at 4. ECF pages 1027 to

1034 are found at pages 621 to 628 of the state court record. See Doc. 41-1.

2. Brown’s second ground is non-cognizable in part and procedurally

defaulted in part.

In his second ground for relief, Brown argues that his convictions were

against the manifest weight of the evidence and were not supported by

sufficient evidence that he did not act in self-defense. Doc. 37, at 13. He also

argues that the Ohio court of appeals “findings are not subject to deference

under the AEDPA because their review of the evidence resulted in an

unreasonable determination of the facts related to [his] claim that he acted in

self-defense.” Id.

In his appeal to the Ohio court of appeals, Brown argued that his

convictions were against the manifest weight of the evidence. Doc. 41-1, at 93–

95. To the extent that Brown seeks to raise a manifest-weight claim now, and

assuming the issue is not subject to procedural default, manifest-weight claims

are not cognizable in a habeas petition filed under 28 U.S.C. § 2254. See Nash

v. Eberlin, 437 F.3d 519, 522 (6th Cir. 2006) (holding that a “manifest-weight-

of-the-evidence claim did not raise an issue of federal law”). So the Court

cannot review this aspect of Brown’s second ground.

Courts, however, typically construe a pro se petition raising a manifest-

weight issue as asserting a sufficiency-of-the-evidence claim. See id.; see also

Hoffman v. Lazaroff, No. 18-3439, 2018 WL 5849894, at *3 (6th Cir. Sept. 17,

2018) (order); Thompson v. Harris, No. 18-cv-2103, 2020 WL 5810020, at *8–9

(N.D. Ohio Sept. 30, 2020) (citing cases). And habeas courts will also typically

find that a “state court’s decision on the manifest weight of the evidence” as

having “subsumed a decision on the sufficiency of the evidence.” Nash v.

Eberlin, 258 F. App’x 761, 765 n.4 (6th Cir. 2007). So the portion of Brown’s

second ground that alleges a sufficiency-of-the-evidence claim is potentially

cognizable. Cf. Brown v. Konteh, 567 F.3d 191, 204–05 (6th Cir. 2009).

(explaining how sufficiency-of-the-evidence claims are reviewed in habeas

proceedings).

The problem, however, is that as with Brown’s first and third grounds,

Brown failed to perfect an appeal from the court of appeals’ decision rejecting

his manifest-weight argument. And just as with Brown’s first and third

grounds, the denial by the Ohio Supreme Court of a “motion for leave to file a

delayed appeal constitutes a procedural ruling sufficient to bar federal court

review of” Brown’s sufficiency challenge. Bonilla, 370 F.3d at 497. Further, just

as with Brown’s first and third grounds, Brown cannot avoid this result

because he has not shown cause sufficient to avoid his default and has not

asserted that a fundamental miscarriage of justice would result if the court

declines to consider his second ground for relief.

The Court should reject Brown’s second ground for relief.

3. Brown’s fourth ground is procedurally defaulted

In his fourth ground for relief, Brown alleges that State “denied his

rights to due process and fair trial proceedings when [the] prosecution played”

before the jury “an altered interrogation video without” allegedly “deleted

sections,” which contained his “expla[nation] and acting out the details of how

he was forced to act in self-defense.” Doc. 37, at 20. He also alleges

discrepancies between “[t]he video-taped interview/interrogation” and “the

edited video.” Id.

Brown raised this issue in a motion for a new trial filed under Ohio

Criminal Rule 33 and Ohio Revised Code § 2945.79. See Doc. 41-1, at 412–31;

see also id. at 484–99 (“filing of supplemental evidence via modified report”).8

Brown filed this motion in conjunction with a threshold motion for leave to file

a delayed motion for a new trial. See id. at 407–11. The trial court did not rule

on Brown’s motion for a new trial because it denied Brown’s motion for leave

to file delayed motion for a new trial. And the trial court denied Brown’s motion

for leave because it was filed more than 120 days after the verdict was issued

and because Brown had not shown “by clear and convincing proof that [he] was

unavoidably prevented from the discovery of the evidence upon which he must

rely.” Id. at 501–02 (quoting Ohio Crim. R. 33(B)). In particular, the trial court

noted, the video of Brown’s questioning, “along with the audio and

8 Ohio Revised Code § 2945.79(F) permits the filing of a motion for a new

trial “[w]hen new evidence is discovered material to the defendant, which he

could not with reasonable diligence have discovered and produced at the trial.”

Rule 33(A)(6) allows a defendant to file a motion for a new trial “[w]hen new

evidence material to the defense is discovered which the defendant could not

with reasonable diligence have discovered and produced at the trial.” Ohio

Crim. R. 33(A)(6). A motion for new trial based on “newly discovered evidence

[must] be filed within one hundred twenty days after the day upon which the

verdict was rendered, or the decision of the court where trial by jury has been

waived.” Ohio Crim. R. 33(B). A defendant may be excused from the 120-day

time limit on showing “by clear and convincing proof that the defendant was

unavoidably prevented from the discovery of the evidence upon which he must

rely.” Id.

transcription of same[] were made available to [Brown] [before] trial and [he]

was present during the suppression hearing and trial when the video was

played.” Id. at 501–02. And although Brown offered a forensic analysis of the

video, the analysis could have been done before “trial and within the [120-day]

timeframe … in Crim.R. 33.” Id. at 502.

The court of appeals affirmed, noting that because Brown’s motion for a

new trial was untimely—it was filed outside the 120-period for filing a motion

under Criminal Rule 33—“he was required to obtain leave of court to file his

motion.’”9 Id. at 611 (quoting State v. Waddy, 68 N.E.3d 381, 388 (Ohio Ct.

App. 2016)); see Ohio Crim. R. 33(B). But to do that, Brown had to “demonstrate

by clear and convincing proof that he … was unavoidably prevented from

discerning the evidence within the 120 days.” Doc. 41-1, at 611. According to

the court of appeals, “[a] party is ‘unavoidably prevented’ from filing a motion

for a new trial if they had no knowledge of the ground supporting the motion

and could not have learned of the existence of that ground within the time

prescribed for filing the motion in the exercise of reasonable diligence.” Id.

The court of appeals stated that “[t]he phrase ‘unavoidably prevented’

means that a defendant was both unaware of the facts and was unable to learn

9 The Ohio Supreme Court declined to review Brown’s appeal of the denial

of his motion for a new trial. So the court of appeals’ decision provides the basis

for this Court’s review. See Guilmette v. Howes, 624 F.3d 286, 291–92 (6th Cir.

2010).

of them through reasonable diligence.”10 Id. at 612. The court explained that

“the central inquiry” in adjudicating Brown’s motion was “whether he was

unaware of the facts disclosed by the evidence and whether he was unavoidably

prevented from obtaining that information through reasonable diligence.” Id.

Noting that Brown claimed that a forensic analysis showed that the

video of his questioning by police “was ‘not in fact true, complete[,] and correct,”

and that Brown seemed “to claim that multiple versions of the recordings and

transcripts exist[ed],” the court found that Brown failed to provide “any

affidavits o[r] documentary evidence” to support his burden. Id. Additionally,

Brown “did not discover any ‘new evidence’” because the “recordings and

transcripts of the recordings existed at the time of the trial.” Id. In this regard,

the court of appeals noted that the trial court had explained that “the video,

audio, and transcription of [Brown’s] interview were made available to [Brown]

prior to his June 18, 2018, trial and … [Brown] had heard and seen the video

as early as April 19, 2018, at the suppression hearing.” Id. Based on this

discussion, the court concluded that Brown “was not unavoidably prevented

from discovering whatever evidence he is claiming supports his arguments as

it relates to the analysis of the video.” Id. at 613.

Although Brown seeks to challenge this determination, he faces an

initial hurdle in that it is apparent that the claim is subject to procedural

10 The court of appeals explained that “[t]he ‘unavoidably prevented’

requirement in Crim.R. 33 mirrors the ‘unavoidably prevented’ requirement

in” Ohio Revised Code § 2953.23. Doc. 41-1. at 612.

default under Maupin. First, in Criminal Rule 33, Ohio has a rule governing

the filing of a motion for a new trial. See Maupin, 785 F.2d at 138 (“First, the

court must determine that there is a state procedural rule that is applicable to

the petitioner’s claim and that the petitioner failed to comply with the rule.”).

And motions under that rule are subject to a 120-day time limit unless the

movant can show by clear and convincing proof that the defendant was

unavoidably prevented from the discovery of the evidence during the 120-day

window.

Second, there is no dispute that Brown’s motion was filed outside the

120-day window and that Ohio’s courts enforced the rule and found that Brown

failed to provide clear and convincing proof that he was unavoidably prevented

from timely discovering his evidence.11 See Maupin, 785 F.2d at 138 (“Second,

the court must decide whether the state courts actually enforced the state

procedural sanction.”). What’s more, Brown doesn’t challenge the

determination that—because he was given access to the video and the

transcripts before trial and was present during his suppression hearing and

trial—he could have discovered his evidence sooner. Instead he merely says

11 Brown mistakenly claims that the court appeals applied a since-rejected

rule that a motion for a new trial must be filed within a reasonable time. Doc.

44, at 20–24; see State v. Bethel, 192 N.E.3d 470, 483 (Ohio), reconsideration

denied, 187 N.E.3d 564 (Ohio 2022), cert. denied, 143 S. Ct. 789 (2023). But the

court of appeals did not deny Brown’s motion as untimely for failing to comply

with the judicially created reasonableness requirement. Instead, it found that

Brown failed to comply with the statutory 120-day time limit and then failed

to show that he fell within the terms of the statutory exception to the time

limit.

that he couldn’t obtain Joe’s forensic analysis until he “convince[d] a family

friend to pay” for the analysis. Doc. 44, at 22. But that assertion misses the

point of the court of appeals’ determination.

Third, Criminal Rule 33(B) is an adequate and independent state

ground on which the State can foreclose review of Brown’s constitutional claim.

See Maupin, 785 F.2d at 138. In this regard, to constitute an adequate and

independent state bar, a state procedural rule must be “firmly established and

regularly followed.” Parker v. Bagley, 543 F.3d 859, 861 (6th Cir. 2008). The

rule the court of appeals applied is both firmly established, see State v.

Schiebel, 564 N.E.2d 54, 74–76 (Ohio 1990), and regularly followed, see Nunez

v. Bowerman, No. 19-3582, 2019 WL 8165938, at *3 (6th Cir. Nov. 7, 2019)

(order) (citing cases).12 It is thus an adequate and independent ground on

which to foreclose review. See Stojetz v. Ishee, 892 F.3d 175, 205 (6th Cir. 2018);

see also Davis v. Bradshaw, 2016 WL 8257676, at *39–40 (N.D. Ohio June 16,

2016) (collecting cases), report and recommendation adopted, 2017 WL 626138

12 As referenced above in note 11, some Ohio courts in the past imposed an

extra-statutory reasonableness time limit on a motion for leave to file a motion

for a new trial. See McNeill v. Bagley, 10 F.4th 588, 597 (6th Cir. 2021). The

Sixth Circuit strongly suggested that a reasonableness time limit for filing a

motion for a new trial based on newly discovered evidence is not a “firmly and

clearly established rule.” Id. As noted above, the Ohio Supreme Court has since

held that Criminal Rule 33(B) does not impose a reasonableness time limit.

Bethel, 192 N.E.3d at 483. The court of appeals in Brown’s case, however, did

not deny Brown’s motion as untimely for failing to comply with the judicially

created reasonableness requirement. Instead, it found that Brown failed to

comply with the statutory 120-day time limit and then failed to show that he

fell within the terms of the statutory exception to the time limit.

(N.D. Ohio Feb. 15, 2017); cf. Matthews v. Ishee, 486 F.3d 883, 889–90 (6th Cir.

2007) (assuming without deciding that an untimely-filed motion under Ohio

Criminal Rule 33 would constitute a procedural default unless the petitioner

could show cause for the untimeliness and prejudice from failure to reach the

constitutional claim).

Finally, Brown hasn’t shown cause and prejudice. Maupin, 785 F.2d at

138. As for cause, Brown seemingly asserts that his trial counsel during the

suppression hearing—Brown waived his right to counsel after the suppression

hearing—his appellate counsel, and his post-conviction counsel were all

ineffective. See Doc. 44, at 16–18. But a petitioner must exhaust his ineffective-

assistance-of-counsel claim in state court before relying on it to show cause in

his habeas case. Williams v. Lazaroff, 648 F. App’x 548, 553 (6th Cir. 2016).

And while Brown did raise ineffective assistance of appellate counsel in an

application to reopen his appeal, see Doc. 41-1, at 215–24, that application was

based on a different claim of ineffectiveness. And, in any event, Brown did not

appeal to the Ohio Supreme Court the denial of his application to reopen his

appeal. So Brown can’t show cause.

Given that Brown hasn’t shown cause, there is no need to consider

prejudice. See Bonilla, 370 F.3d at 497. And as is the case with Brown’s

previous grounds, Brown has not shown that a “‘fundamental miscarriage of

justice’” would result “if the court declines to consider” his fourth ground. So

Brown’s fourth ground is procedurally defaulted.

4. Brown’s fifth ground is defaulted and not cognizable

As previously noted, at the time of Brown’s trial, Ohio defendants had

the burden to prove self-defense by a preponderance of the evidence. See Ohio

Revised Code § 2901.05 (2017); Brooks, 208 N.E.3d at 757. Effective in March

2019, however, Ohio amened section 2901.05 and placed the burden on the

State to “prove beyond a reasonable doubt that the accused person did not use

the force in self-defense, defense of another, or defense of that person’s

residence, as the case may be.” See Am. Sub. H.B. No. 228 (effective Mar. 28,

2019). In his fifth ground for relief, Brown argues that he is entitled to

retroactive application of the amended version of Section 2901.05. Doc. 37, at

27.

Brown raised this issue in his motion for new trial, Doc. 41-1, at 426–

27, which he filed in conjunction with a motion for leave to file delayed motion

for new trial, see id. at 407–11. The trial court, however, “overruled” Brown’s

motion for leave to file a delayed motion for a new trial and thus did not discuss

the merits of Brown’s motion for a new trial.13 Id. at 500–02. Brown then

attempted to raise the issue in his appeal to the court of appeals. See id. at

520–23. The court of appeals held that the trial court did not abuse its

discretion in denying Brown’s motion for leave and thus did not discuss the

motion for a new trial or Brown’s retroactivity argument. Id. at 604–13. Brown

13 In a footnote responding to a separate “Judicial Notice” that Brown filed,

see Doc. 41-1, at 466–68, the trial court explained that the amendment to the

self-defense statute did not apply retroactively, id. at 500 n.2.

then appealed to the Ohio Supreme Court but did not present his retroactivity

issue in his appeal the Ohio Supreme Court. See Doc. 41-1, at 652–68.

Given the above, Brown’s fifth ground defaulted for multiple reasons.14

First, although Brown attempted to raise this issue in a motion for a new trial,

that motion was not considered by the trial court because it rejected Brown’s

threshold motion to file a delayed motion for a new trial. And as noted as to

ground four, the trial court and the court of appeals enforced against Brown

an Ohio procedural rule that was an adequate and independent state ground

on which the State could foreclose review of Brown’s constitutional claim.

Further, as noted as to Brown’s previous grounds, he can’t show cause for his

default or that a “‘fundamental miscarriage of justice’” would result if his

ground were not reviewed.

Second, even putting the first default aside, Brown did not raise this

issue before the Ohio Supreme Court. By failing to present this issue to the

Ohio Supreme Court, Brown failed the fair presentment requirement. See

O’Sullivan, 526 U.S. at 845–48; Caver, 349 F.3d at 345. And Brown offers no

basis to conclude that there is a mechanism for him to raise his retroactivity

issue now in Ohio’s courts, years after those courts ruled on his direct appeal

14 The Warden argues that Brown’s fifth ground is untimely under 28

U.S.C. § 2244(d)(1). Doc. 41, at 13–20. In the interest of judicial economy, this

Court need not reach that issue. Cf. Smith v. State of Ohio Dept. of

Rehabilitation, 463 F. 3d 426, 429 n.2 (6th Cir. 2006) (quoting Trussell v.

Bowersox, 447 F. 3d 588, 590 (8th Cir. 2006)); Ahart v. Bradshaw, 122 F. App’x

188, 192 (6th Cir. 2005).

and rejected his motion to file a delayed appeal, and after this Court stayed his

habeas petition so that he could fully exhaust in Ohio’s courts the issues he

wished to present in this Court. Indeed, assuming that Brown could not have

raised his retroactivity issue on direct review,15 he is well past the time during

which he could file a petition for postconviction relief. See Ohio Rev. Code §

2953.21(A)(2)(a).

Finally and in any event, Brown’s retroactivity issue is not cognizable.

The regime under which Brown was convicted, in which he had the burden to

prove self-defense, was constitutional and Brown does not claim otherwise. See

Martin v. Ohio, 480 U.S. 228, 233–34 (1987); White v. Arn, 788 F.2d 338, 345

15 The Warden faults Brown for not raising his retroactivity issue on direct

appeal and argues that Ohio’s res judicata rule would apply to bar

consideration of Brown’s retroactivity issue now. See Doc. 41, at 35–36. The

Warden might be correct.

The trial court entered Brown’s judgment on July 2, 2018. Doc. 41-1, at

70–74. After three extensions of time, see id. at 959, Brown filed his supporting

brief on January 7, 2019, id. at 76. The State filed its brief on March 21, 2019,

id. at 136, and House Bill 228 took effect one week later, on March 28, 2019.

See Brooks, 208 N.E.3d at 755. Given the timing, Brown could have raised his

retroactivity issue in a reply brief. See Ohio App. R. 16(C) (permitting an

appellant to file a reply brief). And given Ohio’s res judicata rule, if Brown

could have raised the issue on direct review, he cannot raise it now before

Ohio’s courts. See Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000) (“Ohio

has a rule that claims must be raised on direct appeal if possible; otherwise,

res judicata bars their litigation in subsequent state proceedings.”); see State

v. Szefcyk, 671 N.E.2d 233, 235 (Ohio 1996) (reaffirming the rule from State v.

Perry, 226 N.E.2d 104 (1967)). Assuming, therefore, that Brown could have

raised this issue on direct review, he has procedurally defaulted it. See

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

(6th Cir. 1986). And Brown cites nothing that would require Ohio to apply the

amended version of Section 2901.05 to him after he was convicted.16

So the question Brown presents is a matter of state law, which is a

subject outside the scope of this Court’s habeas review. See Estelle v. McGuire,

502 U.S. 62, 67 (1991) (“We have stated many times that ‘federal habeas corpus

relief does not lie for errors of state law.’”) (quoting Lewis v. Jeffers, 497 U.S.

764, 780 (1990)); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam).

Ohio’s Supreme Court has explained that in Ohio, a “statute is presumed to be

prospective in its operation unless expressly made retrospective.” Brooks, 208

N.E.3d 751 at 754 (quoting Ohio Rev. Code § 1.48). And Ohio’s courts have held

that the amendment to Section 2901.05 does not apply retroactively. State v.

Fisher, 2020-Ohio-670, 2020 WL 948524, at 4 n.2 (Ohio Ct. App. 2020); State

v. Ward, 2020-Ohio-465, 2020 WL 703560, at *3 (Ohio Ct. App. 2020); State v.

Moore, 2020-Ohio-342, 2020 WL 549351, at *1 (Ohio Ct. App. 2020); State v.

Whitman, 2019-Ohio-4140, 2019 WL 4942414, at *2 (Ohio Ct. App. Oct. 7,

2019). This Court is not the appropriate forum to question these decisions.

Brown’s fifth ground for relief is defaulted and not cognizable.

16 Brown cites a number of United States Supreme Court decisions, which

deal with whether that Court’s decisions announcing new rules of criminal

procedure should be applied retroactively. See Doc. 37, at 28 (citing

Montgomery v. Louisiana, 577 U.S. 190 (2016), Teague v. Lane, 489 U.S. 288

(1989), and Griffith v. Kentucky, 479 U.S. 314 (1987)); see also Doc. 44, at 29.

None of these cases has anything to do with whether a state statute amending

the burden of proof in a criminal case should be applied retroactively to

convicted and sentenced defendants.

Conclusion

For the reasons set forth above, I recommend that Brown’s Petition be

dismissed.

Dated: September 20, 2024

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).