Flenner v. Forshey

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CECIL LEE FLENNER, CASE NO. 4:23-cv-2292

Petitioner, DISTRICT JUDGE

DONALD C. NUGENT

vs.

MAGISTRATE JUDGE

WARDEN JAY FORSHEY, JAMES E. GRIMES JR.

Respondent.

REPORT &

RECOMMENDATION

Pro se Petitioner Cecil Lee Flenner filed a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2254. Doc. 1. Flenner is in custody at the Noble

Correctional Institution due to a journal entry of sentence in the case State v.

Flenner, Trumbull County Court of Common Pleas, Case No. 16-CR-641. 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 Petition be denied.

Summary of facts

In habeas corpus proceedings brought by a person under 28 U.S.C. §

2254, factual determinations made by state courts are presumed correct. 28

U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that

presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d

439, 447 (6th Cir. 2012).

The Ohio Court of Appeals for the Eleventh Appellate District

summarized the facts underlying Flenner’s conviction as follows:

{¶2} Appellant has been addicted to cocaine for

twenty years. During most of that time, he has been

close friends with Lisa Prater, a cocaine addict for

over fifteen years. In the beginning, appellant’s

relationship with Prater was limited to using illegal

drugs together. However, as the years went by, they

began to live together at various locations in the

Warren, Ohio area. Usually, their living

arrangements would only last for a few months, and

they would then go their separate ways.

Nevertheless, their friendship endured.

{¶3} At some point in 2013, Prater was convicted of

cocaine possession, a fifth-degree felony. As a result

of this conviction, Prater became motivated to “beat”

her addiction. Over the ensuing three years, she

remained “clean” and began attending church as

often as she could. With assistance from her parents,

she was also able to purchase a trailer, located near

her church in the Warren area.

{¶4} During the course of her rehabilitation, Prater

maintained her friendship with appellant.

Furthermore, during certain periods in which

appellant was able to stop taking illegal drugs,

Prater allowed him to reside with her. One such

period began in June 2016, when he moved into her

trailer. But, despite the closeness of their

relationship, the parties had an agreement that

their cohabitation would end if appellant started

using cocaine again.

{¶5} This period of cohabitation lasted for

approximately two months. In early August 2016,

appellant began a serious cocaine binge and

immediately removed most of his belongings from

the trailer. Since Prater felt that she must end her

friendship with appellant due to his inability to

remain sober, she required him to leave his key to

the trailer with her.

{¶6} In the days following their breakup, Prater

believed that appellant was stalking her by driving

around the general area near her trailer. She also

believed that, on one occasion, he broke into the

trailer through a window and stole some small

items. Consequently, her father and a church friend

inserted additional screws through each of her

window frames so that the windows could not be

pried open. They also installed two new locks on her

front door.

{¶7} According to Prater, on the morning of August

25, 2016, she observed appellant sitting in his truck

near her trailer, looking at her through a window as

she had a cup of coffee. In response, she called his

probation officer to report his behavior. But, after a

few moments, appellant drove away from the trailer,

and Prater did not have any further contact with

him that day. At approximately 10:00 p.m., she took

her daily medications and went to bed. Due to the

nature of her pills, she was a sound sleeper.

{¶8} According to appellant, he stopped at the trailer

that morning because he wanted to tell Prater that

he had decided to straighten up his life. Under his

version, they had an amicable conversation about

the situation, and Prater told him that he could come

back that evening. She also allegedly gave him a new

key to the front door. Yet, although appellant

intended to come back later that day, he was delayed

because he had an opportunity to smoke crack

cocaine. Thus, he did not return to the trailer until

1:00 a.m. on August 26.

{¶9} There is no dispute that upon his return,

appellant parked his truck in the parking lot of a

nearby church, walked across a field to Prater’s

trailer, and smashed one of her windows with a

crowbar. After that, the two versions of the ensuing

events vary greatly. According to Prater, appellant

terrorized her during the next few hours by

committing the following acts: hitting her with his

fist in the face and chest, threatening to kill her,

raping her, choking her until she was rendered

unconscious for a short period, and forcing her to

take a shower. According to him, Prater willingly let

him into the trailer after hearing him smash the

window, and they had consensual sex. Later, they

had a physical altercation when Prater became

jealous after he received a telephone call from a

female cocaine user. During that altercation, he

slapped Prater’s face with his open hand.

{¶10} There is likewise no dispute that appellant was

high on cocaine during the entire event. At

approximately 5:00 a.m., he passed out on the living

room couch, and Prater immediately called the local

police. Meeting the responding police officers in the

driveway to her trailer, she quickly informed them

that appellant had broken into her residence and

raped her. The officers observed that Prater

appeared frightened and had multiple bruises on her

face and neck. After speaking to the officers, she was

taken by ambulance to a local hospital.

{¶11} In addition to Prater’s allegations, the officers

learned over their radios that there was an

outstanding warrant for appellant’s arrest.

Accordingly, appellant was immediately taken into

custody.

{¶12} At the hospital, a sexual assault nurse

examined Prater. As part of the procedure, the nurse

took Prater’s statement concerning the rape and

documented the injuries to her face, neck, chest, and

left knee. Although Prater’s genitals were examined,

no trauma or DNA evidence was found in this part

of her body. However, subsequent tests of Prater’s

night shirt revealed the presence of seminal fluid,

and appellant’s DNA was found on the same item.

***

{¶14} At trial, Prater testified that the following

occurred after appellant entered the trailer: (1) she

initially woke up because someone was laying on top

of her and hitting her in the head; (2) she did not

know who her attacker was until he got up and

turned on the light, whereupon she saw it was

appellant; (3) he was holding a crowbar and

threatening her, stating he was going to kill her by

crushing her skull; (4) appellant took possession of

Prater’s cell phone before waking her; (5) he

continued to threaten her for a substantial period,

during which he twice went into the kitchen for

water and food; (6) after threatening her with a knife

he got from the kitchen, he left her bedroom and

went to the laundry room to get bleach to pour on

her clothes; (7) at that point, Prater tried to escape

by running to the front door; (8) appellant caught her

by the door and dragged/pushed her back to the

bedroom; (9) after pushing her onto the bed, he took

off Prater’s night clothes and forced her to engage in

oral and vaginal sex; (10) appellant punched her and

held her around the throat while raping her; (11) at

the end of the vaginal sex, he ejaculated on Prater’s

stomach; (12) he again told her that he was going to

kill her, grabbed her by the throat, and then choked

her until she lost consciousness; (13) when Prater

woke, appellant was dressed and walking down the

hallway; (14) she put her night shirt on and started

to follow him; (15) at that juncture, he ordered her

to take a shower so that there would be no evidence

of the rape; (16) she got into the shower and let the

water run over her, but did not use soap; (17) after

the shower, appellant got a telephone call which

changed his attitude, and he began to act as if

nothing had happened; (18) he told Prater he was

leaving, but he passed out before making it to the

front door; and (19) she called 9–1–1 with a spare

cell phone she kept hidden in her bedroom.

{¶15} Appellant testified on his own behalf, stating

that, even though he used the crowbar to br[eak] the

window, Prater still willingly allowed him into her

residence and they had consensual sex. Although he

admitted he slapped Prater during a physical

altercation, he claimed this did not occur until after

they had sex and was instigated when Prater

became jealous about a phone call he received from

another female.

State v. Flenner, No. 2017–T–54, 2018 WL 1382365, at *1–3 (Ohio Ct. App.

March 29, 2018).

Procedural background

Trial court proceedings

In October 2016, the Trumbull County Grand Jury issued an indictment

charging Flenner with two counts of aggravated burglary (counts one and two);

two counts of rape (counts three and four); one count of kidnapping (count five);

one count of domestic violence (count six); and one count of tampering with

evidence (count seven). Doc. 7-2, at 6–11 (Exhibit 1).1 Flenner pleaded not

guilty. Id. at 12 (Exhibit 2).

Due to Flenner’s attorney filing a motion to withdraw as counsel, the

trial court tolled Flenner’s speedy trial time from October 24, 2016, through

November 14, 2016. Doc. 7-2, at 13 (Exhibit 3). On November 28, 2016,

Flenner, through new counsel, executed a waiver of his speedy trial rights for

100 days, and trial was set for March 27, 2017. Id. at 14 (Exhibit 4). The trial

started on March 28, Doc. 10-2, at 2, and the jury found Flenner guilty as

charged, Doc. 7-2, at 15–21. (Exhibit 5).

The trial court held a sentencing hearing. Doc. 10-2, at 728. The court

merged the two burglary counts and found that none of the other counts were

allied offences subject to merger. Doc. 7-2, at 23. The court sentenced Flenner

1 In this report and recommendation, all of the citations to the docket refer

to the ECF document and page number shown at the top of the page.

on each of the counts; ordered some of the sentences to run concurrently and

some of them to run consecutively; and sentenced Flenner to an aggregate term

of 35 years in prison. Id. at 23–24.

Direct appeal

Flenner, through new counsel, appealed to the Ohio court of appeals.

Doc. 7-2, at 26 (Exhibit 7). In his brief, he raised the following assignments of

error:2

1. The state failed to produce evidence that was

legally sufficient to sustain the jury’s verdict that

appellant tampered with evidence.

2. The jury’s verdict of guilty on the counts of

aggravated burglary was against the manifest

weight of the evidence.

3. The jury’s verdict of guilty on the counts of rape

was against the manifest weight of the evidence.

4. The jury’s verdict of guilty on the count of

kidnapping was against the manifest weight of the

evidence.

5. The jury’s verdict of guilty on the count of

tampering with evidence was against the manifest

weight of the evidence.

6. The trial court erred when it failed to merge the

kidnapping count with an allied offense.

Id. at 39–41 (Exhibit 8). On March 19, 2018, the Ohio court of appeals affirmed

the trial court’s judgment. Id. at 79–94 (Exhibit 10).

2 In this report and recommendation, Flenner’s grounds for relief are

reproduced as written.

Delayed appeal to the Ohio Supreme Court

On May 25, 2018, Flenner filed in the Ohio Supreme Court a pro se

motion for leave to file a delayed appeal, Doc. 7-2, at 95 (Exhibit 11), and a

notice of appeal, id. at 122 (Exhibit 12). On July 11, 2018, the Ohio Supreme

Court denied Flenner’s motion for a delayed appeal and dismissed his case. Id.

at 124 (Exhibit 13).

Petition to vacate or set aside judgment of conviction or sentence

On July 13, 2018, Flenner filed in the trial court a pro se petition to

vacate or set aside judgment of conviction or sentence. Doc. 7-2, at 125 (Exhibit

14). In his petition, Flenner raised the following claim:

6th Amendment Assistance of Counsel, a fair trial,

and due process under the 14th Amendment

Supporting Facts: I did not get a fair trial and

due process because counsel did not bring forth

testimony from a psychiatrist or expert to conduct a

competency hearing on the state’s witness. She is

diagnosed with Schizoaffective Disorder.

Id. at 127. In response, the State filed a motion for summary judgment. Id. at

136 (Exhibit 15). On July 20, 2018, the court granted the State’s motion and

dismissed Flenner’s petition. Id. at 148–51 (Exhibit 16). The court found that

Flenner’s claim was barred by res judicata because he should have raised it on

direct appeal, and that it also failed on the merits because it lacked evidentiary

support. Id.

On January 10, 2022, nearly three and a half years later, Flenner

appealed to the Ohio court of appeals. Doc. 7-2, at 152 (Exhibit 17). The court

ruled that Flenner’s appeal was timely because the record showed that the trial

court failed to serve Flenner with its order denying the petition. Id. at 214

(Exhibit 20). Thereafter, Flenner filed his brief and raised the following

assignments of error:

1. The trial court abused its discretion when he

disposed of appellants postconviction petition based

on an unreasonable determination of the facts in

light of the evidence presented at trial.

2. Mis-application of res judicata.

3. Ineffective assistance of trial counsel. Trial

counsel failed to call a clinical expert witness.

4. Compulsory process. In appellants original (PCR)

he raises a colorable claim for due process violations.

Doc. 7-2, at 216, 221, 223 (Exhibit 21). On August 15, 2022, the Ohio court of

appeals affirmed the trial court’s dismissal of Flenner’s petition. Id. at 372–76

(Exhibit 28).

In September 2022, Flenner appealed to the Ohio Supreme Court and

filed a memorandum in support of jurisdiction raising the same claims as

above. Id. at 379 (Exhibits 29, 30). On December 13, 2022, the Ohio Supreme

Court declined under its rule of practice 7.08(B)(4) to accept jurisdiction of

Flenner’s appeal. Id. at 422 (Exhibit 32).

Ohio Appellate Rule 26(B) Application to Reopen

On January 10, 2022, Flenner filed in the Ohio court of appeals an

untimely Ohio Appellate Rule 26(B) Application to Reopen.3 Doc. 7-2, at 423

(Exhibit 33). He argued that appellate counsel was ineffective for failing to

raise on direct appeal the following errors:

1. Ineffective assistance of trial counsel: (a) Trial

counsel failed to call clinical expert witness. (b) Trial

counsel failed to object to the prosecutor presenting

tainted evidence. (c) Trial counsel failed to calculate

speedy trial day’s.

2. Prosecutorial misconduct; producing tainted

evidence.

3. Speedy trial violation.

Id. at 426–27. On January 20, 2022, the court denied Flenner’s application as

untimely. Id. at 451 (Exhibit 35).

Delayed applications for reconsideration

In April 2023, Flenner filed in the Ohio court of appeals three delayed

applications for reconsideration. First, Flenner asked the court to reconsider

its March 19, 2018 direct-appeal decision affirming his convictions. Doc. 7-2, at

452–53 (Exhibit 36). The basis for this motion was the Ohio Supreme Court

decision in State v. Pendleton, 168 N.E.3d 458 (Ohio 2020), which, Flenner

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

assistance of appellate counsel. See Ohio App. R. 26(B)(1). 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.

believed, meant that his two rape counts should have been merged as allied

offences. Id. at 454. Second, he asked the court to reconsider its January 20,

2022 decision denying his Rule 26(B) application to reopen. Id. at 455–56

(Exhibit 36-A). Third, he asked the court to reconsider its August 15, 2022

decision affirming the trial court’s denial of his post-conviction petition. Id. at

515–16 (Exhibit 44). On May 18, 2023, the Ohio court of appeals overruled all

three of Flenner’s applications. Id. at 478–83, 530–32 (Exhibits 39, 39-A, 47).

Flenner appealed, Doc. 7-2, at 484–85, 533–34 (Exhibits 40–41, 48–49),

and in August 2023, the Ohio Supreme Court declined under its rule of practice

7.08(B)(4) to accept jurisdiction of Flenner’s appeals, id. at 514, 558 (Exhibits

43, 51).

Second direct-appeal delayed application for reconsideration

In December 2023, Flenner filed in the Ohio court of appeals another

application for delayed reconsideration of the court’s March 19, 2018 direct-

appeal decision affirming his convictions. Doc. 7-2, at 559 (Exhibit 52). Flenner

argued that he should not have received consecutive sentences on his two rape

convictions. Id. at 560. In January 2024, the Ohio court of appeals overruled

Flenner’s application. Id. at 569–71 (Exhibit 54).

In March, Flenner filed in the Ohio Supreme Court an untimely notice

of appeal and motion for delayed appeal. Doc. 7-2, at 572–80 (Exhibits 55, 56).

In April 2024, the Ohio Supreme Court denied Flenner’s motion. Id. at 590

(Exhibit 58).

Federal habeas corpus petition

Flenner states that on November 16, 2023, he placed in the prison

mailbox his federal habeas corpus petition under 28 U.S.C. § 2254.4 Doc. 1, at

15. He raised the following grounds for relief:

Ground one: No sufficient evidence exists for any

forcible rape, restraint of liberty or tampering with

evidence.

Ground two: Double-jeopardy violation(s) in the

form of failure to merge allied offenses of similar

import &/or multiple like offenses.

Ground three: Denial of effective assistance of

appellate counsel.

Ground four: Denial of effective assistance of trial

counsel.

Ground five: Denial of a fair and speedy trial.

Doc. 1, at 5–12. The Warden filed a Return of Writ, Doc. 10, and a

Supplemental Return of Writ, Doc. 18. Flenner filed a Traverse to the Return,

Doc. 15, and a Traverse to the Supplemental Return, Doc. 20.

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, 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

4 A petition is deemed filed when a petitioner places it the prison mailing

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

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, procedural default rather than exhaustion applies. 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). A state defendant with federal constitutional claims must fairly

present those claims to the state courts before raising them in a federal habeas

corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have

jurisdiction to consider a claim in a habeas petition that was not ‘fairly

presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877

(6th Cir. 2003)). 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); Hafley v. Sowders, 902

F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the

factual and legal underpinnings of the claims to the state courts. McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000). 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.” Koontz v. Glossa, 731 F.2d 365,

368 (6th Cir. 1984).

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: whether (1) there is

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

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

procedural rule; (3) 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) 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 (citing O’Sullivan,

526 U.S. at 848). “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.” Id. While the exhaustion requirement is satisfied because there are

no longer any state remedies available to the petitioner, see Coleman v.

Thompson, 501 U.S. 722, 732 (1991), the 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, petitioners must show cause for the

default and actual prejudice that resulted from the alleged violation of federal

law that forms the basis of their challenge, or that there will be a fundamental

miscarriage of justice if the 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 state’s court’s adjudication “was contrary to,” or “involved an

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

2254(d)(1) (emphasis added); 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 White, 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); 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. Ground one is withdrawn.

In ground one, Flenner argues that there was insufficient evidence “for

any forcible rape, restraint of liberty or tampering with evidence.” Doc. 1, at 5.

The Warden asserts that ground one is procedurally defaulted. Doc. 10, at 14–

15. In his Traverse, Flenner submits that ground one is “untenable,” and “asks

that this Court strike such claim.” Doc. 15, at 2; see also Doc. 20 (Flenner’s

supplemental traverse excluding discussion of ground one). The Court,

therefore, will consider ground one to have been withdrawn.5

2. Ground two is procedurally defaulted.

In ground two, Flenner argues that the trial court’s failure to merge

allied offences was a double jeopardy violation. Doc. 1, at 7. He contends that

the kidnapping count should have merged with the rape and the tampering-

with-evidence counts, and that the two rape counts should have merged with

each other. Id. These two alleged double jeopardy violations are both

procedurally defaulted, but for different reasons, explained below.

The kidnapping count. On direct appeal to the Ohio court of appeals,

Flenner claimed that the kidnapping count should have merged with the rape

5 Even so, ground one would be procedurally defaulted for the same

reason that Flenner’s kidnapping claim in ground two is procedurally

defaulted.

and tampering-with-evidence counts. Doc. 7-2, at 53–57. But Flenner didn’t

timely appeal to the Ohio Supreme Court. The Ohio court of appeals issued its

decision on March 19, 2018. Doc. 7-2, at 79. Flenner had 45 days, until May 3,

to appeal to the Ohio Supreme Court. See S.Ct.Prac.R. 7.01(A)(1)(a)(i) (“To

perfect a jurisdictional appeal from a court of appeals to the Supreme Court …

the appellant shall file a notice of appeal in the Supreme Court within forty-

five days from the entry of the judgment being appealed.”). Flenner filed in the

Ohio Supreme Court a notice of appeal and a motion for leave to file a delayed

appeal on May 25, three weeks late.

The Ohio Supreme Court denied Flenner’s motion for leave to file a

delayed appeal. Doc. 7-2, at 124. When it did, it enforced an adequate state

procedural rule that is sufficient to bar federal habeas relief. See Smith v. State

of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 432 (6th Cir. 2006) (the Ohio

Supreme Court’s denial of a motion for delayed appeal, even when it did not

give any reasons for the denial, “is an adequate procedural ground to foreclose

federal habeas review”) (citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.

2004)). So Flenner failed to comply with a state-court rule applicable to the

claim, the Ohio Supreme Court enforced the procedural rule, and that

procedural rule is an adequate and independent state ground on which the

state can foreclose review of the claim. See Maupin, 785 F.2d at 138.

Flenner resists this conclusion. He argues that “because no merits are

addressed in a motion for leave to the Ohio Supreme Court,” his allied-offences

claim is not procedurally defaulted. Doc. 15, at 2. But it was Flenner’s failure

to timely raise this claim on direct appeal to the Ohio Supreme Court and the

Ohio Supreme Court’s subsequent denial of his motion for leave to file a

delayed appeal to raise any claim that constitutes the procedural default. See

Williams, 460 F.3d at 806 (“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.’”) (quoting O’Sullivan, 526 U.S. at 847).

Flenner also argues that the Maupin test for procedural default is

“outdated” and “uprooted,” and that the adequacy question should be

addressed under the rule established in “Lee v. Kemna, 543 U.S. 362, 375

(2002), as outlined in Gibbs v. Huss, 12 F.4th 544 (6th Cir. 2021).” Doc. 15, at

1. In Gibbs, the Sixth Circuit discussed the evolution of case law regarding the

adequacy of the state procedural rule since Maupin:

What constitutes an adequate procedural rule is a

question of federal law. Lee v. Kemna, 534 U.S. 362,

375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). A

determination of adequacy “generally requires ‘an

examination of the legitimate state interests behind

the procedural rule in light of the federal interest in

considering federal claims.’” Clifton v. Carpenter,

775 F.3d 760, 764 (6th Cir. 2014) (quoting Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986)). And a rule

may be inadequate for one of several reasons. First,

if the rule violates the United States Constitution, it

cannot “serve as an adequate basis for the state

court’s decision ... under the adequate and

independent state ground doctrine.” Ibid. (alteration

in original) (quoting Doan v. Brigano, 237 F.3d 722,

727–28 (6th Cir. 2001), overruled on other grounds

by Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,

156 L.Ed.2d 471 (2003)); see also Richard H. Fallon,

Jr., et al., Hart and Wechsler’s The Federal Courts

and the Federal System 535 (7th ed. 2015) (“[R]eview

plainly cannot be foreclosed by a litigant’s

noncompliance with a state procedural rule that, on

its face or as applied, violates the Due Process

Clause.”).

And an ordinarily adequate procedural rule may

nevertheless be inadequate in “exceptional cases in

which exorbitant application of a generally sound

rule renders the state ground inadequate to stop

consideration of a federal question.” Lee, 534 U.S. at

376, 122 S.Ct. 877. The Lee Court drew from Osborne

v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d

98 (1990). There, the Ohio Supreme Court had held

that Mr. Osborne’s constitutional objections to jury

instructions were procedurally barred because he

had “failed to object contemporaneously to the

judge’s charge.” Lee, 534 U.S. at 376–77, 122 S.Ct.

877. But Mr. Osborne had already objected to one of

the challenged instructions earlier in the

proceedings, “and the trial judge, ‘in no uncertain

terms,’ had rejected [his] argument.” Id. at 377, 122

S.Ct. 877 (quoting Osborne, 495 U.S. at 124, 110

S.Ct. 1691). Thus, in that “atypical instance,” in

which a jury-instruction objection had already been

made and decisively overruled, Ohio’s enforcement

of the contemporaneous-objection rule “serve[d] ‘no

perceivable state interest’” and was therefore

inadequate to prevent Supreme Court review. Id. at

378, 122 S.Ct. 877 (quoting Osborne, 495 U.S. at 124,

110 S.Ct. 1691).

In Lee, three defense witnesses, who were to testify

in support of the defendant’s alibi, left the

courthouse for an at-the-time-unknown reason. Lee,

534 U.S. at 369, 122 S.Ct. 877. (They later attested

that an officer of the court had told them that “their

testimony would not be needed that day.” Id. at 373

& n.6, 122 S.Ct. 877.) Mr. Lee orally moved the trial

court for a “continuance until the next morning, to

gain time to enforce the subpoenas he had served on

the witnesses.” Id. at 369, 122 S.Ct. 877. The trial

judge denied the motion because he could not hold

court the next day—his daughter would be in the

hospital, and he would have to attend to her. Ibid.

The court also denied a continuance until the next

week because there was another case set for trial. Id.

at 370, 122 S.Ct. 877. Mr. Lee argued on appeal that

the trial court had denied him his right to present a

defense. Id. at 371, 122 S.Ct. 877.

In its appellate brief, the state raised for the first

time that Mr. Lee’s motion was improper because it

did not satisfy Missouri Supreme Court Rule 24.10

(requiring certain factual showings be made in an

application for a continuance). Lee, 534 U.S. at 371–

72, 122 S.Ct. 877. In its opinion denying relief, the

state court of appeals raised on its own a separate

procedural rule, Missouri Supreme Court Rule 24.09

(requiring an application for a trial continuance be

made on a written motion with an affidavit). Lee, 534

U.S. at 372–73, 122 S.Ct. 877. According to Missouri,

those two rules “work together to enhance the

reliability of a trial court’s determination of whether

to delay a scheduled criminal trial due to the

absence of a witness.” Id. at 380, 122 S.Ct. 877

(emphasis omitted) (quoting Brief for Respondent at

29, Lee, 534 U.S. 362, 122 S.Ct. 877 (No. 00-6933)).

But “neither the prosecutor nor the trial judge so

much as mentioned the Rules as a reason for

denying Lee’s continuance motion.” Ibid.

In finding the Missouri rules inadequate to support

a procedural default, the Court observed that the

state had presented no case law for the proposition

that “flawless compliance” with the rules was

required “in the unique circumstances” presented—

namely, “the sudden, unanticipated, and at the time

unexplained disappearance of critical subpoenaed

witnesses on what became the trial’s last day.” Id. at

382, 122 S.Ct. 877. Also important to the Court’s

decision was that there was no evidence that

“formally perfect compliance with the Rules would

have changed the trial court’s decision.” Id. at 387,

122 S.Ct. 877. And, as the Court noted, if the

procedural default were upheld, it would not have

mattered even if the witnesses truly had been told to

leave “on the instigation of a prosecutor who knew

the judge would be at the hospital with his daughter

the next day.” Ibid. The Court rejected a doctrine

under which a “particular application [of the

Missouri Rule], never mind how egregious, would be

ignored so long as the Rule, like the mine run of

procedural rules, generally serves a legitimate state

interest.” Ibid.

Gibbs, 12 F.4th at 550–52.

Here, Flenner hasn’t shown that Ohio Supreme Court’s denial of his

delayed motion to appeal “is novel or inconsistently applied by the state’s

courts.” See Gibbs, 12 F.4th at 551; cf. Smith, 463 F.3d at 431–32 (“We have

previously held that [the Ohio Supreme Court’s] denial of review on the basis

of Rule II § 2(A)(4)(a) is an adequate procedural ground to foreclose federal

habeas review.”).6 Flenner hasn’t shown that his is an “exceptional case[] in

which exorbitant application of a generally sound rule renders the state ground

inadequate to stop consideration of a federal question.” See Gibbs, 12 F.4th at

551 (quoting Lee, 534 U.S. at 376). Rather, Flenner’s case is the run-of-the-mill

situation in which a petitioner fails to timely appeal to the Ohio Supreme Court

and the Ohio Supreme Court rejects the petitioner’s attempt to file a delayed

appeal. See Smith, 463 F.3d at 431–32; Bonilla, 370 F.3d at 497; Davenport v.

Fender, No. 1:20-cv-0561, 2023 WL 1785492, at *13 (N.D. Ohio Jan. 5, 2023),

6 The rules were renumbered in 2013, and Ohio Supreme Court Rule of

Practice 2.2(A)(4) became 7.01(A)(1)(a)(i). See Brown v. Ohio Dep’t of Rehab. &

Corr., No. 3:12-cv-530, 2013 WL 1562909, at *1 (N.D. Ohio Apr. 15, 2013).

report and recommendation adopted, 2023 WL 1782121 (N.D. Ohio Feb. 6,

2023).

Flenner has not asserted cause or prejudice to excuse his procedural

default, or shown 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 Schlup v. Delo, 513

U.S. 298, 324 (1995) (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.”).

The rape counts. On direct appeal, Flenner didn’t argue that his two rape

counts were allied offences. Flenner first raised this claim to the Ohio court of

appeals in April 2023, under Ohio Appellate Rules 26(A) and 14(B) in a delayed

application for reconsideration of the court’s March 2018 direct-appeal

decision. Doc. 7-2, at 452–54. In his application, Flenner argued that in State

v. Pendleton, 168 N.E.3d 458 (Ohio 2020), the Ohio Supreme Court “announced

a ‘new’ rule of law” which meant that his two rape counts “must be considered

a single offence.” Doc. 7-2, at 454.

But the Ohio court of appeals rejected Flenner’s untimely application.

Id. at 479–80. The court stated that Ohio Appellate Rule 25(A)(1) “allows

parties ten days to file an application for reconsideration,” a time-period which

Flenner’s 2023 application challenging the court’s 2018 decision clearly fell

outside of. Id. at 479. The court commented that Appellate Rule 14(B)

permitted the court “[f]or good cause shown” to “enlarge or reduce the time

prescribed by these rules … on a showing of extraordinary circumstances.” Id.

The court explained that “extraordinary circumstances” was defined as

“[s]ubsequent binding higher court decisions directly on point with the

underlying appellate decision.” Id. The court reasoned:

Appellant argues Pendleton, supra, addressed R.C.

2941.25, Allied Offenses of Similar Import. He

contends, based on the holding in Pendleton, his two

rape counts must be considered as a single offense

and he must be resentenced accordingly. The State,

in opposition to appellant’s application, argues that

Pendleton is not on point and therefore does not

create an obvious error in our underlying appellate

decision.

In Pendleton, the Ohio Supreme Court addressed

whether R.C. 2925.03, Trafficking in Drugs, allowed

the weight of a mixture of drugs to be multiplied by

the number of controlled substances detected in the

mixture in order to support multiple punishments.

Id. at ¶12. The court determined the matter based

on the “plain terms” of RC. 2925.03 and found R.C.

2941.25, Allied Offenses of Similar Import, did not

apply to the case at all. Id. Therefore, Pendleton is

neither binding nor on point and appellant has failed

to demonstrate any obvious error in our opinion.

Doc. 7-2, at 479–80.

When it rejected as untimely Flenner’s application, the Ohio court of

appeals enforced an adequate state procedural rule that is sufficient to bar

federal habeas relief. See Ysreal v. Warden, Chillicothe Corr. Inst., No. 1:13-cv-

34, 2014 WL 7185264, at *9 (S.D. Ohio Dec. 16, 2014) (petitioner’s claim was

procedurally defaulted when the Ohio court of appeals rejected as untimely the

petitioner’s delayed motion for reconsideration) (citing cases); Shephard v.

Warden, No. 1:10-cv-222, 2011 WL 3664442, at *13 (S.D.Ohio May 31, 2011)

(“It was well-established even before … 1993 that applications for

reconsideration filed after the requisite ten-day period set forth in Ohio R. App.

P. 26(A) were subject to dismissal absent a showing under Ohio R. App. P.

14(B) of good cause sufficient to excuse the untimely filing”), report and

recommendation adopted, 2011 WL 3652615 (S.D.Ohio Aug. 8, 2011)). So

Flenner failed to comply with a state-court rule applicable to his claim, the

Ohio court of appeals enforced the procedural rule, and that procedural rule is

an adequate and independent state ground on which the state can foreclose

review of the claim.7 See Maupin, 785 F.2d at 138.

Flenner also raised his allied-offences-of-rape claim in a second

application for delayed reconsideration, this time relying on State v. Gwynne,

231 N.E.3d 1109 (Ohio 2023). See Doc. 7-2, at 560–61. Flenner argued that in

Gwynne, the Ohio Supreme Court held that “an appellate court may otherwise

7 In his supplemental traverse, Flenner advances a new argument: that

“[b]efore Pendleton, O.R.C. §2941.25 was the touchstone applied to all

challenges on allied offenses of similar import and, now, it is understood that

it is but one starting point towards answering the constitutional question of

legislative intent.” Doc. 20, at 2. But the court in Pendleton cited State v.

Brown, 895 N.E.2d 149, 156 (Ohio 2008), when it explained that “if the General

Assembly’s intent is clear from the language of the statute creating the offense,

there is no need to resort to the test provided in R.C. 2941.25.” 168 N.E.3d at

462. He asserts that Pendleton was “on-point,” Doc. 20, at 2, but the Ohio court

of appeals reasonably found otherwise, Doc. 7-2, at 479–80.

modify a sentence when, in consideration of the trial court’s findings, it

determines the record does not clearly and convincingly support the findings.”

Id. at 560. He alleged that in his case, “the aggregate [prison] term represents

an ‘extreme sentence[] that [is] “grossly disproportionate” to the crime[s]’”

because “[t]he legislature has not made oral and vaginal rape of the same

woman susceptible to cumulative punishment.” Id.

The Ohio court of appeals noted that Flenner’s application was untimely

and considered whether under Ohio Appellate Rule 14(B) he showed the

requisite “extraordinary circumstances” for the court to consider his late

application. Doc. 7-2, at 570. In deciding that Flenner had not done so, the

court explained:

Appellant argues that the Ohio Supreme Court’s

opinion in State v. Gwynne, Slip Opinion, 2023-Ohio-

3851, creates an obvious error in his sentencing which

warrants reconsideration. He asserts that the

legislature has not made oral and vaginal rape of the

same person susceptible to cumulative punishment

and that his aggregate prison term for both oral and

vaginal rape is grossly disproportionate to his crimes.

He asserts that the holding in Gwynne, 2023-Ohio-

3851 allows this Court to modify his sentence because

the record does not clearly and convincingly support

his sentencing.

However, Gwynne, 2023-Ohio-3851 was a

reconsideration opinion of State v. Gwynne, Slip

Opinion, 2022-Ohio-4607, and essentially reset

consecutive sentencing jurisprudence to the state it

existed prior to the December 23, 2022 Gwynne 2022-

Ohio-4607 decision. Gwynne, 2023-Ohio[-]3851 said

under the plain language of R.C. 2953.08(G)(2) an

appellate court may not substitute its own judgment

for that of the trial court imposing sentencing unless

the record does not clearly and convincingly support

the trial court’s consecutive sentence findings. Id. at

¶13-15, citing R.C. 2953.08(G)(2).

Appellant’s argument fails to identify how the trial

court record does not support the consecutive

sentence findings, cites no support for his proposition

that vaginal and oral rape of the same person is not

susceptible to consecutive sentencing, and is a

misrepresentation of the holding in Gwynne.

Appellant has not demonstrated any obvious error in

this Court’s decision and thus there are no

“extraordinary circumstances warranting the

enlargement of the time for filing application for

reconsideration***.” [State v.] Moore, [76 N.E.3d 1127

(Ohio 2013)] supra, at ¶95.

Doc. 7-2, at 570–71.

Flenner argues that the Ohio court of appeals’ decision was “novel or

inconsistent with State v. Moore.” Doc. 20, at 3. In Moore, the Ohio Supreme

Court considered whether the defendant showed under Ohio Appellate Rule

14(B) “extraordinary circumstances” to warrant reconsideration under Ohio

Appellate Rule 26(A) of his claim. 76 N.E.3d at 1147. It held that the defendant

had done so based on an intervening, binding, on-point United States Supreme

Court case, Graham v. Florida, 560 U.S. 48 (2010). Id. at 1149. In Graham, the

Court held that a state violates the Eighth Amendment of the United States

Constitution if it sentences a juvenile to life imprisonment without the

possibility of parole on a non-homicidal offence. 560 U.S. at 79. In Moore, the

Ohio Supreme Court held that for a juvenile convicted of a non-homicidal

offence, there was no distinction between a life sentence without the possibility

of parole, as in Graham, and a term-of-years sentence that exceeded the

juvenile’s life expectancy, as in Moore. Moore, 76 N.E.3d at 1137, 1139.

Here, Flenner hasn’t identified an intervening, binding, on-point case

that applies to his claim that his rape convictions should have merged. So he

hasn’t shown that the Ohio court of appeals’ decision was “novel” or

“inconsistent” with Ohio courts’ applications of the time-bar in Ohio Appellate

Rule 14(B) when evaluating under Ohio Appellate Rule 26(A) a motion for

delayed reconsideration. Simply put, Flenner failed to comply with a state-

court rule applicable to his claim, the Ohio court of appeals enforced the

procedural rule, and that procedural rule is an adequate and independent state

ground on which the state can foreclose review of the claim. See Maupin, 785

F.2d at 138; see also Ysreal, 2014 WL 7185264, at *9; Shephard, 2011 WL

3664442, at *13.

Flenner also procedurally defaulted his claim based on Gwynne because

he failed to timely appeal to the Ohio Supreme Court, and the Ohio Supreme

Court rejected his motion for delayed appeal. Doc. 7-2, at 572, 590; see Bonilla,

370 F.3d at 497 (when the Ohio Supreme Court denies a motion for delayed

appeal, it enforces a procedural bar that precludes federal habeas review).

As above, Flenner has not alleged cause, prejudice, or actual innocence

to excuse his procedural defaults. Ground two is procedurally defaulted.

3. Ground three is procedurally defaulted.

In ground three, Flenner argues that appellate counsel was ineffective

for failing to raise on direct appeal ineffective-assistance-of-trial-counsel

claims for counsel’s failure to call an expert witness, object to tainted evidence,

and move for dismissal on speedy trial grounds. Doc. 1, at 8.

Flenner raised these claims in his January 2022 Rule 26(B) application

to reopen. Doc. 7-2, at 426–27. But any Rule 26(B) application was due 90 days

after the March 2018 Ohio court of appeals’ decision affirming Flenner’s

convictions. See Ohio App. R. 26(B)(1); Doc. 7-2, at 79. The Ohio court of

appeals denied as untimely Flenner’s Rule 26(B) application and commented

that it was “over three and one-half years” late. Id. at 451. So Flenner

procedurally defaulted ground three. See Parker v. Bagley, 543 F.3d 859, 861–

62 (6th Cir. 2008) (claims raised in a Rule 26(B) application that the Ohio court

of appeals rejects as untimely are procedurally defaulted); Monzo v. Edwards,

281 F.3d 568, 577–79 (6th Cir. 2002). Flenner contends that “[t]here is no

consistency in the application of App. R. 26(B)(1) and, as such, it cannot be

used to preclude the federal questions.” Doc. 20 at 4. But case law says

otherwise. See Parker, 543 F.3d at 861–62.

In April 2023, Flenner filed an untimely delayed application for

reconsideration, asking the Ohio court of appeals to reconsider its January

2022 decision overruling his Rule 26(B) application to reopen. Doc. 7-2, at 455–

57. He cited case law that, he believed, advanced his argument about the

timeliness of his Rule 26(B) application. Id. The Ohio court of appeals rejected

as untimely Flenner’s delayed application, and explained:

Appellant argues that [State v.] Bethel, [192 N.E.3d

470 (Ohio 2022)], warrants reconsideration of our

denial of his Delayed Application for Reopening

because the Ohio Supreme Court recently held that

there is no “reasonable time” requirement to file a

motion for new trial. Id. at ¶51–58. However, Bethel

dealt with the timeliness of a motion for a new trial,

not a delayed application for reopening of a direct

appeal under App. R. 26(B). Bethel at ¶48. This case

is not on point and does not demonstrate any obvious

error in our judgment denying his Delayed

Application for Reopening his direct appeal.

Id. at 482–83.8 So Flenner’s untimely delayed application for reconsideration

does not save from procedural default ground three. See Maupin, 785 F.2d at

138; see also Ysreal, 2014 WL 7185264, at *9; Shephard, 2011 WL 3664442, at

*13. And Flenner hasn’t shown cause, prejudice, or actual innocence to

overcome the procedural bar.

4. A portion of ground four is procedurally defaulted and the remainder

is not cognizable and fails on the merits.

In ground four, Flenner argues that trial counsel was ineffective for

failing to: call a clinical expert witness; “object to the prosecution’s

presentation of false, tainted evidence”; move for dismissal based on a violation

8 The Bethel court evaluated Ohio Criminal Rule 33(B), which “does not

establish a time frame in which a defendant must seek leave to file a motion

for a new trial based on the discovery of new evidence.” 192 N.E.3d at 483. Ohio

Appellate Rule 26(B), on the other hand, expressly establishes a time-frame in

which a defendant must file an application to reopen. See Ohio App. R.

26(B)(1).

of Flenner’s right to a speedy trial, and “created a structure where [Flenner]

was denied any defense, even that of an affirmative defense.” Doc. 1, at 10.

4.1 The “false, tainted evidence” and speedy trial sub-claims are

procedurally defaulted.

Although Flenner raised ineffective-assistance-of-trial-counsel claims in

his postconviction petition, he didn’t cite the failure to object to “false, tainted

evidence” or a speedy trial violation as reasons that he believed counsel was

ineffective. See Doc. 7-2, at 127 (postconviction petition); 216–24 (appellate

brief). So Flenner has not fairly presented these claims, and they are

procedurally defaulted. See Wong v. Money, 142 F.3d 313, 321–22 (6th Cir.

1998) (ineffective-assistance-of-counsel claim based on different reasons than

those alleged in state court is procedurally defaulted; “[t]his circuit has held

that the doctrine of exhaustion requires that a claim be presented to the state

courts under the same theory in which it is later presented in federal court”).

Flenner argues that these claims were raised in his Rule 26(B)

application to reopen.9 Doc. 15, at 3. But Flenner’s Rule 26(B) application to

reopen raised ineffective-assistance-of-appellate-counsel claims, not

ineffective-assistance-of-trial-counsel claims. Doc. 7-2, at 426–27. “[B]ringing

an ineffective assistance claim in state court based on counsel’s failure to raise

an underlying claim does not preserve the underlying claim for federal habeas

9 In his traverse to the Warden’s Supplemental Return, Flenner “concedes

that the pertinent claim here is the failure to call an expert witness to admit

medical records.” Doc. 20, at 5.

review because ‘the two claims are analytically distinct.’” Davie v. Mitchell, 547

F.3d 297, 312 (6th Cir. 2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th

Cir. 2005)). And Flenner’s Rule 26(B) application to reopen was rejected as

untimely, so any ineffective-assistance-of-appellate-counsel claim is itself

procedurally defaulted and could not serve as cause to excuse a procedural

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

assistance of appellate counsel can serve as cause to excuse a procedural

default, but only if the ineffective-assistance-of-appellate-counsel claim is not

itself procedurally defaulted and the court finds that appellate counsel was

constitutionally ineffective).

4.2 Failure to call a “clinical expert witness” that “created a

structure where [Flenner] was denied any defense, even that of an

affirmative defense,” is not cognizable and fail on the merits.

In his post-conviction petition, Flenner alleged that trial counsel was

ineffective for not hiring an expert “to conduct a competency hearing on the

state’s witness.” Doc. 7-2, at 127. The trial court rejected his claim, finding that

it was barred by res judicata, and that it also failed on the merits. Id. at 149.

As for the merits, the trial court explained that:

4. The victim in this case, Lisa Prater, is a middle

aged woman. Consequently, she was presumed

competent to testify. Nothing occurred before,

during, or after trial that indicates that Ms. Prater

was incapable of correctly stating or recalling the

matters to which she testified. The Court is further

satisfied that Ms. Prater fully understood the nature

and obligations of the oath which was administered.

5. The issue of Ms. Prater’s competency was never

raised, by anyone, prior to the instant Motion.

6. The instant petition, lack of supporting affidavits,

zero documentary evidence, and the trial record as a

whole, do not demonstrate sufficient operative facts

to establish substantive grounds for relief.

Doc. 7-2, at 149–150. When Flenner appealed, he expanded his claim. He

alleged that:

1. The trial court abused its discretion when [it]

disposed of appellant’s postconviction petition based

on an unreasonable determination of the facts in

light of the evidence presented at trial.

2. mis-application of res judicata.

3. Ineffective Assistance of Trial Counsel. Trial

counsel failed to call a clinical expert witness: the

record reflects that throughout the trial a major

issue was evident regarding Ms. Prater’s

competence; in reference to her being diagnosed with

schizoeffective disorder. The issue was so obvious

and significant that it effectuated multiple side bars.

4. Compulsory Process. In appellants original (PCR)

he raises a colorable claim for due process violations.

Its clear that trial counsel was privy to the fact of

Ms. Prater’s mental disorder and through the

proceedings the prosecutor and the judge did

everything in their power to keep this crucial factor

concealed. By doing so all parties created a

structu[r]al erosion that can only be cured by a new

trial.

Id. at 216, 221–23.

The Ohio court of appeals consolidated as related Flenner’s claims, Doc.

7-2, at 373, and rejected them as follows:

{¶5} “Any person who has been convicted of a

criminal offense * * * and who claims that there was

such a denial or infringement of the person’s rights

as to render the judgment void or voidable under the

Ohio Constitution or the Constitution of the United

States” “may file a postconviction relief petition in

the court that imposed sentence, stating the grounds

for relief relied upon, and asking the court to vacate

or set aside the judgment or sentence or to grant

other appropriate relief[.]” R.C. 2953.21(A)(1)(a)(i).

{¶6} “Before granting a hearing on a petition filed

under division (A)(1)(a)(i) * * * of this section, the

court shall determine whether there are substantive

grounds for relief.” (Emphasis added.) R.C.

2953.21(D). “In making such a determination, the

court shall consider, in addition to the petition, the

supporting affidavits, and the documentary

evidence, all the files and records pertaining to the

proceedings against the petitioner, including, but

not limited to, the indictment, the court’s journal

entries, the journalized records of the clerk of the

court, and the court reporter’s transcript.” Id. “If the

court dismisses the petition, it shall make and file

findings of fact and conclusions of law with respect

to such dismissal.” Id. “Unless the petition and the

files and records of the case show the petitioner is

not entitled to relief, the court shall proceed to a

prompt hearing on the issues even if a direct appeal

of the case is pending.” R.C. 2953.21(F).

{¶7} We review a trial court’s decision on a

postconviction petition for an abuse of discretion.

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 58. “[A]n abuse of discretion

is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’”” Ivancic v.

Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th

Dist.), quoting State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s

Law Dictionary 11 (8 Ed.2004). “‘Absent a showing

of abuse of discretion, a reviewing court will not

overrule the trial court’s finding on a petition for

postconviction relief which is supported by

competent and credible evidence.’” Gondor at ¶ 50,

quoting State v. Mitchell, 53 Ohio App.3d 117, 119,

559 N.E.2d 1370 (8th Dist.1988).

{¶8} In his petition, Flenner claimed he was denied

the effective assistance of counsel because his trial

counsel failed to bring forth expert testimony or

request a competency hearing on the state’s victim

witness, whom Flenner alleges suffers from

schizoaffective disorder.

{¶9} “Counsel’s performance will not be deemed

ineffective unless and until counsel’s performance is

proved to have fallen below an objective standard of

reasonable representation and, in addition,

prejudice arises from counsel’s performance.” State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph two of the syllabus. The defendant must

demonstrate that “counsel made errors so serious

that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment”

and “that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Unless a defendant makes both showings, it cannot

be said that the conviction * * * resulted from a

breakdown in the adversary process that renders the

result unreliable.” Id.

{¶10} “To warrant an evidentiary hearing in a

postconviction proceeding, a petitioner must submit

evidence outside the record that sufficiently

establishes that the petitioner is entitled to relief on

one or more asserted constitutional grounds.”

(Citations omitted.) State v. Broom, 146 Ohio St.3d

60, 2016-Ohio-1028, 51 N.E.3d 620, ¶29. “Where

ineffective assistance of counsel is alleged in a

petition for postconviction relief, the defendant, in

order to secure a hearing on his petition, must

proffer evidence which, if believed, would establish

not only that his trial counsel had substantially

violated at least one of a defense attorney’s essential

duties to his client but also that said violation was

prejudicial to the defendant.” (Citations omitted.)

State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169

(1982).

{¶11} Flenner presented his claim for ineffective

assistance of trial counsel as follows:

I did not get a fair trial and due process

because counsel did not bring forth

testimony from a psychiatrist or expert

to conduct a competency hearing on the

state’s witness. She is diagnosed with

schizoaffective disorder.

Exhibit 1, a definition of schizoaffective

disorder, symptoms of the illness,

treatment, and other related

conditions. I will show in her past

medical records where she has already

been diagnosed with this mental

illness. I will also show in the

transcripts where she states several

symptoms and that she belongs to

Coleman Behavioral and is under a

physician for care.

Evidence supporting this claim is not

attached because Petitioner needs the

assistance of an attorney, investigator,

psychologist and/or psychiatrist to

produce the evidence. (See Petitioner’s

Motions for Expert Assistance and for

Appointment of Counsel, filed with this

petition.)

{¶12} In support of his petition, Flenner attached

“Exhibit 1,” which is a handwritten four-page list,

without references or sources, of the symptoms,

diagnosis, and treatment of schizoaffective disorder.

Flenner also filed a motion for expert assistance

from a psychiatrist, in which he cites to multiple

Ohio cases where there was testimony that a witness

had schizoaffective disorder. Flenner then states

that the victim witness in his case exhibits the same

symptoms as those described.

{¶13} Flenner provides no support for trial counsel’s

alleged deficiency or prejudice resulting from trial

counsel’s performance. Rather, he offers nothing

more than his personal opinion that the victim’s trial

testimony is evidence that she suffers from a mental

illness. And, although he requested the trial court to

provide him with expert assistance, he is not entitled

to such assistance in postconviction proceedings.

State v. Jackson, 11th Dist. Trumbull No. 2004-T-

0089, 2006-Ohio-2651, ¶24 (“since a proceeding

under R.C. 2953.21 is considered civil, there is no

constitutional right to expert assistance”).

Accordingly, Flenner has failed to demonstrate

sufficient operative facts to establish substantive

grounds for relief. As this basis alone is sufficient to

affirm the trial court’s decision to dismiss the

petition without a hearing, we need not address

Flenner’s res judicata argument.

{¶14} Flenner’s assignments of error are without

merit. The trial court’s dismissal of Flenner’s

postconviction relief petition is affirmed.

State v. Flenner, No. 2022-T-0003, 2022 WL 3349242, at *1–3 (Ohio Ct. App.

August 15, 2022).

Flenner argues that the Ohio court of appeals misapplied the post-

conviction statute when it denied him a hearing. Doc. 20, at 5. But such a claim

is not cognizable because habeas corpus cannot be used to challenge errors or

deficiencies in state post-conviction proceedings. See Greer v. Mitchell, 264

F.3d 663, 681 (6th Cir. 2001); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).

That leaves Flenner’s claim that trial counsel was ineffective for failing

to call an expert witness. Doc. 1, at 10. A successful ineffective-assistance claim

requires a petitioner to demonstrate that: (1) “counsel’s performance was

deficient”; and (2) “the deficient performance prejudiced the defense.” Jones v.

Bradshaw, 46 F.4th 459, 487–88 (6th Cir. 2022) (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)). “The first prong is satisfied when a

petitioner ‘show[s] that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.’” Jones, 46 F.4th at 487 (quoting Strickland, 466 U.S. at 694).

“The second prong is satisfied when the petitioner ‘show[s] that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Jones, 46 F.4th at 487–88. “‘A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.’” Jones, 46 F.4th at 488 (quoting Strickland, 466 U.S. at 694). The

combined effect of Strickland and 28 U.S.C. § 2254(d) is “‘doubly deferential’”

review. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009)). “When 2254(d) applies, the question is

not whether counsel’s actions were reasonable,” but “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.”

Harrington, 562 U.S. at 105; Foust v. Houk, 655 F.3d 524, 533–34 (6th Cir.

2011). “Or, in more concrete terms, a federal court may grant relief only if every

‘“fairminded juris[t]”’ would agree that every reasonable lawyer would have

made a different decision.” Dunn v. Reeves, 594 U.S. 731, 739–40 (2021)

(quoting Harrington, 562 U.S. at 101).

Strickland commands that a court “must indulge [the] strong

presumption” that counsel “made all significant decisions in the exercise of

reasonable professional judgment.” Strickland, 466 U.S. at 689–90; Pinholster,

563 U.S. at 196 (“[t]he Court of Appeals was required not simply to ‘give [the]

attorneys the benefit of the doubt,’ but to affirmatively entertain the range of

possible ‘reasons Pinholster’s counsel may have had for proceeding as they

did’”) (citation omitted).

Here, the Ohio court of appeals recited the correct, Strickland standard.

Flenner, 2022 WL 3349242, at *2. Flenner hasn’t shown that the court’s

decision 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; see Dunn, 594 U.S. at 739 (“The

burden of rebutting this [Strickland and AEDPA] presumption” on a claim that

counsel should have hired an expert “‘rests squarely on the defendant,’ and ‘[i]t

should go without saying that the absence of evidence cannot overcome [it].’”)

(quoting Burt v. Titlow, 571 U.S. 12, 22–23 (2013)); see also Davis v. Carpenter,

798 F.3d 468, 473 (6th Cir. 2015) (“The Supreme Court has never reached the

specific question[] … [of] how hard” an attorney must try to obtain an expert).

Flenner’s ineffective-assistance claim fails on the merits.

4.3 Expanding the record

Flenner had asked the Court to expand the record to add “State’s Exhibit

#51,” which he says is the “[p]rior medical history” of the victim. Doc. 8, at 3. I

had denied his request, but stated that, “[i]f, on full petition review, Flenner’s

ineffective-assistance claim” for failing to call an expert in ground four “is not

procedurally defaulted, the Court will re-evaluate this request.” Doc. 17, at 2–

3. Because Flenner’s claim is not procedurally defaulted, I will re-evaluate his

request.

State’s Exhibit 51, the victim’s hospital exam record, was discussed at

trial, see Doc. 10-2, at 291, 309–13, 407–10, 441–44, 673, and admitted into

evidence, id. at 535–36. Ground four, on the other hand, is a post-conviction-

petition claim based on evidence outside the record. So Exhibit 51 is unrelated

to the question before this Court—whether the Ohio court of appeals

unreasonably rejected Flenner’s ineffective-assistance claim based on the

evidence outside the record that Flenner presented. See Rule 7 of the Rules

Governing Section 2254 Cases (a court “may direct the parties to expand the

record by submitting additional materials relating to the petition.”) (emphasis

added). Flenner’s request to expand the record is therefore denied. See, e.g.,

Brown v. Rapelje, No. 1:08-cv-151, 2010 WL 2490675, at *1 (W.D. Mich. June

16, 2010) (rejecting the petitioner’s request to expand the record; “[a]ssuming,

for the sake of argument only, that Petitioner can satisfy the requirements for

expanding the record, the document Petitioner seeks to include in the record is

not relevant to addressing the merits of his petition.”).

5. Ground five is procedurally defaulted.

In ground five, Flenner argues that his speedy trial rights were violated.

Doc. 1, at 12. Ground five is procedurally defaulted. Because this claim is based

on the trial court record, it should have been raised on direct appeal. See Buell

v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (“Ohio courts have consistently

held that claims that can be adjudicated based on facts in the record can only

be presented on direct appeal”) (citing State v. Lentz, 639 N.E.2d 784, 785 (Ohio

1994)). The Sixth Circuit “has held that this rule is regularly and consistently

applied by Ohio courts as required by the four-part Maupin test.” Id. Because

Flenner didn’t raise a speedy trial claim on direct appeal, his claim is

procedurally defaulted. See Buell, 274 F.3d at 349.

In his Ohio Appellate Rule 26(B) application to reopen, Flenner argued

that appellate counsel was ineffective for failing to raise, on direct appeal, a

speedy trial violation. Doc. 7-2, at 426–27. But “bringing an ineffective

assistance claim in state court based on counsel’s failure to raise an underlying

claim does not preserve the underlying claim for federal habeas review because

‘the two claims are analytically distinct.’” Davie, 547 F.3d at 312.

Moreover, Flenner’s Rule 26(B) application to reopen may not serve as

cause to excuse his procedural default of his speedy trial claim because the

Ohio court of appeals rejected as untimely his application. Doc. 7-2, at 451. So

Flenner’s ineffective-assistance-of-appellate-counsel claim is itself

procedurally defaulted. See Edwards, 529 U.S. at 451–53 (2000) (ineffective

assistance of appellate counsel can serve as cause to excuse a procedural

default, but only if the ineffective-assistance-of-appellate-counsel claim is not

itself procedurally defaulted and the court finds that appellate counsel was

constitutionally ineffective); Parker, 543 F.3d at 861–62 (claims raised in a

Rule 26(B) Application that the Ohio court of appeals rejected as untimely are

procedurally defaulted); Monzo v. Edwards, 281 F.3d 568, 577–79 (6th Cir.

2002). Flenner also failed to appeal the Ohio court of appeals’ decision to the

Ohio Supreme Court, so he procedurally defaulted his ineffective-assistance-

of-appellate-counsel claim in this way, too. See O’Sullivan, 526 U.S. at 845 (a

petitioner must present a claim to the state appellate court and the state

supreme court for discretionary review or it is procedurally defaulted).

Finally, Flenner’s delayed application for reconsideration of the Ohio

court of appeals’ rejection of his untimely Rule 26(B) application, Doc. 7-2, at

455–56, was itself rejected as untimely, id. at 482–83. So this filing doesn’t

excuse the procedural default of any ineffective-assistance-of-appellate-

counsel claim. Flenner contends that the court of appeals’ finding that his

application for reconsideration was time-barred was not “an adequate bar to

the federal question.” Doc. 20, at 5–6. He cites State v. Bethel, 192 N.E.3d 470

(Ohio 2022), Doc. 20, at 5, but, as explained above in ground three, Bethel does

not save Flenner’s application from procedural default.

Conclusion

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

denied.

Dated: December 3, 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).