Fields v. Davis

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KURTIS FIELDS, Case No. 1:23-cv-239

Petitioner, DISTRICT JUDGE

BRIDGET MEEHAN BRENNAN

vs.

MAGISTRATE JUDGE

WARDEN GEORGE A. FREDRICK, JAMES E. GRIMES JR.

Respondent.

REPORT AND

RECOMMENDATION

Petitioner Kurtis Fields filed a Petition under 28 U.S.C. § 2254 for a

Writ of Habeas Corpus. Doc. 1. Fields is currently in custody at the Trumbull

Correctional Institution serving a term of 34-years-to-life imposed by the

Cuyahoga County Court of Common Pleas in State v. Fields, Case No. CR-17-

620952-C. 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 Fields’s petition.

Summary of Facts

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

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

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

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

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

rebutting that presumption by clear and convincing evidence. Id.; Franklin v.

Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012).

The Ohio Court of Appeals, Eighth Appellate District, Cuyahoga

County, Ohio, summarized the evidence submitted at trial and the facts

underlying Fields’s convictions as follows:

{¶ 3} On February 26, 2015, Jasmine Mathis

(“Jasmine”) had a small gathering at her

apartment on W. 83rd Street in Cleveland. Tyrone

Rodgers (“Rodgers”), who was dating Jasmine’s

sister Jerica Mathis (“Jerica”), arrived at Jasmine’s

apartment, but after a few minutes Jasmine told

him to leave. Video obtained from a security

camera located in the first-floor hallway of the

building shows that Rodgers, Jasmine, and Jerica

went into the hallway of the apartment building.

Two males wearing hoodies arrived at the

apartment complex, and Rodgers let them into the

hallway through the security door. One of the

males gave a gun to the other male, who shot

Rodgers multiple times, and both men left the

building.

{¶ 4} Cleveland police officers respond to a call of

shots fired at the apartment complex. Rodgers was

lying on the stairs just inside the building. He was

bleeding and going in and out of consciousness.

Rodgers died that evening at MetroHealth Medical

Cetner as a result of multiple gunshot wounds.

{¶ 5} Cleveland police officer Vasile Nan spoke to

the residents of the apartment building and began

investigating the shooting. He learned that Rodgers

was visiting Jasmine’s apartment. He also learned

of the surveillance video, but because the two

suspects were wearing hoodies, it was hard to

identify them. In early March 2015, the police

released two still photographs from the

surveillance video, and the investigation led to the

names of numerous men. Ultimately, people from

the neighborhood identified Fields as the male who

shot Rodgers and Fields’s codefendant Terry

Thomas (“Thomas”) as the male who handed Fields

the gun.

{¶ 6} On September 8, 2017, Fields was indicted for

various offenses associate with the death of

Rodgers. On October 2, 2018, a jury found Fields

guilty of murder in violation of R.C. 2903.02(A);

murder in violation of R.C. 2903.02(B); felonious

assault in violation of R.C. 2903.11(A)(1); and

felonious assault in violation of R.C. 2903.11(A)(2),

all with one- and three-year firearm specifications.

On November 7, 2018, the court found Fields guilty

of having a weapon while under disability in

violation of R.C. 2923.13(A)(2) and (3) as well as

notice of prior conviction and repeat violent

offender specifications. That same day, the court

sentenced Fields to 34-years-to-life in prison. It is

from these convictions and prison sentence that

Fields appeals.

State v. Fields, 2020-Ohio-4740, 2020 WL 5847162, at *1 (Ohio Ct. App.

October 1, 2020).

Procedural Background

Trial Court Proceedings

In September 2017, a Cuyahoga County grand jury issued an

indictment charging Fields with: Aggravated Murder with a firearm

specifications charge, in violation of Ohio Revised Code § 2903.01(A); Murder

with a firearm specification, in violation Ohio Revised Code § 2903.02(B); two

Felonious Assault with firearm specifications charges, in violation of Ohio

Revised Code § 2903.11(A)(1)–(2); two Carrying a Concealed Weapon charges,

in violation of Ohio Revised Code § 2923.12(A)(2); Aggravated Murder with

firearm, prior conviction, and repeat-violent-offender specifications charges,

in violation of Ohio Revised Code. § 2903.01(A); Felonious Assault with

firearm, prior conviction, and repeat-violent-offender specifications charges,

in violation of Ohio Revised Code §§ 2903.11(A)(1)–(2); Having Weapons

Under Disability with a firearms specifications charge, in violation of Ohio

Revised Code § 2923.13(A)(2); Having Weapons Under Disability, in violation

of Ohio Revised Code § 2923.13(A)(3); Obstructing Justice, in violation of

Ohio Revised Code §2921.32(A)(5); and, Tampering With Evidence with a

firearm specification charge, in violation of Ohio Revised Code §

2921.12(A)(1). Doc. 13-1, at 6–15.

After filing a series of motions, see e.g., Doc. 13-1, at 18, 30, 55, and

waiving his right to a jury trial on the weapons-under-disability charges and

the prior conviction and repeat-violent-offender specifications, Fields

proceeded to a jury trial on the remaining charges. See id. at 59.

In October 2018, a jury found Fields guilty of two murder-with-

firearm-specification charges and two felonious-assault-with-firearm-

specification charges. Id. at 61. In November 2018, the trial court found

Fields guilty of two weapons-under-disability charges, the prior-conviction

and repeat-violent-offender specifications, and sentenced him to an aggregate

sentence of 34 years to life in prison. Id. at 62–64.

Direct Appeal

Fields, represented by counsel, timely appealed to Ohio’s Eighth

District Court of Appeals. Doc. 13-1, at 81; see also id. at 65–80 (various

motions appointing and withdrawing various appellate counsel

appointments). Fields presented the following three assignments of error:

1. The convictions were against the manifest

weight of the evidence.

2. Appellant’s sentence is contrary to law and

the record does not support the imposition of

maximum consecutive sentences.

3. Mr. Fields was denied the effective

assistance of counsel.

Doc. 13-1, at 90.

The State filed a responsive brief. Id. at 110–41. In October 2020, the

court of appeals affirmed the trial court’s judgment. Id. at 142–64; Fields,

2020 WL 5847162.

Fields, through counsel, appealed to the Ohio Supreme Court. Doc. 13-

1, at 165. Fields asserted two propositions of law:

1. A defendant does not receive the effective

assistance of counsel where trial counsel fails

to move for the recusal of the trial court after

an ex parte communications.

2. A defendant does not receive the effective

assistance of counsel where trial counsel fails

to object to improper witness testimony as

the witness has not been tendered as an

expert.

Id. at 169.

The State waived its opportunity to respond. Id. at 183. In February

2021, the Ohio Supreme Court declined under its rule of practice 7.08(B)(4) to

accept jurisdiction over Fields’s appeal. Id. at 184.

Application to Reopen Direct Appeal

In January 2021, Fields filed a pro se application under Ohio Appellate

Rule 26(B) to reopen his direct appeal alleging ineffective assistance of

appellate counsel.1 Doc. 13-1, at 185–217. Later that same month, the court

of appeals denied his Rule 26(B) application as untimely. Id. at 218–22.

In February 2021, Fields filed a motion requesting he be given proper

notice of the court of appeals decision denying his Rule 26(B) application. Id.

at 222. The court of appeals granted Fields’s motion for proper notice to the

extent that it ordered the clerk of court to send a copy of the court’s order

denying his Rule 26(B) application and reinstated his Rule 26(B) application

to allow the State an opportunity to file a response. Id. at 232. The State

responded to Fields’s Rule 26(B) application, id. at 233, and Fields field a

reply, id. at 244. In December 2021, the court of appeals denied Fields’s Rule

26(B) application. Id. at 248.

In January 2022, Fields appealed the denial of his Rule 26(B)

application to Ohio Supreme Court. See Doc. 13-1, at 256. Fields asserted one

proposition of law in support of his appeal:

1 Rule 26(B) provides defendants with an avenue to reopen an appeal on

the basis of ineffective assistance of appellate counsel. See Lopez v. Wilson,

426 F.3d 339, 340 (6th Cir. 2005) (en banc).

Appellant was denied due process of law in

violation of the Sixth and Fourteenth Amendments

when he was denied the effective assistance of

appellate counsel when counsel failed to argue that

trial counsel was ineffective for not challenging the

lead detective’s false testimony that he witnesses

appellate sign documents with his left hand, which

was material to the case as the perpetrator of the

crime was presumed to be left-handed and that

counsel was ineffective for failing to move for a

mistrial.

Id. at 259.

The State waived its opportunity to respond. Doc. 13-1, at 279. In

March 2022, the Ohio Supreme Court declined to accept jurisdiction over

Fields’s appeal under Ohio S. Ct. Prac. R. 7.08(B)(4). Id. at 280.

Petition for Post-Conviction Relief

In January 2022, Fields filed a petition for post-conviction relief to

vacate or set aside judgment of conviction or sentence. Doc. 13-1, at 282.

Fields asserted the following three claims:

1. Petitioner was denied the effective

assistance of counsel due to his counsel’s

failure to properly and thoroughly cross-

examine the lead detective in this matter,

Detective Border.

2. The State of Ohio failed to provide trial

counsel, during discovery, copies of the

documents Petitioner had allegedly signed,

in violation of Petitioner’s rights to

Compulsory Process and Confrontation of

Adverse Witnesses as provided by the Sixth

Amendment to the United States

Constitution and Section 10, Article 1 of the

Ohio Constitution as well as his Due Process

rights to a fair trial as guaranteed by the

Fifth and Fourteenth Amendments to the

United States Constitution.

3. Petitioner was denied the effective

assistance of counsel when his counsel failed

to move the trial court to reopen the matter

between verdict and sentencing, and hear

further evidence upon the reveal of jail calls

from co-defendant and State’s witness, Terry

Thomas, wherein Thomas indicated that he

“wanted to make things right.”

Doc. 13-1, at 284–86.

The State filed a motion for leave to file an instanter motion to dismiss

Fields’s petition, a proposed motion to dismiss, and proposed findings of fact

and conclusions of law. See Doc. 13-1, at 303–58. The trial court granted the

State’s motion for leave, id. at 358, and the State filed an updated proposed

findings of fact and conclusions of law, id. at 361–87.

In February 2023, Fields filed a motion for leave to file an amended

petition for post-conviction relief, Doc. 13-1, at 388, which the state opposed,

id. at 391. In March 2023, without waiting for trial court to rule on his

motion for leave, Fields filed an amended petition for post-conviction relief.

Id. at 394. In April 2023, the trial court denied Fields’s petition for post-

conviction relief. Id. at 409.

In July 2023, Fields, acting pro se, appealed to the court of appeals the

trial court’s denial of his petition for post-conviction relief. Doc. 13-1, at 442.

He asserted the following five assignments of error:

1. The trial court erred, denying appellant due

process under the Ohio and U.S.

constitutions, denied fundamental fairness

and abused its discretion when it denied

appellant's postconviction petition on the

grounds of res judicata when the evidence at

issue was dehors the record and the

unsupported claim that appellant waived the

issue.

2. The trial court erred, denying appellant due

process under the Ohio and U.S.

constitutions, denied fundamental fairness

and abused its discretion when it denied

appellant's claims of constitutional violations

of compulsory process, confrontation and

those as set forth in Brady and its progeny.

3. The trial court erred, denying appellant due

process under the Ohio and U.S.

constitutions, denied fundamental fairness

and abused its discretion when it denied

appellant's claim of ineffective assistance of

counsel based on evidence dehors the record.

4. The trial court erred, denying appellant due

process under the Ohio and U.S.

constitutions, denied fundamental fairness

and abused its discretion when it denied

appellant's postconviction petition without

an evidentiary hearing.

5. The trial court erred, denying appellant due

process under the Ohio and U.S.

constitutions, denied fundamental fairness

and abused its discretion when it denied

appellant's claim regarding the phone

records of Terry Thomas.

Doc. 13-1, at 446.

The State responded, id. at 492, and Fields filed a reply, id. at 525. In

December 2023, the court of appeals denied Fields’s claims on appeal under

Ohio’s res judicata doctrine. Id. at 530; State v. Fields, 2023-Ohio-4543, 2023

WL 8643539 (Ohio Ct. App. Dec. 14, 2023).

In January 2024, Fields filed an appeal to the Ohio Supreme Court

raising the following four propositions of law:

1. A trial court errs, denies constitutional due

process and fundamental fairness and

abuses its discretion when it denies a

postconviction petition on the grounds of res

judicata when the evidence at issue is dehors

the record and the claim is unsupported that

appellant waived the issue.

2. A trial court errs, denying constitutional due

process and fundamental fairness and

abuses its discretion when claims of

constitutional violations of compulsory

process, confrontation and those as set forth

in brady and its progeny.

3. A trial court errs, denying constitutional due

process and fundamental fairness and

abuses its discretion when it denies a claim

of ineffective assistance of counsel based on

evidence dehors the record.

4. A trial court errs, denies due process and

fundamental fairness and abuses its

discretion when it denies a petition without

an evidentiary hearing when the evidence at

issue has yet to be produced by the state.

Doc. 13-1, at 543.

The State waived its opportunity to respond. Id. at 570. In March 2024,

the Ohio Supreme Court declined to accept jurisdiction of Fields’s appeal. Id.

at 571.

Federal Habeas Corpus Petition

In January 2023, Fields filed a petition under 28 U.S.C. § 2254 for a

writ of habeas corpus. Doc. 1. In his petition he raises the following four

grounds for relief:2

GROUND ONE: Petitioner was denied the

effective assistance of counsel in violation of the

Sixth and Fourteenth Amendments to the U.S.

Constitution when trial counsel failed to move for

recusal of the trial court after an ex parte

communication with two adverse parties regarding

issues material to the Petitioner’s defense.

GROUND TWO: Petitioner was denied the

effective assistance of counsel in violation of the

Sixth and Fourteenth Amendments to the U.S.

Constitution when trial counsel failed to object to

improper witness testimony as the witness was not

tendered as an expert.

GROUND THREE: Petitioner was denied due

process of law in violation of the Sixth and

Fourteenth Amendments when he was denied the

effective assistance of appellate counsel when

counsel failed to argue that trial counsel was

ineffective for not challenging the lead detective’s

false testimony that he witnessed Appellant sign

documents with his left hand, which was material

to the case as the perpetrator of the crime was

assumed to be left-handed and that counsel was

ineffective for failing to move for a mistrial.

GROUND FOUR: Petitioner’s Due Process Rights

as guaranteed by the U.S. Constitution were

violated when the State failed to provide

documents that the Petitioner was supposed to

have signed in the presence of the State’s detective.

The failure to provide the fact that there were no

documents signed by the Petitioner and

2 Given their length, I have not reproduced Fields’s supporting facts.

misrepresent this fact on the stand was a violation

of federal law pursuant to the Supreme Court’s

decisions in California v. Trombetta, 467 U.S. 479,

Brady v. Maryland, 373 U.S. 83, and Giglio v.

United States, 405 U.S. 150.

See Doc. 1, at 5–9. In November 2024, the Warden filed his return. Doc. 13.

Fields did not file a traverse.

Legal Standard

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

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

petitioners must meet certain procedural requirements to have their claims

reviewed in federal court. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d

426, 430 (6th Cir. 2006). “Procedural barriers, such as statutes of limitations

and rules concerning procedural default and exhaustion of remedies, operate

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

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

sometimes confused with exhaustion, exhaustion and procedural default are

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

Failure to exhaust applies when state remedies are “still available at the

time of the federal petition.” Id. (quoting Engle v. Isaac, 456 U.S. 107, 125

n.28 (1982)). But when “state court remedies are no longer available to a

petitioner because he or she failed to use them within the required time

period, procedural default and not exhaustion bars federal court review.” Id.

Exhaustion

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

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

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

exhaust his remedies, a state defendant with federal constitutional claims

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

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

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

798 (6th Cir. 2006). A constitutional claim for relief must be presented to the

state’s highest court to satisfy the fair presentation requirement. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Caver v. Straub, 349

F.3d 340, 345 (6th Cir. 2003). And a habeas petitioner must “present[] both

the factual and legal basis for [the] claims to the state courts.” Hanna v.

Ishee, 694 F.3d 596, 606 (6th Cir. 2012). This means that the “‘petitioner

must present his claim to the state courts as a federal constitutional issue—

not merely as an issue arising under state law.’” Williams, 460 F.3d at 806

(quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)). “‘[G]eneral

allegations of the denial of rights to a “fair trial” and “due process” do not

“fairly present claims” that specific constitutional rights were violated.’”

Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017) (quoting Slaughter v.

Parker, 450 F.3d 224, 236 (6th Cir. 2006)).

Procedural default

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

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

state procedural rules in presenting [the] claim to the appropriate state

court.” Id. In Maupin v. Smith, the Sixth Circuit directed courts to consider

four factors when determining whether a claim is barred on habeas corpus

review due to a petitioner’s failure to comply with a state procedural rule: (1)

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

and whether the petitioner failed to comply with that rule; (2) whether the

state court enforced the procedural rule; (3) whether the state procedural rule

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

review of the federal constitutional claim; and (4) whether the petitioner can

demonstrate cause for failing to follow the rule and actual prejudice by the

alleged constitutional error. 785 F.2d 135, 138 (6th Cir. 1986); see also

Williams, 460 F.3d at 806 (“If, due to the petitioner’s failure to comply with

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

and the state procedural rule is an independent and adequate grounds for

precluding relief, the claim is procedurally defaulted.”) (citing Maupin, 785

F.2d at 138).

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

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

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

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

Cir. 2015) (“When a petitioner has failed to fairly present … claims to the

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

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

(1996)). While the exhaustion requirement is technically satisfied in this

circumstance because state remedies are no longer available to the petitioner,

see Coleman v. Thompson, 501 U.S. 722, 732 (1991), a petitioner’s failure to

have the federal claims considered in the state courts constitutes a

procedural default of those claims that bars federal court review, Williams,

460 F.3d at 806.

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

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

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

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

Merits review

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

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

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

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

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

218, 231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner

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

“involved an unreasonable application of” that “clearly established”

precedent. 28 U.S.C. § 2254(d)(1); see Fields, 86 F.4th at 232.

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

state’s court’s adjudication “resulted in a decision that was based on an

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

the State court proceeding.” 28 U.S.C. § 2254(d)(2).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

court is not required to cite Supreme Court precedent or reflect an

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

the result of the state-court decision contradicts” such precedent. Early v.

Packer, 537 U.S. 3, 8 (2002); see Lopez v. Wilson, 426 F.3d 339, 358 (6th Cir.

2005). If the Supreme Court has not addressed the petitioner’s specific

claims, a reviewing district court cannot find that a state court acted contrary

to, or unreasonably applied, Supreme Court precedent or clearly established

federal law. Carey v. Musladin, 549 U.S. 70, 77 (2006); see White, 572 U.S. at

426 (“Section 2254(d)(1) provides a remedy for instances in which a state

court unreasonably applies this Court’s precedent; it does not require state

courts to extend that precedent or license federal courts to treat the failure to

do so as error.”).

In determining whether the state court’s decision involved an

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

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

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

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

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

652, 664 (2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011).

“[A] state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

Ground One is Meritless

In his Ground One claim, Fields argues that his trial counsel was

ineffective for failing to move for recusal of the trial court after an alleged ex

parte communication between the State, the trial court, and Terry Thomas,

who was Fields’s co-defendant. Doc. 1, at 5–6.

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 689–690;

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).

Fields presented his Ground One argument on direct appeal, Doc. 13-1,

at 105–107, and the court of appeals issued a decision on the merits, id. at

142–64. The combined effect of the court of appeals’ Strickland analysis and

this Court’s review under Section 2254(d) is a high hurdle for Fields to

overcome. He does not clear that hurdle.

For starters, Fields makes no argument that the court of appeals’

decision was contrary to or involved an unreasonable application of

Strickland or any other relevant Supreme Court precedent. See Doc. 1, 5–6;

see also 28 U.S.C. § 2254(d)(1). And he makes no argument that the court of

appeals’ decision involved an “unreasonable application of the facts.” See Doc.

1, 5–6; see also 28 U.S.C. § 2254(d)(2). These requirements in Section 2254(d)

are notably not mere suggestions that a court can simply ignore. See

Blackmon v. Booker, 696 F.3d 536, 557 (6th Cir. 2012) (chiding a district

court for “ignor[ing] the myriad of limitations that § 2254(d)(1) imposed on its

review”). Rather section 2254(d) places “a heavy burden for a petitioner to

overcome.” Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir. 2011) (emphasis

added).

Instead of trying to meet his burden Fields simply repeats the

arguments previously made to and rejected by the court of appeals on direct

appeal. Compare Doc. 13-1, at 105–107 (Fields’s brief to the court of appeals),

with Doc. 1, at 5–6 (Fields’s federal habeas corpus petition). By merely

reiterating his argument that trial counsel should have moved for recusal

without mentioning the court of appeals’ decision, which rejected that same

argument, Fields’s fails to overcome the deference this Court owes to the

court of appeals decision. See 28 U.S.C. § 2254(d).

This is doubly important in Fields’s case because the court of appeals

found that there was no evidence that “substantive matters regarding

Fields’s case were discussed” during any conversation that the trial court had

with other parties. Fields, 2020 WL 5847162, at *9. And without a factual

basis for a motion to recuse, Fields’s counsel could not have been ineffective

for not bringing the motion. See Kelly v. Lazaroff, 846 F.3d 819, 831 (6th Cir.

2017) (“counsel cannot be considered ineffective for failing to raise a meritless

claim”).

Fields’s Ground One claim is thus meritless for purposes of federal

habeas corpus review.

Additionally, the legal question underlying Fields’ first ground—

whether a request to disqualify the trial court should have been made—is not

cognizable because it involved a question of state law. When he argued that

his counsel was ineffective for failing to seek the trial court’s disqualification,

Fields relied on Ohio precedent concerning the relevant state test for raising

disqualification. See Doc. 13-1, at 105. And when it evaluated Fields’s

ineffective assistance claim on direct appeal, the state court applied the

relevant two-prong state-law test to assess whether the alleged ex parte

communication constituted grounds for disqualification. See 2020 WL

5847162, at *8. Indeed, the court of appeals cited an Ohio case on which

Fields relied. Compare id. (citing State v. Nawash (In re Calabrese), 798

N.E.2d 10 (Ohio 2002), with Doc. 13-1, at 105 (same). Under that test, the

court of appeals found “no proof that the judge initiated the conversation or

that substantive matters regarding Fields’s case were discussed.” See 2020

WL 5847162, at *9. In other words, the court of appeals found that Fields had

not met Ohio’s two-prong test such that the trial court would not have been

disqualified even if the issue had been raised.

The fact that the state court of appeals resolved Fields’s ineffective

assistance claim based on state law matters here. In conducting habeas

review, this Court does not “reexamine state-court determinations on state-

law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see Lewis v. Jeffers,

497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for

errors of state law.”). Rather, this Court “is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States

alleged violations of state laws or rules.” Estelle, 502 U.S. at 68.

Fields’s Ground One claim fails and should be dismissed.

Ground Two is Meritless

In his Ground Two claim, Fields argues that his trial counsel was

ineffective for failing to object to allegedly improper witness testimony. Doc.

1, at 6–7. Specifically, Fields argues that his trial counsel should have, but

did not, object to the admission of expert testimony offered by a witness who

was not offered as an expert. Id. at 7.

As explained above, this Court applies a “doubly deferential” review to

ineffective assistance of counsel claims that were raised and resolved on

direct appeal. Pinholster, 563 U.S. at 190. This means that a federal court

reviewing a claim like Fields’s Ground Two claim will “grant relief only if

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

have made a different decision.” Dunn, 594 U.S. at 739–40 (quoting

Harrington, 562 U.S. at 101).

Here, the court of appeals found that Fields’s trial “counsel’s failure to

move to strike [the witness’s] testimony was not ineffective.” Fields, 2020 WL

5847162, at *10. In reaching this conclusion, the court of appeals noted that

Strickland requires a defendant to show that “that his or her attorney’s

performance was deficient and that the defendant was prejudiced by the

deficient performance.” Id. at *7. Applying this test, the court found that

Fields could not show his counsel’s failure to object prejudiced him. Id. at 9–

10. Specifically, the court of appeals found that trial counsel’s failure to object

was harmless because, even if counsel had objected, (1) the witness’s

testimony was relevant and met the requirement of rule 702 of Ohio’s rule of

evidence, and (2) the witness would have qualified as an expert under Ohio’s

rules of evidence. Id. at 9–10. “Indeed,” the court noted, the witness “ha[d]

testified as an expert forensic video specialist in multiple cases in the

Cuyahoga County Common Pleas Court.” Id. at 9–10.

For his part, Fields does not challenge the court of appeals’ conclusions

or argue that the state court unreasonably applied clearly established federal

law. As with Fields first ground, his failure to attempt to meet his burden

under 28 U.S.C. § 2254(d) necessarily means that he cannot carry that

burden. So Fields’s Ground Two claim should be rejected as meritless.

Additionally, the question underlying Fields’s Ground Two claim—the

admission of expert testimony under Ohio law—is not cognizable. In

determining that Fields suffered no prejudice, the court of appeals applied

Ohio’s rules of evidence and Ohio Supreme Court precedent interpreting

those rules. See Fields, 2020 WL 5847162, at *9–10. Appling Ohio Rule of

Evidence 702, the court of appeals found that the witness’s experience and

testimony would have met the requirements for expert testimony. Id. at *9–

10. This Court is not in a position to question the court of appeals application

of Ohio’s rules of evidence. See Mack v. Bradshaw, 88 F.4th 1147, 1162 (6th

Cir. 2023), cert. denied 145 S. Ct. 243 (2024).

Indeed, Fields provides no basis to believe that this Court could decide

whether the court of appeals correctly applied Ohio’s rules of evidence, let

alone an argument that the court of appeals misapplied those rule when it

evaluated his ineffective assistance claim. The Court should dismiss Fields’s

Ground Two claim.

Ground Three Claim is Meritless

In his Ground Three claim, Fields argues that his appellate counsel

was ineffective by not asserting a claim of ineffective assistance of trial

counsel. Doc. 1, at 8. In particular, Fields argues that his trial counsel should

have objected to testimony by a lead detective that he saw Fields sign

documents and saw that Fields was left-handed. Id. And, in turn, he says

that his appellate counsel was ineffective for not raising this issue on direct

appeal. Id.

The Strickland standard applies to ineffective-assistance-of-appellate-

counsel claims. Smith v. Robbins, 528 U.S. 259, 285 (2000). To meet that

standard, a petitioner must show that appellate counsel’s assistance was

objectively unreasonable and a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. “Counsel’s failure to raise an issue on appeal could only be ineffective

assistance if there is a reasonable probability that inclusion of the issue

would have changed the result of the appeal.” McFarland v. Yukins, 356 F.3d

688, 699 (6th Cir. 2004). Appellate counsel is neither obligated to advance

every possible argument on appeal, Jones v. Barnes, 463 U.S. 745, 750–54

(1983), nor is counsel ineffective for failing to raise an issue that lacks merit,

Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“[B]y definition, appellate

counsel cannot be ineffective for a failure to raise an issue that lacks merit”).

Fields first presented his Ground Three claim in a Rule 26(B)

application to reopen his direct appeal based on ineffective assistance of

appellate counsel. See Ohio App. R. 26(B). In resolving Fields’s argument,

the court of appeals found that Fields’s trial counsel appropriately exercised

counsel’s strategic judgment not to challenge the admissibility of the lead

detective’s testimony. Doc. 13–1, at 253–55. As the court noted, trial counsel

made the strategic decision to “not cross-examine the detective on this point”

because he feared that “he could be walking into a trap.” Id. at 254. And

under Ohio precedent, “‘[t]he extent and scope of cross-examination clearly

fall within the ambit of trial strategy, and debatable trial tactics do not

establish ineffective assistance of counsel.’” Id. (quoting State v. Leonard, 818

N.E.2d 229, 264 (Ohio). Further, there was no record basis for appellate

counsel to argue “direct perjury.” Id. at 255. So, even if appellate counsel had

raised a claim that trial counsel was ineffective, the claim would have been

meritless. Id. As a result, the court of appeals found that Fields’s appellate

counsel was not ineffective for exercising the professional judgment not to

raise that claim. Id. at 255.

Importantly, Fields makes no effort to challenge the court of appeals’

decision. Instead, he seems to view this Court as providing another level of

appellate review of his claims. But that is not this Court’s role; a federal

habeas court does not function as an additional state appellate court for

review of state-court decisions on state law or procedure. See Allen v. Morris,

845 F.2d 610, 614 (6th Cir. 1988); see also Burt v. Titlow, 571 U.S. 12, at 18–

19 (2013) (explaining a habeas court’s role under 28 U.S.C. § 2254)). So, to

the extent that Field simply attempts to obtain another round of review over

his ineffective-appellate-counsel claim, his claim fails.

In this instance, the combined effect of Strickland and 28 U.S.C. §

2254(d) create a “doubly differential” review that asks, “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential

standard.” Harrington, 562 U.S. at 105. The court of appeals found that

appellate counsel “properly decline[d] to raise [the] issue” that trial counsel

was ineffective by failing to challenge the admissibility of the lead detective’s

testimony because any such claim would have failed because trial counsel

made a strategic decision and because there was no record support for an

argument that the witness committed perjury. Doc. 13-1, at 254–55. Fields

does not argue that the court of appeals erred, let alone attempt to show that

“every ‘fair-minded jurist’ would agree that every reasonable lawyer would

have made a different decision.” Dunn, 594 U.S. at 739–40 (quoting

Harrington, 562 U.S. at 101). He presents no reason to question the

determination that, in light of trail counsel’s strategic decision, there was no

basis to raise an ineffective assistance claim. In fact, given the “strong

presumption of reasonableness” that attaches to counsel’s strategic decisions

that counsel made a strategic decisions—whether under federal or Ohio law,

see Hale v. Cool, 122 F.4th 637, 646 (6th Cir. 2024), Leonard, 818 N.E.2d at

264—it would be difficult to make such an argument.

Further, Fields presents nothing to support the idea that the court of

appeals unreasonably determined the facts when it held that the record

provided no support for an argument that the witness committed perjury.

This Court should thus defer to the court of appeals’ decision, 28 U.S.C. §

2254(d), and find Fields’s Ground Three argument meritless.

Ground Four is Procedurally Defaulted and Meritless

In his Ground Four claim Fields raises a due process claim that the

state failed to provide documents allegedly signed by him in the presence of

the detective who testified that he was left-handed. Doc. 1, at 9–10. In

particular, he argues that this failure violated Supreme Court precedent,

including Brady v. Maryland, in light of testimony that he signed documents

with his left hand when there were no documents produced to corroborate

those statements. Id at 9–10.

Fields did not raise this claim on direct appeal, see Doc. 13-1, at 90,

169, or in his Rule 26(B) application, see id., at 186. Instead, the first time

that Fields raised a Brady claim was in his petition for post-conviction relief.

Id. at 284–86.

To support his argument, Fields relied on portions of his trial

transcript in which his counsel raised the issue with the trial court. See id. at

292–97. As to this issue, the trial court denied Fields’s petition because the

basis for his claim was the trial transcript, which was available to him when

he filed his original appeal. Id. at 426. Because Fields could have raised the

issue on direct review, his claim was barred by Ohio’s doctrine of res judicata.

Id. at 425–26.

On appeal, the court of appeals noted that under Ohio’s res judicata

rule, “‘a final judgment of conviction bars a convicted defendant from raising

and litigating in any proceeding, except an appeal from that judgment, any

[claim] that was raised or could have been raised by the defendant at the trial

which resulted in that judgment of conviction or on an appeal from that

judgment.’” Id. at 536 (quoting State v. Perry, 226 N.E.2d 104, 108 (Ohio

1967)). As a result, a proper postconviction petition could raise only those

issues “that could not have been raised on direct appeal because the evidence

supporting such issues is outside the record.” Id. Based on these principles,

the court appeals concluded that res judicata barred Fields’s claim because

“the portions of the transcript” on which Fields relied “were available to him

at the time of his trial and at the time of his appeal.” Id.

Importantly, the Sixth Circuit has held that Ohio’s res judicata bar is

“actually” and “consistently” enforced by Ohio’s courts. Hoffner v. Bradshaw,

622 F.3d 487, 498 (6th Cir. 2010). It thus represents an adequate and

independent basis to foreclose federal habeas review of a constitutional issue.

See id.; Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001).

As a result, because the court of appeals enforced Ohio’s res judicata

bar as Fields’s Ground Four claim, the res judicata rule bars review of

Fields’s due process claim.

It is true that a habeas court can “consider the merits of procedurally

defaulted claims” if “the petitioner demonstrates cause for the default and

prejudice resulting therefrom, or that failing to review the claim would result

in a fundamental miscarriage of justice.” Williams, 460 F.3d at 805–06.

Fields, though, does not attempt to show cause or prejudice or that a

fundamental miscarriage of justice would result if his claim were not

considered. So there is no basis to excuse his default.

So, as with his other claims, Fields’s Ground Four claim should be

rejected as meritless.

Conclusion

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

dismissed.

Dated: February 19, 2025

/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).