Mills v. Wallace

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHAD MILLS CASE NO. 3:23-CV-2284

Petitioner, DISTRICT JUDGE

BENITA Y. PEARSON

vs.

MAGISTRATE JUDGE

WARDEN THOMAS WALLACE, JAMES E. GRIMES JR.

Respondent.

REPORT AND

RECOMMENDATION

Shad Mills filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas

Corpus. Doc. 1. Mills is currently in custody at the North Central Correctional

Complex serving a sentence of imprisonment for 21 to 26 and 1/2 years imposed

by the Erie County Court of Common Pleas in State v. Mills, 2021-CR-086. 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 Mills’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,

2 525 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 Eighth Appellate District summarized

the facts underlying Mills’s conviction as follows:

{¶2} Shad Mills was indicted on charges of

aggravated burglary, a violation of R.C.

2911.11(A)(1) and (B), a first-degree felony (Count

1), felonious assault, a violation of R.C.

2903.11(A)(1) and (D)(1)(a), a second-degree felony

(Count 2), and a repeat violent offender specification

on Count 1 under R.C. 2941.149(A). The matter

proceeded to a jury trial, where the following

evidence was presented.

{¶3} Shad Mills and A.C. have known each other for

over 30 years and have been in an on-again-off-again

romantic relationship. On November 12, 2020, Mills

and his friend, Tim, were building a patio in A.C.’s

backyard. Tim left, but A.C. invited Mills to stay to

watch football and eat pizza. At some point, Mills

received a call from Tim. Mills told A.C. that Tim’s

car had broken down and asked if he could use A.C.’s

vehicle to go get him. A.C. agreed.

{¶4} At least two hours passed and Mills did not

return with A.C.’s vehicle and did not answer her

phone calls or text messages; A.C. became agitated.

When her teenaged daughter returned home from

work, A.C. asked her to take her to Tim’s house.

Mills was there. He ran through the living room and

out the door, and A.C. followed. Mills looked like he

was on drugs. A.C. told him that she was there to get

her vehicle and she told him to leave her alone. He

gave her the car keys.

{¶5} Around midnight on November 13, 2020, Mills

and A.C. exchanged text messages. A.C. told Mills

that she did not love him anymore, did not want to

be with him, and to leave her alone. Mills denied

that he had done anything wrong. Nevertheless,

A.C. told him that she wanted him “to get everything

you have here and leave me alone.” But she also said:

“Don’t knock on my door[.] I’m going to bed[.]” A.C.

explained that what she meant was that she did not

want Mills to come to her home. Mills texted A.C.

that he still planned to come by her house with Tim

at around 11:00 a.m. to finish up the work he was

doing.

{¶6} A.C. fell asleep on her couch after texting with

Mills. Later that morning, around 8:00 a.m., A.C.

awoke to Mills standing over her. He grabbed her by

the hair and ripped her off the couch. Mills flung her

to the ground and repeatedly kicked her in the head

with steel-toed boots that she had bought for him,

and he punched her in the mouth several times.

Mills told A.C.: “You’re never going to leave me,

bitch,” “this is the last day you’re gonna live,” and

“you’ll never see your daughter again.” A.C. faked an

asthma attack, but Mills told her that he would not

call anyone to help her.

{¶7} Mills took A.C. into the bathroom and put

Vaseline on the cut on her head. He then let A.C. get

some water and sit on the couch. Mills began

scrolling through his cellphone; because he was

distracted, A.C. grabbed her phone and called 9-1-1,

but did not say anything to the dispatcher. Mills

discovered that she called 9-1-1, took A.C.’s phone

and threw it, then ran out the door. After he left,

A.C. redialed 9-1-1. She also called her daughter,

who was at school, and asked her to take her to the

hospital.

{¶8} Police and emergency medical services arrived

at A.C.’s home. A.C. met them outside and did not

allow them in her home, allegedly because she did

not want to put her dogs away. She showed them the

bedroom window she believed Mills must have used

to enter the house. There was a beer on some chairs

that were stacked in front of the window. A.C.

declined to be transported to the hospital by EMS;

she told first responders that her daughter was on

her way to take her.

{¶9} At the hospital, A.C.’s scalp wound was stapled,

and she received four stitches in her mouth, where

her tooth had penetrated her lip; she was evaluated

for a concussion. She experienced dizziness,

headaches, and pain from her injuries. Her elbow

also hurt. Photographs depict the laceration to her

scalp, the wound to her lip, and the bruising to her

arms, neck, and face. A.C. texted photos of her

injuries to Mills.

{¶10} A.C. testified that Mills did not live with her.

She insisted that she always locks her doors and

Mills does not have keys to her house. She believed

that Mills entered the home through the bedroom

window because he and Tim were using that window

to run an extension cord into the house, and she

neglected to lock it.

{¶11} The jury found Mills guilty of aggravated

burglary and the lesser-included offense of assault,

a violation of R.C. 2903.13(A), a first-degree

misdemeanor. Following a separate hearing, Mills

was determined to be a repeat violent offender. The

trial court sentenced Mills to a minimum prison

term of 11 years and a maximum prison term of 16

years and 6 months on Count 1, and a definite jail

term of 180 days on Count 2, to be served

concurrently to each other, and an additional prison

term of ten years on the repeat violent offender

specification, to be served before and consecutive to

the sentences imposed on Counts 1 and 2. The

conviction and sentence were memorialized in a

judgment journalized on May 13, 2022.

State v. Mills, 2023-Ohio-1094, 2023 WL 2728798 (Ohio App. 6 Dist. 2023).

Procedural background

Direct appeal

On June 1, 2022, Mills filed a timely notice of appeal with the Sixth

District Court of Appeals. Doc 8-1, at 42. In his revised supporting brief, which

he filed six months later, Mills raised two assignments of error:

1. The jury’s verdict was against the manifest

weight of the evidence, the sufficiency of the

evidence, and the court erred in denying the

defendant’s criminal Rule 29 motion for acquittal.

2. The trial court erred and abused its discretion

by admitting evidence and giving a "consciousness of

guilt” jury instruction concerning appellants’

statement of suicidal ideations and apologies.

Id. at 54, 56. The court of appeals affirmed Mills’s conviction on March 31,

2023. See State v. Mills, 2023-Ohio-1094, 2023 WL 2728798 (Ohio Ct. App.

2023).

On May 12, 2023, Mills filed a timely notice of appeal with the Ohio

Supreme Court. Doc. 8-1, at 112. In his memorandum in support of jurisdiction,

Mills asserted a single proposition of law:

“Ineffective Assistance of Counsel.” Doc. 8-1, at 115. On July 5, 2023, the court

declined under Rule 7.08(B)(4) of its rules of practice to accept jurisdiction of

the appeal. Doc 8-1, at 150.

Federal habeas corpus petition

On October 20, 2023,1 Mills filed a federal habeas corpus petition under

28 U.S.C. § 2254. Doc. 1, at 15. His petition included the following three

grounds for relief:

1. The jury’s verdict was against the manifest

weight of the evidence, the sufficiency of the

evidence, and the court erred in denying the

defendant’s criminal Rule 29 motion for acquittal!

2. The trial court erred and abused its discretion

by admitting evidence and giving a "consciousness of

guilt” jury instruction concerning appellants’

statement of suicidal ideations and apologies.

3. Ineffective Assistance of Counsel

Doc. 1, at 5–8.2

The Warden filed a return, Doc. 8, Mills filed a traverse, Doc. 9, the

Warden filed a sur-reply, Doc. 10, and Mills filed a response to the Warden’s

sur-reply, Doc. 11.3

1 A petition is deemed filed when a petitioner places it in the prison

mailing system. Houston v. Lack, 487 U.S. 266, 270 (1988).

2 For purposes of brevity, the Court has not included the statements of

supporting facts associated with each of the Grounds listed in Mills’s Petition.

3 Mills did not seek or obtain leave of court to file a response to the

Warden’s sur-reply. The Court’s initial order does not contemplate the filing of

such a document, nor do the federal Habeas Rules. The Court, thus, has not

considered this document.

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

Before proceeding to the enumerated Grounds, the Court notes that

Mills frames the discussion of his Grounds as “Arguments in Support of

Petitioner’s Claims of Actual Innocence.” See Doc. 9, at 11. This introductory

section header tends to indicate that all of the arguments in Mills’s Traverse

are made in an effort to show his actual innocence. He does not, however,

present any specific Ground in his Petition that advocates that he is actually

innocent. And, even if he had, stand-alone actual innocence claims are not

cognizable for federal habeas purposes. See Cress v. Palmer, 484 F.3d 844, 854

(6th Cir. 2007). But, to the extent that Mills’s actual-innocence arguments are

made in an effort to avoid procedural default, the Court addresses his

arguments in the following analysis where appropriate.

Additionally, Mills’s Petition makes two assertions that could be

construed as arguments to excuse his procedural default. But Mills neither

connects these assertions to any specific Ground nor does he expand on them

with any legal support in his Traverse. First, Mills claims that he had difficulty

filing because he “did not know how to.” Doc. 1, at 5. Second, Mills asserts that

he failed to present all his claims to the Ohio Supreme Court “because of

breakdown in communication between both trial and appellate counsels.” Doc

1, at 12. Neither argument provides sufficient cause to excuse his procedural

default. That Mills claims he had difficulty understanding the filing process or

“did not know how to” file does not provide cause. See Bonilla v. Hurley, 370

F.3d 494, 498 (6th Cir. 2004) (ignorance of the law, and pro se status are

insufficient to establish cause for procedural default). And, as discussed below,

Mills has not properly raised any ineffective assistance of counsel claims

arising out of an alleged “breakdown in communication” between he and his

appellate counsel. So claims of ineffective assistance cannot serve to excuse to

his default. See Edwards v. Carpenter, 529 U.S. 446, 451–53 (2000) (holding

that an ineffective assistance of appellate counsel claim asserted as cause to

excuse another defaulted claim can itself be procedurally defaulted).

1. Ground One is procedurally defaulted and otherwise meritless.

Mills’s first Ground asserts that his conviction is against the manifest

weight of the evidence, the evidence was insufficient to support his conviction,

and his motion for acquittal should have been granted. Doc. 1, at 5. For all of

the following reasons, Mills’s Ground One claim should be dismissed.

A habeas petitioner must fairly present his constitutional claims not

only to the state trial and appellate court, but also to the state’s highest court

to avoid procedural default. Caver, 349 F.3d. at 346. Under Ohio’s res judicata

doctrine a defendant is precluded from raising a claim in post-conviction

proceedings that could have been, but was not, raised at trial or on direct

appeal. Hanna v. Ishee, 694 F.3d 596, 613–14 (6th Cir. 2012); see also State v.

Wade, 2022 Ohio 1008, 2022 WL 898328, at *3–5 (Ohio Ct. App. 2022); 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)). This state procedural rule constitutes an

independent and adequate state ground to bar a claim from federal habeas

review. See Hanna, 694 F.3d at 614.

On direct appeal to the court of appeals, Mills raised the same issue that

he now presents as his Ground One claim. Doc. 8-1, at 56. The state appellate

court considered and rejected his arguments. See Mills, WL 2728798, *4–6.

Mills then filed an appeal with the Ohio Supreme Court. Doc. 8-1, at 112. But

Mills’s memorandum in support of jurisdiction to the Ohio Supreme Court did

not raise any issue related to the weight or sufficiency of the evidence or his

argument that he should have been acquitted. See id. at 114–20. Instead

Mills—acting pro se––raised a single, new issue in his appeal to the state

supreme court: ineffective assistance of counsel. Id. at 115, 119.

Mills’s failure to present any aspect of his Ground One claim on appeal

to the state supreme court forecloses review of it for federal habeas purposes.

Caver, 349 F.3d. at 346. Mills could have but did not present his Ground One

claim at each level of direct review. And the arguments in Mills’s Ground One

claim are all based on facts within the trial court record. His arguments thus

must have been raised, if at all, on direct appeal. Hill v. Mitchell, 842 F.3d 910,

936 (6th Cir. 2016). He did not do so and as a result Mills’s Ground One

arguments are procedurally defaulted.

Mills may avoid default by demonstrating cause for his default and that

prejudice will result if his claim is not now considered, or by showing that his

is “an extraordinary case, where a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Murray v. Carrier,

477 U.S. 478, 496 (1986); see also Coleman, 501 U.S. at 750. Mills makes no

explicit argument related to cause or prejudice to excuse his procedural default

of Ground One. See Doc. 9, at 10–12. He does however generally argue that he

is actually innocent. He does not frame this argument as a basis to excuse his

procedural default, but the Court liberally construes Mills’s Traverse and has

considered whether Mills’s actual innocence argument could excuse his

default. It does not.

A claim of actual innocence “requires the petitioner to support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324 (1995). Although Mills fervently claims he is innocent, Mills’s

arguments related to his innocence reference state court proceedings, entirely

separate from the sentence and conviction at issue in this matter. See Doc. 9,

at 12. Specifically, Mills attaches to his Traverse filings and describes events

that took place in relation to a separate state trial court matter from 2010. See

Doc. 9 (including exhibits showing that proceedings from 2010 that were

dismissed and a list of state court cases in which it appears Mills has been

involved). These documents do not demonstrate his factual innocence of the

conviction at issue.4 See Bousley v. United States, 523 U.S. 614, 623 (1998)

(“‘actual innocence’ means factual innocence, not mere legal insufficiency.”).

Instead, the documents attached appear to demonstrate that while

incarcerated on unrelated charges, he initiated an action in 2010 against

certain state officials. See e.g., Doc. 9-2 (criminal complaint initiated by Mills

against various state actors, including state municipal court judge Eric

4 The evidence that Mills attempts to include is also not new; it pertains

to other state court proceedings in which Mills was involved. These records

were all available at the time of trial. Additionally, this evidence, although

public records, does not appear to have been used at trial and is thus outside

of the trial court record. Mills has not made any motion to expand the record

or engage in discovery. So this evidence is not relevant for the purposes of

resolving Mills’s instant habeas petition.

O’Brien); see also Doc. 9-6 (order dismissing the 2010 case in its entirety).

Mills’s argument related to these prior state proceedings appears for the first

time in his Traverse and the exhibits on which he relies are not “new reliable

evidence” because the evidence of those proceedings was available during his

trial yet was not raised in his appeal to the state court of appeals. See Doc. 8-

1, at 54–65. For the reasons stated, Mills’s Ground One claim is procedurally

defaulted.

Additionally, Mills’s manifest weight claim is not cognizable on federal

habeas review. See Jaeger v. Wainwright, No. 1:19-cv-2853, 2023 WL 6554265,

at *22 (N.D. Ohio Sept. 1, 2023) (citing and discussing cases), report and

recommendation adopted, 2023 WL 6282944 (N.D. Ohio Sept. 27, 2023); but see

Nash v. Eberlin, 258 F. App’x 761, 765 (6th Cir. 2007). But to the extent that

Mills has raised a sufficiency of the evidence claim, see Nash, 258 F. App’x at

765, the Court could address the merits of the claim. Even still, under AEDPA,

if this Ground were not defaulted, the Court would owe deference to the state

court’s decision on the merits. 28 U.S.C. § 2254(d).

Mills does not acknowledge that manifest-weight claims are not

cognizable in federal habeas actions. Doc. 9, at 11–12. And he does not clearly

address the deferential review owed to the state court’s resolution of the merits

of his Ground One claim on direct appeal. Instead, he generally cites AEDPA

and cases stating what it means for a state-court’s decision to be

“unreasonable.” See Doc. 9, at 2–3. He makes no attempt to show whether or

why the court of appeals’ decision was unreasonable. He also does not argue

that the court of appeals erred in evaluating the sufficiency of the evidence.

To justify habeas relief, Mills has the burden to overcome the deference

this Court owes the state court’s sufficiency findings. See Brown, 567 F.3d at

205. Mills has not carried that burden. Instead, Mills baldly asserts that he

experienced “sham legal process, judicial and prosecutorial bias, and conflict of

interest” and “asserts that his Ground One has merit[] to warrant the writ

being granted[.]” Doc. 9, at 12. Notably, Mills’s Ground One claim does not

allege judicial or prosecutorial bias or prosecutorial misconduct. Instead, he

asserts this argument for the first time, in his Traverse.5 For this reason alone,

the Court need not consider the argument. Tyler v. Mitchell, 416 F.3d 500, 504

(6th Cir. 2000) (claims raised for the first time in a traverse are improper); see

Rice v. Warden, Warren Corr. Inst., 786 F. App’x 32, 38 (6th Cir. 2019).

Additionally, his argument about judicial and prosecutorial bias or a conflict of

interest appears to be based on cases from 2010 and 2019, which are entirely

unrelated to the sentence and conviction for which he seeks federal habeas

relief. See Doc. 9, at 8–10. These prior, state court matters are not relevant to

this Court’s evaluation of the reasonableness of the court of appeals’ decision

under the deferential standard set out in AEDPA. Even putting Mills default

5 This argument was also not raised in Mills’s direct appeal to the court

of appeals. Doc. 8-1, at 54. So even if the issues of judicial or prosecutorial

misconduct and conflicts of interest were appropriately raised, which they

weren’t, the issues would be procedurally defaulted because they were not

fairly presented in state courts.

aside, it should be axiomatic that because Mills has not attempted to carry his

burden, he failed to carry that burden.

For all of the reasons stated, Mills’s Ground One claim should be

dismissed.

2. Ground Two is procedurally defaulted, non-cognizable, and otherwise

meritless.

Mills’s Ground Two claim relates to a jury instruction on “consciousnes

of guilt,” which he claims was improperly given. Doc. 1, at 7. As described above

in relation to Ground One, to avoid procedural default, Mills was required to

fairly present his second Ground not only to the state trial and appellate court,

but also to the state’s highest court. Caver, 349 F.3d. at 346. Similarly, to avoid

the consequences of Ohio’s res judicata doctrine, Mills was required to raise

his second Ground at each available level on direct appeal. Hanna, 694 F.3d at

614. Mills has not done either of these things. As a result, his Ground Two

claim is procedural defaulted and should be dismissed.

Mills raised the same issue that he now presents as his Ground Two

claim in his direct appeal to the state court of appeals. Doc. 8-1, at 56. The state

court considered his related arguments and rejected them the merits. Mills,

WL 2728798, *4–6. Mills then filed an appeal with the Ohio Supreme Court.

Doc. 8-1, at 112. But Mills’s memorandum in support of jurisdiction did not

present the issue now raised as his Ground Two claim. Id.

Mills could have but did not raise his Ground Two claim at each level of

direct review. As with Ground One, Mills failed to fairly present his Ground

Two claim at each available level of direct appeal, despite its availability at

that time. So he is procedurally barred from raising it now. Caver, 349 F.3d. at

346; Hill, 842 F.3d at 936 (explaining that claims based on evidence contained

in the trial record or based on the trial must be raised on direct appeal in order

to avoid procedural default). Mills’s Ground Two claim is, thus, procedurally

defaulted.

Again, Mills makes no explicit argument to excuse his procedural

default of Ground Two. See Doc. 9, at 13–14. Mills does not address whether

he could avoid default by showing cause and prejudice. See id. at 13–14; see

also Coleman, 501 U.S. at 750. Unlike Mills’s Ground One argument, the

portion of his Traverse that addresses his Ground Two claim makes no

argument related to his claims of actual innocence. Doc. 9, at 13–14. Because

Mills’s Ground Two claim is procedurally defaulted and he makes no

discernable argument to excuse that default, Ground Two should be dismissed.

Additionally, Ground Two is not cognizable for federal habeas review.

Mills’s Ground Two claim is that the trial court erred by giving a consciousness

of guilt instruction concerning his statements related to suicidal ideations and

apologies. Doc. 1, at 7. Mills generally argues that the trial judge gave an

improper jury instruction, over the objection of his trial counsel. See Doc. 9, at

13. He asserts that this jury instruction was improper because “it was given in

Bad Faith with an Evil Eye and prejudicial to Petitioner’s right to an

unbias[ed] Judge and Jury, and the jury lost its way and resulted in a jury

verdict being contrary to, or involved an unreasonable application of, clearly

established Federal Law, as determined by the Supreme Court of the United

States.” Id. To prevail on federal habeas review, a petitioner must show that

“the ailing instruction by itself so infected the entire trial that the resulting

conviction violates due process.” Estelle, 502 U.S. at 72 (quoting Cupp v.

Naughten, 414 U.S. 141, 147 (1973)).

Mills has not made such a showing. As the court of appeals explained:

{¶28} In his second assignment of error, Mills

challenges the trial court's decision to instruct the

jury on consciousness of guilt. He acknowledges that

an accused's flight, resistance to arrest,

concealment, assumption of a false name, and

related conduct are admissible evidence of

consciousness of guilt. He claims, however, that the

behavior that prompted the court to provide the

instruction here–his apologies and talk of suicide–

were related to the termination of his relationship

with A.C. and not evidence that Mills had committed

a crime.

{¶29} The state responds that the instruction given

by the court was a correct statement of the law and

was supported by the facts of the case, and

reasonable minds could conclude that Mills’s

apologies and talk of suicidal ideations were

motivated by his consciousness of guilt. It insists

that the context of the statements makes clear that

they were in relation to the assault he committed on

the victim on the morning of November 13, 2020.

The state contends that Mills’s apologies and talk of

suicide qualify as “related conduct” for purposes of

providing the consciousness-of-guilt instruction.

{¶30} The trial court gave the following jury

instruction:

Consciousness of Guilt, Apologies and Suicidal

Comments. Testimony and evidence was admitted

during––indicating that the Defendant made

apologies and suicidal comments to [A.C.] regarding

the alleged incident on November 13, 2020. You are

instructed that such actions by Defendant alone

does not raise a presumption of guilt, but it may tend

to indicate the Defendant's consciousness of guilt.

If you find that the facts do not support that the

Defendant made apologies or suicidal comments to

[A.C.] as stated above, or if you find that some other

motive prompted the Defendant making apologies

and suicidal comments as stated above, or if you are

unable to decide what the Defendant’s motivation

was, then you should not consider this evidence for

any purpose.

However, if you find that the facts support that the

Defendant made apologies and suicidal comments to

[A.C.] as stated above, and if you decide that the

Defendant was motivated by a consciousness of

guilt, you may, but are not required to, consider that

evidence in deciding whether Defendant is guilty of

the crimes charged. You alone will determine what

weight, if any, to give this evidence.

{¶31} Trial courts are charged with giving juries

correct and comprehensive instructions that

adequately reflect the argued issues in the given

case before them. State v. Sneed, 63 Ohio St.3d 3, 9,

584 N.E.2d 1160 (1992). “Requested jury

instructions should ordinarily be given if they are

correct statements of law that are applicable to the

facts in the case, and reasonable minds might reach

the conclusion sought by the instruction.” Miller v.

Defiance Med. Ctr., 6th Dist. Lucas No. L-06-1111,

2007-Ohio-7101, ¶ 40, citing Murphy v. Mfg. Co., 61

Ohio St.3d 585, 591, 575 N.E.2d 828 (1991). We

review the trial court’s instructions to the jury for an

abuse of discretion. State v. White, 2013-Ohio-51,

988 N.E.2d 595, ¶ 97 (6th Dist.), citing State v. 6th

Dist. Huron No. H-10-001, 2010-Ohio-6221, ¶ 15.

{¶32} “‘It is today universally conceded that the fact

of an accused’s flight, escape from custody,

resistance to arrest, concealment, assumption of a

false name, related conduct, are admissible as

evidence of consciousness of guilt, and thus of guilt

itself.’” (Emphasis in original.) State v. Williams, 79

Ohio St.3d 1, 11, 679 N.E.2d 646 (1997), quoting

State v. 19 Ohio St.2d 145, 160, 249 N.E.2d 897

(1969). Ohio courts have concluded that apologies

and expressions of suicidal thoughts may constitute

a “consciousness of guilt.” See State v. Tvaroch, 11th

Dist. No. 2012-T-0008, 2012-Ohio-5836, 982 N.E.2d

751, ¶ 25-26; State v. Wrasman, 3d Dist. Auglaize

No. 2-20-03, 2020-Ohio-6887, ¶ 27 (apologies and

suicide threats constituted consciousness of guilt);

State v. Williams, 8th Dist. Cuyahoga No. 106266,

2018-Ohio-3368, ¶ 45 (suicide attempt was evidence

of consciousness of guilt); State v. Pryor, 5th Dist.

Stark No. 2013CA00016, 2013-Ohio-5693, ¶ 34

(apologies to victim indicated consciousness of guilt);

State v. Teal, 6th Dist. No. L-15-1280, 2017-Ohio-

7202, 95 N.E.3d 1095, ¶ 59 (apology to victim

demonstrated consciousness of guilt); State v.

Crawford, 9th Dist. Lorain No. 19CA011567, 2021-

Ohio-1686, ¶ 20 (apology could be viewed as

consciousness of guilt). If supported by the evidence

and not misleading, this evidence may merit a

consciousness-of-guilt jury instruction. Tvaroch at ¶

43.

{¶33} In Tvaroch, the defendant argued that there

was no evidence that his apology for “what

happened” had anything to do with the incident

giving rise to the charges against him. After

reviewing the context of defendant’s statements, the

court determined that the jury could reasonably

infer that defendant’s apology did pertain to the

incident at issue. It, therefore, concluded that the

trial court's consciousness-of-guilt instruction was

supported by the facts and the trial court did not

abuse its discretion in giving the instruction. The

court noted that this was especially true given that

the trial court also cautioned the jury that it could

completely disregard the evidence if not believed,

and even if believed, (1) the evidence would not rise

to a presumption of guilt, and (2) the jury was not

required to consider that evidence in deciding

defendant's guilt.

{¶34} Here, A.C. testified that after she texted Mills

pictures of her injuries, Mills responded: “Im so

fucking dumb ass of me im a fucking idiot. [sic]” A.C.

told Mills that he embarrassed and hurt her, and he

could have killed her. Mills responded, indicating

that he was suicidal. He also apologized to her

several times:

This is the last call i will ever make too you

im sorry for everything i hurt you. I love you

in my dying days in death i still love you.

***

I caused you so much pain and suffering i hurt

bad when i look at you in those fucked up pies

im truly am sorry try and forgive me do not

hold onto the hate it was what ate me alive.

Im so hurt for you

***

The pain in your eyes that i see i can no longer

deal with this shit my mind spinning out of

control my thoughts coming and going i hurt

the woman im so much claimed i love and who

I was to protected im tired of these changes in

my mind my heart loves [sic]

Screenshots of the text messages were admitted as a

trial exhibit.

{¶35} Additionally, Mills called A.C. from the Erie

County Jail on December 16, 2020. During that

phone call, Mills told A.C. that he wanted to call her

again. She expressed reluctance and told him that

he hurt her “so bad” and could not “in good

conscience” continue talking to him. Mills responded

that he knew he hurt her and that he was speaking

with a psychiatrist. Mills called A.C. again on

December 20, 2020. He told her: “I know that what I

put you through was bullshit, but you know, and I

know, that when I'm not on any drugs or anything

like that, I'm a good dude.” He admitted that he had

gone too far. In a third phone call, also on December

20, 2020, he told A.C. that what he did was not her

fault, it was because of the drugs he was on, and if

he “had to sit it out a couple years, so what? I deserve

that.” A.C. told Mills that she has nightmares about

how he had acted “because it was just so scary.” Mills

rationalized that perhaps someone had cut the drugs

he took with fentanyl.

{¶36} We find that given the context of Mills’s

statements, a reasonable juror could find that his

apologies and suicidal thoughts related to the

November 13, 2020 assault. And like the court in

Tvaroch, the trial court the jury cautionary

instructions that the evidence cannot give rise to a

presumption of guilt, it could completely disregard

the evidence if it did not believe that the statements

were made or did not believe the statements were

motivated by the incident giving rise to the offense,

and it could decline to consider the evidence even if

believed.

{¶37} We find that the trial court did not err when it

gave the consciousness-of guilt instruction. Mills’s

second assignment of error is not well taken.

Mills, 2023 WL 2728798.

Although Mills generally asserts that the trial court’s jury instruction

was “contrary to, or involved an unreasonable application of, clearly

established Federal Law, ad determined by the Supreme Court of the United

States,” Mills does not provide this Court with any example or authority that

shows why the instruction was improper. See Doc. 9, at 13. Instead, Mills

asserts without citation that “no State or Federal Court has upheld the giving

of a ‘consciousnes of guilt’ instruction based on inadmissible evidence.” Id. But

here, the evidence on which the jury instruction was based was admissible and

was admitted.6 Because Mills has not shown that a constitutional violation

occurred based on the jury instruction itself, he is not entitled to relief. See

Estelle, 502 U.S. at 72.

For all of the reasons stated, Mills’s Ground Two should be dismissed.

3. Ground Three is procedurally defaulted.

In his Ground Three claim, Mills raises ineffective assistance of counsel.

It appears that Mills challenges the effectiveness of both his trial and appellate

counsel’s representation in state court. Doc. 9, at 14 (“Petitioner argues that

trial and appellate counsel failed to object to the alleged judicial bias and

conflict of interest...”). Both arguments are procedurally defaulted.7

6 The face of Mills’s Ground Two does not discernably raise any issue

related to the admissibility of the evidence underlying the trial court’s jury

instruction on consciousness of guilt. But, even if it had, a claim related to the

trial court’s decision on the admissibility of evidence is also generally not a

cognizable basis on federal habeas review. See e.g., Walker v. Engle, 703 F.2d

959, 962 (6th Cir. 1983) (“[E]rrors in application of state law, especially with

regard to the admissibility of evidence, are usually not cognizable in federal

habeas corpus.”); see also Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a

federal habeas court does not “reexamine state-court determinations on state-

law questions,” including the admissibility of evidence).

7 The face of Mills’s petition does not clearly allege ineffective assistance

of trial or appellate counsel. He simply states “Ineffective Assistance of

Counsel” and provides the following as Supporting Facts: “On April 12, 2022,

Petitioner went to trial on the charges, counsel wanted to work out a deal and

Petitioner refused due to the fact he was actually innocent of violating any

laws, and maintains his being innocent to this date!” Doc. 1, at 8.

Any claim of ineffective assistance of trial counsel is triply defaulted.

Mills argued to the Ohio Supreme Court in his direct appeal that his trial

counsel was ineffective. See Doc. 8-1, at 114–20. But he failed to raise this issue

to the court of appeals. See id. at 54–65. Without comment, the Ohio Supreme

Court declined to review Mills appeal. Id. at 150. In this circumstance, this

Court will presume that the Ohio Supreme Court applied its rule of “long

standing” that it will not consider issues not raised before the court of appeals.

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (“Where a state court is

entirely silent as to its reasons for denying requested relief, we assume that

the state court would have enforced any applicable procedural bar.”); State v.

Phillips, 272 N.E.2d 347, 352 (1971) (explaining that the court will not consider

constitutional claims not raised and preserved in the Ohio court of appeals).

This procedural rule presents an adequate and independent basis to foreclose

review. Further, even putting this aside, Mills failure to raise this ineffective

assistance claim before the state court of appeals means that he did not fairly

present it. See Castille v. Peoples, 489 U.S. 346, 349–51 (1989).

Moreover, Ohio has a “dual-track system” for raising ineffective-

assistance-of-counsel claims. See Hill, 842 F.3d at 936. Grounds for relief that

are “based on evidence wholly within the trial record must be brought on direct

appeal.” Id. “[C]laims based on evidence outside the trial record,” on the other

hand, “cannot be brought on direct review and must be raised in a petition for

state post-conviction relief.” Id. And if an ineffective-assistance claim “relies

on evidence within the trial record” such that the claim could have been

brought on direct appeal, Ohio’s res judicata rule will bar post-conviction

review of the claim. Id. (emphasis added). “Ohio courts routinely apply the res

judicata rule to” such claims. Smith v. Bagley, 642 F. App’x 579, 586 (6th Cir.

2016) (citing State v. Cole, 443 N.E.2d 169, 171 (1982)); see Williams, 460 F.3d

at 806 (“Thus, if an Ohio petitioner failed to raise a claim on direct appeal,

which could have been raised on direct appeal, the claim is procedurally

defaulted.”) (citing Engle, 456 U.S. at 125 n.28). By contrast, an Ohio Appellate

Rule 26(B) application to reopen is the method to raise ineffective assistance

of appellate counsel. See Ohio App. R. 26(B)(1). Such an application must be

filed “within ninety days from journalization of the appellate judgment [on

direct appeal] unless the applicant shows good cause for filing at a later time.”

Id.

To the extent that Mills’s claim for ineffective assistance of trial counsel

would have been based on evidence originating from his original trial, this

claim should have been raised on his direct appeal. Williams, 460 F.3d at 806.

But Mills, then represented by separate appellate counsel, failed to raise any

ineffective assistance of trial counsel claim on his direct appeal to the court of

appeals. See Doc. 8-1, at 56; Mills, 2023 WL 2728798. Although Mills did raise

an ineffective assistance of counsel claim on appeal to the state supreme court,

he failed to present the claim at each level of direct appeal. So he has not fairly

presented an ineffective assistance of trial counsel claim as required to

preserve the issue for federal habeas purposes. See Williams, 460 F.3d at 806.

Additionally, Mills has not clearly asserted that his claim for ineffective

trial counsel was based on evidence outside of the trial record. But, even if he

had, Mills never filed a state post-conviction petition challenging his trial

counsel’s representation based on facts outside of the record, as Ohio’s “dual-

track system” permits. See Hill, 824 F,3d at 936 (holding that claims based on

evidence outside of the trial record must be raised in a petition for post-

conviction relief). The time for filing a petition for post-conviction relief under

Ohio law has passed. See Ohio Rev. Code Ann. § 2953.21(A)(2)(a) (providing

365 days from filing of the trial transcript to file a petition for post-conviction

relief). And, in any event, Mills has made no indication that he desires to file

any such petition. See generally Docs. 1, 9. So Mills’s claim of ineffective trial

counsel is procedurally defaulted. State v. Summers, No. 83-B-18, 1983 WL

6700, at *2 (Ohio Ct. App. Aug. 15, 1983) (when not raised on direct appeal,

claims of ineffective trial counsel are later barred by res judicata); see Williams,

460 F.3d at 806 (“If, at the time of the federal habeas petition, state law no

longer allows the petitioner to raise the claim, the claim is procedurally

defaulted”) (citing Engle, 456 U.S. at 125 n. 28).

The issue of ineffective assistance of trial counsel, thus, cannot provide

a basis for federal habeas relief unless Mills can show actual prejudice and

cause for his default. See Coleman, 501 U.S. at 750. Mills has not clearly argued

cause or prejudice to excuse his default. To the extent that a failure to properly

raise ineffective assistance of trial counsel could be based on ineffective

appellate counsel, the latter claim cannot provide cause in this instance

because it is itself defaulted as explained below. See Edwards, 529 U.S. at 453.

And, beyond the general assertions of his innocence discussed earlier, which

are insufficient to show factual innocence for federal habeas purposes, Schlup,

513 U.S. at 324, Mills has not argued that a fundamental miscarriage of justice

would result if his default is not excused.

As to Mills’s claim for ineffective assistance of appellate counsel, that

claim is also procedurally defaulted. Ohio Appellate Rule 26(B) provides that

an application to reopen a direct appeal based on ineffective assistance of

appellate counsel must be filed within 90 days after the court of appeals’

judgment. See Ohio App. R. 26(B)(1). The court of appeals entered its judgment

on March 31, 2023, so Mills had until June 29, 2023, to file a Rule 26(B)

application. He did not do so.

As with his ineffective-assistance-of-trial-counsel claim, Ohio

procedural rules provided Mills’s with an opportunity to raise an ineffective

assistance of appellate counsel claim, he did not do so, and the time to do so

has passed. He has not alleged in his federal habeas filings any reason

indicating good cause for filing a late application, now over a year after it would

have been due. See Ohio App. R. 26(B)(1) (providing that a Rule 26(B)

application must be filed within 90 days of the journalization of the appellate

court's decision, unless “the applicant shows good cause for filing at a later

time”); see also Prieto v. Schweitzer, No. 4:18-cv-222, 2019 WL 2605639, at *8

n.5 (N.D. Ohio May 31, 2019) (the petitioner’s failure to file an Ohio Appellate

Rule 26(B) application to reopen or provide any reason why he had not filed

one procedurally defaulted any ineffective-assistance-of-appellate-counsel

claims), report and recommendation adopted, 2021 WL 147049 (N.D. Ohio Jan.

15, 2021); Rice v. Welch, No. 3:10-cv-1916, 2014 WL 4794585, at *26 (N.D. Ohio

Sept. 23, 2014). Mills’s Ground Three claim of ineffective assistance of

appellate counsel is thus procedurally defaulted. See Williams, 460 F.3d at 806.

Mills, again, does not make an any discernable argument related to

cause or prejudice to excuse his failure to properly or timely raise an ineffective

assistance of appellate counsel claim. And his assertions related to his actual

innocence remain insufficient to excuse his default for all of the reasons

previously explained. See Schlup, 513 U.S. at 324. Because Mills has not made

any requisite showing to excuse the procedural default of his ineffective

assistance of appellate counsel claim, that claim cannot be asserted as cause

to avoid the procedural default of his other claims. See Edwards, 529 U.S. at

453.

For all of the reasons stated, Mills’s Ground Three claim is procedurally

defaulted and should be dismissed.

Conclusion

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

dismissed.

Dated: October 7, 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).