Reynolds v. Smith

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISON

MAURICE REYNOLDS, ) CASE NO. 1:24-CV-1265

)

) JUDGE PATRICIA A. GAUGHAN

Petitioner,

)

) MAGISTRATE JUDGE

v.

) REUBEN J. SHEPERD

)

SHELBIE SMITH, WARDEN,

)

) REPORT AND RECOMMENDATION

Respondent, )

I. Introduction

On July 3, 2024, Petitioner Maurice Reynolds (“Reynolds”) filed a Petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF Doc. 1). Respondent Shelbie Smith, Warden,

filed her Return of Writ, the state court record, and the state trial court transcripts on December

23, 2024. (ECF Docs. 7, 7-1, 8). On January 31, 2025, Reynolds filed his Traverse. (ECF Doc.

10). Respondent did not reply. This matter is therefore ripe for review.

The District Court has jurisdiction over the Petition under § 2254(a). Reynolds originally

filed his Petition in the Southern District of Ohio, which transferred the case to this district on

July 24, 2024. (ECF Docs. 2, 3). On September 26, 2024, under Local Civil Rule 72.2, this

matter was referred to me to prepare a Report and Recommendation. (Non-document entry of

Sept. 26, 2024). For the reasons explained below, I recommend that the District Court deny

Grounds One and Three of Reynolds’s Petition as not cognizable and Ground Two as without

merit.

II. Factual Background

Ohio’s Eighth District Court of Appeals detailed the facts of the case on direct appeal.

These factual findings are presumed correct unless Reynolds rebuts this presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1). The Eighth District Court of Appeals

presented the facts as follows:

{¶ 2} On December 17, 2020, a Cuyahoga County Grand Jury indicted Reynolds

on two counts of rape in violation of R.C. 2907.02(A)(1)(b), with furthermore

clauses specifying that one victim was between the ages of ten and thirteen at the

time of the offense; one count of kidnapping in violation of R.C. 2905.01(A)(4);

two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4); two

counts of endangering children in violation of R.C. 2919.22(B)(1); two counts of

endangering children in violation of R.C. 2919.22(A); two counts of gross sexual

imposition in violation of R.C. 2907.05(A)(5); and two counts of gross sexual

imposition in violation of R.C. 2907.05(A)(1). The counts also carried a variety of

specifications.

{¶ 3} Reynolds initially pleaded not guilty to the indictment.

{¶ 4} On July 22, 2021, the court held a change-of-plea hearing. The assistant

prosecuting attorney placed the terms of the plea agreement on the record as

follows: Reynolds would plead guilty to one count of sexual battery in violation of

R.C. 2907.03(A)(5), a felony of the second degree; one count of abduction in

violation of R.C. 2905.02(A)(2), a felony of the third degree; two counts of gross

sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree;

one count of endangering children in violation of R.C. 2919.22(A), a felony of the

third degree; and two counts of gross sexual imposition in violation of R.C.

2907.05(A)(5), felonies of the fourth degree. The remaining counts and all

specifications would be dismissed as part of the plea agreement.

{¶ 5} With respect to merger, the following exchange took place:

ASSISTANT PROSECUTING ATTORNEY (“APA”): Part of the plea is

that they’re non-allied offenses of similar import, but if the Court at

sentencing decides that things do merge, you do have the option to decide

that.

THE COURT: The state and defense will argue that at the time of

sentencing.

With respect to sexual offender registration, the assistant prosecuting attorney

stated that some of the offenses were Tier II offenses, but those would be

“overtaken” by the sexual battery offense, which was a Tier III offense. Defense

counsel confirmed that this was his understanding of the plea agreement, and the

court proceeded to engage Reynolds in a Crim.R. 11 plea colloquy.

{¶ 6} As part of the plea colloquy, the court outlined the maximum potential

penalties Reynolds faced as follows:

THE COURT: And I believe it’s your intention to plead guilty to Count 1

as it’s amended, amending it to a felony of the second degree, sexual

battery, in violation of 2907.03(A)(5). That would mean that you would be

a Tier III mandatory registrant, and that would mean that you would—and

I’ll go through that with you, but that means that you would have to register

for your lifetime with in-person verification every 90 days. And do you

understand that?

REYNOLDS: Yes.

THE COURT: As a Tier III registrant?

REYNOLDS: Yes.

* * *

THE COURT: And under Counts 4 and 5, you would be a Tier II offender,

which means that you would have to register for a period of 25 years with

in-person verification every 180 days; however, since Count 1 is a Tier III,

that is for your lifetime. So do you understand that?

REYNOLDS: Yes.

The trial court, satisfied that Reynolds was entering a knowing, intelligent, and

voluntary plea, accepted Reynolds’s guilty plea to the offenses outlined above. The

court referred Reynolds to the probation department for preparation of a

presentence-investigation report.

{¶ 7} On August 12, 2021, the court held a sentencing hearing. With respect to

merger, the following exchange took place:

THE COURT: All right. And before we move forward, I do believe that at

the time of the plea the State and defense agreed to argue the issue of

merger.

APA: Correct, Your Honor. The plea was that the items that Mr. Reynolds

pled guilty to did not merge, but we did agree that we would argue that, yes.

THE COURT: Do you wish to argue that now?

DEFENSE COUNSEL: Very briefly, Your Honor, GSI and sexual battery

are the same act. And the endangering is the same act. And the abduction is

the same act. One mens rea, one culpable mental state, one incident, one

victim. Those all merge from my perspective.

The second case, Your Honor, is a GSI and endangering for the second

victim. Those would merge together, but not merge with the other victim, if

you follow what I’m saying.

THE COURT: So there’s Count 4 and 5 are gross sexual imposition, and

Counts 8 and 10 are gross sexual imposition.

DEFENSE COUNSEL: Right. All the counts for the same victim from my

perspective would merge, but they don’t merge with the other victim

because there’s two separate victims.

THE COURT: So Count 1, are you suggesting would merge with one of the

gross sexual imposition counts.

DEFENSE COUNSEL: That’s correct. And abduction is part and parcel,

it’s no different than a rape and kidnapping. This was not where somebody

was moved from one place to the other. You can’t commit the act without

holding the person down. That’s why they always merge unless the person

is in a trunk and take them to another location. It’s no different than a—

abduction is just a lesser included of kidnapping, and kidnappings always

merge with the rape unless there’s a separate animus. So that seems like a

throw away it’s pretty clear.

GSIs are a lesser included of the sexual battery. The endangering children,

I understand that [the prosecutor] may say they don’t merge because it’s

alleged that my client permitted the two children to consume drugs and

alcohol. So if that’s the endangering, then perhaps they don’t merge. But if

the endangering is having a sex act, then I think they would merge. And

then GSIs I think all merge as to each victim.

THE COURT: So then under your argument, the defendant would only be

sentenced on two counts?

DEFENSE COUNSEL: That’s correct.

THE COURT: Potentially.

DEFENSE COUNSEL: Yes.

THE COURT: Then the State would elect which counts?

* * *

APA: Your Honor, just for clarity, Counts 1, 3, 4, and 5 are victim 1, so to

speak. Count 7 is both victims. And Counts 8 and 10 are victim 2. All right.

So Count 1, the sexual battery, for sexual conduct, the testimony would have

been from that victim of oral sex, of vaginal sex, of other things such as that

nature. So that’s why we would argue sexual battery encompasses that kind

of sexual conduct, in loco parentis, this is the victim’s grandfather.

The abduction, restrained the liberty of the victim. The victim would have

testified that she tried to leave the bedroom and he did not let her leave, kind

of pushed her back down, put his hand over her mouth, and forced her to be

quiet. This is all separate conduct we’re arguing.

Counts 4 and 5 is GSI, touching vagina, Count 5, GSI touching breast. The

testimony and the evidence would have been that all of these things

happened separately, it all wasn’t at the same time. That he took her into the

bedroom, touched her vagina, touched her breasts, Count 4 and 5, separate

things. And then it was oral sex and vaginal penetration, which would be

Count 1, the sexual battery.

Like I said, the abduction would have been covering her mouth, kind of

holding her down, not letting her speak and call out to her sister, who was

also in the other room, and restraining her liberty in that sense.

Count 7, Your Honor, we amended to include both victims, endangering

children. That would be to evidence that this defendant gave both his

granddaughters alcohol and marijuana and then their drug labs came back.

They also had amphetamines in their system, and one of the girls actually

also had cocaine in her system. So that endangering is completely separate

for all of these substances in their system.

Counts 8 and 10 is for the second victim, the other granddaughter, and the

evidence would have been that he separately touched her vagina and then

separately touched her breasts. So we would argue that none of these counts

merge.

{¶ 8} After hearing the parties’ arguments as to merger, the court found that the

gross sexual imposition and sexual battery counts were not allied offenses and

therefore would not merge for sentencing. The court further found that the

abduction occurred simultaneously with the sexual battery and therefore those

offenses would merge; the state elected sexual battery for purposes of sentencing.

{¶ 9} Defense counsel, Reynolds, and the assistant prosecuting attorney then

addressed the court. The assistant prosecuting attorney also read a letter from the

mother of one of the victims. The court ultimately sentenced Reynolds to a total

aggregate term of 12 to 15 and one-half years. The court also imposed five years of

postrelease control and classified Reynolds as a Tier III sexual offender.

State v. Reynolds, No. 112139, 2023 WL 7041010, *1-3 (Ohio Ct. App. Oct. 26, 2023).

III. State Court History

I recount Reynolds’s state court procedural history below. (See also ECF Doc. 11).

A. State Conviction and Change of Plea

On December 17, 2020, the Cuyahoga County Grand Jury indicted Reynolds on thirteen

counts, including: Counts One and Two of rape, an unspecified felony, under Ohio Revised Code

§ 2907.02(A)(1)(b), with a Notice of Prior Conviction under O.R.C. § 2929.13(F)(6), and Repeat

Violent Offender (“RVO”) Specification under O.R.C. § 2941.149(A); Count Three of

kidnapping, a felony of the first degree, under O.R.C.§ 2905.01(A)(4), with an RVO

specification under O.R.C. § 2941.149(A), sexual motivation specification under O.R.C.

§ 2941.147(A), and sexually violent predator specification under O.R.C. § 2941.148(A); Counts

Four and Five of gross sexual imposition under O.R.C. § 2907.05(A)(4), a felony of the third

degree, both with sexually violent predator specifications under O.R.C. § 2941.148(A); Counts

Six and Twelve of endangering children, a felony of the second degree, under O.R.C. §

2919.22(B)(1), with a notice of prior conviction under O.R.C. § 2929.13(F)(6) and a RVO

specification under O.R.C. § 2941.149(A); Counts Seven and Thirteen of endangering children, a

felony of the third degree, under O.R.C. § 2919.22(A), with a notice of prior conviction under

O.R.C. § 2929.13(F)(6) and a RVO specification under O.R.C. § 2941.149(A); Counts Eight,

Nine, Ten, and Eleven of gross sexual imposition, felonies of the fourth degree, under O.R.C.

§§ 2097.05(A)(1) and (A)(5), all with sexually violent predator specifications under O.R.C.

§ 2941.148(A). (ECF Doc. 7-1, pp. 3-13).

On December 22, 2020, Reynolds pled not guilty to the indictment. (Id. at p. 14). On

March 24, 2021, Reynolds waived his speedy trial rights from March 24, 2021 through July 19,

2021 in writing and in open court. (Id. at pp. 15-16).

On July 22, 2021, Reynolds changed his plea to guilty in exchange for reduced charges:

Count One was amended to sexual battery, a second degree felony, under O.R.C.

§ 2907.03(A)(5) and all related specifications were removed; Count Three was amended to

abduction, a felony of the third degree, under O.R.C. § 2905.02(A)(2) and all related

specifications were removed; Counts Fourt, Five, and Seven had the specifications removed;

Count Seven was amended to include the victim from Count Eight. (Id. at p. 17). Counts Two,

Six, Nine, Eleven, Twelve, and Thirteen were nolled. (Id.). The state court accepted Reynolds’s

guilty plea. (Id.). The state court advised Reynolds of the Tier I sex offender classification as to

Counts Eight and Ten; Tier II sex offender classification as to Counts Four and Five; and Tier III

sex offender classification as to Count One. (Id.). He was also advised on the Reagan Tokes law

as it applied to Count One and advised that the sentence is a qualifying offense subject to an

indefinite sentence with a minimum and maximum term, as well as the maximum sentence that

could be imposed. (Id. at pp. 17-18). Reynolds’s defense counsel objected to the application of

the Reagan Tokes Law. (Id. at p. 18). Reynolds was also advised of the five-year mandatory post-

release control as to Counts One, Four, Five, Eight, and Ten. (Id.).

Sentencing was held on August 12, 2021. (Id. at pp. 19-22). The state court imposed a

minimum prison sentence of 12 years and a maximum sentence of 15 years, and 6 months on the

underlying offenses, given that the sentence on Count One was subject to the Reagan Tokes Law.

(Id. at p. 19). The court held a hearing on the issue of merger and found, over defense’s

objection, that Count Three merged into Count One, and that none of the other counts merged for

sentencing purposes. (Id.). The sentence was imposed as follows: Count One: 7-year prison term;

Count Three: merged into Count One; Count Four: 2-year prison term; Count Five: 2-year prison

term; Count Seven: 2-year prison term; Count Eight: 1-year prison term; and Count Ten: 1-year

prison term. (Id. at pp. 19-20). Counts Four and Five ran concurrent to each other; Counts Eight

and Ten ran concurrent to each other; Count One ran concurrently to Counts Four, Five, Seven,

Eight, and Ten. (Id. at p. 20). Reynolds received jail time credit of 247 days. (Id.). Reynolds was

advised of a three-year mandatory post-release control for Count Seven, and a five-year

mandatory post-release control for Counts One, Four, Five, Eight, and Ten. (Id.).

B. Direct Appeal

Reynolds moved for leave to file a delayed appeal in the Eighth District Court of Appeals

on November 18, 2022. (ECF Doc. 7-1, pp. 23-39). The court granted Reynolds leave to file his

appeal on December 5, 2022. (Id. at p. 40). Reynolds filed his appellant’s brief on March 24,

2023. (Id. at pp. 41-58). In it, he raised the next two assignments of error:

1. The trial court erred when it failed to merge Counts 1, 4 and 5. These were allied

offenses of similar import.

2. The trial court erred when it provided confusing and inconsistent advice on points

of law. These errors made Reynolds plea unknowing, involuntary, and

unintelligent.

(Id. at p. 46). The State replied on May 3, 2023. (Id. at pp. 59-73). On October 26, 2023, the

Eighth District Court of Appeals affirmed both assignments of error and affirmed the trial court

court’s judgment. (Id. at pp. 74-86; see also Reynolds, 2023 WL 7041010).

On December 6, 2023, Reynolds, now acting pro se, filed a timely notice of appeal in the

Ohio Supreme Court. (ECF Doc. 7-1, pp. 87-113). On February 20, 2024, the Ohio Supreme

Court declined to accept jurisdiction of the appeal under Supreme Court Practice Rule

7.08(B)(4). (Id. at p. 114; see also State v. Reynolds, 227 N.E.3d 1264 (Ohio 2024) (table)).

Reynolds filed no further appeals.

IV. Federal Habeas Corpus Petition

Reynolds brings three grounds for relief. (ECF Doc. 1).

I. The trial court erred when it failed to merge Counts 1, 4, and 5. These were

allied offenses of similar import.

Supporting Facts:

The incident took place on the same day with the same victim. The record

did not develop how far in time the sexual conduct was from the touching

of the breast and vagina.

II. The Petitioner’s guilty plea was not knowingly, voluntarily, or intelligently

give[n] where The trial court provided confusing and inconsistent advice on

points of law. These errors made Petitioner’s plea unknowing, involuntary,

and unintelligent.

Supporting Facts:

There were three instances where the trial court gave unintelligent advice

that no reasonable person could expect to understand, and as a result,

Petitioner would not have entered his guilty plea, under the totality of the

circumstances if he had been given accurate information[.]

III. The Court of Appeals violated Petitioner’s constitutional right to due

process and equal protection of the law where it treated petitioner differently

from others similarly situated individuals and failed to apply the law equally

in review of his allied offense of similar import issue, thereby treating him

differently in violation of the equal protection clause of the fourteenth

amendment.

Supporting Facts:

The state court failed to apply the allied offense of similar import law

equally to him as applied to other individuals.

(ECF Doc. 1, p. 7).

V. Federal Habeas Corpus Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-

132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), applies to Marshall’s petition for

writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “As amended by AEDPA, 28

U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ

of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

This is so because “[s]tate courts are adequate forums for the vindication of federal rights” and

AEDPA thus acts as a “formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). As such, AEDPA

“dictates a highly deferential standard for evaluating state-court rulings which demands that

state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)

(internal citation and quotation omitted).

Under 28 U.S.C. § 2254, federal courts may “entertain only those applications alleging

that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United

States’” and in most instances, federal courts may not grant habeas relief “unless . . . the

applicant has exhausted state remedies.” Cullen, 563 U.S. at 181, quoting 28 U.S.C. §§ 2254(a),

(b), (c). Further, if an application for writ of habeas corpus involves a claim that was

“adjudicated on the merits in State court proceedings,” the application shall not be granted . . .

unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100

(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the

petitioner. Cullen, 563 U.S. at 181.

First, clearly established federal law for purposes of AEDPA review includes “the

holdings, as opposed to dicta, of [U.S. Supreme Court] decisions.” Williams v. Taylor, 529 U.S.

362, 412 (2000). A state court decision is contrary to U.S. Supreme Court precedent if the state

court arrives at a conclusion opposite that reached by the Court on a question of law or if the

state court decides a case differently than the Court despite both cases having materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); White v. Mitchell, 431

F.3d 517, 523 (6th Cir. 2005), cert. denied, 549 U.S. 1047 (2006). However, a state court does

not act contrary to clearly established federal law where U.S. Supreme Court precedent is

ambiguous or otherwise unavailable. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per

curiam).

A state court decision is an unreasonable application of Supreme Court precedent where

the state court’s adjudication was “objectively unreasonable” and not merely erroneous or

incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th

Cir. 2000), cert. denied, 531 U.S. 1089 (2001). Under § 2254(d)(2), a state court’s factual

determination will stand unless it is objectively unreasonable in light of the evidence presented in

state court. Harrington v. Richter, 562 U.S. 86, 100 (2011). “[A] federal habeas court may not

grant relief simply because it concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Williams, 529 U.S. at 365.

Next, “a determination of a factual issue made by a State court shall be presumed to be

correct. [Petitioner] shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U.S.C. § 2554(e)(1). And, as the U.S. Supreme Court has repeated,

“a state court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion.” Burt, 571 U.S. at 18. Federal courts must also defer

to a state court’s judgment on issues of state substantive and procedural law. Murray v. Carrier,

477 U.S. 478, 491 (1986); Engle v. Isaac, 456 U.S. 107, 128-29 (1982).

In all, federal habeas corpus relief is a “guard against extreme malfunctions in the state

criminal justice systems,” and is different in kind from the relief available in direct appeal.

Harrington, 562 U.S. at 102-03; see also Brown v. Davenport, 596 U.S. 118, 133 (2022)

(internal quotation omitted). Thus, to obtain “habeas corpus from a federal court, 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.

When a properly presented federal constitutional claim was not adjudicated on the merits

in the state courts, the reviewing federal court must apply the pre-AEDPA standard, reviewing de

novo questions of law and mixed questions of law and fact. Durr v. Mitchell, 487 F.3d 423, 432

(6th Cir. 2007) (“When the state court has not assessed the merits of a claim properly raised in a

habeas petition, the deference due under AEDPA does not apply.”).

VI. Procedural Barriers to Federal Habeas Corpus Review

Before coming to federal court, a state habeas petitioner must overcome certain

procedural barriers, including exhaustion of state remedies and procedural default. See Daniels v.

United States, 532 U.S. 374, 381 (2001). A federal court sitting in habeas review may review

claims that were evaluated on the merits by the state court. But claims that were not evaluated by

a state court, either because they were never fully presented to the state court (i.e., state court

remedies were unexhausted) or because they were not properly presented to the state court (i.e.,

they are procedurally defaulted) are unavailable for federal habeas corpus review. Bonnell v.

Mitchell, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004), aff’d sub nom. Bonnell v. Mitchell, 212 F.

App’x 517 (6th Cir. 2007).

A. Exhaustion

A petitioner must first give the state courts a “fair” opportunity to act on his claims.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (emphasis in original). For a claim to have

been fairly presented, the factual and legal basis of the claim asserted by the petitioner must have

been raised at each and every stage of state review. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir.

2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). It is not enough for the claim

raised in state court to be “somewhat similar” to the one raised in the habeas petition or implicate

the same facts; the state court must have been called on to apply the legal principles of the claim

now presented to the federal courts. Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir. 2011).

The petitioner also must have presented their “claim to the state courts as a federal

constitutional issue – not merely as an issue arising under state law.” Williams, 460 F.3d at 807

(quotation marks omitted). In this Circuit, this can be done in one of four ways:

(1) reliance upon federal cases employing constitutional analysis;

(2) reliance upon state cases employing federal constitutional analysis;

(3) phrasing the claim in terms of constitutional law or in terms sufficiently

particular to allege a denial of a specific constitutional right; or

(4) alleging facts well within the mainstream of constitutional law.

McMeans, 228 F.3d at 681 (paragraph breaks added).

Failure to exhaust occurs where state court remedies are still “available at the time of the

federal petition.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). This failure to

exhaust can also lead to a petitioner procedurally defaulting his claims. If the petitioner has not

fully utilized his state remedies and has no legal way to do so now, the claim he failed to present

is procedurally defaulted, and this Court cannot act on the claim either. See Gray v. Netherland,

518 U.S. 152, 161-62 (1996); Williams v. Anderson, 460 F.3d 789, 809 (6th Cir. 2006).

B. Procedural Default

The procedural default doctrine limits federal review if the petitioner has failed to follow

the state’s procedural requirements for presenting his or her claim in state court. See Coleman v.

Thompson, 501 U.S. 722, 732 (1991). This doctrine flows from the insight that courts must have

the authority to insist that “defendants present their arguments on time and according to

established procedures.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019). Thus, a federal

habeas court will not consider a habeas petition if “the last state-court judgment denying relief on

the claim rests on a procedural state-law ground that is ‘independent of the federal question and

is adequate to support the judgement.’” Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013)

(quotation marks omitted).

This Circuit consults a four-part test to determine whether a petitioner has procedurally

defaulted a claim. A petitioner procedurally defaults a claim if: (1) the petitioner fails to meet a

state procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule is an

adequate and independent state ground for denying review of a federal constitutional claim; and

(4) the petitioner cannot show cause and prejudice excusing the default. See Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986).

Because the procedural-default bar to federal habeas review is harsh, courts have created

safety-valves to permit review in limited circumstances. A petitioner can obtain review of

procedurally defaulted claims if he or she shows: (1) “cause,” i.e., that some external factor kept

him from complying with the state rule or fairly presenting his claim; and (2) “prejudice,” i.e.,

that, assuming the petitioner’s constitutional claim has merit, there is a reasonable probability

that a different verdict would have resulted if the alleged constitutional violation hadn’t occurred.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wogenstahl v. Mitchell, 668 F.3d 307, 337

(6th Cir. 2012). A petitioner can also obtain review of a procedurally defaulted claim if the

procedurally defaulted claim is based on new evidence that the petitioner was factually innocent

of the crime of conviction. See Coleman, 501 U.S. at 750 (“fundamental miscarriage of justice”

exception to procedural default); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A

“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim

would establish that the petitioner was “actually innocent.”). But “[A]ctual[] innocen[ce]” means

“factual innocence, not mere legal insufficiency.”; Bousley v. United States, 523 U.S. 614, 623

(1998). To overcome procedural default, an actual innocence claim must be supported by “new

reliable evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

VII. Discussion

A. Ground One is not cognizable in federal habeas corpus review.

Reynolds raises as his first ground for relief that the trial court erred when it failed to

merge Counts 1, 4, and 5, because they were allied offenses of similar import. (ECF Doc. 1, p.

7). He explains that the incident at issue took place on the same day with the same victim, and

that the record did not develop the length of time between the acts. (Id.). As a result, he asserts,

they should have merged under O.R.C. § 2941.25. (ECF Doc. 10, pp. 4-5).

Respondent counters that Reynolds raises error only on state law grounds, which leaves

federal habeas corpus relief unavailable to him. (ECF Doc. 7, p. 13 (“federal habeas corpus is

available only on behalf of a person in custody in violation of the Constitution or laws or treaties

of the United States.” (collecting cases) and “a federal court may not issue a writ of habeas

corpus ‘on the basis of a perceived error of state law.’”), quoting Pulley v. Harris, 465 U.S. 37,

41 (1984)). In short, “[t]he computation of a prisoner’s term involves a matter of state law that is

not cognizable in § 2254 proceedings.” (ECF Doc. 7, p. 13).

Respondent correctly identifies the issue here. Reynolds’s argument that Counts One,

Four and Five should have merged is not cognizable in federal habeas corpus.

Federal habeas relief is only available for federal constitutional violations. 28 U.S.C.

§ 2254(a). Thus, “errors in application of state law are usually not cognizable in federal habeas

corpus.” Bey v. Bagley, 500 F.3d 514, 519, (6th Cir. 2007). This is because “it is not the province

of a federal habeas court to reexamine state court determinations on state law questions.” Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991). A claim that alleges only errors of state law is cognizable

only to the extent that the “error amounts to a fundamental miscarriage of justice or a violation of

the right to due process.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008).

Reynolds does not raise constitutional error on Ground One. (See ECF Doc. 1, p. 7 and

ECF Doc. 10, pp. 5-6). Rather, he relies on the application of Ohio law to his sentence, and

asserts that Ohio’s allied offenses of similar import statute – O.R.C. § 2941.45 – was misapplied

by the trial court when it declined to merge Counts One, Four, and Five. (See id.). He does not

raise issues in Ground One that would rise to the level of a fundamental miscarriage of justice, or

that his due process rights were violated as a result.

I therefore recommend the District Court deny Ground One as not cognizable.

B. Ground Three is likewise not cognizable in federal habeas corpus review.

Combined with his argument as to Ground One, Reynolds argues the state appellate court

misapplied the merger statute and violated the Due Process and Equal Protection clauses of the

Fourteenth Amendment. (ECF Doc. 10, pp. 4-6). He prefaces his argument by stating that the

state court of appeals “treated Petitioner differently from others similar[ly] situated and failed to

apply the law equally in review of the allied offenses of similar import issue, thereby treating

him differently and violating the Equal Protection clause of the Fourteenth Amendment to the

United States Constitution.” (Id. at p. 4). He asserts that habeas relief is available because the

state appellate court’s error subjected him to a “‘fundamentally unfair’ criminal process.” (Id. at

p. 4, citing Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006)).

While Reynolds approaches cognizability by asserting he had a fundamentally unfair

criminal process in the state appellate court, he still does not raise error in a manner that would

afford him federal habeas corpus relief.

Reynolds correctly argues that “[h]abeas relief may be available if an alleged error of

state law subjected the petitioner to a ‘fundamentally unfair’ criminal process.” (ECF Doc. 10, p.

4, quoting Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006)). But he is also correct in

stating that “the category of infractions that violate fundamental fairness is defined very

narrowly.” (ECF Doc. 10, p. 4, quoting Bey v. Bagley, 500 F.3d 514, 521 (6th Cir. 2007)).

Unfortunately, he has not shown how the Ohio appellate court’s application of its allied offense

statute to him falls within this “narrow” category in a way that would violate his equal protection

rights. (See ECF Doc. 10, pp. 4-6).

As for merger, the Ohio Court of Appeals provided the following:

{¶ 11} In his first assignment of error, Reynolds argues that the court erred when it

declined to merge Counts 1, 4, and 5. Reynolds argues that because the sexual

battery and gross sexual imposition counts were all part of the same act against the

same victim, and they all occurred at the same time, they should have merged.

{¶ 12} R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 13} Generally, we review de novo whether certain offenses should be merged as

allied offenses under R.C. 2941.25. State v. Bailey, Slip Opinion No. 2022-Ohio-

4407, ¶ 6, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 1. “Although determining whether R.C. 2941.25 has been properly

applied is a legal question, it necessarily turns on an analysis of the facts, which

can lead to exceedingly fine distinctions.” Id. at ¶ 11. Specifically, when

determining whether offenses are allied offenses of similar import within the

meaning of R.C. 2941.25, we consider three questions: “ “ ‘(1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? (3) Were

they committed with separate animus or motivation?” ’ ” Bailey at ¶ 10, quoting

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. If the

answer to any of these questions is yes, separate convictions are permitted. Id.

{¶ 14} Relevant to this assignment of error, Reynolds was convicted of sexual

battery in violation of R.C. 2907.03(A)(5) and gross sexual imposition in violation

of R.C. 2907.05(A)(4). R.C. 2907.03(A)(5), sexual battery, provides that “[n]o

person shall engage in sexual conduct with another, not the spouse of the offender,

when * * * the offender is the other person’s natural or adoptive parent, or a

stepparent, or guardian, custodian, or person in loco parentis of the other person.”

R.C. 2907.05(A)(4), gross sexual imposition, provides that “[n]o person shall have

sexual contact with another, not the spouse of the offender; cause another, not the

spouse of the offender, to have sexual contact with the offender; or cause two or

more persons to have sexual contact when the other person, or one of the other

persons, is less than thirteen years of age, whether or not the offender knows the

age of that person.”

{¶ 15} Reynolds argues that with respect to the conduct constituting Counts 1, 4,

and 5 — oral sex and vaginal sex, touching the victim’s breast, and touching the

victim’s vagina — the record was not developed enough to determine how far apart

in time these acts occurred. The state argues that their recitation of the facts

established that these acts took place at different times.

{¶ 16} A court’s merger analysis takes place as part of the sentencing process, which

“is less exacting than the process of establishing guilt.” State v. Garvin, 8th Dist.

Cuyahoga No. 100165, 2014-Ohio-1726, ¶ 14, quoting State v. Bowser, 186 Ohio

App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14, citing Nichols v. United States,

511 U.S. 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). “Therefore, this process can

easily be satisfied by a brief recitation of facts or circumstances by the prosecutor

to aid the trial court in its determination,” and “[n]othing more should be required.”

Id.

{¶ 17} Moreover, regardless of the length of time separating the various acts, the

fact that each offense involved a different sexual act precludes merger. State v. Wilk,

8th Dist. Cuyahoga No. 110751, 2022-Ohio-1840, ¶ 68. This court has consistently

held that “[s]eparate sexual acts are separate and distinct crimes and are not allied

offenses.” Id., citing State v. McSwain, 8th Dist. Cuyahoga No. 105451, 2017-Ohio-

8489, ¶ 45, citing State v. Nicholas, 66 Ohio St.3d 431, 435, 613 N.E.2d 225 (1993).

{¶ 18} Therefore, the trial court did not err when it declined to merge Counts 1, 4,

and 5 for sentencing because they are not allied offenses of similar import.

Reynolds’s first assignment of error is overruled.

Reynolds, 2023 WL 7041010, *4-5.

The state appellate court concluded, on state law grounds, and against Reynolds’s

contentions otherwise, that consistently and “regardless of the length of time separating the

various acts, the fact that each offense involved a different sexual act precludes merger.” Id.

When evaluating whether a state legislature intended to prescribe cumulative

punishments for a single criminal event, “a federal court is bound by a state court’s construction

of that state’s own statutes.” Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013). Thus, “once a state

court has determined that the state legislature intended cumulative punishments, a federal habeas

court must defer to that determination.” Id. This confirms the United States Supreme Court’s

repeated holding that “a state court’s interpretation of state law . . . binds a federal court sitting in

habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Adding to this

deference, the Supreme Court has affirmed that “preventing and dealing with crime is much

more the business of the States than it is of the Federal Government, and that we should not

lightly construe the Constitution so as to intrude upon the administration of justice by the

individual States.” Patterson v. New York, 432 U.S. 197, 201 (1977). A state’s powers to control

crime includes the ability to regulate its own laws, unless it runs afoul of the Due Process Clause

by “offend[ing] some principle of justice so rooted in the traditions and conscience of our people

as to be ranked as fundamental.” Id. at 201-02 (collecting cases).

Reynolds asserts primarily an Equal Protection argument, raising error with the state

appellate court’s application of Ohio’s merger statute, claiming that it unequally applied the law

in his case in violation of the Fourteenth Amendment. (ECF Doc. 10, p. 4). He also passingly

references violation of his Due Process rights. (Id.). Despite this contention, Reynolds does not

clarify how the state court violated his constitutional rights, how merger under Ohio law was

applied differently to him than to others, or how he was otherwise subjected a fundamentally

unfair process. (See id. at pp. 4-6). With this, therefore, the Ohio state courts’ determination of

the application of Ohio’s merger statute to Reynolds’s sentence receives significant deference in

this Court’s review. See Patterson, 432 U.S. at 201.

Eligibility for federal habeas corpus relief on a claim adjudicated on the merits requires

the petitioner to demonstrate that the state court’s decision “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “The habeas

statute “unambiguously provides that a federal court may issue a writ of habeas corpus to a state

prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.’” Swarthout v. Cooke, 562 U.S. 216, 219 (2011). While Reynolds

contends that he was subjected to a fundamentally unfair process in the way the Ohio appellate

court affirmed his sentence, he has not shown that he was denied his Due Process or Equal

Protection rights under the Fourteenth Amendment. (See generally ECF Docs. 1, 10). His bare

citations to Sixth Circuit precedent on fundamentally unfair criminal processes affords him no

solace here.

I therefore am still bound by the state court’s determination, defer to it, and determine

that Ground Three is not cognizable on federal habeas corpus review. I therefore recommend the

District Court deny Ground Three as not cognizable.

C. Ground Two lacks merit.

Reynolds states that his guilty plea was not knowingly, voluntarily, or intelligently given

because the trial court provided confusing and inconsistent advice on points of law. (ECF Doc. 1,

p. 7). He explains that the trial court’s Criminal Rule 11 colloquy was unintelligible, including

the explanation of his sexual offender registration requirements. (ECF Doc. 10, p. 7). Next,

Reynolds asserts that the trial court “muddied the waters” when describing the terms of his post-

release control. (Id.). And finally, Reynolds states that the trial court added to his confusion that

if he pleaded guilty, the court could proceed directly to sentencing. (Id.).

Respondent argues that the Ohio appellate court appropriately considered whether

Reynolds’s guilty plea was unknowing and unintelligent, and correctly applied Ohio law when

finding that it was knowingly, intelligently, and voluntarily made. (ECF Doc. 7, pp. 22-24). As

the Warden points out, the state trial court provided correct statements of the law when informing

Reynolds of his rights. (Id. at pp. 24-25). Reynolds did not then express confusion as to his plea

or its consequences, even when the trial court expressly and repeatedly gave him the opportunity

to respond. (Id. at pp. 25-26). Respondent points out that Reynolds’s counsel confirmed that

Reynolds entered his plea knowingly, intelligently, and voluntarily, without any coercion, threats,

or promises. (Id. at p. 26, citing ECF Doc. 8-1, p. 15). Based on this, Respondent affirmed that

the state court should receive AEDPA deference, as Reynolds has not shown that the state court

determination was clearly contrary to or an unreasonable determination of United States

Supreme Court precedent. (ECF Doc. 7, pp. 26-27).

When a defendant waives their constitutional rights by entering a guilty plea, the plea

“not only must be voluntary but must be [a] knowing, intelligent act[] done with sufficient

awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397

U.S. 742, 748 (1970). Thus, after entering a guilty plea, “a defendant may only attack the court’s

jurisdiction and the voluntary and intelligent character of the plea itself.” Werth v. Bell, 692 F.3d

486 (6th Cir. 2012). “When a criminal defendant has solemnly admitted in open court that he is

in fact guilty of the offense with which he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights . . . . He may only attack the voluntary

and intelligent character of the guilty plea . . .” Tollett v. Henderson, 411 U.S. 258, 267 (1973). 1

1 The Supreme Court clarified its post-Tollett decisions “to make clear that a plea of guilty does

not bar the review in habeas corpus proceedings of all claims involving constitutional violations

A defendant’s solemn declaration in open court of their understanding receives a strong

presumption of truthfulness. See Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Federal courts review the validity of a guilty plea based on the totality of the

circumstances. Garcia v. Johnson, 991 F.2d 324, 327 (6th Cir. 1993); see also Brady, 397 U.S. at

749. When a habeas petitioner challenges the validity of his plea, “the state generally satisfies its

burden by producing a transcript of the state court proceeding.” Garcia, 991 F.2d at 326.

Moreover, the state court’s factual finding that the plea was proper is given a presumption of

correctness unless the transcript reveals otherwise. See Garcia, 991 F.2d at 326-27 and 28 U.S.C.

§ 2254(e)(1). A court is required to obtain explicit waiver of certain constitutional rights, see

Boykin, 395 U.S. 238, 243-44 (1969), but need not explain unambiguous terms, McAdoo v. Elo,

365 F.3d 487, 497 (6th Cir. 2004). A state court’s determination is not unreasonable where a

transcript reflects a proper plea colloquy and the petitioner knowingly, intelligently, and

voluntarily pleaded guilty and waived his trial rights. See, e.g., United States v. Carson, 32 F.4th

615, 622 (6th Cir. 2022).

Here, when obtaining Reynolds’s guilty plea, the state court confirmed that Reynolds

understood the proceedings and received adequate counsel, (ECF Doc. 8-1, p. 16), confirmed

that he understood he was waiving certain rights by pleading guilty, (Id. at p. 17), including the

right to trial, the right to confront witnesses, that the state must prove him guilty beyond a

reasonable doubt, and the right not to testify against himself, (Id. at p. 18). Reynolds confirmed

that he understood at each point. (Id. at pp. 16-18). The state court also confirmed that it could

antecedent to a plea of guilty. A defendant who pleads guilty may seek to set aside a conviction

based on prior constitutional claims which challenge ‘the very power of the State to bring the

defendant into court to answer the charge against him.’” Haring v. Prosise, 462 U.S. 306, 320

(1983), quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974). Reynolds does not raise such a

challenge here.

proceed to judgment and sentencing, and reviewed the amended indictments he was about to

plead guilty, as well as the potential punishments associated with the amendments, including

sexual offender registration requirements. (Id. at pp. 19-26). The court also informed Reynolds of

post-release control. (Id. at pp. 27-28). The state court ended its colloquy stating that it was

“satisfied that the defendant has been informed of his constitutional rights, and he understands

the nature of the charges, the effect of a plea, and the maximum penalties which may be

imposed. The Court further finds that the defendant’s plea will be made knowingly, intelligently,

and voluntarily.” (Id. at pp. 28-29). Reynolds responded that he understood, and the state court

repeated these findings before proceeding to accepting his guilty plea. (Id. at pp. 29-30).

On review, the Eighth District Court of Appeals considered the above accordingly:

{¶ 21} Reynolds asserts that three separate aspects of the court's Crim.R. 11

colloquy rendered his guilty plea unknowing, unintelligent, and involuntary,

because the court provided unintelligible advice. First, Reynolds points to the trial

court's statements regarding his sexual offender registration requirements. The trial

court informed Reynolds that pleading guilty to Count 1 meant that Reynolds would

have to register as a Tier III sexual offender every 90 days for the rest of his life.

Reynolds confirmed that he understood this. The trial court separately informed

Reynolds that Counts 4 and 5 were Tier II offenses and therefore had different

registration requirements, and Counts 8 and 10 were Tier I offenses that also had

different registration requirements. Reynolds confirmed that he understood his

registration requirements.

{¶ 22} Next, Reynolds asserts that the trial court “muddied the waters” regarding

the terms of his postrelease control when it explained again that different offenses

involved different terms of mandatory postrelease control. Our review of the record

shows that the trial court accurately informed Reynolds that his sentence would

include a mandatory five-year period of postrelease control, and Reynolds again

confirmed that he understood this.

{¶ 23} Finally, Reynolds argues that the trial court added to his confusion by stating

that if Reynolds pleaded guilty, the court could proceed directly to sentencing. This

is accurate information, and Reynolds has failed to identify how exactly this

statement violated Crim.R. 11.

{¶ 24} Because none of these instances reflect a failure to comply with Crim.R. 11,

we cannot conclude that Reynolds’s plea was somehow unknowing, unintelligent,

or involuntary. The trial court engaged Reynolds in a thorough and complete

Crim.R. 11 colloquy, and Reynolds repeatedly confirmed to the court that he

understood the consequences of pleading guilty. Therefore, Reynolds’s second

assignment of error is overruled.

Reynolds, 2023 WL 7041010, at *5-6.

The state has satisfied its burden and provided a transcript of the state court proceedings.

Garcia, 991 F.2d at 326. Based on my review of the transcript, and the totality of the

circumstances, I see no constitutional error. Garcia, 991 F.2d at 327; Brady, 397 U.S. at 749. The

transcript reflects that Reynolds knowingly, intelligently, and voluntarily pleaded guilty, after the

state court properly informed him of his constitutional rights. Thus, I see no reason to overturn

the presumption of correctness afforded the state court’s factual finding that Reynolds’s plea was

proper. See Garcia, 991 F.2d at 326-27 and 28 U.S.C. § 2254(e)(1).

I therefore recommend the District Court deny Ground Two as without merit.

VIII. Certificate of Appealability

Under 28 U.S.C. § 2253(c)(1)(A), this Court will grant a certificate of appealability

(“COA”) for an issue raised in a § 2254 habeas petition only if the petitioner has made a

substantial showing of the denial of a federal constitutional right. Cunningham v. Shoop, 817 F.

App’x 223, 224 (6th Cir. 2020). A petitioner satisfies this standard by demonstrating that

reasonable jurists “could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted);

see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

As discussed above, Reynolds’s first and third ground for relief related to merger of his

state sentence are not cognizable in this Court, because they deal solely with issues of state law

or do not contain sufficiently specific allegations to reasonably state a valid federal claim.

Moreover, after reviewing the state court transcript, his second ground for relief related to his

guilty plea does not demonstrate that it was not knowingly, intelligently, or voluntarily made.

Thus, if the District Court accepts my recommendations, Reynolds will not be able to show that

my conclusions in this Report and Recommendation are debatable. I therefore recommend that

no certificate of appealability issue in this case.

IX. Recommendation

For these reasons, I recommend denying Grounds One and Three as not cognizable and

Ground Two as without merit. I further recommend that Reynolds be denied a certificate of

appealability.

Dated: April 8, 2025

]

Reuben J. Sheperd

United States Magistrate Judge

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28

U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo

by the assigned district judge.

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26

Failure to file objections within the specified time may result in the forfeiture or waiver

of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

specific and not merely indicate a general objection to the entire report and recommendation; “a

general objection has the same effect as would a failure to object.” Howard v. Sec’y of Health

and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus on specific

concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A

reexamination of the exact same argument that was presented to the Magistrate Judge without

specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the

purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2

(W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections may in rare

cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-

79 (6th Cir. 2019).