# Harris v. Black

> District Court, N.D. Ohio · May 1, 2025

URL: https://www.frixlaw.com/law-library/cases/10920503

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** May 1, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10920503

## How later opinions describe it (automated extraction)

- explaining that a reviewing court does “not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

COREN HARRIS, CASE NO. 5:22-CV-00623

Plaintiff, JUDGE J. PHILIP CALABRESE

vs. MAGISTRATE JUDGE AMANDA M. KNAPP

ALICIA HANDWERK-CHAIR,
REPORT & RECOMMENDATION
Defendant.

Petitioner Coren Harris (“Petitioner” or “Mr. Harris”) brings this habeas corpus action
pursuant to 28 U.S.C. § 2254, having filed his federal habeas petition on April 6, 2022 (herein
referred to as “Petition”).1 (ECF Doc. 1.) Mr. Harris’s Petition relates to his conviction on one
count of sexual battery and his four-year prison sentence in Summit County Common Pleas Case
No. CR-2019-01-0017. (Id.) This matter was assigned to the undersigned Magistrate Judge
pursuant to Local Rule 72.2. The Petition is fully briefed, and the state court record has been
filed. (ECF Docs. 7, 7-1, 7-2, 7-3, 7-4, 7-5, 7-6, 7-7, 8.)
For the reasons set forth below, the undersigned recommends that the Court DENY Mr.
Harris’s Petition because Ground One is without merit and because Ground Two is not
cognizable and/or without merit.

1 “Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials
for filing in the federal courts.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S.
266, 273 (1988)). Mr. Harris’s Petition was docketed on April 19, 2022 (ECF Doc. 1) and placed in the prison
mailing system on April 6, 2022 (id. at p. 7).
I. Factual Background
“In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the

burden of rebutting that presumption by clear and convincing evidence. Id.; Railey v. Webb, 540
F.3d 393, 397 (6th Cir. 2008). Petitioner has not meaningfully attempted to rebut the
presumption that the facts as found by the state court are correct.2
The Ninth District Ohio Court of Appeals summarized the facts underlying Mr. Harris’s
conviction and sentence as follows:
{¶8} At the time of the assault, D.H. was in her forties. D.H. and Harris are cousins
and have known each other since elementary school. Prior to the assault, D.H.
testified that she was very close to Harris.

{¶9} On August 1, 2018, D.H. was supposed to pick up her close friend, Devin,
whom she had also known since elementary school. The two were going to go to a
clothing store. D.H. was late and Devin ended up taking a bus to go home. On his
way home, D.H. called Devin and asked him to get off the bus and meet her.
According to Devin, D.H. wanted Devin to drive because she was “a little bit lit.”
Devin agreed to do so and then drove them to the clothing store. On the way back,
D.H. wanted to stop at Harris’ house to get some marijuana.

{¶10} In his testimony, Devin first described D.H.’s alcohol consumption in terms
of shots, but subsequently testified that D.H. was drinking from a bottle of vodka
and that she had a half a pint of vodka prior to getting to Harris’ and a whole pint
while at Harris’. Devin indicated that D.H. was pretty drunk. Devin also testified
that D.H. smoked marijuana while at Harris’. D.H. testified that there was a bottle
of alcohol with her in the car. Prior to meeting Devin, she estimated that she had
one to two shots and was able to drive. Once Devin was driving, D.H. had more
alcohol. She estimated that she had five or six more shots before arriving at Harris’.
Once at Harris’ D.H. asserted that she began drinking from the bottle. She estimated
that she had “a couple swigs” from the bottle and smoked marijuana while she was

2 In his Traverse, Petitioner fleetingly claims that he “challenges the allegations that he used zip ties” to tie up D.H.
because the state “never introduced any zip ties.” (ECF Doc. 8, p. 5; see ECF Doc. 7-1, p. 74, ¶ 11 (stating that at
one point during their interaction, Mr. Harris tied D.H.’s legs with zip ties).) No zip ties were introduced at trial, but
D.H. testified that Petitioner tied her with zip ties, providing a basis for the state court’s finding. (ECF Doc. 7-3, pp.
175-76.) Petitioner does not challenge this factual finding anywhere else in his filings. His bare claim that he did
not use zip ties is insufficient to overcome the presumption that the state court’s factual findings are correct.
at Harris’. D.H. described herself as being “intoxicated quite a bit” such that she
did not “remember everything initially.” However, she also testified that she was
not “intoxicated where [she] was falling over * * * where [she] was like passed
out.” She testified that she was “drunk” but not “she need[s] an ambulance type of
drunk.” D.H. testified that the marijuana did not have much effect on her.

{¶11} When they arrived at Harris’ house, D.H. went on the porch to play with
some puppies and Devin and Harris were inside playing on the Xbox. Harris and
Devin heard a yelp, and Harris became angry, went on the porch, grabbed D.H.
from under her arms, and dragged her inside. The two began arguing and Devin
stepped outside. Devin testified that, when he came back in, things had settled
down. D.H. started dancing, but in the process of doing so, tripped over something
and knocked a few things to the ground. Devin helped D.H. to the couch. Harris
became angry, went to the kitchen, returned, and then zip tied D.H.’s legs. D.H.
testified that she was on the ground when Harris put the zip ties on her, and she
then sat down on the couch. D.H. and Harris started to argue again. Harris told D.H.
to “shut up and just sit there [and was] just trying to make [D.H.] sit down.” At the
time, D.H. was not overly concerned about the zip ties and thought it was just
“horseplay.” Devin then left to go the store.

{¶12} D.H. testified that, after Devin left, Harris put her on the edge of the couch,
pushed her legs up, pulled her leggings down, and had vaginal intercourse with her.
When Devin returned, he found Harris having sex with D.H. Devin heard D.H.
saying, “Stop. Stop. Get off of me. This is not right. This is not right.” Devin went
outside in shock and called D.H.’s son. Devin went to go back in and D.H. then
came running out of the house and told Devin that “both of [them were] wrong[.]”
D.H. was frantic and “shaking and crying[.]” D.H. refused to give Devin a ride and
left in her car. She asserted that she was “very wide alert” after the trauma; it
“sobered” her up. Harris ultimately gave Devin a ride. While they were in the car
together, Harris told Devin that D.H. deserved it and asked why Devin did not join
in.

{¶13} D.H. went to her grandmother’s house. She initially did not call the police
because Harris was family and she knew doing so would cause problems. A couple
days later, D.H. went to Planned Parenthood but she was told she needed to go to
the hospital. D.H. then proceeded to the emergency room. Devin met her there.
D.H. was examined by Patti Riley, R.N., and a rape kit was performed. Ms. Riley
documented several bruises that appeared to all be around the same age; some of
the bruises appeared to look like fingertip impressions. D.H. was also questioned
by police. Detective Dawn Forney, a detective with the Akron Police Department,
interviewed D.H. at the hospital. D.H. told Detective Forney that she had been
drinking the day of the assault and that she had “four little shots[.]” Upon returning
home, D.H. located the leggings, shorts, and a feminine hygiene pad she was
wearing at the time of the assault. They had not been laundered. The items were
submitted to the police for possible testing. Stacy Violi, a forensic scientist with the
Ohio Bureau of Criminal Investigation, testified that the vaginal and anal samples
from D.H. contained no DNA profile foreign to D.H. Ms. Violi indicated that the
DNA profile recovered from D.H.’s leggings contained a mixture of DNA
consistent with that of D.H. and Harris. The portion consistent with Harris’ DNA
profile was expected to be seen in the population less than one in one trillion times.
The DNA profile obtained from the shorts was also a mixture with the major profile
consistent with D.H. The minor profile was from a male but was not of sufficient
quality or quantity to compare it to any individual.

{¶14} On cross-examination, D.H. acknowledged that she and Harris had had a
consensual sexual encounter over a decade prior to the assault. She stated that it
happened when they were both high, that they knew it was wrong, and it never
happened again.

State v. Harris, 2020-Ohio-4365, ¶¶ 8-14 (Ohio Ct. App. Sept. 9, 2020), (ECF Doc. 7-1, pp. 73-
75).
II. Procedural Background
A. State Court Conviction
On January 16, 2019, the Summit County Grand Jury indicted Mr. Harris on: one count
of rape (R.C. § 2907.02(A)(2) and R.C. § 2907.02(B)) (Count One); one count of kidnapping
(R.C. § 2905.01(A)(4) and R.C. § 2905.01 (C)(l)) (Count Two); and one count of sexual battery
(R.C. §2907.03(A)(2) and R.C. § 2907.03(8)) (Count Three). (ECF Doc. 7-1, pp. 6-7). A
supplemental indictment added repeat violent offender specifications to the first two counts.
(ECF Doc. 7-1, p. 70, ¶ 2.) Mr. Harris was arraigned and pled not guilty to all counts on January
18, 2019. (Id. at p. 9.)
A jury trial on all counts commenced on September 4, 2019, and concluded on September
6, 2019. (Id. at p. 12; ECF Docs. 7-2, 7-3, 7-4, 7-5, 7-6.) On September 6, 2019, the jury
returned a guilty verdict on the one count of sexual battery. (ECF Doc. 7-1, p. 12; ECF Doc. 7-6,
pp. 93-95.) The jury found Mr. Harris not guilty on all other counts. (Id.)
On October 2, 2019, the trial court sentenced Mr. Harris to a definite term of four years
imprisonment with five years of post-release control. (ECF Doc. 7-1, p. 15.) The sentencing
was journalized on October 4, 2019. (Id. at p. 14.)
B. Direct Appeal

On November 1, 2019, Mr. Harris filed an appeal to the Ninth District Court of Appeals
through new counsel. (Id. at pp. 19-20.) In his February 19, 2020 appellate brief, Mr. Harris
raised the following assignments of error:
1. The trial court erred by adopting the jury’s verdict finding appellant guilty of
sexual battery where the conviction was against the manifest weight of the
evidence.

2. The trial court erred by not providing jury instructions that specified that mere
intoxication does not equate to substantial impairment.

(Id. at pp. 25-41.) The State filed its responsive brief on March 30, 2020. (Id. at pp. 45-63.) On
September 9, 2020, the court of appeals overruled Mr. Harris’s assignments of error and affirmed
the trial court’s judgment, finding Mr. Harris had failed to demonstrate that the jury’s verdict
was against the manifest weight of the evidence or that the trial court committed plain error when
it did not instruct the jury that mere intoxication does not equate to substantial impairment. (Id.
at pp. 70-80.) As to the second assignment of error, the court noted that Mr. Harris had not
presented a developed argument in his brief to explain how the result of the trial would have
been different if the desired instruction were given. (Id. at pp. 78-79.)
On October 26, 2020, Mr. Harris, pro se, filed a notice of appeal with the Supreme Court
of Ohio (id. at pp. 82-83) and memorandum in support of jurisdiction (id. at pp. 86-92). He set
forth one proposition of law: “The trial court erred by not providing jury instructions that
specified that mere intoxication does not equate to substantial impairment.” (Id. at p. 94.) On
December 29, 2020, the Supreme Court of Ohio declined jurisdiction. (Id. at p. 103.)
C. Motions for Judicial Release

Parallel to bringing direct and collateral challenges to his conviction, Mr. Harris filed
three motions for judicial release in the trial court. He moved for judicial release on November
5, 2020, March 26, 2021, and October 15, 2021, (id. at pp. 105, 112, 164), and the trial court
denied all three motions (id. at pp. 110, 117, 170).
D. Delayed App. R. 26(B) Application to Reopen Direct Appeal

On June 14, 2021, Mr. Harris, pro se, filed a delayed application to reopen his appeal in
the Ninth District Court of Appeals pursuant to Ohio App. R. 26(B) (“Rule 26(B) application”).
(Id. at pp. 120-24.) In the application, Mr. Harris alleged that his appellate counsel on direct
appeal was ineffective because she failed to raise a sufficiency of the evidence argument, and
because she failed to comply with Ohio Crim. R. 52(B) and Ohio App. R. 16(A)(7). (Id. at pp.
120-23.) On October 20, 2021, the court of appeals denied the application. (Id. at pp. 136-37.)
On November 22, 2021, Mr. Harris filed a pro se notice of appeal with the Supreme
Court of Ohio (id. at pp. 139-40) and a memorandum in support of jurisdiction (id. at pp. 142-
55). He raised the following propositions of law:
1. Appellate Counsel’s performance was deficient in violation of the Sixth
Amendment to the U.S. Constitution for not raising and arguing a sufficient
[sic] of the evidence assignment of error.

2. Appellate counsel’s performance was deficient in violation of the Sixth
Amendment to the U.S. Constitution for failing to comply with the
requirements under Criminal Rule 52(B) and Appellate Rule 16(A)(7).

(Id. at pp. 143, 148-55.) The state filed a waiver of memorandum in response on December 8,
2021. (Id. at p. 160.) On February 1, 2022, the Supreme Court of Ohio declined to accept
jurisdiction of Mr. Harris’s appeal. (Id. at p. 162.)
E. Federal Habeas Corpus Petition
Mr. Harris raised two grounds for relief in his Petition:
Ground One: Appellate counsel’s performance was deficient in violation of the
Sixth Amendment to the U.S. Constitution for not raising and arguing a sufficient
[sic] of the evidence assignment of error.

Supporting Facts: Petitioner contends that his appellate counsel should have raised
a sufficiency of the evidence argument because “substantially impaired” is an
element of sexual battery, thus, substantially impaired must be define [sic] during
the sexual battery jury instruction, because it cannot be inferred, it must be proven
beyond a reasonable doubt. Petitioner contends that the jury must be told that “mere
intoxication does not equate to substantial impairment.” Rather Petitioner’s
appellate counsel raised the trial court’s jury instruction as plain error.

Ground Two: Appellate counsel’s performance was deficient in violation of the
Sixth Amendment to the U.S. Constitution for failing to comply with the
requirements under Criminal Rule 52(B) and Appellate Rule 16(A)(7).

Supporting Facts: The Ohio Court of appeal found that “even if we were to assume
that the trial court should have provided the instruction as argued by Harris, Harris
has not explained how the request of the trial would have been different if that
instruction was given. Petitioner contends that since the court appeals found that
Appellate counsel failed to state “[b]ut for that error the outcome at trial would have
been different[,]” he has developed no argument explaining why that would be so.
See App.R. 16(A)(7); The court appeals essentially found appellate counsel’s
performance on direct appeal had been ineffective for failing to comply with the
brief under App.R. 16(A)(7).

(ECF Doc. 1, pp. 4-5 (missing quotation mark in original).) The Petition is ripe for review.
III. Law & Analysis
A. Standard of Review Under AEDPA
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”), apply to petitions filed after the
effective date of the AEDPA. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). “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). 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.” Id. (citing 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. See Cullen, 563 U.S. at 181.
Mr. Harris challenges the performance of appellate counsel in both Grounds One and
Two of the Petition. In Ground One, he asserts that he was deprived of the effective assistance
of counsel when his attorney failed to challenge the sufficiency of the evidence at his trial on
direct appeal. (ECF Doc. 1, p. 4.) In Ground Two, he asserts that he was deprived of the
effective assistance of counsel when his attorney failed to comply with certain state criminal and
appellate rules in briefing his challenge to the trial court’s jury instructions on direct appeal. (Id.
at p. 5.) Respondent argues in response that the Petition should be denied because Mr. Harris has
failed to show that his appellate attorney’s actions were “prejudicial” under the Strickland v.
Washington standard. (ECF Doc. 7, pp. 14-15, 17-18.)
For the reasons set forth below, the undersigned recommends that the Court DENY the
ineffective assistance of counsel claims asserted in Grounds One and Two.
B. Legal Standard for Claims of Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court set forth two requirements to establish

that an attorney was constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 687
(1984). First, a petitioner must demonstrate “that counsel’s performance was deficient,” which
“requires showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. In such cases, the
petitioner must show that the representation fell below an objective standard of reasonableness
based on all the circumstances surrounding the case. Id. at 688. “Judicial scrutiny of counsel’s
performance must be highly deferential [because] [i]t is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.” Id. at 689. Second, a petitioner must demonstrate

“that the deficient performance prejudiced the defense.” Id. at 687. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. To meet this requirement, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” with a reasonable probability being “a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
The right to effective assistance of counsel extends to the first appeal as of right. Evitts v.
Lucey, 469 U.S. 387 (1984). The Strickland standard as outlined above applies to ineffective
assistance of appellate counsel claims. Smith v. Robbins, 528 U.S. 259, 285 (2000). But
appellate counsel is not obligated to advance every possible argument on appeal. Jones v.
Barnes, 463 U.S. 745, 750-54 (1983). “Effective appellate counsel should not raise every
nonfrivolous argument on appeal, but rather only those arguments most likely to succeed.”
Davila v. Davis, 582 U.S. 521, 533 (2017) (citing Smith v. Murray, 477 U.S. 527, 536 (1986) and

Jones, 463 U.S. at 751-53). Thus, “[d]eclining to raise a claim on appeal . . . is not deficient
performance unless that claim was plainly stronger than those actually presented to the appellate
court.” Id. (citing Robbins, 528 U.S. at 288). The “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.” Murray, 477 U.S. at 536
(quoting Jones, 463 U.S. at 751-52).
Further, where a state court of appeals has reached the merits of an ineffective assistance
of counsel claim, federal habeas courts provide AEDPA deference to that adjudication under
section 2254(d). Perkins v. McKee, 411 F. App’x 822, 828 (6th Cir. 2011). The U.S. Supreme
Court explained the double layer of deference federal courts must give state courts in reviewing

Strickland claims under AEDPA as follows:
As a condition for obtaining 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 fairminded disagreement.
. . . An ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the
integrity of the very adversary process the right to counsel is meant to serve. . . .
Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard.

Perkins, 411 F. App’x at 828 (quoting Harrington, 562 U.S. at 103, 105).
C. Ground One
Respondent argues that Mr. Harris failed to show the sufficiency of the evidence claim
described in Ground One “would have had any better chance of success in overturning the
verdict than challenging the evidence under the manifest weight of the evidence standard, as

appellate counsel did.” (ECF Doc. 7, p. 14.) Indeed, Mr. Harris’s attorney did challenge the
verdict as against the manifest weight of the evidence, and the court of appeals performed a
detailed, independent review of the record before concluding that “the jury’s verdict is not
against the manifest weight of the evidence.” (ECF Doc. 7-1, pp. 73-75.) The court explained:
While the testimony as to how much alcohol D.H. had varied, the record is clear
that D.H. had a substantial amount of alcohol and also smoked marijuana. Some of
that alcohol and all of the marijuana was consumed during D.H.’s visit to Harris’
house. D.H. described herself as being “intoxicated quite a bit” such that she did
not “remember everything initially.” Devin, who was completely sober, testified
that, when he met D.H., D.H. wanted him to drive because she was already “a little
bit lit.” By the time they were at Harris’ Devin indicated that D.H. was pretty drunk.
While D.H. also testified that she was not falling over or in need of an ambulance,
D.H. did trip and fall while dancing and knocked some items off of an end table.
Devin then helped D.H. to the couch. In order to control D.H. and get her to “shut
up and just sit there[,]” Harris put zip ties around D.H.’s ankles. From those
circumstances, it would not be unreasonable for the trier of fact to infer that D.H.
was not only intoxicated, her “ability to appraise the nature of or control [her] own
conduct [wa]s substantially impaired.” R.C. 2907.03(A)(2). While D.H. did
remember many details, she also admitted some difficulty remembering everything.
In addition, the jury could have attributed her coordination issues to alcohol and/or
marijuana impairment. Moreover, Harris and D.H. grew up together and there was
evidence presented that the two had gotten high together in the past. Thus, there
was evidence that Harris would be aware of what D.H. was like when she was
impaired. In addition, there was evidence that Harris was so annoyed by D.H.’s
drunken behavior that he zip tied her legs; this would also support the notion that
Harris was aware of D.H.’s substantial impairment. Therefore, the jury could have
also reasonably concluded that Harris knew that D.H.’s ability to appraise the
nature of or control her own conduct was substantially impaired when he assaulted
her.
(Id. at pp. 75-76.) Respondent asserts that the same evidence “would substantiate the conclusion
that the conviction was supported by sufficient evidence,” and that the appellate court’s findings
were “an implicit finding that there was sufficient evidence to support the conviction because the
standard for manifest weight is higher than the standard for sufficiency.” (ECF Doc. 7, pp. 14-
15.) Mr. Harris asserts that this argument is contrary to Ohio and Supreme Court law and that
there was insufficient evidence for the jury to convict him. (ECF Doc. 8, pp. 8-11.)
Under the double layer of deference federal courts must give to state courts in reviewing

Strickland claims under AEDPA, Mr. Harris is required to “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 fairminded
disagreement.” Perkins, 411 F. App'x at 828 (citing Harrington, 562 U.S. at 103). “The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. (citing Harrington, 562 U.S. at 105).
Here, in response to Mr. Harris’s Rule 26(B) application challenging his appellate
counsel’s failure to raise a “sufficiency of the evidence” argument on direct appeal, the state
court of appeals found:
Appellant has not demonstrated that there is a genuine issue as to whether he was
deprived of the effective assistance of counsel. Appellant has argued that appellate
counsel was ineffective in failing to raise a sufficiency argument. Appellate counsel
did raise a manifest weight argument asserting that the weight of the evidence did
not support that the victim was substantially impaired or that Appellant knew that
she was substantially impaired. Evidence that supported overruling Appellant's
manifest weight of the evidence argument would also support denying his proposed
challenge to the sufficiency of the evidence.

(ECF Doc. 7-1, p. 137 (emphasis added).) Respondent asserts that this finding correctly applied
applicable law, and that Mr. Harris cannot show he was prejudiced under Strickland because “a
reasonable probability did not exist that raising a sufficiency claim would have altered the
outcome of the appeal.” (ECF Doc. 7, p. 15.) Mr. Harris challenges Respondent’s contention
that the state court of appeals findings under the “manifest weight of the evidence” standard
would implicitly require a similar finding under the “sufficiency of the evidence” standard,
arguing that Respondent’s interpretation of applicable law is contrary to the U.S. Supreme Court
decision in Tibbs v. Florida, 457 U.S. 31 (1982). (ECF Doc. 8, pp. 8-9.)3
In Tibbs, the Supreme Court compared legal challenges based on a lack of “sufficient
evidence” to support a conviction and challenges based on “the weight of the evidence” in the

context of the Double Jeopardy clause. See 457 U.S. at 42-43. Historically, challenges to the
sufficiency of the evidence require courts to ask “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original); see also Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)
(explaining that a reviewing court does “not reweigh the evidence, re-evaluate the credibility of
witnesses, or substitute [its] judgment for that of the jury”). The Tibbs court explained that a
reversal based on the sufficiency of the evidence has the same Double Jeopardy effect as a jury
verdict of “not guilty” because “[a] reversal based on the insufficiency of the evidence . . . means
that no rational factfinder could have voted to convict the defendant.” 457 U.S. at 41.

Conversely, for challenges based on the weight of the evidence, the Tibbs court explained
that “the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the
conflicting testimony.” 457 U.S. at 42. The court equated such findings to a “deadlocked jury,”
explaining that “an appellate court’s disagreement with the jurors’ weighing of the evidence does
not require the special deference accorded verdicts of acquittal.” Id. The Tibbs court went on to
explain that a reversal based on the weight of the evidence “can occur only after the State both
has presented sufficient evidence to support a conviction and has persuaded the jury to convict.”

3 Petitioner also argues that the state court’s reasoning is contrary to Ohio law. (ECF Doc. 8, pp. 8-9.) This
argument is inapposite as federal habeas relief lies only for violations of federal law. 28 U.S.C. §§ 2254(a), (d)(1).
Id. at 42-43. Such reversals “simply afford[] the defendant a second opportunity to seek a
favorable judgment,” and do not have a Double Jeopardy effect. Id. at 43.
Here, the state court on direct appeal independently reviewed the evidence in the context
of a “manifest weight of the evidence challenge” and found: (1) “it would not be unreasonable

for the trier of fact to infer that D.H. was not only intoxicated, her ‘ability to appraise the nature
of or control [her] own conduct [wa]s substantially impaired”; and (2) “the jury could have also
reasonably concluded that Harris knew that D.H.’s ability to appraise the nature of or control her
own conduct was substantially impaired when he assaulted her.” (ECF Doc. 7-1, p. 76 (quoting
R.C. 2907.03(A)(2)) (brackets in original).) Later, in reviewing Mr. Harris’s Rule 26(B) appeal,
the court found no genuine issue as to counsel’s effectiveness in not challenging the sufficiency
of the evidence because the “[e]vidence that supported overruling Appellant’s manifest weight of
the evidence argument would also support denying his proposed challenge to the sufficiency of
the evidence.” (Id. at 137.)
Mr. Harris asserts that the state court of appeals erred in finding its prior manifest weight

of the evidence determination supported denial of a sufficiency of the evidence claim, since the
two standards are different under Tibbs. (ECF Doc. 8, pp. 8-9.) But the Tibbs court explained
that an appellate court’s assessment of whether a jury’s findings are against the weight of the
evidence occurs only “after the State both . . . presented sufficient evidence to support a
conviction and . . . persuaded the jury to convict.” 457 U.S. at 42-43. In other words, there must
at least be sufficient evidence to support a verdict before the court proceeds to considering
whether the jury’s weighing of the evidence was reasonable. Courts have therefore reasonably
concluded that a court of appeals finding that a “conviction was supported by the manifest
weight of the evidence necessarily implies a finding that there was sufficient evidence.” Nash v.
Eberlin, 258 F. App’x 761, 765 (6th Cir. 2007) (citing State v. Lee, 158 Ohio App.3d 129 (2004)
(“[A] determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency”)); see Arnold v. Warden, Lebanon Corr. Inst., 832 F.
Supp. 2d 853, 861 (S.D. Ohio 2011) (“Given the interrelationship between insufficiency of the

evidence and manifest weight claims, a state court’s finding—that the verdict is not against the
manifest weight of the evidence—also implicitly holds that there was sufficient evidence for the
verdict.”) (citing Nash and Bell v. Warden, Warren Corr. Inst., No. 3:11-CV-135, 2011 WL
2746144, at *6 (S.D. Ohio June 22, 2011), report and recommendation adopted 2011 WL
2790204 (S.D. Ohio July 14, 2011)).
Applying the double deferential standard applicable to the Strickland claim in Ground
One, the undersigned finds Mr. Harris has not shown that the denial of his appeal regarding the
sufficiency of the evidence argument “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Perkins, 411 F. App'x at 828 (citations omitted). The earlier appellate decision

finding the verdict was not against the manifest weight of the evidence implicitly included a
finding that there was sufficient evidence to support the verdict. Mr. Harris therefore has not
shown that the appellate court erred “beyond any possibility for fairminded disagreement” when
it found he failed to show he suffered prejudice when his appellate counsel did not raise a
sufficiency of the evidence argument on direct appeal. For the reasons set forth above, the
undersigned recommends that the Court DENY Ground One of the Petition on its merits.
D. Ground Two
In Ground Two, Mr. Harris asserts that his appellate counsel was ineffective because the
briefing in support of his direct appeal did not include a developed argument as to how the result
of the trial would have been different if a “mere intoxication” jury instruction had been presented
to the jury, in alleged violation of Ohio Crim. R. 52(B) and Ohio App. R. 16(A)(7). (ECF Doc.
1, pp. 4-5.) Respondent asserts in response that the appellate court was limited to a “plain error”
review under Ohio Crim. R. 52(B) because trial counsel did not object to the jury instructions,

and that Mr. Harris cannot show prejudice to support a Strickland claim when his 26(B) appeal
continued to lack developed argument as to how the result of the trial would have been different
if the jury instruction were included. (ECF Doc. 7, pp. 17-18.) In his Traverse, Petitioner asserts
that the jury instructions “left the jury uninformed as to how to perform its duty,” “affected the
outcome of the trial[,] and resulted in a manifest miscarriage of justice” (ECF Doc. 8, p. 13), but
does not otherwise explain how the jury instructions prejudiced him on appeal (id. at pp. 11-16).
Underlying the claim in Ground Two is Mr. Harris’s disagreement with the trial court’s
jury instructions regarding “substantial impairment” as it related to his sexual battery charge.
Mr. Harris was convicted of sexual battery under O.R.C. § 2907.03(A)(2), which states: “No
person shall engage in sexual conduct with another when . . . [t]he offender knows that the other

person’s ability to appraise the nature of or control the other person’s own conduct is
substantially impaired.” O.R.C. § 2907.03(A)(2). Mr. Harris acknowledges that the court
correctly defined “substantial impairment” under Ohio law (ECF Doc. 8, p.12), but faults the
trial court for failing to instruct the jury that “mere intoxication does not equate to substantial
impairment” (ECF Doc. 1, p. 4), and for defining substantial impairment under the kidnapping
charge rather than the sexual battery charge (ECF Doc. 8, pp. 6, 12-14).
Mr. Harris raised the following assignment of error on direct appeal: “The trial court
erred by not providing jury instructions that specified that mere intoxication does not equate to
substantial impairment.” (ECF Doc. 7-1, p. 25.) In response, the state court of appeals held:
{¶20} The jury was instructed that: “Before you can find the defendant guilty, you
must find beyond a reasonable doubt that on or about the 1st of August, 2018, in
Summit County Ohio, the defendant engaged in sexual conduct with [D.H.], who
was not his spouse, and the defendant knew that [D.H.’s] ability to appraise the
nature of or control her own conduct was substantially impaired.” In defining
knowingly and knowledge, the trial court stated: “Because you cannot look into the
mind of another, knowledge is determined from all the facts and circumstances in
evidence. You will determine from these facts and circumstances whether there
existed at the time in the mind of the defendant an awareness of the probability that
[D.H.’s] ability to appraise the nature of or control her conduct was substantially
impaired.” Despite Harris’ argument to the contrary, substantially impaired was
defined; however, the definition appeared in the section related to the charge for
kidnapping, not sexual battery. Substantially impaired was defined by the trial court
as a “present reduction, diminution or decrease in [D.H.’s] ability to either appraise
the nature of her conduct or control her conduct.” Nonetheless, Harris is correct
that the trial court did not instruct the jury that every instance of intoxication does
not equate to substantial impairment. See Hansing, 2019-Ohio-739, at ¶ 14
(discussing the concept in terms of a sufficiency analysis).
{¶21} Notwithstanding the foregoing, even if we were to assume that the trial court
should have provided the instruction as argued by Harris, Harris has not explained
how the result of the trial would have been different if that instruction was given.
See Higgins, 2018-Ohio-476, at ¶ 27. While Harris has stated that “[b]ut for that
error the outcome at trial would have been different[,]” he has developed no
argument explaining why that would be so. See App.R. 16(A)(7). As discussed
above, the weight of the evidence supported the conclusion that D.H.’s ability to
appraise the nature of or control her own conduct was substantially impaired and
that Harris knew the same.
{¶22} Harris has not met his burden of demonstrating that the trial court committed
plain error in instructing the jury. Harris’ second assignment of error is overruled.
(ECF Doc. 7-1, pp. 78-79 (emphasis added).) Based on the underlined findings above, Mr.
Harris argued in his Rule 26(B) application that appellate counsel’s representation was
ineffective due to “fail[ure] to comply with the requirements under Criminal Rule 52(B) and
Appellate Rule 16(A)(7).” (Id. at 143.) In ruling on the Rule 26(B) application, the state court
of appeals held:
Appellant also essentially argues that appellate counsel was ineffective in failing to
develop an adequate argument that the trial court committed plain error in failing
to provide an instruction that mere intoxication does not equate with substantial
impairment. However, Appellant has not demonstrated that there is a reasonable
probability that he would have been successful if he had presented the claim on
appeal; Appellant merely speculates that the jury concluded that every instance of
voluntary intoxication equates with substantial impairment absent being instructed
to the contrary. See State v. Brown, 9th Dist. Lorain No. 20CA011618, 2021-Ohio-
2540, ¶ 63 (“Prejudice owing to ineffective assistance of counsel cannot be
demonstrated by means of conjecture or speculation.”).

(Id. at p. 137 (emphasis added).)
Respondent argues that Mr. Harris has not satisfied the “prejudice” prong of the
Strickland analysis because his 26(B) application “failed to show a reasonable probability that
his more particular instruction would have resulted in a favorable outcome at trial or that a fuller
development of the jury instruction claim would have altered the result on appeal.” (ECF Doc.
7, p. 18.) But the undersigned also observes that numerous elements of the claims asserted in
Ground Two are not cognizable on federal habeas review because “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(citing 28 U.S.C. § 2241); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas
corpus relief does not lie for errors of state law.”); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982)
(“We have long recognized that a ‘mere error of state law’ is not a denial of due process.”)
(citation omitted)). This standard is implicated at two levels, first by Mr. Harris’s challenge to
his attorney’s compliance with Ohio Criminal Rule 52(B) and Appellate Rule 16(A)(7) in
preparing the appellate brief, and second by Mr. Harris’s underlying challenge to the jury
instructions adopted by the trial court, which pertain to the application of state law.4
“Because ‘federal habeas corpus relief does not lie for errors of state law,’” federal courts
“may grant the writ based on errors in state jury instructions only in extraordinary cases.”

4 In his Traverse, Petitioner also compares his case to a Supreme Court of Ohio decision, State v. Leyh, 166 Ohio
St.3d 365 (2022), that addressed state procedures under Ohio App. R. 26(B). (ECF Doc. 8, pp. 15-16.)
Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007) (quoting Lewis, 497 U.S. at 780); see also
Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990) (explaining that, because “it is not the
function of a federal habeas court to correct errors in state law,” granting federal habeas relief
and setting aside a conviction based on a state trial court’s failure to give a jury instructions

interpretating state law would only be warranted “under the most unusual circumstances”);
Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir. 2012) (“Generally speaking, a state court’s
interpretation of the propriety of a jury instruction under state law does not entitle a habeas
claimant to relief.”) (citing 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68). “To warrant habeas
relief, ‘jury instructions must not only have been erroneous, but also, taken as a whole, so infirm
that they rendered the entire trial fundamentally unfair. The burden is even greater than that
required to demonstrate plain error on appeal.’” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir.
2001). Therefore, the question on federal habeas review is not whether the state trial court failed
to cure a particular ailing jury instruction, but “whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process.” Daniels, 501 F.3d at 741

(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
To the extent that Mr. Harris is seeking federal habeas relief based on the application of
state procedural rules or because the trial court’s jury instructions violated state law, he fails to
state a claim upon which federal habeas relief may be granted, and the undersigned recommends
that the Court DISMISS that claim as not cognizable.
Conversely, to the extent Mr. Harris is asserting a federal claim for ineffective assistance
of counsel under the Strickland standard, and that any errors under state law “rendered the entire
trial fundamentally unfair,” Buell, 274 F.3d at 355, this Court must apply the double deferential
standard applicable to such claims under AEDPA to assess whether the state appellate court’s
findings—that Mr. Harris “has not demonstrated that there is a reasonable probability that he
would have been successful if he presented the [jury instruction] claim on appeal” and that he
“merely speculates that the jury concluded that every instance of voluntary intoxication equates
with substantial impairment absent being instructed to the contrary” (ECF Doc. 7-1, p. 137)—

were “so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Perkins, 411 F. App'x at 828.
Considering first the state court’s focus on Mr. Harris’s failure to show a reasonable
probability of success if his appellate counsel had made the proposed arguments, the undersigned
finds the state court’s focus was consistent with Strickland. The Strickland court specified that
“a court need not determine whether counsel’s performance was deficient before examining the
prejudice suffered . . . as a result of the alleged deficiencies.” 466 U.S. at 697. After finding Mr.
Harris had failed to demonstrate prejudice, the state court was not required to address the
deficiency prong of the Strickland analysis. See id. (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which . . . will often be so,

that course should be followed.”); see also Neuhard v. United States, 119 F.4th 1064, 1071 (6th
Cir. 2024) (“Neuhard fails on the prejudice prong, so we need not consider deficient
performance.”) (citing Smith v. Mitchell, 348 F.3d 177, 199–200 (6th Cir. 2003)).
Considering next the state court’s conclusion that Mr. Harris “merely speculate[d] that
the jury concluded that every instance of voluntary intoxication equates with substantial
impairment absent being instructed to the contrary” (ECF Doc. 7-1, p. 137 (citing Brown, 2021-
Ohio-2540 at ¶ 63)), the undersigned also finds this conclusion was appropriate under the
Strickland standard. See, e.g., Harrington, 562 U.S. at 111-12 (finding under Strickland’s
prejudice standard that “[t]he likelihood of a different result must be substantial, not just
conceivable”); Koras v. Robinson, 123 F. App’x 207, 212 (6th Cir. 2005) (“Where ‘one is left
with pure speculation on whether the outcome of the trial . . . could have been any different,’
there is an insufficient showing of prejudice.”) (quoting Baze v. Parker, 371 F.3d 310, 322 (6th
Cir. 2004)); Wilds v. Warden, Chillicothe Corr. Inst., 745 F. Supp. 3d 591, 605 (S.D. Ohio 2024)

(accepting magistrate judge’s finding that defendant did not suffer prejudice where his argument
depended on “pure speculation”).
A review of Mr. Harris’s Rule 26(B) application is consistent with the state court’s
finding that his arguments regarding prejudice resulting from trial counsel’s performance on
direct appeal were merely speculative. In support of his Rule 26(B) argument that appellate
counsel’s arguments were insufficiently developed on direct appeal, Petitioner asserted:
6. Appellant argues that it seems likely that the jury could have considered the
court’s definition of “substantially impaired” for only the kidnapping charge since
this instruction immediately followed.

7. Appellant contends that for appellate counsel to meet the requirements under
Criminal Rule 52(B) and Appellate Rule 16(A)(7), appellate counsel should have
argued that “when the jury was determining whether appellant committed sexual
battery, the jury likely gave “substantially impaired” the common and ordinary
definitions of these words and likely concluded that every instance of intoxication
equates with substantial impairment,” which is contrary to Ohio law.

(ECF Doc. 7-1, p. 123, ¶¶ 6-7 (emphasis added).) Mr. Harris’s arguments before this Court are
similarly speculative (ECF Doc. 8, p. 13), without developed explanation as to how appellate
counsel’s failure to better articulate his arguments on direct appeal resulted in prejudice.
Applying the double deferential standard applicable to the Strickland claim in Ground
Two, the undersigned finds that Mr. Harris has failed to show that the denial of his appeal as to
appellate counsel’s argument challenging the trial court’s jury instructions was “so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Perkins, 411 F. App'x at 828 (citations omitted).
For the reasons set forth above, and to the extent Mr. Harris is asserting a federal
constitutional claim in Ground Two, the undersigned recommends that the Court DENY Ground
Two of the Petition on its merits.
IV. Recommendation

For the reasons set forth above, the undersigned recommends that the Court DENY Mr.
Harris’s Petition because Ground One is without merit and because Ground Two is not
cognizable and/or without merit.

Dated: May 1, 2025

/s/ Amanda M. Knapp
AMANDA M. KNAPP
UNITED STATES MAGISTRATE JUDGE

OBJECTIONS

Any objections to this Report and Recommendation must be filed with the Clerk of
Courts within fourteen (14) days after being served with a copy of this document. Failure to file
objections within the specified time may forfeit the right to appeal the District Court’s order. See
Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019); see also Thomas v. Arn, 474 U.S. 140
(1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10920503. Public record. Not legal advice.